JUDICIARY
Judiciary has
been an integral part of the societies from the very first day and it is an
integral constitutional institution of government. Human beings can live with
poverty but cannot live without justice. The system of justice has been present
on the earth in one or the other form where we find the historical evidence of
society. It is the judicial organ of the state, which restricts the other state
organs, which restricts the other state organs having arbitrary powers within
their limits. It also safeguards the basic rights of the people, which is
necessary for the development of human conscience and society.
Our national history
is full of political and constitutional upheavals. These upheavals were not
resolved politically while the political and constitutional fights were fought
in the superior courts, which not only decided between political parties but
also between political authority and military coup de tats. The constitutional
issues pertaining to the political authority have been ranging from legitimacy
(from 1958 to 1999) to legality in Gilani case in 2012. The judiciary has been
first struggling to attain independence from the executive. It could not free
itself from the grip and influence of the executive until March 2009 when the
deposed judges of the supreme court were restored after the lawyers movement
backed by some political parties and some sections of the armed forces. Since
then the superior judiciary has shown not only independence but has moved
forward and displayed some acts of judicial activism which in turn have caused
great embarrassments to the executive. Since late 2011 it has been crossing the
frontiers of “judicial activism” and entering the realm where is appears to be
assuming the role of a sovereign”. It began by deciding in its favour the issue
of the appointment and discipline of the judges by excluding any substantive
role of the executive absolutely in 2009. It appears to have overstepped by
encroaching upon the sovereignty of the parliament and the political head of
the state. There appears to be no halt in its onward march as there exists no
meaningful mechanism to judge the judges.
Before we move
forward it is essential to know the judicial system of Pakistan. It is the
pertinent to identify the issues that impinge upon the independence of
judiciary. What has caused the judiciary to adopt the course of judicial
activism and finally assumed the role of a sovereign is the next question to be
addressed. What consequences the new assumed role of judiciary is going to have
for the state and society of Pakistan is the final question to be addressed
over here.
JUDICIAL SYATEM OF PAKISTAN
The
judicial system of Pakistan has experienced and passed through 3 distinct
stages of historical development, namely, Hindu Kingdom, Muslim-rule and
British colonial domination. The 4th and current era, commenced with
the partition of India and the establishment of Pakistan as a sovereign and
independent State. The system, thus, has evolved through a process of reform
and development. This conclusion enjoys near unanimity among historians and
commentators of Indian legal history. During this process of evolution and
growth, the judicial system did receive influences and inspirations from
foreign doctrines/notions and indigenous norms/practices, both in terms of
organising courts’ structure and hierarchy, and following procedures/practices
in reaching decisions. Therefore, the present judicial system is not an
entirely foreign transplant, as is commonly alleged, but has acquired an
indigenous flavour and national colour. And whereas the system may not fully
suit the genius of our people or meet the local conditions, its continued
application and practice has made it intelligible to the common man.
Court
Jurisdiction
In order to understand fully the organization structure of the judiciary
it is also important to understand the jurisdiction of the courts of every
tier.
SUPREME COURT
1. 184(1) Original jurisdiction in
inter-governmental disputes, issues declaratory judgments;
2. 184(3) Enforcement of Fundamental
Rights involving an issue of public importance;
3. Art 185(2) Appeal from judgment/order
of High Court in criminal cases, tried in original and/or appellate capacity
and having imposed death penalty or life imprisonment;
4. Art 185(2) Appeal in civil cases when
the value of claim exceeds fifty thousand rupees;
5. Art 185(2) Appeal when High Court
certifies that the case involves interpretation of the Constitution;
6. Art 185(3) Appeal (subject to grant of
leave) from High Court judgment/order;
7. Art 186 Advisory jurisdiction on any
question of law involving public importance referred by the President;
8. Art 187 To issue directions/orders for
doing complete justice in a pending case/matter;
9. Art 188 To review any of its own
judgment/order;
10. Art 204 To punish for its contempt;
11. Art 212 Appeal from Administrative
courts/tribunals; and
12. Art 203F Its Shariat Appellate Bench
hears appeals from judgments/orders of Federal Shariat Court.
FEDERAL SHARIAT COURT
1. Art 203-D To determine whether a provision of law is repugnant to the
Injunctions of Islam;
2. Art 203 DD Revisional Jurisdiction in cases under Hudood laws;
3. Art 203 E To review its judgment/order;
4. Art 203 E To punish for its contempt; and
5. Under Hudood laws, hears appeals from
judgment/order of criminal courts.
HIGH COURT
1. Art 199(1) to issue 5 writs namely
mandamus, prohibition, certiorari, habeas corpus, certiorari and quo warranto;
2. Art 199(2) Enforcement of Fundamental
Rights;
3. Art 203: To supervise/control
subordinate courts;
4. Art 204: To punish for its contempt;
5. To hear appeal under S.100 of CPC;
6. To decide reference under S.100 of CPC;
7. Power of review under S.114 of CPC;
8. Power of revision under S.115 of CPC;
9. Appeals under S.410 of Cr.P.C;
10. Appeals against acquittal under S.417 of
CPC;
11. Appeals against judgment/decree/order of
tribunals under special laws;
12. To issue directions of the nature of habeas
corpus under S.491 of Cr.P.C;
13. Inter-Court appeal at Lahore High Court
and High Court of Sindh,
{High Court of Sindh has original
jurisdiction in civil cases of the value of above 3 million}.
DISTT. & SESSIONS JUDGE/ADDL. DISTT. & SESSIONS JUDGE
1. Appeal against judgment/decree of a
Civil Judge under S.96 of CPC;
2. Appeal against order under S.104 of
CPC;
3. Power of revision under S.115 of CPC;
4. Original jurisdiction in suits upon
bills of exchange, hundies or promissory notes under Order XXXVII of CPC;
5. Murder trial under S.265 A of the
Cr.P.C;
6. Criminal trial under Hudood laws;
7. Appeals under S.423 of Cr.P.C;
8. Power of revision under S.435 of
Cr.P.C;
9. To issue directions of the nature of habeas
corpus under S.491 of Cr.P.C; and
10. Decides pre-arrest bail applications
under S 498 of the Cr. PC.
(In
Karachi District, the original jurisdiction of Distt Judge is limited to Rupees
3 million)
CIVIL JUDGE 1ST CLASS
1. To try all civil suits, there is no
pecuniary limit on its jurisdiction;
2. In certain jurisdictions also
designated as Rent Controller;
3. In certain jurisdictions also
designated as Judge, Family Court;
4. At Karachi, pecuniary jurisdiction
limited to rupees 3 million (Karachi Courts Order 1956); and
5. In certain jurisdictions designated as
Magistrate empowered under S.30 of Cr.P.C.
CIVIL JUDGE 2ND CLASS
1. To try civil suit up to the value of
fifty thousand rupees; and
2. In certain jurisdictions designated as
Rent Controller/Judge, Family Court.
CIVIL JUDGE 3RD CLASS
To
try civil suit up to the value of twenty thousand rupees.
MAGISTRATE 1ST CLASS
To
try offences punishable up to 3 years imprisonment and fifty thousand rupees
fine.
MAGISTRATE 2ND CLASS
To
try offences punishable up to 1 year and five thousand rupees fine.
MAGISTRATE 3RD CLASS
To
try offences punishable up to 1 month and one thousand rupees fine
ROLE OF JUDICIARY IN PAKISTAN
While discussing the role of judiciary in
Pakistan it is primarily focused on the role of the superior judiciary and that
too in deciding the constitutional petitions pertaining to the disputes between
the constitutional organs of the state, especially on the issues of civilian
authority vs the military take- overs.
THE DOCTRINE OF NECESSITY- A MOCKRY OF JUDICIAL INDEPENDENCE
On this account it has, throughout Pakistan’s
existence, been consistent and constant in one respect. It has always
legitimized authoritarian and military interventions in the political
structures of Pakistan. Not once has it invalidated the incumbent regime of a
military adventurer. Hamza Alavi has pointed out that ‘the thread that runs
centrally through the history of Pakistan is a tension between the locus of
power and legitimating of Power. The superior judiciary has consistently helped
the locus to legitimate its power.
In line with the
same strategy, the 1956 constitution was abrogated upon the promulgation of
martial law in October 1958. In State versus Dosso (1958) Justic Munir declared
that:
The doctrine of
necessity
“If the attempt to break the constitution fails,
those who sponsor or organize it are judged by the existing constitution as
guilty of the crime of treason. But if the revolution is victorious in the
sense that the persons assuming power under the change can successfully require
the inhabitants of the country to conform to the new regime, then the
revolution itself becomes a law creating fact because thereafter its own
legality is judged not by reference to the annulled constitution but the
reference to its own success. Thus a victorious revolution or a successful coup
d’état is an internationally recognized legal method of changing a
constitution.”
Technically the Dosso
judgment (1958) was overruled by the Supreme Court itself in 1972 but that
later judgment was only an ex post facto condemnation of a military usurper
after his fall. All the pious and self-righteous exclamations of the Jilani
case in 1972 were dropped like hot bricks when, despite these definitive
prohibitions, General Zia-ul-Haq deposed Prime Minister Zulfiqar Ali Bhutto and
imposed martial law in July 1977.
In its judgment
in the Begum Nusrat Bhutto case (1977) the court hastily, but unabashedly, resiled
from its judgment in the Jilani case (1972). In the leading judgment subscribed
by the chief justice himself, the court concluded that Zia's takeover was an extra-constitutional step' but was justified
on grounds of state necessity and the welfare of the people.
The pious hopes
that the Jilani judgment (1972) had raised, were now dashed by the Nusrat
Bhutto judgment. Twelve years later, the judiciary would build a mausoleum over
this grave of the Jilani judgment after the military takeover by General Pervez Musharraf in October
1999. Unlike the Begum Nusrat Bhutto case (1977), the Zafar Ali Shah judgment
(2000) did not even pay adequate lip service to the principles enshrined in the
Jilani case. What 'institutional values' the court was purporting to save
remains a mystery and would perhaps be known only to the judges. None was
specifically identified or spelt out. The effect of both judgments was thus to
empower the civil and military bureaucracy and enfeeble democratic and
political institutions.
Between Generals
Zia and Musharraf the Supreme Court displayed some judicial activism. When Zia dissolved his own assembly in May 1988,
the Supreme Court held the dissolution invalid, though it refused to restore
the Assembly. During the ensuing successive administrations of Benazir Bhutto
and Nawaz Sharif, the court displayed more sparks of judicial activism. When
Nawaz Sharif's government was dismissed and the assembly dissolved by decree of
a civilian president in April 1993, the court restored the government and the
assembly. All these judgments were rendered when civilian democratic
administrations were in place.
Judicial Activism vs Democratic Consolidation in Pakistan
The period between March 9, 2007 (i.e.
suspension of the chief justice) and Nov 3, 2007 (i.e. Musharraf’s second coup)
is characterized as a struggle for judicial independence. In the beginning, it
was all about ‘judicial independence’. But after the restoration of all the
judges in March 2009, judicial independence was no longer an issue but rather a
presumption of the superior judiciary regarding itself. The battle moved on
from judicial independence to judicial activism in the period between March
2009 to November 2011.
This period of judicial activism was
characterised by rigorous judicial scrutiny of legislative and
executive/government actions of the political elite and of human rights and
other legal violations by private individuals/organisations and a check on the
de facto power of the military elite. However, such judgments raised the
fundamental question: would this judicial activism consolidate or derail the
democracy in Pakistan?
A close analysis of the judgements passed during this
period of judicial activism shows that the superior judiciary has not given up
its trend of being involved in judicial activism during the civilian rule. It
has been more active since the closing days of Musharraf regime and has been
very active since the beginning of the present civilian regime.
A reading of the verdict (31 July 2009) on
striking down as unconstitutional some of the actions taken by former President
Pervez Musharraf’s declaration of emergency on 3 November 2007and of the
politics leading up to it suggested that the judges were on a collision course
with the elected government, and that retrospective judicial vigilance might
hinder rather than aid democratic consolidation.
More
importantly, while it was clearly stated that Musharraf’s November 2007
emergency was illegal and unconstitutional the court refused to press Musharraf
or his military and civil co-conspirators for accountability. Rather, in a
ruling on a different petition a few days before, it deflected the question of
Musharraf’s accountability towards parliament. Thus it declared the imposition
of emergency as unconstitutional but did not take any action against the
actors, especially the military. However, it tightened its grip on the higher
judiciary by sending home about 110 judges, some of whom were condemned for
taking oath under the reviled PCO, and others for simply having been appointed
under the tenure of a PCO chief justice. The irony of Chaudhry himself having
taken oath under Musharraf’s first PCO in 2000 was not missed by some. In fact,
the political nature of the ruling could not be concealed behind hair-splitting
legal arguments condoning some actions taken during and after the November 2007
emergency and nullifying others. The Supreme Court seemed interested in
expanding its own powers in the name of safeguarding the constitution, while
sidestepping the accountability of the main culprits of constitutional
mutilation. It also signaled that it was not initiating an all-out war with the
elected government, only preparing for it.
Political ambitions behind judicial activism
The
constitutionalist pretensions of activist judges and their lawyer supporters
are belied by their open political ambitions. We have witnessed remarkable
acrobatics– as in the Supreme Court’s suo motu questioning of the government’s
power to alter taxes and subsidies. These acts of judicial activism have not
been randomly distributed. There is a pattern: media fuelled populism,
encroachment upon the authority of the parliament and executive, helping
political allies, and keeping mum where core interests of the military might be
involved. From a broadly-supported popular struggle against the Musharraf
regime, the lawyers’ movement has morphed into a self-serving power grab.
The
judiciary’s penchant for populism coupled with its thirst for power does not bode
well for tackling difficult political questions that require tough decisions
and painstaking negotiation. As they attempt to further expand their domain of
authority, the judges and their lawyer supporters will also have to take
responsibility for their actions, and the alibis they might provide to other
forces for stalling crucial reforms.
FROM JUDICIAL ACTIVISM TO SOVEREIGNTY : FUTURE OF DEMOCRACY
The latest judicial
order dated June 19, 2012, disqualifying the former PM Gilani as a consequence
of his being convicted of the contempt of the same court in the implementation
of NRO case has led to two dramatic consequences.
1. Firstly, the removal of
prime minister Yousuf Raza Gilani, who enjoyed the support of an overwhelming
majority in the National Assembly.
2. Secondly, the acceptance of
judicial defeat by the political elite leading to political change in the form
of a new prime minister.
In short, unlike the unconstitutional coups
of the military elite, the Supreme Court has emerged as an independent
constitutional vehicle for political/government change in Pakistan on the basis
of legal, and not political, grounds.
But
let us think about this in more generic analytical terms. What is the nature of
this Supreme Court which brings about a political/government change? What are
the reasons behind the rise of such a Supreme Court? And what are consequences
of such a Supreme Court?
THE DECISIONS and actions taken during the
period of judicial activism was not a direct challenge to the power base of the
political elite. For example, even on the NRO issue, judicial restraint was
exercised by the Supreme Court for over two years before contempt proceedings
were finally initiated in January 2012.
However, December 2011 seems to have been a
turning point with the ‘memo case’ at the Supreme Court. The judgments in the
‘memo/Haqqani case’, the ‘contempt case’ against the prime minister and the
latest short order in the ‘disqualification case’ against the prime minister
indicate a shift from judicial activism to judicial sovereignty.
This judicial sovereignty indicates the
confidence of the Supreme Court to directly challenge the political elite by
posing a judicial threat to its leadership and the threat to restructure the
democratic system in the judiciary’s image. In short, the Supreme Court is
exercising relatively absolute power like any other sovereign, being externally
checked only by public opinion and by the countervailing power of the political
and military elites.
REASONS FOR THE RISE OF JUDICIAL SOVEREIGNTY:
Four main reasons can be identified.
·
Firstly,
apart from initially resisting the restoration of an independent judiciary till
March 2009, the PPP political elite has not been able to put in place any
institutional or non-institutional checks/ resistance on judicial independence
or judicial activism. Therefore, the lack of systemic political resistance to
judicial independence and judicial activism created the conditions for judicial
sovereignty.
·
Secondly,
conflict within political elites (PPP versus PML-N) and intra-state conflict
(PPP versus the army), requiring judicial adjudication (e.g. contempt case,
memo case), dramatically increased judicial power. In short, the judiciary
exercises sovereignty because its political and military opponents are busy
fighting among themselves.
·
Thirdly,
there is always a rise in severe judicial dissent against the government in the
last year of any government in a transitional democratic state. Judges give
major political decisions against the ruling political elite because they know
that the government is on its way out. In Pakistan, this ‘judicial dissent/defection’
in the last year has been expressed in the form of judicial sovereignty.
·
Fourthly,
the perceived legitimacy of this judiciary is not based merely on
constitutional legitimacy but also on popular or public legitimacy. The
exercise of judicial sovereignty in removing prime minister Yousuf Raza Gilani
was politico-constitutionally possible because of the perceived unpopularity of
his government and the lack of popular resistance to such judicial removal.
CONSEQUENCES OF JUDICIAL SOVEREIGNTY:
Judges exercise tremendous power over the
destiny of Pakistani citizens. Such judicial power is three-pronged.
1. Firstly, the constitution
controls our destiny and the judges control the constitution because they are
the ultimate interpreters of the constitution.
2. Secondly, judges are the
final decision-makers in disputes between political elites, intra-state
institutions and private individuals. In short, unless set aside in heaven by
God, the judgments of the superior courts determine our destiny because they
ultimately decide our disputes.
3. Thirdly, this present
judiciary has initiated a process of judicialisation of state and societal
issues meaning that the constitution and law are being promoted as a supreme
moral value and as a solution for all problems affecting Pakistan. Our
political, social, cultural and economic problems have been legalised and
judicialised.
ACCOUNTABILITY OF THIS JUDICIAL SOVEREIGNTY
But
are there any checks on or accountability of this judicial sovereignty? The answer
to this question is simple: very little. There are actually no institutional or
constitutional mechanisms to check and hold the judiciary accountable for a
completely wrong or absurd interpretation of the constitution or a completely
wrong or absurd resolution of a legal dispute.
Moreover, since the appointment and removal
of the judges is, in reality, in the hands of the judges themselves, serious
questions arise whether any accountability about the conduct of judges is
possible in such a system. As Dr Arsalan Iftikhar’s case clearly indicates,
short of initiating proceedings under Article 209 of the constitution for the
removal of judges, there are no institutional, or constitutional, mechanisms
for checking and addressing allegations of unethical or improper judicial
conduct.
Judicial sovereignty is a judico-political
reality, which will be difficult to reverse but judicial sovereignty without
accountability is a constitutional anachronism, which cannot be accepted.
Therefore, the task ahead is not to engage in either irrational optimism or
pessimism about our superior judiciary but to begin the patient task of
initiating judicial reforms for judicial accountability.
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