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Background of the Pakistani Judiciary

Background of resentment in the legal community since 1980’s

By Baseer Naveed

Since 1954, the ‘doctrine of necessity’ has been abused to the point of providing a judicial cover up of the illegal and ultra constitutional actions of the military and bureaucracy in Pakistan. Over time, this relationship has developed into a strong, but invisible alliance of the judiciary, army and bureaucracy. Any attempt to break this alliance was foiled by the military and bureaucracy.

Dissatisfied with the role the judiciary had played in approval of martial laws, a new and vigorous movement emerged among a new generation of judges after 1983, during the rule of General Zia ul Haq. However, the political parties did not join them in taking up the issue of the supremacy of the judiciary. During the civilian governments of the 1990s, the judiciary made weak attempts to assert itself over constitutional matters, but political parties in power at the time curbed the judiciary from doing so.

When General Musharraf overthrew the elected government in October 1999, the Supreme Court of Pakistan not only justified the military coup d’état, but also gave him powers to amend the country’s constitution according to his will. The President required that the judges take oaths to uphold the Provisional Constitution Order (PCO). It was revealed in 2006, however, that the judges had actually taken oaths on plain white paper. For the first time in the history of Pakistan, the judiciary’s subservient role had been exposed. The judiciary sacrificed constitutional law in favor of expediency. The judiciary of Pakistan has been forced into the role, not as the arbiter of justice, but as the defender of the armed forces. However illegal or unconstitutional its actions may be, under the doctrine of necessity, the army can do no wrong. The doctrine of necessity, which was created to protect the usurpers of power, was used time and time again to overthrow any elected government and keep the constitution in abeyance.

Through the PCO, General Musharraf succeeded in appointing judges of his choice to which the political parties did not object. Therefore, when General Musharraf’s martial law was challenged before the Supreme Court, the judges, his appointees, granted him a favorable decision. This move solidified General Musharraf’s power to amend the Constitution—a power which the military government never even asked for to begin with.

However, when General Musharraf’s original appointees began retiring and new judges were appointed, some of new judges at the Supreme Court and Provincial High Courts started hearing public interest cases through sou motto actions; in other words, the judges were taking public interest cases although nobody was in fact filing such cases. These actions infuriated the military government. The suspended Chief Justice Chaudhry has heard no fewer than 6000 such cases. The Chief Justice declared unconstitutional the deal between the government and private bidders for the privatization of Pakistan Steel Mills. The Supreme Court also took up the issue of land in Murree, a hill station near the capital of Pakistan, which was seized by the military and members of the ruling party. The Chief Justice also summoned military leaders in connection with a case of missing persons, much to the chagrin of the government. As a result of the Chief Justice’s actions contrary to the government’s interests, President Musharraf began a campaign to remove the Chief Justice.

Furthermore, during the elections of the Supreme Bar Association, the candidate for the government side, retired Justice Malik Qayyum, was defeated by Mr. Muneer Malik. Justice Qayyum challenged Mr. Malik by illegally announcing himself to be the president with the help of government lawyers. Lawyers in general, however, were not satisfied with the situation and filed a petition before Chief Justice Chaudhry. The court decided in favor of Mr. Malik. This sent a clear message to the government that the judiciary was beginning to carve out its independence.

At the point of the Chief Justice’s suspension, Pakistani lawyers were in favor of an independent role for the judiciary. When the military government started its campaign against the Chief Justice, the lawyers were already positioning themselves in support of the Chief Justice. By the time the government made the Chief Justice nonfunctional, all the various bar associations, including the district bar associations, were under the influence of the democratic and progressive groups of lawyers.