Cancer in Pakistan's Judiciary Has Metastasized
By
Ijaz Hussain
THE JUDICIARY in Pakistan does not have an edifying history.
Most jurists agree that its weak-kneed response to the excesses
of the executive early in the country’s history have gone
a long way in impeding the progress of democracy in Pakistan.
When
General Pervez Musharraf came to power through a coup in 1999,
the Supreme Court of Pakistan again resorted to the Doctrine
of Necessity in legitimizing the illegal takeover. In doing
so, it became a partner of the military regime and, as the Pakistan
Bar Council white paper indicates, it has since enjoyed a quid
pro quo, including the controversial three years’ extension
in the judges’ retirement age.
Indeed,
the Pakistan Bar Council decided to boycott the Supreme Court
by refusing to challenge any constitutional question before it
on the ground that it (PBC) could not expect a fair and impartial
decision from the SC. The matter did not end there. The lawyers
observed 8 March 2003, the day the Chief Justice of Pakistan,
Riaz Ahmed, had to originally retire before the three-year extension
as a black day.
The
PBC also held conventions throughout Pakistan against the judiciary.
It then brought out a white paper in which it described the deeds
of Pakistan’s judiciary. These measures by the legal community
are unprecedented in the history of Pakistan. That matters should
reach such a pass is unfortunate, but the situation raises a number
of questions, which we propose to address here.
The
judiciary’s saga began in 1954 when the Federal Court upheld
the dissolution of the Constituent Assembly by then-Governor-General
Ghulam Muhammad. This was followed by the validation by the Court
of Ayub Khan’s martial law. Later, it did try to reverse
the decision by declaring Yahya Khan a usurper.
However,
the reversal came about after Yahya Khan’s departure from
the political scene. Similarly, the SC tried to put up a brave
face in the Haji Saifullah case by declaring Gen. Zia’s
dissolution of the National Assembly invalid; but, again, this
was done only after the dictator’s death (making his son
publicly boast in a moment of truth that had his father been alive
the judgment could not have been delivered).
The
litmus test of the judiciary’s independence would have been
its decisions against the dictators when they were still in power.
But the Supreme Court failed that test when it upheld Zia’s
martial law in the Nusrat Bhutto case.
Its
next test came when the military takeover by Gen. Musharraf was
challenged. The Supreme Court not only justified it but also granted
three years to the military regime to implement its program, in
addition to granting the right to make amendments to the Constitution,
a right it did not itself possess. It is noteworthy that though
the Court did not stipulate the removal of then-President Rafiq
Tarrar in its judgment, the latter was removed and Gen. Musharraf
was administered oath as President by the Chief Justice of Pakistan.
The act was patently unconstitutional.
Most
observers noticed that then-Chief Justice Irshad Hasan Khan was
rewarded for this by Gen Musharraf when he made him the Chief
Election Commissioner after his retirement. Since this came about
partially through the efforts of the federal law secretary, Justice
Khokhar, he was given an out-of-turn appointment as a Supreme
Court judge even though he was a junior judge of the Lahore High
Court (placed at no.13 in the seniority list).
This
was in clear violation of the principle laid down in the 1996
Judges’ Case which stipulated the seniority rule in the
matter of appointment of judges. This and other appointments of
junior judges were challenged but were turned down by a special
bench presided over by Chief Justice Riaz Ahmed.
Here,
mention must be made of the appointment of Justice Iftikhar Chaudhry
who succeeded Justice Falak Sher as chief justice of the LHC in
2002. Justice Chaudhry was given an out-of-turn appointment to
which he recently reciprocated by declaring that Gen. Musharraf
could at once hold the offices of the President of Pakistan and
the COAS under the Constitution.
The
judiciary’s independence was again put on trial in April
2002 when Gen. Musharraf sought to stay in office for five years
through a referendum. This was challenged as being violative of
the Constitution which stipulates a definite procedure for the
election of the President and which was being circumvented through
the device of referendum.
The
Court did not pronounce on the merit of the case on the ground
that the question was academic, hypothetical and presumptive in
nature. However, subsequently when the detailed judgment was announced,
the Court justified the referendum on the ground that appeal to
the political and popular sovereign, i.e., the people of Pakistan
could not be termed as undemocratic and contrary to the letter
and spirit of the Constitution.
This
was, at best, subterfuge. The judges simply took advantage of
the short memory of the people to deliver a verdict which they
never gave in the first place.
The
matter has come to a head following the extension in the period
of retirement age of judges. By granting extension, Gen. Musharraf
violated his commitment to the nation that no amendment in the
Constitution would be introduced unless it was circulated in advance
for soliciting public comments. Interestingly, the extension period
corresponds with the period granted by the judges to Gen. Musharraf
as the Chief Executive.
Here
the question arises whether the extension issue which triggered
the present crisis has not been blown out of all proportions simply
because it has been handled by the military regime. In this view
there is nothing wrong with the extension as it brings Pakistani
judges at par with their counterparts in other countries. In our
judgment it is not the extension granted by the military but rather
the manner and the method in which it has been granted which is
the issue.
This
is so because it clearly smacks of a bribe for ‘services’
rendered by judges. If this was not the case why was the extension
granted in such a hushed manner in the stealth of the night as
if it was a commando action? Similarly, why was the bar and parliament
not involved in the process?
One
might argue at this point that a more dignified and moderate approach
should have been adopted to deal with the situation rather than
resorting to extreme steps such as the Supreme Court’s boycott
or issuance of a white paper. This contention is not justified
because the cancer has metastasized and, as the dictum goes, desperate
situations need desperate remedies.
Finally,
a word about what needs to be done to make the present struggle
against corruption in the judiciary succeed. It is obvious that
the Pakistan Bar Council or for that matter the legal community
acting alone cannot succeed. For that purpose they need to have
the cooperation of other segments of the society, particularly
the political parties.
The
latter have extended their support, though it isn’t unstinted
as is evident from the MMA’s attempt to work out a compromise
with the government to secure its own political ends against which
the president of the Pakistan Supreme Court Bar Association has
warned. Unfortunately, the question of extension in the retirement
age of judges or for that matter corruption in the judiciary apparently
has low priority for political parties. This means the best bet
to deal with the curse of rent-a-judiciary lies in mobilizing
public opinion against this evil.
The
writer is Professor Department of International Relations, Dean
of Social Sciences, Quaid-e-Azam University, Islamabad and author
of several books. - Courtesy Daily Times
