Role of Judiciary in Constitution Making in Pakistan

This project appears to have nose dived. Sorry there Ghazia.
Sorry to see it go

Thanks a lot everyone for your very helpful comments. I havent gone over all the comments in detail yet but will do as soon as possible. And will get back here as soon as I have gotten anything significant. Right now everything seems so tangled!

Thanks again and please keep commenting.

Re: # 22

According to a recent news article, there are 10 million (1 crore) backlogged cases pending in the Pakistani judicial system. So statistically speaking if every judge in the world aided by a staff of 1000 mokeys with typwriters is assigned to clear this backlog, it would take them probably two to three centuries.

Military has corrupted the judiciary to its very core, so that, even if military is absolutely deposed of political power, the process is irreversible without bloodshed.

Re: # 22
``...I have always believed the separation between morality and legality in pakistan is the key problem..ultimately the lack of respect for the rule of law is a moral/ethical failure.``

Zakk, I simply couldn`t agree with you more on the subject. Your understanding I am sure your study of law nd society must be commended. I wonder how many of legal pundits would ever be aware of this very dichotomy exhisting in our legal setup. Without morality within the core of law, the lattter is as good as dead fish. Ofcourse our concurrence here may not be lat word, as we in our own specified surroundings, have been trained to follow the rules as laid down. I don`t know how far you would agree here with the proposition that in fact we today are nothing more than an extension of the Khilafath of medeieval days. Thus, the legal order is fraught with the analytical aspect of law in the spirit of `law as is`.

This fundamental error is the underpinning of our legal insensitivities. I strongly feel that without a serious jurisprudential exercise in determining the nature and concept of law in Pakistan,the desired purpose may not be served. Not discouraging Ghazia on this:)

As to your reference to India, Bibek Debroy, in his book, In the Dock, if I remember correctly has put the backlog of cases in that country to 3 million.

The figures and statistics nowithstanding, your appraisal of the ineffectiveness of law, stands.

As for the revival of Jirgah system and mad hatters cruel circus of Karo Kari, Vaani, etc,. yes I once agin agree with you. The turn to a parallel suedo-judicial system, unrecogbnized by the Constitution, is a definate pointer of the ineffectiveness of the judicial sytem, and failure of the rule of law. What Ihad refered to in my comment was the urban society,encompassing the middle and the lower classes, rather the marginalized majority of our population.

Ciao

Re: # 21

EZ I agree..just one comment with regard to what you said:`` the common man, seeks survival, through an ineffective judicial system, in the wilderness of anarchy.``

My own experience has been slightly different..I find that in response to anarchy or near anarchy people prefer a blatantly unjust system over an ineffective system at anytime of the day..that is one of the reasons for the spread of the baloch jirga system into areas where it was previously unheard of...

Oh yes Ghazia unrelated..I also forgot to mention a stat i heard some time ago which speaks volumes for ineffective judiciaries..judicial backlog should be the hallmark of an ineffective judicial system, yet according to one report i have read judicial backlog in India (in the 1990`s) was higher than Pakistan..7 years compared to three years, simply put it is not the backlog of cases that is responsible for the Paks systems ineffectiveness. I am not a lawyer mind you..but I have always believed the separation between morality and legality in pakistan is the key problem..ultimately the lack of respect for the rule of law is a moral/ethical failure.

Re: # 20
Dear Zakk,
no intentional disrepect to your views, which are quite rich, and infact I for one endorse what you have stated, in your comments. As you did point out and rightly so, the assertion by the courts is found only when the powere structure is in decline.

For us, the innocous entities, maybe these issues are primordorial, as the common man, seeks survival, through an ineffective judicial system, in the wilderness of anarchy. For those who fall within the power engine, by compromise or default, are neither effected, nor should they be sensitive, to the question in hand. The courts, could have played the role required of them, had not the power vested in them not been diluted.

In my humble view, the study of courts or rather the judiciary, as Ghazia Aslam posits the questions is an untread path. At least to me, for I have not come accross any indeginous serious research under taken. May be I am more ignorant than willing to accept, but so far what ever little material available is too sordid, not just laced but actually dwelling on non-issues ( by that I mean persons, personalities, or maybe a little beyond, but staying well with certain parameters, which I choose to call the strait jacket of our honored research scholors).

The role of the courts in constitution making, can be a worthy contribution. Specially from that generation, whom we never gave a second thought, as to the seriousness and evolution of nationalism, unknown atleast to the three earlier generations, who not failed themselves, but colectively collapsed as a society.

We should all wish Ghazia the very best in her research project. At last law is witnesing a new dawn, hopefully a promising one, this time.

Re: # 19
your points are noted..I was writing solely of memory and any inaccuracies mentioned were not intentional..I would like to remind you of what i said in the end..the judiciary asserts itself usually when the ruling gov authority is perceived to be in a state of decline..

with regard to the Junejo dismissal ..I was citing Aslam Begs reported comments that the SC was told not to restore the gov. I also forgot to mention an element of racial bias that has been alleged against the SC, Stanley Wolpert cited one Chief Justice associated with the ZAB case as having spoken disparaginly of Sindhis, a similar allusion was made by Sajjad Ali Shah about how PM`s from Sind seemed to have their gov dimissal upheld while those from Punjab have their restored.

Re: # 18
Zakk,
Good points raised. My congratulations:) there.

However, your pointation of ZAB`s case, not holding brief for the government, do study disspaionately the role of the defence counsels also. One has yet to seethe arguments in a muder appeal going on for months on end. The prtocratination in fact led to the retirement of one judge, and there after Justice Waheeduddin fell sick. He was hearing the case as an ad-hoc judge, brought in again in the Supreme Court, after his retirement. Both the judges were very senior highly repectd and above approach. The defence was fuly aware of the inclination of the Court at the material time. Why wa stime allowed to be wasted? The role of the then Chief Justices of the Supreme Court and the Lahore High Court must also be kept in mind. If you are refering to the Review which was filed, we must bear in mind the extremely limited scope it has. certainly the minority judges, could not by any strech of legal fiction over ride or review the judgment passed by the majority judges.

As far as your allegation of Supreme Court being pressurized by the army at any stage during the hearing of Siafullah`s case. It is only hearsay. If that was the position, how come Supreme Court unanimously delivered a judgemnet on 21st June 1988, which virtually turned the politics of this county Ref: Benezai Bhutto v. Federation of Pakistan. And this judgment was delivered during the lifetimeof General ZiaulHaq.

I suggest that instead of preconcieved notions, we ought to go into adeeper research on the subject, a detached and neutral observation is nessacary, if any research is to made fruitful.

Keep writing Ghazia..it is always interesting to read something researched about Pakistan. A few simple comments about Pakistans legal/political system:

1) Firstly in democracies there is usually a concept of separation of powers..for much of pakistans existence and to a lesser extent now..that separation has not existed practically..the now maligned District management Group wielded executive and judicial powers over districts ( as i would imagine their counterparts in India still do)..conversely there have been several occassions during martial laws that Chief Justice of the SC and HC have taken over executive positions in lieu of an absent executive

2)Administratively lower courts were in reality accountable to the Executive and not superior courts.

3) The writ of the court has not extended (for most of Pakistans existence) to FATA, the Northern Areas and much of Baluchistan..if you were to look at that in geographical terms those areas combined comprise almost half of Pakistans overall area.

4) Even when dealing with the Supreme Court and High Courts it is essentially the federal executive which exercises real power over them..with regard to the elevation of judges. and other matetrs..many of those curbs were introduced in the modern constitution by ZAB as a means of curbing challenges to his authority.

5) While the above comments sound harsh there have been a few cases where the courts have openly defied a sitting government ..surprisingly as the system is quite skewered in favour of a sitting federal gov..a few examples are:

a) the ruling against martial law in karachi and lahore in 1977 during the PNA PPP confrontation

b) the Sindh High Courts ruling against the dismissal of Khawaja Nazimuddins dismissal

c) If the Supreme Court had been allowed to fairly rule on ZABs execution it goes without saying they would have ruled against it..the government used its full power to remove judges who would have voted against the execution

d)Junejos gov would have been restored agai if the Army had not warned the SC against so

e) The Judges seniority case in the mid 1990`s while landmark and now ignored by the government it was unique in that it went against a sitting gov

f) The Sajjad Ali case has probably been discussed

g) Recently during Shahbaz Sharifs attempted return the courts reaffirmed his right to return..

To summarise..the legal system is especially twisted in a way where it has the pretende of a judiciary which in reality lacks much the authority of a real judiciary..despite this the courts have shown some backbone on occassion..yet the majority of the time it sides with the power that effectively wields executive authority (the more power the more it sides)...in the times when it has defied a sitting gov..there has been no respect for the rule of law..and as such its authority remained unenforceable..this reality is reflected by the general publics attitude towards legal cases. I am sure if research was done..it would show most people go to appeal ..because they doubt the impartiality of judges.

Re: # 12
I wonder why the list is so short. Had I been in your shoes. I would have initially taken up Maulana Adul Sattar Khan Niazi`s case(1953), Munir Commission Report on Qadiuani Movement violence, Usif Patel v. Crown (1954), Governor General`s Reference (1955), and later Benazir Bhutto v. Federation of Pakistan (1988), prior to Zafar Ali Shah, Liaqat Baluch Case (1999), the list can never be exhaustive.

As for the views posted and your absorption, yes, they are indeed providing rich material to your approach, rather concretizing it.

Keep it up Ghazia:) and GOOD LUCK on your project.

Re: # 13

Every representative democracy is founded on the `will` of `the people`. Can we disagree with this proposition? The repositry of the will is not just the legislature, but efectively the courts too find the moral sanctions as the only force available for the enforcement of their judgements. Constitutional provisions not withtanding. This is true for every democratic system.

The courts no doubt are a creature of the constitution, and as such interpret the constitution while doing so, it is the court who finally says what the constitution is?. Ref: Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

How would this jurisdiction in the context of democratic or non-democratic government be phrased.

While insistence on limiting the role of courts to that of mere interpretator, is undeniably the hall mark of many legal systems. It cannot however, be denied, the quest for an effective judicially acive courts is in line with the post modern jurisprudence, and judicial philosophy.

When we say `government`. What does the term construe? It should in my view not be equated in the conservative context, of the traditional meaning assigned to it.

Class Interest Litigation, or PIL is one form of enforcing fundametally established principles of law. We certainly cannot equate such enforcement with taking over the governmental or legislative functions by the courts. PIL is part of our Constitution through Article 184 (3), but it could only survive a decade, and died in its infancy. In india, the Supreme Court sou moto assumed the juisdiction, and today the courts ther are playing a much healthier positive and constructive role in hormonizing the sociatal frictions.

Hasan siddiqi, this is meant only as an argument. I respect your views and find substance in them. The questions arising out of the statement made by Ghazia Aslam, have only been posed, again not by any disrespect to you.

OK I understand the reasons. I still feel uncomfortable because it puts the country`s name in a negative light.

I think the Judiciary should be the interpretor of the Constitution, not the amendor or maker of the constitution. Amendments should be left to the National Assembly. However that is really idealistic of me and i know there have been many instances to the contrary.

Good luck with your paper. This is a very interesting topic and i hope to find enough time to study it more in other publications.

Re: # 13

I did not mean to say that Pakistan should not be a democracy. I meant more in a positive rather than normative way i.e. Pakistan`s form of government IS (not that it should be) non-democratic rather than democratic. I make this assumption only for the sake of analysis. I think this assumption is justified because:

Pakistan has had military rule for more than half of its life.
None of the democratically elected assemblies have been able to complete their term.
There is historically documented evidence to suggest that even during democratically elected assemblies, the rule (decision making processes etc) has not been truly democratic.

``Instead of analyzing the role of judiciary in Pakistan as democracy, one should attempt to look for the role of judiciary in Pakistan as non-democratic government.``

Why is that? I don`t see how that would help. Pakistan was meant to be a democracy and it should remain a democracy. So why on earth would you want to analyze the role of Judiciary in Pakistan as an institution of a non-democratic government?

Please explain this in depth.

Thanks.

Thanks a lot for a number of interesting comments and criticisms. EinZeitgest, your suggestion of studying the form of government (Parliamentary or Presidential) system prior to analyzing the role of judiciary in that form of government is well taken. However, I would like to take it to an even more general level. (Comparison at more general level was also implied by insaanity). This is just an idea... and there might be holes in it which I am trying to detect through this debate.

Instead of analyzing the role of judiciary in Pakistan as democracy, one should attempt to look for the role of judiciary in Pakistan as non-democratic government. In a non-democratic government the power resides with specific persons and not with the institutions (legislation or constitutions) and the dictator is not going to last forever. Since all the actors in the society/political arena know that, no political actor would want to antagonize any potential person (or group of persons) who may hold dictatorial power in the future. And of course, each actor is trying to maximize their payoffs in this time period and the next. Can one look at Judiciary as one of those actors? The first question in order to address that is what is judiciary trying to maximize? Other than salaries of judges, one obvious thing is support -- and the power to be able to intervene/affect politics (and its own status) in future. (This itself is a good question to ask-- what have been the incentives of Pakistan`s judiciary.). In this framework, one needs to look at where does the support or authority of judiciary in Pakistan lie? Public sphere/public support? Executive? Constitution? political parties? civil society or intellectuals?

In order to analyze such a role, the main source of data can come from jurisprudence of the nine main cases that have addressed different constitutional questions in different and the political environment surrounding these cases. These cases are 1) Tamizzudin 2) Dosso 3) Asma Jilani 4) Begam Nusrat Bhutto (1977) 5) Muhammad of Saifullah Khan (1989) 6) Tariq Rahim (1992) 7) Nawaz Sharif (1993) 8) Benazir Bhutto (1997) 9) Zafar Ali Shah. Right now, what I have in mind is that I will see if the questions posed to courts were legal or political and was the court ruling (whether the question was legal or political) legal or political. Of course, the distinction between legal and political arenas is very difficult to make, especially in the case of court rulings but I can attempt to do that. The answers to these questions can shed light on who is favored by courts and in what period.

I think that this approach will take into account the comments made by HP and Hassansiddique as well. HP mentioned military as being the only pressure group, my quest would be to document the evidences and basis of that opinion. And to see if other pressure groups (as mentioned by HP) such as ``political parties, lawyers, bars association and other activists`` and general population (as HP implied that ``resentment in general population`` may be one concern, correct me if I am wrong) exerted any influence on court rulings. The answer to these questions will hopefully provide `some` explanation for some questions posed in the original articles.

Support maximization theory is no doubt applicable to all the forms of government. However, the sources of support for judiciary and dynamics of political activity will be different in a non-democratic form of government (or even in different forms of democracy. One may even surmise that these factors would be unique to every society). These questions, as pointed out by insaanity, are universal and not just specific to Pakistan.

Above is sort of a research proposal for a short paper that I am supposed to finish by the end of this month (!) but is a part of larger research project. I would really appreciate any comments on the theory, methodology, or generally if it raises any questions. Data is one concern since there are not a lot of good analytical books written on these cases before. So if you have any references that might help the research i would really appreciate it.

Acknowledgements: 1) The idea that the role of judiciary in Pakistan should be analyzed by assuming Pakistan as a non-democratic government rather than a democratic form of government was given by Professor Tullock. I elaborated further on it.

2) The list of nine cases was put together with the suggestions of a couple of distinguished lawyers and law faculty in LUMS.

``I am undertaking an `academic` exercise, not an argumentative one.``

Interesting... on an argumentative website you are performing an academic exercise ... and are sensitive to criticism.

``Being an aspiring academic at a very early stage, I would definitely avoid any sweeping statement till I have formed an opinion on any subject. ``

All I see is opinion...