Role of Judiciary in Constitution Making in Pakistan

So what now... we have a whole posse..

Somebody please check for multinics here...

I do not know enough about Pakistani legal and constitutional history to answer what for me is the most important question posited by Ghazia; i.e. is the judiciary an agent to legitimize the executive and intervenes with that particular objective, or is it an avenue for civil society to participate in the process.

This query is not of relevance to just Pakistan, but applies to old well established legal systems elsewhere. For example, if a Republican executive, aided by a Republican majority in the legislature, manages to dominate the Supreme Court nomination process then the Supreme court would reflect the ideological frame of the current Republican govt. There is no doubt that such a Supreme Court will then try and legitimize the agenda of the current executive on issues like abortion, separation of religion from State and gay marriage.

However, the added quandry for Pakistan is the lack of electoral democracy (or the domination of such a process by the military establishment). An elected and frequently changing legislature will act as a check on judicial tyranny. Thus, one hopes that even a highly conservative Supreme court bench in the US will not be able to do much if the Democrats get their act together come next elections. At the same time, the judiciary will provide a check on legislative tyranny through public litigation. Take the case in India where the Gujarat government was forced to accede judicial powers despite the best attempts of the Gujarat State Govt and legislature and case against the accused in the Gujarat riots taken to Mumbai High Court instead of being carried on in Ahemedabad.

The role of the judiciary in Pakistan cannot be seen in isolation from regular interventions by a venal military establishment in the public life of Pakistan. Cowasjee has written extensively on this subject in his articles in the Dawn and they are worth revisiting.

Ghazia,
Your article as I had pointed out earlier, is indeed, breath of fresh air. We must all remember, that any evolution and progress is only posible through academic dicussions. You have entered an area, which has not been tread upon at all. As the comments keep coming in, one finds that individual instances are once again becoming the topic. Do correct me if I am wrong, it is not about individuals and personalities. The time now is address the issues, one critical of all, is the role of the courts, which you have raised.

We have to keep this going, and not get bogged down in trivialties.

And as for 1999 events and the courts. I would be educated, if some one could give one, simply one example besides the Case of Fiji, where the courts have not given legal cover to a successful coup. The reason, WHY? is available in Madzimbamuto v. Lardner-Burke (1969) AC 1 645.

One more reminder, what about Dosso`s Case?, and the ensuing sequence of judgments. For that matter, even Asma Jilani`s case was decided after the fall of Dacca, with no military government in power in 1972. So, why isolate Zafar Ali Shah`s Case?

Ghazia,

I don`t see a logical coherence in this piece.

Methinks you`ll be stuck in that ambitious PhD project for a very long time.

First of all, keep writing Ghazia...we need more people raising questions like these.

Judicial reform is one of the most pressing needs in Pakistan right now. I think that the majority of Pakistanis have lost faith in the law and order system and basically a ``might is right`` system of justice prevails.

For example, I don`t think it was constitutional to overthrow Nawaz Sharif - sure he was corrupt and was looting the country - but the army was CONSTITUTIONALLY wrong. So who has the power? It seems the GHQ is above the law in Pakistan. Is that correct? No. Do we have a choice? Apparently not.

In addition - the Supreme Court affirmed the actions of the military when Sharif was overthrown - further proving that the SC can succumb to the pressures of the military even if it does things against the constitution.

The role of Judiciary in Pakistan needs to be what it is for most developed nations in the world - that of a body which interprets laws and passes judgement. However, when we don`t have proper institutions working on those laws - it makes the judiciary quite worthless.

It would be interesting to see what happens in the wake of new passports being given to the Sharif family. What will be the ``judicial`` explanation for that? What was the judicial explanation for keeping him out in the first place?

The sad thing is - we don`t really have a choice. The military does unconstitutional things to rectify the actions of corrupt politicians - so what is really right - following the constitution or rectifying the actions no matter what the constitution says?

I believe now, that following the constitution is the most important and correct thing to do - provided we give justice to those who have been adversely affected by it.

Re: # 1

I did not say that Pakistan has seen the kind of constitutional cases that United States has. The only reason for mentioning US was that Pakistan in not the only country where courts are active in constitution making (state-structure defining) processes to make the point that theory has ignored a very vital role of courts. The word `pre-constitutional stage` is however vague (that I have realized as I read further). Where does that imply that the process has been the same??

I have not made any claim in this article except saying that the role of courts in Pakistan state structuring has not been defined by any theory. And that there are fundamental questions which have not been answered before.

And..it is not called name dropping it is called referencing to theories and ideas of authorities in that area, trusting that readers do have a knowledge of what has been going on in the field. Besides I am not here to prove anything to anyone. I am undertaking an `academic` exercise, not an argumentative one. 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.

It would have helped the debate if the author has put forward her own answers to the questions. All questions are important but the real test is in first finding out how mature Pakistani judiciary is before even discussing some fundamental issues. With the state of judiciary we have in Pakistan, I think some of Ghzia’s questions are premature. We first have to deal with the role of judiciary in Pakistan and in Ghazia’s words:
“Has judiciary primarily acted as an executive instrument assisting it to legitimize its rule and its role in state building has simply been an off shoot of that?”

This question is primarily political and the answer perhaps is also somewhere within the Pakistani political framework.

Pakistan judiciary is, I believe, still under the Law Ministry which means that its budgets and expenses are being managed by the Law ministry and perhaps even the chief Justice needs a Law Secretary’s sign off on CJ’s Travel vouchers and airlines fares.
The admin control of the Judiciary would certain make the judiciary part of and an extension of the executive.

Often some bureaucrats have ended up becoming Judges in the higher courts and sometime judges have taken up admin’s role in the law ministry.

This intermingling of Law enforcement to law elucidation functions makes judiciary appear to be more an off shoot of the executive rather than an independent institution. That is possibly the reason that the judiciary invariably ends up in deciding for the executive, when an intervention in constitutional-political disputes is warranted. The judiciary appears much more comfortable when it deals with interpretation of the law or the constitution when dealing with other disputes.

The 1973 constitution tried to address this question and attempted to provide for some independence and separation of roles for the judiciary but the exigencies of the terminally volatile political environments make it difficult for the executive to grant that independence to the Judiciary.

***

The judiciary itself has no inclination or should I say pressure on it to assert its independence. The Judiciary currently works with only one pressure group and that is the executive and it feels safe in aligning itself with the executive as there is practically no pressure on the judiciary from the groups outside of the executive such as the political parties, lawyers, bar associations and other activists that need judiciary’s intervention in interpreting the laws to their point of view.

Two notable incidents within the last ten years are worth bringing up in considering the Judiciary’s complete reliance on the Executive branch. I will take the second incident first. Musharaf had to go to the judiciary to seek legitimacy but the terms of reference did not call for granting the executive the right to amend the constitution. Reportedly, the judiciary was willing to grant the executive branch the legitimacy it sought but had no decision to allow the executive to amend the constitution. When a request was made to the court outside of the reference, the court was more than willing to accommodate the executive. The court’s attitude was that of a benevolent protector of the executive rather than of an interrogator of the executive’s constitutional ability to amend the constitution.

The Incidence before that was a watershed event in the Pakistan history. This incident alone showed the kind of frustration general public has with the one sided absolute patronage that Judiciary provides to some non political and constitution abusing elements in the Executive.

The ruling political party showed is frustration in an uncivilized way.
It was a bad representation of a legitimate grievance against the court. The court should never be acting on behalf of the rogue elements in the Executive behind the scenes. Its role must be transparent and it cannot intervene to help elements that seek to usurp power unconstitutionally. The supreme court of Pakistan allowed itself to be a part of illegitimate political partisanship and thus rendered itself open for political backlash.

We can debate that action but it certainly showed that the resentment against the court is growing rapidly in the general population and the Supreme Court should review its relations with the executive and especially with the rogue elements in the state structure.

Ghazia,
In my view, you have raised a question for a healthy debate. However, in the first instance any comparision of the U.S. Supreme Court and the Supreme Court of Pakistan (American judiciary and Pakistan`s judiciary) would not resolve the question you have posed here, though by all means, it would provide for an illuminating study.
Why, I say so, is primarily on account of the critical difference present beween the two systems. Constitution of Pakistan finds its roots in Analytical Law, while United States Constitution is founded on Normative Law or what is commonly called `the fundamentally established priciples of law`. By way of example, lets read Amendment I of the U.S. Constitution ``Feedom of religion, and the press, rights of assembly and petition: `Congress shall not make any lawrespecting an establishment of religion, or prohibiting the free exrcise thereof, or abridging the freedom of speech, or of the press, or right to the people to keep and bear Arms, shall not be infringed.```

In contrast Article 19 of the Constitution of pakistan lays down:` Freedom of Spech, etc. : Every citizen shall have the right to freedom of speechand expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity security or defence of Pakistan or any part thereof, friendy relations with foriegn states, public order, decency or morality, or in relation to contempt of court...`

Article 20 reads:`Freedom to profess religion and to mange religious instutions:-subject to law, public order and morality_-...`

Pakistan constitutional scheme has common law, institutional, and legal reasoning traditions
wher the courts cannot take upon themselves the jurisdiction, which you have quoted Marbury v. Madison (1803). In the paticular case, U.S. States Supreme Court assumed a jurisdiction which was not expressly provided for in the Constitution. In pakistan majority of the judemnets which may be in your mind, are mostly deciding the `the doctrine of state nessicity`. However Madzimbamotos` Case (1969) and most recently that Republic of Fiji v. N.S. Prasad (2001), and ofcourse from our own jurisdiction Asma Jilani`s Case (1972) can provide much better understanding on Han`s Kelsen`s theory.

The rulings on the rights of the citizenry, do read Shehla Zi`a (1994) case. It still remains to be enforced by the excutive. And, by the way that was the closest our apex court ever went towards judicial activism.

Religion as understood in American Constitutioanl Law would always be at odds with a theocratic constitutional scheme. Refer to Artice 2-A of Constitution of Pakistan.

I admit I have to agree with Mantolives when he refers to `Plessey Vs Ferguson`. Yes, there are too many dichotomies between the two systems to provide any answer to your quewstion

It is too early to make sweeping statements, at this stage, but I will make a few observations.

The role of the judicary is to implement the laws, as passed by the legislature. It is to maintain the balance, between the powers of the executive and the legislative branches the government. In the case of Pakistan, it would mean that the judicary has to stop being a hand maiden of the executive power in Pakistan.

There seems to be, in the case of judicary and justice in Pakistan, a silent debate. The debate is silent in the public domain, because it has been ignored but in its own right; it is deafening. The nature of the debate is a simple question and that is what is the function of the judicary in Pakistan? The problem, if it can be called that, is that Pakistan begat its legal traditions from the British, which were based on common law and on the notions of parliamentary democracy, but the manner in which Pakistan`s political development took place, it was more in light of a presidential system. Hence, there is a confusion in the nature of justice in Pakistan and that is, whether it is to act in accordance with a parliamentary tradition or a presidental one and two are not compliementary.

It would be wise to answer this question first and then, it would make more sense as to what is the function of judicary in Pakistan.

Ciao

Where, how ?

Pakistan, I submit, has NOT seen the kind of constitutional cases that the United States and other stable(r) democracies of the world have.... for example ... Plessey Vs Ferguson ... Dredd Scott... etc ... Please Ghazia... this is the second time you have published a piece and yet given no basis for your claims. Name dropping will not cut it I am afraid.