An Ignominious History

An Ignominious History
On April 24 1954, Governor General, Ghulam Muhammad dissolved the Constituent Assembly of Pakistan. The matter was challenged by Maulvi Tameez Uddin Khan, President of the Assembly, in the Central Court Sindh on October 8 1954. The Central Court unanimously overturned the Governor General’s decision of dissolving the Assembly. The Government went in appeal in the Federal Court (then equivalent of present-day Supreme Court). The Federal Court announced its judgement on March 21 1955 and with a majority of 4:1 upheld the action of the Governor General. The judgement was written by Chief Justice Muhammad Munir.

That was the beginning of an unfortunate journey of an unfortunate country towards a decline in constitutionalism, rule of law and supremacy of the people of Pakistan in the matters of the State and the Government. In this judgment Federal Court also endorsed the principle of ‘might is right’ under the title of ‘law of necessity’. Only dissenting note was that of Justice A. R. Cornelius. Since then, Cornelius is a symbol of Constitutionalism and Munir is a symbol of Opportunism in Pakistan.

Federal Court was put to test yet another time in 1958, shortly after Martial Law was declared by Sikandar Mirza and then taken over by Ayub Khan. The tragedy is known as Dosso Case. It was an action replay of the Tameez Uddin Case. A plea by a person that he should be tried for an allegation of murder in a Pakistani court under the Constitution of 1956 rather than by a Jirga soon became one of the most famous cases in the history of Pakistan. The Constitution had recently been suspended by the powerful, on this occasion Army. Again, Sindh Central Court decided in favor of Dosso holding that the Constitution was in place.

As expected, the Government went in appeal in the Federal Court. Again, CJ Munir was there and so was Justice Cornelius. The same judgement of law of necessity was written by the majority and the same lone voice of Justice Cornelius for the Constitutionalism was there. Another mile stone in our journey to lawlessness, poverty, ignorance and stagnancy. Munir after his retirement became Law Minister in Ayub Khan’s cabinet. History tells us that Munir’s these two judgements ultimately led to the fall of Dhaka and cessation of Eastern part of the country from its Western part. Perhaps for the first time in history, majority sought to sever itself from minority.

In 1972, Asma Jilani challenged, in the Supreme Court, detention of her father under Martial-Law regulations and the matter went on to include the subject of Martial law itself. However, on this occasion a civilian was occupying the chair Chief Martial Law Administrator as the uniformed CMLA had been sent home after he had successfully alienated and separated Eastern part of the country. This time CJ Hamood-ur-Rehman and his brother judges overruled Dosso case and martial laws were declared illegal. People thought that the periods of martial laws and law of necessity were over. But how wrong the people were.

On July 5 1977 General Zia Ul Haq declared Martial Law. In September 1977 he arrested the ousted PM, Z.A.Bhutto and some of his other party leaders. Nusrat Bhutto challenged Bhutto’s detention and naturally came up the subjects of Martial Law and suspension of Constitution of Pakistan, 1973. This time court was presided over by CJ Anwar ul Haq (but names hardly matter). The Supreme Court unanimously dismissed Nusrat Bhutto’s case. They did not apply Asma Jahangir case. They rather brought to life Dosso case. Another application of law of necessity and holding un-constitutionalism as legal. In a previous article, I have written about the havoc Zia played with the country and his policies and actions are still playing.

In 1988 Muhammad Khan Junejo went to the Supreme Court for restoration of his government that had been dismissed by General Zia. After the death of General Zia, the Supreme Court decided that Junejo government had been dismissed wrongfully but since elections had been announced in the country, they would rather let the things continue.

General Musharraf’s martial law was also unanimously validated by the Supreme Court on May 13 2000. While doing so he was also granted power to amend the Constitution for three years. Musharraf’s referendum, LFOs and second emergency declared on November 3 2007 were also validated by the Supreme Court.

In the 1990s SC played a rather erratic role in deciding the validity of President’s action under Article 58(2) (b) of the Constitution. It upheld President’s actions twice when Benazir Bhutto was ousted and reinstated Nawaz Sharif as Prime Minister when his government was dismissed by the President on similar grounds.

Judiciary has also shown a big appetite for executive powers. Since the success of Lawyers’ Movement of 2007, this appetite has increased a lot. Whether it was the matter of Steel Mills or Reko Diq due to the making of executive decisions by the Supreme Court without requisite competence (or jurisdiction also? I am not qualified to say) the country has suffered losses of billions of dollars.

Courts sometimes sit to fix the prices of sugar and electricity and sometimes undertake to reform hospitals and construct dams. Justice Saqib Nisar went on to settle, in his chamber, dispute between a politician and his ex-wife. He also settled tax matters of a politician’s sister in his court in complete disregard to the due process under the Income Tax Laws.

Unfortunately, when it comes to Prime Ministers, Supreme Court has acted more severely, and if I may say, recklessly. Starting from the judicial murder of Z.A.Bhutto in a split decision in 1979 to the ousters of Yousaf Raza Gillani and Nawaz Sharif in 2010s, Supreme Court has rather played an ignominious role in derailing the democracy and creating political instability in the country.

There is no evidence that Justice Munir gave his two judgements under pressure although popular belief is that he could not withstand the pressure of Governor General and the martial law (by the way Ayub Khan was part of the Federal Cabinet as Defense Minister when Ghulam Muhammad dismissed the Constituent Assembly).

However, in the matter of Bhutto’s murder trial, a member of the bench after his retirement admitted that the bench was under enormous pressure and he was not even a confirmed judge of the SC. In Nawaz Sharif’s case, both judges and generals have admitted of the pressure they were facing and the pressure they were exerting to disqualify him.

The culmination of injustice perpetrated by the apex court since 1955 and the way it has allowed itself to be managed by the establishment is that the SC has been divided from within. It has been politicised and is being alleged to be giving judgements in favor of a particular party by forming benches comprising of particular judges and going so far as to be re-writing the Constitution.

Supreme Court of a country of 240 million people should have better image. Lawlessness, and disrespect and disregard for the institutions can lead to a complete anarchy. Political instability created through the actions of SC over a period of 68 years has already pushed the country to the brink of economic ruin.

I believe people manning such high-level institutions like Supreme Court are expected to always act with maturity, be forthright, have integrity and be fearless. Their role is deliverance of justice without fear or favor. It is not their place to consider as to who will implement their judgements passed in favor of powerless. I believe that they should have the integrity to step down from their position when they cannot work judiciously. History of 68 years tells us that our apex court has not been able to meet these standards when it comes to powerful.

Thus, the nation faces a dilemma: should the people and governments continue to comply the orders of the Supreme Court as mandated by the Constitution? Or they should start defying these orders on the basis of evidences and perceptions that these orders are mala fide?   Where latter will lead to a complete breakdown of the civilization former will result in perpetuation of injustice, frequent undermining and abrogation of the Constitution and infringement of the authority of elected governments.

In my opinion, we should have a Supreme Court comprising of judges who choose this position not for self- aggrandisement or as a primary employment. They should be the ones who had a life- long commitment to obtaining or giving justice for the sake of justice without fear of consequences, whose lives are impeccable and their conduct transparent.

Our present system of selection and elevation of judges do not meet that criterion. It is too superficial and is often based on personal likes and dislikes, acquaintances and friendships, and recommendations and support. Now there are rumors of coercion as well in the appointment of judges.

Presently, the entire system of selection, confirmation, elevation and removal of judges is self-regulated, mainly driven through the Supreme Judicial Council. Self- regulation was something desirable in the times bygone. Those were the times of different morality, different desires and a different society. After the transformation we have gone through during the last 75 years, we need to rethink everything. Continuing with our dogmas of the past will not help us in running the country the way it should be run. Let us have a more stringent and transparent procedure for the selection of judges and running of courts. Next effort of judicial reforms should have it as the number one item on the agenda.