Cancer in Pakistan's Judiciary Has Metastasized

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.