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The Role of Superior Judiciary
Marx once said: “Neither a nation nor a woman is forgiven for an unguarded hour in which the first adventurer who comes along can sweep them off their feet and possess them”. October 7, 1958 was our unguarded hour when democracy was expunged from the politics of Pakistan with scarcely a protest. The door was opened to Bonapartism. The result is the mess we are in today. When the history of Pakistan comes to be written, the verdict of history would be that periodic military interventions in the politics of Pakistan, duly validated by the Supreme Court, destroyed Jinnah’s Pakistan.

It is axiomatic that army has no political role in any democratic country, whatever its form of government. But, thanks to the Superior Judiciary, it has acquired this role in Pakistan which now appears to be irreversible, at least in the foreseeable future.

Isn’t it a great tragedy that 73 years after independence, political sovereignty in Pakistan (Majestas est summa in civas ac subditoes legibusque solute potestas, i.e., ‘highest power over citizens and subject unrestrained by law’, in the words of French Jurist Jean Bodin) resides neither in the electorate, nor the Parliament, nor the Executive, nor the Judiciary, nor even the Constitution which has superiority over all the institutions it creates. It resides, if it resides anywhere at all, where the coercive power resides. In practice, it is the ‘pouvoir occulte’, which is the ultimate authority in the decision-making process in Pakistan. They decide when to abrogate the Constitution; when it should be held in abeyance; when elected governments should be sacked; and when democracy should be given a chance. Behind the scenes, they also decide whether an elected prime minister shall live or die.

It is unfortunate that from the country's first decade, our judges tried to match their constitutional ideas and legal language to the exigencies of current politics. It is our misfortune that the superior judiciary functioned at the behest of authority and was used to further the interests of the state against the citizens. Their judgments often supported the government of the day. This was their chosen path through the 1950s and during the Martial Law period of the 1960s and 1970s. When the history of those benighted times comes to be written, it will be noted that the superior judiciary had failed the country in its hour of greatest need.

The Governor General, Malik Ghulam Muhammad, dismissed the Constituent Assembly on October 24, 1954. The Assembly hall was closed, its President, Maulvi Tamizuddin Khan, was ousted from his government-assigned house.

The dismissal was challenged by Tamizuddin Khan. The writ petition filed before the Sindh High Court questioning the Governor-General's authority to sack the Constituent Assembly was the first test of the independence of judiciary from the executive. On February 9, 1955, a full bench of the court upheld Tamizuddin's appeal and ruled that the Governor-General had no power to dissolve the Constituent Assembly.

After consultation with Justice Munir, the Chief Justice of Pakistan, the Governor-General heaved a sigh of relief. Justice Munir was ready to overrule the lower court's decision. On March 21, 1955, the court ruled by four to one that the Sindh High Court had no jurisdiction to issue a writ in Tamizuddin favour. The Federal court did not consider whether the Governor-General had rightly dissolved the Constituent Assembly. It merely overruled the Lower Courts' decision on the flimsy ground that section 223(a) under which it heard the appeal, did not have the Governor-General's assent, and was, therefore, no part of the law!

The Superior Judiciary faced its second test on October 8, 1958 when Ayub Khan, with Mirza's connivance, staged a successful coup, abrogated the 1956 constitution and declared Martial Law. Chief Justice Munir ruled that a successful challenge to power conferred a badge of legality. "Where revolution is successful", Munir observed, "it satisfies the test of efficacy and becomes a basic law - creating fact". In simple words, the court legitimized the military regime.

The superior judiciary faced its third test in the trial of Prime Minister Zulfiqar Ali Bhutto. Mr. Bhutto didn’t get a fair trial. The trial was a sham. The execution of Bhutto had been decided long before the verdict of the Supreme Court was delivered. The Judges at the trial and appellate stages with some blissful exceptions, were willing partners. They had no hesitation in abusing their judicial powers. Mr. Bhutto had no chance, he had to die.

When the army struck again on October 12, 1999, a Bench of 12 Judges of the Supreme Court unanimously came to the conclusion that the intervention of the armed forces was to be validated on the basis of the doctrine of state necessity. The Chief of Army Staff was conferred the power, which the court did not possess, to singlehandedly amend the constitution. This power was un-requested by General Musharraf, the military ruler, but was considered necessary by the Honorable Judges, “for the welfare of the people”. Condoning past illegalities was bad enough but to empower the Chief of Army Staff to commit illegalities in future as well was making a mockery of the Constitution. The Supreme Court, the guardian of the constitution, without any jurisdiction or power, authorized the CMLA to dismantle the constitution brick by brick and change it beyond recognition. The military regime used the sword supplied to it by a spineless and corrupt judiciary to strike at judicial power.

As good luck would have it, on March 9, 2007, in the darkest hour in the history of Pakistan, the country’s tectonic plates shifted. It saw the return of political passions which had long been dormant. The presence of thousands of enthusiastic lawyers and civil society activists on the Constitution Avenue, protesting against the suspension of the Chief Justice and demanding his reinstatement, supremacy of Constitution, independence of judiciary, Rule of Law, was indeed very exhilarating. Few persons but those who were present on the Constitution Avenue could comprehend how it galvanized everybody and rekindled hope. All the Judges were reinstated. Musharraf had to leave in disgrace. The Supreme Court which lay prostrate for years now stands tall.

Today, once again we are engaged in a great battle for the Rule of Law. We have won the first round but the fight is not over. The people have planted an independent judiciary in the path of our turbulent democracy. No longer, would the Executive or any other institution, be a Law unto itself. The Supreme Court faces an uphill task. An awesome responsibility rests on the shoulders of Justice Bandial. Attempts are being made to overturn the Judicial Revolution. The Judicial Revolution is irreversible. Let there be no doubt about it.

Counter revolution does not give up easily. The first threats of counter revolutionary activity have already begun to appear. Attempts are being made to subvert the people’s will and overturn the judicial revolution. We live in a miserable age of charlatans and mediocrity. In this desert of talent and virtue, Justice Maqbool Baqar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi have emerged as a ray of hope and a brief candle of courage, goodness, patriotism and justice.

On Friday last, the Supreme Court quashed the Presidential Reference against Justice Isa, abated the proceedings before the Supreme Judicial Council and referred “the matter” to the Federal Board of Revenue (FBR) for further investigation. Some features of the court order are disturbing, even alarming. Three Judges of the Supreme Court did not agree with the sending of the matter to FBR. The order quashing the Reference is based on the presumption that the referring authority had failed to prove the allegations made against Justice Isa. If this presumption is correct, why was the “matter” referred to FBR, an institution subordinate to the government and completely under its control, for further investigation? What is the justification for abating all the proceedings before the Supreme Judicial Council? Why was it prevented from pursuing the matter to its logical conclusion?

On the other hand, if the presumption referred to above is not correct, why was the Reference quashed? Now that the Reference has been quashed, why direct FBR to dig up evidence against the Judge? Why not leave the matter to the government? Why make it look like witch-hunting? In my humble opinion, there is internal contradiction and inconsistency between the two parts of the Order.