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The Superior Judiciary, Our only Ray of Hope
One of the best legacies of the British in India was the Rule of Law. In 1946, I applied for appointment to the Provincial Judicial Service but my application was not entertained by the Public Service Commission headed by an Englishman on the ground that I was below the minimum age of 23 years. The Judicial Commissioner, Peshawar, on his own initiative, and without my knowledge referred the case back to the Public Service Commission for reconsideration on the ground that the lower age limit referred to the date of appointment and not the date of examination. The Public Service Commission relented, reversed its earlier decision and allowed me to take the examination, but being still a ‘minor’ was sent for settlement and judicial training.

I was posted to Swabi as a Sub Judge in 1946 on attaining the age of 23. On August 14, 1947, we took Rule of Law, independence of judiciary and democracy for granted. Very soon events were to prove how wrong we were. This country was not created by rifle and sabre. Three Barristers – Gandhi, Nehru and Jinnah, the first two not particularly gifted lawyers, led India to freedom. Unlike Gandhi and Nehru, Jinnah was a brilliant advocate. His unique political achievement, the creation of Pakistan was the product of his genius as a Barrister. Jinnah’s Pakistan was to be governed by law.

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 exception, 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.

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 be a Law unto itself. The Supreme Court faces an uphill task. An awesome responsibility rests on its shoulders. We must rally round the Court.

Today all eyes are focussed on General (Retd.) Pervez Musharraf, the usurper who destroyed the National Constitutional Order, deposed the Judges of the Supreme Court and held them in custody. He has been tried for High Treason, convicted, and sentenced to death as a deterrent to all would be – adventurers. But counterrevolution does not give-up easily. Attempts are being made to overturn the Judicial Revolution and the sentence. The judicial revolution is irreversible. Let there be no doubt about it.

An evil spirit hangs over Pakistan today. Is it our destiny that there must always be darkness at highnoon? The sentence passed by the Special Court must be carried out come hell or highwater. “Fiat justitia Ruat coelum”, let justice be done if heavens fall. Heavens won’t fall. That is for sure. It will be morning once again in Pakistan.