The Politics of Judicial Institutions in Pakistan

Samrat Sinha

The suspension of Justice Iftikhar Mohammad Chaudhry, Chief Justice of the Supreme Court of Pakistan (SCP), on 9 March 2007, sparked a wave of protest from the legal community of Pakistan. The most recent wave of resignations included the Deputy Attorney General Nasir Saeed Sheikh and a senior civil judge Javed Memon. The issue at stake was the ability of the President to dismiss an acting Chief Justice, an act not without precedent in the political history of Pakistan. In 1997 Prime Minister Nawaz Sharif had dismissed Chief Justice Syed Sajjad Ali Shah because of the latter’s opposition to constitutional amendments passed by the Pakistan Muslim League-Nawz (PML-N) majority and the desecration of the court by party cadre.

There have been two significant consequences of the suspension of the current Chief Justice. Firstly, a great deal of attention has been focused on the state of the legal system and its role in supporting democracy in Pakistan. Secondly, questions are being now raised about the constitutional powers residing in the office of the Presidency and the role of the Supreme Judicial Council in the political system. Moreover, the crisis has mobilized the opposition, especially the Alliance for the Restoration of Democracy, which has expressed solidarity with the bar councils spearheading the protest.

The SCP has treaded a very tenuous path ever since the advent of military rule in 1999. It must be pointed out that the unlike courts in functioning democracies, the SCP faces a situation where formal democratic procedures are in place, yet the real source of power lies in the executive. The SCP’s relationship with the executive is thus very complex and conformity to the ruling faction has been tempered with vestiges of judicial independence.

In an early instance of its pro-government stance, the court was called to decide on the legality of the military takeover of 1999. In its decision on the Syed Zafar Ali Shah’s vs. General Pervez Musharraf case of May 2000, the court gave an extremely nuanced decision, stating that the takeover was legitimate under the principle of “state necessity” and “salus populi suprema lex” (the welfare of the people being the supreme law). On the other hand the court simultaneously asserted that general elections were to be held within three years of the takeover.

Similarly, in its decision on Constitution Petition No. 36 of 2002, the SCP found the Legal Framework Order (LFO) of 2002 in conformity with the constitution. At the same time the court asserted that any amendment to constitution would have to be approved by a two-thirds majority of the National Assembly. The LFO reintroduced a formerly discarded amendment, Article 58(2)(b) into the constitution that bestowed the President with the power to dissolve the National Assembly and call for general elections “if the government was not being run in accordance with the Constitution.” Historically, Article 58(2)(b) had been extremely controversial, as it was seen as contributing to Pakistan’s transformation from a parliamentary to presidential system (until its repeal by the PML-N government in 1997).

The pro-government stance of the court can also be seen in its ruling on the Bajaur incident of November 2006 in which a religious school was attacked and more than eighty individuals were killed. The court significantly asserted that its did not have sufficient jurisdiction to decide cases in the Federally Administered Tribal Areas (FATA) and rejected calls for a judicial inquiry into the incident. It must be pointed out that establishing the rule of law in the FATA is one of the most significant challenges facing the federal government and the court’s unwillingness to monitor the armed forces clearly establishes the boundaries between the two institutions.

However, there had been incidents of divergence from the position taken by the ruling faction in recent times, especially since the tenure of Justice Ifthikar. In one of the most significant challenges to the government, the court outlined its opposition to the privatization of the Pakistan Steel Mill Corporation (PSMC), in its decision on Constitution Petition No. 9 of 2006. Apart from opposition to the privatization program, the court has attempted to increase its jurisdiction in the domain of human rights. In 2006 a special Human Rights Cell was formed in order to decide cases of human rights abuses. It is not surprising that a significant number of cases involve the police and paramilitary forces and that the issue of “disappearances” is a central point of contention between the court and the government. In December 2006 the court passed an order directing the government to trace missing people suspected of being held in government custody.

Amid the ongoing crisis, the International Commission of Jurists (ICJ), after a week long mission to asses the situation observed that this could worsen and may cause irreversible damage to the constitutional order in Pakistan. Even ICJ urged the government to restore the fundamental democratic principle which is pivotal to the rule of law in the country.

Indeed, the current constitutional crisis raises important questions about the role of courts in countries grappling with fundamental problems of democratic consolidation. Research on judicial politics has shown that constitutional courts tend to be most effective when power is not concentrated in a single dominant political party or executive. While the relationship with the military is extremely complex, the SCP also faces an additional challenge from the parallel judicial system established by the religious authorities in various parts of Pakistan. While the trajectory of the current crisis remains unclear, further research is warranted into the inter-institutional dynamics of Pakistan’s political system.

Author Note
Samrat Sinha is Doctoral fellow at the Department of Political Science and International Relations, The University of Delaware, Newark DE, USA.