Adil Najam’s post on judicial assertiveness the other day sheds light on a very interesting – and important – aspect of the current judicial crisis in Pakistan. What are the limits of Judicial activism or – to use Adil’s words – assertiveness?
This is not something new to the world – or even to Pakistan’s history. Every country that has attempted to establish rule of law and constitution has struggled with trying to find a balance between what can (and cannot) a judge do.
In America, where constitutionalism is much more advanced than in Pakistan, the debate has moved to a higher plane in the famous tussle between those who believe in strictly interpretting the constitution and those that only appear to do so. Each side claims that it is interpretting the constitution (or interpretting the original intent of the framers) and accuses the other of legislating from the bench.
We, in Pakistan, have been merely struggling with how to keep the rule of law and constitution alive in our country. Is it really the role of the judiciary to enforce a constitution? Can the judiciary do that even in the absence a popular sentiment towards the constitution? In a situation where an Army general takes over power in an illegal coup, abrogates the constitution and declares martial law, and nobody – but a few ‘professional’ politicians in a nation of 150 million – even makes a sound of protest, what does upholding the constitution really mean? Does that nation even have a constitution to begin with? or is it merely a paper, worthy of celebrating when it suits a few and disposing off when it does’nt?
The current crisis around the suspension of the Chief Justice has everything to do with how Pakistan’s rulers – and its people – view their constitution? One does not need to go too far back in time to find out that we’ve been through this before – several times, perhaps. In the famous Maulvi Tamizuddin Khan vs. The Federation of Pakistan case, the petitioner challenged the unconstitutional dissolution of Pakistan’s First Constituent Assembly by Governor General Ghulam Mohammad (photo to the right). The then Chief Justice of Pakistan, Justice Mohammad Munir gave a landmark verdict that changed the course of Pakistan’s History – perhaps forever.
Prior to his verdict and also subsequent to that, Justice Munir noted that the issue before the court was not merely a legal issue, it was in fact a political one. He suggested that such issues may be best resolved in the political sphere through negotiation and compromise. In saying so, Justice Munir was especially concerned about the inability of the Court to enforce a decision. The court, he noted, does not have any instrument of power to enforce its ruling if it decides to side with the petitioner (Maulvi Tamizuddin Khan). Indeed, the government – with all the instruments of power at its disposal – can easily ignore the court’s ruling thus putting the case back to where it belonged – in the domain of the people and their representatives. Of course, Justice Munir, knowing fully that an anti-government ruling would be entirely ignored, ultimately sided with the Government thus throwing the country into its worst constitutional crisis since its creation. The country has never forgiven him for doing so.
Photo to the left above is Pakistan’s old Supreme Court Building in Karachi. This is where hearings of famous Maulvi Tamizuddin Khan case took place.
Could this happen all over again? Could the Honourable Justices of the Supreme Court be engaging in a game of deception until they could unexpectedly (willingly or at a gun-point) rule in the favor of the Government? Alternatively, would Musharraf & Co. obey the dictates of the Court if the court decided, against their wishes, to reinstall the Chief Justice Iftikhar Chaudhary? It might be worth recalling here that the Governor General Ghulam Mohammad was willing to let the courts have their say as long as they ruled in his favor. He had also completed all preparations for imposing emergency in the country, had the courts ruled otherwise.
What would be the options available to the people of Pakistan – not the CJP, not the Justices, not the lawyers, and not the “professional” politicians – but you and me to force our rulers to revert to the rule of law and constitution?
Ultimately, it is a political battle that will have to be won not in the courts but in the hearts and minds of people who must assert that they prefer the rule of law and constitution over any other form of government, whether it is monarchy, mill-archy, or anarchy. Politics is just too important a calling to be left to judges, lawyers, and politicians alone. Unless the people firmly and forcefully assert their right to be governed, with their consent, by a constitutional government, the current politico-constitutional struggle will not be won. The stakes are definitely high – atleast for the Government since losing thisbattle could trigger a domino that could bring down, one after the other, every pillar of its illegitimate and unconstitutional rule. Are the stakes high enough for the People of Pakistan? We will find out in a few weeks – perhaps months – time.
Regardless of which way the pendulum swings, the current case in the Supreme Court is definitely amounts to a Constitutional Deja Vu all over again!
Athar Osama holds a PhD in Public Policy and is a amateur historian and an avid reader of Pakistan’s Political and Constitutional History. He is also the founder of the Understanding Pakistan Project. You can read more about Maulvi Tamizuddin Khan vs. Federation of Pakistan, and the shocking ruling by Justice Munir at Understanding Pakistan.
An important difference between Pakistan and the US is the history of the democratic process.
Pakistan had very little prior history of elected legislatures and governments before its independence and therefore, it did not have a mature political class.
In case of the US, there had been elected legislatures even during the pre-independence period and these had been working smoothly for some time. As a result, the states had well groomed politicians who had considerable experience of democratic politics and conventions (albeit with non-universal adult sufferage).
The same can also be said about Britain, it’s parliament had very limited powers initially, but it gradually developed the norms and conventions for its proper functioning. By the time the parliament became supreme, these conventions were well established and played an important role in the smooth running of the system.
In our case, if there had been regular elections during British rule with some continuity for a couple of decades before independence, things might have turned out differently.
The past being the past, the lesson from these examples for now is that we must not wait for the army to withdraw from politics before we start investing in making our political institutions stronger and promoting practises that are aimed at making the system genuinely transparent and participatory at the grass roots. This is the biggest mistake that we the civilians are making in our focus on opposing the military.
There are several serious problems with the 1973 constitution in addition to the way it was passed without proper participation of the people.
We never really had a proper national debate on the structure of the constitution. Even the basic issue of presidential vs parliamentary system has never been debated. There is of course a concensus between all political elites in favour of the parliamentary system because of the way it caters to the interests of the feudal elites and but that is different from a genuine debate on the pros and cons of both systems before arriving at a final conclusion.
Even if we accept the overall framework of the present constitution and the parliamentary system as the best option for Pakistan, there are still some major holes in the constitution. This could be the subject of a separate post or newspaper article and perhaps I will get to it some day.
No, I didn’t mean it in that way, of course there were issues of suffrage and all at that time. Those were the problems of that time. I am not arguing that the American Constitution or their democracy is a perfect thing but that they made an attempt. What I really was referring to above was the ratification process and the explicit attempt to bring people in all states on board.
Can you deny the effect of the Federalist Papers on the ratification process? Were they not explicitly meant to educate the people–whoever they were at that time–about the constitution and then get their will involved? Has anything like that ever been attempted in Pakistan? We are very good at doing tricks and creating make-belief that people’s will is being ascertained but it has always been a sham.
Just look at the wordings of the Referendums that have happened to elect Presidents Zia and Musharraf. Would you really call these ascertaining people’s will? We can’t even write a one-liner correctly without insulting peoples’ intelligence, how can we do the entire constitution?
In today’s democratic system of government every adult citizen of the country participates through his right to vote. The age of adulthood may change form country to country or may differ from man to woman. All these adults are considered demos (people) to run the state (kratia).
At the time of the city-states (600 BC) only the Free Male Adult citizens were the “people” who participated in the state affair. All Women and Slaves (men and women) were excluded. The Slaves did not have even citizen’s rights.
In early stage of American democracy only the Male Land Owners were the “people” particpating in the state affair. So, according to the definition of that time any decision taken by these people will be considered people’s decision. In case of the USA the representatives of the voters had the mandate to write the constitution of the country.
In the case of Pakistan the representatives of the people were not elected with a mandate of writing the constitution. They did it on their own initiative and passed it unanimously themselves. People never asked them to write this constitution; People never participated in its formulation and they never accepterd it through a popular refrendum. How does it become people’s constitution?
Interesting argument but it seems that everyone is now past the Munir decision even the court has suggested that it may have outlived its relevance