When the courts surrender?

During the devastation of WW-II Winston Churchill said, “Thank God. If the courts are working, nothing can go wrong”. When all defences failed, justice prevailed. To uphold human freedom courts should never surrender.

Unfortunately, in the land of the pure the freedom of judiciary has been repeatedly attacked. Adherence to constitution keeps the nation united. Judges are the custodians of this agreement between the rulers and the ruled. Fearing adventurism ZA Bhutto included Article 6 in the 1973 constitution.

As it carried death penalty, it was expected to be effective, but it wasn’t. Trampling of the document has continued with the connivance of the superior judiciary.

Now that breaks have been applied to retard this force together with building of ‘Fire Walls’ of insulation, nervousness prevails in the corridors of supra-constitutional power holders. Only adherence to the constitution can ensure normalcy and long-term stability in the country.

Civilized societies function only under rule of law. Justice in the Islamic Republic of Pakistan operates under two extreme beliefs; the first being, ‘Justice delayed is justice denied’ while the second states ‘Justice hurried is justice buried’. Justice can neither be delayed nor buried it must be dispensed expeditiously but after due deliberations. Today the courts are inundated with backlog of cases.

Over 90% of civil litigation emanates from executive abuse and mis-governance, which remains unchecked. In the past, courts were soft when dealing with the bureaucracy and the establishment. Only recently have the judges of the superior judiciary started to show some grit by taking independent decisions. Hopefully, this trend will continue in larger public interests.

The Lawyer’s Movement of 2007 did result in the restoration of the then Chief Justice of Pakistan (CJP) but it did not improve the much-needed performance of the institution. The CJPs that followed started to indulge in issues beyond their domain which created serious problems for the country, notably the cancellation of the Pakistan Steel Mills (PSM) and the Reko Diq Copper Gold project deals, causing serious financial consequences.

The opening of the courts in Islamabad at mid-night during the Vote of No-Confidence period in April 2022 raised a lot of eyebrows. Till today no one has clarified on whose orders the courts were called to session together with the arrival of Prisoner Vans on the Constitution Avenue.

The common law that is followed in the democratic world is based on individual freedom. Absolute powers of the monarch were replaced with lawful authority. The courts were required to uphold these laws carefully legislated by the elected representatives of the people. It was termed as ‘Rule of Law’, which overruled the ‘Authority of Kings’.

Royalties that surrendered to the will of the people were allowed to continue as figure-heads those who did not were eliminated. Monarchy in the United Kingdom (UK) survived but with ceremonial powers only for purposes of continuity. In France and Russia members of the Royal families faced tragic ends.

The United States of America (USA) after freedom continued with common law with minor modifications. In the Indian Sub-continent after partition both Pakistan and India followed the same legal traditions. The judges of the superior judiciary exercised independent authority with credibility. Sir Abdul Rashid the first CJP did not allow the father of the nation Muhammad Ali Jinnah to occupy the seat of the Governor General before taking oath of office. Jinnah respectfully obeyed the orders.

It is widely believed that Justice Muhammad Munir as CJP destroyed democracy by caving-in to pressure in the famous Maulvi Tamizuddin case in the year 1955. According to him, the Governor General, not the Constituent Assembly, had sovereign authority. Since then, Pakistan has not been the same. Justice A.R. Cornelius dissented with the majority.

After dismemberment of Jinnah’s Pakistan, Bhutto was inducted head of state as Chief Martial Law Administrator (CMLA). The Supreme Court under Justice Hamood-ur-Rehman was hearing the Asma Jillani Case for release of Ghulam Jillani, Asma’s father.

The court was inclined to uphold rule of law. Before the decision was announced, the National Assembly passed an interim constitution in 1972, thereby Martial Law ended with restoration of democracy in the country.

That provided the much-needed time to frame the permanent document in 1973. Bhutto stepped down as President and took oath as Prime Minister (PM). In the year 1977 Bhutto decided to impose Martial Law to control rioting in Lahore and Karachi; the Lahore High Court (LHC) declared it illegal. It proved to be the beginning of the end for his regime. Earlier in the 1965 Presidential Elections the self-appointed Field Marshal had to withdraw his rank when it was about to be challenged.

Judiciary is an important pillar of the state, which must play its role for the supremacy of the constitution and rule of law. Whenever the courts have stood their ground, results have been positive.

The judicial murder of Bhutto was a big blot on the judiciary which has now been acknowledged. While two judges hearing the original case (Qaisar Khan and Waheed-ud-din) were let go and the Ad-hoc judge (Nasim Hasan Shah) was inducted whose vote proved to be crucial. Shah later admitted to the pressure under which his nod was forced.

In the past there have been judges who dispensed justice fearlessly. Justice K.M.A Samdani granted bail to Bhutto in the murder case registered against him. Bhutto was then arrested under the Martial Law.

Dissent has been popular, yet the courts have not fully played their expected role in upholding the constitution. In the famous Asma Jillani Case, Ayub and Yayha’s Martial Laws were declared illegal. Musharraf has already been convicted under Article 6, only Zia has been spared despite his deadly misrule which spread over eleven years.

For civilian supremacy to prevail the courts cannot surrender. Nations must learn from their past mistakes for the much-needed course correction, otherwise the ballot loses its significance and is rendered meaningless.

Copyright Business Recorder, 2024