“Where a revolution is successful it satisfies the test of efficacy and becomes a law creating fact” PLD

1958 S.C 533, Dosso case

Whilst the judgment quoted was not the first of its kind to be pronounced by the Pakisatni Supreme
court and even more unfortunately it was far from the last, it may be viewed as an embodiment of
Pakistans constitutional problems. This judgment which placed its reliance on Kelsens theory (a theory
not looked at very kindly in democratic and modern systems), which in itself was a strange act, but the
more alarming fact is that many believe the reliance placed to be faulty! There is no doubt that the most
circumstantial and thereby negative role of the judiciary has been in its provision of legal cover to the
military establishments various illegal acts, but when looked at holistically, it may be argued that the
problems within the judicial system led to the legal cover rather than the other way around. The
interpretations rendered by the court have bordered at politics, exhibitionism and undue activism, the
result has been ambiguity, unnatural development of law, weakening of democratic institutions and
thus a lack of rule of law.
The first step in the emergence of pakistans constitutional issues is the Moulvi Tamizuddin khan (PLD
1955 Federal Court 240) case and thus we will begin by analyzing this case. The case dealt with a
situation where the Governer General (who was not directly elected, nor possessed broad executive
power) dismissed the assembly for purposes which were purely and visibly political. The Sindh High
court rightly accepted the petition of the speaker and restored the assembly, however the then federal
court intervened with its first use of the infamous doctrine of necessity, though the judgment made no
explicit mention of it. The reasoning employed would have been unfathomable for most courts in the
world, Pakistan had achieved its independence 8 years earlier and the supreme court declared that since
the laws relied on did not conform to the formality requirements of the Government of India Act 1935,
they were not valid laws. This may perhaps be the only example in global jurisprudence of a national
court holding that its duly elected Parliaments laws were not valid until they met the formality
requirements of the former colonial law.
Rule of law is a term which has generated heated debate amongst academics such as Dicey, Dowrkins
etc with regard to for example the content rich/free question. Thus there is no universally agreed
definition, however for want of a working definition for our purposes the rule of law may be referred to
as the rule of a system which is laid down in a democratic and fair manner, ensures equality of citizens
before law and prevents arbitrary actions. The legal community of Pakistan and the public at large did
not agree with the court’s interpretation and more worrisome was the fact that neither the former not
the latter believed that the court’s ruling was actually based on the laid down interpretations, the Chief
justice who authored the judgment did not defend it in later days and sought to excuse it. The story
from thereon has always been predictable and unfortunate, ironically 45 years later the judgment that
legitimized General Musharraf’s martial law (Ali Zafar Shah case 2000) was based along the same
arguments and arrived at the same result. There are some judgments in between which may be given
some credit is the Asma jilani case where Yahya Khan, the country’s third military dictator was declared
a usurper by the August Supreme court. However this must be contextualized as not only was this
judgment given after Yahya had been removed from power, but it was also given at a time when the
military’s influence in the country’s politics was at a historic low.Thus, the picture that emerges is of
stark arbitrariness rather than any conception of the rule of law, the consequences include the fact that
such a situation leads to a lack of confidence in the judicial system all the way down to the lower courts.

Another interesting fact is that the courts have routinely facilitated and provided legitimacy to dismissal
of civil governments even when direct military rule was not in place, though in retrospect those
decisions can be seen to have been aligned with the wishes of the military high command of the
respective times. When General Zias eleven year long rule ended with his demise, the gap between that
and next military rule in 1999 saw the dismissal of three civil governments followed by early elections,
before the fourth was sent packing by General Musharraf Pakistans last military dictator. The dismissal
of the governments referred to above was validated by the Supreme court, the first of these cases was
that of Ahmad Tariq Rahim (PLD 1992 SC 646), interestingly the reasoning relied on was “corruption and
incompetence”, this was in effect a judicial validation of the military’s stance regarding politicians. A
decade later the same August court also validated Musharrafs order that legislators must be graduates,
referring to the need to ‘improve political culture’ and regretting that the kind of politicians who were
returned to the assembly in the past were not up to the task. The order in reality had nothing to do with
these matters, and was actually aimed at disqualifying certain undesirables from the electoral process.
Unfortunately, the root taken by the court in validating this move further diminished the standing of
political leaders in the eyes of the public. The tendency to decide such matters in this manner has led
academics to comment on the judiciary’s involvement in matters which to quote Ran Hirschl are “pure
politics” or “mega-politics”: “watershed questions of nation building and collective identity that lie at
the heart of a nation’s self-definition,” including “core regime legitimacy.” It is also worth mentioning
that previously Zia and Ayub had relied on EBDO and non-party based elections to achieve the same
aim, neither of which saw any hint of the interference which civil regimes are often subjected to. The
Panama case (though many believe did not lack merit) was handled and decided in a very hyper
technical manner with the PM being disqualified for not having declared a meager sum which he should
have, but did in fact not receive! From his son, however in a later case concerning a minister from the
same party (Khawaja Asif) the court backtracked and overturned the high courts decision holding that
the misdecleration must have benefited the accused.

The courts also empowered various Military regimes to make any changes to the law that they deemed
fit, including constitutional amendments while returning to their activist tendencies as soon as a civil
regime returned to power. This state of affairs led Justice Saqib nisar to comment in a judgment
concerning the 19th amendment that it was extremely unfortunate for the same courts who had always
been willing to legitimize martial law regimes and provide them blanket authority , were so high handed
when dealing with amendments duly made by Parliament. It is ironic that in the eyes of many his
lordship turned out to be one of the most irresponsibly activist and pro-military Chief justices in recent
Pakistani history after his elevation to the post. This was preceded by a similar irony a decade earlier
when Chief Justice Iftikhar, whose dismissal by Gen Musharraf led to a successful movement for his
restoration and the dictator’s eventual ouster, re-aligned with the new military leadership and proved a
disruptive force for the newly restored democracy.
The above leads to the conclusion that Pakistan’s judiciary has in fact many times provided
interpretations which were not only inconsistent with other systems but were also not at peace with
their own previous jurisprudence. It has led to a system where the legal fraternity and the populace in
general do not possess the confidence which a good system would require them to possess regarding
the judicial system. This arbitrary and hap hazard development of law has thus proved detrimental to
the rule of law in Pakistan.