Independence of judiciary in Pakistan

In Pakistan, lawyers and their organizations are active within the struggle for a Constitutional
Democracy and Rule of Law for an extended time. the primary such struggle was initiated
countrywide by the bar associations at Lahore, Karachi and Dacca within the early sixties after
the country’s first law was imposed in 1958. Though short lived, since it had been appropriated
by political parties, this movement was launched at a time when bar councils had not even come
to exist yet.

A longer, better organized movement spearheaded by lawyers that initiated within the early
1980s against the country’s second law imposed by General Zia in 1977. This was at a time
when political parties were banned and a provision had also been introduced within the Bar
Councils and Legal Practitioners Act prohibiting any Political Activity by bar councils and bar
associations.

In 1980, a Lawyers’ convention was attended by over 2000 lawyers in Lahore that resolved to
arrange a Pakistan wide movement against law and for return to democratic rule. This was at a
time that Zulfikar Ali Bhutto, the over thrown Prime Minister had just been hanged on the orders
of a puppet Supreme Court, public hanging of certain convicts had been ordered, Summary
Military Courts had been established altogether important towns which might hold their
proceedings by the roadside trying those accused of violating law and flogging them on the spot
when convicted.

The convention decided to interrupt the ban on street demonstration and a procession was taken
out. Several lawyers were arrested. Similar conventions were held in Karachi, Peshawar and
Rawalpindi and therefore the movement developed into an almost daily agitation. This happened
albeit there was no political support because political parties were banned, there was no
independent media and there was yet no centrosome of lawyers body (such because the Supreme
Court Bar Association). A National Coordination Committee of representative lawyers was
established to steer this movement. Arrests and detentions were made and a few lawyers
remained in prison for over a year. The agitation was called off when the constitution was
restored, albeit during a compromised, amended form with General Zia retaining the facility to
dissolve the elected parliament and dismiss the govt .

The movement which started in March 2003 was a reaction to General Musharraf’s plan to get
obviate the judge of Pakistan by filing a frivolous reference against him before the Supreme
Judicial Council and spending an order suspending him till the reference was heard and decided.
This action was taken after the CJ refused to resign voluntarily during a gathering with
Musharraf within the presence of several other generals. The CJ had become a thorn because he
had passed orders in certain sensitive cases that didn’t please the establishment especially in
cases concerning “missing persons” thought to possess been kidnapped by Pakistani intelligence
agencies for investigation into their possible “terrorist links” and of whom, variety were handed
over unlawfully to the US against monetary reward.

The movement which originally began as a lawyers agitation soon attracted the eye of broader
sections of Civil Society and therefore the media. it had been widespread, but mainly urban.
Lawyers practicing within the lower courts within the districts and sub-divisional towns fully
participated. The frustration and disenchantment from Musharrafs’ failed dictatorial system
contributed immensely. the most slogan, besides the one for restoration of the judge , was ‘Go
Musharraf Go’. The judge was restored on 22-07-2007 by the order of an 11 members bench of
the Supreme Court which quashed the reference filed by Musharraf as mala fides when it had
been challenged before it by the CJ.

The second phase of the movement began when on Nov 3rd 2007, Musharraf as Chief of Army,
issued a proclamation of emergency i.e law . The Constitution, which had already been amended
(17th amendment) by a pliable parliament to accommodate Musharraf as President and General
simultaneously, was suspended and a Provisional Constitutional Order was issued by him giving
himself power to further amend the Constitution. All this was done because the Supreme Court
was close to decide a case that called in question Musharraf’s second, impending election as
President while still a General. About 60 court judges including most judges of the Supreme
Court refused to require oath of allegiance to Musharraf and were therefore removed while
people faithful to him were invited to require that oath and become judges. The courts were
packed by such judges also derogatorily referred to as “PCO Judges”.

The movement now became directed against Musharraf, the PCO and therefore the emergency
declaration with emphasis on restoration of the superior courts to their pre 3rd November
position. this point it had been more vigorous and was fully supported by the media, Civil
Society and therefore the opposition political parties while the mainstream parties i.e the PPP
and PML(N), also half heartedly supported it. it's going to be mentioned that the mainstream
parties particularly the PPP, used the movement for pressurizing the regime for a settlement and
for return of their leadership to Pakistan. Benazir and Nawaz, the most leaders, were in exile at
that point . As a consequence of the movement, which was growing it seemed the regime would
be overturned. The US intervened, helping the negotiations between Benazir Bhutto and
Musharraf, in order that its (the US’s) interests remained well protected. For the US, the
Musharraf, regime was the mainstay of its policy on the so called war against terror and its
expedition in Afghanistan and therefore the border areas of Pakistan’s west.

The movement secured a serious success when the regime was forced to carry elections on 18th
February 2008. Before that, however, under a US negotiated deal Benazir Bhutto and Nawaz
Sharif were allowed to return to Pakistan. Bhutto’s popularity and public support scared many
and she or he was predictably killed while leaving a public meeting in her car.

The election results gave the PPP and PML (N) a robust mandate and rejected Musharraf
supporters completely. a replacement coalition Government was installed while Musharraf—
having been elected a second time after the ouster of the important Supreme Court—was still the
President. The changes brought by Musharaff on Nov 3rd were also still in situ .

The movement, however, continued posing for reversal of Nov 3rd actions and restoration of
judges. an extended march call by lawyers through the length of Pakistan was an enormous
success. Thousands of lawyers supported by many thousands from among the overall public
culminated at Islamabad. A sit-in by the participants of the long march had earlier been planned
but was called off at the last moment, largely for organizational reasons and also partially
because the lawyers’ leadership decided that it had been perhaps best to not take a
democratically elected new government hostage to a sit in so soon after its election especially
when it already promised to undo Musharraf’s acts. the decision off, however, was a group back
to the movement which continues so far but during a changed context. The principal government
party (PPP) and its supporters have kept faraway from the movement. Several laid off judges are
offered and have accepted new appointments under the constitution. The judge and a couple of
other judges have, however, been resilient and haven't accepted any offers unless the judiciary is
restored in its entirety to the pre November 3rd position.

The Democratic Lawyers Association (D.L.A) was and remains within the forefront of the
lawyers’ movement. Besides direct physical participation the DLA organized seminars at
Karachi and Lahore highlighting the importance of the movement’s political and constitutional
aspects. The DLA has asserted that democracy, without an independent Judiciary is unacceptable
which the constitution must be purged of all the changes made in it by army dictators. The DLA
is additionally of the view that the movement’s base must be broadened by attracting the overall
public and also entities like the scholars and trade unions.