The changing of the guard at the Supreme Court of Pakistan comes at a time of uncertain political times underlying which is a struggle for parliamentary sovereignty with extra parliamentary forces embroils the apex court at the centre of the struggle. Pakistan's constitutional journey has often pitched the judiciary in the unenviable role of adjudicating on political challenges to the constitutional process. During these seven decades of Pakistan's existence the power and writ of the Supreme Court has witnessed ups and downs that has seen the Constitution either being abrogated or suspended four times. Each of these times a military led constitutional engineering happened under the 'doctrine of necessity' where the notion that the 'state' interests are superior to the legal necessities of the the Constitution. The result was the 1962 Constitution, the 1985 Amendment, and the 2003 Amendment. Each of these moments were followed by the Parliament reasserting its position through the 1973 Constitution, the 1997 Thirteenth Amendment and the 2010 Eighteenth Amendment, all with the aim to role back the 'centralisation' of the military governments.
Sadly the constitutional engineering was directed through political motives and not really with the aim to improve the constitutional framework within the country. Recourse to the superior judicial system is always taken to resolve political conflicts, as we have recently seen, placing a heavy burden on the judges. The 18th Amendment was far reaching in the devolution of power to the provinces, a long standing demand of the smaller provinces, but fell short of addressing the need for devolution of power to local government at the district level. However, that Amendment also reduced the powers of the President with out creating a mechanism for the former powers to be vested in an alternate form. The result has been that since then the Supreme Courts decisions can only be implemented by the government of the day on a selective basis. The erosion of the judicial writ has been accompanied with a rise in the incidents of contempt of the court, in many cases by politicians and worse still from officials of the bureaucracy. The devolution of power to the provinces also been accompanied by a call for creating new provinces with the aim to adjust the power concentration in the larger provinces. This alone creates challenges for adjustments within the existing framework of the Constitution and new provisions and amendments that is a gigantic undertaking.
A major aspect of the centralisation of powers during the military governments, particularly during General Zia's regime, created a source of constitutional reengineering which went beyond the scope and intent of the 1949 Objectives Resolution. This resulted in a gradual and incremental growth in the religious content of both legal and even constitutional provisions. The fiat accompli of these enactments by nature of society and political expediency have since made debate impossible on this content and reform of those laws difficult. A case in question is the Blasphemy Law the discussion of which even to improve it evokes a violent response, leaving the onus of dealing with cases under this law to rest on the shoulders of the Supreme Court.
There is little denying that after 75 years Pakistan constitutional edifice is still being worked upon which inextricably creates conflicts between the necessity of law to clash with the expediency of politics. Thus Constitutionalism, in the context of Pakistan, does at times represent absorb and be influenced by its ideological framework and the power dynamics that have emerged, from time to time, within the country. In Western countries the influence of ideology, beyond a recognition of democratic tradition of law, is low to negligible allowing a rule of law and the working of the judiciary to seen as not only the final arbitrators of the law but also the custodian of justice beyond the mere act of interpreting the laws. In the case of Pakistan the colonial and post colonial legacy meant that they drew much of its legal shape from Western, and democratic, legal traditions, which then were attempted to be juxtaposed into local and national norms and practices.
Insofar as the problem of designing Pakistan's Constitutionalism was limited incorporating local norms and practices the task would not have been burdensome. However the power dynamics on the ground which resulted in military governments taking over four times created legal challenges which were monumental to say the least. Each of these governments sought to obtain legal cover from the judiciary even though, especially after the 1973 Constitution, express provisions (like Article 6) were violated. In each case the courts either openly obliged the military rulers (Ayub and Zia) with a new constitutional framework (1962 Ayub) or through large scale suspension of provisions of the Constitution (Zia). In the case of Musharraf the judiciary tried to maintain a semblance on continuity but on essential aspects of Constitutionalism went along with the military government and what its bureaucrats wanted. It is interesting that only after the military rulers vacated their seats of power the judiciary was quick to rule their governments acts as unconstitutional.
There is no denying that the principle of segregation of power between the judiciary, parliament and the executive branches of the state has never been an issue. The conflict has been as to the scope of this segregation and where the dividing lines emerge. In 1996 and then in 2011-2013 some significant progress was made when the power to appoint judges, especially to the higher courts, moved to a Judicial Commission from the previous set up of executive appointment. Though only recently the Parliament of the coalition parties in 2023 have tried to assert their role in the matter of judicial appointments the matter is far from settled.
There has emerged, after the 18th Amendment, a constitutional vacuum as to the absence of an executive authority to enforce the decisions of the Supreme Court when the executive branch of government refuses to implement its decisions. This has been recently seen in terms of the references made to the Supreme Court on the questions of calling fresh elections. Traditionally in a situation like this the President was empowered to call the elections based on the superior court decision. Political tussles have resulted in the Parliament passing laws that erode some of the edifice of the Constitution and some may even suggest a politicalisation of the judiciary is being attempted.
One is often asked how India and Pakistan differed in their Constitutional law and more importantly, in the governance of the state. The simple answer is how the two countries differed in their initial design of the state apparatus and the functionality that went with it. India while accepting, initially, the vice regal system of the British rule, installed Lord Mountbattern, the former Viceroy of India, in a ceremonial role of Governor General. The founder of the nation Ghandi was excluded from the government role and did not hold any position, not even of a ceremonial one. Nehru this could assert the will of the Parliament in the shaping of the pattern of governance and its Constitution was framed without any 'lopsided' power.
In the case of Pakistan the vice regal system was not only adopted at Independence but the powers of the Viceroy were vested with the Governor General who was also the founder of the nation. While the initial intent was to create a cohesiveness in administration of the new country and it was desired by Mr Mohammed Ali Jinnah, the founder and first Governor General, that the Constituent Assembly formed by him to frame the constitution would deal with these issues. However, soon after his demise his successors continued with the vice regal system and indeed with the same powers. Considerable conflict arose between the Governor General and the Constituent Assembly with one Governor General dissolving the Assembly. In fact it was the then Supreme Court that in May 1955 decided that the dissolution was irregular and a new Assembly was appointed. The percieved 'interest of the state' has always been put to test against constitutionalism when the attitude of this vice regal mentality has come to the fore front in Pakistan.
Whether it was the military governments of Ayub, Yayha, Zia or Musharraf. or the civilian government of Ghulam Mohammed (1955) the 'interest of the state' have been used as a reason to dismiss civilian governments and in effect, like during Zia's regime, completely subvert the constitution and even the parliament. Let is not forget during Zia's regime the Constitution amendment actually carried his name (a first in Constitutional history) and the National Assembly relegated to an 'advisory' role. The 8th Amendment of 1985 perhaps single handedly eroded parliamentary sovereignty and at the same time introduced safety clauses (Article 58(2) and Article 90 to name a few) that provided a safety net for the military coup leaders from the effects of Article 6. We must forget the architects of this engineering were not all wearing a uniform, they included bureaucrats and members of the judiciary who framed and in some cases sanctioned the process to be ratified by a truncated or 'selected' National Assembly.
Through these times the judiciary through various decisions on case law accepted, at times, that military rule was merely a constitutional deviation based on the necessity of 'state interests'. Powers granted well beyond the remit and intent of the 1973 Constitution were taken my both Zia and Musharraf and not questioned by the judiciary. The dictum was that the take over of power for national interest was itself the justification in law. While Zia's 8 Amendment gave him powers to make the National Assembly a lame duck and merely an advisory role it also gave him powers to dismiss the Prime Minister and even send the Assembly packing home. Further it create an trump card provision that created immunity from future persecution for the action of the coup or any other actions he may take. Musharraf's regime in addition created the unique provision that through various ordinances he could change any provision of the constitution as he thought fit.
In this tussle between the de jure realties and the de facto realities within Pakistan invariably the the de facto considerations prevailed. Whether it was a full blown abrogation of the constitution (1958 coup) or the suspension, (1977, 1990, 1999) the judiciary was on hand to provide help to the usurpers. In the case of Zia and Musharraf the Supreme Court's award of the power of amendment of the constitution to them was equivalent to acknowledging that the Parliament was not the supreme law making body in the country. Ironically, we recently saw a debate where the Parliament was seeking to assert that it had supremacy over the judiciary by virtue of it being a body elected by the people. This new dimension to Constitutionalism in Pakistan is still to be tested and I am afraid this is just the first episode of the series.
As a new Chief Justice takes his oath the perception of schisms within the superior courts judges need to be resolved. While the substantive part of the differences seem to have been over procedural issues political circles on either side of the divide did not waste time to politicise the situation. Indeed the recent PDM and the earlier PTI government took varying measures to plan a political complexion to the judicial process. The perception that the direct engineering by the military of the Constitutionalism process may well have receded in the face of a more buoyant judicial presence has to be balanced with a common held view that influence through proxy continues on major legal issues. There is no evidence to suggest either of the perceptions is true thus leaving a large measure of speculation which is used by all and sundry to discredit the highest courts.
As a nation there is an urgent need to not expect political squabbling to be resolved always by a bench of five or more judges. Sadly after the 1973 Constitution was formed the process of continuous refinements to its legal framework was subverted in a manner explained earlier. Thus constitution making either was halted in the years that followed or completely derailed by the military governments. The new Chief Justice one can be sure is aware of the bumpy constitutional journey that has happened in the leading courts of the country. There is hope that the attempted politicalisation of the judiciary is stopped in its track. The creation of a more transparent view of the judicial process alongside by a tolerant and honest public discussion on constitutionalism in Pakistan should occur within the sociaty and on the media. The dispensation of justice should take precedence over only the interpretation of the law. On a more enduring level a dialogue to bring about legal reforms and more education on the constitution should be encouraged.
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