Pakistan’s judiciary has had an unenviable record of legitimizing military rulers under the ‘doctrine of necessity but has also over the decades managed to stand out by exerting a check on the executive and the military establishment
Like much of the non-western world, Pakistan’s experiment with democracy has been deeply flawed. A lack of separation of powers, the lifeblood of any real democratic setup, has been among the reasons for it. Yet Pakistan’s judiciary has over the decades managed to stand out. It has exerted a check on the executive and the military establishment.
Pakistan’s judiciary has also occasionally filled another crucial gap in the basic democratic spirit—the protection of minority rights. It covered itself in glory again when the Supreme Court in April 2022 ruled that Prime Minister Imran Khan’s dissolution of the parliament was unconstitutional.
The ruling came after the Pakistani national assembly’s deputy speaker cited an alleged US-backed attempt to oust Khan and stalled a non-confidence vote, which he was set to lose in the face of a united opposition.
The deputy speaker’s move helped Khan recommend the dissolution of the assembly and call for fresh polls. It was widely seen as an attempt to prevent Khan’s opponents from taking power to roll back measures such as online balloting rights to overseas Pakistanis, who are mostly seen as Khan’s supporters.
Chief Justice of Pakistan Umar Ata Bandial overruled the moves and scheduled the voting on the no-confidence motion. He called Khan’s advice for the dissolution of the assembly contrary to the Constitution. Bandial ruled it has no legal effect.
Khan lost the no-confidence vote and paved the way for Shehbaz Sharif’s nomination as the prime minister. His successor can hold power until August 2023. The opposition backed early elections but after passing legislation to undo changes such as the introduction of electronic voting machines for the next polls.
Unenviable Record
Pakistan’s judiciary has had an unenviable record of legitimizing military rulers under the ‘doctrine of necessity’. The doctrine was not considered when the Supreme Court ruled against the blocking of the no-trust vote against Khan.
Khan’s opponents welcomed the verdict saying it buried the doctrine, which has been blamed for harming democracy in Pakistan. Courts have relied on the doctrine to legitimize governments under the essentially invalidated constitution.
According to Mark M Stavsky, a professor emeritus at New York University School of Law, the doctrine ‘provides a justification for otherwise illegal government actions taken during an emergency:
…courts argue that any constitution implicitly recognizes the necessity defense. Consequently, the courts may legitimize even the most extreme measures on the ground that they are necessary to save the state.
Pakistan’s judiciary earlier redeemed itself by playing a key role in military ruler Pervez Musharraf’s removal from power after he clashed with it in 2007. The clash followed the sacking of chief justice Iftikhar Muhammad Chaudhry.
The sacking triggered protracted lawyers’ protests, which prompted Musharraf to suspend the constitution and impose a state of emergency in November 2007. Dozens of top judges were placed under house arrest before the constitution was restored in December 2007.
Three months earlier, Justice Rana Bhagwandas, who went on to become Pakistan’s first Hindu and second non-Muslim chief justice, was among the three dissenting judges. Bhagwandas asked Musharraf to relinquish his army chief’s post when he was allowed to contest the presidential election.
In 2009, the Supreme Court ruled the imposition of the emergency was illegal after Musharraf was forced to step down. Four years later, he was charged with high treason for imposing the emergency before a special court in 2019 found Musharraf guilty and sentenced him to death for subverting the constitution while he lived in Dubai.
In an analysis, Madiha Afzal, a fellow at the American think tank Brookings, noted the sentence was unlikely to be carried out even if it was upheld. She nevertheless called it an unprecedented ruling against a former army chief:
…it serves as an unmistakable blow to Pakistan’s powerful military,’ she wrote. Musharraf was earlier banned from leaving the country before receiving permission to travel abroad on medical grounds in 2016. He has not returned to Pakistan since
Chief Justice Asif Khosa in early 2019 allowed the special court to go ahead with Musharraf’s trial without his presence and paved the way for his conviction. The special court censured Musharraf for delaying, retracting, and evading the trial.
The Pakistani military reacted strongly to the verdict, which was expected to work as a deterrent against the military coups. It said it stands by Musharraf while expressing ‘pain and anguish’ over the verdict.
The military maintained a former Army chief, the head of the Joint Chief of Staff Committee, and the President, who has served the country for over four decades and fought wars for the country’s defense, can never be a traitor. It said the trial was concluded ‘in haste’ and without Musharraf’s presence.
A month before Musharraf was sentenced, Pakistan’s judiciary was again in news for challenging the military. The Supreme Court suspended army chief Qamar Javed Bajwa’s extension. Chief justice Khosa noted howsoever high ‘you may be; the law is above you.’
The remark was seen as a dig at the military. Afzal noted there was little question that Khosa, who retired days later, was aiming to assert power. She added it was continuing a trend of ‘an activist, powerful judiciary in Pakistan, but one that is meaningfully pushing back and taking on the military in this way for the first time.’
The verdict in Bajwa’s case forced Imran Khan’s government to amend the law to grant the extension.
In October 2012, Pakistan’s judiciary dealt the military another blow when the Supreme Court ordered criminal proceedings against another former Army chief General Aslam Beg and retired Lieutenant General Asad Durrani.
This came years after former Pakistan Air Force Chief Air Marshal Asghar Khan moved the court in 1996 against spy agency ISI for illegally financing a campaign to influence the 1990 election. The funding allegedly tilted the scales in favour of an alliance against Prime Minister Benazir Bhutto.
Durrani, the then ISI chief, admitted to spending millions to influence the election, which brought Nawaz Sharif to power. He confessed to doing so at the behest of the then-army chief, Beg.
The 2012 verdict came when the country’s military was facing its worst crisis since 1971. The military was already smarting under its failure to detect Osama bin Laden’s presence right under its nose near Pakistan’s equivalent of Sandhurst in Abbottabad.
American commandos took bin Laden in a raid deep into Pakistan territory on 2 May 2011. Amid all this, ISI found itself caught in a flurry of cases. The Supreme Court ordered it in February 2012 to produce seven suspected militants in its captivity since 2010. The agency had a tough time explaining the custodial deaths of four detainees. The court refused to accept the detainees were terrorists and demanded an explanation.
Even in the darkest chapter in the history of Pakistan’s judiciary, three of the seven Supreme Court judges dissented from the confirmation of former Prime Minister Zulfikar Ali Bhutto’s execution following a questionable trial.
The three, including Justice Dorab Patel, a Parsi, argued the prosecution failed to corroborate the testimony of its chief witness. They said there was nothing in the evidence regarding Bhutto’s conduct that would not be ‘reasonably capable of an interpretation of innocence.’
Alvin Robert Cornelius, a Christian who went on to become Pakistan’s fourth and one of the longest-serving chief justices (1960-1968), similarly showed courage by swimming against the tide in 1954. He was the sole dissenting judge when the Supreme Court upheld Governor-General Ghulam Mohammad’s dissolution of the Constituent Assembly.
The verdict is seen to have altered the course of Pakistan’s history and sealed the fate of democracy by marking the beginning of the military’s role in politics.
Pakistani judiciary’s pushback began decades later in May 1993 when the Supreme Court overturned President Ghulam Ishaq Khan’s move to dismiss Prime Minister Nawaz Sharif’s government on corruption charges. The court ruled the dismissal and dissolution of the national assembly were ‘illegal and unconstitutional.’
It ordered the restoration of both the government and the legislative branch. The Washington Post called the decision historic, noting the court has never before decided against Pakistan’s ruling establishment.
Chief Justice Nasim Hasan Shah turned down a request to appeal the decision. He noted he believed the president, who was seen to be close to the military, acted ‘in a fit of anger’ when he dissolved the government.
The court’s 10-to-one ruling was seen as a major boost for Pakistan’s judiciary and democracy when the President had the power to dismiss elected governments.
In January 2021, the Supreme Court intervened when a mob burnt a Hindu shrine in Khyber Pakhtunkhwa. It directed authorities to reconstruct the century-old Samadhi of saint Shri Param Hans Ji Maharaj.
Chief Justice Gulzar Ahmed earlier took notice of the attack in December 2020 and ordered top officials to visit the shrine and submit a report. He also directed the removal of encroachments from temples across the country and action against officials involved in them.
The court’s intervention ensured 109 people involved in the arson were arrested and 92 police personnel, including top officers, were suspended for ‘cowardice and negligence’ in preventing the attack. Ahmed pulled up the authorities and said ‘suspension was not enough’ while ordering the recovery of damage from the arsonists.
In 2012, Chief Justice Iftikhar Mohammad Chaudhry took note of a newspaper column highlighting the problems of Pakistani Hindus in the absence of a Hindu marriage registration law. It paved the way for the passage of a law for it.
The Peshawar high court in 2011 ordered the reopening of the 160-year-old Gorakhnath temple ahead of Diwali. The court said stopping religious activities at a place of worship was against all laws decades after a bulk of Hindus left Peshawar for India following Pakistan’s creation in 1947.
The law enshrined conditions for valid marriages and specified documentation to be used to verify marital status. It made valid consent of adults aged above 18 must for registration of Hindu marriages and banned polygamy. The law has a clause that allows the termination of marriages if one of the partners converts to another religion.
Sameer Arshad Khatlani is a journalist and the author of The Other Side of the Divide
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