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Functioning of Judiciary in Pakistan: a Study of Musharraf Regime

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Functioning of Judiciary in Pakistan: a Study of Musharraf Regime Functioning of Judiciary in Pakistan: A Study of Musharraf Regime Ph.D. Thesis Submitted By Khan Faqir Supervised By Dr. Shahid Hassan Rizvi A Doctoral Thesis Submitted in partial fulfillment of the requirement for the Degree of Doctor of Philosophyin History and Pakistan Studies Department of History The Islamia University of Bahawalpur Session 2009-2012 i Table of Contents Certificate ………………………………………………………………………….... i Dedication ………………………………………………………………………….. ii Acknowledgment ………………………………………………………………………. iii List of Abbreviations…………………………………………………………………… iv Abstract …………………………………………………………………………………. v 1 Introduction…………………………………………………….……………… 1 2 Judiciary during the British Rule in India…………………………………… 24 3 Judiciary in Pakistan in Historical Perspective 1947-99………………………. 74 4 Military Takeover of 1999 and its Legitimacy ………………………………. 143 5 Musharraf and the Judiciary……………………………………….......……... 179 6 The Lawyers Movement for Judicial Independence………………………..... 233 7 Conclusion…………………………………………………………………..….. 274 8 Selected Bibliography………………………………………………………….. 280 9 Appendices………………………………………………………………………… 296 ii i Dedication Dedicated to my parents who prayed for my success ii ACKNOWLEDGEMENT First of all, I would like to thank Allah, The Cherisher, The Merciful and The Sustainer, who has granted me His mercy, love, and strength, and has enabled me to finish this thesis. I am deeply indebted to my supervisor, Dr. Shahid Hassan Rizvi, for providing me the supervision, motivation and encouragement throughout the span of my work. His insight, breadth of knowledge, and enthusiasm has been invaluable. Without his care and able guidance, I would not have been able to complete my thesis. I am also thankful to The Islamia University of Bahawalpur, Pakistan for providing me an opportunity to carry out my research activities with good mind set. I would like to thank Dr. M. Akbar Malikand respected faculty members of the Department of History and Pakistan StudyThe Islamia University of Bahawalpur for their valuable suggestions and for the many enjoyable discussions we had. I am also thankful to all the staff members of Library of University of Peshawar, Quaid-e-Azam University Islamabad, Press Information Department Islamabad, and The Islamia University of Bahawalpur who extended their support in collection of material during the course of this study. Contribution of my parents and brothers cannot be described in words in this regard. It was only their affection and inspiring encouragement which kept me proceeding in the direction of my goal. KhanFaqir iii List of Abbreviations APDM: All Parties Democratic Movement ARD: Alliance for the Restoration of Democracy CCI: Council of Common Interest CEC: Chief Election Commission HRCP: Human Rights Commission of Pakistan IJI: IslamiJamhoriIttehad JI: Jumat-e-Islami JUI: Jamiat-e-Ulma Islam KPK: Khyber Pakhtunkhwa LFO: Legal Frame Work Order MMA: MutahidaMajlas-e-Ammal MQM: MutahidaQaumi Movement NWFP: North West Frontier Province PCO: Provisional Constitutional Order PMAP: PakhtunkhwaMilliAwami Party PML (N): Pakistan Muslim League (Nawaz) PML (Q): Pakistan Muslim League (Quaid-e-Azam) PPP: Pakistan People Party PPPP: Pakistan People Party Parliamentarian PSO: Pakistan State Oil PTCL: Pakistan Tele Communication Ltd PTI: Pakistan TehrekeInsaf SCBA: Supreme Court Bar Association iv ABSTRACT The objective of this study is to highlight the functioning of superior judiciary in Pakistan. Main focus has been given on Musharraf regime 1999-2008. After the independence of Pakistan in 1947, constitutional law was inherited in legacy from the British. Not long after partition from India in 1947, Pakistan was thrown into a Constitutional crisis. In the constitutions of 1956, 1962 and the 1973, the Superior Courts have been granted the power to judicially reviewed legislation as well as executive actions to ensure the enforcement of fundamental rights. However, Pakistan‘s Superior Courts have been reluctant to challenge the executive, and has not invalidated any major legislation on account of inconformity with these rights and provisions. Rather, some of the basic principles of the 1973 Constitution, including federalism and judicial independence, have been compromised by the weakness of the judiciary. Successive governments played politics with the judiciary and denied it its rightful place as a pillar of the state. All governments retained coercive powers with the executive for reasons of administrative convenience. Civil and military governments make favourable amendments in the constitution to sustain their power. The courts gave successive civil and military authoritarian governments some kind of de facto and dejure validity. Due to such decisions of judiciary it became a very controversial and weak institution. The October 1999 coup of General Pervez Musharraf and the suspension of the 1973 Constitution and the imposition of emergency were validated by the judiciary under the law of necessity. The military take over put the judiciary under pressure. Chief Justics, IftikharChaudhry, took some bold steps of public interest litigation which was seen as a threat to his military rule and as a result, he was deposed by Musharraf. But the judiciary tried to reverse the trend through judicial activism and challenged the extra-constitutional steps of the military dictator. This was a sensational episode in the judicial history of Pakistan. A countrywide lawyers‘ movement was launched for the restoration of judiciary and the end of military rule. The movement succeeded in the restoration of the judiciary and the culmination of military rule. This can be termed as the re-emergence of judiciary in a military led political environment. v Chapter No 1 Introduction Judiciary is one of the three organs of the state, executive and legislature being the other two. It is the final orbit of the constitution and protector of fundamental rights and civil liberties of the citizens. Its role is vital for a healthy nation and a democratic society. With such a basic role in a constitutional set up, the judiciary‘s position as an independent institution cannot be overemphasized.1 Pakistan has its own judicial systems like other states of the world. The Constitutional provisions make it independent. It has wide powers and jurisdiction under the law and the constitution. The courts have been able to maintain their independence, prestige and dignity even in the most troubled periods of Pakistan‘s history. The development of the higher judiciary of Pakistan has been gradual, its basis being a legacy of British rule in the Indo- Pakistan sub-continent extending over a century and a half. 2 Pakistan‘s first ever constitution was the Government of India Act 1935 which was considerable to be more suitable to the needs of the new nation. The Act empowered the High Courts for the first time to issue the prerogative writs of mandamus, certiorari, habeas corpus, prohibition and quo warranto.3 The Act was federal in character and established Pakistan as a federal republic. The act established a parliamentary form of government with the Governor General as nominal head of the state and the Prime Minister as head of government with executive authority. 4 According to Khalid Javed, ―In a democratic society government by the rule of law, the judiciary acts as the custodian of the Constitution and the law. It functions at two different levels. At the lower level, the judiciary adjudicates disputes between litigants. Here the government and its different departments also appear as litigants but are no different from private litigants. At this level of adjudication all that is required of the judiciary is neutrality. The courts adjudicate cases on merit in accordance with the law 1 Hamid Khan, Constitutional and Political History of Pakistan, (Karachi: Oxford University Press, 2009), p.562 2 M.A. Manan, The Superior Courts of Pakistan the Development of Their Powers and Jurisdiction, (Lahore: Zafar law Associates, 1973) , p.1 3 Ibid, p.3 4 Mussarat Qadim, ―The Role of Judiciary in the Constitution Making of Pakistan”, Journal of Law and Society, Volume XII, No.21, Faculty of Law University of Peshawar, (July 1993):11 1 without being influenced by any other consideration or factor. Our judiciary, particularly the superior courts have always been strongly independent and impartial in adjudicating such matters even while functioning under the darkest clouds of civilian or military dictatorship. It is at the other higher and constitutional level where the superior courts play an altogether different role. The litigation does not involve adjudication of private disputes. The role of the judiciary is somewhat anomalous as it requires demarcating the constitutional role and functions of other organs or functionaries of state. While playing a proactive role, it must nevertheless remain within its own constitutionally allocated jurisdiction. This occasionally brings the judiciary in conflict with the government. Despite the aura of its moral authority, the judiciary remains the weakest of state organs as it entirely depends upon other institutions of state and public opinion for implementation of its orders‖. 5 A strong independent and well organized judiciary is considered to be mandatory in every system of a democratic government. But it is all the more necessary in a federal State. A federation is based on an agreement about the distribution of the legislative, financial and executive powers between the federation and its federating units. Both
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