Constitutionalism and the Dilemma of Judicial Autonomy in Pakistan: a Critical Analysis

CONSTITUTIONALISM AND THE DILEMMA OF JUDICIAL AUTONOMY IN PAKISTAN: A CRITICAL ANALYSIS BAKHT MUNIR Registration No. 22 - SF/PHDLAW/F12 Supervised by DR. ATAULLAH KHAN MAHMOOD A Dissertation Submitted in Partial Fulfillment of the Requirements of PhD in Law Degree DEPARTMENT OF LAW, FACULTY OF SHARIAH & LAW INTERNATIONAL ISLAMIC UNIVERSITY, ISLAMABAD Bakht Munir ©__________________________2018 . All Rights Reserved . ii َ َر ﱢب ا ْﺷ َر ْح ﻟِﻲ َﺻ ْد ِري َو َﯾ ﱢﺳ ْر ﻟِﻲ أ ْﻣ ِري َوا ْﺣﻠُ ْل ُﻋ ْﻘ َد ًة ِﻣ ْن ﻟِ َﺳﺎ ِﻧﻲ َﯾ ْﻔ َﻘ ُﮭوا َﻗ ْوﻟِﻲ O my Lord! Open for me my chest (grant me self - confidence, contentment, and boldness); Ease my task for me; And remove the imp ediment from my speech, so they may understand what I say . [Surah Ta - Ha; 20:25 - 28] iii To the countless unsung sons of the soil who went “Missing” in their own soil. iv D E C L A R A T I O N I, Bakht Munir, do hereby declare that this dissertation is and has never been presented in any other institution. I, moreover, declare that any secondary information used in this dissertation has been duly acknowledged. Student: Bakht Munir Signature: _____________ Date: 01/ 29/ 2018 Supervisor: Dr. Ataullah Khan Mahmood Signature: _________________________ Date: 01/ 29/ 2018 v ACRONYMS AIR All India Reporter APC All Parties Conference ASBSC Appellate Shariat Bench of the Supreme Court CDA Capital Development Authority FDI Foreign Direct Investment FSC Federal Shariat Court HC High Court http Hypertext Transfer Protocol ICCPR International Covenant on Civil and Political Rights JCPR Judicial Commission of Pakistan Rules KP K hyber Pakhtoonkhwa LDA Lahore Development Authority LHC Lahore High Court Ltd. Limited MFLO Muslim Family Laws Ordinance NAB National Accountability Bureau OCAC Oil Companies Advisory Committee PCCR P arliamentary Committee on Constitutional Reforms PCO Provisional Constitutional Order PCr . LJ Pakistan Criminal Law Journal vi PHC Peshawar High Court PLD Pakistan Law Decisions PML (N) Pakistan Muslim League Nawaz PPO Political Parties Order PSM Pakistan Steel Mills PSO Pakistan State Oil PTCL Pakistan Telecommunication Ltd. Pvt. Private TLP Tahreek - i - Labbaik Pakistan ROPA Representation of the Public Act SC Supreme Court SCC Supreme Court Cases SCMR Supreme Court Monthly Review SHC Sindh High Court ST Sunni Tehreek TKN Tehreeik - i - Khtam - i - Nabuwat TLY Tehreek - e - Labaik Ya Rasool Allah US United States UDHR Universal Declaration of Human Rights UNCPCTO United Nation Convention on Prevention of Crimes and Treatment of Offenders v . Verses www World Wide Web vii A C K N O W L E D G E M E N T Countless praises to Allah, the Almighty, the “Lord of the lords”, the Creator of all Unive rse, the worthy of all praises, Who blessed me with courage and power to complete this dissertation . May the Lord’s blessings, peace and greetings be upon the Prophet (SAWW), the mercy for all the beings, the revealer and the interpreter of Allah’s will. My fathomless gratitude goes to honorable Dr . Ataullah Khan Mahmood who has been providing me guidance, support, advice and every kind of help in my research work and queries. I have no words to pay thanks to my parents who led me in every step of life in a very successful way. I am h ighly obliged to the Higher Education Commission of Pakistan for providing me an opportunity for conducting six - month research at Kansas School of Law, the University of Kansas, USA. I would like to express my gratitude to Professor Richard E. Levy who ser ved as my faculty shepherd and generously supported me during my stay at the United States. I would also like to extend my appreciation to all the faculty and staff of the Kansas School of Law for generously supporting and facilitating me in the accomplish ment of this research project. I would like to express my deepest appreciation to my wife, daughter, siblings , and all those who inspired and motivated me in every walk of life. I would like to express special thanks to all of my friends especially, Mr. Attif Raza , Mr. Ali Nawaz khan, Dr. Salim Javed, Mr. Farooq Amjad , Mr. Mehboob Ahmed who generously extended a helping hand in this project. It would be unfair not to mention the generous help extended by all the staff of Department of Law, Faculty of Shariah and Law, vii i International Islamic University , who threw open all the resources, whenever and wherever required. A B S T R A C T This work provides a twofold nature in relation to the law of Pakistan: firstly, constitutionalism being a broad public law concept applies to an analysis of the ongoing development and gradual maturing of this phenomenon in Pakistan. This endeavor helps place the thesis into a rich field of legal and law related literature that examines the trajectorie s of post - colonial countries in terms of their constitutional struggle and related developments. It provides a more descriptive framework that is useful in its own right as an orderly exposition of largely existing knowledge, ideally with updates on recent significant developments that major scholarly contributions from the earlier times did not yet included. Secondly, this thesis examines the dilemma of judicial activism, which is also referred to as public interest litigation. It endeavors to assess the e xtent to which judiciary of Pakistan may act as an autonomous entity that can rightfully set itself up as being somehow superior to the other constitutional entities, namely the legislature and the executive. However, the constitutional history of Pakistan elucidates that the role of military is an unavoidable additional stakeholder that impacts the judicial functioning in Pakistan . C onstitutionalism not only outlines the sources from where the government derives its authority but also highlights the parameters for the exercise of that power. Montesquieu says that every state performs mainly three functions: legislative, executive, and judicial. To avoid undue concentration of powers, these three functions need to be performed b y different bodies. In case, where both legislative and executive functions are performed by one person or body, possibility may arise that tyrannical laws may be enacted by the senate or monarch and those laws be impose d ix in despotic manner. Similarly, the re could be no liberty if judicial authority is not segregated from the legislative authority or the executive authority . In case where judicial and legislative functions are performed by one body, life and liberty of the people would be at risk to arbitra ry control because legislature would be the judge. In case where judicial and executive functions are performed by one body, the judge instead of interpretation of laws may behave with violence and oppression. So, when these three main functions : law makin g, execution, and adjudication are concentrated in one body that would lead to an untoward position . In the constitutional history of Pakistan, the role of army is that of an unavoidable additional stakeholder and thus significantly impacts the position and role of judiciary. Throughout history, Pakistan has kept on shifting between military and fragile civilian rules where judiciary has often been used to legalize extra - constitutional steps especially during military regimes. T he establishment of a democratic government with its organs having real indepen dence fairly gives an assurance that judicial autonomy would thrive in future. The Superior Judiciary of Pakistan has facilitated the despotic regimes and its associated interest s , which created institutional disequilibrium and consequently undermined repr esentative institutions. After its restoration in March 2009, judiciary asserted an unprecedented autonomy not only from the military regime, but also extended the same attitude towards the civilian government and considered itself as a representative of t he public will. J udiciary established a self - conception of public legitimacy and accountability. J udiciary widened the scope of suo motu jurisdiction to a great extent and transgressed its powers of judicial review for so many times , which grappled the whole nation , putting them in a state of disbelief of the existence of an elected democracy. E xcessive judicial activism and judicial involvement in every matter of x the executive can damage the very existence of other state organs. In order to keep the dem ocratic transition on a positive track, judiciary should not intervene excessively in t he domain of other state organs. In terms of decision - making , s tate institutions give s an impression tha t t he whole idea of checks and balances has been compromised . T hi s dictatorial dominance and institutional imbalance has never remained completely unchallenged. Pakistan’s experience with judiciary suggests a rational compromise between judicial autonomy and its constraints. Maximum judicial autonomy, without any constraint, would certainly create impediments to the smooth - functioning of representative institution s and may consequently further strengthen the military and its affiliated interests. This current shift of democratic regime inevitably entails institutions with strong governing capacities, in order to rein in the ambitious military and to uphold the spir it of constitutionalism . xi CONTENTS BRIEF SUMMARY OF THE CHAPTERS ................................ ................................ ... 01 - 06 Chapter No. 01 ................................ ................................ ................................ ......................... 01 Chapter No. 0 2 ...............................

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