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Fast Forward: The Chief Justice of Pakistan Case - A Constitutional Deja Vu?

Athar Osama July 14th, 2007

By: Athar Osama

Recent discussions on various fora (e.g. here) on judicial independence and assertiveness sheds light on a very interesting–and important–aspect of the current judicial crisis in Pakistan. What are the limits of Judicial assertiveness? This is not something new to the world–or even to Pakistan’s history. Every country that has attempted to establish rule of law and constitution has struggled with trying to find a balance between what can (and cannot) a judge do.

In America, where constitutionalism is much more advanced than in Pakistan, the debate has moved to a higher plane in the famous tussle between those who believe in strictly interpretting the constitution and those that only appear to do so. Each side claims that it is interpretting the constitution (or interpretting the original intent of the framers) and accuses the other of legislating from the bench.

We, in Pakistan, have been merely struggling with how to keep the rule of law and constitution alive in our country. Is it really the role of the judiciary to enforce a constitution? Can the judiciary do that even in the absence a popular sentiment towards the constitution? In a situation where an Army general takes over power in an illegal coup, abrogates the constitution and declares martial law, and nobody–but a few “professional” politicians in a nation of 150 million–even makes a sound of protest, what does upholding the constitution really mean? Does that nation even have a constitution to begin with? or is it merely a paper, worthy of celebrating when it suits a few and disposing off when it doesnt?

2007 , General Musharraf , Justice Munir , Tamizuddin Khan , Judiciary , Politics
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The Coup, The Constitution, and the Bureaucratic Musical Chairs - 2/3 (1955-58)

Athar Osama July 9th, 2007

The Constitution

Having looked at the “Constitutional Coup” of 1954 and its repurcussions in the form of Justice Munir’s historic judgment, we now turn towards the Pakistan’s renewed quest for a Constitution.

An Era of Legal Challenges

With Justice Munir’s verdict in the Tamizuddin Khan case, not only did the Constituent Assembly stood dissolved but also seven long years of important legislation was eliminated by a stroke of a pen. Forty-six Acts on the statute books became invalid thus putting the country in a legal vacuum making it almost impossible to govern. Days after the judgment, the Governor-General promulgated Emergency Powers Ordinance IX of 1955 that give him the power to:

Make provision for framing the Constitution of Pakistan
Make provision to constitute the province of West Pakistan
Validate laws which have been passed by the Constituent Assembly but had not received assent of the Governor-General
Authenticate the Central Budget
Name East Bengal as East Pakistan (Khan, 2001, p. 89)

Governor-General’s Emergency Powers Ordinance was immediately challenged in the court. In Usif Patel vs. The Crown, Chief Justice Munir sided with the petitioner and declared the Emergency Powers Ordinance IX of 1955 as ultra vires (without legal authority). In a major flip-flop of his earlier decision, Justice Munir’s judgment recognized the continuing authority of the Constituent Assembly, and nobody else, to make any provisions to the country’s Constitution. Ironically, this was the same Constituent Assembly that had stood dissolved through his decision in the Tamizuddin Khan case.

The Coup, the Constitution, and the Bureaucratic Musical Chairs - 3/3 (1955-58)

Athar Osama July 9th, 2007

…The Bureaucratic Musical Chairs

With the Constitution now in effect, there was logically an expectation that it would lead to an end to the constant reshuffling of governments and political leaders over the last few years and bring political stability to Pakistan. Before going into whether or not that ultimately happened, lets look briefly look at some aspects of the constitution that are worth emphasizing here.

The Constitution of 1956

The Constitution of 1956 was a lengthy document—containing over 234 Articles in 13 parts and 6 schedules. By contrast, the American Constitution has a 3-line preamble, 7 articles, and 27 amendments over the last 200 years of existence. The Indian Constitution, on the other hand, has 395 articles and 12 schedules (Wikipedia, 2007). Clearly, in Pakistani Constitution of 1956, but also later ones, the framers adopted an approach, somewhat analogous to India’s, that explicitly stated many of the things that are generally left to convention in most well-developed constitutions of the world. Hamid Khan identifies several reasons for the length of the constitution including, but not limited to, complicated relationship between the federation and the provinces, special provisions for tribal areas and the Islamic character of the Constitution, emergency provisions, bill of rights, issues of state languages, election commission, and directive principles of state policy etc. (Khan, 2001, p. 102).

There is nothing inherently right or right, perhaps, about explicitly stating in quite a lot of minutiae the various structures that comprise the state and their inter-relationships with each other provided there is consistency between them and that the Constitution is then properly and fully implemented. Pakistan’s First Constitution and the later experienced presented serious problems in both these counts.

The first set of problems arose in the distribution of power between the President and the Prime Minister. The 1956 Constitution was developed and delivered during the Governor-Generalship of Iskander Mirza and the Prime Ministership of Chaudhri Mohammad Ali. While the latter was an able person—and perhaps a man of good integrity (more on this later)—the former’s strong control over power and desire to maintain that was no match to the latter’s independence and/or desire to create a well-designed (from a structural standpoint) Constitution.