Tamizuddin Khan | Understanding Pakistan Project

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 - 1/3 (1955-58)

Athar Osama July 9th, 2007

By: Athar Osama

The Coup…

The removal of the Constituent Assembly put Pakistan into yet another constitutional crisis. This was an entity entrusted, under the terms of the Independence of India Act of 1947, by the King of England to form the constitution of the Pakistani dominion. With the constituent assembly now gone, the question arose as to who was to carry forward the task of constitution-making in Pakistan? Could a new constituent assembly be legitimately elected to replace the older one? What would be the “ground-rules” for electing such an assembly? Who would set those rules and whether they would be acceptable to all parties?

In the case of the old Constituent Assembly—imperfect as it was—the ground rules were set by the authority of the King of England and were deemed to be equally biased towards all parties. With the two largest provinces already at loggerheads with each other and the smaller provinces complaining about the domination of the larger ones, it would have been difficult to agree upon the ground rules of electing a new constituent assembly in a manner that would not be perceived as biased at its very onset. Even if such an assembly were to get elected and accepted by all parties, where would it start its work? How much of the work of the older Constituent Assembly could it draw upon?