Volume 21 Issue 9 September 2017


It is not the executive branch of the Pakistan government that emits an overpowering stench of incompetence, corruption and other associated vices. Its judicial branch is also not far behind. Its contribution in stifling democracy and encouraging the exercise of arbitrary powers by rulers is second to none.

The sordid history started very early - within 10 years of the country’s independence, when, in 1954, Governor General Malik Ghulam Mohammed asked the prime minister, Khwaja Nazimuddin to step aside and, upon his refusal to comply, dismissed him in exercise of his special powers. Nazimuddin knocked the door of the Supreme Court but the Chief Justice, Mohammad Munir, instead of ruling on the legality of the dismissal, forced new elections.

Later, the same year, when the constituent assembly made some amendments in the constitution revoking Malik Ghulam Muhammad’s power as governor general under which he had previously dismissed Khawaja Nazimuddin’s government, he also dismissed the constituent assembly on the ground that it did not represent the people of Pakistan.

An appeal against his order was filed in the Sindh High Court by the President of the Constituent Assembly, Maulvi Tamizzuddin Khan. The Sind High Court ruled in favour of the petitioner. But in the appeal against the ruling, which was heard in the Chief Court of Pakistan (later designated as the Supreme Court), Justice Muhammad Munir set aside the verdict of the Sindh High Court and ruled in favour of the Governor General.

In passing the judgment, the Court relied on the doctrine of necessity. This doctrine is based on the writings of the jurist Henry de Bracton (1210-68) and William Blackstone (1773-68) an English Jurist. Both jurists lay down that an act to restore order could come under the purview of the ‘Doctrine of Necessity, while another jurist, Sir Ivor Jennings stated that the well-being of the people was the supreme law.

That was the first blow to the sapling of democracy in Pakistan, struck by the very people who were supposed to be the watchdogs of the constitution. In their lordships’ judgment, Ghulam Mohammad’s dismissal of the prime minister and the constituent assembly were acts that ensured the “well-being of the people,” in order for them to apply the doctrine. However, no “restoration of order” was involved in these cases.

Since then this doctrine came to be applied every time an adventurer seized power. In 1956, for instance, a fracas broke out between political factions in the East Pakistan assembly that resulted in the deputy speaker Shahed Ali Patwary being injured. Patwary later died. But his death was a coincidence and not a premeditated murder. In any case, the law of the land was competent to take care of the situation. And yet, the confrontation was used as a pretext by President Iskander Mirza to declare martial law on 7 October 1958.

Gen. Ayub Khan pushed Iskander Mirza out and ruled for 10 years. After the fall of Dhaka there was a brief interregnum from 1973 to June 1977, during which an elected government was in power, under Zulfikar Ali Bhutto as prime minister. On 5 July 1977, Gen. Ziaul Huq deposed Bhutto, imposed martial law and took over the reins of government. He also ruled for almost a decade until he died in an air crash. Finally, in 1999, Gen. Pervez Musharraf, the army chief, toppled the elected prime minister Nawaz Sharif and took over power as chief executive.

The Supreme Court of Pakistan justified all military coups, under the same law of necessity. Petitions filed to challenge the coups were set aside and dictatorship legitimized.

However, it is not in regard to the judiciary’s support to dictators only, that its decisions have been critiqued. They have drawn widespread flak on other issues as well; most prominent among them was the trial of Pakistan’s erstwhile prime minister, Z. A. Bhutto and the death sentence awarded to him.

Many analysts find the whole trial reeking with bias. Some have called it “judicial murder.” Bhutto was from Sindh. His alleged victim, Ahmad Raza Khan Kasuri was from Punjab. So the trial became almost a vendetta of a Punjabi against a non-Punjabi.

This ethnic divide was manifest throughout the trial. In the first instance, when Bhutto began his testimony on 25 January 1978, Chief Justice of the Lahore High Court, Maulvi Mushtaq closed the courtroom to all observers. Thereupon, Bhutto refused to argue further. He also demanded a retrial, accusing the Chief Justice of bias, after Mushtaq allegedly insulted Bhutto's home province. But the court refused his plea.

In the final judgment by the Supreme Court awarding him the death sentence, the judges were sharply divided on ethnic lines. The four Punjabi judges including Chief Justice, Anwarul Huq, convicted Bhutto, while the three non-Punjabi judges - Dorab Patel, Abdul Haleem and Ghulam Safdar Shah, in their dissenting judgments, acquitted him.

In recent times, Supreme Court Chief Justice, Iftikhar Chaudhry disqualified Prime Minister, Yousuf Raza Gilani, from office when he had been found guilty of contempt for refusing to comply with a Supreme Court order to reopen dormant fraud investigations against President Asif Ali Zardari.

After being found guilty and convicted, Gilani served a token jail term in the courtroom which lasted barely 30 seconds. But a conviction is a conviction. The duration of detention is immaterial. Therefore the Chief Justice clarified that being a convict, Gilani had been disqualified as a member of parliament.

Some commentators were outraged that the head of government should be deposed by anything other than parliament. They likened the order to a "judicial dictatorship."

The superior judiciary has been active in other fields as well. For example, it has arbitrarily banned Altaf Hussain’s appearance and relaying of his statements in the media, both electronic and print. No valid reason was advanced. No charges were brought against Altaf Hussain or an opportunity given to him to defend his position. Yet, he was deprived of the right of free speech which is a fundamental of democracy.

These inroads into other fields have been termed by jurists as “judicial activism.”

In the latest instance, the Supreme Court has not only disqualified Nawaz Sharif as Prime Minister, but also deprived him of the membership of the Shura under Article 62 of the Constitution, which requires that a person must be “sagacious, righteous, non-profligate, honest and ameen,” to qualify for the office. Cited against him were the dubious deals relating to fabulous properties owned outside the country, as exposed in the Panama Papers.

The verdict is a landmark as it has exposed Nawaz Sharif’s dishonest practices. It is popular because, for the first time, a head of government in Pakistan has been proven guilty of amassing wealth by questionable means.

Yet, the rigid application of Article 62 has raised question among jurists, because no proof is demanded from any candidate about his or her being “sagacious, righteous, non-profligate, honest and ameen,” before swearing them in as members of the Shura.

Nonetheless, the judiciary has demonstrated its power.


The writer is a senior political analyst and former editor of Southasia.

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