March 11th, 2022
By Qazi Faez Isa, Judge Supreme Court of Pakistan
Asma Jahangir Lecture – SOAS, University of London, 8 March 2022
Bismillah hir Rahman nir Rahim – In the name of Allah, the most Beneficent, the most Merciful, I start with and extend my greetings to you all – assalamu aleykum – peace be upon you.
I sincerely thank the organisers of today’s event, SOAS Pakistan Society and Bloomsbury Pakistan, for inviting me and extending me the honour of addressing you. This has also provided me the opportunity of getting to know you and the added pleasure of visiting SOAS again after 14 years, which was when my daughter got her undergraduate LLB degree from here; she went on to do her LLM from UCL and her Bar, making her the first woman to become a barrister from the province of Balochistan. My father was the first barrister from Balochistan, disembarking from a steamship which brought him to the white cliffs of Dover, after having first travelled 600 miles by road to the port city of Karachi, from Pishin his home near British Imperial India’s border with Afghanistan. All three of us were called to the Bar from the Middle Temple.
My son also studied not far from here, doing his master’s in philosophy from Birbeck after getting his undergraduate degree in literature. I was called to the Bar in 1982 and managed to persuade my wife to marry an unemployed barrister; this year we’ll celebrate our 40th wedding anniversary. And, we have three lovely grandchildren, a constant reminder that the future is important, and that it does matter.
Recent world events may have ebbed the enthusiasm of the proponents of strong one-man autocratic rule. It is essential to have checks and balances.
And, to reiterate the necessity to uphold the human rights of all. Because if we do not do so ours may crumble under an onslaught too.
Since the organisers are Pakistan centric, it may be expected that I talk about the topic in the context of my country, Pakistan. However, what I say may be equally applicable to similarly placed countries. Countries where the roots of democracy have not grown deep enough to uphold the structure of democratic institutions.
The foundation of Pakistan rests on the ‘Constitution of the Islamic Republic of Pakistan.’ Pakistan is a Federal Republic, comprising of four provinces Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh and the Islamabad Capital Territory. The Constitution commences by stating that ‘sovereignty over the entire Universe belongs to the Almighty Allah alone’ and that ‘authority to be exercised’ is ‘by the people of Pakistan’. The second recital refers to, ‘the will of the people of Pakistan’ and the third states that, ‘the chosen representatives of the people’ shall exercise State power and authority. Altogether the preamble mentions the people seven times, democracy thrice and fundamental rights and its derivatives seven times.
The Constitution mandates democracy, representative democracy. Each province has an elected Provincial Assembly and everyone 18 years of age and above has the right to vote. The residual power to legislate in respect of all matters, except those enumerated in the Federal Legislative List (Fourth Schedule to the Constitution) vests in the four provincial assemblies. The person who obtains most of the votes of the members of a provincial assembly becomes the province’s Chief Minister, who appoints the provincial cabinet of ministers, chosen from the elected members of the provincial assembly.
The National Assembly is the federal legislative body. The person who obtains most of its votes becomes the Prime Minister, who selects his cabinet of ministers from amongst the elected members of the National Assembly and the Senate. Every province (unlike the National Assembly) has equal representation in the Senate, symbolizing the equality of the federating units.
Senators are elected by the members of the assemblies. The titular head of the State is the President, who appoints governors (on the Prime Minister’s advice) who in turn are the titular heads in the provinces.
The third tier of government is the local government which attends to local matters affecting the daily lives of the people, such as roads, pavements, schools, graveyards, parks, waste collection, water supply, health-centres, maintenance of marriage, birth and death records. The elected representatives of the people in the local government are their councilors, chairpersons of councils and mayors of cities. Local governments were often neglected, elections either not held or belatedly held, and oftentimes election results manipulated. Therefore, Parliament (National Assembly plus Senate) decided to act by enacting the Constitution (Eighteenth Amendment) Act, 2010 (Act X of 2010, dated 20 April 2010). The Eighteenth Amendment raised the stature of local governments by specifically prescribing them in the Constitution. The Constitution also now required that local governments continue without a break and that elections to them are held freely and fairly.
Previously elections to local governments were conducted by the provincial governments but after the insertion of Article 140A into the Constitution the Election Commission of Pakistan was given this responsibility:
140A. (1) Each Province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments.
(2) Elections to the local governments shall be held by the Election Commission of Pakistan.’
I will now provide you with a practical demonstration of the role of the judiciary in upholding democratic rights and processes, the subject of today’s talk. It came to the notice of the Supreme Court (comprising of Qazi Faez Isa and Sardar Tariq Masood, JJ) in a case (Civil Appeal No.20 of 2014) that the Constitution regarding people’s representation in the local governments was being violated. In three provinces the five-year terms of the local government representatives had expired, and the provincial governments had assumed their functions. In the case of the Islamabad Capital Territory their term was soon to expire but no arrangements were being made for holding the next elections. And in the most populous province, Punjab, the subsisting local governments were disbanded and then the Governor of Punjab on 3 February 2021 by promulgating a ‘law’ to govern them, the Punjab Local Government (Amendment) Ordinance, 2021.
One man’s stroke of the pen sent home 56,000 elected representatives of the people serving on local governments in Punjab long before their five-year term had expired. This was challenged in the Supreme Court in Constitution Petition No. 48 of 2019, which was filed on 18 December 2019. The Supreme Court Registrar took it upon himself to object to the petition’s filings on the ground that it was not a matter of public interest and that the petitioners could have instead challenged their removal before the High Court. This necessitated the filing of an appeal against his objections on 8 January 2020, which the Registrar did not put up for hearing for over three months. Finally, the hearing took place on 22 April 2020 and the Registrar’s objections were overruled. But even then, Constitution Petition No.48 of 2019 was not fixed in Court for hearing for the next six months. When eventually it came up for hearing the Court considered that the case merited a hearing and issued notices to the respondents (government, etcetera) to come and explain/justify their action.
However, the Registrar provided another respite to the government because he did not fix in Court the case for hearing, even though the case was urgent as the people had been disenfranchised by removing their elected representatives. We had observed, and I quote, ‘If election matters are not decided at the earliest, people lose faith in democratic institutions. The said petition raised questions of immense public importance as the people of the most populous province of the country had been disenfranchised at the local level. By not fixing the petition for hearing, the Registrar undoubtedly undermined the peoples’ perception of the independence of the Supreme Court.
Therefore, we are constrained to express our displeasure at the Registrar’s conduct. We should continuously recollect that Pakistan, comprising of East and West Pakistan, could not be sustained when the peoples’ representatives were not given their due. We cannot remain silent spectators to the disenfranchisement that has been brought about, and when those who have challenged such an act are effectively denied access to justice by administrative measures it raises misgivings.’
The petition was eventually allowed by a three-member Bench of the Supreme Court which held that, ‘Local Governments as were existing in the Province of Punjab prior to promulgation … stand restored and it shall complete its term….’
The people and their elected representatives won, democracy had won, but it was a pyrrhic victory because three and a half years were shaved off from their five-year terms. And, even after the decision of the Supreme Court the government of the Punjab prevaricated in restoring the local governments.
The government had wound up all the local governments in Punjab and the Governor had enacted an ordinance. Governors can only promulgate ordinances when ‘circumstances exist which render it necessary to take immediate action’ (Article 128 of the Constitution). But there was a complete absence of any emergency, let alone one requiring the taking of immediate action. In our order we had noted that ‘the act of the Governor was a fraud on the Constitution.’ Governors are unelected yet the Government and the Governor of the Punjab undid the decision of 370 members of the Punjab provincial assembly who had setup the local governments in the province.
In the absence of accountability and without there being consequences for those who violate the Constitution the downward spiral continues, and the nation and the people suffer. Democracy and constitutional rule must be continuously safeguarded. And the greatest responsibility to do so lies on all those who have sworn to uphold and defend the Constitution, including judges of the superior courts on whom may lie the greatest responsibility.
However, the track record, which we must face up to, has not been spotless. Within a few years of attaining independence, democracy in Pakistan was derailed. On 24 October 1954, the Constituent Assembly was dissolved by the Governor-General, Ghulam Muhammad.
The President of the Constituent Assembly, Moulvi Tamizuddin Khan, filed a petition challenging the dissolution. The Sind Chief Court accepted the petition (Maulvi Tamizuddin Khan v Federation of Pakistan, PLD 1955 Sind 96). However, the respondents appealed to the Federal Court which held that the Governor-General had the power to dissolve the Assembly (Federation of Pakistan v Moulvi Tamizuddin Khan, PLD 1955 Federal Court 240). The judgment of Muhammad Munir, CJ, commenced by defining democracy and went on to say that the Constituent Assembly, ‘lived in a fool’s paradise if it was ever seized with the notion that it was the sovereign body in the State.’
And with aplomb wrote, ‘I am quite clear in my mind that we are not concerned with the consequences, however beneficial or disastrous they may be.’
Thereafter, a new constituent assembly came into being and it framed the Constitution of 1956. But this new dispensation did not last long either.
Major-General Iskander Mirza scuttled democracy. The Supreme Court, under the same Chief Justice, Muhammad Munir, while hearing a couple of criminal appeals endorsed the proclamation of 7 October 1958 through which the Major-General had annulled the Constitution, dismissed the Central and
the Provincial Cabinets, dissolved the National and Provincial Assemblies and declared martial law throughout Pakistan (The State v Dosso, PLD 1958 Supreme Court 533). The Supreme Court justified its decision by relying upon the musings of Hans Kelsen, an Austro-German. ‘A victorious revolution or a successful coup d’ E’tat is an internationally recognised legal method of changing a Constitution.’
Major-General Iskander Mirza was himself then removed by his own appointee, General Muhammad Ayub Khan, who then proceeded to enact his own Constitution in 1962. Faced with public discontent General Ayub Khan surrendered power to his subordinate, General Muhammad Yahya Khan, who appointed himself as the President of Pakistan and the Chief Martial Law Administrator.
The young Asma Jilani (Jahanghir) was to leave her mark on the judicial history of Pakistan when she challenged the detention of her father, Malik Ghulam Jilani, and the Defence of Pakistan Rules, 1971 under which he was detained. She was joined by Zarina Gauhar, who challenged the arrest of Altaf Hussain Gauhar, the Editor-in-Chief of Dawn newspaper. The Supreme Court (Miss Asma Jilani v Province of Punjab, PLD 1972 Supreme Court 139) overruled the judgment in Dosso’s case. The Court held that, ‘a perfectly good country was made into a laughing stock. A country which came into being with a written constitution providing for a parliamentary form of Government with distribution of State power between the Executive, Legislature and the Judiciary was soon converted into an autocracy and eventually degenerated into military dictatorship.’ It went on to say that the people, ‘ceased to have any share in the exercise of the State powers. An all omnipotent sovereign now ruled over the people in similar manner as the alien commander of the army who has conquered a country and his “will” alone regulates the conduct and behaviour of the subjugated populace’. The Court ordered the immediate release of the detainees.
Democracy was again jettisoned when General Zia-ul-Haq struck at the Constitution, which he had sworn to uphold. He detained Prime Minister Zulfiqar Ali Bhutto and imposed martial law on 5 July 1977. His wife, Begum Nusrat Bhutto, challenged General Zia’s actions. The majority of the Supreme Court upheld the military intervention by holding that, ‘the extra-Constitutional step taken by the Armed Forces of Pakistan was justified by requirements of State necessity and welfare of the people’ (Begum Nusrat Bhutto v Chief of Army Staff, PLD 1977 Supreme Court 657). They advocated the doctrine of State necessity and justified it by relying on a Latin maxim –salus populi est suprema lex.
Democracy was once again derailed when on 12 October 1999 General Pervez Musharraf seized power and, on a challenge, made to his takeover the Supreme Court (through a 287 paragraph judgment) again relied on the doctrine of State necessity in endorsing the military takeover and in doing so also bestowed upon General Musharraf the power to amend the Constitution.
Eventually, elections were held in 2002. General Musharraf struck again by proclaiming emergency on 3 November 2007 and forcibly removed and detained Iftikhar Muhammad Chaudhry, CJ, and a number of other judges.
A nationwide protest ensued, which came to be known as the Lawyers Movement. Public pressure resulted in the restoration of the judges on 23 March 2009.
The Sindh High Court Bar Association had filed a constitutional petition in the Supreme Court challenging the 3 November 2007 actions of General Musharraf which was allowed by a fourteen-member Bench of the Supreme Court (Sindh High Court Bar Association v Federation of Pakistan, PLD 2009 Supreme Court 879). The Court unanimously held that, ‘Doctrine of State necessity is neither Law nor any rule nor any regulation. It is a state of affairs where, in the given circumstances, unfair is justified in the name of expediency’.
Jawwad S. Khawaja, J, pithily in 6 paragraphs, while agreeing with the Chief Justice’s judgment added, ‘Can constitutional legitimacy flow from the force of arms or – as is more graphically put at times – from the barrel of a gun?’ And, ‘If reliance on coercive force in gaining power is legitimized or condoned, there can be no rational basis for decrying the assault on the writ of the State by any band of marauders, robbers, adventurers and zealots of varying extremes in the political spectrum, who undoubtedly will be encouraged in adopting similar use of arms and violence to force their ideological creeds on the people of Pakistan’. He went on to say, ‘The people of Pakistan have consciously chosen the method for their own governance. The Constitution is a document which at a conscious level records, in classical terms, the social contract between the people and those who they choose to entrust with the governance of the State.
The initial lines appearing in the preamble to the Constitution stipulate, inter alia, “that it is the will of the people of Pakistan to establish an order; wherein the State shall exercise its powers and authority through the chosen representatives of the people.” The operative part of the preamble in the clearest possible terms, states that “we the people of Pakistan…do hereby adopt, enact and give to ourselves this Constitution.” In this context it was nothing but haughty arrogance on the part of General Musharraf to claim to be above the Constitution and to assume the power of arbitrarily amending it. Even if the concept of salus populi and the best interest of the people were to be invoked, it would inevitably demand adherence to the Constitution because ignoring it necessarily implies the conceited notion that the people of Pakistan who had chosen their own method of governance, were incapable of knowing what was best for them.’
The hope which was struck by the Supreme Court judgment in the case of Asma Jilani and then in the Sindh High Court Bar Association judgment has ensured that direct autocratic takeover is no longer possible. But the nation needs to remain vigilant, and we must not let our guard down in protecting the Constitution.
Today, also happens to be the International Women’s Day. Therefore, please permit me to also say something about the rights of women. Out of 156 countries surveyed by the Global Gender Gap Index 2021 (Global Gender Gap Report 2021, issued by the World Economic Forum) Pakistan ranks close to the bottom at number 153. This is shocking for a country which gained independence under a progressive leadership.
The non-discriminatory equality principle is embedded in Islam. ‘The most honoured of you in the sight of Allah is the one who is the most righteous’ (HolyQur’an, surah Al-Hujurat (49) verse 13). The path tread by a woman has been incorporated as an obligatory ritual of Islam, whose example every Muslim must emulate when performing the once in a lifetime mandatory Hajj or the lesser Umrah pilgrimage. Lady Hajr (Allah be pleased with her) walking and then running between the hills of Safa and Marwa (Sai) searching for water for her infant child. The Sai probably is the only compulsory religious ritual established by a woman in any faith. The most revered of women, Lady Maryam (may Allah be pleased with her) is mentioned in the Holy Qur’an 34 times, far more times than in the Bible. The Prophet Muhammad (peace and blessings be upon him) said, ‘However large the faith of a man increases, his regard for women increases.’ (Bihar al-Anwar compiled by Mulla Muhammad Baqir, vol. 103, p. 228; Daylami, al Firdawsi bi Ma’thur al-Khitab (Beirut: Dar al-Kutub al-‘Illmiyyah, 1986), vol. 3, p. 309; and Ibn Hajar al-Haythami, al-lfsah ‘an Ahadith al-Nikah, Amman: Dar ‘Ammar, 1986, p. 27).
A bright future can only be secured when systems of oppression are dismantled. When gendered violence, misogyny, and abuse are punished in accordance with the law. Asma Jahangir set an example when she demonstrated that tyranny is not unsurmountable. The judiciary, like our electoral system, is a vehicle to secure the fundamental rights of all. The only future I would like to imagine is one in which persecution and autocracy ends.