January 01, 2018

Judicial Review and Democracy

A former chief justice of Pakistan discusses the country’s constitution and the role the courts played when the military seized power.

Hon. Tassaduq Hussain Jillani

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Democracy and judicial review have a symbolic relationship. Democracy, as understood generally, is a political system where the government is chosen through the free and fair process of elections, where citizens have a right to participate in governance, where individual rights are protected under the law or constitution, and where the rule of law is enforced through an independent judiciary. Judicial review on the other hand is the power of the court to examine an order of the executive authority regarding its legality or an act of the parliament regarding its constitutionality.

Pakistan is a parliamentary democracy, and the powers are vested through a written constitution in the three organs of the government, i.e., the legislature, the executive, and the judiciary. Their respective functions are laid down in the Constitution. To keep each organ within its defined jurisdiction, to interpret the law and Constitution, and to protect the fundamental rights of the people is the function of the courts—in particular, the Supreme Court of Pakistan. In short, it is the Court, in the words of John Adams, that ensures that it is a “government of laws, not of men.” The Court performs this function through its power of judicial review.

Power of Judicial Review

Unlike the United States, where the power of judicial review was acquired by the Supreme Court through its famous judgment in Marbury v. Madison, in Pakistan, the High Courts and the Supreme Courts are vested with this power under the Constitution (Articles 199 and 184(3)). Fundamental rights and judicial review are the central pillars of the Constitution of the Islamic Republic of Pakistan, 1973. These pillars play a crucial role in the creation and development of a people-centric constitutionalism, the rule of law, and a workable democracy. This is because the constitutional regime of fundamental rights—Chapter 1 of part 2 is dedicated to fundamental rights in the Constitution, which are 26 in number (i.e., Articles 3, 4, 8, 9, 10, 10A, 11, 12, 13, 14, 15, 16, 17, 18, 19, 19A, 20, 21, 22, 23, 24, 25, 25A, 26, 27, and 28)—is an irrevocable constitutional contract between the state and the people of Pakistan that ensures good governance. Unlike many other political systems in the world where such rights are provided through acts of the parliament, the Constitution of Pakistan dedicates a full chapter to fundamental rights and also a chapter to principles of policy (Chapter 2). Some of those fundamental rights are the right of individuals to be dealt with in accordance with law, etc. (Article 4); any law inconsistent with or in derogation of fundamental rights is void (Article 8); the security of persons (Article 9); the right to a fair trial (10A); freedom of trade, business, and profession (Article 18); the right to freedom of speech (Article 19); the right to acquire and dispose of property (Article 23); and the equality of citizens (Article 25).

Although democracy envisages majoritarian rule, the separation of power of the government and the protection of individual rights in the constitution have ensured that there is no concentration of power that negates democratic norms. The judiciary, with its power of judicial review, ensures that each organ of the government and each institution of the state remains within its prescribed parameters and that individual rights are enjoyed by the people.

Democracy is not sustainable without individual rights. For instance, in a democracy, people have a right to elect and they may have to decide on a question of public importance. The right of freedom of speech ensures that the people make an informed decision. Similarly, the right to freedom of association has enabled the political parties to organize, to influence the public opinion, and to participate in the electoral process.

In a country where there is a state religion and where a majority of the people profess a particular religion, the judiciary protects the rights of minorities through its power of judicial review. Without an independent judiciary, the majority may run roughshod over the rights of minorities. This is what happened in Nazi Germany against the Jews, and in the Nuremberg trials, even some of the judges of the highest courts were tried because they failed to protect the rights of the Jewish minority. As chief justice, I took suo moto notice of a bomb blast at a church in Peshawar where 84 Christians died and several were injured. The Court dilated in depth on the right of freedom of religion (Article 20) and declared that Muslims do not have a superior right to belief over non-Muslims, but there is an equal protection clause in the Constitution. It held that the right of religious freedom has three dimensions: the right to profess, the right to practice, and the right to promote one’s religion. It issued eight directives to the government to ensure that this right be enjoyed by Muslims and non-Muslims equally, that the school/college curriculum be appropriately developed to promote religious tolerance. It directed the government to ban hate speeches on social media and to create a special police to protect the places of worship of minorities (PLD 2014 699).

Coups and Courts

A brief overview of the army takeovers in Pakistan and how the Court retained its powers of judicial review would be in order. Like some other transitional democracies, Pakistan has experienced the imposition of periodical army rule four times. These takeovers were mostly validated by the Supreme Court, but this validation was always qualified and the Court held that it would continue to exercise the power of judicial review against orders that were products of mala fide and against law. The Court ensured that during such periods of constitutional deviations, the country would be run as nearly as possible in accordance with the Constitution.

In 1958, martial law was first imposed, and the Constitution was abrogated, which continued until 1962, when civilian democracy was restored. In 1969, there was a similar army intervention, followed by political turbulence, which led to the separation of East Pakistan, and then civilian rule was restored. In 1977, there was yet another army intervention, and the Constitution was “held in abeyance,” which continued until 1985 when General Zia-ul Haq, who had imposed martial law, died in an air crash, leading to the restoration of civilian rule and democracy. This period of democratic rule continued until 1999, when General Musharraf imposed army rule. The Constitution was again “held in abeyance.” A provisional constitutional order was promulgated, which inter alia provided for a fresh oath for the judges, and those who were either not invited or did not take such an oath were removed from the bench. The Supreme Court validated the army takeover but directed Musharraf to restore the Constitution and civilian rule within three years. This constitutional deviation came to an end in 2002, when fresh elections were held but the amendments made by the army chief were validated through the 17th Amendment passed by the Parliament in 2003. General Musharraf, through a highly controversial referendum held on April 30, 2002, got himself elected as president of Pakistan. In October 2007, when his term of office was about to expire, he wanted to run for a second term while retaining the office of the chief of army staff. His eligibility to do so was challenged by one of the candidates. Only a compliant court could allow him to contest the presidential elections because there was a constitutional bar for someone who had been in the service of Pakistan and two years had not elapsed since his retirement. He wanted the chief justice to assure him that he would be allowed to contest. When the chief justice expressed his inability to do that, this was not taken well by him.

On March 9, 2007, Musharraf asked the chief justice to resign, claiming he had received complaints of misconduct against him. On the chief justice’s refusal, Musharraf suspended him (though there was no provision in the Constitution to that effect) and filed a reference of alleged misconduct against him before the Supreme Judicial Council. This sparked off a countrywide protest against the general and in favor of the chief justice led by the bar associations.

The chief justice challenged the reference, which was heard by a 13-member bench, of which I was a member. The Court allowed the petition, the reference was set aside, and the chief justice was reinstated. This judgment not only hurt the general’s ego but also aggravated his fears as well as his sense of insecurity. With a view to getting rid of the independent judges, he planned to strike at the judiciary again by imposing a state of emergency. Before he could pass such an order, a seven-member bench, presided over by the chief justice, directed the chief of army staff not to pass any such order contrary to judicial independence and directed the judges that if there was an order for taking a fresh oath, they should not comply. Notwithstanding the order of the Court, General Musharraf did impose a state of emergency and prescribed a special oath for judges, and those who were not invited or refused to take such an oath were removed as judges.

About 96 judges, 13 of the Supreme Court (including the author) and the remaining of the four lower courts, refused to take the oath and were laid off. The bar associations took to the streets in support of the judges. Even the American Bar Association came out demanding restoration of the judiciary. There were countrywide protests against General Musharraf, demanding restoration of the judiciary. In one of those public meetings, Benazir Bhutto, chairperson of the People’s Party, was assassinated, and this further inflamed the public. On account of the mounting street protests, Musharraf had to lift the state of emergency, announce a date of elections in the country, and restore democracy. The elections were held, and an elected government came into power. General Musharraf, fearing impeachment, resigned and the government restored the judges. The restoration of democracy, constitutional rule, and the judiciary was a vindication of judicial independence and people’s faith in democracy. This judicial crisis led to a moral renaissance and has been transformative. This augurs well for the future of a stable democracy in the country. These events demonstrated, on the one hand, the power of the Court and, on the other hand, the political strength of a vigilant and determined public. The American Bar Association awarded its 2008 Rule of Law award to the judges and lawyers of Pakistan for defending the Constitution, and I was invited to receive the award on behalf of the judges. The role played by the courageous judges and the people in general was living testimony to the truth of what Learned Hand had said:

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.

Hon. Tassaduq Hussain Jillani

The author is a former chief justice of Pakistan.