HISTORY AND STRUCTURE OF THE POST-INDEPENDENCE JUDICIARY
Close to Independence and Partition, nationalist leaders in India, particularly those of a Gandhian persuasion would counsel reform of the justice sector in order to bring it more in line with indigenous, pre-colonial systems.
‘Modernisers’ resisted this.1 The formal justice system as it is had developed under colonial rule, although permeated by a deference to existing social hierarchies in local sites and a reliance upon customary codes for dispensing justice, had nonetheless generated new social classes, themselves stakeholders in its functioning. These included growing numbers of lawyers and the collectivities in which they were organised. Thus, a dominant strain of the movement for independence viewed the struggle against British rule as completion of the struggle for liberalism, of which the maintenance of the formal British system of justice was a necessary component.At Partition, much of the court system was inherited and vested with the range of powers given within the 1935 Government of India Act. A High Court was established for the province of East Bengal and then the 1950 Abolition of Privy Council Act was passed by the Constituent Assembly to direct final appellate authority to the Federal Court. The next major alteration to the structure of the judicial system occurred with the broader administrative merger of the One Unit system and was meant to ensure a simplification of the cumbersome multi-graded lower courts.[309] [310] In addition, the repeal of special laws based on cultural specificity was aimed at bringing all areas other than those given special constitutional protection as ‘tribal areas’ within the fold of High Court jurisdiction.[311]
In the 1956 Constitution, the conditions for the realisation of judicial independence from the executive included an appointment, tenure and removal policy that was intended to be impervious to political influence.
The 1962 Constitution, however, provided a process of judicial appointment that was heavily controlled by the executive. It also established the Supreme Judicial Council as a forum to address complaints of ineptitude and wrongdoing by members of the Higher Judiciary, to be comprised by the Chief Justice of the Supreme Court and other senior members of the judiciary.With a few exceptions, the judiciary to this point was mostly accommodative of heavy executive control and when Yahya Khan abrogated the Constitution of 1962 and also thereby ‘declared that all proceedings pending in any court for the enforcement’ of fundamental rights would be suspended, he was dealing with a judiciary that took his decisions ‘quietly and lightly’.[312] By the time that the 1973 Constitution was being written, there seemed to be fuller political consensus that a formally independent judiciary needed to be established. Below, the structure of the superior judiciary is described, with particular attention paid to its jurisdictional bounds as well as the safeguards for independence contained within the 1973 Constitution.
A. Judicial Structure
The ‘judicature’ is given form in the 1973 Constitution through Articles 175—209. Article 175 provides that ‘there shall be a Supreme Court of Pakistan, a High Court for each Province and such other courts as may be established by law’ While the 17-judge Supreme Court is at the apex of the appellate system, it does not have any administrative control over the High Courts nor the Subordinate Court system. The subordinate judiciary is organised through provincial statutes, and the powers to supervise and superintend its functioning are vested in the High Courts through Articles 202 and 203 of the Constitution.
The formal definition of jurisdiction is contained in Article 175(2) and provides that ‘no court shall have any jurisdiction’ other than in accordance with the ‘Constitution or by or under any law’. For the Supreme Court, jurisdiction is comprehensively elaborated within the Constitution; it exercises original, appellate, advisory and revisional jurisdictions.
In contrast, there is a more circumspect set of provisions provided for the High Courts.Appeals arising from the decisions of district and session courts go to one of the four High Courts, which are located in the provincial
History and Structure of the Post-Independence Judiciary 125 capitals but have additional benches through the provinces.[313] The Supreme Court can entertain appeals from the High Courts in both civil and criminal trials as well as in cases where a substantial question of law pertaining to interpretation of the Constitution arises. This level of appeal is not by right and the court has to grant leave to appeal.
In addition to serving as courts of appeal, the superior courts exercise additional original jurisdiction under the Constitution. Article 184(3) grants the Supreme Court the capacity to take up any matter of ‘public importance’ pertaining to the enforcement of fundamental rights and grant a suitably fashioned remedy. Article 184 also establishes that the Supreme Court has original or initial jurisdiction in cases of conflict between two or more governments, in which case it can deliver a declaratory or non-binding judgment. Under Article 199, the High Courts are empowered to entertain writs against public functionaries and provide remedies to make them ‘refrain from doing’ what they are not permitted to do, declare unlawful an act of a public functionary or to require a person ‘purporting to hold a public office to show under what authority of law’ they claim to hold that office. In other words, the array of prerogative or extraordinary writ remedies are specifically available for the High Courts to award in their original jurisdiction. The High Courts can also give an(y) order to any person for the enforcement of any of the fundamental rights upon the petition of an ‘aggrieved person.’ This limiting clause means that the High Courts have lesser leeway to accord remedies through public interest litigation, discussed further in this chapter, often brought by organisations or groups that are not directly affected by a rights violation. In other cases, the absence of a ‘public interest’ nexus for entertaining rights claims makes this a more hospitable forum for such petitions.
The advisory jurisdiction of the Supreme Court can be activated by the President, who may ‘obtain the opinion of the Supreme Court on any question of law which he considers of public importance’. Lastly, the revisional jurisdiction of the Supreme Court allows it to review any judgment pronounced or any order made by it or any court in the land.[314]
In terms of territorial jurisdiction, the expanse of the Supreme Court’s authority extends across the federation[315] and its judgments are
binding throughout.[316] The four High Courts for each of the provinces exercise jurisdiction over their territories. Additionally, a fifth High Court was created for the federal capital, Islamabad, in 2010 and its jurisdiction extends within the capital’s borders.[317]
Questions of jurisdiction are to be settled by way of the Constitution, or by other laws, and in the case of other courts established under the law, jurisdiction for them is also settled by and in accordance with law[318] [319] Provincial statutes govern the multiply-graded subordinate judicial structure. There is an array of specialised tribunals that are established in accordance with legislative lists defining federal and provincial legislative jurisdiction.
Important for the sections that follow is that certain articles of the Constitution contain ouster clauses directing that official action taken under them will not be reviewable in any court. In addition to the emergency provisions discussed in the previous chapter,11 these include administrative acts in tribal areas and constitutional amendments passed according to the formula given in Article 239. Additionally, the mechanics of putting the Constitution in abeyance by both Zia and Musharraf have involved the swearing of an oath under the Provisional Constitutional Orders (PCO) that each promulgated. In Zia’s case, the oath was preceded by the declaration of martial law and the Laws Continuance in Force Order (LCFO), which specifically directed that no court could challenge the proclamation, or issue any order against Zia as Chief Martial Law Administrator.
In Musharraf’s case, while the PCO issued two days after his 1999 coup was less draconian insofar as it neither proclaimed martial law nor suspended the enforcement of all fundamental rights, it did contain mirror provisions to the 1977 LCFO, directing that no court would challenge the seizure of power nor any orders issued by Chief Executive, Musharraf.These formal limitations on jurisdiction have not altogether ringfenced judicial agency. In recent years, greater numbers of judges have been willing to forgo their place in the system when basic principles of independence are compromised.
As noted earlier, a major encumbrance to judicial independence until 1973 had been the over-heavy controls exercised by the executive over appointments, transfer and tenure as well as in the allocation of resources. The original 1973 Constitution provided a guarantee that ‘the judiciary shall be separated progressively from the executive within ten years from the commencing date’.[320] A law commission report in the following year made recommendations for how this would be accomplished.[321] However, in spite of these hopeful signs, the courts were simultaneously being chastened through the First, Fourth and Fifth Constitutional Amendments passed by the Bhutto regime. These restricted the jurisdiction of courts by removing charges of preventative detention from their review and thus limited a key enforcement mechanism against the executive. The Fifth Constitutional Amendment also allowed for the transfer of judges without their consent between benches. Additionally, the age of retirement for Chief Justices was extended so as to enable compliant judges to retain office longer. All mentions of succession by seniority were removed.[322]
In addition to the constrictions on jurisdiction, the formal guarantees of independence were further eroded through a range of martial law orders from 1977—1985. Importantly, the prospective date of separating the judiciary from the executive branch was delayed so as not be realised until 1995.
Further changes from Zia’s rule included the introduction of a rule that if a judge refused a presidential transfer to another branch, he/she would be ‘deemed’ to have retired.[323] Additionally, a strategy pursued in earnest well into the 1990s was the appointment of ad hoc judges in place of permanent judges to the higher benches. Without the fuller benefits of tenure, these judges were more beholden to the government and this was reflected in their judgments. As described in section II, below, the courts, in spite of the prohibition of the LCFO, repeatedly entertained challenges to General Zia’s martial law in the early years.As described in section VII, below, executive controls only whittled away with forcible judicial orders through the 1990s. In Sharaf Faridi, Justice Ajmal Mian, writing for the majority, provided that any executive control or oversight over members of the judiciary, is ‘against the concept of separation and independence of judiciary as envisaged by Article 175 of the Constitution and the Objectives Resolution’.[324] This was shortly followed by the Al Jehad case,[325] [326] which elaborated significant principles for appointment, transfer and tenure. Al Jehad was authored amidst intense institutional in-fighting amongst governmental actors. The move to codify many of the recommendations and principles of Al-Jehad would come many years later through the Eighteenth Amendment Act of 2010. The alterations since then and the nature of continuing conflict are described in section VII, below.
II.