THE 1990s JUDICIARY
Until the RCO of 1985 was passed, a chief effect of the post-Nusrat Bhutto dispensation had been the suspension of fundamental rights in the country. The Chief Justice Mohammad Haleem (1981—1989) sought to alter this record in the aftermath of democratic restoration by drawing upon the example of neighbouring India, where public interest litigation was expanding.
Whilst not anywhere near as dramatically realised, a motivation for this turn in Pakistan mirrored the Indian judiciary’s desire to regain some of the popular legitimacy it had lost in being seen to have capitulated to Indira Gandhi’s heavy handed imposition of emergency in the years 1975—1977.[338]An additional feature of this time was that human rights compliance had begun to be monitored through a burgeoning non-governmental sector. Along with a push to align adjudicatory practices to take account of international rights statements, the latent powers of the judiciary were being rediscovered. The strong judicial review powers of the 1973 Constitution, as per Article 184(3), provided mechanisms for redress of rights violation that were broader than would have been allowed under a strictly adversarial system. This enabled the courts to push in the direction of loosening the requirements of standing to allow petitions from people and groups not directly affected or harmed by the denial of rights. Starting from the proposition that matters of a public nature are themselves of public importance,[339] and that those affected by the denial of rights may not themselves be able to petition the courts for redress, the court provided propitious conditions for testing the expansiveness of fundamental rights guarantees in the country.[340]
What was also notable was that, starting with the Darshan Masih case[341] in 1990, the powers of suo moto jurisdiction were activated as under Article 184(3).
In that case the Supreme Court converted a telegram detailing rights abuse in the form of forced labour into a constitutional petition.[342]Analogous to what had been the pattern in India in the previous decade, a novel body of rights was being fashioned by reference to existing constitutional provisions. The use of Article 9, which guarantees ‘No person shall be deprived of life or liberty save in accordance with law’ was the basis for broadening the ambit of rights considered justiciable. Thus, in the Shehla Zia case,[343] residents of an Islamabad neighbourhood who sought to forestall the construction and operation of an electrical grid station that they alleged would compromise their health were offered relief. This propelled the passage of the Environmental Protection Act in 1997. Additionally, by suggesting that the constitutional guarantee was of life beyond its ‘mere vegetative’ state, the Court opened the door to varied assertions about what those other conducive conditions were and the extent to which the state was responsible for their guarantee.[344]
This more activist and aggressive posture of the court would extend in some cases to the invalidation of legislative acts in this period. For instance, in Mehram Ali, specific provisions of the Anti-Terror Act establishing a parallel justice system, which relaxed the evidentiary rules for trial and presumed to bypass the regular court system, were directed to be altered so as to be brought in line ‘with the rules and procedures of the existing constitutionally established judicial system’.[345] While Nawaz Sharif’s government complied with court directions from that case, it shortly thereafter issued an Ordinance which went much further in terms of establishing a parallel judicial system to try to control a spiralling escalation of violence in Sindh and then the rest of the country. The Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance, 1998 was passed after the declaration of Governor’s rule in Sindh province.
It specifically called upon the army to ‘convene as many courts as may be deemed necessary to try offenders’. In the Laquat Hussain case,[346] the court fought back against this Ordinance, which had also created a completely novel offence of ‘civil commotion’, for which sentences of ‘rigorous imprisonment’ of up to seven years could be awarded.[347] The whole of the Ordinance was declared to be of ‘no legal effect’ in a unanimous decision of a nine-member bench.Finally, in what is a line of similar cases that looked into the vires of the government’s aggressive anti-terror posture and agenda, the Jamaat- e-Islami case of 2000 invalidated certain provisions of the amended Anti-Terror Act on the touchstone of individual rights protections.[348] Specific measures enabling law enforcement to shoot on sight, and on the grounds of mere suspicion of a person being involved in the commission of a scheduled offence, were declared invalid and against rights guarantees. Additionally, in order to make the least possible incursion upon constitutionally-protected rights, particularly of association, the court declared that aspects of collective actions could only be tried under anti-terror laws if their commission was demonstrably related to elements of terrorist activity.[349]
The Supreme Court also undertook in this period to extend its jurisdictional sway over the constitutionally-defined tribal areas. In spite of Article 247(7), which specifically bars the Supreme and High Courts from exercising ‘any jurisdiction under the Constitution in relation to a Tribal Area’, challenges to administrative actions in these areas were admitted. For instance, the restoration of tribal justice under the Frontier Crimes Regulation Act in the province of Baluchistan was found to be contrary to constitutional equality guarantees[350] and the ascription of ‘tribal’ was found to be of questionable validity with regard to the residents of this province. Additionally, in an important case involving the administration of a provincially-administered tribal area, the prior judicial view of the Frontier Crimes Regulation, that it is not ‘law’ but the working of administrative action which is ‘concerned more largely with the vindication of public interest than with the enforcement of private rights’[351] was tempered by the guarantee that all administrative action should be conducive to the ‘peace and good government’ of these areas, as provided in Article 247(5).[352]
IV