Lawyers’ Movement: From Supremacy of the Constitution to Supremacy of the ‘Rule of Law’
The judiciary’s image after the coup needed uplifting. The relationship of the bar and the bench as two wheels of the chariot of justice were out of alignment.[1293] The superior judiciary was violating the fundamental rights by supporting unconstitutional forces.
As a result, the legal fraternity was helpless. The position of the judiciary can be described in the words of an Italian proverb, “[w]e condemn death penalty to tiny thieves and pass rewards to robbers and bandits”. The judiciary was standing against democracy.[1294] The potential legislature (including the PPP and PML-N, which had its leadership in exile) was annoyed with the decisions in cases like Javed Hashmi, Yousaf Raza Gilani and then Shahbaz Sharif. The Supreme Court Bar Association-SCBA tried to bridge the gap between the judiciary and politicians and emphasized that the country’s former leadership was in exile and should be called back and cases against them should be heard. The situation lasted till 2005.Supreme Court Chief Justice Iftikhar, who was known for lacking the polish of leading Pakistani lawyers and graduated from the Ivy League university of Cambridge, according to the New York Times,[1295] started taking Sou Moto actions on issues involving human rights violations and public importance. He challenged land allotments to influential people in Gwadar, as well as the Murree Scheme case regarding degradation of the environment, and the Steel Mill case.[1296] Supreme Court Chief Justice Iftikhar also objected to the fact that 500 people had disappeared under the suspicion of terrorism by intelligence agencies, and as a result 100 were quickly released.[1297] In the beginning of his judicial year, Iftikhar Supreme Court Chief Justice clearly stated that he’ll continue judicial activism.[1298] The height of this activism came in Steel Mill case, where the Supreme Court stopped the privatization of Steel Mill Karachi, which was unacceptable for General Musharraf.
He called Chief Justice Iftikhar and demanded his resign. The Chief Justice refused and Musharraf filed a reference against him in the Supreme Judicial Council. On 18 April 2007, the Supreme Court Chief Justice filed a petition before the Supreme Court, challenging General Musharraf’s reference against him. A full bench of thirteen members of Supreme Court accepted the petition on 20 July 2007.[1299] This happened due to the pressure of events that occurred between 6 March and July 2007 through the highly popular Lawyer’s Movement. Protests by lawyers, the media, with the wide inclusion of the general public against General Musharraf made the petition’s acceptance possible. Presidential elections were due and there was a controversy whether General Musharraf could hold two offices (president as well as Chief of Army Staff). In a number of petitions, the vires of dual office law was challenged.[1300] A nine-member bench, headed by Justice Bhagwan Das, heard the petition and by a majority of six to three declared these petitions unmaintainable.5.6.1 Emergency Against Judicial Activism and Public Interest Litigation
General Musharraf was re-elected as president on 6 October 2007, but there was a petition pending against the nomination papers of General Musharraf, which was fixed for hearing on 5 November. General Musharraf panicked and imposed emergency on 3 November 2007 and the constitution was held in abeyance.[1301] Seven judges of Supreme Court, headed by Chief Justice Iftikhar, overturned the Provisional Constitutional Order-PCO and restrained the Chief of Army Staff and Corps commanders, and other military officers from acting under that degree. A bench of seven judges, headed by the new Chief Justice Abdul Hameed Dogar, overruled the order against Provisional Constitutional Order-PCO. It was declared as void, quorum non judice and without lawful authority.[1302] In the Tikka Muhammad Iqbal case of 2007 and the Provisional Constitutional Order case of the Watan Party, the Zafrullah Khan court strongly criticized the judicial activism of brother judges and justified the Provisional Constitutional Order.[1303] The order criticized Public Interest Litigation in cases like fixing prices of fruits and vegetables and stoppage of various projects like New Murree City, Islamabad Chalets, Lahore Canal Road and others.
It was an emergency action against judicial activism and Public Interest Litigation, and was not against the legislature.Under the Provisional Constitutional Order, fundamental rights were suspended; the Oath of Office (Judges) Order of 2007 was promulgated according to which those judges not taking oath would cease to hold office.[1304] Of the Supreme Court judges, seventy two per cent did not take oath. In the Sindh High Court, more than 70% refused. It was a revolt by the judiciary and followed by a terrible attack on lawyers. The Proclamation of Emergency by General Musharraf on 3 November was against the judiciary disturbing law and an order in itself, interfering with government policy, affecting economic growth, ordering the release of terrorists and hence outstepping the limits of judicial authority. General Musharraf claimed the judiciary was eroding the trichotomy of power[1305] and disturbing his so-called “third phase of transition to full democracy”.[1306] Two points are important here. Before this, the charge sheet had always been against the legislature. Secondly, General Musharraf requested the U.S., E.U. and Commonwealth countries to give Pakistan time to advance democratically as it was trying to reach their level. He gave ten examples of U.S. president Abraham Lincoln breaking laws and usurping rights to save the constitution.[1307] This confirms that in this era of good governance, the judiciary was sharing the seat of power of the hegemonic metropolitan bourgeoisie. Meanwhile, the affective legislature, in terms of the leadership of the two main parties of the reigning classes, was in exile. Finally, on 28 November 28 2007, General Musharraf handed over the command of the army to General Ashfaq Parvez Kayani and took the oath as a civilian president. Emergency Law and the Provisional Constitutional Order were challenged in the Supreme Court, decided by Provisional Constitutional Order judges and headed by Abdul Hameed Dogar on 23 November 2007, who declared the emergency proclamation void.[1308]
5.6.2 Rule of Law or Politics: Class Formation and the Lawyers' Movement
The struggle around the lawyers’ movement as seen in its slogans and aspirations was a struggle for the rule of law.[1309] It was fought between the military, the bench and the bar (between the khaki military coat and the black-lawyers coat) but it succeeded because of the support of the two main political parties.
The lawyers’ movement paved the way for the political leadership to assert the supremacy of civilian insti- tutions.[1310] Here, however, civilian supremacy is defined not as the supremacy of the legislature or people, but as the supremacy of the rule of law and the constitution.[1311] Judges and lawyers were ready to negate Keith B. Callard’s claim that “no one is willing to die for the preservation of the constitution in Pakistan”.[1312] [1313] [1314] It was also translated into a fight to restore civilian supremacy as there was civil-military imbalance in the country,216,217 and that is what allowed the mainstream parties to join the movement, which, I argue, explains the ‘success’ of the movement.The academic literature also relied on institutional explanations, focusing on the supremacy of one institute over the other, or vice versa. Joel A. Mintz compared the bravery of Supreme Court Chief Justice Iftikhar with the U.S. founding fathers to overcome tyranny and establish a regime of ‘laws and not men’.[1315] Tariq Hasan called the Supreme Court Chief Justice a ‘judicial activist’ on the basis of Public Interest Litigation. This was devoid of any political analysis about Public Interest Litigation.[1316] Tayyaba Ahmad also tried to connect judicial activism to the Public Interest Litigation of Chief Justice Iftikhar, who she saw as understanding the “ebb and flow of judicial independence in Pakistan”. She analyzed the importance of this development to Pakistan’s internal affairs and its role as an actor in the war on terror.[1317] Similarly, Shoaib A. Ghias found the reason for the Chief Justice’s rise and conflict with Musharraf to be Public Interest Litigation and his opposition to economic liberalization, for instance, through challenging the Steel Mill privatization. He used the framework of judicial power and the legal complex in an authoritarian context, which comes from the old dichotomy of dictatorship versus democracy.[1318] Not to mention, Naveed Ahmad praised Iftikhar and declared the Lawyers ’ Movement as laying down “a foundation stone for the reinstatement of rule of law culture in the country”.[1319] Let me advance a class formation and structural analysis of this ‘event’.
The PML-N and the PPP, who represented landed classes and indigenous bourgeoisie, were effectively removed from sharing power during Musharraf’s regime.[1320] Most of the lawyers were connected with these two main parties, and both the parties became united on the issue. Furthermore, religious forces were annoyed after the Lal Masjid operation and General Musharraf’s support of the U.S. in its war against terror. In the North Western Frontier Province-NWFP, Latif Afridi, the newly elected president of the bar, was from Awami National Party-ANP, was close to the leadership and was successfully bringing out workers. Qazi Muhammad Anwar of the PPP was a member of the Punjab Bar Council. Jamiat Ulmae-e-Islam-Fazlul Rehman, JUI-F and Jamat-e-Islami, JI lawyers were active in North Western Frontier Province-NWFP, where the main parties were in opposition to the government.[1321] There is no need to mention the support of PML-N, whose government was removed by Musharraf’s coup and Tehrik-i-Insaf, who were against Musharraf for his war against terror. For a while in the lawyer’s movement, then, the support of politicians was needed; jurists abandoned their monopoly on ‘wisdom’ and accepted the political leadership to safely navigate the ship of the state.[1322] At the same time, the lawyer’s movement was told that only independent judges could provide them any kind redress from Waderas (Feudalism), Seths (capitalists) or police bureaucrats,[1323] which actually pointed to the composition of the legislation.
To sum up, the lawyers’ movement was political, if not opportunist, to the core, as opposed to being ‘neutral’. The reigning class (the PPP and the PML-N), and the ‘liberal’ and ‘quasi-liberal’ projects (led by the MMA and PTI) and even extremist parties joined hands. The metropolitan bourgeoisie slowly played its hegemonic role to help this transition.
5.6.3 Lawyers' Movement: A Political Movement for a ‘Non-Political' Judiciary?
Contempt towards the legislature, both by the military and judiciary, had always been accompanied by contempt for politics.
The lawyers’ movement was a ‘political struggle to the core’ but claimed to not be about electoral politics.[1324] It claimed it should not be understood as partisan politics.[1325] The Bar Associations claimed to be a professional group with diverse political opinions and it was argued their unity meant that no political party was backing any of them. The lawyers’ movement insisted that the issues of the removal of the Chief Justice and opposition to the military were connected; later, the lawyers’ movement made Musharraf leave and they continued agitating against the elected government. Chief Justice Munir stated that the lawyer’s movement did not invite political parties but parties joined for their own agendas.[1326]The judiciary wanted every institution of the state to be held accountable except it. The Supreme Judicial Council was a ‘dormant body’ as it had not investigated any case against a judge of superior courts for his misconduct for the last 20 years or so.[1327] Chief Justice Iftikhar could have been brought before the Council, but wasn’t due to the resistance of the lawyers movement.[1328]
It was stated that there should be caution about the accountability of the judges, so the Chief Justice should be suspended, not removed and there should be an acting Chief Justice. If judges under inquiry are objecting to certain judges, new judges should be found. So the impeachment of the Chief Justice was legally allowed. The Supreme Judicial Council was a legal forum, and suspension was the normal course of action. If the charges were under political motives, political offences could be separated from legal ones.[1329]
In this scenario, the image projected of the maligned Chief Justice was that of the custodian of the constitution and his office was “most strong, protected, non-accountable and untouchable” as per the constitution.[1330] He was entitled to more security protocol than the president of Pakistan, and hence, could use government helicopters and airplanes, as these were public property.[1331] Chief Justice Iftikhar was told to hold dual office after restoration, firstly, that of the Chief Justice of Supreme Court of Pakistan and secondly, Chief Justice of Peoples of Pakistan.[1332] The height of this romance of judges was that judges were said to be pro-people.[1333] The irony of the lawyers’ movement was this: while the judges were expected to support the people, in effect, the people’s courts were established before a people’s democracy.
Finally, it should be noted that on March 28, 2007, the Chief Justice did not follow the speech written by Barrister Gohar Ali Khan and Munir A. Malik while addressing the Rawalpindi High Court. Rather, he had his own prepared written speech titled, ‘Access to Justice’ after the name of the judicial reform project of the Asian Development Bank in Pakistan. It was about the separation of power to ensure the rule of law and good governance.[1334] Munir’s approach was also full of good governance concepts.[1335] The nature of this ‘external’ support for the lawyers’ movement speaks to its acceptance within the governance project.[1336]
5.7