Public Interest Litigation (PIL): A Deficit for Democracy, Dying Working Class Politics and the Emergence of Middle Class
There is plenty of mainstream ‘uncritical’ literature on Public Interest Litigation (PIL) in Pakistan. The rise in the rights profile is commonly credited to Supreme Court Chief Justice Haleem and Nasim Hasan Shah.[730] It is considered to have started from the landmark Benazir Bhutto cases.[731] Another view is that PIL existed before the Benazir Bhutto case of 1988, but was not acknowledged or given a formal status.[732] Some associates of Cornelius suggest that he should be treated as the first PIL lawyer in Pakistan,[733] but Werner Menski disagrees.
He accepts Cornelius was a ‘postcolonial jurist’ who wanted to make the Supreme Court of Pakistan the ‘edifice of justice’. Yet, Cornelius was not in favour of opening the courts, allowing them to become activist courts, as is the case with PIL. Rather, he supported the French system of administrative tribunals as self-cleansing mechanisms for bureaucracy. His approach was to trust the bureaucracy, whereas PIL begins with a presumption of distrust of the executive and legislature.[734]I disagree with Werner Menski, because he reduced PIL to a legal technique for opening the courts for the public by loosening of locus standi. Secondly, rather than the court as part of state structure, his position advanced a neutral and unbiased judiciary which was ‘distrusting’ of the executive and the legislature. This analysis also lacks a coherent understanding of legal development alongside political development in their historical trajectory. In the continuity of my ongoing analysis, I consider PIL as a part of the overall political project of state formation initiated and continuously pushed by the Cornelius collective, which was accomplished in a legal and constitutional formation under RCO of 1985. In its particularity, as already mentioned, this was a hybrid of Islam and the U.S.
type liberal legal system. That is, a strong presidential system and a strong judiciary for the protection of rights to address this democratic deficit. The judiciary’s rights and judicial review, though derived from the liberal tradition as a concept, gained strength from the Objectives Resolution and authority of the judiciary to interpret law (Quran and Sunnah). I call it the quasi-liberal project. The hegemonic class, under the leadership of U.S. imperialism, badly needed the military as a seat of power and religious parties in Afghan Jehad. By 1985, the reigning class was reorganized under this hegemony by the juridico-bureaucratic structure. There were few new things around 1985 and onward. First of all, the organized working class’ resistance was destroyed; added to this was the rise of the middle class due to money sent by gulf emigrants. The rising middle class was less interested in socialism and consequently, a welfare state, and more in legal and constitutional rights. Finally, an important factor was that by 1985, Benazir Bhutto had accepted the hegemonic class and succeeded to convince the U.S. about her loyalties. This allowed her to come back to Pakistan and lead a faction of the reigning class. This is the background of the famous Benazir Bhutto PIL cases where she was granted relief by the juridico-bureaucratic structure. Below is a detailed account of all this understanding.3.5.1 Benazir Bhutto Cases
In the first case, Benazir challenged certain amendments in the Political Parties Act (III of 1962) by Zia. By these amendments, Zia made it compulsory for political parties to get registered before participation in elections. Benazir Bhutto found these amendments violative of the fundamental rights enshrined in Article 17 (freedom of association) and Article 25 (equality of citizens) of the 1973 Constitution, and she was given relief. Chief Justice Haleem wrote the judgment and gave a detailed account of the principles and philosophy of PIL.
Justices Muhammad Afzal Zullah and Nasim Hassan Shah were also present, who are important because they promoted PIL in the first half of the 1990s after Haleem CJSC’s retirement. Though all agreed with the judgment of the case, the positions of Haleem CJSC and that of Afzal Zullah and Nasim JJ should be considered separately. Whereas the former started PIL dominantly on liberal footings, the later used PIL under Islamic rhetoric in the Cornelius tradition.Haleem CJSC wanted to combine fundamental rights and directive principles of state, that is, to use fundamental rights to implement the principles of policy. For this he devised a new technique of using Article 184(3) of the Supreme Court writ jurisdiction without an ‘aggrieved party’, which was essential in adversarial proceedings. For this, the court can dispense with the traditional rule of locus standi for PIL. Chief Justice Haleem did not let Benazir Bhutto’s petition wait on the High Court’s decision, and stated that procedural rules should be relaxed in cases dealing with fundamental rights. Article 184(3) did not identify which procedure should be followed.[735] Two years before this judgment, Haleem CJSC had laid down the full philosophy of PIL in his speech in 1986.[736]8 He stood for a “new theory of liberal legalism” which University of Wisconsin Professor Trubek and Galanter had presented—law as an aid to overall development of society.[737] He wanted to avoid ‘mechanical jurisprudence’ and move to human welfare oriented law (not welfare state-my comments). He was interested in interdisciplinary understanding, that is, studying the impact of sociology on law and new concepts of property and to new concepts of compensation. Doing this, for him, made lawyers appreciate the value of liberal training, which includes a spirit of inquiry and analysis, informed by a sense of obligation to society. Through the above inquiry, law can be integrator of ecological, cultural, social, economic, institutional and political dimensions of a given society.
This means resolving social conflicts through the application of “flexible rules of law” and these can promote human welfare.[738] He further made clear the role of law in this era was from principles of pragmatism and realism, even using the term “legal social engineering” for all this.[739] Then he described the technique to make these ends meet, like judicial activism, and defined the term as “a device by which judges exercise their law-making power through the application of the doctrine of precedents, the innovation of the concept of public policy, the infusion of law with the principles of equity and the beneficial interpretation of the statutes and of the constitution”.[740] By emphasizing certain parts of his philosophy, I have tried to show that the dominant roots of PIL philosophy in Haleem are in liberal legalism, pragmatism, legal realism, law and society and sociology of law.[741] Grafting of Islam on all this in Haleem’s view is very mild; but in his formation the judiciary had occupied the position of an “arbitrator between government and people, in regard to public and private rights”.[742] This simply means politics does not represent the people. There is an assumption of one ‘public’ standing against the government. While invoking this PIL, the judiciary is “not yielding to the every shifting impulse of the popular will”,[743] that is, no to popular will. The judiciary here seems like just another unelected institution in place like the military, further curbing the already limited elected voice of people in a liberal democracy.In the Benazir Bhutto case judgment, Justice Muhammad Afzal Zullah gave a cautionary note that political parties should not misuse this right of politics against Pakistan, which for him is ‘Islam’.[744] Nasim also relied on the position of Cornelius CJ, S.A. Rahman and Kaikaus in the Mouddoodi case in tradition of Cornelius collective.
In that sense Newberg is right that this decision is similar to Moudoodi 's case.[745] But the legal position presented by these two judges had a different trajectory and mission during Zia’s regime and in the years to come.3.5.2 PIL, Islam and Judiciary's Rise
Whereas the analysis in this book will connect the rise of PIL with the dying welfare developmental state under modernization around 1990 in the next chapter, the roots of its very particularity nature in Pakistan are state formation after the RCO of 1985, which we described above as a hybrid of Islam and U.S. type liberal legal system with a strong president. Supreme Court Justices Muhammad Afzal Zullah, Nasim Hassan Shah, Chief Justice Azad Jammu and Kashmir Raja Muhammad Khurshid Khan, Chief Justice Federal Shariat Court Gul Muhammad Khan and jurists like Khalid M. Ishaque systematically developed and elaborated on the special role which the judiciary could acquire by its powers of judicial review under the new Objectives Resolution as a substantive part of the constitution in RCO, that is, authority to interpret law (Quran and Sunnah).
Even before Haleem CJSC, two speeches by Khalil-ur-Rehman Khan, Judge Lahore High Court, in 1983 are very illustrative of the new institutional role of the judiciary vis-a-vis legislature and civil bureaucracy working for the executive (strong military president Zia). He stated that the bureaucracy is weak against the political majority and lacks authority, resulting in dissatisfied citizens coming to the courts. Therefore, there was a need to separate the judiciary from the executive.[746] He wanted the rule of law and rejected the idea of French Conseile d’ esate, calling it, “New Despotism”, in the words of Lord Hawart, that is, the idea of effective legal control of the administrative agencies through the courts of law.[747]
In that sense, the return to democracy for the judiciary, after 1985 RCO, was not a restoration of prestige of political representatives or supremacy of the legislature. Rather, that was a strong role of judiciary under a strong president.
Chief Justice Azad Jammu and Kashmir, Raja Muhammad Khurshid Khan, declared that the judiciary “enjoys the exclusive privilege to construe, interpret, and apply the law and to see that no law made by the Legislature offends the injunctions of Islam”.[748] This is similar to natural law and natural rights controlling the important agency of the government, in the words of Sir Edward Coke. Chief Justice Raja felt sorry that in England, supremacy of the Legislature could not be challenged, the courts could only interpret and apply the law made by the Legislature. Therefore, he advised that we follow American traditions, where the Supreme Court can strike down a legislation which is beyond the law-making power of the Congress, or state Legislature.[749]To this liberal U.S. like legal formation, Chief Justice Federal Shariat Court, Gul Muhammad Khan, added the special position of judiciary due to Islamic changes in the law, particularly the Objectives Resolution under Zia. First, he iterated how the 1973 constitution created a Council of Islamic Ideology to guide provincial and national assemblies for the Islamization of law. However, its function was merely recommendatory or advisory. Later in 1979, Zia created the Shariat Benches in the High Courts, which could judicially review laws against the recommendations of Council of Islamic Ideology or in case of delay in considering its recommendations by the government. For Chief Justice FSC, this power was so important that many Chief Justices of High Courts decided to become the members of the said Shariat Benches.[750] Later in 1980, the Federal Shariat Court was created which was given sou motu power in 1982. It was made clear that this power of judicial review in Shariat Benches of High Courts and FSC was very precious. Why? For Chief justice Gul, Islamic scholars made laws, which were binding on rulers in older times. But now, legislators who may not have sufficient knowledge of Islam were making laws. Therefore, the above-mentioned judicial review and sou motu powers in High Courts Shariat benches as well as the FSC can be used to challenge the un-Islamic nature of those laws.[751] He further emphasized how the RCO 1985 had made the Objectives Resolution as the substantive part of the Constitution by adding Article 2-A, and this, for him, brought ‘material changes’ in the situation. He did not have any confusion about the development of this legal ‘material change’. He mentioned the Asma Jilani case where Hamood-ur-Rehman CJSC tried to make the Objectives Resolution as the grundnorm of the Constitution. He did not want to share this power of judicial review with any other organ of the state because this was against the legal system in Islam. So the high court should, according to the CJ, declare a law un-Islamic and grant interim relief.[752] Proposed analysis in this book is continuously bringing to the notice of the reader that this ‘Islamic judicial review’ was not alone in its own. Rather, all the jurists of the Cornelius collective pitted it against the supremacy of the legislature of U.K. type and tried to prove it in line with the strong position of the judiciary in the U.S. style legal system. For Shariat Court Chief Justice Gul Muhammad Khan, there was no supremacy of the legislature in the U.K. in the beginning and the Parliament governed by the supreme common law which was not statutory, written and man-made law but the law of the God and natural law. To make his point clearer, he stated that this old age of natural law in England like the current age of dominance of Quran and Sunnah in Pakistan.[753] What else?
Another authority for the supremacy of the judiciary in legal and political state formation under Zia came from Khalid M. Ishaque. For him, the judge was not an umpire under Islamic law. Rather, the Legislature in the Islamic system has a ‘secondary status’ to that of the judiciary because it can reject the legislative laws if they conflict with Quran and Sunnah.[754] Nasim Hassan Shah JSC, applauded the application of the Objectives Resolution by the Shariat Court and later in a concurrent judgment by the Shariat Appellate Bench, where the power of the government to remove a senior civil servant from his office was declared unlawful by the courts. In his judgment, the Chairman Shariat Appellate Bench of the Supreme Court remarked, “[m]an having been born in the image of Allah cannot be permitted in matters of judgment to do injustice”. He was amused that these were not the words of a public figure or a religious leader but of a Chairman of the Shariat Appellate Bench of the Supreme Court.[755] By the way, the juridico-bureaucratic structure under Zia was pretending no less than the clergy. Reciting the verses of the Holy Quran in speeches became a fashion, Iqbali at as thoughts of the poet Iqbal about the renaissance of Islam became a fashion to give this tendency a philosophical touch.[756] When objections arose against this undue emphasis being given to religion those days, Justice Nasim Hassan Shah reacted strongly.[757] This was not an accident or the design of Zia alone, the judiciary not only led but also defended the Islamization of laws in Pakistan.[758] Charles H. Kennedy and Martin Lau correctly pointed out this role of a strong judiciary using the idiom of Islam but Kennedy presented it at a very descriptive level with a set dichotomy of liberalism versus Islam, whereas Lau showed it empirically at a definite juncture.[759] Whereas, analysis in this book is trying to show the historical trajectory of the rise of the judiciary and the use of the ‘ideology’ of Islamic law in league with a U.S. type of liberal legal system adding to the marginalization and exclusion of subalterns.
This way, by 1988, the Cornelius tradition was able to announce how the Supreme Court in Pakistan was exactly like the U.S. in style of leadership.[760] Secondly, how could have the U.S. constitution and related legal norms have assimilated in Pakistan.[761] As already named, it was a ‘quasi-liberal legal’ project in Pakistan carried forward by the Cornelius collective. Whereas Afzal Zullah CJSC and later Nasim Hassan Shah carried this project with the rise of PIL in the early 1990s, there emerged a ‘liberal legal’ project under the leadership of Benazir Bhutto and the old defeated left in the late 1990s and throughout the 2000s under good governance.
While the juridico-bureaucratic structure along with the ruling feudal and capitalist elite was restructuring during Zia regime, Benazir Bhutto became the leader of the Pakistan People’s Party. She revived her relation with her closest ally in the power structure, that is, the landed elite. The Movement for the Restoration of Democracy (MRD) was one of the landed classes with some Leftist support.[762] The landlord class, according to Benazir Bhutto in 1988, provided logistics like tractors and trucks to transport supporters and supplied better communication technolo- gies.[763] Her excuse for taking the money is simple, that the PPP had always been a multi-class party and a coalition of many different socio-economic groups, namely “[m] arxists, feudal landlords, businessmen, religious minorities, women, the poor”.[764] According to Waseem, the small and middle business class did not support the MRD.[765] Ayesha Jalal (1994) called it a “politics of compromise”, that is, the interest of the landed class as well as the state can be the same but not necessarily all the time.[766] The MRD bore fruit and the landed class was capable of reemerging in the 1985 elections.[767] There was no fear of land reforms because in 1981, the Federal Shariat Court was created and declared land reforms un-Islamic in the Qazal Bash Waqf case,[768] becoming a hurdle for any popular movement in relation to land distribution.
Unlike her father, Benazir Bhutto enlisted the help of the U.S., viewing its policy of standing against Soviet aggression in Afghanistan as the correct approach. Her only complaint was that the U.S. had supported General Zia.[769] She naively claimed that it was the CIA that was involved with Zia which was separate from the U.S. state. Lacking popular support, she was left only with a rights discourse to challenge Zia. Based explicitly on Locke, Rousseau, and John Stuart Mill, she insisted on the guarantee of the rights in her understanding of the nature of state and society. Her model of change was thus starkly within a liberal set of terms.[770]
The point that proposed analysis want to prove in the following pages is that once Benazir made a class compromise, the state was ready to accommodate her as soon as the hegemonic class accommodated her. The judiciary also granted her relief. The courts were ready to accommodate Benazir Bhutto against Zia until the end of 1987. The cases arising from this situation are considered as the judiciary’s new phase of judicial activism around PIL. Let us look at this era more closely.
3.6