There was a glimmer of hope after the chief justice’s speech as one could see institutional maturity
LAHORE: Day in and day out, we, the citizens, are bombarded by all sorts of information from a plethora of media outlets. This information overload has had an adverse impact on the mindsets of citizens of Pakistan as one now sees growing pessimism in society. The popular refrain is, ‘nothing is going right in this country’. However, among everything that is going in the wrong direction, there are paltry small steps being taken in the right direction. One of these positives is the recent historic visit by Chief Justice Anwar Zaheer Jamali to the Senate. His speech gave a sense of satisfaction to those sentient persons who have some knowledge of Pakistan’s constitutional history. There was a glimmer of hope after the chief justice’s speech as one could see that the judiciary has attained institutional maturity.
Back in the 1950s, when Pakistan was reeling from one crisis to another due to the inherent problems that followed Partition, and while the Constituent Assembly was burning midnight oil to frame the country’s Constitution, leg-pulling between the legislature and the executive, led by the then governor general, Ghulam Muhammad, brought things to a halt. The judiciary of the time seemed to be pitted against those standing for the rule of law and democracy, as anyone who has studied the Maulvi Tamizuddin Khan case can attest. The context of the case was that the Constituent Assembly curbed the powers of the governor general and events eventually led to all involved ending up in courts. To cut a long story short, the judiciary, then led by chief justice Muhammad Munir, instead of standing by the rule of law, sided with the executive through a convoluted interpretation of the law. Justice Munir, later in one of his speeches, was apologetic but defensive about the judgment he had passed. He explained that the court passed a judgment in favour of the executive because the judiciary was apprehensive about the kind of crisis that the country could be engulfed in if it hadn’t. On the same premise, the court later also legitimised the martial law of Ayub Khan in the State versus Dosso case. Today, we are again faced with serious crises like the ones we faced in the 1950s. What has changed today, however, and which I see as a good omen, is the willingness on the part of the judiciary not to shy away from its constitutional role with respect to the implementation of laws by the executive, as is reflective from its bold judgment in the recently concluded Mumtaz Qadri case, and to question the executive when it does not implement laws. The institutional maturity of the judiciary, which can be attributed to the soul-searching by the judiciary after having given leeway to many illegitimate rulers, is worth capitalising on and sustaining. Had Pakistan not been served poorly by spineless justices in its early years, its trajectory would have been very different today.
Inamullah Marwat
Published in The Express Tribune, November 15th, 2015.
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