AnalysisHistoryJudiciary

The colonial burden of Pakistan’s judiciary

The military’s hold over the Pakistani judiciary is explained by a reading of deep history.

If Robert Clive was the conqueror with the sword and musket, Warren Hastings, British India’s first governor-general, was the architect of executive control over the judiciary. The legacy of what Hastings wrought is still evident in the region, more sharply in Pakistan.

Amjad Bhatti

The military’s hold over the Pakistani judiciary is explained by a reading of deep history. But there is no reason why colonial-era relationships should define the present of future of Pakistan. Carefully cultivated by the Raj, the institutional sisterhood between the army and judiciary in colonial India was shaped by the socio-strategic rationale of an extractive state. If Robert Clive was the conqueror with the sword and musket, Warren Hastings, British India’s first governor-general, was the architect of executive control over the judiciary. The legacy of what Hastings wrought is still evident in the region, more sharply in Pakistan.

The solidifying of the Raj began with the Regulating Act of 1773. This legislation not only made the East India Company responsible to the British Parliament, but also created the office of the governor-general, with four British councilors. A Supreme Court was simultaneously established in Calcutta, with a chief justice and three judges. In 1775, in perhaps one of the first recorded examples of a South Asian judiciary in service of the ruler, Sir Elijah Impey, the first chief justice, ordered the execution of an influential Brahmin named Raja Nand Kumar, who had accused Governor-General Hastings of taking bribes from the widow of Mir Jaffar and other officials. Hastings had then retaliated by using another Indian, one Mohan Parsad, to bring a case of forgery against Kumar, who was swiftly convicted and executed.

Charles Cornwallis, in power from 1786 to 1793, thereafter created tiers in the Subcontinent’s judiciary, by setting up provincial courts in Patna, Calcutta, Murshidabad and Dhaka, each under the charge of a British judge. Alongside this institutionalization of the judiciary, the governor-general, in a bid to strengthen the imperial structure of control, was empowered to override the majority of his council and act on his own. This historic law, passed in 1786, also enabled the offices of the governor-general and the commander-in-chief to be jointly held by the same official.

During the 17th century, the English philosopher John Locke had famously advocated for the separation of powers, in order to make the various organs of government accountable. But in India, this remained a significant bone of contention, even between British administrators.

A detailed study by the longtime British Library archivist Richard J Bingle on the governor-general, the Bengal Council and the civil service of 1800-1835 suggests that the most obvious source of leadership in this set-up was the acknowledged head of that government, the governor-general himself. This individual could now overrule his council, enforce his will on the subordinate presidencies, and could advance or hinder the careers of civil servants. Bingle notes that given these powers, the governor-general, surrounded by legions of subordinates, resembled “a general leading his troops or a politician leading a party”.

Executive machinations

Ironically, the absolute power vested in the representative of the crown in India during the 18th century was a significant deviation from the 13th-century Magna Carta, the English charter that required the king “to renounce certain rights, respect certain legal procedures and accept that his will could be bound by the law”. This blanket indemnity and centralized power given to the governor-general in India ultimately underpinned the later political and legal developments in the Subcontinent.

During the 17th century, the English philosopher John Locke had famously advocated for the separation of powers, in order to make the various organs of government accountable. But in India, this remained a significant bone of contention, even between British administrators. One of the most well-known instances of colonial power-mongering was that between George Curzon, the Indian viceroy, and Herbert Kitchener, who became commander-in-chief of the Indian Army in 1902. When General Kitchener began re-organizing the army, he used his new powers to deflate his longtime opponent, Curzon. Even as the latter wanted the position of commander-in-chief to be subordinate to that of the viceroy, the Indian Secretary of State, John Fremantle Brodrick, pushed for the commander-in-chief to report to his office. This tussle subsequently caused Curzon to resign from his post, and offered a prominent instance in which the military prevailed in its collision with the civil establishment.

The Rowlatt Acts of 1919 also provide for a greater understanding of the judiciary-executive interface in colonial India. After World War I, Frederic Thesiger, the viceroy at the time, appointed Justice Sydney Rowlatt chairman of a committee to look into purported links between political militancy in Punjab and Bengal with the governments of Germany and Bolshevik Russia. On the advice of that committee, the government subsequently passed the namesake legislation, under the auspices of which common citizens could be arrested for political offences and imprisoned without trial. The imposition of the draconian Acts triggered an angry mass movement across India, and the British administration eventually imposed martial law in several places. One of those was Punjab, where the bloodbath at Jallianwala Bagh in Amritsar took place just a month later.

Defining necessity

The legacy of intra-institutional conflict, military dominance in the sphere of governance, and colonial codification of law continued into postcolonial South Asia. Analyzing emergency and preventive detention in India, the British scholar J Duncan M Derrett suggests that a happy marriage between customary and English Common Law could have been worked out in the region as early as the 1950s, if the Subcontinent’s independence fighters had come to realize that the Anglo-Indian legal system they had inherited – and which to a certain degree had educated and prepared them for their fight – would not be as appropriate after the British departed. This prophecy was particularly applicable to Pakistan, which saw the resumption of the office of governor-general, filled by Mohammad Ali Jinnah, indicating the significance of the entrenched colonial architecture of autocratic rule. From 1947 to 1956, the country was headed by four governor-generals – Jinnah, Khawaja Nazimuddin, Malik Ghulam Mohammad and Iskandar Mirza.

Malik Ghulam Mohammad, then governor-general, dissolved Pakistan’s first Constituent Assembly in 1954, and imposed martial law. The speaker of the assembly, Maulvi Tamizuddin, challenged the decision, and although the Sindh High Court ruled in his favor, Chief Justice Mohammad Munir thought otherwise. In his verdict, Munir declared that it was necessary to ‘go beyond’ the Constitution – to what he claimed was the Common Law, as well as to general legal maxims and to English historical precedent. In his judgment, Munir relied particularly on two old maxims. The first was proffered by a medieval English jurist named Henry de Bracton, who wrote, “That which is otherwise not lawful is made lawful by necessity.” The second was from ancient Roman law, and suggested that, “The well-being of the people is the supreme law.” Munir’s verdict subsequently set the precedent for the infamous ‘doctrine of necessity’ as legal justification for all subsequent martial laws in Pakistan.

In a continuation of a ‘vertical’ power structure, Pakistan’s second imposition of martial law was declared by General Ayub Khan in 1958, and through the Laws (Continuance in Force) Order it was made clear that no writ could be issued against the Chief Martial Law Administrator, or anyone exercising powers or jurisdiction under his authority. Calling into question the proclamation itself, or any related order made by a special or summary military court, was prohibited.

When Pakistan’s fourth martial-law period was imposed by General Zia ul-Haq, on 5 July 1977, a whole host of legislation – including the proclamation of 5 July and all laws made thereafter – were declared instantly valid.

Martial law was next imposed in Pakistan in 1969 by General Yahya Khan. At that time, it was again pronounced that no judgment or order could be issued against the Chief Martial Law Administrator or his subordinates. It was stipulated that ordinances by both the president and governor were not subject to time limits, and, as with the previous martial law, no court could call into question the proclamation.

When Pakistan’s fourth martial-law period was imposed by General Zia ul-Haq, on 5 July 1977, a whole host of legislation – including the proclamation of 5 July and all laws made thereafter – were declared instantly valid. Judges who took their oaths under the provisional constitutional order (PCO), were subsequently bound by the provisions of the PCO, and could not question the validity of its provisions. Gen Zia’s actions also set in motion what is by now a longstanding tradition in Pakistan, of judges refusing to submit to the PCO. At that time, four Supreme Court judges and 11 High Court judges refused to take oaths under the new stipulations.

Pakistan’s fifth period of military rule came in 1999, when yet another PCO was promulgated by General Pervez Musharraf, who proclaimed a state of emergency and proceeded to assume the office of ‘chief executive’. The PCO maintained that all courts in existence would continue to function and to exercise their respective powers and jurisdiction – provided that the Supreme Court, High Courts and all other courts gave up the power to make any order against the chief executive. Again, six judges, including Chief Justice Saeeduzman Siddiqi, refused to take oaths under Gen Musharraf’s year-2000 PCO.

Judicial pragmatics

This long history of martial law notwithstanding, Pervez Musharraf has by now proven himself unique even in the annals of Pakistani military rule. On 3 November 2007, he gained the dubious distinction of becoming the first autocrat to have pronounced two PCOs during the course of his rule, the second taken as a pre-emptive measure to counter a probable Supreme Court verdict against his eligibility to run for president while still in uniform. The subsequent defiance of the judges and lawyers is now well known and applauded, with 63 out of 95 judges refusing to take oaths under the PCO – a move that has since virtually paralyzed the Supreme and High Courts.

Gen Musharraf, meanwhile, cultivated a new judiciary by picking up consenting judges, and technically secured legitimacy from this kangaroo court.

While the widespread lawyers’ movement throughout the larger part of 2007 for the restoration of judiciary certainly destabilized the Musharraf regime, mainstream political parties, dictated by the pragmatism of power politics, have remained cautious about fuelling the people’s resistance movement. Thus, over December 2007, the fervor was overtaken by election fever, and the lawyers’ movement gradually became more isolated.

Gen Musharraf, meanwhile, cultivated a new judiciary by picking up consenting judges, and has since technically secured legitimacy from this kangaroo court. But in so doing, analysts note that this incumbent judiciary has once again fallen back on the ‘doctrine of necessity’, reaching back to Henry de Bracton and Justice Munir, and has made it even easier for military adventurism in the future. Thus groomed under a certain kind of judicial pragmatism harking back to the colonial era – rule by law instead of rule of law – Pakistan’s judiciary has essentially been reduced to a role of an intermediary for martial rule. In so doing, it has become instrumental in validating institutional trespassing by the Pakistan Army.

The contours of a future politic, defined by institutional autonomy and separation of powers, are not currently visible in the Pakistani murk. Autocracy and despotism have gained more and more currency in the affairs of state. Today, the system continues to resemble the colonial set-up of old, with “the general leading his troops or a politician leading a political party”. The General Kitcheners of the future look set to continue to unashamedly take over the Lord Curzons of Pakistani politics. Meanwhile, internal colonialism continues to be deployed to perpetuate the elitist interest in Pakistani politics, and the masses, as modern subjects, continue to matter little.

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Amjad Bhatti is an Islamabad-based journalist and policy advisor with the Rural Development Policy Institute.

Courtesy: Himal Magazine (Published on Dec 10, 2008)

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