An interview i with Prof. Akmal Wasim, a lawyer and professor of law at the Hamdard University, on why the Supreme Court of Pakistan needs to exercise ‘judicial restraint’ after gaining judicial independence which was restored on July 20, 2007. Prof. Wasim is the son of the late Chief Justice of Pakistan Muhammad Haleem, who is known to have laid down the architectural foundation of public interest litigation in Pakistan.
On July 20, 2007, the Supreme Court (SC) of Pakistan held as unconstitutional the order of former President Pervez Musharraf suspending Supreme Court Chief Justice (CJ) Iftikhar Muhammad Chaudhry. The judicial crisis continued until 2009 ending two years of widespread protests, notably from the legal community, demanding the reinstatement of CJ Chaudhry. Two years after CJ Chaudhry was restored, the SC is now emerging as a powerful entity.
In recent years, the SC of Pakistan has been taking judicial action even on government policies. They have issued orders and summons to the country’s President and Prime Minister, to answer allegations of corruption, and so on. The SC’s action, however, divided the country on what ought to be the role of the judiciary. The legal community for instance, who fought hard for the restoration of the judiciary, now expresses concern over the court’s encroachment on other branches of government. People looking for expedient solutions to their problems, like litigants, are also concerned.
In this interview, we asked Prof. Wasim about his opinion on the state of Pakistan’s judiciary after it was restored in 2007:Since most of the country’s history is dominated by military and dictatorial regimes, the aspirations for judicial independence to become a reality have been very difficult. The country’s judicial history has been of either subjugation of its power, or a brief assertion of its power to a limited extent, even during martial law. Judicial independence has also been active during martial law. Thus, with this historical background, the effect of the 2007 restoration movement has raised important questions on what ought to be an independent Judiciary.
How do you think the people in Pakistan understand the actions of the Supreme Court these days? Do they see it as right or wrong?
It is a very interesting question because what you have pointed out goes to the very root problem of our social system, of our political system and how the Supreme Court is reacting today. I would not say in any particular way, but I would look at it as a natural reaction. From my humble and respectful view, it should be taken more soberly because what is happening today is something unique.
For one, the Supreme Court as an institution, for the first time, has actually become independent. As the Constitution of Pakistan directs, it is today holding that position of independence. That is very, very good for democracy.ii However, we cannot take up this question immediately without going back into the political history of Pakistan.
Pakistan initially had what we called the Federal Court. This court was working under the 1935 Act, inherited from the British colonial period, adapted by India and by Pakistan by way of the Indian Independence Act 1947. We find the first problem arising somewhere in 1954, when the judiciary submitted to the will or the desire of the Executive.
While the Constituent Assembly of Pakistan was drafting its first Constitution, there were different opinions on the powers of the Prime Minister. Amendments were made to the 1935 Act giving the Prime Minister all power. He/she could run the country similar to the concept of a western model of democracy. So Pakistan used this same principle, which ended up in the 1935 Act.
But while this was being done, the Governor General proclaimed emergency powers, and the Constitutional Assembly was dissolved. This is the first time that the Supreme Court validated an Act done through “proclamation.” This in fact was a very weighty issue and it heavily jolted the people.
When the courts validated the emergency proclamation, the entire focus of advocates, politicians and people was towards the judgment, but not to the crisis which generated the judgment. A few years later, we find another case where the imposition of martial law for the first time in Pakistan was again validated by the Supreme Court.
From 1972 to 75, we find the Supreme Court very vigorously refusing to validate any law that had been part of martial law. I think of it as the golden period of the Supreme Court, a time of its greatest honor. It was the time when the Supreme Court had shown its independence.In 1958 there was another case, known as the Dossa case. Later on, we find a martial law declaration being brought up in 1969. But this was one time that the Supreme Court stood up and said ‘No’. It was one of the most remarkable judgments even though martial law was over and a sovereign government was in place, headed by Shahed Zulfiqar Ali Bhutto. He was the leader who brought democracy, for the first time, to Pakistan in 1971-72.
And then, on July 5, 1977 the civilian government was toppled. This time the situation was different. This time, the Chief Justice and all of the senior judges, were part of the conspiracy in validating martial law. As a result they also committed the judicial murder of the Prime Minister of Pakistan. They created resentment and a serious concern in the people.
Prof. Wasim explains why the restoration movement was significant in upholding the independence of the judiciary, and the people’s struggle against the military dictators under the regime of former President Pervez Musharraf:
In 2007, we find judges asserting themselves; we find a new split arising. It was the period where they asserted their right to interpret the Constitution, an assertion of their independence as judges. Another area is the galvanization of the society with the development of ‘populism’. We must understand that ‘populism’ is quite different from a social movement.
From 2007, Pakistan had become a new country, a new society. So far as the issues of democracy and judiciary were concerned, I would say, civil society had become active, and very motivated. And here is where, in my view, problems began creeping in.
Today the Supreme Court asserts itself as an independent body, looking towards popular support, which could work both ways. The people are now looking at the Supreme Court as the panacea of their problems.
It is common knowledge that the people of Pakistan have suffered greatly, from the executive, from the judiciary and from other myriad authorities. People would run to anyone who comes forward offering them what they think is a ray of hope, because they are so frustrated. Life has becoming unlivable in Pakistan due to the economic and law and order problems they face.
For them, the Supreme Court has become a symbol. Relative to this symbolism, I would say that some sobriety is required; sobriety of the judiciary first of all.
It is very difficult, but the question is: should the courts go by what popular opinion demands from them? Or, should the courts go by established principles of law?We asked Prof. Wasim if it is possible to have an in-depth discussion on why the Supreme Court ought to exercise judicial restraint. The encroachment of the Supreme Court over the authority of the executive and legislative branches of the government is already undermining the gains it had made from the restoration movement.
As far as the Supreme Court is concerned, it is independent and it has the right to deliver judgment as it would.
Do you think the court is struggling for its survival, too?
Well, in certain ways I would agree. In other ways I would differ when it comes to populism looking towards popular opinion, especially when popular opinion is somehow trying to influence judgments made. This is a gray area because judges are not bound to popular opinion. They must go by the letter of the law.
We find this populism and this issue looking towards popular opinion during a very interesting episode in the American judicial history. We go back in time to the 1930’s in the U.S. when President Roosevelt was in power. The Supreme Court was comprised mostly of conservative judges. Laws promulgated by the Congress, to counter the effects of the Great Depression, were often struck down by the Supreme Court. To them, according to their judicial philosophy, President Roosevelt and the Congress were working against the interests of the people. However, the US Congress and the President had been elected by the people. So there came a point where it was a matter of public recourse.
We asked Prof. Wasim about the effects of the restoration movement, and how the idea of judicial independence and separation of powers is understood.
You mentioned that after the restoration of the Supreme Court in 2007, it was never as independent as it is now?
Yes. And the answer to your question would be that, this independence also requires a great deal of restraint. Because we are entering into the most fragile areas of democracy, we cannot afford friction between institutions. Today, the Supreme Court should be using what is generally termed as ‘judicial restraint’.
So why do you think that the Supreme Court does not observe judicial restraint?
When I look at the cases that the Supreme Court has taken up, I find that it is over- reaching its power. It’s crossing the line of the separation of powers. That should be avoided.
Do you think the concept of separation of powers is clearly understood by people in Pakistan?
Not by way of any contempt do I think that a temperate, critical appreciation or an examination is a must. We need to examine public policy, to examine how Parliament is working. In this day and age, I think that the Supreme Court must also be subject to academic scrutiny. It should be pointed out clearly what areas need to be addressed. One area is the over-reach of the court; the other is the separation of powers.Unfortunately not. We have very important and educated judges and retired judges who should look into this. Of course, they will be looking into this to pose their own views on the subject, because now is the time for debate.
So do you think this kind of discourse is coming forward in Pakistan now?
Not yet. We do find criticism taking place but not on an academic level.
I wish there were more debates about this. I wish academics would get involved in this area rather than relying on the influence of personality. Now, if we go by this logic, populism, and anyone who demands that another person be punished, sentenced or convicted, what impact will this have in terms of the law? I think it goes against the very spirit of the law. It goes against the spirit of justice.
Do you think that Pakistan’s history, from martial law and courts validating emergency powers perpetuating martial law, has had impact on how the separation of powers is understood?
Yes. The problem is, this issue of separation of powers has not been taken up. I cannot find it in the Constitution of Pakistan either. It was never there, this separation of powers, because this question of independence, as it is asserted today, is absolutely a new idea in Pakistan society. It is a new concept coming into Pakistan.
So this concept has to be taken up in its own context and addressed by everyone; all citizens should take up this issue for debate. Civil society is the most important of all. It now has to play a very important role. Intellectuals, professionals, journalists should also join in and have discourse on these vital issues.
iThis article is based on the interview conducted by Danilo Reyes, editor of article 2 and the transcripts by Liliana Corrieri, an intern of the AHRC, of Prof. Wasim’s talk during his recent visit in Hong Kong.
iThis interview was conducted before the Election Commission of Pakistan (ECP) began a selective exercise screening candidates on the criteria laid down in articles 62 and 63 of the Constitution.
