Pakistan’s Supreme Court has just forced Prime Minister Nawaz Sharif out of office on charges of corruption by him and his family. And now the judiciary has made it clear that it will investigate the maverick politician Imran Khan on the issue of his unaccounted for wealth. All of this is a good sign of the judiciary asserting its independence in a country where democracy has either been a tentative affair or has remained overshadowed by the overwhelming presence of the military in national life.
That the Pakistani judiciary has acted against an elected prime minister says something about the activism the judicial branch has been practising for quite some years now. One cannot but remember the war that broke out between General Pervez Musharraf and Chief Justice Iftikhar Mohammad Chaudhry in the days when the former had his dictatorial writ run all over Pakistan. The general tried to get rid of the judge. The chief justice came back with a vengeance and made life hell for the general.
It was not always like this, though. The history of Pakistan, both between 1947 and 1971 and later, remains testimony to the many ways in which its judiciary remained caught in the tentacles of undemocratic governance or was too willing to do the rulers’ bidding. The instance of Justice Mohammad Munir has always been an ugly symbol of how the judiciary has been willingly subservient to the regimes holding on to power at given periods in Pakistan’s history. The notorious doctrine of necessity that Justice Munir propagated to legitimize Ayub Khan’s 1958 coup d’etat remains a darkly shining example of how judges have often subverted prospects of democracy and have given military rulers the opportunity to hang on to power through means patently foul.
Justice Munir is on record, however, of subsequently — and that was decades later — admitting his blunder in putting forth the doctrine of necessity. In hindsight, he thought he had made a mistake. That acknowledgement came too late in the day. The problem for Munir was that he failed to take note of the good and morally upright men around him, judges willing to take a stand in the face of ferocious extra-constitutional rule. Justice M.R. Kayani was not one to suppress his emotions when it came to questions related to the rule of law. He mocked the Ayub Khan regime, which was of course one important reason why he did not go far. He did not rise to a higher position in the High Court or the Supreme Court. It did not matter, for Kayani knew that millions across the country shared his views on the dangers that a military regime represented for Pakistan.
Back in those days, Justice S. M. Murshed of the East Pakistan High Court was a brilliant example of the judiciary coming forth with men who could not only interpret the law but also make sure that coup makers did not swamp the land with their illegitimate authority. His defiance of the regime in 1961 when it tried to have the Tagore centenary celebrations abandoned remains an indelible part of history in our segment of the world. But that is not what you can say about Justice Mushtaq Hussain. Also known as Moulvi Mushtaq, chief justice of the Lahore High Court, he went out on a limb to accommodate General Ziaul Haq’s desires in the matter of the trial of Zulfikar Ali Bhutto on murder charges in the late 1970s. Zia’s publicly proclaimed intention to ‘hang the bastard’ was in brazen manner matched by the indignities Justice Mushtaq heaped on Bhutto in court. In the end, it was Pakistan’s judiciary that was laid low when Bhutto was sent to the scaffold. Judicial murder had been committed, blatantly and brazenly.
The story of the judiciary in Bangladesh is perhaps best encapsulated by the refusal of four judges of the High Court to have any truck with the Ershad military regime in the early 1980s. All four of them were dismissed by the military ruler and quickly turned into the nation’s voices of conscience. Men like Justice Syed Mohammad Hussain, Justice K.M. Sobhan, Justice Abdur Rahman Chowdhury and Justice Kemaluddin have been powerful symbols of defiance of military regimes imposing themselves on the country. Back in early March 1971, Justice B.A. Siddiky earned the Bengali nation’s gratitude by refusing to swear General Tikka Khan in as governor of a restive East Pakistan. He could not, however, sustain his courage. Once the Pakistan army launched its genocide of Bengalis at the end of the month, Justice Siddiky swore Tikka Khan in. He could have refused to do so. He did not.
Pakistan’s Supreme Court may have shown Nawaz Sharif the door. But the landscape of the country’s judicial past remains littered with the remains of judges who could have done better. Justice A.R. Cornelius, a respected Christian, ended up as an advisor to General Yahya Khan. In Bangladesh, the stories of judges genuflecting before political illegitimacy or not being bold enough to snub coup makers and putting them in their place are many. Justice Abu Sadat Mohammad Sayem, who at one point and through a twist of circumstances became Bangladesh’s President, did not feel it advisable to refuse to swear in Khondokar Moshtaque as the country’s President on the morning of the assassination of Bangabandhu Sheikh Mujibur Rahman. In April 1977, President Sayem did not exercise his authority as head of state and government to resist General Ziaur Rahman’s demands that he quit office and hand it over to him. General Ershad, in his time, placed Justice Ahsanuddin Chowdhury at Bangabhaban once he had President Abdus Sattar overthrown in a coup in March 1982. Months later, Ershad stripped Chowdhury of office and took the job himself.
India’s judiciary sent the country spinning into turmoil through its move to strip Prime Minister Indira Gandhi of her membership of the Lok Sabha in 1975. The immediate consequence, unintended of course, of the judgement on a case filed by Raj Narain was the imposition of a state of emergency in the country. The ramifications of that move were to be far and wide.
And so the stories go on. Seriously, though, how much of a hand did the Pakistani military have in the removal of Nawaz Sharif from office? To what extent did judicial overreach come into play?
Reasonable questions. Who comes up with the answers?