The best constitutions have no meaning unless they can be enforced by an independent judiciary, and an independent judiciary means a judiciary which is able to resist the pressures of governments and of public opinion.[22]

The judiciary is perhaps the most important pillar of the liberal democratic system. It must act as the ever-vigilant watch-dog over the executive, with a view to ensure that the rights of the people are not transgressed and trampled upon by an executive which rarely, if ever, misses an opportunity to be arbitrary and unfair. The ordinary citizen must be afforded fair protection. The judiciary is supposed to act as a restraint on any governmental excesses, particularly against the citizenry of the state. However, the successive governments approach towards the judiciary is to limit opportunities for correcting wrongs and redressing grievances. The strategy adopted to neutralize and even manipulate this vital organ of the system has been through undue control of the appointments procedure and undue interference through dubious and obviously ill-meaning amendments of the constitution.

Meddling with the judiciary is a tradition in Pakistan.[23] Every successive government of Pakistan seems to have the destruction of the judiciary high on its political agenda. The habit of meddling with the judiciary has been reinforced by the nature of Pakistan's recent governments. They have been either military -- which need the judiciary to give them legitimacy -- or weak -- which need the judiciary to give them strength.[24]

Barring President Agha Mohammad Yahya Khan, each head of state or government from Ayub Khan downwards, has done his utmost to weaken the judiciary. Zulfikar Ali Bhutto and his ruling People's Party, the progenitors of the present government, were the first to mount a frontal assault on the holders of judicial power.[25] In 1973, Mohammad Owais Murtaza, the District and Sessions Judge at Sanghar, was arrested in his court, handcuffed and then jailed. Evidently Judge Murtaza had granted bail to several of those arrested as he was lawfully empowered to do, much to the annoyance of Bhutto and his minions. In those days, Sanghar was the scene of considerable political conflict and various people were picked up and charged under the Defense of Pakistan Rules.

Only one year after the unanimous approval of the 1973 constitution, the first constitutional amendment was introduced on May 9, 1974 to amend the Article 199 which barred the judiciary from "issuing writs in the instance of a person who served in the armed forces of Pakistan, or who was for the time being subject to any law relating to any of those Forces, or in respect of any action in relation to him as a member of the armed forces or as a person subject to such law."

In 1975, by means of the Fourth Amendment to the Constitution, the power of the High Court under Article 199 for the grant of bail to a person detained under any law providing for preventative detention was taken away. The High Court was also denuded of the power to make an order prohibiting the detention of a person. Its power to grant a stay order against the government was confined to the span of 60 days only in relation to public revenue and other specified cases. In 1976 there followed notorious Fifth Amendment under which the grotesque provision was made that after a Chief Justice, whether of the Supreme Court or of a High Court, had held office for a period of five years, then notwithstanding the fact that he had not attained the age of retirement he was liable to be demoted to the status of an ordinary judge of his court or else forced to leave office. Suspending the rules of procedures, both these debilitating amendments were pushed through parliament, without discussion, in a matter of hours. However, in 1985 both were deleted by succeeding dictator Ziaul Haq, who had his own methods of dealing with the judges, for instance, the promulgation of the wicked PCO.

In 1981, the Provisional Constitutional Order (PCO) played untold havoc and inflicted misery not only on the judiciary but also on the citizens of Pakistan. By this device the executive made wholesale changes in the judiciary. Confirmed judges of the superior courts were relieved of their offices. Others were given the option either to take a fresh oath under the PCO or to relinquish their office. These were the days of martial law and like the rest of the country the judiciary too was held hostage.

President Zia's successor too violated his oath of office and manipulated the judiciary. Justice Qazi Jamil was the only judge of the Peshawar High Court who was not confirmed by President Ghulam Ishaq Khan apparently because of his verdict in the NWFP assembly dissolution case wherein the High Court set aside the order of dissolution and restored the Assembly and the cabinet. Another GIK victim was Justice Abdul Hafeez Memon of the Supreme Court, who was twice appointed during the PPP governments and twice not confirmed by the President.

The practice in Pakistan, contrary to the constitutional provisions in this regard, has developed to appoint 'Additional Judges' (under Article 197) and not 'Judges' (under Article 193). This is a device apparently used with the motive of ensuring a degree of control over the judges and to curtail their independence.

Article 193 of the constitution provides that a judge of the High Court is to be appointed by the President, after consultations with the Chief Justice of Pakistan and the Governor of the province concerned. Once appointed, he is to hold office till he attains the age of sixty-two years unless he sooner resigns or is removed in accordance with the constitution. This is the norm. There is, however, an exception to this rule, Article 197 provides that when the office of a judge is vacant or he is absent or unable to perform the functions of his office or it is necessary to increase the number of judges in a high Court, the President, following the Article 193 procedure, may appoint a person as an Additional Judge for a fixed period.

The power under article 197, as is apparent from its language, is to be exercised in a limited set of circumstances to meet a particular temporary need. It is not available for making appointments in the normal course. As is, however the case with all such powers granted by the constitution, the exception has become the norm. All governments in the recent past have made all appointments to the High Court under Article 197 instead of Article 193. When the term of the Additional Judge so appointed is about to expire, only then is he appointed as a judge of the High Court under Article 193.

Article 197 is used for purposes it was never meant to serve. The provision has been subverted by successive governments to suit their ends. It has become an expedient device for keeping the judges on probation during their formative years. The damage to the institution of the judiciary and its high traditions which is caused by this expedient use of Article 197 is enormous.

In August 1994, the Benazir government filled several long-standing vacancies in the four provincial High Courts. Of the 20 new judges appointed to the Lahore High Court, 13 were former activists in the ruling Pakistan People's Party, one of them a former minister (Saeed Awan against whom a murder case was pending). Three were supporters of the Muslim League faction which supports Miss Bhutto's coalition government. In November 1994, Miss Bhutto threw tradition overboard when she by-passed two senior judges and appointed Sajjad Ali Shah as Chief Justice of the Supreme Court. Mr. Shah was the lone dissenter in the 11-member bench whose decision restored Mr. Sharif to power in May 1993 after he had been booted out by the president a month earlier.[26]

The rulers generally kept vacancies in the higher judiciary in order to oblige favorites whenever an occasion arose for it or expediency so demanded. When Benazir Bhutto took over in November 1993, there were 34 vacancies in the superior courts: two in the Supreme Court, 17 in the Lahore High Court, 10 in the Sindh High Court, four in the Peshawar High Court and one in the Balochistan High Court. While thousands of cases were pending, what justification was there to keep these vacancies unfilled?[27]

The net effect of these policies, and the resultant performance of this organ has been that the entire system of dispensation of justice has become beyond the reach of more than 80 per cent of the citizens of this country. The conditions in the courts, the delays, the never-ending procedures, the costs involved, all present a very discouraging and even heart-breaking picture for any prospective litigant.

The system of justice has also been brought into disrepute by the introduction of parallel judiciary (i.e., the Federal Shariat Court whose judges can be laymen and whose appointment is solely at the discretion of the executive), and the establishment of courts that do not follow the procedure required by due process of law. Another factor that has undermined the status of the judiciary is that it has too often been called upon to adjudicate upon political issues, and its verdicts have not always been in accord with public understanding of the norms of democracy.[28]

 SUPREME COURT JUDGMENT ON JUDGES APPOINTMENT

The constitutional provision enabling the government to appoint judges on an ad-hoc basis was challenged in Supreme Court by Habib Wahabul-Khairi. The main burden of this case rested upon an interpretation of Articles 177 and 193 of the constitution. These articles state that appointments to the superior judiciary -- that is, to the Supreme Court and the four high courts -- are to be made by the President of Pakistan "after consultation" with the chief justices concerned. The principal question posed in this case was to what was the nature of the consultation envisaged by the constitution.: a formality which the government had to observe or something more substantial? On March 20, 1996, the Supreme Court issued a landmark judgment which leaves little room for doubt. The court held that the consultation "should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play."

The Supreme Court also directed the federal government to appoint permanent chief justices in higher courts where at present constitutional functions are being performed by acting chief justices appointed by the government. The Court ruled that the offices of chief justice and judges of the high courts normally should be filled immediately -- not later than 30 days -- but a vacancy occurring before the due date on account of death or for any other reasons should be filled in within 90 days on permanent basis. The SC judgment also upheld the rule of seniority in respect of the appointment of high court chief justices. The most senior judge has a legitimate expectancy to be considered for appointment as the chief justice and is entitled to be so appointed in the absence of any concrete and valid reasons to be recorded by the President/Executive, it said. The court observed that the posting of a sitting CJ of a high court or a judge to the Federal Shariat Court without his consent "is violative of Article 209, which guarantees the tenure of office."[29]

The major points of the Supreme Court judgment are:

• 1. The words "after consultation" employed inter alia in articles 177 and 193 of the constitution connote that the consultation should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the chief justice of Pakistan and the chief justice of a high court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive.
• 2. That if the President/Executive appoints a candidate found to be unfit and unsuitable for judgeship by the Chief Justice f Pakistan and the Chief Justice of the high court concerned, it will not be proper exercise of power under the relevant article of the constitution.
• 3. That permanent vacancies accruing in the offices of Chief Justice and judges normally should be filled in immediately, and not later than 30 days but a vacancy occurring before the due date on account of death or for any other reasons, should be filled in within 90 days on permanent basis.
• 4. That no ad hoc judge can be appointed in the Supreme Court while permanent vacancies exist.
• 5. That in view of the relevant provisions of the constitution and established conventions/practice, the most senior judge of a high court has a legitimate expectancy to be considered for appointment as the chief justice and in the absence of any concrete and valid reasons to be recorded by the president/executive, he is entitled to appoint such in the court concerned.
• 6. An acting chief justice is not a consultee as envisaged by the relevant article of the constitution, therefore, mandatory constitutional requirement of consultation is not fulfilled by consulting an acting chief justice except in case the permanent chief justice concerned is unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness.
• 7. That an appointment of a sitting chief justice of a high court or a judge thereof in the Federal Shariat Court under article 203-C of the constitution without his consent is violative of article 209, which guarantees the tenure of office. Since the former article was incorporated by the chief martial law administrator and the later article was enacted by the framers of the constitution, the same shall prevail and, hence, such an appointment will be void.
• 8. That transfer of a judge of one high court to another high court can only be made in the public interest and not as a punishment.

The Supreme Court verdict, which has both short and long-term implications, touched on two constitutional themes. First, the question of higher judicial appointments which has been used by successive governments to tame the judiciary. The issue has been the subject of an intense debate for over two decades. For many years, Bar Councils, Bar Associations, and human rights organizations have been demanding discontinuance of the practice of running High Courts with the help of acting Chief Justices. The ruling has the authority of law on the appointment of judges until the law is changed or is interpreted differently by the superior judiciary itself.

Second, the judgment provides opening for a new constitutional order by redefining the amended constitution in a manner conceived to promote a process of genuine democratization. The 1973 constitution, now in force, retains some features of the anti-democratic amendments which General Zia incorporated at the gun point. The Court struck down Article 203-C, (which provided for the transfer of judges to the Shariah Court) an amendment made by General Zia, on the ground of conflict with Article 209. The apex court has sought to erase or reduce the rigors of some of the non-democratic amendments, without parliament rescinding them. In a narrow sense, the Supreme Court has entered uncharted terrain.

Several constitutional experts have disagreed with the Supreme Court ruling on the binding recommendations of the Chief Justices for the appointment of judges. They argue that under any normative scheme of a harmoniously constructed constitution, the Chief Justices of the Supreme and High Courts cannot insist that the President record, in writing, his "very sound reasons" for not acting upon their commendations in regard to the appointment of judges. In effect, the argument is that the President, not the Chief Justices concerned, is the appointing authority. They also argue that, with the exception of a very few countries in the world, the appointment of the judges of the superior courts is always made by the Chief Executive. Some of the retired judges of the Supreme Court and High Courts argued that the Supreme Court, in its judgment, has acted beyond its jurisdiction and has gone to the extent of enacting the law rather than interpreting the relevant articles of the constitutions, whereas the enactment or abrogation of any article of the constitution is the sole prerogative of the legislature.

On May 19, the Supreme Court returned a constitutional reference, filed by the president three days earlier, against the apex court decision, saying it had not been signed by the President as required by the constitution. On the same day the federal government filed a review petition against the Supreme Court decision. On May 26, Supreme Court Judge Mir Hazar Khan Khoso announces his dissenting judgment which said that the President has the power under the constitution to appoint judges and that no time-limit can be fixed for filling in the permanent vacancies for judges in the superior courts. He also differed with the majority decision on the issue of consultation of the president with the acting chief justice and justified the appointment of additional or ad hoc judges, which had been ruled unconstitutional by the majority decision. On the transfer of judges to the Federal Shariah Court, Justice Khoso was of the view that the president was empowered by the constitution to transfer any judge to the Federal Shariah Court for a period of two years. The judge also supported the transfer of a high court judge to another high court. Similarly, he said there was no harm in appointing people having political affiliation provided he was a person of integrity.[30]

 SEPARATION OF JUDICIARY AND EXECUTIVE

The constitutional separation of the judiciary from the executive should have been enforced long ago but no government had been willing to do so since the executive was not willing to surrender its action of judicial scrutiny. The Judiciary in Pakistan has willingly or unwillingly, always been under the control of the executive. The framers of the 1973 constitution, fully cognizant of the fact that the liberty of citizens cannot be ensured and effective running of the government cannot be dreamed of without a judiciary free from all the pressures from the executive, made it incumbent upon the government to separate the judiciary from the executive within five years of the commencing day of the constitution, i.e. August 14, 1973. Before the act of separation could be completed, the civilian government of Zulfikar Ali Bhutto was overthrown by General Ziaul Haq in July 1977. The judiciary created to protect each and every provision of the constitution could do nothing when General Zia abrogated it and trod upon the powers of judiciary. It had to bow before the actions of an intruder and justify his cruel treatment to the constitution because it was not independent of the executive control.

The period prescribed for the separation elapsed on August 14, 1978, and from that day onward all the executive officers including the Commissioners, Deputy Commissioners and Magistrates were functioning unconstitutionally till March 2, 1985 when an amendment was made in the constitution to enhance the period of separation of judiciary from the executive from five years to fourteen years by a Presidential Order. In 1989 the High Court of Sindh directed the government to forthwith separate the judiciary from the executive. The federal government filed an appeal in the Supreme Court that was dismissed on March 31, 1993.

In October, 1993, the Supreme Court ordered to provinces to separate the two institutions by March 23, 1994 to fulfill this constitutional obligation. Instead of implementing the court order, the provinces in April 1994 filed separate review petitions in the Supreme Court requesting the court to extend the period. The provinces had been demanding extension on the plea that they were facing shortage of magistrates to implement the constitutional requirement. The former chief justice Nasim Hasan Shah took a serious view of the delaying tactics of the provinces and refused to give an extension. He said that any order passed by a magistrate after April 23, 1994 would be void.

Eventually on January 24, 1996, the Supreme Court rejected the provincial governments' request for extending the deadline and ordered them to separate the two institutions by March 23, 1996. While fixing the final and irrevocable date enforcing Article 175(3) of the constitution the court made it clear at the same time that there would be no further extension. The court also validated the judicial orders passed by the magistrates from March 23, 1994 which were declared void by the Supreme Court in April 1994.

However, though it was obvious that there would be no further escape from this decision, all the provincial governments were still reluctant to enforce it. The reasons for this were two-fold. The concentration of executive, judicial and revenue powers at the district level and below has been a feature of administration in the sub-continent for over a hundred years. Pakistani governments are therefore reluctant to part with a system which gives the administration a great deal of power. Secondly, there is resistance from the District Management Group cadre to this move because the loss of judicial powers will weaken the offices of the assistant commissioner and the deputy commissioner. Executive magistrates who exercise judicial powers, under the control and supervision of their deputy commissioners, are also against this move because much of their glory will be stripped from them when they lose the power to sit in judgment over criminal matters.

Powerful commissioners and district magistrates had a role to play and a purpose to fulfill in a colonial set-up where exigencies of administration took precedence over the requirements of justice or the demands of civil liberties. But a powerful district magistrate is an anomaly in present times when there is a growing demand for the administration of criminal justice to be improved so that the rights of citizens are not abused and, at the same time, the ends of justice are more swiftly and efficiently met. Executive magistrates who exercise judicial powers are first of all susceptible to being influenced in their judicial decisions by their executive superiors. What is equally reprehensible, the close working relationship that exists between the magistracy and the police works against the interests of public because in the matter of bail and remand magistrates lend a readier ear to the demands of the police than to the ends of justice.

On March 21, 1996, an ordinance was issued to formally separate the judiciary from the executive. The ordinance, however, created two types of magistrates - the judicial and the executive. The judicial magistrates were placed under the control of the High Court while the administrative magistrates will continue to work under District Magistrate. According to the ordinance, all crimes punishable with sentences of up to three years or more will be dealt with exclusively by the judicial magistrates, while executive magistrates will be allowed to entertain certain pre-defined crimes carrying a prison term of up to three years. The executive magistrates have been authorized to take up cases mainly pertaining to the law and order situations and certain local laws.

However, jurists have termed the logistics adopted by the government to separate the judiciary from the executive through an ordinance as against the spirit of the constitution which prohibits legislation through ordinance. On March 19, the National Assembly session was prorogued and called into session on March 24 again after the Legal reforms ordinance was issued on March 21. The jurists say that it was mala fide on the part of the government to prorogue the National Assembly session for the promulgation of presidential ordinances.

Later, the government introduced the Legal Reforms Ordinance as the Legal Reforms Bill in the National Assembly. Speaking on the bill, the former Law Minister, Syed Iftikhar Gilani, told the house that the present document was only a separation of functions between the executive and the judiciary and not really the separation of the two institutions. Pointing out the contradiction in the bill, Syed Gilani, said that under the new framework, while the deputy commissioner had no "technical" connection with an ongoing murder trial in a sessions court, he nevertheless had the power to declare any of the accused in the case as a state witness and thus taking him out of the purview of judicial prosecution. He said that despite the opposition's insistence, the government had not agreed to the scrapping of this power. [31] The National Assembly passed the Legal Reforms Act on April 15, 1996 amid bitter opposition criticism that the bill did not ensure the separation of judiciary from the executive as envisaged in the constitution.

 POLITICS OF FEUDALISM

The course of politics since independence has been determined and dominated by a small segment of society and nothing has happened during the half century of economic turbulence and social chaos to alter the class composition of the leadership, which still comes from the feudal-army-bureaucracy conglomerate. Feudal system in Pakistan continues to exist and flourish with all its evils and colonial legacies which has virtually disfranchised the bulk of the population by its monopoly of power. This system creates areas of oppressive influence for the feudal lords, particularly in the vast rural areas constituting 70 per cent of country's population. With only two per cent of the population the feudal lords are able to capture bulk of the assembly seats, thus denying the poor and middle class their legitimate share in the government.

From 1947 to 1970, 75 per cent of the members of our parliaments were feudals and the remaining 25 per cent who owed their parliamentary carrier to their place and position in the services and professions, had also come from a feudal background. The feudal families which had been discarded by the electorate in the impartial elections held in 1970 by General Yahya Khan returned to the assemblies in the non-party basis elections held by General Zia in 1985. Landowners captured 117 seats out of 219 contested seats while 42 went to businessmen, (for details see page 130) Long military rule and the prolonged suspension of political processes has enabled the Pakistani ruling elite to refine the art of social engineering. The feudal lords in collaboration with the military-civilian bureaucratic system have been able to determine whom to include and exclude from the development process.

Although our feudal lords are functioning within the framework of a democracy but the republican form of government had been republican in a very narrow and restricted sense. That form persists to this day even after we have had a series of elections, following the fall of Ayub Khan and the end of the Zia regime. Soldiers by profession, they were nonetheless landowners by heredity or acquisition.[32] The feudal lords have reinforced their power manifold by dominating industry, business and politics. Once the stronghold of the feudals, the national and provincial assemblies are now the property of both the landlords and the capitalists. Worse, the system has been consolidated by the induction of retired personnel of the armed forces and civil service into its ranks. Thus, feudal individuals, higher-echelon civil servants and the military establishment are tied into a single web. The system excludes the mass of the people from the concerns of the state and depends upon the loyalties and manipulations of a relatively small number of families and groupings. It breeds narrow relationships and discretionary favors, rather open and transparent system.[33]

Genuine and effective land reforms[34] have always been resisted by the feudal lords irrespective of the democratic or authoritarian nature of the regime. In times of army rule, feudals join the ruling junta to protect their system from being discontinued. And the junta acquiesces because it badly needs the feudal clout to keep the teeming millions in the rural areas from revolting against their dictatorial practices. And in times of democratic dispensation, the fat cats of the system, using their feudal hold on these very teeming millions return to the legislative assemblies where they see to it that no law is made to loosen the hold of the feudal system on the national economy.[35]

The elected representatives on either side of the aisle would, while quarreling with great passion and violence on non-issues, remain united on preserving the status quo. Sworn enemies share common ground against reform of land, labor, and taxation; against liberation of laws and the independence of judiciary; against devolution of power and distributive justice. The country's constitution was dangerously deformed by seven amendments, then an eighth one. One does not hear any more of abrogating even this last constitutional atrocity.[36] Worst of all, the feudals would not allow even a census, for it would certainly change the political balance. The last census was held in 1981.

Nominally, we have a parliamentary system of government. In fact, because of the underlying power structure, the system is anything but democratic. It takes a few million rupees to contest a seat in the National Assembly, votes are bought and sold. For all practical purposes, the people are largely disenfranchised. Parliamentary elections are a game of musical chairs among the rural and urban elite and their hangers-on.[37] For the common man and Haris living in the villages, therefore, it hardly amounts to any visible change in the operating conditions around them or any material difference in the quality of their life after the creation of Pakistan. The gap between the propertied and propertiless classes instead of narrowing, has widened still further