Independence of the judiciary in Pakistan

    In Pakistan, lawyers and their organisations have been active in the struggle for a Constitutional Democracy and Rule of Law for a long time. The first such struggle was initiated countrywide by the bar associations at Lahore, Karachi and Dacca in the early sixties after the country’s first martial law was imposed in 1958. Though short lived, since it was taken over by political parties, this movement was launched at a time when bar councils had not even come to exist yet.


    A longer, better organized movement spearheaded by lawyers that initiated in the early 1980s against the country’s second martial law imposed by General Zia in 1977. This was at a time when political parties were banned and a provision had also been introduced in the Bar Councils and Legal Practitioners Act prohibiting any Political Activity by bar councils and bar associations.

    In 1980, a Lawyers’ convention was attended by over 2000 lawyers in Lahore that resolved to organize a Pakistan wide movement against Martial Law and for return to democratic rule. This was at a time that Zulfikar Ali Bhutto, the over thrown Prime Minister had just been hanged on the orders of a puppet Supreme Court, public hanging of certain convicts had been ordered, Summary Military Courts had been established in all important towns which would hold their proceedings by the roadside trying those accused of violating Martial Law and flogging them on the spot when convicted.

    The convention decided to break the ban on street demonstration and a procession was taken out. Several lawyers were arrested. Similar conventions were held in Karachi, Peshawar and Rawalpindi and the movement developed into an almost daily agitation. This happened even though there was no political support because political parties were banned, there was no independent media and there was yet no central body of lawyers body (such as the Supreme Court Bar Association). A National Coordination Committee of representative lawyers was established to lead this movement. Arrests and detentions were made and some lawyers remained in prison for over a year. The agitation was called off when the constitution was restored, albeit in a compromised, amended form with General Zia retaining the power to dissolve the elected parliament and dismiss the government.

    The movement which started in March 2003 was a reaction to General Musharraf’s attempt to get rid of the Chief Justice of Pakistan by filing a frivolous reference against him before the Supreme Judicial Council and passing an order suspending him till the reference was heard and decided. This action was taken after the CJ refused to resign voluntarily during a meeting with Musharraf in the presence of several other generals. The CJ had become a thorn because he had passed orders in certain sensitive cases that didn’t please the establishment especially in cases relating to “missing persons” thought to have been kidnapped by Pakistani intelligence agencies for investigation into their possible “terrorist links” and of whom, a number were handed over unlawfully to the US against monetary reward.

    The movement which originally began as a lawyers agitation soon attracted the attention of broader sections of Civil Society and the media. It was widespread, but mainly urban. Lawyers practicing in the lower courts in the districts and sub-divisional towns fully participated. The frustration and disenchantment from Musharrafs’ failed dictatorial system contributed immensely. The main slogan, besides the one for restoration of the Chief Justice, was ‘Go Musharraf Go’. The Chief Justice was restored on 22-07-2007 by the order of an 11 members bench of the Supreme Court which quashed the reference filed by Musharraf as mala fides when it was challenged before it by the CJ.

    The second phase of the movement began when on Nov 3rd 2007, Musharraf as Chief of Army, issued a proclamation of emergency i.e martial law. The Constitution, which had already been amended (17th amendment) by a pliable parliament to accommodate Musharraf as President and General simultaneously, was suspended and a Provisional Constitutional Order was issued by him giving himself power to further amend the Constitution. All this was done because the Supreme Court was about to decide a case that called in question Musharraf’s second, impending election as President while still a General. About 60 superior court judges including most judges of the Supreme Court refused to take oath of allegiance to Musharraf and were therefore removed while people faithful to him were invited to take that oath and become judges. The courts were packed by such judges also derogatorily known as “PCO Judges”.

    The movement now became directed against Musharraf, the PCO and the emergency declaration with emphasis on restoration of the superior courts to their pre 3rd November position. This time it was more vigorous and was fully supported by the media, Civil Society and the opposition political parties while the mainstream parties i.e the PPP and PML(N), also half heartedly supported it. It may be mentioned that the mainstream parties particularly the PPP, used the movement for pressurizing the regime for a settlement and for return of their leadership to Pakistan. Benazir and Nawaz, the main leaders, were in exile at that time. As a consequence of the movement, which was growing it seemed the regime would be overturned. The US intervened, helping the negotiations between Benazir Bhutto and Musharraf, so that its (the US’s) interests remained well protected. For the US, the Musharraf, regime was the mainstay of its policy on the so called war against terror and its expedition in Afghanistan and the border areas of Pakistan’s west.

    The movement secured a major success when the regime was forced to hold elections on 18th February 2008. Before that, however, under a US negotiated deal Benazir Bhutto and Nawaz Sharif were allowed to return to Pakistan. Bhutto’s popularity and public support scared many and she was predictably killed while leaving a public meeting in her car.

    The election results gave the PPP and PML (N) a strong mandate and rejected Musharraf supporters completely. A new coalition Government was installed while Musharraf—having been elected a second time after the ouster of the real Supreme Court—was still the President. The changes brought by Musharaff on Nov 3rd were also still in place.

    The movement, however, continued asking for reversal of Nov 3rd actions and restoration of judges. A long march call by lawyers through the length of Pakistan was a huge success. Thousands of lawyers supported by hundreds of thousands from among the general public culminated at Islamabad. A sit-in by the participants of the long march had earlier been planned but was called off at the last moment, largely for organizational reasons and also in part because the lawyers’ leadership decided that it was perhaps best not to take a democratically elected new government hostage to a sit in so soon after its election especially when it already promised to undo Musharraf’s acts. The call off, however, was a set back to the movement which continues to date but in a changed context. The principal government party (PPP) and its supporters have kept away from the movement. Several laid off judges have been offered and have accepted new appointments under the constitution. The Chief Justice and a few other judges have, however, been resilient and have not accepted any offers unless the judiciary is restored in its entirety to the pre November 3rd position.

    The Democratic Lawyers Association (D.L.A) was and remains in the forefront of the lawyers’ movement. Besides direct physical participation the DLA organized seminars at Karachi and Lahore highlighting the significance of the movement’s political and constitutional aspects. The DLA has asserted that democracy, without an independent Judiciary is unacceptable and that the constitution must be purged of all the changes made in it by army dictators. The DLA is also of the view that the movement’s base must be broadened by attracting the general public and also entities such as the students and trade unions.

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