role of tire judiciary in maintaining rule of law in pakistan

ROLE OF TIRE JUDICIARY IN MAINTAINING RULE OF LAW IN PAKISTAN ROLE OF TIRE JUDICIARY IN MAINTAINING RULE OF LAW IN PAKISTAN By Dr. Nasim Hasan Shah Retired Chief Justice of Pakistan [Paper presented at the International Conference held on August 29, 1997 at WAKE FOREST UNIVERSITY, N.C. on "Pakistan: Fifty Years as a Nation".] The journey of Constitutional rule in Pakistan has indeed been a stormy one. Soon after the establishment of the State of Pakistan, the country was beset by one Constitutional crisis after another. The news that a proclamation of emergency has been declared in a Province on the ground that its constitutional machinery had broken down and Governor's rule enforced or the Chief Minister dismissed for maladministration and replaced by another, unfortunately became a common phenomenon. Graver Constitutional crisis followed. The body charged with the framing of the Constitution‑‑‑the Constituent Assembly‑‑ was itself dissolved by the Head of the State leading to a battle royal in the Superior Courts. Constituent Assembly Dissolution The grave constitutional crisis which overwhelmed the country on October 24, 1954 when the Governor‑General dissolved the Constituent Assembly and dismissed the Prime Minister alongwith his Council of Ministers ultimately ended in the lap of the Federal Court and the Court became responsible for determining the validity of these actions. The President of the Constituent Assembly Moulvi Tamizuddin Khan instituted proceedings in the Court to question this action of the Governor‑General. Any ruling on this controversy, a controversy which involved grave political implications, was a task of the highest sensitivity. This delicate and difficult task which fell on it required judicial statesmanship but consistent with its role as a Court of Law it was resolved strictly in accordance with the legal procedures. The Court found that the challenge to the action taken by the Governor‑General was made through a petition which was instituted under a law (section 223‑A of the Government of India Act) which itself was not a competent piece of legislation, inasmuch as the said section 223‑A was introduced by amending the Government of India Act, 1935 (as adapted to Pakistan and the functioning country's interim Constitution), without the assent of the Governor‑General and therefore, could not be deemed to have become a valid part of the Constitution and hence no action could validly be taken in pursuance of the petition filed under its provisions. By this decision, the question whether the Governor‑General was authorised and could legally have dissolved the Constituent Assembly was postponed to more propitious times. [Federation of Pakistan v. Maulvi Tamizuddin Khan PLD 1955 FC 240.] However when the Governor‑General thereafter promulgated an Ordinance purporting to set up a new Constitution making body, the Court found that the Governor‑General had no competence to legislate in the Constitutional field and declared the aforesaid Ordinance to be beyond his competence. [Usif Patel v. Crown PLD 1955 FC 387.] Thus hardly within a week of its decision in Tamizuddin's case the Court clarified in clear and unambiguous terms, that the Governor‑General's power to promulgate laws extended only to the promulgation of ordinary laws which the Legislature could enact in its ordinary law making capacity but that he had no power to make laws pertaining to the Constitution of the country, which power vested exclusively with the Constituent Assembly. This decision resulted in the Governor‑General making a Reference to the Federal Court seeking its advice as to how the crisis regarding the setting up of the new Constituent Assembly to replace the Constituent Assembly which had earlier been dissolved could be resolved. Governor‑General's Reference The Court in answering this Reference, while upholding the dissolution of the earlier Constituent Assembly on the ground of necessity, went on to lay down the principles for setting up of the new Constituent Assembly namely, that it should be established consistent with the provisions of the Indian Independence Act, 1947. In so doing the Federal Court succeeded in restoring the rule of law in a situation where the executive fiat appeared all pervasive and made possible the revival of a Constituent Assembly on the same lines as was envisaged in the Indian Independence Act, 1947. Indeed the enactment of Establishment of West Pakistan Act, 1955 and the framing of the first Constitution of Pakistan, namely the Constitution of the Islamic Republic of Pakistan, 1956 were the handiwork of this Constituent Assembly. Unfortunately, this Constitution which emerged after so much controversy and was framed by representatives of both the wings of Pakistan was destroyed by the military commander, egged on by a civilian President (who styled himself as a Major‑General) [Major‑General Iskinder Mirza.] only two years after it came into force and was abrogation on October 7, 1958. Court's Role during Martial Law With the abrogation of the Constitution on October 7, 1958 and the imposition of Martial Law all representative institutions were abolished and the whole country placed under Martial Law to be administered by the Chief Martial Law Administrator. The nation was plunged into gloom and depression. The people were weighed down by the thought that a period of lawlessness had descended upon them. But in this hour of despair and darkness the Courts again acted to ensure some sort of rule of law and prevent the rule of lawlessness. Within a period of three weeks of the promulgation of Martial Law in a case coming before it the Supreme Court after holding that the new dispensation ushered in by the Martial law Government (which it described as the Revolutionary Government) was legal, on the principle that the new legal order created by a victorious revolution was itself a law creating fact. Although the correctness of this doctrine was doubtful nonetheless it ensured governance according to law rather than on the fancies of a Military Commander. This new dispensation was the President's Order 1 of 1958 and called the Laws (Continuance in Force) Order, 1958 promulgated on 10th October, 1958 issued in pursuance of, the Proclamation of Martial Law 7th October, 1958.[ President's Order (Post Proclamation) No.1 of 1958: Laws (Continuance in Force) Order, 1958.] According thereto Pakistan was "to be governed as nearly as may be in accordance with the late Constitution (of 1956)" except to the extent where its provisions were modified through an express order by the President or a Regulation issued by the Chief Administrator of Martial Law. [Laws (Continence in Force) Order, 1958, "Article 2.‑‑(I) Notwithstanding the abrogation of the Constitution of the 23rd March, 1956 hereinafter referred to as the late Constitution, by the Proclamation and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution. "] Thus even though the doctrine propounded by the Supreme Court in the case of Dosso [State v. Dosso PLD 1958 SC (Pak.) 533.] namely that "victorious revolution was itself a law creating fact" was of doubtful validity its positive effect was that even during the entire period of Martial Law the country continued to be governed under a legal instrument, in accordance with rules and not by the whims of Military Commanders. The above aspect was adverted to by the Court itself a few months later in the case of Mehdi Ali. Khan Panni [Province of East Pakistan v. Muhammad Mehdi Ali Khan Panni PLD 1959 SC (Pak.) 387.] when it said:‑‑ "During the past nine months, it has clearly appeared that the provisions of the late Constitution are indeed being observed, not as a mere matter of courtesy or of merely general guidance, but that in actual practice, where the provisions of the late Constitution are applicable in their terms to matters arising for Governmental action, they are being applied, according to their terms. Equally as a matter of practice where in the circumstances a variation is desired it is supported by the authority of a Presidential Order for a Regulation of the Chief Administrator of Martial Law as the case may be. Where, on the other hand the case is one of application of the provisions in the altered conditions, it seems that discretion is exercised by the executive authorities in making the necessary adaptation to suit the changed circumstances. This degree of adherence to the provisions of the late Constitution at all levels induces me to make the observation that perhaps the words 'shall be governed as nearly as may be in accordance with the late Constitution' have been somewhat undervalued on the last occasion when they were brought up before this Court for examination. The full power and purpose of these words may not have been appreciated at that early date. They may indeed be an indication that the Martial Law under which the country was placed by the President's Proclamation of the 7th October, 1958 is different in essential respects from the ordinary conception of Martial Law." The conclusion was expressed thus The words "shall be governed in accordance with the Laws (Continuance in Force) Order, 1958" are mandatory in expression as well as in effect and by saying that the provisions in question shall be operative subject to specified written instrument issued by the highest authorities of the new regime, the value and force of the words in which these provisions are embodied in the late Constitution is certainly raised in a legal sense much beyond that of words in mere book of reference." The value and force of these words was underscored in the subsequent case of Khuhro. [Muhammad Ayub Khuhro v. Pakistan PLD 1960 SC 237.] In that case the appellant, Muhammad Ayub Khuhro, who was the Defence Minister of Pakistan immediately before the Proclamation of Martial Law, had been arrested just two days after the Proclamation of Martial Law on a charge under the Hoarding and Black Market Order, 1956. He was, therefore, put up for trial before a Special Judge for offences under the aforesaid Hoarding and Black Market Order of 1956 as also under Martial Law Regulation No.26 read with Martial Law Regulation No.5. [Martial Law Regulations by the Chief Administrator of Martial Law, Pakistan, Regulation 26; "26. No one shall indulge in 'Black Marketing' of any commodity of goods maximum punishment 14 years' rigorous imprisonment. " "Regulation 5. Any person who attempts or abets the contravention of any of these Regulations shall be punished as if he had contravened that Regulation. "] The charge under the Black Market Order, 1956 was, however, separated and not pursued but the charge under the Regulations was pressed. On conclusion of the trial Khuhro was found guilty under these Regulations and was awarded a sentence of 5 years' regorous imprisonment and a fine of Rs.1,50,000. His petition challenging the conviction and sentence before the High Court was dismissed on the ground that the High Court's jurisdiction in this matter was barred as the proceedings held by the Special Judge were subject to the incident of confirmation, under Martial Law Order No. 10. On the matter coming up on appeal before the Supreme Court the question arose whether the High Court was right in holding that its jurisdiction was indeed barred. The reasoning of the High Court in holding that it did not have jurisdiction was that as the proceedings and determination of the Special Court were subject under the Martial Order No. 10 to confirmation by the Deputy Administrator of Martial Law, any interference therewith would amount to questioning the Martial Law Order 10 itself. It had also found that Martial Law Order 10 was in law a "Regulation" within the meaning of Article 2(1) of the Laws (Continuance in Force) Order, 1958 and as such could take away the jurisdiction of the Supreme Court and the High Courts. This view was negatived by the Supreme Court which held that the word "Order" (with capital O) wharever it occurred in the Laws (Continuance in Force) Order, 1958 meant a body of rules or an order of general nature such as "a conferment of jurisdiction of authority" and not merely an order made in any particular case. It was further held that with the and after the promulgation of the Laws (Continuance in Force) Order, 1958 the distinction between a Martial Law Regulation and Martial Law Order became fundamental in so far as the jurisdiction of the Court to entertain and determine the matter remained intact unless taken away by a Martial Law Regulation and not merely by a Martial Law Order. The Supreme Court further observed that in any event in this case it was not the validity of Martial Law Order No.10 that was being questioned in the High Court but the order (with small o) of confirmation made under Martial Law Order No. 10. Since calling in question an order made under and in pursuance of a Martial Law Order was different from questioning the Martial Law Order itself (questioning of latter being prohibited but not the former), the Court's jurisdiction to examine and determine the validity of the order of conviction passed by the Special Judge was not barred despite it having been confirmed by an order of Deputy Administrator of Martial Law. [Martial Law Orders by the Chief Martial Law Administrator, Pakistan, Order 10: "10. Proceedings of cases under the Martial Law Orders and Regulations by the Criminal Courts, after confirmation by the Administrators, will be forwarded to Judge/Advocate General, General Headquarters, Rawalpindi for final review."] After having found that it had the jurisdiction to examine the matter the Supreme Court then proceeded to examine whether the order passed by Special Judge was sustainable or not? In this connection it found that the order of the Special Judge was not valid because he was not authorised, in law, to take cognizance of and try an offence under Martial Law Regulation 26 read with Martial Law Regulation 5. Since he did not have the competence to take cognizance of this matter the order passed by him was therefore a nullity. Hence there was nothing in law to be confirmed. by the Deputy Administrator of Martial Law. The Supreme Court, accordingly, accepted Khuhro's appeal, quashed the order of conviction and sentence passed against him and set him at liberty. Here we find the Supreme Court giving mandatory effect to the terms of the Laws (Continuance In Force) Order, 1958 and on finding that its provisions had been contravened, invalidating the action taken contrary to its terms. Soon, thereafter a Full Bench of the High Court held that it had jurisdiction to interfere with orders passed by persons acting as Martial Law Authorities who exercised powers not under the authority of the Chief Administrator of Martial Law. It observed that since the immunity to interfere with orders passed by the Chief Administrator of Martial Law or the Deputy Chief Administrator of Martial Law or "any person exercising powers of jurisdiction under authority of either" was alone barred, by clause (5) of Article 2 of the Laws (Continuance in Force) Order, 1958, and that in this case the order impugned before it were orders passed by persons exercising powers not under the authority of the Chief or Deputy Chief Administrator of Martial Law but under ‑the authority of a Zonal Martial Law Administrator; the said orders were not immune from challenge before it". The seeds planted by these decisions saw their full flowering a few years later when the Supreme Court, in the case of Muhammad Afzal, was able to declare: [Gulab Din v. Major A. T.Shaukat PLD 1961 Lah. 952.] "That the Laws (Continuance in Force) Order, 1958 which was intended to be and was a Constitution given to the country by the victorious Revolution was a Constitution for all, including the law giver for, indeed had not the law‑giver himself proclaimed that it would govern the country in accordance with its provisions and that the Martial Law that would prevail thereafter would be no negation of law but the orderly Martial Law which would govern the, country in accordance with the prime law given by it". [Muhammad Afzal v. The Commissioner, Lahore Division PLD 1963 SC 401.] Acting on the principle that the Laws (Continuance in Force) Order, 1958 had continued in force all the existing laws, which could not be altered except by the Chief Martial Law Administrator (the President), a large number of Orders promulgated by a Zonal Martial Law Administrator were struck down on the ground of inconsistency with several existing laws on the ground that his orders could not have the effect of altering the existing laws. The impugned orders of the Zonal Martial Law Administrator being inconsistent with the prevalent existing laws were therefore held to be without authority since it was only the orders issued by the Chief Martial Authority (the President) that could have had the effect of overriding them and not the orders of a Zonal Martial Law Administrator. 1962 Constitution and the Rule of Law After lifting of the Martial Law of 1958 and the promulgation of the new Constitution of 1962 the Court had to examine the legality of a Presidential Order titled "Removal of Difficulties (Appointment of Ministers) Order, 1962". By this Order the essential principles on which the said Constitution of 1962 was based were sought to be altered. The Supreme Court had no hesitation in finding that the Removal of Difficulties Order issued by the President was without lawful authority and observed that it (the Court) was under a duty and obligation to protect, uphold and defend the Constitution and to see that it was not tampered with by any authority howsoever high. Finding that the Order allowing Ministers to retain their seats in the National Assembly after accepting the Office of Minister was not within the powers of the President, it declared the said Order to be bad in law. This ruling was given in the case of Fazlul Quader Chaudhary.[ Fazlul Quader Chowdhry Muhammad Abdul Haque PLD 1963 SC 486.] In the aforementioned case the question was whether Members elected to the National Assembly, who had accepted Office of Ministers, lost their seats in the Assembly on account of the provisions of Article 104 of the Constitution, 1962. This Article provided, inter alia, that should an elected member of an Assembly be appointed a Minister or to any other office of profit, he shall, on the acceptance of such office, forthwith cease to be member of the Assembly if he became a Minister. This disability of elected members losing their seats in the Assembly was sought to be removed by promulgating the Removal of Difficulties (Appointment of Ministers) Order (34 of 1962). Another member of the Assembly, Muhammad Abdul Haque, questioned the said order as being ultra vires of the Constitution of 1962. This challenge was upheld and the aforesaid Order was declared ultra vires of the Constitution and the supremacy of the Constitution was given effect to and fully preserved. Another important case manifesting the Court's anxiety to maintain the Rule of Law in the country is the case of Maulana Maudoodi. [Abul A'la Maudoodi v. Government of West Pakistan PLD 1964 SC 473.] In this case certain provisions of Criminal Law (Amendment) Act, 1908 authorising the Provincial Government to declare an association unlawful if, in its opinion it has for its object interference with the maintenance of law and order, fell for interpretation and the important question to be decided was whether the validity of the "opinion" formed by the executive authorities which was to form the basis of the further action namely, the declaration of the association as unlawful, was subject to judicial review? Answering this question the Court observed:‑‑ "...it is a duty of Provincial Government to take into consideration all relevant facts and circumstances. This imports the exercise of an honest judgment as to the existence of conditions in which alone the opinion may be formed ...In this process, if the section be construed in a comprehensive manner, the requirement of an honest opinion based upon the ascertainment of certain matters which are entirely within the grasp and appreciation of the Governmental agency is clearly a prerequisite to the exercise of the power. In the period of foreign rule, such an argument i.e. that the opinion of the person exercising authority is absolute may have at times prevailed, but under autonomous rule, where those who exercise power in the State are themselves citizens of the same State, it can hardly be tolerated." The "opinion" which formed the basis for taking the action of declaring the Jamaat‑i‑Islami as an unlawful association was found to be untenable on any objective criteria. Accordingly the aforesaid action taken by the Government pursuant to the opinion formed on subjective considerations was quashed. The Court's anxiety to safeguard the liberty of the citizens was again demonstrated in the case of Ghulam Jilani v. The Government of West Pakistan [Ghulam Jilani v. Government of West Pakistan PLD 1967 SC 373.] Here the question was whether the assertion made by the detaining authorities that it was "satisfied" in terms of Rule 32 of the Defence of Pakistan Rules that the detention of Ghulam Jilani was expedient in public interest was or was not subject to judicial review? The Supreme Court opined that the word "satisfaction" must be a state of mind that has been induced by the existence of "reasonable grounds" for such satisfaction. It accordingly, held that "the power for an authority acting under Rule 32 is, therefore, no more immune to judicial review". This finding was a significant breakthrough by the judiciary in cases involving detention of citizens as the Pakistan Supreme Court was making a clear departure from the view earlier expressed by the House of Lords in Liversidge's case (LR 72 IA 241) and followed by Courts in India and Pakistan, namely, that the "satisfaction" of detaining authorities being a subjective matter could not be scrutinized on the touchstone of objective considerations. Another Martial Law In March, 1969 the country was again placed under Martial Law and the Constitution of 1962 was abrogated. But after the fall of East Pakistan on 16‑12‑1971 and its secession from West Pakistan, Gen. Yahya Khan (the Army Chief who had imposed Martial Law) was forced to abdicate and Mr. Zulfiqar Ali Bhutto the leader of the majority party in West Pakistan became the country's first Civilian Martial Law Administrator, continuing as such till the Interim Constitution of 1972 was enforced on April 20, 1972. During this period of Civilian Martial Law (December 16, 1971 to April 20, 1972) the Courts passed two notable judgments. In one Yahya Khan was held by the Supreme Court to be a usurper and in the other the High Court punished an Army General for contempt of Court. The first case is of great importance. On 20th April 1972, just one day before the promulgation of the Interim Constitution of 1972 and the lifting of Martial Law the Supreme Court while delivering judgment in the case of Miss Asma Jilani [Asma Jilani v. Government of the Punjab PLD 1972 SC 139.] (who had challenged the detention of her father under Martial Law Regulation 78 promulgated in pursuance of the Martial Law imposed by General Yahya Khan) once again examined the question of the validity of the aforesaid Martial Law. Dissenting from the earlier view expressed by it in the case of Dosso it held that the Martial Law imposed by General Yahya Khan was illegal and that Gen. Yahya Khan was a '"usurper" in that he had by illegally proclaiming Martial Law usurped the powers of Government. Martial Law Regulation No.78 issued by him in pursuance of the aforesaid proclamation of Martial Law was, therefore, void and of no legal effect. As a result of this judgment all punitive and repressive actions taken during the Martial Law period, whose effects were still continuing, came to an end and ceased to have effect. The Court, through this pronouncement, also tried to deter future Army Chiefs to proclaim Martial Laws on the assumption that they could escape the consequences of abrogating the Constitution on the plea that the success of their action (revolution) created its own legality and would make them the new law givers. Under the ruling in Asma Jilani's case they were to be treated not as law givers but as usurpers. Contempt of Martial Law In the same period of Civilian Martial Law a blow was also struck in favour of Rule of Law by a Full Bench of the Lahore High Court though in somewhat unusual circumstances. Major‑General A.0. Mitha, and Area Commander during Yahya Khan's Martial Law shortly after its proclamation on 4‑6‑1969 issued a notice to two serving Judges of the High Court to show cause why proceedings should not be initiated against them for "contempt of Martial Law". The reason for taking this extraordinary action was that the said two Judges had had the temerity of calling upon one Lt.‑Colonel Muhammad Shafi Durrani who was assigned to Martial Law duty, to explain under what authority he had acted in ordering a civilian to pay back some money that had allegedly been taken by him from another civilian) (the receipt of which he was denying). The High Court had called upon the said Lt.‑Colonel to apprise them of the authority under which he was acting in this purely commercial dispute as the matter in question had apparently nothing to do with the objects of Martial Law. This demand by the High Court so enraged Gen. Mitha (who was the Commanding Officer of the area in which this Colonel was acting) that he called upon the concerned Judges of the High Court to show cause why action should not be initiated against them for bringing Martial Law into contempt. A serious crisis between the Army and the Judiciary thus arose. This was averted in the short run by the assurance of the Zonal Martial Law Administrator Lt.‑Gen. Atiqur Rehman that the Major‑General A.O. Mitha would be suitably dealt with departmentally. However, as no such action was taken during the period of Yahya Khan's Martial Law it was ultimately resolved during the Civilian Martial Law period of Mr. Bhutto. The High Court in its judgment delivered on March 7, 1972 observed that, by issuing the aforesaid notices to the High Court Judges, Maj.‑General A.O. Mitha had committed gross contempt of the High Court and, in the words of the Court, his action was "unimaginable in a civilised society and which is wholly unprecedented in the military history of the world, during or after Martial Law". The Court went on to observe that "if officers of a military junta were to be allowed to cow down superior Courts, and interfere with the administration of justice, the confidence of the general people in readily obtaining evenhanded justice from the superior Courts without fear, would for all times be completely extinguished". Maj. General Mitha was accordingly convicted for contempt of Court. But keeping in view the fact that he had tendered an unconditional apology before the Court and was no longer serving as a martial law officer the High Court sentenced him to simple imprisonment till the rising of the Court.[ Hashmat Ali v. Lt.‑Col. Muhammad Shafi Durrani etc. (Cr. Original No.5/1972 arising from Writ Petition No. 871 of 1969, decided on 7 March, 1972).] The Third Martial Law After the lifting of Martial Law on 21st April, 1972 civilian rule continued for a little over 5 years. During this period the "Permanent" Constitution of the Islamic Republic of Pakistan was framed (coming into effect from August 14, 1973). However, following the nation‑wide agitation launched by the opposition parties against the rigging of elections of March 7, 1977, Martial Law, the third in the nation's history, was again proclaimed. The validity of this Martial Law which was proclaimed on July 5, 1977 also came up for examination by the Courts. Begum Nusrat Bhutto, the wife of Mr. Zulfiqar Ali Bhutto, feeling aggrieved by the detention of her husband, challenged the imposition of the aforesaid Martial Law and also that of Martial Law Order No. 12 whereunder Mr. Bhutto's detention was ordered. According to her Gen. Zia‑ul‑Haq the Chief of the Army Staff who had proclaimed Martial Law had no authority to do so under the 1973 Constitution. Accordingly the proclamation of Martial Law was liable to be quashed. In this connection she relied upon the decision of the Supreme Court in Asma Jilani's [See note 16 above.] case. The Government countered this plea by relying on Dosso's case. The Supreme Court, however, while declining to reverse the view taken by it in Asma Jilani's case and revert to the view taken in the earlier case of Dosso [See note 8 above.] did not however, accept Nusrat Bhutto's plea that Zia's Martial Law was illegal. According to the Court widespread rigging took place on March 7, 1977 sparking off an agitation which spread from Karachi to Khyber rendering the situation beyond the control of the civilian administration. The disturbances accompanying this agitation resulted in heavy loss of life and property throughout the country. Educational, social and economic activities had come to a standstill and the entry of the army in specified cities, called in aid of civil power, was not able to control the agitation. The country was on the brink of civil war and in such grave conditions Martial Law could justifiably be proclaimed. Accordingly the impugned declaration of Martial Law was held to be justified on the principle of State necessity. [Begum Nusrat Bhutto v. Chief of Army Staff PLD 1977 SC 639.] The Supreme Court on this occasion exercised a legitimising function but while doing so it did try to place some restraints on the unbridled exercise of power by the Martial Law Authorities by allowing the Courts to exercise the power of judicial review during the period of Martial Law. In justification of this legitmising act the Court also took into consideration the circumstance that Martial Law was to remain in force for a limited period according to the assurance given by Gen. Zia at the time of promulgating Martial Law. Unfortunately, however, the Court by also conferring upon the Chief Martial Law Administrator the power to amend the Constitution (to carry out the purposes of Martial Law) enabled him to make major amendments in the Constitution. This authority was exercised, inter alia to oust the jurisdiction of Courts to review orders of Martial Law Authorities, to extend the period of Martial Law and make other amendments in the Constitution. It further enabled him, at the time of the revival of the Constitution, to drastically amend some of its existing provisions. These amendments later caused manifold problems for Courts. Happily the superior judiciary in the post Martial Law period resolutely enforced the rule of law, steered the country away from totalitarianism and upheld the supremacy of the Constitution. Some important work in this respect was done between the months of June and November, 1988 when the Supreme Court decided in quick succession some very important Constitutional cases which paved the way for political party‑based general elections in the country, put fetters on the Presidential discretion of dissolving the National Assembly, diluted the apparently complete immunity enjoyed by the legislative and administrative steps taken by the Martial Law Authorities, and also ensured the holding of free and fair elections in the country through insistence upon production of the National Identity Cards by voters desirous of casting their vote in the elections. The first of those cases was that of Benazir Bhutto v. Federation of Pakistan and another. [Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416.] In that case the petitioner Benazir Bhutto, Co -Chairperson of the Pakistan People's Party, had by invoking the original Constitutional jurisdiction of the Supreme Court challenged as violative of Articles 17 and 25 of the Constitution certain amendments made in the Political Parties Act, 1962, including those relating to compulsory registration of the political parties before they could participate in any general election in the country, the vires of the Freedom of Association Order, 1978 and the constitutionality of Article 270‑A purportedly providing blanket immunity to all legislative measures taken during the period of Zia‑ul‑Haq's Martial Law. That petition was accepted, the offending provisions of the Political Parties Act, 1962 were struck down, the Fundamental Right guaranteed by Article 17 of the Constitution was given its full effect and all political parties, whether registered with the Election Commission or not, permitted to participate in the elections. Accordingly a major obstacle in the way of restoration of fully representative institutions in the country was removed. In the second case, which too was brought by Benazir Bhutto certain amendments made during the Martial Law period in the Representation of the People Act, 1976, especially the provision which put a clog in the way of allocation of a common election symbol to candidates of a political patty contesting a general election as its party candidates, was challenged. That petition was also accepted, the offending provisions of the Representation of the People Act, 1976 were struck down and Fundamental Right 17 guaranteeing the right to "form a political party" was so interpreted as to allow the allocation of a common symbol to all candidates who were contesting elections as candidates of the same political party. [Miss Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 66.] Another important case decided in the same month of October was the case of Haji Saifullah Khan. In that case Haji Saifullah Khan and others (Kh. Muhammad Sharif, Advocate) had brought a Writ Petition before the Lahore High Court, Lahore to challenge the dissolution of the National Assembly of Pakistan ordered by General Zia‑ul‑Haq on May 29, 1988 in exercise of the enhanced powers conferred on the President as the price for lifting Martial Law and reviving the Constitution namely, under the newly‑added clause (b) of Article 58(2). The High Court found that the order of Dissolution was not covered by the provisions of Article 58(2)(b) but nevertheless refused to grant the relief of restoration of the National Assembly. [Khawaja Muhammad Sharif v..Federation of Pakistan PLD 1988 Lah. 725.] The matter then came to the Supreme Court which upheld the judgment of the High Court, holding that the discretion conferred on the President to dissolve the National Assembly was justiciable and also agreed with the High Court that the said discretion had not been exercised legally in that no sufficient nexus existed between the grounds on which the dissolution was ordered and the grounds stated in clause (b) of Article 58(2) on which the dissolution of the Assembly could validly be ordered. I had the privilege of writing the main judgment in that case and had said: "The discretion conferred by Article 58(2)(b) of the Constitution on the President cannot, therefore, be regarded to be an absolute one, but must be deemed to be a qualified one, in the sense that it is circumscribed by the object of the law that confers it....The circumstance that the impugned action has political overtones cannot prevent the Court from interfering therewith, if it is shown that the action taken is violative of the Constitution. The superior Courts have an inherent duty, together with the appurtenant power in any case coming before them, to ascertain and enforce the provisions of the Constitution and as this duty is derivable from the express provisions of the Constitution itself the Court will not be deterred from performing its Constitutional duty merely because the action impugned has political implications." [Federation of Pakistan v. Haji Muhammad Saif Ullah Khan PLD 1989 SC 166.] Only a week after the decision in the aforementioned case the Supreme Court decided on 12‑10‑1988 the case of "Mustafa Khar" [Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26.] which significantly diluted the immunity granted by Article 270‑A of the Constitution to the convictions recorded by the Military Courts during the period of Zia‑ul-Haq's Martial Law. The Court while doing so observed:‑‑ " ....no Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power; a mala fide order is a fraud on the statute. Apart from that, in view of the assurance given to the citizens by Article 4 of the Constitution, such acts, actions or proceedings which suffered from lack or excess of jurisdiction or were mala fide or were coram non judice could not conceivably be regarded as done, taken or held in connection with the previous operation of a Martial Law Regulation or Martial Law Order." The import of the equality clause (Article 25 of the Constitution) was explained in another pronouncement made by the Supreme Court in the case of Shirin Munir. [Shirin Munir v. Government of the Punjab PLD 1990 SC 295.] It was clarified that Article 25 did not countenance any discrimination. The discrimination allowed in the matter of admission to medical colleges on the basis of sex alone was accordingly struck down. A few months later the Supreme Court took notice of a telegram received from the Amnesty International protesting against the proposal of publicly hanging criminals sentenced to death for commission of heinous offences and stayed such public hangings on the ground that by doing so Fundamental Right 14 guaranteeing dignity of man was violated. Subsequently the said proposal was withdrawn by the Government. The case of "Darshan Masih" [Darshan Masih v. The State PLD 1992 SC 513.] decided some times later opened new vistas for public interest litigation and cases involving human rights and became the catalyst of the forays made by the Supreme Court in matters of public importance. Its judicial activism paved the way for the significant actions taken by it in the field of human rights, environment protection and enforcement of other fundamental rights granted by the Constitution. The high. water‑mark in this march towards supremacy of the Constitution came in the case of Mian Muhammad Nawaz Sharif when the dissolution of the National Assembly ordered on April 18, 1993 by President Ghulam Ishaq Khan was set aside as unconstitutional and the National Assembly as well as the Government of Mian Muhammad Nawaz Sharif were restored by the Supreme Court by giving fuller effect to the provision of the Fundamental Right 17 allowing the formation of political parties. In my judgment I said: "The people of Pakistan have willed to establish an order wherein the State shall exercise its powers and authority through the chosen representatives of the people wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed (Article 2A). No one man howhighsoever can, therefore, destroy an organ consisting of the chosen representatives of the people unless cogent, proper and sufficient cause exists for taking such a grave action. Article 58(2)(b) no doubt, empowers the President to take this action but only where it is shown that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution The action taken did not fall within the ambit of this provision (and), was also violative of Fundamental Right 17.[ Mian Muhammad Nawaz Shairf v. President of Pakistan and others. PLD 1993 SC 473.] Shortly after the delivery of this landmark judgment the Supreme Court struck another significant blow for enhancing the independence of the judiciary and fortifying the Rule of Law. This was in the separation of the Judiciary from the Executive case. Mr. Sharaf Faridi as President of the Sindh High Court Bar Association, alongwith other officials of the Bar Association, had filed a petition before the Sindh High Court complaining that the provisions of Clause (3) of Article ,175 of the Constitution providing that "the Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day" i.e. by August 14, 1987 had not been complied with and not given effect to despite the fact that the period of 14 years specified in the Constitution expired quite some time ago. He prayed to the Court that it should direct the Government to fulfil its Constitutional obligations in this regard. The Sindh High Court accepted this plea and held that the provisions of Clause (3) of Article 175 had mandatory effect and that the Government was bound to implement the terms of Clause (3) of Article 175. The Government appealed against this determination before the Supreme Court which however, not only declined to interfere with the findings of the High Court but while disposing of the appeal the Supreme Court issued directions that all the necessary steps to effect the separation of the Judiciary from the Executive (which were indicated in some detail should be taken expeditiously and the separation of the Judiciary from the Executive be completed by March 23, 1994 so that the mandate of Constitution in this regard was complied with.[ Government of Sindh v. Sharaf Faridi PLD 1994 SC 105.]. This judgment was another significant step for securing complete independence of the Judiciary and diminishing the role of the Executive in giving to the Rule of Law. Executive Reacts Such untrammeled exercise of judicial independence could not be tolerated by the executive for long and ways and means to tame the judiciary and control it were considered necessary. The method devised to achieve this emasculation of the judiciary was by manipulating and abusing the existing provisions of the Constitution concerning the appointment, tenure and other terms of services of the Judges. This manipulation and abuse was to be undertaken both in the matter of initial as well as in the post appointment period. The first phase included measures such as the "packing" of the Courts through temporary appointments viz. appointment as Ad hoc, Acting and Additional Judges making the length of their tenure dependent on the pleasure of the Executive. It also included the appointment of pliable "Acting" Chief Justices instead of appointing permanent Chief Justices whose tenure was fixed in the Constitution. This was on the consideration that the former would not only keep the High Court of which he was appointed 'Acting' Chief Justice well in control but would also while acting as "consultee" in the matter of appointment of future High Court Judges, sponsor the favourites of the Government. The second phase of post appointment manipulations included the threat of transfer of the Chief Justice or a Judge of the High Court, without his consent, to the Federal Shariat Court and the threat of transfer of a Judge of the High Court, again without his consent, to another High Court. Furthermore, the lure of appointment as Chief Justice of his Court was to be kept dangling in front of every serving Judge, whatever his seniority position, that he could be appointed to the top slot if he was sufficiently "cooperative" and "understanding". ' Naturally the result of these manipulations and abuses was to erode the credibility of the Courts. To stem the rot a courageous Advocate, Mr. Habib Wahab‑u1:Khairi, who had formed a trust called Al‑Jehad Trust, came forward to challenge this misuse by filing a Writ Petition in the Lahore High Court (Writ Petition No.875 of 1994). Herein he arrayed 34 respondents which inter alia included 20 Additional Judges of the Lahore High Court (who were appointed by the Government of Banazir Bhutto on 5‑8‑1994 and most of whom were inducted to carry into effect her programme of having a "cooperative" and "understanding" judiciary). This petition was dismissed in the High Court but the Supreme Court, on appeal, after hearing elaborate arguments delivered a landmark judgment on 20‑3‑1996 setting things right. The more important conclusions arrived at by the Supreme Court were:‑‑ (a) 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: (b) That no ad hoc Judge can be appointed in the Supreme Court while permanent vacancies exist. (c) 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 be appointed as such in the Court concerned. (d) An Acting Chief Justice is not a consultee as envisaged by the relevant Articles of Constitution and, therefore, mandatory constitutional requirement of Consultation before appointing a Judge is not fulfilled by consulting Acting Chief Justice... (e) That an appointment of a sitting Chief Justice of 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. (f) The 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. (g) That the requirement of 10 years' practice under Article 193(2)(a) of the Constitution relates to the experience/practice at the Bar and not the period of enrolment simpliciter. [Al‑Jehad Trust v. Federation of Pakistan PLD 1996 SC 324.] But to secure implementation of the directives contained in the aforementioned judgment (of March 20, 1996) proved a herculean undertaking. Every trick in the book and some not in any book to delay, hinder and obstruct its implementation was resorted to. In this backdrop the Chief Justice of the Supreme Court requested the President to intervene and break the deadlock which had arisen in relation to the implementation of the remaining directions contained in the judgment. The President responded by calling upon Prime Minister Benazir Bhutto to take necessary action, warning her that otherwise he would be constrained to act in the matter himself. This demarche had a salutary effect and most of the directives were implemented Judiciary resuscitated The judgment in the Judges Case is undoubtedly a landmark in Pakistan's Judicial and Constitutional history. It stands out as a reassertion of the national will and an example of the reality that the Judiciary is still capable of resuscitating and protecting the basic values of its countrymen and institutions against overt as well as insidious attempts to erode or emasculate them. The position of the judiciary has been further fortified by the recent decision of the Supreme Court in the case of Mahmood Khan Achakzai. [Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 324.] Herein it has been observed: "Article 8 prohibits the Federal Government, Majlis‑e-Shoora (Parliament), a Provincial Government and a Provincial Assembly from making any law which takes away or abridges such fundamental rights. " And the judgment went on to say: "Likewise no enactments can be made in respect of the provisions' of the Constitution relating' to judiciary by which its independence and separation from executive is undermined or compromised. " Conclusion In conclusion it can be said that throughout the 50 years of Pakistan's existence as a sovereign State the highest Courts in the land have, despite being confronted with one crisis after another, succeeded in finding legal solutions for the delicate problems coming up before them. They have also succeeded in keeping the ship of State on ah even keel, bringing the assurance to troubled minds that they were under a Rule of Law and not under arbitrary governance. This task the Judiciary is continuing to discharge with steadfastness and resolution. Indeed the outlook for Pakistan to be governed by the Rule of Law today appears to be brighter than it has ever looked before.