2) Paula R.

Newberg Judging the State 14/05/2019, 10:16 PM

2) Paula R. Newberg, Judging the State, 1995, Chapter

8, 233-250 Notes

8 Judging the state

autocratically conceived constitutions have failed to solve the core issues of

pakistan’s hope for good governance. The 1950s Basic Principles committees
comprehended the need to provide a principled grounding for the future constitution
but did not accommodate its diverse sources and applications. The second
Constituent Assembly shared these problems under the influence of the Governor
General and the army, who were anxious to defuse challenges to their power. In the
constitutional equation of the 1950s, neither an agreed goal nor a means to achieve
it, two crucial variables for sustaining the state, was made manifest.

Tamizuddin Khan's case and the 1955 Reference reflect the visions and myopias of
their time. By refusing to examine the national political structure and the
constitutional requirements for political change, the Supreme Court helped to cement
power relationships between the bureaucracy, army and the political classes, and
thus undercut the very constitutional concepts it hoped to encourage. By declining to
provide meaning to the concept of parity in the Reference, for example, the court laid
a jurisprudential groundwork both for the 1958 coup d'etat and the demise of the
two-winged state in 1971

During the early 1960s, the superior courts had few opportunities to alter this
thinking. Although the High Courts occasionally counterman- ded executive orders or
echoed local interests against the center, the courts generally were forced into
retreat. Justice Cornelius's Supreme Court agitated for a constitution and upon
receiving an inadequate one, agitated for its improvement. With government
determined to write law only to sustain its own power, however, judicial activism was
only specific and piecemeal.

Only after Ayub Khan violated his constitution and the country was divided after
brutal civil war did the courts begin to change their views of their purpose.

Given the opportunity in Ziaur Rahman's case to influence directly the writing of the
1973 Constitution, the Supreme Court refrained, insisting instead that the doctrine of
separate powers be respected to support an independent judiciary and popularly
elected legislatures.

Their incantations on the separation of powers did little to modify Prime

Minister Zulfikar Ali Bhutto's abuses of authority under the 1973 Constitution,
but their judgments in the constitution-drafting period reflected a new critical
awareness of the judiciary's influence on state organization. The Supreme
Court lamentably departed from this insight when it validated General Zia ul
Haq's coup d'etat but the superior courts tried to recover their ground after
Nusrat Bhutto's case.

Post-Nusrat Bhutto decisions troubled the army sufficiently to provide the 1981

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Provisional Constitutional Order, which nullified crucial judicial powers for the
duration of martial law.

After martial law was lifted at the end of 1985 and popular rule with party-based
elections returned in 1988, the courts combined idealism and pragmatism to
untangle the post-martial law constitution and their own independence.

While the courts have not always given expedience primacy of place, their opinions
have always been sensitive to ways in which their decisions may influence their
future capacities to act.

The courts thus confront two worlds concurrently. Their role is to interpret the state's
constitutive framework for the polity and to provide citizens with the opportunity to
voice their opinions and redress their grievances - a responsibility in the first instance
to the polity.

But because the polity has so often been divorced from the state, the judicial role
has been more conflictual than judges would like.

Jurisprudence therefore assumes intrinsically political meaning because it affects

profoundly the dimensions and organization of political power. The Supreme Court's
adherence to the doctrines of necessity and revo- lutionary legality testifies to the
impact of legal reasoning on specific political events, and also to the contingency of
judicial rulings.

The courts have added to this political mix by the content of their judgments. Even
when their decisions have rested on technical grounds, the superior courts have
often given their findings based on the merits of a case and have thus furthered their
interpretive reach.

Political climate and state structure thus serve to confuse the sources and ends of
procedure and substance.

In such environments the judiciary is forced to become an intensely controversial

institution in a state in which controversy is often pros- cribed and political scripts are
written by the state.

While courts can act as bridges between state and polity, they also reflect the state's
distance from political society.

Even when written constitutions establish institutional parameters, the judiciary

remains the weaker partner. Its power lies in the absence of coercive capacities and
in the polity's agreement to restrict its challenges to the state to the judicial realm.

Although the courts are literally accountable to the state, which can close their doors,
they can also choose to close them themselves - a choice they prefer not to take but
which forms a backdrop to their most constrained deliberations. When the polity
cannot fully choose the state, the courts offer a semblance of political par- ticipation
by providing a forum for political debate. The force of their rulings will necessarily be
limited, but they provide an institutional example of alternative political discourse and

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thus help to strengthen the role of civil society within the state.

THE METAPHOR OF THE STATE

The effects of judicial rulings have reinforced the state in fundamental ways—In
Pakistan's jurisprudence, the concept of state structure indirectly illuminates the
limits and possibilities of politics but is rarely discussed directly. The courts substitute
assumptions about political behavior for thorough analysis of constitutional structure,
parsing philosophical concepts rather than analyzing enduring political forces. The
flawed interpretive discourse of the early independence years still permeates judicial
behavior and affects the way the state can be built.

BASIC STRUCTURE AND JUDICIAL REVIEW

The courts have found it difficult to judge the idea of constitutional struc- ture or the
related notion of basic state structure when it has been raised in constitutional cases.

Does the separation and division of powers offer the key to state structure, or
does that structure emerge from pre-constitutional consensus? what relation
should directive principles of policy bear to justiciable rights, and should
policy principles themselves be justiciable? These questions - the answers to
which define principle, policy and process - almost paralyzed the first Constituent
Assembly, caused major breaches between General Ayub Khan and his appointed
Constitutional Commission, sharply divided legislators drafting the 1973 Constitution,
and indirectly occupied General Zia ul Haq's constitution-revising exer- cise in 1985.
They were given modern voice in Ziaur Rahman's case, when the courts faced the
twin problems of state reorganization and political legitimacy. Choosing reticence
over assertion, the courts did not take up the fundamental issues of structure that
had already divided the state and that could be equally divisive in the future.

The Indian case namely Golak Nath’s case and Kesavananda Bharati’s case, the
Indian Supreme Court reworked issues of constitutional struc- ture and responsibility.
Its rulings on legal standing to allow collective rights suits, on the relative
constitutional status of directive principles and fundamental rights, and on legislative
and judicial powers to amend and enforce constitutional guarantees for rights and
social welfare were heard loudly, if not clearly, across the border. From the 1975
NAP Reference on, these decisions were cited by Pakistan government
representatives and their challengers to address a vast array of constitutional issues.
When the Supreme Court reviewed these cases, however, it reiterated its familiar
version of the separate powers doctrine rather than extend the scope of its
deliberations to specific structural considerations.2 Each citation reflected the
weaknesses in Pakistan's constitutional heritage and the judiciary's ambivalence
toward the transformative capacities of constitutions.

The Indian Supreme Court's first major judgment on the subject, Golak Nath's
case, deemed fundamental rights immune to parliamentary amendment.

In Kesavananda BharatVs case, the Indian court choreographed a similar

equation between policy principles and rights: through the medium of a basic
structure doctrine, the court tried to ensure progressive policy while retaining

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judicial right to oversee parliament's interpretation of that policy.

These Indian cases discussed constitutional structure in terms of parlia- mentary

sovereignty and judicial powers, and have been interpreted as conflicts between
executive-oriented authoritarianism and court-oriented liberalism.7 In Pakistan,
liberalism and authoritarianism also framed judgments about state policy, but were
far closer in concept and practice.

While the Indian cases discussed constitutional struc- ture in terms of parliamentary
sovereignty and judicial powers, in Paki- stan these concerns have been translated
into familiar problems: the breadth of executive powers, the nature of rights, the
ideological cum religious basis of the state and prospects for representative,
democratic governance. With the accumulated history of civil unrest and social
tensions, the language of law has become more deeply ingrained in formulating
these problems, if not resolving them.

examples of the above paragraph include the 1953 report on anti ahmadya riots
where the concerned judges were able to speak on a matter with some authority.
they were not influenced by the people who instigated the riots.

Democracy was the process of solving disputes and its secular vision was the goal
that right-thinking citizens would approve. Justice Shahabuddin echoed similar
sentiments in his 1960 Constitution Commission Report.

But a twist observed by Justice Hamoodur Rahman regarding his judgements in

the Asthma Jilani’s case and Ziaur Rahman’s case. The Objectives Resolution was
incorporated into the constitutional question of state ideology.

Then Zia’s Islamization began and soon he introduced the Ansari Commission in
1983. The commission was to provide the foundations of a political structure which is
in consonance with the injunctions of the Quran and the Sunnah, Islamic values and
traditions, requirements of the modern age.

The commission therefore provided an institutional springboard from which

General Zia was able to incorporate the Objectives Resolution as operative
section 2-A of the revived constitution, an action later covered by the eighth
amendment. Justice Hamoodur Rahman's hypothetical was thus made
concrete by executive fiat rather than popular vote. The Objectives Resolution
now resembles a constitutional preamble but offers scant direction for the
state.

The Resolution's new constitutional role and the higher profile of Shariah law and the
Federal Shariat Court has painted the structure of justice in a new and controversial
color. The Shariat Court has assumed some powers originally vested in the high
courts.

Perhaps most important, new Islamic laws oblige the courts to inter- cede in the
economic and political arrangement of the state. The Federal Shariat Court was
already in the business of checking the conformity of the civil laws to the Quran and
Sunnah, although mechanisms to correct non-compliance are contested and

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incomplete.

The FSC has passed judgements that the author believes goes against the
government policy. examples include: it has ruled riba (interest) to be un-Islamic,
despite former Prime Minister Nawaz Sharif's adherence to the practice AND The
Shariah bench of the Supreme Court is required to review legislative compliance with
the broad and vague provisions of the Objectives Resolution.

Moreover, the final version of the Shariah bill passed by the National Assembly in
1991 can be interpreted to limit the scope of fundamental rights protections in statute
law. The concept of separate powers, historically dear to the superior courts, was
thus undermined by the eighth amendment.

Some issues of the above developments were seen once civilian governments were
restored. Examples seen from the issue of the 1989 suit on behalf of bonded
labourers. its Shariah bench upheld a Federal Shariah Court ruling that found that
the 1972 and 1977 land reform laws did not conform to Islamic injunctions. The
bonded laborer judgment sought to identify methods for pursuing rights protections in
the context of a progressive state structure; in the land tenure judgment, however,
the court required the government to overturn competently passed laws consistent
with the policy principles it supported in the class action suit. Constitutional
fundamental rights and judicial interpretations of Islamic codes clashed here: the
court established a social contract between labor and the state in the bonded labor
decision that it destroyed in its land tenure decision.

If the judiciary has not fully confronted the issue of basic structure, the question of
ideology has nonetheless returned firmly to constitutional consideration. Structure
and ideology are two sides of the same issue. By default as much as design, the
court has imputed a principle of basic structure to its judgments, even if it will not
recognize it as such. It has also brought to the fore serious conflicts between secular
constitutional- ism and state ideology.

The Pakistani experience has combined overwhelming executive power, uncertain

constitutional resiliance and a cautious but consistent judicial quest for jurisdiction
and justiciability.

Parliament has rarely acted in either capacity to check the executive - in part,
because its sovereignty is itself questionable. Consti- tutions more often have been
vehicles to legalize the exercise of power than they have to legitimise its sources.

The judiciary has failed to take into account or judge while accommodating
movements for ethnic nation- alism, provincial rights and popular political power -
processes that are as much the results as the causes of constitutional arrangements
and judicial interpretation.

Judges usually pick the path of moderation and transition rather than transformation.

Law as an instrument of social change has been bridled by the court itself,
unleashed only in controlled, required or (as in the case of the eighth amendment)
desperate circumstances. Principles of basic structure have been used to interpret

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constitutional law only when its meaning and con- sequences are least questioned.
The courts have therefore not confronted fundamental questions about the justice of
the laws they interpret, the just- ness of their application or the meaning of fidelity to
the law.

THE STRUCTURE OF DEMOCRACY

Like other constitutional democracies, India has long believed that popularly elected
legislatures embody and guarantee freedom and that judicial review limits parliament
and by extension, popular sovereignty. Similar assumptions have long been voiced
in Pakistan, but are realized infrequently.

Prolonged states of emergency in Pakistan have been the norm rather than the
exception; anticipating martial law has become a consistent, self-imposed limit on
popular politics. Constitutions have only occasionally been documents of popular
political possibility; more frequently, they enshrine an inequit- able status quo.

The judiciary has employed three principles of governance to limit executive

powers while supporting its own. The courts have revered the doctrine of
separate powers, Federalism, in turn, is supposed to offer the provinces a
constitutional handle for dealing with the center. Finally, the concept of judicial
autonomy has become their distinguishing element for an enduring federal
state. For the courts, all these principles are essential components of
democracy.

The concept of democracy in Pakistan, often more ideal than real, has
idiosyncratically combined process and content. The accumulated experi- ence of
self-government has reinforced a feudal economic system and a restricted political
system, and thus strengthened the interests of the few against those of the many.

Elected governments have created obstacles to accountable rule, using purportedly

democratic institutions for purposes that are not wholly democratic. Constitutionalism
in Paki- stan mixes vague republicanism to fortify the state and a political plural- ism
serving the interests of the strong.

The judiciary has faced difficult jurisdictional problems as it has mediated conflicts
among institutions that derive their authority from diverse and sometimes
incompatible sources. Equally difficult, the courts have decided conflicts between
citizens and the state when the government is not empowered by the citizenry, when
neither rights nor obligations are clear or fully known and when punitive sanctions
often precede reasoned government judgment and action. When courts have helped
to create conditions for democracy by acting as bulwarks for the citizenry against the
state, the idea of democracy has taken on an anti-state character - a form that the
courts, themselves state institutions, find discomfiting. Judicial review therefore
enforces a concept of constitutionality while simultaneously institutionalizing
skepticism about the structure of the state.

COURTS AND POLTICS

When concepts of rights, autonomy and sovereignty are unclear - when the polity
has found its leaders incapable of articulating palatable and workable vision - the

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judiciary has, if only temporarily and expediently, helped to define a context for
political debate. Civil law has not consistently dominated the state, but it has framed
communication between citizens and the state when other means were unavailable.
The grammar of law supplements and sometimes supplants the grammar of politics.

persistently disavowing political issues by recourse to the doctrine of separate

powers, the judiciary has consistently defined the range and scope of politics by the
way it interprets its jurisdiction.

The courts have struggled to define mechanisms through which the state can
arbitrate its conflicts and in so doing, brace the foundations of the polity.

In short, they are the challenges of constituting a state.

The judiciary has often objected to specific limitations on individual action while
confirming the environment in which they exist; the sum of judicial decisions helps to
reinforce existing patterns of power.

For the courts, judicial review has often meant creating a constitution.
Judgment sometimes includes an air of invention: the doctrine of separate
powers when only an imposed executive ruled, the doctrines of popular and
legislative sovereignty when no elected parliament lived, even the doctrine of
judicial autonomy when the courts were allowed only on sufferance and only
for the illusion of stability that they presented to outside powers. As non-
representative institutions, the courts cannot create all the conditions needed
to maintain constitutional government, and they remain in the end creatures of
existing constitutions.

Since Tamizuddin Khan's case, Pakistan's judiciary has guarded legalistic

visions of democratic constitutionalism while the state creates and recreates
an instrumental political community. No matter how elusive the concepts of
nationhood, state- hood and political community, the state has functioned with
remarkable resilience. The fact that Pakistan has prevailed over its
governments attests to the misconceived equations of power and authority
with which its political and military leaders have approached the polity.

However, ratios of power and promise are not constant, and the judiciary has both
reflected the evolution of state-civil society relation- ships and has helped to
encourage such change. Chief Justice Nasim Hasan Shah, who was consistently
optimistic about a transition to democracy from martial law long before it was
evident, was able to capitalize on the polity's growing strength, however minute,
when he revoked the dissolution of the National Assembly in 1993. His order to
restore the Assembly surely demonstrated the Supreme Court's sense of its
autonomy. Equally important, the court could depend on civil society to support its
constitutional position. The durability of fundamental rights can be measured
politically in the polity's impatience with the misappropriation of authority and,
critically, its expectation that the court would necessarily rule to contain such abuse.
In this sense, Pakistan and its courts have come a long way from the tentative
rhetoric of the 1960s or the fearful judgments of the late 1970s.

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For the moment, neither consti- tutional revision nor political trust are common
political traits. Govern- ments in the post-Zia period, have found it useful to build on
martial law practices and institutions rather than revoke them; this strategy, however,
has allowed - or created - uncontrollable political forces that alter the federal state's
relationships to local power holders in ways that are beyond the ken of the
constitution.

The judiciary is caught amid these quandaries. It judges the state, but is also a part
of it; yet, its institutional definition assumes an adherence to a civil law whose own
identity is changing. Courts must therefore discover methods with which to interpret
political transitions without unduly determining their result. They must also find ways
to enfranchise those whose political, economic and social exclusion has previously
defined both the state and its opposition. In the absence of a representatively
conceived constitution, the courts necessarily seek alternative ways to understand
and enforce workable concepts of political legitimacy and order.

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