Rule of Law in Pakistan

Confusing Plurality

The legal situation in Pakistan remains troubled. The country's laws tend to be biased against the poor – and against women in particular. Moreover, the state's judiciary co-exists with Islamic and traditional institutions that define and enforce rules. By Rubina Saigol

Pakistan's Supreme Court (photo: AP)
Pakistan's laws were basically derived from the Anglo-Saxon tradition, but today three systems – the formal legal system, religious courts and customary traditional dispute settlement – persist side by side, writes Rubina Saigol

​​In the afternoon of March 15, 2009, Nawaz Sharif, chief of the Pakistan Muslim League and former prime minister, began a journey from his residence in Punjab's capital, Lahore. The destination of his so-called "Long March" was Islamabad, Pakistan's capital.

This journey was modelled on an earlier one, the history of which began two years before. On March 9, 2007, Pakistan's uniformed president, Pervez Musharraf, was perched imperiously on his ornamental chair in Rawalpindi's Army House and ordered the chief justice of the Supreme Court, Iftikhar Chaudhry, to resign. The judge refused, and thus triggered a popular movement for the rule of law.

Weary of martial rule

Lawyers, civil-society organisations, human-rights activists, journalists and academics were weary of martial rule. They took to the streets, with the intention of restoring dignity to the man who had dared to say "No" in the menacing presence of the military elite. Protests escalated, with more people from all walks of life coming out in favour of Chaudhry day after day.

The campaign was successful – to a degree. In July, a full court of thirteen judges restored the top justice to his rightful place. However, on November 3, 2007, the entire Supreme Court was dismissed by an arrogant and petulant General Musharraf, who wanted to be re-elected president despite staying in the army, but feared that the chief justice would not permit such a breach of the constitution. The military dictator declared a state of emergency. In the weeks that followed, he further mauled and mangled the already battered constitution of Pakistan.

Lawyers, political-party workers and human-rights activists were teargassed, baton-charged and hauled into jails. The justices were imprisoned in their homes along with their families. The general-president installed judges of his choice who took oath under his Provisional Constitutional Order and declared his election in uniform legal.

A complicated story

In view of ongoing protests and international criticism, Musharraf soon after quit the army. In what must seem very confusing events to outside observers, parliamentary elections were held. They were won by the PPP (the Pakistan People's Party) after its top candidate Benazir Bhutto, a former prime minister, was assassinated. The PPP formed a coalition with the PML(N), promising to re-instate the judiciary. That did not happen, however, as the PPP dragged its feet on the matter until the PML(N) eventually quit the coalition.

Iftikhar Mohammed Chaudhry (photo: AP)
With Iftikhar Chaudry presiding over Pakistan's judiciary, the old tie between the military and judiciary looked like a thing of the past, writes Rubina Saigol

​​The movement for the restitution of the legal judiciary went on. Every Thursday, lawyers boycotted the courts. Their rallies were joined by all people who wanted an independent judiciary. In what became known as the Long March, hundreds of thousands of people from all over Pakistan descended on the fortified capital in June 2008. They demanded the restoration of the judiciary and the removal of the president who had humiliated this important institution.

Indeed, Musharraf was subsequently pushed out in August 2008, and Bhutto's widower Asif Ali Zardari managed to get himself elected president by the PPP and its supporters in Parliament. The judges, however, were still not back in office.

In March 2009, a second Long March was announced. The plan was to sit in front of the Parliament until the restoration of the de-jure judiciary. Again, people from all over Pakistan were beginning to converge on the capital with the intention of forcing an elected government to fulfil its promises.

The government did what it could to contain dissent. Roads were blocked. Heavy contingents of police in full riot gear lined all the major streets in the big cities. As caravans of lawyers and activists set out from Karachi and elsewhere, there were clashes with the police. Ali Ahmad Kurd, the president of the Supreme Court Bar Association, was not allowed to board the plane to Lahore to join his colleagues in the march towards constitutional rule.

Good news at last

The main march started in Lahore and enjoyed the support of most opposition parties. Nawaz Sharif made an inspiring speech to rouse his followers. Flanked by about a thousand party workers, he started his justice caravan towards Islamabad. The government's roadblocks began to melt away like ice on a hot summer afternoon.

The march's ranks swelled. Women, children, the elderly and enthusiastic youth joined from all sides. Those not able to join the march remained glued to their TV sets as every channel broadcast the historic event. The authorities could hardly believe their eyes.

General Musharraf (photo: AP)
General Musharraf ordered the chief justice of the Supreme Court to resign. Iftikhar Chaudhry refused and thus triggered a popular movement for the rule of law

​​By midnight the march reached the town of Gujranwala. Its numbers had grown to tens of thousands. News was pouring in that, everywhere along the road to Islamabad, people were eagerly awaiting the marchers to be able to join them. A flurry of activity began between the top echelons of power. Soon news channels spread word that judicial restoration was about to be announced. The people waited with bated breath for another five hours before a tired Prime Minister Yousaf Raza Gilani made the announcement at dawn.

The Long March achieved its goal without ever reaching Islamabad. Spontaneous celebrations broke out across the country. Nawaz Sharif and the lawyers called off the march. A few days later, Chief Justice Chaudhry was indeed back in office.

Notions of justice

The collective national dream of a free and independent judiciary seemed to have been achieved. The rule of law appeared to be upheld, and a sense of justice and fair play restored to a land that had seen the law abused, justice overturned and constitutionalism in tatters many a time.

Nonetheless, one wonders what exactly made large sections of the Pakistani public rejoice when the CJ was returned to his seat. What was their notion of the rule of law? Did they believe that they would see justice at their doorsteps? Did they think the poor, downtrodden and the weak would now be protected against the powerful and the exploitative?

The liberal notion of the rule of law is an abstract concept that is not well understood even among the majority of educated urban Pakistanis. Lawyers define it as rule by institutions and systems as opposed to rule by men or rule of force. They describe it as a state in which power is not exercised in an autocratic way by a person or group of persons; rather it is distributed among the various institutions of the state such as the legislature, the executive and the judiciary – a trichotomy of power.

Lawyers speak of the supremacy of the constitution and parliament, and underscore the idea that everyone, including the powerful, are subject to law, not above it.

A basic and comprehensible notion of justice

Such theoretical concepts are alien to the vast majority of people whose imagination was captured by this movement. For most people in Pakistan the idea of justice in the sense of being treated fairly, as equal human beings, seems to hold greater appeal. They understand the pervasive inequalities of wealth, power, status and control. The popular folklore notions of justice revolve around the idea that "the weak shall inherit the earth".

Women in Pakistan (photo: AP)
The Hudood Ordinances, which were promulgated in 1979, made it virtually impossible for a woman to prove rape. The law was banned under General Musharraf in 2006

​​Chief Justice Chaudhry became an icon for those enthused by the movement because he apparently represents a very basic and comprehensible notion of justice. In office, he challenged the rich and powerful and dispensed justice to the weak and powerless. For instance, he prevented the less-than-transparent sale of the steel mills, a national asset, to cronies and friends of the powerful. Similarly, he stopped the "New Murree" project, which would have led to the destruction of a precious forest of 1.5 million trees only to create a resort for the rich.

In another legal matter, Chaudhry intervened in the decision of a traditional tribal council called jirga. It had ruled that five little girls aged two to six were to be handed over to a rival party in the context of a dispute settlement. The jirga, by the way, was headed by Hazar Khan Bijarani, the country's current education minister.

Moreover, the chief justice is known for having summoned senior police and public officials and elected members of the government to his court to answer for crimes committed against the powerless. This had never happened in the sixty-year history of Pakistan. In the past the judiciary seemed to be allied to the rich and invariably handed down verdicts in their favour.

Under his leadership, moreover, the superior judiciary stood up against a military dictator for the first time. Since the early 1950s, the judiciary had served usurpers blindly by invoking the so-called "Doctrine of Necessity" which validated military takeovers and removal of civilian governments. With this chief presiding over the halls of justice, the old tie between the military and judiciary looked like a thing of the past.

For people weary of military rule, the newly assertive judiciary, which was acting as the guardian of people's rights and of the constitution, was a breath of fresh air.

Multiple legal systems

Most likely, Pakistani's affection for Chief Justice Chaudhry stems from his perceived preparedness to uphold the rights of the downtrodden. It is hardly about some abstract notion of the rule of law. That notion, moreover, is mired in confusion and contradiction in Pakistan where multiple legal systems and parallel means of dispensing justice co-exist. At least three systems – the formal legal system, religious courts and customary traditional dispute settlement – persist side by side in a complex, hierarchical and stratified society.

General Zia Ul-Haq (photo: AP)
During General Zia's era of Islamisation 'Shariat Courts' were added to Pakistan's legal system

​​Pakistan's laws were basically derived from the Anglo-Saxon tradition and British colonial legal structures. In the course of Pakistan's history, Shariat Courts were added during General Zia's era of Islamisation. The Federal Shariat Court and its subordinate courts constitute a parallel system that contradicts, and occasionally colludes with, the main body of laws. At the level of villages and smaller towns, customary and tribal laws and systems based on jirgas and other local forms regulate the lives of people.

Women's rights

Underlying these competing yet colluding legal concepts, are a number of contradictions. For example, Article 25 of the Constitution says that there will be no discrimination based on sex alone. Nonetheless, religious laws tend towards gender inequality in a number of ways. Occasionally, religious and customary laws find their way into formal law and become a part of the Pakistan Penal Code thereby giving tribal characteristics to the state.

This was the case when the Qisas and Diyat Ordinance, an old tribal law believed to be Islamic, was instituted. This law makes the crime of murder a private affair by allowing the relatives of the deceased to either accept compensation or seek retribution. Murder thus no longer remains a crime against the state, but rather becomes a crime against a person. This law has been widely used to allow those who kill in the name of so-called honour to go scot-free. Many women are killed every year since this tribal law enables the perpetrators to escape punishment.

Similarly, the Hudood Ordinances, which were promulgated in 1979, made it virtually impossible for a woman to prove rape. Unless she could provide four adult male Muslim witnesses, a woman reporting rape would be booked for adultery. This law led to the criminalisation of a large number of poor, rural women who were raped and then accused of faithlessness. A change in this law through the Criminal Law Amendment of 2006 provided some relief by instituting the proper legal mechanism for rape trials.

Outright inequality

Another example is the Law of Evidence of 1984, according to which the legal testimony of two women equals that of one man particularly in cases involving financial and economic matters. This law effectively reduced women's citizenship status to half that of Muslim men. Similarly, this law reduced non-Muslim Pakistani citizens to a lesser and subordinate status.

In this context, the liberal discourse of rule of law is problematic at best. Feminists point out that the concept supports patriarchal power structures since the laws are drafted primarily by men, who tend to favour themselves over women.

Others argue that the idea of rule of law is class-biased. Most lawmakers in Pakistan hail from the rich, landed aristocracy. They tend to pass legislation in their own favour, rather than promoting ideals of equality and justice. For example, they have long resisted the pressure to impose a tax on agricultural income, which is the basis of their power and wealth.

Because of the preponderance of rich, upper-class men in the lawmaking assemblies, there is less likelihood of laws being framed for women, minorities, peasants, workers or others lower in the class hierarchy of Pakistan. Pakistan's political parties and their leaders are by and large members of the richest classes in Pakistan.

Pakistan's movement for the rule of law has succeeded in getting a popular and independent-minded chief justice re-instated. That was an important step – hopefully at the beginning of the country's still long journey towards justice. It will be interesting to see what role Nawaz Sharif will play. His terms in office as prime minister in the 1990s were not marked by the rule-of-law fervour he has recently been displaying.

Rubina Saigol

© Development and Cooperation 2009

Rubina Saigol is an independent researcher in social development and is based in Lahore. She was an activist in the lawyers' pro-judiciary movement.

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