The state of law is in a royal mess. Last week, the Lahore High Court struck down the Special Courts established in 1987 by a Presidential Ordinance. The LHC also held all their decisions since then to be invalid. It did so because the Ordinance in question had ‘lapsed’: it had neither been extended nor enacted as law by parliament. So much for all the public time, effort and money expended on those decisions in the last fours years!
This is only one example of the cavalier treatment of law by Islamabad since the times of Gen Zia ul Haq. It took us 26 years to forge a national consensus and frame a constitution. But Zia knocked it out of shape by forcing the politicians and judiciary to indemnify all the martial law orders and proclamations issued from 1977 to 1985. Mr Junejo’s parliament meekly put its stamp on all Presidential Ordinances issued from 1986 to mid 1988.
After Bhutto was overthrown, President Ishaq Khan donned the mantle of Zia and issued countless Presidential Ordinances. It appears that the Law Department was so overwhelmed by the President’s persistent demand for wholesale, though whimsical, new laws that it clean forgot to remind him that the Special Courts had become redundant in the meanwhile.
On another front, the status of hundreds of amendments to the penal code ordered by the Federal Shariat Court is still unclear. This refers to those laws struck down by the FSC which have neither been challenged by the government in the time allotted nor officially notified by the Law Department as new laws. So we have a situation in which the judiciary continues to base many of its decisions on sections of the old law which have been struck down by the FSC. All that is required to cripple the legal system is for some smart lawyer to challenge the hundreds of decisions taken by the judiciary in ignorance of the FSC’s judgements and have them declared void.
The recently promulgated Shariat Bill and the Hudood Ordinances have sowed further confusion by creating an ill-defined, parallel structure of law challenging the 200 year old corpus of Anglo-Saxon jurisprudence upon which the state is based. In consequence, three disastrous policies have materialized. One, the minorities are more discriminated against than ever before — the application of the Zina laws against women and the persecution of the Christians under the Gustakh a Rasool (Insult to the Holy Prophet) Ordinances, spring to mind immediately. Two, the lower courts have been pitted against the superior courts, especially where enforcement of Islamic punishments under the Hudood ordinances is concerned. Invariably, the lower courts have taken recourse to the Hudood Ordinances while the superior courts, mindful of the implications of enforcing such punishments, have desperately sought technical grounds to reverse these decisions. Take the recent case against the two American brothers in Peshawar who converted to Islam, were convicted by sessions court under Islamic law for theft and awarded Islamic retribution. The Peshawar High Court acquitted them on technical grounds. Third, the government’s credibility has been eroded when it has not had the will or ability to enforce some of these Islamic laws: the application of the Qisas and Diyat Ordinance was effectively blocked when the Transporters Union threatened to cripple the economy if its members were forced to pay Diyat to victims of road accidents.
These are not the only consequences of incompetent, hasty and politically opportunistic legal policies followed by Islamabad. Equally damaging has been overt executive interference in the appointment, transfers and retirement of judges to the superior courts in order to influence their decisions. Beginning with President Ishaq’s tussle with Benazir Bhutto over the appointment of judges to the Supreme Court in 1989 to the retirement of a judge of the Peshawar High Court because he dissented with the order to dissolve the NWFP assembly in 1990 and culminating in the recent appointment to the Sindh High Court of a senior Muslim League office-holder, it has been a sorry tale. There was also a time when, during the interim government of 1990, the Sindh Governor took a holiday to Jeddah so that the Chief Justice of the Sindh High Court could become Acting-Governor and allow another judge to take his place and constitute an appropriate bench to hear Bhutto’s petition challenging the dissolution of the Sindh government in August 1991!
The assault on the law and the judiciary is nothing new. Every martial law dictator has forced the law to bend to its writ and sent the judiciary scurrying for cover. What is everlastingly shameful and tragic is the continuing debasement of our legal structure at the hands of politicians and bureaucrats. That the people, by and large, still pin their hopes on justice speaks of their respect for the judiciary and not about the fairness of the law.