Child’s Play: The curious problem with Pakistan’s judicial system

 /  April 28, 2014, 8:12 p.m.

Pakistan, Pervez Musharraf

Pakistan’s troubled criminal justice system made headlines around the world when nine-month-old Musa Khan was charged with attempted murder over a violent protest in a Lahore slum in February. Charged alongside several teenage family members, the toddler was accused of stoning police officers and gas company workers who were in the process of shutting off utilities to households that had failed to pay their bills. The case has been widely ridiculed as preposterous, and the chief minister for Pakistan’s Punjab Province, Shahbaz Sharif, has openly called for an investigation into the incident.

At the same time, the trial of former President Pervez Musharraf paints a very different picture of Pakistan’s criminal justice system. In this high-profile case, Musharraf has been charged with treason by subverting the constitution and detaining a number of judges during his declaration of a state of emergency in late 2007. The Special Court ruled that his period of emergency rule was unconstitutional, and, Musharraf is being tried in a special court in Islamabad’s National Library. The existence of the Special Court shows that Pakistan’s judicial system is an integral part of the country’s democratic government, in which the suspension and manipulation of the rule of law are not to be taken lightly.

Musharraf’s trial, a demonstration of competence in Pakistan’s judiciary, is the antithesis of infant Musa Khan’s farcical attempted murder charges. How can Pakistan have a court system that charges an infant with attempted murder while simultaneously conducting complex prosecutions of a former head of state?

The answer lies in history and geography.

While the high court has shown the prospect of a robust and independent judiciary, most local courts remain highly dysfunctional, still reeling from the devastation brought on after years of martial law.

The full extent of this devastation to the function of government in Pakistan requires an understanding of the scope of military rule. Pakistan has spent almost half of the years since its independence under military rule, often with the government dissolved and martial law actively enforced. The first such period came little more than a decade after Pakistan’s partition from India. In 1958 Iskander Mirza launched a successful coup d’état; he was subsequently deposed by his own chief martial law administrator General Ayub Khan. This period of military rule lasted until 1971. Military rule would return at the end of the decade between 1977 and 1988, and again in 1999, when General Musharraf dissolved the government in a bloodless coup. The Pakistani Supreme Court deemed the coup legal, and the subsequent elections are considered to have been highly fraudulent. A provisional constitutional order suspended the nation’s constitution, imposing a formal state of emergency equivalent to martial law. Each period of military rule not only made the subsequent one more acceptable to the public, but also fostered a culture in which the disruptions of governance were permissible.

These lengthy periods of military rule have played a crucial role in the mal-development of the nation’s judicial system. After the 1999 coup, judges on the nation’s Supreme Court were forced to take an oath of allegiance barring them from challenging the decisions of the military government. Previous periods of military rule saw massive numbers of judges arbitrarily retired under Provisional Constitutional Orders. Academics such as Nasim Hasan Shah have noted the lack of any public outcry accompanying these decisions, suggesting their popular acceptance as indicative of “an absence of an entrenched tradition of upholding the independence of the judiciary in Pakistan.” The large-scale disruption of government that accompanies military rule not only threatened the immediate security of judges’ tenure of office but also developed a culture in which legal officials at all levels advanced through unquestioning cooperation with law enforcement and armed forces rather than through merit. This culture has largely been carried over even during periods of civilian governance. Attempts by judges to establish judicial independence from the executive and legislative branches have been met with hostility from civilian administrations, which have attempted to reduce the number of judges that sit on particular courts in order to influence decision-making. Some have even attempted remove the right of judicial review in constitutional cases all together.

The Pakistani Judiciary has taken the Musharaff trial as an opportunity to counteract the culture of passive acceptance in Pakistan. If handled well, the case can mark the first major step towards judicial independence in the new government. If handled poorly, it would be widely condemned as a show trial no different than those that were brought against ousted government officials, such as current Prime Minister Nawaz Sharif, following the imposition of military rule. The working disconnect in Pakistan’s judicial system implies that these shifts are unlikely to be realized at all levels at the same time. Changing the structure of the nation’s high court may be as simple as a new round of appointments, but the cultural dysfunction at the local level that led to the indictment of a baby retains more permanence. It may well be years before judicial reforms trickle down to these courts where the real legacy of military rule lives on.

The image featured was taken by Remy Steinegger on behalf of the World Economic Forum.

Jake Howry


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