We Stand by our PPP leaders. These Noon league scoundrels in Punjab govt must first book their own goons who stormed the Supreme Court Building in 1997!
It is very clear now that these Noon league morons do not understand the language of RECONCILIATION. Our PPP govt should open all criminal cases against the Noon League Convicted Hijacker Nawaz Sharif !

The peaceful protest of PPP against judicial dictatorship is a FUNDAMENTAL RIGHT of EVERY CITIZEN OF PAKISTAN! We Salute All Our Punjab PPP Leaders and Activists!

LONG LIVE PPP!
Jeeay Bhutto! Jeeay People’s President Asif Ali Zardari!

Senator Tarar elected as President

Senator Rafiq Ahmad Tarar, a retired judge of the Supreme Court, was elected president on December 31, 1997. Amid speculations that the presidency would go to a smaller province since the Prime Minister and the Army Chief of Staff are from the Punjab province, the presidential race had narrowed down to Senator Sartaj Aziz and Acting President Wasim Sajjad when Prime Minister Nawaz Sharif dropped his bombshell: “Justice (retd) Rafiq Ahmed Tarar was to be Pakistan’s next president. ” Over the next two days, it became apparent that even Sharif’s cabinet knew nothing about the decision while this unexpected announcement left many Muslim Leaguers bewildered.

For his remarks in press interviews against the judiciary, Justice of the Supreme Court, Mukhtar Ahmad Junejo, who also held the post of Acting Chief Election Commissioner, rejected Tarar’s nomination on December 18. A petition was filed against Junejo’s order in the Lahore High Court. Justice Qayyum admitted the petition on December 19 and suspended Junejo’s order, allowing Tarar to “participate in the election provisionally subject to further orders.” Justice Junejo was removed and replaced by retired Justice Abdul Qadeer Chaudhry as the Chief Election Commission.

It is no mere coincidence that he was on the Supreme Court bench that reinstated Nawaz Sharif as Prime Minister on May 26, 1993. Also casting a dark shadow on him is the referendum of December 1994 when, as a member of Zia’s election commission, he solemnly assured the people that 55 per cent and not just five per cent of the electorate had turned out to confer legitimacy on Zia’s dictatorial rule. Mr. Tarar also has to dispel the widely insinuated impression that he was involved in the “Quetta Shuttle” which divided the Supreme Court and wrote the saddest chapter in Pakistan’s constitutional history.

The selection of Senator Tarar as a presidential candidate was a surprise to all and not too well received by a broad section of society. The Prime Minister, of course, had his own reasons that he explained in his interview with the BBC. He said Senator Tarar was a patriot and a man of integrity and belonged to the middle class section of society. This could, of course, be said for millions of others as well. When asked why the presidential candidate was not selected from a smaller province as was being expected by the people, the Prime Minister said that such “petty matters” should not be given any consideration. The full participation by all the provinces in the federal decision-making process in Islamabad is essential for the unity and solidarity of the federation and is certainly not a “petty matter.”

LHC upholds Tarar’s plea

The Lahore High Court accepted, on Feb. 9 1998, the constitutional petition filed by Rafiq Tarar against his disqualification by the (former) Acting CEC and declared him qualified to contest for and hold the office of President. The acting CEC, Justice Mukhtar Ahmed Junejo of the Supreme Court, had found Tarar, a former Supreme Court Judge, guilty of propagating views prejudicial to the integrity and independence of the judiciary at the time of his nomination as a presidential candidate under Article 63(G) of the Constitution and debarred him from the December, 1997 contest.

The short verbal order did not deal with the question of fact involved in the case – whether Tarar in his interview of the weekly Takbir of June 27, 1996, and statement to the daily Jang, Rawalpindi, of Dec 4, 1997, propagated views prejudicial to the judiciary. Neither before the acting CEC nor in the LHC did Tarar or his counsel categorically denied the allegedly contemptuous statements in their entirety.

Tarar’s counsel, Barrister Ijaz Hussein Batalvi told the LHC that the interview carried by Takbeer did not fully convey the views of Tarar. In any case, Tarar was elected senator after the interview and was not debarred from the senatorial contest. The Jang interview did not refer to any judge as no judge left in disgrace on Dec 2. Besides, a penal action could not be based on newspaper reports. Again, a presidential candidate who is also a sitting member of parliament cannot be disqualified under Article 63. Article 41(2) says that a candidate should be qualified to be elected a member of parliament under Article 62 and disqualification under Article 63 cannot be read into it.

ISLAMIC PAKISTAN: ILLUSIONS & REALITY A comprehensive and detailed political history of Pakistan Abdus Sattar Ghazali

Civilian Rule

‘Men occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing ever happened’. Winston Churchill

When politicians are unable to solve political questions among themselves, usually Khakis barge in. Politicians claim that soldiers just crash into the corridors of power uninvited while soldiers maintain that they are sucked into the power against their wishes by fractious and intriguing politicians. There is a grain of truth in both statements. Sometimes, judicial branch of the government ends up handling questions which are essentially political in nature. Most of the judges are not comfortable with the notion of rendering judgments on political issues. Sitting on benches rendering political judgments can have many ‘occupational hazards’. During Benazir’s first term as Prime Minister, one supreme court judged complained to federal law minister that ‘please don’t send us all your political problems. That burden is too great for our shoulders’. (10)

Civilian leaders when in power try to gather maximum power and politicians of all persuasions have tried to either undermine judiciary or fill it with sympathetic judges to get desired results. Zulfiqar Ali Bhutto, the first civilian leader who had firm control over all affairs was instrumental in passing of the 1973 constitution. However, succumbing to his own authoritarian bent, he also managed to amend the constitution. Several amendments of 1973 constitution were related to judiciary. The Fourth Amendment of November 25, 1975 was related to preventive detention and power of high courts was restricted in this respect. Fifth Amendment of September 15, 1976 had several components to give executive leverage against judiciary. This amendment also fixed the tenure of chief justices of higher courts (Four years for high courts and five years for Supreme Court). It also gave executive the power to transfer a high court judge without his consent or consultation of chief justice. Executive could appoint a high court judge as puisne judge of supreme court and if he did not agree to his elevation he would automatically stand retired. When chief justice Yaqub Ali’s time came for retirement, constitution was conveniently amended (Sixth Amendment) which allowed chief justice to hold office for the proscribed term even if he have attained the retirement age.

Civilian leaders have used all available means both fair and foul to prevent encroachment of judiciary which they perceive as their turf or to get desired judgments. In early 1993, relations between Prime Minister Nawaz Sharif and president Ghulam Ishaque Khan deteriorated quite rapidly and Khan was planning to ouster Sharif. Some statements attributed to chief justice Muhammad Afzal Zullah indicated that judiciary may act to counter president’s move. President waited till 18 April 1993; the day of retirement of chief justice. In a very curious development, chief justice on the very day of his retirement was on a plane heading out of country. Justice Nasim Hasan Shah was sworn in as acting chief justice; another curious move as he should have been appointed permanent chief justice. President dropped his guillotine on the same day sending Sharif and assembly packing home.

When Sajjad A. Shah became chief justice, he had cordial relations with Benazir. Shah after assuming office agreed to government’s suggestion of appointing acting and ad hoc judges to Supreme Court and some of these nominees were retired judges. This move had been resisted by previous acting chief justice Sad Saud Jan. Seven justices (Zia M. Mirza, Fazal Karim, Munir Khan, Muhammad Ilyas, Mir Hazar Khan Khoso, Mukhtar A. Junejo and Irshad Hasan Khan) were appointed in this manner. The judgment of first political case decided on October 1994 by this new court showed where the court was heading. The case was of North West Frontier Province (N.W.F.P.) provincial assembly’s in house change by defection of two members where opposition provincial government had been replaced by People’s Party government headed by Aftab Ahmad Khan Sherpao. The ousted chief minister Pir Sabir Shah had approached the court. Supreme Court in a seven to five judgment rejected the petition. All judges who sided with chief justice’s view were those inducted in the last four months by Shah while all five permanent judges held the minority view. (11) Governments favor some judges for one reason or another and then expect that these judges will be acting as their agents in judiciary. However, there are some limits to how much judges can oblige. This was the main reason for deterioration of relations between Sajjad A. Shah and Benazir.

When Benazir government was dismissed second time on November 05, 1996, governors of Punjab and N.W.F.P. provinces considered Benazir loyalists were removed and chief justices of high courts were sworn in as acting governors. President Farooq Ahmad Leghari pressurized these two justices turned acting governors to dissolve provincial assemblies and assured them that if they resigned from judiciary they would be retained as permanent governors. (12) President Muhammad Rafiq Tarar had the audacity to meet chief justice Ajmal Mian in his chamber at Supreme Court and ask him not to appoint Justice Falak Sher as acting chief justice of Lahore high court as government did not like him. Chief justice declined but government went ahead and nominated a junior justice Allah Nawaz as acting chief justice. (13) During her second term, Benazir Bhutto had appointed Sajjad Ali Shah chief justice over the head of three senior justices. She thought that Shah would return the favor. When tensions rose between chief justice and Benazir about the issue of appointment of some judges, government decided to strike back. First, former Sindh chief minister Qaim Ali Shah spilled the beans in a newspaper. He claimed that he had persuaded Benazir during her first term to elevate Sajjad to the post of chief justice of Sindh high court. In the second term, Benazir didn’t want to elevate Sajjad to the post of chief justice of supreme court but he along with Sindh chief minister Abdullah Shah and defense minister Aftab Shaban Mirani (all Sindhis) persuaded Benzair to appoint Sajjad A. Shah. (14) In the judge’s case, Supreme Court had ruled that senior most judge should be considered for appointment if there is no valid negative element against him. Government decided to beat chief justice with his own stick and now filed a review petition asking the court whether the rule of seniority applied to chief justice of the Supreme Court (referring to Shah’s elevation against the rule of seniority). Counsel for federation raised objection to Shah heading the bench to decide about his own appointment. Shah refused the request and continued to preside the bench and federal government withdrew the petition. Government also started to harass chief justice and his family. Several incidents such as snatching of one of the car used by chief justice at gun point and arrest of an armed intruder from his residence (police claimed that the man was mentally disturbed) raised suspicion about harassment. His son-in-law and other relatives were sacked from their jobs and police harassed them. During Nawaz Sharif’s first term, special courts were set up to prosecute certain crimes. A Supreme Appellate Court was set up to streamline appeal process and a supreme court judge was assigned to this court. When justice Sajjad Ali Shah sitting on this court acquitted one accused, Sharif was furious. He persuaded chief justice to remove Sajjad A. Shah and appoint justice Muhammad Rafiq Tarar (a Sharif loyalist).

One example will show the modus operandi for the selection and appointment of the highest judicial authority of the country. In 1994, when Benazir decided to appoint Sajjad A. Shah as chief justice superceding three senior justices, she asked the intelligence agencies about the possible reaction from legal community. Shah was in Karachi sitting in his court hearing cases when law secretary (Justice Shaikh Riaz Ahmad) called him and asked him a curious question of what kind of dress he was wearing. Shah replied that he was in court therefore wearing official dress (Shirwani). Shah was told to head to the airport immediately without informing anyone and wait for next message. At airport, Shah boarded a special plane sent from Islamabad and on landing in Islamabad; he was taken to the president house where he met president and prime minister. He was then informed that he was being elevated to the office of chief justice and he took oath. When Shah developed differences with Benazir, she tried to cultivate other justices of the court. Benazir approached senior most judge of the supreme court, justice Ajmal Mian through a family friend Dr. Asim. Asim conveyed the message to Mian that Benazir was sorry that she appointed Sajjad A. Shah as chief justice and wanted to discuss the matter with him. Mian declined to meet Benazir secretly. She again approached Mian through Attorney General Qazi Muhammad Jamil suggesting that Mian should take up the case of appointment of Sajjad A. Shah while Shah was out of country. (15) Prime Minister of the country was encouraging a Supreme Court justice to act against his own chief justice. Such efforts damaged both the executive and the judiciary. Judicial Jitters in Pakistan – A Historical Overview Hamid Hussain Defence Journal, June 2007 http://watandost.blogspot.com/2007/05/judicial-jitters-in-pakistan-scholarly.html

Whigs, Robes & Shirwanis

‘We have too many high sounding words and too few actions that correspond with them’. Abigail Admas

Civilian and military rulers have been helped by eminent legal minds in judicial and constitutional matters. These legal celebrities change their own ideas depending on the situation. Governor General Ghulam Muhammad after dismissing Nazimuddin’s cabinet appointed A.K. Barohi as his law minister. Barohi was a strong advocate of a secular constitution and agreed with all those who wanted to keep religious leaders out of political arena. However when winds changed, then Barohi’s ideas also changed. Barohi later became legal advisor to General Zia and helped him to Islamize the country. Another bright legal mind is S. M. Zafar who had pleaded many cases of those in power. In 1997, while representing prime minister Nawaz Sharif in a contempt of court hearing, he argued that ‘another reason why the chief justice should drop the charges was that he was from Sindh and in Sindh there was a tradition that if someone comes to the house of a Sindhi, then all complaints against the guest were dropped’. (20) Very few lawyers can boast about presenting such arguments in defense of their clients in a court of law. Shareefuddin Peerzada is an old hand who is nicknamed ‘jadugar’ (magician). He has an unbeatable record of faithfully serving military rulers spanning almost the whole history of Pakistan including Ayub Khan, Yahya Khan, Zia ul Haq and Pervez Mussharraf. He has been gifted with the rare ability to pull different varieties of rabbits from his legal hat to fulfill the needs of military rulers.

Under the shadow of judicial activism, many judges crossed the fine line and many at times conveyed their biases prior to evaluating the full body of evidence. Chief justice Nasim Hassan Shah at the start of hearing of dismissal of Nawaz Sharif government stated that he will not be another Munir (referring to chief justice Muhammad Munir’s decision of validating Ayub Khan’s coup in 1958) and that ‘the nation will hear a good news’. During 1997 elections, chief justice Sajjad A. Shah toured Lahore for few hours and made his mind about low turn out of voters. Later that evening talking to Governor of Punjab Khawaja Tariq Rahim he remarked that if there was such a low turn out of elections and ‘if the results of the election were challenged in court on the ground that it lacked participation by the majority of the people, it was possible that the court could reject the result’. He later repeated these remarks to caretaker prime minister Malik Meraj Khalid. (21) At other times justices have actively taken the side of the executive even at the expense of the independence of their own institution or given judgments for petty personal interests. In November 1977, chief justice Anwar ul Haq upheld Zia’s martial law under the doctrine of necessity. One day before the judgment, he called Zia’s legal advisor Shareefuddin Peerzada to inform him about the judgment. Peerzada asked chief justice if he had given the authority of amending the constitution to General Zia. Haq replied that he had not given that authority to General Zia. Peerzada told him that without giving Zia the authority to amend the constitution, chief justice will be out of his job and a new chief justice will need to be sworn in. Hearing that Anwarl ul Haq inserted the words of ‘including the power to amend it (the constitution)’ in the judgment in his own hand writing. (22) He had done this without consulting other justices who were unaware of this last minute back channel communication between chief justice and government’s legal advisor. It is ironic that in 1979, chief justice of Supreme Court Anwar ul Haq and chief justice of Lahore high court Maulvi Mushtaq Hussain held brain storming sessions with General Zia ul Haq at his residence to help the military ruler draft a Constitutional Amendment (Article 212-A) to curtail the activities of their own institution. This amendment removed any oversight by civilian courts against the judgments of military courts. (23)

The conflict between judiciary and executive in 1997 showed that there was very little if any regard for the most important institutions of the state. The high office holders merely used their positions to fulfill their narrow personal interests rather than defending any high ideals. Prime Minister used his absolute majority in the parliament in a very irresponsible way by hastily enacting new laws and even amending the constitution without any serious debate. It made mockery of the whole concept of representative government. On the other hand, bitter infighting among Supreme Court justices and reckless attitude of the chief justice shocked everyone. Chief justice really became a loose canon acting way beyond the legal norms. In an unprecedented manner, he was issuing orders from the bench ordering the president to nominate justices which he had selected. He was also issuing and suspending executive orders and even suspending constitutional provisions in a cavalier manner simply to humiliate Prime Minister.

A former chief justice Saeeduzaman Siddiqui long after his retirement pontificated that ‘by legitimizing military takeovers, the judges have abdicated their role to defend the constitution. (24) Siddiqui was the judge who colluded with the sitting government to oust his own chief justice. In addition, he served as chief justice for three month after General Mussharraf’s take over before being sent to the retirement wilderness . He conveniently forgot that during his tussle with chief justice, a number of senior lawyers came as mediators requesting supreme court judges to sort out their differences amicably to safeguard the sanctity of the institution of the supreme court but he went ahead and played a leading role in writing a sad chapter in the judicial history of Pakistan.

In 1996, supreme court deliberated about appointment of judges. Government fearful of the fact that the judgment will hamper its efforts to induct favorite judges pre-empted supreme court. The judgment was to be announced on March 20, 1996. On March 19, government announced the appointment of twenty judges to Lahore high court and seven to Sindh high court. Acting chief justices of both courts; justice Irshad Hasan Khan of Lahore court and justice Abdul Hafeez Memon of Sindh court were Supreme Court justices who were deputed as acting chief justices, administered oaths to new judges without even informing let alone consulting with the chief justice of the Supreme Court. (25) Both acting chief justices were appointees of Benazir and they returned the favor by administering oaths to newly inducted judges favored by government without informing the chief justice. Supreme Court justices finalized the draft of the order to be issued in case of recommendations about appointment of judges to higher courts. Government had pre-empted their move by appointing 27 additional judges to Lahore and Sindh high courts. Judges had decided to adhere to seniority principle and the short order was announced on March 20. One week later, chief justice Sajjad A. Shah held a meeting with president and agreed to confirm three acting/ad hoc judges (Justices Mukhtar A. Junejo, Raja Afrasiab Khan and Muhammad Bashir Jehangiri) as a ‘gesture of good will’ to the government. Within a week, chief justice had back tracked from the consensus opinion of the supreme court justices. He did not consult his fellow justices and it was no wonder that three justices (Ajmal Mian, Saeeduzaman Siddiqi and Munawar Mirza) admonished Shah for flouting the judgment regarding ‘judges’ case’. (26)

In an effort to avoid conflict with fellow judges or to be on the correct side, some justices didn’t live up to the expectations. In 1996, during the final version of the judgment of ‘Judges case’, there was disagreement between chief justice Sajjad A. Shah’s and justice Ajmal Mian’s version. Justice Fazal Ilahi Khan singed on Mian’s judgment on March 20 but when chief justice pressed him, he also signed on Shah’s judgment on April 3 even without reading it. When asked whether he had read the judgment because there was discrepancy between two judgments, he replied that he had no time to read it before signing it. (27) Fazal Ilahi Khan wanted to hedge his bets and did not want to ruffle any feathers even if meant an indefensible action. Retired justice Rafiq Tarar who had played an important role in splitting the judiciary at the behest of Nawaz Sharif became president of the country. When he had retired from Supreme Court in November 1994, he was not given a reference at his own request. Five years later, Supreme Court decided to honor him and he was invited for a dinner at supreme court where he was given a shield which was signed by all justices. (28)

The complex relationship of personal and professional responsibilities can be judged from one example. Agha Rafiq Ahmad, a junior session judge was a close friend of Benazir’s husband Asif Ali Zardari and he had helped in Sajjad A. Shah’s elevation to the post of chief justice of Sindh high court through Sindh chief minister Abdullah Shah, during Benzair’s first tenure (1988-1990). When Benazir was considering Sajjad for chief justice slot, Zardari held several meetings with Sajjad A. Shah and Agha Rafiq was present in some of those meetings. When Sajjad became chief justice of Supreme Court, he paid back his old friend. Agha Rafiq was serving as Director of PIA. Sajjad advised Benazir to appoint Rafiq as law secretary in the Sindh government and after sometime there he will be qualified to be appointed as a judge of higher court. (29) However, everyone was impatient and when Zardari wanted to elevate Rafiq to high court, Shah told prime minister that Rafiq was a very junior session’s judge (number 34 on the seniority list of 37) and it would create problems. However, Rafiq was elevated as Sindh high court justice. Chief justice of Sindh high court Abdul Hafeez Memon was pressured by a senator to nominate another junior session judge Shah Nawaz Awan (number thirteen on seniority list) for high court appointment. When chief justice Sajjad A. Shah asked Memon why he nominated him, he was told that he was being pressurized and the senator who wanted him to be elevated told Memon that if a judge who was number thirty four was being nominated then what was wrong with nominating number thirteen on the same list. (30)

Nawaz Sharif government elevated justice Mehbood Ahmad as chief justice of Lahore high court and second aspirant justice Muhammad Ilyas felt let down. Sajjad A. Shah, who was justice of supreme court at that time visited him and told him that ‘he should put his faith and trust in God, who would not let him down and would compensate him in some other way’. When Shah became chief justice, he nominated Ilyas who was by then retired for justice of supreme court. After taking oath, Ilyas was sent as acting chief justice of Lahore high court. (31) A judge was appointed to the supreme court not because he was fit for the post but to compensate him for some alleged injustice done to him and legal balls were juggled to give him the satisfaction to end his career serving as chief justice of a high court. A special accountability court headed by justice Malik Abdul Qayyum sentenced Benazir Bhutto and her husband on corruption charges during Nawaz Sharif’s government. In April 2001, supreme court set aside the judgment during the appeal when 32 tapes of secret conversations between justice Qayyum and then head of Accountability Cell and Nawaz Sharif’s aid Senator Saif ur Rahman were played. Sharif government had pressurized justice Qayyum to convict Benazir and her husband. (32)

Appointing judges as acting head of executives (Governor General, President, and Governor) gives some leverage to government. This practice has been followed for a long time in Pakistan. In 1950s, Munir served as acting Governor General when Ghulam Muhammad was away from country. Acceptance of positions in government during active service and openly joining politics after retirement also tarnishes the image of judiciary and creates doubts about their impartiality. Chief justice Muhammad Munir gave the historic decision of validation of General Ayub Khan’s martial law in 1958. Immediately after his retirement he accepted a government job in Japan. Later he also served as law minister during General Ayub’s rule. Political governments take care of their favorite justices even if they are pushed aside by their own brother justices. In 1996, Supreme court laid down guidelines for appointment to higher judiciary. This affected two retired justices who were appointed ad hoc justices of the Supreme Court and they were removed from Supreme Court. Benazir government obliged them by appointing one (Justcie Munir Khan) as provincial ombudsman and the other (Justcie Mir Hazar Khan Khoso) member of high powered Federal Public Service Commission.

Justcie Irshad Hasan Khan served as federal law secretary during the Martial Law of General Zia. He later rose to become chief justice of the Supreme Court (January 26, 2000 – January 06, 2002). High court justice Ghaus Ali Shah joined Muslim League of Nawaz Sharif and served as Sharif’s confidant for long time. Supreme Court justice Afzal Lone was sitting on the bench which restored Nawaz Sharif government in 1993. Later he headed the Lone Commission which absolved Nawaz Sharif of any wrongdoing in the cooperative scandal. Later, Sharif paid Lone back by nominating him to become senator. Supreme court justice Muhammad Rafiq Tarar after his retirement served Sharif’s business interests and was later elected senator on Nawaz Sharif’s Muslim League ticket. He was duly rewarded by appointing him president for his loyal services. Tarar paid back by retaining his post when he agreed to general Mussharraf’s request to stay on as president when the later had booted out Nawaz Sharif and assemblies. Mussharraf in turn returned the compliment by unceremoniously sending Tarar home in June 2001. Tarar was booted out of the presidency by putting him in a private car and sent home in the most humiliating way. Mussharraff needed to act in this way not for a great national cause but he needed to get the lofty title of president to get the correct protocol during his upcoming visit to India.

If one takes into account the relationship of various judges with their political patrons and their judgments on crucial cases, then some questions arise about the motive of their judgments. Justcie Tarar saw everything wrong with Nawaz Sharif dismissal by president in 1993 and was as one of the justice of the Supreme Court bench which decided to restore Sharif government. Justcie Sajjad A. Shah saw everything wrong with Benazir’s dismissal in 1990. He was one of the two dissenting judges (the other one was Justcie Abdul Shakurul Salam) in a 1991 decision who did not approve of president’s decision to dismiss Benazir. He wrote that president had exercised his power with ‘malafide intention’. (33) In 1993, Shah saw everything right with Sharif’s dismissal and was the lone dissenter in a ten to one decision of Supreme Court which restored Sharif government. In 1997, when his relations had gone sour with Benazir, he viewed dismissal of Benazir kosher and even called president’s discretion of sacking prime minister as a balance of powers and ‘a safety valve to prevent imposition of martial law in the country’. (34) When president dismissed Benazir government in 1990, the dismissal was challenged in courts. Peshawar high court bench dismissed the petition by majority but justice Qazi M. Jamil was the dissenting judge. Jamil was also on the bench which restored provincial assembly. For these ‘crimes’, he was not confirmed by the president. Benazir duly rewarded Qazi M. Jamil by appointing him attorney general during her second term.

Chief justice Nasim H. Shah’s favorable tilt towards Muslim League and his antipathy towards Pakistan Peoples Party were well known. He had exchanged harsh words with chief justice Muhammad A. Zullah when later received Benazir at a function when she was opposition leader. He headed the bench which restored Sharif government in 1993. He had been humiliated earlier during Benazir government when Benazir refused to sit on the same table with him. The reason was that Nasim H. Shah was one of the justices who had upheld the death sentence of Benazir’s father Zulfiqar Ali Bhutto in 1979 (Nasim H. Shah was one of the majority justices on the bench which had given a four to three verdict of rejection of appeal of death sentence).

When chief justice Sajjad A. Shah was booted out by his own brother judges, the new court decided to clear up some contentious issues. All cases involving government and Prime Minister were dealt with judgments favorable to the government’s position. In March 1998, a seven member bench dismissed the petition challenging the 13th Constitutional Amendment. Interestingly, the petitioner was now not enthusiastic about perusing the case which suggests that the petition was part of the tussle between then chief justice (Sajjad A. Shah) and Prime Minister (Nawaz Sharif) and after the ouster of chief justice no one was interested in it. In May 1999, the court acquitted all who were charged with contempt of court including prime minister and several members of parliament. After the dismissal of Nawaz Sharif’s government an appeal was field against acquittal in September 2000. A five member bench of supreme court heard the appeal and convicted seven accused of contempt of court sentencing them to one month imprisonment and 5000 rupees fine. (35) Such decisions only degrade the image of judiciary and average citizen loses faith in the institution. Judicial Jitters in Pakistan – A Historical Overview Hamid Hussain Defence Journal, June 2007 http://watandost.blogspot.com/2007/05/judicial-jitters-in-pakistan-scholarly.html

Juggling of Judges

‘That you may retain your self-respect, it is better to displease the people by doing what you know is right, than to temporarily please them by doing what you know is wrong’. William Boetcker

In every country, appointment of judges is sometimes a contentious process and government strives to install like minded judges. Same is true in case of Pakistan and every government has tried to appoint judges who are viewed in favorable light; however in the process legal limits have been stretched to the extreme. In June 1954, Ghulam Muhammad appointed justice Muhammad Munir as chief judge (the title was later changed to chief justice) of Supreme Court. Normally senior most judge is appointed to the post. At that time the senior most judge was Abu Saleh Muhammad Akram who was a Bengali. He gave a written note waiving his seniority rights. (46) In 1976, Prime Minister Zulfiqar A. Bhutto appointed justice Aslam Riaz Hussain who was number eight on seniority list as chief justice of Lahore high court. The senior most justice Maulvi Mushtaq Hussain who expected to be the chief justice never forgot that insult. Bhutto also extended the tenure of chief justice Muhammad Yaqub by enacting a constitutional amendment. The next senior justice Anwar ul Haq who was expected to succeed Yaqub felt aggrieved. In an ironic twist of fate, three years later justice Maulvi Mushtaq Hussain (now chief justice of Lahore high court) presided a bench of high court which sentenced Bhutto to death for ordering the assassination of a political opponent. Justice Anwarl ul Haq (now chief justice of Supreme Court) presided the bench of Supreme Court which upheld Bhutto’s death sentence. In 1994, when Benazir was considering Sajjad A. Shah for the post of chief justice, Benazir’s husband Asif Ali Zardari told Sajjad that government will nominate him on the condition that he sign on a written resignation without date to be used in case he decide otherwise. Justcie Sajjad A. Shah was smart enough to refuse to hand over the very sword to Benzair which could cut off his own head anytime.

In Pakistan, executive has tried to use all legal loopholes to influence the outcome of a case. Justice A. R. Cornelius (he was the sole dissenter in the case which upheld Governor General’s decision to dismiss constituent assembly) stated that he was convinced that in 1955, ‘Ghulam Muhammad had pressured and influenced the other justices during the time the case was being argued before the court’. (47) Government sometimes shuffles the deck of justices sitting on the bench to make sure that it’s case prevails. The case of challenge of dismissal of constituent assembly by Maulvi Tamizuddin in 1955 is a good example. In 1955, The supreme court panel included chief justice Muhammad Munir and justices A. S. Akram, A. R. Cornelius, Khawaja Shahabuddin and Muhammad Sharif. Justice Sharif had worked under Munir at Lahore high court and was considered his protégé. Cornelius and Shahabudin were considered independent minded judges. The constitution of the bench showed that Munir and Sharif will accept Governor General’s argument while Cornelius and Shahabudin may not accept it. Akram was not a strong judge and may side with either group. Akram had already buckled when he waived his seniority in favor of Munir for the post of chief justice. This was considered a level ground for both parties. When the case moved through Sindh high court, Government assigned Shahabudin as acting Governor of East Bengal (This was unusual as in the absence of governor, normally the chief justice of the high court fills the post of acting Governor). He was replaced with S. A. Rehman who was considered to be in line with Munir’s thinking. (48) Now the odds were four to one in favor of government and this proved to be correct in the final judgment.

Benazir’s first stint as prime minister was short-circuited when president sacked her in August 1990. Petitions were filed against the president’s decision. On September 26, 1990, Peshawar high court set aside governor’s order and restored provincial assembly. Federal government got the judgment suspended via justice Usman Ali Shah of Supreme Court who happened to be in Peshawar. In Karachi, constitutional petitions challenging the president’s order were filed in the high court. Chief justice Sajjad A. Shah set up a five member bench headed by him to hear these petitions on September 24. Government had reservations about justice Sajjad A. Shah, who was on friendly terms with Benazir’s family. On September 19, he was made acting governor of Sindh when governor Mahmud Haroon went for a few days religious trip to Saudi Arabia. The trip normally lasts 3-4 days, however Haroon developed ear pain for which he had to stay longer. Justcie Saeeduzzaman Siddiqi was appointed acting chief justice and headed the bench which heard the petition and as expected unanimously dismissed it on October 18, 1990. (49) When the objective was achieved, real governor came back home and Sajjad A. Shah reverted to become chief justice of the high court and few days later kicked upstairs and appointed justice of Supreme Court.

On April 18, 1993, president dismissed Nawaz Sharif’s government. A constitutional petition came for Supreme Court hearing. Chief justice Nasim Hassan Shah and justice Muhammad Rafiq Tarar’s sympathetic views towards Nawaz Sharif were known. During the hearings, both judges would ask other judges about their views on the merits of the petition. The judgment was announced on May 26, 1993 and Nawaz Sharif government was restored. The judgment was ten to one and the sole dissenter justice was Sajjad A. Shah. In his dissenting note, he wrote that ‘seemingly it so appears that two Prime Ministers from Sindh were sacrificed at the altar of Article 58 (2) (b) of the Constitution but when the turn of the Prime Minister from Punjab came, the tables were turned’. (50) The ethnic factor was now quite visible even in the highest court of the land.

Musical Chairs for Judges

‘We go where our vision is’. Joseph Murphy

All incumbent governments whether civil or khaki have manipulated the timing of oath taking ceremony to tinker with seniority question. In 1985, justice Ajmal Mian was appointed acting chief justice of Baluchistan high court. Immediately after the ceremony, chief secretary Salim Abbas Jilani conveyed the message of governor and Martial Law Administrator Lt. General K. K. Afridi to him that the two newly nominated judges of high court should be administered oath on separate days. Governor wanted that oath should be administered to justice Munawwar Mirza one day before justice Mir Hazar Khan Khoso. (51) This would give seniority benefit to Mirza. The case of justice Abdul Hafeez Memon is a good example of how executive manipulates the system to get desired results. In December 1989, during Benazir’s first term as prime minister, Memon was elevated as acting justice of supreme court. Administration of oath for newly appointed judges of supreme court was tinkered with to give the favor of seniority to one judge (Memon). Memon was administered oath on December 12, 1989 while justices Ajmal Mian, Abdul Qadeer Chaudry and A. S. Salam on December 13 and justice Rustum Sidhwa on December 14, thus giving seniority advantage to Memon (52) After dismissal of Benazir government in 1990, justice Memon was reverted back to Sindh high court.

During Benazir’s second term, she didn’t get along well with chief justice Nasim Hasan Shah because of latter’s sympathies with Nawaz Sharif. On April 14, 1994, the day Nasim H. Shah retired, a notification was issued about elevation of Memon as chief justice of Sindh high court and he was administered oath promptly. Government now found that he would be 62 years old which is the age for retirement from high court. Another notification was issued by which Memon was appointed judge of supreme court because the age of retirement for Supreme Court justice is 65 years and then sent to Sindh high court as acting chief justice. Chief justice of Lahore high court Justcie Mehboob Ahmad was appointed during Nawaz Sharif time. When Benazir came to office, a notification was issued to send justice Mehboob to Federal Shariat Court. Mehboob declined and stood retired. During Benazir’s first term, Qazi M. Jamil was appointed justice of Peshawar high court. He was sitting on the bench which heard the petition of Benazir’s dismissal in 1990 and dismissed it by a majority decision. Jamil wrote the dissenting note, therefore he was not trusted by Nawaz Sharif government and was not confirmed. During Benzair’s second term, Jamil was paid back by appointing him attorney general. In 1996, Supreme Court entertained a constitutional petition regarding appointment of judges. Government knew about the court’s judgment which laid down some rules about appointment of justices prior to its announcement. One day before the date of announcement of the judgment, government confirmed ten additional judges of Lahore high court and seven additional judges of Sindh high court prior to their due dates. Chief justices of both courts administered oaths on the same day and some judges were administered oaths early in the morning of the day of announcement of supreme court decision. (53) This was done to secure the position of justices which government favored and save some of them from coming under the clout due to Supreme Court’s decision.

Appointing judges as acting rather than permanent is another instrument used by government to influence judiciary. General Zia ul Haq used this instrument frequently to keep judiciary in its place and avoid any embarrassment through the courts. Benazir’s second stint as prime minister gives a glimpse of the abuse of this exercise. In April 1994, when Nasim Hasan Shah retired, Benazir government appointed justice Sad Saud Jan as acting chief justice. Jan was the senior most justice and expected to become permanent chief justice but Benazir was leery about him and was not sure whether he would accommodate government as desired. Sindh high court was functioning with a permanent chief justice Nasir Aslam Zahid who apparently did not get along well with provincial government. Justice Abdul Hafeez Memon was appointed as acting judge to Supreme Court by Benazir in her first term but was dropped when her government was dismissed in 1990. In the new game of chess, Memon was elevated to Supreme Court as permanent judge but after administration of oath sent to serve as acting chief justice of Sindh high court. The permanent chief justice of the court justice Nasir Aslam Zahid was sent to Federal Shariat Court, a wilderness area for judges. In 1995, permanent chief justice of Lahore high court Mian Mehboob Ahmad was sent to Federal Shariat Court (he declined and stood retired) while Supreme Court justice Muhammad Ilyas (who was nominated to Supreme court after his retirement from high court) was deputed acting chief justice of Lahore high court. In January 1995, when chief justice of Peshawar high court retired, government appointed justice Ibne Ali as acting chief justice. At one time, three of the four high court chief justices were acting rather than permanent.

In March 1996, Supreme Court issued judgment outlining some basic principles for the appointment of judges to higher courts. Government rather than implementing the recommendations decided to embark on the game of hide and seek. Justice Mamoon Kazi who was serving as ad hoc judge in Supreme Court was supposed to revert back to Sindh high court and justice Nasir Aslam Zahid to go back from Shariat Court to assume his previous post of chief justice of Sindh high court. Government instead elevated Zahid to Supreme Court and appointed Kazi as chief justice of Sindh high court without even informing chief justice Sajjad A. Shah. Governor of Sindh administered oath to justice Kazi. When Zahid came to Islamabad to be administered oath by chief justice, the furious chief justice refused to administer oath. This was an embarrassing situation. Two supreme justices (Ajmal Mian, Salim Akhtar) and justice Zahid himself pleaded with chief justice not to pick another fight with government and he relented. (54) Such ill thought and short sighted policies of government belittles its own image and creates fissures in the judiciary.

Conclusion:

‘Judge thyself with the judgment of sincerity, and thou will judge others with the judgment of charity’. John Mitchell Mason

Pakistan’s judicial history has seen its ups and downs. In the last sixty years, the independence and prestige of the judiciary has been gradually eroded. Current crisis is just another downward trend. Clearly the decision taken by General Mussharraf to sideline another chief justice has gone out of control. Chief justice Chaudry has emerged as a hero for confronting the arbitrary powers of the executive and army chief. Frustrations of people related to political, economic and security problems have found an avenue and many who would have cared less of what happens to the chief justice are using this opportunity to express these frustrations. Political parties who have their fare share in the present sorry state of the judiciary are now championing the cause of independence of judiciary. The issue is now not mere a simple legal or administrative one but has other complicating factors which are essentially political.

It is not clear at present what course government will take. There are only two options available for general Mussharraf: working by all means to shunt out chief justice or reconciliation by taking back the reference against him and allowing him to return as fully functional chief justice. Both options are marred with many complications both for general Mussharraf and the country. If Mussharraf decides to double his bets, he may add new charges of politicization of chief justice office by Chaudry and dig out some more dirt against him. All of us have a number of skeletons in our closets and intelligence agencies keep a register of those skeletons. New ‘sins’ of chief justice may be added to the formal charge sheet or simply leaked to the media to catch some ground and then government will try to get a favorable verdict from the full bench of the Supreme Court. If this approach is taken then government will have to work on judges on the bench using carrots and sticks. Carrots are plenty while the stick may include an old legal loophole to ask judges to take a fresh oath and government will use this opportunity to sideline undesirable judges on the bench. There is another door which is open for the government. When Iftikhar M. Chaudry was elevated to chief justice post, his appointment was challenged by justice Falak Sher of Supreme Court on grounds that Chaudry was not the senior most justice at the time of his appointment. That petition is still lying in the dark corners of the Supreme Court and government may decide to use it. There is a precedent of the removal of chief justice in this manner when in 1997, chief justice Sajjad A. Shah was removed after three years by his brother justices. However at that time, majority of justices of Supreme Court rebelled against their own chief justice. In current circumstances, although some justices have grievances against chief justice however in view of public mood not too many justices will be willing to follow that example. Justices of the Supreme Court are under tremendous pressure from various quarters. If the charges against chief justice are not serious, it is very likely that the Supreme Court bench may exonerate him creating a new challenge for general Mussharraf.

If Mussharraf withdraws the reference and allows the chief justice to assume his office without any penalty then it will significantly undermine the authority of general Mussharraf. In addition, chief justice has a long way to go before his retirement and he will be the unpredictable factor limiting room of maneuver for general Mussharraf. Mussharrf is not likely to follow this path and will not be comfortable leaving a ticking bomb at such a high place as chief justice of Supreme Court. A more likely outcome is a behind the scene deal where some face saving option is given to the chief justice and he is eased out of his current position. Later when the dust settles, he can be compensated in some way. An essential element of all these options is to prevent linkage of chief justice issue with other political and social issues and government will like to use all available means to prolong the process hoping that the protest fizzles out. If political violence gets out of control then as a last resort general Mussharraf may decide to wind up the whole civilian façade and restart from scratch. No matter how the current crisis ends, general Mussharraf will come out of it much bruised and weakened. The only real pressure on general Mussharraf can only come from the senior brass of the military. Even mild criticism or gentle prodding from this group will force general Mussharraf to rethink his strategy.

In the current crisis there is no winner and everybody including government, general Mussharraf, judiciary, chief justice Chaudry and lawyer community are all losers. The most damaging effect has been on society in general. General Mussharraf’s action was reckless and equally crude was the response of the lawyer community. The rowdy and uncivilized behavior of lawyers significantly lowered their prestige. Rival lawyers using abusive language and manhandling their opponents in front of cameras is a new low for this community. Some bar association leaders threaten to revoke membership of those lawyers who represent government in the case. One lawyer Malik Muhammad Qayyum has approached Supreme Court against the presidents of Lahore and Multan bar associations who had called Qayyum a traitor and threaten him with suspension of his membership. (55) Chief justice Chaudry won the respect of majority of population but he fell victim to his own compulsions and lost his composure. He has significantly undermined his own position by openly attending rallies organized by political parties. He looks more like a politician and it is unlikely that he can perform as an independent and neutral justice if he returns to Supreme Court. Reckless attitude of law enforcement agencies in dealing with the protesting lawyers gave another blow to the legal profession and state institutions. Seeing the pathetic state of state institutions including the judiciary, it is no surprise that common man will be more inclined to take his case to tribal council, political party apparatus or assertive clergy rather than approaching a court of law. The fragility of the state and its pillars has become quite obvious and general populace has lost any hope of redressing their grievances through these normal channels. In such an environment, the appeal of non-state actors and sub national forces whether religious, sectarian, ethnic or tribal increases dramatically. These forces will gain at the expense of the state authority and they are the only winners in present standoff. Current crisis removed another chip from the pillar of legitimacy of not only the rulers but also the state and its institutions and is another step towards fragmentation of the state and society.

‘Look not mournfully into the past. It comes not back again. Wisely improve the present. It is thine. Go forth to meet the shadowy future, without fear’. Henry Wadsworth Longfellow

Notes:

1- Allen McGrath. The Destruction of Pakistan’s Democracy (Karachi: Oxford University Press, 1996), p. 185

2- Muhammad Munir. From Jinnah To Zia (Lahore: Vanguard Books, 1980, Second Edition)

3- Zia’s confidant General K. M. Arif in his book dedicated seven pages to describe Safdar Shah’s case. General (Retired) Khalid M. Arif. Khaki Shadows: Pakistan 1947-1997 (Karachi: Oxford University Press, 2001), p. 291-298

4- for a detailed discussion of taming of judiciary during military rule, see Hamid Hussain. Penetration of Civil Society in a Praetorian State – Case of Pakistan. Defence Journal, Vol. 7; No: 10, May 2004

5- Arif. Khaki Shadows, p. 290

6- For a scathing review of judicial decisions during this time period, see the piece written by a former President of Supreme Court Bar Association Hamid Khan. ‘The Military and Judiciary 1999-2002’. The Nation, December 30, 2002

7- The Nation, January 03, 2003

8- Interview of Naeem Bukhari, Newsline, April 2007

9- Syed Talat Hussain. Justice Courageous. Newsline, April 2007

10- Quoted in Iqbal Akhund. Trial & Error: The Advent and Eclipse of Benazir Bhutto (Karachi: Oxford University Press, 2000), p.

11- cited in Ajmal Mian. A Judge Speaks Out (Karachi: Oxford University Press, 2004), p. 160-61

12- Sajjad Ali Shah. Law Courts in a Glass House (Karachi: Oxford University Press), p. 297

13- For details of this incident see, Mian. A Judge Speaks Out, p.330-31

14- The Friday Times, April 11-17, 1996

15- Mian, A Judge Speaks Out, p. 196

16- Shah. Law Courts, p. 181-82

17- For details of these unfortunate events see the two perspectives from opposite ends Mian. A Judge Speaks Out, p. 222-226 and Sajjad Ali Shah. Law Courts, p. 412-420

18- Mian. A Judge Speaks Out, p. 209

19- For his interview see, Newsline, April 2007

20- Quoted in Shah. Law Courts, p. 478

21- Shah. Law Courts, p. 323-24

22- Arif. Khaki Shadows, p. 291

23- For details of this see Arif. Khaki Shadows, p. 299-300

24- Quoted in Newsline, April 2007

25- Mian. A Judge Speaks Out, p. 183

26- Mian. A Judge Speaks Out, p. 187-88

27- Mian. A Judge Speaks Out, p. 191

28- Mian. A Judge Speaks Out, p. 330-31

29- The Friday Times, April 11-17, 1996

30- The incident is narrated by Sajjad A. Shah in Shah. Law Courts, p. 232

31- Shah. Law Courts, p. 199-200

32- Zahid Hussain. The Judgment and After. Newsline, May 2001

33- Shah. Law Courts, p. 163

34- Shah. Law Courts, p. 344

35- Mian. A Judge Speaks Out, p. 281-83

36- This event is described in detail by General Arif. Arif. Khaki Shadows, p. 307-309

37- Quoted in Mian. A Judge Speaks Out, p. 158

38- Mian. A Judge Speaks Out, p. 181

39- Shah. Law Courts, p. 272-73

40- Mian. A Judge Speaks Out, p. 249

41- Mian. A Judge Speaks Out, p. 245

42- Daily Times, April 19, 2007

43- Daily Times, April 21, 2007

44- Mian. A Judge Speaks Out, pp. 263-273

45- Quoted in Mian. A Judge Speaks Out, p. 195

46- For details of this see McGrath. The Destruction of Pakistan’s Democracy, p. 195

47- Quoted in McGrath. The Destruction of Pakistan’s Democracy, p. 177

48- For details of this see McGrath. The Destruction of Pakistan’s Democracy, p. 197-98

49- For details of these maneuverings see Shah. Law Courts, p.146-47 and Mian. A Judge Speaks Out, p. 128

50- Quoted in Mian. A Judge Speaks Out, p. 147

51- Mian. A Judge Speaks Out, p. 75

52- Mian. A Judge Speaks Out, p. 122

53- For details of this episode see, Shah. Law Courts, p. 253-54

54- Mian. A Judge Speaks Out, p. 200-202

55- Daily Times, May 12, 2007

Dr. Hamid Hussain is an independent analyst based in New York. For comments & critique [email protected]. His website is http://www.viewsonnews.net. Judicial Jitters in Pakistan – A Historical Overview Hamid Hussain Defence Journal, June 2007 http://watandost.blogspot.com/2007/05/judicial-jitters-in-pakistan-scholarly.html

THE SUPREME COURT UNHOLDS BENAZIR’S DISMISSAL

On 6 August 1990, President Ghulam Ishaq Khan, under Article 58(2)(b) of the constitution, had dissolved the National Assembly and the government of Benazir Bhutto. The said dissolution order was challenged in various High Courts. Five petitions came up before the Lahore High Court for adjucation. However, the Court unanimously held that the grounds weighed with the President for dissolving the National Assembly had direct nexus with the preconditions prescribed the Article 58(2)(b) of the constitution. Thus, according to the High Court’s judgement, the government of the Federation could not be carried on in accordance with the provisions of the constitution and an appeal to the electorate was necessary.

In an appeal, the Supreme Court, by majority, in a case known as Ahmed Tariq Rahim v. Federation of Pakistan upheld the decision of the Lahore High Court pertaining to the dissolution of the National Assembly.

WHY THE NAWAZ SHARIF GOVERNMENT WAS RESTORED?

On May 26, 1993, a full bench of the Supreme Court, in an almost unanimous verdict, declared that President Ghulam Ishaq Khan had acted unlaw fully in dissolving the National Assembly and dismissing the Nawaz government. The Supreme Court announced: “On merits by majority (of 10 to 1) we hold that the order of the 18th April, 1993, passed by the President of Pakistan is not within the ambit of the powers con ferred on the President under Arti cle 58(2)(b) of the constitution and other enabling powers available to him in that behalf and has, there fore, been passed without lawful authority and is of no legal effect.”

Chief Justice Nasim Shah took the view that the president and not the prime minister had been instrumental in subverting the spirit of the constitution because “the president had ceased to be a neutral figure and started to align himself with his opponents and was encouraging them in their efforts to destabilize his government.”

However, Justice Sajjad Ali Shah, the only Sindhi judge of the Su preme Court in his dissident verdict pointed out that two Sindhi Prime Ministers, before this, were dismissed under the same article of the constitution, but the Supreme Court upheld the decision. However, when it was the turn of a Prime Minister from the Punjab then the ta bles were turned and the assembly as well as the government was re stored. “Seemingly it so appears that two Prime Ministers from Sindh were sacrificed at the altar of Article 58(2)(b) of the constitution but when turn of Prime Minister from Punjab came the tables were turned.”

The dissenting judge added: “Indisputably right at the very outset of the proceedings indications were given that the decision of the court would be such which would please the nation…In my humble opinion decision of the Court should be strictly in accor dance with law and not to please the nation.” Throughout the proceedings, the Chief Justice gave such remarks that led to the belief that the judges had already made up their minds.

The Supreme Court apparently gave its verdict against President Ghulam Ishaq Khan because it knew that the president has lost support of the power arbiter, the Army. The subsequent developments confirm this belief as the Chief of Army Staff, General Abdul Waheed Kakar forced Ghulam Ishaq Khan and Mohammad Nawaz Sharif to resign.

BENAZIR’S SECOND DISMISSAL ALSO UPHELD

The Supreme Court, on 29 January, 1997, by a majority decision upheld President Leghari’s proclamation dissolving the National Assembly and dismissing Benazir’s government. Justice Zia Mahmood Mirza was the only judge who said the presidential order was illegal and could not be sustained, the prime minister and the cabinet stood restored.

Six of the seven judges on the bench upheld all the charges leveled by the president excluding the murder of Mir Murtaza Bhutto saying this was before a tribunal. The allegation of extra-judicial killings in Karachi was ground number one in the presidential proclamation dismissing the Benazir Government.

The court held that it was not necessary that all the material should be before the president to form his opinion before the dissolution of the assembly as was claimed by Aitzaz Ahsan. “Partial evidence was enough for forming the opinion…and there was no harm if corroborative and supportive material was produced after the dissolution of the assembly.”

The six judges of the bench disagreed with Benazir’s lawyer, Aitzaz Ahsan, that his client may also be given the same relief as provided to Nawaz Sharif, that is, the restoration of the assembly and her government.

Justice Zia Mehmood Mirza disagreed with the majority judgement held that requirement for using powers under Article 58(2)(b) had not been fulfilled. He stated that law laid down in the previous dissolution cases (Haji Saifullah case, Khawaja Tariq Rahim case and Mian Nawaz Sharif case) of complete breaking down of the constitutional machinery was not fulfilled in this case. Justice Mirza stated that president, who had praised the government at numerous occasions for doing great job in Karachi, had no material before him at the time he made his mind to dissolve the National Assembly.

It is interesting to note that four weeks before the Supreme Court judgment, the Caretaker Prime Minister, Malik Meraj Khalid, told a seminar in Karachi, that the IMF had agreed to release the stalled tranche only after his government dispelled the impression that the deposed government of Benazir was being restored. “When Pakistani team was negotiating with the IMF, a telephone call was made, asking them not to sign any accord because the Benazir government was being restored. The IMF officials were irked over the telephone call and the negotiations had run into snag because the international institutions were not inclined to dole out anything in this situation. With great difficulty the government convinced the IMF that nothing of that sort was happening,” Khalid said.

THE 1997 CRISIS WITH JUDICIARY

The crisis with judiciary began in August 1997 when the chief justice recommended elevation of five named judges to the supreme court. On Sept. 5, the Supreme Court suspended a government notification to reduce the number of judges from 17 to 12. The federal government, on Setp. 16, withdrew its notification. However, from around August 20 up to the middle of October there was practically no other issue in contest — not publicly. And the resistance to the recommendation, in fact not-so veiled refusal to comply with it, was coming from Prime Minister, Nawaz Sharif and not the parliament.

On October 10, the aggrieved judges took the opportunity of a brief absence of Justice Sajjad from the country to call a full court review under the chairmanship of the acting chief justice. Justice Sajjad returns home in haste on October 13, calls off the full court meeting and transfers all dissident judges to the outposts of the apex court in Quetta, Karachi, Peshawar and Lahore.

The breach was now clearly in the open. The resentment of the dissident judges — respected members of the judiciary — must have been intense. The Chief Justice was master of the house, but a bitterly divided house. In an unprecedented move, on Ocober 21, five honourable judges of the Supreme Court sent a letter to the President of Pakistan, to complain about the behaviour of the Chief Justice of Pakistan and distance themselves from some of his actions. This letter was originally written to the chief justice, and later sent to the president. Never before in Pakistan’s history had such an incident occurred.

On November 3, a petition of contempt of court is entertained by the CJ against the PM and his close associates. A charged atmosphere was super-charged by summoning the PM to appear in the court on November 17 and demanding the Speaker of the National Assembly to turn over the expunged record of the assembly proceedings. Yet, another breach of the assembly’s privilege.

A three-member Supreme Court bench, headed by the then chief justice “directed the president” on Nov 20 not to give assent to the Contempt of Court (Amendment) Bill 1997, as under: “In the circumstances we deem it fit and proper to direct respondent No. 1 (President of Pakistan) in constitutional petition No. 4 43 of 1997 not to give assent, and if assent has already been given the operation of the Contempt of Court (Amendment ) Act of 1997 is hereby suspended until further orders.” There was no precedent , nor apparent ground in law, for the chief justice to prohibit the president’s assent to that bill, and even less to rule the bill suspended if the assent had already been given.

The bill amending the law of contempt was innovative in that it provided for an appeal against a supreme court conviction for contempt, for automatic stay of the conviction, and for that appeal to be heard by another set of judges of the same court.

On Nov. 26, the Supreme Court, Quetta Bench, declared Chief Justice Sajjad Ali Shah’s appointment in abeyance and the Prime Minister sends to president the name of the new Chief Justice for approval. This case was the strangest of the strange, indeed, one in which not only the little-known petitioners but even the federation stated that the appointment of Justice Shah by superseding three senior judges was illegal. The next day, a five member Supreme Court bench annuls Quetta bench’s verdict over CJ’s suspension while, the Supreme Court Peshawar bench endorses Quetta bench’s order.

The ruling political party was not far behind in ugliness when the party’s rabble attacked the Supreme Court premises on November 28. It was one of Pakistan’s saddest days. There is no doubt the disgraceful attack on the Supreme Court was completely premeditated.

On December 2, by suspending the 13th Amendment in a total arbitrary manner, the stage was set for the dismissal of the government of Nawaz Sharif. The grant of temporary restoration of the presidential power to dissolve the National Assembly (the repealed Article 58(2)b on the ground of a break-down of the constitutional machinery was obviously an act of desperation to prevent a feared collapse. It was virtually the last throw of the dice in a do-or-die game.

After weeks of machinations and Machiavellian scheming aimed at ousting Prime Minister Nawaz Sharif from power, the country’s partisan president had finally to resign on Dec. 2. Mr. Leghari had never relished the fact that Mr. Nawaz Sharif should have taken away his powers to dismiss the government through the 13th Amendment. In fact, the Pakistani judiciary was used both by Mr. Leghari and Mr. Nawaz Sharif to establish their personal authority. In this power game, Chief Justice Sajjad Ali Shah was very much with Mr. Leghari. But this power struggle could not be carried on because of the effective intervention of the Army Chief, General Jehangir Karamat.

When Justice Sajjad Ali Shah was removed from the office, on Dec. 2, the crucial issues pending before the Supreme Court were:

1. Contempt of court action against Nawaz Sharif and seven others.

2. Petition regarding the unlawful allotment of thousands of plots by him when chief minister of Punjab.

3. Petition regarding the unlawful ISI distribution of Rs. 140 million of the people’s money to him and others.

4. Petition regarding award of wheat transport contract by him to his crony Saeed Shaikh.

5. Petition regarding his misuse of power in pressurizing banks to settle loan cases out of court.

6. Petition challenging his Anti-terrorist Act 1997.

7. Petitions regarding suspension of 13th and 14th Amendments.

Judiciary damaged

Victory of Prime Minister Nawaz Sharif has been at the expense of the Supreme Court of Pakistan and indeed superior judiciary as such. The SC judges have not held their image and prestige by becoming controversial. It is a settled principle that no writ will be issued by one judge to another. It was a pathetic spectacle to see two Supreme Court benches suspended the chief justice of their own court while the chief justice retaliated by recommending disciplinary action against all four of five judges involved. Repeatedly, one order by one bench was overturned by another. Then political workers invaded the Supreme Court several times and abused the judges and indulging in violence. This was the darkest hour for the judiciary in the country. Gone were the days when it was universally respected as the cleanest and the most upright institution. Both sets of judges have been accused by their detractors of being motivated by personal and other extraneous considerations in their mutual bickering and tussle.

The irony of the crisis was that, eventually, it was not the executive that gave the final and, perhaps, fatal blow to the chief justice. It was his own peers who let him down. The very institution they wished to strengthen fell to the ground by their own actions. No one is left with any doubts that the judges are far from impartial.

The law and its traditions have since long become a fiction in courtrooms. The only difference this time was that the decay in the judiciary unfolded for all to see. The price paid by the superior judiciary is certainly very high.

The crisis with judiciary have only served to confirm that, irrespective of how “stubborn” or “vindictive” a chief justice may be, he is no match against a government that excels in the art of wheeling and dealing.

Nawaz Sharif has succeeded in achieving what General Zia set out to do when he was cut short by destiny. In fact, the late dictator could not have hoped for a more competent lieutenant. General Zia had no patience for independent judges and thought nothing of replacing the ones who did not agree with him. Sharif has demonstrated the same tendency and, as in everything else, has surpassed his mentor in achieving his objectives. The judiciary today lies in ruins, devastated by the kind of power politics that was once the domain of political parties.

The repercussions of the rulings given in haste or in anger will long dog the course of justice. During the crisis, the people have seen the Alice in Wonderland spectacle where the judges pass the judgment first and hear the witnesses later. Inevitably the feeling has arisen that the superior courts exist only for the seekers and brokers of power while the ordinary litigants languish into generations before their cases appear on the “cause list” which appeared quickly and abundantly when political power was at stake.

SC issues detailed judgment in Sajjad’s appointment case

The Supreme Court on Feb. 9, 1998 issued detailed judgment on the petitions challenging the appointment of Justice Sajjad Ali Shah as the chief justice of Pakistan. The ten-member bench headed by Justice Saiduzzaman Siddiqui in its short order on Dec 23, 1997, had declared the appointment of Justice Sajjad as the CJ, illegal and unconstitutional.

The court in its 391-page judgment rejected the argument that if the appointment of Justice Sajjad as the chief justice was held unconstitutional, its application would be with retrospective effect. The court held that doctrine of de facto would apply to the appointment of Justice Sajjad as the chief justice of Pakistan till Nov 26, 1997, when a division bench of the Supreme Court restrained him from performing his administrative and judicial functions.

Abdul Hafeez Pirzada, the counsel for the former chief justice, had argued that if the appointment of Justice Sajjad Ali Shah as the chief justice was declared invalid, it would lead to serious consequences as except three judges of the Supreme Court – Justice Ajmal Mian, Justice Saiduzzaman Siddiqui and Justice Fazal Illahi Khan – the appointment of all the Supreme Court judges and a number of high court judges would become invalid as all of them were appointed by the president in consultation with Justice Sajjad Ali Shah who was then the Chief Justice of Pakistan.

The ten-member bench after discussing the doctrine of de facto observed: “the principle of de facto exercise of power by a holder of the public office is based on sound principle of public policy to maintain regularity in the conduct of the public business, to save the public from confusion and to protect the private right which a person may acquire as a result of exercise of power by the de facto holder of the office.” Hegemony of the Ruling Elite in Pakistan By Abdus Sattar Ghazali

SUPREME COURT JUDGMENT ON JUDGES APPOINTMENT

The constitutional provision enabling the government to appoint judges on an ad-hoc basis was challenged in Supreme Court by Habib Wahabul-Khairi. The main burden of this case rested upon an interpretation of Articles 177 and 193 of the constitution. These articles state that appointments to the superior judiciary — that is, to the Supreme Court and the four high courts — are to be made by the President of Pakistan “after consultation” with the chief justices concerned. The principal question posed in this case was to what was the nature of the consultation envisaged by the constitution.: a formality which the government had to observe or something more substantial? On March 20, 1996, the Supreme Court issued a landmark judgment which leaves little room for doubt. The court held that the consultation “should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play.”

The Supreme Court also directed the federal government to appoint permanent chief justices in higher courts where at present constitutional functions are being performed by acting chief justices appointed by the government. The Court ruled that the offices of chief justice and judges of the high courts normally should be filled immediately — not later than 30 days — but a vacancy occurring before the due date on account of death or for any other reasons should be filled in within 90 days on permanent basis. The SC judgment also upheld the rule of seniority in respect of the appointment of high court chief justices. The most senior judge has a legitimate expectancy to be considered for appointment as the chief justice and is entitled to be so appointed in the absence of any concrete and valid reasons to be recorded by the President/Executive, it said. The court observed that the posting of a sitting CJ of a high court or a judge to the Federal Shariat Court without his consent “is violative of Article 209, which guarantees the tenure of office.”

The major points of the Supreme Court judgment are:

1. The words “after consultation” employed inter alia in articles 177 and 193 of the constitution connote that the consultation should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play. 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.

2. That if the President/Executive appoints a candidate found to be unfit and unsuitable for judgeship by the Chief Justice f Pakistan and the Chief Justice of the high court concerned, it will not be proper exercise of power under the relevant article of the constitution.

3. That permanent vacancies accruing in the offices of Chief Justice and judges normally should be filled in immediately, and not later than 30 days but a vacancy occurring before the due date on account of death or for any other reasons, should be filled in within 90 days on permanent basis.

4. That no ad hoc judge can be appointed in the Supreme Court while permanent vacancies exist.

5. 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 appoint such in the court concerned.

6. An acting chief justice is not a consultee as envisaged by the relevant article of the constitution, therefore, mandatory constitutional requirement of consultation is not fulfilled by consulting an acting chief justice except in case the permanent chief justice concerned is unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness.

7. That an appointment of a sitting chief justice of a 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, which guarantees the tenure of office. Since the former article was incorporated by the chief martial law administrator and the later article was enacted by the framers of the constitution, the same shall prevail and, hence, such an appointment will be void.

8. That 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.

The Supreme Court verdict, which has both short and long-term implications, touched on two constitutional themes. First, the question of higher judicial appointments which has been used by successive governments to tame the judiciary. The issue has been the subject of an intense debate for over two decades. For many years, Bar Councils, Bar Associations, and human rights organizations have been demanding discontinuance of the practice of running High Courts with the help of acting Chief Justices. The ruling has the authority of law on the appointment of judges until the law is changed or is interpreted differently by the superior judiciary itself.

Second, the judgment provides opening for a new constitutional order by redefining the amended constitution in a manner conceived to promote a process of genuine democratization. The 1973 constitution, now in force, retains some features of the anti-democratic amendments which General Zia incorporated at the gun point. The Court struck down Article 203-C, (which provided for the transfer of judges to the Shariah Court) an amendment made by General Zia, on the ground of conflict with Article 209. The apex court has sought to erase or reduce the rigors of some of the non-democratic amendments, without parliament rescinding them. In a narrow sense, the Supreme Court has entered uncharted terrain.

Several constitutional experts have disagreed with the Supreme Court ruling on the binding recommendations of the Chief Justices for the appointment of judges. They argue that under any normative scheme of a harmoniously constructed constitution, the Chief Justices of the Supreme and High Courts cannot insist that the President record, in writing, his “very sound reasons” for not acting upon their commendations in regard to the appointment of judges. In effect, the argument is that the President, not the Chief Justices concerned, is the appointing authority. They also argue that, with the exception of a very few countries in the world, the appointment of the judges of the superior courts is always made by the Chief Executive. Some of the retired judges of the Supreme Court and High Courts argued that the Supreme Court, in its judgment, has acted beyond its jurisdiction and has gone to the extent of enacting the law rather than interpreting the relevant articles of the constitutions, whereas the enactment or abrogation of any article of the constitution is the sole prerogative of the legislature.

On May 19, the Supreme Court returned a constitutional reference, filed by the president three days earlier, against the apex court decision, saying it had not been signed by the President as required by the constitution. On the same day the federal government filed a review petition against the Supreme Court decision. On May 26, Supreme Court Judge Mir Hazar Khan Khoso announces his dissenting judgment which said that the President has the power under the constitution to appoint judges and that no time-limit can be fixed for filling in the permanent vacancies for judges in the superior courts. He also differed with the majority decision on the issue of consultation of the president with the acting chief justice and justified the appointment of additional or ad hoc judges, which had been ruled unconstitutional by the majority decision. On the transfer of judges to the Federal Shariah Court, Justice Khoso was of the view that the president was empowered by the constitution to transfer any judge to the Federal Shariah Court for a period of two years. The judge also supported the transfer of a high court judge to another high court. Similarly, he said there was no harm in appointing people having political affiliation provided he was a person of integrity.

‘JUDICIARY NOT INDEPENDENT’

Vendetta and revenge has always been the part of Pakistan’s politics. But this time, while launching a systematic and ruthless campaign against its opponents, the PPP government succeeded magnificently in politicizing the judiciary and to that extent curtailing its independence. Following normal practice, when Dr. Nasim Hasan Shah retired as Chief Justice of the Supreme Court, Justice Sa’ad Saud Jan should have rightly taken his place. But he was superseded by Justice Sajjad Ali Shah, who ranked third in seniority.

The United States 1995 Human Rights report on Pakistan described the judiciary as “not independ ent in reality.” The part of the report on independence of judiciary was blunt and hard-hitting as it gave details of how the courts were influ enced. “The constitution provides for an independent judiciary but in reality, however, the judiciary is not independent. Through the President’s power to transfer high court justices and appoint temporary and ad hoc justices, the executive branch is able to influence the Supreme Court, the provincial high courts, and the lower levels of the judicial system.”

“It has become a standard practice to appoint judges to the high courts and Supreme Court on temporary basis for a period of one year and later confirm or terminate their appointments after an evaluation of their performance. Legal experts say that temporary judges, eager to be confirmed following their probationary, tend to favor the govern ment’s case in their deliberations. Judges in the Special Terrorism Courts are retired jurists, who are hired on renewable contracts. The desire to maintain their positions has the potential to influence their decisions.

“Despite the Government’s promise to strengthen judicial independ ence, it took several measures to influence the court for political rea sons. The Supreme Court heard the bail application and denied bail to an opposition Member of the National Assembly (MNA) in case where bail would routinely have been granted by a lower court. Mian Qurban Sadiq Ikram, special judge for the Court of Banking Offenses, was removed from the bench on July 31 (1994), a day after he granted in terim bail to the father of opposition leader Nawaz Sharif.”

In its International Narcotics Control report for 1994, the United States alleged that there is corruption in various government departments of Pakistan, including the judiciary. The allegation was based on the as­sumption drawn from judgments in various cases. The report cited the case of Rafi Munir for tainting Pakistani judiciary as corrupt. “There were other incidents during the year as well, such as the release of Rafi Munir, which would seem to indicate corruption in the judiciary,” it said.[26] The judicial system is on the verge of collapse and has come to the straits where it was ready to punish the innocent but most reluc tant to punish guilty. The outgoing chief Justice of the High Court of Sindh and judge-designate of the Supreme Court told a full court reference held in his honor on April 19, 1999, that confidence of the people in the judiciary had been shaken. He said it was a matter of concern that with the continuing degeneration of the moral fabric of society, the malady of corruption had afflicted the power of judiciary too, which had been made the task of dispensation of justice all the more difficult and “has shake the confidence of the people in the courts.”

Our constitution provides for an all powerful Supreme Judicial Council that can investigate issues of misconduct of judges and advise the president to remove such judges. Under Article 209 of the Constitution, the President can remove a judge found guilty of misconduct after an inquiry by the Supreme Judicial Council. However, the powers of the Supreme Judicial Council are used sparsely.

The concept of accountability of the superior judiciary by the Supreme Judicial Council has failed in checking and containing malpractice, corruption and misconduct within the judiciary. The council, constituted under Article 209 of the constitution, performs its functions only at the whim and fancy of the president. Clearly, there is a lacuna in Article 209 which does not provide the manner to invoke its jurisdiction or to commence proceedings against a judge. No litigant or other person has the right to invoke the jurisdiction of the Supreme Judicial Council. Consequently, for all practical purposes, the Supreme Judicial Council has remained non-functional, with the exception of a couple of instances, and has failed to take action against the judges on account of their incompetence, incapacity or misconduct. Hegemony of the Ruling Elite in Pakistan By Abdus Sattar Ghazali

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