This article was last updated on April 16, 2022
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It may not be a too harsh judgment to say that Judiciary in Pakistan has functioned at the behest of authority and has allowed itself to be used to further the interest of the state against its citizens. When the military government of General Parvez launched the accountability process of corrupt politicians and bureaucrats in the aftermath of Oct 12, 1999 takeover, the former Chief Justice Sajjad Ali Shah urged that the judiciary should be included in the accountability process. However, Chairman of National Accountability Bureau (NAB) Gen. Amjad Husain has opposed the accountability of the armed forces and the judiciary. Justifying his opposition to the accountability of the judiciary, Gen. Amjad said: ” The powers given to the NAB chairman have made the NAB very powerful. We need to evolve a mechanism for keeping the NAB under check and the only institution that can check the NAB is judiciary. But if we start accountability of the judiciary, who will check the NAB?”
The controversial role of judiciary in politics can be traced back to 1955 when Chief Justice Mohammad Munir backed Governor General Ghulam Mohammad’s action to dissolve the first Constitutional Assembly of Pakistan that curtailed the Governor General’s powers. On 21 September 1954, the Constituent Assembly amended the Government of India Act. The amendments precluded the Governor General from acting except on the advice of his ministers. All ministers were to be members of the Assembly at the time of their selection and continue to hold office only so long as they retained the confidence of the legislature.
Justice Munir, in Molvi Tamizuddin Khan’s case, declared that the Assembly was not a sovereign body. Munir declared that the Constitutional Assembly had ‘lived in a fool’s paradise if it was ever seized with the notion that it was the sovereign body of the state.’
Munir was not able to find in the dominion constitution any empowerment of the Governor General which allowed his dissolution of the Constitutional Assembly. But this he dismissed as a ‘lacuna’ in the Independence Act. He insisted that to understand the role of Pakistan’s Governor-General it was necessary to go ‘far back in the history and to trace the origin and development of the British Empire itself.’
According to Munir, the independence Jinnah gained for his country was restricted by the prerogative rights of the English Crown. He adopted the argument made to the court by Lord Diplock (a government attorney) that Pakistan did not become independent in 1947. It had attained a status like the senior dominions, ‘virtually indistinguishable from independence.
The conclusion reached by Justice Cornelius in his dissenting opinion was entirely different. He answered Munir’s interpretation of Commonwealth history with his own understanding of the meaning of a dominion. He maintained that the historical fact was that Pakistan had been created with complete independence, and he pointed to what he believed to be clear differences in the status of the senior dominions and the new dominion of Pakistan. Cornelius stressed that Pakistan was not just a dominion but an independent dominion.
According to Allen McGrath, author of the Destruction of Pakistan’s Democracy, when Munir denied the existence of the Assembly’s sovereignty, he destroyed Pakistan’s existing constitutional basis. He did further harm when he did not indicate where sovereignty resided. He thereby created a vacuum which was an opportunity for Ghulam Mohammed. The absence of a constitutional foundation is a harm which has lived on in Pakistan since Ghulam Mohammad left office.
SPECIAL REFERENCE NO. 1 OF 1955
Special Reference No. 1 of 1955, decided after Tamizuddin, furnished a further example of how Munir’s court could accommodate Ghulam Mohammad in his consolidation of power. In the reference, Ghulam Mohammad asked the court for an advisory ruling.
To support Ghulam Mohammad’s use of non-constitutional emergency powers, Munir found it necessary to move beyond the constitution to what he claimed was the Common Law, to general legal maxims, and to English historical precedent. He relied on Bracton’s maxim ‘that which is otherwise not lawful is made lawful by necessity’, and the Roman law maxim urged by Jennings, ‘the well-being of the people is the supreme law.’
In dealing with the principle of state necessity, Chief Justice Munir observed:”Subject to the condition of absoluteness, extremeness, and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under stress of necessity, the necessity being referable to an intention to preserve the Constitution, the state, or the society, and to prevent it from dissolution, and affirms…that necessity knows no law…necessity makes lawful which otherwise is not lawful.”
Ghulam Mohammad had seized the power of the state, and because the Constituent Assembly was denied a judicial remedy, the Governor General’s position was the ultimate power of the state was not confirmed. The new Constituent Assembly, which the court required Ghulam Mohammad to call, was not a sovereign body, and the Governor General now enjoying virtual veto power over all its legislation. It also followed from the court’s decision on sovereignty that the Assembly could be dissolved by the Governor General for political purposes.
Three years later, in 1958, the same Chief Justice placed a judicial stamp of approval on President Iskandar Mirza’s action to dissolve the parliament and abrogate the 1956 constitution. Chief Justice Munir’s decision in Dosso v. Federation of Pakistan, case set the constitutional stage for General Ayub Khan’s 1958 military takeover of the government, which took place one day after the court’s decision was announced.
1958 MARTIAL LAW SANCTIONED BY MUNIR
When Sikandar Mirza dissolved the parliament in 1958 and placed the country under martial law, Munir and his court were readily available to place a judicial stamp of approval on what had taken place. In Dosso v. Federation of Pakistan, Munir found:
‘It sometimes happens, however, that the Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of the constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing constitution but also the validity of the national legal order…For the purpose of the doctrine here explained, a change is, in law, a revolution if it annuls the constitution and the annulment is effective…Thus the essential condition to determine whether a constitution has been annulled is the efficacy of the change…Thus a victorious revolution, or a successful coup d’etat is an internally recognized legal method of changing a constitution. After a change of constitution. After a change of the character I have mentioned has taken place, the national legal order must for its validity, depend upon the new law-creating organ. Even courts lose their existing jurisdiction and can function only to the extent and in the manner determined by the new constitution.
…If what I have already stated is correct, then the revolution having been successful, it satisfies the test of efficacy and becomes a basic law-creating factor.
Munir attempted to garner respectability for his legal theory of revolution by claiming it was based on Hans Kelsen’s The Pure Theory of Law, but Kelsen subsequently took pans to deny his work could serve as a basis for Munir’s theory of revolution, and Kelsen’s theory was later itself later repudiated by the Pakistan Supreme Court. Munir’s decision in Dosso set the constitutional stage for Ayub Khan’s 1958 military takeover of the government, which took place one day after the court’s decision was announced.
YAHYA’S RULE DECLARED ILLEGAL
In Asma Jilani v. The Government of Punjab and others on 7 April 1972 the Supreme Court declared that General Yahya Khan had usurped power, that his action was not justified by the revolutionary legality doctrine and consequently his martial law was illegal. The court, after its detailed reasoning, came to the conclusion: “With the utmost respect, therefore, I would agree with the criticism that the learned Chief Justice (Mohammad Munir CJ) not only misapplied the doctine of Hans Kelsen, but also fell into error that it was a generally accepted doctrine of modern jurisprudence. Even the disciples of Kelsen have hesitated to go far as as Kelsen had gone…I am unable to resist the conclusion that Mohammad Munir erred both in interpreting Kelsen’s theory and applying the same to the facts and circumstances of the case before him. The principle enunciated by him is wholly unsustainable.”
Justice Yaqub Khan concluded that the judgment in Tamizuddin Khan’s case, the 1955 reference, and Dosso’s case had made “a perfectly good country…into a laughing stock, and converted the country into autocracy and eventually …into military dictatorship.” He pointedly criticized the abrogation of the 1956 constitution, observing that “Iskandar Mirza and Ayub Khan committed treason, and destroyed the basis of representation between East and West Pakistan.”
The decision was though bold but it cannot be forgotten that the Court declared Yahyah Khan a usurper only after he had ceased to hold office while the other usurpers were dead. The court has yet to perform the painful duty of questioning the legitimacy of a de facto sovereign while he is in office.
SUPREME COURT VALIDATES GENERAL ZIA’S COUP IN 1977
On November 10, 1977 the Supreme Court unanimously validated the imposition of martial law, under the doctrine of necessity. The law of necessity recognized and upheld by Pakistan’s highest judicial body has proved an honorable protection for military adventure in civil government. In its judgment dismissing Begum Nusrat Bhutto’s petition challenging detention under Martial Law of former Prime Minister Z.A. Bhutto and 10 others, the nine-member court headed by Chief Justice Anwarul Haqobserved that after massive rigging of elections followed by complete breakdown of law and order situation bringing the country on the brink of disaster, the imposition of mar tial law had become inevitable. The judgment also said the court would like to state in clear terms that it had found it possible to vali date the extra constitutional action of the Chief Martial Law Administrator (CMLA) not only for the reason that he stepped in to save the country at a time of grave national crisis and constitutional breakdown, but also because of the solemn pledge given by him that the period of constitutional deviation shall be of as short a duration as possible. By the period of constitutional deviation, the court meant, of course, the period between the martial law takeover and the holding of elections.
The Supreme Court judgment said:
It will be seen that the declared objectives of the imposition of Martial Law are to create conditions suitable for the holding of free and fair elections in terms of the 1973 constitution, which was not being abrogated, and only certain parts of which were being held in abeyance, namely, the parts dealing with the federal and provincial executives and legislatures. The President of Pakistan was to continue to discharge his duties as heretofore under the same constitution. Soon after the polls, the power is to be transferred to the elected representatives of the people. It is true that owing to the necessity of completing the process of accountability of holders of public offices, the holding of elections had to be postponed for the time being but the declared intention of the Chief Martial Law Administrator still remains the same namely, that he has stepped in for a temporary period and for the limited purpose of arranging free and fair elections so as to enable the country to return to a democratic way of life.
“In the presence of these unambiguous declarations, it would be highly unfair and uncharitable to attribute any other intention to the Chief Martial Law Administrator, and to insinuate that he has not assumed power for the purposes stated by him, or that he does not intend to restore democratic situations in terms of the 1973 consti tution.”
WHY THE SUPREME COURTS REFUSED TO RESTORE JUNEJO GOVT?
In 1990, members of the National Assembly dissolved the General Zia in May 1988, challenged its dissolution in petitions in writ petitions in the High Courts. The petitions were dismissed. The Supreme Court dismissed the appeals against these judgments. In one of the case, the Federation of Pakistan v Saifullah Khan, the Supreme Court, held that the dismissal of Mohammad Khan Junejo’s government by General Zia in May 1998 was unconstitutional but it refused to restore the National Assembly.
In reply to a question regarding Haji Saifullah’s case, General Aslam Beg told the journalists in Lahore on Feb. 4, 1993: “I did try to convey to the Honourable Supreme Court that, we had given a solemn undertaking to the nation that elections to the National Assembly would be held according to the schedule already announced and that, therefore, it would be in the best interest of the nation that we stick to our promise and the said elections were allowed to be held accordingly.”
The Court, on February 21, formally charged General Beg with contempt of court. When the trial started, General Beg met with the Army Chief of Staff, General Waheed and through him assured President and the army leadership that he will not damage their image.
During the enquiry proceedings, the Chief Justice censured the respondent for giving an “irresponsible and careless” answer to the question asked by the press on Fe. 4, 1993, and remarked: “we are very sorry to hand over the defense of the country to a person if he was so careless.” Again on February 20, the Chief Justice, in a moment of great anger observed: “I do not change my opinion, even if Allah the Almighty directed me to do so.” Yet again, on 22 February 1993, the Chief Justice in anger held out the threat to the reporters and the respondent that “if you fail to produce the tapes, I shall blacken many faces” and “I shall ensure that I send some of you to your graves and hell.”
On March 1, General Beg told the court that Chairman Senate Waseem Sajjad had carried his message to the SC to block restoration of Junejo assembly. Waseem Sajjad denies Beg’s statement. At the end, General Beg was let off by the Supreme Court with a conviction but without a sentence. On appeal, even that conviction was overturned by the same court. In a majority judgement, the Supreme Court decided on January 9, 1994 to drop proceedings against General Beg.
Commenting on the judgment, The Friday Times, Lahore, said: the court was humiliated during the contempt hearing against General Beg because it knew that it couldn’t punish an army general. People made fun of Chief Justice Zullah’s eccentric obiter dicta, and a witness called him corrupt inside the court.
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.
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.”
CONTROVERIAL JUDGMENTS
The judiciary did not give Nawaz Sharif any trouble since he sacked the Chief Justice of the Supreme Court, Sajjad Ali Shah. Since then, the higher courts gave almost all decision on major issues in favor of the government that had shaken the public confidence in judiciary.
Here are some of the major decisions of the Supreme Court and High Courts that reflected judiciary’s leaning towards the government:
The Lahore High Court accepts (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 Mr 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.
December, 1997 contest.
Lahore High Court dismissed (March 2, 1998) a writ petition seeking a direction against the government for settling along the motorway the Pakistanis residing in the refugee camps in Bangladesh. Justice Khalilur Rehman Ramaday also prescribed a cost of Rs. 5,000 to petitioner Advocate M.D. Tahir for indulging in frivolous litigation. The court said what was the guarantee that agents of the Indian intelligence agency RAW had not entered the ranks of these people. It also said that it required a lot of money for settling these people in Pakistan when there was already a lot of poverty here.
The Supreme Court dismissed (March 19, 1998) as “frivolous” a constitutional petition challenging the 13th Amendment and ordered the petitioner to pay Rs. 10,000 as court expenses.
The 13th Amendment had stripped the president of the power to dissolve the National Assembly and dismiss a government.
Lahore High Court rules (April 1998) that Ehtesab Commissioner has unlimited powers.
May 18 1998: The Supreme Court, in a majority (6-1)decision, upheld the 14th Constitutional Amendment that bars members of parliament to vote against their party’s line or abstained from voting. The court held that Article 63(a) would bring stability in the polity of the country as it would be instrumental in eradicating floor crossing. However, the court ruled that an elected member should not be disqualified if he opposed the party’s policies in public. In his dissident judgment, Justice Abdul Mamoon Kazi held that Article 63(a) was in violation of fundamental rights and thus was not enforceable.
A seven-member bench of the Supreme Court unanimously (July 28, 1998) upholds the imposition of emergency on May 28. However, it set aside the fundamental rights’ suspension order of the same date.
The Supreme Court declines (Nov. 23, 1998) to take notice of the imposition of governor’s rule on Sindh and observed that the federal government had the powers to impose governor’s rule under Article 232 of the Constitution. “Restoration of peace in Karachi is of paramount importance and court cannot declare it (governor’s rule) illegal as some individual or a party wants to do so,” observed Chief Justice Ajmal Mian.
A nine-member bench of the Supreme Court unanimously (Feb. 17, 1999) declared the setting up of military courts for trial of civilians in Karachi as unconstitutional. However, the court clarified that its decision would not affect the sentences and punishment awarded and executed by the military courts as the cases would be treated as past and closed transactions. Two people convicted by the Military Courts were executed. The Supreme Court recommended that the military court cases should be transferred to special Anti-Terrorist Courts.
The Supreme Court indicts (March 1, 1999) seven persons including six ruling party legislators on the charges of contempt of court for storming the court building on November 28, 1997.
The court however, withdrew show cause notices issued to the executive and police officers of Islamabad.
The Supreme Court acquitted (May 14, 1999) all ruling party legislators who were indicted on the charges of contempt of court for attacking the court building when proceedings against Prime Minister Nawaz Sharif were underway in 1997. The three-member bench, which decided the case, observed that though flagrant contempt of court was committed but showed its inability to convict the accused as the people had not given specific evidence against them. Lahore Bar Council leaders expressed their disappointment at the outcome of the contempt of Court case against the ruling party legislatures. They said that the contemners have admitted their guilt in their apologies. A conviction could have been based on their admission and the video film of the Supreme Court’s own cameras. They said the SC verdict sets back the process of restoration of public confidence in the superior judiciary set in by the apex court judgements on emergency and military courts. On June 14, 1999, the Supreme Court reopened the rowdy-ism case and issued fresh notices to the Pakistan Muslim League, Attorney General and seven alleged contemners. A five-member bench of the Supreme Court, headed by outgoing Chief Justice, Ajmal Mian, converted a criminal original petition filed by Shahid Orakzai, a journalist, into an appeal against the decision of the three-member bench of the SC. Appeal hearing began on June 28, 1999.
On June 18, 1999, The Supreme Court accepted the government’s plea that the country is not in a position now to honor its legal obligation of allowing free operation of FCAs. The Court held that Section 2 of the Foreign Exchange (Temporary Restriction) Act, 1998 was lawful of the constitution, subject to the declaration that the same did not confer any power on the federation or the State Bank to compel FCA holders to convert their foreign exchange holdings into Pakistani rupees at the officially notified rate of exchange, or to compel the said account holders to liquidate their FCA accounts in Pakistani rupees which foreign exchange holdings had been accepted by the respective banks as security against any loan or other facilities extended to them. The court expressed its concern on the improper utilization of foreign exchange deposits of the FCA holders by the successive government in breach of the solemn commitment given by the legislature. The court also said that the State Bank of Pakistan also failed to perform its statutory duty to protect the interests of the FCA holders.
Commenting on the role of judiciary in Pakistan, the US State Department Human Rights Report for 1998 said: Judiciary is subject to executive influence, and suffers from inadequate resources, inefficiency, and corruption. Despite concerns about damage to the judiciary due to the December 1997 confrontation between the prime minister and the chief justice of the Supreme Court, there were several instances in which the Supreme Court showed a continued degree of independence, striking down draconian laws favored by the government, including limits on freedom of speech, elements of a controversial anti-terrorist law, and some restrictions on fundamental liberties imposed by the state of emergency declared in the wake of Pakistan’s nuclear tests in May.
According to Zulfikar Khalid Maluka, the author of the Myth of Constitutionalism in Pakistan, given the four-decade long record of the higher judiciary in the country, popular perceptions and criticism, particularly of its judgments on constitutional petitions, have crystallized on the following:
1. Whenever martial law has been imposed, the Courts seemed to have been waiting in the wings to provide it legal cover of validation.
2. The Courts in Pakistan have hardly ever pronounced any judgment against any ruler while he was in office. The overall pattern: the law of necessity was applied to all the incumbent rulers; but when they fell, their acts were depicted as usurpation, illegal, and unconstitutional (as in the Asma Jilani case).
3. The general appraisal of the higher judiciary seems to be: ‘senior members of the judiciary, particularly those holding the august office of Chief Justice in Supreme Court or High Courts, have, by playing political roles in affiliation with the government, undermined the credibility of their high offices.
The factors of political instability and socio-economic insecurity imbued the intelligentia’s character with ‘opportunism’ and scant respect for principles. Such traits are also reflected in the judiciary, stultifying its image, prestige, and credibility as an impartial and independent custodian of justice and as the guardian of the law of the land.
MEDDLING WITH THE JUDICIARY
The judiciary is perhaps the most important pillar of the liberal democratic system. It must act as the ever-vigilant watch-dog over the executive, with a view to ensure that the rights of the people are not transgressed and trampled upon by an executive which rarely, if ever, misses an opportunity to be arbitrary and unfair. The ordinary citizen must be afforded fair protection.
The judiciary is supposed to act as a restraint on any governmental excesses, particularly against the citizenry of the state. However, the successive governments approach towards the judiciary is to limit opportunities for correcting wrongs and redressing grievances. The strategy adopted to neutralize and even manipulate this vital organ of the system has been through undue control of the appointments procedure and undue interference through dubious and obviously ill-meaning amendments of the constitution.
Meddling with the judiciary is a tradition in Pakistan. Every successive government of Pakistan seems to have the destruction of the judiciary high on its political agenda. The habit of meddling with the judiciary has been reinforced by the nature of Pakistan’s governments. They have been either military — which need the judiciary to give them legitimacy — or weak — which need the judiciary to give them strength. However, this is not to say that all the people appointed to the Superior Courts by the autocrat rulers have not performed their functions with dignity and impartiality. After all, those who delivered the dissenting judgment in the Zulfikar Ali Bhutto’s case and those who refused to take oath under General Zia’s PCO were also appointed by the same rulers.
Barring President Agha Mohammad Yahya Khan, each head of state or government from Ayub Khan downwards, has done his utmost to weaken the judiciary. Zulfikar Ali Bhutto and his ruling People’s Party, the progenitors of the present government, were the first to mount a frontal assault on the holders of judicial power. [The slaying of judiciary by Ardeshir Cowasjee – Dawn 1-4-1994] In 1973, Mohammad Owais Murtaza, the District and Sessions Judge at Sanghar, was arrested in his court, handcuffed and then jailed. Evidently Judge Murtaza had granted bail to several of those arrested as he was lawfully empowered to do, much to the annoyance of Bhutto and his minions. In those days, Sanghar was the scene of considerable political conflict and various people were picked up and charged under the Defense of Pakistan Rules.
Only one year after the unanimous approval of the 1973 constitution, the first constitutional amendment was introduced on May 9, 1974 to amend the Article 199 which barred the judiciary from “issuing writs in the instance of a person who served in the armed forces of Pakistan, or who was for the time being subject to any law relating to any of those Forces, or in respect of any action in relation to him as a member of the armed forces or as a person subject to such law.”
In 1975, by means of the Fourth Amendment to the Constitution, the power of the High Court under Article 199 for the grant of bail to a person detained under any law providing for preventative detention was taken away. The High Court was also denuded of the power to make an order prohibiting the detention of a person. Its power to grant a stay order against the government was confined to the span of 60 days only in relation to public revenue and other specified cases. In 1976 there followed notorious Fifth Amendment under which the grotesque provision was made that after a Chief Justice, whether of the Supreme Court or of a High Court, had held office for a period of five years, then notwithstanding the fact that he had not attained the age of retirement he was liable to be demoted to the status of an ordinary judge of his court or else forced to leave office. Suspending the rules of procedures, both these debilitating amendments were pushed through parliament, without discussion, in a matter of hours. However, in 1985 both were deleted by succeeding dictator General Ziaul Haq, who had his own methods of dealing with the judges, for instance, the promulgation of the wicked PCO.
In 1981, the Provisional Constitutional Order (PCO) played untold havoc and inflicted misery not only on the judiciary but also on the citizens of Pakistan. By this device the executive made wholesale changes in the judiciary. Confirmed judges of the superior courts were relieved of their offices. Others were given the option either to take a fresh oath under the PCO or to relinquish their office. These were the days of martial law and like the rest of the country the judiciary too was held hostage.
President Zia’s successor too violated his oath of office and manipulated the judiciary. Justice Qazi Jamil was the only judge of the Peshawar High Court who was not confirmed by President Ghulam Ishaq Khan apparently because of his verdict in the NWFP assembly dissolution case wherein the High Court set aside the order of dissolution and restored the Assembly and the cabinet. Another GIK victim was Justice Abdul Hafeez Memon of the Supreme Court, who was twice appointed during the PPP governments and twice not confirmed by the President.
The practice in Pakistan, contrary to the constitutional provisions in this regard, has developed to appoint ‘Additional Judges’ (under Article 197) and not ‘Judges’ (under Article 193). This is a device apparently used with the motive of ensuring a degree of control over the judges and to curtail their independence.
Article 193 of the constitution provides that a judge of the High Court is to be appointed by the President, after consultations with the Chief Justice of Pakistan and the Governor of the province concerned. Once appointed, he is to hold office till he attains the age of sixty-two years unless he sooner resigns or is removed in accordance with the constitution. This is the norm.
There is, however, an exception to this rule, Article 197 provides that when the office of a judge is vacant or he is absent or unable to perform the functions of his office or it is necessary to increase the number of judges in a high Court, the President, following the Article 193 procedure, may appoint a person as an Additional Judge for a fixed period.
The power under article 197, as is apparent from its language, is to be exercised in a limited set of circumstances to meet a particular temporary need. It is not available for making appointments in the normal course. As is, however the case with all such powers granted by the constitution, the exception has become the norm. All governments in the recent past have made all appointments to the High Court under Article 197 instead of Article 193. When the term of the Additional Judge so appointed is about to expire, only then is he appointed as a judge of the High Court under Article 193.
Article 197 is used for purposes it was never meant to serve. The provision has been subverted by successive governments to suit their ends. It has become an expedient device for keeping the judges on probation during their formative years. The damage to the institution of the judiciary and its high traditions which is caused by this expedient use of Article 197 is enormous.
In August 1994, the Benazir government filled several long-standing vacancies in the four provincial High Courts. Of the 20 new judges appointed to the Lahore High Court, 13 were former activists in the ruling Pakistan People’s Party, one of them a former minister (Saeed Awan against whom a murder case was pending). Three were supporters of the Muslim League faction which supports Miss Bhutto’s coalition government. In November 1994, Miss Bhutto threw tradition overboard when she by-passed two senior judges and appointed Sajjad Ali Shah as Chief Justice of the Supreme Court. Mr. Shah was the lone dissenter in the 11-member bench whose decision restored Mr. Sharif to power in May 1993 after he had been booted out by the president a month earlier.
The rulers generally kept vacancies in the higher judiciary in order to oblige favorites whenever an occasion arose for it or expediency so demanded. When Benazir Bhutto took over in November 1993, there were 34 vacancies in the superior courts: two in the Supreme Court, 17 in the Lahore High Court, 10 in the Sindh High Court, four in the Peshawar High Court and one in the Balochistan High Court. While thousands of cases were pending, what justification was there to keep these vacancies unfilled?
The net effect of these policies, and the resultant performance of this organ has been that the entire system of dispensation of justice has become beyond the reach of more than 80 per cent of the citizens of this country. The conditions in the courts, the delays, the never-ending procedures, the costs involved, all present a very discouraging and even heart-breaking picture for any prospective litigant.
The system of justice has also been brought into disrepute by the introduction of parallel judiciary (i.e., the Federal Shariat Court whose judges can be laymen and whose appointment is solely at the discretion of the executive), and the establishment of courts that do not follow the procedure required by due process of law.
Senator Tarar elected as President (ISLAMIC PAKISTAN: ILLUSIONS & REALITY A comprehensive and detailed political history of Pakistan Abdus Sattar Ghazali)
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.
Judicial Jitters in Pakistan – A Historical Overview Hamid Hussain Defence Journal, June 2007
‘Get your facts first, and then you can distort them as much as you please’. Mark Twain
Pakistan is in the throes of a judicial crisis since March 2007. On March 09, 2007, general Pervez Mussharraf summoned chief justice Muhammad Iftikhar Chaudry to army house. He was asked some tough questions and then asked to resign. Chief justice held his ground and refused. He was kept at army house for several hours so that an acting chief justice could be sworn in. Justice Javed Iqbal was sworn in as the senior most judge justice Rana Baghwan Das was out of country. Chaudry was given the title of ‘suspended’ chief justice and his case referred to Supreme Judicial Council (SJC) for action. This started a crisis where majority of the people denounced the cavalier manner in which general Mussharraf dealt with the chief justice. Legal community fully supported chief justice by boycotting courts and bringing out processions on the streets. Now every one is waiting for the final scene of the drama which may take a while. Current crisis has brought judiciary in the lime light. This article will give a historical overview of the role of judiciary in Pakistan and its interaction with both civilian and military rulers.
In every country, there is a continuous struggle for accumulating more power between different state institutions. Executive tries to get a free hand and does not like legal restraints. Judiciary tries to put some breaks on unchecked powers of the executive. This struggle keeps some semblance of balance of power. However, a politicized judiciary is as dangerous as an uncontrolled power hungry executive.
Bumpy Start
‘We can draw lessons from the past, but we cannot live in it’. Lyndon Johnson
Pakistan started on a sound footing as far as judiciary was concerned. Judiciary was deeply rooted in British judicial traditions. General public had great respect for the judiciary and while lengthy process of trials was dreaded, judges were held in high esteem as they were seen as fair in their judgments. The first Pakistani chief justice Sir Abdul Rasheed refused to socialize with Prime Minister Liaqat Ali Khan to avoid any misperception that judiciary will favor executive in certain circumstances. In 1954, Sindh chief court (later named high court) headed by chief judge (later designated chief justice) Sir George Constantine reversed Governor General’s order of dissolution of Constituent Assembly. Later several justices tried to maintain the independence of judiciary and resisted the pressures and temptations of the executive branch. However such cases were few. In 1999 when Supreme Court was hearing the case of establishment of military courts by Nawaz Sharif government, chief justice Ajmal Mian declined to meet prime minister and governor of Sindh Lt. General ® Moinuddin Haider who contacted him to visit him for Eid greetings.
Only six years after independence, judiciary was called upon to deliberate upon constitutional issues. On April 17, 1953, Governor General Ghulam Muhammad dismissed Prime Minister Khawaja Nazimuddin’s ministry on charges of inefficiency and inability to handle difficult problems of the country. In October, Ghulam Muhammad sent the draft of an interim constitution to Constituent Assembly which rejected it and insisted on deliberating about the constitution rather than stamping a prepared draft. Later, in October 1954, Ghulam Muhammad dismissed Constituent Assembly. The President of Constituent Assembly Maulvi Tamizuddin Khan challenged the dissolution order in Sindh chief court headed by chief judge Sir George Constantine. In a unanimous decision, Sindh chief court declared Governor General’s dismissal order unconstitutional. Government filed an appeal against Sindh chief court’s decision in the federal court. In March 1955, chief justice Muhammad Munir gave the historic decision in favor of Governor General Ghulam Muhammad. He made his decision on the basis of the argument that Sindh chief court had no jurisdiction to issue the writ. Munir interpreted country’s dominion status in a way which considered Queen of England rather than Constituent Assembly as the sovereign. (1)
Muhammad Munir as chief justice of Pakistan presided two most important decisions in Pakistan’s judicial history. He upheld the decision of dissolution of constituent assembly by Governor General and later validated General Ayub Khan’s Martial Law in 1958 using the ‘doctrine of necessity’. He wrote a book in 1979 in which he elaborated at length about role of religion in state affairs but curiously remained completely silent about two of his most important judicial decisions. (2)
Executive and Judiciary
‘It is the spirit and not the form of law that keeps justice alive’. Earl Warren
Executive and judiciary function in their own spheres but sometimes their interests clash. Executive tries to have some kind of control on the function of judiciary especially when its interests are challenged. Executive tries to influence judiciary through favors in postings, promotions and post-retirement benefits. Troublesome justices are mostly retired using administrative loopholes but occasionally more severe action is taken against the stubborn judge. Former Prime Minister Zulfiqar A. Bhutto was awarded death sentence by Lahore high court for ordering the murder of a political opponent. An appeal against the judgment was filed in the Supreme Court. The initial bench of nine judges (Anwar ul Haq, Muhammad Akram, Dorab Patel, Muhammad Haleem, Nasim Hasan Shah, Ghulam Safdar Shah, Karam Elahi Chauhan, Waheedudin Ahmad and Qaisar Khan) started to hear appeal. During the hearing, Qaisar Khan retired and Waheedudin Ahmad got ill. Remaining seven judges heard the case and rejected the appeal in a four to three decision on February 02, 1979. Justice Ghulam Safdar Shah was one of the dissenting judges (the other two were Muhammad Halim and Dorab Patel). He later gave a statement which gave the impression of his inclination to accept the argument of Bhutto’s defense team. This caused great apprehension and General Zia ordered director of Federal Investigations Agency (FIA) to inquire about Safdar Shah’s credentials. Government found many discrepancies and approached chief justice for action against the judge. The case was referred to Supreme Judicial Council (SJC) and Safdar Shah was forced to resign and hounded out of country. (3) Military government set a good example for the rest of the judiciary and showed that it can hurt justices who cross the line. Prior to this incident, references have been filed against four other justices: Justice Hasan Ali Agha in 1951 (he was later exonerated), Justice Akhlaq Hussain in 1960 (he was removed) and justices Shaikh Shaukat Ali and Fazal Ghani in 1969 (both of them resigned).
Military Rule
‘Military justice is to justice what military music is to music’. Groucho Marx
During direct military rule, conflict between military justice system and civilian courts in inevitable. In case of Pakistan, higher judiciary has given legal cover to military rule, however even complaint judges sometimes find it very difficult to completely set aside fundamental judicial principles. This creates the rift and shuffling of judges is usually the norm during military rule. (4) There has been no large scale protest or judicial activity during various military governments.
Higher courts have given some belated verdicts after the departure of the ruler which has no relevance. General Yahya Khan was forced to relinquish his office after the separation of East Pakistan in December 1971. Supreme Court belatedly ruled on April 07, 1972 that general Yahya Khan was a usurper. Some justices even went back to declare that President Iskandar Mirza and General Ayub Khan had committed treason when they suspended civilian rule in 1958. 1989, Zia dismissed Prime Minister Muhammad Khan Junejo’s government. Zia died in a mysterious aero plane crash in August 1989. Members of the dissolved assembly challenged the decision. High courts and Supreme Court dismissed several of those petitions. In one case, Federation of Pakistan vs. Saifullah Khan, Supreme Court ruled that General Zia’s decision was unconstitutional but refused to restore the National Assembly. The reason for court’s refusal of restoration of assembly came to light three years later. Former Army Chief General Mirza Aslam Beg in an interview on February 04, 1993 admitted that he had sent an emissary, then senate chairman Wasim Sajjad to the Supreme Court to warn the justices not to restore the national assembly. Two weeks later, Supreme Court charged General Beg with contempt of court. Beg met with army Chief Abdul Waheed Kakar and later appeared defiantly in the court and many witnesses ridiculed the judges. Supreme Court could not handle the fallout from its confrontation with even a retired army chief. Court finally convicted him of contempt but strangely did not give any judgment about the sentence. The same court even overturned its own decision after an appeal was filed. After a year of half hearted measures, on January 09, 1994 the court dropped all proceedings against general Beg.
In October 1958, when President Iskandar Mirza abrogated the constitution and declared Martial Law, Chief Justice Muhammad Munir helped Mirza and army chief General Ayub Khan in legal affairs. The very next day, Munir attended a meeting and gave Ayub Khan his ideas about a new constitution. Immediately after 1977 coup, General Zia contacted chief justice Muhammad Yaqub Ali who advised him that constitution should be held in abeyance. (5) Zia also made chief justices of high courts governors of their respective provinces. Zia was not sure how Yaqub was going to rule on the pending petition of Mrs. Nusrat Bhutto challenging Zia’s martial law and overthrow of her husband’s government. Yaqub was removed on September 22, 1997 by a curious method. Zia amended the constitution by withdrawing the Sixth Amendment (which had given Yaqub extension of his service) and Yaqub was out the door. Barely two months later on November 10, 1977, the new chief justice Anwarul Haq gave the expected decision of validating Zia’s martial law. During his eleven year rule, Zia avoided to appoint permanent chief justices of high courts. Chief justices functioned on acting basis for long period of time and many were confirmed and made permanent only very close to their dates of retirements. An acting chief justice is much easier to move or remove than a permanent one if government feels that he may give a judgment which can harm government’s position.
In Pakistan, during military rule, constitution is usually amended to give legal cover to military decisions. In 1981, Zia promulgated Provisional Constitutional Order (PCO) and asked judges of the higher courts to take fresh oaths. This opportunity was used to sideline unwanted lot of judges. Fourteen judges were not offered the oath while three judges refused to take fresh oath resulting in retirement of seventeen judges in one shot. Two decades later, General Pervez Mussharraf adopted the same course. On October 12, 1999, General Mussharraf dismissed
Nawaz Sharif government and took control of the country’s affairs. In January 2000, judges were asked to take a fresh oath under Provisional Constitutional Order (PCO). PCO prevented courts from hearing any appeals against the actions of the military government. Government took advantage of this opportunity and some judges were not asked to take oath thus automatically sideling them while others refused to take fresh oath.
In January 2002, Lahore high court was scheduled to start regular hearing of an appeal filed by sacked Prime Minister Nawaz Sharif challenging General Mussharraf’s coup. On January 26, 2000, General Musharraf issued PCO to remove the jurisdiction of civilian courts in certain affairs. This was considered essential to give legal cover to decisions made by military rulers. Judges of superior courts had to take a fresh oath under PCO and anyone who was not offered to take oath or who refused stood retired. A day earlier, General Musharraf met with chief justice Saeeduzaman Siddiqi and asked him to take fresh oath under PCO but chief justice declined. Later that night, two serving generals and one retired general visited chief justice again and asked him to re-consider his decision but he again declined. Early in the morning, a colonel came to chief justice’s house asking him not to go to Supreme Court while his house was being cordoned off. Eighteen judges of superior courts; six judges of Supreme Court including chief justice, six of Sindh high court and four of North West Frontier Province (N.W.F.P.) and two of Punjab high court stood retired by this action. New judges were inducted to fill these positions. Four months later, the new bench of Supreme Court headed by a new chief justice (Irshad Hasan Khan) validated general Mussharraf’s coup. Supreme Court also gave general Musharraf the sweeping authority to amend the constitution, although none of the parties before the court sought court’s advice on this issue. (6) General Musharraf paid back the judges by a 30% increase of their salaries. Out of 12 judges of Supreme Court who legalized the coup, six were given three-year extension of their service. Three judges were given new lucrative assignments after retirement. In addition, military government increased the retirement age of judges of Supreme Court from 65 to 68 and those of high courts from 62 to 65. Thirty-seven judges of higher courts benefited from this three-year increase in their retirement age. (7) Later, court has given its opinion on several constitutional issues arising from general Mussharraf’s rule. In April 2005, a five member Supreme Court bench headed by chief justice Nazim Hussain
Siddiqi rejected the petitions challenging the constitutionality of general Mussharraf holding the dual office of army chief and president of the country.
Siddiqi rejected the petitions challenging the constitutionality of general Mussharraf holding the dual office of army chief and president of the country.
Since general Mussharraf’s ascent to power in October 1999, country has seen eight chief justices of the Supreme Court. In the last few months chief justice Iftikhar Muhammad Chaudry
got involved in some decisions which caused discomfort in the government’s quarters. He had cancelled the privatization of Karachi Steel Mills and construction of a golf club at a public park in Islamabad. He had also started entertaining petitions from families of missing persons believed to be picked up by intelligence agencies. He had a meeting with Director General of Inter Service Intelligence (DG ISI) and used some harsh language. Later, DG ISI had a meeting with General Mussharraf and allegedly told him that ‘your chief justice not only wants to run judicial affairs but now wants to run national security affairs’. On February 16, 2007, Naeem Bukhari, a senior attorney of Supreme Court wrote a letter condemning the attitude and behavior of chief justice and his treatment of lawyers in the court. He sent the letter to senior lawyers and various bar associations of the country. (8) Many lawyers agreed with Bukhari’s assessment and no one objected, however no one expected that General Mussharraf will send chief justice home.
got involved in some decisions which caused discomfort in the government’s quarters. He had cancelled the privatization of Karachi Steel Mills and construction of a golf club at a public park in Islamabad. He had also started entertaining petitions from families of missing persons believed to be picked up by intelligence agencies. He had a meeting with Director General of Inter Service Intelligence (DG ISI) and used some harsh language. Later, DG ISI had a meeting with General Mussharraf and allegedly told him that ‘your chief justice not only wants to run judicial affairs but now wants to run national security affairs’. On February 16, 2007, Naeem Bukhari, a senior attorney of Supreme Court wrote a letter condemning the attitude and behavior of chief justice and his treatment of lawyers in the court. He sent the letter to senior lawyers and various bar associations of the country. (8) Many lawyers agreed with Bukhari’s assessment and no one objected, however no one expected that General Mussharraf will send chief justice home.
On March 09, General Mussharraf summoned chief justice to his office and in a brief encounter handed him the list of his misdeeds and asked him to resign. Prime Minister Shaukat Aziz also met with chief justice and told him that government, military and ‘brother judges’ of supreme court were all in agreement about his ouster. After a brief encounter with Mussharraf, chief justice was kept at the place for few hours during which time, senior intelligence officers explained charges against him. Chaudry managed to get out without resigning and immediately contacted some of his close lawyer friends. His calls were being monitored and government decided to confine him to his house. (9) Chaudry was kept at president’s office until acting chief justice Javed Iqbal was sworn in. President also issued an order of restraint of chief justice to avoid any potential of mischief on part of chief justice. He referred the case of misconduct of chief justice to Supreme Judicial Council (SJC). The response of general public and lawyer community was very negative and soon everybody was denouncing president’s arbitrary decision. Government had not expected such an outpour of sympathy for the restrained chief justice. General Mussharraf overplayed his hand when he had intelligence officials go over the details of Chaudry’s misdeeds. Chaudry after all is a legal mind and after seeing all the evidence showed to him by intelligence officials quickly realized that this evidence may not stand in SJC and opted for a showdown. It appears that legal wizard Shareefuddin Peerzada was not consulted prior to Mussharraf’s encounter with Chaudry. Military mind works on surprise and very small group of close confidants was privy to this decision. In addition, intriguing atmosphere, whispering, paranoia and staunch belief in conspiracy theories at the highest echelon of power in Islamabad is not conducive for an in house frank discussion prior to implementation of important decisions. General Mussharraf and his advisors on this matter fumbled with ‘suspension’ and ‘restraint’ of the chief justice. The order of ‘restraint’ was initially issued against the chief justice. However, later when Peerzada came into picture and informed the amateurs that president can not restrain a justice; chief justice was sent on a ‘forced leave’, a clause inserted during general Yahya Khan rule (1969-71).
Supreme Judicial Council (SJC) consisting of five judges (two justices from supreme court, two chief justices of high courts and acting chief justice are members of SJC) headed by acting chief justice Rana Baghwandas started to hear the reference of misconduct against chief justice. Chaudry filed a constitutional petition asking a full court to hear his case rather than SJC. However, he asked that all senior judges who may benefit from his removal should be excluded. Acting chief justice constituted a five member bench of junior judges to hear Chaudry’s case. Government alarmed by this move filed a petition asking that a full court should hear the case. Veteran lawyer Shareefuddin Peerzada is on president’s team and he the question that only five junior judges including an ad hoc judge are hearing an important case while seven senior judges have been excluded. The five member bench halted proceedings of SJC and recommended a full court hearing of Chaudry’s case. Acting chief justice constituted a 14 member full bench to hear the petition excluding himself and three other justices (Abdul Hameed Dogar, Javed Iqbal and Sardar Muhammad Raza Khan). One of the member justice Falak Sher excused himself and bench was reconstituted with thirteen members. This bench headed by justice Khalil ur Rahman Ramday is now hearing the case of chief justice.
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
http://watandost.blogspot.com/2007/05/judicial-jitters-in-pakistan-scholarly.html
Judicial Brawl
‘A weak man has doubts before a decision, a strong man has them afterwards’. Karl Kraus
The judicial crisis of 1997 severely damaged country’s image and judiciary’s reputation. A reckless civilian prime minister and his cronies clashed head on with an equally reckless chief justice of the supreme court. A number of judges of supreme court openly rebelled against their own chief justice thus bringing the judiciary to new low levels. The saga of Byzantine intrigues was played at the highest levels making the country a laughing stock. The trouble between judges of supreme court had been brewing over a long time. In 1993, justice Sajjad A. Shah gave the lone dissenting opinion when Supreme Court restored Sharif government by a majority decision. Two judges; Muhammad Rafiq Tarar and Saeeduzzaman Siddiqi asked chief justice Nasim Hasan Shah to take disciplinary action against Sajjad A. Shah for the language he used in his dissenting note. (16) Chief justice didn’t take any action against Sajjad A. Shah but it caused a permanent rift. Supreme Court takes recess during summer vacations and if chief justice is out of country during recess it is not necessary to appoint an acting chief justice. In the summer of 1997, chief justice Sajjad A. Shah proceeded to an overseas trip. Incidentally second senior most justice Ajmal Mian was also abroad. Justice Saeeduzaman Siddiqi was in Islamabad when he was told that chief justice had left the country. He adjourned the proceedings, consulted lawyers and then called all supreme court registries to stop working. He declared that there was a constitutional crisis since no acting chief justice was appointed. He sent a letter to the federal government advising it to issue notification for appointment of acting chief justice. As he was the next senior judge, he was appointed acting chief justice. This caused a lot of bad blood between Saeeduzaman Siddiqi and Sajjad A. Shah and on his return Sajjad A. Shah conveyed his disapproval in writing.
On October 09, 1997, chief justice went to Saudi Arabia and justice Ajmal Mian was sworn as acting chief justice. Mian spilled the beans on the same day he took oath. He told the press that Sajjad A. Shah had not consulted the judges for appointment of additional judges and that a full court meeting should decide this issue. A number of Supreme Court justices gave a written request for a full court meeting to discuss press statements of chief justice Sajjad A. Shah. Seven out of eleven judges signed the request and Mian set the date of October 13 for full court meeting. Sajjad A. Shah cut short his visit and dashed back. He cancelled the meeting, shuffled the roster and sent some of the rebellious justices for sittings in Lahore and Karachi. Another request of a full court meeting signed by seven justices was filed and chief justice rejected it by announcing his decision to the press. Now the conflict between supreme court justices was open and the game was played in the press. Six justices issued a press rejoinder and for the first time openly questioned the appointment of chief justice. Shah was fighting a two front war; one against the Prime Minister Nawaz Sharif and second against his own rebellious judges. (17) Shah belatedly called a full court meeting on October 17 but by that time the division among the justices was complete and all parties had crossed the point of no return.
Chief Justice fired opening salvos against the Prime Minister Sharif by entertaining letters sent to him by opposition Pakistan Peoples Party members. One letter was sent to him by former defense minister Aftab S. Mirani on October 18 alleging that Sharif had favored a friend by giving him an import license. Another was sent by Senator Safdar Abbasi alleging that Sharif’s business house had acquired bank loans through political leverage. Another case of alleged illegal allotment of plot by Sharif and a petition challenging 14th Amendment (a hastily enacted amendment by Nawaz Sharif which prohibited members from voting against party line on any issue) was also entertained. In an astonishing move, four cases which could hurt Sharif were taken up by chief justice in a matter of two days. Chief justice asked the petitioners to hurry to his chamber within 72 hours to give their statements. He clearly conveyed the message that he was drawing the battle lines. In addition, using his authority as chief justice to set up rosters, he had sent all senior judges away from Islamabad and used ‘like minded’ junior justices for the benches to hear these cases. The message was now clear even to the blind that chief justice was positioning himself for sending the kind of fireballs which could prove fatal for Sharif. Chief justice stacked the deck against Sharif by comprising a three member bench headed by himself while the remainder two judges (Mukhtar A. Junejo and Bashir Jehangiri) were part of the chief’s loyal camp. Within a week the bench passed an interim order which prohibited action against any assembly member who violated 14thAmendment. Next day the same bench sent a note to the president ordering him to issue the notification of appointment of five Supreme Court justices recommended by chief justice.
Sharif was counting on the rebellious justices of the Supreme Court before unloading his own ammunition. On October 21, six justices sent a protest note to chief justice and questioned his appointment. A copy of the note was also sent to the president. It was now Sharif’s turn and he showed his true colors when all kind of abuse was heaped up on chief justice both inside the parliament and in press statements. Contempt of court petitions were promptly filed against prime minister and some members of parliament and chief justice entertained them post haste adding another stone into his sling. For contempt hearing, chief justice comprised a three member bench which he presided. Later two more members were added. Chief justice had lined up his cavalry well and the four justices which he chose were a safe bet. Justice Bashir Jahangiri was on the same tune as chief justice. The other three justices; Muhammad Arif, Mamoon Qazi and Munir Shaikh had been elevated just few days earlier at the recommendation of chief justice against the wishes of the government. Shah was determined to humiliate Sharif by using his position of chief justice. On October 27, Shah took up the case of 14th Amendment and rejected government’s request of adjournment to study the case. On October 30, a three member bench headed by chief justice heard two petitions asking president to step in and issued a short order giving government thirty days to appoint five justices recommended by chief justice. In early November, chief justice shuffled the deck of justices when he decided to hear cases against Nawaz Sharif. He constituted two benches sitting in Islamabad. First was a three member bench headed by him (the other two Justices were Muhammad Arif and Bashir Jehangiri). The second was a two member bench of Justice Mukhtar Ahmad Junejo and Fazal Elahi Khan. Of five justices only one justice Fazal Elahi Khan was in the opposite camp thus the odds were four to one against Nawaz Sharif. On November 12, chief justice declined to appoint president’s nominee for acting Chief Election Commissioner (CEC) and instead appointed Justice Mukhtar A. Junejo.
Sharif covered his bases by hurriedly passing a Contempt of Court Bill to protect himself in case chief justice decided to convict him. However, he was advised by his legal team to go for the ‘original sin’ and that was to question the appointment of chief justice three years earlier. On November 17, a petition was filed in Sindh high court challenging the appointment of chief justice. A similar petition was filed in supreme court registry in Quetta challenging the appointment of chief justice. Few days later, another petition challenging appointment of chief justice was field before supreme court registry in Peshawar. On November 26, 1997, a two member bench (Nasir A. Zahid and Khalil ur Rahman) sitting in Quetta issued an order that the issue of chief justice’s appointment should be forwarded to chief justice for a full court hearing. Few days later, another two member bench of the same court (Khalil ur Rahman and Irshad Hasan Khan) issued an unprecedented order suspending their own chief justice. Chief justice passed an administrative order suspending Quetta registry’s order which was received at Quetta in the evening. Justices in Quetta were at their rest house. The esteemed judges took up the case in the rest house and decided that chief justice’s order was null and therefore should be ignored. A two member bench (Saeeduzzaman Siddiqi and Fazal Elahi Khan) at Peshawar entertained a petition by an ally of Sharif challenging the appointment of chief justice. This bench decided that chief justice could not perform judicial and administrative functions therefore he could not suspend the bench’s order. In an unprecedented move, justice Saeeduzzaman Siddiqi issued order to the registrar of Supreme Court to place all cases before the senior most judge justice Ajmal Mian and asked Mian to constitute a full bench. When Mian declined, in another mind boggling development justice Saeeduzzaman himself ordered the constitution of the full bench of Supreme Court (excluding Justices Sajjad Ali Shah and Ajmal Mian) to deliberate on chief justice’s appointment. Sajjad A. Shah sent a letter to the president asking him to refer justice Saeeduzzaman Siddiqi to SJC for disciplinary action. President forwarded that request to prime minister to take appropriate action. With this open rebellion against chief justice, government announced that it will not accept any decision of chief justice Sajjad A. Shah in all the cases as he had become controversial.
December 01, 1997 was the darkest day in the history of Pakistan’s judiciary. Two orders were issued for the constitution of benches; one by chief justice Sajjad A. Shah heading a five member bench for hearing the cases while the other by justice Saeeduzzaman Siddiqi heading a fifteen member bench to decide about the fate of Sajjad A. Shah. On December 02, two parallel courts were set up inside supreme court. Chief justice had hedged his bets and had two benches set up: one was a five member bench headed by him to hear contempt case against prime minister and another three member bench headed also by him to hear the constitutionality of 13th Amendment (this amendment had removed president’s discretionary power to dismiss prime minister and assembly). In the other room Justice Saeeduzzaman presided over the assembly of ten other justices to decide chief justice’s fate. Shah decided to go for the coup de grace. He sat on the bench hearing 13th Amendment, fired his final volley and announced an order suspending the 13th Constitutional Amendment which now freed president’s hand and allowed him to dismiss assembly. Attorney general rushed to the room next door and asked justice Saeeduzzaman to suspend the interim order passed by chief justice sitting next door. This bench was assembled to decide about the fate of Sajjad A. Shah and had no written request about any other issue. However in another unprecedented move justice Saeeduzzaman suspended the order of his own chief justice on verbal request from attorney general. Saeeduzzaman also issued order of restraining the chief justice and directed president to issue the notification of appointment of justice Ajmal Mian as acting chief justice. (18) In the meantime, the blood was also drawn at the presidency and president Farooq A. Leghari resigned and senate chairman Wasim Sajjad took the oath of acting President.
In this conflict, the battle was quite ugly where cabinet ministers and members of national assembly passed derogatory remarks about judges and even stormed the supreme court building on November 28. Retired justice of Supreme Court Muhammad Rafiq Ahmad Tarar played the most despicable role of working with some judges of the supreme court and exploited the division among superior court justices to achieve desired results. One day prior to the order of two Supreme Court justices sitting in Quetta questioning the appointment of chief justice, Tarar flew to Quetta in a special plane accompanied by Shahbaz Sharif and met with these justices. After an intense activity of palace intrigues, rebellious justices of the Supreme Court entertained a case against appointment of Sajjad A. Shah in Peshawar high court which was pending for over two years. Government acted on Supreme Court’s decision and denotified appointment of chief justice Sajjad A. Shah and relegated him as ordinary judge. Justice Ajmal Mian was sworn as new acting chief justice. A new chapter in judicial history was written in Pakistan which probably no other country can boast. A group of ten supreme court justices deposed their own chief justice and then nominated an acting chief justice among themselves. They excluded five brother judges who were viewed sympathetic to Sajjad A. Shah. An acting president then appointed an acting chief justice who was administered an oath by another Supreme Court justice Saeeduzaman Siddiqi who had taken upon himself to decide what was to be done. In an ironic twist, among the ten justices who decided that Sajjad A. Shah’s appointment was unlawful, eight had been administered oath none other than Sajjad A. Shah. Chief justice was perfectly legal when he administered oath to them but later they changed their mind. Another interesting fact was that justice Shaikh Riaz Ahmad was sitting on this bench who three years ago as federal law secretary had issued the notification of appointment of chief justice Sajjad A. Shah. Later in an interview, Saedduzzaman defended his action of working with government to boot out his own chief justice. (19) On December 23, 1997 Supreme Court ruled that their own chief justice who had already served for three years was chief justice no more and should be reverted to the position of a justice in Supreme Court (Sajjad A. Shah took a leave and retired). The decision had some serious legal ramifications such as what was the status of the decisions taken by Sajjad A. Shah as chief justice. The court bailed itself out by ruling that all decisions made by Sajjad A. Shah as chief justice would be valid using the doctrine of de facto.
One last parting shot was fired by one justice sympathetic to Sajjad A. Shah. In the battle between chief justice and prime minister, president had become the casualty and had to resign. New president had to be elected and sworn in within thirty days. Justice Mukhtar A. Junejo was serving as acting Chief Election Commissioner (CEC) and in this capacity was also returning officer for the election of President of Pakistan scheduled for December 31, 1997. Nawaz Sharif’s candidate was Rafiq Tarar. On December 18, Juenjo entertained a petition filed by opposition Pakistan Peoples Party’s former minister Aftab S. Mirani. Justice Junejo rejected the nomination papers of Tarar stating that in view of Tarar’s previous derogatory remarks about judiciary made him ineligible to be elected to the parliament and henceforth he could not be elected president. An appeal was filed against the rejection at Lahore high court where chief justice Rashid Aziz Khan declaring conflict decided not to sit on bench. High court suspended CEC’s order and allowed Tarar to contest election. On December 28, Justice Junejo was booted out and acting president appointed justice Abdul Qadeer Chaudry as permanent CEC. In 1997, Pakistan surely wrote some new chapters in judicial history. A permanent president (Farooq A. Leghari) appointed an acting CEC but when it became inconvenient an acting president (Wasim Sajjad) now appointed a permanent CEC. 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
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
Far Below the Benchmark
‘Trust thyself only, and another shall not betray thee’. Thomas Fuller
Corruption is systemic in all institutions of the country and lower levels of judiciary are rife with corruption. Pakistani society in general and especially the ruling elites are obsessed with petty protocol issues and judiciary is no exception to this trend. Genuine disagreements are seen as personal affronts and humiliating others is seen as a justifiable response. Justice S. M. A. Samdani served as law secretary during Zia’s military rule. During a meeting, there had been some skirmish between the two. In 1981, when new oath was administered to judges, Zia told Punjab Governor Lieutenant General Ghulam Jilani not to offer oath to Samdani who had arrived all dressed up to take the oath but went home disappointed. (36) Zia took his revenge by insulting a high court justice while the judge having no scruples to serve a military regime wanted to also play the cowboy by locking horns with generals.
Even senior judges of supreme court clash with each other about petty protocol matters. On June 5, 1994, Benazir appointed Sajjad A. Shah as chief justice by superceding three judges senior to him (Sad Saud Jan, Abdul Qadeer Chaudry and Ajmal Mian). This started the rift between senior judges of the highest court of the land. Five judges of supreme court were in Karachi at that time (Ajmal Mian, Saedduzaman Siddiqi, Wali Muhammad, Abdul Qadeer and Saleem Akhtar). Government sent a special plane to get Sajjad A. Shah for oath taking ceremony in Islamabad. Government asked that any judge who wanted to attend the ceremony could accompany Shah but none of the judges decided to join their newly appointed chief justice for the oath taking ceremony. (37) When Sajjad A. Shah was appointed chief justice, the three senior judges though bitter neither challenged the legality of the appointment nor offered to resign. They decided to take their revenge from inside and clashed with Shah on various matters. This was most obvious during the deliberations about ‘Judges case’. Sajjad A. Shah knowing that his own appointment was made by superceding three judges senior to him deliberated on all aspects of the matters pertaining to appointment of justices but ducked the crucial question of his own appointment. When he discussed his own draft of the judgment with judges, justice Ajmal Mian remarked that ‘it would be the first time in judicial history that a Chief Justcie of the highest court in the land constituted a bench of his choice, presided over it and decided constitutionally about his own appointment’. (38) The senior most judge was justice Sad Saud Jan who was expecting to be chief justice but after the elevation of Sajjad A. Shah he did not intend to work with the new chief justice. In 1996, after ‘judges case’ decision, several acting and ad hoc judges were affected and were not assigned judicial work. This created an embarrassing situation where affected judges actually moved their own courts. One of the affected justice K. A. Chaudry of Lahore high court filed a petition in his own court against his own chief justice demanding that he was a functioning justice and judicial cases should be assigned to him. Another affected judged justice Mohammadi ridiculed supreme court decision during a hearing of bail application. Supreme court issued a notice of contempt of court against this judge who later resigned. (39)
In 1997, when country’s prime minister and chief justice were at loggerheads, the real decay of institutions became quite visible. All kind of emissaries were shuttling between the two stubborn personalities who were settling their personal scores hiding behind lofty positions and high offices. Sharif was using ethnic Sindhis (Ghaus Ali Shah, Ilahi Baksh Soomro and Liaqat Jatoi) and former chief of intelligence Lt. General ® Hamid Gul to send his messages to chief justice. Army chief General Jehangir Karamat and Director General of Inter Services Intelligence (DG ISI) Lt. General Nasim Rana were also mediating. Chief justice of the country was frequently meeting and corresponding with country’s intelligence chief about his grievances with the executive. On the morning of December 02, when Sajjad A. Shah was going to remove the constitutional amendment to clear the way for president to dissolve assembly, an ISI Colonel came to Supreme Court and met the chief justice in his chamber. (40)
Sometimes people occupying high offices act in a childish manner embarrassing not only the high office but also the country. In August 1997, chief justice recommended elevation of five judges to supreme court without consulting with government. Government in return issued an order duly signed by the president reducing the strength of the supreme court from seventeen to twelve. Few days later chief justice presiding a three member bench suspended the notification and a couple of days later government withdrew the notification. Supreme Court justices rather than brainstorming about legal issues clashed with each other about the color of the Supreme Court flag. One chief justice arranged for the inauguration of the incomplete building of the new Supreme Court because he wanted to be in the limelight before his retirement. A number of justices opposed this ridiculous idea and they were not invited for the ceremony. When chief justice Muhammad Afzal Zullah received opposition leader Benazir Bhutto in a ceremony, several of his brother judges were furious and harsh words were exchanged between Zullah and justice Nasim Hasan Shah.
In 1997, when rebellious judges confronted chief justice Sajjad A. Shah in a meeting, there was plenty of name calling. Shah accused justice Shaikh Riaz for working on behest of the government as he was friendly with Shahbaz Sharif. Riaz retorted that when he was serving as chief justice of Lahore high court, Shah had asked him to arrange for a meeting with Nawaz Sharif’s father Mian Muhammad Sharif (he used the words ‘qadam bosi’ (kissing the feet) of Sharif’s father) and Riaz had arranged for that meeting. (41) In his petition challenging president’s reference against him, chief justice Iftikhar M. Chaudry has spilled some more judicial beans and few more skeletons have seen the daylight. Chaudry accused several justices of the SJC as biased because he had initiated inquiries against their misconduct. He objected on inclusion of three justices: Javed Iqbal, Iftikhar Hussain Chaudry and Abdul Hameed Dogar. He maintained that justice Iqbal will benefit from his removal and may have a shot at chief justice post in three years. (42) He also accused justice Iqbal of securing admission for two of his daughters to medical college on special quota when they did not qualify on merit. He stated that he had sent a reference to SJC against justice Abdul Hameed Dogar for mismanagement of funds of Shah Abdul Latif Bhitai University. He also disclosed that another member of SJC, chief justice of Lahore high court Iftikhar Hussain Chaudry was not on talking terms with him since he had opposed his elevation to supreme court. (43) The cats which Chaudry has let loose are going to cause a lot of problems. He should expect some backlash from people he is accusing.
Date of birth can be very important especially when one’s promotion and retirement depends on it. The clash of dates of birth of two chief justices is elaborated in detail in their autobiographies. (44) Sajjad A. Shah was scheduled to retire on February 16, 1998 on attaining the age of 65 which was the age of retirement for supreme court justice. In a totally bizarre move, he sent an application to the president of Pakistan stating that the date of birth recorded on all his records was wrong. He stated that he had found his correct date of birth just few years ago. He requested that his date of birth should be changed from 16 February 1993 to 10 May 1934 and on the basis of this new information he should be retired on 10 May 1999 instead of February 16, 1998. (45) Justice Mian was more smarter and quite early in his career he had fast forwarded his date of birth and secured appropriate documents. Such petty things when come to limelight further erodes the respect for judiciary and institution suffers badly from these acts of omission and commission. 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
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