Sunday, January 24, 2010

Appointment of Judges: History 1993 - 1997.

ISLAMABAD: The row over the appointment of judges in the superior court between the federal government and the judiciary further deepened after President Asif Ali Zardari on Saturday returned the summary to Chief Justice Iftikhar Muhammad Chaudhry for reconsidering his recommendation for elevation of Justice Saqib Nisar to the Supreme Court. The recommendation of the chief justice to appoint Justice Mian Saqib Nisar, the senior judge of the Lahore High Court as judge of the Supreme Court, was duly considered by the prime minister and the president. According to the Law Ministry announcement, Justice Khawaja Muhammad Sharif, Chief Justice of the Lahore High Court, is the most senior judge and, therefore, it is his right to be elevated to the Supreme Court. -- ISLAMABAD: In a significant development, President Asif Ali Zardari on Saturday turned down a recommendation by Chief Justice Iftikhar Mohammad Chaudhry to elevate Justice Mian Saqib Nisar, senior puisne judge of the Lahore High Court, to fill the seat which has fallen vacant after the retirement of Khalilur Rahman Ramday. “Keeping in view the lego-constitutional position, Prime Minister Yousuf Raza Gilani has advised President Asif Ali Zardari to request Chief Justice Iftikhar Mohammad Chaudhry to reconsider his recommendation of Dec 19, 2009, for making recommendation afresh for elevation of the senior-most judge of the LHC to the Supreme Court,” an official announcement issued here by the law ministry said. It said LHC Chief Justice Khawaja Mohammad Sharif was the most senior judge and, therefore, it was his right to be elevated to the Supreme Court. REFERENCES: Appointment of judges Sunday, January 24, 2010 President returns summary to CJ Wants Justice Sharif elevated to SC instead of Justice Saqib By Asim Yasin No presidential assent to CJ’s proposal By Nasir Iqbal Sunday, 24 Jan, 2010

LETS HAVE LOOK AT HISTORY AS COMPILED BY MR. ABDUS SATTAR GHAZALI On the Golden Jubilee Celebrations of Pakistan, ISLAMIC PAKISTAN: ILLUSIONS & REALITY A comprehensive and detailed political history of Pakistan - The author is a professional journalist, with Master's degree in Political Science from the Punjab University. Started his journalistic career as a sub-editor in the daily Bang-e-Haram, Peshawar in 1960. Later worked in the daily Anjam and the Tourist weekly Peshawar. Served as a News Editor in the Daily News, Kuwait from 1969 to 1976. Joined the English News Department of Kuwait Television as a News Editor in December 1976. Also worked as the correspondent of the Associated Press of Pakistan and the Daily Dawn, Karachi, in Kuwait. At present working as the Editor-in-Chief of the Kuwait Television English News.

Excerpts from the book:


On the evening of 17th April 1993, Mian Mohammad Nawaz Sharif addressed the nation on TV and radio. It was an emotional address wherein he alleged, inter-alia, that disgruntled political elements were working against his government, hatching conspiracies to destablize it and trying to undo all the good work he was trying to do. All this, he alleged, was being done under the patronage of the President of Pakistan. He ended his speech with the following challenging words: "I will not resign; I will not dissolve the National Assembly and I will not be dictated."

BBC Documentary on Nawaz Sharif (PML - N) Corruption

Barely 24 hours after this challenging address was delivered, President Ghulam Ishaq Khan called a press conference on the evening of 18th April 1993, to declare that the speech of the Prime Minister and other acts of his government had convinced him that the government of the federation could not be carried on in accordance with the provisions of the constitution. The President also cited "maladministration, corruption, and nepotism and espousal of political violence", in dismissing the Sharif government. The President appointed Balakh Sher Mazari as the interim Prime Minister.

After the dismissal of Nawaz Sharif, for a brief period Benazir Bhutto became the most influential person in determining the composition of the caretaker cabinet during April-May 1993. In the caretaker government, not only Asif Zardari as Benazir's husband was included, but sons of some of the Sindhi leaders as well as the son-in-law of the president were included. Even the supporters of Benazir criticized her bitterly for unwholesome influence of her husband. Thus, a Pakistan People's Party supporter complained bitterly, "This politics of husbands, sons, sons-in-laws and brothers is really sickening."

A week later Nawaz Sharif filed a petition in the Supreme Court challenging the dismissal order of the President. On May 26, 1993, a full bench of the Supreme Court gave an almost unanimous (10:1) verdict, holding that President Ghulam Ishaq Khan had acted unlawfully 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 conferred on the President under Article 58(2)(b) of the constitution and other enabling powers available to him in that behalf and has, therefore, been passed without lawful authority and is of no legal effect." The chief justice of the supreme court 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 destablize his government." The Supreme Court decision itself, while open to criticism because throughout the proceedings it seemed as if the judges had already made up their minds,[13] upheld the supremacy of the constitution besides narrowing to such an extent the scope of the president's powers under the Eighth Amendment to dissolve the National Assembly that in future a president impatient with an assembly will think hard before taking any action against it.[14]

The judgment demolished the myth of the President's over lordship of the National Assembly and the Prime Minister. The salient features of the Supreme Court's verdict can be summarized as under:[15]

a. The President, being a symbol of the unity of the country, is entitled to respect. It is contingent upon the President to conduct himself with the utmost impartiality and neutrality. Their Lordships concluded that President Ghulam Ishaq Khan had ceased to be a neutral and had aligned himself with the elements which were trying to destablize the Nawaz government.

b. The Prime Minister was neither answerable to the President nor subordinate to him.

c. The only way open to the President under the constitution for deciding whether the Prime Minister does, or does not command the confidence of the majority of the member of the National Assembly is by summoning the National Assembly and requiring the Prime Minister to obtain a vote of confidence from the Assembly. Any other method adopted for achieving the object, for forming an opinion, and for giving effect to it is impossible.

d. The allegations of corruption, maladministration, and incorrect policies being pursued in matters of financial, administrative, and international affairs, are independently neither decisive nor within the domain of the President for action under Article 58(2)(b) of the constitution. These are wholly extraneous and cannot sustain the impugned order.

e. The advice of the Prime Minister is binding on the President.

f. In formulating the policies of his government the Prime Minister is answerable to the National Assembly alone.

g. In the matter of appointing the services chiefs, the President is empowered to appoint in his discretion only the Chairman, Joint Chiefs of Staff Committee.






However, Justice Sajjad Ali Shah, the only Sindhi judge of the Supreme 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 tables were turned and the assembly as well as the government was restored. The dissenting judge added, "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 accordance with law and not to please the nation."

The verdict of the Supreme Court was, indeed, an indictment of the President by the highest judicial forum of Pakistan. In fact, this was the ultimate insult for a man who in all his life had never tasted defeat, and certainly not at the hands of a person, who until yesterday, was regarded as his protégé. A brief statement issued from the Presidency the same evening declared that the president was going to honor the verdict of the court. However, the President had other plans. Instead of packing his bags and putting a voluntary end to his long stint in public office, the president decided to strike back. Within three days of the verdict, the president's men went into action in Lahore and succeeded in dissolving the Punjab Assembly. A day later, the NWFP Assembly was also sent packing. And if this was not enough, a vote of no-confidence was subsequently moved against the Chief Minister of Sindh.

The Supreme Court verdict had clearly not resolved the political crisis in the country. The renewed confrontation was assuming threatening proportions, with the newly inducted caretaker governments in the Punjab and NWFP very serious in their attempts to restrict the writ of the central government to the federal limits of Islamabad. Ironically, Nawaz Sharif himself had once attempted this gambit when, as the Chief Minister of the Punjab, he had, tried to confine the authority of the then prime minister Benazir Bhutto, to the federal capital. The continued confrontation between Nawaz Sharif and Ghulam Ishaq Khan polarized Pakistani politics and threatened to undermine government institutions.

After waiting in the wings through a political crisis of epic proportions, the army finally decided to emerge from the shadows and take its traditional role in politics. Directly or from behind the scenes, the country has been ruled by the army for most of its half a century history. On this occasion, however, the military top brass had to decide the fate of a prime minister who, unlike his predecessors, stood on the same power-base as the army, and had continued to derive his support from an extremely influential section of the so-called establishment.[16] Corps Commanders met on July 1, 1993 to discuss three options: the imposition of martial law; asking the president to again dissolve the assembly and call for fresh elections; and requesting the prime minister to advise the president to dissolve the House and call snap polls. The conference decided on the third option and General Abdul Waheed told Nawaz Sharif the same day, that fresh elections were a possible answer to the prevailing crisis. Finally, under a compromise brokered by the military, both the President and the Prime Minister resigned in July 1993. Wasim Sajjad, who was serving as Senate Chairman was appointed interim President, in accordance with the constitution. According to the U.S. State Department, the Pakistani political leaders and the chief of army staff were kept under pressure during the negotiations to ensure that the country did not come under martial law.[17]

The army's role in the 1993 crisis has been rather different from what it was at the time of the past two dismissals. In May 1988, when Prime Minister Mohammad Khan Junejo was removed, the then President General Ziaul Haq was himself the army chief. Later when Benazir Bhutto's government was removed in August 1990, General Aslam Beg and the rest of the army leadership was as much involved in the act as the president. This time, however, the army's involvement has been limited to a passive support for the president's action, who also happens to be the supreme commander of the armed forces. It was not without reason that, on the night of the dismissal, Ishaq Khan made it a point to mention that his real differences with Nawaz Sharif had started when the latter objected to the appointment of General Abdul Waheed as the new army chief.[18] Chapter IX The Fourth Republic Page 2


14. The Herald, June 1993

15. PLD 1993 SC

16. The Herald, July 1993

17. M.H. Askari - The new political order - Dawn 21.7.93

18. The Herald May 1993


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

The United States 1995 Human Rights report on Pakistan[31] described the judiciary as "not independent in reality." The part of the report on independence of judiciary was blunt and hard-hitting as it gave details of how the courts were influenced. "The constitution provides for an independent judiciary but in reality, however, the judiciary is not independent. Through the President's power to transfer high court justices and appoint temporary and ad hoc justices, the executive branch is able to influence the Supreme Court, the provincial high courts, and the lower levels of the judicial system."

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

"Despite the Government's promise to strengthen judicial independence, it took several measures to influence the court for political reasons. The Supreme Court heard the bail application and denied bail to an opposition Member of the National Assembly (MNA) in case where bail would routinely have been granted by a lower court. Mian Qurban Sadiq Ikram, special judge for the Court of Banking Offenses, was removed from the bench on July 31 (1994), a day after he granted interim bail to the father of opposition leader Nawaz Sharif."[32]

In its International Narcotics Control report for 1994, the United States alleged that there is corruption in various government departments of Pakistan, including the judiciary. The allegation was based on the assumption drawn from judgments in various cases. The report cited the case of Rafi Munir for tainting Pakistani judiciary as corrupt. "There were other incidents during the year as well, such as the release of Rafi Munir, which would seem to indicate corruption in the judiciary," it said.[33] The judicial system is on the verge of collapse and has come to the straits where it was ready to punish the innocent but most reluctant to punish guilty. [34] Chapter IX The Fourth Republic Page 3


31. Dawn 7.3.1996

32. Ibid.

33. Dawn 8.3.1995

34. Statement of the Chairperson of Pakistan Human Rights Commission, Asema Jehangir, Dawn 29.1.1995


On March 20, the Supreme Court, in a land mark judgment, held that the consultation with the Chief Justices of the Supreme Court and the High Courts, in the appointment of judges to the Courts "should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play." The Supreme Court also directed the federal government to appoint permanent chief justices in higher courts where at present constitutional functions are being performed by acting chief justices appointed by the government. The SC judgment also upheld the rule of seniority in respect of the appointment of high court chief justices. The Court struck down Article 203-C of the constitution, (which provided for the transfer of judges to the Shariah Court) an amendment made by General Zia, on the ground of conflict with Article 209.

On May 19, the Supreme Court returned a constitutional reference, filed by the president three days earlier, against the apex court decision, saying it had not been signed by the President as required by the constitution. On the same day the federal government filed a review petition against the Supreme Court decision. May 26, Supreme Court Judge Mir Hazar Khan Khoso announced his dissenting judgment which, inter alia, said that the President has the power under the constitution to appoint judges and that no time-limit can be fixed for filling in the permanent vacancies for judges in the superior courts. The Federal government withdrew its review petitions as the Supreme Court refused to change the bench. In an unprecedented move on June 13, the chief justices of the Supreme Court and four provincial High Courts ordered the sacking of 24 judges -- all of whom were appointed by the government. Benazir had balked at implementing that judgment and had refused to sack the 24 judges.

As the deadlock continued between the Chief Justice Sajjad Hussain Shah and the Prime Minister Benazir Bhutto, over the appointment of judges to the superior courts, President Farooq Leghari, on September 21, filed a reference in the Supreme Court asking whether or not he could appoint judges to superior courts without the advice of the Prime Minister. In his reference, the president pointed out that the Supreme Court judgment had been partially implemented by the government and observed that some of the ad hoc judges of the high courts had resigned on the request or persuasion of the government. "It is a moot point whether these resignations constitute compliance with the Supreme Court judgment," the reference maintained.

President Farouq Ahmad Khan Leghari, on September 23, sent to the Speaker of the National Assembly and Chairman of the Senate messages, proposing suitable amendments in the laws enabling the president to consult the leader of the opposition and the chief justice of the Supreme Court in addition to the Prime Minister in appointing judges to the special courts adjucating corruption cases involving holders of public offices. He has also proposed amendments in the relevant laws enabling the Wafaqi Mohtasib to act as the prosecutor in the trial of these cases. The appointment of the Mohtasib would be done in consultation with the prime minister, the leader of the opposition and chief justice of Pakistan. Chapter IX The Fourth Republic Page 4



On November, 1996, Benazir Bhutto filed a petition with the Supreme Court challenging the dissolution of the National Assembly and dismissal of her government. The apex court twice returned her petition saying it is argumentative. On December 2, the court turned down Benazir's request for early hearing of her petition and takes up a similar petition filed by the NA Speaker Yousaf Raza Gilani. On December 14, the supreme court started hearing of several identical 8th constitutional amendment. On Jan 12, 1997, the court held that the 8th amendment was a valid part of the constitution and Article 58(2)b, giving power to the president to dissolve the National Assembly was a deterrent to the imposition of martial law in the country. The seven-member bench, headed by Chief Justice Sajjad Ali Shah, dismissed the petitions of Mehmood Khan Achankzai and five others challenging the validity of the 8th amendment. One day after validating the 8th amendment, the Supreme Court began hearing of Benazir Bhutto's case.

On January 29, 1997, only six days before the general elections, the Supreme Court rejected a petition by Benazir Bhutto to revive her government and upheld President Leghari's November 5, 1996 proclamation dissolving the National Assembly and dismissing Benazir's government. The majority decision of the apex court said "the presidential order contained enough substance and adequate material had been provided to conclude that the government could not be run in accordance with the provision of the constitution and that an appeal to the electorate had been necessary." 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 issue was before a tribunal.

Justice Zia Mahmood Mirza was the only judge who said the presidential order was illegal and could not be sustained and the National Assembly and the prime minister and the cabinet stood restored. The seven-member bench was led by Chief Justice Syed Sajjad Ali Shah and included Justice Saleem Akhtar, Justice Fazal Ilahi Khan, Justice Zia Mahmood Mirza, Justice Irshad Hasan Khan, Justice Raja Aforesiab Khan and Justice Munawar Ali Mirza. Earlier the Supreme Court rejected Benazir's request to form a full court to hear her petition. [51]

The short order of the court said:

* It was not necessary that all the material should be before the president to form his opinion before the dissolution of the assembly as claimed by the defence lawyer Atizaz Ahsan. Partial evidence was enough for forming the opinion and that there was no harm if corroborative and supportive material was produced after the dissolution of the assembly.

* There was enough material in support of the president's charge that the government had failed to implement the Supreme Court decision in the appointment of judges case. The belated implementation of the apex court's judgment by the government was short of total compliance. There was adequate material to establish that the former prime minister had ridiculed the judiciary during her speech in the National Assembly.

* The government had moved a constitutional bill in parliament which sought to send a judge on forced leave if 15 per cent of the members moved a motion against him. It was meant to harass the judges of this court.

* The separation of judiciary from the executive was also delayed and executive magistrates were given judicial powers in certain matters which was against the spirit of the judgment.

* There was enough evidence to establish that the telephones of the judges and politicians were tapped and transcripts sent to the petitioner for reading.

* Adequate material had been produced in the court in support of the charges of corruption, nepotism and violation of rules leveled by the president against the previous government.

* In Nawaz Sharif's case the attorney general had conceded that the dissolution order was mainly based on the speech delivered by Nawaz Sharif on radio and television which was construed an act of subversion and that the session of the National Assembly was convened and the president thought it was meant to impeach him. It was in those circumstances that the dissolution order was not sustainable.

Commenting on the supreme court judgment, the former Chief Justice, Dr. Nasim Hassan Shah, the author of the only apex court judgment that revived a dissolved central legislature and restored a sacked prime minister said" that the 1993 and 1996 dissolution cases stood on entirely different footings. The attorney general's emphasis in the 1993 case was on the irreconcilable differences between the president and the PM as evidenced by Nawaz Sharif's speech of April 17, 1993. The conflict, according to the AG, created a constitutional deadlock that could only be resolved by the dissolution of the NA and removal of the PM. The Supreme Court held that dissolution order was based on an incorrect appreciation of the role assigned to the president and of the powers vested in him by the constitution.
"The Benazir Bhutto case was distinguishable because extra-judicial killings in Karachi had reached the level of state terrorism and corruption a magnitude that threatened the very security of the state.

"The government acted in violation of Article 190 of the constitution, which says all executive and judicial authorities in Pakistan shall act in aid of the Supreme Court. Instead of readily and honestly complying with the Supreme Court verdict in the Judges' case, the prime minister castigated the ridiculed it and implemented it reluctantly in phases. Then there was the allegation of wiretapping of state functionaries, which is also a violation of a fundamental right." [52] Chapter IX The Fourth Republic Page 5


51. Dawn 30.1.1997

52. Dawn 30.1.1997

1997 Constitutional Crisis

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 Sept. 16, withdrew its notification. However, from around August 20 up to the middle of October there was practically no other issue in contest -- 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.

Former Chief Justice Supreme Court of Pakistan, Syed Sajjad Ali Shah narrating details as to how Mian Nawaz Sharif and PML - N had attacked the Supreme Court of Pakistan in 1997.
Nawaz Sharif (PML - N) Attacked Supreme Court 1

Nawaz Sharif (PML - N) Attacked Supreme Court 2

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 October 21, five honorable judges of the Supreme Court sent a letter to the President of Pakistan, to complain about the behavior 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.

Nawaz Sharif (PML - N) Attacked Supreme Court 3

Nawaz Sharif (PML - N) Attacked Supreme Court 4

Nawaz Sharif (PML - N) Attacked Supreme Court 5

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

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

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

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

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

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

After weeks of machinations and Machiavellian scheming aimed at ousting Prime Minister Nawaz Sharif from power, the country's partisan president had finally to resign on Dec. 2. Mr. Leghari had never relished the fact that Mr. Nawaz Sharif should have taken away his powers to dismiss the government through the 13th Amendment. In fact, President Leghari and Prime Minister Nawaz Sharif both used the Pakistani judiciary 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.

Mr. Leghari apparently had ruthless dictatorial ambitions and was never content with the ceremonial role that he was constitutionally assigned. He dismissed the duly elected government of Ms Benazir Bhutto and came very close to dislodging another. He engineered an unholy alliance with Chief Justice Sajjad Ali Shah to carry out a constitutional coup and the Chief Justice was a willing ally in the conspiracy to subvert the people's mandate. Chief Justice Shah relentlessly attempted to provide Mr. Leghari the dictatorial powers under the Eighth Amendment to deliver the proverbial coup de grace to the Sharif regime.

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, 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. (6)

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. (7)

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. (8)

Why the Army did not intervene?

It was apparently failure of the army to sustain the president's position -- the presidents have always depended on the army for their actions against the government -- that President Leghari was forced to resign. Theoretically, in a Westminster-style democracy that this country has tried to emulate, there are four pillars of the state -- the legislature, the executive, the judiciary and the press. But our country rests imbalanced on five. The fifth pillar, the most powerful, the richest, the most organized, is the army which has governed Pakistan for half its 50-year existence. (9)

Fortunately, at present the chances of a direct take-over by the army seem remote because of economic factors and the international environment. There is a renewed emphasis on democracy worldwide in the aftermath of the Cold War and Pakistan cannot be immune to these global trends. Now it will be difficult for the Pakistani armed forces to sell a coup to the world in general and to the United States in particular.

Some political analysts believed that the army simply could not intervene for fear of a division within its own ranks. The army's involving itself in politics, at this stage, would have meant taking sides. Which would have made the army controversial and opinion within the forces would have strongly differed. That threat was all too real as numerous press stories had mentioned it. Therefore the fact that the army did not participate in political matters by siding with the president or anyone else and that he in fact refused to bail out the president and the CJP bespeaks the fear that the leadership had of the consequences of upholding any of them.

Moreover, Mr. Nawaz Sharif was no pushover like Benazir Bhutto was. It could legitimately be foreseen and feared that there would be a backlash in Punjab and the situation may not be easily controllable even by the army. And of course, there was the danger of the army being divided within itself. In fact the limits to army's political power have become visible even to ordinary citizens. (10) However, thanks to Prime Minister Nawaz Sharif, the turn of events - especially those in the third week of November - have, by default, made the army establishment's dream come true: It now has a much greater say in the affairs of the government without its concomitant responsibility.

According to the Washington Post, the army sided with Sharif today by making clear that it would not back President Leghari if he dismissed the prime minister. The Post reported that Leghari had informed the army chief, General Jehangir Karamat, that he intended to dismiss Nawaz Sharif and was drafting an explanatory speech. But General Karamat delivered a message of his own: The army would not back Sharif's ouster, in effect making any such order meaningless. (11)

Looming economic crises in Pakistan prevented the army from taking over control of the country during the current political crisis, according to the Times, London. "In another era the army would have taken over. This time, the looming economic crisis doubtless deterred it from dosing so, given the certainty that international financial institutions would have shunned a nation led by military dictators." The generals were bound to engineer the Prime Minister's survival because the only alternative was martial law, a fact that emboldened Mr. Sharif to take on two such important institutions. (12)

In a comment the New York Times said: Prime Minister Nawaz Sharif has won a constitutional battle with the president and supreme court chief justice, but he had to get the army's support to prevail. "The army behaved responsibly by insuring the continuation of an elected government. Still, it is discouraging to see the army remains such a powerful arbiter." Mr. Nawaz Sharif had become the most powerful Prime Minister since Zulfikar Ali Bhutto. (13)

According to the Financial Times, London, General Jehangir Karamat, the army chief, has intervened twice in the growing constitutional crisis, apparently in both cases to save Nawaz Sharif from premature downfall. On this occasion, Pakistan's military has chosen to side with an elected parliament rather than bring the tanks on to the streets. But the very fact that it took the chief of staff's interventions shows how qualified a victory it is for Pakistan's democracy and how politically important the military remains. (14)

Senator Tarar elected as President

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

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

It is no mere coincidence that he was on the Supreme Court bench that reinstated Nawaz Sharif as Prime Minister on May 26, 1993. Also casting a dark shadow on him is the referendum of December 1994 when, as a member of Zia's election commission, he solemnly assured the people that 55 per cent and not just five per cent of the electorate had turned out to confer legitimacy on Zia's dictatorial rule. Mr. Tarar also has to dispel the widely insinuated impression that he was involved in the "Quetta Shuttle" which divided the Supreme Court and wrote the saddest chapter in Pakistan's constitutional history. (15)

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." (16)

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.

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."

The court also dismissed the argument that the appointment of Justice Sajjad as the chief justice of Pakistan was a past and closed chapter after the apex court judgment in Judges case. Responding to the argument of Hafeez Pirzada that no judge affected by the appointment of Justice Sajjad as the CJ had objected to his appointment and they continued to function, the court said it was incorrect.

The court maintained that three judges senior to Respondent No 2 (Justice Sajjad) in spite of invitation by the president of Pakistan did not attend the oath-taking ceremony of Justice Shah as the CJ to express their resentment. Justice Saad Saood Jan, the senior most judge of the apex court who had legitimate expectancy to become the chief justice of Pakistan after the retirement of Justice Nasim Hasan Shah, the court observed, proceeded on leave for three months and until his retirement on June 30, 1996, spent most of his time at the apex court branch registry at Lahore. The court also referred to the speech of Justice Saad Saood Jan on the occasion of his retirement and a press statement issued by him, to show that he had resented his supersession by a junior judge.

Justice Ajmal Mian, another judge who was affected due to the violation of the principle of seniority in the appointment of the CJ, had also expressed his opinion on the appointment of a junior judge as the chief justice. The court referred to the two judgments in Al Jehad Case 1, and Al Jehad Case II, in which Justice Ajmal Mian had expressed his views on the subject.

Justice Ajmal Mian and Justice Saad Saood Jan did not surrender their right of legitimate expectancy to the office of the chief justice of Pakistan in favor of respondent No. 2, the court observed. "It must be borne in mind that judges of the superior courts by tradition maintain high degree of comity amongst themselves. They are not expected to go public on their differences over any issue."

The court observed that it was not expected of the superior court judges to litigate in courts like ordinary litigants in case of denial of a right connected with their offices as the code of conduct for the superior court judges enjoined upon them to avoid as far as possible any litigation on their behalf or on behalf of others.

It held that the principle of seniority in the appointment of the CJ since the establishment of the Supreme Court in 1956 was upheld. It was only violated in 1994 when the Respondent No 2 (Justice Sajjad Ali Shah), fourth on the seniority list, was appointed the chief justice of Pakistan.

The court rejected the argument of Hafeez Pirzada that no writ could be issued against a judge, the court held that judgments delivered by a judge or group of judges were the functions which were covered under Article 199(5) of the Constitution. "The difference between a judge acting as court and a judge acting in his personal and individual capacity is not only real but is necessary to preserve, otherwise a judge will not be answerable for wrong done by him in his individual capacity."

Action taken or orders passed by him in his capacity as a judge of the court cannot be brought under challenge under Article 199 of the Constitution but his action as ordinary individual would be subject to ordinary law of the land including Article 199 of the Constitution, it was maintained. When the appointment of a judge is challenged that he did not possess the qualification prescribed by the Constitution, the relator was not asking the court to strike down any of his action which he had performed or was performing as judge but was asking for examination of personal qualification. "We are therefore of the view that such an attack on the validity of the appointment of a judge of superior court through collateral proceeding is not proper remedy."

The court held that petitions challenging the appointment of Justice Sajjad Ali Shah as the chief justice were maintainable. The SC reacted to the objections raised by Justice Sajjad Ali Shah against six judges on the bench, accusing them of bias. The court rejected the objections. The court also rejected the objection to the presence of Justice Saiduzzaman Siddiqui, Justice Fazal Illahi Khan, Justice Irshad Hasan Khan, Justice Nasir Aslam Zahid and Justice Khalilur Rehman Khan on the bench hearing the petitions. The court also rejected the objection of bias against Justice Saiduzzaman Siddiqui that he was prejudiced against Justice Sajjad for the reason that he had recommended to the president to refer his (Justice Siddiqui's) case to the Supreme Judicial Council.

The Supreme Court converts 'charge sheet' against Nawaz Sharif into notice

A supreme court bench headed by Chief Justice Ajmal Mian agreed on Feb. 17, 1998 to treat as a mere "show cause notice" a "charge sheet" issued to Prime Minister Mian Nawaz Sharif by a bench headed by the former chief justice, Justice (retd) Sajjad Ali Shah, for alleged contempt of court. S.M. Zafar, counsel for Prime Minister Nawaz Sharif, took 90 minutes to persuade the court that the charge sheet issued to the prime minister was not a charge sheet as required under the law, and the court was still at the stage of "show cause notice".

When the proceedings started, Chief Justice Ajmal Mian observed that the previous bench had charge sheeted the prime minister, and the only question for the court to decide was what procedure to follow.

S.M. Zafar contended that no charge sheet had been "issued", but admitted that a charge sheet had been "drafted". He said unless a charge sheet was read out to an accused asking him whether he pleaded guilty or not guilty, there was no charge sheet. He said under rule 7 of the 1976 Contempt of Court Act, the attorney general had to act as a prosecutor, and it was his duty to read out a charge to an accused. He said no such thing had happened in this case, and the so-called charge sheet was handed down to representatives of the respondents at the office of the deputy registrar.

When the chief justice observed that a mere formality of reading out a charge sheet to an alleged contempt was not performed, the counsel for the prime minister stated that reading out the charge sheet to the accused was not a "mere formality", but an "essential formality."

Mr Zafar argued suspending the potency of the 14th Amendment through an interim order without hearing the Federal Government or the attorney general, had upset parliamentarians who raised the issue in the parliament and this necessitated an explanation by the respondent. He contended that by virtue of section 8 of the Contempt of Court Act, Chief Justice Sajjad Ali Shah, after having taken cognizance, could not proceed with the case. Chapter X Nawaz Shrif's second stint in Office Page 2 Chapter X Nawaz Shrif's second stint in Office Page 3


1. Dawn 31.5.1997

2. Herald - October 1997

3. Dawn - 8.2.1998

4. Dawn - 13.2.1998

5. Ibid.

6. Herald - December 1997

7. Herald - January 1998

8. Saving judiciary from politics by Kunwar Idris - Dawn 28.12.1997

9. Fascism on the march by Ardeshir Cowasjee - Dawn - 7.12.1997

10. Prospects after the crisis by M.B.Naqvi - Dawn 15.12.1997

11. The Washington Post - 3.12.1997

12. The Times, London 3.12.1997

13. The New York Times - 7.12.1997

14. The Financial Times - London 7.12.1997

15. Kunwar Idris - Dawn 20.12.1997

16. Selecting the Head of State by Sardar F.S. Lodi - Dawn 25.12.1997


The best constitutions have no meaning unless they can be enforced by an independent judiciary, and an independent judiciary means a judiciary which is able to resist the pressures of governments and of public opinion.[22]

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.[23] 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 recent governments. They have been either military -- which need the judiciary to give them legitimacy -- or weak -- which need the judiciary to give them strength.[24]

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.[25] 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 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.[26]

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?[27]

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. Another factor that has undermined the status of the judiciary is that it has too often been called upon to adjudicate upon political issues, and its verdicts have not always been in accord with public understanding of the norms of democracy.[28]


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

The Supreme Court also directed the federal government to appoint permanent chief justices in higher courts where at present constitutional functions are being performed by acting chief justices appointed by the government. The Court ruled that the offices of chief justice and judges of the high courts normally should be filled immediately -- not later than 30 days -- but a vacancy occurring before the due date on account of death or for any other reasons should be filled in within 90 days on permanent basis. The SC judgment also upheld the rule of seniority in respect of the appointment of high court chief justices. The most senior judge has a legitimate expectancy to be considered for appointment as the chief justice and is entitled to be so appointed in the absence of any concrete and valid reasons to be recorded by the President/Executive, it said. The court observed that the posting of a sitting CJ of a high court or a judge to the Federal Shariat Court without his consent "is violative of Article 209, which guarantees the tenure of office."[29]

The major points of the Supreme Court judgment are:

1. The words "after consultation" employed inter alia in articles 177 and 193 of the constitution connote that the consultation should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the chief justice of Pakistan and the chief justice of a high court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive.

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

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

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

5. That in view of the relevant provisions of the constitution and established conventions/practice, the most senior judge of a high court has a legitimate expectancy to be considered for appointment as the chief justice and in the absence of any concrete and valid reasons to be recorded by the president/executive, he is entitled to appoint such in the court concerned.

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

7. That an appointment of a sitting chief justice of a high court or a judge thereof in the Federal Shariat Court under article 203-C of the constitution without his consent is violative of article 209, which guarantees the tenure of office. Since the former article was incorporated by the chief martial law administrator and the later article was enacted by the framers of the constitution, the same shall prevail and, hence, such an appointment will be void.

8. That transfer of a judge of one high court to another high court can only be made in the public interest and not as a punishment.

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

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

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

On May 19, the Supreme Court returned a constitutional reference, filed by the president three days earlier, against the apex court decision, saying it had not been signed by the President as required by the constitution. On the same day the federal government filed a review petition against the Supreme Court decision. On May 26, Supreme Court Judge Mir Hazar Khan Khoso announces his dissenting judgment which said that the President has the power under the constitution to appoint judges and that no time-limit can be fixed for filling in the permanent vacancies for judges in the superior courts. He also differed with the majority decision on the issue of consultation of the president with the acting chief justice and justified the appointment of additional or ad hoc judges, which had been ruled unconstitutional by the majority decision. On the transfer of judges to the Federal Shariah Court, Justice Khoso was of the view that the president was empowered by the constitution to transfer any judge to the Federal Shariah Court for a period of two years. The judge also supported the transfer of a high court judge to another high court. Similarly, he said there was no harm in appointing people having political affiliation provided he was a person of integrity.[30]


The constitutional separation of the judiciary from the executive should have been enforced long ago but no government had been willing to do so since the executive was not willing to surrender its action of judicial scrutiny. The Judiciary in Pakistan has willingly or unwillingly, always been under the control of the executive. The framers of the 1973 constitution, fully cognizant of the fact that the liberty of citizens cannot be ensured and effective running of the government cannot be dreamed of without a judiciary free from all the pressures from the executive, made it incumbent upon the government to separate the judiciary from the executive within five years of the commencing day of the constitution, i.e. August 14, 1973. Before the act of separation could be completed, the civilian government of Zulfikar Ali Bhutto was overthrown by General Ziaul Haq in July 1977. The judiciary created to protect each and every provision of the constitution could do nothing when General Zia abrogated it and trod upon the powers of judiciary. It had to bow before the actions of an intruder and justify his cruel treatment to the constitution because it was not independent of the executive control.

The period prescribed for the separation elapsed on August 14, 1978, and from that day onward all the executive officers including the Commissioners, Deputy Commissioners and Magistrates were functioning unconstitutionally till March 2, 1985 when an amendment was made in the constitution to enhance the period of separation of judiciary from the executive from five years to fourteen years by a Presidential Order. In 1989 the High Court of Sindh directed the government to forthwith separate the judiciary from the executive. The federal government filed an appeal in the Supreme Court that was dismissed on March 31, 1993.

In October, 1993, the Supreme Court ordered to provinces to separate the two institutions by March 23, 1994 to fulfill this constitutional obligation. Instead of implementing the court order, the provinces in April 1994 filed separate review petitions in the Supreme Court requesting the court to extend the period. The provinces had been demanding extension on the plea that they were facing shortage of magistrates to implement the constitutional requirement. The former chief justice Nasim Hasan Shah took a serious view of the delaying tactics of the provinces and refused to give an extension. He said that any order passed by a magistrate after April 23, 1994 would be void.

Eventually on January 24, 1996, the Supreme Court rejected the provincial governments' request for extending the deadline and ordered them to separate the two institutions by March 23, 1996. While fixing the final and irrevocable date enforcing Article 175(3) of the constitution the court made it clear at the same time that there would be no further extension. The court also validated the judicial orders passed by the magistrates from March 23, 1994 which were declared void by the Supreme Court in April 1994.

However, though it was obvious that there would be no further escape from this decision, all the provincial governments were still reluctant to enforce it. The reasons for this were two-fold. The concentration of executive, judicial and revenue powers at the district level and below has been a feature of administration in the sub-continent for over a hundred years. Pakistani governments are therefore reluctant to part with a system which gives the administration a great deal of power. Secondly, there is resistance from the District Management Group cadre to this move because the loss of judicial powers will weaken the offices of the assistant commissioner and the deputy commissioner. Executive magistrates who exercise judicial powers, under the control and supervision of their deputy commissioners, are also against this move because much of their glory will be stripped from them when they lose the power to sit in judgment over criminal matters.

Powerful commissioners and district magistrates had a role to play and a purpose to fulfill in a colonial set-up where exigencies of administration took precedence over the requirements of justice or the demands of civil liberties. But a powerful district magistrate is an anomaly in present times when there is a growing demand for the administration of criminal justice to be improved so that the rights of citizens are not abused and, at the same time, the ends of justice are more swiftly and efficiently met. Executive magistrates who exercise judicial powers are first of all susceptible to being influenced in their judicial decisions by their executive superiors. What is equally reprehensible, the close working relationship that exists between the magistracy and the police works against the interests of public because in the matter of bail and remand magistrates lend a readier ear to the demands of the police than to the ends of justice.

On March 21, 1996, an ordinance was issued to formally separate the judiciary from the executive. The ordinance, however, created two types of magistrates - the judicial and the executive. The judicial magistrates were placed under the control of the High Court while the administrative magistrates will continue to work under District Magistrate. According to the ordinance, all crimes punishable with sentences of up to three years or more will be dealt with exclusively by the judicial magistrates, while executive magistrates will be allowed to entertain certain pre-defined crimes carrying a prison term of up to three years. The executive magistrates have been authorized to take up cases mainly pertaining to the law and order situations and certain local laws.

However, jurists have termed the logistics adopted by the government to separate the judiciary from the executive through an ordinance as against the spirit of the constitution which prohibits legislation through ordinance. On March 19, the National Assembly session was prorogued and called into session on March 24 again after the Legal reforms ordinance was issued on March 21. The jurists say that it was mala fide on the part of the government to prorogue the National Assembly session for the promulgation of presidential ordinances.

Later, the government introduced the Legal Reforms Ordinance as the Legal Reforms Bill in the National Assembly. Speaking on the bill, the former Law Minister, Syed Iftikhar Gilani, told the house that the present document was only a separation of functions between the executive and the judiciary and not really the separation of the two institutions. Pointing out the contradiction in the bill, Syed Gilani, said that under the new framework, while the deputy commissioner had no "technical" connection with an ongoing murder trial in a sessions court, he nevertheless had the power to declare any of the accused in the case as a state witness and thus taking him out of the purview of judicial prosecution. He said that despite the opposition's insistence, the government had not agreed to the scrapping of this power. [31] The National Assembly passed the Legal Reforms Act on April 15, 1996 amid bitter opposition criticism that the bill did not ensure the separation of judiciary from the executive as envisaged in the constitution. Chapter XI C O N C L U S I O N: What is the true state of affairs? Page 2 On the Golden Jubilee Celebrations of Pakistan Abdus Sattar Ghazali Presents ISLAMIC PAKISTAN: ILLUSIONS & REALITY A comprehensive and detailed political history of Pakistan


22. Making Constitution safer for democracy by Justice (retd) Dorab Patel - Dawn 22.5.1993

23. Contempt of Court - The Economist, London, 18.2.1995

24. This is not to say that all the people appointed to the Superior Courts by authoritarian rulers have not performed their functions with dignity and impartiality. After all, those who delivered the dissenting judgment in the ZAB case and those who refused to take oath under Zia's PCO were also appointed by the same usurper rulers.

25. The slaying of judiciary by Ardeshir Cowasjee - Dawn 1.4.1994

26. Contempt of Court - The Economist 18.2.1995

27. The question of criteria by Ghayurul Islam - Dawn 17.8.1994

28. Not by law of contempt alone-II by I.A.Rehman - Dawn 26.4.1995

29. Dawn 20.3.1996

30. Dawn 27.5.9


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