TAMING THE EXECUTIVE
Whereas earlier attempts to tame the executive by the judiciary followed a more circuitous route, what happened under the Chaudhry court— and which excited a vast retributive reaction against it—was a much more direct assault on what were considered unassailable prerogative powers by executive functionaries of the state.
By erecting itself in some ways as the ‘regulator’ of state action broadly, the court began a process of calling into account both the elected and unelected sections of the executive branch.A. Military Adventurism Ended?
The Sindh High Court Bar Association[291] case is the judicial response to the last historical attempt to instantiate a new body of laws by executive fiat in Pakistan. Through it, alterations made to the Constitution from the declaration of a 2007 emergency onwards were declared void.
In the unanimous decision authored by Chief Justice Chaudhry, a long history of judicial acquiescence in the face of unconstitutional takeovers and power aggrandisements was declared as having always been wrong in law. In contrast to the harkening for a higher law in the form of protected principles that the basic structure doctrine necessitates, this judgment sought to find safeguards for the future within the ‘four corners of the constitutional text’. Thus, the issue of army takeovers was related to the existing Article 6 which describes as ‘high treason’ any acts to abrogate, subvert or hold in abeyance the Constitution. Further, that Article 245(b) provides the only possible means where the military can perform a role in civilian life and that too ‘in aid of’ and as requested by civil powers. In labouring over this judgment, the court sought to warn high army officers and their aiders and abettors that they should seek to gain power only at their own peril. Additionally, the judgment prescribed a procedural conformity with the constitutional text insofar as the amendment formula as described in Articles 237 and 238 provide the sole criterion by which to measure an amendment as valid.
Those amendments undertaken as Presidential Ordinances were thereby declared invalid. Thus, although the invalidation impacted only those ‘legal bridges’ Musharraf contrived in his last months in power, the sheer fact that such a thorough review was undertaken followed through with the aims of the Asma Jilani judgment of 1973.In April 2014 Musharraf was charged with high treason under Article 6 of the Constitution and its enabling law[292] The charge sheet was framed in reference to five specific acts undertaken in and around the 2007 declaration of emergency. These included the proclamation of emergency itself, the administration of oath of office to judges and attempts to amend the Constitution by Presidential Order and by incorporation of Article 270AAA into the constitutional text.
While the court case continues and a variety of charges have been framed for a number of Musharraf’s associates and accomplices, including the Prime Minister of the time, Shaukat Aziz, the outcome is yet uncertain. It seems to be one of the pieces on the chessboard of civil/military relations, such that it is reputed that attempts to destabilise the Nawaz Sharif regime by the military are due to the affront the institution feels at having one of its own brought to account. The delays in delivering a verdict include Musharraf’s ability to seek and be granted permission of the court to undergo medical treatment outside the country for a range of dubious ailments. Again, this indicates to the average Pakistani the high-handedness of the military in ensuring that the case does not achieve conclusion and conviction.
B. Democratic Executive and Prerogative Powers Reviewed
A range of petitions ranged at the high offices of the Prime Minister and his Cabinet were taken up in the years after 2008. These included high-value corruption cases implicating the elected executive. Importantly, the Rental Power Plant case[293] of 2012 was heard and resulted eventually in the issuance of an arrest warrant for Prime Minister Raja Pervaiz Ashraf.
As Minister of Water and Power, Ashraf had been responsible for the enforcement of a policy first outlined in the latter days of a Musharraf presidency. The policy was aimed at providing a quick fix to alleviate acute energy shortages in the country.Against evidence published by the Asian Development Bank of significant governmental financing of private investors and negligible electricity production, the Supreme Court took notice. Sticking close to a script of judicial review of administrative action that it had authored in the earlier Steel Mills Privatisation case,[294] the Court looked at the reasonableness, legality and transparency of the government’s actions. In fact, it read this violation of transparency as a compromise of both fundamental rights to ‘life and liberty’ as well as security of property. The fact that the Court read the provision of electricity as amongst the constitutive base for a fundamental right to life is in keeping with a range of other cases it investigated in these years to uncover executive maladministration in the provisioning of basic utilities.[295] It thereby boldly trod into the domain of making directions about allocation of resources.[296]
In addition, the idea of a fundamental collective right to resources also underlay the court’s reasoning in the Reko Diq case.[297] This case involved a considerable mining concession to a consortium of foreign companies in the province of Balochistan.
The Chaudhry court refused to cede jurisdiction to hear the case in spite of a range of arguments urging restraint. To this end, the case for the Australian/Canadian and Chilean mining consortium seemed to present something akin to a ‘doctrine of globalisation’. Overarching principles of international commercial law, evidence of an arbitration clause and Pakistan’s ratification of a range of bilateral investment treaties were the important features of such advocacy. The Court countered these with a range of principles from international public law treaties governing corruption.
Although no specific charges of corruption have been laid from this case, evidence of conflicts of interest amongst several parties and possible corruption was brought on record. Coupled with a range of procedural irregularities involved in the grant of the concession, the court determined that contracts contrary to domestic law would not be enforced. Additionally evidence of nonenforcement of existing rules and the absence of transparency led the court to declare the whole of the agreement void ab initio.In Reko Diq the court also made forceful recommendations in an area that has remained within the domain of executive prerogative: the signing of international instruments and treaties. The court provided the forceful recommendation that the federal government must consult all provinces before becoming signatory to such treaties. Citing the fact that the compensatory regimes established by way of bilateral investment treaties for direct and indirect expropriation are ‘expanding to include even delay in decision of the court, change in legislation and adverse decision of domestic court’, the court directed that the federal government must consider the impact that the ratification of such treaties has upon the constitutional principle of ‘independence of the judiciary’. Although it was not ultimately passed into law, a proposed Ratification of Treaties Bill was introduced shortly thereafter as a private members Bill in Parliament.
While the resource nationalism displayed in the Reko Diq case ensured wide-ranging, though far from universal, favour in the realm of public opinion, another set of cases, also putatively tied to issues of endemic corruption, were more susceptible to charges of judicial overreach.[298] These involved the court directly intervening in the matter of appointments to public sector organisations and high-level bureaucratic positions. As noted elsewhere, the bureaucracy in Pakistan exercises considerable power and as the functional executor of policy and executive decision-making, bureaucrats are necessary intermediaries in many forms of developmental and transactional activity.
Individually and as a class, they are much scrutinised for displaying any vestige of unjust enrichment or politicisation.However, the longer history of what now appears as endemic and systemic ‘corruption’ arises partially from the changes that impacted the structure of the civil services of Pakistan through the 1973 Constitution. It has been argued that the restructuring carried out by Bhutto, by allowing for greater political control to be exercised over promotions and terms of service, has caused palpable deterioration in the services rendered by the bureaucracy.[299] It was in this context that the Chaudhry court, upon a petition by a member of the PML-N, devised a formula of appointment that was extremely contentious.
In the Khawaja Asif case,[300] the court recommended that a ‘Code of Practice’ be devised and under it an independent commission be established to oversee all high-level bureaucratic appointments. However, in exercise of its revisional jurisdiction, a bench headed by one of Chaudhry’s successor chief justices has held that this recommendation does not hold the status of law and that in fact it erred in non-consid- eration of Article 90 of the Constitution. Chief Justice Nasir-ul-Mulk restated a principle that has in fact guided the judiciary for the longer duration of its operations, in that it is ‘settled law that the Courts should ordinarily refrain from interfering in policy making domain of the Executive’.[301] In short, the Chief Justice displayed a fidelity to more conventional views of the trichotomy of powers with clearly delineated and rule-bound abidance of existing rules and laws. However, he stated that the principle of judicial deference will only apply where the executive is seen to be complying with existing laws and in abidance of the principle that ‘where appointments are to be made in exercise of discretionary powers, such powers are to be employed in a reasonable manner’.
VI.