After the Lawyers’ Movement: Reclaiming Parliamentary Sovereignty
After the restoration of democracy, the relationship of democratic, civilian and legislative leaders with the restoration of judges was a reluctant one. On December
2007, Benazir Bhutto made clear that she was with the ‘independent judiciary’, but ‘not the judges’.
Her position to not support the involvement of the judiciary in politics, like in Bangladesh, is also telling.[1337] General Musharraf lifted emergency on 16 December 2007 and 14 Supreme Court and Federal Shariat Court judges took the oath on 16 December 2007.Zardari entered into an agreement with the PML-N, called the Murree Declaration, on 3 November 2007. This was a move to restore the judiciary, including Chief Justice Iftikhar, within 30 days of the formation of government. Elections were held on 8 January 8 2008, a month after Benazir Bhutto’s assassination, the PPP won the elections thereafter under the chairmanship of Zardari.
The federal government was formed on 31 March 31 2008, but Zardari was now reluctant to restore the judges. He was interested in seeing the criminal charges against him removed and to get rid of the condition of graduation for his election in the national assembly. The Provisional Constitutional Order court did this on 21 April
2008, it paved the path for Zardari to become president after the resignation of General Musharraf on 7 August 2008. Zardari reneged from the promise of the restoration of judiciary. Pakistan Bar Council-PBC and the other Bar Councils decided to boycott the Provisional Constitutional Order judges, continuing for a period of two months.
Particularly in the Lahore High Court Bar Association-LHCBA, the lawyers were clearly divided amongst the ‘professionals’ (rejectionist parties like Imran Khan’s Tehrik-e-Insaf, Jamaat-e-Islami-JI, etc.) and the ‘Khoosa’ group (or the Pakistan People’s Party).[1338]
Zardari offered a constitutional package, which was rejected by the PML-N.[1339] The amendments of this package, related to the judiciary, were considered as violative of the judiciary’s independence.
The concerning amendments were related to the appointment of Chief Justices and judges of superior courts and their removal, as well as the amendments that curtailed the sou motu jurisdiction of the Supreme Court.[1340] Talks among the PPP and PML-N in Dubai did not succeed and Zardari made it clear that the mandate was given to the PPP for Roti, Kapra aur Makan (food, clothes and houses), and not to restore the judges. He called the Murree Declaration a political statement and made clear that he had been in jail for eight years, a victim of the judiciary. He said the Supreme Court reverted back a case against him to the accountability court, though he had already served the sentence. He even denied the fact that the change that took place in the country was due to the historic ‘no’ of the deposed Supreme Court Chief Justice and the subsequent lawyers ’ movement, which resulted in lawyers having their legs broken. He even noted that international powers were behind the return of democracy in Pakistan. He reminded the public that Benazir Bhutto was not in favour of restoring the judiciary.[1341]Finally, the situation was such that the opposition was stuck with the law and constitution (or the restoration of judiciary) and the government with law and order (in terms of fighting terrorism). The PPP wanted ‘slow’ and ‘constitutional’ changes to remove the constitutional engineering by General Musharraf, whereas ‘quick change’ or ‘radicalism’ meant the restoration of the judiciary and was necessary.[1342] Finally, the guarantors moved and brokered another deal[1343] under the hegemonic bloc. Supreme Court Chief Justice Iftikhar met with Asif Zardari and with retired Justice Tariq Mahmood, who was the Supreme Court Bar Association former president and leader of the lawyers’ movement. Supreme Court Chief Justice Iftikhar also met a six-member delegation of the U.S. congress led by Tiernerry, head of the National Affairs of the sub-committee of the House Oversight and Government Reform Committee.[1344]
5.7.1 From Parliamentary Democracy to Constitutional
Democracy
Until 1998, the concept of Constitutional Governance through judicial review was not considered to be ‘super legislative’, or above the Constitution, and was instead considered to be “corrective in nature with anxiety to protect the constitution”.[1345] Later, the judiciary was considered the ‘custodian’ of the constitution and a ‘watchdog’ over the other organs of the state.
Itbecame a ‘safety valve’ or the ‘balance wheel’ of the constitution.[1346] This role was required, especially when the judiciary feltmarginalized after military coups when there was no constitution.[1347] Thus, in a way, the supremacy of the constitution meant the judiciary’s own supremacy.
After the lawyers’ movement, the judiciary was clear that it was not bowing down before parliamentary democracy. For Barkat Ali Khan, parliamentary democracy was not enough because the written constitution itself was limited and the parliament in Pakistan deviated from this principle and ignored its basis of fundamental rights and the rule of law. That is why we need constitutional democracy and constitutional governance, whereby the majority is restrained within the framework of the constitution and hence there is legal restraint. Constitutional democracy and constitutional governance make the government ‘responsible’, Khan argued. Does this mean that a constitutional government is a responsible government rather than a representative government? The writer went further, and made clear that Pakistan followed the principle of British parliamentary democracy but does not accept English doctrine of absolute supremacy of the legislature. So it is a system of constitutional supremacy, not parliamentary supremacy.[1348]
We should recall that during the period of early modernization (the 1950s to the 1970s), it was argued that a controlled type of democracy, like a strong presidential system, was needed. Afterward, in 1980s under Zia, the constitution (with the judiciary as its custodian) was to envisage democracy, understood as “not a system of self-government but a system of control and limitations of the government”.[1349] Has Pakistan entered an era of judicial dictatorship (2008 and onward) in the name of good governance? Let me close the book on the role the judiciary has played in democracy in Pakistan on these remarks. Below is the conclusion regarding the judiciary’s second claim, that it had protected human rights.
5.8