Benazir Bhutto’s Second Term (1993-96): The Judiciary and Democracy Confrontation
In her 2nd tenure (from 1993 to 1996), Benazir Bhutto attempted to fix institutional loopholes and the pitfalls of her first regime (1988-90). She was lucky to have General Kakar and wanted him to continue due to increasing extremism in the military, but he refused.
To please the army, she supported the formation of the Taliban’s control of Afghanistan but later insisted on breaking relations the group and warned that ‘strategic depth’ would become a ‘strategic threat’. When Kakar retired and Javed Ashraf was transferred from the Inter-Services Intelligence (ISI), it was considered the ‘death-knell’ for Benazir Bhutto’s second government.[964] The second loophole was the 8th Amendment, or what she termed as allowing the possibility of a “military-backed coup with constitutional dressing”.[965] Hence, she elected Farooq Laghari to be the president of Pakistan from her own party.It was hard enough to maintain an alliance with unbridled allies let alone control them when in the opposition. Benazir Bhutto’s weak government tried to survive by encouraging political defection of the opposition. She gave residential plots and lands to members of assembly. Fifty-five opposition members were among the applicants for plots in the capital city of Islamabad. When this was challenged in the Lahore High Court, Justice Munir A. Sheikh rejected M.D. Tahir’s writ, an advocate against the granting of plots to members of assembly, on the grounds that if the lawyers and journalists can have plots, why not the members of assembly?[966] Expressing real opposition, on 9 June 1996, the Sunday Express London reported that Benazir Bhutto had bought a £2.5 million mansion in Britain. Meanwhile, the IMF saw corruption as a big hurdle to raising revenue in Pakistan. Aid donors were unhappy over government reluctance to curb the menace of corruption and accused the government of fudging figures.
They put pressure on the IMF to go public over the level of corruption in Pakistan.[967]4.4.1 Appointment of Judges: The Democratic Regime Exercising Constitutional Power?
Given the range of decisions, Benazir’s regime felt challenged. In these circumstances, the control of the judiciary was needed to hold the power of the state. The restoration of the Nawaz government was a clear indication of the judicial institutions emerging power. When Benazir Bhutto herself dissolved the provincial assembly of the North Western Frontier Province (NWFP), it was challenged in the Supreme Court, which accepted the petition by a majority of seven to two.[968] Again on 5 September 1995, the president imposed emergency in the province of Punjab to get rid of the undesired Chief Minister Wattoo, the Lahore High Court again accepted the petition in its judgment of 30 October 1996.[969]
Benazir Bhutto could not trust anyone at the highest post of judicial hierarchy, so she sought to appoint those who had decided favourably for her regime. Chief Justice Saad was not confirmed, rather Sajjad was appointed as the Chief Justice of the Supreme Court in 1994, possibly since Sajjad was one of the two dissenting judges when her regime was dissolved in 1990 and he had observed that the purpose of the dissolution was just to get rid of the Pakistan People’s Party. Sajjad himself thought that in India and elsewhere there was no problem with political appointments in judiciary.[970]
With Sajjad as Chief Justice of the Supreme Court, the government of the Pakistan People’s Party removed the Chief Justices of the High Courts to strengthen its hold on the judicial system of the provinces. Chief Justices against the regime were removed or transferred to Federal Shariat Court (FSC), kind of a demotion. The Chief Justice of the Sindh High Court and Nasir Aslam Zahid accepted these transfers, while the Chief Justice of the Lahore High Court refused.
Two Supreme Court judges were sent to take their places as Acting Chief Justices. One of them was Muhammad Ilyas of the FSC who was earlier denied as Chief Justice of the Lahore High Court by Nawaz and was sent back as Chief Justice Lahore High Court. The Peshawar High Court (PHC) was also headed by an acting Chief Justice. With only three acting Chief Justices in three High Courts, the government had full control of the judiciary, because acting Chief Justices could not give strong decisions against the regime.Next were the political appointments in the High Courts. The Sindh High Court and Lahore High Court were full of recent political appointees, with 9 and 20 new appointments of judges, respectively. According to Hamid, only six High Court judges could hardly qualify as judges, and eight or nine could not appear in High Courts as advocates.[971] The Supreme Court had 7 ad hoc judges against 10 permanent judges. The Acting Chief Justices were acting as Benazir Bhutto’s stamps for those appointments.
How was Benazir Bhutto using the ad hoc judges? The first service by Sajjad was to adjourn the appeal in the Pir Sabir Shah case on the request of the Federal Government and without notice to the appellant. The majority decision was seven to five. Six ad hoc judges supported the Chief Justice, and the minority was constituted of five permanent judges. In November 1994, the Pakistan Bar Council condemned the appointments in the superior courts as not being based on merit. It also condemned the appointment of acting Chief Justices in the High Courts and the ad hoc judges of the Supreme Court. The Sindh High Court Bar Association and Karachi Bar Association went on strike; they were supported by the opposition but were attacked by the police.
The democratic government of Benazir Bhutto thus exercised its own ‘constitutional powers’, even though the Chief Justice was to be consulted on judicial appointments under Article 177(1), 193(1) and 203-C(4) of the Constitution and his opinion should be given due significance and weight.
What if he was not consulted? Khosa went to the extent of saying that not consulting the Chief Justice was unconstitutional and to not fulfil this obligation was high treason. Under Article 47(1) the president can be impeached for this. But should the Supreme Court rewrite the constitution where there is a flagrant abuse of executive power? This is what it in fact did in the Judges’ case.4.4.2 Judges' Case: Appointment of Judges Is not the Right
of a Democratic Regime[972]
In August 1994, 25 judges were appointed to the Lahore High Court in one sweep and again on 10 April 1995, notification of the appointment of nine judges came without any considerations of the recommendations of the Chief Justice of the Supreme Court.[973] The response to this was the Judges’ case. Sajjad himself was involved in this despite his own political appointment, and called Supreme Court Justice Ajmal to help him.[974] The purpose was to correct the image of the judiciary. One of the major features of the judgment was to stop the appointment of ad hoc judges and acting judges against the permanent places of Supreme Court and High Courts, respectively; if it was to be done then it should be done permanently within 90 days. Permanent vacancies in the judiciary should be filled within 30 days, and except for reasons to be recorded by the president, the senior most judges should be Chief. A Supreme Court judge should not be sent as acting Chief Justice to the High Courts. The Acting Chief Justices should not be considered as constitutional con- sultees. Consultation should be meaningful and purposive and consensus oriented, and the opinion of the Chief Justices in the consultation is binding on the executive except for strong recorded and justifiable reasons on behalf of the executive. The requirement of 10 years practice does not mean enrolment, but actual practice/experience. The appointment of Chief Justices of the High Courts to FSC should be with their consent.
Before moving ahead, it is better to outline a critique of the case. There were the judges’ own interests at play, and there were constitutional and statutory interpretations made, which were beyond recognized principles. The invalidity of the appointment of judges on the advice of Acting Chief Justice was not extended to critiquing the appointments made during Zia’s regime. In addition, one provision of the constitution was held to supersede another, which was unusual in the annals of constitutional law, and a provision of the constitution was held to be inoperative and ineffective.[975] In terms of personal dynamics, Supreme Court Chief Justice Sajjad was uncomfortable whenever the question of the senior most judge to be appointed as Chief Justice arose, as he had informed Benazir Bhutto that there were in fact three judges senior to him before his own appointment.[976] Justice Manzoor Hussain Sial told Ajmal not to insist on this point; otherwise Sajjad would compromise with the government. Furthermore, Supreme Court Chief Justice Sajjad wrote his judgment on the basis of Ajmal’s judgment but deprived him of credit.[977]
The federal government did not want to proceed with the Judges’ case. Sajjad faced pressure from government quarters to adjourn these cases sine die as requested by Benazir Bhutto on several occasions.[978] When he refused, ‘deliberate revenge’ was taken against the Supreme Court Chief Justice and he was reminded about the personal favours he received from Pakistan People’s Party government.[979] On 19 March 1996, a day before a short order, Pakistan People’s Party government confirmed ten additional judges to the Lahore High Court and seven additional judges to the Singh High Court. Benazir Bhutto ridiculed the judiciary publically in the press and parliament. Even while the Judges' case was under hearing, while addressing the District Bar Association of Jacobabad and Nasirabad on 4 April 1996, Benazir Bhutto claimed that she had the constitutional authority to appoint Supreme Court Chief Justices and Chief Justices of High Courts.
She went to the extent of stating that she could appoint any member of the said bar for those posts.[980]Hamid Khan, on behalf of the Pakistan Bar Council, showed extreme disappointment that the judge’s case order was not implemented. The Pakistan Bar Council also declared in its meeting that advice of the Prime Minister is necessary for the appointment of the judges in a parliamentary form of government. Chief Justice Sajjad did not appreciate this and refused Hamid Khan’s help but accepted S.M. Zafar as amicus curiae in the case.
It was clear that the judiciary needed independence. Refusing a ride with the democratic government in structural tension within the state structure left only one option, that is, to strengthen the old juridico-bureaucratic structure. President Laghari, alongside his former colleagues from the 1968 Civil Services of Pakistan, was in the president house, and the independence of the judiciary was fought through the establishment. The point to remember here is that before, this judiciary always sided with the establishment, but as a junior partner. This time the judiciary sought the help of the establishment for its own independence. According to Benazir Bhutto, Sajjad was promised the Interim Prime Ministership by the President in this controversy.[981]
There were clear differences between the Prime Minister and the president.[982] Wahabul Khari, Advocate Supreme Court (ASC), filed a writ petition asking the president to appoint judges, as the advice of the Prime Minister was not required. On 21 September 1996, the president moved a reference, asking the Supreme Court “whether the advice of the Prime Minister under Article 48(1) of the constitution was mandatory for the appointments of the Chief Justices and justices of the superior courts”.[983] Sajjad was of the opinion that the advice of the Prime Minister is not necessary for the appointment of the judges. But Supreme Court Justices Ajmal and Saeeduzzaman were of the opinion that the Prime Minister cannot be excluded in a parliamentary form of government and other judges were also of the same opinion, as was the Pakistan Bar Council (PBC).[984]
On 8 June 1996, a committee of Chief Justices in Murree decided that five judges from the Sindh High Court, three from Peshawar and nine from the Lahore High Court would be laid off.[985] In an order on three review petitions and reference no. 1/1996 of the government, the Chief Justice demanded the record of confirmation of those additional judges of the Lahore High Court and Sindh High Court, who were confirmed one day before the short order. The Prime Minister appealed the judgment of the Judges’ case but had to withdraw when Chief Justice Sajjad insisted upon staying on the bench for the appeal. Benazir subsequently, partially, implemented the judgment. Permanent Chief Justices were provided to the High Courts within 30 days, ad hoc Supreme Court judges were relieved, and some High Court judges who were not appointed on merit were laid off.
4.4.3 Dissolution of Assembly at the Altar of Independence of Judiciary
Sajjad, according to his own account, had no motive in the Judges’ case except the rule of law,[986] but the result was the dissolution of Benazir Bhutto’s assembly (1993-1996). On 26 September 1996, Laghari dismissed Benazir Bhutto’s government, using Article 58(2)(b) of the constitution, under the charges of corruption, inability to maintain law and order, accusing the presidency and the state agencies in the murder of her brother, deliberate delay in the implementation of the judges’ judgment, humiliating the judiciary, violation of fundamental rights and nepotism. Benazir Bhutto and the speaker of the national assembly, Yousaf Raza Gilani, challenged the dissolution. As opposed to a full bench, the offended Chief Justice formed a seven-judge bench and with a majority of six to one upheld the order of the President.[987]
Since four democratic governments had now been dissolved due to the 8th Amendment,[988] it was under challenge in some petitions. The offending Chief Justice decided to hear these cases before the case of dissolution of assembly in the Benazir Bhutto case. The Supreme Court, after due consideration, upheld the validity of the 8th Amendment.[989]
The bar also resisted the appointment of judges by the executive as it reduced the judicial organ of the state to merely a department of the government.[990] The judgment in the Judges’ case was welcomed as it restored the confidence of the public in the judiciary, and hence, its impact was healthy. Still, the story was not over, as it was noted by Hamid Khan that judicial consultees could not be trusted as they had a history of giving favours to their relatives and colleagues.[991]
4.4.4 ‘State Capture': Disenchantment with the Washington
Consensus and Subalterns
Benazir Bhutto observed the ‘state capture’ by juridico-bureaucratic structure. At the same time, the metropolitan bourgeoisie observed the ‘state capture’ by the local elite (reigning class) in developing countries, including Pakistan and raised the issue of ‘corruption’ in developing countries. From this point onwards, ‘civil society’ with its ‘liberal project’ came as a watchdog on the corrupt political elite. Crumbs for subalterns (through basic needs development projects) were also not reaching the desired layers to pacify them, resulting in disenchantment with market economy.
In these circumstances, critique of the ‘liberal project’ (NGOs-non-governmental organization) had twofolds. On the one hand, it wanted to cut the excesses of the Structural Adjustment Program, particularly its ad hocism. It attacked the International Monetary Fund and World Bank’s Structural Adjustment Programs as neo-liberalism, a “naive nineteenth century (European liberalism)” and gave a call for pro-poor initiatives.[992] Later, when these policies were implemented, this project pointed out how this human development is not part of economic development. That is why what is given through social action program is sucked back through indirect taxes under structural adjustment. How did the cuts on health and education expenditures affect people? Structural Adjustment Programs is anti-people and anti-state in one breath.[993] On the other hand, it wanted social development through NGOs as political elite was corrupt.
Benazir Bhutto’s Social Action Plan (from 1993 to 1996) had been criticized for ad hocism, the community’s ability to handle projects, and the inability of the federal and provincial governments to fund the recurring costs of development projects.[994] When the case for the dissolution of Benazir Bhutto’s government came before the Lahore High Court, the justices found that the People's Works Program violated Article 97. Rs. 8 billion was allocated for it without legislative backing, meaning that the ‘liberal’ project and the judiciary alike were critical of the political elite. So in the years to come, the discourse of the centrality of courts, legalism and hopes placed on civil society, in both liberal and quasi-liberal projects, allowed for joining hands with metropolitan bourgeoisie.
4.5