Class Formations Under ‘Good Governance’
5.4.1 An Undermined Legislature
The usual reason given for why the judiciary opposed the legislature was the claim that it did not legislate. Justice Khoosa concluded that, in the 1990s, legislators spent their time passing motions about breaches of their privileges.
The ‘logical conclusion’ was that under these circumstances, the judiciary in Pakistan had to arrest the repugnancy of parliamentary laws. Therefore, he noted the “judiciary is enjoying a sway over both the Legislature and the Executive”.[1156] It was also claimed that the legislators in Pakistan did not know the rules for drafting legislation, or the relevant jurisprudence, and judges are to apply these laws with responsibility.[1157] The reason for PIL, for Justice Nasir Aslam Zahid, itself rested on the understanding or inability/failure of the legislature and executive to bring about social and economic justice to the poor people.[1158] Furthermore, if the elected governments were equally inept, then the remedy could not be regular and fair elections. Citizens cannot find a forum to challenge their elected representatives, as they are only accountable at polls. In conclusion, PIL provides such a forum.[1159] The other possibility is the separation of powers as a check on the legislature and executive,[1160] and this also enhances the responsibility on the judiciary. Furthermore, since there is widespread illiteracy, people can only get any accountability through the judiciary.[1161] In addition, the Supreme Court “shall have to fill-in the empty shows of the opposition” and to provide a dialogue.[1162] It was clear that it was thought that every function of the legislature needed to be done by the judiciary.5.4.2 Struggle Against the Judiciary's Encroachment on the Legislative Powers
The judiciary’s main demand in 2000 was to bring in Service Tribunals, Custom Courts, Income Tax Tribunals, Banking Tribunals and even Revenue Courts under the administrative control of either High Courts or the Supreme Court as they are the forums which adjudicate most matters.
They should gradually and progressively be separated from the executive, it was argued.[1163] This demand began to face a backlash. In the Sirtaj Bibi case,[1164] the writer Irshad Ahmad gave a critique of the prior Anwar Ali decision and found that the judiciary was encroaching upon the powers of the executive.[1165]The judiciary had exclusive rights to appoint the judges at this point. Earlier, the executive appointed the judges after consulting with the Supreme Court Chief Justice, who requested favours. Now, the judges were appointing judges, except that the Chief Justice was in office ‘for the pleasure of the president’ and the president can appoint anyone through the Supreme Court Chief Justice. This did not make much difference, but the principle inspired the protest against the new ‘exclusive’ right of the judiciary in the appointment of judges. Shahida Jamil, while criticizing this ‘Indian novelty’ of the appointment of judges, reminded the judiciary that it had totally shifted the power of the appointment of judges to the judiciary in complete disregard to the trias politica percept. Due to this, an imbalance had been created.[1166] The discontent of the two main parties in opposition —the Pakistan Muslim League (PML-N) and the Pakistan People’s Party—was evident in the Charter of Democracy of 2006.[1167] What about the lawyers?
The bar had already put forth the idea of a Judicial Commission comprising the bar, the bench and people involved in the appointment and removal of the judiciary.[1168] This proposal was blatantly in favour of the bench and bar minimizing the role of legislature. The proposal of the potential legislature, (including the Pakistan People’s Party and Pakistan Muslim League, PML-N), an agreement signed as the Charter of Democracy, was critiqued by the bar, as it was obvious that the Charter conferred “a disproportionate high degree of discretion in the Prime Minister and the Joint Parliamentary Committee”.[1169]
5.4.3 Supremacy of the Constitution as Supremacy
of the Judiciary
Ultimately, the judiciary established its supremacy by invoking the supremacy of the constitution.
In the 1970s, the judiciary had an explicit stance that it was not above the constitution and could not strike down any provisions of the constitution, even if a particular provision ousted the jurisprudence of the Court.[1170] Until 1988, Pakistani courts were reluctant to assume the functions of the legislature and always interpreted under well-settled canons of the construction.[1171]From the mid-1990s, the new constitutional construction was done through three areas: constitutional litigation, alternate rulings that have social consequences, and through rulings regarding how to balance opposing societal interests or values.[1172] This opened up many possible methods of political governance.[1173] The constitution and amendments in themselves undermined the legislature. Apart from 58(2)(b), the Shariat Bill of 1985 and the 1986 Constitution Bill (9th Amendment) created structures above the legislature. The former created a non-legislative body to oversee Islamization programmes, whereas the latter made the Federal Shariat Court as a kind of supreme government body.[1174] The Objective Resolution[1175] put a supernatural authority over the elective representatives. The Federal Shariat Court acquired the role of a supra-legislature body and, by declaring any law unconstitutional, it undermined legislature.[1176]
Sajjad Ali asserted the supremacy of the constitution to be a ‘positive contribution’ and that it was the right of the judiciary to interpret the constitution, even to the extent of finding solutions to the legal and political crisis as a practical mechanism for the ‘governance’ of a developed and a developing country.[1177] Similarly, his immediate successor or parallel Chief Justice Ajmal Mian[1178] also believed in a whole system of governance in accordance with the letter and spirit of the constitution. He considered the rule of law as sine qua non for good governance, and the economic progress of a country,[1179] as laying the basis for the full concept of constitutional governance in the future.
This ‘constitutional arrangement’ was not to be changed for a democratic regime,[1180] but only when asked by a military ruler.[1181] Furthermore, it is argued that the power of judicial review is given to the judiciary by the constitution, which was enacted by the people of Pakistan through their elected representatives and hence is a ‘democratic power’.[1182]Due to the role of the judiciary in national life, it was said that it had become “a national forum for achieving consensus[1183]”. If the judiciary is to run democracy, what is the role of mainstream legal parties?5.4.4 Opposition: Correcting the Judiciary Before
Democracy
In this situation, it was meaningless for the opposition to speak about democracy without reducing the powers of the judiciary. Here, it is important to understand Benazir Bhutto’s approach to ‘political governance’. Benazir Bhutto needed support and aid from democracies[1184] like the U.S. and U.K. For her, General Musharraf’s decision to stand with America after 9/11[1185] was the right one, and Professor Huntington correctly pointed out the clash of civilizations, as, in her words, “Al-Qaeda will try to provoke the clashes of civilization”.[1186] This was not inevitable[1187] and could be prevented, she argued, but only if the U.S. relied on her, as she claimed the Pakistan People’s Party was the only civilian and political structure with popular support to form government outside the intelligence agencies and the military.[1188]
Benazir Bhutto did not forget that she was speaking in the era of ‘good governance’. Her views came to overlap with the trends in global modernization. The reliance on American concepts was inevitable as even the U.K. was relying heavily on this paradigm.[1189] She stressed the importance of rights and ‘governance’ to undermine terrorism and the need to empower citizens and build a society “on the edifice of the majesty of law”.
Rights were the core value of her ‘governance’. She stated that debt relief should be tied to good governance. For her, rule of law came before democracy, as a country needs the rule of law more than democratic elec- tions.93 The move should be from a civil society to a democratic society, as this was the pattern around the world and the case in Europe and America.[1190] [1191] She quoted George Bush, saying “men and women in every culture need liberty like they need food and water and air”.[1192] She argued that poverty defamed the image of India and Pakistan[1193] and ‘good policy’ was the key solution. For Benazir Bhutto, leadership was the courage to take actions that are necessary in the long run but not popular [my emphasize].[1194] She claimed leaders should not follow opinion surveys for decisions, but like the American President Franklin Delano Roosevelt, to know where the people stand and then educate and lead them.She was not in a hurry for democracy and wanted it to evolve, claiming that for this to happen, there needed to first be an independent and impartial judiciary. Democracy cannot function if a handful of judges follow their own political agenda and distrust political leaders, she argued. Benazir Bhutto summed up the last half a century in Pakistan as a “century of law, politics and a politicized judiciary” and complained that, as a Prime Minister, she was twice denied the right to appoint judges. During the Nawaz Sharif regime (1997-99), “we are crushed under a mountain of litigation”, she said, as that regime believed in incapacitating the leader of the opposition through judicial abuse. Some examples of legal abuse that she gave were that four hours before the judgment, there was a government order that froze her funds. No contempt petition against the regime was heard. Also, judges who worked for the Prime Minister’s family business tried Benazir Bhutto.
One judge’s son was working with the lead parliamentarian of the ruling party. Another judge worked as the Deputy Attorney General when Benazir Bhutto was behind bars for nearly six months, and his father sentenced Benazir Bhutto’s father. Benazir Bhutto fired him but his brother was elected as a parliamentarian from the Prime Minister’s home constituency. He wrote the order to convict Benazir Bhutto before the trial was over. The nephew of a General who hanged her father, Z.A. Bhutto, was appointed unanimously by the Supreme Court to try her husband, Asif Ali Zardari.According to her, women-hating, bigoted judges with gender, political and theocratic biases were lined up against her and her family. The same judge who tried Zardari refused help when a woman was killed in an honour killing. Another judge trying Benazir Bhutto was so biased against women that the Human Rights Commission of Pakistan-HRCP complained against him. He believed that women had no right to work.[1195] While some judges had taken loans from state banks and were under pressure. Benazir Bhutto was so scared of the courts that she refused to return back to Pakistan and fight for democracy, believing that all her time would be wasted in courts.[1196]
For the solution, she asked the international community to step forward and assist in the process of instituting the rule of law in Pakistan. She wrote to the UN Rapporteur on Judges and the Judiciary, the former British Attorney General Sir John Morris and two American Chief Justices, outlining the judicial abuse she was suffering. Morris and the two American judges found her conviction flawed. She complained that if the West condemned judicial political victimization in Burma, then why not in Pakistan?[1197] She suggested that Pakistan needed ‘judicial accountability’, and proposed changing the contempt law to allow free public scrutiny of judgments when delivered. She requested the UN Rapporteur on Judges and Judiciary fund NGOs to investigate wrongful prosecution and trials. “Unless judges and Generals are accountable along with Prime Ministers and Parliamentarians, power can and will be abused”, she explained. Referring to the Pakistani Human Rights groups, she put forward a proposal for a separate constitutional court to deal with constitutional issues. She also suggested changing the law of conflict of interest, since judges who had a conflict of interest with Benazir Bhutto and her party were insisting on sitting on the benches. Furthermore, the parliament was an independent organ of the government and there should be a parliamentary investigation in case of impropriety, she said, adding that opposition leaders should be equally represented in this investigation.[1198]
5.4.5 The Liberal Legal Project
Those who championed the liberal project were disenchanted with the democratic regimes of the 1990s. By the 1999 coup, they came to the conclusion that decentralization was the solution, and part of good governance. That is why the NGO elite[1199] was part of Musharraf’s coup with Omar Ashgar (a Marxist turned social democrat) as a Minister in Musharraf’s new set up. The dilemma for liberals was how to correct the ‘overdeveloped state’,[1200] as well as how to correct democracy because the feudals continued to be in power. Decentralization, as a part of ‘good governance’, seemed a point of compromise between the ‘neoliberal metropolitan bourgeoisie’, and the rising ‘liberal’ petit bourgeoisie (the liberal layer of ‘civil society’). The former wanted to get rid of ‘state capture’, which was a nexus of politicians and civil bureaucracy.[1201] The latter wanted a share in the new developmental paradigm and the inclusion of ‘social’ in good governance.[1202] Practically, they wanted to get rid of the feudals through land reforms to correct democracy, but who could do it?[1203] The only option was to at least get rid of the ‘centralized state’.
Shahrukh Rafi Khan gave a cost-benefit analysis of decentralization and local government to the National Reconstruction Bureau to convince them that the project was viable.[1204] He offered the example of the Banuri’s project[1205] and argued that the governance issue was a ‘power issue’. For him, the district administration and courts served the large landlords. Therefore, even if the land is distributed, there would be police and court abuse, and that the courts would not let land reforms happen. The only solution to him was decentralization of financial and administrative authority.[1206] Women’s rights-based NGOs welcomed the reserved seats for women in his local government plan.[1207]
This argument of good governance through decentralization was made on the basis of the liberal and connected liberal legal project of the Sustainable Development Policy Institute-SDPI collective, this was also built on SDPI’s 1992 work.[1208] This suggested that the formal legal system in Pakistan is workable and the only problem is governance, case management, delay reduction, automation, the court information system, human resources and infrastructure.[1209] The ‘liberal legal project’ also clearly placed its position in line with recommendations of the S.A. Rahman Commission (1958), the Hamood-ur-Rahman Commission (1967-70), the Law Committee (1978), as well as the Commission on Reform of Civil Law (1993).[1210] It opposed the Jirga system (North Western Frontier Province-NWFP) and the Panchyat system (in Punjab) because, according to the writers, both were losing their effectiveness due to extraneous influences.[1211] Tariq Banuri, while suggesting these organizational reforms, pointed out that he avoided the topic of a parallel judicial system (because the judiciary was reacting to it) and hence gave the opinion of overhauling the existing mainstream system, particularly at the lower level. He recommended four ‘Is’, namely; incentives, institutions (internal and external accountability institutions), infrastructure for ‘efficiency’ and infrastructure (judicial courts buildings equipment).[1212]
The liberal project thus weakened the state apparatus without furthering democracy. In this effort, the stake of the metropolitan bourgeoisie was not neglected, but was integrated along with the role of NGOs as ‘civil society’ to steer good governance. These changes reflected a deep frustration with the liberal project, whose proponents were deeply confused as to what was going on.[1213] The cliches that Pakistan is not an agricultural country, as well as, Pakistan is a rural country were defeated.[1214] There was a ‘statistically’ proven middle class, but analysts of ‘liberal’ legal and political project questioned why the liberal institutional arrangements/rearrangements were not working. Why was there no socially responsible modern and democratic middle class?[1215]
While analyzing Musharraf after 1999, after seven pages, Akbar Zaidi ran out of room for further comments. He presented Musharraf’s politics as the politics of opportunism and argued that he was a person who “merely stated the obvious”.[1216] The main anxiety of the liberal project was that ‘Good Governance’ assistance in critical policy areas (administrative and political reforms) led to the disproportional policy influence of foreign donors. Musharraf used this discontent[1217] to strengthen himself, whereas it could have been used to bring much needed changes in the state’s ‘behaviour’ and even ‘identity’ as a member of twenty-first century international society.[1218] The military was not providing sufficient finances for social development.[1219]
For the liberal legal project, the main objective of international donors for improvement of the government was to make the country more ‘market-friendly’. This objective was to be meant through supervision of the civil society though it was absent from practice.[1220] The project was not cost effective as an enormous amount was being spent on consultation and similar activities. Even if they were cost effective, laws are not necessary for improving justice for the poor, rather they are a burden, under the good governance approach. There is no word of participatory democracy in their project. There is no mention of obligations of a just state.[1221] They insisted that the Access to Justice Program should bind the state with the UN Conventions on Social, Economic and Political Rights and ILO Declaration of Principles. This way, the state will become pro-poor. This critique emphasized the inability of Access to Justice Program-AJP in not considering the state as a part of the problem of injustice and how judiciary itself is the part of the state.[1222]
While the liberal legal project was coopted with Musharraf in good governance, is it not an irony that the ‘quasi-liberal’ project (Cornelius tradition) was on the forefront of fighting against the military-judiciary alliance. Lawyers from the exiled Nawaz and Hamid Khan professional groups were against the pretentious ‘liberal project’ under Musharraf. The Provisional Constitutional Order-PCO courts did not decide a single case against the military regime, but rather supported it in cases, such as imposition of emergency, the referendum, appointment of junior judges, graduation bar for contesting elections, etc. All this frustrated the Cornelius tendency to the level that Hamid Khan took back the Junior Judges Elevation case, submitting the statement that “since the judiciary is no more independent, we do not want to proceed with the case”.[1223] This group was responsible for the lawyers’ movement, which was later joined by Pakistan People’s Party and the frustrated the liberal project.
5.5