Judiciary in Transitional Governance (1988-1990)
4.2.1 Class Formation: Which is the Hegemonic Class?
Mushahid and Akmal point out that the U.S. worked hard in the 1988 transition away from pro-American dictatorship towards pro-American democracies such as the Philippines, South Korea and Panama.
Arnold Raphael met Zia on 29 May 1988, just an hour before dismissing Prime Minister Juneju (and died with him in an airplane accident). Ghulam Ishaq Khan met Robert Oakley[810] for five hours before dismissing Benazir Bhutto.[811] Zulfikar Ali Bhutto found the U.S. to be a destabilizing factor for his regime. Benazir Bhutto found the U.S. to be important to stay in government, but feared that the Western intelligence elite was comfortable with the Generals and not her, and looked at her as the daughter of a socialist firebrand,[812] despite little reason for this suspicion.Benazir Bhutto sent a team of experts to London to study how the Prime Minister’s office at 10 Downing Street worked.[813] She admired Thatcher[814] and in her 1988 party manifesto, promoted the idea of privatization. She wished to break the dominance of public sector units by giving impetus to the private sector.[815] She did not find this motivation inconsistent with her father Bhutto,[816] and some writers even claimed the lack of ideology in her politics.[817] It should not be surprising for us, therefore, that in spite of impressive growth, Pakistan opted for a Structural Adjustment Program, though it did not economically need the program, and other liberalization measures.[818]
To sum up, the post-1988 era was a ‘Period of the Return to Democracy’ and an ‘Era of Structural Adjustment’[819] as well as one of ‘Competitive Democracy’.[820] Let us now examine struggle in state formation.
4.2.2 The Cornelius Tradition in the Judicial Office
The ‘political governance structure’ left by General Zia for Benazir Bhutto, who was appointed as Prime Minister in 1988, might be summed up by the phrase “Ali Baba may be gone, but the forty thieves remain”.[821] Section 58(2)(b) of the Constitution was a powerful tool through which the president could dissolve the National Assembly. The structures, institutions and dominance of the military in the country remained intact. Above all, the judiciary was accustomed to Zia’s set-up and had been long connected with the Cornelius tradition[822] of judicial thinking through jurists like Supreme Court Justice Nasim Hasan Shah and Afzal Zullah.[823] Meanwhile, its counterpoint, that is the legislature, was tied up in the web of patronage and riven with political defection.
Zia dissolved Juneju’s assembly on 29 May 1988.[824] He died on 17 August. Nobody challenged this dissolution. Only after his death was the dissolution of assembly challenged in Lahore High Court.[825] The court did not find reasons that could be used to dissolve any assembly. Is the power to dissolve assemblies ‘discretion’ or the ‘opinion’ of the president? Does it need ‘subjective’ or ‘objective’ satisfaction of the president? The court decided that this power was not the ‘whim’ or ‘will’ of the president and “absolute, unchallengeable, and unlimited power is not available to an individual however high place he may occupy”.[826] But no relief was granted, as dissolution meant the death of assembly. The counsel was asked to cite an example of the assembly ever having been restored, and they could not provide any such example. In hearing an appeal, the Supreme Court decided the matter in the Haji Saifullah Khan case.[827] The court did not allow the use of Section 58(2)(b) for dissolution of assemblies as an absolute discretion without reasonable grounds, and hence made it subject to judicial review.
These ‘bold reversals’ from ‘usurper’s position’ in both the Asma Jilani case and Juneju’s assembly dissolution case only came about when the persons concerned were not in power. Post-Zia courts checked the validity of the dissolution order of each ground on merit, but this ‘merit’ was open to interpretation.[828] For Charles H. Kennedy, the post-Zia courts’ activism resulted in an ambiguous system of “mixed presidential-prime ministerial authority”.[829] My argument is that this state formation represents a continuity of a juridico-bureaucratic structure in the Cornelius tradition under Nasim that wanted a strong president, but with a judicial check on it. This does not mean a strong legislature vis-a-vis the president. As far as the traces of prime ministerial component are concerned, that was the struggle of the legislature against a rising judiciary.During her first regime, Benazir Bhutto was hostile towards Supreme Court Justice Nasim, as he was the only remaining judge who had convicted her father. Benazir Bhutto thought Nasim a ‘murderer’ of her father, for she thought of her father’s conviction as ‘judicial murder’.[830] She removed him from the chairmanship of the Pakistan Cricket Control Board, and Justice Nasim responded with judicial indifference. He thought that he gave the judgment on merit and, moreover, Bhutto’s lawyer did not respond.[831] Bhutto also refused to sit at the same table as Justice Nasim (he was second most senior judge of the Supreme Court at that time) during the groundbreaking ceremony of the Supreme Court building, which was held on 25 October 1989.[832] Benazir Bhutto’s conflict with her father’s detractors was clearly visible and extended well beyond a particular individual.
Benazir Bhutto granted clemency and commuted all death sentences of persons sentenced by both military and civilian courts to life imprisonment, on 18 December 1988 under Article 45 of the constitution.
This was to benefit the Pakistan People’s Party workers, who were brutally suppressed during Zia’s regime. The Lahore High Court found these Prime Ministerial orders repugnant to the Article 2-A of the constitution. The court went to the extent of stating that only heirs of the deceased can commute, remit or pardon sentences in matters of Hudood, Qisas and Diyat, and the president had no powers in this regard.[833] This protective attitude of the judiciary towards Zia’s legacy was displayed very openly in the decision of the dissolution of Benazir Bhutto’s Assembly. Zia’s legacy, which is considered in terms of political continuity, I have shown its intellectual formation in Cornelius collective in 1980s.4.2.3 The Dissolution of the Benazir Bhutto Assembly Case
On 6 August 1990, President Ishaq used Article 58(2)(b) of the constitution to dissolve the national assembly (as well as provincial assemblies) under the charges of corrupt practices, political defection (horse trading), encroachment on provincial powers, nepotism, deteriorating law and order, ridiculing the judiciary, and undermining civil services.[834] A full bench of the Lahore High Court upheld the order of dissolution of assembly,[835] criticizing the assembly for not completing legislative work. During 20 months, 50 ordinances or bills were presented before the assembly; only fifteen were passed and 35 did not proceed and were allowed to lapse. The dissolution of the Sindh Provincial Assembly was also challenged, as was the judgment of the Sindh High Court.[836] The Supreme Court upheld the judgment of the Lahore High Court by a majority.[837] The first important aspect of this judgment is the observations of Justice Shafi-ur-Rehman against political defection. The second is the dissenting views of Justice Abdul Shakoor Salam, who did not agree with the grounds of dissolution, and Justice Sajjad Ali Shah, who found the order of dissolution of the assembly mala fide, but did not find relief in restoration as the election had already been held and a new government was in place (as had happened in Haji Saifullah case).
When the dissolution of the provincial assembly of the North Western Frontier Province (NWFP) was challenged in the Peshawar High Court, a surprising verdict came. A full bench of the Peshawar High Court accepted the petition and declared the impugned order ultra vires of the constitution, without lawful authority, and therefore of no legal effect. The court also restored the assembly and cabinet.[838] The problem with Chief Minister Sherpao's case in the decision of Peshawar High Court was that it was based on technicalities, though his position might be called principled. The point here was that there were structures to correctly dictate the rules of the game. Within a few minutes, the judgment was presented before a single bench of the Supreme Court in Peshawar, which suspended the operation of the judgment. A full bench of the Supreme Court later upheld this.[839] One of the concerns of the Supreme Court was the political defection, which affected the representative character of the assembly. The Supreme Court judges who did not uphold the decision of Peshawar High Court were Ajmal Mian and Nasim Hasan Shah.[840] Belonging to the Cornelius tradition, Nasim along with Ajmal tried to be viewed as defenders of ‘democracy’ to a fraction of the ruling class in the years to come.
What happened to those Peshawar High Court judges who restored the assembly? The President responded by not promoting Chief Justice of the Peshawar High Court Sardar Fakhre Alam, nor Supreme Court Justice Inayat Elahi Khan. In addition, Nazir Ahmad Bhatti was sent to the Federal Shariat Court as a punishment, and Justice Qazi Muhammad was blocked from becoming a permanent judge. The dissenting judge was, meanwhile, made a permanent judge.[841] Even a cursory analysis of these judgments can show us how the judiciary fully supported the constitutional and political arrangement of the juridico-bureaucratic structure of Zia’s legacy.
But declaring these decisions as explicitly political does not add much to our analysis. Let us evaluate some of the allegations or excuses for the dissolution of the assemblies from a class perspective.4.2.4 Did the Legislature Not Legislate or Were There Legislative Hurdles?
One of the allegations against the legislature was that it did not legislate. However, the fact of the matter was that the legislature could not legislate, as the Pakistan People’s Party government did not have representation in the senate. The senate was elected under Zia in 1985, a time when the Pakistan People’s Party did not participate in elections. As a result, only 15 ordinances and bills out of 50 could be presented in parliament. The National Finance Commission could not operate as the opposition by the Pakistan Muslim League-N was strong in the largest province of Punjab and was denying access to the central government. The court could not understand the basic inadequacies within the constitutional structure, as the wholesale amendments by Zia (in the early- to mid-1980s) had converted a parliamentary system into a presidential system. Furthermore, these were also the inadequacies of the division of political power during a time of transition regarding the governance of the country.
4.2.5 Political Defection: A Weak Democracy
in a ‘Strong State'
The next allegation was that Benazir Bhutto had bought members of the legislative opposition. A vote of no confidence was moved against Benazir Bhutto on 1 Nov
1989, which was defeated and political chaos erupted. Benazir’s government bribed and bought the opposition members; those who defected were rewarded with ministries and loans from the nationalized banks. In the Humayun Saifullah Khan case,[842] the question of political defection came before the Supreme Court. The judiciary was not only reluctant to address this issue, but thought it to be a domain of the legislature.[843] Though the dissenting judge, Ajmal Mian, declared later that floor crossing thrived, flourished and polluted the political culture of Pakistan, the Supreme Court did not decide this issue in 1990.[844] Wilder made it clear that the Pakistan People’s Party was greatly weakened by the practice of patronage started by Zia and could be manipulated by the bureaucracy.[845]
While the rigging of elections is generally mentioned as a problem, patronage is not, because it is an indispensable part of South Asian democracy.[846] For example, Benazir Bhutto and Nawaz Sharif gave land worth an approximate of Rs. 166 million to their friends.[847] In order to check that discretion, in August 1993 Moeen Qureshi promulgated an Ordinance and brought that distribution under a committee, though Benazir Bhutto did not let this Ordinance become a law.[848] In 1993 and 1994, 100 members of the Punjab Assembly and two members of the North Western Frontier Province (NWFP) defected. Presidential ordinances of
1990, 1991, and 1993 were put forward to stop floor crossing but could not pass, as they were not placed before the parliament. ‘Parliamentarianism’ for Benazir Bhutto was merely a headcount in the assembly.[849] The decision in the case challenging the dissolution of Benazir Bhutto’s assembly, however, merely judged it as a deviation from an ‘ideal type’ of democracy.
4.2.6 Appointment of Judges (1988-1990)
Questions around the appointments of judges had come before the judiciary in the Haji Saifullah Khan case.[850] Zia had dissolved Prime Minister Junejo’s government but did not appoint a caretaker Prime Minister. With Zia’s death, Pakistan was ‘deprived’ of a president, prime minister and provincial assemblies.[851] This state of vacuum continued until Benazir Bhutto took office in 1988. The question in the Haji Saifullah Khan case was in regards to the legal status of all the governmental actions that took place during that period.
The Supreme Court declared the office of Prime Minister necessary, and its absence led to the altering of the character of the constitution to become a presidential system rather than a democracy.[852] What about the appointments of 30 judges of superior courts during this period? On March 1989, the ruling Pakistan People’s Party issued a notice suspending appointments of judges during the period of the caretaker government. The courts reacted to this and instructed the government to retract its notice.[853] The government insisted on removing three judges.[854] These judges could not work for a week until the matter was resolved in a review petition, heard by a bench of four judges, whereas 11 judges heard the actual petition. In this review, the judges were reinstated.[855] For Newberg, the quick conclusion was that the Pakistan People’s Party had reacquired its reputation for meddling with the justice system.[856]
Articles 177 and 193, read with Article 48, made it clear that the president, on the advice of the Prime Minister, should make the appointment of judges, and hence the president had no discretionary powers. In the MD Tahir case, the Lahore High Court had given the verdict that consultancy with the Prime Minister in these appointments was not mentioned in Article 193.[857] The Federal Government challenged that decision and a full bench of 11 judges of the Supreme Court heard the case. The judiciary was divided with 7 to 4 in favour of the Prime Minister. There was a great deal of pressure on the judiciary to side with the president.[858] Due to this uncertainty, Benazir Bhutto, during her first term in the office of Prime Minister, could not make any appointments in the judiciary.
The tug of war between the Prime Minister and the president can explain the importance of the appointment of judges’ issue. Thejudiciary was divided on the president reference in 1989. Lawyers who were present during the proceedings were shocked by the remarks judges made in regards to each other. The judiciary could not decide the matter as the president and the Prime Minister entered into a compromise around the issue.[859] In MD Tahir’s appeal in the Supreme Court, Sharifuddin Pirzada represented the president and Yahya Bakhtiar represented the federal government as Attorney General. A compromise was struck between the Prime Minister and the President, and it was decided that the appointments would be made by the ‘mutual consent’ of both.[860] Till this time, the judges were unclear about their role in the appointment of judges but only on the concept of separation of power. Only after 1989 did the judiciary began to claim the appointment of judges as their sole right. The point I tried to establish is that, until 1989, the judiciary was not the sole claimant of the appointment of the judges, as it became in 1995 in the Judges case.
4.2.7 Not the Unconstitutional Act but Constitution Itself was a Problem
The judiciary protected Zia’s constitutional set-up in the Haji Ahmad case and Abdul Mujeeb Pirzada case. The Pakistan People’s Party was left with no option except to challenge the 8th Amendment to change the character of the constitu- tion.[861] The topics discussed in the Haji Ahmad case are representative of the nature of this short-lived transitional democratic government of Benazir Bhutto. After the 8th Amendment had been implemented in 1985, many acts were done under the constitution, including the elections of 1988, so it was difficult to declare this amendment unconstitutional. An interesting aspect in this case is the courts’ attempts to avoid the controversy as a sensitive political question and not the subject of adjudication. The court stated that regardless of whether the 8th Amendment was passed according to the constitution or not can be adjudicated by the court, but the division of power between the President and Prime Minister should not be adjudicated by the court but resolved by the parliament. The lesson that Supreme Court Chief Justice Ajmal Mian tried to teach was that “the courts cannot replace the constitution making place of sovereign elected bodies”.[862] The judiciary could not keep this in mind in the coming years. The main case in this regard was the Abdul Mujeeb Pirzada case.[863] It is pertinent to note again that until this point (1989), the judiciary was not claiming superiority over the legislature, as it started to do in the late 1990s. Whereas on the one hand, the judiciary was trying to protect the juridico-bureaucratic set-up of the Cornelius tradition, at the same time it was slowly strengthening itself through Public Interest Litigation (PIL). I will discuss this later in this chapter.
4.3