Nawaz Sharif’s Second Term (1997-1999)

4.5.1 Independence of the Judiciary to Judicial Activism: Confronting Democracy ‘Actively'

In the light of the rising worries of state capture by IFIs, President Laghari and his appointed caretaker Prime Minister, Meraj Khalid, raised the slogan of account­ability before the 1997 elections.

But the decision to focus on corruption came due to pressure from outside. Transparency International once again ranked Pakistan second in 1997 for cor- ruption.^[998] On 22 October, at the end of his 5-day visit, World Bank president James D. Wolfensohn addressed a news conference along with Finance Minister Sartaj Aziz. He asked the Government of Pakistan-GOP to control corruption, and offered help to reform the judicial system. He blamed the weak judicial system for being unable to check corruption.^[999] It is not surprising that the same year, Transparency International declared Pakistan the second most corrupt country in the world; the caretaker Prime Minister admitted his failure in proving corruption.^{[1000] [1001]}

The Election Commission asked the legislatures to submit their asset state- ments.²²3 A list of loan defaulters was published to stop some legislators from participating in elections. The State Bank of Pakistan gave this list to the Election Commission, which made it public.

4.5.2 Old Juridico-Bureaucratic Structure Reacting

to Democracy

In the 1997 election, Nawaz Sharifwon was with a two-third majority. His first act was to get rid of the notorious 8th Amendment without any discussion in the assembly.^[1003] It is interesting that just a few months ago, the judiciary had declared this amendment valid. Similarly, political defection (or horse trading) was a serious problem in assemblies and Nawaz, through the Fourteenth Amendment, prohibited this practice on 3 July 1997. This decision was again made without discussion in the assembly.^[1004] Now, Nawaz Sharif was safe ‘constitutionally’ and ‘politically’, but this was not enough protection.

Soon, Nawaz Sharif was involved in a controversy with the judiciary on the issue of interfering with the bureaucracy. He was questioned for openly handcuffing officers of the Water and Sanitation Agency in Faisalabad, who were later released by the courts, as no charges were registered against them; for establishing separate courts for combating terrorism; and on the issue of the appointment of judges. Nawaz Sharif used an accountability campaign against the bureaucracy and military in an effort to strengthen himself. However, this campaign did not work.

The case of Usman Farooqi, a steel mill chairman prosecuted for the importation of pig iron, was of political importance due to Zardari’s involvement being husband of Benazir Bhutto. Justice Amanullah, appointed to the Singh High Court by Benazir Bhutto, granted him bail.^[1005] The Capital Development Authority chairman, Shafi Sehwani, was also granted interim bail.^[1006] The Prime Minister pleaded for no bail in corruption cases.^[1007] The sacking of Naval Chief Mansur-ul-Haq (taken up in the Mansur-ul-Haq case) under allegations of irregularities and wrongdoings in the Agosta 90-B deal was another important case, a rare happening in the country’s history.^[1008] The Navy denied the charges and declared that French submarines were selected on merit.^[1009] Air Chief Marshal Khattak had to refuse kickbacks in a $2.66 billion Mirage deal to quell rumours.^[1010] After this, Chief of Army Staff Jehangir Karamat ordered a stop to the media trial of army officials.^[1011]

This was the environment in which Nawaz presented the Ehtesab Bill (which made measures to restore accountability) in the assembly.

A full bench, headed by Chief Justice of the Lahore High Court Sheikh Riaz Ahmad, heard the case against the Ehtesab Act, 1997. The Lahore High Court dismissed the petition on the ground that article 248(2) of the constitution exempted the president and the governors to be held under criminal litigation while in office.^[1018] The validity of Ehtesab Ordinance was upheld on 17 Feb 1997.^[1019] Meanwhile, Prime Minister Nawaz Sharif publicly arrested and handcuffed three officials of the Faisalabad Development Authority.^[1020] The government issued a list of 554 corrupt officials that had been compiled by the Prime Minister secretariat.^[1021] Seven grade 22 officers were among the 87 were suspended.^[1022] The judiciary launched a campaign against the arrests of these bureaucrats. The arrests themselves were considered political victimization, the judiciary argued that the arrested bureaucrats were either close to the opposition, Pakistan People’s Party, or were not obeying the political orders of Nawaz Sharif.^[1023]

4.5.3 Resisting a Parallel Judicial System of Special Anti-Terrorist Courts

The fervour for an independent judiciary was so high that newspapers published that the judiciary was the ‘Courthouse of the Government’, and it was needless to burden it with a prefix of independent.^[1024] I have already discussed that the second front of the struggle against the judiciary was the establishment of new anti-terrorist courts.^[1025] On 13 August 1997, the Anti-Terrorism Bill was passed.

The judiciary attempted to stop the parallel judicial system again when Nawaz called the military to assist the civil power against unrest in Sindh. On 20 October 1998, the federal government promulgated an ordinance titled the Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance 1998. Under this, military courts that did not grant bails were set up in Sindh for speedy trials. The Supreme Court declared the military courts unconstitutional in an appeal on 17 February 1999. The Supreme Court declared that the cases be heard by special courts (which had already been tuned to the existing judicial system) and guidelines were laid down for the trial of the cases. Later, in 1998, the Courts/Tribunals run by the executive without the control of the High Courts were found under Article 203 to be in violation of the requirements of the constitution.^[1027]

4.5.4 Tools Beyond Judicial Means: From Suo Moto to Social Investigation and the Organ for ‘National Integration'

The growth of judicial power was apparent beyond its opposition to parallel courts. The Judiciary began taking suo moto²⁵° notices on the killings of people in Karachi on the premise that the federal, as well as provincial governments, had failed to control the situation.^{[1028] [1029] Chief Justice Sajjad took similar stepson the issue of religious sectarian killing in Lahore, in a hearing in his chamber on 1 July 1997.}

4.5.5 Appointment of Judges: The Judiciary's Exclusive Right

Chief Justice Sajjad recommended five judges for appointment in the Supreme Court. Under the judgment in the Judges’ case, the Prime Minister was to accept this recommendation or give reasons for not accepting in writing. One of the judges in the list had decided a few cases against the Prime Minister’s Ittefaq Group of Industries while he was in opposition. Another judge had been a Federal Secretary within Benazir Bhutto’s government. Instead of approving the appointments, the Prime Minister issued a notification to reduce the number of judges in the Supreme Court from 17 to 12, as it was in 1986. Supreme Court Chief Justice Sajjad told the president that the strength of the Supreme Court could only be reduced if its jurisdiction is reduced.^[1032] The workload of the High Courts had increased many folds due to new laws such as the Ehtesab Act, Drugs Act, and the Control of Narcotics Substances Act. Furthermore, the judiciary was not letting any cases under the purview of these laws go through other judicial channels. The Chief Justice suspended the notification and the Prime Minister had to follow suit. The validity of this order, dated 21 August 1997, was challenged in the court but withdrawn by the government on 16 September 1997.

Yet, the Supreme Court Chief Justice himself did not follow the Judges' case ruling. He did not appoint the senior most judges from the Sindh High Court, Lahore High Court and Peshawar High Court, and vacancies were not filled within 30 days, but according to the schedule of the Chief Justice.

4.5.6 Challenging the Supremacy of the Legislature

Under the leadership of Supreme Court Chief Justice Sajjad, the judiciary seemed determined to play an important role as, he noted, “Pakistan was passing through a very critical stage”^[1034] and therefore it was necessary to find the legislature as not legislating.^[1035] Speeches made by the Prime Minister and Chief Justice at the South Asian Association for Regional Cooperation in Law (SAARCLAW) conference in Karachi from 3 to 5 October 1997 were clearly indicative of this struggle for supremacy between the judiciary and the legislature.

A three-member bench headed by Chief Justice Sajjad suspended the operation of the Fourteenth Amendment against political defection.^[1036] The Prime Minister called it ‘illegal’ and ‘unconstitutional’ and a violation of the supremacy of the parliament. Based on these speeches, contempt of court proceedings was initiated by the court against the Prime Minister. The Prime Minister appeared twice before a bench of five judges headed by Chief Justice Sajjad, but Sajjad did not drop the contempt proceedings. To counter this, the Parliament passed a Contempt of Court Bill (an amendment) wherein contempt could be appealed before another bench of the remaining Supreme Court judges, and the execution of the punishment could not happen for a 30-day period pending the appeal. President Laghari did not sign this bill as Chief Justice Sajjad restrained him to do so as the President asked the court whether he should sign it or not, though this was not required!

The Supreme Court, led by Chief Justice Sajjad, then took up the Inter-Services Intelligence (ISI) case for hearing. The ISI was alleged to have spent money to bring Prime Minister Nawaz Sharif to government in the 1990s. This was a clear indication of the intent to disqualify the Prime Minister, but also the beginning of a fight within the judiciary that had not yet learned how to work consistently. A two-judge bench of the Supreme Court in Quetta entertained a petition against the appointment of the Chief Justice. The bench referred this case to the Chief Justice to form a large bench. On 27 November, a five-member bench of the Supreme Court, headed by the Chief Justice himself, suspended the order of the Quetta bench by 4­1. Members of parliament heckled the Chief Justice in the courtroom. This was a day before the commencement of contempt proceedings against the Prime Minister.

A bench headed by the Chief Justice began hearing the contempt case on 28 November 1997. In order to prevent this hearing, members of the ruling party, ministers, parliamentarians and members of provincial assemblies stormed the Supreme Court building. The Chief Justice wrote a letter to the president requesting the army to protect him, also requesting that references against the Supreme Court justices of the Quetta and Peshawar registries be sent to the Supreme Judicial Council. The next day, two separate cause lists were circulated for 1 December, one by Supreme Court Chief Justice Sajjad of five judges and the second by a Chief Justice Saeeduzzaman Siddiqui of 10 judges. Each Chief Justice annulled the administrative orders of the other.

A group of retired judges was also active, led by Ret. Supreme Court Chief Justice Nasim Hasan, who restored Nawaz’s government in 1993. They viewed the judicial activism of Supreme Chief Justice Sajjad as extending from fundamental rights violation to entering the domain of politics. Hasan warned the courts that they had curtailed executive powers but that Nawaz was elected with powerful support and that he may put his weight behind the appointment of judges.^[1037] He argued that this could result in bizarre consequences and the scope of the judiciary should be confined to wrongs done to the citizens.^[1038] Supreme Court Justice Rafiq Tarar^[1039] was involved as well, calling Supreme Court Chief Justice Sajjad a ‘judicial ter­rorist’, and influenced a number of judges against Justice Sajjad.^[1040] He was rewarded with the Presidency of Pakistan for his role.

The climax of this crisis of state came when Jehangir Karamat, Chief of Army Staff, called a conference of Corps Commanders, as the President and Prime Minister requested him to act as an arbitrator. General Musharraf (as he then was) insisted that the elected government should stay in power. The Corps commanders decided to send a message to Sajjad ‘to behave himself'.^[1041] President Laghari resigned and on 23 December 1997, a 10-member bench announced the appoint­ment of Supreme Court Chief Justice Sajjad as void, as his appointment violated the principle of seniority. Hamid Khan opined that both the judges and the legislators were wrong. This was a drama with no hero.^[1042] This may be true, but what the analysis in this book is trying to show is a linear rise of the judiciary since 1990. The judiciary did not become weak after the removal of Supreme Court Chief Justice Sajjad, and, relatedly, the supremacy of the legislature was not established. Below is the explanation for this.

4.5.7 1998: Supremacy of the Parliament?

Nawaz got rid of Article 58(2)(b) of the constitution through the 13th Amendment. Now, the president could not dissolve the elected assembly and Nawaz called it this amendment as the supremacy of the parliament.^[1043] Was this true on the face of a strong judiciary? Before 1990, the dominant view was that the judiciary could not legislate or question the wisdom of the legislature,^[1044] though in reality the legis­lature also could not amend the constitution under Article 70 by adopting procedure laid down in Articles 238 and 239, that is, the law should not be inconsistent with fundamental rights, or be repugnant to the injunctions of Islam. The doctrine of basic structure denied the right of the people to amend the constitution through their elected parliament.^[1045] The slogan to defend the parliament came up in the Nawaz and Sajjad controversy. Some members of the Pakistan Muslim League (PML) thought that parliament was not protected enough against other organs of the state in the constitutional set-up.^[1046] Addressing the South Asian Association for Regional Cooperation in Law (SAARCLAW) Conference, Prime Minister Nawaz stated that the “the line of demarcation between interpretation and transformation should not be overlooked” by the judiciary when interpreting the constitution.^[1047] The argument against this was that the magnitude of damage to the judiciary was greater at the hand of politicians than at the hand of military dictators,^[1048] and hence, the judiciary was to keep a tight reign over the executive and should not give any leniency or indulge to its functionaries.^[1049] The powers of the judiciary were not supra-legislative powers, but were corrective in nature.^[1050]

Thejudiciary under Sajjad exhibited features of state institutions like the military in Pakistan, such as little accountability, strong ambitions, no internal democracy and an elite class orientation. But why was it superior to the other institutions? The impression that “the judges generally led secluded lives”^[1051] was no longer valid. Supreme Court Chief Justice Sajjad met with Prime Ministers Benazir Bhutto and later Nawaz Sharif, as well as president and Chief Of Army Staff General Jehangir Karamat several times.^[1052] These meetings were about future legislation.^[1053]

This was not driven, and it must be stated, by Sajjad’s personal ambitions, but by the power that the judiciary had acquired during the era of the globalization period, when the state was going through a transitionary phase. The judiciary became strong enough to challenge the private interests of the military.^[1054] The judiciary had moved from a position of non-interference in election matters, to monitoring the elections, to checking the educational degrees of the members of the assembly.^[1055] Before 1994, the Supreme Court had a very consistent view, not to engage in election matters, as there was a special mechanism for this in the constitution as established in the Javed Hashmi case in 1989.^[1056]8 However, the Supreme Court in the Mustafa Jatoi case reversed this view in 1994.^[1057] Similarly, in the Muhammad Muqeem case,^[1058] the Supreme Court decided to disqualify a loan defaulter from a political post to eradicate corruption from the political culture. The dissenting judge was of the opinion that the loan should be recovered through banking procedures for it had nothing to do with elections.

Around that period a known jurist, Syed Muhammad Kalim Ahmad Khurshid, responded to the judgment in the Abdul Rahim case. In that judgment, the court explicitly declared that courts in Pakistan undisputedly have the powers to strike down law. It is also clearly stated that rigorously prescribed parliamentary sover­eignty has a very limited scope. Rather, in Pakistan, the constitution is supreme and it is judiciary that is supreme in Pakistan as opposed to Parliament.^{[1059] [1060] [1061] [1062] According to Kalim, the understanding of the judiciary so far had been that the provisions of the Constitution could not be struck down. He gave the examples of the Zia-ur-Rehman case, Fauji Foundation case, United Sugar Mills case and finally Mehr}

Zulfiqar Ali Babu case.^[1063] The doctrine of basic structure, for Kalim, denies the right to the sovereign people. It stopped their elected representatives from imple­menting policies demanded by them. Furthermore, if there are no limits on the parliament, the court should not invent them. The parliament is the guardian of the rights and liberties of the people. He went to the extent to say that “Any threat to the Parliament to refrain from Legislation may fall within the ambit of Article 6 of the Constitution of Islamic Republic of Pakistan, 1973”, which is treason. Ajmal Mian’s position refused to dilate upon the sensitive political question using the tradition of judicial restraint. It was his belief that a judge should speak through his judgments.^[1064] This retreat of the judiciary after Sajjad was temporary. Ajmal gave a clear message that the right of courts to interpret a provision of the statute is a ‘very potent legal weapon’, as he used it in Judges’ case as well as in Shahid Nabi case.^[1065] Added to this were rise of PIL in the mid-1990s and above all the new role of the judiciary in ‘Good Governance’ began at the end of the decade. To complete the analysis, it is necessary to understand the nature of PIL at that time.

4.6