The First Regime of Nawaz Sharif (1990-93): Separating the Powers in a Weakening State

In 1990, Nawaz Sharif defeated Benazir Bhutto and emerged with a two-third majority in the assembly with the help of the juridico-bureaucratic structure, par­ticularly a coalition formed and funded by the Inter-Services Intelligence (ISI) and led by President Ghulam Ishaq Khan.^[864] Whereas Nawaz’s appeal was a promise of economic reform and to make Pakistan an Asian tiger, which were popular slogans of 1990-91, his economic plan was deregulation, privatization and deep market economic reforms.

Benazir Bhutto could not have brought any change in the judicial structure in her last tenure, due to the reasons mentioned above, and could only show her resent­ment. As a product of the Zia period, Nawaz easily won support of the juridical establishment. His support came from the senior most Supreme Court Justice Nasim Hasan Shah, who later became the Chief Justice of the Supreme Court during Nawaz’s first tenure, Supreme Court Justice Rafiq Tarar and Supreme Court JusticeAjmal Mian, who continued to show their support in the years to come. This group represented a ‘quasi-liberal’, legal, petty bourgeoisie project in the Cornelius tradition. What was new was the formation of a ‘liberal’ legal project, which I am going to explain below.

4.3.1 Contours of the ‘Liberal Legal Project' in Pakistan

Based on the declining role of the state under neo-liberalism, the ‘intellectuals’ redefined the role of the state and law in Pakistan using a tendency I call a ‘liberal project with legal interventions that I term as a ‘liberal legal project’. The intel­lectuals included a wide range of the liberal left who were disenchanted with the socialist experience as well as the Pakistan People's Party, but continued to fight democratic struggles through emerging NGOs. Their mandate was to cut the excesses of neo-liberalism, as well as to restructure the state, society and democ­racy. Their critique did not fit perfectly within the poststructuralist stance (a response opposing the thrust of formal legal institutions). They could not present ‘local' or tradition as an alternative because that was represented by a quasi-liberal tradition of Cornelius in terms of some grafting of Islam on a liberal Constitution. Under these circumstances the liberal project and its associated liberal legal project could not develop a full critique of neo-liberalism. This resulted in vulnerability of this project to be dominantly co-opted by neo-liberalism in the form ‘social' of good governance in 2000s.^[868]

The pioneering collective for this new mandate was the Sustainable Development Policy Institute, which was under the leadership of Tariq Banuri.^[869] In the early 1990s, this tendency had a full plan, based on Alexis de Tocqueville 150 years earlier, that the transfer of power to elective officials must take place simultaneously with the transfer of power to judicial officials.

This liberal project practically supported judicial activism through Dr. Faqir Hussain (a main proponent of Public Interest Litigation (PIL), who helped the Supreme Court in its PIL intervention), who declared it a revolution with origins in the American and British legal systems.^[874] Dr. Pervaz Hassan was on the board of Governors of the Sustainable Development Policy Institute and he brought forward the Shehla Zia case. Pervaz Hassan placed Dr. Banuri on different judicial commissions.

The quasi-liberal project under the Cornelius tradition already dominated the state, particularly in the judiciary as already pointed out. Common to the ‘quasi-liberal’ and ‘liberal’ projects (under the two-party system of Nawaz Sharif’s Muslim League and Benazir Bhutto’s Peoples Party, respectively) was the cen­trality of law. Both were also adherent to neo-liberal project conditionalities.^[875] This made the judiciary an arena of struggle for contending fractions of the same class formations.

There is no doubt that the role of the judiciary was changing. Mushahid Hussain and Akmal Hussain identified that the judiciary had to adjust to new realities. Before this, the judiciary as a political institution was conservative, upheld the status quo and reflected a conservative mood. It now needed to play a role above and beyond the call of duty. Mushahid Hussain and Akmal Hussain called on the judiciary to protect democracy, in light of the failure of politicians and politics to do so, and to keep itself clean from ‘plot and pajero culture’. Up until that time, writers found the judiciary clean, compared to other institutions.^[876] There was also pressure to fashion changes in law so that economic conditions of the people could change.^[877] “The performance of the judiciary”^[878] slowly became a new indicator, or hope for the development of a country, not the Human Development Index (HDI).

The point to remember is that both the above projects were allied with the rising petit bourgeoisie in bar politics and within the judiciary. They were also connected with the exclusion of the working class. Following is the elaboration on these two points.

4.3.2 Separation of Power and Independence

of the Judiciary: A Gap in Parliamentary Democracy

For A.G. Chaudhry, the executive did not wish for a separation of powers.^[879] This was the inherent defect of the parliamentary form of government in the British tradition.^[880] The presence of service tribunals, special courts, military courts, as well as administrative courts in Pakistan, in fact, made it clear that judicial power was not confined to the judicial organ of the state itself, and could be conferred by the executive as well as the legislature.

As the judiciary in the 1990s was clearer that its future was with the U.S. in a unipolar world, Justice Ajmal Mian insisted that the constitution be based on the trichotomy of power, as was the case with the U.S. constitution.^[882] He was the main architect of the separation of power position in 1990 when he was Chief Justice of the Sindh High Court, and accordingly, he wrote the judgment in Sharif Faridi case.^[883] Ajmal Mian argued the separation of power as a ‘modern’ concept; in ancient times all the three powers were vested in one person, the Monarch or chief of the tribe.^[884] He extended this view further that the separation of power not only ensures freedom from interference from the executive but from “all other pressures, considerations, and prejudices”.^[885]

Article 175(3) in the 1973 constitution, which pertains to the separation of power, was invoked in the case as self-executing, and one that did not need leg­islative regulation for the judiciary to uphold it.^[886] Then Supreme Court Chief Justice Haleem commented that Ajmal was intending to take over the government. Chief Justice Ajmal replied that he intended to do so with the kind support of the Supreme Court Chief Justice, which was a milestone towards the independence of judiciary.^[887] In appeal, Nasim, who was then Justice of the Supreme Court, played an important role in finalizing the matter and was appointed as chairman of the committee, by the Supreme Court Chief Justice, to figure out how to implement the judgment. Benazir Bhutto did not implement the decision. In 1996, some steps were taken through an Ordinance,^[888] but it took another year for it to become an Act of Parliament.^[889]

On the other hand, Khoosa^[890] is of the opinion that separation of power is an ideal and has never been achieved anywhere in the world, rather, such rigorous segregation is sometime inconsistent.

The judiciary was becoming self-conscious of its place in the new state for­mation in local and global class formation. The concept of separation of power was linked to the issue of the judiciary’s independence, a point that linked to the appointment of judges^[892] in the years to come. Behind the linear evolvement of these legal formations was ‘legalism’ of a quasi-liberal and liberal project alike as a class formation. Out of this quasi-liberal project emerged the rising judiciary under Public Interest Litigation (PIL) in the early 1990s.

4.3.3 Bar's Politics: Constitutional Politics and Rising Petit Bourgeoisie

An analysis of the rise of the judiciary in the 1990s is incomplete without explaining the increasing role of the bar. This was important because it was the ground for ‘legalism’, which was linked to the rising middle class. The rise of the middle class in the 1980s, as explained above and in the last section of chapter three, was also accompanied with an apparent depoliticized version of politics. Politics were based on local (instead of national) issues and loyalties based on biradari (kinship, caste, clan). Bar associations were no exceptions. The ‘political group’ in the bar (hailing from Lahore and Punjab) was such an example—the lawyers in this group joined hands based on biradari to get support from the ruling party, led by Zia in that case. For example, the Arian caste group was led by Mian Asrar and A. Karim Malik (brother of Justice Khalil Ramday). Similarly, the Jutt caste group was led by people like AshrafWahla and Dr. Khalid Ranjha. They were themselves affiliated with the Muslim League and the conservative Jamaat-e-Islami.^[893]

In this context, A.S. Salam and others formed a group called the ‘professional group’ during Z.A. Bhutto’s regime. The group opposed right wing politics and promoted liberalism, democracy and progressiveness. The Pakistan People’s Party supported it via members like Fakhrunnissa Khokar and Latif Khoosa. Wasi Zafar and Hamid Khan were young lawyers in that group. Later in the Zia period, this group distinguished itself from former groupings, and came forward as a repre­sentative of a new middle class politics. It proclaimed itself as ‘professional’ and against ‘political influence’ on the bar, but it was actually against ‘big’ politics.

In the era of the ‘end of ideology’, this group became a hub for patronage seeking, with vacillating groups of biradaris in the bar. Its success was based on gaining positions in judiciary, as well as attorney general offices and legal advi­sories in the state institutions and even law ministries for the upper class lawyers, as there grew an increasing demand for technocrats in neo-liberal formations. The politics of this bar was part of the new state formation. The best is to explore this argument through the trajectory and influence of lawyer Hamid Khan.

Hamid Khan became a representative of the rising petit bourgeoisie during the Zia regime. He developed under the Cornelius tradition, and wanted more lawyers in the legislature, noting the legislatures’ lack of competency. He remarked that five out of the first eight Prime Ministers were lawyers. Yet, he was worried that lawyers were now coming from the middle classes and could not compete in elections.^[894]

Nepotism was a chief concern. Hamid Khan spoke out very strongly against the hegemony of the judiciary in terms of appointments. According to him, Chief Justices, like the executive and legislature, were involved in appointing their rel­atives, and other favourites, to judicial offices of the Attorney General or Assistant Advocate Generals. During the Zia period (1979-1985), judges put their relatives first in judicial offices and then in the superior judiciary. During the Juneju regime (1985-88), for the first time, unknown and even unseen lawyers were appointed. The practice of appointing acting Chief Justices and others continued. Furthermore, the loyalties of the judiciary were bought through gifts of plots of land.^[895]

Hamid was equally critical of the legislature and executive.^[896] He found that the legislature incompetent, bureaucrats made laws in haste and the Pakistan Law Commission favoured judges. For him, democracy should be about consensus and not confrontation or disagreement. He stated that the legislature was a hangout for smugglers, dishonest politicians and former bureaucrats. In this context, he sided with the judiciary regarding any challenge to this juridico-bureaucratic structure.

He targeted the creation of special courts through the 12th Amendment.^[897] Prime Minister Nawaz Sharif, during his first tenure, made special courts for the trial of heinous offences, which were gruesome, sensational or shocking to public morality (and thereby could threaten his drive for foreign investment).^[898] There were also allegations of political harassment under these laws.^[899] Hamid Khan responded that special courts are a form of “no confidence in the regular courts”. He also stated that the roots of law and order issues are politico-socioeconomic structures and unless unemployment, distribution of land, as well as over population and illiteracy are addressed, laws and special courts cannot help.^[900] Thus he defended the existing judicial system.

In the 1990s, after the return of the Pakistan People’s Party, an opposing ‘liberal project’ emerged, reflecting the politics of the Pakistan People’s Party in the bar. They argued that the ‘professional’ group was only ‘professional’ in its aim to capture the profession and judiciary. For ‘liberals,’ connected with the Peoples Party, professional group lawyers were professionals in terms of their practice as mostly company lawyers and nothing else.^[901] But the Pakistan People’s Party was unable to break the influence of the Cornelius tradition (Hamid Kahn’s professional group) in bar politics until the 2000s.

4.3.4 What About the Working Class in the ‘Liberal' and Quasi-liberal Project?

Where was the working class in this rising politics of legalism and constitutionalism by both liberal and quasi-liberal projects? The best way to explore this is by looking at the legal treatment of the issues of privatization, liberalization and free market inequalities which directly affected the working class. When Benazir Bhutto decided to privatize 113 small industries in 1989, ‘liberals’ like Omar Asghar (a left social democrat and a main proponent of the project of decentralization in late 1990s) advised the workers to accept the government’s privatization package. Later, workers leader Yaqoob, along with the leadership of the All Pakistan Small Enterprises Union Association (APSEUA),^[902] met with Farooq Laghari (the then General Secretary of the Pakistan People’s Party who later became president of Pakistan during the second tenure of Benazir) to seek help against Nawaz regime’s privatization policies. Laghari strongly advocated for privatization and forced the union to accept such a deal.^[903] The response was the same from the nationalist Awami National Party. All Pakistan Small Enterprises Union Association (APSEUA) was left with the option of a ‘legal’ struggle, though Yaqoob stated that “we were not trained and owners were crooks with their legal advisors”.^[904]

The judiciary and liberal project were responding to this absence of the working class in state and legal formations through Public Interest Litigation, constitution­alism and the rule of law. In a nutshell, the working class became ‘structurally restrained’, and the class formation became dominated by ‘ruling classes’ and the ‘legalism’ of emerging petty bourgeoisie. The judiciary was the least concerned about the workers, as a class. When Nawaz Sharif invited 3500 army personnel to the struggle at Water and Power Development Authority (WAPDA) to ban the union, the workers were not granted judicial relief.^[905] Similarly, when privatization of the Kot Addo power plant was challenged through advocate Asghar Gill, the court decided against the workers.^[906] Why were the workers never the subject of the very romanticized version of PIL in Pakistan, other than the show case litigation of the Darshan Masih case? This needs to invoke the analysis of the very class bases of PIL in Pakistan in both its ‘liberal’ and ‘quasi-liberal’ versions in its particularity.

4.3.5 Public Interest Litigation: A New Level of the Juridico-Bureaucratic Structure in the Cornelius Tradition

Public Interest Litigation emerged in the wake of are treating welfare state, and as a new form of critique of democracy and legislature (in my view, in contempt of politics). It allowed the judiciary to exert itself against a weak legislature. The first official consolidation of this discourse was in the Quetta Declaration (August 14, 1991). Later a scheme was published.^[907] Regrettably, boards were set up in few districts on a ‘trial and error’ basis, but could not succeed due to a lack of com­mitment at the local level and a lack of resources.^[908] The courts continued their work.

The Quetta declaration included about 35 PIL cases, which soon became 600.^[909] In the Darshan Masih case,^[910] the court sought fit to respond to a simple telegram from bonded labourers to free them, and so a letter was treated as a petition. Supreme Court Chief Justice Afzal Zullah mentioned Fundamental Rights under Articles 9, 11, 14, 15, 18 and 25 of the constitution to invoke the writ jurisdiction of the Supreme Court under article 184(3). The Chief Justice inquired of the matter in his chambers asked help from the bar and the police and ordered an inquiry by the Advocate General of Punjab. In his orders, he banned bonded labour, without a complainant or accused or adversarial nature of litigation in the court. Superior courts began to declare that the need for a petitioner was immaterial, and made a case between the court and the respondent.^[911] Sometimes courts did not even allow the petitioner to leave the petition.^[912] High Courts stepped in and began suo moto actions,^[913] as in instances of when women were being burnt by ‘defective stoves’. Other such cases were the Student Politics case, the Ameer Bano

133 134 135

case, the Rashid Ahmad Khan case, and the Shirin Munir case. The per­spective of this phenomenon is in the next section.

PIL as a rise of judiciary: PIL was not a coincidence, but a phenomenon con­nected to the rise of judiciary in a weakening state and retreating welfare state, and the judiciary was aware of this rise. Justice Aslam Riaz of the Supreme Court, on his retirement, pointed out that in this extraordinary phase of our history, we can rely on the judiciary to achieve political stability as a third party/force.^[914] Similarly, Justice Javed Iqbal, disappointed from the democracy of Bhutto and dictatorship of Zia, pinned hopes on the judiciary to save Pakistan.^[915] Chief Justice Haleem of Supreme Court, in the presence of Benazir Bhutto pointed out that this is the era of ‘constitutionalism', and the Supreme Court is the protector and defender' of the Constitution and rule of law. He emphasized the pivotal role of the rule of law for ‘constitutional democracy' and the Supreme Court as “under an obligation to observe the law”.^[916] His analysis clearly placed the court at the centre of political and social change.^[917] Being ‘liberal', Benazir Bhutto, in her reply, repeated the same concepts of ‘American Constitutionalism'. She connected ‘liberal democratic norms' with the above concepts, reducing the gap between politics and law. She perfectly represented the emerging liberal ‘legalism' of politics.^[918]

Though Justice Haleem started PIL more in a liberal fold, yet it turned more towards the Islamic tradition under the Chief Justices Afzal Zullah and Nasim Hasan Shah. Chief Justice Afzal Zullah rejected foreign influences of common law and law of nature on PIL.^[919] Apart from the Zia-ur-Rehman case, roots of his own thinking can be traced in the cases of 1970s like Haji Nizam case.^[920] He used the concept of Basic Structure of the constitution, which for him is of Islamic character. He made references to the Quran, general norms of society and the ‘Islamic Common Law' as opposed to the ‘Common Law' of England. Later, Chief Justice Nasim Hasan Shah continued with PIL in this Islamic colour, but reluctantly so.^[921] Women were agitating against Hudood laws and courts, for Nasim, have tried to ‘soften' the rigour of some of the provisions of Hudood laws.^[922]

Though the judiciary was strengthening itself in the garb of PIL, pivoting it on Islam, yet it was not without pressure from the ‘extremist’ inside the judiciary and bar pressing hard reliance on Objectives Resolution (Khosa, Tanzil-ur-Rehman, etc.). Asif Saeed Khan Khoosa (who later became justice of Supreme Court) regretted that the potential of Article 2-A is not properly realized for establishing a legal order. Courts, for him, have been deciding against the strength of 2-A. This was happening even after the strong reliance by Justice Tanzil-ur-Rehman on 2-A for a ‘crusade’ against ‘Riba’ and the Family Laws Ordinance, 1961 and the welcome of Nasim Hasan Shah for an Islamic Legal Order as 2-A.^[923] He wanted to remove those provisions of the Constitutions, which were a hindrance to the real­ization of Article 2-A. For him, the Council of Islamic Ideology (Article 227(2)) and the Federal Shariat Court (Article 3-A) were monopolizing Islamization and courts were not upsetting these provisions of the Constitution, rather placing Article 2-A at a level of that of an ineffective preamble. He went to the extent of inciting the courts to use the new door of ‘judicial activism’. He did not hesitate to state that if certain provisions of the courts were to be held in abeyance due to ‘necessity’ (means in Nusrat Bhutto case), why could not the inviolable obligations of Islamization be allowed by courts. He gave the examples of two cases with pride where the courts used Article 2-A ‘effectively’; one, Article 53 placing limits on property, is denuded in Waqaf Qazilbash case and second, Article 45 (president power to pardon) declared void in the Skina Bibi case.^[924]

On the other side were ‘liberals’ as an off shots of Left, with a great tradition of resisting Zia’s Islamic legislation against women, minorities, etc. In dialectical relation, this liberal project was more forceful, riding on the wave of neo-liberalism of the hegemonic class unleashed by globalization and Benazir Bhutto in power representing a faction of the reigning class. Students from SOAS and Harvard were bringing analyses to justify PIL differently than U.S., influenced by India but Islam in Pakistan in its particularity.^[925] Dr. Faqir Hussain found the roots of PIL in the U.S. and British tradition with indigenous variations.^[926] Asif Saeed Khan Khosa, pushing Article 2-A to use Objectives Resolution for Islamization, became scared of its use in suo motu cases in PIL. For him, this use of Islam is to overlap or defy the specified ‘limits’ of the constitutional scheme of a Muslim state. This reliance on Islamic provisions and then reluctance is very particular to Khosa and Nasim Hasan Shah, as happened in Hakim Khan case (detail to follow). Other objections by Khosa against the use of suo motu in PIL were, one, that the court itself becomes a complainant; two, the defendant is at a disadvantage because the court already has a position; three, the judge should not acquire the role of a reformer.^[927] Dr. Faqir reacted to this and tried to justify the genesis and evolution of locus standi.^[928] Later, towards the end of the 1990s, Menski started ‘indigenizing’ PIL in ‘South Asian’ tradition.

Public Interest Litigation in the Wake of the Retreat of the Welfare State: Werner Menski has linked the rise of Public Interest Litigation with the demise of the welfare state.^[929] Public interest, as opposed to public welfare, was the new norm and even if an order was passed for public welfare, but is in violation of the state or against the basic norms of justice, it cannot be protected.^[930] He approved of the fact that South Asian judges refused to dream about absolute equality. It is not sur­prising that exactly at this time, the land reforms of 1972 and 1977 were declared as un-Islamic.^[931] As a quasi-substitute, public interest litigation was necessary, to make some promise of equality. Finally, the judges were the ‘ultimate arbitrators’ to decide what was Public Interest Litigation and what was not.^[932]

Apart from Menski’s understanding, the judges thought that they were using law for the welfare state.^[933] Actually, the judges reinterpreted the welfare state as not for free education and health but for life, liberty, honour and protection of property. This is where the judiciary is needed and only the judiciary has the ‘calibre’ to do this.^[934] Judges might have refused to dream about ‘equality’ as promised by the welfare state and claimed by Menski and one can romanticize the ‘rhetoric’ of judges representing public interest, but for workers the demise of available meagre welfare state was not good news. In Pakistan, PIL against a weak democracy in a weakening state of 1990s created further stabilizing effect.

Public Interest Litigation as a Substitute of Democracy and a Critique of Legislature: The main supporters of Public Interest Litigation found democracy to be connected with constitutionalism. Internationally and locally, human rights issues were now centre stage.^[935] But democracy meant politics, so how far can Public Interest Litigation go to uphold democracy? There is clear evidence that Public Interest Litigation went on to undermine the legislature.

The judiciary in Pakistan was trained in the juridico-bureaucratic structure of the Cornelius tradition, and thus to engage in political issues. As already discussed, the Objectives Resolution undermined the legislature by putting above it the undefined laws of Sunnah and Sharia. Justice Majid invoked an inquisitional jurisdiction as opposed to an adversarial or accusational one, and hence made litigation possible by an aggrieved person who has no personal interest but needs the welfare of the general public.^[936] He used Sections of 3, 4 and 5 of the Enforcement of Shariah Act, 1991, which he called the “statutorily recognized supreme law of the land”. He said there is no provision in the constitution for the accountability of the state func­tionaries, and hence Sharia filled this gap. This aspect of Public Interest Litigation and its association with Article 2-A had always posed the danger of further undermining an already undermined legislature. In the early 1990s with the beginning of Public Interest Litigation, the Cornelius tradition forcefully defended Article 2-A and its related Objective Resolution after the decision in the Hakim Khan case.^[937] The court in this case declared that the Objective Resolution of Article 2-A was not a beacon of light for legislation. It simply means that “Article 2-A changes nothing”. As opposed to this, Sardar Sher Alam Khan argued that this provision is unique in the history of the constitution and had made the Quran and Sunnah above man-made law and legislation. Furthermore, according to him, the court has the power to judicially review Article 2-A and not the legislature.^[938]

The pioneer and main proponent of PIL in Pakistan, Dr. Faqir Hussain, found that the parliamentary system could not work in our democratic culture and met with meta-legal and extra-legal strokes. Politicians were mainly responsible for this.

The reason for this is the “poor standard of calibre and intellect of our parlia­mentarians”.^[939] Horse trading, for him, was a new thing for European and North American politics. In Pakistan, politicians were busy supervising development projects, sanctioning loans, plots and seeking appointments in service, etc. instead of law making, which was their primary responsibility. How does one control them? Instead of self-governing mechanisms of parties as in the U.K., he suggested a U.S. type of statutory regulations with qualifications for candidates.^[940]

The court went on to ban student politics as part of its drive to correct the ills of democracy,^[941] which had already been done by Zia during his regime. The same day, Supreme Court Chief Justice Afzal Zullah passed an order to remove restrictions on the marriage of airhostesses of Pakistan International Airlines (PIA) and nurses in the military hospitals. Public Interest Litigation increasingly showed ambivalence towards addressing social discrimination, while it targeted political and economic challenges.

There was a second strand of opinion that Public Interest Litigation should be separate from politics. There was concern of public interest being misused,^[942] as these types of cases are of personal interest and predominantly of political nature. It was argued that they were filed when the petitioner was in opposition or had another agenda that was not in public interest.^[943] Public Interest Litigation brought by impoverished people was being used for political ends and the decade to come was a witness of this. However, the judiciary was, overall, committed to the political dimensions of Public Interest Litigation.

Public Interest Litigation as a substitute for the State: The definition of the state is found in Article 7.^[944] Thejudiciary “interpreted itself to be the part of the state”.

The responsibilities of the state were felt and taken up by the judiciary.^[945] It also used the rights discourse as protection against the state and as enforceable by the courts.^[946] Thus, the judiciary was filling policy gaps along with newly created spaces by restraining the state and state institutions. For example, in Fazal Jan v. Roshan Din, 1990 PLD S. C. 661, Afzal Zulla Chief Justice Supreme Court ordered that women should be given free legal aid, rather than decide through legislation or policy. The height of this newfound power can be seen in the Shehla Zia case.^[947]

Before 1988, Chief Justice Haleem’s judicial activism as a state-directed judicial activism to direct the state to perform the duties owed to the citizen. Afterwards, this role was extended from checking the violations of individual rights to directing the Prime Minister and executive to implement policies.^[948] The law no longer focused on the maintenance of peace and order, but on providing social justice.^[949] The government was equated with the state and the ‘government’ extended right down to the smallest civil servant who was abusing power.^[950] All this was around the idiom of rights.

Official Advocacy of PIL and Nature of Rights: The foundation of Rights in Chap. 1 of Part II of the Constitution of 1973 of Pakistan is described as having its origin from the Bill of Rights of the U.S. Constitution, the 1789 Declaration of Rights of Man and Citizen of the French Revolution, the Irish Constitution of 1935 and the Universal Declaration of Human Rights of 1948. It also has traces from the philosophies of Locke, Rousseau, the theory of natural law and English Common Law and the economic theory of individualism, that is, Laissez Faire.^{[951] [952] [953] Khan claimed that the roots of Public Interest Litigation can be found in the U.S. sys­tem. Menski, on the other hand, claimed its origin as purely South Asian. My position is that in Pakistan, Public Interest Litigation developed very strongly within the ambit of western legal discourse of rights and constitutionalism. A poor grafting of Islam on Western ideals was done in the late 1980s, which continued in early 1990s under the Chief Justices Afzal Zullah and Nasim. This was a}

momentum of the old Cornelius tradition. Later, in the late 1990s and 2000s, the dominant mode of PIL was liberal, with the changed position of the hegemonic block for war against terror and using the military as a seat of power to curb this terrorism.

In spite of this type of rights discourse in the early 1990s, the last genuine critique of rights discourse came from A.G. Chaudhry, which tried to cut across the liberal boundaries. Based on the UN Conference on Human Rights 1993 held in Vienna, he criticized the UDHR that 20 out of 30 articles were about civil and political rights, while five covered economic, social and cultural rights. The focus on individual political freedoms like the right to vote and hold public office, along with rights like free speech and assembly were derived from Western jurisprudence and liberal thought.^[954] He argued that the UDHR “proclaims to have elevated the principles of government of Western civilization to the international level”.^[955]

According to the writer, the summary implementation of the abstract concepts of human rights was being pushed by the Western Governments, NGOs and human rights activists, especially in the United States, without cultural, social, political considerations. Chaudhry notices that “for many in the West, the end of the Cold war was not just the defeat or collapse of communist regimes, but it was the supreme triumph and vindication of Western system of governments and their values.” There has been a tendency since 1989 in the West to measure all states by what the West regard as ‘democracy’; “The hard core of rights that are truly universal is smaller than many in the West profess”; “they do not realize that poverty, insecurity, and instability breads human rights abuses, while wealth creates security and stability”.^[956]

I present this critique to draw a contrast with the uncontested UDHR in the ‘liberal’ project of the 1990s. I agree with A.G. Chaudhry’s critique, but also want to examine the limits of change within and through the constitution, and the limits of the rights discourse and practice of PIL. Whereas A.G. Chaudhry had been a ‘constitutionalist’ who believed that socialism will come through enforcement of the constitution, he was clear that though the UDHR “recognizes in unmistakable terms the supremacy of individual rights to free speech and political expression, it lays great emphasis on the economic and social rights of the people. In view of these provisions, we have our own standard of Human Rights”.^[957]

4.3.6 Dissolution of Nawaz's Assembly (1993)

There was a fresh dispute between the Prime Minister and the president regarding the appointment of the Chief of the Army Staff. On April 1993, president Ishaq dissolved the National Assembly, accusing it of maladministration, corruption, nepotism, terrorizing opposition and use of official resources for political ends.^[958] The order of the dissolution was challenged in the Supreme Court and a full bench of 11 judges, headed by Nasim Hassan Shah, accepted the petition by a majority of ten to one. The dissenting judge was Sajjad Ali Shah.^[959] This seems to be a very courageous decision, but the ‘rules of the game’ were dictated elsewhere. The restoration did not last for more than two months, for a deal was brokered between the president and Prime Minister through the military, and both resigned! According to Supreme Court Justice Sajjad, Supreme Court Chief Justice Nasim was determined to restore the assembly and made a statement that he was not like Chief Justice Munir and he would give good news to the nation.^[960] Nasim Hasan Shah boasted that an overthrown government was back to power through the judiciary for the first time in the known history of the democratic and civilized world.^[961] The legislature itself noted that it was sitting in session because of the Supreme Court.^[962]

To sum up, a structural analysis of the features of politics and judicial changes in the early 1990s shows that the replacement of the minimal welfare state and pri­vatization was accompanied with two effects on the class formation. There was a new ‘compromise’ within the ‘power bloc’ going through undefined, complex mediations. The crisis of the state was the crisis of the new arrangement around privatization and consequent opportunities for the hegemonic metropolitan bour­geoisie, as well as bitter competition among different fractions of the reigning landed and capitalist class. Privatization and neo-liberalism brought an increasing inequality, which placed more pressure on the state to deliver what the market was still not able to allocate. The legislature’s open courts (Khuli Kachehri of Nawaz)^[963] or the judiciary’s populist PIL was a poor substitute in this context.

4.4