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The judicialization of politics in Pakistan

08 Oct, 2016 ADMINISTRATIVE LAW

The judicialization of politics in Pakistan


Charles H. Kennedy



In its 63-year independence Pakistan has had a very complicated and fluid constitutional history (see, e.g., Khan 2001 and Newberg 1995). It has had five formal constitutions, one inherited at independence (the Government of India Act of 1935, modified by the India Independence Act of 1947) and four indigenously crafted documents in 1956, 1962, 1972, and 1973. At times it has also operated without a written constitution (1958–62; 1969–71), under a ‘suspended’ constitution (1977–1985) and a ‘modified’ though ‘restored’ constitution (1985–97)—the last of which was significantly altered by the passage of the Thirteenth Amendment (1997–99).


Between October 1999 and August 2008 the state was dominated by other legal devices: two Provisional Constitution Orders (PCOs; 1999, 2007), and a Legal Framework Order, which were substantively incorporated into the constitution through the passage of the Seventeenth Amendment. In March 2007 President Musharraf took the ill-advised step of suspending the Chief Justice of the Supreme Court, Muhammad Iftikhar Chaudhury. After Chaudhury’s courtordered reinstatement, Musharraf promulgated the 2007 PCO, which effectively dismissed many (63) of the judges in Pakistan’s superior judiciary by requiring them to take a fresh oath of office. They were replaced by judges willing to take the new oath. After President Musharraf was obliged to leave office in August 2008, the issues of the dismissed judges and of the broad powers that civilian President Zardari inherited from Musharraf were joined. The judges were restored in March 2009; and in April 2010, Parliament passed the Eighteenth Amendment, which ‘restored’ the constitution to a Prime Ministerial form of government. Indeed, functionally Pakistan has undergone 14 different constitutional structures since 1947.


Currently, Pakistan has a bicameral Parliament with a National Assembly and a Senate. The National Assembly consists of 342 members: 272 are directly elected in a first-past-the-post system from single member constituencies; 60 seats are reserved for women and 10 for non-Muslim minorities, which are allotted to the respective political parties to fill according to proportional representation determined by the overall percentage of votes received in the general election. The National Assembly selects the Prime Minister and serves a maximum term of five years or until the government chooses or is forced by a vote of no-confidence to hold a general election. The 102-member Senate is indirectly elected by the four provincial assemblies (23 from each—Punjab, Khyber Pukthunwha, Sindh, and Balochistan); 8 are selected from the Federally Administered Tribal Areas and 2 from Islamabad. Senators are elected for fixed sixyear terms, with elections being held every two years for one-third of the members. The National Assembly is the dominant house—all money bills must originate there—but the Senate must concur with legislation so proposed. Both houses must approve amendments to the constitution. Since April 2010 with the passage of the Eighteenth Amendment, the Prime Minister is the head of government with the indirectly elected President’s role reduced primarily to that of a head of state. The most recent election was held in February 2008 and a Pakistan People’s Party (PPP)-led coalition elected Syed Yusuf Raza Gilani as prime minister in March. Another PPP politician, Asif Zardari, was selected as President following the resignation of Pervez Musharraf in 2008. The pattern of each of the four provinces mirrors that of the federal government—each has a provincial assembly whose members elect a Chief Minister.


Pakistan has seven federal courts—five High Courts (Punjab, Capital Territory—Islamabad, Khyber Pakhtunwha, Sindh, Balochistan); a Federal Shariat Court; and a Supreme Court. The appointment of judges to each of these benches is determined by Article 175A of the Constitution (as amended by the Nineteenth Amendment on 1 January 2011) in which respective Judicial Commissions (led and dominated by respective Chief Justices) submit recommendations to a federal Parliamentary Committee for approval. The High Courts’ jurisdiction extends to its relevant province or territory in which it has standing to challenge or to entertain grievances against federal, provincial, and local government actions; they supervise all courts within their respective jurisdiction and they serve as a court of appeal to District and Sessions Courts. The Federal Shariat Court has broad jurisdiction to examine and determine if any law or provision of law is repugnant to the Holy Injunctions of Islam and to specify remedies for such offending laws to be made in consonance with its findings. (Article 203D). The Supreme Court is the apex court of the state. It has carved out very broad powers of judicial review in recent years; enjoys original jurisdiction to adjudicate disputes between provinces; is the court of last appeal against decisions of the High Courts; and through its Shariat Appellate Bench serves as the court of last appeal against decisions of the Federal Shariat Court (FSC).


Pakistan’s superior courts have taken a somewhat tortuous path to their current judicial activism. Their role, and challenge, has often been to launder egregiously extra-constitutional acts of both military and civilian leaders to make them clean and constitutional. The task has been extremely complicated; it has often required considerable judicial creativity, not to mention tactical retreats, feints, veiled or not so veiled threats, promises, and implicit compromises or ‘deals’ with military dictators, reformed but still authoritarian former military dictators, and recalcitrant (democratically elected yet authoritarian) civilian political leaders.


Despite the distinction and sincerity of Pakistan’s superior judiciary and legal community, and despite their voluminous and at times eloquent (if sometimes painfully) verbose case law, Pakistan’s superior courts did not show much judicial backbone until the Mian Nawaz Sharif decision in 1993. Until then the Supreme Court (SC) had adopted two responses to egregious departures from the constitution:


Response A: Accept extra-constitutional political choices as regrettable, sometimes disturbing, and even at times reprehensible but ultimately necessary to maintain legal continuity and keep state institutions functioning. Some illustrative cases:



Response B: Declare executive acts ‘extra-constitutional’ eloquently and boldly, but too late to do anything about them. Illustrative cases:



Starting with the Saifullah Khan decision in 1989 the court was consistently seeking a dignified and useful role for itself as ‘referee’ between president and prime minister: The president had authority to dismiss the prime minister and chief ministers but had to make a good case for doing so, and when his reasoning and the responses to it confronted each other, the SC was final arbiter (see Kennedy 1995). In allowing the court to assume this role, the prime minister and the president had opened the door for what at first was a trickle but later a flood of judicial activism. But before we explore that further, let us consider the very important role of the FSC in establishing the independence of the superior judiciary.


Islamization and judicial activism


The tortured history of ‘Islamization’ in Pakistan is far too broad to contemplate here. The inability of Pakistan to adopt its first indigenous constitution until nine years after independence can largely be explained by the rift between ‘Islamic moderates’ (often called ‘secularists’ by their detractors) and ‘Islamists’ (often called ‘fundamentalists’ by their detractors). With the 1956 constitution the moderates won out, but we will start our brief discussion in the early 1980s, when Zia-ul-Haq assumed power.


In 1980 Zia created a Federal Shariat Court (FSC) with appellate and revisional jurisdiction over acquittals from lower courts (High Courts and sessions courts) in cases based on Zia’s new Islamic criminal laws (the Hudood laws); exclusive jurisdiction to hear ‘Shariat petitions’ brought against ‘any law or provision of law’ as repugnant to the Holy Qur’an or Sunnah; and jurisdiction on its own motion (suo moto) to identify such repugnancy. Zia expected implementation of his Islamization program to be incremental, prudential, and cautious. For instance, while he granted the FSC extraordinarily wide jurisdiction, he narrowly limited how it might apply the term ‘law’. Also, Zia appointed FSC jurists from High Court judges who were recognized as moderates; and also provided that FSC findings could be appealed to a new Shariat Appellate Bench (SAB) of the SC.


Between 1980 and 1986 the FSC scrutinized several thousand laws, ordinances, orders, and regulations; in dozens of cases the authority responsible for an offending law was obliged to make revisions. Ultimately, however, the court found definitively that over 99 percent of Pakistan’s laws were in consonance with Islam.


Moreover, few bringing Shariat petitions found relief. Between 1979 and 1987, 330 petitions were filed; nearly half (122) dealt with land cases, most of the rest were concerned with Islamic criminal law and punishments; civil service grievances; family laws; social practice; and riba (bank interest; for details, see Kennedy 1992). By invoking Article 203B, which conveniently limited its jurisdiction, the court avoided addressing all such topics save civil servant grievances, though in its attempts to improve conditions of employment for government servants it was quite activist.


Somewhat ironically the FSC became far more expansive of its interpretation of its role after its founder Zia died in 1987. It played a significant part in rescinding tenancy rights to the pre-emption of land, and ultimately in the wholesale gutting of the progressive, yet flawed, Land Reforms introduced during Zulfikar Bhutto’s governments in 1972 and 1977 (Kennedy, 1993a). It also was a main actor in the complicated and tortured attempts to ban riba from the economy of the state; attempts that were later upheld and then reversed on appeal by the Shariat Appellate Bench of the Supreme Court (Kennedy 1993b; 2004).7


Another of Zia’s Islamic initiatives was the Hudood ordinances introduced in 1979. These were four hastily drafted ordinances that covered zina (sexual crimes—rape, fornication, sodomy, adultery, and related issues); qazf (the imputation of immodesty to a woman with respect to zina); prohibition (alcohol and narcotics); and property (theft). In hearing appeals the FSC over the decades has softened the fervor of district judges and prevented the harshest penalties (stoning; cutting of hands) from ever being carried out.


After nearly three decades of concerted opposition against the Hudood laws by feminist and human rights groups, the Parliament passed an act Protection of Women (Criminal Laws Amendment) in December 20068 which among other things put Hudood crimes back under the Pakistan Penal Code, redefined certain crimes under zina , and established appeal to the High Courts, thus reducing the jurisdiction of the FSC.


Late in 2010, the FSC, perhaps heartened by the expanding reach of the Supreme Court released its monumental response to the Protection of Women Act— Abdur Razaq Aamir v. Federal Government of Pakistan.9 Its argument centered on the contention that the FSC’s jurisdiction was sanctioned and protected by the constitution and therefore could not be curtailed by subordinate legislation. The judgment also pointed out that the FSC can review its own decisions Article 203-GG; and its power of review is not subject to an act of Parliament. Gratuitously, it added that the Council of Islamic Ideology, established and protected by the constitution, was defined as a wholly advisory body with its reports and findings subject to review by the Parliament and the courts.10


The Abdur Razzaq Aamir case reminded those who had forgotten that the FSC was also to be reckoned with in terms of judicial activism. It has since its inception had discretionary authority to pretty much do as it pleases. Ultimately its findings and standing to entertain cases can only be reviewed by the SAB, which is appointed by the Chief Justice from among Muslim SC justices. Thus, the FSC and SC may either reinforce their collective interests in increasing their authority against potential competing state institutions; or they can limit each other’s judicial activism. The Addur Razzaq Aamir decision, currently on appeal to the SAB, may suggest whether the courts will cooperate or compete.


‘Enlightened’ military authoritarianism


In 1997 Nawaz Sharif returned with a vengeance (see Kennedy 2009; 2006). In the 1997 elections he and his Pakistan Muslim League – Nawaz (PML-N) won far more seats than the two-thirds necessary to amend the constitution. Rapidly and forcefully Sharif orchestrated unanimous passage of the Thirteenth Amendment, which by repealing Articles 58(2)b and 112(2)b effectively ended the power of the president to dismiss the national and provincial assemblies. It was also a frontal assault on the SC, stripping it of its powers as referee between the prime minister and the president. The passage in July of the Fourteenth Amendment, which prohibited ‘floor crossing’ (thus enforcing party discipline) relieved the Nawaz government of any civilian threat; it now need not fear either a presidential dissolution or a no-confidence vote in the National Assembly.


The judiciary struck back. On 29 October a three-judge SC panel headed by Chief Justice Sajjad Ali Shah accepted a petition challenging the constitutionality of the Fourteenth Amendment, declared the amendment sub judice , and suspended its operation until it ruled on the challenge.


Not surprisingly Nawaz took offense.11 After he denounced both the court’s ruling and the integrity of the chief justice, on 2 November the chief justice cited him for contempt of court. But during the first day of the contempt trial a group (mob) of PML-N loyalists (thugs) occupied the Supreme Court building. A few days earlier, two other SC judges had filed a petition challenging the right of Sajjid Ali Shah to serve as chief justice (he had been promoted during Benazir Bhutto’s second government) because he had not been the senior SC judge when he was elevated and issued an order that no fresh cases be directed to him. Subsequently, the full SC found Shah’s appointment illegal, and Ajmal Mian succeeded him. Now Nawaz Sharif and his government were effectively immune from challenge not only by the National Assembly but also by a now intimidated SC. But Sharif had neglected to immunize himself from the military.


On 12 October 1999, COAS General Pervez Musharraf staged a bloodless military coup, using essentially the same script as his predecessors. Like Zia, he promulgated a Provisional Constitution Order (PCO) that put the constitution in ‘abeyance’, and though ‘maintaining function and exercise of [all courts’] respective power and jurisdiction’ prohibited any court from challenging any of his actions or proclamations or those of any other persons exercising authority in his name.12


Petitions challenging the PCO were filed with the SC, but before hearings commenced, on 28 January 2000 Musharraf forced members of the superior judiciary to take a fresh oath, this one to uphold the PCO. Six SC justices, including Chief Justice Saeeduzzaman Siddiqui, and nine High Court justices refused and were retired. Irshad Hasan Khan became the new chief justice.


The reconstituted SC then defended its decision to entertain petitions filed against the PCO because ‘undertaking a fresh oath of office does not in any way preclude the judges of this court from examining the questions raised… which have to be decided… so as to resolve the grave crises and avoid disaster’. Then, although it found that removal of judges through the device of the fresh oath was an unconstitutional departure from the rules found in Article 209, the court declared it could not offer a remedy because it is ‘hit by the doctrine of past and closed transactions and cannot be reopened’.13 It went on to validate the 1999 PCO because the COAS had no choice but to take such unconstitutional means given wholesale corruption; the contempt shown by Nawaz Sharif for the superior judiciary; and so forth. That is, the army and General Musharraf had validly assumed power by means of an extra-constitutional vehicle, but they had done so in the sincere interest of the state and its people (the ‘touchstone of State necessity’). However, the SC found that civilian rule should be restored in the shortest possible time, which it set at three years.


Tidying up the mess14


General Musharraf may have sincerely wanted to leave office, but the task, particularly after the US asked Pakistan to be its primary partner in the ‘Global War Against Terror’ proved highly complicated and required extreme creativity. Musharraf faced four immediate obstacles: (1) he had to become the president; (2) he had to significantly revise the constitution to remove the Thirteenth and Fourteenth Amendments; (3) he had to hold elections by 12 October 2002; and (4) he had to convince the new National Assembly to validate his re-engineering.


First, on 1 May 2002, borrowing from the Ayub and Zia playbook, he called a referendum, asking the voters to elect him to a five-year term as president so that he could consolidate his ‘reforms and reconstruction of institutions of state for the establishment of genuine and sustainable democracy… and to combat extremism and sectarianism.’ Reportedly, 97.5 percent of those who voted said yes.


President Musharraf moved quickly to reconstruct the constitution. In June he ordered the National Reconstruction Bureau (NRB) to craft a package of constitutional reforms and make them available online for public discussion. On 21 August he formally promulgated the NRB’s recommendations as Legal Framework Order (LFO), 2002, which among other things established the size of the prospective national and provincial assemblies; validated all laws, actions, orders, and so forth issued since Musharraf and his government assumed office; and declared that all superior judges who had taken the most recent oath were regular members of the judiciary.15 On 9 October 2002 he promulgated the Legal Framework (Amendment) Order, lifting the retirement age of the superior judiciary from 65 to 68.16


Next, Musharraf arranged to hold elections on the LFO schedule. He also significantly tilted the playing field in the direction of the Pakistan Muslim League (Qaid-i-Azam ‘Q’), his own party, through the Political Parties Ordinance, which mandated that parties elect their leaders and draft (time-consuming and divisive) formal party platforms. It also restricted the length of electoral campaigns and subjected would-be candidates to time-consuming oversight by the Election Commission (see Botteron 2006). Musharraf’s Conduct of General Elections Order, 2002, required that all candidates to national and provincial assemblies hold a bachelor’s degree or its equivalent from a recognized madrassa. Not surprisingly, given these reforms and considering that opposition leaders Benazir and Nawaz were exiled, the PML (Q) won a plurality of seats in the National Assembly. Mir Zafarullah Khan Jamali was asked to form the government.


Finally, the contentious new National Assembly agreed to validate Musharraf’s new constitutional system—at a price. In exchange for support of the LFO, which was presented to the assembly as the Seventeenth Amendment, the opposition parties insisted that Musharraf relinquish this position as COAS by the end of 2004. Thus the Seventeenth Amendment was passed on 30 December 2003, and on 1 January 2004 Parliament gave Musharraf a vote of confidence, which continued his term as president.


The Seventeenth Amendment confirmed the re-establishment of a presidentdominant system, but Musharraf was reluctant to resign as COAS and in October managed to cobble together a National Assembly majority to pass the President to Hold Another Office Act, 2004. Although this bought him time, it did not end the controversy, because Article 63 of the constitution plainly states no one can hold at any one time more than one ‘properly paid position in the service of Pakistan’ (see Kennedy 2005).


With his four urgent goals accomplished, Musharraf in 2004 found himself heading up a new presidential-dominant political system where the National Assembly was weak, ineffective, and hopelessly contentious—a system in which the military, with Musharraf still COAS, played a dominant though indirect role—but with a relatively effective, if less than democratic, government. Musharraf was lauded in the international press as having saved Pakistan’s troubled democracy, having the backbone to stand up to terrorists and for making Pakistan a firm ally of the US–NATO coalition in Afghanistan.


Meanwhile, the superior judiciary had willingly accepted, or had been intimidated into going along with, the general’s plans. After its less than heroic defense of its judicial autonomy by taking the fresh oath and its validation of the PCO’s ‘necessity’ in the Zafar Ali Shah case, the SC followed with several at best equally timid responses to Musharraf. In 2002, the court had gone along with the dubious proposition that an educational requirement for election enhanced democratic representation, and though it found the fact that Musharraf unconstitutionally held two official positions, it reasoned that since the PCO had put the constitution in abeyance, it had no remedy to correct the ill.17 Even more timidly, in the Pakistan Lawyers’ Forum case of 13 April 2005, the SC wholly validated the Seventeenth Amendment by claiming sycophantically that Pakistan had ‘emerged from a period of constitutional deviation’ and that by ‘striking down the Seventeenth Amendment [the SC] would destroy the entire system.’18


But then Musharraf made a serious mistake.


Suspension of the Chief Justice


In 2007, with a single action Musharraf’s carefully crafted system unraveled. Before embarking on a campaign for a new five-year term of office as president, he decided to force out the ‘unpredictable’ Chief Justice Ifthikar Muhammad Chaudhry. Chaudhry had taken the judge’s oath in January 2000 as a member of the Balochistan High Court and on 4 February had promptly been elevated to the SC. On 7 May 2005 he had become chief justice.


Until then Chaudhry’s record was unremarkable. He had supported SC decisions for Musharraf in all the significant cases which had challenged Musharraf’s rule, and apparently it was this reliability and his unexceptional career that had encouraged Musharraf to make him chief justice. At the time Chaudhry had just turned 57; the retirement age for judges of the Supreme Court is 65.


But after being named chief justice, Iftikhar Chaudhry became quite a different man. Soon after assuming the post he set up a Human Rights Cell (HRC) in the Supreme Court; its job was to receive petitions from those aggrieved or those knowledgeable of human rights offenses (broadly defined). Since 2005 the SC has received tens of thousands of petitions. The court chooses to address those which have the most merit; and in some cases members of the court grant remedies directly or punish those responsible for offenses.


Chaudhry also initiated the practice of having court employees track media reports of crimes against women and children, abuses of justice, corruption, and abuse of power by civil servants and elected public officials and then claiming jurisdiction on its own motion to investigate and where warranted issue judicial orders. The foundation for this judicial activism was an expansive reading of Article 184(3), which grants the court standing in cases which have public importance or which challenge fundamental rights expressed in the constitution.


Between May 2005 and March 2007, the court considered thousands of petitions and issued dozens of decisions. The most famous, the Pakistan Steel Mills case, involved the sale of Pakistan Steel Mills to a dummy firm based in Mauritius which was a front for Arif Habib, an infamous criminally indicted loan defaulter. Members of government had been paid handsomely to look the other way. The decision issued on 23 June 2006 was a profound embarrassment to Musharraf and the PML(Q), which had prided itself on being less corrupt than its predecessors.19


Musharraf suspended the Chief Justice on 9 March 2007. Chaudhry contested his suspension as being without cause and filed a petition to the SC challenging it.20 Supporters defined his refusal to resign as ‘heroic’ and many were galvanized. Prominent in the resultant street demonstrations were lawyers as well as members of opposition political parties (the PPP and the PML(N)). On 12 May, at the invitation of the Karachi Bar Association Chaudhry visited Karachi, where his motorcade from the airport was attacked. When the dust settled 42 people had died and more than 150 were injured. The Sindh provincial government, along with Musharraf, was blamed for inadequate security. Ten weeks later on 20 July a full bench of the SC (without its chief justice) declared 10–3 that Musharraf had acted beyond his authority and lifted the suspension.


This was a truly historic decision. The court had stood up against a president, who was also still COAS; the event was characterized as restoring judicial autonomy and as a victory for the nascent lawyers’ movement.


Ever resourceful, Musharraf found a remedy. On 5 October 2007 he promulgated the National Reconciliation Ordinance (NRO), which among other things terminated all pending legal proceedings related to financial improprieties initiated between 1 January 1986 and 12 October 1999.21 Benazir Bhutto had been forced into exile in 1998 to avoid prosecution on numerous charges of corruption and other illegalities during her two terms as prime minister. The NRO allowed her to return to Pakistan without risking jail and would free her husband, Asif Zardari, from confinement. A day later, on 6 October, President Musharraf was re-elected by the members of the National Assembly, Senate, and provincial assemblies with 55 percent of the vote. By putting up a candidate to contest the election, unlike other opposition parties, Benazir’s PPP thus legitimized the election.


Despite this clever (though transparent) deal, Musharraf’s woes were far from over. Emboldened by popular support and led by the firebrand Chaudhry, who was deeply perturbed by his suspension, the SC struck back. Indeed, even before the NRO was promulgated, on 23 August 2007, the court in Pakistan Muslim League v. Federation of Pakistan22 allowed Nawaz Sharif, who after the 1999 coup had accepted exile in Saudi Arabia rather than jail at home, to return to Pakistan. The eloquent and detailed decision by Justice Javed Iqbal found the agreement Nawaz Sharif had been obliged to sign to be invalid, as was his documented promise to stay away for at least 10 years.23


Further, on 28 September 2007 the court had invalidated the President to Hold Another Office Act as being in violation of Article 63 of the constitution, which cannot be amended simply by act of Parliament. It also opined that the president was barred from seeking a third term in office unless the constitution was amended.24 But in a parallel decision, also decided on 28 September, the court ruled that it had no standing to remedy effects of the President to Hold Another Office Act because the act did not challenge any fundamental right.25 On 12 October, as expected, the SC accepted appeals challenging the validity of the NRO.26


In retrospect Musharraf had no choice but to suspend the runaway judiciary. On 3 November he declared a state of emergency and issued a new Provisional Constitution Order (PCO).


Breaking new ground


This was a first in Pakistan’s ever-creative constitutional system. The constitution was suspended by the 2007 PCO, which was in effect a military coup made by a standing COAS against a government whose civilian president happened to be the same COAS: Musharraf had replaced his own government with his own government. Although the PCO followed the well-worn tracks of such documents, legitimizing the coup on the basis of a ‘breakdown of law and order’ that posed ‘a grave threat to the life and property of the citizens of Pakistan’, the real target was a Supreme Court ‘working at cross purposes with the executive and legislature in the fight against terrorism and extremism’.


The mechanism to cleanse the body politic of the recalcitrant judiciary was to require judges to take yet another new oath of office under the terms of the 2007 PCO. This time it would be like rebooting a computer: shut down the machine of state, make judges of the higher benches take a fresh oath of office which would oblige them to accept (again) that they had no power to ‘make any order against the President or Prime Minister or any person exercising power or jurisdiction under their authority’ and throw in for good measure a rider that no court could challenge the validity of the PCO itself.


Within a few hours of this PCO being promulgated, Chief Justice Chaudhry and six other SC judges refused to take the oath, issued an order declaring the PCO illegal, and enjoined members of the superior judiciary from taking the new oath.27 Of the 19 SC justices, 15 did not take the new oath, along with 44 High Court judges.28


The new Supreme Court, augmented by oath-taking judges elevated from the High Courts, moved quickly. On 6 November new Chief Justice Hamid Dogar, the most senior of the SC judges who had taken the oath, countermanded the Chaudhry court’s 3 November order on the grounds that it was made after the 2007 PCO had been issued.29 By the Dogar court’s logic, apparently the only way to declare a coup extra-constitutional would be before it happens. On 19 November the court dismissed several petitions challenging Musharraf’s recent election as president on the grounds that (1) the two-office rule does not apply to a president; (2) because of the PCO the term limit issue does not prohibit his reelection; (3) he was a pious Muslim (even if, as counsel for the petitioner argued, he had lied about leaving office after three years); and (4) he met the educational requirements with a BS (honors) in war studies from the University of Balochistan and a 1983 M.Sc. in war studies from Qaid-i-Azam University.30


On 23 November the court found that the new oath of office was a valid exercise of power because (1) there was precedent (PCO, 1977 and Zafar Ali Shah); (2) the Chaudhry court had ignored ‘due process’ by extreme judicial activism as demonstrated by the HRC, which had led to an ‘arbitrary selection of cases’; and (3) the court’s reliance on an expanded interpretation of Article 184(3) does not apply to individual grievances.31


The actions of the new SC paved the way for Musharraf to dismiss the National Assembly (it had completed its five-year term) and name a caretaker prime minister. The new court had also given him the space to resolve the ‘uniform issue’ and resign as COAS, naming General Asfaq Pervez Kayani as his successor. With these matters taken care of, Musharraf withdrew the 2007 PCO on 15 December. Rebooted, the government had been returned to its original state but without 63 troublesome superior court judges. As 2007 was closing, Musharraf seemed invincible. The National Assembly to be elected should be less contentious; at worst the PML(Q) would share power with one of the other two major political parties, but both their leaders (Benazir Bhutto and Nawaz Sharif) were banned from serving another term as prime minister; under its tainted new chief justice the SC was now docile; and Musharraf could remain in control indefinitely as president. But the well-designed plans of even a very clever politician and general are vulnerable to surprises.


On a campaign trip in Rawalpindi on 27 December 2007 Benazir Bhutto was assassinated. The persons responsible were not brought to justice, and Musharraf’s government was blamed for ineffective security. The dismissal of the superior justices was sparking increasing protests, led by the lawyers and their associations but now joined by both opposition parties. And it was too late to delay or abort the general election. In the February 2008 election Bhutto’s PPP won a plurality of seats, the PML(Q) suffered significant losses, and in March the PPP was able to put together a government headed by long-term PPP leader and loyalist Syed Yusuf Raza Gilani. Even the Dogar Court began to show signs of independence. In February it rejected a petition filed against the dismissal of the superior court judges but found that although the dismissal of the judges (and by implication the PCO itself) was illegal, the court had no remedy but to allow the reprehensible act to stand owing to the ‘past and closed transactions’ doctrine.32


Divided along normal party lines, the new civilian government could agree on little except two things: (1) President Musharraf should leave office; and (2) the superior court justices who had not taken the PCO 2007 oath order should be restored to their courts. The latter dovetailed neatly with the former. The judges issue was palpable proof of Musharraf’s authoritarian past, it had drawn attention to the murky means by which he had gained another term as president, it challenged not only the legitimacy of his government but also the notion that Pakistan was a democracy—but, most important, it had energized the opposition to work together to oust him.


The opposition, formed around the movement that had hastened restoration of the chief justice, had been growing. Supported first by lawyers and by both the PPP and the PML(N), it grew to incorporate women’s groups, human rights groups, and students. Defrocked members of the superior judiciary also participated. The movement received very positive support from Pakistan’s media, and the story was picked up by international media. For the most part the movement, although raucous, remained non-violent. As spring moved into summer, Musharraf became increasingly isolated and under siege.


In April even the Dogar Court took a swipe at Musharraf by overturning the educational requirements for elective office. The court ruled that it had standing under Article 184(3) because the issue involved both ‘public importance’ and fundamental rights. It presented evidence that the educational requirements were both restrictive with respect to class—only 4.1 percent of registered Pakistani voters and 1.6 percent of all Pakistanis—possess the requisite degrees; and with respect to region—the percentages are far lower in Balochistan and Azad Kashmir. Of course, this decision was warmly welcomed by the PPP and the PML(N), the original targets and victims of the educational requirements.33


Enter Zardari


On 7 August 2008 proceedings were initiated to impeach President Musharraf. On 18 August he resigned. It is generally believed that the military encouraged his resignation. On 6 September Parliament elected Asif Zardari, Benazir Bhutto’s widower, president.


Although much of the support for Musharraf’s resignation came from those who had demanded that the higher court judges be restored to office, President Zardari was loath to take that step. Perhaps he feared that a restored judiciary might find the NRO (the ordinance which had stopped proceedings against those deemed corrupt) unconstitutional; that would have meant that he had to either flee the country or go to jail. Moreover, a restored court would probably have considerable independent authority, having been associated with the downfall of Musharraf and being generally perceived as anxious for the restoration of democracy. And Zardari certainly was aware of the long-standing conflict between an assertive SC and the Bhuttos (the SC had upheld a murder conviction against his father-in-law and sustained the dismissal of his wife’s two governments; more personally, it had accepted the contention that her government was enthusiastically corrupt and that Zardari himself was the ringleader of such corruption.) He also faced significant challenges from Nawaz Sharif and the PML(N). He decided to drop reinstatement of the judges from the PPP agenda and its implicit deal with the PML(N), the ‘Charter of Democracy’, and see if he could ride it out.


The Dogar Court did its best to help. In two cases decided on 25 February 2009, the court considered the political fate of the Sharif brothers, Shahbaz and Nawaz. Both wanted to lift the ban on their becoming elected officials; Nawaz had been banned as a consequence of his conviction in a case associated with the 1999 coup; and Shahbaz because he was part of the family that had (as admitted in Nawaz’s confession) been engaged in monumental corruption when Shahbaz was Chief Minister of Punjab and Nawaz was Prime Minister. The court refused to lift the bans. Complicating the matter was that both petitioners had refused to attend hearings before first the Lahore High Court and later the SC, so the proceedings had been dragging on for over a year.34 From a political perspective this kept the Sharifs, leaders of the largest opposition party in the National Assembly, from formally representing the PML(N) [the ‘N’ stands for Nawaz].


As Zardari delayed, the Movement for the Restoration of the Judges (‘the Young Lawyers’ Movement’) continued to grow, and with party workers of the PML(N) and PPP, now factionalized along partisan lines, actively participating both for and against the movement, it became increasingly violent. With the active involvement of the Sharifs and supported by former judges and prominent legal practitioners, the movement planned a Great March from Lahore to Islamabad to push its agenda. With carnage likely, President Zardari relented: On 16 March he restored the judges to their former positions with their seniority intact. He also left in place the judges who had taken the oath, expanding the size of the superior courts through a rider in a finance act which was passed by Parliament.


The restored Chief Justice and the Supreme Court


The first major decision of the restored court was to claim standing to address whether the Sharif brothers were eligible for public office. In an opinion by Justice Tassadeq Hussain Jillani, the SC found that (1) rather than being contempt of the court, the absence of the Sharifs from the High Court and Supreme Court hearings was calculated to show support for justices who had refused to take the fresh oath of office; (2) given their motives, their case was not timebarred; (3) in any case the High Court did not have original jurisdiction under Article 199, but (4) the SC did have jurisdiction under Article 184(3) because the case was of public importance and freedom of association (Article 17) was involved.35 Some argued, amid brisk discussion of related issues, that the decision fulfilled a debt of gratitude for PML(N) support for the displaced judges; others viewed it as payback for the absence of PPP support.


Another crucial decision of the reinstated court was the Sindh High Court Bar Association case, which addressed various aspects of the PCO, 2007. It is unusually long (455 pages) but at times eloquent, and it is dense with factual analysis of the history of the interaction of judiciary and executive. Some of the major findings:



The opinion, written by Chief Justice Chaudhry, is unremitting in its condemnation of the acts of Musharraf and the courts. It also shows no sympathy for judges who had taken the fresh oath—not only had they taken it under an extraconstitutional order, but they had defied a direct order of the CJ and his six SC colleagues issued on the day the 2007 PCO was announced. By taking the oath they stood in contempt of court—they were not only backing a usurper, they were destroying the integrity and autonomy of the court.36


On appeal the Supreme Court on 13 October 2009 reiterated that two classes of former jurists were in contempt of court: (1) those who had taken the fresh oath of office; and (2) those appointed by Dogar when he served as chief justice. The SC would dismiss the contempt charges if these judges withdrew their appeals and expressed ‘unconditional apologies’ to the real SC, or, if they had already retired, simply expressed their ‘unconditional apologies’. Two days later, responding to a rumor that the PPP-led government was contemplating a new act that would restore the judges who had taken the 2007 oath,37 Chaudhry returned the ‘threat’ by stating that such an act would be unconstitutional and that media commentators who had spread the rumor should be prosecuted.38


On 16 December 2009 the Court allowed appeals against the NRO, calling it entirely illegal because it was merely a ‘deal made between two persons’ (Musharraf and Benazir). Among other problems, the NRO gave benefits illegally and irrationally to a ‘special class’ of people who had been under indictment between 1 January 1986 and 12 October 1999 (politicians, industrialists, bankers and so forth). Altogether, the NRO was extra-constitutional, ultra vires , and void ab initio. Accordingly, all the cases and files of the NAB and the Ehtesab Bureau should be reopened and indictments pursued, fines collected and the guilty brought to justice.39


Educational qualifications redux


The Chaudry court also decided to accept an appeal from a losing candidate in the 2008 election who claimed that his opponent had fraudulently claimed in his application to have the necessary earned BA degree. Although the SC had invalidated the education qualification for candidacy, it found that the respondent had nonetheless committed a ‘corrupt practice’ by making a false statement about his educational qualifications that was punishable for imprisonment up to three years and the defendant being barred for 10 years from further electoral office.40 The court also directed the Election Commission to initiate action against all persons accused of such corrupt practices.


Following this decision the Election Commission found that it could verify all but 147 (over a third) of the qualifications of successful candidates and turned the issue back to the National Assembly. Subsequently the Parliamentary Education Committee directed the Higher Education Commission (HEC) to help verify the educational achievements of all successful candidates for office. This has not been easy. The Zardari-led government has been loath to allow Pakistani universities to comply with the HEC request; as of mid-March 2011, the HEC was still awaiting information on 60 politicians.41


Throughout the SC has been proactive in prosecuting cases in which fraud has been proven. For instance, on 4 August 2010, the court directed that a criminal case be filed against a member of the National Assembly (MNA) and that the state recover all monies including pay and allowances since he was elected MNA.42 Previously, on 25 March 2010 the SC accepted the case of a defeated candidate who charged that the winner had claimed a bogus MA in Islamic Studies. With the degree issuing educational institution failing to respond to the court’s inquiries, the court conducted an unofficial examination, asking the defendant questions that anyone knowledgeable about Islam would have easily been able to answer but which the defendant could not. The court declared the MNA’s credentials to be fraudulent, the MNA resigned his position, and a by-election was conducted.43


Displeased with the slow pace of the HEC process, the SC on 5 November 2010 issued an order declaring that anyone had standing to bring a case against MNAs to the SC for quick disposal.44


The work of the human rights cell


One basis for President Musharraf’s suspension of Chief Justice Chaudry on 9 March 2007 was that on his own authority the latter had established the HRC, which was accepting cases brought to it or seeking information on cases publicized in the media. Conversely, Chaudry claimed that the court had standing to consider such cases on its own authority and that such cases fell under an expansive interpretation of Article 184(3), which granted the SC original jurisdiction on matters of public importance or those that challenged fundamental rights.


During Chaudry’s tenure as Chief Justice, the HRC has heard over 10,000 cases with incredible range. These are some highlights: