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A decade of judicial politics

Ever since it was restored in 2009, the superior judiciary has been a main player in national politics

By Hasnaat Malik
PUBLISHED June 05, 2021
ISLAMABAD:

Pakistan’s superior judiciary has been a key player in national politics since its restoration in March 2009. But when that struggle was taken up as a righteous one by the country’s political parties, few among them would have foreseen how it would impact their own place in national affairs.

When then chief justice Iftikhar Chaudhry was suspended two years prior, all major parties, including Pakistan Muslim League- Nawaz (PML-N), Pakistan Peoples Party (PPP) and Pakistan Tehreek-e-Insaf (PTI), were unanimous in opposition. Many of their workers lost their lives in a bomb attack on May 12 that year that targeted a planned address by the deposed CJP at the Islamabad Bar Association.

On November 3, 2007, Pervez Musharraf promulgated the Provisional Constitutional Order and declared emergency. But even though several of their workers were arrested, the parties continued to raise their voice along the judicial fraternity for the restoration of deposed judges.

Elections were held in February the following year and PPP came to power. Its on again, off again rival and then ally on the judges issue, secured a heavy mandate in Punjab. PPP’s Yousaf Raza Gilani, on the very day he was elected prime minister, ordered an end to the judges’ detention. But while most of the deposed judges would be reinstated through the Naek formula’, PPP was reluctant to reinstate Iftikhar Chaudhry as CJP and a few others.

PML-N remained firm and left the coalition government to launch a movement for Chaudhry and the other remaining deposed judges’ restoration. Punjab chief minister Shehbaz Sharif was disqualified by the SC, led by then CJP Abdul Hameed Dogar and PPP-led federal government imposed governor rule in the province.

The PML-N refused to back down and in March 2009, organised a decisive long march from Lahore to Islamabad with lawyers, PTI and religious parties. Eight successive chief justices – Iftikhar Muhammad Chaudhry, Tassaduq Hussain Jilani, Nasirul Mulk, Jawwad S Khawaja, Anwar Zaheer Jamali, Mian Saqib Nisar, Asif Saeed Khosa and incumbent CJP Gulzar Ahmed – worked for the purpose after the judiciary’s restoration through a mass movement of political parties and lawyers that year.

Nawaz Sharif led the march in person and by the time it was in Gujranwala, the PPP blinked and announced it would restore the judges. Many analysts believe then army chief Ashfaq Pervez Kayani played a key role in the decision. They and senior lawyers also see it as a turning point in the emergence of the superior judiciary as a powerful institution that over the next decade would issue rulings against all government departments and functionaries.

In a twist of irony, this emboldened judiciary would also end up weakening democracy in Pakistan. Instead of giving space to the political leadership, top judges have given them a tough time on different issues. Two prime ministers – PPP’s Gilani and PML-N’s Nawaz– were disqualified by the Supreme Court, as were three dozen MNAs on the basis of fake degrees, dual nationalities and non-disclosure of assets in their nomination papers. A few of them were convicted in contempt matters.

 

Public interest or judicial overreach

A section of legal experts alleges that the apex court exercised its public interest litigation under Article 184 (3) in a few cases for political engineering in the country after restoration of judiciary. Even member Raheel Kamran Sheikh in February 2018 wrote a letter to senior bar fellows, expressing concern over the judicialisation of politics. Judicial activism or overreach was at its peak during the tenure of CJP Chaudhry. Under him, the apex court gave judgments against its own judges, top government functionaries, parliamentarians, armed forces, Election Commission of Pakistan (ECP), several chiefs of two investigation agencies – NAB and FIA – and media-persons.

The confrontation between the PPP-led government and the SC started in December 2009, when the latter issued a judgment declaring the National Reconciliation Ordinance unconstitutional. This would go on for four years. The SC initiated contempt proceedings against both PPP prime ministers in the NRO case and they would appear in court six times. One of them, Gilani, was disqualified and several other top officers, like law secretaries and attorney generals, were ousted in the process as well. The tussle between the SC and executive ended when the PPP-led government finally wrote a letter to Swiss authorities and implemented the court’s judgment. The Swiss government would deny the request to reopen cases against Asif Ali Zardari.

Leaders from political parties also tried to weaponise superior judiciary against each other. When PPP was in power, Nawaz requested the SC to open a probe into Memogate scandal, in which then president Zardari was allegedly involved. PML-N’s Khawaja Asif approached the SC over energy deals signed by the PPP government, which Chaudhry Nisar challenged the appointment of two NAB chairmen. PTI, in turn, did the same to PML-N when the latter was in power.

Even so, a section of lawyers believes the SC under CJP Iftikhar exposed PPP’s corruption and maladministration as he took up issues ranging from CNG prices and rental power projects to irregularities in PIA and Pakistan Steel Mills, among others (interestingly no PPP leader was convicted in any of the mega scams, even though their appearances in court became norm).

The SC under CJP Iftikhar was also involved in election processes, such as voter list preparation. In February 2012, it suspended 28 lawmakers elected in by-polls after the 18th Amendment. They would remain suspended until the passage of the 20th Amendment. The SC would also expedite the 2013 general election by rejecting Dr Tahirul Qadri’s petition against ECP formation.

CJP Iftikhar also addressed returning officers before the 2013 general elections. It is an open secret that PPP’s reputation took some serious damage due to the Supreme Court proceedings, allowing rival PML-N to capitalise on the vaccuum. Incumbent Prime Minister Imran Khan also CJP Iftikhar of being involved in alleged rigging in the 2013 elections.

 

A policy of restraint

After CJP Iftikhar’s retirement in December 2013, his successors adopted a policy of restraint. There was no undue interference in other institutions’ affairs during their tenures. Under CJP Nasirul Mulk, the SC even passed a restraining order for taking any extra constitutional steps during the PTI and Pakistan Awami Tehreek sit-in in 2014. A judicial commission led by CJP Mulk, also rejected PTI’s allegations of rigging in the 2013 elections.

Constitutional petitions against the 18th and 21st amendments were also rejected by the majority of SC judges, but eight of them, for the first time, observed that parliament’s powers to amend the constitution are subject to implied limitations

The 15-month tenure of CJP Anwar Zaheer Jamali was more or less a continuation of the ‘judicial restraint’ policy. During his last days he took up PTI Chief Imran Khan’s petition seeking disqualification of then PM Nawaz in the wake of the Panamagate scandal. The matter could not be decided during his tenure.

That approach changed with Justice Saqib Nisar. In the last year of his tenure, he began a unique judicial activism completely different from what he did as a superior court judge. Justice Nisar had been pro-executive throughout his career but in his last year he became skeptical about the powers of the executive. He was skeptical about the public interest litigation under Article 184 (3) of the constitution but became a strong proponent of exercising suo motu powers. When he became CJP, it was alleged that he was pro-PML-N, even if he did not sit in the larger bench hearing for Panamagate.

During the tenure of the PML-N regime, local government elections were held with the intervention of the Supreme Court. Similarly, CJP Gulzar Ahmed on March 25 restored local governments in Punjab, which were dissolved by PTI in May 2019. More than 90 per cent of local government representatives belonged to the PML-N.

 

Politics and Panama

On April 20, 2017, a majority judgment called for forming a powerful Joint Investigation Team (JIT) to probe into sources of the fund used by the Sharifs to purchase the assets. The issue related to employment of Sharif in his son’s UAE-based company Capital FZE surfaced for the first time in JIT’s final report. Senior lawyers believe that without the assistance of some powerful stakeholders, it was not possible for the JIT to bring the documents related to Capital FZE from the UAE. In view of the same documents, former prime minister was disqualified for a lifetime on July 28 that year and NAB was ordered to file four references against the Sharifs.

The court also ruled that an SC judge will monitor proceedings of accountability courts once NAB filed references. Justice Ijazul Ahsan was the monitoring judge who supervised the trial of the PML-N leaders, but there is no detail as to what were the parameters for supervision. Sharifs’ counsel Khawaja Haris contended in the review petition that the supervision would affect a fair trial as the SC had itself become the complainant, prosecutor and judge.

In its July 28 verdict, the SC directed the accountability court to reach a decision on the four references within six months. The accountability court would go on to receive eight extensions, only to announce a verdict in one, the Avenfield case, right before the 2018 election, prompting legal experts to question this timing

In November 2017, the Islamabad Accountability Court-I judge denied Nawaz’s application to club all three references against him for a joint trial. But in June next year, the SC allowed the accountability court an unrealistic four-week extension when it sought permission. The extension ended just two weeks before the election and when the judgment came out, Nawaz, his daughter Maryam and her husband Capt Safdar were convicted and put behind bars just before the polls. Due to this, there is a strong chance the Sharif will be able to build a case of bias against CJP Nisar to quash all Panamagate proceedings.

A three-judge bench led CJP Nisar also declared Imran Khan as Sadiq and Ameen. However, the same bench disqualified PTI leader Jahangir Khan Tareen.

A bench led by CJP Nisar also disqualified Nawaz as PML-N head in view of the Panamagate judgment, prompting PML-N candidates to contest Senate polls without a party ticket. Three PML-N workers were disqualified in contempt cases and cases were registered against others under the Anti-Terrorism Act for using harsh language against the incumbent CJP.

SC under CJP Nisar also declared the disqualification of lawmakers under Article 62 (1) (f) would be permanent. It also stopped the ECP from issuing notification regarding the success of four newly elected senators due to their allegedly dual nationality.

Contrary to the Election Act 2017, the Supreme Court on June 5, 2018 restored almost all information omitted in the nomination forms by the parliament. Likewise, election matters were fixed before specific benches of the superior courts. When election process was continued, the PML-N leader Hanif Abbasi was also convicted in ephedrine case. Ex CJP Nisar took suo motu notice regarding alleged money laundering through fake accounts in Sindh. The Supreme Court ordered that trial of fake account scam accused including Asif Ali Zardari, Faryal Talpur, Chief Minister Murad Ali Shah would be held in Islamabad.

PML-N lawyers contented that they were not given a level playing field in the last general elections 2018. Later, Islamabad High Court granted relief by suspending the sentence of Nawaz Sharif and Maryam Nawaz in the Avenfield case. However, Supreme Court senior judges raised question on IHC order wherein they were released on bail. Even a larger bench by ex CJP Nisar had given guidelines to high courts for granting bails. Subsequently, Nawaz Sharif was disqualified in Al Azizia reference.

After CJP Nisar’s retirement, Asif Saeed Khosa took oath as CJP in January 2019. Though ex CJP Khosa did not take up matters related political nature, he did not provide relief to opposition parties leaders in graft cases. During his tenure, NAB gave a tough time to opposition parties leaders as they were sent behind bar. The superior courts had set strict parameters of post bail in NAB cases. Even ex CJP Khosa in his speech had pointed that perception of lop-sided accountability must be ended. He also expressed concern on miserable situation of freedom of speech. During his tenure, video of accountability court judge Arshed Malik was came on surface but he left the matter on high court for taking decison on fate of Sharif family trial in Alazizia reference wherein Nawaz Sharif was convicted.

Since December 2019, incumbent CJP Gulzar Ahmed has avoided to give rulings which have repercussions on national politics. He initiated harmless public interest litigation in several matters especially executive measures to control pandamic. CJP views on corruption and maladministration are very strict. However, unlike ex CJPs Iftikhar and Saqib, he did not initiate suo motu proceedings in matters related to political functionaries.

Even PTI government had filed a presidential reference to hold Senate elections through open ballot by simple legislation. During the hearing, opposition parties had expressed serious concern that the court should avoid the adjudication of the political question. However, Supreme Court in its final opinion observed that the Senate elections would be held through secret ballot in view of Article 226 of constitution but the court declared that the secrecy of the ballot is not absolute. The apex court threw the ball in the Election Commission of Pakistan’s (ECP) court, asking it to take all available measures - including the use of latest technology - to guard against corrupt practices during the Senate elections.

 

Judiciary and politics abroad

Barrister Asad Rahim Khan believes that American politics is heavily influenced by the Supreme Court, especially on hot-button issues like immigration and abortion. The Bush v. Gore case even decided the election to the presidency in 2000, with judges ruling exactly along party lines (ie for the party of the president that appointed them). In India, emergency rule was a direct response to the courts resisting Indira Gandhi. Recent years have shown that the Supreme Court’s weakness in dealing with cases like Gujrat and Ayodhya have further emboldened the Hindutva right, he adds.

Asad said that even by foreign standards, however, the tenures of Chief Justices Iftikhar Chaudhry and Saqib Nisar do not find any parallel in terms of activism or expansion of judicial powers.’

The way forward

The incumbent superior judiciary may have been the outcome of a mass movement, but it has been unable to shake the perception that it is under the security establishment’s influence. Two major parties – PPP and PML-N – have been victims of judicial overreach while the third, PTI, has benefited in some ways.

Perhaps it is time for judges to question whether their rulings served to strengthen democracy over the previous decade. They also need to examine the track record of their success in protecting civil liberties and freedom of speech. A question to ponder on is how to change the view that judicial proceedings are manipulated by the establishment in high profile cases. The removal of elected premiers, at least, has not been appreciated.

It is high time that judiciary should take steps get its own house in order. Discretionary powers of CJP should be regulated forthwith as well. Excercise of public interest jurisdiction under Article 184 (3) should be used sparingly. It should not be used in those matters which advantage or disadvantage any political party. This jurisdiction should be used to give relief those whose rights are being usurped by powerful state institutions.