Constitutional Chameleons
By Ijaz Hussain

aThe restoration of judges deposed following the imposition of Emergency rule has emerged as a major issue. Nawaz Sharif and Benazir Bhutto have also been making statements on the matter. The PMLN leader has made it one of the conditions for his party’s participation in the general election and has shown readiness to start a movement for the restoration of these judges ... The PPP chairperson initially declared that following the restoration of the Constitution, all deposed judges would be automatically reinstated. However, subsequently she proposed that the question be left to the next Parliament though at the same time she held that personalities do not matter. What do we make of these statements?
First, we must examine the track record of these two leaders with respect to the judiciary during their tenures as Pakistan’s prime ministers. As far as Bhutto is concerned, her behavior during her second term appeared as if she never believed in the independence of the judiciary. During the 1993 general elections, the PPP manifesto envisaged judicial reforms by laying down objective criteria for the appointment of judges. One would have thought that she was motivated by a zeal for reform because of the partisan role that the judiciary had played in sending her father to the gallows. However, this manifesto turned out to be no more than an election gimmick because when it came to implementation, she balked and instead appointed PPP sympathizers instead of independent-minded judges.
On assuming office, Bhutto appointed Saad Saood Jan as the Chief Justice but only in an acting capacity in order to keep him under pressure. Jan was to recommend two names for direct appointment and two retired High Court judges to fill the Supreme Court vacancies. Instead of letting him do so independently, the Bhutto government gave him a list that included the names of a senior member of the PPP and a colleague of Farooq Leghari from his civil service days, while the remaining two candidates were equally incompetent. Jan rejected all of them because he did not deem them suitable. He instead recommended names that he deemed worthy of those positions. Outraged by his audacity, the Bhutto government removed Jan as the CJP and replaced him with Sajjad Ali Shah from Sindh. The new appointment was utterly contrary to the time-hallowed principle and practice of seniority, as Shah was junior to Jan and two other judges.
When it came to high courts, Bhutto also tried to pack them with her own favorites. The first step in this direction was the replacement of the CJs of the Lahore and Sindh High Courts with judges sympathetic to the PPP. To put them under pressure, they were denied permanent positions. The CJ of the Peshawar High Court was already working in an acting capacity. In this backdrop, the stage was set for the Bhutto government to make appointments of its own choice. Twenty judges were appointed to the Lahore High Court out of which, according to one authority, only six or seven were deserving, three or four marginal cases, while the remaining appointments were simply outrageous.
The treatment with the Sindh High Court was no different because out of the nine judges appointed to it, most of them were either political appointees or favorites of the PPP bosses. As far as the SC is concerned, it was packed with ad hoc judges. At one time, there were as many as seven ad hoc against ten permanent judges. However, since two permanent judges were acting CJs of high courts, one could say that the number of permanent and ad hoc judges was nearly equal.
These appointments were challenged in the SC that decided against the Bhutto government in what has come to be known as the Judges’ Judgment. Bhutto was terribly upset by the verdict because by virtue of it, the SC restrained her from making arbitrary appointments and those already made were to be re-opened for review. She reacted by publicly criticizing the judiciary and even ridiculing the judgment. She went to the extent of reportedly pressuring the CJP by making the police raid on the residence of his daughter in order to involve his son-in-law in a corruption case.
If Bhutto’s treatment of the judiciary was shameful, that of Nawaz Sharif was even worse. Consider the following. In August 1997, the CJP recommended five high court judges for elevation to the SC. Under the Judges’ Judgment, the CJP’s recommendations were binding on the executive and in case the latter disagreed, it could record reasons for it that rendered the matter justiciable. Sharif was not agreeable to the CJP’s recommendations because he considered two of the recommendees hostile to his government. His government consequently rejected the recommendations. However, it failed to furnish any reason in writing for doing so. To defeat the recommendations, the Sharif government notified a reduction in the number of the SC judges from seventeen to twelve. However, it failed to achieve its objective because President Leghari decided to side with the CJP rather than with Sharif.
The incident that, however, became the flagship of the Sharif government’s shabby treatment of the judiciary was the assault that the latter mounted on the SC. The incident owes its genesis to the suspension of the 14th Amendment to the Constitution by a three-member bench headed by the CJP. Sharif, members of his cabinet and some parliamentarians of his party strongly reacted to it. Sharif called the order of suspension “illegal” and “unconstitutional” and parliamentarians made speeches in which they censured the CJP. This led to contempt of court proceedings against Sharif and the parliamentarians. Incensed, Sharif’s brother Shahbaz Sharif, then Chief Minister of the Punjab, and some ministers of Sharif’s government stormed the SC building in what must be one of the most disgraceful chapters in Pakistan’s history.
It is obvious that Bhutto and Sharif never cared about an independent judiciary in the past. They may not do so in the future either if they come to power. If Sharif looks more progressive than Bhutto at the moment on the issue, the explanation is to be found in the current political situation rather than a genuine respect for the judiciary. For example, Sharif is doing so because he wants to rub Musharraf, who grabbed power from him, the wrong way and the best way to do so is to attack his Achilles heel, i.e. the judges that had to be sent home to validate his presidential election victory. Besides, Sharif possibly hopes that if by quirk of fate the judges are restored, they would decide against Musharraf’s eligibility as a presidential candidate. He may also be calculating that the restored judges will strike down the NRO and thus take care of Bhutto.

Similarly, Bhutto wants the matter to be placed before the next Parliament because she does not want to offend the powers that be by taking a principled stand on the issue. She knows that it is well nigh impossible to get a decision favorable to the deposed judges from the next Parliament. Her sincerity in the matter is also doubtful because she has returned to Pakistan under a deal with Musharraf that was cobbled by the US. She knows that a pro-judiciary stance would amount to showing a red rag to Musharraf. That will not go down well with the US as well because it too does not want restoration of the deposed judges as they would be a threat to Musharraf. Finally, Benazir cannot afford to favor the restoration of the deposed judges because if she does, there is a danger that incumbent judges may not uphold the NRO.
(The writer is a former dean of social sciences at the Quaid-i-Azam University)

Editor: Akhtar M. Faruqui
2004 . All Rights Reserved.