The Judiciary vs Executive Conflict in Pakistan: A Brief History

Posted on April 19, 2012 in GlobeScope

By Sarmad Lashary:

A state can be defined as an organized political community, living under a government. Constructive relationships between the three arms of government are essential to the effective maintenance of the constitution and the rule of law.

Since the ancient days of Aristotle, political writers have recognized these threefold distribution of governmental functions or powers as (1) the law-making or legislative power, (2) the law-enforcing or executive power and (3) the law-adjudicating or judicial power. Each power is to be exercised by its own department or organ of government.

The rule of law requires not only an independent judiciary, but also legislatures that legislate and executives that abide by the law. However, throughout history, it can be seen that conflicts between the three has been inevitable, especially in the third world states, and the theory of the separation of powers has been nothing more than a theory and an ideal.

It is very rare for one to perform the powers of the other state organ i.e. the judiciary to perform executive powers as it can lead to deadlocks between the state organs. This can further be explained through discussing the case of Pakistan.

The Pakistan case

The conflict between Pakistan’s executive and judicial authorities dates back to the times of first Prime Minister Liaquat Ali Khan when the country was in its initial years. Judiciary has played an fundamental role in the development of country, however, the public opinion remains that the judiciary of Pakistan is more inclined towards the military command and has favoured it often.

Taking recent examples, 2007 was a tough year for Pakistan in many ways. It was going through transformative phase as it was an election year and the two significant political parties of the country like PML-N and PPP were negotiating with the sitting dictator: General (Rtd) Pervez Musharraf. He got himself re-elected for another term from the same parliament, imposed emergency rule and this was questioned by the Supreme Court.

The verdict of the apex court termed emergency of November 2’ 2007 as an ‘unconstitutional’ act. There was also a problem of holding two government offices simultaneously, that is the Presidency and Chief of Army Staff. It was a controversial act, criticized by many journalists and civil society activists.

Moving on, one of the most popular leaders of modern times; Benazir Bhutto was assassinated on December 27, 2007 while addressing a rally at Liaquat Bagh, Rawalpindi. This incident changed the entire political dynamics of the country and her widower; Asif Zardari became the Co-Chairperson of the Pakistan Peoples Party. Later in 2008, PPP also formed the federal government by winning sympathy votes.

Coming towards the 70’s, we discuss the origin of the conflict between two institutions, during the era of Prime Minister; Zulfikar Bhutto who was hanged by Supreme Court with the support of a dictator; General Zia-ul-Haq. That particular trial is known as the ‘murder of a trial’, and that is why the PPP still has the perception that Supreme Court is not reliable and has often been used by the military establishment for their own political agendas. The assassination of Bhutto degraded the image of Supreme Court both nationally and internationally. People view Supreme Court as an ethnocentric and anti-Sindh institution and that perception remains in the minds of the public, even today.

Moreover, this can further be proved by looking at the fact that Supreme Court of Pakistan has given legitimacy to four military dictators during the course of history, allowing them to manipulate constitution by changing it in their own favor.

In February 1985, General Zia-ul-Haq became the President of Pakistan and Khan Mohammed Junejo was the elected as the Prime Minister. 8th Amendment was brought in November in the 1973 Constitution, which affected 19 clauses of the entire constitution, giving sufficient powers to the President, including the right to dissolve the National and Provincial assemblies according to the article 58 (2) b.

This amendment changed the entire fabric of the Pakistani the legal system. It moved from Parliamentary to Presidential regime and the concentration of power was given to the President. Lawyers and judges gave immunity to the President by giving him legal cover till the end.

In May 1988, General Zia dismissed the government of Prime Minister Junejo by using the clause, discussed above. This trend proved to be damaging for the stability of the state as it gave unlimited powers to the president, and the entire parliament was revolving around one man’s decisions and wishes.

Later in October 1988, in Haji Saifullah Khan vs. The Federation of Pakistan’s case, the Supreme Court of Pakistan declared that dissolution of assembly by General Zia as an unconstitutional move, however the court did not revoke the orders as the entire nation was already ready for elections. That decision never got implemented, justice wasn’t done and the former Chief of Army Staff, Zia Ul Haq wasn’t given a fair punishment for his illegal and unconstitutional actions.

Soon after the death of Zia-ul-Haq, elections were held in the country with PPP coming in power with Benazir Bhutto, the daughter of former prime minister Z.A. Bhutto elected as the first woman prime minister of Pakistan.

Following the rising conflicts between Ghulam Ishaq Khan and Bhutto, the former dissolved the parliament and sacked Bhutto on corruption charges, appointing Ghulam Mustafa Jatoi as the interim prime minister. Supreme Court didn’t intervene even then, when the democratic government was unable to complete its legal mandate, and no decision was given by Supreme Court in this regard.

After Nawaz Sharif came into power in 1990, Ghulam Ishaq Khan after three years again dissolved the parliament again on charges of corruption. He announced the elections to be held within a course of few months. The elections were scheduled on July 14 but the Supreme Court declared Khan’s ruling as invalid and reinstated Sharif as the prime minister. However, in April of 1993, the mounting tensions and conflict between the president and prime minister led to the resignations of both.

And once again, when PPP and MQM came in Power in 1993, their government was dissolved by the President Farooq Leghari for the corruption scandals and extra-judicial murders. The judiciary did not come to rescue democracy, this time too.

In 1997, Nawaz Sharif came as the strongest Prime Minister for the second time. Supreme Court appointed five judges who were ignored by Nawaz Sharif and issued contempt of court notice to him. This led to one of the biggest mob attacks on the apex court, staged on November 28, 1997. Thousands of political workers gate crashed into the Supreme Court of Pakistan to protest against the contempt of court hearing.

In October 1999, the military command, headed by General Parvez Musharraf, took charge of the state of affairs and staged a coup against Sharif’s regime. Following the coup, Nawaz Sharif and his party members were arrested for various charges pertaining to hijacking and kidnapping, but were later pardoned by the government and sent to Saudi Arabia on exile. Yet again, Supreme Court did not do anything substantial for the restoration of the democratic government; allowing Musharraf to rule the country for the next three years.

What can be done?

In my view Pakistan needs more democracy and transparency. After the restoration of judiciary and media, a balanced view should be constructed and the Supreme Court shouldn’t be party against anyone, avoiding the perception of favoring anyone as it damages the credibility of the court.

Moreover, media should point out all the corruption scandals, irrespective of their ethnic background or party affiliation. Politicians should be answerable to the courts and to the people of Pakistan. Transparency and effectiveness will come once people will be asking for the key issues. Once good governance prevails, military dictators will be bound to remain in their barracks making democracy flourish.