Judiciary Vs Executive Conflict
The conflict between Pakistan’s executive orders and judicial authorities dates back to the era of Liaquat Ali Khan when the country was in its teething years. Throughout the course of Pakistan’s history the judiciary has played an integral 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.
The time line provides a perspective of the political events that shaped the history of Pakistan and gave rise to various conflicting moments.
The constituent assembly made some amendments in the constitution which resulted in revocation of Malik Ghulam Muhammad’s power as a governor general – rights which had previously empowered him to dismiss Khawaja Nazimuddin’s government.
Following the decision made by the constituent assembly Ghulam Muhammad dissolved it, a move which was contested by Maulvi Tamiz-ud-din, the president of constituent assembly, in Sindh High Court.
Sindh Court’s verdict was in Maulvi Tamiz-ud-din’s favour however Supreme Court of Pakistan reversed the decision. This verdict was announced by Justice Munir.
Iskander Mirza took charge as the fourth governor general of Pakistan and dismissed Muhammad Ali Bogra.
Iskander Mirza, with the assistance of his commander-in-chief Muhammad Ayub Khan, suspended 1956’s constitution and declared the fist martial law in Pakistan – which lasted till 1962. This step involved dissolution of provincial and national assemblies and termination of various ministers.
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The coup and martial law were unconstitutional moves, however were permitted by Justice Munir. His actions played an active role in establishing the famous ‘doctrine of necessity’ – a term which signifies extra-legal actions undertaken by the significant state actors in order to restore law and order in the country.
Bhutto formulated 1973’s constitution which was drafted unanimously by the ruling and opposing parties of the country.
According to the constitution of 1973, the power of decision making was at prime minister’s discretion and president only served as the figure head. Following this article, Bhutto was sworn in as the prime minister of Pakistan, on August 14, 1973.
Various amendments were introduced to the original constitution of 1973 by Bhutto, however the one which instigated uproar from the judicial command of the country entailed the curtailing of authority and jurisdiction of the judiciary.
A strong formation of all the opposing political parties, under the umbrella of Pakistan National Alliance (PNA), led Bhutto to call for early elections.
Elections were held in March and PPP won by a heavy majority, however PNA refused to accept the results and accused PPP of rigging the elections.
The political situation resulted in a strong movement against Bhutto where masses poured out onto the streets and many political leaders were arrested for their rebellion.
On July 5, 1977, the chief of army staff general Zia-ul-Haq, declared the third martial law in Pakistan and suspended the constitution.
Nusrat Bhutto filed a petition in the Supreme Court of Pakistan against the martial law imposed by Zia-ul-Haq, however the court validated the imposition under the ‘Doctrine of necessity’.
Bhutto was executed following charges of corruption and extrajudicial killings.
Bhutto’s case remains one of the most intriguing and controversial political case in the history of Pakistan.
A bench of seven judges was constituted in order to decide the proceeding of ZAB’s case. Three judges acquitted him whereas four judges declared him responsible for ordering extrajudicial murders. However, when Bhutto filed a petition to review his case, all the seven judges rejected it out rightly.
Zia issued the infamous provisional constitutional order of 1980 which granted exclusion of all martial law actions from the jurisdiction of courts. However, Quetta High court declared that the issuance of aforementioned stipulation and order go beyond the parameters of martial law regime.
After this ruling, General Zia issued PCO of 1981 which required all the judges to take new oaths validating that they will work in concurrence with the order. As a result of this 16 judges were fired and three refused to take oath but the rest succumbed under the pressure.
General Zia-ul-Haq became the president and Muhammad Khan Junejo was elected as the prime minister of Pakistan.
The eighth amendment was introduced to 1973’s constitution, which affected 19 clauses of the entire constitution. The constitution gave sufficient power to the president of Pakistan including the authority to dissolve the national assembly, specified as Article 58(2) b.
According to the newly added clause, all the decisions pertaining to the governance and administration of the country were to be made in consensus with the president.
The articles and changes made to the constitution changed the entire system from parliamentary to presidential regime.
General Zia dismissed Junejo’s government on alleged corruption charges of national wealth, exercising article 58(2) b.
General Zia-ul-Haq along with his entourage and American official died in a plane crash.
During the Haji Saifullah Khan vs The Federation of Pakistan’s case, the Supreme court of Pakistan declared that dissolution of assembly by General Zia was an unconstitutional move, however the court did not revoke the orders as the entire nation was already geared up for the elections.
Elections of 1988:
Soon after the death of Zia-ul-Haq, elections were held in the country, which were won by PPP. Benazir Bhutto, the daughter of Zulfiqar Ali Bhutto, was elected as the first woman prime minister of Pakistan.
Following the rising conflicts between Khan and Bhutto, the former dissolved the parliament and sacked Bhutto on corruption charges, appointing Ghulam Mustafa Jatoi as the interim prime minister.
Pakistan Muslim League won the provincial and national elections and Mian Muhammad Nawaz Sharif was elected as the prime minister.
Sharif served as the prime minister till April 19, 1993, however Khan then dissolved the parliament again on charges of corruption by Sharif government and announced the date of 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.
The mounting tensions and conflict between the president and prime minister led to the resignations of both.
After the general elections of 1993, which were boycotted by significant political factions including MQM, PPP won with heavy majority and Bhutto was elected as the prime minister for the second time.
On the alleged charges of corruption and extrajudicial killings, Laghari dismissed Bhutto’s government and announced the date of next elections.
General elections were held on February 3, 1997 and Sharif was elected as the prime minister of Pakistan for the second time.
The thirteenth amendment was introduced to the constitution, which empowered prime minister and gave him the right to appoint the chief of army staff and other important civil and military officials.
The thirteenth amendment repealed the much controversial 58(2) b thereby divesting president’s power.
The Supreme Court of Pakistan ordered Nawaz Sharif to appoint five judges which was ignored by him. Following the alleged misconduct chief justice Sajjad Ali Shah issued a contempt of court order against Sharif and summoned him to the court, after which Sharif agreed to carry out the orders.
One of the biggest mob attacks was staged on November 28, 1997, when thousands of political workers gate crashed into the Supreme Court of Pakistan to protest against the contempt of court hearing.
Asif Ali Zardari was imprisoned following charges pertaining to corruption and money laundering by Sharif government.
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 collaborators were arrested for various charges pertaining to hijacking and kidnapping, but were later pardoned by the government and sent to Saudi Arabia on exile.
Government decided to repeal the 13th and 14th amendments introduced by Sharif in 1973’s constitution.
Referendum was held in 2002 in which major portion of the Pakistanis voted for General Musharraf, resulting in his appointment as the president for the next five years.
Asif Ali Zardari is released from the court and goes on an overseas exile.
Chief Justice Iftikhar Muhammad Chaudhry was suspended by the President Musharraf as he refused to oblige to him by stepping down from his position. Chaudhary was accused of corruption, misdemeanour and stepping out of judicial parameters.
His suspension instigated a political and judicial turmoil over the country – a turmoil which was considered one of the factors in toppling Musharraf’s government.
Chief Justice Iftikhar Muhammad Chaudhary was reinstated in a ruling headed by Justice Khalil-ur-Rehman Ramday.
The ruling was given by a 13 member bench which unanimously decided that the petitions file by President Musharraf were unfounded and faulty.
Musharraf won the presidential election but was challenged by the Supreme Court.
President Musharraf declared a state of emergency and suspended the constitution and parliament simultaneously.
Musharraf also ordered the house arrest of the Chief Justice and the judges responsible for his reinstatement.
Musharraf revoked his previous orders and lifted the emergency on December 15.
General elections were held in Pakistan in which Pakistan People’s Party and Pakistan Muslim League-N won a major chunk of the seats. Both the majority parties formed a coalition government in which Yousuf Raza Gilani was elected as the Prime Minister of Pakistan.
The long march was organised by the lawyers, who sought the restoration of Iftikhar Mohammed Chaudhry as chief justice. The march concluded in Islamabad on June 14, demanding the ouster of President Musharraf.
Ruling coalition (PPP and PML-N) decided, for the third time, to reinstate Chaudhry.
President Musharraf resigned after PPP and PML-N launched impeachment proceedings against him.
PML-N left the coalition, as the government failed to reinstate the chief justice.
Asif Ali Zardari won the presidential election.
The Supreme Court of Pakistan issued a petition to consider NRO 2007 to be null and void which provided immunity to the offenders of law, including money launderers and embezzlers. The ordinance of 2007 was drafted and approved by President Pervez Musharraf.
The court asked the National Accountability Bureau (NAB) to reopen the cases against President Zardari entailing the Swiss scam; allegations which the premier out rightly denies to date.
Mansoor Ijaz wrote an article in Financial Times where he revealed that he delivered a memorandum written by a Pakistani official posted in the US to Admiral Mike Mullen. The revelation created a frenzy of activity in Pakistan bringing the role of then ambassador to the United States, Husain Haqqani, into question.
The memo is speculated to have been written just after Osama bin Laden’s killing in Pakistan and allegedly seeks help from the US to rein in the country’s military and intelligence agencies.
Hussain Haqqani resigns from his position amidst chaos and allegations pertaining to him having drafted the controversial memo.
Nawaz Sharif and his alliances filed a petition in the Supreme Court of Pakistan to further investigate the memo scandal
The Supreme Court of Pakistan declares that the petitions filed by Nawaz Sharif and other political leaders to further investigate the memo scandal, are ‘maintainable’.
Prime Minister, Yousuf Raza Gilani publicly announced that he and his party members will not accept ‘a state within a state’; a remark which instigated a sense of disagreement between the civil and military command within the country.
However, General Kayani reiterated that the army does not aim to ‘stage a coup’ and this is another tactic deployed by the government to digress from memo scandal.
The Supreme Court of Pakistan issued a warning against the government to implement and execute the National Reconciliation Ordinance (NRO) issued in the December of 2009, by writing to the Swiss government.
Prime Minister Yousuf Raza Gilani terminated the secretary defence, Khalid Naeem Lodhi, on alleged misconduct and disciplinary actions.
Moreover, Gilani is issued a contempt of court notice in the NRO implementation case, and is directed to appear before the apex court on January 19. He appoints Barrister Aitzaz Ahsan to represent him in the Supreme Court.
On the other hand, the apex court suspended Babar Awan’s licence to practice in the court and asked for a replacement of Awan with another lawyer to represent President Zardari in the Bhutto reference.
Prime Minister Yousuf Raza Gilani appeared in front of the Supreme Court to defend the contempt of court charges filed against him.
The Supreme Court of Pakistan adjourned the session by postponing the hearing until February 1, 2012. However, the court exempted Gilani from appearing in the next scheduled hearing.
The memogate case took an interesting turn when Ijaz refused to come to Pakistan over security concerns, which instigated Haqqani to file an application to disqualify Ijaz from the proceedings of the case.
Supreme Court of Pakistan announced its verdict on February 2, 2012 signifying that Gilani will be indicted of the charges pertaining to contempt of court. Gilani has been summoned to appear before the court on February 13, 2012, however, he has decided to file an appeal before the appointed date.