Sharif’s day of judgment

The Chief Justice of Pakistan, Sajjad Ali Shah, has scored an emphatic victory over Prime Minister Nawaz Sharif. In a dramatic climbdown, S...

The Chief Justice of Pakistan, Sajjad Ali Shah, has scored an emphatic victory over Prime Minister Nawaz Sharif. In a dramatic climbdown, Sharif agreed on October 31 to the Chief Justice’s proposal to elevate the five judges recommended by him for the apex bench. In a related move, the National Assembly also sought to limit the number of judges on the Supreme Court bench to 17. The Pakistan Constitution under Article 176 gives the power to determine the number of judges in the Supreme Court to the government of the day. Significantly, while Sharif has complied with the basic demand of the Chief Justice, the notice for a contempt case against Sharif has not been withdrawn by the Chief Justice.

The role played by the army chief and the president in defusing the crisis at the last minute has important ramifications for Sharif’s ability to emerge as the undisputed leader in Pakistan. Sharif’s speech to the nation on television, in which he made it clear that he has withdrawn from the confrontation because of the larger national interest, is a clear reflection of the Punjab strongman’s determination to wage a battle in the future with the Establishment, which was reportedly backing the Chief Justice.

The confrontation between the Chief Justice and the Prime Minister erupted on August 21, when anticipating a directive from Justice Shah to recommend five judges for the Supreme Court, the government issued a presidential order reducing the number of judges from the present 17 to 12. This sparked off a controversy, with Justice Shah claiming that he was merely filling up vacancies in the highest court. The Sharif government, on the other hand, publicly refused to provide the reasoning behind the presidential order. But an outcry within the media as well as Bar Associations throughout the country forced Sharif to back down.

Story continues below this ad

At the heart of the dispute are Sharif’s attempts to take control of the judiciary. And judicial independence has never been a strong factor in Pakistan. Since the restoration of elected governments in Pakistan following the death of General Zia in 1988, the judiciary has come into its own, delivering judgments that have gone against the Establishment. When Nawaz Sharif was dismissed by former President Ghulam Ishaq Khan in 1993 by invoking the 8th Amendment, the Supreme Court overturned the dismissal order. When Benazir Bhutto returned to power in 1993, she sought to bring the judiciary under her control. By appointing ad hoc judges in both the lower courts and the High Courts, the Bhutto government was intent on ensuring the loyalty of individual judges.

In Sharif’s second term, the judiciary has assumed importance for two reasons. Firstly, with Sharif committed to the ehtesaab (accountability) process, the unearthing of corrupt politicians will require a judiciary that will allow for less than fool proof cases to be decided in their favour. Secondly, with the repeal of the 8th Amendment, the Parliament has gained supremacy and, presently, no Constitutional means are available to either the President or the armed forces to dislodge the Sharif government, other than external threats. It leaves the judiciary as the most powerful tool that can appear as a check on the government.

The manner in which Sharif tried to bring the judiciary under control, first by issuing the Presidential Order and then by splitting the Supreme Court into pro- and anti-Shah camps, was indicative of his power compulsions. The threat to impeach the Chief Justice as well as the creation of the Supreme Judicial Council under Article 209 of the Constitution was met with instant retaliation by Shah who ordered speedy hearings of the several corruption cases against Sharif and his close associates.

While Sharif’s supporters will argue that Justice Shah’s moves were part of a new-found judicial activism, many would dispute this claim because the cause for the confrontation was much deeper in its origins. The Chief Justice was the establishment’s bogeyman, used in a manner to bring Sharif down a peg or two in the power equations. A more mature Sharif saw the scales loaded against him in this battle and made a tactical retreat.