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JUDICIARY

JUDICIARY Pakistan inherited a judicial system with limited autonomy With independence, the judicial system became even more subservient to the executive The tendency on the part of the executive branch of the government to disregard the constitution inevitably brought the judiciary and the executive into conflict Still, in the vast majority of cases the judiciary accepted the final authority of the executive, even on constitutional mattersThe effective subordination of the judiciary resulted in a number of landmark decisions by the high courts These started with the decision by General Ghulam Muhammad in 1954 to uphold the dissolution of the First Constituent Assembly The series continued with the acceptance of three martial-law regimes imposed on the country in 1958, 1969, and 1977, and the validation of the dismissal of three prime ministers in 1988, 1990, and 1996It was only in 1993 that the Supreme Court took a position contrary to its tradition Under Chief Justice Nasim Hasan Shah, the Court declared President Ishaq Khan’s dismissal of Prime Minister Mian Nawaz Sharif and the dissolution of the National and Provincial Assemblies to be unconstitutional The prime minister was restored, only to be forced out of office by the military acting in concert with the president



Another general election brought Benazir Bhutto back to power in October 1993 as prime minister She decided to follow in the footsteps of General Zia ul-Haq by ensuring that the judges appointed to the Supreme Courts and the provincial high courts would not be tempted to follow the newly declared independence of the Nasim Hasan Shah court Her government made 45 judicial appointments to the high courts but did not consult the chief justices of the courts as required by the constitution The courts were now totally beholden to the executive, refusing even to grant bail to politicians who were incarcerated for political reasonsA lawyer, Wahabul Khairi, filed a petition in the Supreme Court questioning the appointment of new judges On 20 March 1996 the Supreme Court, meeting under the direction of Chief Justice Sajjad Ali Shah, issued a short judgment declaring that “any appointment to a High Court made without consulting the Chief Justice of that High Court, the Chief Justice of Pakistan, and the Governor of that province would violate the constitution and would, therefore, be invalid In the case of the Supreme Court Judge, consultation with the Chief Justice of Pakistan was mandatory” The government was given 30 days to regularize the appointments of the judges who had not been reviewed and approved by the chief justices The prime minister’s reluctance to implement the court’s decision was one of the charges leveled against her by President Farooq Leghari in his order of 5 November 1996 dismissing herIn keeping with the tradition, the dismissed prime minister challenged the president’s decision in the Supreme Court The Court, after intensive deliberation, upheld the constitutionality of the president’s action

The conflict between the judiciary and the executive did not disappear after the induction of Mian Nawaz Sharif as prime minister By the fall of 1997, the differences between the two pillars of government created a constitutional crisis The issue once again was the appointment of judges to the Supreme Court It was finally resolved with the resignation of President Farooq Leghari, who had sided with the chief justice, and the subsequent removal of Chief Justice Sajjad Ali Shah The judiciary again ruled in favor of the executive in 2000 when the deposed Prime Minister Nawaz Sharif took his case to the Supreme Court against his removal by General Pervez Musharraf The court, while ruling in favor of the military takeover, ordered the military to hold elections no later than three years after its intervention See also JUDGES’ CASE; SHARIAT COURT

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