April 03, 2020
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A One-Man Jury

Sharif threatens to poach on judicial turf, rattling the bench

A One-Man Jury

THE euphoria of his initial months has worn off. But not his combative mood. In February, prime minister Nawaz Sharif won a landslide victory and started flexing his muscles. Among his first acts was the repeal of the controversial Eighth Amendment, which effectively cut the president down to size. Then he sacked the naval chief. Now, he has taken on the country's judiciary, after he pushed through the controversial Anti-Terrorism Act on the eve of the country's 50th Independence day.

The Act, which gives sweeping powers to security forces to combat terrorism, was passed in three hours without any debate. It drew flak from within the ruling party as well as coalition allies like the MQM and Wali Khan's Awami National Party. And heightened the government's problems with the judiciary.

The prime minister said his government had taken the judiciary and his allies into confidence, a statement contradicted by both groups. "Even law minister Khalid Anwer distanced himself from the bill, saying that it was the brainchild of the prime minister," said one senior PML leader, who was present at the parliamentary party meeting in Islamabad. In an interview to a Lahore weekly, Anwer even said that he would have opposed the bill had he been in the Opposition. To Sharif's advantage, a nod of approval came from Army chief Gen. Jehangir Karamat, though he hoped the new law would not be misused. The army has traditionally favoured expansion of its authority in specific situations—during the Karachi operation, it had sought sweeping powers. Those backing the law believe that draconian measures are necessary to combat terrorism across Punjab and Karachi.

Others disagree. "The fact that the Act was rushed through Parliament in just three hours reflects poorly on the country's legislators who have been returned to the House in order to safeguard the rights of the electorate," said I.A. Rahman, director, Human Rights Commission of Pakistan. There are others who even compared this piece of legislation to the Rowlatt Act passed in 1919. Mohammed Ali Jinnah had then resigned from the Imperial Legislative Council in protest against this law, pointing out that "no man's liberty should be taken away for a single minute without a proper judicial inquiry".

Sharif's decision to enforce the Act at all costs really rattled the judiciary. To fight terrorism, judges had been calling for the allocation of more manpower, rather than the creation of a parallel judicial system. When the government announced its intentions to reduce the strength of Supreme Court judges from 17 to 12, the apex court reacted sharply. The chief justice of Pakistan, Syed Sajjad Ali Shah, vehemently opposed the move. He was peeved that instead of accepting his recommendations for filling up vacancies in the higher judiciary, the government was in fact trying to cut the number of judges in the Supreme Court. The Supreme Court Bar Association filed a case against the government, challenging its decision to reduce the number of judges. As hearing in the case started, Sharif realised that the move might backfire and quickly withdrew it.

But on September 29, Sharif once again raised the ante when he said it's the right of Parliament to determine the strength of the Supreme Court. "The strength of the apex court will be more than 12," the he told an English daily. A senior official was also quoted as saying: "I cannot say whether the strength will be 17 or otherwise, but one thing is for sure—it will be more than 12 in any case." Cabinet sources say the issue will be decided when the National Assembly convenes specially in October. They also point out that Sharif is trying to adopt a middle path by determining the strength at around 14 or 15.

But the chief justice is equally determined. While talking to journalists in Karachi, he said the Constitution clearly defined the responsibilities of a Parliament, Executive and the Judiciary. "If all pillars of the state work in accordance with the Constitution, there would be no question of any clash among them," he said.

The chief justice feared that a constitutional crisis might arise if the government did not accept his recommendations regarding the judges' appointment and went to Parliament to fix the number of judges. Though he admitted that Parliament was empowered to frame new laws, the legislation must not clash with other laws and violate the fundamental rights or it could be challenged in a court of law. "It is the responsibility of the judiciary to interpret the laws," he said. Sharif's predecessor, Benazir Bhutto, also had a scrap with the same set of judges, one of the reasons for her downfall.

Sources in Islamabad say Sharif plans to counter any resistance from the judiciary. "No matter what the end result is, October will be a crucial month for the government," said one senior bureaucrat.

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