The battle between Prime Minister Benazir Bhutto’s government and Chief Justice Sajjad Ali Shah’s Supreme Court rages on. Although it is billed by both sides as a struggle over constitutional principles, the suspicion is that it may have degenerated into a feud between two unbending personalities. Ms Bhutto’s fury is written all over her face and Justice Shah’s posture seems quite ominous.
The discord between Ms Bhutto and Justice Shah is said to have originated in a rather trivial matter. Ms Bhutto wanted to appoint a certain gentleman as a judge of the Sindh High Court. Justice Shah, rightly, thought such a move premature. But Ms Bhutto didn’t give a damn about his point of view and went ahead with the appointment. When Justice Shah expressed a degree of annoyance, Ms Bhutto’s minions went overboard. Justice Shah’s son-in-law was so harassed that he fled his abode in Sindh and took refuge with the CJ in Islamabad. Since then there has been no looking back by either side.
The Supreme Court’s recent judgment has well and truly “fixed” Ms Bhutto’s government. At best, the prime minister stands to lose at least 18 judges appointed without the CJ’s approval. At worst, the CJ’s opinion in a number of important cases pending before the SC could send Ms Bhutto into uncontrollable spasms of fury.
Ms Bhutto has not acted wisely at any stage of this encounter. Even after the judgment was delivered last March, there was an opportunity to defuse the situation through the good offices of President Farooq Leghari. Instead, Ms Bhutto chose to rave and rant in public about the “malafide intentions” of the CJ. Then she clutched at a devious scheme to put the CJ on the spot.
It was decided that the government should file a Presidential Reference challenging the judgment and follow this up immediately by a detailed Review Petition. When the President advised against the Reference, he was overruled. The Reference was subsequently drafted and submitted to the SC without showing it to the President or asking him to sign it. The Review Petition was filed a couple of days later.
The Reference was insulting and offensive in the extreme. It had a mischievous purpose. The CJ returned it just before the Review Petition was submitted on the grounds that it hadn’t been signed by the President.
What was the need for a Reference when a decision on it could not have been binding on the SC’s earlier judgment? Why was the Review Petition submitted after the Reference? What was Ms Bhutto’s devious game-plan and how was it thwarted?
The Reference was submitted before the Review Petition so that the CJ would have to appoint a full 13-member bench to consider its merits. The Review Petition was submitted later so that the government could insist upon its incorporation into the same case and its consideration by the same full bench. In a full bench, Ms Bhutto must have reasoned, the government might be able to count on a majority of the judges to uphold its viewpoint in the Review Petition and reverse the earlier judgment of the 4-member bench headed by Justice Shah. If the Reference hadn’t been sent or if the Review Petition had been submitted before the Reference, the CJ would have been within his rights to nominate a small bench of judges to hear the Review Petition in which its outcome would not have been a foregone conclusion in favour of the government. The Reference was therefore returned before the Review Petition was accepted. Although it has now been re-submitted, the CJ can justifiably establish two separate benches to examine the two proposals on their own separate merits.
Chaudry Aitzaz Ahsan’s beautifully argued and respectful Review Petition stands in sharp contrast to the pathetic and scurrilous Reference drafted by Messrs Rabbani (law minister), Jamil (Attorney-General) and Arif (Law Secretary) to which President Leghari has now been forced to affix his signature. Justice Khosa’s dissenting note, which was prominently highlighted in order to extract judicial and political mileage, has also been rendered pointless. Ms Bhutto has ended up with mud on her face and Justice Shah is laughing all the way to his chambers.
This is most unfortunate. Ms Bhutto represents the apex of representative government. Justice Shah presides over the highest organ of the state. A continuing clash between them can create a dangerous gridlock in the system.
The executive wants to lord over the judiciary. This attitude is, and has always been, against the spirit of the constitution. But times are changing. The judiciary’s quest for greater autonomy, whatever the legal merits of its latest judgment, has wide public support.
Justice Shah’s Supreme Court is now poised, like India’s, to assume an interventionist role in the country’s body politic. The CJ has set up a three member bench, headed by himself, to hear Mr Manzoor Wattoo’s out-of-turn Petition challenging his ouster as chief minister of Punjab last year. “Mehrangate” could be next. And the SC could soon be flooded with writs challenging Ms Bhutto’s bonafide to remain as prime minister till 1998.