The Round Table

The Commonwealth Journal of International Affairs

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Judicial activism and the evolution of Pakistan’s

culture of power

Ilhan Niaz

To cite this article: Ilhan Niaz (2020): Judicial activism and the evolution of Pakistan’s culture of
power, The Round Table, DOI: 10.1080/00358533.2020.1717091

To link to this article: https://doi.org/10.1080/00358533.2020.1717091

Published online: 24 Jan 2020.

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THE ROUND TABLE
https://doi.org/10.1080/00358533.2020.1717091

Judicial activism and the evolution of Pakistan’s culture of

power
Ilhan Niaz
Department of History, Quaid-i-Azam University, Islamabad, Pakistan

ABSTRACT KEYWORDS
The emergence of an assertive judiciary in Pakistan is an apparently Pakistan; history; judiciary;
anomalous development given the broader trajectory of the col- law; governance; public
lapse of institutional autonomy in the civilian sphere of governance. policy
This paper examines the changes since 2005 by placing them in
a broader historical context and argues that a Pakistani variant of
a rule of justice tradition that employs the metaphor of the colonial
rule of law tradition is emerging. Under this hybrid, the formal
apparatus of colonial constitutionalism is employed using expan-
sive, almost despotic, discretion by the superior judiciary, in order
to hold the executive to the account. The judiciary draws popular
support from such exercises as the spectacle created resonates with
the public, and thus support is the fuel upon which judicial inde-
pendence rests.

Introduction: the rule of justice and the rule of law

In Plutarch’s biographical history of Athens, Theseus the hero and Solon of Athens help
illustrate the tension between the rule of justice and the rule of law. Theseus was a heroic
figure who detested oppression and used his strength to inflict punishment on the unjust.
As the embodiment of righteous wrath, Theseus could respond to injustice as if it were
a part of nature. Solon, in contrast, did not trust himself with absolute power and believed
that by means of rational laws and institutions, communities could contain
arbitrariness.1 Called to mediate a dispute between rival parties at Athens, Solon rejected
the office of tyrant and preferred to act as a magistrate. Solon tried to bind the parties via
written agreement to a constitution that would guarantee roughly equal civil rights for all
citizens while investing the propertied with more representation and balancing the whole
lot by allowing for an independent aristocratic judicial council.2 From Solon’s perspective
no citizen, however ‘good’, ought to be granted arbitrary power over another citizen’s life,
property or reputation, and no party, however ‘bad’, ought to be denied the right to
defend itself before popular and judicial forums.3 The divergence between Theseus and
Solon captures the essential difference between the rule of justice and the rule of law. The
former is morally optimistic, believing that if only good people have power they will be
able to exercise it justly. The latter is pessimistic in its understanding that, without
external constraints, those in authority will gravitate towards arbitrariness that will

CONTACT Ilhan Niaz in1980@qau.edu.pk

© 2020 The Round Table Ltd
2 I. NIAZ

warp both those who wield it and those who experience its exercise. Historically, the rule
of justice prevailed and even in the West, classical theories and modernisation notwith-
standing, it was only in the 1990s, with the collapse of communism in Europe, that the
rule of law gained the upper hand.
In South Asia British authority succeeded that of the Mughal Empire. The Mughal
emperors were heads of the entire administration and sought to project themselves as the
source of justice for their subjects.4 One example with particular resonance is Emperor
Jahangir’s (r. 1605–1628) Bell of Justice. The emperor wanted his subjects to feel that he
was always accessible and so a bell was placed in the palace that could be rung by those in
need of an imperial audience. That this was a symbolic, if not farcical, exercise is
indicated by the fact that in an empire of 100 million subjects, spread over most of
present-day South Asia, only a few could have availed themselves of the emperor’s
benevolence. That the emperor was often on tour, taking months to travel with an
encampment the size of a city, meant he would not always be able to hear the Bell of
Justice. The last of the great Mughal rulers, Emperor Aurungzeb (r. 1658–1707) took
particular pride in the administration of justice, although moral scruples never deterred
him from neutralising opposition, whether it entailed overthrowing and confining his
father or murdering his brothers. Earlier Muslim dynastic regimes, like the Delhi
Sultanate (1206–1526), had personalised and arbitrary approaches to the dispensation
of justice comparable to the Mughals. To go even further back, Kautilya’s Arthashastra
reveals that in South Asia before the Muslim conquest, states upheld the rule of justice
mediated by and through an arbitrary ruler and his servants.5 These servants, organised
into different hierarchies, also dispensed justice on behalf of the emperor while perform-
ing general administrative and taxation duties.
During the British Raj, the imperial elite, drawing upon the historical experience of
Britain, introduced elements of the rule of law into South Asia. These efforts were only
partially successful since the administrative legacy of earlier empires meant that the type
of rule of law that prevailed in Britain could not be transplanted wholesale. Nevertheless,
the Raj projected the rule of law in four distinct ways. Firstly, the rule of law was part of
the governing philosophy of the Raj and propagated as a feature of British rule that
distinguished it from personalised despotisms of earlier regimes. Gradually, an Indian
elite emerged that leveraged this thinking to demand greater public space with constitu-
tionalist national leaders rising to prominence by the early 1900s. Secondly, at the
constitutional level, Acts of the British Parliament that were periodically renewed or
superseded governed British India. This colonial constitution had first taken effect in
1773 with the Regulating Act and would continue to evolve until the 1935 Government of
India Act. Colonial constitutionalism introduced the subjection of the supreme executive
to earthly accountability and oversight, civilian supremacy over the military, the creation
of a judiciary autonomous of the executive at the higher levels, and the extension of the
representative principle to Indian subjects.
Thirdly, at the operational level, the British Indian administration and judiciary
evolved into meritocracies with pay and service conditions safeguarded from arbitrary
changes by the ruler. Administrative hierarchies thus graduated from being instruments
of the executive to being autonomous institutions. Fourthly, at the procedural level, the
Raj worked out in detail the rules, regulations, and steps, administrators needed to take to
carry out their duties. These codes and manuals still serve as the legal backbone of
 THE ROUND TABLE 3

Pakistan’s otherwise dysfunctional bureaucracies and autonomous/semi-government

bodies furnishing a baseline against which state functionaries can be judged. Taken
together, the rule of law in South Asia was a colonial transplant that brought with it
constitutionalism, representation, civilian supremacy, meritocracy, an independent judi-
ciary, autonomous institutions, and proceduralism. At independence in 1947 the chal-
lenge for the leaders of India and Pakistan, in view of the strong constitutionalist
credentials of both the Indian National Congress (INC) and the All-India Muslim
League (AIML), was to retain the rule of law inherited from the Raj, while making
their states more responsive to the democratic and developmental aspirations of their
people. While India’s leaders would succeed on the first count while bungling the latter,
Pakistan’s leaders would fail to secure the rule of law, while also proving unable to deliver
on development.

The destruction of the rule of law in Pakistan

The destruction of the colonial rule of law tradition inherited by Pakistan in 1947
unfolded at different levels and in key episodes. The first, and ultimately most
ominous, break came at the epistemological level in March 1949 when the
Constituent Assembly, turning its back on Mohammad Ali Jinnah’s advice (delivered
to that assembly in his presidential address on 11 August 1947 in his capacity as
Governor General designate), passed the Objectives Resolution. This resolution
committed the Constituent Assembly to framing a constitution in accordance with
Islamic traditions and establishing a system in Pakistan whereby Muslims would be
enabled to live according to those traditions. The sovereignty of the state was derived
from both Allah and the will of the people with the balance left undefined. The
political class’s pandering to the communal sentiment of the Muslim majority was
a significant factor in the rift between a depleted and fractious Muslim League
government and an increasingly coherent governing corporation of civil, military,
and judicial officials.6 Lahore’s descent into communal violence directed against the
Ahmedi community in March 1953 set the stage for the first successful coup in
Pakistan’s history. Ghulam Muhammad (the Governor General), with the help of the
army, used this episode to impose martial law in Lahore, and dismiss the Punjab and
federal governments.7
Between April 1953 and March 1969 Pakistan would be ruled by an administration
dominated by senior civil servants and military officers committed to modernisation
within an essentially secular framework. Lacking democratic legitimacy, however, the
administration was unable to repudiate the Objectives Resolution, and in March 1956
Pakistan was proclaimed the world’s first Islamic Republic.
In the 1970s, the restoration of democracy brought about a swift communalisation of
politics as the ‘Islamic Socialist’ PPP embarked upon a policy of appeasing the religious
right through a declaration via the Second Amendment to the 1973 Constitution that
Ahmedis were non-Muslims. Other measures, such as prohibition and the closure of un-
Islamic forms of entertainment, followed towards the end of the PPP’s time in power.
General Zia-ul Haq would greatly accelerate this process and go for Islamisation in
Pakistan, leaving in his wake a theo-centric polity in which questions of public impor-
tance were held hostage by religious sentiments.
4 I. NIAZ

Between 1988 and 1999 the PPP would avoid engaging with matters likely to provoke
such sentiments while the coalition of pro-Zia forces led by the PML-N actively sought to
complete the transition to a theocratic state through constitutional amendment, a process
that was disrupted by General Musharraf’s coup. Musharraf, while Pakistan’s first
epistemologically modern ruler since 1972, could not roll back the Zia-era laws and
restrictions although, as indicated below, his reforms did have some impact in terms of
providing Pakistan an alternative to descent into theocratic medievalism consecrated
through the democratic process.
In Pakistan, civilian supremacy, without which the rule of law cannot effectively
subsist, collapsed between 1948 and 1958. Soon after independence, the Pakistani
government decided to rapidly replace British officers in the armed forces with
Pakistan nationals and fill vacancies quickly. The prime minister, as chairman of the
Defence Committee of the Cabinet, steered this process. Some officers who were upset
about being left behind or did not get the assignments they thought they deserved, ended
up conspiring to overthrow the government.8 Although the Rawalpindi Conspiracy, as it
became known, was detected and foiled, it represented the first military coup attempt in
Pakistan’s history. General Ayub Khan, as the first Pakistani national to serve as army
chief (from January 1951), played politics astutely, by loyally serving governors general
Ghulam Mohammad and Iskander Mirza in exchange for political office and extensions
in tenure, only to overthrow the latter when, in October 1958, he abrogated the con-
stitution, declared martial law, and became dependent on the army in a desperate bid to
stay in power amidst mounting unpopularity. On 27 October Ayub Khan overthrew
Iskander Mirza, becoming Pakistan’s first military ruler. Since then, although the armed
forces have periodically retreated from government, their influence in foreign affairs,
defence, internal security, and finance, has remained preponderant. The civil-military
imbalance has had the effect of rendering the armed forces practically immune to the will
of the government, while rendering the government practically defenceless when faced
with the will of the armed forces. Pakistan’s misfortune, in this respect, is that having
inherited a strong tradition of civilian supremacy political leaders and bureaucrats
squandered their inheritance, driven, in part, by exigent circumstances, and, on key
occasions, by the prospect of short-term political gains.
The executive’s cooption of the judiciary was another key break with the colonial legacy
even though, between 1947 and 1953, judicial autonomy and neutrality remained intact. It
was the elevation of Mohammad Munir as Chief Justice of Pakistan (CJP), in 1954, that led
the Supreme Court to become a partner of the civilian and military officers headed by the
governor general. This collaboration led to specific judgements that upheld the governor
general’s unconstitutional decision to dismiss the first Constituent Assembly (1954), retro-
spectively granted the governor general the authority to approve/validate laws passed by the
defunct assembly (1955), and elevated the coups of October 1958 to the status of
a revolution, ruling, in that respect, that the new regime had by virtue of its successful
overthrow of the constitution become the new law creating authority.9 Collectively, these
judgements represented the ‘Doctrine of Necessity’ whereby successful extra-constitutional
acts by the executive or even military coups would be extended constitutional cover by the
Supreme Court. Even civilian executives, like Zulfiqar Ali Bhutto or Nawaz Sharif, came to
expect subservience from the courts and reacted sharply to pretensions of autonomy.10
Stacking the courts with favourites, manipulating laws concerning judicial appointments
 THE ROUND TABLE 5

via constitutional amendment, or outright mob tactics on one occasion, were some tools
civilian leaders employed. Although the military never actually mobbed the Supreme
Court, it took advantage of the cover granted to it to carry out purges of the judicial cadres
by requiring judges to swear a fresh oath under provisional constitutional orders.
The breakdown of the rule of law at the administrative level was the last to materialise
and occurred in the 1970s as a direct consequence of the policies implemented by the first
PPP government. These reforms diminished the autonomy and prestige of the services
while expanding the role of the government in the economy through nationalisation of
commerce and industry. In this way, Zulfiqar Ali Bhutto hoped his party would be able to
have a politically controlled government and seize the wealth of the country for patronage
purposes. In relation to the administrative services, MLR-114 (Dismissal from Service
Regulation) was employed to sack thousands of civil servants. The Lateral Entry Scheme
allowed for the induction of thousands of political appointees into the federal and provin-
cial bureaucracies. The public service commissions were reduced to examination organising
bodies while specialised separate training programmes for different services were replaced
by the Common Training Programme (CTP). The pay and service conditions were
consciously degraded with the aim of rendering civil servants dependent on official
perks, privileges, and other kinds of legalised and illegal graft. The phenomenal growth
in maladministration that followed led to a situation in which civil servants either did
nothing or the more ambitious did things arbitrarily and with political backing regardless of
the merits.
The second tack was the replacement of the relatively disciplined and autonomous
planning regime of the 1950s and 1960s with a whimsical ad hoc approach to the society
and economy. The five-year planning process was done away with, the government
imposed a confiscatory nationalisation policy that caused private investment to collapse,
the public sector was used to generate jobs, and populist policies were introduced
demanding high levels of government spending that led to alarming deficits and infla-
tionary pressure. The management of the economy was placed under the control of
a bureaucracy that was pulverised by purges and politicisation. Taken together, the first
PPP government presided over the liquidation of the rule of law in the bureaucracy and
the economy leaving behind an uncompetitive, patrimonial, and corrupt state unable to
maintain even procedural regularity and professionalism.
The first fifty years of Pakistan saw the erosion of the rule of law at the epistemological,
constitutional, judicial, and administrative levels. General Musharraf’s coup represented
the reassertion of a familiar pattern and followed a well-tested script. Nevertheless,
Musharraf became the first military ruler to be overthrown by a judiciary-led movement
that rewrote some of the rules of the game in favour of civilian actors and institutions.
After decades of submitting to the will of military strongmen and civilian demagogues,
Pakistan’s judiciary embraced a genuinely popular form of activism that saw its political
stock skyrocket. The Musharraf regime proved to be the unwitting instigator of a new
phase in Pakistan’s judicial history.

Musharraf’s liberal autocracy

When General Pervez Musharraf seized power in October 1999, Pakistan had only one
television channel and one radio broadcaster capable of reaching a national audience.
6 I. NIAZ

Beyond a small number of cable channels available in upscale areas of major cities, which
were subject to scrambling, censorship or bootlegging, the only reliable option for access
to the international media was through pricey satellite dishes and decoders. The landline
network, a state monopoly, provided the only reliable means of telephonic connectivity
and was strictly rationed. In upscale urban areas, the telephone network also provided
patchy internet access through dial-up services provided against pre-paid packages. The
mobile phone had yet to make an appearance outside of elite circles, with satellite phones
employed by private companies and a wireless network maintained by government
departments. Press and publications were subject to censorship through access to
officially managed newsprint quotas and patronage through government advertisements
in addition to more thuggish tactics.11 Pakistan’s higher education system was woefully
underdeveloped with few Ph.D.-qualified research and teaching staff at public sector
universities, which, in turn, collectively produced 50–100 Ph.Ds. per year for a nation of
140 million people (1998).12 Poverty rates were growing, the purchasing power of the
middleclass was negligible, consumer credit was practically unknown, public debt was
becoming unmanageable and corrupt nationalised banks and state enterprises routinely
made bad economic decisions, such as loaning money to cronies.13 The 1990s had been
economically punishing due to sanctions, mismanagement, political instability, and
rampant corruption, with a near fatal blow to Pakistan’s professional and working classes
being delivered in 1998 when, after the nuclear tests, the government froze $11.6 billion
worth of foreign exchange held in 600,000 small accounts. Women were barely visible in
the public arena and in spite of having had the Muslim world’s first female head of
government (Benazir Bhutto: 1988–90, 1993–96), Zia’s legacy dominated the aesthetics
and substance of life in Pakistan.
In March 2007, on the eve of Musharraf’s showdown with the Chief Justice of
Pakistan, much had changed. Pakistan had scores of local and international channels
with news and views broadcast 24/7 to a mass audience in the urban areas connected
through a boom in cable that saw eight million Pakistani households gain access (often
for the first time) to television by 2008–2009.14 From 300,000 subscribers in 1999,
80 million Pakistanis had mobile phone connections by January 2008, or one connection
for every two people, thereby reducing dependence on the landline network with major
telecoms competing feverishly for a market share.15 The newsprint quota was abolished
and the growth of the private sector, particularly banking, telecom, internet, and retail,
made the media less dependent on government advertising.16 As many of the electronic
media channels were linked through ownership to newspapers, the contents of these
publications could now reach illiterate and semi-literate audiences.17
Musharraf poured resources into the higher education sector, so that by 2007–2008,
some 8000 Ph.D.-qualified faculty and researchers were working in Pakistan (up from
1500 in 2000), the number of public sector universities/degree awarding institutions
increased from 37 to 59, while the private sector grew from 22 to 55 universities during
the same timeframe (university students would actively participate in the pro-judiciary
movement).18 The expansion of higher education was matched by the emergence of
a middleclass consumer-culture while the liberalisation of banking, telecom, and the
export/import regime reshaped the corporate landscape.19 By 2007 Foreign Direct
Investment (FDI) had reached US$ 3.2 billion per year, exports had doubled from
1999, imports had tripled, and consumer financing for everything from cars to summer
 THE ROUND TABLE 7

vacations became available.20 Pakistan’s major cities experienced construction booms as

malls, coffee shops, retail outlets, and cinemas started to go up.21 Accompanying these
trends was the revival of Pakistani pop culture, with arts, music, and even cinema
showing signs of life after decades of stagnation. A noticeable liberalisation of
Pakistan’s public spaces began to occur as a consequence of the Musharraf regime’s
laissez faire attitude towards culture. More importantly than aesthetics was the expansion
of the social sector about which, regrettably, there are no reliable estimates even with
plenty of observable growth.22
Due in part to the mandatory quotas in representative bodies from local governments
to the national assembly, women entered public life in unprecedented numbers and
actually reversed the decline in women’s representation seen during the 1990s when
successive PML-N and PPP governments, the latter’s female prime minister notwith-
standing, allowed quotas approved in 1985 to lapse.23 In October 1999, only 6 out of 217
members of the National Assembly were women, but, as a result of Musharraf’s reforms,
this increased to 74 out of 342 (13 elected from general seats, 61 on reserved seats).24 In
local governments a 33% quota for women was introduced in 2001 and over 36,000 were
elected as councilors.25 And while the regime had only limited success in terms of rolling
back the legal structure of Zia’s Islamisation, Musharraf was Pakistan’s first ruler since
1973 who did not claim divine sanction and, even before the US-led War on Terror,
chided religious leaders for their failure to meet the challenges of the modern world,
eventually casting himself as a champion of ‘enlightened moderation.’26 Musharraf’s
policies were motivated in part by a desire to modernise Pakistan and they were also
a savvy political calculation to secure greater international legitimacy for his regime.
These policies were also facilitated by the realignment of Pakistan-US relations after
September 2001, which paved the way for the lifting of sanctions, the resumption of aid,
debt relief, and greater market access.
The collective impact of these policies was that Pakistan in March 2007 was in several
ways different from 1999. Musharraf’s liberal autocracy needed the institutional backing
of the armed forces but also depended on him being more popular than his major
political opponents. The management of the public space was central to Musharraf’s
survival and the support of the military was conditional. The flaws in the regime’s
approach were its poor record on governance, its over-dependence on foreign consul-
tants and donors for advice, and its ill-considered move to try and establish direct
military control over the administration through a controversial local government
reform plan generously patronised by international aid agencies. As Pakistanis became
more aware, connected, vocal, and prosperous, frustration with maladministration and
bureaucratic rot – two fronts where the military regime did not even know what
questions needed to be asked – grew. Historically, the judiciary had helped the executive
against the public interest and even against the letter and spirit of the Constitution.
Musharraf had generously improved the pay of the judiciary and expected that senior
judges would be grateful and obedient. What Musharraf did not realise was that his
reforms had produced a national clamour for better governance and justice and there was
genuine outrage at the non-responsiveness of the executive to the aspirations and needs
of the citizens. After 2005, the judiciary realigned itself with this popular outrage and
turned itself into the mechanism whereby it could be channelled against the executive.
8 I. NIAZ

The judiciary and people of Pakistan

Iftikhar Chaudhry’s elevation to Chief Justice of Pakistan (CJP) on 30 June 2005 was
a routine affair. By no means a distinguished jurist, the new CJP had adroitly navigated
the minefield of executive-judiciary relations in the 1990s and, after Musharraf’s coup,
swore an oath on the Provisional Constitutional Order of January 2000. Iftikhar
Chaudhry had validated the military regime’s reengineering of the Constitution into
a presidential system and legitimised Musharraf’s continuation as army chief while he
remained president. Within days of assuming office, however, the CJP embarked upon
a campaign of judicial atonement.
These steps included declaring the NWFP’s Hasba Bill of 2005 unconstitutional,
accepting a petition from victims of the Margalla Towers’ collapse, and taking notice of
the proliferation of unregulated private religious schools.27 In October 2005, the CJP
directed the local administration of Faisalabad to submit a report about the assets of
a leading politician who was trying to get elected from a seat reserved for peasant
farmers.28 In February 2006, the CJP overturned the decision of the Capital
Development Authority (CDA) to convert one of Islamabad’s public parks into a mini-
golf course and ordered that the officials responsible be disciplined.29 In April 2006, the
Supreme Court of Pakistan (SCP) took suo moto (under Article 184–3 of the
Constitution)30 notice of the chopping down of trees at Jahangir Park in Karachi for
the purpose of building a car park, which caused the local government to drop the
project.31
The press, the electronic media, civil society, and the public, were captivated by the
spectacle of a CJP wielding the whip of justice to check, humiliate, and punish, members
of the civilian bureaucracy and local governments. While some quibbled over the
philosophical and legal implications of the original jurisdiction powers of the SCP
under the Constitution, the CJP interpreted these powers broadly and empowered the
court to take notice of anything in the public interest. The CJP had tapped into
a profound longing amongst the people of Pakistan to see the overbearing, incompetent,
and often corrupt, members of officialdom and the political elite, get a dose of the just
exercise of arbitrary power.
The Musharraf regime would probably have tolerated the favourable public response
to the SCP’s new policy had it remained confined to targeting the civilian bureaucracy, of
which Musharraf had a particularly dim view. Musharraf regarded Pakistan’s civil
servants as ‘feudal’ and had, to the applause of the international donor community,
cynically introduced elected local governments with indirectly elected mayors/chairper-
sons manoeuvred into place by the military (who were often actually ‘feudal’!) with direct
control over the civil service and police.32 The military and a more activist judiciary could
peacefully coexist and thrash the civil servants and political leaders to domestic and
international acclaim. The trouble, as it turned out, was that as the judiciary gained
confidence and popularity it started to direct its wrath towards questionable decisions
taken by the Musharraf regime.
The first major decision taken by the SCP that shook the regime was about the
privatisation of the Pakistan Steel Mills (PSM).33 Founded in the 1970s as a model
project of industrial development, PSM became synonymous with corruption, malad-
ministration, labour indiscipline, and wastage of public funds.34 Musharraf, and his
 THE ROUND TABLE 9

prime minister, Shaukat Aziz, wanted to offload PSM and were prepared to offer
significant concessions to private buyers.35 The regime bulldozed internal opposition
and offered to sell PSM for a fraction of the nominal price of its assets.36 The
privatisation was challenged and the SCP invoked its original jurisdiction on the
matter.37 In spite of executive pressure, on 23 June 2006, the SCP ruled that, since
the government had failed to follow the proper legal process for privatisation, the Sale
Purchase Agreement of April 2006 had no legal standing and stood invalidated.38 The
SCP invoked its original jurisdiction with reference to bonded labour in Sindh,
polluting industries in the capital, land allocations to government officials in Gwadar
(Balochistan), and restrained federal authorities from freezing the accounts of persons
suspected of subversive activity.39 Activating the human rights cell of the SCP, the CJP
ordered the government to produce ‘missing persons’ and/or trace their whereabouts,
raising uncomfortable questions about the use of illegal detention.40 By February 2007,
the SCP was taking notice of human rights abuses allegedly perpetrated by, or on the
behalf of, the military.41 The SCP was regularly stepping on Musharraf’s toes but its
actions were popular and had turned Iftikhar Chaudhry into a folk hero, a Pakistani
Theseus meting out justice to the powerful in a republic long dominated by the
wicked.
Weary of the CJP’s growing propensity to get in the way, Musharraf decided to strike
back. On 9 March 2007, the CJP was suspended and a complaint was lodged before the
Supreme Judicial Council by Musharraf alleging that Iftikhar Chaudhry had used his
office to secure illegal appointments for his son, Arsalan Iftikhar.42 Given Pakistan’s
history of judicial purges, Musharraf did not seem to think that he would provoke
a furious public response which would trigger his downfall. In response to Musharraf’s
attempt to oust Iftikhar Chaudhry a broad coalition of lawyers, activists, journalists and
political leaders threw their support behind the Supreme Court although not everyone
was convinced that the charges levelled by General Musharraf were baseless. A little over
four months later the Supreme Judicial Council ruled that Musharraf had acted uncon-
stitutionally and restored Iftikhar Chaudhry.43
Within days of this decision, the SCP swung back into action, grilling civil servants,
directing the updating of the voters’ registry, inquiring into the allocation of land for
farmhouses by the Capital Development Authority (CDA), allowing former premier
Nawaz Sharif to return to Pakistan, and instituting judicial proceedings against the
military’s counter-insurgency operations in Balochistan.44 The onslaught against the
executive caused the judiciary’s stock to rise even further in the public’s eyes and
thousands of complaints started pouring in every week from all over Pakistan.
Although the SCP could only take up a handful of the complaints in the form of cases,
it did follow up administratively as best as it could. What was obvious was that for
millions of Pakistanis caught on the wrong side of political privilege and administrative
malfeasance, ringing Iftikhar Chaudhry’s ‘Bell of Justice’ was the only recourse left given
the collapse of governance at every level. Musharraf and Shaukat Aziz increasingly found
themselves in the SCP’s crosshairs.
In October 2007, the SCP ordered the registration of criminal cases against those
involved in the Lal Masjid Operation, stopped the Election Commission of Pakistan
(ECP) from notifying the result of Musharraf’s election as president pending a decision
on his eligibility, confiscated 70 farmhouses in the capital found to be breaking their
10 I. NIAZ

original lease agreements (including Musharraf’s farmhouse), demanded the production

of all persons deemed ‘missing’, and initiated proceedings against the government after
the attack on Benazir Bhutto’s procession when she arrived in Karachi on 17 October
(after eight years of self-imposed exile) .45 With his popularity dipping and a good chance
that the SCP would rule him ineligible, Musharraf made a desperate move by declaring
an emergency on 3 November 2007, purging 60 judges by compelling them to swear
a new oath to stay in office, and pushing his election as president through the Electoral
College. Even with the emergency, Musharraf gave up the post of army chief, while
deteriorating security and a renewed movement to restore the judiciary made it increas-
ingly difficult to keep the regime intact.
In the February 2008 elections, a PPP-led coalition won power at the centre and in
Sindh, the PML-N secured a majority in the Punjab, and the Awami National Party
(ANP) won in NWFP (Khyber Pakhtunkhwa after 2010), comprehensively defeating
Musharraf’s allies. Unlike in the past, the major political parties had agreed to a common
minimum programme (the May 2006 Charter of Democracy). By August 2008,
Musharraf was heading into exile, Asif Ali Zardari, leader of the PPP after his wife’s
assassination in December 2007, was heading to the presidency, and Iftikhar Chaudhry
was heading back to the Supreme Court. Within six months of Zardari becoming
president, the SCP was restored to its pre-November 2007 position, albeit after foot-
dragging by the PPP over concerns that judicial restoration might lead to the repudiation
of the controversial National Reconciliation Ordinance (NRO) under which many
political leaders, including Bhutto and Zardari, had secured the withdrawal of cases
against them. Strong support for the judiciary by the PML-N and the refusal of the new
army chief to get drawn into the mess on the government’s side eventually forced the
PPP-led coalition to implement the restoration of judges dismissed by Musharraf.

The restoration court: 2009–2013

After March 2009, the SCP renewed its activist and interventionist approach by taking on
the executive and making popular decisions.46 The government was compelled to reduce
the price of oil, a new provision in the judicial code of conduct required judges to refuse
to support any extra-constitutional power grab, the controversial NRO was deemed
illegal and the government was ordered to reopen some 8,000 cases withdrawn by the
Musharraf regime.47 A steady stream of high profile cases inclusive of scrutinising mining
contracts, energy policy decisions, losses at the National Insurance Company Limited
(NICL), put the government on the defensive. An attempt by the political class to clip the
judiciary’s wings through some of the provisions of the Eighteenth Amendment to the
Constitution ended in parliament retreating before the SCP’s exercise of judicial review,
which ensured that the powers of the CJP over the judiciary and the autonomy of the SCP
from the executive remained fully intact at the statutory level.48 The SCP maintained
pressure on the issue of missing persons and intervened to defuse a major crisis between
the political leadership and the military. The trigger for this crisis was the revelation that
Pakistan’s ambassador to the United States, Hussain Haqqani, had approached the
United States’ government with an urgent request for help against the Pakistani military
in the aftermath of the killing of Osama bin Laden in May 2011. The PML-N leadership
petitioned the Supreme Court of Pakistan against the ambassador in an attempt to score
 THE ROUND TABLE 11

political points and cast themselves as more patriotic than the PPP. The judiciary fixed
responsibility on the ambassador thereby securing his dismissal and setting up his trial
for treason (which satisfied the military) while practically allowing the envoy to remain in
the United States in de facto exile.49
Yousaf Raza Gilani, Pakistan’s prime minister since 2008, fell foul of the judiciary for
refusing to write a letter to the Swiss authorities in the context of reviving corruption
cases against Asif Ali Zardari who, although president, had remained as the co-chairman
of the PPP. The prime minister was found guilty of contempt of court, given a symbolic
punishment of detention until the end of the court’s session, and disqualified from
holding public office on 26 April 2012. This decision was widely applauded, even by
the PML-N, and demonstrated that the SCP could end the public career of a political
leader for refusal to comply with its directives. By the time Iftikhar Chaudhry retired in
2013 the profile of the SCP as an energetic, responsive, and public-spirited institution had
been established. The sustainability of this new approach was open to question in 2013,
but as events would show, the SCP continued on the trajectory set by Iftikhar Chaudhry.
By 2017 it had emerged as the arbiter of the political process.

Staying the course: the triumph of judicial activism, 2013–2018

After the retirement of Iftikhar Chaudhry any hopes that the SCP would restrict its
exercise of original jurisdiction and show greater respect for the trifurcation of powers
were soon dashed. Controversies over the authenticity of the 2013 elections, which
brought the PML-N to power at the centre but led the Pakistan Tehreek-i-Insaf (PTI,
or Pakistan Movement for Justice) to cry foul and allege systematic rigging, quickly
established the post-Chaudhry court as the arbiter of the political system. After months
of anti-government agitation, protests, and sit-ins in the capital, the feuding parties
agreed to a judicial commission that would probe specific allegations of election rigging.
Here, the PTI alleged that the PML-N and its supporters had systematically rigged the
2013 elections in the Punjab, but while there was plenty of evidence of irregularities and
failings, the charge of conspiracy could not be established.50 The Supreme Court, like the
ECP in its own report in 2013, conceded the fact of irregularities but dismissed the PTI’s
allegations that the PML-N had orchestrated a systematic subversion of the electoral
process.51 While this verdict was applauded by the PML-N, the government soon found
itself forced on the back foot by a variety of SCP interventions.
In August 2016, for instance, after the Sandeman Civil Hospital in Quetta was hit by
a suicide blast, the SCP appointed a commission to investigate what had happened as well
as auditing the government’s performance in the struggle against terrorism and extre-
mism. The commission’s report proved a terrible blow to the government’s claims that it
was fighting terrorism and extremism alongside the military.52 The commission found
that. except for the portions of the National Action Plan, which was formulated after the
Pakistani Taliban’s massacre of students at the Army Public School in Peshawar
(December 2014), entrusted to the military, there was practically no movement on any
issue. The report revealed astonishing civilian incompetence and negligence at all levels,
from the federal cabinet down to the local hospital’s administration, which had not taken
sensible precautions even though the hospital had suffered a terrorist attack in 2010.53
12 I. NIAZ

Embarrassing as the Quetta Commission report was, the SCP’s response to the
Panama Leaks’ revelations that the Pakistani prime minister and his family had pur-
chased luxury apartments in London through shady offshore companies was exemplary
in its severity. Nawaz Sharif and his family were asked to explain how they got the money
to buy the four apartments in question. For nearly ten months his legal team hemmed
and hawed but failed to produce a money trail in accordance with laws that placed the
burden of proof on the accused, in cases involving acquisition of assets beyond declared
sources of income once the ownership of the assets had been established.54 As it became
clear that the prime minister and his family could not explain their ownership of the
apartments and, in the course of their defence, had committed forgery and possibly
perjury, the SCP resolved to mete out justice. The prime minister was disqualified on
a technicality (failure to disclose expected income from business dealings in Dubai)
under the Representation of Peoples Act (1976), and deemed to be dishonest and
untrustworthy under the sweeping Articles 62/63 of the Constitution.55 The Supreme
Court ordered the trial of the now former prime minister and his family before account-
ability courts by National Accountability Bureau (NAB), and a monitoring judge was
appointed to ensure that the government did not interfere with the investigation.56 The
trial concluded on 6 July 2018: Nawaz Sharif, his daughter, and son-in-law, were all found
guilty by the accountability court.57
Nawaz Sharif thus became the second prime minister to be dismissed from office by
judicial action since the restoration of democracy in 2008. While the PML-N had
celebrated the ouster of the PPP’s prime minister in 2012 and also regarded favourably
the verdict on the PTI’s allegations of rigging, it reacted differently to the decision that
went against it; some of the more diehard loyalists even went so far as to threaten the
judiciary with consequences, while others criticised the judiciary, becoming perilously
close to being in contempt of court. Intriguingly, the PML-N, while lambasting the court
for its role in Nawaz Sharif’s disqualification, also moved it against PTI’s leader, Imran
Khan, and Jahangir Tareen (the PTI’s secretary), accusing them of failing to make the
grade under Articles 62/63. The court exonerated Imran Khan, who was able to produce
the money trail for his purchase of land in Islamabad where he built his home, but
disqualified Jahangir Tareen for failure to explain his wealth.58
While intervening in high politics, the SCP persisted in its efforts to find out what had
happened to persons who had allegedly gone missing. This had been a running battle since
2006 and had brought the judiciary into conflict with the military. Tired of delay, the SCP
constituted a judicial commission to probe cases of missing persons and to follow them up
with the relevant authorities and, as a result, some 5000 cases were taken up.59
The SCP also directed its attention at everything from land grabbers, to the conditions
in government facilities, and appointments/compensation packages awarded to heads of
semi-government enterprises. CJP, Saqib Nisar, suspended the collection of tax on pre-
paid mobile cards, made regular inspection visits to different government departments,
including the lower tiers of the judiciary, and, with cameras and press on hand, took
errant officials to task, interrogating local administrators and provincial governments
about their evident failures. Public inspections and hearings, complete with a post-
hearing group selfie with complainants in one instance, earned the CJP considerable
popularity. According to Gallup Pakistan, the CJP had a favourability rating in April 2018
 THE ROUND TABLE 13

of 54% and an un-favourability rating of only 35% – numbers that Pakistani politicians
would envy.60
Yet, while newspapers gave the SCP’s interventions extensive coverage, critics pointed
out that the rate of pendency of cases was growing, that the ability to conclude all of the
exercises of original jurisdiction was doubtful, and that corruption and maladministra-
tion at the civil and sessions courts levels were rife.61 In one instance, the CJP’s inter-
vention, in a case involving a lawyer’s son found guilty of brutally stabbing a young
woman by the sessions court but acquitted by the Lahore High Court, triggered an angry
response by the local bar association. It did not help that the resolution passed by the
Lahore High Court Bar Association (LHCBA) calling for regulation of the Supreme
Court’s exercise of original jurisdiction was moved by the father of the acquitted (conflict
of interest being a concept entirely lost on the lawyers’ community in this case). With
social media outraged by the behaviour of the Lahore High Court and the LHCBA, the
SCP publicly harangued the lawyers responsible.62
Whatever the finer points of constitutional law, the SCP’s exercise of original jurisdic-
tion and willingness to take on popular causes delighted public opinion, even if some
might be put off for political reasons by a specific judgement. The phenomenal growth of
social media further reinforced the ability of the SCP to reshape the public discourse and
come across as a people-friendly institution in a political system characterised by the
unjust exercise of authority. While the popularity of this approach cannot be doubted, it
remains to be seen what it means for the evolution of Pakistan’s culture of power.

Conclusion: a Pakistani hybrid of the rule of law & rule of justice

The combination of activism and populism that has marked the behaviour of Pakistan’s
Supreme Court since 2005 has tapped into the desire of Pakistanis to see the executive held
accountable for its venality, abusiveness, and incompetence. The alignment of the judiciary
with the people against the executive since 2005 contrasts sharply with the previous era of
judicial history in which alignment was with the executive and against the people. Drawing
on public support and being able to drive the conversation on important issues because of
the attention it receives from the media, a kind of enlightened judicial despotism that seeks
to correct the behaviour of errant members of the executive (and legislature) through public
humiliation, searing inquiry, and a broad interpretation of original jurisdiction, has been
the method employed. At the same time, as the judiciary has subjected the civilian political
and administrative leaderships to withering criticism, peremptory summons, and retribu-
tion, it has also proved itself to be the only civilian institution willing and able to take on the
military and defy religious prejudice, as evidenced by the October 2018 judgement that
exonerated Asia Bibi, a poor Christian woman accused of blasphemy and convicted by
lower courts.63 Pakistan’s judiciary can be credited with hastening the downfall of the
Musharraf regime, galvanising public discourse in favour of constitutional government,
and, although politicians do not always like it (especially when decisions go against them),
pre-empting military coups by acting as a mediator during crises and providing a means to
challenge and even dismiss or disqualify corrupt public officials. It was the Supreme Court
that enabled the restoration of the PML-N by allowing Nawaz Sharif back into Pakistan in
2007. A decade later it is the Supreme Court that quite possibly ended Nawaz Sharif’s hopes
of ever returning to office and instituted an accountability regime from which the former
14 I. NIAZ

prime minister and his family are finding it difficult to escape. The strength that Pakistan’s
Supreme Court has gained since 2005 is not a function of constitutional provisions but of its
popularity and prestige. The activist and populist line of action adopted by successive chief
justices has replenished the political and moral capital of the SCP.
Beyond the headlines devoted to the actions and pronouncements of the SCP, the
activism and popularity of the judiciary could be making possible a Pakistani hybrid of
the rule of law tradition, inherited from the British, and the rule of justice tradition,
rooted in the region’s historical experience. What is happening is that the Anglicised form
of the rule of law is providing the constitutional and legal cover through strict or loose
constructionist readings of the law, for the application of the rule of justice as deemed fair
by the SCP in individual cases. As the intellectual content of the judgements of the SCP
indicate, the idiomatic universe of the judges is globalised and Anglophone, peppered
with references to Kafka, the Godfather, and modern democratic discourse, and imbued
with a significant component of Muslim modernism. Islamisation since 1973 has had an
impact on some judges and some specific laws that the judiciary is required to apply, but
the broader institutional distaste for conservative notions of law is fairly transparent. The
spirit, however, that animates the contemporary Pakistani superior judiciary is that of
wielding its discretion in a just manner; gaining or maintaining public support; and using
that support to strike down evil doers. The image might be that of which Solon approved,
but the mechanism and behaviour is closer to that of Theseus. Thus, constitutional
authority interpreted flexibly can be employed to impose penalties and embarrassment
on the wicked in furtherance of the public interest. The SCP has imposed significant
personal and political costs on national leaders that have defied it, including Musharraf,
Asif Ali Zardari, Yusuf Raza Gilani, and Nawaz Sharif. Direct defiance of the court has
proved to be a sure path to downfall, disqualification, exile, or accountability. Alhough
not as prominent, hundreds of civil servants have also had their feet held to the fire by the
post-2005 SCP and even Pakistan’s historically unaccountable security agencies have had
to appear before the court and answer pointed questions. While it is questionable
whether the SCP’s interventions have actually led to improved governance, there is an
emerging judicial-executive imbalance that complements the old civil-military imbalance
already familiar to Pakistan analysts. In this new power equation the civilian state
apparatus, in addition to being eclipsed by the military and subjected to arbitrary
treatment by the political class, is now the preferred punching bag of the judiciary. The
greater the civilian bureaucracy’s dysfunction, the more legitimate the Supreme Court’s
interventions, and, the more frequently and aggressively the court intervenes, the greater
its power and autonomy.
The interventionism of the SCP has also helped deflect attention away from the
performance of the judiciary in terms of disposing of cases in accordance with the law.
Some two-thirds of prisoners languishing in Pakistani jails are held pending trial.64 Civil
litigation in Pakistan is an inter-generational exercise in terms of its speed and the actual
ability of the courts to deliver fair and lawful verdicts in such matters is almost beyond
hope of repair. Some 1.8 million cases are pending before Pakistan’s courts, with about
35,000 awaiting decision before the Supreme Court, and the remainder in the high courts
and sessions courts.65 Improvements in the pay of the judiciary notwithstanding, the
juristic professionalism of the present generation compares unfavourably to their pre-
decessors (who, of course, had serious political failings and normally lacked the moral
 THE ROUND TABLE 15

courage to stand up to the executive).66 In the context of the popular causes taken up
through its original jurisdiction, the ability of the SCP to see these through to
a satisfactory conclusion is open to question. Thus during the tenure of Chief Justice
Iftikhar Chaudhry, the SCP took 123 suo moto actions, which resulted in only 37 reported
opinions.67 It is also obvious that 17 SCP justices cannot oversee 3.5 million civilian
public sector employees while supervising the implementation of policies to resolve
Pakistan’s water crisis and population explosion (both of which have come on the
SCP’s radar). The heroic imagery of the Supreme Court’s justices waging a great war
upon those traditionally privileged and unaccountable taps into a profound popular
longing for the rule of justice, but it also means that questions about the judiciary’s
performance are going unanswered.
The point that critics of the judiciary need to understand is that the post-2005 SCP
sees no reason to reprise its old role as an apologist for the executive and it finds itself
greatly empowered by the popular validation derived from challenging, exposing, and
reversing decisions it deems unjust. Political leaders have repeatedly turned to the court
to resolve their differences rather than work things out through dialogue. Political
polarisation means that leaders are unwilling to make concessions or step aside
voluntarily and find that only a court order provides a legitimate basis to take a step
back. Even then, political parties react to decisions based on their politics. Alarmingly,
Pakistan’s political class and bureaucratic leadership are unwilling to reform the
civilian apparatus with the aim of making it more professional and autonomous.
This leaves them structurally vulnerable to being pushed around by the vastly more
professional and organised armed forces and the significantly more popular and
assertive judiciary. The civilian executive and representative leaderships come across
as a family that chooses not to finish the roof of its house and then complains loudly
when it rains.
Supporters of the SCP’s interventionist approach also need to avoid conflating devel-
opments since 2005 with evidence that Pakistan is moving towards the rule of law in the
western sense of the term. At best, a hybrid heavily weighted in favour of the rule of
justice is emerging, employing the metaphor and rhetoric of constitutionalism. The
symbolic and subjective appeal of the SCP’s modus operandi since 2005 has made it
more autonomous than ever before, but, ultimately, it is the quality of the executive
apparatus that determines how well a state is governed. In Pakistan’s case, that critical
trajectory continues to be downwards relative to the problems the country faces. The SCP
may well have taken on the role of the just sultan or emperor meting out justice to the
vicious and selfish but the benevolence of its public image has done very little over the
past 13 years to improve ground realities. The rule of law in a modern state is a package
deal that requires the concurrent operation of civilian supremacy, an apolitical, auton-
omous, and merit-based civil service, an acceptance of reasoned debate as the best means
of resolving differences, judicial independence, a free press, legitimate and properly
conducted elections, and institutionally strong political parties. After independence,
Pakistan lost or failed to develop these ingredients, and while the emergence of an
independent judiciary after 2005 is a net positive, the other elements required continue
to be deteriorating, weak or absent.
16 I. NIAZ

Notes
1. Plutarch, The Rise and Fall of Athens: Nine Greek Lives, trans. Ian Scott-Kilvert
(Hammondsworth: Penguin Classics, 1964), esp. 13–42 and 43–76, the chapters on
Theseus and Solon, respectively.
2. Ibid., 60–1.
3. Ibid., 55.
4. Abu’l-Fazl Allami, Ain-i-Akbari, trans. H. Blochmann, ed. D. C. Phillot (Lahore: Sang-
e-Meel Publications, 2004), 58.
5. Kautilya details the structure of the judicial administration in the Mauryan Empire.
Although subject to the royal will and edicts, judges were supposed to be appointed for
their knowledge of religious law, custom, and morality, and apply their knowledge to the
specific instances brought to their attention. For more see, Kautilya, Arthashastra, trans.,
ed., L. N. Rangarajan (Gurgaon: Penguin Random House India, 1992), 352–461.
6. National Documentation Wing, Islamabad. Folder 21, 1952. File No. 3(5)-PMS/52,
Government of Pakistan, Prime Minister’s Secretariat, Correspondence with the Hon’ble
Minister for Interior and States & Frontier Regions’, 72–81.
7. Inamur Rehman, Public Opinion and Political Development in Pakistan, 1947–1958
(Karachi: Oxford University Press, 1982), 151.
8. For more see Hasan Zaheer, The Times and Trials of the Rawalpindi Conspiracy 1951: The
First Coup Attempt in Pakistan (Karachi: Oxford University Press, 1998).
9. Syed Shariffudin Pirzada, ed., Dissolution of Constituent Assembly of Pakistan and the Legal
Battles of Moulvi Tamizzudin (Karachi: Asia Law House, 1955), 294, 307.
10. Hamid Khan, A History of the Judiciary in Pakistan (Karachi: Oxford University Press,
2016), 262–3.
11. The newsprint quota was abolished with effect from 1 July 2000, and customs duties on its
import were halved from 10 to 5 percent. https://www.pakistanpressfoundation.org/news
print-quota-goes-from-july-1/(Accessed: 1 July 2018).
12. For a detailed breakdown of PhD production in Pakistan see http://www.hec.gov.pk/eng
lish/universities/Pages/PhD-Produced-by-Pakistani-Universities.aspx (Accessed:
1 July 2018).
Also see HEC Annual Reports such as the one for 2012–2013 http://hec.gov.pk/english/
news/HECPublications/Annual%20Report%202012-13.pdf (Accessed: 1 July 2018).
13. Ishrat Hussain, ‘Pakistan’s Economy 1999/2000 – 2007/2008: An Objective Appraisal’,
(Karachi: Institute of Business Administration, n.d.), and Ishrat Hussain, Economic
Management in Pakistan, 1999–2002 (Karachi: Oxford University Press, 2003), provide
a detailed account of the early years of the Musharraf regime.
14. The Musharraf regime issued nearly 100 licences for television channels and over 2000
for cable distribution and formed the Pakistan Electronic Media Regulatory Authority
(PEMRA) in 2002 to oversee the growth and development of this sector. Pakistan
Electronic Media Regulatory Authority Ordinance (Islamabad: President’s Secretariat,
2002), was amended and adopted as an Act in 2007. For details see Annual Report
2009 (Islamabad: PEMRA, 2010), 17–18 at http://www.pemra.gov.pk/(Accessed:
1 July 2018).
15. Seema Ansari and Arshi Khan, ‘Telecommunication Trends in Pakistan’ in Policy Forum,
January 2009, 213–214.
16. Pakistan’s advertising industry has grown from 423 million Pakistani Rupees in 1983, to
nearly 90 billion rupees in 2017. Ayesha Shaikh, ‘Celebrating 70 Years of Advertising:
A Profession in Evolution’, Dawn, 28 December 2017, https://aurora.dawn.com/news/
1142827 (Accessed: 1 July 2018).
17. As early as 2005, Gallup Pakistan estimated that nearly three-fourths of the urban popula-
tion had access to cable television. ‘Advertising and Media Industry in Pakistan’
(Supplement), Business Recorder, 21 November 2005. http://fp.brecorder.com/2005/11/
20051121355203/(Accessed: 1 July 2018).
 THE ROUND TABLE 17

18. Pervez Hoodbhoy, ‘Pakistan’s Higher Education System-What Went Wrong and How to
Fix It’, Pakistan Development Review, Vol. 48, No. 4, Part II (Winter 2009), 582–584.
19. Using a strict definition of middleclass that limits it to Pakistani households with an annual
income in purchasing power parity (PPP) of between US $13,500 and $113,000 (far higher
than the then per capita income of $ 2500 PPP), some 11.4 million Pakistanis made the
grade in 2007–8. Durr-e-Nayab, Estimating the Middle Class in Pakistan (Islamabad:
Pakistan Institute of Development Economics), 10.
20. Pakistan’s ratio of investment to GDP rose from 16.8% in 2003 to 23.8% in 2008, while the
debt-to-GDP ratio fell from 80% in 2003 to 57.9% in 2008, with the sharpest decline in
external debt liabilities. Foreign investment in Pakistan peaked at 3.2 billion in 2007, falling
slightly to $3.1 billion in 2008, before collapsing to $ 1.1 billion by 2009. Annual Report
2007–2008, Vol. I (Karachi: State Bank of Pakistan, 2009), 2–4.
21. Between 1989 and 1995, imports of consumer goods increased at an average rate of 7%
per year, while between 1996 and 2001 imports in this category saw a fall in their annual rate
of growth to only 2%, before achieving an average annual growth rate of about 16% between
2002 and 2007. Similarly, whereas the period from 1996–2001 saw the average annual
import of capital goods shrink by about 3%, the period 2002–2007 saw this category of
imports increase by an average annual rate of 26%. Ibid., 34.
22. The Pakistan Centre for Philanthropy (PCP), an NGO set up to figure out the size and
nature of the NGO sector and civil society in Pakistan has no reliable estimates. Ballpark
figures indicate that in 2001 there were a total of 60,000 NGOs in Pakistan (of which some
10,000 were officially registered), while by 2015, it was estimated that there might have been
as many as 200,000 NGOs in Pakistan. Faiza Shah, ‘The Rise of NGOs and Their Harmful
Impact on Pakistan’, in Herald (Karachi), August 2016. https://herald.dawn.com/news/
1152863 (Accessed: 2 July 2018). For the PCP’s reports see http://www.pcp.org.pk/
(Accessed: 2 July 2018).
23. Saira Bano, ‘Women in Parliament in Pakistan: Problems and Potential Solutions’, Women’s
Studies Journal Vol. 23, No. 1, September 2009, 26.
24. Ibid., 28.
25. Ibid., 29.
26. Musharraf, In the Line of Fire, 277. In 2007, when students affiliated with the Red Mosque in
Islamabad tried to enforce their interpretation of Islam on the city, Musharraf eventually
cracked down hard, crushing the rebellion and accepting the consequences. For an insight-
ful account of this episode see Adam Donik and Khurram Iqbal, Negotiating the Siege of Lal
Masjid (Karachi: Oxford University Press, 2016).
27. Tahir Wasti Zaidi, ‘A New Supreme Court: The Contributions of Chief Justice Iftikhar
Muhammad Chaudhry’, in Moeen H. Cheema and Ijaz Shafi Gilani, eds., Politics and
Jurisprudence of the Chaudhry Court, 2005–2013 (Karachi: Oxford University Press, 2015), 6.
28. Ibid., 7.
29. Ibid., 8.
30. Article 184(3) states: ‘Without prejudice to the provisions of Article 199, the Supreme Court
shall, if it considers that a question of public importance with reference to the enforcement
of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the
power to make an order of the nature mentioned in the said Article.’ Constitution of the
Islamic Republic of Pakistan (As Modified up to March 2017), (Islamabad: National
Assembly Secretariat, 2017), 99–100.
31. Tahir Wasti Zaidi, ‘A New Supreme Court: The Contributions of Chief Justice Iftikhar
Muhammad Chaudhry’, 8–9.
32. Musharraf, In the Line of Fire, 172.
33. Tahir Wasti Zaidi, ‘A New Supreme Court: The Contributions of Chief Justice Iftikhar
Muhammad Chaudhry’, 9.
34. Subuk Hasnain, ‘The Demise of Pakistan Steel Mills’, Herald (Karachi), October, 2016.
https://herald.dawn.com/news/1153574 (Accessed: 3 July 2018).
18 I. NIAZ

35. In his memoirs, Shaukat Aziz, makes no mention of the PSM though his broader position is
clear: ‘It is the not the business of government to be in business. From the outset, I wanted to
encourage the private sector to play a lead role in Pakistan’s economic development. Most of
the industry had been nationalised by previous governments and I believed this was holding
the country back.’ Shaukat Aziz, From Banking to the Thorny World of Politics (London:
Quartet, 2016), 166.
36. Tahir Wasti Zaidi, ‘A New Supreme Court: The Contributions of Chief Justice Iftikhar
Muhammad Chaudhry’, 9.
37. Ibid.
38. Ibid., 10.
39. Ibid., 11.
40. Ibid., 12.
41. Ibid.
42. Arsalan Iftikhar would drag his father into another controversy involving business relation-
ships with the property tycoon Malik Riaz. The Federal Tax Ombudsman investigated the
claims and counter claims in this matter and found that: ‘Dr. Arsalan Iftikhar has declared
income, as a salaried person, only for two years i.e., tax year 2010 and 2011 for Rs2.8 million.
Prima facie, investigation into the bank accounts shows deposits of Rs58.9 million which
means that deposits of Rs56.1 million are disproportionate to his declared income. However,
further investigation into the transactions of these accounts shows that cash payments into the
bank accounts have been made to the tune of Rs1.1 million only. These cash deposits don’t
match with the alleged cash payment of over Rs337 million allegedly made to Dr. Arsalan
Ifikhar on behalf of Malik Riaz Hussain.’ Shoaib Suddle, One-Man Inquiry Commission: Third
Interim Report (Islamabad: Federal Tax Ombudsman Secretariat, 2012), 24.
43. Tahir Wasti Zaidi, ‘A New Supreme Court: The Contributions of Chief Justice Iftikhar
Muhammad Chaudhry’, 14.
44. Ibid., 14–15.
45. Ibid., 17–18.
46. Ibid., 22.
47. Ibid.
48. Moeen H. Cheema, ‘The Chaudhary Court: Rule of Law or Judicialization of Politics?’, in,
Moeen H. Cheema and Ijaz Shafi Gilani, eds., Politics and Jurisprudence of the Chaudhry
Court, 2005–2013 (Karachi: Oxford University Press, 2015), 196–7.
49. For the judgement of the Supreme Court (30 December 2011) on the maintainability of their
petitions see, ‘Constitution Petition under Article 184(3) of the Constitution regarding
alleged Memorandum to Admiral Mike Mullen by Mr. Husain Haqqani, former
Ambassador of Pakistan to the United States of America’ (Islamabad: Supreme Court of
Pakistan, 2011). http://www.supremecourt.gov.pk/web/user_files/File/Const.P.77-78-79%
20[Memogate]DetailedOrder.pdf (Accessed: 3 July 2018).
50. The Election Commission of Pakistan conceded that widespread irregularities had occurred
and that there were failures in its administration of the 2013 elections. For more see Post-
Election Review Report (Islamabad: Election Commission of Pakistan, 2013).
51. Ordinance No. VII of 2015, ‘An ordinance to constitute a Commission to inquire into the
conduct of the General Elections 2013, and for vesting such Commission with certain
powers’, (Islamabad: President’s Secretariat, 2015), 2. Available online at the National
Assembly of Pakistan website: http://www.na.gov.pk/uploads/documents/1429632373_
316.pdf (Accessed: 3 July 2018).
52. Report of the SCP Inquiry Commission into the Two Incidents of 8.8.2016 at Quetta. Suo
Moto Case No. 16, of 2016 (Islamabad: Supreme Court of Pakistan, 2016). Available on the
SCP website: http://www.supremecourt.gov.pk/web/user_files/File/
QuettaInquiryCommissionReport.pdf (Accessed: 3 July 2018).
53. Ibid., 54.
54. The Panama Leaks Case judgement was made in light of the earlier decisions of
20 April 2017 in Constitution Petitions No. 29, 30 of 2016 and Constitution Petition No.
 THE ROUND TABLE 19

03 of 2017 that constituted a Joint Investigation Team to probe the matter of the accumula-
tion of assets by the then prime minister and his family. Judgement in regard to Const. Ps.
No. 29–30/2016 & 03/2017.C. M. A. NOs. 2939 and 4978 (Report of JIT) OF 2017
(Constitution Petition No. 29 of 2016), 4.
55. Ibid., 14–15. Which require a parliamentarian to be truthful and trustworthy (sadiq and
ameen).
56. Ibid., 15–16.
57. Nawaz Sharif was sentenced to 10 years imprisonment, his daughter, Maryam Nawaz, to
7 years imprisonment, and his son-in-law, Capt. Safdar, to 1 year of imprisonment. Fines
totalling over £ 10 million were also imposed on the former ruling family.
58. Haseeb Bhatti, ‘Imran Khan Not Out, Jahangir Tareen disqualified for being “dishonest”:
Supreme Court’, Dawn, 15 December 2017. (Accessed: 3 July 2018) https://www.dawn.com/
news/1376766 .
59. http://coioed.pk/is the official website of the Commission of Inquiry on Enforced
Disappearances. It was set up by the interior ministry on the instructions of the SCP and
is mandated to receive complaints and trace those alleged to have disappeared. (Accessed:
July, 3, 2018).
60. Gallup Pakistan, 9 April 2018: https://i0.wp.com/gallup.com.pk/wp-content/uploads/2018/
04/april-09-2.png?fit=1500%2C1500 (Accessed: 3 July 2018).
61. See Wajih Ahmed Sheikh, ‘Detailed Verdict in Khadija Case: Prosecution failed to prove
appellants guilt’, Dawn, 8 June 2018, https://www.dawn.com/news/1412746 (Accessed:
3 July 2018). By the time the detailed verdict had been made available to the press, the
Chief Justice of Pakistan had already taken notice of the case: ‘Chief Justice takes notice of
convict’s acquittal in Khadija Stabbing Case’, Dawn, 3 June 2018, https://www.dawn.com/
news/1412212 (Accessed: 3 July 2018).
62. ‘How did you pass a resolution against the Supreme Court?’ the chief justice asked the father
of the accused Shah Hussain, Advocate Hashmi. ‘How did you run a campaign against the
court?’ ‘If this had happened with some lawyer’s daughter, would you have behaved the
same way?’ he asked. Rana Bilal, ‘Khadija Stabbing Case: Appeal Against Shah Hussain’s
acquittal sent to Justice Khosa for hearing’, Dawn, 11 June 2018, https://www.dawn.com/
news/amp/1413266? (Accessed: 3 July 2018).
63. For the full judgement see ‘Ms. Asia Bibi Versus the State’: http://www.supremecourt.gov.
pk/web/user_files/File/Crl.A._39_L_2015.pdf (Accessed: 4 June 2019).
64. 69.1% by some estimates, with jails at nearly 160% capacity. World Prison Brief (London:
Institute for Criminal Policy Research, 2018), http://www.prisonstudies.org/country/paki
stan (Accessed: 3 July 2018).
65. Malik Asad, ‘Over 1.8 million cases pending in Pakistan’s courts’, Dawn, 21 January 2018,
https://www.dawn.com/news/1384319 (Accessed: 3 July 2018).
66. For a comprehensive resource on the judiciary in Pakistan see The Law and Justice
Commission of Pakistan at its official website: http://ljcp.gov.pk/nljcp/#1 (Accessed:
3 July 2018).
67. Prior to Iftikhar Chaudhry’s term as CJP, his predecessors since 1993 had taken only 8 such
cases. Asher A. Qazi, ‘Suo Moto: Choosing not to Legislate Chief Justice Chaudhry’s
Strategic Agenda’, in Cheema and Gilani, eds., The Politics and Jurisprudence of the
Chaudhry Court, 2005–2013 (Karachi: Oxford University Press, 2015), 291.