Friday, December 19, 2008

Nawaz Sharif and Pakistan

Mr Nawaz Sharif [Former Finance Minister Punjab during General Zia's Martial Law, then CM Punjab during General Zia Martial Law 1985-1988, then Prime Minister of Pakistan 1990-1993 and again Prime Minister 1996-1999]

Shahbaz Sharif [CM Punjab - Pakistan] and brother of Mr Nawaz Sharif

Late. Mian Mohammad Sharif [Father of Sharif Brothers]

Daily Dawn dated October 06, 2006, reported that ISI was headed by Lt.-Gen Ghulam Jilani (1974-1980), who as governor of Punjab let loose Mr Nawaz Sharif as a politician on an unsuspecting Pakistani public [Contradictions & anomalies By Tahir Mirza ]


The October 1990 elections brought the Islamic Jamhoori Ittehad (IJI) into power.[The IJI captured 104 seats while the Pakistan Peoples Party of Benazir Bhutto got only 45 seats in the National Assembly. The Mohajir Qaumi Movement emerged as the third largest party in the house with 15 seats]. In addition to a two-thirds majority in the National Assembly, the alliance acquired control of all the four provincial assemblies and enjoyed the support of the military and the President. Mohammad Nawaz Sharif, as leader of the Pakistan Muslim League, the most prominent party in the IJI, was elected Prime Minister by the national assembly. He emerged as the most secure and powerful Pakistani Prime Minister since the mid-1970s.

The relations between the newly-elected Prime Minister and President Ghulam Ishaq Khan were, to begin with, very cordial. The background of this cordiality was disclosed in 1993 by General Aslam Beg, who was Chief of Army Staff from 1988 to 1991. He said that during the election campaign for the 1990 elections, he had received a sum of Rs. 14 crores from the head of one of the nationalized banks, and he had divided this money between Inter-Services Intelligence (ISI) and the President's Election Cell. The payment for Rs. 14 crores to the General was later confirmed by Younis Habib, Chief of the failed Mehran Bank.

However, despite his majority in the parliament and complete confidence of the civil and military establishment, Nawaz Sharif could not survive more than two and a half year. When he became the first Punjabi prime minister of Pakistan, he was naive enough to believe that the two-thirds majority would automatically ensure him a full five years in power. He ignored to compromise with the reality that the Prime Minister was expected to play, happily and voluntarily, a subordinate if not servile role allowing President Ghulam Ishaq Khan to administer the affairs of the Federation without advice or assistance from the Federal Cabinet and any control by the parliament.[ Altaf Gauhar, President Ishaq stands indicted for high treason, The Muslim Islamabad, June 25, 1993.]

His political strategy centered around his economic policy of privatization, which he thought would not only reflate the stagnant economy of Pakistan but also create in this process a considerable sector of political support. The main weakness of his overall political strategy was, that he expected that the growing middle class, consisting of some of the upper level civil servants, lawyers and above all, traders, merchants, and growing number of industrialists, would be adequate by itself to provide him the main nucleus of a political movement.[Khalid Bin Sayeed, Western Dominance and Political Islam, Oxford Press, 1995, p-113] With his strong desire to be an effective Chief Executive, Nawaz Sharif began to take an aggressive position and a confrontationist course with the President, the architect of his government. Consequently he had to face the wrath of his antagonized benefactor. [Zulfikar Khalid Maluka, The Myth of Constituionalism p 282-283]

He did not enjoy a smooth sailing with the army. The Chief of Army Staff, General Asif Nawaz had begun to feel upset at many of Sharif's moves, most significant of them being his attempts to create rifts within the Army. Chaudhry Nisar Ahmad and Brig. Imtiaz, the former ISI chief, were even accused by the late General of threatening to turn him into another Gul Hasan, the army chief who was sacked by Z.A. Bhutto and bundled into a car by Ghulam Mustafa Khar and taken to Lahore by road. It is said that just when General Mirza Aslam Beg was about to topple Nawaz Sharif at the fag end of his tenure in 1991, President Ghulam Ishaq Khan agreed to name General Asif Nawaz as the new COAS, three months before he was to take over. Just when General Asif Nawaz was getting seriously worried about the Nawaz Sharif government, he died quite suddenly in January, 1993.[Saga of intrigue and deceit by Shaheen Shebai - Dawn - 27.5.1993]

The National Assembly, on May 29, 1997, amended the Ehtesab Ordinance to introduce major changes in the accountability process. The most significant amendment was the shifting of the starting date for accountability from the original 31st December 1985 (when General Zia lifted the martial law) to 6th August 1990 (when the first government of Benazir Bhutto was dismissed). The amendment also transferred the power of investigating charges of corruption from the Chief Ehtesab Commissioner to the Ehtesab Cell set up by Prime Minister Nawaz Sharif. "The Ehtesab Bill steam-rolled through the National Assembly makes a mockery of accountability. The amendments incorporated in the bill before it was presented in parliament for adoption render it an extremely flawed piece of legislation. " Dawn 31.5.1997

Although the amendment excluded the first Benazir government from the purview of accountability but the exemption for the 1985-90 period is significant since it was during this period that Mr. Nawaz Sharif, in his capacity as the Chief Minister of the Punjab, was strengthening and consolidating his industrial and political base. At the time of passage of the Ehtesab Law, there were reports that there were 167 cases of major loan default which include 107 cases involving top leaders of the PML(N) who got the benefit of huge write-offs and rescheduling during 1985-1990.

The transfer of the power of appointment of the Chief Ehtesab Commissioner from the president to the federal government reduced the office of the CEC to a mere post office. The real power was transferred to the accountability cell in the Prime Minister's secretariat. The head of the Cell, Senator Saifur Rehman Khan, was accountable only to the PM. The amendment also extends ex post facto legal sanction to the PM's accountability cell, which was under attack in a number of writ petitions in the Lahore High Court.

The original ordinance had empowered the CEC to initiate a case on a reference received from the appropriate government, on receipt of a complaint or on his own accord. Under the new amended law, if the CEC deems a reference necessary, he must refer it to the accountability cell for investigation. With all the accountability functions and powers concentrated in a cell functioning in his secretariat, the prime minister will be able to keep a strict check not only on the opposition and the bureaucracy but on his own party-men also.

The federal government, on Feb. 4 1998, amended the Ehtesab Act, replacing the name, "Ehtesab Cell", with "Ehtesab Bureau", and provided powers of an SHO to the chief of Ehtesab Bureau or any other official designated by him for the purpose of investigation. The amendments were introduced into the Ehtesab Act through a presidential ordinance, the first by President Rafiq Tarar, under clause 1 of Article 87 of the constitution.

The chief of Ehtesab Bureau or any officer designated by him will enjoy all the powers of an officer-in-charge of a police station. The chairman or designated officer will be empowered to require the assistance of any agency or police officer. The amended law provides indemnity to officials of the Ehtesab Bureau on acts deemed to have been done on "good faith".

By amending Section 3 of the Ehtesab Act, the government has again brought in the original definition of "corruption and corrupt practice". In the original Ehtesab Ordinance, corruption by a government official was defined as "favors or disfavors to any person." Through a subsequent amendment in the original Ehtesab Ordinance of 1996, the words "any other person" were replaced with the words "his spouse or dependents." The government has again restored the original meaning that any favor by a government official to other person other than his/her spouse or dependents would also fall in the definition of corruption, and he would be held responsible for that.

A reference made to the Ehtesab Bureau will now be treated as a report under section 154 of the code. After the reference of any case to the Ehtesab Bureau by the Ehtesab Commissioner, it would be an exclusive responsibility of the bureau to examine all the material, evidence and proof. No other agency will have a power to look into the matter. For the purpose of inquiry into any matter referred to the Ehtesab Bureau, the chairman and the bureau will have the powers of an officer in charge of a police station, including the power to ask any citizen to appear before it. Every government agency, police official or any other government official would be bound to assist the Ehestab Bureau in investigation.

After the amendment, the Ehtesab Bureau is also empowered to ask the Chief Ehtesab Commissioner to make a request to any court for the withdrawal of any case pending in a court. If the court grants the application, the case will be transferred to the Ehtesab Bureau.

The Chief Ehtesab Commissioner will have the powers at any stage of proceedings against an accused under the Ehtesab Act, to order the arrest of the accused. A reference to the court by the Chief Ehtesab Commissioner shall contain the substance of the act of corruption and corrupt practice alleged to have been committed by the accused. The amendment has provided a right of appeal to the Chief Ehtesab Commissioner if the Ehtesab bench acquitted any accused. Earlier this right was only with the accused. After the amendment, the Ehtesab Act provides that on the grant of pardon from the CEC, a magistrate appointed by the CEC himself will examine an accused.

What the Bureau now becomes is an independent investigating agency with teeth of its own and therefore not dependent, as it formerly was, upon the powers of the FIA. This may be a sequel to the turf war between Senator Saifur Rehman's Ehtesab machine and Ch. Shujaat Hussain's interior ministry, both of whom were vying for control over the FIA. The first and most striking change of course was to strip the original law of its neutrality and place the powers of investigation and prosecution firmly in the Prime Minister's Secretariat.

In Pakistan, the word 'accountability' has only one meaning: to malign and persecute political opponents. Glimpses of the full story can be culled from the report of the Mehran Bank commission along with the evidence provided by General Asad Durrani and Hameed Asghar Qidwai, as well as the jailed chief executive of the failed bank, Yunus Habib. [Herald - October 1997]

Several references have been filed against the former Prime Minister and her husband but they are still far from having run their full course. The rest of the Ehtesab Bureau's record is even more patchy. The 87 senior bureaucrats suspended hastily amidst a blaze of publicity have still to see any firm action taken against them. Indeed, some of the more notorious faces in this crowd have either been let off completely or have been allowed to go abroad. Meanwhile, the list of bank defaulters is as long and potent as ever with hardly anything having been returned to the public purse. [Dawn - 8.2.1998]

The annual 1997 Human Rights Report of US State Department said the Accountability Commission, established by the caretaker government and headed by a retired judge, had been overshadowed by an "accountability cell," headed by a close associate of the Prime Minister. This cell had been accused of conducting politically motivated investigations of politicians, senior civil servants, and business figures, designed to extract evidence and, in some cases, televised confessions of alleged wrongdoers. The report gave the examples of televised confessions extracted from Salman Farooqi, secretary of commerce under Benazir Bhutto; Ahmed Sadiq, Benazir Bhutto's principal secretary; and Zafar Iqbal, chairman of the Capital Development Authority. It said most politicians and bureaucrats, who had been charged with corruption or other crimes, were out on bail (in addition to murder, Benazir Bhutto's husband, Asif Zardari, had also been charged with corruption).

The government of Nawaz Sharif has used the accountability process -- which supposedly was designed to expose previous wrong-doing, recoup ill-gotten gains, and restore public confidence in government institutions -- for political purposes by harassing and arresting a number of prominent politicians and bureaucrats connected with the main opposition party.

On April 15, 1999, an Ehtesab Bench of Lahore High Court convicted Benazir Bhutto and Asif Ali Zardari and sentenced them to undergo five years' imprisonment each, and to pay a fine of $8.6 million. The court also ordered their disqualification as members of the parliament, as well as confiscation of their property. The Ehtesab Bench, comprising Justice Malik Qayyum and Justice Najmul Hasan Kazmi, held that the pre-shipment contract to the Swiss company, SGS, was awarded by the former Prime Minister "alone" at the behest of and in abatement with Zardari.

The prosecution case was that the pre-shipment inspection contract was awarded to SGS in consideration of 6 per cent commission on the total amount received by the company from the government of Pakistan. The commission was paid to an offshore company, Bomer Finance Inc. owned by Mr. Zardari through his fiduciary agent Jens Schlegelmilch. The ultimate beneficiaries of the commission were Mr. Zardari and Ms Bhutto, the prosecution had contended.

The court accepted the prosecution' s case and held: "The prosecution has proved its case against Mohtarama Benazir Bhutto and Senator Asif Ali Zardari beyond any reasonable shadow of doubt. They are, therefore, guilty of having committed corruption and corrupt practices within the meaning of section 3(1)(a), Section 3(1)(d) and section 4(2) of the Ehtesab Act 1997."

The court's order said: "Accordingly, Mohtarama Benazir Bhutto and Senator Asif Ali Zardari are convicted and sentenced to undergo 5 years imprisonment each and to pay a fine of 8.6 million dollars or equivalent amount in Pakistani currency. They are further disqualified under section 9 of the Ehtesab Act, 1997 from holding any public office. Their property shall also be confiscated. "

Under section 4 of the Ehtesab Act a person who is found guilty of acts of corruption could be sentenced to up to a term of seven years or fine or both. The same section further provides that the property of the convict, in his name or in the name of his dependent or benamidar, obtained through such offence during the tenure of his office, should be forfeited. [16] The Supreme Court Deputy Registrar rejected the appeal of Benazir against her conviction on the plea that she should appear in person to file the appeal. However, later a Supreme Court judge accepted the appeal on the plea that if she could be convicted in her absence why could she not be permitted to file an appeal in her absence.

While the Ehtesab Bench of the High Court convicted Benazir and Zardari, Chief Ehtesab Commissioner Justice Ghulam Mujaddi Mirza, on April 25, 1999, dropped three references against Prime Minister Nawaz Sharif saying that they have either no substance and merit or they don't pertain to the period with which the Ehtesab Act deals. In a fourth reference the CEC excluded the Prime Minister as respondent but referred the matter for inquiry and investigation to the Ehtesab Bureau. The other respondent in the case was NWFP Chief Minister Mehtab Ahmed Khan Abbasi.

The Chief Ehtesab Commissioner, Justice Ghulam Mujaddad Mirza, on May 16, 1999, rejected two identical complaint made jointly against Prime Minister Nawaz Sharif and Ehtesab Bureau Chairman Senator Saifur Rehman on charges of causing the exchequer a loss of Rs. 13.697 million by evading duties and taxes in import of BMW cars. It was alleged that the Estesab Bureau Chairman Senator Seifur Rehman (whose company, REDCO Pakistan Ltd is the sole agents for BMW cars in Pakistan), in connivance with the-then prime minister Mian Nawaz Sharif had imported 25 BMW cars in September 1992 at a lower value in a bid to evade customs duty amounting to Rs. 1.369 million.

The British newspaper, Observer, on Sept. 27, 1998, published a report revealing that Prime Minister Nawaz Sharif has amassed a personal fortune siphoning off millions of dollars from his country's coffers. The Pakistani Federal Investigation Agency report, revealed to the paper by the FIA's suspended second in command Rahman Malik, was also sent to President Rafiq Tarar. The Observer said that the 200-page report was begun while Sharif was out of power but effectively stifled after he and his Islamic Democratic Alliance party returned to lead the country in February 1997. It said the investigation reveled how Sharif's assets included four flats in London's exclusive Mayfair, worth more than $5 million. More than $70 million was also said to have been traced to accounts and companies controlled by the family. The inquiry was focused on Sharif's Ittefaq group of companies, which grew rapidly during his first term in power in 1990-93. It was alleged that the group received billions of rupees in loans, which were not repaid. Around $8 million is said to be held offshore, and another $50 million in Switzerland.

Explaining the modus operandi for money laundering by Sharif family, the report of Rehman Malik stated that Rs. 140 million were siphoned in collusion with Hawala group of Peshawar using the Bank of Oman. The money was repatriated in the form of FEBCs in the name of 43 family members, which include the mother, brother, sister and other close relatives of Mr. Nawaz Sharif. The report stated that a large amount in dollars, DBC and travellers cheques were transferred into three accounts of fake persons namely Salman Zia, Mohammad Ramzan and Ashgar Ali (who never existed) by Mr. Javed Keyani, an industrialist and business partner of Mr. Nawaz Sharif. The amount were transferred to three new accounts again opened by Javed Keyani in the names of Kashif Masood Qazi, Nuzhat Gohar Qazi and Sikindra Masood Qazi -- relatives of Ishaq Dar, the present Commerce Minister. These accounts were utilized as collateral security for setting up loans to Hudabiya Engineering Ltd and Hudabiya Paper Mills Ltd by Sharif family, the report stated.

On Sept. 28, the government denies the Observer report and lodges complaint with Britain's Press watchdog over the report. However, on Oct. 14, the management of the Observer says that it stood by its Sept 27 story about Nawaz Sharif. On Nov. 4, 1998, Britain rejected a request from Pakistan government for the arrest and extradition of former additional director general of Federal Investigation Agency (FIA), Rehman Malik, who was living in self-imposed exile in London.

The London High Court, on March 19, 1999, orders Punjab Chief Minister Shahbaz Sharif, his brother Abbas Sharif and father Mian Mohammad Sharif to jointly pay a sum of $32.5 million to Al Towfeek Company for Funds Ltd., the investment Company from which they had taken a loan for Hudabiya Paper Mills Ltd. The Queen's Division Bench of the London High Court passed the ex-parte order , as the defendants had not defended themselves in the court. The defendants were also ordered to pay the costs of the case The court on Sept 7, 1998 had issued writ of summons to the defendants and given 23 days after the service of writ to return the loan as claimed by the plaintiff company or give their intention to contest the case.

Al Towfeek Investment Funds Ltd., a company incorporated under the laws of the Cayman islands, which provides banking facilities and finance for industrial development in Pakistan, had entered into a lease agreement with Hudabiya Paper Mills Ltd, one of the companies owned by Sharif family, on February 15, 1995 under which the plaintiff leased certain machinery to Hudabiya Mills for the manufacture of paper and paper board for six months. At the time of the lease contract, Mian Mohammad Shahbaz Sharif, his father Mian Mohammad Sharif and his brother Abbas Sharif, had given written guarantees to pay to Al Towfeek Investment all loans taken up to $10 million by Hudabiya Paper Mills together with all profits, charges and other related expenses. While the actual loan was $12 million, almost $20 million was accrued as interest.

When the Sharif's company failed to return the loan, Al Towfeek served notices to the guarantors namely Punjab Chief Minister Shahbaz Sharif, his brother Abbas Sharif and father Mohammad Sharif to repay the loan but they failed to honor their guarantees and make payment to the plaintiff. Finally, the investment company went to the London high Court to recover the loan from the Sharif family. Shahbaz Sharif, during a visit to London had tried to make an out of court settlement but did not succeed. [Dawn 14.4.1999]

Sharif siphoned off millions in fake accounts: Observer Monday, September 28, 1998

Nawaz Sharif and his love for Independent Judiciary:

Victory of Prime Minister Nawaz Sharif has been at the expense of the Supreme Court of Pakistan and indeed superior judiciary as such. The SC judges have not held their image and prestige by becoming controversial. It is a settled principle that no writ will be issued by one judge to another. It was a pathetic spectacle to see two Supreme Court benches suspended the chief justice of their own court while the chief justice retaliated by recommending disciplinary action against all four of five judges involved. Repeatedly, order by one bench was overturned by another. Then political workers invaded the Supreme Court several times and abused the judges and indulging in violence. This was the darkest hour for the judiciary in the country. Gone were the days when it was universally respected as the cleanest and the most upright institution. Both sets of judges have been accused by their detractors of being motivated by personal and other extraneous considerations in their mutual bickering and tussle.

The irony of the crisis was that, eventually, it was not the executive that gave the final and, perhaps, fatal blow to the chief justice. It was his own peers who let him down. The very institution they wished to strengthen fell to the ground by their own actions. No one is left with any doubts that the judges are far from impartial.

The law and its traditions have since long become a fiction in courtrooms. The only difference this time was that the decay in the judiciary unfolded for all to see. The price paid by the superior judiciary is certainly very high. The crisis with judiciary have only served to confirm that, irrespective of how "stubborn" or "vindictive" a chief justice may be, he is no match against a government that excels in the art of wheeling and dealing.

Nawaz Sharif has succeeded in achieving what General Zia set out to do when he was cut short by destiny. In fact, the late dictator could not have hoped for a more competent lieutenant. General Zia had no patience for independent judges and thought nothing of replacing the ones who did not agree with him. Sharif has demonstrated the same tendency and, as in everything else, has surpassed his mentor in achieving his objectives. The judiciary today lies in ruins, devastated by the kind of power politics that was once the domain of political parties. [General Khalid Mahmud Arif, Working with Zia: Pakistan's Power Politics, Oxford University Press, Karachi, excerpts quoted in Dawn 23.4.1995]

The repercussions of the rulings given in haste or in anger will long dog the course of justice. During the crisis, the people have seen the Alice in Wonderland spectacle where the judges pass the judgment first and hear the witnesses later. Inevitably the feeling has arisen that the superior courts exist only for the seekers and brokers of power while the ordinary litigants languish into generations before their cases appear on the "cause list" which appeared quickly and abundantly when political power was at stake. [Article 15 of the PCO clearly stated that "all presidential orders of the CMLA, including other orders amending the (1973) constitution made by the president or by the CMLA, martial law regulations, martial law orders and all other orders made on or after the 5th day of July 1977 are hereby declared, notwithstanding any judgment of any court, to have been validly made by competent authority and shall not be called in question in any court on any ground whatsoever."]

Sajjad Ali Shah's [CJ SC Pakistan] appointment case:

The Supreme Court on Feb. 9, 1998 issued detailed judgment on the petitions challenging the appointment of Justice Sajjad Ali Shah as the chief justice of Pakistan. The ten-member bench headed by Justice Saiduzzaman Siddiqui in its short order on Dec 23, 1997 had declared the appointment of Justice Sajjad as the CJ, illegal and unconstitutional.

The court in its 391-page judgment rejected the argument that if the appointment of Justice Sajjad as the chief justice was held unconstitutional; its application would be with retrospective effect. The court held that doctrine of de facto would apply to the appointment of Justice Sajjad as the chief justice of Pakistan till Nov 26, 1997, when a division bench of the Supreme Court restrained him from performing his administrative and judicial functions.

Abdul Hafeez Pirzada, the counsel for the former chief justice, had argued that if the appointment of Justice Sajjad Ali Shah as the chief justice was declared invalid, it would lead to serious consequences as except three judges of the Supreme Court - Justice Ajmal Mian, Justice Saiduzzaman Siddiqui and Justice Fazal Illahi Khan - the appointment of all the Supreme Court judges and a number of high court judges would become invalid as all of them were appointed by the president in consultation with Justice Sajjad Ali Shah who was then the Chief Justice of Pakistan.

The ten-member bench after discussing the doctrine of de facto observed: "the principle of de facto exercise of power by a holder of the public office is based on sound principle of public policy to maintain regularity in the conduct of the public business, to save the public from confusion and to protect the private right which a person may acquire as a result of exercise of power by the de facto holder of the office."

The court also dismissed the argument that the appointment of Justice Sajjad as the chief justice of Pakistan was a past and closed chapter after the apex court judgment in Judges case. Responding to the argument of Hafeez Pirzada that no judge affected by the appointment of Justice Sajjad as the CJ had objected to his appointment and they continued to function, the court said it was incorrect.

The court maintained that three judges senior to Respondent No 2 (Justice Sajjad) in spite of invitation by the president of Pakistan did not attend the oath-taking ceremony of Justice Shah as the CJ to express their resentment. Justice Saad Saood Jan, the senior most judge of the apex court who had legitimate expectancy to become the chief justice of Pakistan after the retirement of Justice Nasim Hasan Shah, the court observed, proceeded on leave for three months and until his retirement on June 30, 1996, spent most of his time at the apex court branch registry at Lahore. The court also referred to the speech of Justice Saad Saood Jan on the occasion of his retirement and a press statement issued by him, to show that he had resented his supersession by a junior judge.

Justice Ajmal Mian, another judge who was affected due to the violation of the principle of seniority in the appointment of the CJ, had also expressed his opinion on the appointment of a junior judge as the chief justice. The court referred to the two judgments in Al Jehad Case 1, and Al Jehad Case II, in which Justice Ajmal Mian had expressed his views on the subject.

Justice Ajmal Mian and Justice Saad Saood Jan did not surrender their right of legitimate expectancy to the office of the chief justice of Pakistan in favor of respondent No. 2, the court observed. "It must be borne in mind that judges of the superior courts by tradition maintain high degree of comity amongst themselves. They are not expected to go public on their differences over any issue."

The court observed that it was not expected of the superior court judges to litigate in courts like ordinary litigants in case of denial of a right connected with their offices as the code of conduct for the superior court judges enjoined upon them to avoid as far as possible any litigation on their behalf or on behalf of others.

It held that the principle of seniority in the appointment of the CJ since the establishment of the Supreme Court in 1956 was upheld. It was only violated in 1994 when the Respondent No 2 (Justice Sajjad Ali Shah), fourth on the seniority list, was appointed the chief justice of Pakistan.

The court rejected the argument of Hafeez Pirzada that no writ could be issued against a judge, the court held that judgments delivered by a judge or group of judges were the functions which were covered under Article 199(5) of the Constitution. "The difference between a judge acting as court and a judge acting in his personal and individual capacity is not only real but is necessary to preserve, otherwise a judge will not be answerable for wrong done by him in his individual capacity."

Action taken or orders passed by him in his capacity as a judge of the court cannot be brought under challenge under Article 199 of the Constitution but his action as ordinary individual would be subject to ordinary law of the land including Article 199 of the Constitution, it was maintained. When the appointment of a judge is challenged that he did not possess the qualification prescribed by the Constitution, the relator was not asking the court to strike down any of his action which he had performed or was performing as judge but was asking for examination of personal qualification. "We are therefore of the view that such an attack on the validity of the appointment of a judge of superior court through collateral proceeding is not proper remedy."

The court held that petitions challenging the appointment of Justice Sajjad Ali Shah as the chief justice were maintainable. The SC reacted to the objections raised by Justice Sajjad Ali Shah against six judges on the bench, accusing them of bias. The court rejected the objections. The court also rejected the objection to the presence of Justice Saiduzzaman Siddiqui, Justice Fazal Illahi Khan, Justice Irshad Hasan Khan, Justice Nasir Aslam Zahid and Justice Khalilur Rehman Khan on the bench hearing the petitions. The court also rejected the objection of bias against Justice Saiduzzaman Siddiqui that he was prejudiced against Justice Sajjad for the reason that he had recommended to the president to refer his (Justice Siddiqui's) case to the Supreme Judicial Council.

The Supreme Court converts 'charge sheet' against Nawaz Sharif into notice

A supreme court bench headed by Chief Justice Ajmal Mian agreed on Feb. 17, 1998 to treat as a mere "show cause notice" a "charge sheet" issued to Prime Minister Mian Nawaz Sharif by a bench headed by the former chief justice, Justice (retd) Sajjad Ali Shah, for alleged contempt of court. S.M. Zafar, counsel for Prime Minister Nawaz Sharif, took 90 minutes to persuade the court that the charge sheet issued to the prime minister was not a charge sheet as required under the law, and the court was still at the stage of "show cause notice".

When the proceedings started, Chief Justice Ajmal Mian observed that the previous bench had charge sheeted the prime minister, and the only question for the court to decide was what procedure to follow.

S.M. Zafar contended that no charge sheet had been "issued", but admitted that a charge sheet had been "drafted". He said unless a charge sheet was read out to an accused asking him whether he pleaded guilty or not guilty, there was no charge sheet. He said under rule 7 of the 1976 Contempt of Court Act, the attorney general had to act as a prosecutor, and it was his duty to read out a charge to an accused. He said no such thing had happened in this case, and the so-called charge sheet was handed down to representatives of the respondents at the office of the deputy registrar.

When the chief justice observed that a mere formality of reading out a charge sheet to an alleged contempt was not performed, the counsel for the prime minister stated that reading out the charge sheet to the accused was not a "mere formality", but an "essential formality."

Mr Zafar argued suspending the potency of the 14th Amendment through an interim order without hearing the Federal Government or the attorney general, had upset parliamentarians who raised the issue in the parliament and this necessitated an explanation by the respondent. He contended that by virtue of section 8 of the Contempt of Court Act, Chief Justice Sajjad Ali Shah, after having taken cognizance, could not proceed with the case.


The judiciary has given Nawaz Sharif little trouble since he sacked the Chief Justice of the Supreme Court, Sajjad Ali Shah, who took the president's side in an argument with the primer minister in 1997. Since then, the higher courts gave almost all decision on major issues in favor of the government that has shaken the public confidence in judiciary.

Here are some of the major decisions of the Supreme Court and High Courts that reflected judiciary's leaning towards the then PML-N/Nawaz Government government:

The Lahore High Court accepts (Feb 9, 1998) the constitutional petition filed by Rafiq Tarar against his disqualification by the (former) Acting CEC and declared him qualified to contest for and hold the office of President. The acting CEC, Justice Mukhtar Ahmed Junejo of the Supreme Court, had found Mr Tarar, a former Supreme Court Judge, guilty of propagating views prejudicial to the integrity and independence of the judiciary at the time of his nomination as a presidential candidate under Article 63(G) of the Constitution and debarred him from the December, 1997 contest.

Lahore High Court dismissed (March 2, 1998) a writ petition seeking a direction against the government for settling along the motorway the Pakistanis residing in the refugee camps in Bangladesh. Justice Khalilur Rehman Ramaday also prescribed a cost of Rs. 5,000 to petitioner Advocate M.D. Tahir for indulging in frivolous litigation. The court said what was the guarantee that agents of the Indian intelligence agency RAW had not entered the ranks of these people. It also said that it required a lot of money for settling these people in Pakistan when there was already a lot of poverty here.

The Supreme Court dismissed (March 19, 1998) as "frivolous" a constitutional petition challenging the 13th Amendment and ordered the petitioner to pay Rs. 10,000 as court expenses. The 13th Amendment had stripped the president of the power to dissolve the National Assembly and dismiss a government.

Lahore High Court rules (April 1998) that Ehtesab Commissioner has unlimited powers.

May 18 1998: The Supreme Court, in a majority (6-1)decision, upheld the 14th Constitutional Amendment that bars members of parliament to vote against their party's line or abstained from voting. The court held that Article 63(a) would bring stability in the polity of the country as it would be instrumental in eradicating floor crossing. However, the court ruled that an elected member should not be disqualified if he opposed the party's policies in public. In his dissident judgment, Justice Abdul Mamoon Kazi held that Article 63(a) was in violation of fundamental rights and thus was not enforceable.

A seven-member bench of the Supreme Court unanimously (July 28, 1998) upholds the imposition of emergency on May 28. However, it set aside the fundamental rights' suspension order of the same date.

The Supreme Court declines (Nov. 23, 1998) to take notice of the imposition of governor's rule on Sindh and observed that the federal government had the powers to impose governor's rule under Article 232 of the Constitution. "Restoration of peace in Karachi is of paramount importance and court cannot declare it (governor's rule) illegal as some individual or a party wants to do so," observed Chief Justice Ajmal Mian.

A nine-member bench of the Supreme Court unanimously (Feb. 17, 1999) declared the setting up of military courts for trial of civilians in Karachi as unconstitutional. However, the court clarified that its decision would not affect the sentences and punishment awarded and executed by the military courts as the cases would be treated as past and closed transactions. Two people convicted by the Military Courts were executed. The Supreme Court recommended that the military court cases should be transferred to special Anti-Terrorist Courts.

The Supreme Court indicts (March 1, 1999) seven persons including six ruling party legislators on the charges of contempt of court for storming the court building on November 28, 1997. The court however, withdrew show cause notices issued to the executive and police officers of Islamabad.

The Supreme Court acquitted (May 14, 1999) all ruling party legislators who were indicted on the charges of contempt of court for attacking the court building when proceedings against Prime Minister Nawaz Sharif were underway in 1997. The three-member bench, which decided the case, observed that though flagrant contempt of court was committed but showed its inability to convict the accused as the people had not given specific evidence against them. Lahore Bar Council leaders expressed their disappointment at the outcome of the contempt of Court case against the ruling party legislatures. They said that the contemners have admitted their guilt in their apologies. A conviction could have been based on their admission and the video film of the Supreme Court's own cameras. They said the SC verdict sets back the process of restoration of public confidence in the superior judiciary set in by the apex court judgements on emergency and military courts. On June 14, 1999, the Supreme Court reopened the rowdy-ism case and issued fresh notices to the Pakistan Muslim League, Attorney General and seven alleged contemners. A five-member bench of the Supreme Court, headed by outgoing Chief Justice, Ajmal Mian, converted a criminal original petition filed by Shahid Orakzai, a journalist, into an appeal against the decision of the three-member bench of the SC. Appeal hearing began on June 28, 1999.

The Supreme Court reserves judgment (May 19, 1999) on the petition of Air Marshal (retired) Asghar Khan regarding the distribution of funds by ISI among the political parties in 1990 elections. The case had originated from the letter of Asghar Khan which he had sent to the then Chief Justice Sajjad Ali Shah for appropriate action after reading the statements of General Naseerullah Khan Baber. Gen. Baber had informed the National Assembly that ISI had collected Rs. 140 million from Habib Bank which were distributed among different politicians before 1990 elections. Prime Minister Mian Nawaz Sharif is one of those politicians who received money from ISI in 1990 polls. However, the Supreme Court observed that it would confine itself to laying guidelines for the operation of the political cell of the ISI within the legal framework. About the distribution of the funds by the ISI, Justice Saiduzzaman Siddiqui, head of a three-judge bench, observed that it was "history" and the court was not concerned with it.

Commenting on the role of judiciary in Pakistan, the US State Department Human Rights Report for 1998 said: Judiciary is subject to executive influence, and suffers from inadequate resources, inefficiency, and corruption. Despite concerns about damage to the judiciary due to the December 1997 confrontation between the prime minister and the chief justice of the Supreme Court, there were several instances in which the Supreme Court showed a continued degree of independence, striking down draconian laws favored by the government, including limits on freedom of speech, elements of a controversial anti-terrorist law, and some restrictions on fundamental liberties imposed by the state of emergency declared in the wake of Pakistan's nuclear tests in May.

The outgoing chief Justice of the High Court of Sindh and judge-designate of the Supreme Court told a full court reference held in his honor on April 19, 1999, that confidence of the people in the judiciary had been shaken. He said it was a matter of concern that with the continuing degeneration of the moral fabric of society, the malady of corruption had afflicted the power judiciary too, which had been made the task of dispensation of justice all the more difficult and "has shake the confidence of the people in the courts."

On June 18, 1999, The Supreme Court accepted the government's plea that the country is not in a position now to honor its legal obligation of allowing free operation of FCAs. The Court held that Section 2 of the Foreign Exchange (Temporary Restriction) Act, 1998 was lawful of the constitution, subject to the declaration that the same did not confer any power on the federation or the State Bank to compel FCA holders to convert their foreign exchange holdings into Pakistani rupees at the officially notified rate of exchange, or to compel the said account holders to liquidate their FCA accounts in Pakistani rupees which foreign exchange holdings had been accepted by the respective banks as security against any loan or other facilities extended to them. The court expressed its concern on the improper utilization of foreign exchange deposits of the FCA holders by the successive government in breach of the solemn commitment given by the legislature. The court also said that the State Bank of Pakistan also failed to perform its statutory duty to protect the interests of the FCA holders.

No comments: