Saturday, February 28, 2009

Selective Provisional Constitution Order and Judiciary

--- On Sat, 2/28/09, emergencyinpakistan wrote:

This latest inclusion of jialas in the Lahore High Court needs to be rejected as part of the Zardari-Dogar court.

PPP sympathisers make it to LHC By Usman Manzoor Saturday, February 28, 2009/ Four of 16 judges are known party leaders, the rest opposed to lawyers’ movement


Not in a very distant past:

Mr Justice Iftikhar Muhammad Chaudhry and General Pervez Musharraf

In Quetta, Chief Justice of Balochistan High Court (BHC) Mr Justice Iftikhar Muhammad Chaudhry and four other High Court judges took a fresh oath under PCO.

Athar Minallah, spokesman for Justice Iftikhar Mohammad Chaudhry
Athar was appointed Minister for Law, Local Government, Parliamentary Affairs and Human Rights by the Provincial Government of NWFP (2000-2002).

Read the detail rather newspapers of the year 2000 [3 Months after the Martial Law of General Musharraf] and what an irony, the present spokesman for CJ Mr Justice Iftikhar Mohammad Chaudhry i.e. Athar Minallah was Provincial Minister in NWFP Government in the year 2000 under the very same General Musharraf.

In January 2000 Chief Executive General Musharraf dictated that all superior court judges swear a new oath under the Provisional Constitutional Order No.1 issued on October 15, 1999, which had suspended the Constitution. In January 2000, Justice Iftikhar Chaudhry then a serving judge on the Balochistan High Court (BHC) was one of the first judges to take an oath on the PCO. This allowed him to be elevated to the Supreme Court to fill one of the vacancies left by the 11 judges who had resigned in protest at taking this oath.

On May 13 2000, Justice Iftikhar Chaudhry was one of 12 Supreme Court judges who validated the military coup of General Pervez Musharraf. They ruled that the removal of the elected government of Nawaz Sharif was legal on the basis of the "doctrine of necessity".

In June 2001, Justice Iftikhar Chaudhry was one of two judges who visited the Presidency House to convince the then President Rafiq Tarrar to resign, and make way for General Pervez Musharraf to assume that office.

On April 13 2005, in the "Judgment on 17th Amendment and President's Uniform Case", Justice Iftikhar Chaudhry was one of 5 Supreme Court judges who dismissed all petitions challenging President Musharraf's consistitutional amendments. In a wide ranging judgement they declared that the Legal Framework Order (LFO) instituted by General Musharraf after his suspension of the constitution, the 17th amendment which gave this constitutional backing, and the two offices bill which allowed Musharraf to retain his military uniform whilst being President were all legal.


Thirteen judges of the superior judiciary, including Chief Justice of Pakistan Mr Justice Saeeduzzaman Siddiqui, ceased to hold office after they refused to take fresh oath under the Provisional Constitutional Order (PCO), on January 26, 2000.

Mr Justice Irshad Hassan Khan became the new chief justice of Pakistan as the judges of the Supreme Court, Federal Shariat Court and four High Courts were administered oath under the PCO.

Six judges of the apex court, including the chief justice, refused to take fresh oath. The other seven judges who were not invited for the oath were two from the Lahore High Court (LHC), two from Peshawar High Court (PHC) and three from Sindh High Court (SHC).

The seven Supreme Court judges who took oath under the PCO were Mr Justice Irshad Hassan Khan (Chief Justice), Mr Justice Bashir Jehangiri, Mr Justice Abdur Rehman Khan, Mr Justice Shaikh Riaz Ahmed, Mr Justice Munir A Shaikh, Mr Justice Shaikh Ejaz Nisar, and Mr Justice Ch Mohammad Arif.

The judges who refused were Chief Justice Mr Justice Saeeduzzaman Siddiqui (who was due to retire on Nov 11, 2000), Mr Justice Mamoon Kazi (retiring date Dec 29, 2000), Mr Justice Nasir Aslam Zahid (Feb 2, 2000), Mr Justice Khalilur Rehman (April 24, 2001), Mr Justice Wajihuddin Ahmed (November 2003), and Mr Justice Kamal Mansoor Alam (April 2002).

In Punjab, 41 out of total 43 judges of the Lahore High Court were administered the oath. Only two judges -- Mr Justice Ehsanul Haq Ch and Mr Justice Najamul Hassan Kazmi -- did not take oath.

In Sindh, three High Court judges -- Mr Justice Dr Ghous Muhammad, Mr Justice Rasheed Ahmed Razvi and Mr Justice Mushtaq Ahmed Memon -- were not invited to take fresh oath under POC in Karachi.

In Quetta, Chief Justice of Balochistan High Court (BHC) Mr Justice Iftikhar Muhammad Chaudhry and four other High Court judges took a fresh oath under PCO.

The fresh crisis with the judiciary refreshed the memories of General Zia's sacking of 19 Supreme Court and High Court Judges who refused to take oath under his PCO of 1981. Feeling that he had been badly used, the Chief Justice of the Supreme Court, Anwarul Haq, who had headed the bench which approved Zulfikar Ali Bhutto's hanging, refused to take the oath. The former Chief Justice of the Lahore Court, Molvi Mushtaq Ahmad who had sentenced Bhutto to death in the first place, although willing to take the oath was not asked to do so. While sacking the judges, General Zia explained: "We want the ju­diciary to mind their own business and not to meddle in anything else. Power is an intoxicant. Please do not get me wrong. I personally have not been intoxicated with this. I want to share power, but I re­fuse to share power with those who do not entitle themselves.[1]

Apparently, the new oath was required for the same reasons as prevailed in March 1981 when General Zia ordered the new oath. A number of constitutional challenges to General Zia's rule were pending before the Supreme Court and the Chief Justice Anwarul Haw was understood to have set them down for hearing shortly. The PCO killed all such petitions. A number of constitutional petitions against the military takeover were fixed before the Supreme Court for January 31, 2000. Like the 1981 PCO, General Musharraf's PCO-1 removed the power of the judiciary to decide whether a legislation was valid. Any judge who took the oath bound himself in advance not to question anything contained in the order.


There was a wide condemnation by the lawyers, political parties and human rights bodies of the oath-taking of judges under the Provisional Constitution Order. The Pakistan Human Rights Commission, in a statement, said that the military government has gone further down the anti-democratic road by forcing the judges, like General Ziaul Haq, to take their oath afresh under the PCO. The act has put an end to the pretence that the country is still being constitutionally governed and that the judiciary continues to act in accordance with its oath to the Constitution, it added. "The later (judiciary) has now, by its swearing of a new allegiance, become a creature not of the Constitution but of the chief of the army staff acting as the country's self-appointed chief executive….By not acting in unison and in accordance with their oath and conscience, the judges have done further harm to the institution and the national good. There is some comfort only in
that they are more numerous than the last time round and this time they include the chief justice himself." [2]

Former chief justice Saeeduzzaman Siddiqui, [3] in a press interview, said that he chose not to take fresh oath under the Provisional Constitution Order because it was a "clear-cut deviation" from the Constitution. When asked why this time more judges resigned than in 1981 when judges were asked by the then Chief Martial Law Administrator, General Ziaul Haq to take oath under a Martial Law Order, Justice Siddiqui replied, "Because most of the judges then were appointed by the then military government. Even I was an appointee of a military dictator. But later I took oath under the 1973 Constitution as Chief Justice of the Sindh High Court, then as a judge of the Supreme Court and later as the CJP." [4]

However, the fresh oath by judges under the Provisional Constitutional Order, did not come as a surprise for lawyers specially in the wake of pending constitutional petitions against the military takeover. The action of October 12, when the military took over in a bloodless coup, was an extra-constitutional step; therefore, the oath of judges under the PCO was expected. Mohammad Ali Saeed, advocate and former Sindh High Court judge said that he was expecting that such order has to come before January 31. A set of constitutional petitions against the military takeover is fixed before the Supreme Court on that day. LHCBA President Javed Gillani however termed the new oath as "a natural act," and said "it had to happen." He also added that this was nothing new, and was in fact expected under a military regime, as had happened in the past. [5]

Former Supreme Court chief justice Sajjad Ali Shah justified the need of the oath under PCO, saying that with the Constitution suspended, it was a legal requirement. "To validate the system, a PCO had been proclaimed. "When Gen Zia's martial law was forced, the Constitution was not abrogated but suspended at that time too." This time too, he said, the Constitution had been suspended and not abrogated. "And PCO has replaced the Constitution. The PCO is a substitute of the Constitution. In 1981 too, fresh oath was taken and many judges had lost their jobs. And Chief Justice Anwarul Haq of the Supreme Court, who had written the judgment in the Nusrat Bhutto case, had also taken the oath under PCO." [6]


1 - The Economist, London 2-4-1981

2 - Dawn 27-1-2000

3 - The day, the Chief Justice Siddiqi refused to take oath under the PCO, the News and Jang newspapers reported that an investigation is being initiated against former Chief Justice Saeeduzzaman Siddiqui and his wife on charges of corruption under normal laws. These report said that some agencies were probing that Justice (Retd) Saeeduzzaman Siddiqui "tried to sabotage the government's efforts to eradicate corruption and restore real democracy in the country".

Quoting government sources, the papers said that on the change of government on October 12, the armed forces and the judiciary had affirmed to work selflessly for the country's reconstruction. It was thus agreed to maintain a system of accountability to check those who had penetrated in the judiciary through political corruption and other "misdeeds". As Chief Justice, Saeeduzzaman Siddiqui had assured that he would take effective action against corrupt elements in the judiciary. But soon it was noticed that there was no change in the system of dispensing justice. There were visible indications to show that speedy justice and accountability promises were unreal and ineffective.

A former chief minister of NWFP was fined for Rs 10 lakh only despite substantial evidence regarding embezzlement of crores of rupees against him. Later, he (ex-CM) disappeared. "It was a blatant collusion." In some other cases, delaying tactics were allowed to be adopted. The report further claimed that soon the government officials came to know that people who purchased power in the past would now open their lockers and coffers to buy "justice". A highly placed person of the judiciary received Rs 125 million in cash while his other colleague received Rs 50 million. "The government has solid proof of these cash deals. When these persons were interrogated about the deals, they failed to give any explanation."

The report said that wife of the ex-chief justice had gold card of a nationalised bank. She went to London and Dubai for shopping and spent £ 30,000. She was also presented a diamond necklace worth Rs 13,00,000. [The News 27-1-2000]

4 - The News 27-1-2000

5 - The News 27-1-2000

6 - Dawn 28-11-2000

The author is a professional journalist, with Master's degree in Political Science from the Punjab University. Started his journalistic career as a sub-editor in the daily Bang-e-Haram, Peshawar in 1960. Later worked in the daily Anjam and the Tourist weekly Peshawar. Served as a News Editor in the Daily News, Kuwait from 1969 to 1976. Joined the English News Department of Kuwait Television as a News Editor in December 1976. Also worked as the correspondent of the Associated Press of Pakistan and the Daily Dawn, Karachi, in Kuwait. At present working as the Editor-in-Chief of the Kuwait Television English News.

[Courtesy:HEGEMONY OF THE RULING ELITE by Abdus Sattar Ghazali]

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