NRO & Dirty Role of Justice (R) Saeed uz Zaman Siddiqui.

Justice (R) Saeed uz Zaman Siddiqui (Ex-CJ Supreme Court of Pakistan and a recent Presidentail Candidate of Pakistan Muslim League - N for the Office of the President) - "People who live in glass houses should not throw stones" reminds us that we should be careful how we treat other people (with our words and actions) because we can all be easily hurt. People "throw stones" at other people to try to hurt them, and one way that people try to hurt other people is by saying bad things about them. If you lived in a "glass house" it would be very easy for other people to hurt you by throwing stones at you. "People who live in glass houses should not throw stones" means that we should not say insulting things to other people because they could easily do the same thing to us. Judge Not Lest Ye Be Judged! and Let He Who is Without Sin Cast the First Stone. Mr Justice (R) Saeed uz Zaman Siddiqui often conveniently forgets these time tested "Phrases" while talking to TV Channels [read Jang Group's GEO TV Channel and issuing statement to the press (again read Jang and The News International. He completely "forget" about his own dirty role he played during the Judicial Crisis of 1997 [Second Government of Mr Nawaz Sharifr and PML-N] while "Lecturing" the present government [read Asif Ali Zardari, Yusuf Raza Gilani, and PPP] as to how to implement SC Decision on NRO. Lets have a look as what he has opined on NRO while talking to TV Channels [Read GEO TV] and issuing statement to the News and Jang. REFERENCE: No law could be made which perpetuated corruption: SC By Nasir Iqbal Wednesday, 20 Jan, 2010 http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/news/pakistan/18-sc-issues-detailed-verdict-on-nro-case-am-08 DETAILED SUPREME COURT DECISION ON NRO
http://www.supremecourt.gov.pk/web/user_files/File/NROJudgment.pdf

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Former Chief Justice Supreme Court of Pakistan, Syed Sajjad Ali Shah narrating details as to how Mian Nawaz Sharif and PML - N had attacked the Supreme Court of Pakistan in 1997.

Nawaz Sharif (PML - N) Attacked Supreme Court 1



Nawaz Sharif (PML - N) Attacked Supreme Court 2



Nawaz Sharif (PML - N) Attacked Supreme Court 3



Nawaz Sharif (PML - N) Attacked Supreme Court 4



Nawaz Sharif (PML - N) Attacked Supreme Court 5



BBC Documentary on Nawaz Sharif (PML - N) Corruption



“In case of the appointment of judges, the president is bound to act on the advice of the prime minister, which means that any violation of the Constitution or the Supreme Court’s judgments would be the responsibility of the prime minister,” former chief justice Saeeduzzamman Siddiqi told The News on Tuesday. Justice Siddiqi said that a reference filed before the Supreme Court by the then president Sardar Farooq Khan Leghari in 1997 had sought the apex court’s view over his contention that in the appointment of judges it was the president’s exclusive prerogative to act on the recommendations of the chief justice. “The same reference was turned down by the larger bench of the Supreme Court and ordered that in the cases of judges’ appointments the president is bound to act on the advice of the prime minister,” the former chief justice said, adding that in the same ruling the Supreme Court had interpreted Article 48 of the Constitution that bounds the president to act in accordance with the advice of the cabinet or the prime minister. Justice Siddiqi said that the president can use his exclusive prerogative in merely those appointments and actions for which the Constitution clearly empowers the president “to act in his discretion”. REFERENCE: PM the likely casualty of judges row
Wednesday, January 20, 2010 By our correspondent http://thenews.jang.com.pk/top_story_detail.asp?Id=26764

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Right after the announcement of detailed SC Decision on NRO on 19-01-2010, Mr Saeeduz Zaman Siddiqui while talking to GEO TV's Senior Correspondent Mr Kamran Khan said that "The story pertaining to the detailed verdict of the Supreme Court of Pakistan regarding the infamous law, the so-called NRO was aired on Tuesday evening as breaking news by the most popular news channel of the country ‘Geo News’. It was followed by detailed analysis and expert’s opinion with host Kamran Khan. Former Chief Justice of Pakistan Justice (R) Saeeduzzaman Siddiqui held in the programme that the qualification of incumbent President Zardari could be challenged through ‘quo warranto’ under the Constitution in the light of the detailed judgement." REFERENCE: Another first Geo TV breaks news of detailed SC verdict Wednesday, January 20, 2010 By Muhammad Saleh Zaafir http://thenews.jang.com.pk/daily_detail.asp?id=219692



URDU TEXT OF DAILY JANG IS AS UNDER:

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Wednesday, January 20, 2010, Safar 04, 1431 A.H
URL: http://www.jang.com.pk/jang/jan2010-daily/20-01-2010/main.htm



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"People who live in glass houses should not throw stones" means that we should not say insulting things to other people because they could easily do the same thing to us. Judge Not Lest Ye Be Judged! and Let He Who is Without Sin Cast the First Stone."

Dirty Role of Justice (R) Saeed uz Zaman Siddiqui.

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The story of the storming of the Supreme Court on Friday November 28, 1997, by ministers, parliamentarians, and supporters of the second government of Mian Nawaz Sharif is a subject upon which all those who were members of the executive, legislature, and judiciary at that point in time do not care to dwell. That same sorry day, the Chief Justice of Pakistan, Sajjad Ali Shah, the main object of the storming, wrote to President Farooq Ahmed Khan Leghari narrating the facts of the incident, requesting him to take action under Article 190 of the Constitution and provide security cover for the court and its judges by calling in the army for their protection. He also narrated how "a Judge of this Court", Justice Saeeduzzaman Siddiqui, had overstepped his mark by hearing petitions which he should not have heard without the authority of the Chief Justice, how he had passed administrative orders without proper authorization, and how he, with some of his brethren acquiescing, had deliberately caused a division amongst the judges of the apex court of the land. He asked the president to take the necessary steps for action against Siddiqui by the Supreme Judicial Council. - The matter dragged on and on through the tenures of Chief Justices Ajmal Mian and Saeeduzzaman Siddiqui and the government of Nawaz Sharif. When Justice Irshad Hassan Khan took over as Chief Justice last year under this military government he revived the matter in September, a thousand days down the road, and ordered the Islamabad Inspector-General of Police to institute an inquiry to be conducted by a Superintendent of Police "to identify the miscreants involved in this incident and thereafter proceed in accordance with the law." The results of such an inquiry and the tracing of the masterminds could have well been anticipated. On March 25 this year a story in the national press, dateline Islamabad, told us that the inquiry team "filed a sketchy report and that too, too late, reportedly because of political considerations to engineer the restructuring of the ousted ruling party." Reportedly the interior ministry had refused access to Mushahid Hussain and Saifur Rahman, both incarcerated at the time, and their plan to request that Nawaz Sharif be produced for interrogation was thwarted by his exile to Saudi Arabia. REFERENCE: Leghari and the storming By Ardeshir Cowasjee 08 April 2001Sunday 13 Muharram 1422 http://www.dawn.com/weekly/cowas/20010408.htm

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The third judge, Justice Nasir Aslam Zahid, reached Quetta in the evening and he also appended his signature. Incidentally, all three judges in Quetta were inducted in the Supreme Court on my recommendation and had been administered their oath by me.Justice Saeeduzzaman Siddiqui passed a similar order in the Peshawar bench. Justice Mukhtar Junejo was also a member of the bench but refused to sit on the bench in that case. Justice Siddiqui took over powers of Chief Justice and issued his own roster and directed that the matter be heard by a full court except the CJP who was restrained and Justice Ajmal Mian who was the intended beneficiary and was conveniently present in Islamabad on one week’s leave as he wanted to defuse the tension and resolve differences among the judges supporting the CJP and those supporting the prime minister. The Constitution can be amended. In fact, that is the only way to remove ambiguity in the language. Nobody talks about the attack on the Supreme Court in November 1997 and how it happened and what was the conspiracy between certain judges and the government. The judges followed the directions of Justice Saeeduzzaman because the government gave its nod. These are the circumstances to be considered while evaluating the judgment in Malik Asad’s case. None of these 10 judges regretted the attack on the Supreme Court. The whole offensive was filmed by hidden cameras fixed on the premises of the Supreme Court and was seen by the president, the prime minister and the COAS. Photographs were published in newspapers showing federal ministers leading the mob. I sent a reference to the president against Justice Saeeduzzaman Siddiqui on grounds of misconduct but the prime minister refused to act. REFERENCE: A defining moment for the judiciary By Sajjad Ali Shah [The writer is a former Chief Justice of Pakistan] July 21, 2007 Saturday Rajab 05, 1428 http://www.dawn.com/2007/07/21/ed.htm#3

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Judiciary's Checkered History as compiled in a book The Hegemony of the Ruling Elite in Pakistan (2000) by Mr. Abdus Sattar Ghazali - 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]

Excerpts from the book:

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JUDICIARY AND POLITICS IN PAKISTAN

It may not be a too harsh judgment to say that Judiciary in Pakistan has functioned at the behest of authority and has allowed itself to be used to further the interest of the state against its citizens. When the military government of General Parvez launched the accountability process of corrupt politicians and bureaucrats in the aftermath of Oct 12, 1999 takeover, the former Chief Justice Sajjad Ali Shah urged that the judiciary should be included in the accountability process. However, Chairman of National Accountability Bureau (NAB) Gen. Amjad Husain has opposed the accountability of the armed forces and the judiciary. Justifying his opposition to the accountability of the judiciary, Gen. Amjad said: " The powers given to the NAB chairman have made the NAB very powerful. We need to evolve a mechanism for keeping the NAB under check and the only institution that can check the NAB is judiciary. But if we start accountability of the judiciary, who will check the NAB?" [1]

The controversial role of judiciary in politics can be traced back to 1955 when Chief Justice Mohammad Munir backed Governor General Ghulam Mohammad's action to dissolve the first Constitutional Assembly of Pakistan that curtailed the Governor General's powers. On 21 September 1954, the Constituent Assembly amended the Government of India Act. The amendments precluded the Governor General from acting except on the advice of his ministers. All ministers were to be members of the Assembly at the time of their selection and continue to hold office only so long as they retained the confidence of the legislature. [2]

Justice Munir, in Molvi Tamizuddin Khan's case, declared that the Assembly was not a sovereign body. Munir declared that the Constitutional Assembly had 'lived in a fool's paradise if it was ever seized with the notion that it was the sovereign body of the state.'

Munir was not able to find in the dominion constitution any empowerment of the Governor General which allowed his dissolution of the Constitutional Assembly. But this he dismissed as a 'lacuna' in the Independence Act. He insisted that to understand the role of Pakistan's Governor-General it was necessary to go 'far back in the history and to trace the origin and development of the British Empire itself.'

According to Munir, the independence Jinnah gained for his country was restricted by the prerogative rights of the English Crown. He adopted the argument made to the court by Lord Diplock (a government attorney) that Pakistan did not become independent in 1947. It had attained a status like the senior dominions, 'virtually indistinguishable from independence.

The conclusion reached by Justice Cornelius in his dissenting opinion was entirely different. He answered Munir's interpretation of Commonwealth history with his own understanding of the meaning of a dominion. He maintained that the historical fact was that Pakistan had been created with complete independence, and he pointed to what he believed to be clear differences in the status of the senior dominions and the new dominion of Pakistan. Cornelius stressed that Pakistan was not just a dominion but an independent dominion.

According to Allen McGrath, author of the Destruction of Pakistan's Democracy, when Munir denied the existence of the Assembly's sovereignty, he destroyed Pakistan's existing constitutional basis. He did further harm when he did not indicate where sovereignty resided. He thereby created a vacuum which was an opportunity for Ghulam Mohammed. The absence of a constitutional foundation is a harm which has lived on in Pakistan since Ghulam Mohammad left office.

SPECIAL REFERENCE NO. 1 OF 1955

Special Reference No. 1 of 1955, decided after Tamizuddin, furnished a further example of how Munir's court could accommodate Ghulam Mohammad in his consolidation of power. In the reference, Ghulam Mohammad asked the court for an advisory ruling.

To support Ghulam Mohammad's use of non-constitutional emergency powers, Munir found it necessary to move beyond the constitution to what he claimed was the Common Law, to general legal maxims, and to English historical precedent. He relied on Bracton's maxim 'that which is otherwise not lawful is made lawful by necessity', and the Roman law maxim urged by Jennings, 'the well-being of the people is the supreme law.'

In dealing with the principle of state necessity, Chief Justice Munir observed:"Subject to the condition of absoluteness, extremeness, and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under stress of necessity, the necessity being referable to an intention to preserve the Constitution, the state, or the society, and to prevent it from dissolution, and affirms...that necessity knows no law...necessity makes lawful which otherwise is not lawful." [3]

Ghulam Mohammad had seized the power of the state, and because the Constituent Assembly was denied a judicial remedy, the Governor General's position was the ultimate power of the state was not confirmed. The new Constituent Assembly, which the court required Ghulam Mohammad to call, was not a sovereign body, and the Governor General now enjoying virtual veto power over all its legislation. It also followed from the court's decision on sovereignty that the Assembly could be dissolved by the Governor General for political purposes.

Three years later, in 1958, the same Chief Justice placed a judicial stamp of approval on President Iskandar Mirza's action to dissolve the parliament and abrogate the 1956 constitution. Chief Justice Munir's decision in Dosso v. Federation of Pakistan, case set the constitutional stage for General Ayub Khan's 1958 military takeover of the government, which took place one day after the court's decision was announced.

1958 MARTIAL LAW SANCTIONED BY MUNIR

When Sikandar Mirza dissolved the parliament in 1958 and placed the country under martial law, Munir and his court were readily available to place a judicial stamp of approval on what had taken place. In Dosso v. Federation of Pakistan, Munir found:

'It sometimes happens, however, that the Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of the constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing constitution but also the validity of the national legal order…For the purpose of the doctrine here explained, a change is, in law, a revolution if it annuls the constitution and the annulment is effective…Thus the essential condition to determine whether a constitution has been annulled is the efficacy of the change…Thus a victorious revolution, or a successful coup d'etat is an internally recognized legal method of changing a constitution. After a change of constitution. After a change of the character I have mentioned has taken place, the national legal order must for its validity, depend upon the new law-creating organ. Even courts lose their existing jurisdiction and can function only to the extent and in the manner determined by the new constitution.

…If what I have already stated is correct, then the revolution having been successful, it satisfies the test of efficacy and becomes a basic law-creating factor. [4]

Munir attempted to garner respectability for his legal theory of revolution by claiming it was based on Hans Kelsen's The Pure Theory of Law, but Kelsen subsequently took pans to deny his work could serve as a basis for Munir's theory of revolution, and Kelsen's theory was later itself later repudiated by the Pakistan Supreme Court. Munir's decision in Dosso set the constitutional stage for Ayub Khan's 1958 military takeover of the government, which took place one day after the court's decision was announced. [5]

YAHYA'S RULE DECLARED ILLEGAL

In Asma Jilani v. The Government of Punjab and others on 7 April 1972 the Supreme Court declared that General Yahya Khan had usurped power, that his action was not justified by the revolutionary legality doctrine and consequently his martial law was illegal. The court, after its detailed reasoning, came to the conclusion: "With the utmost respect, therefore, I would agree with the criticism that the learned Chief Justice (Mohammad Munir CJ) not only misapplied the doctine of Hans Kelsen, but also fell into error that it was a generally accepted doctrine of modern jurisprudence. Even the disciples of Kelsen have hesitated to go far as as Kelsen had gone…I am unable to resist the conclusion that Mohammad Munir erred both in interpreting Kelsen's theory and applying the same to the facts and circumstances of the case before him. The principle enunciated by him is wholly unsustainable." [6]

Justice Yaqub Khan concluded that the judgment in Tamizuddin Khan's case, the 1955 reference, and Dosso's case had made "a perfectly good country…into a laughing stock, and converted the country into autocracy and eventually …into military dictatorship." He pointedly criticized the abrogation of the 1956 constitution, observing that "Iskandar Mirza and Ayub Khan committed treason, and destroyed the basis of representation between East and West Pakistan."

The decision was though bold but it cannot be forgotten that the Court declared Yahyah Khan a usurper only after he had ceased to hold office while the other usurpers were dead. The court has yet to perform the painful duty of questioning the legitimacy of a de facto sovereign while he is in office.

SUPREME COURT VALIDATES GENERAL ZIA'S COUP IN 1977

On November 10, 1977 the Supreme Court unanimously validated the imposition of martial law, under the doctrine of necessity. The law of necessity recognized and upheld by Pakistan's highest judicial body has proved an honorable protection for military adventure in civil government. In its judgment dismissing Begum Nusrat Bhutto's petition challenging detention under Martial Law of former Prime Minister Z.A. Bhutto and 10 others, the nine-member court headed by Chief Justice Anwarul Haqobserved that after massive rigging of elections followed by complete breakdown of law and order situation bringing the country on the brink of disaster, the imposition of mar tial law had become inevitable. The judgment also said the court would like to state in clear terms that it had found it possible to vali date the extra constitutional action of the Chief Martial Law Administrator (CMLA) not only for the reason that he stepped in to save the country at a time of grave national crisis and constitutional breakdown, but also because of the solemn pledge given by him that the period of constitutional deviation shall be of as short a duration as possible. By the period of constitutional deviation, the court meant, of course, the period between the martial law takeover and the holding of elections.

The Supreme Court judgment said:

It will be seen that the declared objectives of the imposition of Martial Law are to create conditions suitable for the holding of free and fair elections in terms of the 1973 constitution, which was not being abrogated, and only certain parts of which were being held in abeyance, namely, the parts dealing with the federal and pro­vincial executives and legislatures. The President of Pakistan was to continue to discharge his duties as heretofore under the same constitution. Soon after the polls, the power is to be transferred to the elected representatives of the people. It is true that owing to the necessity of completing the process of accountability of holders of public offices, the holding of elections had to be postponed for the time being but the declared intention of the Chief Martial Law Administrator still remains the same namely, that he has stepped in for a temporary period and for the limited purpose of arranging free and fair elections so as to enable the country to return to a democratic way of life.

"In the presence of these unambiguous declarations, it would be highly unfair and uncharitable to attribute any other intention to the Chief Martial Law Administrator, and to insinuate that he has not assumed power for the purposes stated by him, or that he does not intend to restore democratic situations in terms of the 1973 consti tution."[7]

WHY THE SUPREME COURTS REFUSED TO RESTORE JUNEJO GOVT?

In 1990, members of the National Assembly dissolved the General Zia in May 1988, challenged its dissolution in petitions in writ petitions in the High Courts. The petitions were dismissed. The Supreme Court dismissed the appeals against these judgments. In one of the case, the Federation of Pakistan v Saifullah Khan, the Supreme Court, held that the dismissal of Mohammad Khan Junejo's government by General Zia in May 1998 was unconstitutional but it refused to restore the National Assembly.

In reply to a question regarding Haji Saifullah's case, General Aslam Beg told the journalists in Lahore on Feb. 4, 1993: "I did try to convey to the Honourable Supreme Court that, we had given a solemn undertaking to the nation that elections to the National Assembly would be held according to the schedule already announced and that, therefore, it would be in the best interest of the nation that we stick to our promise and the said elections were allowed to be held accordingly." [8]

The Court, on February 21, formally charged General Beg with contempt of court. When the trial started, General Beg met with the Army Chief of Staff, General Waheed and through him assured President and the army leadership that he will not damage their image. [9]

During the enquiry proceedings, the Chief Justice censured the respondent for giving an "irresponsible and careless" answer to the question asked by the press on Fe. 4, 1993, and remarked: "we are very sorry to hand over the defense of the country to a person if he was so careless." Again on February 20, the Chief Justice, in a moment of great anger observed: "I do not change my opinion, even if Allah the Almighty directed me to do so." Yet again, on 22 February 1993, the Chief Justice in anger held out the threat to the reporters and the respondent that "if you fail to produce the tapes, I shall blacken many faces" and "I shall ensure that I send some of you to your graves and hell."

On March 1, General Beg told the court that Chairman Senate Waseem Sajjad had carried his message to the SC to block restoration of Junejo assembly. Waseem Sajjad denies Beg's statement. At the end, General Beg was let off by the Supreme Court with a conviction but without a sentence. On appeal, even that conviction was overturned by the same court. In a majority judgement, the Supreme Court decided on January 9, 1994 to drop proceedings against General Beg. [10]

Commenting on the judgment, The Friday Times, Lahore, said: the court was humiliated during the contempt hearing against General Beg because it knew that it couldn't punish an army general. People made fun of Chief Justice Zullah's eccentric obiter dicta, and a witness called him corrupt inside the court. [11

THE SUPREME COURT UNHOLDS BENAZIR'S DISMISSAL

On 6 August 1990, President Ghulam Ishaq Khan, under Article 58(2)(b) of the constitution, had dissolved the National Assembly and the government of Benazir Bhutto. The said dissolution order was challenged in various High Courts. Five petitions came up before the Lahore High Court for adjucation. However, the Court unanimously held that the grounds weighed with the President for dissolving the National Assembly had direct nexus with the preconditions prescribed the Article 58(2)(b) of the constitution. Thus, according to the High Court's judgement, the government of the Federation could not be carried on in accordance with the provisions of the constitution and an appeal to the electorate was necessary.

In an appeal, the Supreme Court, by majority, in a case known as Ahmed Tariq Rahim v. Federation of Pakistan upheld the decision of the Lahore High Court pertaining to the dissolution of the National Assembly. [12]

WHY THE NAWAZ SHARIF GOVERNMENT WAS RESTORED?

On May 26, 1993, a full bench of the Supreme Court, in an almost unanimous verdict, declared that President Ghulam Ishaq Khan had acted unlaw fully in dissolving the National Assembly and dismissing the Nawaz government. The Supreme Court announced: "On merits by majority (of 10 to 1) we hold that the order of the 18th April, 1993, passed by the President of Pakistan is not within the ambit of the powers con ferred on the President under Arti cle 58(2)(b) of the constitution and other enabling powers available to him in that behalf and has, there fore, been passed without lawful authority and is of no legal effect." [13]

Chief Justice Nasim Shah took the view that the president and not the prime minister had been instrumental in subverting the spirit of the constitution because "the president had ceased to be a neutral figure and started to align himself with his opponents and was encouraging them in their efforts to destabilize his government."

However, Justice Sajjad Ali Shah, the only Sindhi judge of the Su preme Court in his dissident verdict pointed out that two Sindhi Prime Ministers, before this, were dismissed under the same article of the constitution, but the Supreme Court upheld the decision. However, when it was the turn of a Prime Minister from the Punjab then the ta bles were turned and the assembly as well as the government was re stored. "Seemingly it so appears that two Prime Ministers from Sindh were sacrificed at the altar of Article 58(2)(b) of the constitution but when turn of Prime Minister from Punjab came the tables were turned."

The dissenting judge added: "Indisputably right at the very outset of the proceedings indications were given that the decision of the court would be such which would please the nation...In my humble opinion decision of the Court should be strictly in accor dance with law and not to please the nation." Throughout the proceedings, the Chief Justice gave such remarks that led to the belief that the judges had already made up their minds.

The Supreme Court apparently gave its verdict against President Ghulam Ishaq Khan because it knew that the president has lost support of the power arbiter, the Army. The subsequent developments confirm this belief as the Chief of Army Staff, General Abdul Waheed Kakar forced Ghulam Ishaq Khan and Mohammad Nawaz Sharif to resign.

BENAZIR'S SECOND DISMISSAL ALSO UPHELD

The Supreme Court, on 29 January, 1997, by a majority decision upheld President Leghari's proclamation dissolving the National Assembly and dismissing Benazir's government. Justice Zia Mahmood Mirza was the only judge who said the presidential order was illegal and could not be sustained, the prime minister and the cabinet stood restored. [14]

Six of the seven judges on the bench upheld all the charges leveled by the president excluding the murder of Mir Murtaza Bhutto saying this was before a tribunal. The allegation of extra-judicial killings in Karachi was ground number one in the presidential proclamation dismissing the Benazir Government.

The court held that it was not necessary that all the material should be before the president to form his opinion before the dissolution of the assembly as was claimed by Aitzaz Ahsan. "Partial evidence was enough for forming the opinion…and there was no harm if corroborative and supportive material was produced after the dissolution of the assembly."

The six judges of the bench disagreed with Benazir's lawyer, Aitzaz Ahsan, that his client may also be given the same relief as provided to Nawaz Sharif, that is, the restoration of the assembly and her government.

Justice Zia Mehmood Mirza disagreed with the majority judgement held that requirement for using powers under Article 58(2)(b) had not been fulfilled. He stated that law laid down in the previous dissolution cases (Haji Saifullah case, Khawaja Tariq Rahim case and Mian Nawaz Sharif case) of complete breaking down of the constitutional machinery was not fulfilled in this case. Justice Mirza stated that president, who had praised the government at numerous occasions for doing great job in Karachi, had no material before him at the time he made his mind to dissolve the National Assembly.

It is interesting to note that four weeks before the Supreme Court judgment, the Caretaker Prime Minister, Malik Meraj Khalid, told a seminar in Karachi, that the IMF had agreed to release the stalled tranche only after his government dispelled the impression that the deposed government of Benazir was being restored. "When Pakistani team was negotiating with the IMF, a telephone call was made, asking them not to sign any accord because the Benazir government was being restored. The IMF officials were irked over the telephone call and the negotiations had run into snag because the international institutions were not inclined to dole out anything in this situation. With great difficulty the government convinced the IMF that nothing of that sort was happening," Khalid said. [15]

THE 1997 CRISIS WITH JUDICIARY

The crisis with judiciary began in August 1997 when the chief justice recommended elevation of five named judges to the supreme court. On Sept. 5, the Supreme Court suspended a government notification to reduce the number of judges from 17 to 12. The federal government, on Setp. 16, withdrew its notification. However, from around August 20 up to the middle of October there was practically no other issue in contest -- not publicly. And the resistance to the recommendation, in fact not-so veiled refusal to comply with it, was coming from Prime Minister, Nawaz Sharif and not the parliament.

On October 10, the aggrieved judges took the opportunity of a brief absence of Justice Sajjad from the country to call a full court review under the chairmanship of the acting chief justice. Justice Sajjad returns home in haste on October 13, calls off the full court meeting and transfers all dissident judges to the outposts of the apex court in Quetta, Karachi, Peshawar and Lahore.

The breach was now clearly in the open. The resentment of the dissident judges -- respected members of the judiciary -- must have been intense. The Chief Justice was master of the house, but a bitterly divided house. In an unprecedented move, on Ocober 21, five honourable judges of the Supreme Court sent a letter to the President of Pakistan, to complain about the behaviour of the Chief Justice of Pakistan and distance themselves from some of his actions. This letter was originally written to the chief justice, and later sent to the president. Never before in Pakistan’s history had such an incident occurred.

On November 3, a petition of contempt of court is entertained by the CJ against the PM and his close associates. A charged atmosphere was super-charged by summoning the PM to appear in the court on November 17 and demanding the Speaker of the National Assembly to turn over the expunged record of the assembly proceedings. Yet, another breach of the assembly's privilege.

A three-member Supreme Court bench, headed by the then chief justice "directed the president" on Nov 20 not to give assent to the Contempt of Court (Amendment) Bill 1997, as under: "In the circumstances we deem it fit and proper to direct respondent No. 1 (President of Pakistan) in constitutional petition No. 4 43 of 1997 not to give assent, and if assent has already been given the operation of the Contempt of Court (Amendment ) Act of 1997 is hereby suspended until further orders." There was no precedent , nor apparent ground in law, for the chief justice to prohibit the president's assent to that bill, and even less to rule the bill suspended if the assent had already been given.

The bill amending the law of contempt was innovative in that it provided for an appeal against a supreme court conviction for contempt, for automatic stay of the conviction, and for that appeal to be heard by another set of judges of the same court.

On Nov. 26, the Supreme Court, Quetta Bench, declared Chief Justice Sajjad Ali Shah's appointment in abeyance and the Prime Minister sends to president the name of the new Chief Justice for approval. This case was the strangest of the strange, indeed, one in which not only the little-known petitioners but even the federation stated that the appointment of Justice Shah by superseding three senior judges was illegal. The next day, a five member Supreme Court bench annuls Quetta bench's verdict over CJ's suspension while, the Supreme Court Peshawar bench endorses Quetta bench's order.

The ruling political party was not far behind in ugliness when the party's rabble attacked the Supreme Court premises on November 28. It was one of Pakistan's saddest days. There is no doubt the disgraceful attack on the Supreme Court was completely premeditated.

On December 2, by suspending the 13th Amendment in a total arbitrary manner, the stage was set for the dismissal of the government of Nawaz Sharif. The grant of temporary restoration of the presidential power to dissolve the National Assembly (the repealed Article 58(2)b on the ground of a break-down of the constitutional machinery was obviously an act of desperation to prevent a feared collapse. It was virtually the last throw of the dice in a do-or-die game.

After weeks of machinations and Machiavellian scheming aimed at ousting Prime Minister Nawaz Sharif from power, the country's partisan president had finally to resign on Dec. 2. Mr. Leghari had never relished the fact that Mr. Nawaz Sharif should have taken away his powers to dismiss the government through the 13th Amendment. In fact, the Pakistani judiciary was used both by Mr. Leghari and Mr. Nawaz Sharif to establish their personal authority. In this power game, Chief Justice Sajjad Ali Shah was very much with Mr. Leghari. But this power struggle could not be carried on because of the effective intervention of the Army Chief, General Jehangir Karamat.

When Justice Sajjad Ali Shah was removed from the office, on Dec. 2, the crucial issues pending before the Supreme Court were:

1. Contempt of court action against Nawaz Sharif and seven others.

2. Petition regarding the unlawful allotment of thousands of plots by him when chief minister of Punjab.

3. Petition regarding the unlawful ISI distribution of Rs. 140 million of the people's money to him and others.

4. Petition regarding award of wheat transport contract by him to his crony Saeed Shaikh.

5. Petition regarding his misuse of power in pressurizing banks to settle loan cases out of court.

6. Petition challenging his Anti-terrorist Act 1997.

7. Petitions regarding suspension of 13th and 14th Amendments. [16]

Judiciary damaged

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, one 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. [17]

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. [18]

SC issues detailed judgment in Sajjad's 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." [19]

CONTROVERIAL JUDGMENTS

The judiciary did not give Nawaz Sharif any trouble since he sacked the Chief Justice of the Supreme Court, Sajjad Ali Shah. Since then, the higher courts gave almost all decision on major issues in favor of the government that had 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 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.

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.

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.

According to Zulfikar Khalid Maluka, the author of the Myth of Constitutionalism in Pakistan, given the four-decade long record of the higher judiciary in the country, popular perceptions and criticism, particularly of its judgments on constitutional petitions, have crystallized on the following:

1. Whenever martial law has been imposed, the Courts seemed to have been waiting in the wings to provide it legal cover of validation.

2. The Courts in Pakistan have hardly ever pronounced any judgment against any ruler while he was in office. The overall pattern: the law of necessity was applied to all the incumbent rulers; but when they fell, their acts were depicted as usurpation, illegal, and unconstitutional (as in the Asma Jilani case).

3. The general appraisal of the higher judiciary seems to be: 'senior members of the judiciary, particularly those holding the august office of Chief Justice in Supreme Court or High Courts, have, by playing political roles in affiliation with the government, undermined the credibility of their high offices.

The factors of political instability and socio-economic insecurity imbued the intelligentia's character with 'opportunism' and scant respect for principles. Such traits are also reflected in the judiciary, stultifying its image, prestige, and credibility as an impartial and independent custodian of justice and as the guardian of the law of the land. [20]

MEDDLING WITH THE JUDICIARY

The judiciary is perhaps the most important pillar of the liberal democratic system. It must act as the ever-vigilant watch-dog over the executive, with a view to ensure that the rights of the people are not transgressed and trampled upon by an executive which rarely, if ever, misses an opportunity to be arbitrary and unfair. The ordinary citizen must be afforded fair protection. The judiciary is supposed to act as a restraint on any governmental excesses, particularly against the citizenry of the state. However, the successive governments approach towards the judiciary is to limit opportunities for correcting wrongs and redressing grievances. The strategy adopted to neutralize and even manipulate this vital organ of the system has been through undue control of the appointments procedure and undue interference through dubious and obviously ill-meaning amendments of the constitution.

Meddling with the judiciary is a tradition in Pakistan.[21] Every successive government of Pakistan seems to have the destruction of the judiciary high on its political agenda. The habit of meddling with the judiciary has been reinforced by the nature of Pakistan's governments. They have been either military -- which need the judiciary to give them legitimacy -- or weak -- which need the judiciary to give them strength. However, this is not to say that all the people appointed to the Superior Courts by the autocrat rulers have not performed their functions with dignity and impartiality. After all, those who delivered the dissenting judgment in the Zulfikar Ali Bhutto's case and those who refused to take oath under General Zia's PCO were also appointed by the same rulers.

Barring President Agha Mohammad Yahya Khan, each head of state or government from Ayub Khan downwards, has done his utmost to weaken the judiciary. Zulfikar Ali Bhutto and his ruling People's Party, the progenitors of the present government, were the first to mount a frontal assault on the holders of judicial power. [The slaying of judiciary by Ardeshir Cowasjee - Dawn 1-4-1994] In 1973, Mohammad Owais Murtaza, the District and Sessions Judge at Sanghar, was arrested in his court, handcuffed and then jailed. Evidently Judge Murtaza had granted bail to several of those arrested as he was lawfully empowered to do, much to the annoyance of Bhutto and his minions. In those days, Sanghar was the scene of considerable political conflict and various people were picked up and charged under the Defense of Pakistan Rules.

Only one year after the unanimous approval of the 1973 constitution, the first constitutional amendment was introduced on May 9, 1974 to amend the Article 199 which barred the judiciary from "issuing writs in the instance of a person who served in the armed forces of Pakistan, or who was for the time being subject to any law relating to any of those Forces, or in respect of any action in relation to him as a member of the armed forces or as a person subject to such law."

In 1975, by means of the Fourth Amendment to the Constitution, the power of the High Court under Article 199 for the grant of bail to a person detained under any law providing for preventative detention was taken away. The High Court was also denuded of the power to make an order prohibiting the detention of a person. Its power to grant a stay order against the government was confined to the span of 60 days only in relation to public revenue and other specified cases. In 1976 there followed notorious Fifth Amendment under which the grotesque provision was made that after a Chief Justice, whether of the Supreme Court or of a High Court, had held office for a period of five years, then notwithstanding the fact that he had not attained the age of retirement he was liable to be demoted to the status of an ordinary judge of his court or else forced to leave office. Suspending the rules of procedures, both these debilitating amendments were pushed through parliament, without discussion, in a matter of hours. However, in 1985 both were deleted by succeeding dictator General Ziaul Haq, who had his own methods of dealing with the judges, for instance, the promulgation of the wicked PCO.

In 1981, the Provisional Constitutional Order (PCO) played untold havoc and inflicted misery not only on the judiciary but also on the citizens of Pakistan. By this device the executive made wholesale changes in the judiciary. Confirmed judges of the superior courts were relieved of their offices. Others were given the option either to take a fresh oath under the PCO or to relinquish their office. These were the days of martial law and like the rest of the country the judiciary too was held hostage.

President Zia's successor too violated his oath of office and manipulated the judiciary. Justice Qazi Jamil was the only judge of the Peshawar High Court who was not confirmed by President Ghulam Ishaq Khan apparently because of his verdict in the NWFP assembly dissolution case wherein the High Court set aside the order of dissolution and restored the Assembly and the cabinet. Another GIK victim was Justice Abdul Hafeez Memon of the Supreme Court, who was twice appointed during the PPP governments and twice not confirmed by the President.

The practice in Pakistan, contrary to the constitutional provisions in this regard, has developed to appoint 'Additional Judges' (under Article 197) and not 'Judges' (under Article 193). This is a device apparently used with the motive of ensuring a degree of control over the judges and to curtail their independence.

Article 193 of the constitution provides that a judge of the High Court is to be appointed by the President, after consultations with the Chief Justice of Pakistan and the Governor of the province concerned. Once appointed, he is to hold office till he attains the age of sixty-two years unless he sooner resigns or is removed in accordance with the constitution. This is the norm. There is, however, an exception to this rule, Article 197 provides that when the office of a judge is vacant or he is absent or unable to perform the functions of his office or it is necessary to increase the number of judges in a high Court, the President, following the Article 193 procedure, may appoint a person as an Additional Judge for a fixed period.

The power under article 197, as is apparent from its language, is to be exercised in a limited set of circumstances to meet a particular temporary need. It is not available for making appointments in the normal course. As is, however the case with all such powers granted by the constitution, the exception has become the norm. All governments in the recent past have made all appointments to the High Court under Article 197 instead of Article 193. When the term of the Additional Judge so appointed is about to expire, only then is he appointed as a judge of the High Court under Article 193.

Article 197 is used for purposes it was never meant to serve. The provision has been subverted by successive governments to suit their ends. It has become an expedient device for keeping the judges on probation during their formative years. The damage to the institution of the judiciary and its high traditions which is caused by this expedient use of Article 197 is enormous.

In August 1994, the Benazir government filled several long-standing vacancies in the four provincial High Courts. Of the 20 new judges appointed to the Lahore High Court, 13 were former activists in the ruling Pakistan People's Party, one of them a former minister (Saeed Awan against whom a murder case was pending). Three were supporters of the Muslim League faction which supports Miss Bhutto's coalition government. In November 1994, Miss Bhutto threw tradition overboard when she by-passed two senior judges and appointed Sajjad Ali Shah as Chief Justice of the Supreme Court. Mr. Shah was the lone dissenter in the 11-member bench whose decision restored Mr. Sharif to power in May 1993 after he had been booted out by the president a month earlier.

The rulers generally kept vacancies in the higher judiciary in order to oblige favorites whenever an occasion arose for it or expediency so demanded. When Benazir Bhutto took over in November 1993, there were 34 vacancies in the superior courts: two in the Supreme Court, 17 in the Lahore High Court, 10 in the Sindh High Court, four in the Peshawar High Court and one in the Balochistan High Court. While thousands of cases were pending, what justification was there to keep these vacancies unfilled?

The net effect of these policies, and the resultant performance of this organ has been that the entire system of dispensation of justice has become beyond the reach of more than 80 per cent of the citizens of this country. The conditions in the courts, the delays, the never-ending procedures, the costs involved, all present a very discouraging and even heart-breaking picture for any prospective litigant.

The system of justice has also been brought into disrepute by the introduction of parallel judiciary (i.e., the Federal Shariat Court whose judges can be laymen and whose appointment is solely at the discretion of the executive), and the establishment of courts that do not follow the procedure required by due process of law.

SUPREME COURT JUDGMENT ON JUDGES APPOINTMENT

The constitutional provision enabling the government to appoint judges on an ad-hoc basis was challenged in Supreme Court by Habib Wahabul-Khairi. The main burden of this case rested upon an interpretation of Articles 177 and 193 of the constitution. These articles state that appointments to the superior judiciary -- that is, to the Supreme Court and the four high courts -- are to be made by the President of Pakistan "after consultation" with the chief justices concerned. The principal question posed in this case was to what was the nature of the consultation envisaged by the constitution.: a formality which the government had to observe or something more substantial? On March 20, 1996, the Supreme Court issued a landmark judgment which leaves little room for doubt. The court held that the consultation "should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play."

The Supreme Court also directed the federal government to appoint permanent chief justices in higher courts where at present constitutional functions are being performed by acting chief justices appointed by the government. The Court ruled that the offices of chief justice and judges of the high courts normally should be filled immediately -- not later than 30 days -- but a vacancy occurring before the due date on account of death or for any other reasons should be filled in within 90 days on permanent basis. The SC judgment also upheld the rule of seniority in respect of the appointment of high court chief justices. The most senior judge has a legitimate expectancy to be considered for appointment as the chief justice and is entitled to be so appointed in the absence of any concrete and valid reasons to be recorded by the President/Executive, it said. The court observed that the posting of a sitting CJ of a high court or a judge to the Federal Shariat Court without his consent "is violative of Article 209, which guarantees the tenure of office." [22]

The major points of the Supreme Court judgment are:

1. The words "after consultation" employed inter alia in articles 177 and 193 of the constitution connote that the consultation should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the chief justice of Pakistan and the chief justice of a high court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive.

2. That if the President/Executive appoints a candidate found to be unfit and unsuitable for judgeship by the Chief Justice f Pakistan and the Chief Justice of the high court concerned, it will not be proper exercise of power under the relevant article of the constitution.

3. That permanent vacancies accruing in the offices of Chief Justice and judges normally should be filled in immediately, and not later than 30 days but a vacancy occurring before the due date on account of death or for any other reasons, should be filled in within 90 days on permanent basis.

4. That no ad hoc judge can be appointed in the Supreme Court while permanent vacancies exist.

5. That in view of the relevant provisions of the constitution and established conventions/practice, the most senior judge of a high court has a legitimate expectancy to be considered for appointment as the chief justice and in the absence of any concrete and valid reasons to be recorded by the president/executive, he is entitled to appoint such in the court concerned.

6. An acting chief justice is not a consultee as envisaged by the relevant article of the constitution, therefore, mandatory constitutional requirement of consultation is not fulfilled by consulting an acting chief justice except in case the permanent chief justice concerned is unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness.

7. That an appointment of a sitting chief justice of a high court or a judge thereof in the Federal Shariat Court under article 203-C of the constitution without his consent is violative of article 209, which guarantees the tenure of office. Since the former article was incorporated by the chief martial law administrator and the later article was enacted by the framers of the constitution, the same shall prevail and, hence, such an appointment will be void.

8. That transfer of a judge of one high court to another high court can only be made in the public interest and not as a punishment.

The Supreme Court verdict, which has both short and long-term implications, touched on two constitutional themes. First, the question of higher judicial appointments which has been used by successive governments to tame the judiciary. The issue has been the subject of an intense debate for over two decades. For many years, Bar Councils, Bar Associations, and human rights organizations have been demanding discontinuance of the practice of running High Courts with the help of acting Chief Justices. The ruling has the authority of law on the appointment of judges until the law is changed or is interpreted differently by the superior judiciary itself.

Second, the judgment provides opening for a new constitutional order by redefining the amended constitution in a manner conceived to promote a process of genuine democratization. The 1973 constitution, now in force, retains some features of the anti-democratic amendments which General Zia incorporated at the gun point. The Court struck down Article 203-C, (which provided for the transfer of judges to the Shariah Court) an amendment made by General Zia, on the ground of conflict with Article 209. The apex court has sought to erase or reduce the rigors of some of the non-democratic amendments, without parliament rescinding them. In a narrow sense, the Supreme Court has entered uncharted terrain.

Several constitutional experts have disagreed with the Supreme Court ruling on the binding recommendations of the Chief Justices for the appointment of judges. They argue that under any normative scheme of a harmoniously constructed constitution, the Chief Justices of the Supreme and High Courts cannot insist that the President record, in writing, his "very sound reasons" for not acting upon their commendations in regard to the appointment of judges. In effect, the argument is that the President, not the Chief Justices concerned, is the appointing authority. They also argue that, with the exception of a very few countries in the world, the appointment of the judges of the superior courts is always made by the Chief Executive. Some of the retired judges of the Supreme Court and High Courts argued that the Supreme Court, in its judgment, has acted beyond its jurisdiction and has gone to the extent of enacting the law rather than interpreting the relevant articles of the constitutions, whereas the enactment or abrogation of any article of the constitution is the sole prerogative of the legislature.

On May 19, the Supreme Court returned a constitutional reference, filed by the president three days earlier, against the apex court decision, saying it had not been signed by the President as required by the constitution. On the same day the federal government filed a review petition against the Supreme Court decision. On May 26, Supreme Court Judge Mir Hazar Khan Khoso announces his dissenting judgment which said that the President has the power under the constitution to appoint judges and that no time-limit can be fixed for filling in the permanent vacancies for judges in the superior courts. He also differed with the majority decision on the issue of consultation of the president with the acting chief justice and justified the appointment of additional or ad hoc judges, which had been ruled unconstitutional by the majority decision. On the transfer of judges to the Federal Shariah Court, Justice Khoso was of the view that the president was empowered by the constitution to transfer any judge to the Federal Shariah Court for a period of two years. The judge also supported the transfer of a high court judge to another high court. Similarly, he said there was no harm in appointing people having political affiliation provided he was a person of integrity.[23]

'JUDICIARY NOT INDEPENDENT'

Vendetta and revenge has always been the part of Pakistan's politics. But this time, while launching a systematic and ruthless campaign against its opponents, the PPP government succeeded magnificently in politicizing the judiciary and to that extent curtailing its independence. Following normal practice, when Dr. Nasim Hasan Shah retired as Chief Justice of the Supreme Court, Justice Sa'ad Saud Jan should have rightly taken his place. But he was superseded by Justice Sajjad Ali Shah, who ranked third in seniority.

The United States 1995 Human Rights report on Pakistan [24] described the judiciary as "not independ ent in reality." The part of the report on independence of judiciary was blunt and hard-hitting as it gave details of how the courts were influ enced. "The constitution provides for an independent judiciary but in reality, however, the judiciary is not independent. Through the President's power to transfer high court justices and appoint temporary and ad hoc justices, the executive branch is able to influence the Supreme Court, the provincial high courts, and the lower levels of the judicial system."

"It has become a standard practice to appoint judges to the high courts and Supreme Court on temporary basis for a period of one year and later confirm or terminate their appointments after an evaluation of their performance. Legal experts say that temporary judges, eager to be confirmed following their probationary, tend to favor the govern ment's case in their deliberations. Judges in the Special Terrorism Courts are retired jurists, who are hired on renewable contracts. The desire to maintain their positions has the potential to influence their decisions.

"Despite the Government's promise to strengthen judicial independ ence, it took several measures to influence the court for political rea sons. The Supreme Court heard the bail application and denied bail to an opposition Member of the National Assembly (MNA) in case where bail would routinely have been granted by a lower court. Mian Qurban Sadiq Ikram, special judge for the Court of Banking Offenses, was removed from the bench on July 31 (1994), a day after he granted in terim bail to the father of opposition leader Nawaz Sharif." [25]

In its International Narcotics Control report for 1994, the United States alleged that there is corruption in various government departments of Pakistan, including the judiciary. The allegation was based on the as­sumption drawn from judgments in various cases. The report cited the case of Rafi Munir for tainting Pakistani judiciary as corrupt. "There were other incidents during the year as well, such as the release of Rafi Munir, which would seem to indicate corruption in the judiciary," it said.[26] The judicial system is on the verge of collapse and has come to the straits where it was ready to punish the innocent but most reluc tant to punish guilty. [27]

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 of 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."

Our constitution provides for an all powerful Supreme Judicial Council that can investigate issues of misconduct of judges and advise the president to remove such judges. Under Article 209 of the Constitution, the President can remove a judge found guilty of misconduct after an inquiry by the Supreme Judicial Council. However, the powers of the Supreme Judicial Council are used sparsely.

The concept of accountability of the superior judiciary by the Supreme Judicial Council has failed in checking and containing malpractice, corruption and misconduct within the judiciary. The council, constituted under Article 209 of the constitution, performs its functions only at the whim and fancy of the president. Clearly, there is a lacuna in Article 209 which does not provide the manner to invoke its jurisdiction or to commence proceedings against a judge. No litigant or other person has the right to invoke the jurisdiction of the Supreme Judicial Council. Consequently, for all practical purposes, the Supreme Judicial Council has remained non-functional, with the exception of a couple of instances, and has failed to take action against the judges on account of their incompetence, incapacity or misconduct.

13 JUDGES REFUSE TO TAKE OATH UNDER THE PCO OF 1999

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 ju diciary 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 re fuse to share power with those who do not entitle themselves.[28]

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.

OATH UNDER PCO DENOUNCED

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." [29]

Former chief justice Saeeduzzaman Siddiqui, [30] 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." [31]

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. [32]

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." [33]

REFERENCES

1. The News 22-12-99

2. PLD 1955 FC 240

3. PLD 1955 FC 240

4. PLD 1958 SC. 533

5. The Destruction of Pakistan's Democracy by Allen Mcgrath - Oxford University Press, Karachi, 1996 - p-214,215

6. PLD 1972 SC 139

7. PLD 1977 SC 673-74

8. Dawn 5-4-1993

9. Azhar Suhail, The government of agencies, p-106.

10. Dawn March 2, 1993

11. The Friday Time 11-4-1996

12. PLD 1992 SC 646

13. PLD 1993 SC 473

14. Dawn 30-1-1997

15. Dawn 3-1-1997

16.Media reports Aug-Oct. 1997

17.Herald Jan. 1998

18. Saving judiciary from politics by Kunwar Idris - Dawn 28.12.1997

19.Dawn 10-2-1998

20. Zulfikar Khalid Maluka,The Myth of Constitutionalism in Pakistan, Oxford University Press, 1995 p11-12

21. Contempt of Court, The Economist, London, 18-2-1995

22. Dawn 20-3-1996

23. Dawn 27-5-1996

24. Dawn 7-3-1996

25. Ibid.

26. Dawn 8-3-1995

27. Statement of the Chairperson of Pakistan Human Righst Commission, Asema Jehangir, Dawn 29-1-1995

28. The Economist, London 2-4-1981

29. Dawn 27-1-2000

30. 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]

31. The News 27-1-2000

32. The News 27-1-2000

33. Dawn 28-11-2000

REFERENCE: HEGEMONY OF THE RULING ELITE by Abdus Sattar Ghazali - Excerpts are from Chapter 4 JUDICIARY AND POLITICS IN PAKISTAN

URL: http://ghazali.net/book3/ch4/ch4.html
URL: http://ghazali.net/book3/ch4/ch4p2/ch4p2.html
URL: http://ghazali.net/book3/ch4/ch4p3/ch4p3.html
URL: http://ghazali.net/book3/ch4/ch4p4/ch4p4.html
URL: http://ghazali.net/book3/ch4/ch4r/ch4r.html

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