The NRO judgment has struck down the law also for being violative of Article 62(f), which requires a member of parliament to be, ‘Sagacious, righteous and non-profligate and honest and ameen’. Hence, the bench will now judge the moral standing of parliamentarians on these stringent standards set by the notorious Zia regime. This article of the constitution has always been considered undemocratic and a tool to keep members of parliament insecure. If parliamentarians, who also go through the rigorous test of contesting elections in the public domain, are to be subjected to such exacting moral standards then the scrutiny of judges should be higher still. After all, judges are selected purely on the value of their integrity and skills. Judges who erred in the past seek understanding on the plea that they subsequently suffered and have made amends. Should others also not be given the same opportunity to turn over a new leaf? How will sagacity and non-profligate behaviour be judged? Another aspect of the judgment By Asma Jahangir Saturday, 19 Dec, 2009
http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/editorial/another-aspect-of-the-judgment-929
عدلیہ دائرہ کار سے تجاوز کر گئی ہے‘
علی سلمان
بی بی سی اردو ڈاٹ کام، لاہور
http://www.bbc.co.uk/urdu/pakistan/2009/12/091219_hrcp_asma_as.shtml
آخری وقت اشاعت: ہفتہ, 19 دسمبر, 2009, 05:25 GMT 10:25 PST
عدلیہ کا کام ارکانِ پارلیمان کی اخلاقیات کی جانچ پڑتال نہیں
پاکستان انسانی حقوق کمشن کی چیئرپرسن عاصمہ جہانگیر نے این آر او کے بارے میں سپریم کورٹ کے فیصلے پر تبصرہ کرتے ہوئے کہا ہے ’عدلیہ اپنے دائرہ کار سے تجاوز کرگئی ہے اوریہ بہت ہی خطرناک بات ہوگی کہ سپریم کورٹ اراکین پارلیمان کی اخلاقیات پر فیصلے دے۔‘
“quote”
Second, the short order found the NRO to be against Quran and Sunnah as it held the ordinance violative of Article 227, which says that all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah and no law shall be enacted which is repugnant to such injunctions. Dubious MPs to face the axe Thursday, December 17, 2009
http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=26131&Cat=13&dt=12/16/2009
“unquote”
"QUOTE"
113. Besides above, the principle of equality (Musawat), as enshrined in Article 25 of the Constitution, has its origin in the Islamic teachings. Reference in this behalf may be made to Muhammad (PBUH) Encyclopedia of Seerah (Sunnah, Da’wah and Islam), 1st Edn. 1986. Vol.IV (p:147-148). Relevant portion therefrom, on the subject of “Equality” is reproduced hereinbelow for convenience:-
“Equality Equality is an essential requisite of justice, because when there is discrimination and partiality between people, there is no justice. The Code of Allah demands absolute equality of rights between all people without any discrimination or favouritism between man and man and between man and woman on any count.
The Qur’an declares. “O mankind! Behold, we have created you all out of a male and a female, and have made you into nations and tribes, so that you may know each other. Surely, the noblest of you in the Sight of Allah is the one who is most pious.”
(49:13)
This verse clearly establishes equality of all men and women on the basis of common parentage, and as such discounts all claims of superiority or discrimination for any person or group of persons. There is no rational or logical ground for such claims, and therefore, it is unreal and unnatural to demand discrimination between man and man or between man and woman on any count.
Const.P.76/2007, etc. 182
Besides’ all human beings are servants (ibid) of Allah and therefore equal. They are all created by Allah and all are His servants alone. As such they are all equal and enjoy equal rights in all areas of life. In His service and obedience, all humans are equal and stand on the same level without any discrimination all as one race and one people before Him, no one claiming any special privileges and honours.
In Surah al-A’raf we have these words: “When your Lord drew forth from the children of Adam from their loins their descendants, and made them testify concerning themselves, saying: ‘Am I not your Lord?’ They said: Yes we do testify.’” (7:172). And then we find these words; “Surely, this Brotherhood of yours is single Brotherhood, and I am your Lord: therefore serve and obey Me (and no other).” (21:92 and 23:52))
This concept of equality bestows equal rights upon all members of the human race and leaves no room for any discrimination of any kind, whether by colour, creed, race or sex. If there is any discrimination anywhere, it is man made, not divinely ordained, and therefore, must be denounced, condemned and discarded. Any such discrimination is unnatural and artificial and goes against the basic Doctrine of Tawhid. As such it will endanger the right balance and stability of human social life.
If there is any discrimination for any man or woman in Islam, it is on merit and on merit alone. Those who develop their personal relationship with Allah fear Const.P.76/2007, etc. 183 Allah, attain degrees of piety and taqwa of Allah, and reach higher stations of excellence in the Sight of Allah. However, even they stand equal with others in the enjoyment of rights in society, and can claim no superiority or favouritism over others so far as social rights are concerned. This basic doctrine also demands equality of all men and women before the law and negates any kind of discrimination between them. This is the essential requirement of the Rule of Law in Islam: that all men and women are equal in the eyes of the Law and must be treated as such. Respect for human dignity, upon which the Prophet of Islam laid so much emphasis, also demands equality for all men and women in all fields of human activity. (For details see under “Basic Human Rights” in Volume III of this work)
Equality of Rights
It is implicit in the Doctrine of Tawhid and is also an essential ingredient of justice and equality that all people must enjoy equal rights without discrimination on any count in all fields and departments of life. In the enjoyment of social, political and religious rights, there must not be any discrimination between ruler and ruled, employer and employee, rich and poor and man and woman: all should enjoy these rights freely, equally and without any check or restriction. Denial of any of these rights to any member would, in fact, be a denial of the Doctrine of Tawhid.
Equal Treatment
The logical consequences of the above principle in practice demands absolutely equal treatment of all citizens, without any reservation, in all areas of life. It Const.P.76/2007, etc. 184 also requires: (a) equality of opportunity of education, training, employment and promotion in all services for all citizens, irrespective of their social or political status and influence; (b) equal treatment in all departments, without discrimination of any kind between rich and poor, big and small or workers and employers; (c) the right to a livelihood of every member of the Muslim state. It is the birthright of every person to have a guaranteed decent living and decent wage from the state. This calls indirectly for equitable distribution of wealth between all the members of the state on the principle of maximum circulation of the total wealth of the nation, discouraging, as far as possible, the concentration of wealth among a few people (59:7); and (d) it is also implicit in the above principle that for the political and social stability of society and state, matters of national interest must be decided through a process of consultation with the people, and all state affairs on all levels must be decided on the basis of the concept of consultation in its true sense, as envisaged by the Qura’n (42:38) and practiced by the Prophet Muhammad (PBUH).”
114. Corruption and corrupt practices, being a crime, if proved, against a ‘holder of public office’ takes away his qualification to contest the election because, prima facie, he has breached the trust of his electorate. Therefore, by inserting Section 33F in the NAO, 1999 by means of Section 7 of the NRO, 2007, possibility of raising objection on the qualification of a person to be elected or chosen as a member of the Parliament has been negated for limited purpose, in Const.P.76/2007, etc. 185 view of Article 62(f) of the Constitution, a person having been convicted/sentenced by the Court under the NAO, 1999 shall stand absolved as the case has been withdrawn against him or the proceedings have been terminated, pending in any Court including the High Court and Supreme Court, in appeal or whatever the case may be. Therefore, instead of following the command of Article 5 of the Constitution, Section 7 of the NAO has contravened Article 62(f) of the Constitution. It is true that Section 62(f) of the Constitution cannot be considered self-executory but if a person involved in corruption and corrupt practices has been finally adjudged to be so, then on the basis of such final judgment, his candidature on the touchstone of Article 62(f) of the Constitution can be adjudged to the effect whether he is sagacious, righteous, non-profligate, honest or Ameen.
115. It is true that on an objection against a candidate, without any support of evidence, the provisions of Article 62 of the Constitution cannot be pressed into service, because it is a provision of Constitution which is not self executory. Reference in this behalf may be made to Muhammad Afzal v. Muhammad Altaf Hussain (1986 SCMR 1736).
116. However, with reference to examining the vires of Section 7 of the NRO, 2007, in pursuance of which Section Const.P.76/2007, etc. 186 33F has been inserted in the NAO, 1999, with an approach that a ‘holder of public office’, as per the mandate of law, has been absolved without following the legal course from the allegations of corruption or corrupt practices, which also keeps the element of trust in its fold, and washed him from all such like sins, then how he can be considered qualified to contest the election because conviction and sentence under Section 9 of the NAO, 1999 has not been set aside legally, and whether such ‘holder of public office’, with a stigma upon him to be corrupt and involved in corrupt practices, can become a member of the Parliament, which is a sovereign body, representing the people of Pakistan. Article 62 (f) has been incorporated in the Constitution by means of President’s Order No.14 of 1985 (The Revival of Constitution Order, 1985) and it being a part of the Constitution has to be taken into consideration by the Courts, while examining the case of a convict, involved in corruption and corrupt practices, who has attained the status of innocent person by means of a law which has washed away his conviction/sentence by withdrawal or termination of cases or proceedings, however, subject to furnishing strong evidence for establishing the allegation mentioned in Article 62(f) of the Constitution. As it has been noted hereinabove that this provision was inserted by a dictator but it is still continuing Const.P.76/2007, etc. 187 although five National Assemblies and Senate had been elected and completed their terms, but no effective steps, so far have been taken in this behalf.
16. The word “Ameen” difined in the following books which is to the following effect:
1 The Concise Encyclopedia of Islam at page 41: “al-Amin. A name of the Prophet, given to him by the Quraysh before the revelation of Islam, meaning the ‘Trustworthy One’. The word is used as a title for an organization official in a position of trust, such as the treasurer of a charitable organization, a guild, and so forth”. 2. Urdu Daera-e-Maharafil Islamia at page 279-80 Const.P.76/2007, etc. 267
3. The Encyclopaedia of Islam (New Edition) Vol.1 at 436-37 “Amin, ‘safe’, ‘secure’; in this and the more frequent from amin (rarely ammin, rejected by grammarians) it is used like amen and (Syriac) amin with Jews and Christians as a confirmation or corroboration of prayers, in the meaning ‘answer Thou’ or ‘so be it’ see examples in al-Mubarrad, al Kamil, 577 note 6; Ibn al-Diazari, al- Nashr, ii, Cairo 1345, 442 f., 447. Its efficacy is enhanced at especially pious prayers, e.g. those said at the Ka’ba or those said for the welfare of other Muslims, when also the angels are said to say amin. Especially it is said after sura i, without being part of the sura. According to a hadith the prophet learned it from Gabriel when he ended that sura, and Bilal asked the prophet not to forestall him with it. At the salat the imam says it loudly or, according to others, faintly after the fatiha, and the congregation repeats it. It is called God’s seal (taba or khatam) on the believers, because it prevents, evil. “Amin” (Ar. Pl. umana), ‘trustworthy, in whom one can place ones’s trust’, whence al-Amin, with the article, as an epithet of Muhammad in his youth. As a noun, it means ‘he to whom something is entrusted, oversear, administrator’: e.g. Amin al Wahy, ‘he who is entrusted with the revelation’, i.e. the angle Gabriel. The word also frequently occurs in titles, e.g. amin al-Dawla (e.g. Ibn al-Tilmidh others), Amin al Din (e.g. Yakut), Amin al-Mulk, Amin al-Saltana”.
“MORALITY”.
Words and Phrases, Permanent Edition Volume 27A: “Morality” The words “morality” and “character” may have the same meaning when standing alone, but when used together the word “moral” defines the kind of character required by the rule, that attorney mus t be of good moral character. When so sued, the word “moral” Const.P.76/2007, etc. 269 is in contradistinction, to the word “immoral”. Warkentin v. Klein-watcher, 27 P.2nd 160, 166 Okl. 218.” “Morality” The word “morality” is not used in any narrow sense, but in a general sense, such as the law of conscience, the aggregate of those rules and principles of ethics which relate to upright behavior and right conduct of elected representatives and prescribe the standards to which their action and in particular those who are Muslims, who are guided by the Holy Qur’an and Sunnah should conform, in their dealings with each other or with institutions or the State”. M. Saifullah Khan Vs. M. Afzal. :PLD1982 Lah.77.
REFERENCE: No law could be made which perpetuated corruption: SC By Nasir Iqbal Wednesday, 20 Jan, 2010 Read full text of detailed judgement on NRO http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/news/pakistan/18-sc-issues-detailed-verdict-on-nro-case-am-08 http://www.supremecourt.gov.pk/web/user_files/File/NRO_Judgment.pdf
"UNQUOTE"
What would be the criteria of Piety, Morality and Character if it is defined by Judiciary? For Example, growing Beard is part of Sunnah and most of the MNA/SENATORS/JUDGES dont have beard so who will decide about the Criteria of Piety since Quran and Sunnah is exploited by the Judiciary to condemn NRO. Moral Brigade in Judiciary should start following this in the light of Sunnah which they have exploited to condemn the NRO. As per Islamic Law "Growing Beard" is compulsory and SEVERAL MEMBERS OF THAT NRO BENCH and other Islamic Type Members of CIVIL SOCIETY are clean shave rather they have Moustaches and that too of a kind which is Unlawful in Islam [I mean moustaches beyond your upper lips]. Moral Brigade should define the “Absence of Beard” in the light of Quran and Sunnah from the faces of the Members of Judiciary in view of their own set standards in the decision against NRO.
As per Islamic Law "Growing Beard" is compulsory and Justice Javed Iqbal or even CJ and other Islamic Type of Judges are clean shave rather they have Moustaches and that too of a kind which is Unlawful in Islam [I mean moustaches beyond your upper lips]. Shaving the beard is haraam because of the saheeh ahaadeeth that clearly state this, and because of the general application of texts that forbid resembling the kuffaar. One of these reports is the hadeeth of Ibn ‘Umar who said that the Messenger of Allaah (peace and blessings of Allaah be upon him) said: “Be different from the mushrikeen: let yourbeards grow and trim your moustaches.” According to another report: “Trim your moustaches and let your beards grow.” There are other hadeeth which convey the same meaning, which is to leave the beard as it is and let it grow long, without shaving, plucking or cutting any part of it. Ibn Hazm reported that there was scholarly consensus that it is an obligation (fard) to trim the moustache and let the beard grow. He quoted a number of ahaadeeth as evidence, including the hadeeth of Ibn ‘Umar (may Allaah be pleased with him) quoted above, and the hadeeth of Zayd ibn Arqam in which the Prophet (peace and blessings of Allaah be upon him) said: “Whoever does not remove any of his moustache is not one of us.” (Classed as saheeh by al-Tirmidhi). Ibn Hazm said in al-Furoo’: “This is the way of our colleagues [i.e., the Hanbalis].”
Is it haraam (to shave it)? Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) said: “The Qur’aan, Sunnah and ijmaa’ (scholarly consensus) all indicate that we must differ from the kuffaar in all aspects and not imitate them, because imitating them on the outside will make us imitate them in their bad deeds and habits, and even in beliefs, which will result in befriending them in our hearts, just as loving them in our hearts will lead to imitating them on the outside.Al-Tirmidhi reported that the Messenger of Allaah (peace and blessings of Allaah be upon him) said, “He is not one of us who imitates people other than us. Do not imitate the Jews and Christians.” According to another version: “Whoever imitates a people is one of them.” (Reported by Imaam Ahmad) ‘Umar ibn al-Khattaab rejected the testimony of the person who plucked his beard. Imaam Ibn ‘Abd al-Barr said in al-Tamheed: “It is forbidden to shave the beard, and no one does this except men who are effeminate” i.e., those who imitate women. The Prophet (peace and blessings of Allaah be upon him) had a thick beard (reported by Muslim from Jaabir). It is not permitted to remove any part of the beard because of the general meaning of the texts which forbid doing so.
Since Judiciary has quoted the reference of Quran and Sunnah against NRO therefore their logic is to be challenged through Quran and Sunnah. They have started this Piety business but could they even justify Tomb/Shrine of Jinnah and others in the light of Quran and Hadith. Makkah to Data Darbar Lahore [Sufi Shrine in Pakian]
http://chagataikhan.blogspot.com/2008/10/makkah-to-data-darbar-lahore-sufi.html
Registrar of the Chief justice conveyed to the MILITARY SECRETARY of Nawabzada Liaqat Ali Khan that since there were a number of cases against the government pending before the superior court he could not meet with him. AND NOW IN 2010 - Having accorded a warm welcome to Prime Minister Yousuf Raza Gilani at Tuesday’s dinner, the chief justice has thus disappointed many who have been lauding the brave and revolutionary actions initiated by him to uphold the supremacy of law and relaying the seed of an independent judiciary by swimming against the tide in a country like Pakistan, which has been ruled by military and civil dictators for most part of its history. One, however, wonders if the chief justice’s action is in line with the set procedures governing the role, functions and ethics of judges, a subject which is still being widely debated on the planet.
REFERENCE: CJ’s meeting with PM against traditions Thursday, February 18, 2010 By Sabir Shah http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=27324&Cat=13&dt=2/16/2010 Who played what role in the drama By Umar Cheema & Dilshad Azeem Thursday, February 18, 2010 http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=27318&Cat=13&dt=2/18/2010
Lawyers and Civil Society think that after March 9, 2007, they have brought in French Revolution but they are wrong whole Movement was started and manipulated to Finger Musharraf and ease out army from the mess the army itself created. History is as under: [Asma Jahangir was part of that Restoration Movement as well]
’عدالتی آمریت کی طرف بڑھ رہے ہیں‘
ریاض سہیل
بی بی سی اردو ڈاٹ کام، کراچی
آخری وقت اشاعت: جمعرات, 18 فروری, 2010, 19:39 GMT 00:39 PST
http://www.bbc.co.uk/urdu/pakistan/2010/02/100217_asma_judges_mah.shtml
پاکستان میں انسانی حقوق کمیشن کی سربراہ عاصمہ جہانگیر نے کہا ہے کہ وہ ملک میں عدلیہ کی آمریت آتے دیکھ رہی ہیں جسے کے بعد لوگ سیاسی آمریت بھی بھول جائیں گے۔
انہوں نے اعلان کیا کہ انسانی حقوق کا کمیشن آئین میں اصلاحات کے لیے ایک چارٹر تیار کر رہا ہے جس میں یہ مطالبہ کیا جائے گا کہ اعلیٰ عدالتوں میں جج بننے والوں کے بارے میں عوام کو ان کی پروفیشنل زندگی کے بارے میں آگاہ ہونا چاہیئے اور اس چارٹر پر وہ عوام کی رائے لینے کے لیے مہم چلائیں گے۔
عاصمہ جہانگیر کا کہنا تھا ’میں نے عدالتی آمریت دیکھی ہے ہم اس طرف جا رہے ہیں وہ ایسا سخت وقت ہوگا کہ عوام سیاسی آمریت کو بھول جائیں گے یہ رویہ رکھنا کہ ہمارے منہ سے جو بھی لفظ نکلے اور اسے فوری پورا کیا جائے ورنہ کالے کوٹ والے آپ کو ٹھیک کردیں گے یہ ایک آزاد اور غیر جانبدار عدلیہ کو زیب نہیں دیتا‘۔
The detailed verdict of NRO carried references from Quran and Hadith [to exploit the same for serving political ends], these Judges should have read the life history of Imam Malik [May Allah have mercy on his soul] because they never issued Fatwa in favour of Rulers and preferred to be flogged and imprisonment [Imam Malik was beaten so mercilessly that one of his arm was broken but he never budged] - When he was aged twenty-five, the Caliphate passed into the hands of the Abbasids caliph Mansur who was his colleague. Mansur highly respected him for his deep learning. The Imam however, favoured the Fatimid Nafs Zakriya for the exalted office of the Caliph. When he learned that the people had taken the oath of fealty of Mansur, he said that since Mansur had forced people to do so, the oath was not binding them. He quoted a Tradition of the Prophet (sws) to the effect that a divorce by force is not legal. When Jafar, a cousin of Mansur, was posted as Governor of Medina, he induced the inhabitants of the Holy city to renew their oath of allegiance to Mansur. The Governor forbade him not to publicise his Fatwa in respect of forced divorce. Highly principled and fearless as he was, the defied the Governor’s orders and courageously persisted in his course. This infuriated the Governor, who ordered that the Imam be awarded 70 stripes, as punishment. According, seventy stripes were inflicted on the naked back of the Imam which began to bleed. Mounted on a camel in his bloodstaind clothes, he was paraded through the streets of Medina. This brutality of the Governor failed to cow down or unnerve the noble Imam. Caliph Mansur, when apprised of he matter, punished the Governor and apologised to the Imam. Once, Caliph Mansur sent him three thousand Dinars as his travelling expenses of Baghdad, but he returned the money and refused to leave Medina, the resting place of the Prophet (sws) In 174 A.H Caliph Harun-ar-Rashid, arrived in Medina with his two son Amin and Mamun. He summoned Imam Malik to his durbar for delivering a lecture on Muwatta. The Imam refused to comply with his orders. Arriving in the durbar, the told the Caliph, ‘Rashid! Traditions in a learning cultivated and patronised by your ancestors, if you don’t pay it due respect, no one else would,’ This argument convinced the Caliph, who, along with his two sow, then chose to attend the class taken by the Imam. The Imam was reputed throughout the world of Islam for his self-control and great patience. One a band of Kharijis armed with swords forced their way into a mosque of Kufa, where he was praying, All persons scampered away from the mosque in panic but he sayed there undismayed. It was customary with all those who waited on Caliph Mansur in his durbar to kiss his hands but Imam Malik never stooped to his humiliation. On the other hand, he paid highest regards to the learned people and once, when Imam Abu Hanifa came to see him, he offered him his own seat. [Tareekh Baghdad by Khateeb Baghdadi and Mawta Imam Malik]
I just want to ask that where was the Integrity when Judges were allowing/legalizing Martial Law in 2000 and then again 2005 and in 2010 those very Judges are talking about Sadiq and Ameen???? Why didn’t they resigned en masse when Musharraf elevated them from High Courts to Supreme Court to legalize Martial Law.
When Musharraf and Generals enforced Martial Law on 12 Oct 1999 they created a department called National Accountability Bureau and one of the most important prosecutor [a lady lawyer] was appointed on a key post in NAB. Guess what! Before Martial Law she was defending one of the accused under arrest since 1996 [when the second government of PPP was dismissed] and after 12 Oct 1999 the same Prosecutor was leading NAB against the same. I wont any name but many leading Lawyers of Free Judiciary Movement [not the Lahore wala] were very close to her. This is the reality of “Accountability Bureau of Musharraf, Ehtisab Bureau of Nawaz Sharif, Ehtisab Commission of Leghari and Justice [R] Ghulam Mujjaddid Mirza and Corruption References filed by Ghulam Ishaq Khan [he within two years accepted Zardari as Caretaker Fed. Minister (message was delivered by Roedad Khan - the Anti NRO Chap) after filing the reference against him], GIK and his Roedad Khan saw to it [between 1990 - 1993] that Cases against BB/AAZ are handled properly and they get bail regularly [what was the purpose to file reference when you have accepted AAZ as Minister]
Ayaz Amir wrote.....
That was the mother of all sins. So how strange and dripping with irony this omission: about that seminal event, which set in train all the sorrows the nation was to reap thereafter, their lordships in their “historic” judgment have nothing to say. For this of course we must understand the problems of the past. For in 2000, a few months after the mother of all sins, when this matter came before the then Supreme Court headed by Chief Justice Irshad Hasan Khan, the nation witnessed another of those electrifying performances which have made “the doctrine of necessity” so famous in our land, the Supreme Court validating Musharraf’s coup and, what’s more, allowing him a grace period of three years to hold elections. In its generosity, it also gave Musharraf the authority to amend the Constitution for purposes of holding elections. So just as the Anwarul Haq Supreme Court gave a clean chit to General Ziaul Haq’s coup of 1977, another Supreme Court signed a papal bull conferring legitimacy on another illegitimate offspring of our political adventures. Now for an inconvenient fact. On the bench headed by Chief Justice Irshad Hasan Khan there sat an up-and-coming jurist, stern of eye and distinguished of look, by the name of Iftikhar Muhammad Chaudhry. Yes, he was among the illustrious upholders of the law and the Constitution who bathed Musharraf and his generals in holy water. ---- Talking of Musharraf’s military rule, what was the role of our present lordships when Triple One Brigade, our highest constitutional authority, reinterpreted the Constitution once again on the long afternoon of Oct 12, 1999? A few judges — Chief Justice Saiduzzaman Siddiqui comes to mind — did not take oath under the Provisional Constitution Order (PCO) issued two months later. But if imperfect memory serves, all of their present lordships, at one time or the other, took oath under the PCO. Not only that, some of them were on the bench which validated Musharraf’s takeover. A few, including My Lord the Chief Justice, were on the bench which validated Musharraf’s takeover for the second time in the Zafar Ali Shah case (2005). Of course, we must let bygones be bygones and deal with the present. But then this principle should be for everyone. We should not be raising monuments to selective memory or selective condemnation. If the PCO of 2007 was such a bad idea, in what category should we place the PCO of 2000? And if in this Turkish bath all are like the emperor without his clothes, the least this should inculcate is a sense of humility.
REFERENCE: Writing of history or triumph of amnesia? Friday, August 07, 2009 By Ayaz Amir http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=191800&Cat=9&dt=8/7/2009 The road to hell — and similar destinations Islamabad diary Friday, January 01, 2010 Ayaz Amir http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=216323&Cat=9&dt=1/1/2010
Do keep in mind that Hafeez Pirzada who was opposing the NRO was one of the leading attorney in Zardari Cases. If you would go through the details of Cases and Parties these Lawyers [who run Judiciary Movement] have handled you would be amazed. Akram Sheikh daily appear on GEO TV for the sake of Judiciary and Rule of Law whereas he was General Aslam Beg’s Lawyer in Mehran Bank Scandal Case [case is pending since 1996], Hafeez Pirzada was one of the beneficiary of Mehran Bank [The recipients included Khar two million, Hafeez Pirzada three million We never learn from history – 7 By Ardeshir Cowasjee August 12, 2007 Dawn]
At the over three-hour-long dinner meeting, the 35 senior lawyers, including four former presidents of the Supreme Court Bar Association (SCBA), Aitzaz Ahsan, Justice (retd) Tariq Mehmood, Ali Ahmed Kurd and Muneer A. Malik, were unanimous in their view that Barrister Ahsan still held sole authority to issue any protest calls or set any line of action, one of the participants told Dawn on condition of anonymity. Senior lawyers back Aitzaz Ahsan By Nasir Iqbal Thursday, 04 Feb, 2010
http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/front-page/16-senior-lawyers-back-aitzaz-hs-07 Lawyers divided over strike call By Nasir Iqbal Tuesday, 26 Jan, 2010
http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/national/12-lawyers-divided-over-strike-call-710–bi-11
Earlier it was revealed that SCBA’s Qazi Anwar was sentenced nine months in jail for possessing explosives in 1979, adding Lahore High Court curtailed his punishment; however, his charge was kept unchanged. PBC approached for Qazi Anwar’s ineligibility Updated at: 1445 PST, Monday, February 01, 2010
http://www.thenews.com.pk/updates.asp?id=97613 Latest is as under: Monday, February 08, 2010, Safar 23, 1431 A.H
http://www.jang.com.pk/jang/feb2010-daily/08-02-2010/u20419.htm
’عدلیہ کی آزادی کے باوجود کچھ نہیں بدلا‘
http://www.bbc.co.uk/urdu/pakistan/2009/09/090907_kurd_hit_judiciary_rr.shtml
Monday, 7 September, 2009, 12:58 GMT 17:58 PST
عدلیہ انتظامیہ جھگڑے میں نیا موڑ
رفاقت علی
بی بی سی اردو ڈاٹ کام، لندن
آخری وقت اشاعت: اتوار, 14 فروری, 2010, 22:17 GMT 03:17 PST
http://www.bbc.co.uk/urdu/pakistan/2010/02/100213_judiciary_executive.shtml
سپریم کورٹ نے خود کئی بار ججز کیس کی دھجیاں بکھیریں اور ایک بار
تو لاہور ہائی کے ایک ایسے جج کو سپریم کورٹ میں تعینات کر دیا جن کا ہائی کورٹ میں ججوں کی سینارٹی لسٹ پر سولہواں نمبر تھا۔ جب سپریم کورٹ میں ججز کیسز کی واضح خلاف ورزی کو چیلنج کیا گیا تو سپریم کورٹ نے حکم صادر کیا کہ وہ کسی جج کو سپریم کورٹ کا جج بنا سکتی ہے۔ ججوں کی تعیناتی کے سلسلے میں سپریم کورٹ نے اپنی ضرورت کےمطابق کئی متضاد فیصلے صارد کر رکھے ہیں اور شاید موجودہ سپریم کورٹ کو بھی ’پی سی او سپریم کورٹ‘ کےایک فیصلے کا بھی سہارا لینا پڑے گا جس کے تحت صدر کے اس اختیار کو مانا گیا تھا کہ وہ ہائی کورٹ کے سینئر جج کو سپریم کورٹ میں تعینات کر سکتا ہے۔
چیف جسٹس آف پاکستان جسٹس افتخار محمد چودھری جسٹس خواجہ شریف کو لاہور ہائی کورٹ کا چیف جسٹس رکھنے پر کیوں بضد ہیں اس کا کسی کو علم نہیں ہے۔ جسٹس خواجہ شریف کو میاں نواز شریف کے دور حکومت میں لاہور ہائی کورٹ کا جج مقرر کیا گیا تھا۔
لاہور ہائی کے سینئر جج جسٹس میاں ثاقب نثار کو بھی نواز شریف دور میں ہائی کورٹ کا جج مقرر کیا گیا۔ جسٹس ثاقب نثار میاں نواز شریف دور کے وزیرِ قانون خالد انور کے جونیئر تھے اور اسی دور حکومت میں انہوں نے سیکرٹری قانون کا قلمدان بھی سنبھالے رکھا
Crucial History of Appointment of Judges Case is under: Appointment of Judges: History 1993 – 1997.
http://chagataikhan.blogspot.com/2010/01/appointment-of-judges-history-1993-1997.html Saqib Nisar and Khalid Anwer [PML-N] - NRO: Kamran Khan & Dirty Role of Barrister Khalid Anwer.
http://chagataikhan.blogspot.com/2010/01/nro-kamran-khan-dirty-role-of-barrister.html
The independence of the judiciary was largely undermined by the order by General Musharraf in January 2000 that Pakistani judges take a fresh oath of loyalty to his administration. In May 2000, the Supreme Court, reconstituted after the dismissal of six judges who refused the oath, upheld General Musharraf’s military coup of 1999, under the doctrine of state necessity. Pakistan is a constitutional republic. On 15 October 1999, the Government promulgated the Provisional Constitution Order, (PCO), No.1 of 1999, overriding the 1973 Constitution of the Islamic Republic of Pakistan, previously suspended following the 12 October 1999 military coup led by General Pervez Musharraf. The PCO provided for the suspension of the National Assembly, the Provincial Assemblies and the Senate and mandated General Musharraf to serve as the new Chief Executive.
On 20 June 2001, General Musharraf became President of Pakistan after dismissing the incumbent President, Muhammad Rafiq Tarar. On 12 May 2000, the Supreme Court validated the October 1999 coup under the doctrine of state necessity. However, the Court ordered that the Government hold national and provincial elections by 12 October 2002. In response, President Musharraf presented a four-phase programme aimed at returning the country to democratic rule, with local elections to be held from December 2000 until August 2001. Subsequently, a series of local elections were held in December 2000, March 2001, May 2001 and July-August 2001. However, political parties were prohibited from participating in the contests and party leaders were disqualified from holding political office.
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Basic Principles on the Independence of the Judiciary
http://www2.ohchr.org/english/law/indjudiciary.htmAdopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985
Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia , their determination to establish conditions under which justice can be maintained to achieve international co-operation in promoting and encouraging respect for human rights and fundamental freedoms without any discrimination,
Whereas the Universal Declaration of Human Rights enshrines in particular the principles of equality before the law, of the presumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial tribunal established by law,
Whereas the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights both guarantee the exercise of those rights, and in addition, the Covenant on Civil and Political Rights further guarantees the right to be tried without undue delay,
Whereas frequently there still exists a gap between the vision underlying those principles and the actual situation,
Whereas the organization and administration of justice in every country should be inspired by those principles, and efforts should be undertaken to translate them fully into reality,
Whereas rules concerning the exercise of judicial office should aim at enabling judges to act in accordance with those principles,
Whereas judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens,
Whereas the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, by its resolution 16, called upon the Committee on Crime Prevention and Control to include among its priorities the elaboration of guidelines relating to the independence of judges and the selection, professional training and status of judges and prosecutors,
Whereas it is, therefore, appropriate that consideration be first given to the role of judges in relation to the system of justice and to the importance of their selection, training and conduct,
The following basic principles, formulated to assist Member States in their task of securing and promoting the independence of the judiciary should be taken into account and respected by Governments within the framework of their national legislation and practice and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general. The principles have been formulated principally with professional judges in mind, but they apply equally, as appropriate, to lay judges, where they exist.
Independence of the judiciary
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.
Freedom of expression and association
8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.
9. Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.
Qualifications, selection and training
10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.
Conditions of service and tenure
11. The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.
12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.
13. Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.
14. The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration.
Professional secrecy and immunity
15. The judiciary shall be bound by professional secrecy with regard to their deliberations and to confidential information acquired in the course of their duties other than in public proceedings, and shall not be compelled to testify on such matters.
16. Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.
Discipline, suspension and removal
17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.
18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.
19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.
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As per International Criminal Court, Judges must follow the following principles while they are Judges:
Noting the solemn undertaking required by article 45 of the Rome Statute of the International Criminal Court (the “Statute”) and rule 5 (1) (a) of the Rules of Procedure and Evidence (the “Rules”);
Recalling the principles concerning judicial independence, impartiality and proper conduct specified in the Statute and the Rules;
Recognising the need for guidelines of general application to contribute to judicial independence and impartiality and with a view to ensuring the legitimacy and effectiveness of the international judicial process;
Having regard to the United Nations Basic Principles on the Independence of the Judiciary (1985) and other international and national rules and standards relating to judicial conduct;
Mindful of the international character of the Court and the special challenges facing the judges of the Court in the performance of their responsibilities;
Have agreed as follows:
Code of Judicial Ethics
Article 1
Adoption of the Code
This Code has been adopted by the judges pursuant to regulation 126 and shall be read subject to the Statute, the Rules and the Regulations of the Court.
Article 2
Use of terms
In this Code of Judicial Ethics the terms “Court”, “Statute”, “Rules” and “Regulations” shall have the meaning attached to them in the Regulations of the Court.
Article 3
Judicial independence
1. Judges shall uphold the independence of their office and the authority of the Court and shall conduct themselves accordingly in carrying out their judicial functions.
2. Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence.
Article 4
Impartiality
1. Judges shall be impartial and ensure the appearance of impartiality in the discharge of their judicial functions.
2. Judges shall avoid any conflict of interest, or being placed in a situation which might reasonably be perceived as giving rise to a conflict of interest.
Article 5
Integrity
1. Judges shall conduct themselves with probity and integrity in accordance with their office, thereby enhancing public confidence in the judiciary.
2. Judges shall not directly or indirectly accept any gift, advantage, privilege or reward that can reasonably be perceived as being intended to influence the performance of their judicial functions.
Article 6
Confidentiality
Judges shall respect the confidentiality of consultations which relate to their judicial functions and the secrecy of deliberations.
Article 7
Diligence
1. Judges shall act diligently in the exercise of their duties and shall devote their professional activities to those duties.
2. Judges shall take reasonable steps to maintain and enhance the knowledge, skills and personal qualities necessary for judicial office.
3. Judges shall perform all judicial duties properly and expeditiously.
4. Judges shall deliver their decisions and any other rulings without undue delay.
Article 8
Conduct during proceedings
1. In conducting judicial proceedings, judges shall maintain order, act in accordance with commonly accepted decorum, remain patient and courteous towards all participants and members of the public present and require them to act likewise.
2. Judges shall exercise vigilance in controlling the manner of questioning of witnesses or victims in accordance with the Rules and give special attention to the right of participants to the proceedings to equal protection and benefit of the law.
3. Judges shall avoid conduct or comments which are racist, sexist or otherwise degrading and, to the extent possible, ensure that any person participating in the proceedings refrains from such comments or conduct.
Article 9
Public expression and association
1. Judges shall exercise their freedom of expression and association in a manner that is compatible with their office and that does not affect or appear to affect judicial independence or impartiality.
2. While judges are free to participate in public debate on matters pertaining to legal subjects, the judiciary or the administration of justice, they shall not comment on pending cases and shall avoid expressing views which may undermine the standing and integrity of the Court.
Article 10
Extra-judicial activity
1. Judges shall not engage in any extra-judicial activity that is incompatible with their judicial function or the efficient and timely functioning of the Court, or that may affect or may reasonably appear to affect their independence or impartiality.
2. Judges shall not exercise any political function.
Article 11
Observance of the Code
1. The principles embodied in this Code shall serve as guidelines on the essential ethical standards required of judges in the performance of their duties. They are advisory in nature and have the object of assisting judges with respect to ethical and professional issues with which they are confronted.
2. Nothing in this Code is intended in any way to limit or restrict the judicial independence of the judges.
Late. Zulfikar Ali Bhutto - 4th President of Pakistan & 9th Prime Minister of Pakistan and he also gave First Consensus Constitution of 1973 to Pakistan through Parliament. JUDICIAL MURDER OF BHUTTO: QUETTA: President Asif Ali Zardari says that he considers Justice (retd.) Naseem Hassan Shah as the murderer of former prime minister and PPP founder Zulfiqar Ali Bhutto. Govt to develop Balochistan before talks: President Updated at: 1720 PST, Thursday, February 25, 2010 http://www.thenews.com.pk/updates.asp?id=99501
Thursday, February 25, 2010, Rabi-ul-Awwal 10, 1431 A.H Updated at: 1700
MR JUSTICE DR. NASIM HASSAN SHAH Former Chief Justice of Pakistan - 12th Chief Justice of Pakistan In office April 26, 1993 – April 14, 1994 - Dr. Nasim Hassan Shah in a startling press interview to the daily Jang (August 23, 1996) He did not mince words to indicate the bias of the presiding judge trial court, Maulvi Mushtaq Hussain, who bore personal grudge against Mr. Bhutto. The grudge was that he as Prime Minister, had him superseded by a junior judge while appointing Chief Justice of the Lahore High court. The former Chief Justice has no hesitation in averring that Maulvi Mushtaq Hussain should have avoided naming himself as a member of the trial bench (to maintain the dignity of the court in the principled tradition of justice). It was in this context that during the trial, Maulvi Mushtaq Hussain had made uncalled for personal remarks provoking Bhutto to boycott the proceedings. Dr. Nasim Hassan when confronted by the interviewer admitted that never before in the judicial history of the country any abettor was awarded capital punishment. He further hinted that both General Ziaul Haq and Maulvi Mushtaq had fears that Bhutto’s survival could be risky for them. So he should better be eliminated first and no chances taken. "I am very sorry it had to be done, had to be done".----a belated remorse by the judge who perhaps now suffers pricks. Emphasis by the judge on "had to be done" speaks for itself.
Executive and Judiciary - Chief justice Nasim H. Shah’s favorable tilt towards Muslim League and his antipathy towards Pakistan Peoples Party were well known. He had exchanged harsh words with chief justice Muhammad A. Zullah when later received Benazir at a function when she was opposition leader. He headed the bench which restored Sharif government in 1993. He had been humiliated earlier during Benazir government when Benazir refused to sit on the same table with him. The reason was that Nasim H. Shah was one of the justices who had upheld the death sentence of Benazir’s father Zulfiqar Ali Bhutto in 1979 (Nasim H. Shah was one of the majority justices on the bench which had given a four to three verdict of rejection of appeal of death sentence). Executive and judiciary function in their own spheres but sometimes their interests clash. Executive tries to have some kind of control on the function of judiciary especially when its interests are challenged. Executive tries to influence judiciary through favors in postings, promotions and post-retirement benefits. Troublesome justices are mostly retired using administrative loopholes but occasionally more severe action is taken against the stubborn judge. Former Prime Minister Zulfiqar A. Bhutto was awarded death sentence by Lahore high court for ordering the murder of a political opponent. An appeal against the judgment was filed in the Supreme Court. The initial bench of nine judges (Anwar ul Haq, Muhammad Akram, Dorab Patel, Muhammad Haleem, Nasim Hasan Shah, Ghulam Safdar Shah, Karam Elahi Chauhan, Waheedudin Ahmad and Qaisar Khan) started to hear appeal. During the hearing, Qaisar Khan retired and Waheedudin Ahmad got ill. Remaining seven judges heard the case and rejected the appeal in a four to three decision on February 02, 1979. Civilian leaders have used all available means both fair and foul to prevent encroachment of judiciary which they perceive as their turf or to get desired judgments. In early 1993, relations between Prime Minister Nawaz Sharif and president Ghulam Ishaque Khan deteriorated quite rapidly and Khan was planning to ouster Sharif. Some statements attributed to chief justice Muhammad Afzal Zullah indicated that judiciary may act to counter president’s move. President waited till 18 April 1993; the day of retirement of chief justice. In a very curious development, chief justice on the very day of his retirement was on a plane heading out of country. Justice Nasim Hasan Shah was sworn in as acting chief justice; another curious move as he should have been appointed permanent chief justice. President dropped his guillotine on the same day sending Sharif and assembly packing home. The judicial crisis of 1997 severely damaged country’s image and judiciary’s reputation. A reckless civilian prime minister and his cronies clashed head on with an equally reckless chief justice of the supreme court. A number of judges of supreme court openly rebelled against their own chief justice thus bringing the judiciary to new low levels. The saga of Byzantine intrigues was played at the highest levels making the country a laughing stock. The trouble between judges of supreme court had been brewing over a long time. In 1993, justice Sajjad A. Shah gave the lone dissenting opinion when Supreme Court restored Sharif government by a majority decision. Two judges; Muhammad Rafiq Tarar and Saeeduzzaman Siddiqi asked chief justice Nasim Hasan Shah to take disciplinary action against Sajjad A. Shah for the language he used in his dissenting note. (16) Chief justice didn’t take any action against Sajjad A. Shah but it caused a permanent rift. Supreme Court takes recess during summer vacations and if chief justice is out of country during recess it is not necessary to appoint an acting chief justice. In the summer of 1997, chief justice Sajjad A. Shah proceeded to an overseas trip. Incidentally second senior most justice Ajmal Mian was also abroad. Justice Saeeduzaman Siddiqi was in Islamabad when he was told that chief justice had left the country. He adjourned the proceedings, consulted lawyers and then called all supreme court registries to stop working. He declared that there was a constitutional crisis since no acting chief justice was appointed. He sent a letter to the federal government advising it to issue notification for appointment of acting chief justice. As he was the next senior judge, he was appointed acting chief justice. This caused a lot of bad blood between Saeeduzaman Siddiqi and Sajjad A. Shah and on his return Sajjad A. Shah conveyed his disapproval in writing. Sometimes people occupying high offices act in a childish manner embarrassing not only the high office but also the country. In August 1997, chief justice recommended elevation of five judges to supreme court without consulting with government. Government in return issued an order duly signed by the president reducing the strength of the supreme court from seventeen to twelve. Few days later chief justice presiding a three member bench suspended the notification and a couple of days later government withdrew the notification. Supreme Court justices rather than brainstorming about legal issues clashed with each other about the color of the Supreme Court flag. One chief justice arranged for the inauguration of the incomplete building of the new Supreme Court because he wanted to be in the limelight before his retirement. A number of justices opposed this ridiculous idea and they were not invited for the ceremony. When chief justice Muhammad Afzal Zullah received opposition leader Benazir Bhutto in a ceremony, several of his brother judges were furious and harsh words were exchanged between Zullah and justice Nasim Hasan Shah. REFERENCE: Judicial Jitters in Pakistan: A Scholarly & Historical Perspective Hamid Hussain Defence Journal, June 2007 http://watandost.blogspot.com/2007/05/judicial-jitters-in-pakistan-scholarly.html
