LETS HAVE A QUCIK GLANCE AT THE CHEQUERED PAST OF PAKISTANI CIVIL BUREAUCRACY AND JUDICIARY TOO.
Pakistan’s civil bureaucracy has too often colluded with the military to retard the growth of democratic institutions and to gain or retain power even under elected civilian governments. At the same time, over-centralisation, corruption and political interference in the civil service have undermined government capacity to deliver public services. Some 30 commissions have been constituted since independence to reform the civil service, but very few recommendations have been accepted or implemented. While the civil service is resistant to radical change, there is genuine and widespread support within the civil bureaucracy for meaningful reforms, particularly those that would serve and promote individual as well as institutional interests. The political leadership must demonstrate the will to reform the bureaucracy to enhance the legitimacy of state institutions, build more effective, accountable government, and fill a vacuum presently exploited by the military and violent jihadi organisations. Pakistan’s bloated public sector is broadly perceived to exist “only to provide jobs to the unemployable”, in the words of a retired senior civil servant.3 There are presently around 2.4 million regular civil servants for a population of 170 million, or one civil servant for every citizens. In comparison, India has one civil servant for every 110 citizens.4 Corruption is widespread, and public confidence in government agencies such as the police, the state-owned power sector and the revenue services is particularly low. Every regime change is invariably accompanied by broad transfers and postings of officials at the policy-making levels in the secretariats as well as at the operational level in the districts. This politicisation of the bureaucracy contributes to its dysfunction, with promotions increasingly dependent on officers’ proximity to those in power. REFERENCE: I. INTRODUCTION Reforming Pakistan's Civil Service Asia Report N°18516 Feb 2010 EXECUTIVE SUMMARY AND RECOMMENDATIONS http://www.crisisgroup.org/en/regions/asia/south-asia/pakistan/185-reforming-pakistans-civil-service.aspx
Military rule has also gravely undermined the civil service’s capacity and professionalism. Co-opted during General Ayub Khan’s rule in the 1960s as a willing junior partner, the bureaucracy, led by the elite Civil Service of Pakistan (CSP) cadre, had dominated virtually all institutions of governance. General Zia-ul-Haq chose not so much to co-opt the bureaucracy but rather infiltrated it directly, instituting quotas in the civil service for military officials, and using it to implement his Islamisation policies. General Pervez Musharraf significantly expanded the system of appointing serving and retired military personnel to civil service posts, violating rules and quotas, and deepening the military’s control over the civil service. His devolution plan resulted in corrupt bureaucrats joining hands with equally corrupt and unaccountable local officials. “Thanks to Musharraf, the bureaucracy is more demoralised, more politicised, and less efficient than ever before”, said a senior civil servant. Ironically, the military’s repeated interventions during the flawed democratic transition in the 1990s were justified on the grounds of redressing inept and corrupt civilian rule. Retaining control over foreign, security and economic policy, the high command impeded the performance of elected governments, appointing and dismissing them at will either through a civilian proxy, the president, or a direct coup in October 1999. A professional, competent civil service will not only be more capable of delivering public services and curbing corruption, it will also fill a governance vacuum that is being exploited by violent extremists and an ambitious and interventionist military leadership. Both the Pakistan People’s Party (PPP), which leads a coalition government at the centre, and the main opposition party, the Pakistan Muslim League (Nawaz) (PML-N), have a stake in revitalising public service delivery if a fragile democratic transition is to stabilise. This report analyses the structure and functioning of Pakistan’s civil bureaucracy, identifying critical flaws as well as measures to make it more accountable and able to provide essential public services such as law and order, education and land revenue management. Such reforms are vital if the civil service is to be transformed into a tool of good governance, enhancing in turn the legitimacy of elected governments. REFERENCE: I. INTRODUCTION Reforming Pakistan's Civil Service Asia Report N°18516 Feb 2010 EXECUTIVE SUMMARY AND RECOMMENDATIONS http://www.crisisgroup.org/en/regions/asia/south-asia/pakistan/185-reforming-pakistans-civil-service.aspx
Pakistan’s civil bureaucracy has its origins in the Indian Civil Service (ICS), often described as the “steel frame” that enabled the British to rule their large and unwieldy Indian empire. The ICS was established on the recommendations made by the Aitcheson Commission, which was set up in 1886 to create a scheme to reform the public service in imperial India. Until then public service employees were divided into those with regular contracts, which specified the nature and terms of service, and those without such agreements. Contractual appointees (the Covenanted Civil Service), were exclusively British until growing demands for local participation led to the creation of a Statutory Civil Service, in which one sixth of the positions previously reserved for the Covenanted Civil Service were filled by Indians nominated by local governments and subsequently approved by the governor general. The commission’s recommendations were to have a farreaching impact on the development of India’s bureaucracy under the British Indian empire and on Pakistan’s administrative system after independence. Arguing that the terms “covenanted” and “un-covenanted” contradicted “the realities of the service structure”, the commission recommended the establishment of a new cadre, the Imperial Civil Service of India, subsequently renamed the Indian Civil Service. The commission also called for the abolition of the Statutory Civil Service and its replacement by the Provincial Civil Service (PCS) – the forerunner of Pakistan’s pro-vincial bureaucracy – which would be manned primarily by Indian officers and in which positions would be filled locally by provincial authorities. The Un-covenanted Civil Service, consisting of officers without formal contracts, was divided into two groups: the PCS’s higher ranking positions; and junior appointments grouped into a separate cadre called the Subordinate Civil Service. The PCS’s creation introduced a centre-province distinction with ICS officers recruited by the central government primarily for provincial assignments countrywide and also serving at the centre; PCS officers worked only within their respective provinces. By 1935, only the members of two services, the ICS and the Indian Police Service (IPS), known as All-India Services, could be deputed anywhere in the country. Now at the public service structure’s apex, the elite ICS, drawn primarily from the ranks of the Covenanted Civil Service it had replaced, came to represent “the essence of British power in India”. Regarded as the most powerful officials in the British empire, never numbering more than 1,000 at a given time, ICS members directed all official activities for British India’s 300 million inhabitants. 11 At the service’s heart were officers known as the Collector, District Officer, District Magistrate (DM) or Deputy Commissioner (DC). Although describing the same individual, these various appellations enumerated his broad powers. Every district was administered by a single ICS official who “collected the revenue, allocated rights in land, relieved famines, improved agriculture, built public works, suppressed revolts, drafted laws, investigated crimes, judged lawsuits, inspected municipalities, schools, hospitals, cooperatives – the list is endless”. The Aitcheson Commission thus laid the foundations for the cadre system that was later incorporated virtually wholesale into independent Pakistan. The ICS cadre became the Civil Service of Pakistan (CSP), with minor modifications; the Indian Police Service became the Police Service of Pakistan (PSP); and the External Affairs, Commonwealth Relations and Political Departments eventually became the Pakistan Foreign Service (PFS).13 Similarly, the PCS gave way to Pakistan’s provincial civil services and other specialised services. The ICS was also the forerunner of the All-Pakistan Services, whose officers were recruited by the central government primarily for provincial assignments but, like their ICS predecessors, also served at the centre. The government designated the CSP and the PSP as the only All-Pakistan Services. The foreign service, audit and accounts, customs and excise, and taxation were all central services whose officers were assigned exclusively to federal positions. REFERENCE: COLONIAL HERITAGE Reforming Pakistan's Civil Service Asia Report N°18516 Feb 2010 EXECUTIVE SUMMARY AND RECOMMENDATIONS http://www.crisisgroup.org/en/regions/asia/south-asia/pakistan/185-reforming-pakistans-civil-service.aspx
CIVIL-MILITARY BUREAUCRATIC NEXUS (1947-1973) - For the first decade after independence (1947-1958), Pakistan, while theoretically a parliamentary democracy, was ruled by a cabal of senior civil servants, with the military as junior partner, albeit one with a steadily expanding role in political affairs. General elections were repeatedly postponed. The governor-general, the all-powerful head of state and almost always a former civil servant, regularly dismissed prime ministers, their cabinets and the national and provincial legislatures. The third governor-general, Ghulam Mohammad, a former bureaucrat, launched the first of many extra-constitutional assaults on the legislature when, in 1953, he dismissed Prime Minister Khwaja Nazimuddin even as the latter enjoyed majority support in parliament. A year later he dismissed the Constituent Assembly when it tried to curb his powers. Ghulam Mohammad also formalised the entry of the army into politics by appointing General Ayub Khan, the army’s commander-in-chief, as defence minister. In 1956, Ghulam Muhammad’s successor, Iskander Mirza, promulgated Pakistan’s first constitution, which established a federal parliamentary system but also gave the president, who now replaced the governor-general as head of state, the power to dismiss the prime minister. Mirza used this power liberally, dismissing four prime ministers between 1956 and 1958, with the support of the civil bureaucracy and the military high command. In 1958, Ayub deposed Mirza and imposed martial law. Spearheaded by the elite CSP cadre, the bureaucracy now served as the military’s willing junior partner, entrenching patronage politics, marginalising opposition politicians, and helping implement Ayub’s domestic agenda. According to a political analyst and retired bureaucrat, “it was the civil service that essentially ran the country during the Ayub era”. One of Ayub’s first measures was to ban political parties and disqualify hundreds of mainstream politicians from holding elected office through the Elective Bodies (Disqualification) Order (EBDO).18 Prohibiting “anyone from holding public office who used his political position for personal advantage, or to the detriment of the state”, EBDO was selectively used against opposition politicians. Three tribunals, each presided over by a senior judge, but also comprising a civil servant and an army officer of the rank of lieutenant colonel, enforced the order. To provide a democratic façade to his rule, Ayub devised a local government system called “Basic Democracy”, under which the country was divided into 80,000 single-member constituencies, each electing a member on a non-party basis. Local councils were created at the district and sub-district levels, with roughly half their members nominated instead of elected. These councils received state funds to perform municipal and civic functions, but the district bureaucracy, dominated by CSP members who monopolised the powerful offices of chief secretary, commissioner, deputy commissioner and assistant commissioner, exercised complete authority over the councils, including the power to overrule or suspend council decisions and orders. Ostensibly meant to devolve power, the Basic Democrats became Ayub’s political base and his electoral college. In 1960 they elected him president in a referendum with 95.6 per cent of the vote, and re-elected him in 1965, albeit this time in a contested – but rigged – election. By extending the military’s control over local government and establishing a new political base at the grassroots, Basic Democracy centralised control over the federating units. Controlling access to state resources, centrally-appointed district bureaucrats were able to dominate local politics by dealing directly with the new elite, bypassing political parties and isolating them from the electorate. Having abrogated the 1956 constitution, Ayub promulgated a new one in March 1962. Federal in principle, it established a unitary, presidential government. As president, Ayub arrogated to himself unchecked executive powers, including the authority to dismiss the national
and provincial legislatures, and retained the Basic Democrats as the electoral college for both the presidency and the national and provincial legislatures. Domestic resistance to military rule grew in the 1960s, spearheaded by two political parties, Zulfikar Ali Bhutto’s Pakistan Peoples Party (PPP) in West Pakistan and Sheikh Mujibur Rahman’s Awami League in East Pakistan. In 1969, facing countrywide demonstrations, the military high command forced Ayub to resign, but replaced him with army chief General Yahya Khan who imposed martial law, abrogated the 1962 constitution and scrapped Basic Democracy. Mindful of public resentment of the civil bureaucracy, particularly the CSP, for its role as the “bulwark” of Ayub’s regime, Yahya Khan suspended 303 senior civil servants on charges of corruption, misconduct or abuse of authority; tried them before specially constituted military tribunals; and then either dismissed them from service or forced their retirement. Yahya also established a Services Reorganisation Committee to redress grievances against the bureaucracy. The military regime held Pakistan’s first general elections in 1970 in the belief that no party would gain a parliamentary majority. The Awami League, however, swept the polls in the Bengali-majority East wing, winning a majority of National Assembly seats and the mandate to form the first elected government. Refusing to cede power to their Bengali opponents, the high command launched a military operation in East Pakistan, triggering the civil war that culminated in Indian military intervention and a military defeat that resulted in East Pakistan’s secession and the formation of Bangladesh in December 1971. REFERENCE: CIVIL-MILITARY BUREAUCRATIC NEXUS (1947-1973) Reforming Pakistan's Civil Service Asia Report N°18516 Feb 2010 EXECUTIVE SUMMARY AND RECOMMENDATIONS http://www.crisisgroup.org/en/regions/asia/south-asia/pakistan/185-reforming-pakistans-civil-service.aspx
D. THE CIVIL SERVICE UNDER ZIA-UL-HAQ - In July 1977, Bhutto was ousted in a military coup by army chief Zia-ul-Haq, and executed in 1979. The military regime, which lasted until Zia’s death in 1988, forcibly suppressed political opposition and launched a far-reaching Islamisation drive to achieve domestic legitimacy with support from the religious right. A tradi tionally secular civil bureaucracy was now compelled to reframe “the ideological orientation of the civil servant” through measures such as a uniform dress code and enforced prayer breaks during office hours. There was a “minimal emphasis on professional work ethics” so long as officials were deemed “good” Muslims. Zia established a commission on civil service reforms, which proposed a number of radical departures from Bhutto’s system such as abolishing all occupational groups; creating several technical services to accommodate specialists in fields such as agriculture, education, engineering and medicine; revamping district administration; and creating numerous in-service training institutions. However, aside from ending lateral recruitment and merging the TAG into the DMG, Zia largely retained the federal bureaucratic structure. Zia institutionalised military induction into the civil service, a practice that had been conducted on an ad hoc basis by earlier regimes, permanently entrenching the military’s presence in the bureaucracy. In 1962, Ayub Khan had introduced a 50 per cent reservation for exservicemen in some posts in the bureaucracy and appointed eight army captains to the elite CSP. Bhutto’s lateral entry scheme had resulted in as many as 83 military officers appointed to senior public service positions. While Zia initially only re-employed retired military officers on a contract basis, in 1980, he decreed that 10 per cent of vacancies in the federal bureaucracy at BPS-17 and 18 would be reserved for retired or released military officers. These officers would not be selected by the FPSC but by a High Powered Selection Committee headed by Zia himself. The committee would also fill 10 per cent of senior vacancies (BPS-19 and above) in the Secretariat Group, Foreign Affairs Group, Accounts Group and Information Group. Former military officers would also be employed on three- to five-year contracts. Many officers of the rank of brigadier and above were thus inducted as federal and provincial secretaries. In 1982, eighteen out of 42 ambassadors were retired military officers. In 1985, a serving major general was chosen to head the Intelligence Bureau, the country’s main civilian intelligence outfit, for the first time. By 1985, 98 former military officers were permanently inducted in BPS-17 and 18 posts, while 111 held senior appointments on contract. The bureaucracy was thus “reduced to a wholly subordinate role by the regime’s policy of grafting military officers to key jobs in the central and provincial administrations, public sector industries as well as other semigovernment and autonomous organisations”. Like Ayub, Zia also used local bodies to cloak a highly centralised, authoritarian system of government under the garb of decentralisation, establishing three tiers of local government in the rural areas – union (village), tehsil (town) and zila (district) – and three tiers in urban areas – town committees, municipal committees and municipal corporations. Non-party elections to union councils/town committees were held in 1979, 1983 and 1987. These elected councillors served as the electoral college for zila and tehsil council chairmen. While the local council’s main responsibilities were the management of small-scale public welfare and development activities, civil bureaucrats (commissioners and deputy commissioners), who served as ex-officio, non-voting members of the zila councils, retained control over general administration and law and order. Spawning a new local political elite that owed its allegiance to the military regime, Zia’s local government scheme systematically eroded bureaucratic neutrality at the lower levels of administration. “It was during Zia’s period that officers from the DMG and the PSP, in particular, became the power base for local politicians at the district level”, said a former bureaucrat who had served as deputy commissioner in Punjab during the 1980s. REFERENCE: D. THE CIVIL SERVICE UNDER ZIA-UL-HAQ Reforming Pakistan's Civil Service Asia Report N°18516 Feb 2010 EXECUTIVE SUMMARY AND RECOMMENDATIONS http://www.crisisgroup.org/en/regions/asia/south-asia/pakistan/185-reforming-pakistans-civil-service.aspx
B. MILITARISING THE CIVIL SERVICES - Musharraf’s nine-year rule also saw a dramatic rise in military interference in the civil bureaucracy. Shortly after assuming power, Musharraf appointed army monitoring teams to supervise civil administration at all levels – from the sub-division and district to federal and provincial departments. “In what was perhaps the most humiliating exercise that the civil bureaucracy was ever subjected to in Pakistan’s history, junior military officers of the rank of major and even captain supervised and evaluated the performance of senior civil servants”, said a former federal secretary, adding that, “as a result, morale in the bureaucracy plummeted”. The appointment of 3,500 serving and retired military personnel to these monitoring teams, ostensibly in the name of reduc-ing corruption, increasing accountability and monitoring governance, instead led to a blatant abuse of authority. Military officials were also appointed to key civilian posts, including the chairmanship of the Federal Public Service Commission (FPSC), which is responsible for recruitment of the federal bureaucracy. Military officers, some serving but mostly retired, were appointed heads of a large number of civilian organisations, many of which required technical expertise, such as the chief executive of the Alternative Energy Development Board; chairman of Pakistan Steel Mill; and chairman of the Pakistan Telecommunication Authority. Virtually every aspect of the civil bureaucracy’s functioning, from recruitment and early, mid-career and senior level training to postings and promotions, was placed in the hands of military personnel. In 2002, the Pakistan Administrative Staff College, the country’s main training institution for senior civil servants, was transformed into the National School of Public Policy (NSPP), and headed by a retired lieutenant general. In 2006, a retired major general was appointed director-general of the Civil Services Academy, which trains fresh recruits to Pakistan’s premier civil services. While the present government has replaced the major general with a civilian bureaucrat as director general of the Civil Services Academy, it has retained Musharraf’s appointee as head of the NSPP. “There can be no justification whatsoever for placing military officers in charge of civil service training institutions”, said a recently recruited civil servant. “If it is unthinkable for a civilian to be entrusted the task of running the Pakistan Military Academy or the National Defence University, then it should be similarly inconceivable for military men to be made responsible for framing this country’s public policy or for training its civil bureaucracy”.72 Added a former chief secretary: “Why should a retired general, with no experience of civil administration, be allowed not only to recruit civil servants but also to decide whether they are to be promoted or not? Can you imagine the army ever agreeing to federal secretaries presiding over its own promotion boards?” REFERENCE: B. MILITARISING THE CIVIL SERVICES - Reforming Pakistan's Civil Service Asia Report N°18516 Feb 2010 EXECUTIVE SUMMARY AND RECOMMENDATIONS http://www.crisisgroup.org/en/regions/asia/south-asia/pakistan/185-reforming-pakistans-civil-service.aspx
RAWALPINDI, April 11: The flogging of a teenage girl in Swat does not portray the true picture of Islam as it is not clear whether or not the exact procedure for convicting her under religious laws was adopted and who had issued the Hadd and under what authority. This was stated by senior most judge of the Lahore High Court Justice Khwaja Mohammad Sharif while addressing a Mehfil-i-Milad arranged by the Lahore High Court Bar Association (LHBA) here on Saturday. The recently reinstated judge of the LHC said irrespective of the fact whether the video was real or fake, it was a conspiracy to malign Islam and bring a bad name to Pakistan showing the world that Islam was a religion of extremism. Mr Sharif, who was called chief justice of the LHC by the bar representatives, said Islam had laid very strict procedure to implement Hudood laws, almost making it impossible to apply. He questioned under what authority the girl was flogged and what procedure was adopted to declare her guilty. The justice said Islam demanded four witnesses with immaculate character for conviction or the confession of the accused person. The president of the HCBA highlighted the role of Prophet Muhammad (peace be upon him) as a legislator and a judge, saying the whole world has been taking benefit of the Islamic laws. The bar also arranged a Naat competition taking one lawyer from every district of Rawalpindi division. The competition was won by Chaudhry Zubair from Chakwal. The function was attended among others by four judges of the LHC, four session judges and lawyers. The HCBA had also invited Justice Maulvi Anwarul Haq, Justice Syed Sajjad Husain Shah and Justice Mazhar Hussain Minhas of the LHC’s Rawalpindi bench, earning the ire of the DBA Rawalpindi. REFERENCE: Girl’s flogging not true picture of Islam, says LHC judge By Our Reporter Sunday, 12 Apr, 2009 http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/national/girls-flogging-not-true-picture-of-islam,-says-lhc-judge
BARELY days after the Punjab chief minister was caught playing to the Taliban gallery, another high official from the province is in the spotlight for all the wrong reasons. This time, Lahore High Court Chief Justice Khawaja Mohammad Sharif has sparked outrage for reportedly saying that Hindus were responsible for financing acts of terrorism in Pakistan. The remarks came while the judge was hearing two identical petitions against the possible extradition of Afghan Taliban suspects. It may well have been a slip of the tongue by Mr Sharif, who might have mistakenly said ‘Hindu’ instead of ‘India’ — nevertheless it was a tasteless remark to say the least. Although such remarks warrant criticism what makes them worse is the position of the person who makes them. These sort of comments are the last thing one expects to hear from a judge, that too the chief justice of a provincial high court. What sort of message are we sending to our minorities, as well as to the world, when the holder of such a respected public office makes comments that come across as thoughtless? The Hindu members of the National Assembly walked out of the house on Tuesday to protest the remarks. The members said the comments had hurt the feelings of Pakistani Hindus — and there is no doubt that they had. REFERENCE: Tactless remarks Dawn Editorial Thursday, 18 Mar, 2010 http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/editorial/14-tactless-remarks-830-zj-10
ISLAMABAD: No matter what the pro-government legal minds, including some leading lights of the pre-March 15 judicial movement say, the Supreme Court of Pakistan has already declared that the power to amend the Constitution vested in parliament under Article 239 of the Constitution is not unlimited and unbridled. In another case, it has also rendered redundant a constitutional provision, which is like striking down a constitutional provision besides changing the meanings of the word “consultation” in the judges’ appointment cases just contrary to what was meant by the authors of the 1973 Constitution. Additionally in the Al-Jehad Trust case, the Supreme Court has not only changed the meaning of the word “consultation” as used in the Constitution in the provisions dealing with appointment of judges just contrary to what was meant by the authors of the Constitution but it has also rendered an article of the Constitution dealing with the transfer of a high court judge to the Federal Shariat Court against his will as redundant, which it is argued is like striking down a constitutional provision. REFERENCE: SC clear on powers of parliament to amend Constitution Sunday, April 25, 2010 Court ruled in 1998 powers are limited By Ansar Abbasi http://www.thenews.com.pk/top_story_detail.asp?Id=28483
Sunday, April 25, 2010, Jamadi-ul-Awwal 10, 1431 A.H
I wonder if Mr Ansar Abbasi haven't forgotten the fate of Habib Wahabul Khairi/Al Jehad's Petition against General Musharraf and what the very present Judiciary did with the Petition of Habib Wahabul Khairi and Al Jehad Trust.
Sometimes Intellectual Dishonesty is more fatal than the Financial or Moral Corruption. Financial/Moral Corruption is mostly related with few and destroys few [I REPEAT I AM NOT CONDONING IT] but Intellectual Dishonesty destroys nations e.g. Sharifuddin Pirzada, A K Brohi and many many more. I will just restrict myself to the swinging pendulum of Mr. Ansar Abbasi's pen and journalism and will quote news/columns/opinions filed by him in all these years and every article is contradicting the earlier one. Remember one thing that Ansar Abbasi had demanded Treason Trial of Musharraf for violating article 6 of 1973 Constitution whereas shamelessly Mr. Ansar Abbasi is in favour of retaining National Accountability Bureau to hound politicians [the NAB was founded by Martial Law Regime! Where is the validity? Violation is Violation and cannot be condoned through Law of Necessity. To Proceed
Mr Ansar Abbasi was a Musharraf supporter while working for Daily Dawn:
During 1999 Mr. Ansar Abbasi was Praising General Musharraf Martial Law regime's "Alleged Reforms" when Ansar Abbasi used to be a Correspondent in Daily Dawn, he never mentioned even a single time that Impsoing Martial Law is Treason and Violation of Article 6 of 1973 Constitution of Pakistan. Read the news reports which Ansar Abbasi filed in the Daily Dawn in 1999. Not a single time Ansar adress Musharraf as CMLA but Ansar was very respectful towards "Alleged Chief Executive" Musharraf. You may not find a single personal observation by Ansar Abbasi on Constitutional Tampering by Military Regime. Musharraf was given mandate by the Judiciary to tamper with the Constitution. Everybody knows who was part of that Supreme Court Bench. REFERENCES: Special courts to try cases of accountability Ansar Abbasi 06 November 1999 Issue : 05/45 [Courtesy Daily Dawn Wire Service] http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/1999/06nov99.html Musharraf approves pre-1973 authority for FPSC by Ansar Abbasi Week Ending : 29 January 2000 Issue : 06/05 [Courtesy Daily Dawn Wire Service] http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/2000/29jan00.html Sharifs lose 80pc of assets, says Qureshi by Ansar Abbasi Week Ending : 16 December 2000 Issue : 06/48 http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/2000/dec1600.html - The National Accountability Bureau is Pakistan's apex anti-corruption organization. It is charged with the responsibility of elimination of corruption through a holistic approach of awareness, prevention and enforcement. It operates under the National Accountability Ordinance-1999, with its headquarter at Islamabad. REFERENCE: http://www.nab.gov.pk/
Ansar Abbasi Praising General Musharraf's Martial Law Regime's "Alleged Reforms" when Ansar Abbasi used to be a Correspondent in Daily Dawn, he never mentioned even a single time that Impsoing Martial Law is Treason and Violation of Article 6 of 1973Constitution of Pakistan
As per 1973 Constitution of Islamic Republic of Pakistan
6. (1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.
(2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason.
(3) [Majlis-e-Shoora (Parliament)] shall by law provide for the punishment of persons found guilty of high treason.
ISLAMABAD: The newly appointed Attorney General Maulvi Anwarul Haq was deputy to the late attorney general Chaudhry Muhammad Farooq when the latter during the Nawaz Sharif’s tenure wrote to the Swiss authorities to open cases of corruption against Asif Ali Zardari, Benazir Bhutto and others. According to a source, Maulvi Anwarul Haq has servedas a deputy attorney general under Chaudhry Muhammad Farooq and was a member of the late attorney general’s team, which helped Farooq to prepare a letter that was sent to Swiss authorities with the request to open cases of corruption against Asif Ali Zardari and others. The source said the otherwise reputed Anwarul Haq, who took oath under General Musharraf’s 2007 PCO, had been made a judge of the Lahore High Court during the Nawaz Sharif tenure on the recommendations of the then chief justice Ajmal Mian and received the fullest support of Chaudhry Muhammad Farooq. In a twist of fate, Maulvi Anwarul Haq was appointed the attorney general on Tuesday in the middle of the ongoing tense situation between the judiciary and the executive over the question of once again writing to the Swiss authorities to get the Swiss cases against President Asif Ali Zardari reopened. Over four months back the Supreme Court declared the NRO void ab-initio and besides passing other directions, had also ordered the government to write to the Swiss authorities to get the corruption cases reopened. Following the promulgation of the NRO, the cases were closed by the Swiss authorities, who were approached by Justice (retd) Malik Qayyum, who served as the attorney general during 2007-08. According to the Supreme Court, Malik Qayyum had acted without any lawful authority.
Despite the clear orders of the Supreme Court and its repeated reminders, the government does not seem willing to implement the apex court order. Because of the government’s failure to write to the Swiss authorities as per the direction of the Supreme Court, the previous Attorney General Anwar Mansoor has recently resigned and held the Law Minister Babar Awan responsible for blocking to the implementation of the SC’s judgment. Interestingly now after a lapse of almost 12 years, Maulvi Anwarul Haq is faced with a strange situation where the government would expect him to question the legality of the letter that was written to the Swiss authorities by his attorney general in 1997-98, whereas the Supreme Court would continue to desire that its judgment should be implemented in letter and spirit. Of late the Law Ministry has reportedly told the Supreme Court that the letter written to the Swiss authorities in 1997-98 by the then attorney general had no legal authority. Although the Sindh High Court has already declared the said letter as valid several years ago, it is yet to be seen what Maulvi Anwarul Haq would do in this particular case, which has today become a bone of contention between the judiciary and the executive. REFERENCE: Will new AG change his stance? Wednesday, April 21, 2010 By Ansar Abbasi http://thenews.jang.com.pk/top_story_detail.asp?Id=28420
ISLAMABAD: Supreme Court Bar Association (SCBA) has filed a petition in the Supreme Court, challenging the judicial commission on judges’ appointment. Talking to media outside Supreme Court, President SCBA Qazi Anwar said that Hamid Khan, Rashid A Rizvi and he himself will appear before the court. He said the present assembly is not constitutional making body but a legislation making institution. Qazi Anwar said the Indian Supreme Court had also declared constitutional amendments as void. Replying to a question about Aitizaz Ahsan and Ali Ahmad Kurd, he denied to give the reply and said lawyers community from Chitral to Karachi stands behind them. REFERENCE: SCB challenges judges commission Updated at: 1545 PST, Wednesday, April 21, 2010 http://www.thenews.com.pk/updates.asp?id=103340
Wednesday, April 21, 2010, Jamadi-ul-Awwal 06, 1431 A.H
BUT WHAT ABOUT THOSE PCO JUDGES WHO LEGALIZED THE MARTIAL LAW OF GENERAL PERVEZ MUSHARRAF?
DID JUDICIARY STOPPED THIS FROM HAPPENING? WHERE WERE THE SO-CALLED PRESS CLIPPINGS AND NEWS REPORTS OF MR. ANSAR ABBASI AND MR. AHMAD NOORANI WHILE NATIONAL ACCOUNTABILITY BUREAU AND ISI TINKERING WITH THE LAW AND CONSTITUTION TO DISTORT THE CONSTITUTION FOR WHICH THE SAME JUDICIARY GAVE THE CARTE BLANCHE TO THE MILITARY REGIME OF MUSHARRAF FROM 1999 TO 2007.
(1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.
(2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason.
(3) [Majlis-e-Shoora (Parliament)] shall by law provide for the punishment of persons found guilty of high treason. REFERENCE: The Constitution of the Islamic Republic of Pakistan http://www.pakistani.org/pakistan/constitution/
An accomplice is a person who actively participates in the commission of a crime, even though they take no part in the actual criminal offense.
In his petition, the senator, on whose petition the Supreme Court had earlier validated the Oct 12, 1999, military coup by Gen Musharraf, also challenged a provision in Section 3 of the High Treason (Punishment) Act, 1973, which required the federal government to move a reference for any proceedings under high treason and said this provision was against Article 6 of the Constitution, which does not demand such condition. The petition also asked whether former army chief (Gen Musharraf) did not commit breach of his constitutional oath through his Oct 12, 1999, military coup in disregard of the Constitution and, if faith and allegiance to Pakistan means upholding the Constitution which embodies the will of the people, does it not amount to treason. - The armed forces, the petition alleged, were not only ridiculed but insulted by exploiting them only for personal gains. They were made to climb the wall of the prime minister’s house on Oct 12 and used to maintain Gen Musharraf in his extra-constitutional usurpation of power, the petition alleged. To relinquish the office of Chief Executive in accordance with the Supreme Court’s May 12, 2000 judgment, means that Gen Musharraf should have surrendered the command of the armed forces to the then Prime Minister, Mir Zafraullah Khan Jamali, after holding the general elections, but by not doing so, Gen Musharraf disobeyed and violated the order of the apex court, the petition contended. - Sayed Zafar Ali Shah submitted that General (R) Pervez Musharraf used force against the elected prime minister, overturned the entire political and democratic system, he acted against the integrity and security of the country and was liable to be punished under Article 6 of the constitution of 1973 read with Section 2 of the High Treason (Punishment) Act, 1973. REFERENCES: SC moved against Musharraf; PML-N disowns Zafar’s plea By Nasir Iqbal Sunday, 23 Aug, 2009 02:51 AM PST http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/front-page/sc-moved-against-musharraf-pmln-disowns-zafars-plea-389 SC moved for Musharraf’s trial under Article 6 By Sohail Khan dated Sunday, August 23, 2009 http://thenews.jang.com.pk/top_story_detail.asp?Id=24034 SC moved against Musharraf; PML-N disowns Zafar’s plea By Nasir Iqbal Sunday, 23 Aug, 2009 02:51 AM PST http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/front-page/sc-moved-against-musharraf-pmln-disowns-zafars-plea-389
Five judges elevated to SC Bureau Report [Daily Dawn Feb 2000] ISLAMABAD, Feb 2: The government elevated five judges to the Supreme Court on Wednesday. According to a notification, the president has appointed Justice Rashid Aziz, Chief Justice, Lahore High Court; Justice Nazim Hussain Siddiqui, Chief Justice Sindh High Court; Justice Iftikhar Mohammad Chaudhry, Chief Justice, Balochistan High Court; Qazi Farooq, former chief justice of Peshawar High Court; and Justice Rana Bhagwan Das, judge, Sindh High Court, judges of the Supreme Court. After the elevation of Justice Rashid Aziz Khan to the SC, Justice Mohammad Allah Nawaz has been appointed Chief Justice of Lahore High Court. Justice Deedar Hussain Shah has been appointed Chief Justice of Sindh High Court and Justice Javed Iqbal Chief Justice of Balochistan High Court. After these appointments, the number of SC judges has risen to 12, leaving five posts vacant. Reference: Five judges elevated to SC Bureau Report http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/2000/05feb00.html#five
2 – Chaudhry Iftikhar named new CJ [Daily Dawn 2005] By Our Staff Reporter ISLAMABAD, May 7: President Pervez Musharraf on Saturday appointed Justice Iftikhar Mohammad Chaudhry, the senior most judge of the Supreme Court, as the next chief justice. He will assume the office on June 30 after retirement of the incumbent Chief Justice, Justice Nazim Hussain Siddiqui, on June 29. “The notification has ended speculations of appointment of a junior judge as chief justice in violation of the seniority principle settled under the 1996 Judges case,” commented a senior Supreme Court lawyer on condition of anonymity. Justice Chaudhry will reach the superannuation age of 65 years in 2012, which will make him one of the longest serving chief justices in the judicial history of Pakistan. He will serve as chief justice for over seven years. Earlier Justice A. R. Cornelius and Justice Mohammad Haleem served as chief justice for eight years from 1960 to 68 and 1981 to 89, respectively. Justice Chaudhry was elevated as a judge of the apex court on February 4, 2000. He has performed as acting chief justice from January 17 to 29, 2005. He holds the degree of LLB and started practice as an advocate in 1974. Later he was enrolled as an advocate of high court in 1976 and as an advocate of Supreme Court in 1985. In 1989, Justice Chaudhry was appointed as advocate-general of Balochistan and elevated to the post of additional judge in the Balochistan High Court in 1990. He also served as banking judge, judge of Special Court for Speedy Trials and Customs Appellate Courts as well as company judge. He served as the chief justice of the Balochistan High Court from April 22, 1999 to February 4, 2000. He was elected the president of the High Court Bar Association, Quetta, and twice a member of the Bar Council. He was appointed as the chairman of the Balochistan Local Council Election Authority in 1992 and for a second term in 1998. Justice Chaudhry also worked as the chairman of the Provincial Review Board for Balochistan and was appointed twice as the chairman of the Pakistan Red Crescent Society, Balochistan. Presently he is functioning as the chairman of the Enrolment Committee of the Pakistan Bar Council and Supreme Court Buildings Committee. Reference: Caudhry Iftikhar named new CJ By Our Staff Reporter May 8, 2005 Sunday Rabi-ul-Awwal 28, 1426 http://www.dawn.com/2005/05/08/top4.htm
Pakistan’s higher judiciary has repeatedly validated military interventions and sanctioned constitutional amendments that have fundamentally altered the legal and political system. Attempting to explain its failure to protect the constitution through the “doctrine of state necessity”, the judiciary has relied on the dubious argument that the army’s intervention could be justified because of the pressing need for political stability. This doctrine was first developed in three cases in 1955 in the Federal Court, as the Supreme Court was then known, to justify the extra-constitutional dismissal of the legislature by a titular head of state.11 Drawing on the precedent of those decisions, the Supreme Court validated General Mohammed Ayub Khan’s 1958 declaration of martial law, General Mohammad Ziaul Haq’s 1977 coup and General Pervez Musharraf’s 1999 coup. While these Supreme Court judgments gave military regimes the trappings of legality, repeated military interventions have hampered the growth of civilian institutions and moderate political parties and forces. The centralisation of power in a Punjabi-dominated army has also strained centre-province relations in a multi-ethnic, multi-regional state, even as the military’s use of religion to justify political control has undermined the security of Pakistani citizens, particularly women and religious and sectarian minorities. REFERENCE: Reforming the Judiciary in Pakistan Asia Report N°160 16 October 2008 http://www.crisisgroup.org/home/index.cfm?id=5728&l=1
VALIDATING MILITARY INTERVENTIONS
Some courageous judges, such as Supreme Court Justices Dorab Patel and Fakhruddin G. Ibrahim,15 have refused to sanctify authoritarian interventions, and preferred to resign rather than undermine constitutionalism and the rule of law. By legitimising military rule and intervention, most have, however, abdicated their duty to uphold the law. Following Musharraf’s coup, the Supreme Court was purged of judges who might have opposed the military’s unconstitutional assumption of power. Judges were required to take an oath to Musharraf’s Provisional Constitutional Order (PCO), 1999, superseding the oath they had sworn at their induction to the 1973 constitution.16 On 26 January 2000, thirteen judges, including Chief Justice Saiduzzaman Siddiqui and four other Supreme Court justices, were removed for refusing to do so. The reconstituted Supreme Court was composed of judges who willingly accepted the military’s directions. They included Iftikhar Muhammad Chaudhry, who was elevated to the Court in January 2000 and appointed chief justice by Musharraf in 2005. The judges took their oath of office under the PCO 1999, which omits the reference to their duty to “protect, uphold and defend” the 1973 constitution. On 21 May 2000, this bench upheld the legality of Musharraf’s coup under the doctrine of state necessity. The Supreme Court also authorised the army chief to amend the constitution, albeit within the bounds of its federal, democratic and parliamentary character. The Court also concluded that those judges who had been sacked following the PCO oath had lost any right to challenge their removal due to the passage of time. By placing personal survival over the rule of law and constitutionalism, these judges allowed another dicta tor to implement sweeping changes that expanded the military’s political powers and hold over the state. REFERENCE: Reforming the Judiciary in Pakistan Asia Report N°160 16 October 2008 http://www.crisisgroup.org/home/index.cfm?id=5728&l=1
Like Zia’s Eighth Amendment, Musharraf’s Seventeenth Amendment, passed by a rubber-stamp parliament in December 2003, enshrined all executive orders and changes made under military rule.21 The Seventeenth Amendment gave the president, the titular head of state, the power to dismiss elected governments and parliament and also transferred from the prime minister, the head of government, key appointment powers to the president including appointments of governors, the three service chiefs and the chief justice of the Supreme Court. Musharraf’s constitutional distortions weakened civilian institutions. By sidelining secular democratic forces, the military government also enabled right-wing religious parties to fill the vacuum. In dismissing legal challenges to Seventeenth Amendment, the Supreme Court shirked its responsibility to protect constitutional rule. REFERENCE: Reforming the Judiciary in Pakistan Asia Report N°160 16 October 2008 http://www.crisisgroup.org/home/index.cfm?id=5728&l=1
What a joke! On one hand the "Judicairy" orders the NAB to write letter to the Swiss Government and then the same "Judiciary" also say "Swiss officials do not acknowledge the NAB’s law"
ISLAMABAD: The Supreme Court (SC) said the letter of National Accountability Bureau (NAB) addressed to the authorities in Geneva, should have been routed from the Law Ministry with due approval from Prime Minister Syed Yousuf Raza Gilani, Geo News reported Thursday. A seven-member SC bench headed by Chief Justice of Pakistan Justice Iftikhar Muhammed Chaudhry heard the case regarding the implementation of the apex court’s decision on National Reconciliation Ordinance (NRO). The CJ Chaudhry said the modus operandi of the letter was not right, as the government of Pakistan is absolutely absent in process of the letter sent to the Swiss officials. The Attorney General told the court that the law Ministry has NAB’s letter, which would be sent as per legal procedure. Justice Tariq Pervaiz said the letter on restoration of Swiss cases should have been sent from the government of Pakistan. Justice Khalilur Rehman Ramday said in his remarks said the Swiss officials do not acknowledge the NAB’s law; therefore, the court ordered the Law Ministry to send letter to Swiss officials with the approval from the PM Gilani. The Attorney General has been directed to immediately call the Law Secretary at his chamber and bring new letter to the court by 1pm today after deciding the modus operandi of the same. The court ordered that the special messenger should be sent wit the letter. ISLAMABAD: The Supreme Court of Pakistan (SC) on Thursday directed Federal Secretary Law to present report pertaining to reopening of Swiss cases till April 05, Geo News reported. In his remarks, Chief Justice Iftikhar Muhammad Chaudhary said the issue of letter writing to Swiss government should be resolved by tomorrow. The AG said this to the Supreme Court, which, after an interval, started hearing the case regarding the implementation on the SC's verdict on National Reconciliation Ordinance (NRO). The AG said in his statement to the court that he is faced with hardships in getting the documents relating the Swiss cases from the Law Ministry. The Chief Justice of Pakistan Justice Iftikhar Muhammed Chaudhry asked him as to who is responsible for these problems. It is the Law Ministry, he replied. The CJ asked if also the Law Minister is posing as stumbling block. The AG responded Affirmatively. The court told the AG, 'Your account has been recorded; now, you may go and tell the law ministry.' The court then called Law Secretary Justice Aqil Mirza (retd) for explanation. Daily bickering is not good, CJ remarked. You must sent case against Malk Qaym to NAB, he ordered Secretary. Law Secretary told the court that the Law Minister has not talked to AG for a week. CJ then remarked that SC is interested in getting its NRO verdict implemented. SC instructed Law Secretary to finalize the documents relating to reopening of Swiss cases in coordination with AG by tomorrow and submit complete report by April 05 about the steps taken in this regard. The hearing was then adjourned. REFERENCE: SC wants letter to be sent with PM approval Updated at: 1120 PST, Thursday, April 01, 2010 http://thenews.jang.com.pk/updates.asp?id=101946 Swiss cases: SC seeks report till April 05 Updated at: 2020 PST, Thursday, April 01, 2010 http://thenews.jang.com.pk/updates.asp?id=101992
GENEVA: Pakistan has not asked Swiss authorities to reopen a corruption case against President Asif Ali Zardari, Geneva's public prosecutor said on Wednesday. In any case, Zardari enjoys immunity from prosecution as a head of state, Prosecutor-General Daniel Zappelli told Reuters. “I have not received any request,” Zappelli said, commenting on news from Islamabad that Pakistan's anti-corruption agency would ask the Swiss to revive the case. Zappelli said that Pakistan's embassy in Switzerland had officially notified him in June 2008 of a decision by Pakistan's prosecutor-general in April of that year to withdraw proceedings against Zardari. He said that Pakistan's prosecutor-general had decided that the contracts at the heart of the kickbacks case had been awarded in good faith. “In Pakistan they decided that no crime had been committed,” he said. Zappelli also noted that Zardari and Bhutto had been sentenced by the High Court in Lahore in 1999, but in 2001 Pakistan's Supreme Court had cancelled this verdict and sent it back to Lahore for a new decision. However, there had not been a new trial in the nine years since then. A trial for money-laundering in Switzerland would have to be based on the proceeds of criminal activity, but that would require proof that a crime had been committed, he said. In any case under international law Zardari enjoyed immunity from prosecution as a head of state - unless that state itself lifts the immunity. “Immunity is the key question,” Zappelli said. “We can't prosecute Mr Zardari while he has immunity unless Pakistan lifts that immunity. And if he doesn't have immunity, why don't they try him in Pakistan?” REFERENCES: Swiss deny receiving request to reopen Zardari case Wednesday, 31 Mar, 2010 http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/news/pakistan/03-swiss-deny-receiving-request-to-reopen-zardari-case-ss-08 Impossible to proceed, says Swiss prosecutor Thursday, 01 Apr, 2010 http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/front-page/impossible-to-proceed,-says-swiss-prosecutor-140
AND THE SAME PAKISTANI JUDICIARY AND JUDGES WERE VERY PLIANT AND OBEDIENT UNDER THE MARTIAL LAW REGIME FROM 1999 TO EVEN NOW.
ISLAMABAD, Nov 15 (Reuters, AP) — A parliamentary member of Pakistan’s former ruling party filed a petition before the Supreme Court on Monday challenging last month’s military coup that toppled Prime Minister Nawaz Sharif, court sources said. They said the country’s top court was yet to fix a date to consider admissibility of the petition by Zafar Ali Shah, a member of the suspended National Assembly. It is the first legal challenge to the bloodless October 12 coup that installed Army Chief Gen Pervez Musharraf as Chief Executive. Mr Shah told reporters that he had requested the court to declare the military takeover "illegal and unconstitutional", and order the restoration of Mr Sharif’s government that was dismissed by General Musharraf and of the two-chamber National Parliament and four provincial assemblies that were suspended. He said another petition against the coup would be filed later by Mr Sharif’s Pakistan Muslim League (PML) Party. Today’s petition coincided with a court hearing in the port city of Karachi, where the police told a judge that Mr Sharif was not in their custody. Mr Sharif has been under detention at a secret location, thought to be near Islamabad, since the military coup that overthrew his government on October 12. The police said last week they expected he would be moved to Karachi today.
KARACHI: Four former allies of deposed Premier Nawaz Sharif pleaded not guilty on Monday to charges of treason and hijacking. Mr Sharif, who was reportedly transferred to the southern port city of Karachi yesterday, did not appear in court. His whereabouts is not known. Mr Sharif has been in army custody since the military overthrew his government in a coup on October 12. Last week, the army filed charges against Mr Sharif and seven other men in connection with an incident in which the passenger aircraft returning Army Chief Gen Pervez Musharraf to Pakistan was refused landing permission in Karachi. The aircraft was allowed to land after the army took control of the airport control tower, but fuel aboard the aircraft had run perilously low. According to the charge sheet against Mr Sharif, there were only seven minutes of fuel remaining. General Musharraf said the refusal to allow the aircraft to land endangered his life as well as those of 200 passengers and crew on board. Appearing in court today were Ghaus Ali Shah, a former advisor to Mr Sharif on southern Sindh provincial affairs, Aminuddin Chaudhry, former chairman of the Civil Aviation Authority, Shahid Khaqan Abbasi, former head of the National Pakistan International Airlines, and Rana Maqbool, former Sindh provincial police chief.
"There is no truth to the charges," said Mr Shah, who was represented by a lawyer.
It’s not known when Mr Sharif will be taken to court or why he was not among those in court today. Another report said the police told the judge that the ousted Pakistani Prime Minister was not in its custody. "When the issue was raised by Mr Nawaz Sharif’s lawyer, the police simply said that he had not been arrested by them," said an official of the anti-terrorist court. The official, who asked not to be identified, said the police did not say when Mr Sharif would be brought to the court or formally arrested. Mr Sharif’s lawyer Iqbal Raad told reporters that the police gave the court no evidence and did not say where Mr Sharif was. "They (police) have nothing against Mr Sharif. They have nothing against him to link him to this case," Mr Raad said. Public Prosecutor Feroz Mehmood Bhatti said Mr Sharif would be brought to the court only after he was formally arrested by the police in Karachi. "He has not been arrested yet so there is no question of telling the court about evidence against him," Mr Bhatti said. The four others accused with Mr Sharif were formally arrested on Saturday. The police requested custody of them so they could be interrogated and the court said it would rule on the request later. REFERENCE: Court moved on Pak takeover Sharif’s ex-allies plead not guilty Tuesday, November 16, 1999 http://www.tribuneindia.com/1999/99nov16/world.htm#1
ISLAMABAD, Dec 1: Supreme Court on Wednesday set up a five-member bench to hear petitions challenging the ousting of premier Nawaz Sharif in a military takeover in October, officials said. The bench, led by Chief Justice Saeed-uz-Zaman Siddiqui will hear four identical petitions on Monday, they said. Four other judges in the bench are Mohammad Bashir Jahangiri, Nasir Aslam Zahid, Abdur Rehman Khan and Wajeeh-ud-Din Ahmed. The petitions were filed last month by Sharif's Pakistan Muslim League (PML) and three lawyers, Syed Zafar Ali Shah, a member of suspended National Assembly, Iqbal Haider of Muslim Welfare Movement and Wahabul Khairi, an advocate. The PML, which called the army action "illegal and unconstitutional", has asked the court to set aside the overthrow of Sharif's government. It has also asked the court to overturn the suspension of the federal and provincial assemblies. PML lawyers said the petition had challenged all actions taken by General Musharraf since military takeover on October 12. General Pervez Musharraf proclaimed a state of emergency two days after the military takeover, suspended the constitution and parliament and declared himself chief executive. The general also issued an order prohibiting the Supreme Court and high courts from taking action against him.-AFP REFERENCE: Supreme Court bench to hear petitions against coup DAWN WIRE SERVICE Week Ending:04 December 1999 Issue:05/49 http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/1999/04dec99.html#supr
- Mr Justice Irshad Hassan Khan ISLAMABAD: 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 Wednesday. 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). Mr Justice Irshad Hassan Khan was administered oath by President Rafiq Tarar at Aiwan-e-Sadr. Six other judges of the Supreme Court and the entire fleet of judges of the Federal Shariat Court also took oath under the PCO. All the four judges of the Federal Shariat Court (FSC) were also administered oath. Out of the existing strength of 102 judges of the entire superior judiciary, around 89 judges were administered the new oath on Wednesday. The ceremony was attended among others by Chief Executive General Pervaiz Musharraf, federal ministers, members of National Security Council and senior civil and military officials. Those who took new oath "will discharge their duties and perform their functions honestly and to the best of their abilities and faithfully in accordance with the Proclamation of Emergency of the October 14, 1999, the PCO No. 1 of 1999 as amended, this order and the law," the new oath says.
It adds: "That I will abide by the provisions of the Proclamation of Emergency of the 14th day of October, 1999, the Provisional Constitution Order No. 1 of 1999 as amended this Order and the Code of Conduct issued by the Supreme Judiciary Council." Sixty-two-year-old Chief Justice Siddiqui, who refused to take the oath, said, "I have no regrets about my decision. There is no question of my taking the oath. That was absolutely clear to everybody." The Tuesday midnight move was seen by many as a repeat to what the last military ruler, General Ziaul Haq, did in early 1980s. At that time few of the judges also refused to take oath. "Whatever has happened is in the interest of the country," said Chief Executive General Pervaiz Musharraf, who attended the swearing-in ceremony for the new chief justice of Pakistan and other judges at the Aiwan-e-Sadr. He, however, reserved further comments, though Law Minister and Attorney General Aziz A Munshi said, "Things have happened as situation warranted." He added, "It is their own choice." He was asked about the judges who did not take oath.
By and large, the lawyer community believed that this move has created a "sharp division" in the superior judiciary. Pakistan Muslim League, which is likely to face the music the most, described this decision as the "blackest spot" in the country's judicial history. "Now the country has put under real martial law," said top PML leader Raja Zafarul Haq. 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).
New appointments in the superior judiciary are expected to take place shortly.
Reacting to the oath-taking, Jamaat-e-Islami chief Qazi Hussain Ahmed said, "The country seems to have plunged into a more complicated constitutional crisis." The swearing-in ceremonies were held at the Aiwan-e-Sadr and the respective governor houses in the provinces. 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. Twenty-four judges and Chief Justice of the LHC Mr Justice Rashid Aziz Khan took oath at the Governor House, while 11 judges in Multan and five in Rawalpindi were administered 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 Provisional Constitutional Order (POC) in Karachi on Wednesday. The remaining 22 judges, including Chief Justice Mr Justice Nazim Hussain Siddiqui, took fresh oath in two ceremonies held at the Sindh Governor House and the SHC Committee Room. The official announcement regarding fresh oath of the judges of superior judiciary, including Federal Shariat Court, was made on Tuesday night. Due to this late-night announcement, three judges -- Mr Justice Rana Bhagwandas, Mr Justice Ghulam Nabi Soomro and Mr Justice Musheer Alam -- who were holding sittings at Sukkur and Hyderabad circuit benches could not attend the oath-taking ceremony at Governor House. They, however, were later administered fresh oath by the chief justice in the SHC building.
Mr Justice Dr Ghous Muhammad, Mr Justice Rasheed Ahmed Razvi and Mr Justice Mushtaq Ahmed Memon held sitting at the principal seat of SHC in Karachi on Wednesday, but they discharged the respective boards when they were told that they were not being invited to take fresh oath under the PCO. Mr Justice Rasheed Ahmed Razvi and Mr Justice Dr Ghous Muhammad left for their homes soon after discharging their boards while Mr Justice Mushtaq Ahmed Memon stayed in his chamber till late in the afternoon. Earlier, Chief Justice Mr Justice Nazim Hussain Siddiqui and 18 other judges were invited to Sindh Governor House to take oath under PCO. Governor Sindh Air Marshal (retd) Azeem Ahmed Dauodpota administered the oath to Chief Justice Mr Justice Nazim Hussain Siddiqui. After taking fresh oath, Mr Justice Nazim Hussain Siddiqui administered oath to 18 judges at Governor House in a simple but impressive ceremony.
The judges who took oath at Governor House included Mr Justice Syed Deedar Hussain Shah, Mr Justice Amanullah Abassi, Mr Justice Hamid Ali Mirza, Mr Justice Abdul Hameed Dogar, Mr Justice Sayyed Saeed Ash'had, Mr Justice Sabihuddin Ahmed, Mr Justice Abdul Ghani Shaikh, Mr Justice Mohammad Roshan Essani, Mr Justice Shamim Ahmed Sarwana, Mr Justice Zahid Kurban Alvi, Mr Justice Shabbir Ahmed, Mr Justice Ata-ur-Rehman, Mr Justice Ghulam Rabbani, Mr Justice Sarmad Jalal Osmani, Mr Justice Anwer Zaheer Jamali, Mr Justice SA Rabbani, Mr Justice M Ashraf Laghari and Mr Justice Wahid Bux Brohi. Mr Justice Rana Bhagwandas, Mr Justice Ghulam Nabi Soomro and Mr Justice Musheer Alam were administered oath at the SHC building in the afternoon by Chief Justice Mr Justice Nazim Hussain Siddiqui.
The office-bearers and members of Sindh High Court Bar Association and Sindh Bar Council were not invited to attend the oath-taking ceremonies at Governor House and SHC. Later Chief Justice Mr Justice Nazim Hussain Siddiqui congratulated the judges who took fresh oath. 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 Provisional Constitutional Order (PCO) on Wednesday. Balochistan Governor Justice (retd) Amirul Mulk Mengal administered the oath. The oath-taking ceremony was held at the Governor House here. The BHC judges who took oath under the PCO included BHC Chief Justice Mr Justice Iftikhar Muhammad Chaudhry, Mr Justice Javed Iqbal, Mr Justice Raja Fayyaz Ahmed, Mr Justice Amanullah Khan and Mr Justice Fazlur Rehman. Prominent amongst the guests who witnessed the oath-taking ceremony were Corps Commander Quetta Lieutenant General Mushtaq Hussain, Advocate General Balochistan Ashraf Tanoli, President BHC Bar Association Hadi Shakil Ahmed, provincial ministers and other senior military and civil officials. In the NWFP, Governor Lt-Gen (retd) Muhammad Shafiq administered oath to Chief Justice of Peshawar High Court Mr Justice Mian Muhammad Ajmal, who later administered oath to 9 other judges. REFERENCE: Justice Irshad replaces Justice Saeeduzzaman as Chief Justice of Pakistan DAWN/The News International, KARACHI 27 January 2000, Thursday, 19 Shawwal 1420 http://www.karachipage.com/news/Jan_00/012700.html
PCO ORDER FROM MILITARY REGIME OF MUSHARRAF: Provisional Constitution Order No. 1 of 1999 Issued 1 a.m. (Pakistan Standard Time), October 15, 1999 ORDER NO. 1 OF 1999 No. 2-10/99-Min. I. Dated 14th October, 1999 http://www.pakistani.org/pakistan/constitution/post_12oct99/pco1_1999.orig.html
Good Old Days of Mr. Justice Iftikhar Muhammad Chaudhry [During Martial Law of General Musharraf] Courtesy Dawn Wire Service [Complete PCO Bench] Read how Martial Law was Justified by the Judges and Iftikhar Muhammad Chaudhry was part of the bench:
ISLAMABAD, March 1: The Chief Justice of Pakistan, Irshad Hasan Khan, on Wednesday observed that when the politicians are in power, they try to become dictators but when they are out of power, they become champions of the rule of law. Presiding over a 12-member bench seized of the seven petitions challenging the military takeover, the chief justice directed the attorney general to provide details of the expenditure on holding elections, including the expenses made by the candidates on their election campaigns. The Supreme Court announced that it would decide the issue of maintainability and merits of the case simultaneously. The chief justice said the court had entertained the petitions. The bench started regular hearing of the petitions on Wednesday. The court first took up the petition of Syed Zafar Ali Shah, suspended MNA of PML from Islamabad. The representative petition of PML would be taken next and Khalid Anwer would argue the case on behalf of the party. Other petitions before the court are of Syed Imtiaz Hussain Bukhari, challenging the PCO; Fazal Ellahi Siddiqui, challenging the PCO; Shahid Orakzai, seeking restoration of Senate, office of speakers and provincial assemblies; Al-Jehad Trust, seeking restoration of Constitution to the extent of judiciary; and Syed Iqbal Haider of MWM, seeking validation of PCO. The bench consisted of Justice Irshad Hasan Khan, Justice Mohammad Bashir Jehangiri, Justice Sheikh Ijaz Nisar, Justice Abdur Rehman Khan, Justice Sheikh Riaz Ahmad, Justice Chaudhry Mohammad Arif, Justice Munir A. Sheikh, Justice Rashid Aziz Khan, Justice Nazim Hussain Siddiqui, Justice Iftikhar Mohammad Chaudhry, Justice Qazi Mohammad Farooq and Justice Rana Bhagwandas. The chief justice made it clear at the outset that the counsels should try to be relevant and unnecessary repetition of arguments should be avoided. He said the whole work of the court was suspended due to the present case. Chaudhry Farooq, the counsel of Mr Shah, said that on the last hearing the petitioner had apprehended that the judges of the court would be asked to take fresh oath under the PCO and his apprehensions proved to be true. He said the PCO (1) of 1999 and subsequent orders were unconstitutional, having no force of law.
The chief justice asked the parties to avoid mud-slinging, and added that: “we will perform our function without intimidation.” He observed that the bar and the bench were integral part of the chariot of justice. He said his effort was to save the system and referred to the decisions of the Chief Justices Committee. The counsel said: “Pakistan was a gift of our forefathers, but unfortunately the rule of law had been interrupted at regular intervals. In its total life, Pakistan had suffered military rule for 30 long years”. He said the government in its reply to the petitions had said that the elections of Feb 3, 1997, were farce. The elections in which PML obtained heavy mandate were monitored by the observers across the globe, he said, and added the armed forces were employed to supervize the elections. On the court’s query, Barrister Khalid Anwar stated that 36 per cent of voters used their right of franchise in the 1997 elections. Chaudhry Farooq said if the government of Khawaja Nazimuddin would not have been dismissed, the fate of Pakistan would have been different. He said Pakistan was created with the force of vote and not through any military operation. “Both citizens and soldiers are subject to Constitution alike.” Referring to Article 6 of the Constitution, he said abrogating the Constitution was treachery with the country. When he stated that the respondents had not replied to the Politicians in power try to be dictators: CJ challenge he raised in the petition, the chief justice observed that the counsel was trying to be hyper technical. The CJ made it clear to the counsel that notice of the case to the chief of the army staff was there.The counsel said he was firm believer that the Kafir (infidel) could not be a friend of Muslim and Hindus being Kafir could not be trusted. When the counsel referred to a judgment from the Indian jurisdiction, the court asked him not to cite Indian judgments in the present case. When the counsel started reading an old judgment from Pakistani jurisdiction, the chief justice asked the counsel to first read the speech of the chief executive in which he had spelt out the reasons which forced him to come into power. The counsel was still reading the speech of Gen Musharraf when the court rose to assemble again on Thursday (March 2). REFERENCE: Politicians in power try to be dictators, says CJ Bureau Report [DAWN WIRE SERVICE Week Ending : 4 March 2000 Issue : 06/10 http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/2000/mar04.html
JUDICIARY UNDER MARTIAL LAW
ISLAMABAD, Feb 28: The Chief Justice of Pakistan, Irshad Hasan Khan, on Monday constituted the Supreme Judicial Council, and determined the seniority of the chief justices of the high courts. According to an order passed by the chief justice in his administrative capacity, the Supreme Judicial Council had been constituted. The members of the council are: Chief Justice Irshad Hasan Khan (chairman), Justice Mohammad Bashir Jehangiri, Justice Sheikh Ijaz Nisar, Justice Mian Mohammad Ajmal, and Justice Mian Allah Nawaz. Only four cases were referred to the council in the last 52 years. The last case of the Lahore High Court judge, Justice Shiekh Shaukat, was referred about two decades ago. According to a press release issued by the Supreme Court, the chief justice has institutionalized the decision-making process relating to administrative matters and decentralized his powers. Justice Bashir Jehangiri, senior judge of the Supreme Court, has been delegated financial powers of the chief justice to sanction expenditure up to Rs30,000. Justice Jehangiri would assist the chief justice in matters relating to the administration of the Supreme Court and proposals for improving and strengthening the administration of justice.
Other judges of the Supreme Court are also delegated different duties, such as chairmen of different committees and members of the universities’ syndicates. The chief justice also determined the inter seniority of the chief justices of high courts. They are (seniority wise): Justice Mian Mohammad Ajmal, chief justice of the Peshawar High Court; Justice Mian Allah Nawaz, chief justice of the Lahore High Court; Justice Syed Deedar Hussain, chief justice of the Sindh High Court; and Justice Javed Iqbal, chief justice of the Balochistan High Court. POWERS DECENTRALIZED: The Chief Justice of Pakistan, Mr. Justice Irshad Hasan Khan, has taken several steps to decentralise his powers and institutionalise decision making relating to administration to further improve performance and smooth functioning of the judiciary, adds APP. He has delegated his powers to the following judges for smooth functioning of courts.
1- Mr. Justice Muhammad Bashir Jehangiri, Senior Puisne Judge:
(i) Has been delegated financial powers of the Chief Justice to sanction expenditure upto Rs. 30,000/-
(ii) To assist the Chief Justice in matters relating to the administration of the SC and proposals for improving and strengthening the system of administration of justice.
2- Mr. Justice Sheikh Ijaz Nisar:
(i) Chairman, Building Committee at Lahore, Karachi, Peshawar and Islamabad.
(ii) Chairman, Federal Review Board
3- Mr. Justice Abdur Rehman Khan:
(i) Chairman, Disciplinary Committee of the Pakistan Bar Council
(ii) Member, Building Committee of Peshawar Building
(iii) Judge-in-charge Complaints
4- Mr. Justice Sheikh Riaz Ahmad:
(i) Member, Syndicate of the Quaid-i-Azam University
(ii) Member, Building Committee at Islamabad
(iii) Judge-in-charge of Computers
(iv) Member, Federal Review Board
(v) Member, Lahore Building Committee
Continued on Page 11
5- Mr. Justice Chaudhry Muhammad Arif:
(i) Judge-in-Charge, Federal Judicial Academy
(ii) Judge-in-charge of the Library
(iii) Chairman of the Library Committee
6- Mr. Justice Munir A Sheikh:
(i) Judge-in-charge of Pakistan Law Commission regarding initiation of proposals for law reform.
(ii) Chairman, Enrolment Committee of Pakistan Bar Council.
(iii) Judge-in-charge for Welfare of retired Judges in Lahore/Islamabad
(iv) Chairman, Election Tribunal, Pakistan Bar Council
7- Mr. Justice Rashid Aziz Khan:
(i) Member, Executive Council of the Allama Iqbal Open University
(ii) Member, Building Committee at Lahore
(iii) Chairman, Disciplinary Tribunal of the Pakistan Bar Council
8- Mr. Justice Nazim Hussain Siddiqui:
(i) Judge-in-charge for Welfare of retired Judges in Karachi
(ii) Member of the Building Committee at Karachi
9- Mr. Justice Iftikhar Muhammad Chaudhry:
Judge-in-charge for Affairs of Staff Welfare
10- Mr. Justice Qazi Muhammad Farooq:
Judge-in-charge for Welfare of retired Judges in Peshawar
11- Mr. Justice Rana Bhagwandas:
Member of the Library Committee. REFERENCE: Seniority of Chief Justices determined Bureau Report [ DAWN WIRE SERVICE Week Ending : 4 March 2000 Issue : 06/10 http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/2000/mar04.html
Incumbent CJ in the company of sacked PCOed CJ Abdul Hameed Dogar!
ISLAMABAD, March 16: Raja Anwar, counsel for Benazir Bhutto, on Friday argued that his client was convicted only because Nawaz Sharif, the then prime minister, wanted her to leave politics. Addressing a seven-member SC bench, hearing appeals of Benazir Bhutto and Asif Zardari against their conviction, Raja Anwar argued that the Ehtesab Bench, comprising Justice Malik Qayyum and Justice Najmul Hasan Kazmi, had convicted his client on the basis of documents which were inadmissible. The process of awarding pre-shipment inspection contract which was set in motion in 1992 during the Nawaz Sharif government, culminated in 1994, the counsel said.
The counsel said there was no violation of Financial Rules of the Government of Pakistan in the award of tenders. He said tenders could only be rejected after assigning any reasons in writing. When he referred to rule 90 of Pakistan’s Financial Rules, Justice Bashir Jehangiri observed that in Pakistan every contract was awarded in violation of rules. At the end of every tender notice it was written that the competent authority reserved the right to reject the bids without assigning any reason. He said his client did not grant the contract, rather it approved it. The contract was awarded by Nawaz Sharif who had issued letter of intent before he was removed from office. The seven-member bench consists of Justice Bashir Jehangiri, Justice Sheikh Riaz Ahmad, Justice Munir A. Sheikh, Justice Nazim Hussain Siddiqui, Justice Iftikhar Mohammad Chaudhry, Justice Qazi Mohammad Farooq, and Justice Abdul Hameed Dogar.
Responding to court’s question about Jens Schlegelmilch’s stay in Islamabad in Aug 1994, Raja Anwer said that there was nothing on record to show that the alleged frontman of Asif Zardari, Jens Schlegelmilch, met Benazir Bhutto. Justice Nazim Hussain Siddiqui observed whether it was possible for any official to investigate the sitting prime minister, the counsel said that his client was not prime minister at the time when investigations were being conducted. On conclusion of the proceedings on Friday, the court asked Raja Anwer to conclude his arguments by Monday as many other cases are suffering because of lengthy hearing of the case. The counsel, who had earlier indicated that he would conclude by Friday, said that he needed at least one more day to conclude his arguments. Raja Anwer assured the court that he would conclude his arguments by Monday next. The court will resume hearing on Monday, March 19. REFERENCE: A political conviction: counsel Rafaqat Ali DAWN WIRE SERVICE Week Ending : 17 March 2001 Issue : 07/11 http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/2001/mar1701.html
ISLAMABAD, April 6: The Supreme Court on Friday set aside corruption convictions awarded by the LHC’s Ehtesab bench to Benazir Bhutto and Asif Zardari, and ordered a retrial of the case. In a short order, the seven-member bench accepted the appeals of Ms Bhutto and Mr Zardari against the 1999 conviction. The detailed judgment would be announced later. The former prime minister and the suspended senator had requested the apex court to acquit them honourably. Justice Bashir Jehangiri, presiding judge of the bench, announced the verdict at 10.50am: “Reason to be recorded later in the detailed judgment, we accept the appeals and set aside the impugned judgment recording conviction against and awarding sentences to the appellants, and send the case to a court of competent jurisdiction for retrial.” On April 15, 1999, an Ehtesab bench consisting of Justice Malik Qayyum and Najmul Kazmi of the Lahore High Court had convicted Ms Bhutto and Mr Zardari. They were sentenced to undergo five years’ simple imprisonment each, and pay $8.6 million fine each. The Ehtesab bench had ordered their disqualification as members of parliament for five years, and forfeiture of their property made with money acquired through corruption.
The Ehtesab bench had held that the pre-shipment inspection contract to the Swiss company, SGS, had been awarded by the former prime minister “alone” at the behest and abetment with Mr Zardari. The prosecution case was that the contract had been awarded in consideration of 6 per cent commission of the total amount received by the SGS from the government of Pakistan. The prosecution had alleged that the commission had been paid to an offshore company, Bomer Finance Inc., owned by Mr Zardari through his fiduciary agent Jens Schlegelmilch. The ultimate beneficiaries of the commission were Mr Zardari and Ms Bhutto, according to prosecution. Farooq Hameed Naek, counsel for appellants, said after the judgment: “I am satisfied … but not happy. I was expecting honourable acquittal but this is the court’s judgment.” The military government had inherited the case from the PML government and defended the judgment vehemently, spending over Rs10 million in legal fees and other expenses. The Supreme Court bench consisted of Justice Bashir Jehangiri, Justice Sheikh Riaz Ahmed, Justice Munir A. Sheikh, Justice Nazim Hussain Siddiqui, Justice Iftikhar Mohammad Chaudhry, Justice Qazi Mohammad Farooq, and Justice Abdul Hameed Dogar. SC orders retrial of Benazir, Asif Rafaqat Ali DAWN WIRE SERVICE Week Ending : 07 April 2001 Issue : 07/14 http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/2001/apr0701.html
A Press Clipping/News Report written by Lawyers from Wall Street Journal on Pakistani Judiciary.
When U.S. President Barack Obama sharply challenged a recent Supreme Court decision in his State of the Union address, prompting a soto voce rejoinder from Justice Samuel Alito, nobody was concerned that the contretemps would spark a blood feud between the judiciary and the executive. The notion that judges could or would work to undermine a sitting U.S. president is fundamentally alien to America's constitutional system and political culture. Unfortunately, this is not the case in Pakistan.Supreme Court Chief Justice Iftikhar Mohammed Chaudhry, the country's erstwhile hero, is the leading culprit in an unfolding constitutional drama. It was Mr. Chaudhry's dismissal by then-President Pervez Musharraf in 2007 that triggered street protests by lawyers and judges under the twin banners of democracy and judicial independence. This effort eventually led to Mr. Musharraf's resignation in 2008. Yet it is now Mr. Chaudhry himself who is violating those principles, having evidently embarked on a campaign to undermine and perhaps even oust President Asif Ali Zardari.
Any involvement in politics by a sitting judge, not to mention a chief justice, is utterly inconsistent with an independent judiciary's proper role. What is even worse, Chief Justice Chaudhry has been using the court to advance his anti-Zardari campaign. Two recent court actions are emblematic of this effort. The first is a decision by the Supreme Court, announced and effective last December, to overturn the "National Reconciliation Ordinance." The NRO, which was decreed in October 2007, granted amnesty to more than 8,000 members from all political parties who had been accused of corruption in the media and some of whom had pending indictments. While some of these people are probably corrupt, many are not and, in any case, politically inspired prosecutions have long been a bane of Pakistan's democracy. The decree is similar to actions taken by many other fledgling democracies, such as post-apartheid South Africa, to promote national reconciliation. It was negotiated with the assistance of the United States and was a key element in Pakistan's transition from a military dictatorship to democracy. Chief Justice Chaudhry's decision to overturn the NRO, opening the door to prosecute President Zardari and all members of his cabinet, was bad enough. But the way he did it was even worse. Much to the dismay of many of the brave lawyers who took to the streets to defend the court's integrity last year, Mr. Chaudhry's anti-NRO opinion also blessed a highly troubling article of Pakistan's Constitution—Article 62. This Article, written in 1985, declared that members of parliament are disqualified from serving if they are not of "good character," if they violate "Islamic injunctions," do not practice "teachings and practices, obligatory duties prescribed by Islam," and if they are not "sagacious, righteous and non-profligate." For non-Muslims, the Article requires that they have "a good moral reputation."
Putting aside the fact that Article 62 was promulgated by Pakistan's then ruling military dictator, General Zia ul-Haq, relying on religion-based standards as "Islamic injunctions" or inherently subjective criteria as "good moral reputation" thrusts thePakistani Supreme Court into an essentially religious domain, not unlike Iranian Sharia-based courts. This behavior is profoundly ill-suited for any secular court. While Article 62 was not formally repealed, it was discredited and in effect, a dead letter. The fact that the petitioner in the NRO case sought only to challenge the decree based on the nondiscrimination clause of the Pakistani Constitution and did not mention Article 62 makes the court's invocation of it even more repugnant. Meanwhile, the decision's lengthy recitations of religious literature and poetry, rather than reliance on legal precedent, further pulls the judiciary from its proper constitutional moorings. The second anti-Zardari effort occurred just a few days ago, when the court blocked a slate of the president's judicial appointments. The court's three-Justice panel justified the move by alleging the president failed to "consult" with Mr. Chaudhry. This constitutional excuse has never been used before. It is well-known in Islamabad that Mr. Zardari's real sin was political, as he dared to appoint people unacceptable to the chief justice. Since consultation is not approval, Mr. Chaudhry's position appears to be legally untenable. Yet Mr. Zardari, faced with demonstrations and media attacks, let Mr. Chaudhry choose a Supreme Court justice.
There is no doubt that the chief justice is more popular these days than the president, who has been weakened by the split in the political coalition which brought down Mr. Musharraf. Former Prime Minister Nawaz Sharif is now a leading opponent of the regime. There is a strong sense among the Pakistani elites that Justice Chaudhry has become Mr. Sharif's key ally. The fact that Mr. Chaudhry was a victim of an improper effort by former President Musharraf to replace him with a more pliant judge makes his current posture all the more deplorable. His conduct has led some of his erstwhile allies to criticize him and speak of the danger to democracy posted by judicial meddling in politics. The stakes are stark indeed. If Mr. Chaudhry succeeds in ousting Mr. Zardari, Pakistan's fledgling democracy would be undermined and the judiciary's own legitimacy would be irrevocably damaged. Rule by unaccountable judges is no better than rule by the generals. REFERENCE: Judicial Coup in Pakistan - Once a democratic champion, the Chief Justice now undermines the elected government. by DAVID B. RIVKIN JR. AND LEE A. CASEY FEBRUARY 23, 2010, 7:51 P.M. ET http://online.wsj.com/article/SB10001424052748704057604575080593268166402.html Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan andGeorge H.W. Bush administrations.
BLIND AND RAMPAND JUSTICE - Chief Justice threatened Sharif [Time Weekly]
To his supporters, and there are many, Pakistan’s Supreme Court Chief Justice Iftikhar Chaudhry is a hero, a man of honor who stood up for an independent judiciary and defied the diktats of former President Pervez Musharraf — and who continues to hold the political establishment accountable. To his detractors, however, Chaudhry is an activist jurist with unbridled powers, a populist with grandiose political ambitions. In a country where politics can get very personal, the Chief Justice’s relationships with the pillars of civilian and military power, President Asif Ali Zardari and Army Chief of Staff General Ashfaq Kayani respectively, could be important in shaping Pakistan’s transition from de facto military rule to civilian democracy. And those relationships are likely to be tested in the tussle over a package of wide-ranging constitutional reforms that was due to be introduced to parliament on Friday, whose purpose is to reverse changes made by previous military rulers, trim the power of the presidency, and alter the procedure for Supreme Court appointments. The bill would take Supreme Court appointments out of the hands of the president, who now makes nominations after consulting with the chief justice, and place them before a government legal committee that also includes several justices. Unlike the present system, judges would have to be confirmed by a parliamentary vote. The proposed reforms have widened the rift between Chaudhry and the government that has grown since the Chief Justice last year struck down amnesty decrees by Musharraf that protected many senior figures in government — including Zardari himself once out of office — from prosecution on corruption charges. And some saw the Chief Justice’s hand in the eleventh-hour stalling of parliamentary debate on the package on Friday by opposition leader Nawaz Sharif, who objected to proposals on the selection of judges. Sharif’s opposition, some senior politicians suggest, results from being pressured by Chaudhry, who is allegedly opposed to having his own power in the selection of judges curtailed. “The chief justice threatened [Sharif]. He said he’d open up all cases against him,” a senior leader of the ruling Pakistan People’s Party said on condition of anonymity. “He’s become an absolute dictator.”
On the contrary, says a legal expert at the Supreme Court and Chaudhry associate speaking on condition of anonymity, the conflict is caused by the “government [wanting] a chief justice and court which is compliant, not independent.” The standoff over how judges are selected could have far-reaching implications in a political order feeling its way towards democracy, with the different branches of government are “attempting to first stretch the bounds of their authority and second, to learn how to work with each other,” says Samina Ahmed, Pakistan director for the International Crisis Group, a global policy-research center. “The problem in Pakistan has [historically] been with the military’s intervention, transitions have been disrupted, and the judiciary in the past has supported every military intervention.” But as the two civilian branches of government tussle over their powers, neither appears to have clear backing from the military, whose preferences are often decisive. Still, some Pakistani media commentators suggest that the generals may be colluding with the judges to limit the power of government, already groaning under the weight of the president’s sagging popularity. They point to a stalled but soon-to-be-reopened Supreme Court case that accuses intelligence agencies of using the “war on terror” as a pretext to secretly detain thousands of citizens suspected of links to Baluchi separatists and other radical groups. The local Dawn newspaper reported last month that Supreme Court Justice Javed Iqbal said that the court “would not like to create the impression that it was out to destroy or tarnish the image of intelligence agencies” with regard to these cases. Chaudhry had in 2007 begun to investigate the issue of Pakistanis alleged to have disappeared into secret custody before he was deposed by Musharraf, and had ordered members of the security forces to produce several of the missing in court. Now, some media commentators are suggesting that Chaudhry is retreating from that fight. Chaudhry’s supporters deny the claim, and say that the court will not shy away from prosecuting any security officials who have broken the law. Whatever the outcome of the particular battles over constitutional powers and various court cases, what remains clear is that Justice Chaudhry, while holding an office that is ostensibly above politics, will remain in the thick of it. REFERENCE: Pakistan’s Chief Justice Takes on its Political Class By RANIA ABOUZEID / ISLAMABAD Saturday, Mar. 27, 2010 http://www.time.com/time/world/article/0,8599,1975646,00.html
The NRO case, Dr Mubashar Hasan and others versus the federation, has once again stirred a hornet’s nest. There is thunderous applause for bringing the accused plunderers and criminals to justice and widespread speculation on the resignation of the president. Very little analysis is being done on the overall effect of the judgment itself. While, the NRO can never be defended even on the plea of keeping the system intact, the Supreme Court judgment has wider political implications. It may not, in the long run, uproot corruption from Pakistan but will make the apex court highly controversial.
Witch-hunts, rather than the impartial administration of justice, will keep the public amused. The norms of justice will be judged by the level of humiliation meted out to the wrongdoers, rather than strengthening institutions capable of protecting the rights of the people. There is no doubt that impunity for corruption and violence under the cover of politics and religion has demoralised the people, fragmented society and taken several lives. It needs to be addressed but through consistency, without applying different standards, and by scrupulously respecting the dichotomy of powers within statecraft. In this respect the fine lines of the judgment do not bode well.
The lawyers’ movement and indeed the judiciary itself has often lamented that the theory of separation of powers between the judiciary, the legislature and the executive has not been respected. The NRO judgment has disturbed the equilibrium by creating an imbalance in favour of the judiciary. The judgment has also sanctified the constitutional provisions of a dictator that placed a sword over the heads of the parliamentarians. Moreover, it has used the principle of 'closed and past transactions' selectively. It is not easy to comprehend the logic of the Supreme Court that in a previous judgment it went beyond its jurisdiction to grant life to ordinances — including the NRO — protected by Musharraf’s emergency to give an opportunity to parliament to enact them into law. If the NRO was violative of fundamental rights and illegal ab initio, then whether the parliament enacted it or not it would have eventually been struck down. By affording parliament an opportunity to own up to the NRO appears to be a jeering gesture unbecoming of judicial propriety.
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?
Apart from Dr Mubashar Hasan, not even the petitioners of the NRO case are likely to pass the strenuous test laid down in Article 62 of the constitution. This could well beg the question whether it is wise for those in glass houses to be pelting stones.The judgment goes much further. It has assumed a monitoring rather than a supervisory role over NAB cases. In India, the supreme court directly interfered in the Gujarat massacre but it did not make monitoring cells within the superior courts. Is it the function of the superior courts to sanctify the infamous NAB ordinance, the mechanism itself and to restructure it with people of their liking? It is true that the public has greater trust in the judiciary than in any other institution of the state, but that neither justifies encroachment on the powers of the executive or legislature nor does it assist in keeping an impartial image of the judiciary. The long-term effects of the judgment could also be counter-productive; perpetrators are often viewed as victims if justice is not applied in an even-handed manner and if administered in undue haste with overwhelming zeal. It is therefore best to let the various intuitions of state take up their respective responsibilities because eventually it is the people who are the final arbiters of everyone’s performance. REFERENCE: 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 غیر جانب دار نہیں رہی‘
آخری وقت اشاعت: جمعـء, 19 فروری, 2010, 05:58 GMT 10:58 PST
’عدلیہ دائرہ کار سے تجاوز کر گئی ہے‘
بی بی سی اردو ڈاٹ کام، لاہور
عدلیہ کا کام ارکانِ پارلیمان کی اخلاقیات کی جانچ پڑتال نہیں
آخری وقت اشاعت: ہفتہ, 19 دسمبر, 2009, 05:25 GMT 10:25 PST
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۔‘
عاصمہ جہانگیر نے بی بی سی اردو ڈاٹ کام سے گفتگو کرتے ہوئے کہا کہ جس طریقے سے فیصلہ آیا اور مانیٹرنگ سیل بنائے گئے اور سارے اراکین پارلیمان کو ایک طرح سے وارننگ دی گئی کہ ان کے کردار کی چھان بین ہوسکے گی ’وہ سمجھتی ہیں کہ عدلیہ اپنے دائرے سے باہر نکلی ہے۔‘
انہوں نے کہا وہ اس بات کی توقع نہیں رکھتی تھیں کہ عدلیہ اب اس بات کی جانچ پڑتال شروع کردے گی کہ ممبران کے اخلاقیات کیا ہیں۔
عاصمہ جہانگیر نے کہا کہ اراکین اسمبلی تو الیکشن لڑ کر آتے ہیں لیکن جج تو اپنی ساکھ کی وجہ سے آتے ہیں اگر ممبران پارلیمان کے لیے معیار اتنا بلند کردیا جائے کہ کوئی اس پر پورا نہ اتر سکے تو پھر عدلیہ کا معیار تو اس سے بھی بہت بلند ہونا چاہیے۔
انسانی حقوق کمشن پاکستان کی سربراہ نے کہا کہ ’یہ جوڈیشل ایکٹوازم نہیں ہے بلکہ عدلیہ اپنی اتھارٹی کو بہت زیادہ آگے لے گئی ہے۔اب اس نے مانیٹرنگ سیل قائم کرنے کی بات کر دی ہے۔یہ بھی دیکھا جائے گا کہ کس میکنزم کے مطابق کام ہوگا۔‘
’عدلیہ کی سپرویژن تو ہوتی ہے لیکن مانیٹرنگ سیل ہم نے آج تک نہیں دیکھا کہ اس طریقے بنائے گئے ہوں۔‘
انہوں نے کہا کہ وہ سمجھتی ہیں کہ تقسیم اختیارات کا نظریہ متاثر ہوا ہے۔’عدلیہ کو اپنے رویے پر غور کرنا چاہیے اس کا اپنا ایک مقام ہے اور اسے اپنے اس مقام پر واپس چلے جانا چاہیے۔وہ کسی خاص معاملے یا کیس میں اپنی دلچسپی نہ دکھائے۔‘
’وہ انصاف ضرور کریں لیکن یہ مخصوص نہ ہو بلکہ مساویانہ انداز سے ہونا چاہیے کیونکہ یہ نہ صرف ملک کے لیےبلکہ خود ان کے لیے بھی اچھا نہیں ہوگا۔‘
ایک سوال کے جواب میں انہوں نے کہا کہ وہ اس فیصلے کے خلاف اسی صورت میں اپیل کرسکتی تھیں جب اس عدالت سے بڑی بھی کوئی عدالت ہوتی۔انہوں نے کہا کہ سپریم کورٹ کے سترہ رکنی بنچ نے ایسا فیصلہ سنا دیا ہے جس کی کہیں اپیل بھی نہیں ہوسکتی۔
’انسان آخر انسان ہوتا ہے اس سے غلطی ہوسکتی ہے اسی لیے اپیل کا حق رکھا جاتا ہے۔ یہ بھی سوچنے کی بات ہے کہ اتنے بڑے فیصلے کردیئے جائیں اور اس کی کہیں اپیل بھی نہ ہوسکے۔‘
انہوں کہا کہ وہ یہ نہیں کہتیں کہ عدلیہ فیصلے نہ دے لیکن جو بھی کرے بہت سوچ سمجھ کر کرے۔
عاصمہ جہانگیر نے کہا کہ اس سے کوئی انکار نہیں کرسکتا کہ جن لوگوں نے لوٹ مار کی ہے ان کے مقدمات عدالتوں میں چلنے چاہیے اور یوں اجتماعی معافی نہیں ہونی چاہیے لیکن عدلیہ نے جس انداز میں فیصلے کیے ہیں اس پر انہیں تحفظات ہیں۔
دریں اثناء انسانی حقوق کمشن آف پاکستان نے ایک بیان جاری کیا ہے جس میں بعض افراد کے بیرون ملک نقل وحرکت پر پابندی کو بنیادی حق کی خلاف ورزی قرار دیا ہے اور کہا ہے کہ کمشن کو اس بات پر پریشانی ہے کہ حکام نے ایگزٹ کنٹرول لسٹ آرڈیننس کا اطلاق کردیا ہے جسے کبھی بھی منصفانہ نہیں سمجھا گیا۔کمشن کی سربراہ عاصمہ جہانگیر نے کہاکہ پیشگی نوٹس اور مناسب وجوہات بیان کیے بغیر پابندی عائد کرنا اس بنیادی حق کی خلاف ورزی ہے جس کی ضمانت ملک کا آئین دیتا ہے۔انہوں نے کہا کہ جن لوگوں کے خلاف عدلیہ میں مقدمات چل رہے ہوں ان کے بیرون ملک سفر پر پابندی عائد کرنا ضروری نہیں ہے ان کے فرار کو روکنے کے لیے عدالت میں قانونی سطح پر یقین دہانی حاصل کی جاسکتی ہے۔انہوں نے کہا کہ ایگزٹ کنٹرول لسٹ کو ماضی میں سیاسی طور پر حراساں کرنے کے لیےاستعمال کیا جاتا رہا ہے اور اب ایگزٹ کنٹرول لسٹ کا عدالتی فیصلے کی آڑ میں من مانے طریقے سے استعمال کسی آفت سے کم نہیں سمجھا جائے گا۔انہوں نے کہا کہ قومی دولت لوٹنے والوں کے خلاف جو قانونی کارروائی کی جارہی ہے وہ کافی ہے، حکام کو بے جا غصے اور جوش میں آکر ایسے ناجائز اقدام نہیں کرنے چاہیے جنہیں وہ انصاف سمجھتے ہوں۔
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. REFERENCE: PAKISTAN: International Commission of Jurists http://www.icj.org/IMG/pdf/pakistan.pdf
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/print1.asp?id=191800 The road to hell — and similar destinations Islamabad diary Friday, January 01, 2010 Ayaz Amir http://thenews.com.pk/daily_detail.asp?id=216323