Friday, December 24, 2010

Labour/Worker "Friendly" Judiciary of Pakistan.

ISLAMABAD: The Supreme Court accepted on Thursday an appeal of the PTCL against termination of contract employees and said the employees had no vested right to seek regularisation of their job. “Employees having entered into contracts of service on the same or similar terms and conditions have no vested right to seek regularisation of their employment, which is discretionary with the master. The master is well within his rights to retain or dispense with services of an employee on the basis of satisfactory or otherwise performance. “The contract employees have no right to invoke writ jurisdiction, particularly in the instant case where their services have been terminated on completion of the period of contract,” the Supreme Court ruled. However, the bench comprising Chief Justice Iftikhar Mohammad Chaudhry, Justice Tariq Pervez and Justice Ghulam Rabbani granted a relief to the employees and said that since they fell within the definition of workmen, they would be entitled to one month’s notice or salary, as permissible to them under the rule of employer and employee. Accepting the appeal moved by Pakistan Telecommunication Company Limited, the apex court held that petitions filed by PTCL employees were not maintainable.

The PTCL had introduced a Voluntary Separation Scheme (VSS) which entitled its employees to receive early retirement benefits provided he had completed a minimum of 20 years of service. When these employees applied for early retirement, they were denied the benefit of VSS by PTCL for not completing the required length of service.

The employees wrote a letter to a judge of the Hyderabad Bench of the SHC, saying that they had completed 20 years of service from the date of their appointment, but they were wrongly denied the VSS benefits. The letter was converted into a petition and notices were issued to the authorities concerned. The PTCL argued that the length of service of these employees could be considered only from the date of successful completion of training and not from the date of their initial appointment. But the employees cited the case of Mrs Rubina Khadim, a telephone operator, who was granted the benefits on the basis of the date of her appointment and not that of completion of training. They submitted that in their case, the PTCL had pursued a policy of discrimination which warranted interference by the court. The Hyderabad bench allowed the petition and ordered the PTCL to extend the benefit of VSS to them.

Another bench of the same court through a common judgment of March 2010 granted relief to the employees and ordered the company to pay the balance and monthly pension as claimed by them. The company approached the apex court which decided to consider whether the writ could be issued to the PTCL as it was not performing functions in connection with affairs of the government and even if it was assumed to be performing such functions, the subject matter of the impugned judgment was not connected with affairs of the government, and also whether or not the rules framed by the PTCL were statutory. The court held as untenable the argument that the employees should be considered to be on job from the date of appointment, regularised after 183 days of service and therefore entitled to the wages as paid to regular employees of the PTCL. The court ruled that no relief could be granted to the employees because their services were not governed by any statutory rules and even the VSS was not offered under or in terms of any statutory provisions. REFERENCE: SC accepts PTCL plea against employees From the Newspaper (19 hours ago) Today By Nasir Iqbal

Noam Chomsky: Is Capitalism Making Life Better?


Labour Laws Violations in Pakistan

Under the 1973 Constitution labour is defined as a ‘concurrent subject’ making liable for implementation both the Federal and Provincial Governments. The Industrial Relations Ordinance makes provision for the appointment of a Collective Bargaining Agent (CBA) to determine the representative character of the trade union in industrial disputes and to obtain representation on committees, boards and commissions. There are several other provisions in the Constitution of Pakistan with regards to labour rights found in Part II protecting the Fundamental Rights such as Article 11 prohibits all forms of slavery, forced labour and child labour; Article 17 provides for freedom of association and the right to form unions; Article 18 proscribes the right of its citizens to enter upon any lawful profession or occupation and to conduct any lawful trade or business; Article 25 lays down the right to equality before the law and prohibition of discrimination on the grounds of sex alone; and Article 37(e) makes provision for securing just and humane conditions of work.

Noam Chomsky - Wage Slavery


The protection of civil rights and policies has apparently improved in papers after coming into power the present regime after restoration of “democracy”, but practically still falls far short of the standards of a democracy rather the conditions of the labour unions have been badly deteriorated. On the one hand even most of the corrupt CEOs of the state enterprises strongly resist the unionisation of their employees and the managements resort to intimidation, dismissal and blacklisting against the real unions simultaneously patronising the “Pocket Unions” to achieve their personal objectives; what to say about private enterprises, on the other hand Poverty has continued to rise which has further worsened the living conditions of workers class.

Noam Chomsky: Wage Slavery = Chattle Slavery


In the recent years, hundreds of trade union leaders have been dismissed from the Banks and other institutions. Merely on complaint of workers regarding violation of the OECD Guidelines for Multinational Companies, The Unilever dismissed 287 of the 292 temporary employees at the factory after the union’s announcement that it would be allowing temporary workers to join it and would help them obtain permanent employee status, leader of the National Trade Union Federation along withthree others were arrested on allegedly false charges of robbery probably brought by the owner of Interwood, The workers of PTCL remained protesting and staging a sit-in at PTCL Headquarter, Islamabad on the issue of the fulfillment of the commitments made to them by the management but their protest was brutally suppressed jointly by the state and management of the PTCL, Many leaders of the union of Pearl Continental Hotel in Karachi have been sacked, threatened, harassed and imprisoned. On 29 July, sacked union leaders and other dismissed workers were assaulted by the police when holding a peaceful protest in front of the hotel, Workers protesting for their rights were fired at the Badin Army Sugar Mills in Badin many being injured and having to receive hospital treatment, PUT Sarajevo General Engineering Company, sacked all the leaders and 32 other members of the Awami Labour Union on 24 July, after the union had put forward a series of demands regarding the application of legislation. The company also brought in the police to deal with the protesting workers, A case was filed bu Punjab Police against 1300 workers and 30 belonging to LQM, an organisation of textile workers were arrested on fake charges of attempted murder and kidnapping, Workers at the Pak Arab Refinery were summarily dismissed, Representatives of CBA union of Zarai Taraqiati Bank were sacked by the management for their “non-cooperative” attitude. The only fault on their part was that they had filed a complaint to the Prime Minister against illegal, politically motivated and out of merit recruitment on top ranking positions of dozens of retired army and police officers, and some others removed from different departments who did not have even a single day experience of developmental banking. In addition thousands of others were appointed in Grade-I to Grade-III and on lower grades without any merit. Not only the union representatives were dismissed from service without any tangible ground but the President of the Bank used his influence to get their appeals dismissed in the Federal Service Tribunal. Now their children are constrained to cease their education and also suffering from starvations. The General Secretary of the Pakistan Workers Federation in the region, Haji Muhammad Ramzan Achakzai, was also detained on criminal charges for supporting the mineworkers as well as later being involved in the cases of 250 dismissed Merck employees in Quetta.

Free Market Fantasies by Noam Chomsky 1/5

Free Market Fantasies by Noam Chomsky 2/5

Free Market Fantasies by Noam Chomsky 3/5

Free Market Fantasies by Noam Chomsky 4/5

Free Market Fantasies by Noam Chomsky 5/5


These are merely a few examples of destitution of workers class. Such instances had not been seen even during dictator’s regime. The NGOs working in Human Rights as well as media are also silent and they have not acted promptly and effectively against these gross violations of Fundamental Rights, the NGOs on Human Rights risks in particular becoming irrelevant. It was of paramount necessity to uphold human rights and denounce violations wherever they occurred. But instead, time and time again, the NGOs have behaved in a highly fractious, self-interested, politically expedient manner, turning a blind eye to human rights violations and allowing perpetrators to operate with impunity. NGOs, media and civil society should come forward to become a wall against these grave violations of Fundamental Rights guaranteed by the constitution. We should remember working class is backbone of the economy of Pakistan. REFERENCE: Labour Laws Violations in Pakistan By on NOVEMBER 9, 2010 Shaukat Masood Zafar

The Myth of the Liberal Media: The Propaganda Model of News


Noam Chomsky Compares Right-Wing Media to Nazi Germany



High treason.

(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

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 SC moved for Musharraf’s trial under Article 6 By Sohail Khan dated Sunday, August 23, 2009 SC moved against Musharraf; PML-N disowns Zafar’s plea By Nasir Iqbal Sunday, 23 Aug, 2009 02:51 AM PST

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

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

As per a report by International Crisis Group "REFORMING THE JUDICIARY IN PAKISTAN" dated 16 October 2008:


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


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

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


State of Affairs of Labour Laws in Pakistan, Chief Justice and Violation of International Labour Laws

No forum left to agitate service matters By Mahmood Zaman

January 16, 2007 Tuesday Zilhaj 25, 1427

LAHORE, Jan 15: All the federal and provincial employees, both officers and subordinate staff across the country, working in government departments and corporations established under an act of parliament, have been left with no judicial forum to agitate their grievances in service matters.

Amendments made to different labour laws and judicial bodies since 1997 have virtually banned trade union activities and substantially curtailed the jurisdiction of labour courts, provincial labour appellate tribunals, National Industrial Relations Commission (NIRC) and other such forums.

As a result, private and public employees and workmen have been left with almost no remedy in case of dispute with the management. Similarly, the changes in laws have hit trade union activities.

They were barred from approaching the Federal Service Tribunal after the Service Tribunal Act of 1973 was amended on June 10, 1997, to insert sections 2(a) and 2-A to define a civil servant afresh. The new law enunciated that service under an authority, corporation, body or organisation established by a federal law or owned or controlled by the federal government or in which the federal government has interests, is declared as service of Pakistan and those holding posts in such departments shall be civil servants.

However, the Industrial Relations Ordinance (IRO), 2002, ordained that the employees in federal and provincial service shall not be entitled to agitate labour courts to get their service disputes settled. The new IRO also removed the employees of the Pakistan Railways, Wapda and other public corporations from the labour courts judicial review.

As a result, the employees working with statutory federal and provincial departments and corporations are no more entitled to move the Federal Service Tribunal and labour courts.

The situation has also been clarified by superior courts which have held that only the employees of offices established under the constitution are civil servants and they alone are entitled to constitutional protection. Such offices include the president’s and the prime minister’s secretariats, establishments working under provincial governors and chief ministers and the Supreme Court and high courts.

Such a decision was given by a Supreme Court bench, comprising then Chief Justice A R Cornelius and Justice Hamoodur Rehman, on March 31, 1964, in a petition for leave to appeal filed by a PIA employee against the decision of the Sindh High Court which refused to entertain his writ petition against his removal from his office. The judgment (reported in 1971 SCMR 568) said that the writ petition was not maintainable because the petitioner was an employee of a corporation which was a statutory body and did not enjoy the protection of the constitution (of 1956). The apex court did not grant the petitioner leave to appeal with the observation that the petitioner was not a member of a central or provincial All-Pakistan Service which alone was the public service.

Hundreds, if not thousands, of these employees moved the provincial high courts throughout the country in writ petitions against the orders of the labour courts which rejected their petitions on the ground that the IRO 2002 did not entitle them to agitate their disputes with those courts. The high courts have also raised the question of the writ petitions in the light of the Supreme Court observations in the decision announced in March 1964. The high courts have during the proceedings held that they are not entitled to agitate their grievances through writ petitions as they do not enjoy the constitutional protection.

LABOUR LAWS: The industrial workers and officers enjoyed legislative and judicial protection under the laws enacted in 1973, the year which saw a number of pro-labour laws being enacted. All government officers were entitled to move the Federal Service Tribunal without discrimination and the subordinate staff was provided with the right to agitate their disputes with labour courts.

The legal cover to the workforce continued till 1980 when the WAPDA Act of 1958 was amended to insert section 17-A which provided that Wapda employees, including workmen, were permitted only to move the Federal Service Tribunal and they had no entitlement to approach labour courts.

In 1993, the Pakistan Railways Act was amended to declare that the open-line network and infrastructure ancillary to the PR track across the country was a Ministry of Defence service where trade union activity could not be allowed.

The new legislation thus excluded the two major employers from the judicial review to a great degree.

Come 1997 and the government amended the Civil Servants Act of 1973 to insert section 2-1(a) and 2-1(b) to redefine the civil servant who “is a member of the All-Pakistan Service or of a civil service of the federation or who holds a civil post in connection with the affairs of the federation...”. They excluded deputationists, work-charge and contractual employees and those who were workmen. Lastly, a new IRO was enforced in 2002 which incorporated all the changes in the laws. The IRO also debarred all the employees of departments and corporations, established under an act of parliament, from the jurisdiction of the labour courts. As a result, the employees of the departments, other than those established under the 1973 Constitution, now had no judicial forum to agitate their disputes.

The legal position was explained by the Supreme Court through a judgment in January 2006 in as many as 600 appeals filed by the officers and employees of the Pakistan Railways, Wapda and other public corporations against a decision of the Federal Service Tribunal which rejected their petitions for rights and privileges enjoyed by ‘civil servants’.

A nine-member full bench of the apex court, headed by Chief Justice Iftikhar Mohammad Chaudhry, held that the appellants were not civil servants as defined in section 2-1(b) of the Civil Servants Act, 1973, and thus had no remedy available before the Federal Service Tribunal.

As for the alternative remedy, the apex court said that the cases decided finally by the SC would not be re-opened and review petitions would be heard independently. All other appeals, the judgment said, shall stand abated.

CIVIL COURT: As for the alternative remedy, the only opportunity available to them is the civil court under the doctrine of master and servant, as held by the Supreme Court in an appeal by a Wapda employee decided in 1991 and reported in 1993 SCMR 346 by a SC bench headed by Justice Ajmal Mian. The judgment said when a statutory corporation did not frame service rules and enjoyed the discretion of being the sole arbitrator in regulating service terms and conditions, no suit or writ petition would be competent. In such a case, the Supreme Court held, the remedy available to the employee is under the doctrine of ‘master and servant’ in suit for damages (before a civil court). As a consequence, the employees are left with the only remedy of moving a civil court in a suit of damages.

REACTION: All-Pakistan Workers Confederation secretary-general Khursheed Ahmad said that denying the right for redressal of grievances was unconstitutional.

Talking to Dawn on Monday, Ahmad said that door of all the judicial forums now stood closed on hundreds of thousands of employees of public sector corporations through successive changes in different laws which was a gross injustice. Such a situation was frustrating where social security institutions stood weakened and the government was also not giving unemployment allowance to the jobless.

Ahmad, who heads a united front of eight nationwide trade union federations, said employees in public and private sectors had virtually been left on the the mercy of managements.

The PWC secretary-general also mentioned the President (Special Powers for Removal from Service) Ordinance, 2000, saying it was a repressive law which empowered the federal government to remove any employee from service without serving him or her a show-cause notice and giving him an opportunity of defence.



1 comment:

Qurat-ul-ain said...

Our Judiciary and institutions are no doubt independent and there is no sort of maneuvering or interference by Government. However despite complete freedom and independent some institutions are busy in conspiracies just for grabbing more and more power because of hegemonic mindset. Apart from ordinary independent of working Judiciary must also be independent from biasness against any particular parties, regions, lobbies or cadres. The biasness and hatred against PPP stalemate the word independence and transparency of judiciary. At the same time when PPP has fairly granted Judiciary to take its decision independently, judges must not indulge themselves in politics and avoid becoming a political agent of PML-N. Nawaz already owes a mammoth donation to expiate his crime of attacking the Supreme Court. I advise judiciary not to go in slavery of muslim league Nawaz and work indecently for the country and people of Pakistan keeping in mind the story of Justice Sajjad Ali Shah.