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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, 2009http://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 Reporthttp://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, 1426http://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 2008http://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
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.
SOURCE: DAILY DAWN PAKISTAN.