Wednesday, March 30, 2011

Judicial Dictatorship in Pakistan & Contempt of Court by Pakistani Media.

During the course of the proceedings, the acting AG informed the SC that despite the court’s orders, some TV channels were still conducting talk shows on the NRO. The chief justice again directed TV channels not to conduct talk shows on the NRO which is sub judice. “TV channels should not debate the matter which is sub judice: otherwise, we would issue an order in black and white in this regard,” the CJ remarked. REFERENCE: Court unhappy with NAB By Sohail Khan Thursday, December 10, 2009 SC concerned over Swiss case record’s safety Enquires about Zardari’s $47m According to a news report in The Nation on 8 December 2009: The Chief Justice advised the media not to discuss the matter with regard to NRO in television programmes until the case was disposed off. However, he said media could report the proceedings openly. By: Zahid Gishkori | Published: December 08, 2009 ٹی وی مباحثوں میں این آراوکیس پربات نہ کی جائے،چیف جسٹس
اسلام آباد (جنگ نیوز) عدالت عظمیٰ کے چیف جسٹس افتخار محمد چوہدری نے ذرائع ابلاغ سے کہا ہے کہ وہ قومی مفاہمتی آرڈیننس (این آر او) کے بارے میں درخواستوں کی سماعت کے دوران ٹی وی مذاکروں اور مباحثوں میں این آر او پر بات نہ کریں تاکہ تعصب کا تاثر پیدا نہ ہوتاہم ٹی وی چینلزاوراخبارات کو یہ اجازت ہوگی کہ وہ اس کیس کے حوالے سے رپورٹنگ کریں۔ پیر کو 17 رکنی بینچ کی سربراہی کرتے ہوئے چیف جسٹس نے کمرہ عدالت میں موجود ذرائع ابلاغ کے نمائندوں کو مخاطب کرکے کہا کہ ہم کوئی حکم جاری نہیں کر رہے۔ ذرائع ابلاغ این آر او بارے درخواستوں کی سماعت کی رپورٹنگ کرے لیکن جب تک مقدمہ زیر سماعت ہے اس وقت تک ٹی وی مذاکروں اور مباحثوں میں اس پر بات کرنے سے احتراز برتا جائے۔ (Jang)
ISLAMABAD, March 26: Taking strict notice of the March 11 violence-ridden strike in Karachi and other parts of Sindh, the Supreme Court on Saturday asked two provincial leaders of the People’s Party to explain why they should not be charged with committing contempt for allegedly ridiculing a court ruling and instigating people against it. The contempt notices were issued against former senator and general secretary of the PPP’s Sindh chapter, Taj Haider, and the party’s provincial media coordinator, Sharjeel Inam Memon, under Article 204 of the Constitution relating to contempt of court and Section 3 of the Contempt of the Court Ordinance, 2003. They were asked to appear before the Supreme Court on Friday. Composition of the bench will be announced later. The notice asked Mr Memon also to explain to the court why he should not be disqualified as member of the provincial assembly for alleged utterances against the judiciary under the Constitution’s Article 63(1g) relating to disqualification for being convicted by a court or defaming or ridiculing the judiciary, and Article 113 relating to qualification or disqualification for assembly membership. Notices have also been issued to Attorney General Maulvi Anwarul Haq, who under rules acts as a prosecutor in contempt matters, as well as to the advocate general of Sindh, Supreme Court Bar Association President Asma Jehangir and vice-chairman of the Sindh Bar Council. REFERENCE: Two PPP leaders issued contempt notices by SC By Nasir Iqbal | From the Newspaper March 27, 2011 (2 days ago)

1973 Constitution of the Islamic Republic of Pakistan


184. Original Jurisdiction of Supreme Court.

(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article. REFERENCE: PART VII The Judicature Chapter 2. THE SUPREME COURT OF PAKISTAN The Constitution of the Islamic Republic of Pakistan

[204 Contempt of Court.

(1) In this Article, "Court" means the Supreme Court or a High Court.

(2) A Court shall have power to punish any person who,

(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;

(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;

(c) does anything which tends to prejudice the determination of a matter pending before the Court; or

(d) does any other thing which, by law, constitutes contempt of the Court.

(3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court.]. REFERENCE: PART VII (contd) The Judicature Chapter 4: General Provisions Relating to The Judicature The Constitution of the Islamic Republic of Pakistan


LAHORE, March 29: Supreme Court Bar Association President Asma Jahangir has expressed reservations over two recent judgements by the apex court through which the appointment of Justice Deedar Shah (retired) as NAB chairman was declared unconstitutional and the parliamentary committee decision of not giving extension to six additional judges of high courts was set aside. At a press briefing here on Tuesday, she said these judgements reflected “judicial dictatorship and a lack of tolerance against other democratic institutions”. Ms Jahangir said she agreed with the Deedar Shah verdict to the extent where it ruled for appointment of NAB chairman through consensus-oriented meaningful consultation between the leader of the house and the leader of the opposition. However she criticised the verdict for closing the door for Mr Shah’s reappointment even through due process. In her opinion Justice Deedar Shah could be reappointed if all rules and procedure of the appointment were fulfilled.The SCBA president was not satisfied with the decision in as much as it provided for the chief justice of Pakistan to decide the matter if the leaders of the house and opposition were at dispute over the appointment. She said this means the complete authority to make appointment would go to the CJP discarding parliament. She said the government should go for a review petition in this case. REFERENCE: Asma shows concern over SC verdicts By Our Staff Reporter | From the Newspaper (19 hours ago) Today
'There was no need for judges to show panic'


One question that should be asked and is being ignored “who aired the news” and CJ “orders” government to find out about the news According to a notification released by the SC, directors of three local TV channels and Chairman Pemra, Mushtaq Ahmed, were informed by a notice to be present at the hearing. The full court will only do the hearings of judges’ restoration notification on 18th October. While other benches will proceed with their normal hearings. -DawnNews SC hearing for restoration notification on 18 Oct Saturday, 16 Oct, 2010 How Jang Group/GEO TV Played with Fire?

“Being the SCBA president, I will point out what is constitutionally right and it’s up to the people to decide,” Ms Jahangir said. She claimed that many lawyers also had reservations on the SC judgements but they avoided open criticism for one reason or another. She urged the parliament to finalise and approve the amended accountability law without further delay. About the verdict through which the SC had set aside the Parliamentary Committee’s decision against extension to the services of six additional judges of Lahore and Sindh high courts, Ms Jahangir said the court indirectly decided the pending matter on 18th and 19th constitutional amendments and one of the four members on the bench highlighted this fact in his dissenting note. REFERENCE: Asma shows concern over SC verdicts By Our Staff Reporter | From the Newspaper (19 hours ago) Today
Ali Ahmed Kurd says the judges should have waited


Jang Group is master of Spreading Rumors.

ISLAMABAD: Terming the headline —’CJs express concern over judges security; threats from admin’ — of a news report, regarding the security related meeting, that appeared in The News on Sunday as misleading, the Supreme Court office, in its press release issued here, has clarified the same as under: “It is clarified that the above-mentioned caption is misleading in so far as it gives the impression that the judges of the Superior Courts have direct clear threats from administrative officials, which is not the true reflection of the issue discussed in the above mentioned meeting nor the press release issued in this regard refers to any such threats. In fact, the meeting discussed the security related situation in view of the purported information ‘emanating from administrative authorities’ in relation to the alleged plot to target the Hon’ble Chief Justice of Lahore High Court as mentioned in the report of the Special Branch of the Government of Punjab. “Unfortunately, your above-mentioned captions portray the totally different message as if the Hon’ble judges of Superior Courts are being threatened by the administrative officials, which is not the case. It is expected that an appropriate clarification may please be published prominently, preferably at the same spot on the front pages of the two newspapers in order to set the record straight.” REFERENCE: SC clarification Monday, September 20, 2010 Shawwal 10, 1431 A.H. How Jang Group/GEO TV Played with Fire? 

She said the decision completely ended the role of the parliamentary committee by denying it the right to disagree with the recommendations of the Judicial Commission. She questioned the existence of a parliamentary committee that did not have the power to take independent decisions. Ms Jahangir pointed out the reservations expressed by the chief justices of the high courts about the moral authority of the six additional judges in question.Ms Jahangir said that at the commission level appointment of judges had to be initiated through the CJP which in her view was contrary to the concept of independence of judiciary wherein independent opinion of every judge commanded weight and regard.She had an issue with the composition of the judicial commission, citing what she called a lack of representation from Sindh. Also on her list of concern was the confirmation of judge of the Peshawar High Court only a few months before he was to retire.The bar president concluded the briefing by calling for greater accountability in the judicial system. REFERENCE: Asma shows concern over SC verdicts By Our Staff Reporter | From the Newspaper (19 hours ago) Today
Pakistan obsession with news unhealthy, for judges too: Mosharraf Zaidi


Abbas Ather reveals without naming that it was a newspaper (Jang Group’s (Geo TV’s) newspaper The News) which had first spread a false rumour about the denotification of the Supreme Court judges on 19 January 2010. Try to search that news item via Google. And lo and behold. There is actually a news story in The News on that date. But there is a small problem here. The story has been removed from The News website; most probably very recently. No plan to withdraw judges' restoration notification - 19 Jan 2010 ... ISLAMABAD: There is no plan to withdraw the notification issued on March 17, 2009 for the restoration of deposed judges, including Chief ... [even the cache which is usually available is not available] Abbas Ather’s conversation with Asma Jahangir in today’s Column Kaar (16 October 2010)- Part 1 How Jang Group/GEO TV Played with Fire?

میڈیا اور ججز:’رد عمل ذرا زیادہ تھا‘
آخری وقت اشاعت: جمعـء 15 اکتوبر 2010 , 15:46 GMT 20:46 PST

Reversal of restoration of judges


One question that should be asked and is being ignored “who aired the news” and CJ “orders” government to find out about the news According to a notification released by the SC, directors of three local TV channels and Chairman Pemra, Mushtaq Ahmed, were informed by a notice to be present at the hearing. The full court will only do the hearings of judges’ restoration notification on 18th October. While other benches will proceed with their normal hearings. -DawnNews SC hearing for restoration notification on 18 Oct Saturday, 16 Oct, 2010

“Burden of Proof”

“The burden of proof is upon the plaintiff and the taking of oath is upon the defendant.” (Al-Bayhaqi)”

Guilty by Suspicion is against the Spirit of Islamic Law because when you raise finger then it’s the responsibility of those who allege to produce witness. Benefit of doubt is always given to those who is under trial.

الْبَيِّنَةُ عَلَى الْمُدَّعِى وَالْيَمِينُ عَلَى الْمُدَّعَى عَلَيْهِ

The burden of proof is upon the plaintiff, and the oath is upon the one who is accused (Tirmidhi)

Therefore the ruler is forbidden from imposing a penalty on anyone, unless they perpetrate a crime which Shari’ah considers to be a crime, and the perpetration of the crime has been proven before a competent judge in a judiciary court, because the evidence could not be admissible unless it is established before a competent judge and in a judiciary court.

The judiciary again gives way to the military

The Legal Framework Order 2002 was promulgated by the military regime on 21 August 2002. It was passed into the constitution, by way of the Constitution (Seventeenth Amendment) Act 2003, which went through parliament on 31 December 2003. This constitutional amendment has validated all of the regulations established, appointments made and other steps taken by the government under the LFO, and protected it from legal action against persons who would have it otherwise. The legal authority that the military commander has exercised to effect those constitutional amendments stem from a Supreme Court order in the case of Zafar Ali Shah v. Pervez Musharraf (PLD 2000 SC 869), the relevant portion of which is reproduced hereunder:

geo news 15 october 2010 part 1


6(i) That General Pervez Musharraf, Chairman, Joint Chief of Staff Committee and Chief of Army Staff through Proclamation of Emergency, dated the 14th October, 1999, followed by PCO 1 of 1999, whereby he has been described as Chief Executive, having validly assumed power by means of an extra-constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely;

(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;

(b) All acts which tend to advance or promote the good of the people;

(c) All acts required to be done for the ordinary orderly running of the State; and

(d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive.

(ii) That the Constitutional amendments by the Chief Executive can be resorted to only if the Constitution fails to provide a solution for attainment of his declared objectives and further that the power to amend the Constitution by virtue of clause (i) (a) ibid is controlled by sub-clauses (b)(c) and (d) in the same clause.

(iii) That no amendment shall be made in the salient features of the Constitution i.e., independence of judiciary, federalism, parliamentary form of government blended with Islamic provisions.

geo news 15 october 2010 part 2


As the Supreme Court conferred these powers on the government, it is now very difficult to challenge its legal legitimacy. However, some jurists hold that the Supreme Court cannot confer such powers on an individual, as only the chosen representatives of the people can exercise them. It should also be added that the court reserved the right for superior courts to judicially review the actions of the armed forces, including the proclamation of emergency, as deemed necessary. REFERENCE: Effects of Pakistan's Legal Framework Order on the judiciary Naeem Shakir, Advocate, Lahore High Court, Pakistan Posted on 2004-11-08

’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‘

علی سلمان
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

It can also be noted that the Supreme Court has allowed the same person to hold the office of president and commander of the armed forces, despite the fact that this contravenes the spirit of the 1973 Constitution. There can be no question that it is undemocratic for the same person to hold these offices, as one is a position of public service whereas the other is a public office through which to represent the people. Inevitably, this subject also came before the Supreme Court in the case of Qazi Hussain Ahmed, Amir Jamat Islami v. Gen. Pervez Musharraf (PLD 2002 SC 853). In this instance, lawyers asserted that the 1973 Constitution still remained the supreme law of the land and the powers of the present government were strictly circumscribed as per the Supreme Court judgement in Zafar Ali Shah's Case. However, the court again refused to take on the military ruler, by deciding that the relevant provisions of the constitution were still being held in abeyance. REFERENCE: Effects of Pakistan's Legal Framework Order on the judiciary Naeem Shakir, Advocate, Lahore High Court, Pakistan Posted on 2004-11-08

The Legal Framework Order 2002 and the judiciary

It is appropriate to provide some background to explain the real intent of the LFO with regards to the judiciary, as judges were retained or dismissed by the new government on the basis of their political allegiance. Superior court judges have from the beginning been obliged to take an oath of office to uphold the constitution. However, the relevant provisions of the Provisional Constitution Order 1 of 1999, introduced by the current president, ran as follows:

No Court, tribunal or other authority shall call in question the Proclamation of Emergency of 14th day of September 1999 or any other Order made in pursuance thereof. No judgement, decree, writ, order or process whatsoever shall be made or issued by any court or tribunal against the Chief Executive or any other authority designated by the Chief Executive.

All persons who, immediately before the commencement of this Order, were in service of Pakistan as defined in Article 260 of the Constitution and those who immediately before such commencement were in office as Judge of the Supreme Court, the Federal Shariat Court or a High Court or Auditor General or Ombudsman and Chief Ehtesab Commissioner, shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any.

Then the Oath of Office (Judges) Order was promulgated on 25 January 2000, with the intent that judges take a new oath to continue serving. Reproduction of the relevant provisions of this order will make it clearer how a policy to weed out undesirable judges was set in place by the government:

3. Oath of Judges -- (1) A person holding office immediately before the commencement of this Order as a Judge of the superior Court shall not continue to hold that office if he is not given, or does not make, oath in the form set out in the Schedule, before the expiration of such time from such commencement as the Chief Executive may determine or within such further time as may be allowed by the Chief Executive.

(2) A Judge of the Superior Court appointed after the commencement of the order shall, before entering upon office, make oath in the form set out in the Schedule.

(3) A person referred to in clause (1) and (2) who has made oath as required by these clauses shall be bound by the provision of this Order, the Proclamation of Emergency of the fourteenth day of October, 1999 and the Provisional Constitution Order No. 1 of 1999 as amended and, notwithstanding any judgement of any Court, shall not call in question or permit to be called in question the validity of any of the provisions thereof.

The form set out for the oath of office was of course framed for obedience and allegiance to the instruments referred to in clause 3. Many members of the judiciary naturally became apprehensive about the designs of the new rulers. The result was a sudden exodus of judges, especially from the Supreme Court. Six of its judges, including the Chief Justice, refused to take the oath. Some of the Judges of the high courts also did not make the oath, notably those of the Lahore High Court, High Court of Sindh and Peshawar High Court.

The matter itself came before the Supreme Court in Zafar Ali Shah's Case, by which time the judges in question had left from office. The court refused to consider the specific cases, declaring the matter closed, and stated that:

Clearly, the Judges of the Superior Judiciary enjoy constitutional guarantee against arbitrary removal. They can be removed only by following the procedure laid down in Article 209 of the Constitution by filing an appropriate reference before the Supreme Judicial Council and not otherwise. The validity of the action of the Chief Executive was open to question on the touchstone of Article 209 of the Constitution. But none of the Judges took any remedial steps and accepted pension as also the right to practice law and thereby acquiesced in the action. Furthermore, the appropriate course of action for Supreme Court in these proceedings would be to declare the law to avoid the recurrence in future, but not to upset earlier actions or decisions taken in this behalf by the Chief Executive, these being past and closed transactions.

Unquestionably, the superior judiciary of the country was in this instance intimidated and ridiculed by the military. Those who refused to succumb to the pressure from the regime acted valiantly, and the assertion in the judgement that they might have done otherwise ignores the extenuating circumstances.

The Seventeenth Constitutional Amendment, which confers absolute power in General Musharraf, is opposed to the spirit of parliamentary governance enshrined in the constitution. It is true that the people of Pakistan have again been provided an opportunity to elect a representative to run state business, but the fact remains that it is a government tailored to the desires and requirements of a military regime. General Musharraf vigorously presents his case inside and outside Pakistan, asserting that he is indispensable for the state and the people on the premises of security and for the reforms he has brought about for the good of the country. His assertions bring to mind John Adam, who rightly said, "Power always thinks it has a great soul and vast views beyond the comprehension of the weak; and that it is doing of God's service when it is violating all his laws." REFERENCE: Effects of Pakistan's Legal Framework Order on the judiciary Naeem Shakir, Advocate, Lahore High Court, Pakistan Posted on 2004-11-08
Sharjeel Inam Memon in Cross Fire (Dunya NEWS) P-1 of 2


ISLAMABAD, Nov 3: The Supreme Court has decided to strip the president of Supreme Court Bar Association of the honour of being a “senior advocate” which was bestowed upon him by the former Chief Justice Irshad Hasan Khan. Sources in the SC have confirmed that the decision to withdraw the status of senior advocate has been taken at the highest level after SCBA’s recent statement in which it said the judiciary had ceased to be independent after taking oath under the PCO. Hamid Khan, president of Supreme Court Bar Association, antagonised the judiciary by making a written statement before the five-judge bench, headed by the chief justice, that his association had no faith in the judiciary and arguing any matter before it, involving constitutional matters, in its present composition, would be an exercise in futility. “Those who can bestow the honour, can also withdraw the same,” an official of the Supreme Court said. The SC bench, in its order passed on the application of SCBA, mentioned Hamid Khan, as “Hamid Khan, ASC”, or only Hamid Khan, and not as “Hamid Khan, Sr ASC”, as is the practice with the senior lawyers. Under the SC rules, the status of a senior advocate can be awarded “on application or otherwise” to those who have ten years of SC practice, and “were judged by the knowledge, ability and experience to be worthy of the status of Senior Advocate.” REFERENCE: SCBA chief faces action By Rafaqat Ali November 4, 2002 Monday Sha’aban 28,1423
Sharjeel Inam Memon in Cross Fire (Dunya NEWS) P-2 of 2


ISLAMABAD, March 1: The Supreme Court Bar Association (SCBA) on Friday demanded that Chief Justice Shaikh Riaz Ahmad should retire on March 8, and refuse the extension of three years given to the superior judiciary by the present regime through an unconstitutional method. Chief Justice Shaikh Riaz Ahmad will attain the age of 65 on March 8, when he will retire if he refuses the extension. Speaking at a news conference on the Supreme Court premises, SCBA President Hamid Khan released copies of a letter which the Bar representatives have written to the chief justice. The letter says: “Representatives and leaders of the Bar across the length and breadth of the country have denounced the attempt to enhance the retirement age of judges of the superior courts on the brute force of the LFO. Any judge who continues to hold the constitutional office of a judge of the superior courts beyond the age mandated by the 1973 Constitution shall, in the eyes of the legal fraternity, be at best a judge de facto and not de jure. Under the 1973 Constitution, you shall be retiring as chief justice on March 8. It is our hope that a constitutional crisis can be averted by your laying down the robes of chief justice on the said date.” The letter is signed by Mian Abbas, vice-chairman of the Pakistan Bar Council (PBC); Muhammad Kazim Khan, executive committee chairman PBC; Hamid Khan, president SCBA; Qazi Mohammad Anwar, member PBC; Arif Chaudhry, vice-chairman Punjab Bar Council; Mohammad Yasin Azad of Sindh Bar Council; Munir A. Malik, president SHC Bar Association; Amanullah Kanrani, president BHC Bar Association; Mohammad Ikram Chaudhry, president LHC Bar Association Rawalpindi, and Hafiz Abdur Rehman Ansari, president LHC Bar Association. REFERENCE: Bar asks CJ not to accept extension By Our Staff Reporter March 2, 2003 Sunday Zul Hijjah 28, 1423

Are Court Reporters Impartial - Part - 1 (Apna Gareban Matiullah Jan DAWNNEWS)


ISLAMABAD, July 18: A special bench of the Supreme Court, comprising 14 judges, will hear on Monday the appeal of the Registrar of the Sindh High Court, Mohammed Sadiq Leghari, who was convicted of contempt of court by a two- judge bench of the apex court on Thursday. The law of contempt, as amended hurriedly by former prime minister Nawaz Sharif when he was being tried by the Supreme Court, provides that if someone is convicted by the Supreme Court under its original jurisdiction, he will have one right of appeal. The law of contempt was amended apprehending that the Supreme Court bench, headed by then Chief Justice Sajjad Ali Shah, might convict prime minister Nawaz Sharif. The law also provided that mere filing of an appeal would mean automatic stay of the judgment and the whole court, except the members of the bench who passed the judgment, would hear the appeal.

The Supreme Court bench will consist of Chief Justice Shaikh Riaz Ahmed, Justice Munir A. Sheikh, Justice Nazim Hussain Siddiqui, Justice Iftikhar Muhammad Chaudhry, Justice Qazi Mohammed Farooq, Justice Rana Bhagwandas, Justice Mian Mohammed Ajmal, Justice Javed Iqbal, Justice Abdul Hameed Dogar, Justice Tanvir Ahmed Khan, Sardar Mohammed Raza Khan, Justice Khalilur Rahman Khan, Justice Mohammed Nawaz Abbasi and Justice Faqir Mohammed Khokhar. A Supreme Court bench, comprising Justice Syed Deedar Hussain Shah and Justice Hamid Ali Mirza, had awarded simple imprisonment till rising of the court to the registrar for failing to comply with the apex court’s directions. The Supreme Court had observed that the registrar, being a responsible judicial officer of the grade of district judge, had treated the order of the highest court of the country in a routine manner. The two-member bench ordered that it was the bounden duty of the registrar to have cared and taken notice of the process issued to him for compliance with the order received by him. “We hold the Registrar of the High Court of Sindh guilty of contempt of court as he has committed disobedience of the lawful order of this court, therefore he is punished and convicted under section 4 of the Contempt of Courts Act,” the judgment said. REFERENCE: SC bench to hear appeal against contempt verdict By Our Staff Reporter July 19, 2002 Friday Jamadi-ul-Awwal 8, 1423
Are Court Reporters Impartial - Part - 2 (Apna Gareban Matiullah Jan DAWNNEWS)


LAHORE, July 18: The amendments proposed by the government amount to ‘militarization’ of the Constitution, representatives of the Bar said here on Thursday. Addressing a press conference, Supreme Court Bar Association President Hamid Khan, Pakistan Bar Council member Hafiz Abdur Rehman Ansari, Lahore High Court Bar Association President Chaudhry Muzammil Khan and Lahore Bar Association President Chaudhry Nisar Ali Kausar wondered why constitutional amendments were being proposed on the eve of elections when they could easily have been inserted any time during the three-year term given to the military regime by the Supreme Court. The aim, perhaps, was to delay the elections and create confusion and uncertainty by entangling the people in constitutional disputations while the regime quietly went about its plans to manipulate the polls, the Bar leaders said.

They affirmed that the Pakistan Bar Council had expressed lack of confidence in the judiciary by deciding to refrain from challenging the amendments packages in the Supreme Court. They deplored that the judiciary, particularly the Supreme Court, has let the people down at crucial moments in Pakistan’s history. The PBC decision was based on empirical considerations, they said. The bar, they warned, would not accept any extension in the retirement age of superior court judges. The Pakistan Bar Council has demanded the appointment of a high-powered judicial commission consisting of judges, lawyers and members of parliament for dealing with all matters pertaining to the superior judiciary, including appointments, but it wanted the provision to be incorporated in the Constitution by the parliament.

Are Court Reporters Impartial - Part - 3 (Apna Gareban Matiullah Jan DAWNNEWS)


Apprehending that the elections might be postponed, the bar leaders pointed out that no election schedule had been announced so far. The promulgation of new elections laws and rules, amendments to the Political Parties Act and the proposed constitutional changes were not conducive to the holding of a free and fair polls. About the questionnaire sent by the PBC to the various political parties, Hamid Khan, who is also a PBC member, said the replies would be considered by a PBC meeting to be held in Islamabad on July 27. The meeting would also decide the future course of action. Punjab Bar Council Vice-Chairman Ramzan Chaudhry, SCBA Secretary Anwar Hamid Sahibzada and LHCBA Secretary Shahid Mahmood Bhatti were also present at the press conference. —Shujaat Ali Khan =. REFERENCE: Bar questions timing of amendments July 19, 2002 Friday Jamadi-ul-Awwal 8, 1423

LAHORE, Oct 26: The newly-elected president of the Supreme Court Bar Association, Justice Tariq Mahmood (retired), has said the lawyers’ movement for a democratic rule and resolution of their problems are equally important for him. “The movement is very important and will continue. But an immediate and serious problem has arisen from the recent Supreme Court order aimed at discouraging the adjournment tendency,” the SCBA president told Dawn on Sunday. Tariq Mahmood who hails from Quetta, resigned from the post of a member of the Election Commission of Pakistan and ultimately as a judge of Balochistan High Court on the issue of the referendum. He was elected as the president of the Supreme Court Bar Association by securing 763 of the 1,050 votes which were polled out of a total of 1,317 in the election held on Saturday. He got a majority from all the cities where the polling was held. Farooq Zaman Qureshi from Lahore has been elected as the secretary.

Are Court Reporters Impartial - Part - 4 (Apna Gareban Matiullah Jan DAWNNEWS)


Mr Mahmood said a major feature of the Supreme Court decision was that 100 cases’ two cause lists would be decided every day. “This is bound to add to the lawyers’ difficulties, particularly those who come from Karachi, Quetta and other remote areas of the country, as they would not be in a position to know which of their cases were fixed for the next day. “I do not see a rationale behind the decision that cases will be listed every day; this is a major deviation from the decades-old tradition; it seems that the decision has been taken only to punish us all,” he said. "The order will have deep repercussions on the legal profession and should be resolved on top priority basis,” he said.

Mr Mahmood said the closure of the Supreme Court library was another issue. He demanded that the library should be re-opened. “This would help lawyers, particularly those coming from remote areas, to prepare their cases as part of their professional pursuit.” He hoped that the apex court would not add to the Bar’s problems unnecessarily and ignore some controversies of the past. Mr Mahmood said the rule of law and administration of justice were the cardinal principles of the SCBA aims and objectives. The rule of law was an issue even bigger than that of the Legal Framework Order (LFO). “The lawyers are of the opinion that no individual has the right to amend the constitution and that the LFO is not part of it. However, a decision about the movement is to be taken by the Lawyers Action Committee of which the SCBA is a member. “This does not mean we have given another thought to the issue of the LFO and the enhancement of the judges’ retirement age; these issue are of fundamental importance,” Mr Mahmood said.

Are Court Reporters Impartial - Part - 5 (Apna Gareban Matiullah Jan DAWNNEWS)


He said his election had proved that the action committee’s stand was a step in the right direction and that the lawyers wanted the restoration of true democracy in the country. “It will not be wrong to say that the SCBA elections are a vote against those supporting the LFO and a victory of those struggling against the dictatorial rule,” he added. The outgoing SCBA president, Hamid Khan, told this correspondent that the election of Tariq Mahmood and other pro-democracy forces had again proved that lawyers vehemently opposed the present regime’s policies. “This is a vote of no-confidence against Gen Pervez Musharraf.” He said the government used all tactics to secure the win of its candidates but lawyers’ unity against the autocratic rule had turned table on them. REFERENCE: SCBA struggle to continue: Court order questioned By Mahmood Zaman October 27, 2003 Monday Sha’aban 30, 1424 

KARACHI, Dec 20: Lawyers’ representatives from across the country will meet here on Dec 25 to formulate a plan of action against the “unconstitutional” amendments foisted on the basic law by the chief executive through the Legal Framework Order.

The convention, which will coincide with a seminar on the LFO, is being hosted by the Sindh Bar Council in a hotel in pursuance of a decision taken by it early in November. Former chief justice of Pakistan Saeeduzzaman Siddiqui, who was relieved in January 2000 following his refusal to take oath under the provisional constitution order of October 1999, will preside over the midday session of the seminar, and the evening and morning sessions will be held under the chairmanship of, respectively, Supreme Court Bar Association President and Pakistan Bar Council member Hamid Khan and Sindh Bar Council Vice-Chairman Abdul Sattar Kazi.

At a press conference at the council’s office here on Friday afternoon, Mr Kazi, SBC seminar committee chairman, Abrar Hasan and council members Asif Ali Soomro and Ismail Memon said the legal fraternity could not remain a silent spectator to the mutilation of the Constitution, that too by a single individual and in violation of its amendment provisions. The amendments grossly undermined the supremacy of parliament, which was the cornerstone of the country’s constitutional framework, the added.

In response to a suggestion by Advocate Bahadar Ali Naqvi, who was also present at the press conference, the SBC presidium said the issue of administration of a new oath to the judges of superior courts to free them from any obligation under the PCO and enhancement of their retirement age were very much on the convention’s agenda.

The seminar will, in particular, discuss the following questions:

1. Whether the Constitution gave any authority to the Supreme Court to authorize an individual to carry out amendments to the Constitution?

2. Assuming that the ruling in the Zafar Ali Shah was correct and was justified under “the law of necessity,” whether the impugned amendments could be carried out within the parameters laid down by the Supreme Court in that case?

3. What is the status of the LFO? Is it merely a procedure prescribed to overcome the difficulties in a smooth transition to democracy or is it a full- fledged amendment?

4. Whether the parliament should treat the LFO as a part of the Constitution, which can be amended only in the mode and manner prescribed by the Constitution itself or it be treated merely as a “roadmap” for the period of transition subsequently to be incorporated in the Constitution in accordance with the prescribed procedure?

5. Whether the SCBA stance on the partiality and partisanship of the judiciary is justified? REFERENCE: KARACHI: Lawyers discuss action against LFO on 25th By Our Staff Reporter December 21, 2002 Saturday Shawwal 16, 1423

ISLAMABAD, Jan 12: The representatives of the lawyers on Monday said Gen Pervez Musharraf was not the constitutional president of the country and demanded that the judges of the superior courts should take fresh oath of office.

The lawyers who held a 'long march' from Peshawar to Islamabad, held a convention at the bar offices in the Supreme Court building, said the judiciary of the country should learn from history. They said all the military rulers, after using the judges, discarded them at later stages.

The lawyers said their protest against the passage of 17th Amendment would continue as it has changed the basic structure of the Constitution. Gen Pervez Musharraf was not the elected president. They pledged that the lawyers would continue their struggle for his removal from the office of president.

Tariq Mehmood, President of SCBC, Qazi Anwar, Vice chairman of Pakistan Bar Council, Hamid Khan, member Pakistan Bar Council, Chaudhry Mohammad Ikram, Vice President of SCBA, and other office bearers from different parts of the country addressed the lawyers' convention.

In a resolution passed by the convention the lawyers rejected the 17th Constitutional Amendment for having been adopted on the presumption that Legal Framework Order (LFO) 2002 was part of the Constitution.

The lawyers stated that no individual had the power to amend the constitution and the Supreme Court could neither itself nor can authorize any one else to amend the Constitution.

They also rejected discretionary powers of the President to dissolve National and Provincial Assemblies under Article 58 (2) (b) and 112 (2) (b) respectively as destructive of the federal parliamentary system and violative of the basic structure and features of the Constitution.

The convention demanded that there should be no reduction in the number of judges of the Supreme Court, that all vacancies in the superior courts should be filled forthwith and all appointments to the Supreme Court and the Chief Justices of High Courts be made on the principle of seniority. REFERENCE: Lawyers seek fresh oath for judges By Our Staff Reporter 13 January 2004 Tuesday 20 Ziqa'ad 1424, March 18: A special bench of Supreme Court on Monday dismissed the petition of Supreme Court Bar Association (SCBA) for hearing by full bench of the petitions challenging the elevation of three judges of Lahore High Court to the apex court. The court, after hearing the counsels, dismissed the application at the end of the day’s proceedings and announced that hearing on the merits of the petitions would begin on Tuesday. As the proceedings started, SCBA President Hamid Khan stated that he had moved an application demanding that full court should hear the case. Chief Justice Sheikh Riaz Ahmad observed that the Supreme Court had to decide other cases as well, and the litigants could not be made to suffer for high profile cases. The other four members of the bench are, Justice Qazi Mohammad Farooq, Justice Mian Mohammad Ajmal, Justice Deedar Hussain Shah and Justice Abdul Hameed Dogar. The SCBA president, however, insisted that he should be allowed to make his submission as he wanted to place before the court a principle laid by it itself on the question of constitution of bench.

Acknowledging that it was the prerogative of the chief justice to form a bench, he cited cases in which important questions were placed before the full courts. He begun his arguments by citing the cases involving former chief justice, Sajjad Ali Shah. He said the dicta of the Akhunzada Bahrawar Saeed versus Sajjad Ali Shah and the Asad Ali versus the federation cases was that all the SC judges who were available and willing should decide the important cases collectively. The CJ observed that the cases cited by Hamid Khan had no relevance with the present case. The counsel, however, insisted that the principles enunciated by the court were applicable in the case.

The CJ observed that maligning the judiciary had become a fashion. The counsel said that the bar was endeavouring for transparency. Another petitioner, A.K. Dogar advocate stated that the Supreme Court could not be bifurcated into benches and the apex court had to sit and rise together like the US Supreme Court. The CJ observed that the US system was different from Pakistan’s. When Dogar was on his legs, Attorney-General Makhdoom Ali Khan rose to point out that two lawyers could not argue one application. When Dogar made some uncharitable remarks, prominent lawyer Abdul Hafeez Pirzada, appearing for the federation, rose to support the attorney-general and said that “over excitement” of Aslam Dogar was uncalled for.

Mr Dogar said it was common knowledge for those who had practised on civil side that more than one lawyer could argue the same application. On some remarks by Mr Dogar, Justice Deedar Hussain Shah observed that it was unfair to utter such words for a lawyer of Hafeez Prizada’s prestige. A.K. Dogar stated that it was the duty of every judge to decide cases and senior judges could not be deprived of their duty towards the nation. The counsel argued that the chief Justice should exercise his power to form benches, reasonably. Dr Farooq Hasan, counsel for petitioner Advocate Nawaz Kharal, stated that the full court should hear the petitions as appointment of judges was too serious a matter. He said highest prerogative of the US president was to appoint judges to the supreme court.

He stated that the SC granted legitimacy to the government and it could not afford illegitimacy in its own backyard. Dr Hasan said that when all the bar leaders were raising their voice, there must be a reason for that. “Ceaser’s wife should be above all suspicions,” he quoted Shakespeare. The CJ pointed out that client of Dr Farooq Hasan had prayed that he should be appointed Supreme Court judge. The counsel said that his client was not demanding for himself but for the lawyers’s community. The counsel said that the principle of propriety demanded that the case should be heard by the full court.

Pakistan Bar Council Vice-Chairman Shakeel, Mian Allah Nawaz, counsel for Barrister Zafarullah, and Hafiz Abdul Rehman Ansari supported the contentions of the SCBA president. Pirzada stated that constitution of the bench was the sole prerogative of the CJ. He said the Al-Jehad case, which was the basis of subsequent judgments, was decided by a bench of five judges, one of them an ad hoc judge of the SC. The counsel said that the facts of the case were not very complex and there was no allegation of bias, as was alleged in the case of Sajjad Ali Shah. The attorney-general stated that facts and legal principles of the petitions were not very complex. He said all the major judgments in relation to superior court judges were decided by the five-judge benches and added that even in India, where identical matters were decided by the Supreme Court, all judges did not sit to decide such cases. When the SCBA president stated that the bench which had decided the Al-Jehad case had representation from all the federating units, the chief justice asked him not to bring parochialism in the case. The CJ dismissed the application and announced that hearing of the petitions merits would begin on Tuesday. REFERENCE: Plea for hearing by full bench dismissed: SC to take up merits of SCBA’s petition today By Our Staff Reporter March 19, 2002 Tuesday Muharram 4, 1423

ISLAMABAD, April 10: The Supreme Court dismissed on Wednesday the petitions challenging the appointment of three judges from the Lahore High Court to the Supreme Court. The Special Bench, headed by Chief Justice Sheikh Riaz Ahmad, after hearing the petitions for over two weeks on daily basis, had reserved its judgment on Tuesday. In one-liner short order, the SC bench announced: “For the reasons to be recorded later, the petitions are dismissed.”

The petitions had been filed by the Supreme Court Bar Association, Pakistan Bar Council, Pakistan Lawyers Forum, Watan Party and Rai Nawaz Kharal. The SC bench consisted of Chief Justice Shaikh Riaz Ahmed, Justice Qazi Mohammad Farooq, Justice Mian Mohammad Ajmal, Justice Syed Deedar Hussain Shah and Justice Abdul Hameed Dogar. The petitioners had challenged the elevation of Justice Khaleelur Rehman Ramday, Justice Mohammad Nawaz Abbasi and Justice Fakeer Mohammad Khokhar, former law secretary. The petitioners had no objection to the appointment of Justice Sardar Raza Khan, who was senior most judge of the Peshawar High Court at the time of his elevation to the Supreme Court.

Petitioners case was pleaded by Hamid Khan, President SCBA; Rasheed Rizvi, member PBC; A.K. Dogar, representing his own Lawyers Forum; Justice Mian Allah Nawaz represented Watan Party and Barrister Dr Farooq Hassan represented Rai Nawaz Kharal. A caveat was filed on behalf of Justice Mian Nazir Akhtar and K.M.A. Samdani appeared on his behalf. The court, however, did not allow the counsel to advance his arguments in the open court and asked him to submit his arguments in writing. Abdul Hafeez Pirzada represented the Federation. Attorney General appeared on court notice. The federation had taken the stance that all the appointments were made by the president fully accepting the recommendations of the Chief Justice of Pakistan.

The petitioners had argued that appointment from the LHC were made in violation of the rule of seniority, and that “pick and choose” process was adopted. The petitioners had argued that if the rule of seniority was applied to the three high courts — Sindh, Peshawar and Balochistan — but not to the LHC. It was further argued that Justice Fakeer Khokhar, apart from being junior to 12 judges of the LHC, was not even qualified to become judge of the Supreme Court as his experience as high court judge was not five years as required under the Constitution. REFERENCE: Judges case: petitions dismissed By Our Staff Reporter April 11, 2002 Thursday Muharram 27, 1423

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