Sunday, April 10, 2011

CJ asks officials not to follow ` illegal orders` but "LAW OF NECESSITY"!

ISLAMABAD: Chief Justice Iftikhar Mohammad Chaudhry said on Saturday bureaucrats were not obliged to follow `illegal orders` of their superiors and instead they must abide by their conscience and the law. He also called for strengthening national institutions to avoid anarchy in an address to a delegation of civil servants undergoing training at the National School of Public Policy, Lahore. The delegation called on him at the Supreme Court. The Chief Justice referred to what he called a “permanent principle of bureaucracy” to maintain mutual respect and follow the orders of superiors, but said that “on the other hand officers are not obliged to follow illegal order of their superiors. They have to take all decisions according to their conscience and in accordance with the rules and the law, knowing well that they might have to suffer in the process”. REFERENCE: CJ asks officials not to follow ` illegal orders` By Kalbe Ali | From the Newspaper (14 hours ago) Today 

CJ Iftikhar Chaudhry & Judiciary is silent on Raymond Davis (Aaj Ki Khaber 17 March 2011)


Justice Iftikhar Chaudhry said the rule of law required both citizens and government officials to be subject to laws. “However, even an independent judiciary cannot guarantee that government officials necessarily abide and respect the rule of law.” He said the universal solution to induce executive compliance with the law was to invest the judiciary with the power to define legal limits of executive actions, but added that the judiciary itself cannot solve the fundamental problem of enforcing compliance with laws and rulings. An independent bureaucracy meant “a civil service not beholden to the executive”, the Chief Justice observed. “Even if the executive has no costs for forming illegal policies, the civil servants have a preference for working on legal policies mainly for the reason that they have different time horizons. “There is a possibility that the government may not be in office in future to provide protection to them against their illegal actions. They have to serve under a future elected government that might have a different policy view. “The uncertainty over who will control the government in future makes them reluctant to implement an illegal policy.” Another important factor, he added, which could restrain civil servants from implementing illegal decisions was the impact on their career opportunities. The chief justice cited “political fragmentation” and public support as crucial factors for an efficient mechanism to enforce the rule of law. ”If the executive does not comply with law, the legislature must take action against arbitrary non-compliance. Where the legislature does not have the willingness or the power to react to illegal executive behaviour, political fragmentation does not help enforcing the rule of law. REFERENCE: CJ asks officials not to follow ` illegal orders` By Kalbe Ali | From the Newspaper (14 hours ago) Today

Chief Justice Pakistan's son Dr Arsalan with Kamran Khan on GEO TV (2007)


“In systems such as ours, where the executive has the majority in legislature, the legislature may not induce executive to observe legal limits on their actions. In such a situation, the role of public support for judicial ruling becomes most valuable enforcement mechanism. “If the general public wants the executive to comply with judicial rulings then the executive will have to comply with the same while anticipating the electoral reaction.” The Chief Justice said when people lost trust in national institutions, they tended to resolve their problems through other means. “This leads to anarchy in the country. Therefore, it is in the interest of the nation to strengthen institutions by strict and unequivocal recourse to the Constitution and law.” Justice Chaudhry said the 1973 Constitution provided a mechanism for the distribution of powers between state organs and defined their limitations so that none encroached upon the legitimate domain of the other. REFERENCE: CJ asks officials not to follow ` illegal orders` By Kalbe Ali | From the Newspaper (14 hours ago) Today

Sunday, April 10, 2011, Jamadi-ul-Awwal 06, 1432 A.H

Lets go back to History and not a very Distant Past

[Musharraf-Iftikhar.jpg]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
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 DAWN WIRE SERVICE Week Ending : 5 February 2000 Issue : 06/05, April 25: President Mohammad Rafiq Tarar on Tuesday appointed five judges to the Supreme Court of Pakistan. With the appointment of these judges, the strength of the Supreme Court judges, i.e. 17, stands completed. The newly-appointed judges include Justice Mian Mohammad Ajmal, Chief Justice, Peshawar High Court; Justice Deedar Hussain Shah, Chief Justice, High Court of Sindh; Justice Javed Iqbal, Chief Justice, High Court of Balochistan; Justice Hamid Ali Mirza, judge, High Court of Sindh and Justice Abdul Hameed Dogar, judge, High Court of Sindh. These judges have been appointed to the SC from the date they respectively take upon themselves the execution of their offices as such judges. Following are the names of the judges of the Supreme Court according to their seniority:

1. Justice Irshad Hassan Khan, Chief Justice of Pakistan,

2. Justice Mohammad Bashir Jehangiri,

3. Justice Sheikh Ijaz Nisar,

4. Justice Sheikh Riaz Ahmed,

5. Justice Ch. Mohammad Arif,

6. Justice Munir A. Sheikh,

7. Justice Abdul Rehman Khan

8. Justice Rashid Aziz Khan,

9. Justice Nazim Hussain Siddiqi,

10. Justice Iftikhar Mohammad Chaudhry,

11. Justice Qazi Mohammad Farooq,

12. Justice Rana Bhagwan Das,

13. Justice Mian Mohammad Ajmal,

14. Justice Deedar Hussain Shah,

15. Justice Javed Iqbal,

16. Justice Hamid Ali Mirza,

17. Justice Abdul Hameed Dogar.-APP

REFERENCE: Supreme Court judges' strength completed DAWN WIRE SERVICE Week Ending : 29 April 2000, June 27: The Lahore High Court summarily dismissed three writ petitions challenging the assumption of the President's office by Chief Executive Pervez Musharraf. The petitions were filed by Advocates MD Tahir, Amir Sohail and Hanif Tahir. The first-mentioned two argued at some length while the last-mentioned told Justice Khalilur Rahman Ramday, who heard the petitions, that he had reservations about him on account of his pro-government sympathies but would, instead of seeking transfer, leave the matter to his conscience. Advocate MD Tahir said frequent military interventions, prompted by politicians and invariably condoned and validated by the judiciary, have greatly damaged Pakistan in all spheres of life. Advocate Amir Sohail submitted that the Supreme Court recognized Gen Pervez Musharraf as chief executive for three years and his elevation to the office of President was repugnant to the SC judgment in Zafar Ali Shah's case. Under the judgment and the provisional constitution order validated by it the country is to be governed as nearly as possible in accordance with the provisions of the 1973 Constitution. Mr Rafiq Tarar could not have been removed except by impeachment. Justice Ramday observed that the 1973 Constitution was in existence by virtue of the PCO as amended from time to time and dismissed the three petitions. REFERENCE: LHC rejects pleas against Musharraf's presidency Staff Reporter DAWN WIRE SERVICE Week Ending : 30 June 2001 Issue : 07/26, Oct 30: The Supreme Court on Wednesday said it took oath under the PCO to preserve the judicial system, and due to its judgment in which it validated the military takeover the army was going back to barracks by restoring democracy. The apex court, responding to the statement of the Supreme Court Bar Association that arguing a case before the present judiciary was a futile exercise “as it had ceased to be independent,” observed that it reserved its right to take action against the president of SCBA, Hamid Khan, for his “disparaging remarks” about the independence of the judiciary. The SCBA had asked the SC bench on Monday to return its review petition as the bar was of the view that the judiciary, after taking oath under the PCO and by upholding various orders and acts of the present military regime, had ceased to be independent and no substantial question of constitutional importance should be argued before this court in its present composition.” The SC bench called the president of the SCBA, “Hamid Khan, contemner,” and said the SCBA statement was “motivated by malice, extraneous considerations and for political reasons.” In its five-page order, authored by Chief Justice Riaz Ahmad, the SC held that the contents of the application constituted gross contempt of court as it used disparaging remarks about the judiciary through the language which could not have been expected from the pen of the SCBA president. The SC asserted that democracy was being revived in the country and the regime would go back to barracks because of the SC judgment in Zafar Ali Shah case and the oath taken by judges of the SC (under PCO). “It is because of the judgment in Zafar Ali Shah case and oath taken by the judges of the Supreme Court that a time schedule was given and the regime had to hold elections and to go back to barracks after restoration of democratic institutions.” court said that in compliance with its judgments, elections were held in the country on Oct 10, 2002, and the process of transfer (of power) was in progress. The SC said that taking oath under the PCO by judges of the superior judiciary was welcomed by the senior lawyers like Khalid Anwar and SM Zafar. It said that those judges who had refused to take oath under the PCO did so according to their conscience and “heavy responsibility lay upon the judges who took oath (under PCO) for dispensation of justice.” The SC stated that its judgment, validating the military takeover, was universally acclaimed and had been described as a landmark judgment.

The court said it could proceed to take action against Hamid Khan, president of SCBA, but it was always appropriate to exercise restraint. “However, we reserve the right to take the proper action at an appropriate stage.” The SC said: “Unfortunately, some members of the Bar, motivated by malice, extraneous considerations and for political reasons or ill-will, make irresponsible statements to tarnish the image of the judiciary which is not at all in the supreme national interest.” The SC said it “strongly deprecate and condemn this attitude on the part of Hamid Khan and considering the contents of this application scandalous, malicious and irrelevant, we order that paragraph (I) and (II) therefore be struck off.” The SC said it had highest respect for those members of the bar, who have shown respect to the judiciary. By making such attempts the members of the bar were abusing the sacred elected office, it said. The court further observed that by taking oath under the PCO the judiciary had “saved the independence of (the) judiciary as well as the system of administration by preserving the Bar as well.” “Failing which the bar would have been replaced by all together a new system unknown to a civilised society.” It said that judges took oath under the PCO “in the highest national interest, and therefore we have deliberately not chosen to proceed against Hamid Khan in view of the interest of the institution, “but we reiterate that we reserved our right to proceed against Hamid Khan, contemner.”

The court observed that Hamid Khan knew that all the points which had been raised in the review petition had already been dealt with in the judgment, and the court would not allow re-hearing of the matter. The court said that knowing full well the consequences of the review petition, the counsel deliberately declined to argue the case “motivated by malice, ill-will and extraneous considerations.” The court said that review petition was fixed for hearing on Oct 28 when a request for adjournment was moved on behalf of Hamid Khan, expressing his inability to appear before the court on the said date due his unavoidable personal obligation and prior commitments. The bench assembled in the court to consider the aforesaid request for adjournment when, surprisingly, the court noticed the presence of Hamid Khan in the courtroom who came at the rostrum and submitted an application under the caption “Statement at the Bar”. The court said that it was high time that counsel like Hamid Khan and the members of the bar realised their responsibility towards the courts and the society. “If this state of affairs continues then God be with us and nothing more could be said about it. As a consequence of the above, this review petition has no merits and the same stands dismissed accordingly”, the court concluded. REFERENCE: Supreme Court says its verdict has helped revive democracy By Rafaqat Ali October 31, 2002 Thursday Sha’aban 24,1423, March 1: The Chief Justice of Pakistan, Irshad Hasan Khan, on Wednesday observed that when the politicians are in power, they try to become dictators but when they are out of power, they become champions of the rule of law. Presiding over a 12-member bench seized of the seven petitions challenging the military takeover, the chief justice directed the attorney general to provide details of the expenditure on holding elections, including the expenses made by the candidates on their election campaigns. The Supreme Court announced that it would decide the issue of maintainability and merits of the case simultaneously. The chief justice said the court had entertained the petitions. The bench started regular hearing of the petitions on Wednesday. The court first took up the petition of Syed Zafar Ali Shah, suspended MNA of PML from Islamabad. The representative petition of PML would be taken next and Khalid Anwer would argue the case on behalf of the party.

Other petitions before the court are of Syed Imtiaz Hussain Bukhari, Challenging the PCO; Fazal Ellahi Siddiqui, challenging the PCO; Shahid Orakzai, seeking restoration of Senate, office of speakers and provincial assemblies; Al-Jehad Trust, seeking restoration of Constitution to the extent of judiciary; and Syed Iqbal Haider of MWM, seeking validation of PCO. The bench consisted of Justice Irshad Hasan Khan, Justice Mohammad Bashir Jehangiri, Justice Sheikh Ijaz Nisar, Justice Abdur Rehman Khan, Justice Sheikh Riaz Ahmad, Justice Chaudhry Mohammad Arif, Justice Munir A. Sheikh, Justice Rashid Aziz Khan, Justice Nazim Hussain Siddiqui, Justice Iftikhar Mohammad Chaudhry, Justice Qazi Mohammad Farooq and Justice Rana Bhagwandas. The chief justice made it clear at the outset that the counsels should try to be relevant and unnecessary repetition of arguments should be avoided. He said the whole work of the court was suspended due to the present case.

Chaudhry Farooq, the counsel of Mr Shah, said that on the last hearing the petitioner had apprehended that the judges of the court would be asked to take fresh oath under the PCO and his apprehensions proved to be true. He said the PCO (1) of 1999 and subsequent orders were unconstitutional, having no force of law. The chief justice asked the parties to avoid mud-slinging, and added that: "we will perform our function without intimidation." He observed that the bar and the bench were integral part of the chariot of justice. He said his effort was to save the system and referred to the decisions of the Chief Justices Committee. The counsel said: "Pakistan was a gift of our forefathers, but unfortunately the rule of law had been interrupted at regular intervals. In its total life, Pakistan had suffered military rule for 30 long years".

He said the government in its reply to the petitions had said that the elections of Feb 3, 1997, were farce. The elections in which PML obtained heavy mandate were monitored by the observers across the globe, he said, and added the armed forces were employed to supervize the elections. On the court's query, Barrister Khalid Anwar stated that 36 per cent of voters used their right of franchise in the 1997 elections. Chaudhry Farooq said if the government of Khawaja Nazimuddin would not have been dismissed, the fate of Pakistan would have been different. He said Pakistan was created with the force of vote and not through any military operation. "Both citizens and soldiers are subject to Constitution alike."

Referring to Article 6 of the Constitution, he said abrogating the Constitution was treachery with the country. When he stated that the respondents had not replied to the Politicians in power try to be dictators: CJ challenge he raised in the petition, the chief justice observed that the counsel was trying to be hyper technical. The CJ made it clear to the counsel that notice of the case to the chief of the army staff was there. The counsel said he was firm believer that the Kafir (infidel) could not be a friend of Muslim and Hindus being Kafir could not be trusted. When the counsel referred to a judgment from the Indian jurisdiction, the court asked him not to cite Indian judgments in the present case. When the counsel started reading an old judgment from Pakistani jurisdiction, the chief justice asked the counsel to first read the speech of the chief executive in which he had spelt out the reasons which forced him to come into power. The counsel was still reading the speech of Gen Musharraf when the court rose to assemble again on Thursday (March 2). Politicians in power try to be dictators, says CJ Bureau Report DAWN WIRE SERVICE Week Ending : 4 March 2000 Issue : 06/10 

A litmus test for the "Alleged Judicial Independence" 

Judges and 12 May 2007 "Karachi Killings" - Part - 1

ISLAMABAD: The man who has ruled Sindh as a de facto chief minister for many years finally lost his powers on Saturday. Brigadier Huda, who was an ISI commander in Sindh, was in fact the caretaker of the MQM-PML-Q provincial coalition government. He was responsible for running the coalition in a smooth manner. All major decisions were taken after his consultation. He resolved the differences between former CM Arbab Ghulam Rahim and the MQM many a time. Many provincial ministers even used to say “ooper Khuda aur neechay Huda”. The brigadier’s name figured in the power circles of Islamabad in the evening of May 12, 2007. Brigadier Huda was given credit for the show of massive government power in Karachi on that day. Initially, the MQM was reluctant to hold a rally in Karachi on May 12. The then ISI DG Gen Ashfaq Kayani also had the same opinion that the MQM should not come out on the streets when Justice Iftikhar Muhammad Chaudhry would visit Karachi. It was Huda who played an important role in convincing the MQM not to cancel its rally. He assured the MQM leadership that there will be no riots on that day though he was proved wrong. He was supposed to be very close to the then Army chief General Pervez Musharraf. However, no action was taken against him.

The blasts in the rally of Benazir Bhutto on October 18, 2007 in Karachi were another failure of Brigadier Huda. He was responsible for the security of Benazir Bhutto on that day more than anybody else. However, he was not transferred despite his repeated failures. His downfall started on April 9, 2008, when many people including lawyers were killed in the Karachi violence. It was another failure on the part of Huda. The new PPP government in Sindh felt that Brigadier Huda was still having immense political influence. It believed that he was in contact with the anti-PPP forces. Many important bureaucrats reported to the provincial government that Huda was interfering in different departments. He was more interested in “political makings and breakings” than doing his security job. After the episode of April 9, PPP leaders asked ISI Director General Lt Gen Nadeem Taj through the prime minister that Huda must be transferred. It took just a few days and Huda was transferred. He was replaced by another brigadier. The PPP gave a message that it means business and it will not tolerate any ambitious spymasters. There are rumors in the capital that the ISI DG will also be transferred soon but highly-placed sources in the new government dispelled all these rumours. “The prime minister has the authority to change the ISI DG anytime but right now we don’t need to change him,” claimed a top PPP leader. REFERENCE: De facto Sindh CM finally transferred Monday, April 21, 2008 By Hamid Mir

Judges and 12 May 2007 "Karachi Killings" - Part - 2

ISLAMABAD: The Chief Secretary of Sindh had strongly opposed the strategy of the provincial government for May 12 while the Prime Minister’s advice to the provincial government for a judicial inquiry into the killings has been turned down, authoritative sources said on Friday. It was also revealed that the MQM had wanted to join the Islamabad rally but was stopped by the Chaudhrys of Gujrat. Observers believe that these three important developments concerning the May 12 killings in Karachi may have a serious impact not only at the provincial level but also at the national. Sources said the Chief Secretary of Sindh, Shakeel Durrani, had strongly opposed the ‘counter productive’ strategy of the provincial government designed for May 12, the day the Chief Justice of Pakistan had gone to Karachi for addressing lawyers there. He had written in advance to his seniors, proposing that hurdles should not be created and that the CJ be given a smooth passage. His recommendations were in clear contradiction to the Sindh Home Department, headed by former sector commander of Military Intelligence, Brig (retd) Ghulam Muhtaram. While the home department, fearing a serious law and order situation, insisted the CJ should not take the flight to Karachi, the chief secretary opposed the plan that was aimed to flop the CJ’s show, warning it would deteriorate the situation.

Shakeel Durrani had not only verbally opposed the blockade of roads but had also opposed in writing to such a plan that was prone to violence and mass-scale killings. He had instead recommended that no hurdle should be created and Chief Justice Iftikhar Muhammad Chaudhry should be allowed to go by the route he wanted to use for reaching the high court bar. His recommendations, however, got a deaf ear from those who matter in decision-making in Sindh. Durrani is believed to have also held responsible his provincial government for Karachi mayhem, The News has learnt on good authority. While Durrani did not comment on the report when contacted by The News, another officer close to him confirmed it but refused to provide the details.

Meanwhile, the Sindh government has refused to order a judicial inquiry into the killings. The News has learnt on good authority that Prime Minister Shaukat Aziz wanted to order a judicial inquiry into the incident. He went to Karachi on Wednesday with this plan but faced opposition from his ruling allies in Sindh.

According to the sources, the PM had gone to Karachi with a plan to announce ordering judicial inquiry in a press conference after holding meetings there. Information Minister Muhammad Ali Durrani, Interior Minister Aftab Sherpao and Secretary Interior Kamal Shah had also accompanied him during this visit late Wednesday. Sources privy to the development say the PM’s plan could not materialize following stiff opposition from his allies in Sindh who said that such an order would open up a new Pandora’s Box. The PM who had ordered judicial inquiry into the mysterious murder of Supreme Court’s additional registrar Hamad Raza, failed to do it in a case where more than 40 people had been killed in just one day, ie May 12.

Interior Minister Aftab Sherpao, when contacted to confirm about the PM plan, refused to comment. “I neither deny nor confirm this report,” he said.

Information Minister Muhammad Ali Durrani, however, termed the ordering of judicial inquiry as a legal issue. He also did not deny that the PM was planning to order a judicial inquiry but said: “I am not in knowledge of the plan”. Also, some MQM lawmakers have been heard blaming the Chaudhrys of the Gujrat for ‘pushing’ them to hold a separate rally in Karachi instead of joining the PML-Q rally in Islamabad held the same day. They feel the May 12 incidents have left an adverse impact on their strategy to expand to other provinces so as to become a mainstream political party. The Karachi tragedy has put the MQM in dock as its offices in the Punjab and rural Sindh have faced a virtual closure following protests by the public of respective areas who blamed them for this bloodbath in Karachi.

In their background interviews, the MQM lawmakers are blaming Chaudhrys of Gujrat for putting them to ‘abuse’. They say they were not for holding a rally in Karachi. According to them, they had expressed the desire to join the PML-Q rally held in Islamabad the same day but were denied. MQM parliamentary leader Dr Farooq Sattar, in his on-the-record discussion, has neither denied nor confirmed the claim of his party colleagues. But he said their plan to hold rally in Karachi was made after detailed deliberation. REFERENCE: Who is to blame for Karachi mayhem? Umar Cheema Saturday, May 19, 2007

Judges and 12 May 2007 "Karachi Killings" - Part - 3

KARACHI: The Muttahida Qaumi Movement seems to have messed up in a big way this time. If the issue wasn’t so grim, the incoherent statements made by its “leaders” would have made a comic story. Post May 12, there has been a constant trickle of discordant statements issued from Karachi and London, each setting off a fresh controversy. A better example of the expression –- “shooting yourself in the foot” -– will be difficult to find.

The reaction to the May 12 bloodbath in Karachi has perhaps taken the establishment by surprise, if not by shock. This time Karachiites have shown more than just resilience and that was an eventuality not taken into consideration when the May 12 ‘event’ was being planned. As public outcry reverberated from Karachi to Khyber — and subsequently found its way to the United Kingdom – inconsiderate political leaders started to expose themselves to odium and ridicule as they spun a paradoxical web of betrayal under the relentless glare of the media.

To recap, just days after the Karachi killings, Sindh Home Secretary Brigadier (Retd) Ghulam Mohammed Mohtaram and the Adviser to the Sindh Chief Minister on Home Affairs Waseem Akhtar categorically declared that they had given right orders for May 12 to all the law enforcement agencies in Karachi.

As government functionaries responsible for law and order, both the ‘honourable’ gents declared on record that if the ‘measures’ they had taken had not been in place that day, “thousands would have died”. By the word “measures” it was further explained that it was these representatives of the MQM in the government who had decided to block the city and disarm the police and Rangers.

But, soon after these statements were splashed far and wide came the startling question from MQM chief Mr Altaf Hussain in his open letter addressed to “Patriotic Pakistanis” from London: “Where were the police and Rangers on May 12 during the bloodbath?”

With public outcry gaining momentum rather than dying down, the same contradiction continued at successive press conferences, where blame and accusation shifted back and forth from law enforcement agencies to “other” elements involved in the mayhem.

It is obvious that the ruling coalition was not prepared for the current reaction of Karachiites and the support from Punjab and the NWFP when it was planning the May 12 display of power play.

The latest disagreement within the party has exposed an even more serious lack of coordination as the MQM coordination committee has disowned the statement issued by its allied organisation, the Mohajir Rabita Council, which issued a press release on May 22 that included a list of journalists described as “chauvinistic”, among other insults.

With Sindh Governor Dr Ishratul Ibad doing his utmost to calm down opposition members — as is obvious from his meetings with ANP chief Asfandyar Wali Khan, Naib Amir of the Jamaat-i-Islami Ghafoor Ahmed and Sindh Pakistan People’s Party president Syed Qaim Ali Shah — the Council’s statement again belies all good intentions (if any) of the MQM leaders in government who are trying to salvage their position at this crucial pre-election juncture. And then, there is the ‘three option’ statement given by the Muttahida coordination committee after a ‘marathon session’ of meetings held in London.

The options are: the MQM members in the federal ministries might resign; the MQM members in both the federal and provincial ministries might resign; and the MQM members in the assemblies might join the opposition.

Political analysts can’t wait to see which way the party’s pendulum will eventually swing. But then there is the ever-present hand of the party’s guardian angel in the form of the president who has continually been asking the coalition partners to support the MQM. You can’t clap with one hand, after all. REFERENCE: Muttahida’s swinging pendulum By Maheen A. Rashdi METRO VOICE May 27, 2007 Sunday Jamadi-ul-Awwal 10, 1428 

Judges and 12 May 2007 "Karachi Killings" - Part - 4

SOME sections from among the Pakistani legal community in London are pouring over the cases of Abu Hamza, Augusto Pinochet and Omar Bakri Mohammad. The first one, controversial cleric Abu Hamza al-Masri has been jailed for seven years after being found guilty of inciting murder and race hate.

The second one, Bakri, chief of the banned Al-Muhajroon and allegedly the spiritual leader of Al Qaeda, was not allowed to return to the UK by the Home Office from Lebanon where he had gone voluntarily in 2005 after ‘sheltering’ in the UK for 20 years.

The third one, the late Augusto Pinochet, the former military dictator of Spain had to fight off a long-drawn extradition battle in British courts after the Spanish courts had found him guilty of being involved in grave human rights violations when he was ruling the country.

I would like to leave it to the imagination of my readers to puzzle over why these British lawyers of Pakistani origin joined also by a section of Pakistani students here are studying these cases trying hard perhaps to find parallels to take up.

“As his fiefdom descended into brutal violence, with the deaths of at least 40 people reported amid the worst political bloodshed Pakistan has witnessed in years, Altaf Hussain directed his followers by telephone from a safe place more than 5,000 miles away.,” so said the Sunday Telegraph in its May 14 edition. The story was headlined ‘Running Karachi from London (partly covered by Dawn on May 15).

Most Pakistanis here are highly distressed over the bloody happenings back home in recent weeks. They seem at a loss to understand why President General Musharraf looked the other way when fascist elements were unleashed against protesting lawyers and agitating political workers. Doesn’t it go against the very spirit of his own declared doctrine—Enlightened Moderation? They ask. And in recent months he has been preaching the Muslim Ummah to resolve the conflicts within through dialogue. Then why is he rejecting this same route to a grand political reconciliation in his own country? They question.I have no answers. But I can recall for the benefit of those quizzing me some past events and recorded statements so as to help them find the answers to their questions on their own. I recall vividly the victory dance the president performed as he concluded his first and last address to the joint session of the current parliament in 2002. He then raised his two clenched fists and waved them at the opposition which had kept thumping the desk and shouting ‘Go Musharraf Go’ throughout his speech. Next, he turned towards the ruling coalition and saluted them smartly before making an exit clearly with spring in his feet.

And who can forget the chilling statement of his in one of his TV interviews before his troops killed Sardar Akber Khan Bugti? He had said something to the effect that today was not 1970s and that they (the Baloch Sardars) would not know what hit them. He carried out this threat in letter and spirit. One can only assume that Akber Bugti did not know what hit him before he died.

“Our neighbourhood, Nazimabad, was a tough place to live, and it has become tougher since. I would not call it the Harlem of Karachi, but perhaps it was the South Bronx (This scribe has lived in Nazimabad in 1950s and 60s. It never was a tough place in those days and certainly was not South Bronx. It became tough for its inhabitants only in late 1980s well after Musharraf had joined the army). A boy had to be street-smart to survive. There were inevitable street gangs, and needless to say, I joined one. Needless to say too, I was one of the tough boys…There was a bully in our area who would walk up to the boy who had caught a kite and demand that he hand it over, or else. Most boys would oblige. One day my older brother got hold of some string from a cut kite. The bully, accompanied by two other boys, rudely asked him to hand it over. I held my brother’s hand and said, ‘Why should we give you the string?’ Then, without thinking, (the emphasis is mine) I punched the bully hard. A fight ensued, and I really thrashed him. After that people recognised me as a sort of boxer, and I became known as a dada geer—an untranslatable term that means, roughly a tough guy whom you don’t mess with. The lesson I learned was that if you call a bully’s bluff, he crumbles. The secret is to stand your ground for a few seconds, and your initial fright vanishes. This lesson later stood me in good stead as a commando.” This is from Musharraf’s book In the Line of Fire (Pages 26-27).

So, Musharraf is standing his ground believing that the Chief Justice, the lawyers’ community and the opposition political parties backing the struggle for independence of judiciary would crumble in due course of time. But then by the time that time comes, would not the nation suffer beyond repair? So what? A commando does not waste time on thinking before taking the plunge as Musharraf did when he punched the fictional bully without thinking and learned a great lesson which later stood him in good stead as a commando. But then can you use as effectively the same lessons which stood you in good stead as a commando when handling political issues from the offices of the Presidency and the COAS?

“I first encountered General Musharraf when he acted as a Turkish interpreter during visits by the Turkish military. I declined to make him my military secretary. We initially refused his promotion because of his suspected though unproven links with the ethnic, often violent, party known as the Mohajir Qaumi Movement (MQM).” This is Benazir Bhutto in the revised edition of her book Daughter of the East, an autobiography (page 429). But then you don’t have to believe everything BB says. In any case she herself says that the suspicion was unproven. It was actually Major General (retd.) Naseerullah Khan Baber who reportedly advised the former prime minister on the matter of Musharraf’s promotion. Later, though on the advice of the then Chief of the Army Staff, Benazir is said to have overruled Baber, the then interior minister. REFERENCE:

Judges and 12 May 2007 "Karachi Killings" - Part - 5

KARACHI, March 5: SCBA president Aitzaz Ahsan on Wednesday advised lawyers to forget the bloody incident of May 12 in which dozens of people were killed on the occasion of a visit to Karachi by deposed chief justice Iftikhar Mohammad Chaudhry. Mr Ahsan, who arrived in the city on Tuesday for the first time since May 12, said this while addressing members of the Sindh High Court Bar Association. Mr Ahsan said the city needed peace and prosperity and must not suffer tragic incidents like that. “I have forgotten the May 12 mayhem and would like to request that it is better for all of us to forget that tragic incident,” he said. The May 12 riots were erupted when Mr Ahsan, the deposed chief justice and other leaders of lawyers were barred by the provincial administration from coming out of the airport to attend a gathering of lawyers on the high court premises. The SCBA chief urged the leadership of the city and elders of all the ethics groups to make Karachi a peaceful city, free of ethnic violence.—Reporter. REFERENCE: ‘Forget May 12 mayhem’ March 06, 2008 Thursday Safar 27 ,1429

Judges and 12 May 2007 "Karachi Killings" - Part - 6 Yet the MQM has the power to bring the city to its knees. One call from Altaf Hussain and the city shuts down. A: Control of the city means [to be in control of] its development, [the authority to make] major decisions. Yes, we can call for a strike, but we don’t have real power. I was home minister, but I didn’t have any power, because there’s the ISI, the MI – the intelligence agencies – the centre and others who were actually calling the shots. REFERENCE: Interview: Wasim Akhtar, MQM By Sairah Irshad Khan 28 November 2010

Judges and 12 May 2007 "Karachi Killings" - Part - 7

On Thursday, February 05, 2009; 2:44 AM….In the Urdu daily Jang of February 2, 2009 there was a column titled “Would Altaf Hussain participate in long march ?”, by the famous journalist Mr. Ansar Abbasi known for his research and investigative journalism. This column was a direct response to MQM’s Quaid Mr. Altaf Hussain’s address to MQM’s rabita committee in London on Jan 27, 2009. During the address Mr. Altaf Hussain put a simple question to Mr. Nawaz Shareef vis-à-vis PCO judges. that “what does the Charter of democracy’s article 3, clause (a) & (b) says about those judges who took oath under the PCO and if Mian sahib can answer this question then MQM too would diligently work with them towards the enforcement of Charter of Democracy.”. But in case Mian Nawaz fails to answer the question then it will be morally binding on him and an obligation to reconsider his decision to participate in long march. Principally & professionally speaking the answer should have come from Mian Nawaz Shareef. Alas it never came; nevertheless Mr. Ansar Abbasi took upon himself to issue a rejoinder. Peoples Party’s Shaheed Chairperson Mohtarma Benazir Bhutto and Mian Nawaz Shareef put their signatures on the Charter of Democracy (COD) comprising of 7 pages, 4 important topics and 36 articles in London on May, 14, 2006. But here we will only talk about the relevant points brought up by Mr. Ansar Abbasi, explained and deliberated upon in the aforementioned column. Mr. Abbasi says that COD’s article 3(a) explains the procedure for appointment of new judges and that Article 3(b) addresses the already appointed judges of higher courts with relevance to their oath taken under PCO.

Indeed this is true that Article 3 (b) addresses the oath taken by superior courts judges under the PCO and this is exactly said in the COD that “No judge shall take oath under PCO and nor shall he take any oath whose language stands at odds with the 1973 constitution’s defined language for oath of judges”.

Let’s read the exact text of the relevant Article from the COD. Under Article 3(a) it says “The recommendations for appointment of judges to superior judiciary shall be formulated through a commission, which shall comprise of the following: (i). The chairman shall be a chief justice, who has never previously taken oath under the PCO.”

Ansar Abbasi in his column translates it as “The recommendations for the appointment of judges for the superior courts shall be undertaken through a Commission. This commission will comprise of following individuals.

1) The Commission’s chairman shall be a Chief Justice, who has never previously taken oath under PCO”. Mr. Ansar Abbasi himself mentions that “according to this Article Mr. Iftikhar Chaudhry (deposed) Chief Justice cannot become the chairman of this commission which has been entrusted with the task of making recommendations for the appointment of new judges. And for this any chief justice who in past did not take oath under PCO stands eligible to become chairman of this commission”. Our question to Mr. Ansar Abbasi when he openly admits that according to COD’s Article 3(a) Mr. Iftikhar Chaudhry (deposed) CJ cannot become chairman of the commission that will make recommendations for the appointment of judges to superior courts and is not eligible for the task then how can he according to Article 3(a) be eligible to hold the highest and honorable office of the superior court? Knowing this reality in its totality and fully well would it be right and legal to demand his restoration?

A very amusing point that MR Ansar Abbasi brings forth with regards to Article 3(a) in his column; it says “this sub-article has nothing to do with the current judges and that few people according to a well thought of plan are interpreting Article 3(a) in such a way so as to make the restoration of Mr. Iftikhar Chaudhry controversial and create confusion in common people”. But after explaining Article 3(a) he says “the authors of COD after much thought did not use the word “The Chief Justice” of Pakistan but used “a chief justice” since they knew that the chief justice of that time and those who will follow as chief justice will be those who took oath under the 2001 PCO”.

Quite strikingly Mr. Abbasi accepted the fact that in May 2006 this particular Article in the COD was specially included for the chief justice in office at that time and his brother justices who had taken oath under PCO so that Mr. Iftikhar Chaudhry and other justices who took oath under General Pervez Musharraf’s PCO will stand disqualified for appointment as superior court judges. Moreover this is absolutely true that on May 14, 2006 when Mohtarma Benazir Bhutto Shaheed and Mian Nawaz Shareef signed the COD, both the leaders had no clue and nor did the senior leadership of two parties knew anything or for that matter the leaders of lawyers movement had any idea that on march 9 a reference would be filed against Mr. Iftikhar Chaudhry the sitting chief justice of Pakistan, that on November 3 General Musharraf would again impose emergency in the country and that judges would again be required by him to take new oaths under the PCO. As for making Mr. Justice Iftikhar Chaudhry controversial, it is those parties who are dragging him into political rallies and processions that are to be blamed. As a justice Mr. Iftikhar Chaudhry deserves the respect and protocol that comes with the office. Sadly & with due respect the chief justices and judges of superior courts are not only and strictly prohibited from public appearances, attending or endorsing political rallies and agendas, but even barred from attending private functions of such nature. But the honorable justice thought it right to go ahead with attending political rallies and processions and let the exalted office of chief justice go to the street and let himself become a spectacle on top of being controversial.

PML (N) leadership came up with the ludicrous argument that PCO’s mention in the COD is with reference to those judges who took oath on November 3, 2007. The question is that when the signatures were being put on charter of democracy on May 14, 2006 it was way before November 3, 2007, then whether PML (N) leadership got the premonition that on November 3, 2007 judges will take oath under the PCO? As per Ansar Abbasi if Article 3(a) of COD has no relevance with current judges or of any consequence to them then who are these particular PCO judges mentioned in the COD, since before January 2000 the PCO came in General Zia-ul-Haq’s martial law in 1977 and none of those PCO judges from General Zia’s time were present in the judiciary of 2007. Accordingly it proves that in the COD announced on May 14, 2006 the very mention of PCO refers to the PCO of General Musharraf introduced in January 2000 and those who took oath on it.

Judges and 12 May 2007 "Karachi Killings" - Part - 8

The fact is that in the COD the issue of judges taking oath under PCO has been dealt with utmost seriousness and in Article 3(a) clause (2) with reference to procedure for appointment of judges in superior courts that it clearly says commission that makes recommendations for the appointment of judges, its members shall be Provincial High Court Chief Justices who have never taken oath under PCO. In case the criteria are not met then it will be senior most judges who will be members of the commission and those who have never taken oath under PCO. If in January 2000 there had been no PCO by General Musharraf and Justice Iftikhar Chaudhry and his brother justices not taken oath under the PCO and provided constitutional protection to General Musharraf’s dictatorship, then it is our firm belief that in COD the mention of judges who took oath under PCO and their appointment would not have been mentioned as an Article in order to disqualify them. But on the contrary this would not have been an issue at all.Judges and 12 May 2007 "Karachi Killings" - Part - 9

Mian Nawaz Shareef, Qazi Husaain Ahmed, Imran Khan and their like minded political leaders, lawyers, Ansar Abbasi and others of same thought look down on the current Supreme Court Chief Justice Mr. Abdul Hameed Dogar and judges appointed under the PCO after the emergency of November 3, 2007 and don’t spare a moment in maligning them and consider them unconstitutional. Mian Nawaz Sharif has taken the extreme position of not recognizing them and has not hesitated in using derogatory and uncouth language such as “anti-state elements”, “traitors” and ”anti-Pakistan” and keeps using it in public. We have one question to all the above mentioned personalities and with all due respect we ask if Mr. Chief Justice Abdul Hameed Dogar and other judges taking oath under PCO on November 3, 2007 in their eyes was a serious and punishable crime then Mr. Justice Iftikhar Chaudhry’s oath on January 4, 2000 under General Musharraf’s first PCO too falls in the category of a serious and punishable crime. Then why do they present this one judge who committed the same unconstitutional act as a hero and the other as a traitor? Was General Musharraf’s PCO in 2000 was correct and in accordance with the constitution of Pakistan? If this is true then the Chief Justice of that time Mr. Saeed-uz-Zaman Siddiqui, Justice Nasir Aslam Zahid, Justice Wajeehuddin Ahmed, Justice Kamal Mansoor Alam, Justice Mamoon Kazi, and Justice Khalil-ur-Rahman would not have said no to taking oath under PCO and would not have said that we have already taken oath under the constitution of Pakistan and therefore we will not take a second oath under the PCO. These were the true heroes of judiciary those who demonstrated strength of character and were brave enough to not to take oath under PCO and instead submitted their resignations. This most important chapter in Pakistan’s legal history went unnoticed by Mian Nawaz Shareef and by the leadership of PML (N) who are always at the forefront of all kinds of foul and malicious attacks on Supreme Court. Rather they never came out on streets at that time, nor protested or bothered to become champions of judiciary. Nor did the lawyers who are ardently campaigning for restoration of deposed Chief Justice Iftikhar Chaudhry and equate it with freedom of judiciary ever bothered to come out at that time and launch protests. Neither did Mr. Ansar Abbasi custodian of the pen and freedom of expression bothered to come out and lodge angry protests and columns. The sad irony is that lawyers and those political leaders who are at the forefront of long marches, waving angry fists and raging in fury never bothered to come out for Chief Justice of that time Mr. Saeed-uz-Zaman Siddiqui, Justice Nasir Aslam Zahid, Justice Wajeehuddin Ahmed, Justice Kamal Mansoor Alam, Justice Mamoon Kazi, and Justice Khalil-ur-Rahman. Not even a mild protest or statement from these lawyers was registered or launched in favor of these true heroes of judiciary. Why this dual approach and where was the civil society then? And what were the prominent members of ex-servicemen’s society doing at that time or were they hiding in some hole? Where was their sense of democracy at that time? Had Justice Iftikhar Chaudhry taken the honorable and brave step of siding with the judges who refused to take oath under General Musharraf’s PCO in 2000 then MQM too would have been at his side, as MQM’s demand and stand is principled, MQM questions as to why is only the restoration of the Nov 2 2007 judges being demanded & why not the judges who refused to take oath under PCO in 2000 and are true heroes who stood up like true men and should all be restored.

MQM strictly adheres to the principled stand that if Justice Iftikhar Chaudhry’s taking oath in 2000 under General Musharraf’s PCO is acceptable and correct according to Ansar Abbasi and his confidantes and like-minded then how is that judges who took oath on November 3, 2007 under General Musharraf’s second PCO could be illegal ? If one judge who took oath under one PCO is judiciary’s hero, protector and flag bearer of the constitution and considered champion of law then how is it so that another judge who took oath under second PCO can be declared as the villain of judiciary ? and one who abrogated constitution ? If the oath taken on November 3, 2007 by judges was wrong then how is that oath taken earlier in 2000 under the first PCO by General Musharraf by justice Iftikhar Chaudhry was legit and right in the eyes of law ? Asking to restore judges appointed under the first PCO and taking out long marches in their support and when it comes to judges who took oath under second PCO showing utter and abject disregard , calling them as unconstitutional and demanding for them to be removed is nothing short of blatant dichotomy in the character and logic of those who are espousing Justice Iftikhar Chaudhry’s restoration. If the PCO of January 2000 was right and legit then how that is the PCO of November 3 2007 was wrong and illegal? If the second PCO was wrong and illegal then how can the first PCO be declared as right and legit?

Ansar Abbasi and his like minded political and religious leadership, members of legal community curse and accuse General Musharraf for breaking the constitution, twice introducing PCO, keeping both President & Army Chief offices, fighting elections in uniform and distorting the constitution of the country. Alongside they also demand the restoration of the judiciary of November 2, 2007. Basically they want the restoration of the judiciary whose Chief Justice was Iftikhar Chaudhry. For those with short memories let me remind them with great respect that General Musharraf’s takeover on October 12 1999 and his non-democratic step and his chief executive’s position was validated under doctrine of necessity by whom? In 2000 General Musharraf was allowed to postpone elections for two years by whom? Again in 2002 and in 2005 General Musharraf had both the offices of Chief of Army Staff as well as President and a constitutional writ that was filed against it in Supreme Court was rejected by whom?

Yet again on September 28th 2007 who gave permission to General Musharraf to fight elections in uniform? Was it the Dogar Judiciary as cynically put by Nawaz Shareef or was it the judiciary of November 2, 2007 that rejected the constitutional writs against General Musharraf regarding his Chief of Army Staff uniform, these writs according to Article 184(3) were declared as non maintainable and rejected by whom?

If Mr. Ansar Abbasi and his like minded friends and cronies call General Musharraf a dictator and usurper then who gave sanctuary and constitutional protection to this dictator’s extra-constitutional steps?

In due consideration and full acknowledgement of these facts and in light of this evidence Mr. Ansar Abbasi should sincerely ponder and seriously reflect as to whom is the true violator of the Charter of Democracy? Whether it is MQM or was it Nawaz Shareef and his political allies and confidantes who in demanding the restoration of PCO judges are standing accused of violating their own charter of democracy? If Ansar Abbasi and his confidantes and like minded political friends think and view the COD as that sacrosanct document that if its is not practiced then the entire judiciary, parliamentary system and democracy can be declared as non constitutional and can lead to the turning of tables on democracy and its lynching then principled approach and scruples tell us that if one has faith in COD then one should not talk of restoration of an individual who took oath under a dictator’s PCO, someone who provided full protection to the dictators extra constitutional transgressions. And if one only wants to talk out loud on the COD and not to practice it in spirit , then those who talk out the loudest on the COD should instead of long march go to the Constitution Avenue in Islamabad and burn this COD in the presence of public and in their court and to stop fooling people and pray for their forgiveness.

Would Mr. Ansar Abbasi exhibit moral courage to seek nation’s forgiveness for supporting Mr. Iftikhar Chaudhry a person who took oath under General Musharraf’s PCO, a person who provided constitutional protection on many occasions to General Musharraf’s extra-constitutional steps? MQM’s leader Mr. Altaf Hussain sacrificed his party’s interest in lieu of the sensitive national security situation, the perils that democracy is facing today and for its survival in Pakistan. But is that what Mr. Ansar Abbasi would like to see that we put the entire country at stake for one person’s ego arrogance and his employment? Would MR Ansar Abbasi like to sacrifice the entire country, throw democracy in tailspin and put it to the torment of long marches, shutter-down strikes, chaos and lawlessness in these perilous times? Is MR Ansar Abbasi ready to back a long march and sit-downs that aims to destabilize the elected parliaments and to rock democracy’s boat and only to lead to have it trampled under some new dictator’s boots? Mr. Ansar Abbasi and his confidantes and like minded friends will for the sake of democracy have to select between an individual and our country’s democratic system. Is Mr. Abbasi he ready to do it? REFERENCE: A Riposte to Ansar Abbasi By Mustafa Azizabadi Member – Central Rabita Committee & In charge Central Media cell. MQM

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