HYDERABAD: Supreme Court Bar Association (SCBA) President Asma Jehangir condemned the apex court’s decision to revoke the status of PCO judges. “Such ‘panchayti’ judgments are not acceptable,” Asma said, while addressing lawyers at the Hyderabad district bar. Terming the order a ‘third degree treatment’ in police parlance, she equated weapons used for torturing detainees by the police with the judges’ pens. “This pen is not for settling your personal rivalries,” she said in reference of the Supreme Court judgement authored by the chief justice. She reminded the chief justice of the promises made to the bar after he was deposed. Asma also criticised Parliament and termed democracy “a change of faces” and accused generals of calling the shots. “Our chequered history testifies that their decisions have been a failure.” Asma questioned if judges are appointed on merit. According to her, judges from minority communities are also being discriminated against. REFERENCE: PCO judges: Asma hits out at SC decision By Z Ali Published: May 19, 2011 http://tribune.com.pk/story/171780/voice-of-dissent-asma-hits-out-at-sc-decision/
Selective Justice/Judiciary in Pakistan (Feb 2011)
“Historic”, we are being told — and told without end — is what the judgment of their Supreme Court lordships is. General (r) Pervez Musharraf’s Nov 3, 2007, action has been declared “unconstitutional” and “civil society” is ecstatic, some of our wilder drumbeaters assuring us that the doors on military interventionism have been closed forever. Ah, if wishes were horses. The Supreme Court judgment not so much revises history as cuts it up, wrapping it in neat packages. For it declares only one action of Musharraf’s unconstitutional — his Nov 3 Emergency, which came at the fag end of his rule. The inescapable conclusion we are left with is that everything else the man did fell within the ambit of the Constitution. Now what was Musharraf’s original sin from which flowed everything else? Why, his coup d’état of Oct 12, 1999, when his generals overthrew an elected government, disbanded the National Assembly, put the Constitution into cold storage and imprisoned not only the then prime minister but his closest colleagues and even members of his family. Just as Adam ate the apple he wasn’t supposed to touch and as a consequences was expelled from Paradise, the apple which Musharraf plucked and put into his mouth was on the fateful evening of Oct 12, all those years ago, when he was in the air on a flight from Sri Lanka, while his generals — chief among them Usmani, Aziz and Mahmood — went about the removal of the elected government.
That was the mother of all sins. So how strange and dripping with irony this omission: about that seminal event, which set in train all the sorrows the nation was to reap thereafter, their lordships in their “historic” judgment have nothing to say. For this of course we must understand the problems of the past. For in 2000, a few months after the mother of all sins, when this matter came before the then Supreme Court headed by Chief Justice Irshad Hasan Khan, the nation witnessed another of those electrifying performances which have made “the doctrine of necessity” so famous in our land, the Supreme Court validating Musharraf’s coup and, what’s more, allowing him a grace period of three years to hold elections. In its generosity, it also gave Musharraf the authority to amend the Constitution for purposes of holding elections. So just as the Anwarul Haq Supreme Court gave a clean chit to General Ziaul Haq’s coup of 1977, another Supreme Court signed a papal bull conferring legitimacy on another illegitimate offspring of our political adventures. Now for an inconvenient fact. On the bench headed by Chief Justice Irshad Hasan Khan there sat an up-and-coming jurist, stern of eye and distinguished of look, by the name of Iftikhar Muhammad Chaudhry. Yes, he was among the illustrious upholders of the law and the Constitution who bathed Musharraf and his generals in holy water. Before that baptismal ceremony, Musharraf, following the example of military saviours before him, had issued another Provisional Constitutional Order (PCO) requiring judges of the high courts and the Supreme Court to take a fresh oath pledging obedience to the new order. A few difficult judges — among them Chief Justice Saeeduzzaman Siddiqui, Justices Wajeehuddin, Nasir Aslam Zahid, Mamoon Qazi, Khalilur Rehman, Kamal Mansoor Alam — spurned Musharraf’s PCO and promptly found themselves out in the cold. But a majority, preferring discretion over valour, thought it wiser to go along with the new order of things.
Among this lot — the original lot, that is — was Justice Iftikhar Muhammad Chaudhry. And it was from this PCO crowd, which saw no evil in wearing the robes of the judiciary under a usurping general, that the Supreme Court bench was composed which in double-quick time conferred absolution on Musharraf and his triumphant generals. Chief Justice Irshad Hasan Khan wrote the judgment and the other judges on the bench, including Justice Chaudhry, without adding a word of their own (which was slightly unusual) concurred with his sweeping validation. As PCO judges they were expected to toe the line dictated by the country’s martial law masters and, to no one’s surprise, they went along faithfully, Chief Justice Irshad in front and they in his train. In the museum dedicated to the doctrine of necessity this was another trophy. So it is not a little surprising to see the present Supreme Court coming down so hard on the Nov 3, 2007, PCO judges when they themselves (most of them, if memory serves) felt few qualms in being PCO judges in January 2000. Let him cast the first stone who hath not sinned, said Christ. Their lordships of the “historic” judgment are no doubt made of sterner stuff, preferring to interpret the past as a closed and shut transaction while bringing down the executioner’s axe on those who could well plead in their defence that they were doing no more than following the example, set in times past, by their betters. What about the nation which faces a serious test? For it is being asked to believe, if we go along with all the implications of the “historic” verdict, that Musharraf’s rule was legitimate until Nov 3, 2007, and it was only his proclamation of emergency that evening which put him outside the pale of the Constitution. This is a very selective rendering with which most Pakistanis are not likely to agree. .
According to this interpretation Musharraf did nothing unconstitutional from Oct 12, 1999, to Nov 3, 2007, and it was only the period of emergency — from Nov 3 to Dec 15 — which is worthy of judicial censure. In other words, according to the Supreme Court, he was a usurper not for eight and a half years — which most people in Pakistan believe — but for a mere 40-45 days. As sins of this sort go in Pakistan, this doesn’t amount to much of a transgression. But even if it is considered serious (and there are people who will), its severity is mitigated by the fact that the malefactor (Musharraf) first took off his uniform on Nov 28, 2007 (thus doing the nation a favour it had long demanded) and lifted emergency on Dec 15, 2007, thus returning the country to constitutional rule (as per the implication of the Supreme Court verdict). Not only that but he went on to hold elections. This makes him look not a demonic but rather quite a benign figure. His original sin, it can be argued, was no longer a sin in the eyes of the law because the PCO of 2000 and the oaths of the judges were validated later by parliament. Very true, but this is hair-splitting. Musharraf was a usurper as were Zia and Yahya and Ayub before him. The others too were validated by various judicial and constitutional instruments. But all these actions remain blots on our history and in the eyes of the people, and in the eyes of history, they are all usurpers who — although this is quite another story — brought great harm to the nation. Musharraf deserves punishment, as did all military saviours before him. But if Article Six is to be invoked it should be for Oct 12, ‘99, rather than the secondary and much smaller sin of Nov 3, 2007. In that case it is not he alone who should be brought into the dock but all his collaborators — the generals who ordered troop movements on Oct 12, the judges who were effectively his collaborators later and all those who chose to serve under him in various capacities. Flogging Musharraf is easy because he is a dead horse. But if we are serious about retribution our canvas has to be broader. But since it is not going to be broad, and bringing Musharraf to justice is likely to remain no more than a talking point — because who wants to stir this hornet’s nest? — the more seemly thing is to move on and confront the future and inculcate some humility in ourselves by remembering that in the sins of the Musharraf many now counted among the good and the great, and even the historic, were also complicit. From such humility — or what the Chinese call self-criticism — will come the strength to face the future, and even fix it in our favour. Email: firstname.lastname@example.org REFERENCE: Writing of history or triumph of amnesia? Ayaz Amir Friday, August 07, 2009 http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=191800&Cat=9&dt=8/6/2009
HYDERABAD: Asma Jehangir, president of the Supreme Court Bar Association, has criticised the Supreme Court`s verdict in the PCO judges case. Addressing members of the Sindh High Court Bar Association and Hyderabad District Bar Association here on Wednesday, she said: “Police use third degree treatment but some people are doing it in the judiciary with their pen. This pen embodies the trust of the nation and it should not be used for settling personal scores and rivalries.” Ms Jehangir was commenting on the verdict which the Supreme Court had announced earlier in the day, rejecting intra-court appeals of judges who had taken oath under the Provisional Constitution Order and asking the government to issue a notification of their dismissal. “I don`t want to see justice stifled. Although he was a PCO judge, yet we supported the chief justice when he was sacked. We believed that if a dictator was allowed to ride roughshod over the judiciary this time, he would just bury the institution the next time,” she said. Ms Jehangir said that decisions based on a feudal and `panchayati` mindset would not work any more. She said she wanted to reform bar councils and associations. There was no legal aid system which was primarily the bar`s responsibility, adding that amendments to the registration act and defender`s law were needed. Referring to a demand for appointment of judges from Sindh, she said sarcastically: “You are not being inducted as judges because you have talent.” REFERENCE: Asma criticises court verdict on PCO judges By Mohammad Hussain Khan | From the Newspaper (13 hours ago) Today http://www.dawn.com/2011/05/19/asma-criticises-court-verdict-on-pco-judges.html
Talking of Musharraf’s military rule, what was the role of our present lordships when Triple One Brigade, our highest constitutional authority, reinterpreted the Constitution once again on the long afternoon of Oct 12, 1999? A few judges — Chief Justice Saiduzzaman Siddiqui comes to mind — did not take oath under the Provisional Constitution Order (PCO) issued two months later. But if imperfect memory serves, all of their present lordships, at one time or the other, took oath under the PCO. Not only that, some of them were on the bench which validated Musharraf’s takeover. A few, including My Lord the Chief Justice, were on the bench which validated Musharraf’s takeover for the second time in the Zafar Ali Shah case (2005). Of course, we must let bygones be bygones and deal with the present. But then this principle should be for everyone. We should not be raising monuments to selective memory or selective condemnation. If the PCO of 2007 was such a bad idea, in what category should we place the PCO of 2000? And if in this Turkish bath all are like the emperor without his clothes, the least this should inculcate is a sense of humility. REFERENCE: The road to hell — and similar destinations Islamabad diary Friday, January 01, 2010 Ayaz Amir http://thenews.com.pk/daily_detail.asp?id=216323
Chief Justice Iftikhar Chaudhry in a group photo with the visiting officers of Command and Staff College Quetta at Supreme Court Building.-APP
ISLAMABAD: Chief Justice Iftikhar Mohammad Chaudhry said on Saturday the oath of the armed forces called for true allegiance to Pakistan by upholding the Constitution and by keeping away from political activities. “I am persuaded to say this (because) during my talks with one or two very high-ranking officers, I discovered that they did not know the implications of the oath taken by the troops of Pakistan,” the chief justice observed in an address to a delegation of officers of the Command and Staff College, Quetta, at the Supreme Court building here. Last week, the chief justice had suggested to bureaucrats not to follow illegal orders by their superiors and instead abide by their conscience and the law. Noting at the outset of his speech the prime duty of the armed forces to defend the country against any external aggression or threat of war, the chief justice said that “the prime duty of defending the supremacy of the Constitution lies upon the Supreme Court”. He pointed out that the 1973 Constitution, for the first time, introduced a new chapter for the armed forces containing provisions pertaining to their command and functions and an oath by every soldier to “bear true faith and allegiance to Pakistan and uphold the Constitution and that he should not engage himself in any political activities whatsoever”. CJ asks military to keep away from politics By Nasir Iqbal | From the Newspaper April 17, 2011 (2 days ago) http://www.dawn.com/2011/04/17/cj-asks-military-to-keep-away-from-politics.html
PERVEZ MUSHARRF Dawn News Live (Watch Chief Justice "Sanctimonious Lecture in between the Clip)
As per a report by International Crisis Group "REFORMING THE JUDICIARY IN PAKISTAN" dated 16 October 2008:
VALIDATING MILITARY INTERVENTIONS
Like Zia’s Eighth Amendment, Musharraf’s Seventeenth Amendment, passed by a rubber-stamp parliament in December 2003, enshrined all executive orders and changes made under military rule.21 The Seventeenth Amendment gave the president, the titular head of state, the power to dismiss elected governments and parliament and also transferred from the prime minister, the head of government, key appointment powers to the president including appointments of governors, the three service chiefs and the chief justice of the Supreme Court. Musharraf’s constitutional distortions weakened civilian institutions. By sidelining secular democratic forces, the military government also enabled right-wing religious parties to fill the vacuum. In dismissing legal challenges to Seventeenth Amendment, the Supreme Court shirked its responsibility to protect constitutional rule. REFERENCE: Reforming the Judiciary in Pakistan Asia Report N°160 16 October 2008http://www.crisisgroup.org/home/index.cfm?id=5728&l=1
Some courageous judges, such as Supreme Court Justices Dorab Patel and Fakhruddin G. Ibrahim,15 have refused to sanctify authoritarian interventions, and preferred to resign rather than undermine constitutionalism and the rule of law. By legitimising military rule and intervention, most have, however, abdicated their duty to uphold the law. Following Musharraf’s coup, the Supreme Court was purged of judges who might have opposed the military’s unconstitutional assumption of power. Judges were required to take an oath to Musharraf’s Provisional Constitutional Order (PCO), 1999, superseding the oath they had sworn at their induction to the 1973 constitution.16 On 26 January 2000, thirteen judges, including Chief Justice Saiduzzaman Siddiqui and four other Supreme Court justices, were removed for refusing to do so. The reconstituted Supreme Court was composed of judges who willingly accepted the military’s directions. They included Iftikhar Muhammad Chaudhry, who was elevated to the Court in January 2000 and appointed chief justice by Musharraf in 2005. The judges took their oath of office under the PCO 1999, which omits the reference to their duty to “protect, uphold and defend” the 1973 constitution. On 21 May 2000, this bench upheld the legality of Musharraf’s coup under the doctrine of state necessity. The Supreme Court also authorised the army chief to amend the constitution, albeit within the bounds of its federal, democratic and parliamentary character. The Court also concluded that those judges who had been sacked following the PCO oath had lost any right to challenge their removal due to the passage of time. By placing personal survival over the rule of law and constitutionalism, these judges allowed another dicta tor to implement sweeping changes that expanded the military’s political powers and hold over the state. REFERENCE: Reforming the Judiciary in Pakistan Asia Report N°160 16 October 2008 http://www.crisisgroup.org/home/index.cfm?id=5728&l=1
Pakistan’s higher judiciary has repeatedly validated military interventions and sanctioned constitutional amendments that have fundamentally altered the legal and political system. Attempting to explain its failure to protect the constitution through the “doctrine of state necessity”, the judiciary has relied on the dubious argument that the army’s intervention could be justified because of the pressing need for political stability. This doctrine was first developed in three cases in 1955 in the Federal Court, as the Supreme Court was then known, to justify the extra-constitutional dismissal of the legislature by a titular head of state.11 Drawing on the precedent of those decisions, the Supreme Court validated General Mohammed Ayub Khan’s 1958 declaration of martial law, General Mohammad Ziaul Haq’s 1977 coup and General Pervez Musharraf’s 1999 coup. While these Supreme Court judgments gave military regimes the trappings of legality, repeated military interventions have hampered the growth of civilian institutions and moderate political parties and forces. The centralisation of power in a Punjabi-dominated army has also strained centre-province relations in a multi-ethnic, multi-regional state, even as the military’s use of religion to justify political control has undermined the security of Pakistani citizens, particularly women and religious and sectarian minorities. REFERENCE: Reforming the Judiciary in Pakistan Asia Report N°160 16 October 2008 http://www.crisisgroup.org/home/index.cfm?id=5728&l=1
Lets go back to History and not a very Distant Past
Chaudhry Iftikhar named new CJ [Daily Dawn 2005] By Our Staff Reporter ISLAMABAD, May 7: President Pervez Musharraf on Saturday appointed Justice Iftikhar Mohammad Chaudhry, the senior most judge of the Supreme Court, as the next chief justice. He will assume the office on June 30 after retirement of the incumbent Chief Justice, Justice Nazim Hussain Siddiqui, on June 29. “The notification has ended speculations of appointment of a junior judge as chief justice in violation of the seniority principle settled under the 1996 Judges case,” commented a senior Supreme Court lawyer on condition of anonymity. Justice Chaudhry will reach the superannuation age of 65 years in 2012, which will make him one of the longest serving chief justices in the judicial history of Pakistan. He will serve as chief justice for over seven years. Earlier Justice A. R. Cornelius and Justice Mohammad Haleem served as chief justice for eight years from 1960 to 68 and 1981 to 89, respectively. Justice Chaudhry was elevated as a judge of the apex court on February 4, 2000. He has performed as acting chief justice from January 17 to 29, 2005. He holds the degree of LLB and started practice as an advocate in 1974. Later he was enrolled as an advocate of high court in 1976 and as an advocate of Supreme Court in 1985. In 1989, Justice Chaudhry was appointed as advocate-general of Balochistan and elevated to the post of additional judge in the Balochistan High Court in 1990. He also served as banking judge, judge of Special Court for Speedy Trials and Customs Appellate Courts as well as company judge. He served as the chief justice of the Balochistan High Court from April 22, 1999 to February 4, 2000. He was elected the president of the High Court Bar Association, Quetta, and twice a member of the Bar Council. He was appointed as the chairman of the Balochistan Local Council Election Authority in 1992 and for a second term in 1998. Justice Chaudhry also worked as the chairman of the Provincial Review Board for Balochistan and was appointed twice as the chairman of the Pakistan Red Crescent Society, Balochistan. Presently he is functioning as the chairman of the Enrolment Committee of the Pakistan Bar Council and Supreme Court Buildings Committee. Reference: Caudhry Iftikhar named new CJ By Our Staff Reporter May 8, 2005 Sunday Rabi-ul-Awwal 28, 1426 http://www.dawn.com/2005/05/08/top4.htm
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 http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/2000/05feb00.html#five
ISLAMABAD, 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 Khan8. 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.-APPREFERENCE: Supreme Court judges' strength completed DAWN WIRE SERVICE Week Ending : 29 April 2000 http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/2000/apr29.html#supre
LAHORE, 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 http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/2001/jun3001.html#lhcr
ISLAMABAD, 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.”
The 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 http://126.96.36.199/2002/10/31/top9.htm
ISLAMABAD, March 1: The Chief Justice of Pakistan, Irshad Hasan Khan, on Wednesday observed that when the politicians are in power, they try to become dictators but when they are out of power, they become champions of the rule of law. Presiding over a 12-member bench seized of the seven petitions challenging the military takeover, the chief justice directed the attorney general to provide details of the expenditure on holding elections, including the expenses made by the candidates on their election campaigns. The Supreme Court announced that it would decide the issue of maintainability and merits of the case simultaneously. The chief justice said the court had entertained the petitions. The bench started regular hearing of the petitions on Wednesday. The court first took up the petition of Syed Zafar Ali Shah, suspended MNA of PML from Islamabad. The representative petition of PML would be taken next and Khalid Anwer would argue the case on behalf of the party.
Other petitions before the court are of Syed Imtiaz Hussain Bukhari, Challenging the PCO; Fazal Ellahi Siddiqui, challenging the PCO; Shahid Orakzai, seeking restoration of Senate, office of speakers and provincial assemblies; Al-Jehad Trust, seeking restoration of Constitution to the extent of judiciary; and Syed Iqbal Haider of MWM, seeking validation of PCO. The bench consisted of Justice Irshad Hasan Khan, Justice Mohammad Bashir Jehangiri, Justice Sheikh Ijaz Nisar, Justice Abdur Rehman Khan, Justice Sheikh Riaz Ahmad, Justice Chaudhry Mohammad Arif, Justice Munir A. Sheikh, Justice Rashid Aziz Khan, Justice Nazim Hussain Siddiqui, Justice Iftikhar Mohammad Chaudhry, Justice Qazi Mohammad Farooq and Justice Rana Bhagwandas. The chief justice made it clear at the outset that the counsels should try to be relevant and unnecessary repetition of arguments should be avoided. He said the whole work of the court was suspended due to the present case.
Chaudhry Farooq, the counsel of Mr Shah, said that on the last hearing the petitioner had apprehended that the judges of the court would be asked to take fresh oath under the PCO and his apprehensions proved to be true. He said the PCO (1) of 1999 and subsequent orders were unconstitutional, having no force of law. The chief justice asked the parties to avoid mud-slinging, and added that: "we will perform our function without intimidation." He observed that the bar and the bench were integral part of the chariot of justice. He said his effort was to save the system and referred to the decisions of the Chief Justices Committee. The counsel said: "Pakistan was a gift of our forefathers, but unfortunately the rule of law had been interrupted at regular intervals. In its total life, Pakistan had suffered military rule for 30 long years".
He said the government in its reply to the petitions had said that the elections of Feb 3, 1997, were farce. The elections in which PML obtained heavy mandate were monitored by the observers across the globe, he said, and added the armed forces were employed to supervize the elections. On the court's query, Barrister Khalid Anwar stated that 36 per cent of voters used their right of franchise in the 1997 elections. Chaudhry Farooq said if the government of Khawaja Nazimuddin would not have been dismissed, the fate of Pakistan would have been different. He said Pakistan was created with the force of vote and not through any military operation. "Both citizens and soldiers are subject to Constitution alike."
Referring to Article 6 of the Constitution, he said abrogating the Constitution was treachery with the country. When he stated that the respondents had not replied to the Politicians in power try to be dictators: CJ challenge he raised in the petition, the chief justice observed that the counsel was trying to be hyper technical. The CJ made it clear to the counsel that notice of the case to the chief of the army staff was there. The counsel said he was firm believer that the Kafir (infidel) could not be a friend of Muslim and Hindus being Kafir could not be trusted. When the counsel referred to a judgment from the Indian jurisdiction, the court asked him not to cite Indian judgments in the present case. When the counsel started reading an old judgment from Pakistani jurisdiction, the chief justice asked the counsel to first read the speech of the chief executive in which he had spelt out the reasons which forced him to come into power. The counsel was still reading the speech of Gen Musharraf when the court rose to assemble again on Thursday (March 2). Politicians in power try to be dictators, says CJ Bureau Report DAWN WIRE SERVICE Week Ending : 4 March 2000 Issue : 06/10 http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/2000/mar04.html#poli