ISLAMABAD: Hours after being indicted by the Supreme Court over a disputed contempt charge, Prime Minister Yousuf Raza Gilani seemed winning some moral support across party lines in the National Assembly on Monday before opposition leader Chaudhry Nisar Ali Khan jumped in to share the day`s honours by pulling off a unanimous, though belated, condemnation of a US Congressional hearing on Balochistan. The prime minister`s arrival during the early part of the question hour to louder than usual desk-thumping from the ruling coalition enlivened a dull house and then lawmakers from both the opposition and treasury benches went to him to shake his hand or say a few words of possible support in the case he has to fight in the apex court for not writing mainly to Swiss judicial authorities to reopen withdrawn money-laundering charges against his party`s dead and living leaders in cases instituted by their political rivals in 1990s. PPP-S chief Aftab Ahmed Khan Sherpao was the first opposition figure to walk to Mr Gilani`s to hug him — and later say he expressed his solidarity to the man who “conducted himself well in the court” รข€“ and then lawmakers of other parties, including some female members from the opposition PML-N, made a beeline to the prime minister`s desk during his brief stay in the house. REFERENCE: Moral support for Gilani, ire at US hearing in NA Raja Asghar http://www.dawn.com/2012/02/14/moral-support-for-gilani-ire-at-us-hearing-in-na.html Guilty? asks court; No, will contest charge: PMNasir Iqbal http://www.dawn.com/2012/02/14/guilty-asks-court-no-will-contest-charge-pm-offence-carries-six-month-jail-next-hearing-on-22nd-some-analysts-discount-disqualification.html
Intense U.S. pressure has forced Musharraf to resign from the army to keep his presidency, and he is soon to lift martial law. Still at issue is how free the election will be and whether Bhutto will take office with a large governing majority. When Musharraf still resisted Washington's demands last week that he end his state of emergency, I asked Bhutto how an election could be conducted under those conditions. Her message: "Elections under martial law cannot be free or fair." It remains an open question whether an election could still be rigged by Musharraf without martial law. He has appointed local electoral officials who will take orders. Twenty million names have disappeared from the national voters list, whose preparation was financed with U.S. aid. When this was discovered, the government said that anybody on the old list would be permitted to vote. But the new list is flawed, with millions of names repeated to permit multiple votes by individuals. All this attempts at least to minimize Bhutto's majority and force her into taking a coalition partner. Musharraf's efforts to keep Bhutto out have been orchestrated for two years by retired brigadier Ijaz Shah, who left Pakistan's Inter-Services Intelligence agency (ISI) to become the president's chief of civilian intelligence. The ISI, a state within a state, is aligned against Bhutto and would be at the heart of any vote-rigging. REFERENCE: Rigging Pakistan's Election? By Robert D. Novak Monday, December 3, 2007 http://www.washingtonpost.com/wp-dyn/content/article/2007/12/02/AR2007120201637.html
CNN: The Secret Bhutto File on Election Rigging in Pakistan
Courtesy: videocafeblog January 01, 2008 - CNN's report on the secret Bhutto file that accusses the Pakistani government of consipiring to rig the upcoming elections before her death.
Attorney General of Pakistan Malik Mohammad Qayyum Admits Rigging
Transcript
Leave Nawaz Sharif(PAUSE)....I think Nawaz Sharif will not take part in the election (PAUSE).... If he does take part, he will be in trouble. If Benazir takes part she too will be in trouble(PAUSE)... They will massively rig to get their own people to win. If you can get a ticket from these guys, take it (PAUSE).... If Nawaz Sharif does not return himself, then Nawaz Sharif has some advantage. If he comes himself, even if after the elections rather than before, …..yes…. REFERENCE: Audio - “Pakistan Goes to the Polls” http://www.hrw.org/legacy/audio/2008/urdu/pakistan0208.htm Qayyum ‘was aware of rigging plan’: HRW releases tape By Iftikhar A. Khan and Masood Haider February 16, 2008 Saturday Safar 08, 1429 http://archives.dawn.com/2008/02/16/top6.htm Pakistan: Attorney General Aware of ‘Massive’ Election-Rigging Plans Audio Recording Calls Into Question Government’s Commitment to Fair Elections FEBRUARY 15, 2008 http://www.hrw.org/news/2008/02/14/pakistan-attorney-general-aware-massive-election-rigging-plans
London-based Brad Adams, director Asia region-HRW, was asked by The News to comment on Malik Qayyum’s view that the release of the audio just two days before the elections was a conspiracy. Brad replied that his organisation had got this audio recording some three days back and as being an international NGO, it had first confirmed the voice signatures of Malik Qayyum and then tried its best to contact him for his version. Brad, however, refused to mention or give any hint regarding the source from which it had taken the audio. Tom Malinowski, Washington advocacy director of HRW, when asked by The News that whether his NGO had got this recording from some of its staff here in Pakistan or from some intelligence agency, said that he could not speak about the source. To a question that Pakistani government sees the release of the recording as a conspiracy, he said: “Its silly to talk like that, the government should feel sorry what it has planned for elections.” Malik Qayyum told The News that HRW did not take his version and that it did not know about the identification of the person to which he was talking, which automatically raised questions about the authenticity of the recording. REFERENCE: Malik Qayyum in new row over rigging By Muhammad Ahmad Noorani AG caught on tape again; denies HRW report Saturday, February 16, 2008 http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=12981&Cat=13&dt=2/17/2008 http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=12981&Cat=13&dt=2/17/2008
Arshad Sharif Exposes Swiss Case of Asif Ali Zardari - 1 (KYUN Duniya News 13 Feb 2012)
http://www.youtube.com/watch?v=a1AqxlJQM3g
Arshad Sharif Exposes Swiss Case of Asif Ali Zardari - 2 (KYUN Duniya News 13 Feb 2012)
LAHORE: Former prime minister Nawaz Sharif was annoyed over delay in the Lahore High Court’s decision in President Asif Ali Zardari’s case during his tenure, according to a transcript of conversation between Justice (r) Abdul Qayyum and National Accountability Bureau’s (NAB) former chairman Saifur Rehman, aired on a private news channel. The audiotape was provided by Senator Faisal Raza Abdi. The channel also aired a conversation between Pervez Elahi, Shahbaz and Justice Qayyum. Following is the transcript of the conversation. Justice (r) Abdul Qayyum: Your task will be done in a day or two. I had to request an adviser (Peerzada) for you. I told him that I am very ill and I have to leave abroad and I have asked him to end up the matter for my sake. Peerzada has told me that he will do it and it will be done. He told me that he would compensate for all the mistakes I have, adding that Mian Sahib (Nawaz Sharif) would be happy as well. REFERENCE: Audiotape reveals Sharifs manipulated verdict in Zardari’s case Daily Times Monitor Sunday, November 21, 2010 http://www.dailytimes.com.pk/default.asp?page=2010\11\21\story_21-11-2010_pg7_21
WAY BACK IN 2001
ISLAMABAD, Feb 4: The guilty verdict handed down to Benazir Bhutto and her husband by the Lahore High Court in 1999 in the SGS/Cotecna reference case was rendered highly suspect by startling disclosures made in a report published by a respected British newspaper on Sunday. Benazir's appeal against the verdict sentencing her to imprisonment for five years and nearly $10 million fine is coming up for hearing in the Supreme Court on Feb 26, 2001. Justice Malik Qayyum of Lahore High Court had allegedly announced a pre-written judgment in the case, the Sunday Times story revealed quoting tape recorded conversations between the judge and the former Law Minister, Khalid Anwer, the former chief of Accountability Bureau, Saifur Rehman and the former Chief Justice of Lahore High Court, Justice Rashid Aziz. The newspaper story has claimed that it had obtained the copy of a letter along with the tapes sent by an officer of the Intelligence Bureau (IB) to the President of Pakistan on Jan 29, 2001. The newspaper said that on being approached Justice Qayyum said he could not remember the conversations recorded by the IB. "I don't recall any such calls," he said. "I don't know anything about it."
Abdur Rahim, a deputy director in the IB, who said he was told to monitor the office, home and mobile phones of Justice Qayyum at the very start of the Cotecna case, has explained, according to Sunday Times story, that following a crisis of conscience, he had decided to send an affidavit and hour-long tape to the President, with copies to Gen Pervez Musharraf, the chief justice and others. The bugging allegedly disclosed that the former prime minister, Nawaz Sharif, was intent on securing Benazir Bhutto's conviction at any cost. Rahim is quoted to have said in his letter to the President that during the process he was astonished that the judge was being dictated to obtain a judgment of their choice against Benazir Bhutto and Asif Zardari by Khalid Anwer, Saifur Rehman and Justice Rashid Aziz. All the three men, Rahim alleged, were acting on the orders of Nawaz Sharif and the tapes allegedly showed that the judge was threatened with removal if he did not agree to conclude the trial quickly. According to Sunday Times Rahim was presently outside Pakistan and has appealed to the President for protection, saying he feared for his life and for his family. The tape transcript reproduced by the newspaper shows that Justice Qayyum even asked Saifur Rehman for advice on the sentence. "Now you tell me how much punishment do you want me to give her?" REFERENCE: UK paper's report on Benazir's conviction M Ziauddin DAWN WIRE SERVICE Week Ending: 10 February 2001 Issue:07/06 http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/2001/feb1001.html#ukpa
WHAT the publication of the Hamoodur Rahman Report did for the army, the Justice Qayyum tapes as revealed by the Sunday Times have done for the higher judiciary. We had a fair suspicion of what the Eastern Command did in 1971 but the message was really brought home by the details in the Hamood Report. So too with the judiciary. We all knew such things went on. But for the cameras to catch a revealing episode: this is the value of the Qayyum tapes. The light they cast throws in sharp relief the judiciary's feet of clay. Are the tapes genuine or doctored? There shouldn't be any doubts on this score because authenticity is writ large over them down to His Lordship Justice Malik Qayyum addressing Khalid Anwer, Nawaz Sharif's then lord chancellor, as "sir" and declaring himself to be his servant (khadim). Read the lines carefully. The tone and inflection are genuinely Pakistani. No one, not even a Booker Prize author, could have invented them. Need we be surprised by the audacity of the interference and the readiness of Justice Qayyum to oblige his interlocutors? Not really. Prolonged authoritarianism has taken its toll, even on judges sworn to uphold the cause of truth and justice. After all who appoints judges? The executive, acting in all cases through the law minister. Security of tenure (as in established democracies) encourages independence. Insecurity breeds pliant and sycophantic behaviour. It's nothing more complicated than this.
When Zia promulgated his Provisional Constitution Order in March 1981 some judges were asked to take the oath while others were dropped. The same happened with Gen Musharraf's PCO in 2000. A few judges were again quietly dropped. Civilian rulers have treated the judiciary no better, each one of them seeking pliant judges. Judges too have demeaned themselves by seeking small favours. Such a state of affairs hardly encourages independent behaviour. As for high court judges, the years have dealt more harshly with them. Although still attended with outward pomp, it does not stretch belief to imagine them sirring the lord chancellor of the day. For far too long has the judiciary sought refuge behind a narrow interpretation of the law of contempt. But the old barriers have broken down. Just as repeated military interventions have demystified the military, repeated invocations of the doctrine of necessity have damaged the judiciary. The ISI no longer commands the awe it once did. A similar fate has befallen the other holy cows whose shadow once fell on the county.
With regard to Justice Qayyum, moreover, these subtle considerations in any event do not apply. In the sacred precincts of the Lahore High Court he has enjoyed a special standing because of his identification with the personal problems of the Sharif dynasty. Anything affecting the family's interests has come to him for adjudication, almost as if he alone possessed the requisite delicacy to handle these matters. The division of the family's assets between its contending factions, cases involving the family's huge bank loans, and even the banking loans of Nawaz Sharif's principal errand boy, Saifur Rehman, were all attracted, as if by a powerful magnet, to Justice Qayyum's court and no other. This no doubt was the preferred style of the Sharifs, not only fashioning a personalized administration, with loyalists at key positions, but also arranging for a personalized form of justice. When their name was involved in the cooperatives' scandal of 1991, the Supreme Court judge selected to hold a judicial inquiry into the affair was Justice Lone who exonerated the Sharifs of any wrongdoing. Later, during Nawaz Sharif's second stint as prime minister, Lone became a PML senator.
Justice Qayyum (whose brother, incidentally, was a PML MNA) is a throwback to those interesting times. Small wonder if it was he who was chosen to be Benazir Bhutto's and Asif Zardari's principal nemesis. All the important cases against them were heard by him. To Justice Qayyum also belongs the triumph of reducing Benazir Bhutto to tears in open court, so zealous was he in the pursuit of justice. All this forms the backdrop to the tapes revealed by the Sunday Times. Justice Qayyum had been hand-picked to hear the cases against Benazir Bhutto because, as the contents of the tapes make clear, he was considered a loyalist who could be counted upon to do what was expected of him. And yet Nawaz Sharif not only kept the pressure on Justice Qayyum through Khalid Anwer and Saifur Rehman. He also ordered all of Justice Qayyum's telephones to be bugged, probably just to make sure that his zeal did not flag.
In this saga the then chief justice of the Lahore High Court, Justice Rashid Aziz, also makes a cameo appearance. He too carried word from the prime minister that the axe should fall swiftly on Benazir. What did Nawaz Sharif want? He had everything going for him. Benazir was no threat and wanted merely to be left alone. Why this obsession with vengeance? Benazir and Asif were no angels (we can say that again) but in having them prosecuted Nawaz Sharif was not seeking justice. He was pursuing a vendetta (just as Benazir was pursuing a vendetta when she had the Sharifs in the dock). None of the above, however, is surprising: not the fact that Justice Qayyum listened to Khalid Anwer and called him sir; not the fact that Saifur Rehman was acting as the prime minister's errand boy, after all this being one of his duties; not even Chief Justice Rashid Aziz's brief appearance. By Pakistani standards all this is fairly tame stuff. What I find surprising, although hardly distressing, is to see Khalid Anwer, erudition and all, to be performing the role of prime ministerial pressure-boy. Why did he have to do it? Hanging on to office (and worthless office at that) when Nawaz Sharif was having the 13th and 14th amendments raced through a pliant Parliament was bad enough. But holding a clock to Justice Qayyum's head and urging him, at the prime minister's bidding, to dispense justice fast is a reflection less on the hapless Justice Qayyum than on the learned Khalid Anwer.
Peter Mandelson is out of office in the UK on the basis of what to Pakistani ears would sound a quibble. Over here Khalid Anwer, who can quote Cicero and I daresay Demosthenes, is engaged in something far more serious and when caught out, takes refuge behind a lapse of memory. He does not remember having had such a conversation. Then goes on to say that even if such a conversation took place all he is alleged to have said is that the case should be disposed off quickly, which suggestion on his part was strictly in accordance with the requirements of the law. It is hard to say which is worse: the original sin or this prevarication? Anyhow, there is nothing in this whole affair which would really startle anyone even remotely familiar with the nexus between the judiciary and the founts of executive authority in Pakistan. The Nusrat Bhutto case which enshrined once again the doctrine of necessity; the hanging of Bhutto; the various judicial decisions validating Benazir Bhutto's dismissals from power; the one decision invalidating Nawaz Sharif's dismissal from power; the judges' revolt against Chief Justice Sajjad Ali Shah; the Supreme Court's inability to give any clear-cut verdict in the Supreme Court storming case (in which PML storm-troopers were involved); and the readiness of judges to abide by various provisional constitutional orders: these events do not constitute the judiciary's finest moments.
None of this makes the judiciary any worse than other institutions. It only goes to show that in the Turkish bath of Pakistani politics everyone is naked, including, let me say for the record, the press which too often has taken a self-serving view of where its true duty lies. In this humid arena there are no heroes, nor even any outstanding villains, great villainy requiring some qualities of head or heart. Read the transcripts of these conversations again and what comes across most strikingly is the mediocrity on display. Despotism being put to what uses? So much effort being expended to what end? REFERENCE: In this hammaam who is covered? Ayaz Amir DAWN WIRE SERVICE Week Ending: 10 February 2001 Issue : 07/06 http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/2001/feb1001.html#inth
IN a country that has witnessed so many political, financial and judicial scandals over the years, we ought to have become fairly shockproof by now. But as the recently published transcripts of the taped conversations between Justice Qayyum, ex-Law Minister Khalid Anwar and Nawaz Sharif's chief enforcer Saifur Rehman showed, there are some depths of depravity we had still not explored. The pressure applied by various powerful figures in Nawaz Sharif's government on the judge in the corruption case against Benazir Bhutto and her spouse is scarcely believable. In most countries, resignations would have been tendered, warrants of arrest issued and suo motu notice taken by the Supreme Court. Here, hardened as we are to the sight of the higher judiciary constantly bending to the will of the executive, all we are likely to see are a few editorials and articles plus a couple of weak denials by the actors in this new drama, and we will then sit back and wait for the next episode.
In his evasive defence, Khalid Anwer, once respected as an upright constitutional lawyer, said: "...I am alleged merely to have asked that the case be decided expeditiously in accordance with the provisions of the law." In the transcript, however, there is more than a hint of steel in the ex-law minister's words: "...But the gentleman [Nawaz Sharif] is very unhappy, because of the situation. There was discussion regarding this issue and I was wondering that a problem might arise. Now I am thinking if you could reach the final result within the outside limit of two weeks..."
In his letter to the president (said not to be received in the Presidency, but reproduced in The Sunday Times), Abdul Malik, the deputy director of the Intelligence Bureau, who had been given the task of bugging the High Court judge, has quoted from his tapes, and alleged that Justice Qayyum had discussed the sentence to be passed and confirmed that the judgment had been written before the defence had even concluded its arguments. Most Pakistanis would be ready to believe that this is not the first instance of blatant interference by the executive to obtain favourable judgments. However, reading the alleged words of those then in power reminds us yet again how precious a thing judicial independence is, and how its absence has shaped our tortured political history. Predictably, there have been proforma denials of varying degrees of conviction from Justice Qayyum and Khalid Anwar. Both claim to have no memory of any such conversations. However, the genuineness of the tapes can be easily established: everybody's voice has a specific and unique audio signature, and it would be a simple matter to compare the voice prints of the principal actors with the tapes made by the IB. Although tapes on their own are not normally accepted as evidence in our judicial system, the Supreme Court could order such a comparison given the magnitude of the can of worms opened under its nose.
Khalid Anwar has sought to cast doubt on the IB deputy director's motives by saying that if he had the tapes for two years, why has he chosen to release the tapes to the media now, merely three weeks before the Supreme Court is due to take up Benazir Bhutto's appeal against Justice Qayyum's judgment? She and Asif Zardari had been awarded seven-year jail terms each plus a huge monetary fine, including confiscation of their property in Pakistan. In his letter to the president, Abdul Malik has claimed that his conscience was shaken by the events he has described. Unfortunately, we have become too cynical to accept a "crisis of conscience" as a reason to stick one's neck out over anything. And the timing of this bombshell is too close to the hearing of the appeal to be entirely coincidental. In the murky world of Pakistani politics, we have to stir the muck below the surface in an attempt to get at the truth. Apparently, Malik and his family are currently abroad to escape official or political reprisals. Now flying off and living abroad takes a fair amount of money, and a deputy director in the IB is by no means well off.
One possibility is that the PPP discovered the existence of these tapes, and persuaded Malik to transcribe them and leak them to the press. In this scenario, he would have been promised a comfortable exile until the party returned to power and rewarded him suitably. However, knowing the PPP's unerring instinct to trip over its own feet, one feels the whole thing is too complex and subtle for the party's capability; indeed, it has all the hallmarks of an intelligence operation. Just supposing that with Nawaz Sharif out of the way and elections due next year, it had been decided at the highest level to do a deal with Benazir Bhutto to enable her to return to power. The first step needed would be to rehabilitate the ex-PM, and lift the ban restraining her from holding public office for ten years imposed by Justice Qayyum. This could be done by giving Benazir Bhutto's appeal before the Supreme Court greater substance. If the tapes are found to be genuine - and the Sunday Times would have been unlikely to print the transcripts if they had any doubts on this score - then a verdict of mistrial could well be the outcome.
Whatever the truth, Benazir Bhutto's claim to be a victim of a vindictive Nawaz Sharif and a pliant judiciary has been vindicated. Most of her supporters are hardly likely to make the distinction between the accuracy of evidence provided before the court and the judge's rush to pass a verdict under pressure. In the case in question, a wealth of documentary evidence, duly certified by a Swiss judge, was produced by the prosecution to link Benazir Bhutto and her spouse to kickbacks paid by the Swiss inspection company Cotecna. Had Nawaz Sharif not been in such a hurry to get a conviction, chances are that the judge would have reached the same verdict. As it is, the sudden appearance of the tapes has cast a doubt on the entire trial. Basically, Sharif's impatience with procedures and due process has proved to be a boon to his rival.
This can only be good news for Benazir Bhutto and her party. Suddenly, she has been rehabilitated in her supporters' eyes. Even non-partisan Pakistanis are beginning to doubt the validity of the charges against her. The biggest loser is the judiciary as public confidence in this crucial institution - never very high - has now hit rock-bottom. All eyes will now be fixed on the Supreme Court when it begins to consider Ms Bhutto's appeal later this month. REFERENCE: Rush to judgment Irfan Husain DAWN WIRE SERVICE Week Ending:10 February 2001 Issue : 07/06 http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/2001/feb1001.html#rush
Arshad Sharif Exposes Swiss Case of Asif Ali Zardari - 3 (KYUN Duniya News 13 Feb 2012)
Swiss Court Order to Close Case Against Zardari
http://www.scribd.com/doc/81592068/Swiss-Court-Order-to-Close-Case-Against-Zardari Courtesy: Mr. Arshad Sharfi (Dunya News)
Mr Khalid Anwer is a renowned 'Lawyer' and as per his Legal Firm Profile " Khalid Anwer & Co. is a premier law firm having a total strength of eleven lawyers in Karachi and associate firms in Lahore and Islamabad. It was formerly known as A.K. Brohi & Co. It is one of the oldest and most prestigious law firms in Pakistan." Everybody who know Pakistan History also know that "The Law of Necessity" was basically the brainchild of Late. A.K. Brohi who used this at the behest of General Zia/Jamat-e-Islami to commit the judicial murder of Zulfikar Ali Bhutto.Once again it is proven beyond doubt that Human Memory is very weak particularly of Jang Group/Kamran Khan when they discuss PPP/NRO/Zardari and that's what happen during a talk show on NRO with Legal Wizzard Mr Khalid Anwer
RAWALPINDI: Any case can be initiated against President Zardari under Section 4 of Article 248 of the Constitution, but neither the Supreme Court has mentioned it nor the media discussed it, said former Law Minister and constitutional expert Khalid Anwar on Wednesday. He was talking to Kamran Khan in Geo News programme ‘Aaj Kamran Khan Kay saath’. He said there should be no doubt that the Supreme Court’s decisions should be implemented. He said the government made a mistake by not implementing the short order of the SC. Now the apex court can take a suo moto notice on why the government didn’t act as the short order was announced a month earlier. Khalid Anwar said under the Constitution, the Supreme Court cannot issue notice to the president of Pakistan, but it can order the government to get the court verdict implemented. On this the government would apply in the court that the president has got immunity under the constitution, and the SC can issue a stay order in this regard after receiving the government’s application to review the decision. On this application the court will decide whether the president has got the immunity or not. REFERENCE: Any case can be filed against Zardari, says Khalid Anwar Thursday, January 21, 2010 News Desk http://thenews.jang.com.pk/top_story_detail.asp?Id=26800Thursday, January 28, 2010, Safar 12, 1431 A.H
http://www.jang.com.pk/jang/jan2010-daily/28-01-2010/main3.htm
Mr Kamran Khan/Jang Group/GEO TV/Mr. Khalid Anwer "conveniently" forget as to what the same Jang Group had published 9 years ago on the "Dirty Role of Barrister Mr. Khalid Anwer" and that news was published on 05-02-2001 on its front page.
"QUOTE"
LONDON: The ``Sunday Times`` has published transcripts of conversations in 1999 between top minions of the Nawaz Sharif government and a High Court judge hearing the case of PPP leader Benazir Bhutto, bugged by an intelligence official who later fled Pakistan with the tapes. The disclosure came from a senior Pakistani intelligence officer who has said in a letter to the president, obtained by The Sunday Times, that he was told to bug the Justice Abdul Qayyum`s phones. The bugging allegedly revealed that Nawaz Sharif, the former prime minister, was intent on securing Bhutto`s conviction at any cost.
In Pakistan Justice Qayyum challenged the veracity of the tapes saying they could have been concocted or doctored. He refused to comment on the merits of the case as it was being heard by the Supreme Court but said he gave all decisions according to the dictates of his conscience and the requirements of the law. By coincidence, the judge who sentenced him to hang was Qayyum`s father. Since she left Pakistan the government of Musharraf has intensified efforts to track assets Bhutto is suspected of having acquired illegally. Many were received by Zardari, who is in prison.Transcript (I)
PA to Khalid Anwar: Is Justice Qayyum at Home?
Girl: Who is going to talk?
PA to Khalid Anwar: Khalid Anwar - the federal law minister - would like to talk.
Girl: Please hold on
Justice Qayyum: Hello!
PA: Please hold I`ll connect you with Khalid Anwar.
Khalid Anwar: Asalam-o-Alaikum
Qayyum: Salam-o-Alaikum, how are you sir.
Khalid Anwar: I rang you earlier but you were not at home. Where are you now?
Qayyum: I am in Lahore at the moment
Khalid Anwar: Frankly speaking, I have to discuss two, three issues which
Saif has discussed with me.
Qayyum: Who did?
Khalid Anwar: Saif Sahib has. I can`t talk clearly but in my opinion you would understand it. The fact is that I really respect you and also Saif Sahib does.
Qayyum: Yes, it is all right.
Khalid Anwar: Somebody [Nawaz Sharif]is unhappy over the delay of hearing of his case to Saif that nothing has been done so far and why has it not been concluded. In return Saif defended you and said there is no such delay. There should be no misunderstanding because he is trying his level best. But the gentleman [Nawaz Sharif] is very unhappy, because of the situation. There was discussion regarding this issue and I was wondering that a problem might arise. Now I am thinking if you could reach the final result within the outside limit of two weeks.
Qayyum: Apparently there is no problem we will have to complete the procedure. Cross-examination has been completed entirely. Now their statement under 432 has to be recorded.
Khalid Anwar: So get it done on Monday.
Qayyum: It is being done on Monday. After this we have to give them some time for defence evidence and then the matter will be closed.
Khalid Anwar: What we should do is to start the hearing day to day.
Qayyum: We were hearing it day to day but they have requested for two days time, as there are 356 documents. Now you tell me when we will have to fix the date for defence evidence, some time will be required.
Khalid Anwar: If you are giving them two days so after that you should proceed without any break and stay in Islamabad for the full week instead of two days so that this case is completed within two weeks.
Qayyum: I have been there nearly every day of the last two week.
Khalid: You should just take up this case for the whole week.
Qayyum: I am doing nothing else.
Khalid: I am the one who keeps on asking you all the time and by the Grace of God you have done a good job in banking cases. Whenever I meet the World Bank people you are... Last time you sent me a fax. I was in meeting so I showed it to everybody and said this is what you call performance.
Qayyum: Regarding this, when I come this time , I shall meet and tell you. Our Chief Justice is already there. I also told him that a slight delay is inevitable. For, example, if you ask them for defence evidence, then you will have to give them time, you just cannot say bring that tommorow.
Khalid: Kindly try that the work is done. And next time you call me so that we can have a quiet cup of tea.
Qayyum: I shall definately do it. But I had to tell that the others like me are nowhere close to me.
Khalid: I know how much I respect you.
Qayyum: By the Grace of God we shall conclude this very soon.
Khalid: Kindly do it because from reading between the lines I could gather that there is a lot of pressure on Saif.
Qayyum: No, no... I shall definitely do it.
Khalid: Thank you.
Qayyum: No, sir, I am at your disposal.
Khalid: Allah Hafiz
Qayyum: Thank you sir.
Transcript (II)
Saif-ur-Rehman and Justice Qayyum:
Saif: Aslam-o-Alaikum sir
Qayyum: Same to you. REFERENCE: `Nawaz put pressure to convict Benazir` By our correspondent http://www.chowk.com/interacts/4959
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"Ms Bhutto won a major court battle when a seven-member Supreme Court bench upheld her appeal, suspending the five-year jail sentence awarded to Bhutto and Zardari, and ordered a fresh trial into the Cotecna bribery case. The couple was accused of accepting millions of dollars in kickbacks from a Swiss firm. In addition to the jail sentence, the special accountability court headed by Justice Malik Abdul Qayyum had fined them 8.6 million dollars each and disqualified them from public office for five years. The Supreme Court ruling overturning the sentence did not come as a surprise after it was established that trial by the accountability court was manipulated. Bhutto’s legal position was strengthened after the disclosure of a taped conversation between Justice Abdul Qayyum and Saifur Rehman, chief of Mr. Sharif’s accountability cell. The sensational disclosure of 32 tapes which revealed that the judge was pressured to convict the former prime minister and her husband, left the superior court with no choice but to overturn the controversial verdict. However, the retrial order makes it apparent that the bribery charge has not been quashed. REFERENCE: The Judgement and After By Zahid Hussain May 2001 The Newsline [Monthly] http://www.newsline.com.pk/NewsMay2001/coverstory1.htm
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The Friday Times, Editorial by Najam Sethi, Feb. 15, 2001 - The Sunday Times of London has recently published a story that damns politicians and state institutions alike in Pakistan. The report suggests that an official of the Intelligence Bureau was ordered in 1998 by the head of the Accountability Bureau, Mr Saif ur Rehman, to tap the telephones of Justice Abdul Qayyum of the Lahore High Court (illegal order by politicians, illegal implementation by IB). The IB official later pocketed the tapes and decamped to London, eventually handing them over to the British newspaper. If true, the conversations between Justice Qayyum and Saif ur Rehman, Khalid Anwar (then law minister), Mrs Abdul Qayyum and others are fascinating because they reveal the political bankruptcy of the system and those who are elected or nominated to make it work. The tapes suggest that Justice Qayyum was bullied by the then prime minister Nawaz Sharif and his minions into convicting former prime minister Benazir Bhutto and her spouse Asif Zardari for corruption in 1998. This means that - irrespective of the substantial evidence laid against the two accused - the trial wasn`t conducted entirely in a free or fair manner as required by law. Ms Bhutto shrieked as much during and after the trial but critics, including TFT, dismissed her allegations against Justice Qayyum as inconceivable. Hence when the review petition comes up for hearing before the Supreme Court on February 26, the court will be hard put to choose between acquitting the couple or ordering a fresh trial. If it clings to a third option - upholding the verdict - it risks being tarred by the same brush.
The role played by each of the actors merits comment. Nawaz Sharif ordered Saif ur Rehman to bug the judge and Mr Rehman had no qualms in barking compliance to the head of the IB who did likewise to his subordinate staff. Everyone acted illegally down the chain of command. Mr Rehman, in particular, stands out like a sore thumb. He is earlier known to have boasted that the ``judges were in his pocket``. Apparently, Mr Sharif also leaned on the then chief justice of the Lahore High Court, Justice Rashid Aziz, to advise Justice Qayyum to do the needful or else. The Supreme Judicial Council needs to take a careful look at this allegation.
The law minister, Khalid Anwar, acted in a deplorable manner. What is wrong with asking a judge to hurry up, he asks. Nothing, if this is done in open court and in a transparent fashion. But it is immoral it if it is done amidst dire threats brandished by officials at the Prime Minister`s behest. Mr Anwar also claims that his government never authorised the IB to wire-tap the judges. Nonsense, says former chief justice Sajjad Ali Shah, who reports that when a bug was discovered on his phone, Mr Anwar advised him not to make an issue of it. We might also recall that this is the same gent who, as President Farooq Leghari`s council in 1996-97 in the Bhutto dismissal case before the Supreme Court, cited phone tapping of judges by the Bhutto regime as a major justification for her government`s ouster. Finally, there is the judge in the dock. By all accounts, a most competent and learned man, indeed one on whom undue reliance has been thrust by politicians and judges alike in politically sensitive or legally complex cases. But the tapes have compromised his position. He could try and ride out the vicious gossip or he could call it a day and quietly fade away. If he chooses the first route, the law would require him to face the Supreme Judicial Council and explain his situation.
One last matter. The timing of the revelations - just before the Supreme Court is scheduled to hear Benazir Bhutto`s review petition - and the dubious role of the IB Deputy Director (how has he suddenly acquired a conscience?) is thought to cast doubts about the veracity of the tapes and the allegations flowing from them. Not so. The tapes are authentic enough. If they weren`t, every one of the alleged culprits would have tripped over the others to sue the Sunday Times for millions of pounds in criminal defamation and the judges involved would have hauled up everyone in sight for gross contempt of court. Nor should it matter whether the spook in question received a hefty cheque or a promise of some lucrative posting in the future for allowing his conscience to get the better of him. The fact is that Ms Bhutto has cunningly exploited the counter-evidence at her disposal for maximum effect like a true politician who may be down but refuses to be out. This case could have far-reaching repercussions. It might give Ms Bhutto a new lease of life. It might stiffen the resolve of lawyers and politicians to agitate for democratic revival and accountability. And it might embolden the judiciary to redeem itself by standing up a little bit to the government. REFERENCE: Democracy in Pakistan: The Missing Link? The Friday Times, Editorial by Najam Sethi, Feb. 15, 2001 http://www.chowk.com/interacts/4948/1/0/a
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EVEN MORE DIRT FROM MR KHALID ANWER'S EXCELLENT LEGAL HISTORY
LETS HAVE LOOK AT HISTORY AS COMPILED BY MR. ABDUS SATTAR GHAZALI On the Golden Jubilee Celebrations of Pakistan, ISLAMIC PAKISTAN: ILLUSIONS & REALITY A comprehensive and detailed political history of Pakistan - The author is a professional journalist, with Master's degree in Political Science from the Punjab University. Started his journalistic career as a sub-editor in the daily Bang-e-Haram, Peshawar in 1960. Later worked in the daily Anjam and the Tourist weekly Peshawar. Served as a News Editor in the Daily News, Kuwait from 1969 to 1976. Joined the English News Department of Kuwait Television as a News Editor in December 1976. Also worked as the correspondent of the Associated Press of Pakistan and the Daily Dawn, Karachi, in Kuwait. At present working as the Editor-in-Chief of the Kuwait Television English News.
Excerpts from the book:
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NEW LAW TO CURB PRESS FREEDOM
Less than one month after taking power, the government of Nawaz Sharif, on March 10, issued "the Registration of Printing Press and Publication Ordinance, 1997" to curb the press and freedom of expression. Article 29 authorizes magistrates and low-ranking police sub-inspectors to interfere in the working of the Press and to initiate executive actions including the forfeiture of newspaper copies without the process of judicial review and restraint.
The ordinance says that the copies of newspapers or books can be forfeited if they publish any material which tend to incite willful obstruction to public servants or servants of local authorities in the discharges of their public duties. Any police officer or any other person empowered to seize and destroy the newspaper or magazine or book can do so after showing warrants issued by any first call or sub-divisional magistrate or any authorized police officer.
The ordinance also bars the newspapers from publishing any account of the proceedings of the National Assembly or the Senate or a provincial assembly if such account contains any matter which is not part of the proceedings of such an assembly and which is prejudicial to the maintenance of public order or is opposed to morality, or amounts to contempt of court, defamation or incitement for the commission of an offence.
The government has also been authorized to forfeit the copies of a newspaper if it contains any material which can incite to the commission of an offence or violence or amounts to false rumors, is critical of the creation of Pakistan, brings into hatred or contempt the government established under the law with the intent of causing defiance of the authority of such government.
The 13th Constitutional Amendment
At midnight on April 2, 1997, all rules and procedures of the parliament were suspended and in the middle of the night, the 13th amendment Bill was rushed through both houses, signed by the president the next day, and notified on April 4. By this amendment, the president was disempowered and the Prime Minister further empowered. The President cannot dissolve the National Assembly, he cannot appoint governors at his discretion but on the advice of the prime minister, the provincial governors cannot dissolve their assemblies, the president, though he remains supreme commander of the Armed Forces, no longer has the power to appoint or sack the services chiefs.
Rules dictate that a constitutional amendment is an extraordinary measure involving a great deal of deliberation on the part of the ruling party, consultation with the opposition, and an objective study of public opinion on the subject. Thereafter, according to the rules of procedure governing parliamentary proceedings under the 1973 constitution, a bill (other than a finance bill) upon its introduction in the House stands referred to the relevant standing committee, unless the requirements of Rules 91 and 92 are dispensed with by the House on a motion by the member-in charge. The standing committee is required to present its report within 30 days and, on receipt of this report, copies of the bill as introduced, together with any modifications recommended by the standing committee, must be supplied to each member within seven days. Two clear days then must elapse before the bill can be sent down for a motion under Rule 93.
Ever since Nawaz Sharif assumed power on Feb. 17, he had been apparently not feeling very comfortable with several developments. President Leghari forced him to give PML ticket for the Senate elections to his cousin, Mansour Leghari, who had contested the National Assembly on a PPP ticket and was defeated. The President appointed Hamid Shahid as the Governor of Punjab against the wishes of his brother Shahbaz Sharif, who happened to be the Chief Minister of the province. Gen. Moinuddin Haider was appointed the Governor of Sindh against the wishes of PML and MQM. The president was also reluctant to replace the Governor of Baluchistan, General Imaraullah Khan. At a parliamentary meeting PML MNAs demanded repeal of the 8th amendment in order to get rid of the presidential interference in day-to-day affairs of the government.
The 8th amendment had made more than 40 changes in the constitution. However, Nawaz Sharif opted to remove only those parts of the 8th amendment which were a potential threat to his government but has failed to touch those parts which pose a threat to society, particularly the weaker and disadvantaged sections like women and minorities. There are several constitutional and legal distortions created by the 8th amendment and several black laws, such as the Hudood Ordinances, under its protection which need to be removed. Thousands of innocent women are languishing in jails under the notorious Hudood laws. Some other article which deserve immediate attention and action by the parliament are:
1. Article 51(1) that was amended to establish separate electorate for minorities.
2. Article 51 (2)b that was amended to increase the age-limit for votes from 18 to 21 years.
3. Article 51(4) that abolished the reserved seats for women in the National Assembly.
The 14th Constitutional Amendment
Less than three months after this transgression, on June 30, in the Senate, the rules of procedure were again suspended, the 14th Amendment Bill went through like a shot, passed in less than a day, without one single protest or dissent being recorded. On July 1, the bill was presented to the National Assembly, again rules of procedure were suspended, and the bill was passed immediately, again without a single protest or dissent. It went up to the president, on July 3 he put his signature to the bill, and on July 4 the 14th Amendment Act of 1997 came into force.
This amendment admittedly has the aim of putting an end to lucrative defections. But 'lotaism' only existed because all our political parties were in the business of buying and selling bodies. However, that was not deemed to be sufficient. The Prime Minister had to be further empowered, and so he was. A member of a parliamentary party will also be deemed to have defected if he breaches any declared or undeclared party discipline, code of conduct or policies, or if he votes contrary to any direction issued by his parliamentary party, or if he abstains from voting as instructed by his party on any bill. The prosecutor, defense counsel, judge and jury who will decide the member's fate is the head of the party, whose decision is not justifiable in any court of law.
Ehtesab (Accountability) Law
The National Assembly, on May 29, 1997, amended the Ehtesab Ordinance to introduce major changes in the accountability process. The most significant amendment was the shifting of the starting date for accountability from the original 31st December 1985 (when General Zia lifted the martial law) to 6th August 1990 (when the first government of Benazir Bhutto was dismissed). The amendment also transferred the power of investigating charges of corruption from the Chief Ehtesab Commissioner to the Ehtesab Cell set up by Prime Minister Nawaz Sharif. "The Ehtesab Bill steam-rolled through the National Assembly makes a mockery of accountability. The amendments incorporated in the bill before it was presented in parliament for adoption render it an extremely flawed piece of legislation." (1)
BBC Documentary on Nawaz Sharif (PML - N) Corruption
Although the amendment excluded the first Benazir government from the purview of accountability but the exemption for the 1985-90 period is significant since it was during this period that Mr. Nawaz Sharif, in his capacity as the Chief Minister of the Punjab, was strengthening and consolidating his industrial and political base. At the time of passage of the Ehtesab Law, there were reports that there were 167 cases of major loan default which include 107 cases involving top leaders of the PML(N) who got the benefit of huge write-offs and rescheduling during 1985-1990.
The transfer of the power of appointment of the Chief Ehtesab Commissioner from the president to the federal government reduced the office of the CEC to a mere post office. The real power was transferred to the accountability cell in the Prime Minister's secretariat. The head of the Cell, Senator Saifur Rehman Khan, was accountable only to the PM. The amendment also extends ex post facto legal sanction to the PM's accountability cell, which was under attack in a number of writ petitions in the Lahore High Court.
The original ordinance had empowered the CEC to initiate a case on a reference received from the appropriate government, on receipt of a complaint or on his own accord. Under the new amended law, if the CEC deems a reference necessary, he must refer it to the accountability cell for investigation. With all the accountability functions and powers concentrated in a cell functioning in his secretariat, the prime minister will be able to keep a strict check not only on the opposition and the bureaucracy but on his own party-men also.
Ehtesab officials get SHO's power
The federal government, on Feb. 4 1998, amended the Ehtesab Act, replacing the name, "Ehtesab Cell", with "Ehtesab Bureau", and provided powers of an SHO to the chief of Ehtesab Bureau or any other official designated by him for the purpose of investigation. The amendments were introduced into the Ehtesab Act through a presidential ordinance, the first by President Rafiq Tarar, under clause 1 of Article 87 of the constitution.
The chief of Ehtesab Bureau or any officer designated by him will enjoy all the powers of an officer-in-charge of a police station. The chairman or designated officer will be empowered to require the assistance of any agency or police officer. The amended law provides indemnity to officials of the Ehtesab Bureau on acts deemed to have been done on "good faith".
By amending Section 3 of the Ehtesab Act, the government has again brought in the original definition of "corruption and corrupt practice". In the original Ehtesab Ordinance, corruption by a government official was defined as "favors or disfavors to any person." Through a subsequent amendment in the original Ehtesab Ordinance of 1996, the words "any other person" were replaced with the words "his spouse or dependents." The government has again restored the original meaning that any favor by a government official to other person other than his/her spouse or dependents would also fall in the definition of corruption, and he would be held responsible for that.
A reference made to the Ehtesab Bureau will now be treated as a report under section 154 of the code. After the reference of any case to the Ehtesab Bureau by the Ehtesab Commissioner, it would be an exclusive responsibility of the bureau to examine all the material, evidence and proof. No other agency will have a power to look into the matter. For the purpose of inquiry into any matter referred to the Ehtesab Bureau, the chairman and the bureau will have the powers of an officer in charge of a police station, including the power to ask any citizen to appear before it. Every government agency, police official or any other government official would be bound to assist the Ehestab Bureau in investigation.
After the amendment, the Ehtesab Bureau is also empowered to ask the Chief Ehtesab Commissioner to make a request to any court for the withdrawal of any case pending in a court. If the court grants the application, the case will be transferred to the Ehtesab Bureau.
The Chief Ehtesab Commissioner will have the powers at any stage of proceedings against an accused under the Ehtesab Act, to order the arrest of the accused. A reference to the court by the Chief Ehtesab Commissioner shall contain the substance of the act of corruption and corrupt practice alleged to have been committed by the accused. The amendment has provided a right of appeal to the Chief Ehtesab Commissioner if the Ehtesab bench acquitted any accused. Earlier this right was only with the accused. After the amendment, the Ehtesab Act provides that on the grant of pardon from the CEC, a magistrate appointed by the CEC himself will examine an accused.
What the Bureau now becomes is an independent investigating agency with teeth of its own and therefore not dependent, as it formerly was, upon the powers of the FIA. This may be a sequel to the turf war between Senator Saifur Rehman's Ehtesab machine and Ch. Shujaat Hussain's interior ministry, both of whom were vying for control over the FIA. The first and most striking change of course was to strip the original law of its neutrality and place the powers of investigation and prosecution firmly in the Prime Minister's Secretariat.
In Pakistan, the word 'accountability' has only one meaning: to malign and persecute political opponents. Glimpses of the full story can be culled from the report of the Mehran Bank commission along with the evidence provided by General Asad Durrani and Hameed Asghar Qidwai, as well as the jailed chief executive of the failed bank, Yunus Habib. (2)
Several references have been filed against the former Prime Minister and her husband but they are still far from having run their full course. The rest of the Ehtesab Bureau's record is even more patchy. The 87 senior bureaucrats suspended hastily amidst a blaze of publicity have still to see any firm action taken against them. Indeed, some of the more notorious faces in this crowd have either been let off completely or have been allowed to go abroad. Meanwhile, the list of bank defaulters is as long and potent as ever with hardly anything having been returned to the public purse. (3)
The annual 1997 Human Rights Report of US State Department said the Accountability Commission, established by the caretaker government and headed by a retired judge, had been overshadowed by an "accountability cell," headed by a close associate of the Prime Minister. This cell had been accused of conducting politically motivated investigations of politicians, senior civil servants, and business figures, designed to extract evidence and, in some cases, televised confessions of alleged wrongdoers. The report gave the examples of televised confessions extracted from Salman Farooqi, secretary of commerce under Benazir Bhutto; Ahmed Sadiq, Benazir Bhutto's principal secretary; and Zafar Iqbal, chairman of the Capital Development Authority. It said most politicians and bureaucrats, who had been charged with corruption or other crimes, were out on bail (in addition to murder, Benazir Bhutto's husband, Asif Zardari, had also been charged with corruption).
Anti-terrorism Act or a license to kill?
On August 13, one day before the nation celebrated 50th anniversary of its independence, the Anti-Terrorism Act was bulldozed through parliament without so much as a debate. The Act has justifiably been criticized by almost across the board, even from within the ranks of the ruling party and its coalition allies. Yet on the day that it was introduced in parliament, the ATA was endorsed within three hours. Its numerous critics maintained that the ATA turns the country into a police state and it violates the constitution. The ATA, in effect, gives the law enforcing agencies and army a license to kill as it empowers the police to kill a person on mere suspicion. It also empowers the police to search a house and arrest a person without warrant.
The ATA provides an appeal against the special court judgement to a government-notified tribunal consisting of two High Court judges. The High Court has now power of appeal against the special court decision. A person accused under the ATA cannot be freed on bail even by the High Court.
The judiciary also opposed the ATA and many feared that the law would be grossly abused. Punjab Chief Minister, Shahbaz Sharif, failed to convince Chief Justice Sajjad Ali Shah, on August 20, of the need to establish special courts under the ATA. The bar associations also condemned the law.
Adding to the credibility problem of the anti-terrorism law was the attitude of law minister Khalid Anwer who first surprised his colleagues by allowing the government to push through this piece of dubious legislation. Khalid Anwer then proceeded to distance himself from the ATA a few days after it was enacted. He even went so far as to declare that he would have opposed the law, had he been in the opposition. This was then followed by the claim that the law would be phased out once the situation was under control.
Six special courts started work in the Punjab province on August 25 while the special courts were established in the Sindh province on August 25. The critics fears came true when the police started sending cases to special speedy trial courts set up under the ATA. The Punjab Forensic Science Laboratory was reported under pressure from the government to issue 'positive results' about weapons used in cases being tried by the special courts set up under the ATA.
According to a press report (4) weapons used in more than 1,000 cases were sent to the Punjab Forensic Science Laboratory to ascertain whether or not they were used by the accused during the terrorist or sectarian act for which he was being tried. Interestingly, all the weapons tested positive with the experts, providing sufficient evidence for the prosecution to obtain maximum punishment for the accused.
These reports formed part of the evidence against the accused and on its basis as many as 55 people have been sentenced to death, including three sectarian accused. Some 32 people have been sentenced to life imprisonment or for seven years rigorous imprisonment.
Following the establishment of anti-terrorist courts police started sending cases of sectarian and terrorist incidents to these courts for speedy adjudication. However, in a majority of cases sufficient evidence was not available to establish the guilt of the accused and the government feared that the courts might acquit them.
The officials of the Forensic Science Laboratory were reportedly directed by the government to issue 'positive results' in all cases involving sectarian incidents. After every incident police collected shells of the weapons from the scene of crime. Whenever an accused was arrested, police claimed having recovered automatic weapons from his custody. In some cases the bullet shells collected from a crime scene years ago matched with the weapons recovered from the accused on arrest. It was ironic that some officials insist on matching the shells recovered from a scene of crime in 1990 with that of a weapon recovered from the custody of the accused in 1997. (5)
1997 Constitutional Crisis
The crisis with judiciary began in August 1997 when the chief justice recommended elevation of five named judges to the Supreme Court. On Sept. 5, the Supreme Court suspended a government notification to reduce the number of judges from 17 to 12. The federal government, on Sept. 16, withdrew its notification. However, from around August 20 up to the middle of October there was practically no other issue in contest -- publicly. And the resistance to the recommendation, in fact not-so veiled refusal to comply with it, was coming from Prime Minister, Nawaz Sharif and not the parliament.
Former Chief Justice Supreme Court of Pakistan, Syed Sajjad Ali Shah narrating details as to how Mian Nawaz Sharif and PML - N had attacked the Supreme Court of Pakistan in 1997.
Nawaz Sharif (PML - N) Attacked Supreme Court 1
On October 10, the aggrieved judges took the opportunity of a brief absence of Justice Sajjad from the country to call a full court review under the chairmanship of the acting chief justice. Justice Sajjad returns home in haste on October 13, calls off the full court meeting and transfers all dissident judges to the outposts of the apex court in Quetta, Karachi, Peshawar and Lahore.
Nawaz Sharif (PML - N) Attacked Supreme Court 2
Nawaz Sharif (PML - N) Attacked Supreme Court 3
The breach was now clearly in the open. The resentment of the dissident judges -- respected members of the judiciary -- must have been intense. The Chief Justice was master of the house, but a bitterly divided house. In an unprecedented move, on October 21, five honorable judges of the Supreme Court sent a letter to the President of Pakistan, to complain about the behavior of the Chief Justice of Pakistan and distance themselves from some of his actions. This letter was originally written to the chief justice, and later sent to the president. Never before in Pakistan's history had such an incident occurred.
Nawaz Sharif (PML - N) Attacked Supreme Court 4
Nawaz Sharif (PML - N) Attacked Supreme Court 5
On November 3, a petition of contempt of court is entertained by the CJ against the PM and his close associates. A charged atmosphere was super-charged by summoning the PM to appear in the court on November 17 and demanding the Speaker of the National Assembly to turn over the expunged record of the assembly proceedings. Yet, another breach of the assembly's privilege.
A three-member Supreme Court bench, headed by the then chief justice "directed the president" on Nov 20 not to give assent to the Contempt of Court (Amendment) Bill 1997, as under: "In the circumstances we deem it fit and proper to direct respondent No. 1 (President of Pakistan) in constitutional petition No. 4 43 of 1997 not to give assent, and if assent has already been given the operation of the Contempt of Court (Amendment) Act of 1997 is hereby suspended until further orders." There was no precedent, nor apparent ground in law, for the chief justice to prohibit the president's assent to that bill, and even less to rule the bill suspended if the assent had already been given.
The bill amending the law of contempt was innovative in that it provided for an appeal against a Supreme Court conviction for contempt, for automatic stay of the conviction, and for that appeal to be heard by another set of judges of the same court.
On Nov. 26, the Supreme Court, Quetta Bench, declared Chief Justice Sajjad Ali Shah's appointment in abeyance and the Prime Minister sends to president the name of the new Chief Justice for approval. This case was the strangest of the strange, indeed, one in which not only the little-known petitioners but even the federation stated that the appointment of Justice Shah by superseding three senior judges was illegal. The next day, a five-member Supreme Court bench annuls Quetta bench's verdict over CJ's suspension while; the Supreme Court Peshawar bench endorses Quetta bench's order.
The ruling political party was not far behind in ugliness when the party's rabble attacked the Supreme Court premises on November 28. It was one of Pakistan's saddest days. There is no doubt the disgraceful attack on the Supreme Court was completely premeditated.
On December 2, by suspending the 13th Amendment in a total arbitrary manner, the stage was set for the dismissal of the government of Nawaz Sharif. The grant of temporary restoration of the presidential power to dissolve the National Assembly (the repealed Article 58(2)b on the ground of a break-down of the constitutional machinery was obviously an act of desperation to prevent a feared collapse. It was virtually the last throw of the dice in a do-or-die game.
After weeks of machinations and Machiavellian scheming aimed at ousting Prime Minister Nawaz Sharif from power, the country's partisan president had finally to resign on Dec. 2. Mr. Leghari had never relished the fact that Mr. Nawaz Sharif should have taken away his powers to dismiss the government through the 13th Amendment. In fact, President Leghari and Prime Minister Nawaz Sharif both used the Pakistani judiciary to establish their personal authority. In this power game, Chief Justice Sajjad Ali Shah was very much with Mr. Leghari. But this power struggle could not be carried on because of the effective intervention of the Army Chief, General Jehangir Karamat.
Mr. Leghari apparently had ruthless dictatorial ambitions and was never content with the ceremonial role that he was constitutionally assigned. He dismissed the duly elected government of Ms Benazir Bhutto and came very close to dislodging another. He engineered an unholy alliance with Chief Justice Sajjad Ali Shah to carry out a constitutional coup and the Chief Justice was a willing ally in the conspiracy to subvert the people's mandate. Chief Justice Shah relentlessly attempted to provide Mr. Leghari the dictatorial powers under the Eighth Amendment to deliver the proverbial coup de grace to the Sharif regime.
Mr. Leghari had never relished the fact that Mr. Nawaz Sharif should have taken away his powers to dismiss the government through the 13th Amendment. In fact, the Pakistani judiciary was used both by Mr. Leghari and Mr. Nawaz Sharif to establish their personal authority. In this power game, Chief Justice Sajjad Ali Shah was very much with Mr. Leghari. But this power struggle could not be carried on because of the effective intervention of the Army Chief, General Jehangir Karamat.
When Justice Sajjad Ali Shah was removed from the office, on Dec. 2, the crucial issues pending before the Supreme Court were:
1. Contempt of court action against Nawaz Sharif and seven others.
2. Petition regarding the unlawful allotment of thousands of plots by him when chief minister of Punjab.
3. Petition regarding the unlawful ISI distribution of Rs. 140 million of the people's money to him and others.
4. Petition regarding award of wheat transport contract by him to his crony Saeed Shaikh.
5. Petition regarding his misuse of power in pressurizing banks to settle loan cases out of court.
6. Petition challenging his Anti-terrorist Act 1997.
7. Petitions regarding suspension of 13th and 14th Amendments. ]
Judiciary damaged
Victory of Prime Minister Nawaz Sharif has been at the expense of the Supreme Court of Pakistan and indeed superior judiciary as such. The SC judges have not held their image and prestige by becoming controversial. It is a settled principle that no writ will be issued by one judge to another. It was a pathetic spectacle to see two Supreme Court benches suspended the chief justice of their own court while the chief justice retaliated by recommending disciplinary action against all four of five judges involved. Repeatedly, order by one bench was overturned by another. Then political workers invaded the Supreme Court several times and abused the judges and indulging in violence. This was the darkest hour for the judiciary in the country. Gone were the days when it was universally respected as the cleanest and the most upright institution. Both sets of judges have been accused by their detractors of being motivated by personal and other extraneous considerations in their mutual bickering and tussle.
The irony of the crisis was that, eventually, it was not the executive that gave the final and, perhaps, fatal blow to the chief justice. It was his own peers who let him down. The very institution they wished to strengthen fell to the ground by their own actions. No one is left with any doubts that the judges are far from impartial.
The law and its traditions have since long become a fiction in courtrooms. The only difference this time was that the decay in the judiciary unfolded for all to see. The price paid by the superior judiciary is certainly very high. The crisis with judiciary have only served to confirm that, irrespective of how "stubborn" or "vindictive" a chief justice may be, he is no match against a government that excels in the art of wheeling and dealing. (6)
Nawaz Sharif has succeeded in achieving what General Zia set out to do when he was cut short by destiny. In fact, the late dictator could not have hoped for a more competent lieutenant. General Zia had no patience for independent judges and thought nothing of replacing the ones who did not agree with him. Sharif has demonstrated the same tendency and, as in everything else, has surpassed his mentor in achieving his objectives. The judiciary today lies in ruins, devastated by the kind of power politics that was once the domain of political parties. (7)
The repercussions of the rulings given in haste or in anger will long dog the course of justice. During the crisis, the people have seen the Alice in Wonderland spectacle where the judges pass the judgment first and hear the witnesses later. Inevitably the feeling has arisen that the superior courts exist only for the seekers and brokers of power while the ordinary litigants languish into generations before their cases appear on the "cause list" which appeared quickly and abundantly when political power was at stake. (8)
Why the Army did not intervene?
It was apparently failure of the army to sustain the president's position -- the presidents have always depended on the army for their actions against the government -- that President Leghari was forced to resign. Theoretically, in a Westminster-style democracy that this country has tried to emulate, there are four pillars of the state -- the legislature, the executive, the judiciary and the press. But our country rests imbalanced on five. The fifth pillar, the most powerful, the richest, the most organized, is the army which has governed Pakistan for half its 50-year existence. (9)
Fortunately, at present the chances of a direct take-over by the army seem remote because of economic factors and the international environment. There is a renewed emphasis on democracy worldwide in the aftermath of the Cold War and Pakistan cannot be immune to these global trends. Now it will be difficult for the Pakistani armed forces to sell a coup to the world in general and to the United States in particular.
Some political analysts believed that the army simply could not intervene for fear of a division within its own ranks. The army's involving itself in politics, at this stage, would have meant taking sides. Which would have made the army controversial and opinion within the forces would have strongly differed. That threat was all too real as numerous press stories had mentioned it. Therefore the fact that the army did not participate in political matters by siding with the president or anyone else and that he in fact refused to bail out the president and the CJP bespeaks the fear that the leadership had of the consequences of upholding any of them.
Moreover, Mr. Nawaz Sharif was no pushover like Benazir Bhutto was. It could legitimately be foreseen and feared that there would be a backlash in Punjab and the situation may not be easily controllable even by the army. And of course, there was the danger of the army being divided within itself. In fact the limits to army's political power have become visible even to ordinary citizens. (10) However, thanks to Prime Minister Nawaz Sharif, the turn of events - especially those in the third week of November - have, by default, made the army establishment's dream come true: It now has a much greater say in the affairs of the government without its concomitant responsibility.
According to the Washington Post, the army sided with Sharif today by making clear that it would not back President Leghari if he dismissed the prime minister. The Post reported that Leghari had informed the army chief, General Jehangir Karamat, that he intended to dismiss Nawaz Sharif and was drafting an explanatory speech. But General Karamat delivered a message of his own: The army would not back Sharif's ouster, in effect making any such order meaningless. (11)
Looming economic crises in Pakistan prevented the army from taking over control of the country during the current political crisis, according to the Times, London. "In another era the army would have taken over. This time, the looming economic crisis doubtless deterred it from dosing so, given the certainty that international financial institutions would have shunned a nation led by military dictators." The generals were bound to engineer the Prime Minister's survival because the only alternative was martial law, a fact that emboldened Mr. Sharif to take on two such important institutions. (12)
In a comment the New York Times said: Prime Minister Nawaz Sharif has won a constitutional battle with the president and supreme court chief justice, but he had to get the army's support to prevail. "The army behaved responsibly by insuring the continuation of an elected government. Still, it is discouraging to see the army remains such a powerful arbiter." Mr. Nawaz Sharif had become the most powerful Prime Minister since Zulfikar Ali Bhutto. (13)
According to the Financial Times, London, General Jehangir Karamat, the army chief, has intervened twice in the growing constitutional crisis, apparently in both cases to save Nawaz Sharif from premature downfall. On this occasion, Pakistan's military has chosen to side with an elected parliament rather than bring the tanks on to the streets. But the very fact that it took the chief of staff's interventions shows how qualified a victory it is for Pakistan's democracy and how politically important the military remains. (14)
Senator Tarar elected as President
Senator Rafiq Ahmad Tarar, a retired judge of the Supreme Court, was elected president on December 31, 1997. Amid speculations that the presidency would go to a smaller province since the Prime Minister and the Army Chief of Staff are from the Punjab province, the presidential race had narrowed down to Senator Sartaj Aziz and Acting President Wasim Sajjad when Prime Minister Nawaz Sharif dropped his bombshell: "Justice (retd) Rafiq Ahmed Tarar was to be Pakistan's next president. " Over the next two days, it became apparent that even Sharif's cabinet knew nothing about the decision while this unexpected announcement left many Muslim Leaguers bewildered.
For his remarks in press interviews against the judiciary, Justice of the Supreme Court, Mukhtar Ahmad Junejo, who also held the post of Acting Chief Election Commissioner, rejected Tarar's nomination on December 18. A petition was filed against Junejo's order in the Lahore High Court. Justice Qayyum admitted the petition on December 19 and suspended Junejo's order, allowing Tarar to "participate in the election provisionally subject to further orders." Justice Junejo was removed and replaced by retired Justice Abdul Qadeer Chaudhry as the Chief Election Commission.
It is no mere coincidence that he was on the Supreme Court bench that reinstated Nawaz Sharif as Prime Minister on May 26, 1993. Also casting a dark shadow on him is the referendum of December 1994 when, as a member of Zia's election commission, he solemnly assured the people that 55 per cent and not just five per cent of the electorate had turned out to confer legitimacy on Zia's dictatorial rule. Mr. Tarar also has to dispel the widely insinuated impression that he was involved in the "Quetta Shuttle" which divided the Supreme Court and wrote the saddest chapter in Pakistan's constitutional history. (15)
The selection of Senator Tarar as a presidential candidate was a surprise to all and not too well received by a broad section of society. The Prime Minister, of course, had his own reasons that he explained in his interview with the BBC. He said Senator Tarar was a patriot and a man of integrity and belonged to the middle class section of society. This could, of course, be said for millions of others as well. When asked why the presidential candidate was not selected from a smaller province as was being expected by the people, the Prime Minister said that such "petty matters" should not be given any consideration. The full participation by all the provinces in the federal decision-making process in Islamabad is essential for the unity and solidarity of the federation and is certainly not a "petty matter." (16)
LHC upholds Tarar's plea
The Lahore High Court accepted, on Feb. 9 1998, the constitutional petition filed by Rafiq Tarar against his disqualification by the (former) Acting CEC and declared him qualified to contest for and hold the office of President. The acting CEC, Justice Mukhtar Ahmed Junejo of the Supreme Court, had found Tarar, a former Supreme Court Judge, guilty of propagating views prejudicial to the integrity and independence of the judiciary at the time of his nomination as a presidential candidate under Article 63(G) of the Constitution and debarred him from the December, 1997 contest.
The short verbal order did not deal with the question of fact involved in the case - whether Tarar in his interview of the weekly Takbir of June 27, 1996, and statement to the daily Jang, Rawalpindi, of Dec 4, 1997, propagated views prejudicial to the judiciary. Neither before the acting CEC nor in the LHC did Tarar or his counsel categorically denied the allegedly contemptuous statements in their entirety.
Tarar's counsel, Barrister Ijaz Hussein Batalvi told the LHC that the interview carried by Takbeer did not fully convey the views of Tarar. In any case, Tarar was elected senator after the interview and was not debarred from the senatorial contest. The Jang interview did not refer to any judge as no judge left in disgrace on Dec 2. Besides, a penal action could not be based on newspaper reports. Again, a presidential candidate who is also a sitting member of parliament cannot be disqualified under Article 63. Article 41(2) says that a candidate should be qualified to be elected a member of parliament under Article 62 and disqualification under Article 63 cannot be read into it.
SC issues detailed judgment in Sajjad's appointment case
The Supreme Court on Feb. 9, 1998 issued detailed judgment on the petitions challenging the appointment of Justice Sajjad Ali Shah as the chief justice of Pakistan. The ten-member bench headed by Justice Saiduzzaman Siddiqui in its short order on Dec 23, 1997 had declared the appointment of Justice Sajjad as the CJ, illegal and unconstitutional.
The court in its 391-page judgment rejected the argument that if the appointment of Justice Sajjad as the chief justice was held unconstitutional; its application would be with retrospective effect. The court held that doctrine of de facto would apply to the appointment of Justice Sajjad as the chief justice of Pakistan till Nov 26, 1997, when a division bench of the Supreme Court restrained him from performing his administrative and judicial functions.
Abdul Hafeez Pirzada, the counsel for the former chief justice, had argued that if the appointment of Justice Sajjad Ali Shah as the chief justice was declared invalid, it would lead to serious consequences as except three judges of the Supreme Court - Justice Ajmal Mian, Justice Saiduzzaman Siddiqui and Justice Fazal Illahi Khan - the appointment of all the Supreme Court judges and a number of high court judges would become invalid as all of them were appointed by the president in consultation with Justice Sajjad Ali Shah who was then the Chief Justice of Pakistan.
The ten-member bench after discussing the doctrine of de facto observed: "the principle of de facto exercise of power by a holder of the public office is based on sound principle of public policy to maintain regularity in the conduct of the public business, to save the public from confusion and to protect the private right which a person may acquire as a result of exercise of power by the de facto holder of the office."
The court also dismissed the argument that the appointment of Justice Sajjad as the chief justice of Pakistan was a past and closed chapter after the apex court judgment in Judges case. Responding to the argument of Hafeez Pirzada that no judge affected by the appointment of Justice Sajjad as the CJ had objected to his appointment and they continued to function, the court said it was incorrect.
The court maintained that three judges senior to Respondent No 2 (Justice Sajjad) in spite of invitation by the president of Pakistan did not attend the oath-taking ceremony of Justice Shah as the CJ to express their resentment. Justice Saad Saood Jan, the senior most judge of the apex court who had legitimate expectancy to become the chief justice of Pakistan after the retirement of Justice Nasim Hasan Shah, the court observed, proceeded on leave for three months and until his retirement on June 30, 1996, spent most of his time at the apex court branch registry at Lahore. The court also referred to the speech of Justice Saad Saood Jan on the occasion of his retirement and a press statement issued by him, to show that he had resented his supersession by a junior judge.
Justice Ajmal Mian, another judge who was affected due to the violation of the principle of seniority in the appointment of the CJ, had also expressed his opinion on the appointment of a junior judge as the chief justice. The court referred to the two judgments in Al Jehad Case 1, and Al Jehad Case II, in which Justice Ajmal Mian had expressed his views on the subject.
Justice Ajmal Mian and Justice Saad Saood Jan did not surrender their right of legitimate expectancy to the office of the chief justice of Pakistan in favor of respondent No. 2, the court observed. "It must be borne in mind that judges of the superior courts by tradition maintain high degree of comity amongst themselves. They are not expected to go public on their differences over any issue."
The court observed that it was not expected of the superior court judges to litigate in courts like ordinary litigants in case of denial of a right connected with their offices as the code of conduct for the superior court judges enjoined upon them to avoid as far as possible any litigation on their behalf or on behalf of others.
It held that the principle of seniority in the appointment of the CJ since the establishment of the Supreme Court in 1956 was upheld. It was only violated in 1994 when the Respondent No 2 (Justice Sajjad Ali Shah), fourth on the seniority list, was appointed the chief justice of Pakistan.
The court rejected the argument of Hafeez Pirzada that no writ could be issued against a judge, the court held that judgments delivered by a judge or group of judges were the functions which were covered under Article 199(5) of the Constitution. "The difference between a judge acting as court and a judge acting in his personal and individual capacity is not only real but is necessary to preserve, otherwise a judge will not be answerable for wrong done by him in his individual capacity."
Action taken or orders passed by him in his capacity as a judge of the court cannot be brought under challenge under Article 199 of the Constitution but his action as ordinary individual would be subject to ordinary law of the land including Article 199 of the Constitution, it was maintained. When the appointment of a judge is challenged that he did not possess the qualification prescribed by the Constitution, the relator was not asking the court to strike down any of his action which he had performed or was performing as judge but was asking for examination of personal qualification. "We are therefore of the view that such an attack on the validity of the appointment of a judge of superior court through collateral proceeding is not proper remedy."
The court held that petitions challenging the appointment of Justice Sajjad Ali Shah as the chief justice were maintainable. The SC reacted to the objections raised by Justice Sajjad Ali Shah against six judges on the bench, accusing them of bias. The court rejected the objections. The court also rejected the objection to the presence of Justice Saiduzzaman Siddiqui, Justice Fazal Illahi Khan, Justice Irshad Hasan Khan, Justice Nasir Aslam Zahid and Justice Khalilur Rehman Khan on the bench hearing the petitions. The court also rejected the objection of bias against Justice Saiduzzaman Siddiqui that he was prejudiced against Justice Sajjad for the reason that he had recommended to the president to refer his (Justice Siddiqui's) case to the Supreme Judicial Council.
The Supreme Court converts 'charge sheet' against Nawaz Sharif into notice
A supreme court bench headed by Chief Justice Ajmal Mian agreed on Feb. 17, 1998 to treat as a mere "show cause notice" a "charge sheet" issued to Prime Minister Mian Nawaz Sharif by a bench headed by the former chief justice, Justice (retd) Sajjad Ali Shah, for alleged contempt of court. S.M. Zafar, counsel for Prime Minister Nawaz Sharif, took 90 minutes to persuade the court that the charge sheet issued to the prime minister was not a charge sheet as required under the law, and the court was still at the stage of "show cause notice".
When the proceedings started, Chief Justice Ajmal Mian observed that the previous bench had charge sheeted the prime minister, and the only question for the court to decide was what procedure to follow.
S.M. Zafar contended that no charge sheet had been "issued", but admitted that a charge sheet had been "drafted". He said unless a charge sheet was read out to an accused asking him whether he pleaded guilty or not guilty, there was no charge sheet. He said under rule 7 of the 1976 Contempt of Court Act, the attorney general had to act as a prosecutor, and it was his duty to read out a charge to an accused. He said no such thing had happened in this case, and the so-called charge sheet was handed down to representatives of the respondents at the office of the deputy registrar.
When the chief justice observed that a mere formality of reading out a charge sheet to an alleged contempt was not performed, the counsel for the prime minister stated that reading out the charge sheet to the accused was not a "mere formality", but an "essential formality."
Mr Zafar argued suspending the potency of the 14th Amendment through an interim order without hearing the Federal Government or the attorney general, had upset parliamentarians who raised the issue in the parliament and this necessitated an explanation by the respondent. He contended that by virtue of section 8 of the Contempt of Court Act, Chief Justice Sajjad Ali Shah, after having taken cognizance, could not proceed with the case. REFERENCE: Chapter X Nawaz Shrif's second stint in Office http://ghazali.net/book1/chapter_10.htm Nawaz Shrif's second stint in Office Page 2 http://ghazali.net/book1/Chapter10a/page_2.html Nawaz Shrif's second stint in Office Page 3 http://ghazali.net/book1/Chapter10a/page_3.html [Excerpts from ISLAMIC PAKISTAN:ILLUSIONS & REALITY By Abdus Sattar Ghazali]
1. Dawn 31.5.1997
2. Herald - October 1997
3. Dawn - 8.2.1998
4. Dawn - 13.2.1998
5. Ibid.
6. Herald - December 1997
7. Herald - January 1998
8. Saving judiciary from politics by Kunwar Idris - Dawn 28.12.1997
9. Fascism on the march by Ardeshir Cowasjee - Dawn - 7.12.1997
10. Prospects after the crisis by M.B.Naqvi - Dawn 15.12.1997
11. The Washington Post - 3.12.1997
12. The Times, London 3.12.1997
13. The New York Times - 7.12.1997
14. The Financial Times - London 7.12.1997
15. Kunwar Idris - Dawn 20.12.1997
16. Selecting the Head of State by Sardar F.S. Lodi - Dawn 25.12.1997
17. Colonial NWFP or Pakistani Pakhtoonkhwa? By Prof. Em. Dr Ahmad Hasan Dani [Frontier Post, Peshawar - 15-2-1998]
18. Ibid.
19. Ibid.
20. Ibid.
21. Ibid.
22. New hopes, old fears by M.B.Naqvi - Dawn 12.1.1997
"UNQUOTE"
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