Sunday, October 19, 2008

Judiciary in Pakistan - 6

Nawaz Sharif and Asif Zardari S' FILTHY Baggage of the Past:


On the evening of 17th April 1993, Mian Mohammad Nawaz Sharif addressed the nation on TV and radio. It was an emotional address wherein he alleged, inter-alia, that disgruntled political elements were working against his government, hatching conspiracies to destablize it and trying to undo all the good work he was trying to do. All this, he alleged, was being done under the patronage of the President of Pakistan. He ended his speech with the following challenging words: "I will not resign; I will not dissolve the National Assembly and I will not be dictated."

Barely 24 hours after this challenging address was delivered, President Ghulam Ishaq Khan called a press conference on the evening of 18th April 1993, to declare that the speech of the Prime Minister and other acts of his government had convinced him that the government of the federation could not be carried on in accordance with the provisions of the constitution. The President also cited "maladministration, corruption, and nepotism and espousal of political violence", in dismissing the Sharif government. The President appointed Balakh Sher Mazari as the interim Prime Minister.

After the dismissal of Nawaz Sharif, for a brief period Benazir Bhutto became the most influential person in determining the composition of the caretaker cabinet during April-May 1993. In the caretaker government, not only Asif Zardari as Benazir's husband was included, but sons of some of the Sindhi leaders as well as the son-in-law of the president were included. Even the supporters of Benazir criticized her bitterly for unwholesome influence of her husband. Thus, a Pakistan People's Party supporter complained bitterly, "This politics of husbands, sons, sons-in-laws and brothers is really sickening." [The Friday Times, May-6-12, 1993]

A week later Nawaz Sharif filed a petition in the Supreme Court challenging the dismissal order of the President. On May 26, 1993, a full bench of the Supreme Court gave an almost unanimous (10:1) verdict, holding that President Ghulam Ishaq Khan had acted unlawfully in dissolving the National Assembly and dismissing the Nawaz government. The Supreme Court announced: "On merits by majority (of 10 to 1) we hold that the order of the 18th April, 1993, passed by the President of Pakistan is not within the ambit of the powers conferred on the President under Article 58(2)(b) of the constitution and other enabling powers available to him in that behalf and has, therefore, been passed without lawful authority and is of no legal effect." The chief justice of the supreme court took the view that the president and not the prime minister had been instrumental in subverting the spirit of the constitution because "the president had ceased to be a neutral figure and started to align himself with his opponents and was encouraging them in their efforts to destablize his government." The Supreme Court decision itself, while open to criticism because throughout the proceedings it seemed as if the judges had already made up their minds,[The Herald June 1993] upheld the supremacy of the constitution besides narrowing to such an extent the scope of the president's powers under the Eighth Amendment to dissolve the National Assembly that in future a president impatient with an assembly will think hard before taking any action against it.[The Herald, June 1993]

The judgment demolished the myth of the President's over lordship of the National Assembly and the Prime Minister. The salient features of the Supreme Court's verdict can be summarized as under:[PLD 1993 SC]

a. The President, being a symbol of the unity of the country, is entitled to respect. It is contingent upon the President to conduct himself with the utmost impartiality and neutrality. Their Lordships concluded that President Ghulam Ishaq Khan had ceased to be a neutral and had aligned himself with the elements which were trying to destablize the Nawaz government.

b. The Prime Minister was neither answerable to the President nor subordinate to him.

c. The only way open to the President under the constitution for deciding whether the Prime Minister does, or does not command the confidence of the majority of the member of the National Assembly is by summoning the National Assembly and requiring the Prime Minister to obtain a vote of confidence from the Assembly. Any other method adopted for achieving the object, for forming an opinion, and for giving effect to it is impossible.

d. The allegations of corruption, maladministration, and incorrect policies being pursued in matters of financial, administrative, and international affairs, are independently neither decisive nor within the domain of the President for action under Article 58(2)(b) of the constitution. These are wholly extraneous and cannot sustain the impugned order.

e. The advice of the Prime Minister is binding on the President.

f. In formulating the policies of his government the Prime Minister is answerable to the National Assembly alone.

g. In the matter of appointing the services chiefs, the President is empowered to appoint in his discretion only the Chairman, Joint Chiefs of Staff Committee.

However, Justice Sajjad Ali Shah, the only Sindhi judge of the Supreme Court in his dissident verdict pointed out that two Sindhi Prime Ministers, before this, were dismissed under the same article of the constitution, but the Supreme Court upheld the decision. However, when it was the turn of a Prime Minister from the Punjab then the tables were turned and the assembly as well as the government was restored. The dissenting judge added, "indications were given that the decision of the court would be such which would please the nation...In my humble opinion decision of the Court should be strictly in accordance with law and not to please the nation."

The verdict of the Supreme Court was, indeed, an indictment of the President by the highest judicial forum of Pakistan. In fact, this was the ultimate insult for a man who in all his life had never tasted defeat, and certainly not at the hands of a person, who until yesterday, was regarded as his protégé. A brief statement issued from the Presidency the same evening declared that the president was going to honor the verdict of the court. However, the President had other plans. Instead of packing his bags and putting a voluntary end to his long stint in public office, the president decided to strike back. Within three days of the verdict, the president's men went into action in Lahore and succeeded in dissolving the Punjab Assembly. A day later, the NWFP Assembly was also sent packing. And if this was not enough, a vote of no-confidence was subsequently moved against the Chief Minister of Sindh.

The Supreme Court verdict had clearly not resolved the political crisis in the country. The renewed confrontation was assuming threatening proportions, with the newly inducted caretaker governments in the Punjab and NWFP very serious in their attempts to restrict the writ of the central government to the federal limits of Islamabad. Ironically, Nawaz Sharif himself had once attempted this gambit when, as the Chief Minister of the Punjab, he had, tried to confine the authority of the then prime minister Benazir Bhutto, to the federal capital. The continued confrontation between Nawaz Sharif and Ghulam Ishaq Khan polarized Pakistani politics and threatened to undermine government institutions.

After waiting in the wings through a political crisis of epic proportions, the army finally decided to emerge from the shadows and take its traditional role in politics. Directly or from behind the scenes, the country has been ruled by the army for most of its half a century history. On this occasion, however, the military top brass had to decide the fate of a prime minister who, unlike his predecessors, stood on the same power-base as the army, and had continued to derive his support from an extremely influential section of the so-called establishment.[The Herald, July 1993]

Corps Commanders met on July 1, 1993 to discuss three options:

the imposition of martial law;

asking the president to again dissolve the assembly and

call for fresh elections; and

requesting the prime minister to advise the president to dissolve the House and call snap polls.

The conference decided on the third option and General Abdul Waheed told Nawaz Sharif the same day, that fresh elections were a possible answer to the prevailing crisis. Finally, under a compromise brokered by the military, both the President and the Prime Minister resigned in July 1993. Wasim Sajjad, who was serving as Senate Chairman was appointed interim President, in accordance with the constitution. According to the U.S. State Department, the Pakistani political leaders and the chief of army staff were kept under pressure during the negotiations to ensure that the country did not come under martial law.[M.H. Askari - The new political order - Dawn 21.7.93]

The army's role in the 1993 crisis has been rather different from what it was at the time of the past two dismissals. In May 1988, when Prime Minister Mohammad Khan Junejo was removed, the then President General Ziaul Haq was himself the army chief. Later when Benazir Bhutto's government was removed in August 1990, General Aslam Beg and the rest of the army leadership was as much involved in the act as the president. This time, however, the army's involvement has been limited to a passive support for the president's action, who also happens to be the supreme commander of the armed forces. It was not without reason that, on the night of the dismissal, Ishaq Khan made it a point to mention that his real differences with Nawaz Sharif had started when the latter objected to the appointment of General Abdul Waheed as the new army chief.[The Herald May 1993]

Nawaz Sharif was the real loser in the power struggle, but for this he has to largely blame himself. It was his ambition to acquire absolute and unchallenged political dominance which in the first instance, led him to work towards the annulment of the Eighth Amendment and incidentally, make his first conciliatory gesture towards the opposition and the PPP. He failed to realize that if the Eighth Amendment provided unchecked discretionary powers to the President, something that was contrary to the true democratic spirit, the opposition would not concede the Prime Minister's usurpation of the same. He banked too much on his strength in the National Assembly and became oblivious to the fact that this strength was not seen as entirely legitimate by the opposition.

Ghulam Ishaq Khan was also a major loser in the end-game. When he took over as the President in August,1988 after the death of General Ziaul Haq, he was looked upon as something of a savior. People even decided to ignore some of the proverbial skeletons in his cupboard -- e.g. his proximity to General Zia, for instance. Yet, towards the last phase of his tenure he became a manipulative old man encouraging palace intrigues, motivated by his own personal whims and fancies.

Like his predecessor, Nawaz Sharif's two and half years rule was marred by deteriorating law and order situation, particularly in the Sindh province, economic mismanagement, financial scandals and political vindictiveness. Sharif's ally in Sindh, Chief Minister Jam Sadiq Ali, launched a reign of terror against his opponents. During Sharif's tenure, Asif Ali Zardari remained in jail for alleged involvement in criminal and fraud cases. Six references were filed by President Ghulam Ishaq Khan against Benazir Bhutto in Special Courts regarding misuse of authority.

The lack of transparency in his much-publicized privatization policy was glaringly obvious. The work of Privatization Commission, headed by Lt. General Saeed Qadir, was a mixture of deviousness and bullheadedness. Charges of favoritism and insider dealings made a mockery of the whole process. No sooner was a deal concluded than it became mired in controversy. And yet privatization was being hailed as the government's major accomplishment.

At every level, he continued to create illusions. The National Finance Commission Award and the Indus Water Apportionment Treaty are two living proofs of these illusions. In the case of the former, he promised the provinces more money than he could deliver and in the later, he gave the provinces more water than could possibly be taken out from the Indus Basin system, given the existing irrigation network.

After taking over the reigns of government, the Interim Prime Minister, Moeen Qureshi, roundly criticized Nawaz Sharif for draining the country's foreign exchange reserves. He accused his predecessor of wasting as much as five billion dollars in only 18 months. Breaking down this figure, he revealed that the Sharif government had borrowed two billion dollars from foreign commercial banks on high mark-up, consumed another two billion out of private foreign exchange accounts, and more or less, threw away another one billion dollars in sponsoring his much-publicized yellow cab scheme. In addition, the Nawaz Sharif government allegedly printed currency notes worth nearly 20 billion rupees without obtaining prior clearance from the State Bank, or making any allowances for the country's gold reserves level.[The Herald, Nov. 1993]

On the economic front, all his decisions were taken by the dozen-odd committees operating directly from the PM's house. The cabinet, and even parliament, were completely bypassed. A notification reduced the duty on steel scrap from Rs. 1500 per ton to Rs 500 per ton. It was a blatant exercise of the misuse of public office for private ends, whereby the state exchequer was deprived of approximately Rs. 500 million while saving the PM's family-owned business Ittefaq Foundries 378 million rupees.

His domestic politics revolved around high-profile visits to poor people's homes, but he would not touch his friend General Abdul Majid Malik who owned the National Industrial Cooperative Finance Corporation, the eight billion-rupee cooperative society whose collapse left more people destitute than could even benefit from Sharif's transport scheme. He also allowed his personal business empire to borrow money from the co-operative societies, knowing fully well that it was wholly illegal to do so.

The plundering of the cooperative societies by the IJI politicians, culminated in the Credit Loan scandal, as a result of which some politicians robbed the national financial institutions over Rs 29 billion. The failure of the National Industrial Cooperative Credit Corporation and other cooperative societies was probably the biggest financial debacle in the history of Pakistan, affecting as many as two million depositors, many of them had their life savings in the cooperatives. Ittefaq Group was also accused of being involved in the cooperatives scam scandal since it took a loan of 520 million rupees from the co-ops. However, a Commission of inquiry -- headed by a judge, Afzal Lone who was elected unopposed on PML ticket to the Senate in March 1997 elections -- absolved the group from any responsibility in the co-op crash since the group had returned the money along with Rs 130 million interest.

The case of the co-ops is not as simple as that and the terms of reference for the Lone Commission were not sufficient to crack open the case in detail. The Lone Commission was only required to determine whether the two business groups, Ittefaq and the Chaudhrys' were responsible for the co-op crash or not. Of course they were not, but Mian Nawaz Sharif, along with President Ghulam Ishaq Khan, Ms Benazir Bhutto, the Governor of the State Bank and all the federal and provincial finance ministers between 1985 and 1990 are guilty of ignoring and even abetting a gross violation of the Co-operative Society Act of 1925, under which most of the co-ops were registered. These cops were allowed to conduct illegal banking business by all the governments which came to power between 1985 and 1990. In the case of Mian Nawaz Sharif, the responsibility increases manifold because he allowed his own family concern to borrow from these co-ops while he was in power, when he was legally and morally bound to check the activities of these co-ops. Ms Benazir Bhutto is no less guilty as her own finance minister owned one of the five top co-ops while her government was in power.[The Herald June 1993]

The government of Nawaz Sharif took exceptional pride in the enforcement of abstract concepts. The enforcement of the Shariah Act of 1991 was very much publicized and conscious efforts were made to induce the intellectuals to support this undertaking. The Shariah Bill was criticized by many thinkers, jurists, lawyers, philosophers, academicians and nationalists as unconstitutional and un-Islamic. It was a bill moved by fundamentalists, which was meant to strike at the roots of democracy. The passage of the bill did not fulfill the needs of the people. It did provide Nawaz Sharif with a pretext to claim "another promise fulfilled." [Politics of Self-Aggrandizement by Dr. S. M. Haider, The Frontier Post, Peshawar, 10.5.1993]


Vendetta and revenge has always been the part of Pakistan's politics. But this time, while launching a systematic and ruthless campaign against its opponents, the PPP government succeeded magnificently in politicizing the judiciary and to that extent curtailing its independence. Following normal practice, when Dr. Nasim Hasan Shah retired as Chief Justice of the Supreme Court, Justice Sa'ad Saud Jan should have rightly taken his place. But he was superseded by Justice Sajjad Ali Shah, who ranked third in seniority.

The United States 1995 Human Rights report on Pakistan[Dawn 7.3.1996] described the judiciary as "not independent in reality." The part of the report on independence of judiciary was blunt and hard-hitting as it gave details of how the courts were influenced. "The constitution provides for an independent judiciary but in reality, however, the judiciary is not independent. Through the President's power to transfer high court justices and appoint temporary and ad hoc justices, the executive branch is able to influence the Supreme Court, the provincial high courts, and the lower levels of the judicial system."

"It has become a standard practice to appoint judges to the high courts and Supreme Court on temporary basis for a period of one year and later confirm or terminate their appointments after an evaluation of their performance. Legal experts say that temporary judges, eager to be confirmed following their probationary, tend to favor the government's case in their deliberations. Judges in the Special Terrorism Courts are retired jurists, who are hired on renewable contracts. The desire to maintain their positions has the potential to influence their decisions.

"Despite the Government's promise to strengthen judicial independence, it took several measures to influence the court for political reasons. The Supreme Court heard the bail application and denied bail to an opposition Member of the National Assembly (MNA) in case where bail would routinely have been granted by a lower court. Mian Qurban Sadiq Ikram, special judge for the Court of Banking Offenses, was removed from the bench on July 31 (1994), a day after he granted interim bail to the father of opposition leader Nawaz Sharif."[Dawn 7.3.1996]

In its International Narcotics Control report for 1994, the United States alleged that there is corruption in various government departments of Pakistan, including the judiciary. The allegation was based on the assumption drawn from judgments in various cases. The report cited the case of Rafi Munir for tainting Pakistani judiciary as corrupt. "There were other incidents during the year as well, such as the release of Rafi Munir, which would seem to indicate corruption in the judiciary," it said.[Dawn 8.3.1995 ] The judicial system is on the verge of collapse and has come to the straits where it was ready to punish the innocent but most reluctant to punish guilty. [Statement of the Chairperson of Pakistan Human Rights Commission, Asema Jehangir, Dawn 29.1.1995]


On March 20, the Supreme Court, in a land mark judgment, held that the consultation with the Chief Justices of the Supreme Court and the High Courts, in the appointment of judges to the Courts "should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play." The Supreme Court also directed the federal government to appoint permanent chief justices in higher courts where at present constitutional functions are being performed by acting chief justices appointed by the government. The SC judgment also upheld the rule of seniority in respect of the appointment of high court chief justices. The Court struck down Article 203-C of the constitution, (which provided for the transfer of judges to the Shariah Court) an amendment made by General Zia, on the ground of conflict with Article 209.

On May 19, the Supreme Court returned a constitutional reference, filed by the president three days earlier, against the apex court decision, saying it had not been signed by the President as required by the constitution. On the same day the federal government filed a review petition against the Supreme Court decision. May 26, Supreme Court Judge Mir Hazar Khan Khoso announced his dissenting judgment which, inter alia, said that the President has the power under the constitution to appoint judges and that no time-limit can be fixed for filling in the permanent vacancies for judges in the superior courts. The Federal government withdrew its review petitions as the Supreme Court refused to change the bench. In an unprecedented move on June 13, the chief justices of the Supreme Court and four provincial High Courts ordered the sacking of 24 judges -- all of whom were appointed by the government. Benazir had balked at implementing that judgment and had
refused to sack the 24 judges.

As the deadlock continued between the Chief Justice Sajjad Hussain Shah and the Prime Minister Benazir Bhutto, over the appointment of judges to the superior courts, President Farooq Leghari, on September 21, filed a reference in the Supreme Court asking whether or not he could appoint judges to superior courts without the advice of the Prime Minister. In his reference, the president pointed out that the Supreme Court judgment had been partially implemented by the government and observed that some of the ad hoc judges of the high courts had resigned on the request or persuasion of the government. "It is a moot point whether these resignations constitute compliance with the Supreme Court judgment," the reference maintained.

President Farouq Ahmad Khan Leghari, on September 23, sent to the Speaker of the National Assembly and Chairman of the Senate messages, proposing suitable amendments in the laws enabling the president to consult the leader of the opposition and the chief justice of the Supreme Court in addition to the Prime Minister in appointing judges to the special courts adjucating corruption cases involving holders of public offices. He has also proposed amendments in the relevant laws enabling the Wafaqi Mohtasib to act as the prosecutor in the trial of these cases. The appointment of the Mohtasib would be done in consultation with the prime minister, the leader of the opposition and chief justice of Pakistan.

On November, 1996, Benazir Bhutto filed a petition with the Supreme Court challenging the dissolution of the National Assembly and dismissal of her government. The apex court twice returned her petition saying it is argumentative. On December 2, the court turned down Benazir's request for early hearing of her petition and takes up a similar petition filed by the NA Speaker Yousaf Raza Gilani. On December 14, the supreme court started hearing of several identical 8th constitutional amendment. On Jan 12, 1997, the court held that the 8th amendment was a valid part of the constitution and Article 58(2)b, giving power to the president to dissolve the National Assembly was a deterrent to the imposition of martial law in the country. The seven-member bench, headed by Chief Justice Sajjad Ali Shah, dismissed the petitions of Mehmood Khan Achankzai and five others challenging the validity of the 8th amendment. One day after validating the 8th amendment, the Supreme Court began hearing of Benazir Bhutto's case.

On January 29, 1997, only six days before the general elections, the Supreme Court rejected a petition by Benazir Bhutto to revive her government and upheld President Leghari's November 5, 1996 proclamation dissolving the National Assembly and dismissing Benazir's government. The majority decision of the apex court said "the presidential order contained enough substance and adequate material had been provided to conclude that the government could not be run in accordance with the provision of the constitution and that an appeal to the electorate had been necessary." Six of the seven judges on the bench upheld all the charges leveled by the president excluding the murder of Mir Murtaza Bhutto saying this issue was before a tribunal.

Justice Zia Mahmood Mirza was the only judge who said the presidential order was illegal and could not be sustained and the National Assembly and the prime minister and the cabinet stood restored. The seven-member bench was led by Chief Justice Syed Sajjad Ali Shah and included Justice Saleem Akhtar, Justice Fazal Ilahi Khan, Justice Zia Mahmood Mirza, Justice Irshad Hasan Khan, Justice Raja Aforesiab Khan and Justice Munawar Ali Mirza. Earlier the Supreme Court rejected Benazir's request to form a full court to hear her petition. [Dawn 30.1.1997]

The short order of the court said:

* It was not necessary that all the material should be before the president to form his opinion before the dissolution of the assembly as claimed by the defence lawyer Atizaz Ahsan. Partial evidence was enough for forming the opinion and that there was no harm if corroborative and supportive material was produced after the dissolution of the assembly.

* There was enough material in support of the president's charge that the government had failed to implement the Supreme Court decision in the appointment of judges case. The belated implementation of the apex court's judgment by the government was short of total compliance. There was adequate material to establish that the former prime minister had ridiculed the judiciary during her speech in the National Assembly.
* The government had moved a constitutional bill in parliament which sought to send a judge on forced leave if 15 per cent of the members moved a motion against him. It was meant to harass the judges of this court.
* The separation of judiciary from the executive was also delayed and executive magistrates were given judicial powers in certain matters which was against the spirit of the judgment.
* There was enough evidence to establish that the telephones of the judges and politicians were tapped and transcripts sent to the petitioner for reading.
* Adequate material had been produced in the court in support of the charges of corruption, nepotism and violation of rules leveled by the president against the previous government.
* In Nawaz Sharif's case the attorney general had conceded that the dissolution order was mainly based on the speech delivered by Nawaz Sharif on radio and television which was construed an act of subversion and that the session of the National Assembly was convened and the president thought it was meant to impeach him. It was in those circumstances that the dissolution order was not sustainable.

Commenting on the supreme court judgment, the former Chief Justice, Dr. Nasim Hassan Shah, the author of the only apex court judgment that revived a dissolved central legislature and restored a sacked prime minister said" that the 1993 and 1996 dissolution cases stood on entirely different footings. The attorney general's emphasis in the 1993 case was on the irreconcilable differences between the president and the PM as evidenced by Nawaz Sharif's speech of April 17, 1993. The conflict, according to the AG, created a constitutional deadlock that could only be resolved by the dissolution of the NA and removal of the PM. The Supreme Court held that dissolution order was based on an incorrect appreciation of the role assigned to the president and of the powers vested in him by the constitution.

"The Benazir Bhutto case was distinguishable because extra-judicial killings in Karachi had reached the level of state terrorism and corruption a magnitude that threatened the very security of the state.

"The government acted in violation of Article 190 of the constitution, which says all executive and judicial authorities in Pakistan shall act in aid of the Supreme Court. Instead of readily and honestly complying with the Supreme Court verdict in the Judges' case, the prime minister castigated the ridiculed it and implemented it reluctantly in phases. Then there was the allegation of wiretapping of state functionaries, which is also a violation of a fundamental right." [Dawn 30.1.1997]

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 Law of Nawaz Sharif:

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." [Dawn 31.5.1997]

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 Cell of Nawaz Sharif and his henchman Senator Saif ur Rehman [now in General Musharraf Camp]

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. [Herald - October 1997]

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. [Dawn - 8.2.1998]

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).

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 [Dawn - 13.2.1998] 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. [Dawn - 13.2.1998]

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.

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.

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.

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. ]

Nawaz Sharif and PML-N attacked Judiciary:

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.

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. [General Khalid Mahmud Arif, Working with Zia: Pakistan's Power Politics, Oxford University Press, Karachi, excerpts quoted in Dawn 23.4.1995]

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. [Article 15 of the PCO clearly stated that "all presidential orders of the CMLA, including other orders amending the (1973) constitution made by the president or by the CMLA, martial law regulations, martial law orders and all other orders made on or after the 5th day of July 1977 are hereby declared, notwithstanding any judgment of any court, to have been validly made by competent authority and shall not be called in question in any court on any ground whatsoever."]

Sajjad Ali Shah's [CJ SC Pakistan] 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.


The judiciary has given Nawaz Sharif little trouble since he sacked the Chief Justice of the Supreme Court, Sajjad Ali Shah, who took the president's side in an argument with the primer minister in 1997. Since then, the higher courts gave almost all decision on major issues in favor of the government that has shaken the public confidence in judiciary.

Here are some of the major decisions of the Supreme Court and High Courts that reflected judiciary's leaning towards the then PML-N/Nawaz Government government:

The Lahore High Court accepts (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 Mr 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.

Lahore High Court dismissed (March 2, 1998) a writ petition seeking a direction against the government for settling along the motorway the Pakistanis residing in the refugee camps in Bangladesh. Justice Khalilur Rehman Ramaday also prescribed a cost of Rs. 5,000 to petitioner Advocate M.D. Tahir for indulging in frivolous litigation. The court said what was the guarantee that agents of the Indian intelligence agency RAW had not entered the ranks of these people. It also said that it required a lot of money for settling these people in Pakistan when there was already a lot of poverty here.

The Supreme Court dismissed (March 19, 1998) as "frivolous" a constitutional petition challenging the 13th Amendment and ordered the petitioner to pay Rs. 10,000 as court expenses. The 13th Amendment had stripped the president of the power to dissolve the National Assembly and dismiss a government.

Lahore High Court rules (April 1998) that Ehtesab Commissioner has unlimited powers.

May 18 1998: The Supreme Court, in a majority (6-1)decision, upheld the 14th Constitutional Amendment that bars members of parliament to vote against their party's line or abstained from voting. The court held that Article 63(a) would bring stability in the polity of the country as it would be instrumental in eradicating floor crossing. However, the court ruled that an elected member should not be disqualified if he opposed the party's policies in public. In his dissident judgment, Justice Abdul Mamoon Kazi held that Article 63(a) was in violation of fundamental rights and thus was not enforceable.

A seven-member bench of the Supreme Court unanimously (July 28, 1998) upholds the imposition of emergency on May 28. However, it set aside the fundamental rights' suspension order of the same date.

The Supreme Court declines (Nov. 23, 1998) to take notice of the imposition of governor's rule on Sindh and observed that the federal government had the powers to impose governor's rule under Article 232 of the Constitution. "Restoration of peace in Karachi is of paramount importance and court cannot declare it (governor's rule) illegal as some individual or a party wants to do so," observed Chief Justice Ajmal Mian.

A nine-member bench of the Supreme Court unanimously (Feb. 17, 1999) declared the setting up of military courts for trial of civilians in Karachi as unconstitutional. However, the court clarified that its decision would not affect the sentences and punishment awarded and executed by the military courts as the cases would be treated as past and closed transactions. Two people convicted by the Military Courts were executed. The Supreme Court recommended that the military court cases should be transferred to special Anti-Terrorist Courts.

The Supreme Court indicts (March 1, 1999) seven persons including six ruling party legislators on the charges of contempt of court for storming the court building on November 28, 1997. The court however, withdrew show cause notices issued to the executive and police officers of Islamabad.

The Supreme Court acquitted (May 14, 1999) all ruling party legislators who were indicted on the charges of contempt of court for attacking the court building when proceedings against Prime Minister Nawaz Sharif were underway in 1997. The three-member bench, which decided the case, observed that though flagrant contempt of court was committed but showed its inability to convict the accused as the people had not given specific evidence against them. Lahore Bar Council leaders expressed their disappointment at the outcome of the contempt of Court case against the ruling party legislatures. They said that the contemners have admitted their guilt in their apologies. A conviction could have been based on their admission and the video film of the Supreme Court's own cameras. They said the SC verdict sets back the process of restoration of public confidence in the superior judiciary set in by the apex court judgements on emergency and military courts. On June 14, 1999, the Supreme Court reopened the rowdy-ism case and issued fresh notices to the Pakistan Muslim League, Attorney General and seven alleged contemners. A five-member bench of the Supreme Court, headed by outgoing Chief Justice, Ajmal Mian, converted a criminal original petition filed by Shahid Orakzai, a journalist, into an appeal against the decision of the three-member bench of the SC. Appeal hearing began on June 28, 1999.

The Supreme Court reserves judgment (May 19, 1999) on the petition of Air Marshal (retired) Asghar Khan regarding the distribution of funds by ISI among the political parties in 1990 elections. The case had originated from the letter of Asghar Khan which he had sent to the then Chief Justice Sajjad Ali Shah for appropriate action after reading the statements of General Naseerullah Khan Baber. Gen. Baber had informed the National Assembly that ISI had collected Rs. 140 million from Habib Bank which were distributed among different politicians before 1990 elections. Prime Minister Mian Nawaz Sharif is one of those politicians who received money from ISI in 1990 polls. However, the Supreme Court observed that it would confine itself to laying guidelines for the operation of the political cell of the ISI within the legal framework. About the distribution of the funds by the ISI, Justice Saiduzzaman Siddiqui, head of a three-judge bench, observed that it was "history" and the court was not concerned with it.

Commenting on the role of judiciary in Pakistan, the US State Department Human Rights Report for 1998 said: Judiciary is subject to executive influence, and suffers from inadequate resources, inefficiency, and corruption. Despite concerns about damage to the judiciary due to the December 1997 confrontation between the prime minister and the chief justice of the Supreme Court, there were several instances in which the Supreme Court showed a continued degree of independence, striking down draconian laws favored by the government, including limits on freedom of speech, elements of a controversial anti-terrorist law, and some restrictions on fundamental liberties imposed by the state of emergency declared in the wake of Pakistan's nuclear tests in May.

The outgoing chief Justice of the High Court of Sindh and judge-designate of the Supreme Court told a full court reference held in his honor on April 19, 1999, that confidence of the people in the judiciary had been shaken. He said it was a matter of concern that with the continuing degeneration of the moral fabric of society, the malady of corruption had afflicted the power judiciary too, which had been made the task of dispensation of justice all the more difficult and "has shake the confidence of the people in the courts."

On June 18, 1999, The Supreme Court accepted the government's plea that the country is not in a position now to honor its legal obligation of allowing free operation of FCAs. The Court held that Section 2 of the Foreign Exchange (Temporary Restriction) Act, 1998 was lawful of the constitution, subject to the declaration that the same did not confer any power on the federation or the State Bank to compel FCA holders to convert their foreign exchange holdings into Pakistani rupees at the officially notified rate of exchange, or to compel the said account holders to liquidate their FCA accounts in Pakistani rupees which foreign exchange holdings had been accepted by the respective banks as security against any loan or other facilities extended to them. The court expressed its concern on the improper utilization of foreign exchange deposits of the FCA holders by the successive government in breach of the solemn commitment given by the legislature. The court also said that the State Bank of Pakistan also failed to perform its statutory duty to protect the interests of the FCA holders.


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