Writing of history or triumph of amnesia? Islamabad diary Friday, August 07, 2009 Ayaz Amir
http://www.thenews.com.pk/daily_detail.asp?id=191800

“Historic”, we are being told — and told without end — is what the judgment of their Supreme Court lordships is. General (r) Pervez Musharraf’s Nov 3, 2007, action has been declared “unconstitutional” and “civil society” is ecstatic, some of our wilder drumbeaters assuring us that the doors on military interventionism have been closed forever. Ah, if wishes were horses.

The Supreme Court judgment not so much revises history as cuts it up, wrapping it in neat packages. For it declares only one action of Musharraf’s unconstitutional — his Nov 3 Emergency, which came at the fag end of his rule. The inescapable conclusion we are left with is that everything else the man did fell within the ambit of the Constitution.

Now what was Musharraf’s original sin from which flowed everything else? Why, his coup d’état of Oct 12, 1999, when his generals overthrew an elected government, disbanded the National Assembly, put the Constitution into cold storage and imprisoned not only the then prime minister but his closest colleagues and even members of his family.

Just as Adam ate the apple he wasn’t supposed to touch and as a consequences was expelled from Paradise, the apple which Musharraf plucked and put into his mouth was on the fateful evening of Oct 12, all those years ago, when he was in the air on a flight from Sri Lanka, while his generals — chief among them Usmani, Aziz and Mahmood — went about the removal of the elected government.

That was the mother of all sins. So how strange and dripping with irony this omission: about that seminal event, which set in train all the sorrows the nation was to reap thereafter, their lordships in their “historic” judgment have nothing to say.

For this of course we must understand the problems of the past. For in 2000, a few months after the mother of all sins, when this matter came before the then Supreme Court headed by Chief Justice Irshad Hasan Khan, the nation witnessed another of those electrifying performances which have made “the doctrine of necessity” so famous in our land, the Supreme Court validating Musharraf’s coup and, what’s more, allowing him a grace period of three years to hold elections. In its generosity, it also gave Musharraf the authority to amend the Constitution for purposes of holding elections.

So just as the Anwarul Haq Supreme Court gave a clean chit to General Ziaul Haq’s coup of 1977, another Supreme Court signed a papal bull conferring legitimacy on another illegitimate offspring of our political adventures.

Now for an inconvenient fact. On the bench headed by Chief Justice Irshad Hasan Khan there sat an up-and-coming jurist, stern of eye and distinguished of look, by the name of Iftikhar Muhammad Chaudhry. Yes, he was among the illustrious upholders of the law and the Constitution who bathed Musharraf and his generals in holy water.

Before that baptismal ceremony, Musharraf, following the example of military saviours before him, had issued another Provisional Constitutional Order (PCO) requiring judges of the high courts and the Supreme Court to take a fresh oath pledging obedience to the new order. A few difficult judges — among them Chief Justice Saeeduzzaman Siddiqui, Justices Wajeehuddin, Nasir Aslam Zahid, Mamoon Qazi, Khalilur Rehman, Kamal Mansoor Alam — spurned Musharraf’s PCO and promptly found themselves out in the cold. But a majority, preferring discretion over valour, thought it wiser to go along with the new order of things.

Among this lot — the original lot, that is — was Justice Iftikhar Muhammad Chaudhry. And it was from this PCO crowd, which saw no evil in wearing the robes of the judiciary under a usurping general, that the Supreme Court bench was composed which in double-quick time conferred absolution on Musharraf and his triumphant generals.

Chief Justice Irshad Hasan Khan wrote the judgment and the other judges on the bench, including Justice Chaudhry, without adding a word of their own (which was slightly unusual) concurred with his sweeping validation. As PCO judges they were expected to toe the line dictated by the country’s martial law masters and, to no one’s surprise, they went along faithfully, Chief Justice Irshad in front and they in his train. In the museum dedicated to the doctrine of necessity this was another trophy.

So it is not a little surprising to see the present Supreme Court coming down so hard on the Nov 3, 2007, PCO judges when they themselves (most of them, if memory serves) felt few qualms in being PCO judges in January 2000. Let him cast the first stone who hath not sinned, said Christ. Their lordships of the “historic” judgment are no doubt made of sterner stuff, preferring to interpret the past as a closed and shut transaction while bringing down the executioner’s axe on those who could well plead in their defence that they were doing no more than following the example, set in times past, by their betters.

What about the nation which faces a serious test? For it is being asked to believe, if we go along with all the implications of the “historic” verdict, that Musharraf’s rule was legitimate until Nov 3, 2007, and it was only his proclamation of emergency that evening which put him outside the pale of the Constitution. This is a very selective rendering with which most Pakistanis are not likely to agree. .

According to this interpretation Musharraf did nothing unconstitutional from Oct 12, 1999, to Nov 3, 2007, and it was only the period of emergency — from Nov 3 to Dec 15 — which is worthy of judicial censure. In other words, according to the Supreme Court, he was a usurper not for eight and a half years — which most people in Pakistan believe — but for a mere 40-45 days.

As sins of this sort go in Pakistan, this doesn’t amount to much of a transgression. But even if it is considered serious (and there are people who will), its severity is mitigated by the fact that the malefactor (Musharraf) first took off his uniform on Nov 28, 2007 (thus doing the nation a favour it had long demanded) and lifted emergency on Dec 15, 2007, thus returning the country to constitutional rule (as per the implication of the Supreme Court verdict). Not only that but he went on to hold elections. This makes him look not a demonic but rather quite a benign figure.

His original sin, it can be argued, was no longer a sin in the eyes of the law because the PCO of 2000 and the oaths of the judges were validated later by parliament. Very true, but this is hair-splitting. Musharraf was a usurper as were Zia and Yahya and Ayub before him. The others too were validated by various judicial and constitutional instruments. But all these actions remain blots on our history and in the eyes of the people, and in the eyes of history, they are all usurpers who — although this is quite another story — brought great harm to the nation.

Musharraf deserves punishment, as did all military saviours before him. But if Article Six is to be invoked it should be for Oct 12, ‘99, rather than the secondary and much smaller sin of Nov 3, 2007. In that case it is not he alone who should be brought into the dock but all his collaborators — the generals who ordered troop movements on Oct 12, the judges who were effectively his collaborators later and all those who chose to serve under him in various capacities. Flogging Musharraf is easy because he is a dead horse. But if we are serious about retribution our canvas has to be broader.

But since it is not going to be broad, and bringing Musharraf to justice is likely to remain no more than a talking point — because who wants to stir this hornet’s nest? — the more seemly thing is to move on and confront the future and inculcate some humility in ourselves by remembering that in the sins of the Musharraf many now counted among the good and the great, and even the historic, were also complicit.

From such humility — or what the Chinese call self-criticism — will come the strength to face the future, and even fix it in our favour.

Email: winlust@yahoo.com

History’s Record must be kept straight because some of the Supporters of the so-called Judicial Activism are fooling and deceiving the general public about Judicial Activism [whole process was manufactured to oust Musharraf, because why CJ Iftikhar not taking any notice on this crime of Mehran Bank Scandal, petition is pending since 1996: READ FOR REFERENCE: Let justice awaken By Ardeshir Cowasjee Sunday, 30 Aug, 2009http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/columnists/ardeshir-cowasjee-let-justice-awaken-089 / Shaheen Sehbai VS Roedad Khan (Ex – Civil Serpent) . http://chagataikhan.blogspot.com/2009/11/shaheen-sehbai-vs-roedad-khan-ex-civil.html and Suo Moto notice, carry dirty baggage because the very persons have served under the Martial Law of General Musharraf, their history [Ather Minallah, Saeeduz Zaman Siddiqui, & Iftikhar Muhammad Chaudhry is as under:

As per 1973 Constitution of Islamic Republic of Pakistan

“QUOTE”

PART I

6. (1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.

(2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason.

(3) [Majlis-e-Shoora (Parliament)] shall by law provide for the punishment of persons found guilty of high treason.

“UNQUOTE”

Definition of Accomplice: An accomplice is a person who actively participates in the commission of a crime, even though they take no part in the actual criminal offense.

Not in a very distant past:

Selective Provisional Constitution Order and Judiciary
http://chagataikhan.blogspot.com/2009/02/selective-provisional-constitution.html

Mr Justice Iftikhar Muhammad Chaudhry and General Pervez Musharraf

In Quetta, Chief Justice of Balochistan High Court (BHC) Mr Justice Iftikhar Muhammad Chaudhry and four other High Court judges took a fresh oath under PCO.

Athar Minallah, spokesman for Justice Iftikhar Mohammad Chaudhry – Athar was appointed Minister for Law, Local Government, Parliamentary Affairs and Human Rights by the Provincial Government of NWFP (2000-2002).

Read the detail rather newspapers of the year 2000 [3 Months after the Martial Law of General Musharraf] and what an irony, the present spokesman for CJ Mr Justice Iftikhar Mohammad Chaudhry i.e. Athar Minallah was Provincial Minister in NWFP Government in the year 2000 under the very same General Musharraf.

In January 2000 Chief Executive General Musharraf dictated that all superior court judges swear a new oath under the Provisional Constitutional Order No.1 issued on October 15, 1999, which had suspended the Constitution. In January 2000, Justice Iftikhar Chaudhry then a serving judge on the Balochistan High Court (BHC) was one of the first judges to take an oath on the PCO. This allowed him to be elevated to the Supreme Court to fill one of the vacancies left by the 11 judges who had resigned in protest at taking this oath.

On May 13 2000, Justice Iftikhar Chaudhry was one of 12 Supreme Court judges who validated the military coup of General Pervez Musharraf. They ruled that the removal of the elected government of Nawaz Sharif was legal on the basis of the “doctrine of necessity”.

In June 2001, Justice Iftikhar Chaudhry was one of two judges who visited the Presidency House to convince the then President Rafiq Tarrar to resign, and make way for General Pervez Musharraf to assume that office.

On April 13 2005, in the “Judgment on 17th Amendment and President’s Uniform Case”, Justice Iftikhar Chaudhry was one of 5 Supreme Court judges who dismissed all petitions challenging President Musharraf’s consistitutional amendments. In a wide ranging judgement they declared that the Legal Framework Order (LFO) instituted by General Musharraf after his suspension of the constitution, the 17th amendment which gave this constitutional backing, and the two offices bill which allowed Musharraf to retain his military uniform whilst being President were all legal.

13 JUDGES REFUSE TO TAKE OATH UNDER THE PCO OF 1999

Thirteen judges of the superior judiciary, including Chief Justice of Pakistan Mr Justice Saeeduzzaman Siddiqui, ceased to hold office after they refused to take fresh oath under the Provisional Constitutional Order (PCO), on January 26, 2000.

Mr Justice Irshad Hassan Khan became the new chief justice of Pakistan as the judges of the Supreme Court, Federal Shariat Court and four High Courts were administered oath under the PCO.

Six judges of the apex court, including the chief justice, refused to take fresh oath. The other seven judges who were not invited for the oath were two from the Lahore High Court (LHC), two from Peshawar High Court (PHC) and three from Sindh High Court (SHC).

The seven Supreme Court judges who took oath under the PCO were Mr Justice Irshad Hassan Khan (Chief Justice), Mr Justice Bashir Jehangiri, Mr Justice Abdur Rehman Khan, Mr Justice Shaikh Riaz Ahmed, Mr Justice Munir A Shaikh, Mr Justice Shaikh Ejaz Nisar, and Mr Justice Ch Mohammad Arif.

The judges who refused were Chief Justice Mr Justice Saeeduzzaman Siddiqui (who was due to retire on Nov 11, 2000), Mr Justice Mamoon Kazi (retiring date Dec 29, 2000), Mr Justice Nasir Aslam Zahid (Feb 2, 2000), Mr Justice Khalilur Rehman (April 24, 2001), Mr Justice Wajihuddin Ahmed (November 2003), and Mr Justice Kamal Mansoor Alam (April 2002).

In Punjab, 41 out of total 43 judges of the Lahore High Court were administered the oath. Only two judges — Mr Justice Ehsanul Haq Ch and Mr Justice Najamul Hassan Kazmi — did not take oath.

In Sindh, three High Court judges — Mr Justice Dr Ghous Muhammad, Mr Justice Rasheed Ahmed Razvi and Mr Justice Mushtaq Ahmed Memon — were not invited to take fresh oath under POC in Karachi.

In Quetta, Chief Justice of Balochistan High Court (BHC) Mr Justice Iftikhar Muhammad Chaudhry and four other High Court judges took a fresh oath under PCO.

The fresh crisis with the judiciary refreshed the memories of General Zia’s sacking of 19 Supreme Court and High Court Judges who refused to take oath under his PCO of 1981. Feeling that he had been badly used, the Chief Justice of the Supreme Court, Anwarul Haq, who had headed the bench which approved Zulfikar Ali Bhutto’s hanging, refused to take the oath. The former Chief Justice of the Lahore Court, Molvi Mushtaq Ahmad who had sentenced Bhutto to death in the first place, although willing to take the oath was not asked to do so. While sacking the judges, General Zia explained: “We want the ju diciary to mind their own business and not to meddle in anything else. Power is an intoxicant. Please do not get me wrong. I personally have not been intoxicated with this. I want to share power, but I re fuse to share power with those who do not entitle themselves.[1]

Apparently, the new oath was required for the same reasons as prevailed in March 1981 when General Zia ordered the new oath. A number of constitutional challenges to General Zia’s rule were pending before the Supreme Court and the Chief Justice Anwarul Haw was understood to have set them down for hearing shortly. The PCO killed all such petitions. A number of constitutional petitions against the military takeover were fixed before the Supreme Court for January 31, 2000. Like the 1981 PCO, General Musharraf’s PCO-1 removed the power of the judiciary to decide whether a legislation was valid. Any judge who took the oath bound himself in advance not to question anything contained in the order.

OATH UNDER PCO DENOUNCED

There was a wide condemnation by the lawyers, political parties and human rights bodies of the oath-taking of judges under the Provisional Constitution Order. The Pakistan Human Rights Commission, in a statement, said that the military government has gone further down the anti-democratic road by forcing the judges, like General Ziaul Haq, to take their oath afresh under the PCO. The act has put an end to the pretence that the country is still being constitutionally governed and that the judiciary continues to act in accordance with its oath to the Constitution, it added. “The later (judiciary) has now, by its swearing of a new allegiance, become a creature not of the Constitution but of the chief of the army staff acting as the country’s self-appointed chief executive….By not acting in unison and in accordance with their oath and conscience, the judges have done further harm to the institution and the national good. There is some comfort only in
that they are more numerous than the last time round and this time they include the chief justice himself.” [2]

Former chief justice Saeeduzzaman Siddiqui, [3] in a press interview, said that he chose not to take fresh oath under the Provisional Constitution Order because it was a “clear-cut deviation” from the Constitution. When asked why this time more judges resigned than in 1981 when judges were asked by the then Chief Martial Law Administrator, General Ziaul Haq to take oath under a Martial Law Order, Justice Siddiqui replied, “Because most of the judges then were appointed by the then military government. Even I was an appointee of a military dictator. But later I took oath under the 1973 Constitution as Chief Justice of the Sindh High Court, then as a judge of the Supreme Court and later as the CJP.” [4]

However, the fresh oath by judges under the Provisional Constitutional Order, did not come as a surprise for lawyers specially in the wake of pending constitutional petitions against the military takeover. The action of October 12, when the military took over in a bloodless coup, was an extra-constitutional step; therefore, the oath of judges under the PCO was expected. Mohammad Ali Saeed, advocate and former Sindh High Court judge said that he was expecting that such order has to come before January 31. A set of constitutional petitions against the military takeover is fixed before the Supreme Court on that day. LHCBA President Javed Gillani however termed the new oath as “a natural act,” and said “it had to happen.” He also added that this was nothing new, and was in fact expected under a military regime, as had happened in the past. [5]

Former Supreme Court chief justice Sajjad Ali Shah justified the need of the oath under PCO, saying that with the Constitution suspended, it was a legal requirement. “To validate the system, a PCO had been proclaimed. “When Gen Zia’s martial law was forced, the Constitution was not abrogated but suspended at that time too.” This time too, he said, the Constitution had been suspended and not abrogated. “And PCO has replaced the Constitution. The PCO is a substitute of the Constitution. In 1981 too, fresh oath was taken and many judges had lost their jobs. And Chief Justice Anwarul Haq of the Supreme Court, who had written the judgment in the Nusrat Bhutto case, had also taken the oath under PCO.” [6]

Kamran Khan, Mehrangate Scandal, GEO TV, The News & Jang Group of Newspapers.

http://chagataikhan.blogspot.com/2009/08/kamran-khan-mehrangate-scandal-geo-tv.html

WHAT THE PUBLIC DONT KNOW ABOUT THE FORMER CHIEF JUSTICE (R) SAEED UZ ZAMAN SIDDIQUI

“QUOTE”

In 1993, justice Sajjad A. Shah gave the lone dissenting opinion when Supreme Court restored Sharif government by a majority decision. Two judges; Muhammad Rafiq Tarar and Saeeduzzaman Siddiqi asked chief justice Nasim Hasan Shah to take disciplinary action against Sajjad A. Shah for the language he used in his dissenting note. Chief justice didn?t take any action against Sajjad A. Shah but it caused a permanent rift. Supreme Court takes recess during summer vacations and if chief justice is out of country during recess it is not necessary to appoint an acting chief justice. In the summer of 1997, chief justice Sajjad A. Shah proceeded to an overseas trip. Incidentally second senior most justice Ajmal Mian was also abroad. Justice Saeeduzaman Siddiqi was in Islamabad when he was told that chief justice had left the country. He adjourned the proceedings, consulted lawyers and then called all supreme court registries to stop working. He declared that there was a constitutional crisis since no acting chief justice was appointed. He sent a letter to the federal government advising it to issue notification for appointment of acting chief justice. As he was the next senior judge, he was appointed acting chief justice. This caused a lot of bad blood between Saeeduzaman Siddiqi and Sajjad A. Shah and on his return Sajjad A. Shah conveyed his disapproval in writing. Reference: Judicial Jitters in Pakistan ? A Historical Overview Hamid Hussain Defence Journal, June 2007.http://watandost.blogspot.com/2007/05/judicial-jitters-in-pakistan-scholarly.html Alleged Trial of General Pervez Musharraf! http://chagataikhan.blogspot.com/2009/07/alleged-trial-of-general-pervez.html

December 01, 1997 was the darkest day in the history of Pakistan?s judiciary. Two orders were issued for the constitution of benches; one by chief justice Sajjad A. Shah heading a five member bench for hearing the cases while the other by justice Saeeduzzaman Siddiqi heading a fifteen member bench to decide about the fate of Sajjad A. Shah. On December 02, two parallel courts were set up inside supreme court. Reference: Judicial Jitters in Pakistan ? A Historical Overview Hamid Hussain Defence Journal, June 2007.http://watandost.blogspot.com/2007/05/judicial-jitters-in-pakistan-scholarly.html Alleged Trial of General Pervez Musharraf! http://chagataikhan.blogspot.com/2009/07/alleged-trial-of-general-pervez.html

President Muhammad Rafiq Tarar had the audacity to meet chief justice Ajmal Mian in his chamber at Supreme Court and ask him not to appoint Justice Falak Sher as acting chief justice of Lahore high court as government did not like him. Chief justice declined but government went ahead and nominated a junior justice Allah Nawaz as acting chief justice. Reference: Judicial Jitters in Pakistan ? A Historical Overview Hamid Hussain Defence Journal, June 2007. http://watandost.blogspot.com/2007/05/judicial-jitters-in-pakistan-scholarly.html Alleged Trial of General Pervez Musharraf! http://chagataikhan.blogspot.com/2009/07/alleged-trial-of-general-pervez.html

“UNQUOTE”

Judicial Jitters in Pakistan – A Historical Overview Hamid Hussain Defence Journal, June 2007

http://watandost.blogspot.com/2007/05/judicial-jitters-in-pakistan-scholarly.html

‘Get your facts first, and then you can distort them as much as you please’. Mark Twain

Pakistan is in the throes of a judicial crisis since March 2007. On March 09, 2007, general Pervez Mussharraf summoned chief justice Muhammad Iftikhar Chaudry to army house. He was asked some tough questions and then asked to resign. Chief justice held his ground and refused. He was kept at army house for several hours so that an acting chief justice could be sworn in. Justice Javed Iqbal was sworn in as the senior most judge justice Rana Baghwan Das was out of country. Chaudry was given the title of ‘suspended’ chief justice and his case referred to Supreme Judicial Council (SJC) for action. This started a crisis where majority of the people denounced the cavalier manner in which general Mussharraf dealt with the chief justice. Legal community fully supported chief justice by boycotting courts and bringing out processions on the streets. Now every one is waiting for the final scene of the drama which may take a while. Current crisis has brought judiciary in the lime light. This article will give a historical overview of the role of judiciary in Pakistan and its interaction with both civilian and military rulers.

In every country, there is a continuous struggle for accumulating more power between different state institutions. Executive tries to get a free hand and does not like legal restraints. Judiciary tries to put some breaks on unchecked powers of the executive. This struggle keeps some semblance of balance of power. However, a politicized judiciary is as dangerous as an uncontrolled power hungry executive.

Bumpy Start

‘We can draw lessons from the past, but we cannot live in it’. Lyndon Johnson

Pakistan started on a sound footing as far as judiciary was concerned. Judiciary was deeply rooted in British judicial traditions. General public had great respect for the judiciary and while lengthy process of trials was dreaded, judges were held in high esteem as they were seen as fair in their judgments. The first Pakistani chief justice Sir Abdul Rasheed refused to socialize with Prime Minister Liaqat Ali Khan to avoid any misperception that judiciary will favor executive in certain circumstances. In 1954, Sindh chief court (later named high court) headed by chief judge (later designated chief justice) Sir George Constantine reversed Governor General’s order of dissolution of Constituent Assembly. Later several justices tried to maintain the independence of judiciary and resisted the pressures and temptations of the executive branch. However such cases were few. In 1999 when Supreme Court was hearing the case of establishment of military courts by Nawaz Sharif government, chief justice Ajmal Mian declined to meet prime minister and governor of Sindh Lt. General ® Moinuddin Haider who contacted him to visit him for Eid greetings.

Only six years after independence, judiciary was called upon to deliberate upon constitutional issues. On April 17, 1953, Governor General Ghulam Muhammad dismissed Prime Minister Khawaja Nazimuddin’s ministry on charges of inefficiency and inability to handle difficult problems of the country. In October, Ghulam Muhammad sent the draft of an interim constitution to Constituent Assembly which rejected it and insisted on deliberating about the constitution rather than stamping a prepared draft. Later, in October 1954, Ghulam Muhammad dismissed Constituent Assembly. The President of Constituent Assembly Maulvi Tamizuddin Khan challenged the dissolution order in Sindh chief court headed by chief judge Sir George Constantine. In a unanimous decision, Sindh chief court declared Governor General’s dismissal order unconstitutional. Government filed an appeal against Sindh chief court’s decision in the federal court. In March 1955, chief justice Muhammad Munir gave the historic decision in favor of Governor General Ghulam Muhammad. He made his decision on the basis of the argument that Sindh chief court had no jurisdiction to issue the writ. Munir interpreted country’s dominion status in a way which considered Queen of England rather than Constituent Assembly as the sovereign. (1)

Muhammad Munir as chief justice of Pakistan presided two most important decisions in Pakistan’s judicial history. He upheld the decision of dissolution of constituent assembly by Governor General and later validated General Ayub Khan’s Martial Law in 1958 using the ‘doctrine of necessity’. He wrote a book in 1979 in which he elaborated at length about role of religion in state affairs but curiously remained completely silent about two of his most important judicial decisions. (2)

Executive and Judiciary

‘It is the spirit and not the form of law that keeps justice alive’. Earl Warren

Executive and judiciary function in their own spheres but sometimes their interests clash. Executive tries to have some kind of control on the function of judiciary especially when its interests are challenged. Executive tries to influence judiciary through favors in postings, promotions and post-retirement benefits. Troublesome justices are mostly retired using administrative loopholes but occasionally more severe action is taken against the stubborn judge. Former Prime Minister Zulfiqar A. Bhutto was awarded death sentence by Lahore high court for ordering the murder of a political opponent. An appeal against the judgment was filed in the Supreme Court. The initial bench of nine judges (Anwar ul Haq, Muhammad Akram, Dorab Patel, Muhammad Haleem, Nasim Hasan Shah, Ghulam Safdar Shah, Karam Elahi Chauhan, Waheedudin Ahmad and Qaisar Khan) started to hear appeal. During the hearing, Qaisar Khan retired and Waheedudin Ahmad got ill. Remaining seven judges heard the case and rejected the appeal in a four to three decision on February 02, 1979. Justice Ghulam Safdar Shah was one of the dissenting judges (the other two were Muhammad Halim and Dorab Patel). He later gave a statement which gave the impression of his inclination to accept the argument of Bhutto’s defense team. This caused great apprehension and General Zia ordered director of Federal Investigations Agency (FIA) to inquire about Safdar Shah’s credentials. Government found many discrepancies and approached chief justice for action against the judge. The case was referred to Supreme Judicial Council (SJC) and Safdar Shah was forced to resign and hounded out of country. (3) Military government set a good example for the rest of the judiciary and showed that it can hurt justices who cross the line. Prior to this incident, references have been filed against four other justices: Justice Hasan Ali Agha in 1951 (he was later exonerated), Justice Akhlaq Hussain in 1960 (he was removed) and justices Shaikh Shaukat Ali and Fazal Ghani in 1969 (both of them resigned).

Military Rule

‘Military justice is to justice what military music is to music’. Groucho Marx

During direct military rule, conflict between military justice system and civilian courts in inevitable. In case of Pakistan, higher judiciary has given legal cover to military rule, however even complaint judges sometimes find it very difficult to completely set aside fundamental judicial principles. This creates the rift and shuffling of judges is usually the norm during military rule. (4) There has been no large scale protest or judicial activity during various military governments.

Higher courts have given some belated verdicts after the departure of the ruler which has no relevance. General Yahya Khan was forced to relinquish his office after the separation of East Pakistan in December 1971. Supreme Court belatedly ruled on April 07, 1972 that general Yahya Khan was a usurper. Some justices even went back to declare that President Iskandar Mirza and General Ayub Khan had committed treason when they suspended civilian rule in 1958. 1989, Zia dismissed Prime Minister Muhammad Khan Junejo’s government. Zia died in a mysterious aero plane crash in August 1989. Members of the dissolved assembly challenged the decision. High courts and Supreme Court dismissed several of those petitions. In one case, Federation of Pakistan vs. Saifullah Khan, Supreme Court ruled that General Zia’s decision was unconstitutional but refused to restore the National Assembly. The reason for court’s refusal of restoration of assembly came to light three years later. Former Army Chief General Mirza Aslam Beg in an interview on February 04, 1993 admitted that he had sent an emissary, then senate chairman Wasim Sajjad to the Supreme Court to warn the justices not to restore the national assembly. Two weeks later, Supreme Court charged General Beg with contempt of court. Beg met with army Chief Abdul Waheed Kakar and later appeared defiantly in the court and many witnesses ridiculed the judges. Supreme Court could not handle the fallout from its confrontation with even a retired army chief. Court finally convicted him of contempt but strangely did not give any judgment about the sentence. The same court even overturned its own decision after an appeal was filed. After a year of half hearted measures, on January 09, 1994 the court dropped all proceedings against general Beg.

In October 1958, when President Iskandar Mirza abrogated the constitution and declared Martial Law, Chief Justice Muhammad Munir helped Mirza and army chief General Ayub Khan in legal affairs. The very next day, Munir attended a meeting and gave Ayub Khan his ideas about a new constitution. Immediately after 1977 coup, General Zia contacted chief justice Muhammad Yaqub Ali who advised him that constitution should be held in abeyance. (5) Zia also made chief justices of high courts governors of their respective provinces. Zia was not sure how Yaqub was going to rule on the pending petition of Mrs. Nusrat Bhutto challenging Zia’s martial law and overthrow of her husband’s government. Yaqub was removed on September 22, 1997 by a curious method. Zia amended the constitution by withdrawing the Sixth Amendment (which had given Yaqub extension of his service) and Yaqub was out the door. Barely two months later on November 10, 1977, the new chief justice Anwarul Haq gave the expected decision of validating Zia’s martial law. During his eleven year rule, Zia avoided to appoint permanent chief justices of high courts. Chief justices functioned on acting basis for long period of time and many were confirmed and made permanent only very close to their dates of retirements. An acting chief justice is much easier to move or remove than a permanent one if government feels that he may give a judgment which can harm government’s position.

In Pakistan, during military rule, constitution is usually amended to give legal cover to military decisions. In 1981, Zia promulgated Provisional Constitutional Order (PCO) and asked judges of the higher courts to take fresh oaths. This opportunity was used to sideline unwanted lot of judges. Fourteen judges were not offered the oath while three judges refused to take fresh oath resulting in retirement of seventeen judges in one shot. Two decades later, General Pervez Mussharraf adopted the same course. On October 12, 1999, General Mussharraf dismissed Nawaz Sharif government and took control of the country’s affairs. In January 2000, judges were asked to take a fresh oath under Provisional Constitutional Order (PCO). PCO prevented courts from hearing any appeals against the actions of the military government. Government took advantage of this opportunity and some judges were not asked to take oath thus automatically sideling them while others refused to take fresh oath.

In January 2002, Lahore high court was scheduled to start regular hearing of an appeal filed by sacked Prime Minister Nawaz Sharif challenging General Mussharraf’s coup. On January 26, 2000, General Musharraf issued PCO to remove the jurisdiction of civilian courts in certain affairs. This was considered essential to give legal cover to decisions made by military rulers. Judges of superior courts had to take a fresh oath under PCO and anyone who was not offered to take oath or who refused stood retired. A day earlier, General Musharraf met with chief justice Saeeduzaman Siddiqi and asked him to take fresh oath under PCO but chief justice declined. Later that night, two serving generals and one retired general visited chief justice again and asked him to re-consider his decision but he again declined. Early in the morning, a colonel came to chief justice’s house asking him not to go to Supreme Court while his house was being cordoned off. Eighteen judges of superior courts; six judges of Supreme Court including chief justice, six of Sindh high court and four of North West Frontier Province (N.W.F.P.) and two of Punjab high court stood retired by this action. New judges were inducted to fill these positions. Four months later, the new bench of Supreme Court headed by a new chief justice (Irshad Hasan Khan) validated general Mussharraf’s coup. Supreme Court also gave general Musharraf the sweeping authority to amend the constitution, although none of the parties before the court sought court’s advice on this issue. (6) General Musharraf paid back the judges by a 30% increase of their salaries. Out of 12 judges of Supreme Court who legalized the coup, six were given three-year extension of their service. Three judges were given new lucrative assignments after retirement. In addition, military government increased the retirement age of judges of Supreme Court from 65 to 68 and those of high courts from 62 to 65. Thirty-seven judges of higher courts benefited from this three-year increase in their retirement age. (7) Later, court has given its opinion on several constitutional issues arising from general Mussharraf’s rule. In April 2005, a five member Supreme Court bench headed by chief justice Nazim Hussain Siddiqi rejected the petitions challenging the constitutionality of general Mussharraf holding the dual office of army chief and president of the country.

Since general Mussharraf’s ascent to power in October 1999, country has seen eight chief justices of the Supreme Court. In the last few months chief justice Iftikhar Muhammad Chaudry got involved in some decisions which caused discomfort in the government’s quarters. He had cancelled the privatization of Karachi Steel Mills and construction of a golf club at a public park in Islamabad. He had also started entertaining petitions from families of missing persons believed to be picked up by intelligence agencies. He had a meeting with Director General of Inter Service Intelligence (DG ISI) and used some harsh language. Later, DG ISI had a meeting with General Mussharraf and allegedly told him that ‘your chief justice not only wants to run judicial affairs but now wants to run national security affairs’. On February 16, 2007, Naeem Bukhari, a senior attorney of Supreme Court wrote a letter condemning the attitude and behavior of chief justice and his treatment of lawyers in the court. He sent the letter to senior lawyers and various bar associations of the country. (8) Many lawyers agreed with Bukhari’s assessment and no one objected, however no one expected that General Mussharraf will send chief justice home.

On March 09, General Mussharraf summoned chief justice to his office and in a brief encounter handed him the list of his misdeeds and asked him to resign. Prime Minister Shaukat Aziz also met with chief justice and told him that government, military and ‘brother judges’ of supreme court were all in agreement about his ouster. After a brief encounter with Mussharraf, chief justice was kept at the place for few hours during which time, senior intelligence officers explained charges against him. Chaudry managed to get out without resigning and immediately contacted some of his close lawyer friends. His calls were being monitored and government decided to confine him to his house. (9) Chaudry was kept at president’s office until acting chief justice Javed Iqbal was sworn in. President also issued an order of restraint of chief justice to avoid any potential of mischief on part of chief justice. He referred the case of misconduct of chief justice to Supreme Judicial Council (SJC). The response of general public and lawyer community was very negative and soon everybody was denouncing president’s arbitrary decision. Government had not expected such an outpour of sympathy for the restrained chief justice. General Mussharraf overplayed his hand when he had intelligence officials go over the details of Chaudry’s misdeeds. Chaudry after all is a legal mind and after seeing all the evidence showed to him by intelligence officials quickly realized that this evidence may not stand in SJC and opted for a showdown. It appears that legal wizard Shareefuddin Peerzada was not consulted prior to Mussharraf’s encounter with Chaudry. Military mind works on surprise and very small group of close confidants was privy to this decision. In addition, intriguing atmosphere, whispering, paranoia and staunch belief in conspiracy theories at the highest echelon of power in Islamabad is not conducive for an in house frank discussion prior to implementation of important decisions. General Mussharraf and his advisors on this matter fumbled with ‘suspension’ and ‘restraint’ of the chief justice. The order of ‘restraint’ was initially issued against the chief justice. However, later when Peerzada came into picture and informed the amateurs that president can not restrain a justice; chief justice was sent on a ‘forced leave’, a clause inserted during general Yahya Khan rule (1969-71).

Supreme Judicial Council (SJC) consisting of five judges (two justices from supreme court, two chief justices of high courts and acting chief justice are members of SJC) headed by acting chief justice Rana Baghwandas started to hear the reference of misconduct against chief justice. Chaudry filed a constitutional petition asking a full court to hear his case rather than SJC. However, he asked that all senior judges who may benefit from his removal should be excluded. Acting chief justice constituted a five member bench of junior judges to hear Chaudry’s case. Government alarmed by this move filed a petition asking that a full court should hear the case. Veteran lawyer Shareefuddin Peerzada is on president’s team and he the question that only five junior judges including an ad hoc judge are hearing an important case while seven senior judges have been excluded. The five member bench halted proceedings of SJC and recommended a full court hearing of Chaudry’s case. Acting chief justice constituted a 14 member full bench to hear the petition excluding himself and three other justices (Abdul Hameed Dogar, Javed Iqbal and Sardar Muhammad Raza Khan). One of the member justice Falak Sher excused himself and bench was reconstituted with thirteen members. This bench headed by justice Khalil ur Rahman Ramday is now hearing the case of chief justice.

Civilian Rule

‘Men occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing ever happened’. Winston Churchill

When politicians are unable to solve political questions among themselves, usually Khakis barge in. Politicians claim that soldiers just crash into the corridors of power uninvited while soldiers maintain that they are sucked into the power against their wishes by fractious and intriguing politicians. There is a grain of truth in both statements. Sometimes, judicial branch of the government ends up handling questions which are essentially political in nature. Most of the judges are not comfortable with the notion of rendering judgments on political issues. Sitting on benches rendering political judgments can have many ‘occupational hazards’. During Benazir’s first term as Prime Minister, one supreme court judged complained to federal law minister that ‘please don’t send us all your political problems. That burden is too great for our shoulders’. (10)

Civilian leaders when in power try to gather maximum power and politicians of all persuasions have tried to either undermine judiciary or fill it with sympathetic judges to get desired results. Zulfiqar Ali Bhutto, the first civilian leader who had firm control over all affairs was instrumental in passing of the 1973 constitution. However, succumbing to his own authoritarian bent, he also managed to amend the constitution. Several amendments of 1973 constitution were related to judiciary. The Fourth Amendment of November 25, 1975 was related to preventive detention and power of high courts was restricted in this respect. Fifth Amendment of September 15, 1976 had several components to give executive leverage against judiciary. This amendment also fixed the tenure of chief justices of higher courts (Four years for high courts and five years for Supreme Court). It also gave executive the power to transfer a high court judge without his consent or consultation of chief justice. Executive could appoint a high court judge as puisne judge of supreme court and if he did not agree to his elevation he would automatically stand retired. When chief justice Yaqub Ali’s time came for retirement, constitution was conveniently amended (Sixth Amendment) which allowed chief justice to hold office for the proscribed term even if he have attained the retirement age.

Civilian leaders have used all available means both fair and foul to prevent encroachment of judiciary which they perceive as their turf or to get desired judgments. In early 1993, relations between Prime Minister Nawaz Sharif and president Ghulam Ishaque Khan deteriorated quite rapidly and Khan was planning to ouster Sharif. Some statements attributed to chief justice Muhammad Afzal Zullah indicated that judiciary may act to counter president’s move. President waited till 18 April 1993; the day of retirement of chief justice. In a very curious development, chief justice on the very day of his retirement was on a plane heading out of country. Justice Nasim Hasan Shah was sworn in as acting chief justice; another curious move as he should have been appointed permanent chief justice. President dropped his guillotine on the same day sending Sharif and assembly packing home.

When Sajjad A. Shah became chief justice, he had cordial relations with Benazir. Shah after assuming office agreed to government’s suggestion of appointing acting and ad hoc judges to Supreme Court and some of these nominees were retired judges. This move had been resisted by previous acting chief justice Sad Saud Jan. Seven justices (Zia M. Mirza, Fazal Karim, Munir Khan, Muhammad Ilyas, Mir Hazar Khan Khoso, Mukhtar A. Junejo and Irshad Hasan Khan) were appointed in this manner. The judgment of first political case decided on October 1994 by this new court showed where the court was heading. The case was of North West Frontier Province (N.W.F.P.) provincial assembly’s in house change by defection of two members where opposition provincial government had been replaced by People’s Party government headed by Aftab Ahmad Khan Sherpao. The ousted chief minister Pir Sabir Shah had approached the court. Supreme Court in a seven to five judgment rejected the petition. All judges who sided with chief justice’s view were those inducted in the last four months by Shah while all five permanent judges held the minority view. (11) Governments favor some judges for one reason or another and then expect that these judges will be acting as their agents in judiciary. However, there are some limits to how much judges can oblige. This was the main reason for deterioration of relations between Sajjad A. Shah and Benazir.

When Benazir government was dismissed second time on November 05, 1996, governors of Punjab and N.W.F.P. provinces considered Benazir loyalists were removed and chief justices of high courts were sworn in as acting governors. President Farooq Ahmad Leghari pressurized these two justices turned acting governors to dissolve provincial assemblies and assured them that if they resigned from judiciary they would be retained as permanent governors. (12) President Muhammad Rafiq Tarar had the audacity to meet chief justice Ajmal Mian in his chamber at Supreme Court and ask him not to appoint Justice Falak Sher as acting chief justice of Lahore high court as government did not like him. Chief justice declined but government went ahead and nominated a junior justice Allah Nawaz as acting chief justice. (13) During her second term, Benazir Bhutto had appointed Sajjad Ali Shah chief justice over the head of three senior justices. She thought that Shah would return the favor. When tensions rose between chief justice and Benazir about the issue of appointment of some judges, government decided to strike back. First, former Sindh chief minister Qaim Ali Shah spilled the beans in a newspaper. He claimed that he had persuaded Benazir during her first term to elevate Sajjad to the post of chief justice of Sindh high court. In the second term, Benazir didn’t want to elevate Sajjad to the post of chief justice of supreme court but he along with Sindh chief minister Abdullah Shah and defense minister Aftab Shaban Mirani (all Sindhis) persuaded Benzair to appoint Sajjad A. Shah. (14) In the judge’s case, Supreme Court had ruled that senior most judge should be considered for appointment if there is no valid negative element against him. Government decided to beat chief justice with his own stick and now filed a review petition asking the court whether the rule of seniority applied to chief justice of the Supreme Court (referring to Shah’s elevation against the rule of seniority). Counsel for federation raised objection to Shah heading the bench to decide about his own appointment. Shah refused the request and continued to preside the bench and federal government withdrew the petition. Government also started to harass chief justice and his family. Several incidents such as snatching of one of the car used by chief justice at gun point and arrest of an armed intruder from his residence (police claimed that the man was mentally disturbed) raised suspicion about harassment. His son-in-law and other relatives were sacked from their jobs and police harassed them. During Nawaz Sharif’s first term, special courts were set up to prosecute certain crimes. A Supreme Appellate Court was set up to streamline appeal process and a supreme court judge was assigned to this court. When justice Sajjad Ali Shah sitting on this court acquitted one accused, Sharif was furious. He persuaded chief justice to remove Sajjad A. Shah and appoint justice Muhammad Rafiq Tarar (a Sharif loyalist).

One example will show the modus operandi for the selection and appointment of the highest judicial authority of the country. In 1994, when Benazir decided to appoint Sajjad A. Shah as chief justice superceding three senior justices, she asked the intelligence agencies about the possible reaction from legal community. Shah was in Karachi sitting in his court hearing cases when law secretary (Justice Shaikh Riaz Ahmad) called him and asked him a curious question of what kind of dress he was wearing. Shah replied that he was in court therefore wearing official dress (Shirwani). Shah was told to head to the airport immediately without informing anyone and wait for next message. At airport, Shah boarded a special plane sent from Islamabad and on landing in Islamabad; he was taken to the president house where he met president and prime minister. He was then informed that he was being elevated to the office of chief justice and he took oath. When Shah developed differences with Benazir, she tried to cultivate other justices of the court. Benazir approached senior most judge of the supreme court, justice Ajmal Mian through a family friend Dr. Asim. Asim conveyed the message to Mian that Benazir was sorry that she appointed Sajjad A. Shah as chief justice and wanted to discuss the matter with him. Mian declined to meet Benazir secretly. She again approached Mian through Attorney General Qazi Muhammad Jamil suggesting that Mian should take up the case of appointment of Sajjad A. Shah while Shah was out of country. (15) Prime Minister of the country was encouraging a Supreme Court justice to act against his own chief justice. Such efforts damaged both the executive and the judiciary.

Judicial Brawl

‘A weak man has doubts before a decision, a strong man has them afterwards’. Karl Kraus

The judicial crisis of 1997 severely damaged country’s image and judiciary’s reputation. A reckless civilian prime minister and his cronies clashed head on with an equally reckless chief justice of the supreme court. A number of judges of supreme court openly rebelled against their own chief justice thus bringing the judiciary to new low levels. The saga of Byzantine intrigues was played at the highest levels making the country a laughing stock. The trouble between judges of supreme court had been brewing over a long time. In 1993, justice Sajjad A. Shah gave the lone dissenting opinion when Supreme Court restored Sharif government by a majority decision. Two judges; Muhammad Rafiq Tarar and Saeeduzzaman Siddiqi asked chief justice Nasim Hasan Shah to take disciplinary action against Sajjad A. Shah for the language he used in his dissenting note. (16) Chief justice didn’t take any action against Sajjad A. Shah but it caused a permanent rift. Supreme Court takes recess during summer vacations and if chief justice is out of country during recess it is not necessary to appoint an acting chief justice. In the summer of 1997, chief justice Sajjad A. Shah proceeded to an overseas trip. Incidentally second senior most justice Ajmal Mian was also abroad. Justice Saeeduzaman Siddiqi was in Islamabad when he was told that chief justice had left the country. He adjourned the proceedings, consulted lawyers and then called all supreme court registries to stop working. He declared that there was a constitutional crisis since no acting chief justice was appointed. He sent a letter to the federal government advising it to issue notification for appointment of acting chief justice. As he was the next senior judge, he was appointed acting chief justice. This caused a lot of bad blood between Saeeduzaman Siddiqi and Sajjad A. Shah and on his return Sajjad A. Shah conveyed his disapproval in writing.

On October 09, 1997, chief justice went to Saudi Arabia and justice Ajmal Mian was sworn as acting chief justice. Mian spilled the beans on the same day he took oath. He told the press that Sajjad A. Shah had not consulted the judges for appointment of additional judges and that a full court meeting should decide this issue. A number of Supreme Court justices gave a written request for a full court meeting to discuss press statements of chief justice Sajjad A. Shah. Seven out of eleven judges signed the request and Mian set the date of October 13 for full court meeting. Sajjad A. Shah cut short his visit and dashed back. He cancelled the meeting, shuffled the roster and sent some of the rebellious justices for sittings in Lahore and Karachi. Another request of a full court meeting signed by seven justices was filed and chief justice rejected it by announcing his decision to the press. Now the conflict between supreme court justices was open and the game was played in the press. Six justices issued a press rejoinder and for the first time openly questioned the appointment of chief justice. Shah was fighting a two front war; one against the Prime Minister Nawaz Sharif and second against his own rebellious judges. (17) Shah belatedly called a full court meeting on October 17 but by that time the division among the justices was complete and all parties had crossed the point of no return.

Chief Justice fired opening salvos against the Prime Minister Sharif by entertaining letters sent to him by opposition Pakistan Peoples Party members. One letter was sent to him by former defense minister Aftab S. Mirani on October 18 alleging that Sharif had favored a friend by giving him an import license. Another was sent by Senator Safdar Abbasi alleging that Sharif’s business house had acquired bank loans through political leverage. Another case of alleged illegal allotment of plot by Sharif and a petition challenging 14th Amendment (a hastily enacted amendment by Nawaz Sharif which prohibited members from voting against party line on any issue) was also entertained. In an astonishing move, four cases which could hurt Sharif were taken up by chief justice in a matter of two days. Chief justice asked the petitioners to hurry to his chamber within 72 hours to give their statements. He clearly conveyed the message that he was drawing the battle lines. In addition, using his authority as chief justice to set up rosters, he had sent all senior judges away from Islamabad and used ‘like minded’ junior justices for the benches to hear these cases. The message was now clear even to the blind that chief justice was positioning himself for sending the kind of fireballs which could prove fatal for Sharif. Chief justice stacked the deck against Sharif by comprising a three member bench headed by himself while the remainder two judges (Mukhtar A. Junejo and Bashir Jehangiri) were part of the chief’s loyal camp. Within a week the bench passed an interim order which prohibited action against any assembly member who violated 14thAmendment. Next day the same bench sent a note to the president ordering him to issue the notification of appointment of five Supreme Court justices recommended by chief justice.

Sharif was counting on the rebellious justices of the Supreme Court before unloading his own ammunition. On October 21, six justices sent a protest note to chief justice and questioned his appointment. A copy of the note was also sent to the president. It was now Sharif’s turn and he showed his true colors when all kind of abuse was heaped up on chief justice both inside the parliament and in press statements. Contempt of court petitions were promptly filed against prime minister and some members of parliament and chief justice entertained them post haste adding another stone into his sling. For contempt hearing, chief justice comprised a three member bench which he presided. Later two more members were added. Chief justice had lined up his cavalry well and the four justices which he chose were a safe bet. Justice Bashir Jahangiri was on the same tune as chief justice. The other three justices; Muhammad Arif, Mamoon Qazi and Munir Shaikh had been elevated just few days earlier at the recommendation of chief justice against the wishes of the government. Shah was determined to humiliate Sharif by using his position of chief justice. On October 27, Shah took up the case of 14th Amendment and rejected government’s request of adjournment to study the case. On October 30, a three member bench headed by chief justice heard two petitions asking president to step in and issued a short order giving government thirty days to appoint five justices recommended by chief justice. In early November, chief justice shuffled the deck of justices when he decided to hear cases against Nawaz Sharif. He constituted two benches sitting in Islamabad. First was a three member bench headed by him (the other two Justices were Muhammad Arif and Bashir Jehangiri). The second was a two member bench of Justice Mukhtar Ahmad Junejo and Fazal Elahi Khan. Of five justices only one justice Fazal Elahi Khan was in the opposite camp thus the odds were four to one against Nawaz Sharif. On November 12, chief justice declined to appoint president’s nominee for acting Chief Election Commissioner (CEC) and instead appointed Justice Mukhtar A. Junejo.

Sharif covered his bases by hurriedly passing a Contempt of Court Bill to protect himself in case chief justice decided to convict him. However, he was advised by his legal team to go for the ‘original sin’ and that was to question the appointment of chief justice three years earlier. On November 17, a petition was filed in Sindh high court challenging the appointment of chief justice. A similar petition was filed in supreme court registry in Quetta challenging the appointment of chief justice. Few days later, another petition challenging appointment of chief justice was field before supreme court registry in Peshawar. On November 26, 1997, a two member bench (Nasir A. Zahid and Khalil ur Rahman) sitting in Quetta issued an order that the issue of chief justice’s appointment should be forwarded to chief justice for a full court hearing. Few days later, another two member bench of the same court (Khalil ur Rahman and Irshad Hasan Khan) issued an unprecedented order suspending their own chief justice. Chief justice passed an administrative order suspending Quetta registry’s order which was received at Quetta in the evening. Justices in Quetta were at their rest house. The esteemed judges took up the case in the rest house and decided that chief justice’s order was null and therefore should be ignored. A two member bench (Saeeduzzaman Siddiqi and Fazal Elahi Khan) at Peshawar entertained a petition by an ally of Sharif challenging the appointment of chief justice. This bench decided that chief justice could not perform judicial and administrative functions therefore he could not suspend the bench’s order. In an unprecedented move, justice Saeeduzzaman Siddiqi issued order to the registrar of Supreme Court to place all cases before the senior most judge justice Ajmal Mian and asked Mian to constitute a full bench. When Mian declined, in another mind boggling development justice Saeeduzzaman himself ordered the constitution of the full bench of Supreme Court (excluding Justices Sajjad Ali Shah and Ajmal Mian) to deliberate on chief justice’s appointment. Sajjad A. Shah sent a letter to the president asking him to refer justice Saeeduzzaman Siddiqi to SJC for disciplinary action. President forwarded that request to prime minister to take appropriate action. With this open rebellion against chief justice, government announced that it will not accept any decision of chief justice Sajjad A. Shah in all the cases as he had become controversial.

December 01, 1997 was the darkest day in the history of Pakistan’s judiciary. Two orders were issued for the constitution of benches; one by chief justice Sajjad A. Shah heading a five member bench for hearing the cases while the other by justice Saeeduzzaman Siddiqi heading a fifteen member bench to decide about the fate of Sajjad A. Shah. On December 02, two parallel courts were set up inside supreme court. Chief justice had hedged his bets and had two benches set up: one was a five member bench headed by him to hear contempt case against prime minister and another three member bench headed also by him to hear the constitutionality of 13th Amendment (this amendment had removed president’s discretionary power to dismiss prime minister and assembly). In the other room Justice Saeeduzzaman presided over the assembly of ten other justices to decide chief justice’s fate. Shah decided to go for the coup de grace. He sat on the bench hearing 13th Amendment, fired his final volley and announced an order suspending the 13th Constitutional Amendment which now freed president’s hand and allowed him to dismiss assembly. Attorney general rushed to the room next door and asked justice Saeeduzzaman to suspend the interim order passed by chief justice sitting next door. This bench was assembled to decide about the fate of Sajjad A. Shah and had no written request about any other issue. However in another unprecedented move justice Saeeduzzaman suspended the order of his own chief justice on verbal request from attorney general. Saeeduzzaman also issued order of restraining the chief justice and directed president to issue the notification of appointment of justice Ajmal Mian as acting chief justice. (18) In the meantime, the blood was also drawn at the presidency and president Farooq A. Leghari resigned and senate chairman Wasim Sajjad took the oath of acting President.

In this conflict, the battle was quite ugly where cabinet ministers and members of national assembly passed derogatory remarks about judges and even stormed the supreme court building on November 28. Retired justice of Supreme Court Muhammad Rafiq Ahmad Tarar played the most despicable role of working with some judges of the supreme court and exploited the division among superior court justices to achieve desired results. One day prior to the order of two Supreme Court justices sitting in Quetta questioning the appointment of chief justice, Tarar flew to Quetta in a special plane accompanied by Shahbaz Sharif and met with these justices. After an intense activity of palace intrigues, rebellious justices of the Supreme Court entertained a case against appointment of Sajjad A. Shah in Peshawar high court which was pending for over two years. Government acted on Supreme Court’s decision and denotified appointment of chief justice Sajjad A. Shah and relegated him as ordinary judge. Justice Ajmal Mian was sworn as new acting chief justice. A new chapter in judicial history was written in Pakistan which probably no other country can boast. A group of ten supreme court justices deposed their own chief justice and then nominated an acting chief justice among themselves. They excluded five brother judges who were viewed sympathetic to Sajjad A. Shah. An acting president then appointed an acting chief justice who was administered an oath by another Supreme Court justice Saeeduzaman Siddiqi who had taken upon himself to decide what was to be done. In an ironic twist, among the ten justices who decided that Sajjad A. Shah’s appointment was unlawful, eight had been administered oath none other than Sajjad A. Shah. Chief justice was perfectly legal when he administered oath to them but later they changed their mind. Another interesting fact was that justice Shaikh Riaz Ahmad was sitting on this bench who three years ago as federal law secretary had issued the notification of appointment of chief justice Sajjad A. Shah. Later in an interview, Saedduzzaman defended his action of working with government to boot out his own chief justice. (19) On December 23, 1997 Supreme Court ruled that their own chief justice who had already served for three years was chief justice no more and should be reverted to the position of a justice in Supreme Court (Sajjad A. Shah took a leave and retired). The decision had some serious legal ramifications such as what was the status of the decisions taken by Sajjad A. Shah as chief justice. The court bailed itself out by ruling that all decisions made by Sajjad A. Shah as chief justice would be valid using the doctrine of de facto.

One last parting shot was fired by one justice sympathetic to Sajjad A. Shah. In the battle between chief justice and prime minister, president had become the casualty and had to resign. New president had to be elected and sworn in within thirty days. Justice Mukhtar A. Junejo was serving as acting Chief Election Commissioner (CEC) and in this capacity was also returning officer for the election of President of Pakistan scheduled for December 31, 1997. Nawaz Sharif’s candidate was Rafiq Tarar. On December 18, Juenjo entertained a petition filed by opposition Pakistan Peoples Party’s former minister Aftab S. Mirani. Justice Junejo rejected the nomination papers of Tarar stating that in view of Tarar’s previous derogatory remarks about judiciary made him ineligible to be elected to the parliament and henceforth he could not be elected president. An appeal was filed against the rejection at Lahore high court where chief justice Rashid Aziz Khan declaring conflict decided not to sit on bench. High court suspended CEC’s order and allowed Tarar to contest election. On December 28, Justice Junejo was booted out and acting president appointed justice Abdul Qadeer Chaudry as permanent CEC. In 1997, Pakistan surely wrote some new chapters in judicial history. A permanent president (Farooq A. Leghari) appointed an acting CEC but when it became inconvenient an acting president (Wasim Sajjad) now appointed a permanent CEC.

Whigs, Robes & Shirwanis

‘We have too many high sounding words and too few actions that correspond with them’. Abigail Admas

Civilian and military rulers have been helped by eminent legal minds in judicial and constitutional matters. These legal celebrities change their own ideas depending on the situation. Governor General Ghulam Muhammad after dismissing Nazimuddin’s cabinet appointed A.K. Barohi as his law minister. Barohi was a strong advocate of a secular constitution and agreed with all those who wanted to keep religious leaders out of political arena. However when winds changed, then Barohi’s ideas also changed. Barohi later became legal advisor to General Zia and helped him to Islamize the country. Another bright legal mind is S. M. Zafar who had pleaded many cases of those in power. In 1997, while representing prime minister Nawaz Sharif in a contempt of court hearing, he argued that ‘another reason why the chief justice should drop the charges was that he was from Sindh and in Sindh there was a tradition that if someone comes to the house of a Sindhi, then all complaints against the guest were dropped’. (20) Very few lawyers can boast about presenting such arguments in defense of their clients in a court of law. Shareefuddin Peerzada is an old hand who is nicknamed ‘jadugar’ (magician). He has an unbeatable record of faithfully serving military rulers spanning almost the whole history of Pakistan including Ayub Khan, Yahya Khan, Zia ul Haq and Pervez Mussharraf. He has been gifted with the rare ability to pull different varieties of rabbits from his legal hat to fulfill the needs of military rulers.

Under the shadow of judicial activism, many judges crossed the fine line and many at times conveyed their biases prior to evaluating the full body of evidence. Chief justice Nasim Hassan Shah at the start of hearing of dismissal of Nawaz Sharif government stated that he will not be another Munir (referring to chief justice Muhammad Munir’s decision of validating Ayub Khan’s coup in 1958) and that ‘the nation will hear a good news’. During 1997 elections, chief justice Sajjad A. Shah toured Lahore for few hours and made his mind about low turn out of voters. Later that evening talking to Governor of Punjab Khawaja Tariq Rahim he remarked that if there was such a low turn out of elections and ‘if the results of the election were challenged in court on the ground that it lacked participation by the majority of the people, it was possible that the court could reject the result’. He later repeated these remarks to caretaker prime minister Malik Meraj Khalid. (21) At other times justices have actively taken the side of the executive even at the expense of the independence of their own institution or given judgments for petty personal interests. In November 1977, chief justice Anwar ul Haq upheld Zia’s martial law under the doctrine of necessity. One day before the judgment, he called Zia’s legal advisor Shareefuddin Peerzada to inform him about the judgment. Peerzada asked chief justice if he had given the authority of amending the constitution to General Zia. Haq replied that he had not given that authority to General Zia. Peerzada told him that without giving Zia the authority to amend the constitution, chief justice will be out of his job and a new chief justice will need to be sworn in. Hearing that Anwarl ul Haq inserted the words of ‘including the power to amend it (the constitution)’ in the judgment in his own hand writing. (22) He had done this without consulting other justices who were unaware of this last minute back channel communication between chief justice and government’s legal advisor. It is ironic that in 1979, chief justice of Supreme Court Anwar ul Haq and chief justice of Lahore high court Maulvi Mushtaq Hussain held brain storming sessions with General Zia ul Haq at his residence to help the military ruler draft a Constitutional Amendment (Article 212-A) to curtail the activities of their own institution. This amendment removed any oversight by civilian courts against the judgments of military courts. (23)

The conflict between judiciary and executive in 1997 showed that there was very little if any regard for the most important institutions of the state. The high office holders merely used their positions to fulfill their narrow personal interests rather than defending any high ideals. Prime Minister used his absolute majority in the parliament in a very irresponsible way by hastily enacting new laws and even amending the constitution without any serious debate. It made mockery of the whole concept of representative government. On the other hand, bitter infighting among Supreme Court justices and reckless attitude of the chief justice shocked everyone. Chief justice really became a loose canon acting way beyond the legal norms. In an unprecedented manner, he was issuing orders from the bench ordering the president to nominate justices which he had selected. He was also issuing and suspending executive orders and even suspending constitutional provisions in a cavalier manner simply to humiliate Prime Minister.

A former chief justice Saeeduzaman Siddiqui long after his retirement pontificated that ‘by legitimizing military takeovers, the judges have abdicated their role to defend the constitution. (24) Siddiqui was the judge who colluded with the sitting government to oust his own chief justice. In addition, he served as chief justice for three month after General Mussharraf’s take over before being sent to the retirement wilderness . He conveniently forgot that during his tussle with chief justice, a number of senior lawyers came as mediators requesting supreme court judges to sort out their differences amicably to safeguard the sanctity of the institution of the supreme court but he went ahead and played a leading role in writing a sad chapter in the judicial history of Pakistan.

In 1996, supreme court deliberated about appointment of judges. Government fearful of the fact that the judgment will hamper its efforts to induct favorite judges pre-empted supreme court. The judgment was to be announced on March 20, 1996. On March 19, government announced the appointment of twenty judges to Lahore high court and seven to Sindh high court. Acting chief justices of both courts; justice Irshad Hasan Khan of Lahore court and justice Abdul Hafeez Memon of Sindh court were Supreme Court justices who were deputed as acting chief justices, administered oaths to new judges without even informing let alone consulting with the chief justice of the Supreme Court. (25) Both acting chief justices were appointees of Benazir and they returned the favor by administering oaths to newly inducted judges favored by government without informing the chief justice. Supreme Court justices finalized the draft of the order to be issued in case of recommendations about appointment of judges to higher courts. Government had pre-empted their move by appointing 27 additional judges to Lahore and Sindh high courts. Judges had decided to adhere to seniority principle and the short order was announced on March 20. One week later, chief justice Sajjad A. Shah held a meeting with president and agreed to confirm three acting/ad hoc judges (Justices Mukhtar A. Junejo, Raja Afrasiab Khan and Muhammad Bashir Jehangiri) as a ‘gesture of good will’ to the government. Within a week, chief justice had back tracked from the consensus opinion of the supreme court justices. He did not consult his fellow justices and it was no wonder that three justices (Ajmal Mian, Saeeduzaman Siddiqi and Munawar Mirza) admonished Shah for flouting the judgment regarding ‘judges’ case’. (26)

In an effort to avoid conflict with fellow judges or to be on the correct side, some justices didn’t live up to the expectations. In 1996, during the final version of the judgment of ‘Judges case’, there was disagreement between chief justice Sajjad A. Shah’s and justice Ajmal Mian’s version. Justice Fazal Ilahi Khan singed on Mian’s judgment on March 20 but when chief justice pressed him, he also signed on Shah’s judgment on April 3 even without reading it. When asked whether he had read the judgment because there was discrepancy between two judgments, he replied that he had no time to read it before signing it. (27) Fazal Ilahi Khan wanted to hedge his bets and did not want to ruffle any feathers even if meant an indefensible action. Retired justice Rafiq Tarar who had played an important role in splitting the judiciary at the behest of Nawaz Sharif became president of the country. When he had retired from Supreme Court in November 1994, he was not given a reference at his own request. Five years later, Supreme Court decided to honor him and he was invited for a dinner at supreme court where he was given a shield which was signed by all justices. (28)

The complex relationship of personal and professional responsibilities can be judged from one example. Agha Rafiq Ahmad, a junior session judge was a close friend of Benazir’s husband Asif Ali Zardari and he had helped in Sajjad A. Shah’s elevation to the post of chief justice of Sindh high court through Sindh chief minister Abdullah Shah, during Benzair’s first tenure (1988-1990). When Benazir was considering Sajjad for chief justice slot, Zardari held several meetings with Sajjad A. Shah and Agha Rafiq was present in some of those meetings. When Sajjad became chief justice of Supreme Court, he paid back his old friend. Agha Rafiq was serving as Director of PIA. Sajjad advised Benazir to appoint Rafiq as law secretary in the Sindh government and after sometime there he will be qualified to be appointed as a judge of higher court. (29) However, everyone was impatient and when Zardari wanted to elevate Rafiq to high court, Shah told prime minister that Rafiq was a very junior session’s judge (number 34 on the seniority list of 37) and it would create problems. However, Rafiq was elevated as Sindh high court justice. Chief justice of Sindh high court Abdul Hafeez Memon was pressured by a senator to nominate another junior session judge Shah Nawaz Awan (number thirteen on seniority list) for high court appointment. When chief justice Sajjad A. Shah asked Memon why he nominated him, he was told that he was being pressurized and the senator who wanted him to be elevated told Memon that if a judge who was number thirty four was being nominated then what was wrong with nominating number thirteen on the same list. (30)

Nawaz Sharif government elevated justice Mehbood Ahmad as chief justice of Lahore high court and second aspirant justice Muhammad Ilyas felt let down. Sajjad A. Shah, who was justice of supreme court at that time visited him and told him that ‘he should put his faith and trust in God, who would not let him down and would compensate him in some other way’. When Shah became chief justice, he nominated Ilyas who was by then retired for justice of supreme court. After taking oath, Ilyas was sent as acting chief justice of Lahore high court. (31) A judge was appointed to the supreme court not because he was fit for the post but to compensate him for some alleged injustice done to him and legal balls were juggled to give him the satisfaction to end his career serving as chief justice of a high court. A special accountability court headed by justice Malik Abdul Qayyum sentenced Benazir Bhutto and her husband on corruption charges during Nawaz Sharif’s government. In April 2001, supreme court set aside the judgment during the appeal when 32 tapes of secret conversations between justice Qayyum and then head of Accountability Cell and Nawaz Sharif’s aid Senator Saif ur Rahman were played. Sharif government had pressurized justice Qayyum to convict Benazir and her husband. (32)

Appointing judges as acting head of executives (Governor General, President, and Governor) gives some leverage to government. This practice has been followed for a long time in Pakistan. In 1950s, Munir served as acting Governor General when Ghulam Muhammad was away from country. Acceptance of positions in government during active service and openly joining politics after retirement also tarnishes the image of judiciary and creates doubts about their impartiality. Chief justice Muhammad Munir gave the historic decision of validation of General Ayub Khan’s martial law in 1958. Immediately after his retirement he accepted a government job in Japan. Later he also served as law minister during General Ayub’s rule. Political governments take care of their favorite justices even if they are pushed aside by their own brother justices. In 1996, Supreme court laid down guidelines for appointment to higher judiciary. This affected two retired justices who were appointed ad hoc justices of the Supreme Court and they were removed from Supreme Court. Benazir government obliged them by appointing one (Justcie Munir Khan) as provincial ombudsman and the other (Justcie Mir Hazar Khan Khoso) member of high powered Federal Public Service Commission.

Justcie Irshad Hasan Khan served as federal law secretary during the Martial Law of General Zia. He later rose to become chief justice of the Supreme Court (January 26, 2000 – January 06, 2002). High court justice Ghaus Ali Shah joined Muslim League of Nawaz Sharif and served as Sharif’s confidant for long time. Supreme Court justice Afzal Lone was sitting on the bench which restored Nawaz Sharif government in 1993. Later he headed the Lone Commission which absolved Nawaz Sharif of any wrongdoing in the cooperative scandal. Later, Sharif paid Lone back by nominating him to become senator. Supreme court justice Muhammad Rafiq Tarar after his retirement served Sharif’s business interests and was later elected senator on Nawaz Sharif’s Muslim League ticket. He was duly rewarded by appointing him president for his loyal services. Tarar paid back by retaining his post when he agreed to general Mussharraf’s request to stay on as president when the later had booted out Nawaz Sharif and assemblies. Mussharraf in turn returned the compliment by unceremoniously sending Tarar home in June 2001. Tarar was booted out of the presidency by putting him in a private car and sent home in the most humiliating way. Mussharraff needed to act in this way not for a great national cause but he needed to get the lofty title of president to get the correct protocol during his upcoming visit to India.

If one takes into account the relationship of various judges with their political patrons and their judgments on crucial cases, then some questions arise about the motive of their judgments. Justcie Tarar saw everything wrong with Nawaz Sharif dismissal by president in 1993 and was as one of the justice of the Supreme Court bench which decided to restore Sharif government. Justcie Sajjad A. Shah saw everything wrong with Benazir’s dismissal in 1990. He was one of the two dissenting judges (the other one was Justcie Abdul Shakurul Salam) in a 1991 decision who did not approve of president’s decision to dismiss Benazir. He wrote that president had exercised his power with ‘malafide intention’. (33) In 1993, Shah saw everything right with Sharif’s dismissal and was the lone dissenter in a ten to one decision of Supreme Court which restored Sharif government. In 1997, when his relations had gone sour with Benazir, he viewed dismissal of Benazir kosher and even called president’s discretion of sacking prime minister as a balance of powers and ‘a safety valve to prevent imposition of martial law in the country’. (34) When president dismissed Benazir government in 1990, the dismissal was challenged in courts. Peshawar high court bench dismissed the petition by majority but justice Qazi M. Jamil was the dissenting judge. Jamil was also on the bench which restored provincial assembly. For these ‘crimes’, he was not confirmed by the president. Benazir duly rewarded Qazi M. Jamil by appointing him attorney general during her second term.

Chief justice Nasim H. Shah’s favorable tilt towards Muslim League and his antipathy towards Pakistan Peoples Party were well known. He had exchanged harsh words with chief justice Muhammad A. Zullah when later received Benazir at a function when she was opposition leader. He headed the bench which restored Sharif government in 1993. He had been humiliated earlier during Benazir government when Benazir refused to sit on the same table with him. The reason was that Nasim H. Shah was one of the justices who had upheld the death sentence of Benazir’s father Zulfiqar Ali Bhutto in 1979 (Nasim H. Shah was one of the majority justices on the bench which had given a four to three verdict of rejection of appeal of death sentence).

When chief justice Sajjad A. Shah was booted out by his own brother judges, the new court decided to clear up some contentious issues. All cases involving government and Prime Minister were dealt with judgments favorable to the government’s position. In March 1998, a seven member bench dismissed the petition challenging the 13th Constitutional Amendment. Interestingly, the petitioner was now not enthusiastic about perusing the case which suggests that the petition was part of the tussle between then chief justice (Sajjad A. Shah) and Prime Minister (Nawaz Sharif) and after the ouster of chief justice no one was interested in it. In May 1999, the court acquitted all who were charged with contempt of court including prime minister and several members of parliament. After the dismissal of Nawaz Sharif’s government an appeal was field against acquittal in September 2000. A five member bench of supreme court heard the appeal and convicted seven accused of contempt of court sentencing them to one month imprisonment and 5000 rupees fine. (35) Such decisions only degrade the image of judiciary and average citizen loses faith in the institution.

Far Below the Benchmark

‘Trust thyself only, and another shall not betray thee’. Thomas Fuller

Corruption is systemic in all institutions of the country and lower levels of judiciary are rife with corruption. Pakistani society in general and especially the ruling elites are obsessed with petty protocol issues and judiciary is no exception to this trend. Genuine disagreements are seen as personal affronts and humiliating others is seen as a justifiable response. Justice S. M. A. Samdani served as law secretary during Zia’s military rule. During a meeting, there had been some skirmish between the two. In 1981, when new oath was administered to judges, Zia told Punjab Governor Lieutenant General Ghulam Jilani not to offer oath to Samdani who had arrived all dressed up to take the oath but went home disappointed. (36) Zia took his revenge by insulting a high court justice while the judge having no scruples to serve a military regime wanted to also play the cowboy by locking horns with generals.

Even senior judges of supreme court clash with each other about petty protocol matters. On June 5, 1994, Benazir appointed Sajjad A. Shah as chief justice by superceding three judges senior to him (Sad Saud Jan, Abdul Qadeer Chaudry and Ajmal Mian). This started the rift between senior judges of the highest court of the land. Five judges of supreme court were in Karachi at that time (Ajmal Mian, Saedduzaman Siddiqi, Wali Muhammad, Abdul Qadeer and Saleem Akhtar). Government sent a special plane to get Sajjad A. Shah for oath taking ceremony in Islamabad. Government asked that any judge who wanted to attend the ceremony could accompany Shah but none of the judges decided to join their newly appointed chief justice for the oath taking ceremony. (37) When Sajjad A. Shah was appointed chief justice, the three senior judges though bitter neither challenged the legality of the appointment nor offered to resign. They decided to take their revenge from inside and clashed with Shah on various matters. This was most obvious during the deliberations about ‘Judges case’. Sajjad A. Shah knowing that his own appointment was made by superceding three judges senior to him deliberated on all aspects of the matters pertaining to appointment of justices but ducked the crucial question of his own appointment. When he discussed his own draft of the judgment with judges, justice Ajmal Mian remarked that ‘it would be the first time in judicial history that a Chief Justcie of the highest court in the land constituted a bench of his choice, presided over it and decided constitutionally about his own appointment’. (38) The senior most judge

Well Done Hamid Mir !
Don’t worry about this Propaganda by PPP illiterate people through “Lifafa” journalism.

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