Double Standard of Iftikhar Ch. et al – by Ali Asad

  The Supreme Court has made public the verdict in petition filed by Kh. Haris against appointment of Mr. Irfan Qadir as Prosecutor General, NAB. The decision is in favour of the petitioner and Mr. Irfan Qadir has lost his job. The SC acted swiftly to decide a legal matter about a clause in NAB Ordinance.

Let us see what actually is the law in this regard? The prosecutor General of The NAB is to be appointed for a period of three years (un-extendible). Mr. Irfan Qadir had completed a term of three years during previous regime. This time he had been given the job anew. It had nothing to do with the previous tenure. But the great interpreters of the laws have decided as if it were an extension.

Now let us take another case. It relates to a constitutional matter. According to article 179 of the Constitution of Pakistan which reads, “A judge of the Supreme Court shall hold office until he attains the age of sixty five years, unless he sooner resigns or is removed from office in accordance with the Constitution.” We know that Khalil ur Rehman Ramday and Ghulam Rabbani have

Mr. Justice Ramday

retired after completing 65 years of age but the two have been inducted as Ad Hoc Judges. The article 182 which deals with ad hoc judges reads, “ If at any time it is not possible for want of quorum of Judges of the Supreme Court to hold or continue any sitting of the Court, or for any other reason it is necessary to increase temporarily the number of Judges of the Supreme Court, the Chief Justice of Pakistan may, in writing,-

(a) with the approval of the President, request any person who has held the office of a Judge of that Court and since whose ceasing to hold that office three years have not elapsed; or

(b) with the approval of the President and with the consent of the Chief justice of a High Court, require a Judge of that Court qualified for appointment as a judge of the Supreme Court,

to attend sittings of the Supreme Court as an ad hoc Judge for such period as may be necessary and while so attending an ad hoc Judge shall have the same power and jurisdiction as a Judge of the Supreme Court. Here it seems that the CJ has taken advantage of the term, “person who has held the office of a Judge of that Court” as a provision to appoint an overage person as ad hoc judge, but article 260 i.e. Interpretation makes no difference between a Judge and an Ad Hoc Judge,” “Judge” in relation to the Supreme Court or a High Court, includes the Chief Justice of the Court and also includes

(a) in relation to the Supreme Court, a person who is acting as a Judge of the Court; and

(b) in relation to the High Court, a person who is an Additional Judge of the Court”. If status of an ad hoc judge is the same as the permanent judge all the rules must apply including the age. In my opinion a person eligible for appointment as ad hoc judge would be a former judge who had resigned as a judge for any reason but is below 65 years.

Comparing the appointment of Mr. Irfan Qadir with that of Khalil Ramday we simply say that the latter is also void. Isn’t it a display

Mr. Irfan Qadir

of double standard of Mr, Iftikhar Ch?

There is still another point which raises objection over the attitude of the SC. Appointment of an official to a certain department is a trivial matter and it may be ignored. The Court still took up the matter swiftly and heard the parties summarily and gave its verdict. There is a case in SC which questions the validity of membership of The CM Punjab in the provincial assembly. As compared to the case of Irfan Qadir this case has a constitutional anomaly under article 224. The petition filed by Mr. Shahid Orakzai has been dumped in the cold storage of SC along with the petition of Mr. Asghar Khan which not seen light of the for the last 11 years. It is high time senior lawyers like Mr. Kurd and Aitizaz Ahsan prevail upon the SC to be sane and impart justice without prejudice.

7 responses to “Double Standard of Iftikhar Ch. et al – by Ali Asad”

  1. Establishment’s Judiciary Read this article in PDF September 3, 2010 By Yousuf Nazar

    If there is one case which the Supreme Court (SC) of Justice Iftikhar Chaudhry does not consider important or fit enough for a suo-moto action is the yet unresolved investigation of the assassination of Benazir Bhutto. It is ironic that it was also the Supreme Court which was guilty of the judicial murder of her father. Another case which the Court never had the courage to pursue was the Mehran-Gate case when the President and a serving Army Chief conspired to steal Rs.140 million from a bank to rig the democratic process; again against Benazir. Some things never change in Pakistan. But Iftikhar Chaudhry challenged Musharraf? Yes, but did he challenge the status-quo or the establishment?

    Some people still believe it was a bold act that he took on his own. Looking back through the trail of events and the circumstances starting from the SC’s decision declaring the privatization of the steel mills void in June 2006 and leading to the ‘suspension’ of Iftikhar Chaudhry in March 2007, it appears more likely that he acted in concert with the powerful forces inside the establishment who were out to get Musharraf. His entire track record and character does not support the view of him as an “unlikely hero”. Just because the politicians and generals have such a poor reputation, we cannot make another product of this rotten system a hero.

    The hearings for the petitions against the 18th amendment continue but the Supreme Court (SC) seems to have lost the steam with which it was pursuing the implementation of the verdict against the NRO since Gen. Kayani was given a three-year extension.

    However, on some days, proceedings have served to highlight the sharp divisions across the national political spectrum. On August 31, the Advocate General Sindh Yousuf Leghari stunned the judges by making some bold statements. Sindh should be proud that another Leghari is standing up and taking a principled stand. Legahri broke with the tradition and addressing the court with a straight and calm face told some bitter truths. He called for the deletion of the Objectives Resolution from the 1973 Constitution because it had been made the preamble to the constitution by rightists during the period of a military dictator and quoted the August 11, 1947, speech of Quaid-i-Azam Mohammad Ali Jinnah in which he had stated that Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in religious sense because that is the personal faith of each individual, but in political sense as citizens of state.

    “Federalism is the only basic structure of the constitution,” Leghari emphasized. He alleged that the Supreme Court had constituted the 17-judge bench only to hand down a law which would be very difficult to be overruled in future. “Therefore I would request the apex court to be very cautious for the sake of the future generation while deciding these petitions,” Mr. Leghari said. Leghari also took issue with the right of the judiciary to review the amendment. “The parliament gave birth to the judiciary; how can it now dictate to the parliament?”

    Mr. Leghari told the SC bench that all petitions challenging the amendment were not maintainable. Indeed.The Court (under Iftikhar Chaudhry and Javed Iqbal) had held petitions against the eligibility of General Musharraf as a presidential candidate as non-maintainable and had taken three weeks to reach that conclusion in November 2007. Now it has been months and apparently the same SC thinks it can challenge amendments passed by the parliament and decide what should and should not be in the constitution.

    It has unfortunately come to this that senior law officers have been forced to openly question the motives and actions of the court. The higher court judges have behaved in an undignified manner passing inappropriate, political, ideological, and partisan remarks dashing hopes of those who thought the judiciary would play its due constitutional role in an independent and impartial manner.

    Some of the judges should not sit there in the first place but thanks to military dictators and the agencies, some of the most mediocre and corrupt people have been able to make it to the Supreme Court.The saga of Justice Khawaja Sharif’s appointment and his subsequent outbursts (the PPP should leave the ruling coalition in Punjab, for example) left little doubt about his political loyalties. The fact that Iftikhar Chaudhry went out of his way to support him was another low in the dark history of Pakistan’s judiciary and reinforced the view that the power in Pakistan is concentrated in Punjab through its heavy and disproportionate representation in the army and judiciary. That Asif Zardari may have hijacked the PPP and may not be a fit person to lead the country does not entitle the courts to arrogate to themselves the powers that vest with the parliament. Asif needs to be confronted politically.

    Justice Chaudhry had legitimized the Legal Framework Order of 2002 which itself was unconstitutional. The Supreme Court had, in effect, given Musharraf the power to amend the constitution. That was violation of Article 6. The LFO was given protection through the seventeenth amendment which was unconstitutional, because it came as a result of an ultra vires Supreme Court decision. Now how can one support a clause that was nothing but a subversion of the constitution?

    Here is a quote from the Supreme Court judgment in Asma Jilani case (1972) in which the Court had held that “assumption of power by General Yahya Khan was an illegal usurpation.”

    “[Maybe], that on account of his holding the coercive apparatus of the State, the people and the Courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and Courts will not recognize its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would be adventurers.”

    Historically both the military and the Judges have tampered with the Constitution as and when it suited them. Neither of them have rights that exceed that of the elected representatives of the people. That is the letter and spirit of the constitution because sovereignty belongs to Allah and is to be exercised by the people through their ‘chosen representatives’ and not by the Army or the Judiciary. The Parliament, and not the Constitution, Army, or the Judiciary should and can exercise sovereignty in view of the unambiguous definition of sovereignty provided in the objectives resolution, which is an integral part of the constitution. The claim that Constitution is sovereign is not only meaningless but is in clear contradiction of the Objectives Resolution, its justified criticism notwithstanding.

    It is indeed intriguing that no TV channel or newspaper made a big deal when on February 19, 2010; the Supreme Court of Pakistan said it will not examine evidence against intelligence agencies in the missing persons’ case. A written order released to the media stated that evidence and allegations of involvement of intelligence agencies in abducting people will be examined by an ‘appropriate forum at the relevant time.’ Now what are we supposed to make of this ruling?

    We have short memories. It has been completely forgotten that the so-called ‘deal’ and NRO were negotiated, among others, by the then ISI chief Pervez Kayani who travelled to London to meet with Benazir Bhutto and Rehman Malik. It was Pervez Kayani who opposed the ’suspension’ of Iftikhar Chaudhry by Musharraf. According to an eyewitness (believed to be Sharifuddin Pirzada) account, it was General Kayani who kept smoking and did not say a word during Iftikhar Chaudhry’s meeting with Musharraf on March 9, 2007 when the former was being asked to resign by Musharraf.

    Iftikhar Chaudhry was appointed Chief Justice of Baluchistan High Court on April 22, 1999 and in less than a year, he was appointed as Justice of the Supreme Court on February 4, 2000. What was behind his swift elevation to the Supreme Court? Exceptional merit? Even a child knows that such rapid promotions and key appointments in Pakistan do not happen without the support and help of the ‘real masters’ in the establishment.

    There are reasons to believe that Iftikhar Chaudhry’s actions were related to a split within the establishment in 2006-2007 as a group of generals were not happy with some of Musharraf’s policies. His increasing isolation was made it easier for these generals to undermine his authority at a time when the Americans too were contemplating changes on Pakistan’s political chess board.

    Some press reports in early 2006 had indicated that the United States was having second thoughts about Musharraf. Asia Times reported (Jan. 12, 2006)quoting unnamed sources in the U.S. that “Washington has now decided that the best outcome would be for a new man to replace Musharraf, 64, as chief of army staff, and at the same time to encourage liberal democratic forces to take over parliament.” The report noted that with the “Taliban nowhere near defeated in Afghanistan and Osama bin Laden and al-Qaeda still unbroken (the two major reasons that the US solicited Pakistan’s assistance in the first place), the US is looking at its allies in Islamabad in a new light.”

    At the same time, Musharraf’s position on Kashmir caused resentment among the hawks in the military. In December 2006, Musharraf told the Indian New Delhi Television (NDTV) channel that Pakistan could be willing to give up its claim to Kashmir if India agrees to a self-government plan for the disputed Himalayan region. He had said his country would back wide-ranging autonomy or self-governance for Kashmir, with Islamabad and New Delhi jointly supervising the region. Asked whether Pakistan would be ready to give up its claim to Kashmir, he said: “We will have to … if this solution comes up.”

    It should be noted that Kayani is believed to be hawkish on India. Chris Alexander ( Ambassador of Canada to Afghanistan [2003 to 2005] and Deputy Special Representative of the UN Secretary-General for Afghanistan from 2005 until 2009 wrote in the Globe and Mail July 30, 2010:“ The Pakistan army under Gen. Kayani is sponsoring a large-scale, covert guerrilla war through Afghan proxies – whose strongholds in Baluchistan and Waziristan are flourishing. Their mission in Afghanistan is to keep Pashtun nationalism down, India out and Mr. Karzai weak.”

    It is interesting to recall that shortly after February 2008 elections, the intelligence agencies had secretly allowed the Kashmiri militants to reorganize. Pakistan’s Dawn News reported April 25 2008:

    “several banned Kashmiri militant groups were resurfacing in major Pakistani cities and members of prominent groups like Harkat ul Mujahideen, al Badr, Harkat-e-Islami, Jaish-e-Muhammad and Hizbul Mujahideen reportedly were setting up new offices, changing their names, putting up flags and posters, holding large rallies, and delivering sermons in mosques to publicize the groups’ activities”. The news channel specified that Harkat ul Mujahideenhas relocated its base from Islamabad to the city outskirts in Rawalpindi and was considering renaming itself Ansar-ul-Ummah, while Jaish-e-Muhammad was still deciding on a name change.

    Musharraf’s complete reliance on Shaukat Aziz on economic matters and support on the question of privatization of Pakistan Steel Mills did not go well with many serving and retired generals. The then Chairman of the Steel Mills, Lt.Gen (rtd.) Abdul Qayyum who was not in favor of the privatization told GEO TV on May 24, 2008: “When the case was being heard by a full court of the Supreme Court, President Musharraf called him (Justice Iftikhar) and asked as to what kind of remarks he (Musharraf) was hearing from him, adding the case should be decided in a manner that it does not cause any loss to the country. To this, Justice Iftikhar said, “You shouldn’t worry. I will decide the case in the best interest of the country.” The next day [June 23, 2006] when the Supreme Court judgment in the case came, it was totally against the expectations of the president. It was then that a row between the president and the then chief justice ensued.”

    Justice Chaudhry had no qualms about principles of conduct or the appropriateness of discussing a case under hearing, and giving assurances as to the outcome. However, what is not clear as to what caused his about turn despite having assured Musharraf not to worry ? CJ Chaudhry saw Musharraf on several occasions and regularly met with the chiefs of ISI, IB, and MI. As per official records, Iftikhar Chaudhry, made ten formal calls on the President Musharraf, all at his request. The details of the meetings between the President Musharraf and Iftikhar Chaudhry both as Judge of the Supreme Court and CJ are given below:

    -Date Venue

    As Judge of SCP

    07-10-2004 Army House

    07-05-2005 Camp Office

    As CJ

    04-10-2005 Army House

    16-12-2005 Camp Office

    17-12-2005 Aiwan-e-Sadr

    19-05-2006 Camp Office

    01-06-2006 Army House

    04-10-2006 Army House

    13-02-2007 Aiwan-e-Sadr

    09-03-2007 Camp Office

    At the same the Supreme Court was showing “defiance and independence”, background moves were afoot to replace Musharraf. As early as March 2007, influential U.S. think-tanks such as the Council on Foreign Relations (CFR) appeared to be writing Musharraf’s epitaph. The CFR published an analysis on March 19, 2007 noting that the domestic turmoil did not bode well for Musharraf, and predicted, “Once the dust settles, Musharraf will lose sovereignty, whether he continues to rule or not, and the military will be forced to share political power with civilian institutions.”

    A U.S. intelligence company, Stratfor, once called the ‘shadow C.I.A.’ published a report titled “Pakistan: The Future Military Leadership”on June 8, 2007 predicting Kayani would play a key role in replacing Musharraf. The report said: “The task of removing the increasingly unpopular Musharraf — especially since Hayat is due to retire — would make the process very complicated, to say the least. Furthermore, Hayat is known to be mild-mannered, which makes him unlikely to initiate Musharraf’s removal. Instead, a consensus among corps commanders and certain key agency heads would be required. This is where the other four-star general, Ehsan-ul-Haq, who has served as head of the military’s two intelligence directorates, could play an important role. However, Ehsan-ul-Haq’s position is ceremonial. This makes the role of the corps commanders — who already are key because they are in command of the troops — all the more important. From the seniority standpoint, Majeed and Kiyani would be the key deciding players.”

    It has rarely been highlighted, if ever, that on September 28, 2007, a Supreme Court bench constituted by Iftikhar Chaudhry, had held the petitions against Musharraf’s eligibility to contest Presidential election to be “not maintainable” under Article 184 (3) of the Constitution. It was Justice Iftikhar Chaudhry who had constituted the bench and did not entertain the pleas from Justice (r) Fakhruddin G. Ibrahim, who had written a letter to the CJ, asking him to form the full court and also invite the Chief Justices of High Courts to sit on the bench. Justice Wajihuddin had publicly expressed reservations about the constitution of the bench but Iftikhar Chaudhry did not budge.

    This was the murkiest aspect of the whole saga.

    Why did Justice Chaudhry not form the full court?

    Why most of the judges who had restored him earlier in July 2007 were excluded from the bench that heard the petition against Musharraf’s eligibility to contest the election for president?

    Why did it take three weeks for the bench to come with this verdict, which practically facilitated the re-election of Musharraf as President?

    What was the game? Who was playing the tune?

    Was it because the deal had gone through? Musharraf had agreed to take off the uniform and appoint a new chief, and the establishment, with the concurrence of the United States, was then happy to let him continue for a while as a civilian president?

    The New York Times published a report Jan. 7, 2008 titled, “In Musharraf’s Shadow, a New Hope for Pakistan Rises” quoting analysts who said:

    ‘General Kayani will remain loyal to Mr. Musharraf to a certain extent. But they say he will not back Mr. Musharraf if his actions are viewed as damaging the army.“He’s loyal to Musharraf to the point where Musharraf is a liability and no longer an asset to the corporate body of the Pakistani military,” the NY Times quoted Bruce Riedel, a former C.I.A. and White House official who is an expert on Pakistan. “They will say: ‘Thank you very much for your interest in security affairs. Here is your ticket out of the country.’

    Judges who have risen to the top on the crutches of intelligence agencies and by taking oath (in some cases more than once) on PCOs and therefore committing high treason can’t ensure decent justice in the ordinary course let alone the attainment of the lofty ideals of independent judiciary and the rule of law. They must be stopped from arrogating to themselves the right to make amendments in the constitution. The history and the context of Pakistan does not support such a proposition specially if supported by the likes of Hafeez Pirzada or other such lawyers who have been accepting bribes from the ISI in the past.

  2. Humza: yes it is the same Kh. Haris. He has now resigned from his post. He is associated with the Mian family for many years. He had also defended NS in Sindh High Court in appeal against his conviction in plane hijacking case in 2000. ( the assertion that NS did not go into appeal against conviction because of his distrust in the judiciary of Pervaiz Musharraf as pleaded in the SC of Iftikhar Ch. is wrong but Sc accepted it without confronting.. jo chahay aap ka husn e karishma saz karay). The same Kh. Haris had taken the point that the PM (NS) had ordered to divert the plane from Karachi to avert coolision between Army and Police.

  3. furher more to kh. haris I feel that he is being taken as judge LHC before the elder Kh. retires in December 2010.

  4. Amir Mughal: Kh. Sharif is a strange character but is blue eyed boy of the establishment ( The Judges, Beaurocracy and Media ) who in turn take dictation from Dollar. His famous outburst anout PPP leaving Punjab Govt. for being angry on Rana Maqbool didnt lead aby suo moto from CJP, the biggest reformist journalist Ansar abbasi took it a slip of tongue or even went on to say that the Khawaja was compelled to say this by PPP.
    Let us examine the statement and status of Rana Maqbool. Rana is a proclaimed absconder. It is not the PPP or the Govt. of Sindh or Federal which has declared him absconder. A learned Judge of The Sindh High Court has done so after due deliberations in accordance with the Law. Khawaja’s remarks should be taken in this scenario. His advice to the PPP is actually an advice to the Judge of Sindh High Court to leave if he is irritated with Rana Maqbool. this aspect of his statement has never been discussed in media. I think the statement is not only political but also tentamount to Contempt of Court.

  5. Judicial appointment process under fire By Cyril Almeida
    Sunday, 05 Sep, 2010

    Salman Raja, a Supreme Court advocate representing several ‘interveners’ in the 18th Amendment proceedings, warns about the consequences of a judgment against parts of the amendment: “To strike down the Parliamentary Committee, they have to build an edifice first. Here the ‘basic structure’ most handy is the Objectives Resolution because it has an Islamic basis and because it refers to judicial independence. But a basic structure built around the Objectives Resolution would be a disaster.”

    Mr Raja points out that after the Objectives Resolution was made a substantive part of the constitution by the 1985 parliament, a series of court judgments began to attack existing legislation.

    “They went after the Muslim Family Laws Ordinance, on polygamy, on the need for a wife’s permission in order for a man to marry again, on the inheritance of grandkids whose parent passed away before the grandparent. They went after insurance laws because they concern contracts based on chance,” said Mr Raja.

    “It culminated with a three-member bench of the Lahore High Court declaring un-Islamic Article 45 (the president’s power to grant pardons) on the grounds that only the heirs had the right to grant pardon.”

    Finally, two judgments in 1992 and 1993 ruled that neither constitutional provisions nor ordinary law could be struck down on the grounds of being in violation of the Objectives Resolution, according to Mr Raja, who added, “If the court finds a ‘basic structure’ now on the basis of the OR, the floodgates would open again. Suddenly, everything will be controlled by a judge’s interpretation of religious edicts under the OR.”

    Last week the Advocate General of Sindh, Yousuf Leghari, called for the deletion of the Objectives Resolution from the constitution altogether in his remarks before the 17-member bench.

  6. will be controlled by a judge’s interpretation of religious edicts under the OR.”
    The NRO case, Dr Mubashar Hasan and others versus the federation, has once again stirred a hornet’s nest. There is thunderous applause for bringing the accused plunderers and criminals to justice and widespread speculation on the resignation of the president. Very little analysis is being done on the overall effect of the judgment itself. While, the NRO can never be defended even on the plea of keeping the system intact, the Supreme Court judgment has wider political implications. It may not, in the long run, uproot corruption from Pakistan but will make the apex court highly controversial.

    Witch-hunts, rather than the impartial administration of justice, will keep the public amused. The norms of justice will be judged by the level of humiliation meted out to the wrongdoers, rather than strengthening institutions capable of protecting the rights of the people. There is no doubt that impunity for corruption and violence under the cover of politics and religion has demoralised the people, fragmented society and taken several lives. It needs to be addressed but through consistency, without applying different standards, and by scrupulously respecting the dichotomy of powers within statecraft. In this respect the fine lines of the judgment do not bode well.

    The lawyers’ movement and indeed the judiciary itself has often lamented that the theory of separation of powers between the judiciary, the legislature and the executive has not been respected. The NRO judgment has disturbed the equilibrium by creating an imbalance in favour of the judiciary. The judgment has also sanctified the constitutional provisions of a dictator that placed a sword over the heads of the parliamentarians. Moreover, it has used the principle of ‘closed and past transactions’ selectively. It is not easy to comprehend the logic of the Supreme Court that in a previous judgment it went beyond its jurisdiction to grant life to ordinances — including the NRO — protected by Musharraf’s emergency to give an opportunity to parliament to enact them into law. If the NRO was violative of fundamental rights and illegal ab initio, then whether the parliament enacted it or not it would have eventually been struck down. By affording parliament an opportunity to own up to the NRO appears to be a jeering gesture unbecoming of judicial propriety.

    The NRO judgment has struck down the law also for being violative of Article 62(f), which requires a member of parliament to be, ‘Sagacious, righteous and non-profligate and honest and ameen’. Hence, the bench will now judge the moral standing of parliamentarians on these stringent standards set by the notorious Zia regime. This article of the constitution has always been considered undemocratic and a tool to keep members of parliament insecure. If parliamentarians, who also go through the rigorous test of contesting elections in the public domain, are to be subjected to such exacting moral standards then the scrutiny of judges should be higher still.
    After all, judges are selected purely on the value of their integrity and skills. Judges who erred in the past seek understanding on the plea that they subsequently suffered and have made amends. Should others also not be given the same opportunity to turn over a new leaf? How will sagacity and non-profligate behaviour be judged?

    Apart from Dr Mubashar Hasan, not even the petitioners of the NRO case are likely to pass the strenuous test laid down in Article 62 of the constitution. This could well beg the question whether it is wise for those in glass houses to be pelting stones.The judgment goes much further. It has assumed a monitoring rather than a supervisory role over NAB cases. In India, the supreme court directly interfered in the Gujarat massacre but it did not make monitoring cells within the superior courts. Is it the function of the superior courts to sanctify the infamous NAB ordinance, the mechanism itself and to restructure it with people of their liking? It is true that the public has greater trust in the judiciary than in any other institution of the state, but that neither justifies encroachment on the powers of the executive or legislature nor does it assist in keeping an impartial image of the judiciary. The long-term effects of the judgment could also be counter-productive; perpetrators are often viewed as victims if justice is not applied in an even-handed manner and if administered in undue haste with overwhelming zeal. It is therefore best to let the various intuitions of state take up their respective responsibilities because eventually it is the people who are the final arbiters of everyone’s performance. REFERENCE: Another aspect of the judgment By Asma Jahangir Saturday, 19 Dec, 2009

    ’عدلیہ غیر جانب دار نہیں رہی‘

    آخری وقت اشاعت: جمعـء, 19 فروری, 2010, 05:58 GMT 10:58 PST

    ’عدلیہ دائرہ کار سے تجاوز کر گئی ہے‘

    علی سلمان
    بی بی سی اردو ڈاٹ کام، لاہور

    عدلیہ کا کام ارکانِ پارلیمان کی اخلاقیات کی جانچ پڑتال نہیں
    آخری وقت اشاعت: ہفتہ, 19 دسمبر, 2009, 05:25 GMT 10:25 PST

    پاکستان انسانی حقوق کمشن کی چیئرپرسن عاصمہ جہانگیر نے این آر او کے بارے میں سپریم کورٹ کے فیصلے پر تبصرہ کرتے ہوئے کہا ہے ’عدلیہ اپنے دائرہ کار سے تجاوز کرگئی ہے اوریہ بہت ہی خطرناک بات ہوگی کہ سپریم کورٹ اراکین پارلیمان کی اخلاقیات پر فیصلے دے۔‘

    عاصمہ جہانگیر نے بی بی سی اردو ڈاٹ کام سے گفتگو کرتے ہوئے کہا کہ جس طریقے سے فیصلہ آیا اور مانیٹرنگ سیل بنائے گئے اور سارے اراکین پارلیمان کو ایک طرح سے وارننگ دی گئی کہ ان کے کردار کی چھان بین ہوسکے گی ’وہ سمجھتی ہیں کہ عدلیہ اپنے دائرے سے باہر نکلی ہے۔‘

    انہوں نے کہا وہ اس بات کی توقع نہیں رکھتی تھیں کہ عدلیہ اب اس بات کی جانچ پڑتال شروع کردے گی کہ ممبران کے اخلاقیات کیا ہیں۔

    عاصمہ جہانگیر نے کہا کہ اراکین اسمبلی تو الیکشن لڑ کر آتے ہیں لیکن جج تو اپنی ساکھ کی وجہ سے آتے ہیں اگر ممبران پارلیمان کے لیے معیار اتنا بلند کردیا جائے کہ کوئی اس پر پورا نہ اتر سکے تو پھر عدلیہ کا معیار تو اس سے بھی بہت بلند ہونا چاہیے۔

    انسانی حقوق کمشن پاکستان کی سربراہ نے کہا کہ ’یہ جوڈیشل ایکٹوازم نہیں ہے بلکہ عدلیہ اپنی اتھارٹی کو بہت زیادہ آگے لے گئی ہے۔اب اس نے مانیٹرنگ سیل قائم کرنے کی بات کر دی ہے۔یہ بھی دیکھا جائے گا کہ کس میکنزم کے مطابق کام ہوگا۔‘

    ’عدلیہ کی سپرویژن تو ہوتی ہے لیکن مانیٹرنگ سیل ہم نے آج تک نہیں دیکھا کہ اس طریقے بنائے گئے ہوں۔‘

    انہوں نے کہا کہ وہ سمجھتی ہیں کہ تقسیم اختیارات کا نظریہ متاثر ہوا ہے۔’عدلیہ کو اپنے رویے پر غور کرنا چاہیے اس کا اپنا ایک مقام ہے اور اسے اپنے اس مقام پر واپس چلے جانا چاہیے۔وہ کسی خاص معاملے یا کیس میں اپنی دلچسپی نہ دکھائے۔‘

    ’وہ انصاف ضرور کریں لیکن یہ مخصوص نہ ہو بلکہ مساویانہ انداز سے ہونا چاہیے کیونکہ یہ نہ صرف ملک کے لیےبلکہ خود ان کے لیے بھی اچھا نہیں ہوگا۔‘

    ایک سوال کے جواب میں انہوں نے کہا کہ وہ اس فیصلے کے خلاف اسی صورت میں اپیل کرسکتی تھیں جب اس عدالت سے بڑی بھی کوئی عدالت ہوتی۔انہوں نے کہا کہ سپریم کورٹ کے سترہ رکنی بنچ نے ایسا فیصلہ سنا دیا ہے جس کی کہیں اپیل بھی نہیں ہوسکتی۔

    ’انسان آخر انسان ہوتا ہے اس سے غلطی ہوسکتی ہے اسی لیے اپیل کا حق رکھا جاتا ہے۔ یہ بھی سوچنے کی بات ہے کہ اتنے بڑے فیصلے کردیئے جائیں اور اس کی کہیں اپیل بھی نہ ہوسکے۔‘

    انہوں کہا کہ وہ یہ نہیں کہتیں کہ عدلیہ فیصلے نہ دے لیکن جو بھی کرے بہت سوچ سمجھ کر کرے۔

    عاصمہ جہانگیر نے کہا کہ اس سے کوئی انکار نہیں کرسکتا کہ جن لوگوں نے لوٹ مار کی ہے ان کے مقدمات عدالتوں میں چلنے چاہیے اور یوں اجتماعی معافی نہیں ہونی چاہیے لیکن عدلیہ نے جس انداز میں فیصلے کیے ہیں اس پر انہیں تحفظات ہیں۔

    دریں اثناء انسانی حقوق کمشن آف پاکستان نے ایک بیان جاری کیا ہے جس میں بعض افراد کے بیرون ملک نقل وحرکت پر پابندی کو بنیادی حق کی خلاف ورزی قرار دیا ہے اور کہا ہے کہ کمشن کو اس بات پر پریشانی ہے کہ حکام نے ایگزٹ کنٹرول لسٹ آرڈیننس کا اطلاق کردیا ہے جسے کبھی بھی منصفانہ نہیں سمجھا گیا۔کمشن کی سربراہ عاصمہ جہانگیر نے کہاکہ پیشگی نوٹس اور مناسب وجوہات بیان کیے بغیر پابندی عائد کرنا اس بنیادی حق کی خلاف ورزی ہے جس کی ضمانت ملک کا آئین دیتا ہے۔انہوں نے کہا کہ جن لوگوں کے خلاف عدلیہ میں مقدمات چل رہے ہوں ان کے بیرون ملک سفر پر پابندی عائد کرنا ضروری نہیں ہے ان کے فرار کو روکنے کے لیے عدالت میں قانونی سطح پر یقین دہانی حاصل کی جاسکتی ہے۔انہوں نے کہا کہ ایگزٹ کنٹرول لسٹ کو ماضی میں سیاسی طور پر حراساں کرنے کے لیےاستعمال کیا جاتا رہا ہے اور اب ایگزٹ کنٹرول لسٹ کا عدالتی فیصلے کی آڑ میں من مانے طریقے سے استعمال کسی آفت سے کم نہیں سمجھا جائے گا۔انہوں نے کہا کہ قومی دولت لوٹنے والوں کے خلاف جو قانونی کارروائی کی جارہی ہے وہ کافی ہے، حکام کو بے جا غصے اور جوش میں آکر ایسے ناجائز اقدام نہیں کرنے چاہیے جنہیں وہ انصاف سمجھتے ہوں۔