Conspirators in the judiciary – by R.A. Toori
Conspiracies, hate-mongering, cynicism, criticism, scepticism and sycophancy are the hallmarks of Pakistan’s politics. In fact Pakistan’s political history is replete with palace intrigues and conspiracies. From the founder of Pakistan Qauid-e-Azam Muhammad Ali Jinnah to President Asif Ali Zardari, we have witnessed great political upheavals, amid crucial crests and troughs. Neither the political mainstream, nor the judiciary or bureaucracy has ever relinquished its old bad ways—the recent upheaval is not an enigma but a de ja vu.
Democracy has never breathed a sigh of relief in 63 years of our history. Sometimes it was over shadowed by dictatorships and sometimes by the pundits of Judiciary. After Musharraf’s departure, we pleasantly observed a good sign when the Chief of Army Staff refused to interfere in political business despite several calls by the so-called democratic leaders. Unfortunately, however, judiciary once again has refused to surrender its hegemonic demeanour.
A brief look into history would reveal that Judiciary never felt ashamed to intervene in political matters. Judges of the superior courts take oath to abstain from politics but members of the Judiciary hardly seem to neither uphold this oath nor show respect for the Constitution.
Justice Munir was the first to lay the foundation of constitutional deviation. He was the one who introduced the concept of “Doctrine of Necessity” validating the dismissal of Khawaja Nazimuddin’s government by Governor General Ghulam Muhammad. In 1958 the same Justice Munir upheld General Ayub’s military take-over on the basis of the Keynesian doctrine of ’successful revolution being legal’. This was the first capitulation of Judiciary before an autocrat.
Later, Justice Anwaar ul Haq and Justice Naseem Hassan Shah bowed and nodded their heads to the uniform and in another barefaced shameful episode when Maulvi Mushtaq signed the death warrants of Bhutto, the flag-bearer of democracy, giving new lease of life to military dictators. In 1990, when Ghulam Ishaq Khan dismissed Benazir Bhutto, only Peshawar High Court reversed the decision restoring the provincial assembly – which decision was reversed when challenged in the Supreme Court.
Keeping the past history in mind Justice Sajjad Ali Shah started the trend of suo-moto cases in Pakistan. His partisan role can be recalled when he dismissed the petitions challenging 1996 dismissal of government just 3 days before the elections in February 1997. When Musharraf overthrew Nawaz Sharif, Justice Iftikhar Chaudhry was one of the 12 Supreme Court judges who validated the military coup of Gen Pervez Musharraf, in the ‘Judgment on 17th Amendment and President’s Uniform Case’, and then Justice Iftikhar Chaudhry was one of five Supreme Court judges who dismissed all petitions challenging General Musharraf’s constitutional amendments.
After committing these serious errors, Iftikhar Chaudhry became a ‘hero’ overnight by playing his infamous trump card of judicial freedom. Finally he succeeded in his efforts in befooling the nation. And soon after his restoration, he followed in the footsteps of his predecessors. Using all the tactics up his sleeves, he has been threatening the government sometimes in the name of NRO and sometimes by indulging in the Executive’s functions.
Despite being a symbol of justice, he has never dispensed it and it is no wonder, as how a person, himself violating the sacred document, the Constitution of Pakistan, can dispense Justice.
The Constitution of Pakistan clearly cites that every pillar of state should function within its parameters, but after the political manoeuvring of Justice Iftikhar Chaudhry it seems that new dimensions are being laid for separation of powers. Iftikhar Chaudhry has surpassed even his predecessors; he is clearly inclined to grabbing the powers of executive also. The recent decisions to axe DG FIA Waseem Ahmed and then Chairman NAB (National Accountability Bureau) Deedar Shah, leaves no ambiguity that Judiciary is violating constitutional vires.
People had physically stood up in support of Judiciary when it was in severe crisis but were not poised to fight for its vested interests or to act as dummy for establishment. They endorsed Iftikhar Chaudhry only so that he could dispense speedy justice. Even now innumerable cases are pending in lower courts. From childhood to youth and youth to death people keep on pleading their cases but fail to get justice.
I guess that the Chief justice is well aware about the popular saying that “justice delayed is justice denied”. When will the people fighting for their rights since decades get justice? Was this the destiny people had struggled for in restoration of Iftikhar Chaudhry? I am sure all of us are now ashamed of supporting another Saif-ur-Rehman.
‘PPP free to express views regarding SC’s decision on NAB’s chairman’
Staff Report
LAHORE: Punjab People’s Lawyers Forum (PLF) Senior Vice President (SVP), Malik Nasir Awan, and Additional General Secretary (AGS), Rana Sufyan Arshad, have said that the Pakistan People’s Party (PPP) is free to express their views with regards to the Supreme Court’s decision against the National Accountability Bureau’s chairman.
In a statement issued on Friday, they said that the people of Sindh believe that they are being judicially targeted. The positive criticism on a decision should not be taken as a confrontation among state institutions, the PLF officials said. The SVP and the AGS mentioned that if retired people are not allowed to work in other departments then why was the same policy being implemented in the Supreme Court.
http://www.dailytimes.com.pk/default.asp?page=2011%5C03%5C13%5Cstory_13-3-2011_pg13_6
Basic Principles on the Independence of the Judiciary
http://www2.ohchr.org/english/law/indjudiciary.htm
Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985
Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia , their determination to establish conditions under which justice can be maintained to achieve international co-operation in promoting and encouraging respect for human rights and fundamental freedoms without any discrimination,
Whereas the Universal Declaration of Human Rights enshrines in particular the principles of equality before the law, of the presumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial tribunal established by law,
Whereas the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights both guarantee the exercise of those rights, and in addition, the Covenant on Civil and Political Rights further guarantees the right to be tried without undue delay,
Whereas frequently there still exists a gap between the vision underlying those principles and the actual situation,
Whereas the organization and administration of justice in every country should be inspired by those principles, and efforts should be undertaken to translate them fully into reality,
Whereas rules concerning the exercise of judicial office should aim at enabling judges to act in accordance with those principles,
Whereas judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens,
Whereas the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, by its resolution 16, called upon the Committee on Crime Prevention and Control to include among its priorities the elaboration of guidelines relating to the independence of judges and the selection, professional training and status of judges and prosecutors,
Whereas it is, therefore, appropriate that consideration be first given to the role of judges in relation to the system of justice and to the importance of their selection, training and conduct,
The following basic principles, formulated to assist Member States in their task of securing and promoting the independence of the judiciary should be taken into account and respected by Governments within the framework of their national legislation and practice and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general. The principles have been formulated principally with professional judges in mind, but they apply equally, as appropriate, to lay judges, where they exist.
Independence of the judiciary
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.
Freedom of expression and association
8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.
9. Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.
Qualifications, selection and training
10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.
Conditions of service and tenure
11. The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.
12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.
13. Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.
14. The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration.
Professional secrecy and immunity
15. The judiciary shall be bound by professional secrecy with regard to their deliberations and to confidential information acquired in the course of their duties other than in public proceedings, and shall not be compelled to testify on such matters.
16. Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.
Discipline, suspension and removal
17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.
18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.
19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.
As per International Criminal Court, Judges must follow the following principles while they are Judges:
Noting the solemn undertaking required by article 45 of the Rome Statute of the International Criminal Court (the “Statute”) and rule 5 (1) (a) of the Rules of Procedure and Evidence (the “Rules”);
Recalling the principles concerning judicial independence, impartiality and proper conduct specified in the Statute and the Rules;
Recognising the need for guidelines of general application to contribute to judicial independence and impartiality and with a view to ensuring the legitimacy and effectiveness of the international judicial process;
Having regard to the United Nations Basic Principles on the Independence of the Judiciary (1985) and other international and national rules and standards relating to judicial conduct;
Mindful of the international character of the Court and the special challenges facing the judges of the Court in the performance of their responsibilities;
Have agreed as follows:
Code of Judicial Ethics
Article 1
Adoption of the Code
This Code has been adopted by the judges pursuant to regulation 126 and shall be read subject to the Statute, the Rules and the Regulations of the Court.
Article 2
Use of terms
In this Code of Judicial Ethics the terms “Court”, “Statute”, “Rules” and “Regulations” shall have the meaning attached to them in the Regulations of the Court.
Article 3
Judicial independence
1. Judges shall uphold the independence of their office and the authority of the Court and shall conduct themselves accordingly in carrying out their judicial functions.
2. Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence.
Article 4
Impartiality
1. Judges shall be impartial and ensure the appearance of impartiality in the discharge of their judicial functions.
2. Judges shall avoid any conflict of interest, or being placed in a situation which might reasonably be perceived as giving rise to a conflict of interest.
Article 5
Integrity
1. Judges shall conduct themselves with probity and integrity in accordance with their office, thereby enhancing public confidence in the judiciary.
2. Judges shall not directly or indirectly accept any gift, advantage, privilege or reward that can reasonably be perceived as being intended to influence the performance of their judicial functions.
Article 6
Confidentiality
Judges shall respect the confidentiality of consultations which relate to their judicial functions and the secrecy of deliberations.
Article 7
Diligence
1. Judges shall act diligently in the exercise of their duties and shall devote their professional activities to those duties.
2. Judges shall take reasonable steps to maintain and enhance the knowledge, skills and personal qualities necessary for judicial office.
3. Judges shall perform all judicial duties properly and expeditiously.
4. Judges shall deliver their decisions and any other rulings without undue delay.
Article 8
Conduct during proceedings
1. In conducting judicial proceedings, judges shall maintain order, act in accordance with commonly accepted decorum, remain patient and courteous towards all participants and members of the public present and require them to act likewise.
2. Judges shall exercise vigilance in controlling the manner of questioning of witnesses or victims in accordance with the Rules and give special attention to the right of participants to the proceedings to equal protection and benefit of the law.
3. Judges shall avoid conduct or comments which are racist, sexist or otherwise degrading and, to the extent possible, ensure that any person participating in the proceedings refrains from such comments or conduct.
Article 9
Public expression and association
1. Judges shall exercise their freedom of expression and association in a manner that is compatible with their office and that does not affect or appear to affect judicial independence or impartiality.
2. While judges are free to participate in public debate on matters pertaining to legal subjects, the judiciary or the administration of justice, they shall not comment on pending cases and shall avoid expressing views which may undermine the standing and integrity of the Court.
Article 10
Extra-judicial activity
1. Judges shall not engage in any extra-judicial activity that is incompatible with their judicial function or the efficient and timely functioning of the Court, or that may affect or may reasonably appear to affect their independence or impartiality.
2. Judges shall not exercise any political function.
Article 11
Observance of the Code
1. The principles embodied in this Code shall serve as guidelines on the essential ethical standards required of judges in the performance of their duties. They are advisory in nature and have the object of assisting judges with respect to ethical and professional issues with which they are confronted.
2. Nothing in this Code is intended in any way to limit or restrict the judicial independence of the judges.
“Pakistan’s Judiciary” 2nd Most Corrupt Institution …Transparency International Report 2010 http://www.youtube.com/watch?v=E7fyNs8Jl-s
Army, Judiciary and Pakistan http://www.youtube.com/watch?v=oEWrCWw4hrY&feature=related
I find it amazing how the senior judges of the court have taken the government to task, but remain silent on retrieving the missing persons and the cases filled against the military and the ISI regarding illegal detentions. Quite convenient it seems. Further, cases filled against the various DHA’s and various military welfare organizations all seem to have lost the interest of the supreme court. I guess we are all equal before the courts, but some are more equal than others.
SLOP (Ch) is playing a good cricket with a complete team of 15. Don’t wait what will happen but every democratic should react now.
@author
i am amazed the beginning never had “babar awan” as the author………….
lets b honest……why u never compared the performance of any previous cj with the present????it seems you have decided to frame him while keeping the merit score of Mr Edhi…………the guy is honest, professional and above all a patriot……….systemetic and administrative restrains have limited him,,,,,but I am sure that he has surpassed nearly every soul walking in the corridor of power when it comes to delivering the masses………….the sitting government has made a mockery of the entire system……..but every game has an end…………lets c
“When Musharraf overthrew Nawaz Sharif, Justice Iftikhar Chaudhry was one of the 12 Supreme Court judges who validated the military coup of Gen Pervez Musharraf, in the ‘Judgment on 17th Amendment and President’s Uniform Case’, and then Justice Iftikhar Chaudhry was one of five Supreme Court judges who dismissed all petitions challenging General Musharraf’s constitutional amendments”.Said Raza Toori
Chief of Choudhris should apologize on his previous decisions too!
HE Mallah
What is your problem. If I accept the Cheif Justice, who are you to criticse him? Are you a Jiala? If so quote your ID Number.
This blog is as corrupt as me. The comments right above were posted by me but they have given a different name. Why do you give credit to some one else? Are you ashamed of me? You should be becasue I am your paymaster.
Do not change it now. There you good Jilas.
Ch Nisar aka Andheri Raat says:
March 14, 2011 at 3:28 pm
This blog is as corrupt as me. The comments right above were posted by me but they have given a different name. Why do you give credit to some one else? Are you ashamed of me? You should be becasue I am your paymaster.
Do not change it now. There you good Jilas.
3rd post
@administrator……..
the way journalism is followd on dis site…..i wonder Rauf Klasra isnt ur teacher>>>>>>>>>>>
This blog is as corrupt as me. The comments right above were posted by me but they have given a different name. Why do you give credit to some one else? Are you ashamed of me? You should be becasue I am your paymaster.
Do not change it now. There you good Jilas.
Imran Khan (the 100% Taliban Supporter)
4th Post
blog is as corrupt as me. The comments right above were posted by me but they have given a different name. Why do you give credit to some one else? Are you ashamed of me? You should be becasue I am your paymaster.
Do not change it now. There you good Jilas.
Zardari Asif
Criminal Silence of Pakistani Judiciary on Journalists – Part – 1 (Matiullah Jan Dawn News) http://www.youtube.com/watch?v=LOw0J9VqnHg
Criminal Silence of Pakistani Judiciary on Journalists – Part – 2 (Matiullah Jan Dawn News) http://www.youtube.com/watch?v=Rw3XE6JHZSg
Criminal Silence of Pakistani Judiciary on Journalists – Part – 3 (Matiullah Jan Dawn News) http://www.youtube.com/watch?v=oW_hvbwzn-E
Criminal Silence of Pakistani Judiciary on Journalists – Part – 4 (Matiullah Jan Dawn News) http://www.youtube.com/watch?v=3iiqMPpNgQM
Criminal Silence of Pakistani Judiciary on Journalists – Part – 5 (Matiullah Jan Dawn News) http://www.youtube.com/watch?v=PW866RxSWQ0
CJ Iftikhar Chaudhry & Judiciary is silent on Raymond Davis (Aaj Ki Khaber 17 March 2011)
http://www.youtube.com/watch?v=npdcSne0L0Q