Cowasjee: Who can tolerate an independent judiciary?

By Ardeshir Cowasjee
Sunday, 15 Mar, 2009

‘The reality is that neither Nawaz nor Zardari can tolerate free judiciary.’

‘The reality is that neither Nawaz nor Zardari can tolerate free judiciary.’

Now, what with the word ‘disintegration’ being bandied about in the media, the ‘leadership’ we suffer must bear in mind the words spoken by Mohammad Ali Jinnah, who they still profess to still revere.

Over 61 years ago, he firmly told the members of his constituent assembly, three days prior to the birth of this country: ‘…you will no doubt agree with me that the first duty of a government is to maintain law and order….’

Well, it has become more than abundantly clear to the nation and to the world that this government has not the faintest clue as to what constitutes either law or order — that is not to say that any previous government was not afflicted with the same failing.

Another blinding failure is the absence, since the early 1950s, of a truly independent judiciary. For, if the machinery of state is to impose and to maintain law and order, there must be upright and independent-minded men or women sitting on the benches of its courts. Law and order and an independent judiciary go hand in hand and one cannot exist without the other. With what we now have both in government and in the judiciary, hope for law and order is a far cry.

The head of state has been busy appointing judges, all of his choice, to further the subservience of the judiciary to the state. He, at least, has seldom made noises about his desire to have an independent judiciary, whether by oversight or merely because he thinks it would be redundant. On the other hand, we have the Mian of Raiwind, formerly of Lahore, now trumpeting his overwhelming desire for an independent judiciary and his avowal to never surrender until he has put back on the judicial benches those judges dismissed by Musharraf when he lost what was left of his mind on Nov 3, 2007.

The reality is that neither man can tolerate an independent judiciary, as to do so would be quite contrary to their respective political natures. Such has been the case with all those in the top notch for over five decades. Nawaz Sharif’s 1997 physical assault upon the Supreme Court cannot be forgotten or forgiven, as cannot his earlier wish to imprison a sitting chief justice of Pakistan for one night so as to impress upon him who was the boss-man calling the shots. His principled and moral stand, as he terms it, has to be highly suspect.

As husband of the prime minister Asif Ali Zardari is on record as having offered a Supreme Court justice the office of chief justice of Pakistan providing he handed over an undated letter of resignation.

Now we have President Zardari trying to emulate PPP founder Zulfikar Ali Bhutto who extended the tenure of his then chief justice by pushing through the sixth and seventh constitutional amendments. Zardari has been busy attempting to find ways and means to keep on Chief Justice Abdul Hameed Dogar who is due to retire in a matter of days. It is not clear how he can do this — but it is worth a try. If Nawaz Sharif is telling the truth, Zardari offered to make a ‘deal’ with the Brothers Sharif whereby he would see that a favourable verdict was handed down in the Sharif disqualification cases if they agreed to agree to the retention of Dogar.

This government, now tripping over itself, is run by a party which never ceases to proclaim that it is a party ‘of the people’, and thus democratic. Is there not one member who can at least admit that it is neither ‘for the people’ nor has it any credentials that anywhere approach the democratic? Its very basis is highly undemocratic. It has no elected leadership. It is led by a man who was allowed to hijack the party in the name of his assassinated wife within two days of her funeral with the shameless party-people remaining supine. In the good old days of ZAB, self-professed socialist and democrat, there were many amongst us who consistently claimed that the party was more inclined towards the fascistic. This present-day PPP, since Feb 25, has proven that our claims had much foundation which has endured over the long painful years.

With the aid of a pliant judiciary, the head of state has wilfully and knowingly created chaos, disrupting the lives of millions of citizens by its greed and grabbing tactics — the object up for grabs being the government of Punjab. The party and its leader have consolidated themselves in the Senate, the National Assembly and in three provincial assemblies. It wanted a clean sweep.

To get it, they, or rather the supreme leader, used the judiciary. Evidently, the choice of Justice Dogar as Chief Justice of Pakistan to succeed the dismissed and contentious Chief Justice Iftikhar Mohammad Chaudhry was part of the insidious and completely contemptible ‘deal’ engineered by the US and agreed to by the then president, Pervez Musharraf, and Benazir Bhutto before she was removed from the scene when the ‘deal’ was transferred onto the skew-whiff shoulders of Asif Ali Zardari.

Musharraf put his trust in Benazir Bhutto and in those who then were his ‘friends,’ the Americans. His greatest mistake was to put any trust in Zardari, when asked to do so by the friendly US after the Dec 27, 2007 disastrous event. And now, perhaps, the US with its need of a stable, secure Pakistan has realised that it also made a monumental mistake in ignoring past records and the calibre of its chosen anointed successor to Benazir.

That it has had a rethink is evident from the news projected on Friday, if accurate, that chairman of the US Joint Chiefs of Staff Admiral Mike Mullen had stated that Gen Ashfaq Kayani had informed him that he did not wish to take over the country, that his army wished to keep the situation at arm’s length and press for a political resolution.

What is now happening to this country can in no way be dignified as being compared to a Shakespearean tragedy, as has been done in certain media circles abroad. The players at play in our devastated fields cannot in any way match the calibre of characters portrayed by The Bard. The current scenario cannot even be likened to a Gilbert and Sullivan operetta, light and frothy as are their characters, our players being dark and devious, adept at the art of mendacity, double-dealing and turpitude. (Dawn)

12 responses to “Cowasjee: Who can tolerate an independent judiciary?”

  1. NOTE: On August 9, 1990, another one of the country’s short-lived experiments with democracy came to an end. While “The Empire Strikes Back” published in the August 1990 issue of the Herald describes the events that took place on the day of Benazir Bhutto’s ouster, “The Invisible War (See Herald Monthly Issue of January 2008, page 87), printed in the same issue, provides an analysis of the factors that led to the sacking of her government. [Courtesy Monthly Herald Pakistan January 2008, page 84-85-86]

    The Invisible War by Abbas Nasir [Monthly Herald January 2008]

    Was there a covert war raging between a sophisticated intelligence agency and the PPP government? And did the crisis in the Gulf have anything to do with Ms Bhutto’s ouster from office?

    After the dust begins to settle over the dissolution of the assemblies, it becomes clear that Benazir Bhutto’s ouster was directly linked to the fact that the army’s patience with her government had run out. Differences between the two had fuelled much media speculations for the entire duration of the PPP’s 20 month tenure. Issues as diverse as Sindh, Kashmir, postings, corruption, and Afghanistan had caused much tension between the ruling party and the military establishment. But the differences were more deep-rooted than a mere disagreement on some issues. It was clear, from the very outset, that the army had very reluctantly allowed Ms Bhutto to take office, and motivated every move and mistake she made during her 20 – Month Rule.

    The distrust between the Prime Minister and the army has never been too far below the surface and dates back to the period when Ms Bhutto’s father, the executed Prime Minister Zulfikar Ali Bhutto, was in power. According to one analyst, “The defence establishment would have never allowed Benazir to come to power, had it not been for the pressure exerted by the US. Reluctantly, the army bowed to this pressure – probably because Washington controlled its purse strings”

    The attitude of the military towards the PPP and its leader was clearly evident during the run-up to the elections in 1988. One unreported incident from that period perfectly reflects this deep distrust. Knowledgeable sources maintain that a high official of the intelligence set-up came to Karachi just before polls, and convened a meeting of all the candidates contesting from the Lyari constituency, where Ms Bhutto was a candidate. “We can beat her if all of you agree to withdraw and put-up a single candidate against her, “he was quoted as suggesting to them. But such was the foresight of this hotshot that not only did most of the candidates not agree to withdraw, but the PPP leader subsequently won from the area with a margin of votes that six times that of the votes won by all her opponents put together. Another official of the same agency has been credited with the formation of IJI and sources say, he was largely responsible for masterminding the
    anti-PPP campaign in Punjab, which was to work with devastating effect both before and after elections.

    However, on coming to power, Ms Bhutto secured one of the few concessions from the military establishment when she successfully pushed for the removal from the Inter Services Intelligence Directorate of its then Director General Major General Hamid Gul and his Assistant Director General (Internal Security) Brigadier Imtiaz Ahmad. But the removal of Hamid Gul had sting in its tail. Ms Bhutto was not chastened by the fact that the military had forced her to allow the promotion of the ISI strongman, or his posting to the strategically important corps in Multan. Following the appointment as DG of a Benazir nominee, Lt. General (Retd) Shamsur Rehman Kallue, the powers of the Political Cell of the ISI, working in the guise of the Internal Security (IS), were drastically curtailed. However a serving Major General, Khalid Latif Mughal was posted to run the Afghanistan and Kashmir policies. Mughal, formally, and Hamid Gul informally, continued to have a major say
    in both these spheres.

    While the Prime Minister was willing, perhaps, to allow the army a free hand in handling the Afghanistan and Kashmir policies as a price to keep herself in power, her government appeared to have relaxed because the army’s earlier meddling in domestic politics through the ISI had been curtailed. But a couple of transfers and postings were hardly enough to ensure a pliant military high command. And a determined army was hardly something that the inept Benazir Administration could tame quite easily. Although the political cell at the ISI was closed down, the army launched a two-pronged offensive primarily through the media, which to the credit of the PPP government, remained free all through the party’s short, but eventful, tenure in office.

    While on one hand, Brigadier Riazullah, an articulate and charming officer, moved into the barracks outside the GHQ which houses the Inter Services Public Relations Directorate, another officer, known for his competence and pleasant demeanor, occupied an office inside the walls of the GHQ. This was the Director General of the Military Intelligence, Major General Asad Durrani.

    Brigadier Riazullah’s task was to execute General Aslam Beg’s policy of “glasnost” – to wash from the minds of the public, through the media, the negative image of the armed forces had acquired, following the more than a decade long period of Martial Law. The new face of the army was much in evidence when it launched its biggest ever maneuvers – Zarb-e-Momin – in the winter of 1989-90. As a result of an unprecedented media blitz, the “professional soldier” image that the army was beaming out began to sink into public mind slowly but, surely.

    Side by side with the rehabilitation of its image, the army (with ammunition provided by the antics of the PPP government itself) set about destroying the populist aura of the PPP and succeeded in making corruption the most talked about subject in the country. The army was aided in this endeavor, of course, by the blundering Johnny-come- latelies who came to represent the public face of the PPP. It is clear that a great deal of homework was done, in gathering as well as fabricating evidence against prominent PPP members and the Prime Minister’s husband. Mush of this information and disinformation was handed over mainly to the right-wing journalists belonging to some key papers and periodicals, who saw themselves as the natural allies of the army, having enjoyed close ties with the Zia Regime. At least three people were assigned to feed corruption stories to the foreign media.

    The DG, MI also adopted an increasingly high-profile role. Although traditionally the DG, MI is hardly someone, given the sensitivity of his assignment, to come before newsmen, the balding Durrani is understood to have personally briefed more than one journalist about the lack of sincerity on the part of the PPP in handling the Sindh situation. This same officer reportedly maintained contact with dissident PPP members of parliament and dictated strategy to them. Similarly, in Karachi, where the MI had grown to many hundreds-strong since the early 80s, Brigadier Jamil and a couple of other officers personally briefed a select band of newsmen time and again, offering them “evidence” of corrupt and criminal activities of the government. While in Hyderabad these stories were leaked by a Colonel Ayub, in Lahore the main channel of contact with the media was a top aide to fromer Chief Minister, Nawaz Sharif, who coordinated closely with a group of
    Pro-Estbalishment Right Wing Journalists planted in different papers and periodicals.

    And this was not all. There was something more deep-rooted going on, as an interview with at least one Corps Commander revealed. The gentleman insisted on blaming a PPP minister for planting stories against him although this was not the case as independent investigations subsequently revealed. To this day, however, it is not clear who was briefing the Corps Commander on the “enemy-like” attitude of PPP ministers. The urgency of the army’s desire to see Benazir removed is clear from an article by a journalist, reputed to have very close ties with the army bosses. The report, published soon after the fall of the Bhutto government, alleged that while Ms Bhutto was an opposition leader, her mail used to leave the country courtesy the diplomatic pouch of the Indian mission. The journalist proceeded, without naming sources, to question the patriotism of the elected prime minister.

    But despite this deep rooted prejudice, the army tolerated Benazir Bhutto for 20 months. What then was the catalyst to her being pushed out of the office in a “constitutional coup”? Knowledgeable quarters point towards two factors that may have served as the proverbial straw that broke the Camel’s back. The first of these was the Alam Jan Mehsud incident. Lt General Mahsud, the Corps Commander at Lahore enjoyed the reputation of being a top class professional soldier. His excellent strategy during the course of Zarb-e-Momin, defence experts say, earned him the reputation of “Pakistan’s Rommel”. The Prime Minister reportedly conveyed her desire to the GHQ to grant Mahsud an extension, and post him as the Deputy Chief of Army Staff – an act that military establishment viewed as direct interference in the army affairs.

    What they suspected was that Ms. Bhutto was placing a well known dove in a strategic position as a potential successor to the present COAS. The army’s response was swift. A replacement, Lt General Ashraf, was rushed to Lahore and, the day after, Mahsud’s photograph was carried by various newspapers, receiving the Corps Shield as a farewell gift. Within days, Mahsud had left for a month long holiday to the tribal areas Waziristan, to spend time in his home village.

    Knowledgeable quarters say it was in the wake of the Mahsud incident, that a Corps Commander tried to convey to the government that the army was planning to move against it. He reportedly said that the military leadership complained to the President that Ms Bhutto was attempting to foment “divisions” in the rank of the army. The army, which has prided itself on its discipline and the unity in its ranks even during the imposition of Martial Law, couldn’t possibly be expected to tolerate what it perceived to be an attempt to divide it.

    The other important factor that could have acted as a catalyst was the tilt in the balance of relations between the Pakistan Army and the US administration. Ironically, Ms Bhutto has alwayslooked towards the US as a staunch ally. While it is true that the US administration had much to do with the restoration of democracy in Pakistan – as well as the nomination of Ms. Bhutto as prime minister after her party emerged as the largest single party in the elections – it is equally true her party emerged as the largest single party in the elections – it is equally true that the US strategic interest vis a vis Gulf, are far more crucial to it then romantic notions of third world democracy. Well informed sources in Islamabad say that on a number of occasions in the past, Washington had told the army that any attempt to brush aside democracy would be met with a stiff reaction, including a cut off in aid – particularly now that the Soviets had vacated
    Afghanistan. Given Pakistan’s tension with India, the defence establishment was hardly likely to jeopardize relations with its key hardware supplier.

    However, with Iraq’s invasion of Kuwait and the threat of an onward march into Saudi Arabia, the US apparently needed the support of the Pakistan Army. In fact, US Ambassador Robert Oakley told a meeting at the Institute of Strategic Studies in Islamabad, just two days after Benazir’s ouster, that Saudi Arabia had requested troops from Pakistan. Although the once again retained Foreign Minister Sahibzada Yaqub Khan, as well as an army spokesman, denied having received any such request, the US envoy has neither retracted nor clarified his earlier statement.

    Although there has been no report yet of Pakistani troops being sent to Saudi Arabia, eyewitnesses say that they recently saw at least a couple of giant US Air force transport (C-141) aircraft taking off from a Pakistan Air Force Base. To further confirm American acquiescence in recent events in Pakistan, there was highly significant meeting between the three services chiefs, Bob Oakley and the Joint Chiefs of Staff Committee Chairman of the latter’s headquarters in Chaklala, Rawalpindi. This meeting took place on the weekend preceding the dissolution of the assemblies. In it, sources say, the issue was discussed threadbare, after which admiral Sirohey quietly left for Multan on a routine inspection tour.

    The State Department’s quick reaction is hardly attributable to any efficiency at Foggy Bottom. It is clear that prior information was available to them – the denial to the contrary of a USIS official in Islamabad notwithstanding. One thing, however, is clear. The haze of disinformation is still as thick as any fog. But keeping in view the well-oiled machinery that the army has at its disposal, its main political rival, the PPP appears to have been knocked out and has little chance of staging a quick or easy comeback. But whether the army comes out in the open or prefers operate through remote control, only the course of events in the next few months will tell. [Courtesy Monthly Herald Pakistan January 2008, page 87-88-89]

    The Empire Strikes Back by Abbas Nasir [Monthly Herald January 2008]

    August 6, 1655 hours… a group of army officers-whose men have already thrown a ring around the Prime Minister’s Secretariat – enter the multistory white building and advise all the staff to leave and not to return until further orders…

    A similar scene is being enacted at most other key buildings and installations in Islamabad as battle ready troops jump out of their gun-mounted trucks to surround the radio and television stations, the Directorate of Intelligence Bureau, the Federal Investigation Agency, important ministries and, of course, the erstwhile Sindh House – the official residence of the Prime Minister of Pakistan.

    Jawans and officers of the FF Regiment, and contingents from a battalion of the Special Services Group take up positions near the parliament building as the president prepares to address a press conference that has just been announced. The high-profile army presence in the Federal Capital leaves a little doubt in any mind that President Ghulam Ishaq Khan’s announcement has the solid backing of the country’s powerful defence forces..

    By this time, everybody in Islamabad, with the exception, perhaps, of the Pakistan’s People’s Party government has a fair idea of what is happening. The turbulent 20-month honeymoon between PPP and the establishment is all but over. A little after five, the President administers the last rites at a press conference at the Aiwan-e-Sadr. The Empire – which allowed the PPP to take office following polls in November 1988 – has finally decided to strike back.

    After reading from a lengthy charge sheet, President Ishaq quotes a number of constitutional clauses and then announces the dissolution of the national assembly and the dismissal of Benazir Bhutto’s government. Unlike the speech of the late General Ziaul Haq on May 29 1988 – in which he announced the dismissal of Junejo’s Government – Ishaq steps doesn’t surprise anyone. The action comes on the heels of a multitude of corruption scandals, the government’s abject failure in arresting the Sindh situation, reports of serious differences with the army, as well as acrimonious confrontation between the Centre and the Provinces of Punjab and Balochistan.

    Shortly afterwards, the nominated Caretaker Prime Minister Ghulam Mustaf Jatoi takes oath of office, fulfilling a long-standing ambition, and four ministers are sworn in simultaneously. There are two surprise inclusions in the cabinet – Rafi Raza, a man known in the past primarily as an aide to Zoulfikar Ali Bhutto, and for his strong US Connections. Raza has returned following a long absence in the political wilderness. The second surprise is the inclusion of the controversial Ghulam Mustafa Khar, on whom the establishment is reported to have a stack of files as high as the Margalla Hills.

    The two other ministers – Illahi Bux Soomro, who was a minister in the Martial Law period but was pushed out into the cold after having lost in the 1988 elections, Senator Sartaj Aziz, also a minister in the Zia period – are both known Zia loyalists.

    Meanwhile, the Chief of Army Staff, General Mirza Aslam Beg, comes out with the quote of the moment when mobbed by journalists following the oath taking ceremony. “We are not involved in politics. We have never been involved in politics. We will never be involved in politics.”

    Within a matter of hours, Sindh Governor Fakhruddin G. Ebrahim refuses Ishaq’s request to dissolve the provincial assembly and is replaced by Mahmoud A. Haroon , former interior minister in General Zia’s Martial Law government, who then signs the dissolution order. Jam Sadiq Ali, until days earlier a staunch Benazir Bhutto supporter, is sworn in as caretaker chief minister of the troubled province.

    Frontier Governor, Amir Gulistan Janjua, meanwhile sends the Sherpao government and the legislature packing, and Mir Afzal Khan, an industrial tycoon and a former Z.A. Bhutto government minister, takes over as the caretaker chief executive.

    For the opposition-led provincial governments, a more dignified and, perhaps cosmetic exit if facilitated. In the Punjab, Mian Nawaz Sharif is not sacked and give time to advise dissolution to the new governor, Mian Muhammad Azhar, the Lahore mayor and a close relative of the Punjab strongman himself, who replaces General (Retired) Tikka Khan. Meanwhile a close associate of Nawaz Sharif, Ghulam Haider Wyne, takes oath of office as caretaker Chief Minister of the most populous province of the country. Mir Humayun Khan Marri, the son-in-law of Nawab Akbar Khan Bugti replaces him as Chief Minister after the latter sends advice to the Governor, General (Retired) Muhammad Musa, to dissolve the Balochistan assembly.

    Meanwhile, in the Federal Capital itself, correspondents who rush to file their dispatches, find all telex, fax and international dialing lines out of order. The lines are not restored till 2230 hours. In effect, Islamabad is cut off from the rest of the world until the new order is safely put into place. Benazir Bhutto gives her reaction at a press conference at 1930 hours. She says she has been ousted in a “Constitutional Coup”, but informs journalist that President Ishaq’s hand was forced. Asked who forced the president to dismiss her government, she responds, “I leave that to your imagination.” After the press conference, a PTV crew that has covered the vent, hands over the video to an army officer at the gate of Sindh House.

    Inside Sindh House itself, the STD lines are cut off and restored about seven times and the T&T authorities inform an aide to Ms. Bhutto that they are only following orders. As the just-ousted Prime Minister sits down to dinner, some party people, mainly former ministers, drop in. She picks up the phone, tells her ADC to send in more food, then laughs at his response and puts the phone down. Benazir Bhutto turns round and apologizes to her guests for not being able to lay out a proper dinner for them. The kitchen staff – as well as the crockery – have been summoned out of Sindh House. Even the next day, lunch is eaten out of boxes ordered from a caterer.

    While the troops clear out of Sindh House and the TV and Radio Stations the next morning, the PM Secretariat, as well as the DIB and FIA offices are visited by a steady stream of army men – some in plainclothes – for several more days. Hundreds of files are taken away from the premises, no doubt to reappear as a damning indictment of the fallen government. Meanwhile, Major (Retd.) Masud Sharif, the Joint Director of the IB, and later, six of his staffers, are reportedly arrested and taken to an unknown destination for interrogation.

    Two days after his nomination as Caretaker Prime Minister, Ghulam Mustafa Jatoi addresses a press conference and lays a great deal of emphasis on the accountability of the previous government. The forthcoming elections, that are barely 77 days away, are played down somewhat, fuelling much speculation and reviving bitter memories of the past. The same day, in Karachi, Benazir Bhutto finally explodes at a press conference and charges that the Military Intelligence (MI) was responsible for her ouster. She goes to the extent of alleging that the draft of the President’s speech was prepared by the JAG (Judge Advocate General) branch of the Pakistan Army at the GHQ.

    Either naively, or reflecting her own political compulsions, she absolves the Chief of Army Staff and the Corps Commanders of any blame, thus distancing them from the MI and JAG Branch, and perhaps leaving the door ajar for any future compromises.

    Those in control now also seem to be in a hurry to acquire more and more bargaining chips. Significantly half a dozen persons reputed to be very close to Asif Zardari, are picked up in pre-dawn raids. As their interrogation begins, there are reports of deals and offer of immunity from prosecution. Events take a mysterious turn, as Begum Nusrat Bhutto leaves the country in a departure that is still unexplained. In the wake of the ouster of Benazir, numerous theories are being floated in the Federal Capital, with conspiracy theorists in hot demand. From deals between the PPP and the army, culminating in the exit of the Bhuttos from the Pakistani political scene, to a grand design by the army to completely discredit civilian politicians through appointments like those of caretaker set-up – all kinds of scenarios are being discussed and debated in Islamabad. Democracy in Pakistan, it is clear, has entered a critical new phase.


  2. Not in a very distant past:

    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.

    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.


    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 ju­diciary 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 re­fuse 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.


    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]


    1 – The Economist, London 2-4-1981

    2 – Dawn 27-1-2000

    3 – The day, the Chief Justice Siddiqi refused to take oath under the PCO, the News and Jang newspapers reported that an investigation is being initiated against former Chief Justice Saeeduzzaman Siddiqui and his wife on charges of corruption under normal laws. These report said that some agencies were probing that Justice (Retd) Saeeduzzaman Siddiqui “tried to sabotage the government’s efforts to eradicate corruption and restore real democracy in the country”.

    Quoting government sources, the papers said that on the change of government on October 12, the armed forces and the judiciary had affirmed to work selflessly for the country’s reconstruction. It was thus agreed to maintain a system of accountability to check those who had penetrated in the judiciary through political corruption and other “misdeeds”. As Chief Justice, Saeeduzzaman Siddiqui had assured that he would take effective action against corrupt elements in the judiciary. But soon it was noticed that there was no change in the system of dispensing justice. There were visible indications to show that speedy justice and accountability promises were unreal and ineffective.

    A former chief minister of NWFP was fined for Rs 10 lakh only despite substantial evidence regarding embezzlement of crores of rupees against him. Later, he (ex-CM) disappeared. “It was a blatant collusion.” In some other cases, delaying tactics were allowed to be adopted. The report further claimed that soon the government officials came to know that people who purchased power in the past would now open their lockers and coffers to buy “justice”. A highly placed person of the judiciary received Rs 125 million in cash while his other colleague received Rs 50 million. “The government has solid proof of these cash deals. When these persons were interrogated about the deals, they failed to give any explanation.”

    The report said that wife of the ex-chief justice had gold card of a nationalised bank. She went to London and Dubai for shopping and spent £ 30,000. She was also presented a diamond necklace worth Rs 13,00,000. [The News 27-1-2000]

    4 – The News 27-1-2000

    5 – The News 27-1-2000

    6 – Dawn 28-11-2000

    [Courtesy:HEGEMONY OF THE RULING ELITE by Abdus Sattar Ghazali]

  3. Jamat-e-Islami [when JI was part of MMA and sharing power with General Musharraf’s Q League and PPP Sherpao] presented a Bill called Hasba Bill to enforce Islam in Pakistan and that bill was presented during General Musharraf’s Government and that Bill was rejected by CJ Iftikhar Mohammad Chaudhry [when he was serving General Musharraf in 2005] and that too on the appeal of General [The Martial Law Administrator] Pervez Musharraf. General Musharraf was party to the case. Two opinion/stands can hardly be correct at the same time, either MMA’s Islamic Hasba Bill was Un-Islamic or CJ Iftikhar Mohammad Chaudhry was against Islamic Shariah. If JI was honest then why the same JI is now participating in the Lawyers Long March and by doing so they are accepting that Pakistan must be run on Secular Basis through Anglo Saxon Law and Anglo Saxon Courts. CJ Iftikhar Mohammad Chaudhry and Co. by accepting such Islamo fascists like JI amidst the Secular Legal Mind,
    is basically compromising with his own decision which he had given against the Deviant Religious Right Wing of Pakistan. By the way why the so-called Epitome of Justice Iftikhar Mohammad Chaudhry is even accepting cooperation from one of the party [Jamat-e-Islami] who gave Pakistan the Gift of Unconstitutional LFO and 17 Constitutional Amendment which had given blanket to the Unfirom and every wrong wrong and unconstitutional step of a Military Dictator General Musharraf.

    If Hasba Bill was right then why did the JI accepted the SC Decision and if it was wrong then why Hasba Bill was presented at all and if both the statement are wrong then what was the need to exploit the name of Islam to get some vote. Read the past history

    Three years later:

    JI to participate in lawyers’ long march, sit-in

    Updated at: 1030 PST, Saturday, February 21, 2009

    LAHORE: Jamaat-e-Islami (JI) Amir, Qazi Hussain Ahmad has declared that his party would fully participate in the lawyer’ long march and sit-in.
    A delegation headed by Supreme Court Bar Association (SCBA)’s president, Ali Ahmad Kurd and comprised of Chaudhry Aitzaz Ahsan, Hamid Khan and Justice (Retd.) Tariq Mahmud called on JI Chief at Mansoora here.

    Qazi Hussain Ahmad talking to the lawyers said that JI would play the front role in lawyers’ long march. SCBA president, Ali Ahmad Kurd urged on JI for extending all out support to the lawyers’ community for making their sit-in successful. He said that the lawyers would stage sit-in until the reinstatement of deposed chief justice. It may be recalled that the ML-N chief, Nawaz Sharif yesterday had also announced his party’s full participation in long march and sit-in.

    Hasba bill infringes personal freedom: SC By Nasir Iqbal

    September 1, 2005 Thursday Rajab 26, 1426

    ISLAMABAD, Aug 31: The Supreme Court on Wednesday ruled that the state cannot enforce any religious obligation stipulated by Islam, except Sallat (prayers) and Zakat. Authored by Chief Justice of Pakistan Justice Iftikhar Mohammad Chaudhry, a 106-page detailed judgment, said that Islamic jurists were unanimous on a point that though zakat was seriously enforced by Hazrat Abu Bakar but for sallat, the only way was through “Taleem” (education), “Tableegh” (preaching) and “Targheeb” (persuasion).

    The court agreed that private life, personal thoughts and individual beliefs of citizens could not be allowed to be interfered with and held that under the Hasba Bill, the NWFP Assembly had conferred judicial powers on “Mohtasib” (ombudsman) not only to inquire into cases of maladministration of government agencies but also religious and personal affairs of individuals and blocking powers of judicial review by civil and criminal courts.

    On August 4, a nine-member Supreme Court bench had declared several clauses of the Hasba bill relating to powers of the mohtasib as contrary to the constitution and had advised the NWFP governor not to give his assent to the controversial law.

    The unanimous short-order was announced after four-day hearing on a reference filed by President General Musharraf against the bill under the advisory jurisdiction of the court.

    Instead of showing haste, the NWFP government should have studied in depth all the reports of the Council of Islamic Ideology (CII) before moving the Hasba bill in the assembly, under which discretionary powers have been conferred on mohtasib to create a new offence in consultation with the provincial advisory council, the CJ observed in the detailed judgment.

    About mohtasib’s powers to remove causes of dereliction in performance and proper arrangements of Eidain and Friday prayers, the CJ observed that offering of prayer was a personal obligation on an individual being the Haqooq Allah.

    Religiously, mohtasib is not authorized to check negligence or disregard of a person who abandons sallat. Allowing such interference by mohtasib would deny an individual’s right of freedom to profess religion, the CJ said.

    It is therefore not correct to suggest that the Hasba bill is in accordance with Islam and if the legislation is accepted and made into law, then a citizen who is held responsible for dereliction will be liable to six-month punishment on the hukumnama (order) of the mohtasib when Sharia does not mandate imposition of penalties on vague offences.

    The only objective behind making available Hasba police to mohtasib is to strengthen the arms of mohtasib, to implement his hukumnama by force, if need be, the CJ said.

    Under the law, mohtasib would also have direct interference/access in the family functions in the garb of discouraging extravagance at the time of marriages and other family functions, thus interfering in personal life, freedom of assembly, liberty, dignity and privacy, which is strictly prohibited in Islam.

    Tracing the history, the CJ recalled that the institution of the office of Hasba did not exist at the time of the Holy Prophet (PBUH) and the Khulfa-e-Rashideen. Initially the office of “Amil-al-suk” was created by “Ummayyads” to regulate markets, but later it was expanded into the office of the mohtasib by the “Abbasids.”

    History reveals that the term mohtasib was used during the Khilafat of Qazi Mamoon-ur-Rashid when mohtasib used to look after the market business in addition to his religious duties like to reform social life. During the period, the duties of the mohtasib was to inspect instruments of the scales of weights and measures, which were so complicated that the people could be easily deceived. In addition, their duties include keeping vigilant eye over shortcomings and dishonesty that could be committed during preparation and sale of commodities.

    The judgment also explained that by declaring some sections of the bill as unconstitutional does not mean that leftover sections have been declared in accordance with the constitution. Their constitutionality remains open to be questioned, which can be upheld or struck down as or when challenged before a competent forum.

    Meanwhile Justice Sardar Mohammad Raza Khan in his separate note expressed reservations on the definition of Aalim (scholar) in the Hasba bill and held that the definition was discriminatory and restricted to only one school of thought.

    MMA to accept SC decision: Durrani By Anwar Iqbal

    July 18, 2005 Monday Jumadi-us-Sani 10, 1426

    WASHINGTON, July 17: NWFP Chief Minister Akram Khan Durrani has said that he will accept any decision the Supreme Court of Pakistan may take about the controversial Hasba bill, denying reports that he vowed to “wreak havoc” if his democratically elected government was toppled.

    “We live in a country and we accept the courts of that country,” said Mr Durrani while talking to Dawn in Washington.

    “Do you think we will declare war on the government? No, we are all law-abiding citizens.”

    The NWFP chief minister, who is visiting Washington at the invitation of a Christian inter-faith group called Group for Global Engagement, said the MMA had always respected “the laws and courts of Pakistan and we will continue to do so.”

    “Even if the court rejects the Hasba bill?” he was asked. “Whatever decision the Supreme Court takes, we will accept it,” he replied.

    Mr Durrani also rejected claims that if made into a law, the Hasba Act would lead to the creation of parallel police and judicial systems in Pakistan.

    “There is no such proposal in the Hasba bill. People given the task of implementing this bill will have no judicial power,” he said.

    Mr Durrani said the NWFP government does not plan to recruit a new force to implement this proposed law. “We will take people from the present police force. There will be no new recruitment.”

    “But you also say that our police are corrupt, if you give such sweeping powers to the same police will they not make life miserable for the ordinary people,” he was asked. “No, because there are no sweeping powers in the Hasba bill,” he responded.

    Mr Durrani said people chosen to implement the Hasba bill will only have the power to recommend whatever action they deem necessary against an official or a politician they think is corrupt.

    “And who will take that action?” he was asked. “The courts,” he said. “The recommendation will be sent to the courts which may accept or reject it.”

    “Does it mean that you will create special Hasba courts?” “No, there will be no special courts. All recommendations will go to the existing courts and they will make the final decision.”

    He said the MMA government was only trying to strengthen the jirga system that already exists in Pashtoon society, “we are not doing anything new.”

    “But the jirgas have judicial powers,” he was reminded. “Only in the tribal areas, not in the settled areas,” he said.

    Text of Hasba bill

    July 16, 2005 Saturday Jumadi-us-Sani 8, 1426

    PESHAWAR, July 15: The following is the full text of the Hisba bill passed on July 14 by the NWFP Assembly: Preamble: Whereas sovereignty over the entire universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan through their chosen representatives within the limits prescribed by him is a sacred trust;

    And whereas implementation of Islamic way of life revolves around Amer-Bil-Maroof and Nahi-Anil-Munkir and to achieve this objective it is necessary, apart from other steps, to establish an institution of accountability, which could keep a watch on securing legitimate rights of various classes of the society, including females, minorities and children and to protect them from emerging evils and injustices in the society;

    And whereas it is further necessary from the accountability point of view to extend the authority of Mohtasib to government’s administration and offices in order to have a check upon injustices, abuse of powers and other similar excesses;

    It is hereby enacted as follows:

    1: Short title, extent and commencement—(1) This Act may be called the North-West Frontier Province Hisba Act, 2005.

    (2) It shall extend to whole of the North-West Frontier Province.

    (3) It shall come to into force at once.

    2: Definitions.—In this Act, unless the context otherwise requires,—

    (a) “Agency” means a department, commission or any office of Provincial Government, a corporation or similar other institution which the Provincial Government may have established or which may be working under its control, but does not include the high courts and the courts working under its administrative control.

    (b) “Amer-Bil-Maroof” means fulfilling the obligations of enjoining the good as laid down in Holy Quran and the Sunnah;

    (c) Competent Court: Competent court means court established under CPC 198.

    (d) “Expert Lawyer” means a lawyer having at least ten years experience in the profession of advocacy;

    (e) “Government” means the Government of the North-West Frontier Province;

    (f) Governor means governor of NWFP.

    (g) High Court means the Peshawar High Court, Peshawar,

    (h) “Hisba Police” means the police force deputed to work for the purposes of this Act from time to time;

    (i) “maladministration” includes all such decisions, processes, recommendations, acts and deficiencies which-

    (j) is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bonafide and for valid reasons; or

    (k) is perverse, arbitrary, unreasonable, unjust, biased, oppressive or discriminatory; or

    (l) is based on irrelevant grounds; or

    (m) involves the exercise of powers or the failure or refusal to do so, for corrupt or improper motives, such as bribery, jobbery, favouritism, nepotism and administrative excesses; or

    (o) amounts to negligence, inattention, delay, incompetence, inefficiency and inaptitude in the administration or discharge of duties and responsibilities;

    (p) “Mohtasib” means the mohtasib of the province or, as the case may be, the mohtasib of a district, appointed under this Act;

    (q) “Nahi-Anil-Mukir” means fulfilling the obligations of forbidding the evil as required by the Holy Quran and Sunnah and all other matters which the mohtasib, in the light of the Holy Quran and Sunnah, determines in consultation with the Council of Advisors;

    (r) “Office” means the office of mohtasib of the North-West Frontier Province;

    (s) “Prescribed” means prescribed by rules made under this act;

    (t) “Province” or “Province of Sarhad” means the North-West Frontier Province;

    (u) “Provincial Advisory Council” means the Council established under this Act;

    (v) “Public servant” shall mean the person defined in section 21 of the Pakistan Penal Code, 1860;

    (s) “Religious scholar” means the holder of the certificate of Shahadat-ul-Aalmliah from any institute recognized by government, who has also passed the Secondary School Certificate Examination from a Board of Intermediate and Secondary Education recognised by government;

    (t) “Staff” means an employee or office commissioner, elected/nominated co-worker, advisor, expert, subordinate, officer, liaison officer, etc, of an Agency.

    3. Appointment of Mohtasib.—(1) There shall be a Mohtasib for the North-West Frontier Province, who shall be appointed by the Governor of the North-West Frontier Province in consultation with the chief minister of the province. (2) A mohtasib shall be a person who is a qualified religious scholar and is eligible to be appointed as judge of the Federal Shariat Court. (3) Before entering upon office, the mohtasib shall take an oath before the chief minister in the form set out in the Schedule. (4) The mohtasib shall, in all matters, perform his functions and exercise his powers independently, honestly and diligently and all executive authorities throughout the province shall act in aid of the mohtasib.

    4. Tenure.—(1) The tenure of the office of the mohtasib shall be four years but the competent authority may extend the term of his tenure.

    (2) The Mohtasib may, at any time, resign from his office by tendering resignation in writing.

    5. Mohtasib not to hold office of profit, etc —- (1) The Mohtasib during his appointment shall not hold any office of profit or enter into any profession carrying the right to remuneration.

    (2) The Mohtasib, during a period of two years after his retirement, shall not be eligible to contest election of the National or a Provincial Assembly.

    6. Terms and conditions of service.—- (1) The provincial Mohtasib shall be entitled to the same privileges, allowances and pay as are admissible to a Judge of the Federal Shariat Court.

    (2) A District Mohtasib shall be entitled to the privileges, pay and allowances as are admissible to a Sessions Judge.

    (3) A Mohtasib may be removed from office on the ground of misconduct or of being incapable of properly performing the duties of his office by reason of physical or mental incapacity and in this context will be served with a notice in advance. If in the opinion of the Mohtasib the reasons of his removal are not based on facts, he shall be entitled to challenge the bona fide of the notice before the Peshawar High Court, which shall be heard by a Division Bench of the said Court; provided that if no hearing date is fixed for ninety days from the date of approaching the Court, then it shall be deemed that the notice of removal has become effective.

    (4) In case a Mohtasib applies for hearing of his case under sub-section (3), he shall forthwith cease to function as Mohtasib.

    (5) Where a Mohtasib has been removed on the ground of misconduct, he shall not be eligible, for a period of four years from the date of his removal, to be appointed in any government Department or to become a member of National Assembly or a Provincial Assembly.

    7. Acting Mohtasib — (1) If the Provincial Mohtasib, for any reason such as leave, etc. is unable to attend his office, the competent authority shall direct any District Mohtasib to act as Provincial Mohtasib.

    (2) if the office of the Provincial Mohtasib becomes vacant for any other reason, Government shall appoint an acting Provincial Mohtasib.

    8. Delegation of Powers to District Mohtasib.—The Provincial Mohtasib shall, in the prescribed manner, be competent to delegate his power to a District Mohtasib in writing.

    9. Appointment of staff and terms of employment—(1) Government shall determine the terms and conditions of service and pay and allowances in respect of the staff members of the Mohtasib.

    (2) A district Mohtasib shall take oath of office before the Provincial Mohtasib in the form set forth in schedule ‘B’.

    10. Power and duties of Mohtasib—-The Mohtasib shall, on a written or oral complaint of any person, or on reference from the High Court, the Supreme Court or the Provincial Assembly, or suo moto, shall have the authority to- (a) Enquiries into the allegations of maladministration against any agency or its employees; (b) Protect/watch the Islamic values and etiquettes; (c) Watch the media established by Government or working under the administrative control of Government to ensure that its publications are useful to the purpose of upholding Islamic values; (d) Forbid persons, agencies and authorities working under the administrative control of government to act against Shariah and to guide them to good governance; (e) Formulate such directives and principles which may help in making the conduct of authorities working under this section to be effective and purposeful; and (f) Extend to the provincial administration in discharging its functions smoothly
    and effectively; provided that the Mohtasib shall not interfere in any matter which is sub-judice before a court of competent jurisdiction or which relates to external affairs of Pakistan or the relations or dealings of Pakistan with any foreign state or Government or relates to or is connected with the defence of Pakistan or any part thereof, the Military, Naval and Air Forces of Pakistan or the matters covered by laws relating to these forces.

    11: Procedure and evidence—-(1) A complaint shall be made in writing or orally by the person aggrieved or, in case of his death, by his legal heirs, to the Mohtasib, which may be delivered personally to the Mohtasib himself or his concerned member of staff or by post, Email or Fax, etc.

    (2) Where the Mohtasib proposes to conduct an investigation, he shall issue to the principal or subordinate office of the Agency concerned a notice calling upon it to make reply to the allegations made. If no reply is received within a reasonable time from the concerned Agency or the officer under its control competent to give reply, the Mohtasib shall initiate investigation proceedings, which will be informal, but in special circumstances, the Mohtasib may adopt such procedure as he considers appropriate for such investigation. The Mohtasib shall, in accordance with the rules made under this Act, pay expenses and allowances to the affected parties or the witnesses produced by them. The Mohtasib shall be empowered to check or cause to be checked through his employees the official records of the concerned Agency; provided that such documents do not pertain to state secret documents. Where the Mohtasib, with respect to any complaint, does not consider it
    appropriate to take any action, he shall inform the complainant. The Mohtasib shall regulate the procedure for the conduct of business under, or the exercise of powers coffered by, this Act.

    12. Implementation of orders, etc—-(1) On completion of the action in relation to a complaint, the Mohtasib shall have the power to issue directive to the competent officer of the Department concerned for its implementation and may, at the same time, take up such steps as considers expedient. The concerned Agency within the time limit mentioned in the directive, inform the Mohtasib about the action taken in that behalf, failing which the concerned Agency or competent officer will render itself or himself, as the case may be, to the following actions:

    (a) One or more actions under the North-West Frontier Province Removal from Service (Special Powers) Act, 2000.

    (b) In case of non-cooperation with the Mohtasib or his staff during investigation, action for interference in smooth functioning of Government.

    (2) The Mohtasib shall, for the purpose of this Act, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (V of 1908), in respect of the following matters, namely:

    (a) Summoning and enforcing the attendance of parties and examining him on oath;

    (b) Compelling the production of documents; and

    (c) Receiving evidence on affidavits.

    (3) Where the Mohtasib is satisfied in respect of a complaint under consideration that any functionary of Government has committed a cognizable offence or a civil suit can be instituted against him, he shall direct the concerned Agency to initiate action as aforesaid in accordance with law.

    13. Access to documents.—- The Mohtasib, any member of his staff or a member of Hisba Force, authorised in this behalf, shall have the right to enter into any office of Government for investigation and examine and take copies of documents during such investigation; provided that if any document is taken into possession from the records, he shall give a receipt thereof as a token of such possession.

    14. Contempt of Mohtasib.— (1) In respect of contempt of Court, the Mohtasib shall have the same powers as are vested, under Contempt of Court, 1976, in the High Court;

    (a) Hinders or become a source of hindrance in the smooth proceedings before the Mohtasib or does anything causing difficulties in the completion of such proceedings;

    (b) Give such statement which defames Mohtasib, or any of his officer or representative;

    (c) Acts in a manner which, in relations to proceedings before the Mohtasib, influence the mind of the Mohtasib to take a partial decision; or

    (d) Acts in a manner which, any law for the time being in force, falls within the definition of contempt; provided that any comments made in good faith and in the public interest on any act or on report of the Mohtasib or his staff or representative shall not be treated as contempt.

    (2) The aggrieved against any order of the Mohtasib under section (1) may, within 30 days of such order, appeal in the High Court which shall be heard by a Division Bench of the said court.

    15. Provincial Advisory Council.— The Provincial Mohtasib, under his chairmanship, shall establish a Provincial Advisory Council, consisting of –

    (a) two Ulema of repute;

    (b) two senior advocates from Bar;

    (c) two representatives of Government in PBS-20.

    16. Meetings of Provincial Advisory Council.—The Provincial Advisory Council shall, for purpose of consultations, meet at such times and at such places as the Provincial Mohtasib may, from time to time, direct.

    (2) Unofficial members of the Advisory Council shall be entitled to such honoraria as the Mohtasib may, with the approval of government, determine.

    17. District Mohtasib.—

    (1) The Provincial Mohtasib may, for a district or for more than one district, appoint a District Mohtasib.

    (2) A person qualified to become a non-official member of the Provincial Advisory Council shall be eligible for appointment as a District Mohtasib.

    (3) The tenure of a District Mohtasib shall be four years.

    (4) In case of appointment of a District Mohtasib for more than one district, the Provincial Mohtasib shall determine the district where central office of such District Mohtasib shall take place.

    (5) A district Mohtasib, before entering his office, shall take oath in the Form in Schedule B before the Provincial Mohtasib.

    (6) A District Mohtasib shall be entitled to the same pay, allowances and privileges as are admissible to a District and Session Judge.

    (7) A District Mohtasib may be removed from the office by the Provincial Mohtasib on the ground of corruption or of being incapable of properly performing his duties of office by reason of physical or mental ability. In such case he shall be served with a show-cause notice, which will be replied to by the District Mohtasib within seven days from the date of service.

    (8) On failure of the District Mohtasib to reply within the stipulated period or the reply being found un-satisfactory, the order of removal of the District Mohtasib may be issued by the Provincial Mohtasib.

    (9) The District Mohtasib, on his removal from office under sub-section (8), may, within 30 days of the order, appeal in the High Court.

    (10) When a District Mohtasib has been removed on the ground of corruption, he shall not be eligible, for a period of four years from the date of his removal, to be appointed in any Government Department or to become a member of the Parliament or a Provincial Assembly or a Local Government.

    18. Delegation of Powers.—The Provincial Mohtasib may, in writing, delegate his powers to a District Mohtasib for a period of three months and subject to such restriction as may be specified therein.

    19. District Advisory Council.—

    (1) As soon as may be after appointment of a District Mohtasib, he shall establish a District Advisory Council, consisting of at least five members under his chairmanship, of whom one shall be a religious scholar, one a law graduate, one a respectable resident of district concerned and one a district officer of Provincial Government.

    (2) The District Advisory Council shall advise on matters which are referred to it, from time to time, by the District Mohtasib concerned.

    20. Tehsil Mohtasib.—

    (1) A District Mohtasib, with the permission of the Provincial Mohtasib, may appoint as many Tehsil Mohtasib as the need may be.

    (2) A person qualified to become a District Mohtasib shall be eligible for appointment as Tehsil Mohtasib.

    (3) The tenure of the Tehsil Mohtasib shall be four years.

    (4) In case of appointment of a Tehsil Mohtasib for more than one Tehsil, the District Mohtasib concerned shall determine the Tehsil where central office of such Tehsil Mohtasib shall take place.

    (5) A Teshil Mohtasib shall be entitled to the same pay, allowances and privileges as are admissible to a Civil Jude.

    (6) A Tehsil Mohtasib may be removed from office by the District Mohtasib concerned on the ground of corruption or being incapable of properly performing his duties of office by reason of physical or mental inability. In such a case he shall be served with a show-cause notice, which shall be replied to by the Tehsil Mohtasib within seven days from the date of service.

    (7) On failure of the Tehsil Mohtasib to reply within the stipulated period or the reply being found unsatisfactory, the order of removal of the Tehsil Mohtasib may be issued by the District Mohtasib concerned.

    (8) The Tehsil Mohtasib, on his removal from office under sub-section (7), may within 30 days of the order, appeal to the Provincial Mohtasib, whose decision thereon shall be final.

    (9) Where a Tehsil Mohtasib has been removed on the ground of corruption, he shall not be eligible, for a period of three years from the date of his removal, to be appointed in Government Department or to become a member of Parliament or a Provincial Assembly or a Local Government.

    21. Acting Tehsil Mohtasib.—

    (1) If a Tehsil Mohtasib, for any reason, is unable to attend his office temporarily, the District Mohtasib concerned shall direct any other Tehsil Mohtasib to act as Tehsil Mohtasib to perform his duties in addition to his own duties.

    (2) If the office of a Tehsil Mohtasib becomes vacant for any reason, the District Mohtasib concerned shall direct any Tehsil Mohtasib to act as Tehsil Mohtasib of the Tehsil concerned till appointment of new Tehsil Mohtasib for the Tehsil.

    (3) No Acting Tehsil Mohtasib shall, in any case, be appointed for a period of more than three months.

    22. Delegation of Power to a Tehsil Mohtasib.—A District Mohtasib shall, in the prescribed manner, be competent to delegate his powers to a Tehsil Mohtasib of his District in writing.

    23. Special Powers of Mohtasib.—Without prejudice to the powers conferred by section 10, the Mohtasib shall have the following powers:

    (i) To monitor adherence of moral values of Islam at public places;

    (ii) To discourage exhibition of extravagance, particularly at the time of marriages and other family functions;

    (iii) To follow code of Islam in giving dowry;

    (iv) To discourage beggary;

    (v) To monitor adherence of Islamic values and its respect and regard at the times of iftar and traveh;

    (vi) To discourage entertainment shows and business transaction at the time of Eids and Friday prayers around mosques where such prayers are being held;

    (vii) To remove causes of dereliction in performance and proper arrangement of Eid and Friday prayers;

    (viii) To discourage employment of under-age children;

    (ix) To remove unnecessary delay in discharge of civil liability which is not disputed between the parties;

    (x) To prevent cruelty to animals;

    (xi) To remove causes of negligence in maintenance of mosques;

    (xii) To observe decorum of Islam at the time of Azan and Fardh prayers;

    (xiii) To prevent misuse of loud-speakers and sectarian speeches;

    (xiv) To discourage un-Islamic and inhuman customs;

    (xv) To check the tendency of indecent behaviour at public places including harassment of women;

    (xvi) To eradicate the deal as profession in Taweez, palmistry, magic, etc;

    (xvii) To protect the rights of minorities, particularly to regard the sanctity of their religious places and sites where they perform their religious ceremonies;

    (xviii) To eliminate un-Islamic traditions, which affect the rights of women, particularly taking measures against their murders in the name of Honour, to remove the tendency of depriving them of their right of inheritance, to eliminate the tradition of Cirri, and to protect their rights guaranteed by Sharia and law;

    (xix) To monitor weight and measures and eliminate adulteration;

    (xx) To eliminate artificial price hike;

    (xxi) To protect government properties;

    (xxii) To eliminate bribery from government offices;

    (xxiii) To incite feeling of service to people at large amongst government functionaries;

    (xxiv) To advise those who are found to be disobedient to their parents;

    (xxv) To perform any other functions which the Provincial Mohtasib determines from time to time in consultation with the Advisory Council;

    (xxvi) To mediates amongst parties and tribes in matters pertaining to murders, attempts to murder and similar other crimes threatening to law and order situation.

    24. Public Servant.—The Mohtasib and all his staff including Hisba Force shall be deemed to be public servant within meaning of section 21 of the Pakistan Penal Code, 1860 (XLV of 1860).

    25. Restriction.–-

    (1) No court or authority shall be competent to question the legal status of the proceedings before a Mohtasib.

    (2) No court or authority shall have the power to pass any injunction or any interim or a stay order with regard to any matter under consideration of the Mohtasib.

    (3) No suit or legal proceeding shall lie against the Mohtasib or his staff for anything in good faith done or intended to be done.

    26. Hisba Police.—A mohtasib will be provided with requisite police force to enable him to conduct his affairs under this Act.

    27. Conciliation Committee.—

    (1) The Provincial Mohtasib in consultation with the District Advisory Council, shall establish a conciliation committee, at police station level, that consists of

    (i) Two religious scholars of repute,

    (ii) A local lawyer,

    (iii) A minority representative from the area,

    (iv) A respectable local resident, and

    (v) Station House Officer or his nominee

    (2) A District Mohtasib may terminate the membership of any committee member, after consultation with the Advisory Council.

    28. Offences to be Non-Cognizable.— Defiance of the order of the concerned Mohtasib in the performance of his duties under section 23 of this Act shall be non-cognizable offence punishable with imprisonment for a term of six month and a fine up to 2000 rupees.

    29. Power to Make Rules.—Government from time to time makes rules for carrying into effect the provision of this Act.

    30. Over-riding effect.—The provisions of this Act, to the extent provided hereunder, shall have over-riding effect vis-a-vis any other law for the time being in force.

    31. Removal of Difficulties.—Government may, by notification in the official Gazette, remove any difficulty or hindrance in connection with the implementation of the Act.

  4. Introduction of the CJ Mr 'Justice' Iftikhar Mohammad Chaudhary:

    Even the epitome of the so-called Freedom of Judiciary i.e. Mr Justice Iftikhar Mohammad Chaudhary carry more Dirty Baggage because he was elevated by a Martial Law Regime to be precise General Musharraf in 2000 i.e. in Pure Martial Law

    Quite amazing isn't it?

    I will just quote Daily Newspapers. One of the wonders of Internet is this that the History can no more be kept hidden.

    1 – Five judges elevated to SC Bureau Report [Daily Dawn Feb 2000]

    2 – Chaudhry Iftikhar named new CJ [Daily Dawn 2005]

    3 – A weary scene re-enacted Ayaz Amir [Daily Dawn 2000]

    As per Daily Dawn dated Week Ending Dawn Wire Service] : 5 February 2000 Issue : 06/05

    Five judges elevated to SC Bureau Report

    ISLAMABAD, Feb 2: The government elevated five judges to the Supreme Court on Wednesday.

    According to a notification, the president has appointed Justice Rashid Aziz, Chief Justice, Lahore High Court; Justice Nazim Hussain Siddiqui, Chief Justice Sindh High Court; Justice Iftikhar Mohammad Chaudhry, Chief Justice, Balochistan High Court; Qazi Farooq, former chief justice of Peshawar High Court; and Justice Rana Bhagwan Das, judge, Sindh High Court, judges of the Supreme Court. After the elevation of Justice Rashid Aziz Khan to the SC, Justice Mohammad Allah Nawaz has been appointed Chief Justice of Lahore High Court. Justice Deedar Hussain Shah has been appointed Chief Justice of Sindh High Court and Justice Javed Iqbal Chief Justice of Balochistan High Court. After these appointments, the number of SC judges has risen to 12, leaving five posts vacant.

    Chaudhry Iftikhar named new CJ By Our Staff Reporter

    May 8, 2005 Sunday Rabi-ul-Awwal 28, 1426

    ISLAMABAD, May 7: President Pervez Musharraf on Saturday appointed Justice Iftikhar Mohammad Chaudhry, the senior most judge of the Supreme Court, as the next chief justice. He will assume the office on June 30 after retirement of the incumbent Chief Justice, Justice Nazim Hussain Siddiqui, on June 29. “The notification has ended speculations of appointment of a junior judge as chief justice in violation of the seniority principle settled under the 1996 Judges case,” commented a senior Supreme Court lawyer on condition of anonymity.

    Justice Chaudhry will reach the superannuation age of 65 years in 2012, which will make him one of the longest serving chief justices in the judicial history of Pakistan. He will serve as chief justice for over seven years. Earlier Justice A. R. Cornelius and Justice Mohammad Haleem served as chief justice for eight years from 1960 to 68 and 1981 to 89, respectively. Justice Chaudhry was elevated as a judge of the apex court on February 4, 2000. He has performed as acting chief justice from January 17 to 29, 2005. He holds the degree of LLB and started practice as an advocate in 1974. Later he was enrolled as an advocate of high court in 1976 and as an advocate of Supreme Court in 1985. In 1989, Justice Chaudhry was appointed as advocate-general of Balochistan and elevated to the post of additional judge in the Balochistan High Court in 1990. He also served as banking judge, judge of Special Court for Speedy Trials and Customs Appellate Courts as well as
    company judge.

    He served as the chief justice of the Balochistan High Court from April 22, 1999 to February 4, 2000. He was elected the president of the High Court Bar Association, Quetta, and twice a member of the Bar Council. He was appointed as the chairman of the Balochistan Local Council Election Authority in 1992 and for a second term in 1998. Justice Chaudhry also worked as the chairman of the Provincial Review Board for Balochistan and was appointed twice as the chairman of the Pakistan Red Crescent Society, Balochistan. Presently he is functioning as the chairman of the Enrolment Committee of the Pakistan Bar Council and Supreme Court Buildings Committee.

    As per Daily Dawn dated March 12, 2007 Monday Safar 22, 1428

    “ISLAMABAD, March 11: Chief Justice Iftikhar Mohammad Chaudhry has demanded that the Supreme Judicial Council (SJC) should hold open proceedings on the reference against him sent by President Gen Pervez Musharraf. This was stated by seasoned politician Air Marshal (retired) Asghar Khan after a meeting with Justice Chaudhry here on Sunday. The demand made by the suspended chief justice indicates that he is not ready to resign and is determined to contest the allegations levelled against him.

    Justice Iftikhar seeks open SJC proceedings: Asghar

    By Iftikhar A. Khan

    But one day earlier the CJ was held incommunicado

    “There is no other way to describe the situation as no one is being allowed to meet him,” he said after police officials stopped him and other lawyers from going inside the chief justice’s residence.

    CJ held incommunicado; lawyers slam ‘arrest’ By Nasir Iqbal

    March 11, 2007 Sunday Safar 21, 1428

    If he was held incommunicado then how the hell Air Marshal (retired) Asghar Khan [a key Musharraf adversary] succeeded to meet with Mr Justice Iftikhar Mohammad Chaudhry? These Four artciles from Daily Jang and text after that will further expose the filthy character of General Retd. Chisti, General Retd Aslam Beg, Air Marshal Retd. Asgher Khan, General Retd Asad Durrani and last but not the least the Mother of All Trouble General Retd. Hamid Gul [after committing every crime mentioned in the book against innocent Pakistanis is now itching for Non-Sense Islamic revolution from the banner of APDM which is bandwagon of Pseudo Nationalists, Islamists, and Secular Politicans.


    A weary scene re-enacted Ayaz Amir

    POLITICS in Pakistan is the death of the imagination. The same scenes repeated endlessly, even some of the directors, as in the case of Syed Sharifuddin Pirzada, performing the same role from one generation to the next. The actors of course change but as if in obedience to a higher dramatic law they too stick closely to the ancient script. Consider the latest circus (for it is a bit more than a play) arranged for the benefit of their lordships of the superior courts. Such a circus was expected because with the Constitution set aside and displaced by the Provisional Constitutional Order (PCO), it stood to reason that sooner or later this contradiction would have to be resolved. But the need for such a circus also stood on firm historical ground. In March 1981 a similar exercise was ordained by another benign military figure, General Ziaul Haq, whose protestations to hold elections in 90 days were, if anything, more vociferous than General Musharraf's
    proclaimed determination to return Pakistan to the fold of 'real' democracy. Barring a few honourable exceptions, most of their lordships, led by the pragmatism which has been the guiding spirit of the Pakistani higher judiciary, preferred discretion to valour by swearing allegiance to General Zia's PCO. The master of ceremonies on that occasion too was Syed Sharifuddin.

    As if to prove that while the world may have moved on we remain stuck in the same grooves, 19 years later as Pakistan heroically enters a new millennium, another generation of judges has been called upon by another military saviour to negotiate a similar obstacle course. Again, shunning rashness and opting for pragmatism, the overwhelming majority of their lordships, 89 out of 102, have sworn fealty to another PCO. In a land where nothing is surprising anymore, it is still not a little remarkable that the moving spirit behind both the circuses, otherwise separated by a distance of 19 years, should be the same eminence grise: Syed Sharifuddin Pirzada. Active in General Ayub Khan's service when many of us were in school, he has raised a monument to longevity by serving another military figure as his principal legal adviser, with a seat in the National Security Council and the freedom to continue with his legal practice. If
    Pakistan's fate is to remain in the grip of military rule, it is the fate of our military rulers to remain captive to Syed Sharifuddin's beguiling advice. This is the closest thing we have to immortality in this country.

    Whether the superior judiciary – its conduct tarnished in many ways – deserves what it has got is beside the point. Of greater relevance is to see the implications of the latest move for the country's immediate future. Since this is a nation where the level of gullibility remains high, it was scarcely surprising if on the morrow of the celebrated 'counter-coup' of October 12 there was no shortage of people who were ready to believe that the promised land had been sighted and a new coming was at hand. In that exalted mood the pronouncements of the Chief Executive were greeted with enthusiasm and criticism of his intentions was considered almost akin to sacrilege. That was then. Today the feeling is different. The performance or rather non-performance of the military government over the last 100 days (which is the time it took Napoleon to leave the island of Elba and fight the battle of Waterloo) has been such that even some of the fiercest partisans of
    military rule are a bit down-at-heart. After the judicial drama just enacted in Islamabad this mood can only be strengthened because by now it should be clear even to the congenitally benighted that what we are witnessing on the national stage is not so much a temporary reform movement – which will pick up its tools when its immediate task is done – as the kind of long- drawn-out military rule which (to its grievous cost) the nation has experienced once too often in the past. That General Musharraf seems to be playing for keeps is the real significance of the trauma through which their lordships have been put.

    To be sure, judicial freedom and military rule were incompatible from the start. But it is only now that this incompatibility was about to be tested in the shape of the constitutional petitions before the Supreme Court challenging military rule. The critical hour approaching, it was judicial independence which had to submit before the exigencies and higher requirements of military rule. Nor could it be otherwise. In Pakistan it is not only power which flows from the barrel of a gun. Legality and validation also flow from the same source. Every dictator in Pakistan's history has received approval and benediction at judicial hands. It would have been unrealistic to assume that General Musharraf or anyone else in his place would have allowed this hallowed tradition to be broken. Why after all was Sharifuddin Pirzada hired in the first place? Just for this eventuality.

    The trouble is that there is so much else that is incompatible with military rule: fundamental rights as a whole for one, press freedom for another. How long will the saviour in General Musharraf tolerate these deviations from the military norm? One illusion that it is in our best interests to get rid of fast is regarding the American concern for democracy in Pakistan. From Washington Pakistan is just a blip on the world screen and although democracy and human rights are issues with which the US likes to whip other countries when it wants to, of greater concern to the US as far as Pakistan is concerned is a raft of other issues: terrorism, Osama bin Laden and the CTBT. If we are forthcoming on these issues democracy can take a back seat. The military government also understands this, which is why it has started this wholly unnecessary debate regarding the CTBT. To sign or not to sign it should be our sovereign decision quite uninfluenced by such ephemera
    as Clinton's forthcoming visit to South Asia. What if he misses Pakistan? Will the heavens fall? We obviously think they will, which is why the likely itinerary of Clinton's visit is such a hot issue in Pakistan.

    Anyway, what happens at home is of greater importance. Nawaz Sharif no longer is the issue. If he had overreached himself he has met his just deserts through the operation of those forbidding laws which hold sway over Pakistani politics. The issue today is different. The lack of direction from which the country suffers is only made worse by a regression to militarism because just as judicial freedom and military rule are incompatible, vision and military rule are two different things. Accordingly, if getting rid of Nawaz Sharif's luckless rule seemed to be the overriding national imperative on the evening of October 12, the imperative today is how to shorten the lengthening shadows of military rule. How do we go about this? How does the nation persuade the military? This is the foremost problem facing Pakistan today.

    Tailpiece: Last week while in New Delhi I was visiting the Pakistan High Commission to pay my respects, I felt my heart sink when I saw in the foyer the photographs of President Rafiq Tarar and General Pervez Musharraf, the latter in full military regalia. While it goes without saying that the two together make a striking advertisement for Pakistan, why not simply a picture of Jinnah instead?

  5. Introduction of the Spokesman of CJ Iftikhar Mohammad Chaudhary as per his own website.

    Right after the resignation of General Musharraf from the Post of the President of Pakistan, Mr. Athar Minallah the Chief Spokesman of Defunct Chief Justice Iftikhar Mohammad Chaudhary in Private Pakistani TV Channel [AAJ], demanded Treason Trial under article 6 of 1973 Constitutiuon of Islamic Republic of Pakistan while shamelssly forgetting that Athar Minallah, also served in the Musharraf cabinet for two years. Shouln’t Mr Athar Minallah be brought to Justice as well because abetting in a crime is tantamount to committing a crime. Athar was appointed Minister for Law, Local Government, Parliamentary Affairs and Human Rights by the Provincial Government of NWFP (2000-2002) by General Musharraf Military Regime.

    Introduction of the Spokesman of CJ Iftikhar Mohammad Chaudhary as per his own website.


    Athar Minallah joined the prestigious Civil Service of Pakistan (CSP) and after serving for 10 years left the post of Additional Collector Customs to join the firm as a partner. Athar Minallah brings not only rich taxation experience but also valuable scholastic input. Athar completed his law degree from the International Islamic University (Islamabad) and his LLM from University of Cambridge, UK. And his areas of interest are taxation, judicial review, Athar was appointed Minister for Law, Local Government, Parliamentary Affairs and Human Rights by the Provincial Government of NWFP (2000-2002). He also was the member of the Task Force constituted by the Federal Government for revamping the Taxation regime in Pakistan. Currently he is the member of the Policy Board of Intellectual Property of Pakistan and Chairman of Alternate Dispute Resolution Committee (ADRC) for Sales Tax constituted by the Central Board of Revenue.

    What about rejecting the bail to Makhdoom Javed Hashmi [MNA-PML-N]. Mr Justice Iftikhar Mohammad Chaudhary didn’t say no to Mr Musharraf on Javed Hashmi Case?

    SC dismisses 3 appeals of Javed Hashmi for his release on bail
    Tuesday October 10, 2006 (0139 PST)

    ISLAMABAD: Supreme Court has dismissed three appeals filed by PML -N president Makhdoom Javed Hashmi against his trial in jail and for his release on bail and suspension of jail term. A two members bench of apex court comprising chief justice Iftikhar Muhammad Chaudhry and justice Muhammad Nawaz Abbasi heard the case.

    Chief Justice observed that judiciary is independent and the supreme can in no way be pressurized in any decision. ” We will give decision according to law of the land. We have to see the law. No one will be allowed to politicize the case. There is ambiguity in the arguments offered by Akram Sheikh, counsel of Makhdoom Javed Hashmi. It is in the knowledge of those who hold press conference that their statements would reach the military men as well.

    Earlier giving arguments, Akram Sheikh said federal government had lodged no complaint. Is there any law in place in the country under which holding the press conference in cafeteria is a crime. The apex court has taken thousands of suo motu actions on social issues. Can suo motu action not be taken with reference to an individual whose fundamental rights have been breached, he contended. Chief Justice observed that the court has to see if the appeal can be declared maintainable or otherwise. The High court verdict has also been reviewed.

    Akram Sheikh told Makhdoom Javed Hashmi is in jail since October, 29, 2003 who was convicted and sentenced on April, 12, 2004. Cafeteria is part of parliament and it is legally protected. Some one had talked in upper house and action was initiated against him. Chief Justice remarked speaking in the upper house and holding press conference are two different things. Does it fall under the powers of speaker that the case should have been registered on his complaint or otherwise.

    Akram Sheikh submitted that national assembly had tried to explain about the constitution but no mention was made about cafeteria in the constitution. NA speaker can register case through his secretary. But he did not do so. It was a strange press conference where in no reporter was present. Defending the government, special prosecutor general Munir Ahmad argued high court had taken no wrong decision. The man who had registered FIR had entered into cafeteria with the special permission and card. 14 witnesses were presented in the trial court who proved 7 charges correct which were leveled against the accused. The trial court had awarded punishment after it. The high court had also declared the verdict of subordinate court correct . No defence witness appeared from the accused side in the court. The appeal filed by Malik Qayyum against trial in jail was also rejected.

    Nawaz criticises judiciary for rejecting Hashmi’s appeal By Our Staff Reporter

    October 10, 2006 Tuesday Ramazan 16, 1427

    ISLAMABAD, Oct 9: Former prime minister Nawaz Sharif on Monday paid rich tribute to jailed party leader Makhdoom Javed Hashmi, saying that his name would become synonymous with courage and sacrifice in the country’s history. The PML-N leader’s statement was issued from London and released by the party’s secretariat here after Mr Hashmi’s bail appeal was rejected by the Supreme Court. The PML-N chief said that the entire nation saluted him for remaining steadfast on principles.

    Injustices done to Mr Hashmi were evident, even to the ‘outside world’ but “unfortunately it is not obvious to our higher judiciary”, he said. “Spirits of political workers, who have dedicated their lives for the supremacy of the constitution and democracy, cannot be subdued by such decisions,” the statement quoted him as saying.

    Mr Sharif said that Javed Hashmi and others, who had refused to bow before the dictatorship of Gen Musharraf, were assets for the party and society. He expressed the hope that democracy would prevail over forces of military dictatorship because of the sacrifices rendered by Mr Hashmi, adding that Pakistan would soon attain a respectable position in the comity of nations.

    Javed Hashmi, PML’s acting president, is in detention for the past three years on charges of treason.

    Commenting on rejection of Mr Hashmi’s appeal by the Supreme Court, PML-N information secretary Ahsan Iqbal in a separate statement said that unfortunately this had shown that the judiciary had double standards.

    “We welcome the release of PPP leader Yusuf Raza Gillani by the judiciary, who was subjected to victimisation by the Musharraf regime, (but) in Mr Hashmi’s case the criteria changed,” he said.

    “Mr Hashmi is a prisoner of conscience and the whole nation feels proud of him. Such decisions will not break the resolve of the PML-N but further strengthen the will of its leaders and workers to continue the struggle for victory of constitutions and democracy in the country. This has once again demonstrated that the Musharraf regime still fears the PML-N and considers it (the main threat),” he said.

    Hashmi’s bail plea rejected By Nasir Iqbal

    December 6, 2003 Saturday Shawwal 11, 1424

    ISLAMABAD, Dec 5: The District and Sessions Judge, Islamabad, Chaudhry Asad Raza, dismissed on Friday the bail application of Alliance for Restoration of Democracy President Makhdoom Javed Hashmi and fixed Monday for regular hearing of a mutiny case against him.

    “By going through the record of the case, it seems the accused, prima facie has committed an offence which falls under section 124 A (Sedition) of the Pakistan Penal Code (PPC) and, therefore, cannot be granted bail,” observed the judge in his 11-page verdict.

    The judge said the letter the accused read out and distributed among press reporters and others seemed to be carried by him for the first time.

    “We will definitely challenge the decision before the high court and will avail all judicial avenues available to us to get a bail in favour of Javed Hashmi,” defence counsel Latif Khosa and Syed Zafar Ali Shah told Dawn.

    The district and sessions judge also mentioned the statements of the witnesses which were produced by the prosecution and observed that an attempt was made to create a feeling to abet mutiny against the high command of the armed forces.

    Two witnesses, Captain Jehanzeb Zahoor and Captain Nadir Saleem, in their statements before the magistrate had stated that they felt insulted while listening to the letter being read out which instigated them for mutiny against the high command of the armed forces. Two media persons, one from daily Islam and other from the government news agency APP, who had covered the press conference, had also recorded their statements.

    According to the verdict, the statement of the witnesses also showed that this letter could cause treason among the army personnel and create public disturbance, hatred against the Constitution, subvert laws of the state and disturb tranquillity in society.

    The issue as to from where the letter came and its veracity would also be looked into during the regular hearing of this case.

    About the application of Mr Hashmi, arrested on Oct 29 on the charges of issuing statements against the army, regarding the provision of A-Class in the jail, the court directed the Adyala jail authority to submit a detailed report in this regard on Dec 8 when Mr Hashmi would be produced before the court on the expiry of his judicial remand. The court also might give its decision on his application on the same date.

    Later, Mr Zafar Ali Shah, talking to reporters, said the decision was expected and accused the government of political victimization.

    He recalled that special prosecutor Munir Bhatti in the challan he presented before the court had also involved other parliamentarians in the case but only Mr Hashmi was being victimised.

    Late release of Javed Hashmi on the eve of his daughter`s marriage, an unwelcome gesture: Liaqat Sunday December 24, 2006 (0215 PST)

    MULTAN: MMA central leader Liaqat Baloch has said MMA does not welcome government step on late release of Makhdoom Javed Hashmi enabling him to attend marriage of his daughter and demanded case be withdrawn and PML-N acting president be set free. He said this while talking to the journalists on the eve of marriage of Makhdoom Javed Hashmi`s daughter marriage. Baloch held NA speaker is custodian of house and he should have taken timely step. He did not do so nor he issued production order. Case should be withdrawn against Makhdoom Javed Hashmi and he should be released. Hamza Shahbaz son of PML-N president Shahbaz Sharif was also present on occasion but he did not talk to the journalists.

    JI leader Farid Ahmad Paracha said responsibility rests with the PPP-P to play its role for formation of grand alliance. The impression about deal between government and PPP-P should be dispelled. Opposition should jointly wage struggle against the dictatorship. Transparent elections can not take place under general Musharraf. Resignations from MMA are not hurdle on the way to formation of grand alliance. He told MMA supreme council will take final decision on resignations. Time has come collective campaign should be launched and resignations be tendered, he stressed.
    PPP-P leader Fakhar Imam said Benazir has to decide about attending the All Parties Conference (APC) convened by Nawaz Sharif or otherwise.
    Former president Rafiq Tarar said general Musharraf is playing the role of enemy of country.


    For the sake of record.

    Human Rights Watch is often quoted on the Restoraion of Judiciary and Restoration of CJ Mr Justice Iftikhar Muhammad Chaudhary. Lets read what HRW has to say about Asif Ali Zardari. I wonder where was was Mr Justice Iftikhar Mohammad Chaudhary [upgraded by Musharraf during Martial Law rather Musharraf administered his OATH for the Supreme Court] and his Chief Spokesman Mr Ather Minallah who had served under the very General Musharraf during his Pure and Un-edited Martial Law Government. Where were Mr Ather Minallah and CJ Mr Justice Iftikhar Mohammad Chaudhary when under their very nose below mentioned Human Rights Abuses were rampantly allowed against Makhdoom Javed Hashmi and Asif Ali Zardari. Dear Moderators, please call spade a spade.


    Repression of Political Opponents

    The government continues to use the National Accountability Bureau and a host of anti-corruption and sedition laws to keep in jail or threaten political opponents, particularly members of former Prime Minister Benazir Bhutto’s Pakistan Peoples Party and the Pakistan Muslim League (Nawaz). As elections approach in 2007, such persecution is expected to increase. Makhdoom Javed Hashmi, of the Alliance for the Restoration of Democracy, who received a 23-year sentence for sedition in April 2004, a charge brought against him for reading an anti-Musharraf letter to journalists, remained in jail at this writing.

    Arbitrary Arrest and Detention of Political Opponents

    The government continued to use the National Accountability Bureau (NAB) and a host of anti-corruption and sedition laws to jail political opponents or blackmail them into changing their political stance or loyalties or at the very least to cease criticizing the military authorities.

    In April 2004, the president of an opposition party, Makhdoom Javed Hashmi of the Alliance for the Restoration of Democracy, was sentenced to twenty-three years in prison on sedition charges for reading an anti-Musharraf letter to assembled journalists. Meanwhile, Asif Zardari, husband of former Prime Minister Benazir Bhutto has begun his ninth consecutive year in prison. Initially the government filed twelve cases against Zardari, most based on charges of corruption and financial impropriety. Though he has been bailed in eight and acquitted in four of these, in December 2001 a thirteenth case was filed against him on charges of evading duty on the import of a second-hand car. Zardari awaits a bail hearing.

    Torture and Arbitrary Arrests of Dissidents and Political Opponents

    Torture is used in Pakistan by military agencies primarily to “punish” politicians, political activists, and journalists who challenge the government’s actions. Torture by the military usually takes place after the victim has been abducted; the purpose is to frighten victims into changing their political stance or loyalties or at the very least to cease criticizing the military authorities. The victim is often let go on the understanding that if he fails to behave, another abduction and further mistreatment will follow. In this manner, the victim can be kept in a state of fear for several years. Rights groups have raised the case of the detention and torture of Rana Sanaullah Khan, an opposition legislator who was whipped, beaten, held incommunicado, and interrogated for a week in police custody before eventually being released in November 1999. Apparently because Sanaullah refused to be cowed by the incident, he was abducted again in March 2003 and
    received similar treatment before being released. Meanwhile, Javed Hashmi, acting president of the opposition Pakistan Muslim League (N), remains in custody facing charges of sedition after he criticized military authorities at a press conference.

    Pakistan: End Persecution of Political Opponents

    Zardari had been accused of corruption during Bhutto’s term as prime minister, but his lone conviction was later reversed because of governmental interference with the judicial process. By December 2001, Zardari had been granted bail in all cases pending against him. However, in a move apparently designed to prevent his release, the Musharraf government filed a new case accusing Zardari of evading import duty on a second-hand car. On November 22, the Supreme Court granted him bail in this case and he was released. Though Zardari’s release was ordered by the Supreme Court, government functionaries publicly stated that he had been released as part of a “deal” with the PPP that would culminate in the party’s recognition of the institutionalized role of the military in Pakistani politics. This would allow General Musharraf to hold the dual roles of army chief and president in exchange for a role in government and the dropping of charges against
    Bhutto, Zardari, and others.

    Arbitrary Arrest and Detention of Political Opponents

    The government continued to use the National Accountability Bureau and a host of anti-corruption and sedition laws to jail or threaten political opponents. Makhdoom Javed Hashmi, of the Alliance for the Restoration of Democracy, began a twenty-three year sentence for sedition, a charge brought against him for reading an anti-Musharraf letter to journalists in April 2004. In April 2005 thousands of opposition Pakistan People’s Party (PPP) supporters, including several PPP parliamentarians, were arbitrarily arrested in a countrywide crackdown. Though many of those arrested were subsequently released without charge, cases against hundreds were filed under the Anti-Terrorism Act and under Pakistan’s criminal procedure code. Scores continue to face charges and the fear of re-arrest. On May 11 Shahbaz Sharif, president of the Pakistan Muslim League (PML-N), was forcibly deported to Saudi Arabia when he attempted to end three years of involuntary exile.
    Prior to his arrival at Lahore Airport, scores of PML-N leaders and supporters were arrested and released subsequently.

    During the summer of 2005, Musharraf presided over a three-phase local government election marked by brazen intimidation, coercion, and pre-poll rigging. Some forty people died in election-related violence, making this the most violent electoral exercise in Pakistan’s recent history. During the campaign, many opposition candidates faced violence and intimidation at the hands of the police and civil administration. Independent observers reported numerous instances of kidnapping, mistreatment, and arbitrary detention of opposition supporters, as well as pre-election and election day irregularities.

  6. Mr Samad Khurram [Restore the Judiciary Movement] who refuse American Award in Pakistan but study in the same USA whose Military bombs Pakisan and same Mr Samad Khurram enjoys Photo Session with a Key US Democrat John Kerry whose vote was a part of Bush Campaign against Iraq [do you know how many Irqi died?]

    CJ Iftikhar Muhammad Chaudhry and USA

    Samad Khurram, Law Student and “Political and Human Rights Activist too!”

  7. More Dirt on the so-called Love Affair of Nawaz Sharif/Shahbaz Sharif – PML-N and Free Judiciary in Pakistan:

    History sometimes is very ruthless.

    Fascism on the march By Ardeshir Cowasjee

    Week Ending : 13 December 1997 Issue : 03/50

    THEORETICALLY, in a Westminster-style democracy that this country has tried to emulate, there are four pillars of state – the legislature, the executive, the judiciary, and the press. But our
    country rests imbalanced on five. The fifth pillar, the most powerful, the richest, the most organized, is the army. Fortunately for us, it is now headed by a good commander.

    Nawaz Sharif's `overwhelming' mandate, comprising less than ten per cent of the total population of the Republic, but sufficient for him and his `sovereigns of parliament' to do good by the 140 million should they so wish, did not satisfy him.

    He first tackled the executive, emasculating the president, rushing through at midnight the 13th Amendment, suspending all rules of procedure, aided and abetted by a pliant assembly speaker and a pliant senate chairman (both front-runners in the present presidential race). To neutralize the legislature, he repeated the exercise with his 14th Amendment (passed without a single dissent) banning dissension or abstention in parliament. Never in the recorded history of any democracy have parliamentarians voluntarily given up their right to speak.

    At the time when Farooq Leghari and his caretaker government were assuring Nawaz Sharif his second term, Abbaji was heard to declare, “leghari Sahib kay ehsan, mein, aur merey baitey, aur hamara khandan, kabhi nahin, bhoolengey.” This was forgotten on February 3 when Nawaz Sharif was elected.

    Nine months down the line, a weakened Leghari, given the choice between a threatened impeachment (which, because of the numbers game, may never have come off) or resignation, chose the latter. He should have called Nawaz Sharif's bluff, and, following the dictates of his conscience, gone on to sign or not sign whatever was presented to him. An independent judiciary would have intervened and passed appropriate orders against a mala fide and colorable impeachment.

    Leghari having resigned, a new president now has to be elected. When my friend, Nawab Mohammad Akbar Shahbaz Khan, Tumandar Bugti, was asked whether he was an aspirant, he replied “No. I do not qualify. I have a spine.” Amongst the pliable favorites are Wasim Sajjad, Sartaj Aziz, Ilahi Bakhsh Soomro, and, of all people, Ghous Ali Shah. Of this sorry lot, one is guilty of having lied under oath in the Supreme Court of Pakistan.

    The fourth pillar of the state, the press, is no longer just the printed word. it is also the predominating electronic media. Nawaz Sharif and his men do not, or cannot, read, so, by and large, we remain relatively free. PTV, our prime ministers' personal television channel, remains abjectly controlled, so much so that it was prevented from broadcasting President Leghari's resignation speech to the nation. Shots were shown on foreign television channels, and the world informed that it was banned from the national channel. This reinforced international opinion as to Nawaz Sharif's authoritarian tendencies.

    The army stands as one. Chief of Army Staff General Jehangir Karamat has acted prudently. Nawaz Sharif's propaganda about his having army backing is neither correct nor is it generally
    believed. Why do you glorify the army chief so, asked Ayaz Amir (not so long ago one of our credible national columnists but now a budding Nawazite)? Have you forgotten your history? Have you forgotten how Hitler divided and destroyed the Wehrmacht? Have you forgotten the Blomberg-Fritsch affair? Have you forgotten how the ageing giant Hindenburg was duped by Hitler? If Nawaz succeeds in his aim, will Karamat be forgiven? I told him I had not forgotten any of it and how not so long ago I had sent to the general a copy of a video film on the Fuhrer which is being followed up by a copy of Shirer's `The Rise and Fall of the third Reich'.

    As for the judiciary, Nawaz Sharif with his (or rather, our) money, with his carrots and sticks, has successfully managed to undermine this institution so recently built up. Neither history nor the people can ever forgive him for this.

    Chief Justice of Pakistan Sajjad Ali Shah (to the Bar and the people he is neither `under restraint' nor `under suspension') was appointed by Benazir in 1994. No judge, or member of the Bar, up to November of this year, voiced any protest against his appointment or his administration. As Rashed Rahman, son of a former Supreme Court judge, wrote about him in The Nation, “That he is a man of courage and has a clean record goes without saying. In that sense he can be compared to a hero of a Shakespearian tragedy whose fall is brought about as much by a flaw in his own character as by outside factors.”

    Fali Nariman, a former Attorney-General of India and now president of the bar association of India, who keeps himself abreast of happenings in the courts of our country, asked me to fax him the orders passed by the Quetta and Peshawar Benches and by Chief Justice Sajjad Ali Shah relating to the ouster. On December 5, a perplexed Nariman asked, `but is there any legal or constitutional basis for the orders of the Quetta and Peshawar Benches?”

    My constitutional adviser and senior counsel, Barrister Makhdoom Ali Khan, was immediately consulted. Careful Makhdoom's first response was to say, “Not to my knowledge.” I asked him for a one- word answer, either `yes' or `no'. “No,” he said. There are certainly no precedents in Pakistan for what has happened, but there are many against. It is a settled principle that no writ will be issued by one judge to another.

    On November 28, I was in the Supreme Court whilst the contempt case against Nawaz Sharif and others was being heard by Chief Justice Shah's Bench. Sitting beside me was my friend and lawyer, Khalid Anwer, now federal law minister. Whilst alleged contemner Nawaz Sharif's lawyer, S.M. Zafar, laboured on and on, Khalid shook his head from side to side. Zafar, making his usual noises, shifting his weight from one foot to the other, told the court that its constitution was in question. A calm and composed Sajjad asked, why then are you here before us? Zafar also questioned the legitimacy of Sajjad's appointment as chief justice. If you do not recognize me as chief justice, do you recognize me as a judge of the Supreme Court? queried Sajjad.

    As the harangue continued, I remarked to Khalid that his writ as law minister does not extend far, and asked if it would extend far enough for him to protect my seat whilst I nip out to attend to a call of nature. Good humouredly, he replied that though he may not succeed as law minister, he could manage to do so as a senior counsel of the Supreme Court. Before I could reach my destination one floor below the courtroom, a surging screaming crowd of hooligans appeared in the corridors. Zahid Hussain, correspondent for The Times (London) and the chief of AP in Pakistan, was with me. We were both hurriedly sent back by court officials who were rushing around instructing each other that the doors of the courtroom be closed, that the crowd had arrived to arrest the Chief Justice.

    As we re-entered, I heard Sajjad remark, to Zafar, “Thanks to you,” whilst adjourning the case and leaving the courtroom just before a section of the crowd, spearheaded by women, rushed in. Turning to Khalid I said that if Nawaz Sharif must use women, he should at least see to it that they are good looking rather than frightening. A lawyer of Lahore standing close by informed me that they were not actually women, but intermediary beings, and that I would look like them were I to shave off my beard and moustache and put on lipstick and make-up. He even recognized a few of them as being famous `tanglas' from certain specialized areas of Lahore. As we pushed our way out of the courtroom, a dejected Khalid Anwar muttered to himself, “Most unnecessary, most unnecessary.”

    Acting Chief Justice Ajmal Mian is so far clean on record, and, as far as is publicly known, free from any impropriety. His first challenge is to deal with all those involved in the attack on the Supreme Court. This will not be easy. It must nevertheless be faced. The mob did not attack a man, or a building. The institution of the judiciary, with the Supreme Court at its apex, was the
    target of the assault. This was contempt of court of the worst kind, and any lack of firmness or alacrity in dealing with the culprits will only encourage others to use similar methods each time the court is seized of a politically sensitive matter. The authority of the court will become subject to the muscle- power of the mob and the machinations of those who hire them.

    The master-fixer, my friend the Jadoogar of Jeddah, Sharifuddin Pirzada, who snoozed besides me as we flew back to Karachi, was firm in his opinion that the gravest of contempt had been
    committed, that it's an open and shut case.

    Fascdism on the march — II Ardeshir Cowasjee

    Week Ending : 20 December 1997 Issue : 03/51

    AN open letter to Justice Ajmal Mian, the honourable J-1 of the Supreme Court:

    As a citizen of Pakistan, no more no less, I address you, today the principal custodian of the honour and dignity of the judiciary of Pakistan, particularly that of the Supreme Court. You may perhaps have read my column printed last Sunday, the manuscript of which is sent herewith.

    The crucial issues pending before your court include;

    * Contempt of court action against Nawaz Sharif and seven others.

    * Petition regarding the unlawful allotment of thousands of plots by him when chief minister of Punjab.

    * Petition regarding the unlawful ISI distribution of Rs 140 million of the people's money to him and others.

    * Petition regarding award of wheat transport contract by him to his crony Saeed Shaikh.

    * Petition regarding his misuse of power in pressurising banks to settle loan cases out of court.

    * Petition challenging his Anti-Terrorism Act 1997.

    * Petitions regarding suspension of 13th and 14th Amendments.

    Fascism has been on the march in our country from 1954 a mere six years after Jinnah's death. Governor General Ghulam Mohammed used fascist force to try to prevent Maulvi Tamizuddin Khan from arriving at the High Court of Sindh to file his petition against the dissolution of the Constituent Assembly. He ordered that Tamizuddin be arrested before he could get there, and the High Court was surrounded by the police. Disguised in a burqa, Tamizuddin managed to get through to the Deputy Registrar, Roshan Ali Shah, father of the Chief Justice of Pakistan, Sajjad Ali Shah, held by certain of his bretheren now to be “under restraint.”

    Roshan Ali protected Tamizuddin and took him to Chief Justice Sir George Constantine, who accepted the petition and ordered the police to disperse or face action. You will also recall how, in 1973, District and Sessions Judge of Sanghar Mohammed Owais Murtaza was hand-cuffed, arrested while presiding over his own court, and jailed by provincial minister Jam Sadiq Ali, as ordered by Bhutto, for having granted bail to certain men he had imprisoned. The steadfast CJ Tufail Ali Abdul Rehman stood his ground and protested. Why was his judge humiliated, why was he, the Chief Justice, not consulted? Judge Murtaza moved the High Court for bail and Bhutto had him released before his application could be heard by Tufail Ali Abdul Rehman.

    It was also in the 1970s, when I first heard of you. You were a young legal adviser of the Karachi Port Trust. My father Rustom, the senior-most trustee, was acting as the Chairman of the Trust. One fine morning, an agitated Chief Engineer Aftab informed him that Chief Minister of Sindh Mumtaz Bhutto had arranged to lay the foundations of a labour colony on port land that afternoon. The platform had been erected, flags were flying and buntings hung. My father immediately wrote off to the CM telling him that the land was port land reserved for its development, that he should therefore cancel his building programme and save himself embarrassment.

    Within minutes, the gruff CM telephoned. Who are you? he asked, and how dare you address me as you have? Dared I have, replied my father. Right now, I am the Chairman of the Board of Trustees of the Karachi Port Trust, and therefore the chief conservator of all the land and water notified as falling within the port limits.

    Whoever you may be, responded the Talented Cousin, always remember that every inch of land in Sindh is mine to do with as I will. What will you do if I lay the foundation stone and build a colony? I will file a petition in the High Court, came the answer, and stay your designs.

    At lunch that afternoon, my father related this exchange to his sons. But, he said, we have a clear-headed young lawyer. “Ajmal tagro che,” and Tufail will stay Mumtaz's hand within fifteen
    minutes. However, before we could finish lunch, Aftab rang saying that the platform, flags and buntings had all been removed and the ceremony was off.

    My father could act as he did, banking on an honest High Court presided over by a fearless CJ who would feel bound to protect the Trust.

    Moving forward to the present, may I request that this letter of mine be accepted as a petition, and that you take suo moto action, for the gravest contempt committed in the face of the court,
    against those who stormed the Supreme Court on November 28 as well as all those responsible for organizing, paying, and directing them to so do, and that severe deterrent punishment be handed down to all of them. (Possibly taking their cue from the Nov 28 happening, 50 mobsters on December 12 attacked the court of a civil judge of Faisalabad). Collectively responsible and guilty is the entire federal cabinet and its primus inter pares.

    As evidence, sent herewith is a cassette. You will see clearly from this video recording, that the disgraceful and unprecedented scenes that took place on the premises and inside the court building on November 28 were undoubtedly government inspired and led, funded by the peoples money. You will, as did I, recognize certain prominent members of the present government, of the Senate, the National Assembly and the Punjab Provincial Assembly. And should you be familiar with the Muslim Leaguers of the prime minister's own home town, Lahore, you will no doubt see many familiar figures, flaunting the flag of the ruling party, proving that the substantial and violent mob was bussed in from the provincial capital specifically for the raid.

    You will see on the portion taken from BBC tracks, that prominent in the pushing, shoving and shouting crowd outside the court is the well known federal minister Mushahid Hussain who works closely with the prime minister. As he jostles along he is smiling the smile of sweet success and contentment. You will observe that he made no effort to pacify or dissuade the mob. Clambering over the gates of the court premises can be spotted the ample figure of MPA Sa'ad
    Rafiq, a former leader of the Muslim Students' Federation. Encouraging the attack is the since- sacked-then-reinstated political secretary to the prime minister, Mushtaq Ali Taherkheli,
    who later was interviewed by the BBC. You will also see the many law enforcers, flak-jacketed policemen, standing watching, or strolling by, apparently under orders not to react.

    Women were well represented by Najma Hamid, a former MPA of Punjab, I am told.

    Amongst those directing the mob within the court building was Senator Saifur Rahman, Nawaz's chief trouble-shooter and man for all affairs, and his chief-in-charge of ehtesab. It was very sad to spot him amongst the hooligans. I thought better of him. The night before, he was hurriedly sent for by provincial chief minister Shahbaz Sharif and he flew back with him from Lahore in the CM's special plane at 0300 hours that morning.

    Sardar Naseem, an MPA of Lahore, was prominent, as was an associate of the well-known Khwaja Riaz Mahmood, a former deputy mayor of Lahore, famous for remarking that he cannot understand why two police constables were not simply sent to arrest the chief justice and get the whole thing over with quickly.

    Other honourable Senators seen directing the rioters were Raja Aurangzeb, and a man recognized by some as Parvez Rashid. MNA Tariq Aziz did his active best. Former hockey star Akhtar Rasool, and Mian Abdul Sattar, both MPAs of Lahore, performed well. From Rawalpindi there was MPA Chaudhry Tanvir, a former vice-chairman of the Cantonment Board. You will see how the rowdies were guided in and, after forcing the court to adjourn, hurriedly ushered out. They were later accorded a celebratory feast at Punjab House. The affairs of state will trundle on and soon Chief Justice of Pakistan (under restraint) Sajjad Ali Shah will be invited by the government to honour his constitutional obligation and swear in the new President, as required by Article 42. But, on you, for the present, rests the onerous responsibility of reconsecrating a badly desecrated and purposefully divided Supreme Court.

    Fascism on the march – III Ardeshir Cowasjee

    Week Ending : 27 December 1997 Issue : 03/52

    THIS true story relating to the election of the first president, to suit the genius of the 1973 Constitution warrants repetition. When President Bhutto decided to step down to the prime ministerial slot he looked around for a 'suitable' replacement. What he sought ideally was a blind, deaf, mindless, crippled candidate. Prior to his sighting of the gentle Fazal Elahi Chaudhry, his eye lit upon the politically acceptable Begum Shahnawaz, daughter of Sir Mohammad Shafi, sister of my late lamented friend, Mian Iqbal Shafi.

    My first reaction was to exclaim, good grief, she must be pushing ninety. To check, and to congratulate Iqi in the event that it was true, I rang him. Yes, he said, there is something to it and, yes, she is getting on for ninety. But she qualifies perfectly. She can barely see, she is almost stone deaf, and she is mobile only if helped. We must hope they don't let her down. She is preparing her trousseau for the move to the presidential palace, and it will hit her hard if it doesn't come off. Nusrat and Zulfi have been visiting. Keep your fingers crossed, pal. You and I may be on to a good thing. She will have a special train. We'll organize an extra bogey and tour Pakistan in style. Pack your bags, pal, he instructed me before he signed off.

    A few days later Iqi called. Unpack, pal, unpack. Bad news. Jehanara's chances have receded. She has regained her hearing in one ear, her eyesight has improved, and she has thrown out her
    nurse. No go. She has ceased to qualify. Looking around this time, Nawaz Sharif's eye focused on
    octogenarian Fida Mohammed Khan as a suitable candidate. He also qualified on other grounds. Hailing from the NWFP, he would be acceptable to most as a symbol of the federation. But Wali Khan, Sharif's coalition partner, spoilt that one. Fida did not suit his purposes. He was relatively sharp of hearing and sight, and had almost all his brain cells intact.

    Up came the name of Mohammed Ali Khan Hoti, also from the NWFP. He was immediately rejected, for he has a good solid spine and is quite capable of deciding for himself what is what.

    Ghous Ali Shah of Sindh's name cropped up, but was hastily discarded as too many people who mattered insisted that he was far too 'controversial' (the local euphemism for 'totally unacceptable').

    Then Abbaji stepped in, and within the space of one minute settled everything. Cut the cackle and forget about the 'smaller' provinces. Let's keep it all in the family and in Punjab. Select my
    friend and legal adviser, Rafiq Tarar, whose wit and wisdom I share, and with whom I often sup late into the night, exchanging sick Sikh jokes from our vast reservoirs. He is, and will prove to
    be, perfect.

    What is good for the Sharifs, is good for the party, and is good for the nation. Soon, with God's blessings, we will have a Sharif nominee at the head of the Supreme Court and at the head of our
    powerful army. 'Der Fuhrer' had spoken. Without further ado, without consulting his ruling party members, or the leaders of the coalition parties, Nawaz Sharif nominated Tarar.

    Thought-broadcaster and 'media developer' Mushahid Hussain was ordered to tailor Tarar to fit the slot, and vice versa. Mushahid trumpeted: Tarar is a moderate Muslim, a clean, devout, upright man and, contrary to what is said, is not a misogynist. He has been cleared by the agencies (who codified him in the records sent to those prosecuting Benazir's Bhutto government's dismissal as DW1 — Dari Wallah 1). He is a son of the soil, officially born in Pirkhot, District Gujranwala, on November 2, 1929, educated in Gujranwala and Lahore. Gujranwala is his oyster. It was there he grew his formal beard and in 1951 launched himself as a pleader.

    He moved up to become advocate of the high court, to additional district and sessions judge, to district and sessions judge, and was elevated to the bench of the Lahore High Court in 1974, in the good old days of Zulfikar Ali Bhutto's PPP. In 1989, in the equally good old days of Zia, he became chief justice of that court, moving up to the Supreme Court in 1991, from where he retired in 1994. His brilliance on the bench of the Supreme Court has been immortalized. During the three years he sat there, one sole judgment authored by the Honourable Justice Tarar was recorded in a PLD — his concurring judgment in the case of the 1993 dissolution of the National Assembly when the presidential dissolution order was struck down and the government of Nawaz Sharif restored.

    Amongst his friends who share his thoughts and beliefs and over whom he wields considerable influence are Justice Khalilur Rahman (codified as DW2), a signatory to the November 1997 order of the Quetta bench of the Supreme Court which sparked off the sorry disintegration process; Afzal Lone, a benefactor of the Ittefaq empire, rewarded with a Senate seat, who is inevitably to be found lurking in the prime minister's secretariat, and Major General Javed Nasir (DW3), Nawaz Sharif's former chief of the ISI and of the 'Afghan misadventure'.

    Tarar's nomination was filed on December 16, together with that of his covering candidates Captain Haleem Siddiqi and Khwaja Qutubuddin. (It is somewhat of a disgrace that a master mariner should have allowed his name to be included amongst the spineless.) Tarar's nomination was rejected on December 18 by Justice of the Supreme Court Mukhtar Ahmad Junejo, who also holds the post of Acting Chief Election Commissioner. Junejo, in this case, proved himself to be as strong as Seshan.

    Can we remove Junejo, was Nawaz Sharif's first Gawalmandi reaction. Risky, he was told. Then file a petition against Junejo's order in the Lahore High Court and have the order suspended. Suitable counsel were hurriedly contacted, and it goes to the credit of the bar that not one of the top constitutional lawyers was willing to accept Tarar's brief.

    Ejaz Batalvi, expert criminal lawyer, was roped in. Justice Qayyum admitted the petition on December 19 and suspended Junejo's order, allowing Tarar to “participate in the election provisionally subject to further orders”. A larger bench will hear the petition on the 23rd.

    My renowned constitutional expert (who for his own good explicitly asked me not to name him) maintains that Tarar may sail through the Lahore High Court. But, in the Supreme Court, it may, just may, be a different kettle of fish. Passing muster there will not be that simple.

    The irony is that the order of Acting CEC Mukhtar Junejo will be defended by Attorney General Chaudhry Farooq, who, though technically the first law officer of the land representing the people still acts as if he were the personal hired lawyer of Ittefaq and Nawaz Sharif.

    As for the president of the republic, with the powers now left to him in the Constitution, all he can depend upon is his moral authority and his presentability to the world. Tarar, unfortunately, possesses neither. To quote from the 'Comment' of man-of-integrity Kunwar Idris, published in this newspaper on December 20 :

    “Also casting a dark shadow on him is the referendum of December 1984 when, as a member of Zia's Election Commission, he solemnly assured the people that 55 per cent and not just five per cent of the electorate had turned out to confer legitimacy on Zia's dictatorial rule. Mr Tarar also has to dispel the widely insinuated impression that he was involved in the 'Quetta Shuttle' which
    divided the Supreme Court and write the saddest chapter in Pakistan's constitutional history.”

    The task before the present de facto chief custodian of the Supreme Court, the honourable J-1, Justice Ajmal Mian, is onerous indeed. Before he can reform and unite his 'farishtas' (as the judges of the SC are affectionately known) he has to clean up the paradise over which they preside. The dignity and honour of the court remain desecrated and dented by the mob attack upon it organized by the ruling party. The court must be cleansed and reconsecrated, the sponsors and their stormers punished for committing a criminal act in the face of the court.

    Another task awaiting Justice Mian is the reining in of the parallel judiciary incorporated in the Anti-Terrorism Act of 1997 (a Lone-Tarar creation).

    Also (important and urgent) he must demolish the formation of a squad of honorary magistrates planned to be recruited in Punjab from the ranks of party bosses of the Muslim League. Following in his master's footsteps, Punjab Law Minister Raja Basharat is said to have thought up this brilliant fascistic move.

    Fascism on the march – IV Ardeshir Cowasjee

    Week Ending : 03 January 1998 Issue : 04/01

    SHOULD their mindset allow them one, all those who are still able to believe that the system we have is a democracy that suits the genius of and is capable of governing the 140 million people of
    Pakistan should have second thoughts.

    Reproduced are extracts from a series of columns entitled 'Ehtesab or intekhab', printed in this space in this newspaper during the Leghari caretaker period:

    Dec 12, 1996 — “Never have we been nearer the edge of the precipice. The people must be taken into confidence and their will must prevail. A direct reference must be made and this caretaker government must ascertain what it is the masses want. The Constitution adequately provides in Article 48(6): “If, at any time, the President, in his discretion, or on the advice of the
    Prime Minister, considers that it is desirable that any matter of national importance should be referred to a referendum, the President may cause the matter to be referred to a referendum in
    the form of a question that is capable of being answered by 'yes' or 'no'.”

    Dec 29, 1996 — “The constitutionalists who support Nawaz maintain that elections must be held within 90 days. They ignore Article 254: 'When any act or thing is required by the Constitution to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period.' They overlook Article 48(6).

    “Why is the President afraid of holding a referendum? He must know that the overwhelming majority of the people will insist that the holding of the accountability process must be completed, and that the guilty politicians should be disqualified, or convicted, before any elections are held? But does he know that the majority of the people find many of the present caretakers unacceptable? He could easily replace them and appoint men in whom the people have confidence.”

    Jan 20, 1997 — “The people say, let there be a time-limited delay in the holding of elections. Article 58(2)(b) provides for an appeal to the electorate. Article 48(6) permits the President “in
    his discretion or on the advice of the Prime Minister” (the advice being binding) to hold a referendum. Can the President not ask the people if they wish for a time-limited delay in the holding of elections (say, a period of 15 months) which would give him and his team (a changed team, he should get rid of the known rotters) time to strengthen the accountability laws and complete the process? >From the highest to the lowest in the land, the feeling is that these elections are being held far too soon. Chief Justice of Pakistan Sajjad Ali Shah is all for accountability and has stated that the 90 days period is 'too inadequate for completing the accountability process' (Dawn Jan 13).

    “If, as it seems clear they will, the people vote for a time- limited delay, the Nawazians, the anxious hopeful beneficiaries, may go to court in protest. Let the CJ and his brethren then give
    their verdict.”

    All too late now, Leghari dithered, wavered, and made up his mind that Nawaz Sharif was to be installed in the prime ministerial mansion and given another round. Incapable of exercising moral authority, he let greed get the better of him. And what was his fate? In less than a year, having allowed himself to be rendered weak and vulnerable by the very creature he had installed, and fearing the remote possibility of impeachment, he fled the scene on December 2.

    Nawaz Sharif was sworn in as prime minister on February 17. Rather than concentrating on doing good by the people, for which all that is needed are moral qualities and endowments, moral habits and conduct, and the ability to know the difference between right and wrong, he concentrated on grabbing more power than was due to him by the Constitution.

    So, in less than two months at midnight on April 2, all rules and procedures of the parliament were suspended and in the middle of the night, the 13th Amendment Bill was rushed through both Houses, signed by the president the next day, and notified on April 4. By this Amendment, the president was disempowered, and the prime minister further empowered. The president cannot dissolve the National Assembly, he cannot appoint governors at his discretion but on the advice of the prime minister, the provincial governors cannot dissolve their assemblies, the president, though he remains supreme commander of the Armed forces, no longer has the power to appoint or sack the service chiefs.

    The question the president did not ask before signing this bill:

    Why is this Amendment necessary? Why were the rules of procedure suspended? Why was no debate allowed in the House?

    Rules dictate that a constitutional amendment is an extraordinary measure involving a great deal of deliberation on the part of the ruling party, consultation with the opposition, and an objective study of public opinion on the subject. Thereafter, according to the rules of procedure governing parliamentary proceedings under the 1973 Constitution, a bill (other than a finance bill) upon its introduction in the House stands referred to the relevant standing committee, unless the requirements of Rules 91 and 92 are dispensed with by the House on a motion by the member-in-charge. The standing committee is required to present its report within 30 days and, on receipt of this report, copies of the bill as introduced, together with any modifications recommended by the standing committee, must be supplied to each member within seven days. Two clear days then must elapse before the bill can be sent down for a motion under Rule 93.

    Less than three months after this transgression, on June 30, in the Senate, the rules of procedure were again suspended, The 14th Amendment Bill went through like a shot, passed in less than a day, without one single protest or dissent being recorded.

    On July 1, the bill was presented to the National Assembly, again rules of procedure were suspended, and the bill was passed immediately, again without one single protest or dissent. It went up to the president, on July 3 he put his signature to the bill, and on July 4 the Fourteenth Amendment Act of 1997 came into force.

    This Amendment admittedly has the aim of putting an end to lucrative defections. But 'lotaism' only existed because all our political parties were in the business of buying and selling bodies. However, that was not deemed to be sufficient. The prime minister had to be further empowered, and so he was. A member of a parliamentary party will also be deemed to have defected if he breaches any declared or undeclared party discipline, code of conduct or policies, or if he votes contrary to any direction issued by his parliamentary party, or if he abstains from voting as instructed by his party on any bill. The prosecutor, defence counsel, judge and jury who will decide the member's fate is the head of the party, whose decision is not justifiable in any court of law.

    The 14th amendment rendered the herd of legislators voiceless and the bell-wethers all supreme. Again, the president did not question the necessity for the stifling of all dissent.

    The 15th Amendment Bill, disempowering the Chief Justice of Pakistan, has already been drafted. It was to be rushed through the two Houses in November, but for some strange reason Nawaz Sharif and his men stayed their hand. There is no reason for them to stay it any longer, and any day now rules and procedures will be thrown to the winds and the hasty midnight process will be repeated.

    Now, to face reality. Nawaz Sharif had, within six months, managed to remove most of the stumbling blocks in his way. He had so far not touched the judiciary. He soon realized that the superior judiciary, headed by an honest man, was capable of moving against him. He made up his mind that Sajjad Ali Shah would have to go. Having reached this conclusion, he then sought the means.

    If fascistic practice prevails, ladies and gentlemen of the press, we are next on the chopping block.

  8. More Dirt on the so-called Love Affair of Nawaz Sharif/Shahbaz Sharif – PML-N and Free Judiciary in Pakistan:

    Storming of the Supreme Court By Ardeshir Cowasjee

    21 November 1999 Sunday 12 Shaban 1420

    AN affidavit in the case of the storming of the Supreme Court of Pakistan (Cr. Appeal 162/99 arising out of Cr.Misc.27/98) was sworn on November 17, 1999, and placed on the Supreme Court record:

    “I, Ardeshir Cowasjee, son of Rustom Fakirjee Cowasjee, Parsi, adult, resident of 10 Mary Road, Karachi, do hereby solemnly state :

    “1. Instigated, supported and aided by the leaders of the Pakistan Muslim League (N) party then in power, legislators, party members and street activists of the party stormed the Supreme Court of Pakistan on the morning of November 28, 1997.

    “2. On December 13, 1997, I wrote and sent the following letter to the then Acting Chief Justice of Pakistan, Justice Ajmal Mian : 'Gravest contempt committed in the face of the Supreme Court of Pakistan at Islamabad whilst the court was in session on Friday November 28 1997 'Sent herewith :

    '1) A copy of the manuscript of my column sent to Dawn to be printed in my regular slot on Sunday, December 14.

    '2) A video cassette.

    '3) A copy of the manuscript of my column printed in Dawn on Sunday, December 7, with excised passages highlighted.

    'You will undoubtedly appreciate the urgency of the matter. Apparently, encouraged by the successful storming of the Supreme Court on November 28, a fortnight later a mob invaded the court of a civil judge at Faisalabad.

    'It is my firm belief, which, needless to say, is shared by many others, that, as is the case with Benazir Bhutto, her family and followers, Nawaz Sharif and his adherents can neither tolerate nor survive a strong united judiciary.

    'If Nawaz does survive beyond the next six months, he will find ways to remove you.'

    “3. On December 15, 1997, the Acting Chief Justice appointed Abdur Rehman Khan, J, of the Supreme Court to hold an inquiry for the following purposes :

    '(1) examine what steps the Federal Government has taken against the persons responsible for the incident on 28/11/97 at the Supreme Court premises and at what level investigation is being carried out as also the stage of investigation; and also to examine the various communications/information which have been received by this Court from various sources, including members of the public.

    '(2) to suggest what steps/ actions the Supreme Court should take/initiate in the above matter and for avoiding such incidents in future.'

    “4, On February 18, 1998, two months later, not satisfied with what he could establish, the government of the day for obvious reasons being non-cooperative, Justice Abdur Rahman reported back to the Chief Justice suggesting, inter alia :

    '(C)(i) As the action of those individuals who forced their entry into the court premises and raised slogans against the judiciary prima facie amounts to gross contempt of this Court but, except for some of them, most of such individuals have yet to be identified, it is considered appropriate that the Hon'ble Chief Justice may constitute a Bench of the Court to initiate contempt proceedings for the outrageous incident of 28/11/97. The Bench so constituted can adopt such measures and take such actions as it may deem necessary to identify the concerned persons. Once the concerned persons are identified, the Court can then issue notice to them and then take further action under Article 204 of the Constitution and the applicable law. Necessity for initiating such action immediately is felt because of paramount importance of the matter as the sanctity, dignity and respect of the apex Court of the country is involved. Street power should not be allowed to coerce and intimidate the judiciary.'

    “5. On February 25, 1998, the Chief Justice issued the following order :

    'Pursuant to the recommendation contained in para (C)(i) of the report, I constitute a Bench comprising Mr Justice Nasir Aslam Zahid, Mr Justice Munawar Ahmad Mirza and Mr Justice Abdur Rahman Khan to identify the persons involved in the incident of 28th November, 1997, and to initiate contempt proceedings as recommended in the above para ……. '

    “6. Pursuant to the order of the Chief Justice, Criminal Miscellaneous 27/98 was registered and proceedings in the case were commenced on March 2, 1998.

    “7. Between March 25, 1998 (on which date I was for the first time summoned to give evidence), and May 21, 1998, I attended eleven of the hearings held from the commencement of the identification proceedings on March 2, 1998, to their completion on June 15, 1998. It was my distinct impression, and the impression of many others who attended these hearings, that the Attorney-General of Pakistan, Chaudhry Farooq, lawyer of the Ittefaq group of industries, and his assistants did their utmost to protect the leaders of the Muslim League (N) and the men who had stormed the court rather than prosecute them. Chaudhry Farooq himself having been accused of the grossest contempt in the face of the court of Mr Justice Munir A. Shaikh could obviously not have done otherwise.

    “8. The actual storming of the Supreme Court (within the building) was recorded on two of the Court's closed circuit television cameras and whereas these were seen on a screen by the Bench and the Attorney-General on March 11, 1998, despite my request, these two cassettes were not shown subsequently in the courtroom whilst witnesses were being examined.

    “9. Names of witnesses who could have given valuable evidence were submitted to the Court but all these witnesses were not called. As is recorded on p.5, serial no.4, of Justice Nasir Aslam Zahid's judgment in the matter :

    'Other persons made applications to the Court for being examined. Whenever the Court considered necessary, such persons were called and their statements recorded.'

    “10. Whilst giving evidence, I accused the former prime minister, Mian Nawaz Sharif, and other members of the party in power of having masterminded and organized the storming of the Court. However, the Court did not find it necessary to summon such members of the ruling party to give evidence.

    “11. Senator Saifur Rahman, former chief of the Ehtesab Bureau, was clearly shown on the cassette which I submitted to the Court. It was very evident that he was exhorting the crowd to storm Courtroom No.1 where contempt proceedings against the prime minister, Nawaz Sharif, and other parliamentarians were being heard that day. Khwaja Asif, PML MNA, was also identified but not charged, as was the case with PML MPAs Chaudhry Tanveer and Mian Abdul Sattar. Former Information Minister Mushahid Hussain and the former political secretary to the prime minister, Mushtaq Tahirkheli, were clearly shown on the BBC film of the storming crowd outside the Supreme Court as being members of that crowd. None of these members of the ruling party were charged.

    “12. During the course of the investigation proceedings it was not deemed necessary by the Court to inquire into the background and run-up to the storming of the Court, nor into the reasons why it was engineered.

    “13. On July 3, 1998, show cause notices were directed to be issued to 26 respondents, and such notices were issued on October 11, 1998.

    “14. On March 1 1999, further proceedings against eight activists of the Muslim League were postponed until the decision of the criminal case against them (FIR 229/97, PS Secretariat, Islamabad), and apologies tendered by ten officers of the police and administration were accepted. The show cause notice to Mushtaq Tahirkheli was withdrawn. Contempt charges were framed against two MNAs, four MPAs, and one PML (N) activist.

    “15. On May 5, 1999, I was again summonded to give evidence and made the following statement: 'I accuse the Prime Minister and the ruling party of storming the court on 28 November, 1997. They obstructed the course of justice (p.18 judgment of May 14, 1999).

    “16. The judgment of May 14, 1999, signed by the three judges acquitted the seven respondents, as charges of contempt were not established against any of them on the basis of the evidence produced before them. The judgment impliedly held that no one had been responsible for the storming of the Supreme Court on November 28, 1997.

    “17. Crl. Appeal 162/99 against the judgment of May 14, 1999, is to be heard on November 19, 1999, by a Supreme Court Bench of 12, and for the first time notice has been issued to the PML (N) at House No.4, Khayaban-e-Iqbal, F-7/3, Islamabad.

    “18. Now, with the suspension of the PML (N) government and the new government in power, government functionaries and law enforcers will feel free to give evidence, as may certain members of the PML (N) itself. There will be no apprehension that the administration will coerce and intimidate witnesses. For this reason, it will be in the interest of justice and of the institution of the judiciary that Criminal Miscellaneous Application 27/98 be heard by the Supreme Court de novo .

    “19. It is accordingly prayed that the honourable court set aside the judgment of the three members Bench and direct that the case be heard de novo . “

    On November 18 a letter was sent to Attorney-General Aziz Munshi, attaching a copy of the affidavit and stating, inter alia :

    “You are the first law officer of the people and they are justified in their assumption that you will plead that the case be heard de novo.”

    Munshi delivered. Seven hundred and twenty-two days after the Court was stormed, thirty-eight days after Prime Minister Nawaz Sharif and his ruling party were deposed, the Supreme Court sent a notice to Mian Muhammad Nawaz Sharif, president of his own Muslim League group and former head of government of the Islamic Republic of Pakistan.

    Storming of the Supreme Court By Ardeshir Cowasjee

    28 November 1999 Sunday 19 Shaban 1420

    AN affidavit in the case of the storming of the Supreme Court of Pakistan (Cr.Appeal 162/99 arising out of Cr.Misc.27/98) was sworn on November 27, 1999, and placed on record in the Supreme Court of Pakistan:

    “I, Ardeshir Cowasjee, son of Rustom Fakirjee Cowasjee, resident of 10 Mary Road, Karachi, do hereby place on record a letter dated November 26, 1999, written by me to Mr. Aziz Munshi, the Attorney General of Pakistan:

    “Dear Mr. Attorney-General

    “1) It is not necessary for me to remind you –

    -That no democracy can survive without checks and balances, institutional or otherwise.

    -That the last sham democracy we have suffered, imposed upon us by Mian Nawaz Sharif, has destroyed all but one institution of state capable of checking his megalomania, his avarice for pelf and power, and his abuse of power.

    -That when institutions are corrupted, in the eyes of the people those who corrupt as well as those who tamely allow themselves to be corrupted are all equally culpable. However, a megalomaniac must be deemed to be less culpable than those who profess to be burdened by the halos they wear.

    – That in order to protect itself when in the wrong, one institution, misusing its power, has been known to employ intimidatory measures against another institution. Case in point: excised by the editor (self-censorship) from my Dawn column of 28/12/97 (Fascism on the march-IV) : “Is there any reasonable man in Pakistan prepared to believe that three honourable judges of the Supreme Court, Justices Irshad Hasan Khan, Nasir Aslam Zahid, and Khalilur Rahman, sitting in far away Quetta in the month of November, were capable of acting as they did on their own? What transpired in cold Quetta and the repercussions thereafter, which defy logic and reason, is a story that will haunt our superior judiciary for years to come.” When I brought this to the attention of the then law minister, Khalid Anwer, his comment was: “Since I have no desire to see you hauled up under our antiquated and irrational law of contempt, I can only applaud your editor's discretion.”

    “2) Whilst investigating a crime, it is vital to the case to look into its background and the motives which prompted the crime.”3) Instigated, supported and aided by the leaders of the Pakistan Muslim League (N) party then in power, legislators, party members and street activists of the party stormed the Supreme Court on November 28, 1997, committing the gravest contempt in the face of the court in judicial history. The president of the ruling party, Nawaz Sharif, and his dastardly aides committed the crime with impunity, safe in their knowledge that no court in the country would convict them.

    “4) The run-up to the disgraceful storming began in August 1997, when CJP Sajjad Ali Shah recommended the names of the five senior-most high court judges for elevation to the SC. The filling of the five vacant positions was long overdue. The government response to the request was to issue a notification reducing the strength of SC judges from 17 to 12.

    “5) Early in September 1997, the Supreme Court Bar Association challenged this reduction and the SC admitted its petition. The Court suspended the notification, which was withdrawn by the government, but which held the appointment of the five judges in abeyance. The government subsequently backed down and the petition was disposed of.

    “6) On October 9, 1997, CJP Shah flew to Saudi Arabia. The next day, Acting Chief Justice Ajmal Mian claimed that he had not been consulted on the elevation of the five judges. Eight other Supreme Court judges sent him a requisition for the convening of a full-court meeting to discuss the matter. ACJ Mian gave notice for such a meeting to be held on the 13th of the month.

    “7)CJP Shah flew back on the 13th and cancelled the full-court meeting.

    “8) On October 17, seven judges of the SC asked CJP Shah to convene a full-court meeting. He rejected their requisition.

    “9) On October 20, in an unprecedented move, five judges of the SC addressed a letter to CJP Shah challenging his appointment and released to the press the text of their letter.

    “10) On October 25, Nawabzada Nasrullah Khan challenged the 14th Amendment and on October 29 a bench of the SC passed an interim order suspending the amendment, terming it 'anti-dissent'. That same day a joint parliamentary group declared – verbal war on the superior judiciary, the prime minister calling the suspension 'unconstitutional' and several of his parliamentarians from the floor of the National Assembly condemning in violent language the action of the CJP.

    “11) On October 30, a Bench of the Supreme Court passed an order invoking Article 190 of the Constitution and requested President Farooq Leghari to appoint the five judges to the five vacant positions. The president warned the government that he may be compelled to do so, whereupon the prime minister backed down and agreed to the elevations.

    “12) On October 31, a petition was filed challenging the 13th Amendment, and contempt petitions were also filed against the prime minister and seven other parliamentarians.

    “13) On November 3, the SC issued pre-contempt notices to the prime minister, to the law minister, to five other parliamentarians, and to the editors of three newspapers. Barrister S M Zafar appeared for the PM and sought one month's time to prepare and file his written statement. He was given one week.

    “14) On November 12, contempt notices were issued to the PM and the others asking them to appear and to file their written replies.

    “15) On November 14, Information Minister Mushahid Hussain announced that the PM had decided to make a personal appearance in the SC which he duly did on November 17.

    “16) On the night of November 17-18, at a post-midnight session, the National Assembly passed a bill amending the contempt of court law, allowing an intra-court appeal to 'the remaining judges' against a Supreme Court show-cause notice or conviction for contempt of court.

    “17) On the morning of November 18, an SC bench in Quetta (JJ Nasir Aslam Zahid, Irshad Hassan Khan and Khalilur Rehman Khan) admitted a petition challenging the appointment of the CJP and asking that he convene a full court to decide the matter.

    “18) On November 19, the PM publicly criticized President Farooq Leghari for delaying the signing of the Contempt of Court (Amendment) Bill. On the 20th, Leghari issued a statement saying he would not sign the bill on the insistence of one man; the SC heard petitions challenging the bill, and issued an interim order asking the president not to sign the bill, which, if already signed, would be considered suspended. To this, the PML(N) parliamentary group demanded the impeachment of the president, the cabinet approved, signatures were sought, and the decision taken to give notice at that evening's Senate session.

    “19) On November 21, the SC issued a notice to the government in the 13th amendment case and refused to grant interim relief. The hearing was adjourned to the 27th.

    “20) On the night of November 25, Senator R.A.Tarar, was sent in a special flight to Quetta to use his persuasive powers on the SC judges sitting there. On November 26, two members of the Quetta bench of the SC (JJ Irshad Hasan Khan and Khalilur Rahman Khan) issued an interim order suspending CJP Shah, challenging his out-of-turn elevation, and restraining him from the performance of his functions. CJP Shah termed this order illegal. (The order was signed that night by the third member of the Quetta Bench, Justice Nasir Aslam Zahid, who was out of Quetta when the order was issued.)

    “21) On November 27, a bench of five judges of the SC at Islamabad annulled the verdict of the Quetta bench. PML(N) parliamentarians and activists present in the courtroom insulted and heckled the judges, refused to accept the authority of the court, shouting that 'Sajjad Ali Shah' had no right to be there as he had been suspended. That same day, a two-member Peshawar bench of the SC (JJ Saeeduzaman Siddiqui and Fazal Illahi Khan) called for a full-court bench to decide the matter of the validity of the CJP's appointment.

    “22) On the night of November 27-28, having completed all arrangements for transporting a mob of PML(N) workers and activists from various areas of the Lahore region, Senator Saifur Rahman and Punjab Chief Minister Shahbaz Sharif flew into Islamabad from Lahore in the CM's special plane.

    “23) At 0700 on the morning of November 28, Lt-General Rana, then heading the ISI, informed COAS General Jehangir Karamat that a mob had been organized to raid the SC whilst the contempt case against prime minister, Nawaz Sharif, was being heard. You, I, and the world at large know well the sordid details of the demeaning and shameful events that followed on that day of November 28, 1997.

    “May I suggest, now that the storming case has been reopened, that in addition to those already summoned, President Tarar, Shahbaz Sharif, Saifur Rehman, former CJP Sajjad Ali Shah, former President Leghari and Lt-General Rana, all be called to give evidence.

    “The Court was stormed two years ago on November 28, 1997. The verdict in the contempt case, acquitting the few insignificant members of the storming party who had been charged, was given on May 14, 1999, over 500 days later. We must hope that the rehearing of this case will be completed expeditiously.”

    Storming of the Supreme Court By Ardeshir Cowasjee

    01 October 2000 Sunday 02 Rajab 1421

    AFFIDAVIT sworn at Karachi on September 27, 2000:

    “In The Supreme Court of Pakistan (Cr. Appeal 162/99)…… I, Ardeshir Cowasjee …….. in reference to a front-page news report published in Dawn, the newspaper of record, on September 19, 2000, headed 'Rowdyism at SC: Respondents seek mercy' (Attachment 1) in which has been reported '… After conferring with his clients, the counsel said that his clients had thrown at (sic.) the mercy of the court. Referring to SC judgment in Masroor Ahsan vs. Ardeshir Cowasjee', counsel said that whenever the accused threw himself at the mercy of the court the court showed magnanimity….', do hereby affirm:

    1) That the above news item implies that in Cr.O.P. 5/95, Masroor Ahsan v. Ardeshir Cowasjee, Mr Ahmad Ali Khan, Editor, Dawn and Mr Ghulam Ali A Mirza, Printer & Publisher, Dawn, the Respondents, threw themselves at the mercy of the court.

    2) That, the factual position is, no charges were framed against any of the Respondents and that no Respondent threw himself at the mercy of the court. It is requested that the court record may be accordingly corrected.

    3) That I attach hereto a copy of my unrefuted column published in Dawn on May 23, 1999, entitled Not guilty?' (Attachment 2). Particular reference is made to the following passages:

    (a) “At 0300 hours on Friday, November 28, 1997, the landing strip of the Islamabad airport was lit up. Punjab Chief Minister Mian Shahbaz Sharif flew in, having wished God Speed to his party stalwarts travelling by road from Lahore to the capital city. He had come to witness his stormers perform and to arrange a post-storming celebratory luncheon at Punjab House.”

    (b) “With him, amongst others, was Senator Saifur Rahman. Saif was later to deny having had anything to do with the transportation of the hordes, explaining that he had 'rushed' to Lahore the evening before to visit a judge of the Supreme Court. Having met His Lordship at 11 o'clock at night, he had hitched a ride back with Shahbaz.”

    (c) “At 0730 hours the same day, Lt General Nasim Rana, then heading the ISI, called on COAS General Jehangir Karamat to report that a large crowd of ruling party men had left Lahore the previous night and was now congregating in Islamabad preparing to storm the Supreme Court. General Karamat played by the book and asked Rana to warn the man whose orders he obeyed, Nawaz Sharif, prime and defence minister. Another general in Karamat's place would have perhaps ordered a company of the 111 Brigade to conduct a 'move' exercise around the Supreme Court and the Parliament area that morning. The army is, after all, responsible for the security of the people and their institutions.”

    (d) “The plan to oust Chief Justice Sajjad Ali Shah, which had taken root as early as August 21, 1997, succeeded and he was deposed.”

    (e) “On December 13, 1997, fifteen days after the event, I addressed an open letter to Acting Chief Justice Ajmal Mian [my column, 14/12/97), requesting that “it be accepted as a petition and that he take suo moto action, for the gravest contempt committed in the face of the court, against those who stormed the Supreme Court on November 28, 1997 as well as those responsible for organizing, paying, and directing them to so do, and that severe deterrent punishment be handed down to all of them. Collectively responsible and guilty is the entire federal cabinet and its primus inter pares”. Together with the letter, I sent him a video cassette which clearly showed the storming of the court and in which several Muslim League leaders were identified.”

    (f) “Acting Chief Justice Ajmal Mian moved with trepidation. He referred to the 'storming' as a 'very serious incident of rowdyism.' By his order dated 15/12/97 he appointed Abdur Rahman Khan, J. to hold an inquiry.

    Two months later, on 18/2/98, Justice Rahman submitted a report in which, inter alia, he stated: 'As the action of those individuals who forced their entry into the court premises and raised slogans against the judiciary prima facie amounts to gross contempt of this court….. it is considered appropriate that the honourable Chief Justice may constitute a Bench of the court to instigate contempt proceedings for the outrageous incident of 28/11/97. The bench so constituted can adopt such measures and take such actions as it may deem necessary to identify the concerned persons ….. the necessity for initiating such action immediately is felt because of paramount importance of the matter as the sanctity, dignity and respect of the apex court of the country is involved. Street power should not be allowed to coerce and intimidate the judiciary'.”

    (g) “The hearing of the contempt case began on 21/2/99 before a Bench of three headed by Justice Nasir Aslam Zahid, the same Bench that had conducted the inquiry. I was asked to appear before it on May 6 as a prosecution witness. I was further directed: “If you wish to place on record any material regarding the incident, you are requested to send the same in advance.” I sent a copy of the video cassette of the recording of the court's own CCTV cameras and fourteen documents, all of which had been handed over to the Supreme Court and/or the DAG between December 1997 and May 1998, i.e. prior to and during the course of the inquiry hearing of Cr.Misc.27/98.”

    (h) “Before the Court on May 6, I challenged the capacity and capability of the DAG to prosecute, and handed over a statement suggesting that it was still not too late to appoint a special prosecutor, in conformity with current international judicial norms and practices, who is able to prosecute the case in an unbiased manner. The statement was accepted on record and the DAG was directed to sit down. The judges asked whether I had any statement to make. I accused the prime minister and the ruling party of having stormed the court on November 28, 1997, and of obstructing the course of justice. On what basis had I made my statement? I was asked. On the basis of the video cassette and of all the documents already sent to the court. During cross examination by a defence lawyer it was “put” to me that my accusation was malafide and made out of malice. “Right or wrong?” he asked. Wrong, I replied, and there the matter ended.”

    (i) “On May 14, 1999, over one and a half years after the storming, the judgment was delivered. Statements made under oath, the video cassette recording, newspaper clippings – all these were not considered to be evidence.”

    4) That with regard to the above cited passages, I have the following elaborations/questions:

    (a) Mian Shahbaz Sharif flew to Islamabad in his special plane at dead of night. Why?

    (b) Which Supreme Court judge did Saifur Rahman call upon at 2300 hours?

    (c) A 'move' exercise would have entailed a company of 111 Brigade motoring up and down the Constitution Avenue without resorting to action.

    (d) From the statement filed in the court by Senator Iqbal Haider on May 25, 1998. This was followed by the clandestine visit to the judges of the Quetta Bench of the honourable Supreme Court by the envoy of Prime Minister Nawaz Sharif, Senator Rafiq Ahmad Tarar, whereafter the Quetta judgment of November 28, 1997, was delivered by Justices Irshad Hasan Khan and Khalilur Rahman Khan.

    (e) The video cassette of the film recorded by the CCTV cameras installed in the Supreme Court building was considered sufficient evidence by Chief Justice Ajmal Mian to order a judicial inquiry into the storming.

    (f) Justice Abdur Rahman Khan confirmed that the storming had coerced and intimidated the judiciary. A clear case of contempt in the face of the court.

    (g) All the evidence remains on record of the Supreme Court.

    (h) On the production of evidence recorded by the court cameras a judicial inquiry was conducted and contempt proceedings followed.

    5) That in the interests of the “sanctity, dignity and respect of the apex court of the country”, I submit that Mian Nawaz Sharif, Mian Shahbaz Sharif, Saifur Rahman, Lt General Nasim Rana, and the journalists present in court on November 28, 1997, be summoned to give evidence under oath.

    6) That I request that this affidavit and its attachments be taken on record.

    7) That whatever is stated above is true and correct.”

    We must be thankful to providence for small mercies, and our honourable judiciary should be thankful to journalist Shahid Orakzai for his persistence. Three chief justices later and a thousand days down the road from the November 28, 1997, storming of the supreme court, Orakzai and his tenacity have enabled the court to restore, to some extent, its damaged image. Seven of the hundreds of stormers have been convicted and now that the second investigation ball has been lobbed to a superintendent of police, it is just possible that a few Untersturmfuehrers will be convicted equally swiftly. This is certainly not the end of the story.

    The storming of the Supreme Court – II By Ardeshir Cowasjee

    08 October 2000 Sunday 09 Rajab 1421

    A letter written to Chief Justice of Pakistan Irshad Hassan Khan, on Friday, October 6 2000 :

    “Dear Chief Justice

    “Storming of the Supreme Court – November 28 1997

    “Following the normal practice regarding sworn affidavits and other papers addressed to the Registry or Judges of the Supreme Court of Pakistan at Islamabad, my affidavit sworn on September 27 2000 was presented to the Deputy Registrar at the Supreme Court Registry at Karachi. The Deputy Registrar refused to accept it, and I was asked to send it to the Registrar at Islamabad.

    “A special courrier was flown to Islamabad and the sealed enveloped containing the affidavit was handed over to the Registrar at 0830 hours on September 28. The sealed enveloped was bounced from one office to another (the courrier's travails have been conveyed to you by my letter of September 29 2000) and finally the unopened sealed envelope was handed back to the courrier by the Deputy Registrar at 1300 hours that same day. On the receipt he wrote : 'Applications received by mail are not entertained. Hence returned.'

    “I have been advised that no rule, regulation or law has been changed which empowers a deputy registrar of the Supreme Court stationed at any registry in the country to refuse to accept any communication.

    “If this be wrong, may I (and the people) please be informed.

    “By your judgment delivered on September 28 2000, 1,034 days after the Storming of the Supreme Court, seven 'footstormtroopers' have been convicted and the buck was passed on to 'a superintendent of police'. In this regard, I send herewith copies of editorials from the national press : Dawn, October 1; The Nation, Sept 30, and The News, September 30 2000.

    “Also sent is a reproduction of excerpts from my column 'Storming of the Supreme Court – 2' printed in Dawn on April 5 1998.”

    The excerpts sent : “The people must not forget that this is the first case of its kind in the recorded judicial history of any democracy. It is unprecedented that a ruling party, a government of the day, has committed contempt 'in the face of the court' by perverting the course of justice with a preplanned invasion.

    “Morris v Crown Office was the first case in Britain in which the Court of Appeal had to consider 'contempt in the face of the Court'. The Rt Hon Lord Denning, then the Master of the Rolls, in his book 'The Due Process of Law', published in 1980, devotes a chapter to the dramatic invasion of the court by a group of Welsh students who were upset because programmes to Wales were being broadcast in English and not in Welsh. He recounts :

    ” 'Eleven young students had been sentenced to prison. Each for three months. They were all from the University of Aberystwyth. They were imbued with Welsh fervour. They had been sentenced on Wednesday, 4 February 1970. I always see that urgent cases are dealt with expeditiously. We started their appeal on Monday, 9 February and decided it on Wednesday, 11 February. I also have some say in the constitution of the court, so I arranged for one of the Welsh Lords Justices to sit. Lord Justice Arthian Davies was well qualified. He was not only Welsh. He could speak Welsh. He sat with Lord Justice Salmon and me. We heard the argument on Monday and Tuesday. We discussed the case on Wednesday morning and delivered judgment on the Wednesday afternoon.' He goes on to give extracts from this judgement (1970 2 QB 114).

    ” 'Last Wednesday, just a week ago, Lawton J, a judge of the High Court here in London, was sitting to hear a case. It was a libel case between a naval officer and some publishers. He was trying it with a jury. It was no doubt an important case, but for the purposes of today it could have been the least important. It matters not. For what happened was serious indeed. A group of students, young men and young women, invaded the court. It was clearly pre-arranged. They had come all the way from their University of Aberystwyth. They strode into the well of the court. They flocked into the public gallery. They shouted slogans. They sang songs. They broke up the hearing. The judge had to adjourn. They were removed. Order was restored.

    ” 'When the judge returned to the court, three of them were brought before him. He sentenced each of them to three months' imprisonment for contempt of court. The others were kept in custody until the rising of the court. Nineteen were then brought before him. The judge asked each of them whether he or she was prepared to apologise. Eight of them did so. The judge imposed a fine of fifty pounds on each of them and reequired them to enter into recognisances to keep the peace. Eleven of them did not apologise. They did it, they said, as a matter of principle and so did not feel able to apologise. The judge sentenced each of them to imprisonment for three months for contempt of court.

    ” 'In sentencing these young people in this way the judge was exercising a jurisdiction which goes back for centuries. It was well described over 200 years ago by Wilmot Jr in an opinion which he prepared but never delivered. 'It is a necessary incident,' he said, 'to every court of justice to fine and imprison for contempt of the court acted in the face of it.' That is R v Almon (1765) Wilm 243 254. The phrase 'contempt in the face of the court' had a quaint old-fashioned ring about it; but the imporatnce of it is this; of all the places where law and order must be maintained, it is here in these courts. The course of justice must not be deflected or interefered with. Those who strike at it, strike at the very foundations of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it. It is a great power – a power instantly to imprison a person without trial – but it is a necessary power. So necessary, indeed, that until recently the judges exercised it without any appeal. There were previously no safeguards against a judge exercising his jurisdiction wrongly or unwisely. This was remedied in the year 1960. An appeal now lies to this court; and, in a suitable case, from this court to the House of Lords. With these safeguards this jurisdiction can and should be maintained.

    ” 'Eleven of these young people have exercised the right to appeal and we are here concerned with their liberty : and our law puts liberty of the subject before all else…….

    ” '(The Advocate conducting the defence] says that the sentences were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate intereference with the course of justice …. It was necessary for the judge to show that this kind of thing cannot be tolerated. Let students demonstrate …. But they must do it by lawful means and not by unlawful. It they strike at the course of justice in this land …. they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law, not strike it down.'

    “Also on the matter of contempt and on the need for courts to maintain their dignity and authority, Lord Denning quotes from his judgment in the case of Balogh v St Albans Crown Court (1975 1 QB 73).

    “The judges should not hesistate to exercise the authority they inherited frm the past. Insults are to be treated with disdain – save where they are gross and scandalous. Refusal to answer with admonishment – save where it is vital to know the answer. But disruption of the court or threats to witnesses or to jurors should be visited with immediate arrest. Then a remand in custody and, if it can be arranged, representation by counsel. If it comes to a sentence, let it be such as the offence deserves – with the comforing reflection that, if it is in error, there is an appeal to this court ….”.

    “In the case of the Welsh students, the Court was invaded on February 4, they were sentenced on Februarty 4, the appeal was heard on February 9 and decided on February 11. All within the space of one week.”

  9. Judiciary, Judges and Lawyers as well are responsible for this mess.

    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. [Quoted in Mian. A Judge Speaks Out, p. 158]

    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. [Mian. A Judge Speaks Out, p. 281-83]

    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’.[Shah.Law Courts, p. 163]

    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’. [Shah.Law Courts, p. 344]

    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 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’. [Mian. A Judge Speaks Out, p. 181]

    The senior most judge was justice Sad Saud Jan who was expecting to be chief justice but after the elevation of Sajjad A. Shah he did not intend to work with the new chief justice. In 1996, after ‘judges case’ decision, several acting and ad hoc judges were affected and were not assigned judicial work. This created an embarrassing situation where affected judges actually moved their own courts. One of the affected justice K. A. Chaudry of Lahore high court filed a petition in his own court against his own chief justice demanding that he was a functioning justice and judicial cases should be assigned to him. Another affected judged justice Mohammadi ridiculed supreme court decision during a hearing of bail application. Supreme court issued a notice of contempt of court against this judge who later resigned. [Shah. Law Courts, p. 272-73]

    In 1997, when country’s prime minister and chief justice were at loggerheads, the real decay of institutions became quite visible. All kind of emissaries were shuttling between the two stubborn personalities who were settling their personal scores hiding behind lofty positions and high offices. Sharif was using ethnic Sindhis (Ghaus Ali Shah, Ilahi Baksh Soomro and Liaqat Jatoi) and former chief of intelligence Lt. General ® Hamid Gul to send his messages to chief justice. Army chief General Jehangir Karamat and Director General of Inter Services Intelligence (DG ISI) Lt. General Nasim Rana were also mediating. Chief justice of the country was frequently meeting and corresponding with country’s intelligence chief about his grievances with the executive. On the morning of December 02, when Sajjad A. Shah was going to remove the constitutional amendment to clear the way for president to dissolve assembly, an ISI Colonel came to Supreme Court and met the chief justice in his chamber. [Mian.A Judge Speaks Out, p. 249]

    Sometimes people occupying high offices act in a childish manner embarrassing not only the high office but also the country. In August 1997, chief justice recommended elevation of five judges to supreme court without consulting with government. Government in return issued an order duly signed by the president reducing the strength of the supreme court from seventeen to twelve. Few days later chief justice presiding a three member bench suspended the notification and a couple of days later government withdrew the notification. Supreme Court justices rather than brainstorming about legal issues clashed with each other about the color of the Supreme Court flag. One chief justice arranged for the inauguration of the incomplete building of the new Supreme Court because he wanted to be in the limelight before his retirement. A number of justices opposed this ridiculous idea and they were not invited for the ceremony. When chief justice Muhammad Afzal Zullah received opposition leader Benazir Bhutto in a ceremony, several of his brother judges were furious and harsh words were exchanged between Zullah and justice Nasim Hasan Shah.

    In 1997, when rebellious judges confronted chief justice Sajjad A. Shah in a meeting, there was plenty of name calling. Shah accused justice Shaikh Riaz for working on behest of the government as he was friendly with Shahbaz Sharif. Riaz retorted that when he was serving as chief justice of Lahore high court, Shah had asked him to arrange for a meeting with Nawaz Sharif’s father Mian Muhammad Sharif (he used the words ‘qadam bosi’ (kissing the feet) of Sharif’s father) and Riaz had arranged for that meeting. [Mian. A Judge Speaks Out, p. 245]

    In his petition challenging president’s reference against him, chief justice Iftikhar M. Chaudry has spilled some more judicial beans and few more skeletons have seen the daylight. Chaudry accused several justices of the SJC as biased because he had initiated inquiries against their misconduct. He objected on inclusion of three justices: Javed Iqbal, Iftikhar Hussain Chaudry and Abdul Hameed Dogar. He maintained that justice Iqbal will benefit from his removal and may have a shot at chief justice post in three years. [Daily Times, April 19, 2007]

    He also accused justice Iqbal of securing admission for two of his daughters to medical college on special quota when they did not qualify on merit. He stated that he had sent a reference to SJC against justice Abdul Hameed Dogar for mismanagement of funds of Shah Abdul Latif Bhitai University. He also disclosed that another member of SJC, chief justice of Lahore high court Iftikhar Hussain Chaudry was not on talking terms with him since he had opposed his elevation to supreme court. [Daily Times, April 21, 2007]

    The cats which Chaudry has let loose are going to cause a lot of problems. He should expect some backlash from people he is accusing. Date of birth can be very important especially when one’s promotion and retirement depends on it. The clash of dates of birth of two chief justices is elaborated in detail in their autobiographies. [Mian.A Judge Speaks Out, pp. 263-273]

    Sajjad A. Shah was scheduled to retire on February 16, 1998 on attaining the age of 65 which was the age of retirement for supreme court justice. In a totally bizarre move, he sent an application to the president of Pakistan stating that the date of birth recorded on all his records was wrong. He stated that he had found his correct date of birth just few years ago. He requested that his date of birth should be changed from 16 February 1993 to 10 May 1934 and on the basis of this new information he should be retired on 10 May 1999 instead of February 16, 1998. [Mian. A Judge Speaks Out, p. 195]

    Justice Mian was more smarter and quite early in his career he had fast forwarded his date of birth and secured appropriate documents. Such petty things when come to limelight further erodes the respect for judiciary and institution suffers badly from these acts of omission and commission.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    the imposition of martial law;

    asking the president to again dissolve the assembly and

    call for fresh elections; and

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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


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

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

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

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

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

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

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

    The short order of the court said:

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

    * There was enough material in support of the president’s charge that the government had failed to implement the Supreme Court decision in the appointment of judges case. The belated implementation of the apex court’s judgment by the government was short of total compliance. There was adequate material to establish that the former prime minister had ridiculed the judiciary during her speech in the National Assembly.

    * The government had moved a constitutional bill in parliament which sought to send a judge on forced leave if 15 per cent of the members moved a motion against him. It was meant to harass the judges of this court.

    * The separation of judiciary from the executive was also delayed and executive magistrates were given judicial powers in certain matters which was against the spirit of the judgment.

    * There was enough evidence to establish that the telephones of the judges and politicians were tapped and transcripts sent to the petitioner for reading.

    * Adequate material had been produced in the court in support of the charges of corruption, nepotism and violation of rules leveled by the president against the previous government.

    * In Nawaz Sharif’s case the attorney general had conceded that the dissolution order was mainly based on the speech delivered by Nawaz Sharif on radio and television which was construed an act of subversion and that the session of the National Assembly was convened and the president thought it was meant to impeach him. It was in those circumstances that the dissolution order was not sustainable.

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

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

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

    Less than one month after taking power, the government of Nawaz Sharif, on March 10, issued “the Registration of Printing Press and Publication Ordinance, 1997” to curb the press and freedom of expression. Article 29 authorizes magistrates and low-ranking police sub-inspectors to interfere in the working of the Press and to initiate executive actions including the forfeiture of newspaper copies without the process of judicial review and restraint.

    The ordinance says that the copies of newspapers or books can be forfeited if they publish any material which tend to incite willful obstruction to public servants or servants of local authorities in the discharges of their public duties. Any police officer or any other person empowered to seize and destroy the newspaper or magazine or book can do so after showing warrants issued by any first call or sub-divisional magistrate or any authorized police officer.

    The ordinance also bars the newspapers from publishing any account of the proceedings of the National Assembly or the Senate or a provincial assembly if such account contains any matter which is not part of the proceedings of such an assembly and which is prejudicial to the maintenance of public order or is opposed to morality, or amounts to contempt of court, defamation or incitement for the commission of an offence.

    The government has also been authorized to forfeit the copies of a newspaper if it contains any material which can incite to the commission of an offence or violence or amounts to false rumors, is critical of the creation of Pakistan, brings into hatred or contempt the government established under the law with the intent of causing defiance of the authority of such government.

    The 13th Constitutional Amendment

    At midnight on April 2, 1997, all rules and procedures of the parliament were suspended and in the middle of the night, the 13th amendment Bill was rushed through both houses, signed by the president the next day, and notified on April 4. By this amendment, the president was disempowered and the Prime Minister further empowered. The President cannot dissolve the National Assembly, he cannot appoint governors at his discretion but on the advice of the prime minister, the provincial governors cannot dissolve their assemblies, the president, though he remains supreme commander of the Armed Forces, no longer has the power to appoint or sack the services chiefs.

    Rules dictate that a constitutional amendment is an extraordinary measure involving a great deal of deliberation on the part of the ruling party, consultation with the opposition, and an objective study of public opinion on the subject. Thereafter, according to the rules of procedure governing parliamentary proceedings under the 1973 constitution, a bill (other than a finance bill) upon its introduction in the House stands referred to the relevant standing committee, unless the requirements of Rules 91 and 92 are dispensed with by the House on a motion by the member-in charge. The standing committee is required to present its report within 30 days and, on receipt of this report, copies of the bill as introduced, together with any modifications recommended by the standing committee, must be supplied to each member within seven days. Two clear days then must elapse before the bill can be sent down for a motion under Rule 93.

    Ever since Nawaz Sharif assumed power on Feb. 17, he had been apparently not feeling very comfortable with several developments. President Leghari forced him to give PML ticket for the Senate elections to his cousin, Mansour Leghari, who had contested the National Assembly on a PPP ticket and was defeated. The President appointed Hamid Shahid as the Governor of Punjab against the wishes of his brother Shahbaz Sharif, who happened to be the Chief Minister of the province. Gen. Moinuddin Haider was appointed the Governor of Sindh against the wishes of PML and MQM. The president was also reluctant to replace the Governor of Baluchistan, General Imaraullah Khan. At a parliamentary meeting PML MNAs demanded repeal of the 8th amendment in order to get rid of the presidential interference in day-to-day affairs of the government.

    The 8th amendment had made more than 40 changes in the constitution. However, Nawaz Sharif opted to remove only those parts of the 8th amendment which were a potential threat to his government but has failed to touch those parts which pose a threat to society, particularly the weaker and disadvantaged sections like women and minorities. There are several constitutional and legal distortions created by the 8th amendment and several black laws, such as the Hudood Ordinances, under its protection which need to be removed. Thousands of innocent women are languishing in jails under the notorious Hudood laws. Some other article which deserve immediate attention and action by the parliament are:

    1. Article 51(1) that was amended to establish separate electorate for minorities.

    2. Article 51 (2)b that was amended to increase the age-limit for votes from 18 to 21 years.

    3. Article 51(4) that abolished the reserved seats for women in the National Assembly.

    The 14th Constitutional Amendment

    Less than three months after this transgression, on June 30, in the Senate, the rules of procedure were again suspended, the 14th Amendment Bill went through like a shot, passed in less than a day, without one single protest or dissent being recorded. On July 1, the bill was presented to the National Assembly, again rules of procedure were suspended, and the bill was passed immediately, again without a single protest or dissent. It went up to the president, on July 3 he put his signature to the bill, and on July 4 the 14th Amendment Act of 1997 came into force.

    This amendment admittedly has the aim of putting an end to lucrative defections. But ‘lotaism’ only existed because all our political parties were in the business of buying and selling bodies. However, that was not deemed to be sufficient. The Prime Minister had to be further empowered, and so he was. A member of a parliamentary party will also be deemed to have defected if he breaches any declared or undeclared party discipline, code of conduct or policies, or if he votes contrary to any direction issued by his parliamentary party, or if he abstains from voting as instructed by his party on any bill. The prosecutor, defense counsel, judge and jury who will decide the member’s fate is the head of the party, whose decision is not justifiable in any court of law.

    Ehtesab Law of Nawaz Sharif:

    The National Assembly, on May 29, 1997, amended the Ehtesab Ordinance to introduce major changes in the accountability process. The most significant amendment was the shifting of the starting date for accountability from the original 31st December 1985 (when General Zia lifted the martial law) to 6th August 1990 (when the first government of Benazir Bhutto was dismissed). The amendment also transferred the power of investigating charges of corruption from the Chief Ehtesab Commissioner to the Ehtesab Cell set up by Prime Minister Nawaz Sharif. “The Ehtesab Bill steam-rolled through the National Assembly makes a mockery of accountability. The amendments incorporated in the bill before it was presented in parliament for adoption render it an extremely flawed piece of legislation.” [Dawn 31.5.1997]

    Although the amendment excluded the first Benazir government from the purview of accountability but the exemption for the 1985-90 period is significant since it was during this period that Mr. Nawaz Sharif, in his capacity as the Chief Minister of the Punjab, was strengthening and consolidating his industrial and political base. At the time of passage of the Ehtesab Law, there were reports that there were 167 cases of major loan default which include 107 cases involving top leaders of the PML(N) who got the benefit of huge write-offs and rescheduling during 1985-1990.

    The transfer of the power of appointment of the Chief Ehtesab Commissioner from the president to the federal government reduced the office of the CEC to a mere post office. The real power was transferred to the accountability cell in the Prime Minister’s secretariat. The head of the Cell, Senator Saifur Rehman Khan, was accountable only to the PM. The amendment also extends ex post facto legal sanction to the PM’s accountability cell, which was under attack in a number of writ petitions in the Lahore High Court.

    The original ordinance had empowered the CEC to initiate a case on a reference received from the appropriate government, on receipt of a complaint or on his own accord. Under the new amended law, if the CEC deems a reference necessary, he must refer it to the accountability cell for investigation. With all the accountability functions and powers concentrated in a cell functioning in his secretariat, the prime minister will be able to keep a strict check not only on the opposition and the bureaucracy but on his own party-men also.

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

    The federal government, on Feb. 4 1998, amended the Ehtesab Act, replacing the name, “Ehtesab Cell”, with “Ehtesab Bureau”, and provided powers of an SHO to the chief of Ehtesab Bureau or any other official designated by him for the purpose of investigation. The amendments were introduced into the Ehtesab Act through a presidential ordinance, the first by President Rafiq Tarar, under clause 1 of Article 87 of the constitution.

    The chief of Ehtesab Bureau or any officer designated by him will enjoy all the powers of an officer-in-charge of a police station. The chairman or designated officer will be empowered to require the assistance of any agency or police officer. The amended law provides indemnity to officials of the Ehtesab Bureau on acts deemed to have been done on “good faith”.

    By amending Section 3 of the Ehtesab Act, the government has again brought in the original definition of “corruption and corrupt practice”. In the original Ehtesab Ordinance, corruption by a government official was defined as “favors or disfavors to any person.” Through a subsequent amendment in the original Ehtesab Ordinance of 1996, the words “any other person” were replaced with the words “his spouse or dependents.” The government has again restored the original meaning that any favor by a government official to other person other than his/her spouse or dependents would also fall in the definition of corruption, and he would be held responsible for that.

    A reference made to the Ehtesab Bureau will now be treated as a report under section 154 of the code. After the reference of any case to the Ehtesab Bureau by the Ehtesab Commissioner, it would be an exclusive responsibility of the bureau to examine all the material, evidence and proof. No other agency will have a power to look into the matter. For the purpose of inquiry into any matter referred to the Ehtesab Bureau, the chairman and the bureau will have the powers of an officer in charge of a police station, including the power to ask any citizen to appear before it. Every government agency, police official or any other government official would be bound to assist the Ehestab Bureau in investigation.

    After the amendment, the Ehtesab Bureau is also empowered to ask the Chief Ehtesab Commissioner to make a request to any court for the withdrawal of any case pending in a court. If the court grants the application, the case will be transferred to the Ehtesab Bureau.

    The Chief Ehtesab Commissioner will have the powers at any stage of proceedings against an accused under the Ehtesab Act, to order the arrest of the accused. A reference to the court by the Chief Ehtesab Commissioner shall contain the substance of the act of corruption and corrupt practice alleged to have been committed by the accused. The amendment has provided a right of appeal to the Chief Ehtesab Commissioner if the Ehtesab bench acquitted any accused. Earlier this right was only with the accused. After the amendment, the Ehtesab Act provides that on the grant of pardon from the CEC, a magistrate appointed by the CEC himself will examine an accused.

    What the Bureau now becomes is an independent investigating agency with teeth of its own and therefore not dependent, as it formerly was, upon the powers of the FIA. This may be a sequel to the turf war between Senator Saifur Rehman’s Ehtesab machine and Ch. Shujaat Hussain’s interior ministry, both of whom were vying for control over the FIA. The first and most striking change of course was to strip the original law of its neutrality and place the powers of investigation and prosecution firmly in the Prime Minister’s Secretariat.

    In Pakistan, the word ‘accountability’ has only one meaning: to malign and persecute political opponents. Glimpses of the full story can be culled from the report of the Mehran Bank commission along with the evidence provided by General Asad Durrani and Hameed Asghar Qidwai, as well as the jailed chief executive of the failed bank, Yunus Habib. [Herald – October 1997]

    Several references have been filed against the former Prime Minister and her husband but they are still far from having run their full course. The rest of the Ehtesab Bureau’s record is even more patchy. The 87 senior bureaucrats suspended hastily amidst a blaze of publicity have still to see any firm action taken against them. Indeed, some of the more notorious faces in this crowd have either been let off completely or have been allowed to go abroad. Meanwhile, the list of bank defaulters is as long and potent as ever with hardly anything having been returned to the public purse. [Dawn – 8.2.1998]

    The annual 1997 Human Rights Report of US State Department said the Accountability Commission, established by the caretaker government and headed by a retired judge, had been overshadowed by an “accountability cell,” headed by a close associate of the Prime Minister. This cell had been accused of conducting politically motivated investigations of politicians, senior civil servants, and business figures, designed to extract evidence and, in some cases, televised confessions of alleged wrongdoers. The report gave the examples of televised confessions extracted from Salman Farooqi, secretary of commerce under Benazir Bhutto; Ahmed Sadiq, Benazir Bhutto’s principal secretary; and Zafar Iqbal, chairman of the Capital Development Authority. It said most politicians and bureaucrats, who had been charged with corruption or other crimes, were out on bail (in addition to murder, Benazir Bhutto’s husband, Asif Zardari, had also been charged with corruption).

    On August 13, one day before the nation celebrated 50th anniversary of its independence, the Anti-Terrorism Act was bulldozed through parliament without so much as a debate. The Act has justifiably been criticized by almost across the board, even from within the ranks of the ruling party and its coalition allies. Yet on the day that it was introduced in parliament, the ATA was endorsed within three hours. Its numerous critics maintained that the ATA turns the country into a police state and it violates the constitution. The ATA, in effect, gives the law enforcing agencies and army a license to kill as it empowers the police to kill a person on mere suspicion. It also empowers the police to search a house and arrest a person without warrant.

    The ATA provides an appeal against the special court judgement to a government-notified tribunal consisting of two High Court judges. The High Court has now power of appeal against the special court decision. A person accused under the ATA cannot be freed on bail even by the High Court.

    The judiciary also opposed the ATA and many feared that the law would be grossly abused. Punjab Chief Minister, Shahbaz Sharif, failed to convince Chief Justice Sajjad Ali Shah, on August 20, of the need to establish special courts under the ATA. The bar associations also condemned the law.

    Adding to the credibility problem of the anti-terrorism law was the attitude of law minister Khalid Anwer who first surprised his colleagues by allowing the government to push through this piece of dubious legislation. Khalid Anwer then proceeded to distance himself from the ATA a few days after it was enacted. He even went so far as to declare that he would have opposed the law, had he been in the opposition. This was then followed by the claim that the law would be phased out once the situation was under control.

    Six special courts started work in the Punjab province on August 25 while the special courts were established in the Sindh province on August 25. The critics fears came true when the police started sending cases to special speedy trial courts set up under the ATA. The Punjab Forensic Science Laboratory was reported under pressure from the government to issue ‘positive results’ about weapons used in cases being tried by the special courts set up under the ATA.

    According to a press report [Dawn – 13.2.1998] weapons used in more than 1,000 cases were sent to the Punjab Forensic Science Laboratory to ascertain whether or not they were used by the accused during the terrorist or sectarian act for which he was being tried. Interestingly, all the weapons tested positive with the experts, providing sufficient evidence for the prosecution to obtain maximum punishment for the accused.

    These reports formed part of the evidence against the accused and on its basis as many as 55 people have been sentenced to death, including three sectarian accused. Some 32 people have been sentenced to life imprisonment or for seven years rigorous imprisonment.

    Following the establishment of anti-terrorist courts police started sending cases of sectarian and terrorist incidents to these courts for speedy adjudication. However, in a majority of cases sufficient evidence was not available to establish the guilt of the accused and the government feared that the courts might acquit them.

    The officials of the Forensic Science Laboratory were reportedly directed by the government to issue ‘positive results’ in all cases involving sectarian incidents. After every incident police collected shells of the weapons from the scene of crime. Whenever an accused was arrested, police claimed having recovered automatic weapons from his custody. In some cases the bullet shells collected from a crime scene years ago matched with the weapons recovered from the accused on arrest. It was ironic that some officials insist on matching the shells recovered from a scene of crime in 1990 with that of a weapon recovered from the custody of the accused in 1997. [Dawn – 13.2.1998]

    1997 Constitutional Crisis

    The crisis with judiciary began in August 1997 when the chief justice recommended elevation of five named judges to the Supreme Court. On Sept. 5, the Supreme Court suspended a government notification to reduce the number of judges from 17 to 12. The federal government, on Sept. 16, withdrew its notification. However, from around August 20 up to the middle of October there was practically no other issue in contest — publicly. And the resistance to the recommendation, in fact not-so veiled refusal to comply with it, was coming from Prime Minister, Nawaz Sharif and not the parliament.

    On October 10, the aggrieved judges took the opportunity of a brief absence of Justice Sajjad from the country to call a full court review under the chairmanship of the acting chief justice. Justice Sajjad returns home in haste on October 13, calls off the full court meeting and transfers all dissident judges to the outposts of the apex court in Quetta, Karachi, Peshawar and Lahore.

    The breach was now clearly in the open. The resentment of the dissident judges — respected members of the judiciary — must have been intense. The Chief Justice was master of the house, but a bitterly divided house. In an unprecedented move, on October 21, five honorable judges of the Supreme Court sent a letter to the President of Pakistan, to complain about the behavior of the Chief Justice of Pakistan and distance themselves from some of his actions. This letter was originally written to the chief justice, and later sent to the president. Never before in Pakistan’s history had such an incident occurred.

    On November 3, a petition of contempt of court is entertained by the CJ against the PM and his close associates. A charged atmosphere was super-charged by summoning the PM to appear in the court on November 17 and demanding the Speaker of the National Assembly to turn over the expunged record of the assembly proceedings. Yet, another breach of the assembly’s privilege.

    A three-member Supreme Court bench, headed by the then chief justice “directed the president” on Nov 20 not to give assent to the Contempt of Court (Amendment) Bill 1997, as under: “In the circumstances we deem it fit and proper to direct respondent No. 1 (President of Pakistan) in constitutional petition No. 4 43 of 1997 not to give assent, and if assent has already been given the operation of the Contempt of Court (Amendment) Act of 1997 is hereby suspended until further orders.” There was no precedent, nor apparent ground in law, for the chief justice to prohibit the president’s assent to that bill, and even less to rule the bill suspended if the assent had already been given.

    The bill amending the law of contempt was innovative in that it provided for an appeal against a Supreme Court conviction for contempt, for automatic stay of the conviction, and for that appeal to be heard by another set of judges of the same court.

    On Nov. 26, the Supreme Court, Quetta Bench, declared Chief Justice Sajjad Ali Shah’s appointment in abeyance and the Prime Minister sends to president the name of the new Chief Justice for approval. This case was the strangest of the strange, indeed, one in which not only the little-known petitioners but even the federation stated that the appointment of Justice Shah by superseding three senior judges was illegal. The next day, a five-member Supreme Court bench annuls Quetta bench’s verdict over CJ’s suspension while; the Supreme Court Peshawar bench endorses Quetta bench’s order.

    The ruling political party was not far behind in ugliness when the party’s rabble attacked the Supreme Court premises on November 28. It was one of Pakistan’s saddest days. There is no doubt the disgraceful attack on the Supreme Court was completely premeditated.

    On December 2, by suspending the 13th Amendment in a total arbitrary manner, the stage was set for the dismissal of the government of Nawaz Sharif. The grant of temporary restoration of the presidential power to dissolve the National Assembly (the repealed Article 58(2)b on the ground of a break-down of the constitutional machinery was obviously an act of desperation to prevent a feared collapse. It was virtually the last throw of the dice in a do-or-die game.

    After weeks of machinations and Machiavellian scheming aimed at ousting Prime Minister Nawaz Sharif from power, the country’s partisan president had finally to resign on Dec. 2. Mr. Leghari had never relished the fact that Mr. Nawaz Sharif should have taken away his powers to dismiss the government through the 13th Amendment. In fact, President Leghari and Prime Minister Nawaz Sharif both used the Pakistani judiciary to establish their personal authority. In this power game, Chief Justice Sajjad Ali Shah was very much with Mr. Leghari. But this power struggle could not be carried on because of the effective intervention of the Army Chief, General Jehangir Karamat.

    Mr. Leghari apparently had ruthless dictatorial ambitions and was never content with the ceremonial role that he was constitutionally assigned. He dismissed the duly elected government of Ms Benazir Bhutto and came very close to dislodging another. He engineered an unholy alliance with Chief Justice Sajjad Ali Shah to carry out a constitutional coup and the Chief Justice was a willing ally in the conspiracy to subvert the people’s mandate. Chief Justice Shah relentlessly attempted to provide Mr. Leghari the dictatorial powers under the Eighth Amendment to deliver the proverbial coup de grace to the Sharif regime.

    Mr. Leghari had never relished the fact that Mr. Nawaz Sharif should have taken away his powers to dismiss the government through the 13th Amendment. In fact, the Pakistani judiciary was used both by Mr. Leghari and Mr. Nawaz Sharif to establish their personal authority. In this power game, Chief Justice Sajjad Ali Shah was very much with Mr. Leghari. But this power struggle could not be carried on because of the effective intervention of the Army Chief, General Jehangir Karamat.

    When Justice Sajjad Ali Shah was removed from the office, on Dec. 2, the crucial issues pending before the Supreme Court were:

    1. Contempt of court action against Nawaz Sharif and seven others.

    2. Petition regarding the unlawful allotment of thousands of plots by him when chief minister of Punjab.

    3. Petition regarding the unlawful ISI distribution of Rs. 140 million of the people’s money to him and others.

    4. Petition regarding award of wheat transport contract by him to his crony Saeed Shaikh.

    5. Petition regarding his misuse of power in pressurizing banks to settle loan cases out of court.

    6. Petition challenging his Anti-terrorist Act 1997.

    7. Petitions regarding suspension of 13th and 14th Amendments. ]

    Nawaz Sharif and PML-N attacked Judiciary:

    Victory of Prime Minister Nawaz Sharif has been at the expense of the Supreme Court of Pakistan and indeed superior judiciary as such. The SC judges have not held their image and prestige by becoming controversial. It is a settled principle that no writ will be issued by one judge to another. It was a pathetic spectacle to see two Supreme Court benches suspended the chief justice of their own court while the chief justice retaliated by recommending disciplinary action against all four of five judges involved. Repeatedly, order by one bench was overturned by another. Then political workers invaded the Supreme Court several times and abused the judges and indulging in violence. This was the darkest hour for the judiciary in the country. Gone were the days when it was universally respected as the cleanest and the most upright institution. Both sets of judges have been accused by their detractors of being motivated by personal and other extraneous considerations in their mutual bickering and tussle.

    The irony of the crisis was that, eventually, it was not the executive that gave the final and, perhaps, fatal blow to the chief justice. It was his own peers who let him down. The very institution they wished to strengthen fell to the ground by their own actions. No one is left with any doubts that the judges are far from impartial.

    The law and its traditions have since long become a fiction in courtrooms. The only difference this time was that the decay in the judiciary unfolded for all to see. The price paid by the superior judiciary is certainly very high. The crisis with judiciary have only served to confirm that, irrespective of how “stubborn” or “vindictive” a chief justice may be, he is no match against a government that excels in the art of wheeling and dealing.

    Nawaz Sharif has succeeded in achieving what General Zia set out to do when he was cut short by destiny. In fact, the late dictator could not have hoped for a more competent lieutenant. General Zia had no patience for independent judges and thought nothing of replacing the ones who did not agree with him. Sharif has demonstrated the same tendency and, as in everything else, has surpassed his mentor in achieving his objectives. The judiciary today lies in ruins, devastated by the kind of power politics that was once the domain of political parties. [General Khalid Mahmud Arif, Working with Zia: Pakistan’s Power Politics, Oxford University Press, Karachi, excerpts quoted in Dawn 23.4.1995]

    The repercussions of the rulings given in haste or in anger will long dog the course of justice. During the crisis, the people have seen the Alice in Wonderland spectacle where the judges pass the judgment first and hear the witnesses later. Inevitably the feeling has arisen that the superior courts exist only for the seekers and brokers of power while the ordinary litigants languish into generations before their cases appear on the “cause list” which appeared quickly and abundantly when political power was at stake. [Article 15 of the PCO clearly stated that “all presidential orders of the CMLA, including other orders amending the (1973) constitution made by the president or by the CMLA, martial law regulations, martial law orders and all other orders made on or after the 5th day of July 1977 are hereby declared, notwithstanding any judgment of any court, to have been validly made by competent authority and shall not be called in question in any court on any ground whatsoever.”]

    Sajjad Ali Shah’s [CJ SC Pakistan] appointment case:

    The Supreme Court on Feb. 9, 1998 issued detailed judgment on the petitions challenging the appointment of Justice Sajjad Ali Shah as the chief justice of Pakistan. The ten-member bench headed by Justice Saiduzzaman Siddiqui in its short order on Dec 23, 1997 had declared the appointment of Justice Sajjad as the CJ, illegal and unconstitutional.

    The court in its 391-page judgment rejected the argument that if the appointment of Justice Sajjad as the chief justice was held unconstitutional; its application would be with retrospective effect. The court held that doctrine of de facto would apply to the appointment of Justice Sajjad as the chief justice of Pakistan till Nov 26, 1997, when a division bench of the Supreme Court restrained him from performing his administrative and judicial functions.

    Abdul Hafeez Pirzada, the counsel for the former chief justice, had argued that if the appointment of Justice Sajjad Ali Shah as the chief justice was declared invalid, it would lead to serious consequences as except three judges of the Supreme Court – Justice Ajmal Mian, Justice Saiduzzaman Siddiqui and Justice Fazal Illahi Khan – the appointment of all the Supreme Court judges and a number of high court judges would become invalid as all of them were appointed by the president in consultation with Justice Sajjad Ali Shah who was then the Chief Justice of Pakistan.

    The ten-member bench after discussing the doctrine of de facto observed: “the principle of de facto exercise of power by a holder of the public office is based on sound principle of public policy to maintain regularity in the conduct of the public business, to save the public from confusion and to protect the private right which a person may acquire as a result of exercise of power by the de facto holder of the office.”

    The court also dismissed the argument that the appointment of Justice Sajjad as the chief justice of Pakistan was a past and closed chapter after the apex court judgment in Judges case. Responding to the argument of Hafeez Pirzada that no judge affected by the appointment of Justice Sajjad as the CJ had objected to his appointment and they continued to function, the court said it was incorrect.

    The court maintained that three judges senior to Respondent No 2 (Justice Sajjad) in spite of invitation by the president of Pakistan did not attend the oath-taking ceremony of Justice Shah as the CJ to express their resentment. Justice Saad Saood Jan, the senior most judge of the apex court who had legitimate expectancy to become the chief justice of Pakistan after the retirement of Justice Nasim Hasan Shah, the court observed, proceeded on leave for three months and until his retirement on June 30, 1996, spent most of his time at the apex court branch registry at Lahore. The court also referred to the speech of Justice Saad Saood Jan on the occasion of his retirement and a press statement issued by him, to show that he had resented his supersession by a junior judge.

    Justice Ajmal Mian, another judge who was affected due to the violation of the principle of seniority in the appointment of the CJ, had also expressed his opinion on the appointment of a junior judge as the chief justice. The court referred to the two judgments in Al Jehad Case 1, and Al Jehad Case II, in which Justice Ajmal Mian had expressed his views on the subject.

    Justice Ajmal Mian and Justice Saad Saood Jan did not surrender their right of legitimate expectancy to the office of the chief justice of Pakistan in favor of respondent No. 2, the court observed. “It must be borne in mind that judges of the superior courts by tradition maintain high degree of comity amongst themselves. They are not expected to go public on their differences over any issue.”

    The court observed that it was not expected of the superior court judges to litigate in courts like ordinary litigants in case of denial of a right connected with their offices as the code of conduct for the superior court judges enjoined upon them to avoid as far as possible any litigation on their behalf or on behalf of others.

    It held that the principle of seniority in the appointment of the CJ since the establishment of the Supreme Court in 1956 was upheld. It was only violated in 1994 when the Respondent No 2 (Justice Sajjad Ali Shah), fourth on the seniority list, was appointed the chief justice of Pakistan.

    The court rejected the argument of Hafeez Pirzada that no writ could be issued against a judge, the court held that judgments delivered by a judge or group of judges were the functions which were covered under Article 199(5) of the Constitution. “The difference between a judge acting as court and a judge acting in his personal and individual capacity is not only real but is necessary to preserve, otherwise a judge will not be answerable for wrong done by him in his individual capacity.”

    Action taken or orders passed by him in his capacity as a judge of the court cannot be brought under challenge under Article 199 of the Constitution but his action as ordinary individual would be subject to ordinary law of the land including Article 199 of the Constitution, it was maintained. When the appointment of a judge is challenged that he did not possess the qualification prescribed by the Constitution, the relator was not asking the court to strike down any of his action which he had performed or was performing as judge but was asking for examination of personal qualification. “We are therefore of the view that such an attack on the validity of the appointment of a judge of superior court through collateral proceeding is not proper remedy.”

    The court held that petitions challenging the appointment of Justice Sajjad Ali Sha

  11. Persons who deserve to be the President of Pakistan i.e. Justice Retd. Nasir Aslam Zahid and Justice Retd. Fakhruddin G Ibrahim and if you want to ask about the most sincere and genuine person [even more genuine than CJ Iftikhar M Chaudhary] in Restore Judiciary Movement then it would be one and only Mr Justice Tariq Mehmood, I wish he becomes the President or CJ of Pakistan. He was the one who said NO to General Musharraf's Rampant Military Regime when the Regime was very young and Ruthless i.e. in 2002.

    Aitzaz is a Fraud!

    Ahsan is almost recklessly outspoken about P.P.P. leaders, even though they are his own political patrons. He speaks admiringly of Benazir Bhutto's courage and steadfastness but also points out with disdain that she viewed herself as the P.P.P.'s “life chairperson. ” And he does not bother to conceal his dim view of Zardari. In the car, as we drove back through the night to Lahore, I asked him how many of the allegations of corruption he believed were justified. “Most of them,” Ahsan said, after a moment's reflection. “The type of expenses that she had and he has are not from sources of income that can be lawfully explained and accounted for.”

    If that is so then what the hell Mr Aitzaz Ahsan was doing in the Cabinet of Late. Ms Benazir Bhutto and that too as a Federal Interior Minister [1988-1990]. Since you have highlighted a single paragraph of the New York Times Article only because of Asif Ali Zardari. I will quote the weekly Time paragraph only because of Aitzaz Ahsan.

    The price of loyalty

    July 18, 2004 [Courtesy Daily Dawn Magazine]

    WITH reference to Ms Anjum Niaz’s piece The price of loyalty (June 20), after topping the CSS examination held in 1970, Aitzaz Ahsan did not join the service. This he did to demonstrate his competence, capability and intelligence. His action of topping and not joining the elite service impressed Z.A. Bhutto who wanted young people to join his party.

    When Chaudhry Anwar Samma, a PPP MPA from Gujrat, was murdered in March 1975, Aitzaz Ahsan was elected, ‘un-opposed’ to the Punjab Assembly and inducted in the provincial cabinet. He was given the portfolio of information, planning and development.

    But the more interesting fact is that the ‘Chaudhry from Gujrat’ left the party at the most crucial time. When the PNA staged demonstrations against PPP government in 1977, on the allegation that elections had been rigged, Aitzaz was third to leave the party; the first being Sardar Shaukat Hayat Khan, followed by Sardar Ahmad Ali, father of Sardar Assef Ahmad Ali, a former foreign minister.

    One can understand the betrayal by Sardar Shaukat Hayat Khan and Sardar Ahmad Ali, as both had joined PPP from Muslim League. Changing loyalties by Muslim Leaguers, at the behest of the establishment, had started immediately after Partition and still persists. Formation of the Republican Party is a classic example. But Aitzaz was one, whom Z.A. Bhutto had brought from oblivion to limelight, from an upcoming advocate to a provincial minister, thus his action was absolutely unjustified. Maybe he had information that the establishment had written off Z.A. Bhutto from the politics of the country. So when he left the party, he practically supported the cause of the PNA.

    He remained dissociated with the party, till Bhutto was hanged. Later when he wanted to join the party, Begum Nusrat Bhutto, chairperson of the PPP, refused to accept him, asking him to beg pardon from late Z.A. Bhutto, whom he had betrayed.

    Afterwards he crept in the party through his professional services to the PPP and managed forgiveness via Benazir Bhutto. I have written these lines to put the record straight. HAFEEZ AKHTAR Lahore

    Who, moi? Misbehave? By Anjum Niaz

    June 10, 2007 [Courtesy Daily Dawn]

    Twenty one-year-old Christina Lamb, correspondent for London’s Financial Times, was wined and dined by BB’s ministers and treated like a princess. A military supremo fancied her to the extent of confiding to his ‘flame’ of an aborted coup. Next day the FT flashed its banner with the ‘scoop’ hotly denied by Pakistan. The FT had to retract and the delectable Ms Lamb never forgot the humiliation. When she returned to London, she wrote the book Waiting for Allah – Pakistan’s Struggle for Democracy. In it, she attacked fiercely BB’s then interior minister Aitzaz Ahsan, accusing him of trying to seduce her. She went to town, exposing lecherous politicians, civil and military officers, holding high ranks, wanting sexual favours in return for classified information.

    Pakistan The Undoing of Benazir,9171,969271-1,00.html,9171,969271-2,00.html

    Even then, the government could still have performed if Bhutto had chosen her Cabinet well. But she has shown little ability to pick talented — not to say honest — ministers. Important decisions often catch Bhutto by surprise, like Interior Minister Aitzaz Ahsan's move to harass and expel Christina Lamb, a British correspondent who wrote a controversial story about army officers plotting a coup that was embarrassing to the minister. Corruption scandals hit the papers almost daily, but Bhutto insists that the reports are mainly opposition propaganda, especially the attacks on her family. But one of her closest advisers is worried that the allegations are starting to stick. Says he: “If anything takes us down, it will be this perception of corruption and indecision.”

  12. “Victimization of Judiciary to make Pakistan a Failed state”.

    Only solution for fixing the problem of any failed state is to strengthen the accountability and Judicial system of that state, but unfortunately rudy rulers of Pakistan who even do not have basic ability to work with others are continuously and persistently victimizing the Accountability and Judiciary system of the state to make Pakistan a Failed state.

    Damage to Judicial system By Dictator Pervez Musharaf:

    This under graduate General has caused serious damage to Judicial system of Pakistan, He was not knowing that in history when a dictator throw away any judge on street due to fair practices of justice then that Judge becomes the greatest judge of history, In Karachi on 12-05-2007, so many civilians were killed just to damage and abuse the Judicial system of Pakistan.

    Victimization of Judicial System of Pakistan by PPP Government:

    Criminal and corrupted leaders of PPP, most of them are former prisoners of immoral crimes are continuously creating hurdles and problems for already crippled and damaged system of Justice in Pakistan, Due to failure of all state institutes and Organizations people of Pakistan are living painful lives but rulers are having no mercy on them, in fact they want to make judiciary a subordinate institute which should make decisions as per their desires and wishes, following are few examples of victimization of judiciary by present rulers
    • Use of Immunity against his crimes by President, which clearly indicates that he is not sincere and do not believe in equality of all in the eyes of law and thus showing an example to people, how to insult and undermine Law and Justice system of the state.
    • Interference in the appointment of judges without consulting Chief Justice, which clearly indicates that he wants to irritate the judiciary.
    • Creating deliberately crisis with Judiciary, which clearly indicates the he is not sincere and interested in the stability of state.
    • Using issue of Seniority in appointment of Judges in Supreme court for confrontation with judiciary clearly indicates PPP desire to blackmail judges, where was the issue of seniority when PPP was selecting a child for the post of PPP Chairman, what a insult for grey and white haired PPP leaders sitting as subordinate in front of a College student Bilawal.
    • President has not consulted even not informed to Chief Justice before issuing notification for appointment of Judges in Supreme court, similarly as he had not consulted even not informed to President of PPP Mr. Ameen Faheem before appointing Prime Minister of Pakistan, are these the ethics of working in a civilized society.

    Moreover with such menial mentality now Prime Minister is blackmailing the judiciary by giving threats that Judges could be removed from their seats, its means that by removing Judges these criminal politicians will do a great job as their spiritual leader Mr.Pervez Musharaf has done a great job by blackmailing and victimizing judiciary, But it is expected that Judges will face all such tactics with bravery and patience and will sacrifice their personnel interests, posts and facilities for the sake of justice and humanity like Imam Abu Haniefa, and Imam Abu Hanbal against these criminal and tyrant rulers.
    So that a history could be made in which names of these judges will be written with golden words.
    It is also the responsibility of world leaders to prevent further anarchy and failure of state, to make efforts to strengthen the Judicial system of Pakistan,and not allow to people like Mr. Zaradri against whome cases are pending in European Courts, to destabilize Pakistan by victimizing and abusing the Judiciary

    Written By: M.AKRAM KHAN NIAZI.