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Supreme Court of Pakistan Judgment on NRO (Dec 16, 2009)

05 Mar

 

supremecourt_building

 

Thursday, December 17, 2009

IN THE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

Present

Mr. Justice Iftikhar Muhammad Chaudhry, CJ. 
Mr. Justice Javed Iqbal
Mr. Justice Sardar Muhammad Raza Khan
Mr. Justice Khalil-ur-Rehman Ramday
Mr. Justice Mian Shakirullah Jan
Mr. Justice Tassaduq Hussain Jillani
Mr. Justice Nasir-ul-Mulk
Mr. Justice Raja Fayyaz Ahmed
Mr. Justice Ch. Ijaz Ahmed
Mr. Justice Muhammad Sair Ali
Mr. Justice Mahmood Akhtar Shahid Siddiqui
Mr. Justice Jawwad S. Khawaja
Mr. Justice Anwar Zaheer Jamali
Mr. Justice Khilji Arif Hussain 
Mr. Justice Rahmat Hussain Jafferi
Mr. Justice Tariq Parvez
Mr. Justice Ghulam Rabbani

Constitution petition Nos 76 TO 80 OF 2007 & 59/2009, and Civil Appeal No 1094 of 2009 (On appeal from the order dated 15.1.2009 passed by High Court of Sindh in Karachi in Const.P.No.355 of 2008) and HRC NOS.14328-P TO 14331-P & 15082-P OF 2009

Dr. Mobashir Hassan (Const.P.76/07)
Roedad Khan (Const. P.77/07)
Qazi Hussain Ahmad (Const.P.78/07)
Muhammad Shahbaz Sharif (Const.P.79/07)
Muhammad Tariq Asad (Const.P.80/07)
Syed Feroz Shah Gillani (Const.P.59/09)
Fazal Ahmad Jat (C.A.1094/09)
Shaukat Ali (H.R.C.14328-P/09)
Doraiz (H.R.C.14329-P/09)
Zulqarnain Shahzad (H.R.C.14330-P/09)
Abid Hussain (H.R.C.14331-P/09)
Manzoor Ahmad (H.R.C.15082-P/09)

Petitioners Versus Federation of Pakistan, etc. 

Respondents.

For the petitioners: Mr. Abdul Hafeez Pirzada, Sr. ASC. 
Mr. Suleman Akram Raja, ASC. 
Mr. Ejaz Muhammad Khan, AOR. 

Assisted by:

Abdul Mujeeb Pirzada, Sr.ASC
Mr. M.Afzal Siddiqui, ASC
Mian Gul Hassan Aurangzeb, ASC
Mr. Sikandar Bashir Mohmand, ASC
Barrister Feroze Jamal Shah, Adv.
Mr. Hameed Ahmeed, Adv.
Mr. Mustafa Aftab Sherpao, Adv.
Mr. Sameer Khosa, Adv.
Mr. Umar Akram Chaudhry, Adv.
Malik Ghulam Sabir, Adv.

(in Const. P. 76/2007)

Mr. Muhammad Ikram Ch. ASC.

Mr. G. N. Gohar, AOR. 

(in Const. P. 77/2007)

Dr. Farooq Hassan, Sr.ASC
Mr. Hashmat Ali Habib, ASC

Ch. Muhammad Akram, AOR

(in Const.P.78/07)

Mr. Ashtar Ausaf Ali, ASC

(in Const.P.79/07)

Mr. Tariq Asad, ASC (in person)

(in Const.P.80/07)

Mr. A.K. Dogar, Sr. ASC

(in Const.P.59/09)

Mr. Shahid Orakzai (in person)

(in CMA 4842/09)

Raja Muhammad Ibrahim Satti, Sr. ASC

(in CA.1094/2009) NEMO (in HR.Cases)

For the Respondents:

For M/o Law: Mr. Kamal Azfar, Sr. ASC. Assisted by 
Mr. K.K. Agha, ASC. 
Raja Abdul Ghafoor, AOR.

(in Const.P.76-77/07)

Raja Abdul Ghafoor, AOR.

(in Const.P.78-80/07 & 59/09)

For the NAB: Dr. Danishwar Malik, PG.
Mr. Abdul Baseer Qureshi, Addl: PG 
Dr. Asghar Rana, ADPG, 
Ch. Akhtar Ali, AOR.
Mr. Naveed Ahsan, Chairman NAB

On Court Notice: Mr. Shah Khawar, Acting Attorney General for Pakistan. 

Assisted by:

Agha Tariq Mehmood Khan, DAG. 
Mr. Dil Muhammad Alizai, DAG.
Raja Aleem Abbassi, DAG. 

For Govt of Balochistan: Dr. Salahuddin Mengal, AG. 

For Govt of NWFP: Mr. Zia-ur-Rehman, A.G.
Mr Zahid Yousaf, Addl. A.G. 
Mr Naveed Akhtar, A.A.G.

For Govt of the Punjab: Mr M. Hanif Khattana, Addl: AG. 
Ch. Khadim Hussain Qaiser, Addl: AG.

For Govt of Sindh: Mr Yousaf Leghari, AG.

On Court’s Call: Malik Muhammad Qayyum, Sr. ASC
Former Attorney General for Pakistan

Mr. Justice (retd) M. Riaz Kiani
Secretary Law & Justice. 

Dr. Riaz Mehmood, Sr. Joint Secretary. 
Syed Nasir Ali Shah, Solicitor General. 
Mr. M. Salman Faruqui, Principle Secretary to the President. 

Amicus Curiae: Mian Allah Nawaz, Sr. ASC. 
Mr. Shaiq Usmani Sr. ASC.
Mr. M. Sardar Khan, Sr. ASC. 

Assisted By Mr. Idrees Ashraf, Adv.

Dates of hearing: 07th -10th & 14th – 16th December, 2009.

O R D E R

Ifitkhar Muhammad Chaudhry, CJ – The above titled Constitution Petitions have been filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan [hereinafter referred to as ‘the Constitution’] challenging the constitutionality of the National Reconciliation Ordinance (No.LX) 2007 [hereinafter referred to as ‘the NRO’], while HR cases and Civil Appeal, by leave of the Court, have been filed by the applicants/appellant for extension of benefit of the NRO to them.

2. Succinctly stating the facts, giving rise to instant proceedings, are that on 5th October, 2007, the President of Pakistan, in purported exercise of powers conferred by clause (1) of Article 89 of the Constitution, issued the NRO, whereby, certain amendments have been made in the Criminal Procedure Code, 1898, the Representation of the People Act, 1976 and the National Accountability Ordinance, 1999 [hereinafter referred to as “the NAB Ordinance”]. By means of Section 2 of the NRO, Section 494 of Cr.P.C. has been amended. Likewise, vide Section 3 of the NRO, Section 39 of the Representation of the People Act, 1976 has been amended. Similarly, Sections 4, 5 & 6 of the NRO amended Sections 18, 24 and 31A of the NAB Ordinance, respectively, whereas by means of Section 7 of the NRO, Section 33F has been inserted in the NAB Ordinance. 

3. The NRO came under challenge, as stated above, before this Court, through listed petitions. These petitions came up for hearing before the Court on 12th October, 2007 when after hearing the learned counsel for the petitioners, the Court proceeded to issue notices to the respondents as well as to Attorney General for Pakistan, for a date in office after three weeks, while making the following observation:-

“However, we are inclined to observe in unambiguous terms that any benefit drawn or intended to be drawn by any of the public office holder shall be subject to the decision of the listed petitions and the beneficiary would not be entitled to claim any protection of the concluded action under Sections 6 and 7 of the impugned Ordinance, under any principle of law, if this Court conclude that the impugned Ordinance and particularly its these provisions are ultra vires the Constitution”. 

4. Pending decision of these petitions, on 3rd November, 2007, emergency was proclaimed in the country by the then President of Pakistan and also the Chief of Army Staff and under the garb of Provisional Constitution Order, 2007, Provisional Constitution (Amendment) Order, 2007 was issued, whereby, Article 270AAA was inserted in the Constitution, which provided protection to all the laws including the Ordinances in force on the day on which the Proclamation of Emergency of 3rd November 2007 was revoked. As a result of above constitutional amendment, the apparent interest was that the NRO should attain permanence. The Proclamation of Emergency as well as other extra-constitutional instruments were challenged before this Court in the case of Tikka Iqbal Muhammad Khan v. General Pervez Musharraf (PLD 2008 SC 178), when the Court declared the Proclamation of Emergency of 3rd November, 2007, the Provisional Constitution Order, 2007, Provisional Constitution (Amendment) Order, 2007, the Oath of Office (Judges) Order, 2007 and the President’s Order No.5 of 2007, to be validly enacted. However, this Court, vide its judgment dated 31st July 2009, in the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879) declared all the above five instruments to be unconstitutional, illegal and void ab initio, as a result whereof Article 270AAA stood deleted from the Constitution. Consequently, the NRO, as well as 37 other Ordinances, which were meant to be protected, were shorn of the permanency purportedly provided under Article 270AAA of the Constitution and sanctified by the judgment passed in Tikka Iqbal Muhammad Khan’s case (ibid). However, through the same judgment, this Court, while supporting the doctrine of trichotomy of powers, as envisaged in the scheme of the Constitution and to prevent any disruption, enabled the Parliament to reconsider and, if thought fit, to enact, all the 37 Ordinances including the NRO, as Acts of Parliament. For this purpose the life of the Ordinances stood extended for another 120 days (in case of Federal Legislation) and 90 days (in case of Provincial Legislation). This constituted an opportunity to the democratic Government at the Centre and in the Provinces to legitimize the acts, actions, proceedings and orders, initiated, taken or done, under those Ordinances, by placing them before the Parliament, to make them enactments of Parliament, with retrospective effect.

5. In pursuance of above judgment of 31st July, 2009, the NRO was placed before the Standing Committee of the National Assembly on Law & Justice, in its meeting held on 29th & 30th October, 2009. During the discussions and deliberations, some of the members did not agree with the decision of the Committee and left the proceedings in protest. However, ultimately, on 2nd November, 2009 the Committee recommended that, after the proposed amendments in the Bill for enacting the NRO, the same may be passed by the Assembly. It is pertinent to mention here that despite finalisation of the report of the Standing Committee on NRO and before its approval by the Chairperson of the Committee, the Minister concerned withdrew the Bill under Rule 139 of Procedure & Conduct of Business in the National Assembly, 2007. As a result, the NRO could not be passed by the Parliament, within its extended life, therefore, it lapsed.

6. The petitioners in these Constitution Petitions have challenged the vires of the NRO with the prayer that the same may be declared ultra vires the Constitution, viod ab initio and of no legal effect. For convenience, the prayer made in Constitution Petition No. 76 of 2007, filed by Dr. Mubashir Hassan, is reproduced herein below:- 

“1) Section 2, 4, 5, 6 & 7 of the NRO may kindly be declared to be void ab initio, of no legal effect and ultra vires the Constitution, in particular Articles 25, 62, 63 and 175 thereof.

2) During the pendency of the instant petition, the respondents may kindly be restraint from taking any action under or in terms of the impugned Ordinance. The respondents may in particular, be restrained from withdrawing any request for mutual assistance and civil party, letters rogatory and like issued to any Foreign Government, Court or other Authority or Multilateral Organization.

3) Any other order deemed beneficial to the interest of Justice and equity, may also kindly be made. 

7. The instant petitions came up for hearing before this Bench on 

7th December 2009, when Mr. Shah Khawar, Acting Attorney General for Pakistan, placed on record a written statement on behalf of Federation of Pakistan. Relevant paras therefrom are reproduced herein below:-

“2. That the Federation believes in supremacy of the Constitution of 1973 and the Parliament. 

3. That the National Reconciliation Ordinance, 2007 was promulgated by the previous regime and I am under instruction not to defend it.”

8. Mr. Kamal Azfar, learned Sr. ASC appearing on behalf of the Federation of Pakistan, through Ministry of Law & Justice, filed Civil Misc. Applications No. 4875 & 4898 of 2009 in Constitution Petitions No. 76 & 77 of 2007. Contents of paras at page 11 & 12 of the said applications are reproduced herein below:-

“If however, this Hon’ble Court wishes to rule upon wider issues other than those raised in the petition and prayer the Federation requests that fresh petitions be filed precisely stipulating these issues whereupon the Federation will seek instructions on such new petition. 

Pak Today is poised at the cross roads. One road leads to truly federal democratic welfare sate with the balance of power between an Independent judiciary, a duly elected Govt. representing the will of the people a determined executive, which is fighting the war against terrorism and poverty. The second road leads to destabilisation of the rule of law. The people of Pakistan await your verdict.”

When we confronted the learned counsel with above contents of his applications, he requested that the same may be treated as deleted. In this behalf, he, however, filed a written statement, contents whereof are reproduced herein below for ready reference:-

“STATEMENT

In Compliance of the orders of the Hon’ble Supreme Court of Pakistan to appraise the Hon’ble Court as to how the Federation would interpret the wording “the second road leads to the destabilization of the rule of law”, it is submitted as follows:-

(1) There is no mention of the wording ‘threat to democracy’ in the Statement.

(2) The Federation supports the Prosecution, in accordance with law, of persons alleged to have done wrongdoing. The Federation does not oppose the Petitions seeking a declaration that the National Reconciliation Ordinance 2007 (NRO) is illegal and unconstitutional.

(3) With regard to the “wider issues” mentioned in paragraph No.9 these refer to those matters which were raised by the Petitioner’s counsel during oral arguments and which find no mention whatsoever in the Petitions. For example, submissions made in respect of Articles 89 (in particular the alleged concept of “implied Resolution”) and A.264 on the effect of Repeal.

(4) The Federation’s view is that those who have benefited under the NRO should be proceeded against under the appropriate laws before the courts having the competent jurisdiction. As factual matters need to be determined by the trial courts.

(5) So far as my comments made yesterday before this Hon’ble Court concerning the threat from GHQ, the CIA and the contents of paragraph 9 of the CMA are concerned these were my personal views and were not made on the instructions of the Federation of Pakistan. As such I withdraw the same, which should not be considered by this Hon’ble Court in any manner whatsoever and the same should be deleted and expunged from the record.

(6) It is emphasized that the Federation of Pakistan holds this Hon’ble Court in the highest esteem and has the greatest respect for the same.”

9. Learned Advocates General of Punjab, Sindh, NWFP and Balochistan appeared and supported the stance taken by the Attorney General for Pakistan. 

10. We have heard the learned counsel for the parties at length and have also gone through the material placed on record in support of their submissions. 

11. As it has been noted above that challenge to NRO was thrown by the petitioners, no sooner same was promulgated by the President and admission order dated 12th October, 2007, was passed, to examine following questions:-

“2. Mr. Salman Akram Raja, learned counsel appearing on behalf of petitioner in Constitution Petition No. 76 of 2007 argued that:

a) Section 7 of the impugned Ordinance being self-executory in nature amounts to legislative judgment, which is impermissible intrusion into the exercise of judicial powers of the State and thus falls foul of Article 175 of the Constitution which envisages separation and independence of the judiciary from other organs of the State. 

b) Legislative judgment cannot be enacted by the Parliament. [ Smt. Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299)].

c) By promulgating Section 7 of the impugned Ordinance, Article 63(1)(h) and 63(1)(l) of the Constitution have been made ineffective, as regards chosen category of people, therefore, it is ultra vires the Constitution as it amounts to defeat the constitutional mandates.

d) Impugned Ordinance exhorts about or indemnifies a particular class of people i.e. public office holders from proceedings, actions and orders passed by the competent authorities, whereas no such powers are available to the Parliament or, for that matter, to the President of Pakistan under Federal or Concurrent Legislative List. Further; the President is empowered only to pardon an accused person, under Article 45 of the Constitution, after passing of sentence by a Court of law, whereas by means of impugned Ordinance, the President has been empowered to indemnify or pardon an accused, against whom proceedings are pending before Investigating Agency or a Court of law or in appeal by giving a blanket cover. 

e) The impugned Ordinance violates the provisions of Article 25 of the Constitution because it is not based on intelligible differentia, relatable to lawful objects, therefore, deserves to be struck down. 

f) The impugned Ordinance is against the public policy because it also provides protection against future action in terms of its Section 7 and it had also rendered Articles 62 and 63 of the Constitution ineffective. 

g) Sub-sections (2) and (3) of Section 494 of Cr.P.C. added by means of impugned Ordinance are contrary to provisions of Sub-section (1) of Section 494 of Cr.P.C. where it has been provided that cases can only be withdrawn with the consent of the Court, whereas, in newly added Sub-Sections, powers of the “Court” have been conferred upon the Review Boards of the Executive Bodies, therefore, these Sub-sections are also contrary to Article 175 of the Constitution. 

and

No criteria has been laid down as to why the cases falling between the 1st day of January 1986 to 12th day of October 1999 have been covered under these provisions, inasmuch as definition of political victimization has not been provided in these Sub-sections, as a result whereof it has been left at the subjective consideration of Review Board/ Executive Bodies to determine the same. Thus such provisions cannot exist in any manner.

h) The impugned Ordinance has been promulgated in colorable exercise of Legislative powers and its various provisions have created discrimination among ordinary and classified accused, therefore, all these provisions tantamount to malice in law.

i) The provisions of impugned Ordinance are so overbroad that these have provided blanket cover to all the holders of public offices, including chosen representatives and ordinary employees, therefore, the object of national reconciliation cannot be achieved by allowing it to exist. 

j) The provisions of Sections 4 and 5 of the impugned Ordinance are highly discriminatory in nature, therefore, are liable to be struck down. 

k) Section 6 of the impugned Ordinance is contrary to the basic principles relating to annulment of judgments, even if passed in absentia, in accordance with existing law, according to which unless the basis for the judgment, in favour of a party, is not removed, it could not affect the rights of the parties, in whose favour the same was passed but when the Legislature promulgated the impugned Ordinance, in order to remove the basis on which the judgment was founded, such judgment shall have no bearing on the cases. [Facto Belarus Tractor Ltd. v. Government of Pakistan (PLD 2005 SC 605)]. Hence, provisions of the impugned Ordinance as a whole are against the concept of equality of Islamic Injunction, provided under Article 2A of the Constitution, therefore, on this score as well, deserves to be struck down being ultra vires the Constitution. 

3. Mr. Muhammad Ikram Chaudhry, learned Sr. ASC for petitioner in Constitution Petition No. 77 of 2007, while adopting the above arguments, added 

that:-

i) The impugned Ordinance is purpose specific and period specific, therefore, violates Article 25 of the Constitution. 

4. Dr. Farooq Hassan, Sr. ASC appearing in Constitution Petition No. 78 of 2007 on behalf of petitioner, while adopted the arguments raised by Mr. Suleman Ahmed Raja, ASC contended that:-

i) The impugned Ordinance is contradictory to and violative of the United Nation’s Convention Against Corruption, enacted in 2005 and ratified by Pakistan on 31st of August 2007.

ii) Under the Constitution, no indemnity or amnesty can at all be given to any one, except granting pardon in terms of Article 45 of the Constitution. 

iii) Sections 2, 4, 5 and 6 of the impugned Ordinance are violative of the doctrine of trichotomy of powers. 

iv) The impugned Ordinance has in fact changed the basic structure of the Constitution.

v) The impugned Ordinance has also violated the principles of political justice and fundamental rights because it allows plundering of national wealth and to get away with it. More so, it tried to condone dishonesty of magnitude, which is unconscientious and shocking to the conscience of mankind.

5. Mr. M.A. Zaidi, AOR appeared on behalf of Mr. Muhammad Akram Sheikh, Sr. ASC in Constitution Petition No.79 of 2007 and adopted the above arguments of the learned counsel for the petitioners. 

6. Mr. Tariq Asad, ASC appearing in Constitution Petition No. 80 of 2007 also adopted the above arguments, while adding that:-

a) The impugned Ordinance has been promulgated on the basis of personal satisfaction of the President of Pakistan but for extraneous reasons and to provide indemnity/immunity to the public office holders, therefore, is liable to be struck down. 

12. Subsequent thereto cases remained pending except when their hearing was fixed on 27th February, 2008 and order dated 12th October, 2007, was vacated in following terms : -

3. These Constitution Petitions are adjourned to a date in office due to indisposition of the learned counsel for the petitioners. Meanwhile, in view of the rule laid down in the case of Federation of Pakistan vs. Aitzaz Ahsan (PLD 1989 SC 61), the observations made by this Court in Para 8 of the order dated 12.10.2007 in Constitution Petitions No.76-80 of 2007 to the effect that “however, we are inclined to observe in unambiguous terms that any benefit drawn or intended to be drawn by any of the public office holder shall be subject to the decision of the listed petitions and the beneficiary would not be entitled to claim any protection of the concluded action under Sections 6 and 7 of the impugned Ordinance, under any principle of law, if this Court conclude that the impugned Ordinance and particularly its these provisions are ultra vires the Constitution” are deleted. Resultantly, the Ordinance shall hold the field and shall have its normal operation. The Courts and authorities concerned shall proceed further expeditiously in the light of the provisions of the Ordinance without being influenced by the pendency of these petitions.”

13. As it has been noted above that while deciding the case of Sindh High Court Bar Association (ibid), all the Ordinances which were not laid before the Parliament, on account of insertion of Article 270AAA in the Constitution, were shorn of permanency, therefore, the Parliament was asked to examine all such Ordinances within a period of 120 and 90 days, as the case may be, commencing from 31st July, 2009, when a 14 Member Bench announced judgment. The period so assigned by the Court expired on 28th November, 2009 but the NRO was taken back from the Parliament, leaving for this Court to examine its constitutionality in the cases listed above. It is a cardinal principle of jurisprudence that courts are not required to give decisions of cases in vacuum rather it has to consider facts as well, giving a cause to a person to approach Courts. The NRO gave benefits to a class of people, whose identification is not difficult to ascertain, namely accused persons, involved in criminal and corruption cases, during the period commencing from 1st January, 1986 to 12th October, 1999 and this classification has created a divide amongst ordinary citizens of Pakistan and a class of alleged criminals who statedly have committed crimes of murder, dacoity, rape, looting/plundering of money/resources of this nation. Therefore, prima facie, to understand the nature of such beneficiaries, Federal Government, Provincial Governments and the NAB were asked to provide details in this behalf. In response to such query the Government of Sindh through its Advocate General filed a large list of such like accused, who being charged for the cases of criminal nature, benefited from the NRO, which included heinous and minor crimes, as well. As far as the remaining Governments and the Federating Units are concerned, they categorically denied extension of benefits of the NRO to even a single accused in their respective jurisdictions. However, NAB has submitted a list containing names of 248 persons, who benefited from the NRO within and outside the country. A cursory perusal of this list suggests that barring the cases inside the country, huge benefit has been availed by some of the persons in the cases pending against them outside the country. At this stage it is to be noted that application of the NRO, beyond the territories of the country, is a question which requires consideration on jurisdictional plane of this Court as well. NAB has also provided a list of the persons, who were convicted in absentia under Section 31A of the NAB Ordinance. 

14. In depth examination of the NRO suggests that it has not been promulgated to provide reconciliation on national basis as this nation has seen reconciliation in 1973, when a Constituent Assembly gave the Constitution of 1973 to the nation, guaranteeing their fundamental rights, on the basis of equality and brotherhood, as a result whereof, the nation had proved its unity, whenever it faced a challenge to its sovereignty and existence. The representation of the people, in subsequent Legislative Assemblies, has upheld the provisions of 1973 Constitution, except for few occasions when they have made amendments under peculiar circumstances. However, salient features of the Constitution i.e. Independence of Judiciary, Federalism, Parliamentary form of Government blended with Islamic provisions, now have become integral part of the Constitution and no change in the basic features of the Constitution, is possible through amendment as it would be against the national reconciliation, evident in the promulgation of the Constitution of 1973, by a Legislative Assembly. Therefore, promulgation of the NRO seems to be against the national interest and its preamble is contrary to the substance embodied therein. Thus, it violates various provisions of the Constitution. Therefore, by means of instant short order, reasons of which shall be recorded later, we hold as follows:-

(i) that the NRO is declared to be an instrument void ab initio being ultra vires and violative of various constitutional provisions including Article Nos. 4, 8, 25, 62(f), 63(i)(p), 89, 175 and 227 of the Constitution;

(ii) that as a consequence of the said declaration, all steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the courts of law including the orders of discharge and acquittals recorded in favour of the accused persons, are also declared never to have existed in the eyes of law and resultantly of no legal effect;

(iii) that all cases in which the accused persons were either discharged or acquitted under Section 2 of the NRO or where proceedings pending against the holders of public office had got terminated in view of Section 7 thereof, a list of which cases has been furnished to this Court and any other such cases/proceedings which may not have been brought to the notice of this Court, shall stand revived and relegated to the status of pre-5th of October, 2007 position;

(iv) that all the concerned courts including the trial, the appellate and the revisional courts are ordered to summon the persons accused in such cases and then to proceed in the respective matters in accordance with law from the stage from where such proceedings had been brought to an end in pursuance of the above provisions of the NRO;

(v) that the Federal Government, all the Provincial Governments and all relevant and competent authorities including the Prosecutor General of NAB, the Special Prosecutors in various Accountability Courts, the Prosecutors General in the four Provinces and other officers or officials involved in the prosecution of criminal offenders are directed to offer every possible assistance required by the competent courts in the said connection; 

(vi) that similarly all cases which were under investigation or pending enquiries and which had either been withdrawn or where the investigations or enquiries had been terminated on account of the NRO shall also stand revived and the relevant and competent authorities shall proceed in the said matters in accordance with law;

(vii) that it may be clarified that any judgment, conviction or sentence recorded under section 31-A of the NAB Ordinance shall hold the field subject to law and since the NRO stands declared as void ab initio, therefore, any benefit derived by any person in pursuance of Section 6 thereof is also declared never to have legally accrued to any such person and consequently of no legal effect;

(viii) that since in view of the provisions of Article 100(3) of the Constitution, the Attorney General for Pakistan could not have suffered any act not assigned to him by the Federal Government or not authorized by the said Government and since no order or authority had been shown to us under which the then learned Attorney General namely Malik Muhammad Qayyum had been authorized to address communications to various authorities/courts in foreign countries including Switzerland, therefore, such communications addressed by him withdrawing the requests for Mutual Legal Assistance or abandoning the status of a Civil Party in such proceedings abroad or which had culminated in the termination of proceedings before the competent fora in Switzerland or other countries or in abandonment of the claim of the Government of Pakistan to huge amounts of allegedly laundered moneys, are declared to be unauthorized, unconstitutional and illegal acts of the said Malik Muhammad Qayyum;

(ix) that since the NRO stands declared void ab initio, therefore, any actions taken or suffered under the said law are also non est in law and since the communications addressed by Malik Muhammad Qayyum to various foreign fora/authorities/courts withdrawing the requests earlier made by the Government of Pakistan for Mutual Legal Assistance; surrendering the status of Civil Party; abandoning the claims to the allegedly laundered moneys lying in foreign countries including Switzerland, have also been declared by us to be unauthorized and illegal communications and consequently of no legal effect, therefore, it is declared that the initial requests for Mutual Legal Assistance; securing the status of Civil Party and the claims lodged to the allegedly laundered moneys lying in foreign countries including Switzerland are declared never to have been withdrawn. Therefore the Federal Government and other concerned authorities are ordered to take immediate steps to seek revival of the said requests, claims and status;

(x) that in view of the above noticed conduct of Malik Muhammad Qayyum, the then learned Attorney General for Pakistan in addressing unauthorized communications which had resulted in unlawful abandonment of claims of the Government of Pakistan, inter alia, to huge amounts of the allegedly laundered moneys lying in foreign countries including Switzerland, the Federal Government and all other competent authorities are directed to proceed against the said Malik Muhammad Qayyum in accordance with law in the said connection;

(xi) that we place on record our displeasure about the conduct and lack of proper and honest assistance and cooperation on the part of the Chairman of the NAB, the Prosecutor General of the NAB and of the Additional Prosecutor General of the NAB, namely, Mr. Abdul Baseer Qureshi in this case. Consequently, it is not possible for us to trust them with proper and diligent pursuit of the cases falling within their respective spheres of operation. It is therefore, suggested that the Federal Government may make fresh appointments against the said posts of persons possessing high degree of competence and impeccable integrity in terms of Section 6 of the NAB Ordinance as also in terms of the observations of this Court made in the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607). However, till such fresh appointments are so made, the present incumbents may continue to discharge their obligations strictly in accordance with law. They shall, however, transmit periodical reports of the actions taken by them to the Monitoring Cell of this Court which is being established through the succeeding parts of this judgment;

(xii) that a Monitoring Cell shall be established in the Supreme Court of Pakistan comprising of the Chief Justice of Pakistan or a Judge of the Supreme Court to be nominated by him to monitor the progress and the proceedings in the above noticed and other cases under the NAB Ordinance. Likewise similar Monitoring Cells shall be set up in the High Courts of all the Provinces comprising of the Chief Justice of the respective Province or Judges of the concerned High Courts to be nominated by them to monitor the progress and the proceedings in cases in which the accused persons had been acquitted or discharged under Section 2 of the NRO;

(xiii) that the Secretary of the Law Division, Government of Pakistan, is directed to take immediate steps to increase the number of Accountability Courts to ensure expeditious disposal of cases;

15. We place on record our deep sense of appreciation for the learned counsel for the parties as also for the learned amicii curiae who have rendered invaluable assistance to us in these matters.

The petitions stand allowed and disposed of by this short order in terms noted above.

Chief Justice. 

Judge (1) Judge (2) Judge (3) 
Judge (4) Judge (5) Judge (6)
Judge (7) Judge (8) 
Judge (10) Judge (11) Judge (12) Judge (13)
Judge (14) 
Judge (15) 
Judge (16) 
Judge (17)

Islamabad
16.12.2009

Concluded

 

 
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Posted in Research n Record

 

Presidential Notification was Constitutional, But. . . .

14 Feb

Honourable Justice (R) Fakhruddin G. Ebraheem writes about the current judicial crisis developed after the late night suspension of presidential notification by the Chief Justice of pakistan

We are again faced with a judicial crisis – not a bonafide crisis but a crisis created for ulterior reasons. Ostensibly the crisis is the elevation of chief justice for the Lahore High Court in the Supreme Court of Pakistan, the elevation of the next senior most judge Justice Saquib Nasir, as acting Chief Justice of Lahroe High Court (a la Zia ul Haq style).

 

Being of the view that more harm is done by ignoring seniority, which opens the door for exercise of discretion in principle, I am against seniority being ignored, particularly in judiciary. My first reaction, therefore, was that the appointment of Chief Justice Lahore High Court to the Supreme Court and elevation of the next senior-most judge as Lahore High Court Chief Justice was justified. I had assumed that in accordance with the Article 177 of the constitution, these appointments were made by the president after consultation with the Chief Justice of Pakistan, and that the president was bound by such consultations. Was the Chief Justice of Pakistan even consulted? We are in such a sorry state of affairs where there is a denial whether such a consultation took place between the two highest functionaries of state. The president’s spokesperson asserts that the consultation took place and is denied vehemently by the honorable Chief Justice of Pakistan. There must be some documentary evidence to prove that such consultations took place. But much to our regret the people have been kept in the dark creating further controversy. With a poor credibility score of the government, the latter’s version will not be acceptable to the people. Without consultation, these appointments, in contradiction to the binding recommendations of the Chief Justice of Pakistan remain invalid, being in violation of Article 177 of the Constitution. To my mind, this issue, which is so obvious and cannot possibly become controversial, has a reason for other reason, namely, the appointment of judges in the High Courts. There are a large number of vacancies in all the High Courts which need to be filled on an urgent basis, in the interest of litigant public. There can be no controversy over the appointment of these judges.

 

The government has, without cogent reason, evaded the issue of these appointments. The procedure for the appointment of judges is clear cut. The Chief Justice of the High Court, in order to fill up vacancies, first consults with his colleagues and invites advocates and/or members of the lower judiciary, with a view to obtain their consent to become a judge. Even if there is one seat vacant, the Chief Justice of the High Court recommends two or three names which are forwarded to the provincial government. The limited function of the provincial government is to ascertain the antecedent of the candidate, and along with any adverse material, but without any deletions or additions of names, forwards the list to the Ministry of Law, which, with its comments, further forwards it to the Prime Minister. Then starts the process of consultation between the Chief Justice and the Prime Minister and if a candidate has the concurrence of both the Chief Justices (High Court and Supreme Court), such a person is elevated to become the judge of the High Court. It may be noticed that neither the President nor the Prime Minister has a right to add to, or subtract, from the list of proposed candidates. This is obviously correct for two reasons – firstly, the Chief Justices know better the competency of the candidate secondly, this appointment is for an initial period of one year, to enable the Chief Justices to ascertain the ability and integrity of the judge. I will repeat that a candidate whose appointment is confirmed by both the chief justices is binding on the government. In exceptional cases, the PM may give his reasons for his disagreement and the same may be reviewed by the chief justices. But the primacy remains with both the chief justices. To my mind, the immediate controversy regarding the notifications elevating Lahore High Court Chief Justice and his elevation to Supreme Court is directly related to the government’s reluctance to initiate the process of appointment of Lahore High Court’s judges nominated by its Chief Justice.

 

Our past history, in matters of appointment of judges, has been chequered for it is public knowledge that the Executive has, more often than not, been interested in appointment of judges of its own choice, which in fact, seriously affects the independence of judiciary for the largest single litigant before the courts is the government. We have fortunately evolved a procedure, which is not only fair and just, but, in public interest. In the four HCs large number of judges remain un-appointed for the last so many months only because of the undue obduracy and the expectation that the parliament will provide for another procedure for appointment of judges, to suit the executive. In my humble opinion, the whole controversy must be resolved without further delay by appointing the judges in the HC in accordance with the Constitution. In so far as the elevation of the judge from the LHC to fill up permanent position from Punjab in the SC is concerned, it should not be a pretext for delaying the appointments of judges to the Lahore High Court. We are urgently required in larger public interest for immediate appointments of judges as the litigants are suffering for no fault on their part. Justice (retd) Fakhruddin G. Ebrahim

 
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Folly, not clash of institutions

30 Jan

By Ayaz Amir for The News, appeared on Friday Jan 29, 2010

Clash of institutions has a grand ring to it, suggestive of Cromwell's Roundheads battling the monarchy; or the children of the French Revolution slaughtering the French nobility; or Lenin's Bolsheviks storming the Winter Palace. 

 

Would that this were the state of affairs in Pakistan. We could then expect something creative, a higher synthesis, to emerge from all this disorder. But we are not that lucky. This is less clash of institutions than elephants on parade: large egos on the march, the vanity of mediocrity on display — dressed up, as Pakistani mediocrity mostly is, in the colours of national salvation. 

 

If Prime Minister Yousuf Raza Gilani is refusing to put a pistol to his head, if he is refusing to become another Farooq Leghari, and if the National Assembly (including the PML-N) is with him on the matter of not committing collective suicide, media samurais — of whom there are not a few and who deserve the title of Ustad-e-Fidayeen better than any Taliban — are dismayed, and almost on the verge of hysteria, because the triumph of prudence is the last thing they wish to celebrate. 

 

For six months and more these laptop warriors have been spreading confusion and alarm, conning a public which they take to be gullible into thinking that political change is around the corner. But their deadlines having not been met, not once but repeatedly, it is not surprising if there is an air of increasing desperation about their battle-cries, which they expect the public to take as serious analysis. If their frantic outpourings are serious analysis, comic relief acquires a different meaning. 

 

Two slogans have proved the most enduring in our history: Islam and corruption. Every humbug in authority, especially when besieged and short of real answers to our many problems, has raised the banner of Islam, none more loudly than Gen Ziaul Haq, who would be prince if ever there was a kingdom dedicated wholesale to the worship of hypocrisy. The more of a mess we have made of our Constitution the greater the reliance on Islamic references — not for acting upon them, perish the thought, as for the sacred rites of lip-service and window-dressing. 

 

To much the same use has been put the slogan of corruption. In every military coup, from Ayub to Musharraf, in every civilian coup, whether carried out by Ghulam Ishaq Khan or Farooq Leghari, the eradication of corruption has figured as the foremost priority. Ironic, then, is it not, that after every forced transition, every turn of the screw, the one thing to explode was corruption? So much for the good intentions, and so much for the heaven they led to. 

 

At present too the idea of change — that change is necessary if Pakistan is to survive — has been hyped up relentlessly around the theme of corruption. Foremost in this campaign, although keeping themselves well hidden in the shadows, have been the self-appointed guardians of our ideological frontiers. They may have been less than adept at guarding our geographical frontiers — the ones visible on a map — but the ramparts of ideology, in their own definition of this term, they continue to guard jealously.

 

. . . .  it is salutary to remember that the judges did not restore democracy. It was democracy which restored them. 

 

The laptop warriors may be doing their own thing, for in their ranks are to be found the odd knight of good faith genuinely taken in by all the talk about corruption, but the wrecking game they are embarked upon fits in neatly with the agenda of the ideological warriors who are just not comfortable with a civilian dispensation. 

 

Angels from heaven can descend tomorrow and minister to the needs of the Islamic Republic, but the ideological warriors and the definers of strategic depth — one and the same thing — won't be satisfied. Why do they suffer the Constitution? Why do they endure civilian trappings? If they are so impatient with democracy they should make Myanmar their model and once and for all have done with the charade of democracy. 

 

It is a measure of the success of the forces out to alter the political landscape that in just two years since the revival of democracy, they have managed to instil into the minds of the middle class — which for all its presumed sophistication is the first to fall for such gambits — that Pakistan's number one problem is corruption. If this bull is caught by the horns salvation is at hand. If not, the Republic faces ruin and destruction. 

 

The lawyers' movement did much good in that it helped weaken the foundations of dictatorship, although I must hasten to add that by itself it wasn't strong enough to defeat that dictatorship. That outcome had to await the fruition of the political process as signified by the holding of elections and the assumption of office by a political government. Even so, the lawyers' movement was an inspiring sight while it lasted. To a nation caught in the throes of depression it gave a glimpse of what resolve and sustained commitment could achieve. 

 

But there have been some negative effects too. One is the outbreak of a species of arrogance amongst lawyers finding vent in violent and yahoo behaviour. The frequency of such outbursts is serving to dim the shine of the lawyers' movement, the heroes of yesterday allowing themselves to be seen in a poor light. The second is the rise of a strange kind of innocence which seems to be divorced from any understanding of Pakistan's tempestuous past. 

 

This innocence finds expression in the belief that the movement and the subsequent restoration of the judges were turning points in our history. In this somewhat exalted view of things, the restored judges have been cast in heroic colours, indeed likened to prophets of a new dawn in which justice and the rule of law will always prevail. It was no doubt in a like spirit of exaltation that Justice Jawwad Khawaja in his added note to the detailed judgement of My Lord the Chief Justice in the NRO case stated that the last three years in their momentousness "… can be accorded the same historical significance as the events of 1947… and those of 1971…" 

 

Jinnah was the hero of 1947 and Yahya the anti-hero of 1971. While Musharraf can be made to run a close parallel to Yahya, whom should we take as the Jinnah of the last three years? In any event, this rendering of history can be faulted on another count. On our side of the divide, Jinnah was the sole architect of 1947. Lawyers and judges have not been the sole shapers of the outcome of the last three years. They played a part and often a heroic part in those events but not the sole part. 

 

And it is salutary to remember that the judges did not restore democracy. It was democracy which restored them. As we go on about a new dawn this sequence of events should not be forgotten. 

 

Furthermore, as laptop warriors foam at the mouth and serve up their beliefs and desires as news and analysis, faith that a new dawn is really at hand will be immeasurably strengthened if the guardians of justice take up two pressing challenges: (1) apologise in the clearest of terms, with a due sense of contrition, for the oath taken by them at the altar of Musharraf's PCO in 2000, and if some amongst their present lordships validated Musharraf's coup in the Zafar Ali Shah judgment, an apology for that too; and (2) take up instantly Air Marshal Asghar Khan's petition about the Mehran Bank scandal and the money distributed by the ISI in the 1990 elections. 

 

If there is any hesitation on both or either of these counts — and there can be very understandable reasons for exercising caution — would it be too much to ask that discretion be the better part of valour in other things as well? 

 

The inadequacy of the political class may be great and may be enough to drive one to despair. But if there is one lesson of our history it is that there is no alternative to democracy. It is within its fold and bosom that we must seek its reform and correction, and the salvation of the Pakistani nation. 

 
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Pakistan Armed Forces ‘Tried to Oust President’

23 Jan


Military still 'calling the shots' in political and judicial process, report reveals

By Andrew Buncombe, Asia Correspondent – The Independent (Jan 22, 2010)

Pakistan's powerful military has actively worked to undermine efforts by the elected government to improve human rights in the country, according to a new report. It also tried to destabilise the elected government, and force out President Asif Ali Zardari.

In a damning critique of the military establishment, Human Rights Watch (HRW) said the armed forces had opposed efforts to end its intervention in the political and judicial process. It had also resisted attempts to locate some of the scores of people who were "disappeared" in the restive province of Baluchistan during the years of General Pervez Musharraf's rule. "The Pakistani military continues to subvert the political and judicial systems in Pakistan," said Ali Dayan Hasan of HRW.

"After eight years of disastrous military rule and in spite of the election of a civilian government, the army appears determined to continue calling the shots in order to ensure that it can continue to perpetrate abuses with impunity," he said.

The travails of Baluchistan represent one of Pakistan's darker but seldom-told narratives. General Musharraf's regime responded to a long-active independence movement with swift brutality. A veteran leader, Nawab Akbar Bugti, was assassinated and untold numbers of suspected activists were either jailed without process or else disappeared. Considered an ally in America's "war on terror", General Musharraf's actions were overlooked or even helped by the West.

Following the election of a civilian government in the spring of 2008 headed by Mr Zardari's Pakistan Peoples Party (PPP), the authorities vowed to end the violence, withdraw troops and release political prisoners. Yet that has not happened. Worse, last April three Baluch leaders were murdered, allegedly by the military-controlled security forces, delivering a damaging blow to the relationship between Mr Zardari's government and the local community.

Mr Hasan said the military continued to hold sway over the province, muzzling local media and undermining reconciliation. "The military needs to recognise that it no longer runs the show," he added.

The report also highlighted how the military worked against Mr Zardari last autumn over a US aid bill, "in an apparent attempt to… force the resignation" of President Zardari. The Kerry-Lugar bill offered $7.5bn, but was opposed by the Pakistani military because of conditions the US attached, in particular that it was satisfied that the armed forces were fighting terrorism and not "subverting the political or judicial processes of Pakistan". Mr Zardari said no one who supported democracy could oppose the objectives of the conditions attached to the aid.

Rasul Bakhsh Rais, a Lahore-based analyst, said Pakistan's military – which has directly ruled the country for half its existence – had become more subtle in the way it intervened. For instance, it had been building a relationship with the Prime Minister Yousaf Gilani as a way of trying to isolate the President. "I think now they are working to counter Mr Zardari, to create checks and balances," he said.

The publication of the report came as the US Defence Secretary Robert Gates made his first visit to Pakistan since 2007, amid pressure from Washington for Pakistan to attack militants based in North Waziristan and blamed for cross-border raids on Western targets inside Afghanistan. Yesterday, a military spokesman said there would be no new offensives for at least six months. Some of the Taliban leaders operating in the territory are alleged to have close ties to ISI, Pakistan's powerful military intelligence agency.

 
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We Never Learn from History

16 Jan

 This article appeared three years ago in Dawn, as a 7th part of a long article. Three years down the road, it still reflects realities of most concerning nature that we need to revisit. As part of our Pakistan Diaries series, Baaghi is publishing it once again with thanks to Ardeshir Cowasjee for this brilliant and daring piece.

By Ardeshir Cowasjee

?IT is not for us to attempt to fathom the inscrutable workings of Providence , as it works in ways which are often strange. As of now, the future of this country can only be left to divine Providence which has its methods of bringing to retribution those who seek to acquire power in order to amass pelf, and those who tread the wicked ways. And, strangest of all, its stick makes no sound. ??Let us think. Had the 'agencies' (we cannot dignify them by the appellation of 'intelligence') and their cohorts not masterminded the suspension of the Chief Justice of Pakistan Iftikhar Mohammad Chaudhry, the rendering of him as non-functional, or the sending of him on forced leave as they did to the irretrievable detriment of their master, would we today have a united bench of the Supreme Court judges exercising independent minds empowered by the people? ??To follow on from last week on the matter of the Inter Services Intelligence and its meddling in the political affairs of Pakistan , and in particular in the country's 'free and fair' elections, the indefatigable retired air force air marshal, Asghar Khan, has once again approached the Chief Justice of Pakistan. On August 8, he addressed him : ??"Human Rights Petition 19/1996. Sir, I seek your indulgence. My petition No.19 filed in 1996 is pending in the Supreme Court. I should be greatly obliged if you would kindly order that it be urgently heard and adjudged. I may mention that I am now 86 years of age. Thanking you in anticipation and with kind regards…"

??The court is now hearing a petition filed by Benazir Bhutto accusing the government of 'institutional fraud' by the deletion from the electoral rolls of over 22 million voters. This is an important matter, yes. But if we are on the subject of elections, then equally important is the matter of how the deleted 22 million and the other millions on the rolls are to cast their votes. Can they be allowed to do so fairly and freely without the ISI indulging in its 'fixing' tactics which will bring in once again the purchased, corrupt and discredited who have been thrown up in the sporadic elections of the past two decades as 'representatives' of the people?Asghar Khan's petition was filed over one decade ago, it has been partly heard and then shelved, overtaken by the events of October 1999 and the subsequent matter of the judges of our courts and the oath under the Provisional Constitutional Order. Rightly, it should have been taken up before the 2002 elections. It was not, though Asghar twice, in 2000 and again in 2002, approached the then chief justices requesting them to act. For whatever reasons, he was ignored.

Let us hope now that Chief Justice Chaudhry will heed his plea and before the elections are upon us decide this vital issue. ??How much of the people's money was been misappropriated to be used by the ISI and its sister agencies to buy candidates during the elections of 1993, 1997, and 2002? We haven't a clue. But we do know that in 1990 at least Rs.140 million was the sum. Taking into consideration the inflation and the value of the rupee, the total sum employed in the subsequent elections must run into billions.??Let us now look at some of the familiar players involved in the 1990 game. ??Firstly, filed in the court is a photocopy of a letter dated June 7 1994, addressed by Lt- General Asad Durrani, formerly head of the ISI, to the then Prime Minister, Benazir Bhutto, who during her second term in office, appointed him as an ambassador to Germany, which reads : ??"My dear Prime Minister, A few points I could not include in my 'confessional statement' handed over to the director FIA. These could be embarrassing or sensitive.

(a) The recipients included Khar two million, Hafeez Pirzada three million, Sarwar Cheema 0.5 million and Mairaj Khalid 0.2 million. The last . . . [illegible] someone's soft corner that benefited them.

??(b) The remaining 80 million [was] either deposited in the ISI's 'K' fund (60 m) or given to director external intelligence, for special operations (perhaps the saving grace of this disgraceful exercise – but it is delicate information.) [Noted in the margin of this paragraph, by the writer in his own hand: "This is false. The amount was pocketed by Beg (Friends)"] ??"The operation not only had the 'blessings' of the President [Ghulam Ishaq Khan] and the wholehearted participation of the caretaker PM [Ghulam Mustafa Jatoi], but was also in the knowledge of the Army High Command.

The last mentioned will be the defence of many of us including Gen Beg (who took his colleagues into 'confidence' but that is the name that we have to protect). . . . ??"I keep praying that all these natural and man-made calamities are only to strengthen us in our resolve and not in any way reflective of our collective sins. With best regards and respects, Asad."??Filed also in court is a note attached to Durrani's letter written in his hand, reading: "YH ??[Younus Habib ] TT Peshawar A/C Sherpao For Election 5,00,000 ; Anwar Saifullah for MBL deposit 15,00,000 ; Farooq Leghari PO Issued 1,50,00,000. Another 1,50,00,000 paid through bank. There are a host of other political figures who received funds like Liaquat Jatoi, Imtiaz Sheikh." ??Retired Lt General Naseerullah Babar also filed in court a copy of a bank account sheet headed "G/L Account. Activity Report. Account 12110101 G. Baig (sic.)" The column heads read "Transaction, Date, Particulars, Debit, Credit." The numbered transactions took place between October 23 1991 and December 12 1993.

The first transaction listed was "Cash- P.O. Karachi Bar Association A/C Gen. Baig (sic.), debit, 5,05,680" (advocate Mirza Adil Beg, Aslam Beg's nephew, the then president of the KBA, confirms that the KBA received the money). . .". This list is too long to be reproduced here. ??The "host of other political figures who received funds" from an ISI account were revealed in the Supreme Court when Air Marshal Asghar Khan's petition was heard. Among others, Nawaz Sharif received (in rupees) 3.5 million, Lt General Rafaqat [GIK's election cell] 5.6 million, Mir Afzal 10 million, Ghulam Mustafa Jatoi five million, Jam Sadiq Ali five million, Mohammed Khan Junejo 2.5 million, Pir Pagaro two million, Abdul Hafeez Pirzada Rs.three million, Muzaffar Hussain Shah 0.3 million, Abida Hussain one million, Humayun Marri 5.4 million. During the hearing of the case, Aslam Beg, under oath, revealed the existence of a political cell within the ISI which had been formed in 1975 under Zulfikar Ali Bhutto, while clarifying that though he was aware of the distribution of funds, he was never personally involved. ??Details of other payments : During the Mehrangate investigations of 1993 which led up to a Supreme Court case, Younas Habib of Habib and Mehran Banks, as per his statement filed in court, disclosed that the following political and other pay-offs were made between 1991 and 1994 : "General Mirza Aslam Beg Rs.140 million ; Jam Sadiq Ali (the then chief minister of Sindh), Rs.70 million ; Altaf Hussain (MQM) Rs.20 million, Advocate Yousaf Memon ( for disbursement to Javed Hashmi, MNA and others) Rs.50 million ; 1992 – Jam Sadiq Ali, Rs.150 million ; 1993 – Liaquat Jatoi Rs .01 million ; 1993 – chief minister of Sindh, through Imtiaz Sheikh Rs.12 million; Afaq of the MQM Rs.0.5 million ; 1993 chief minister of Sindh, through Imtiaz Sheikh, Rs. 01. million ; 1993 – Ajmal Khan, a former federal minister, Rs.1.4 million ; 1993 – Nawaz Sharif, former prime minister, Rs.3.5 million ; 27/9/93 Nawaz Sharif, former prime minister, Rs.2.5 million ; 26/9/93 Jam Mashooq Rs. five million ; 26/9/93 Dost Mohammad Faizi Rs. one million ; Jam Haider Rs. two million ; Jam Mashooq Rs. three million ; Adnan, son of Sartaz Aziz, Rs. one million ; Nawaz Sharif and Ittefaq Group of Companies Rs.200 million (photocopies of cheques and deposit slips etc already attached with affidavit at page nos. 42 to 73) ; Sardar Farooq Leghari 12/12/93 (payment set/off) Rs.30 million – 6/1/94 Rs.2.0856 million – 19/3/94 Rs.1.92 million."

??Do we wish such shenanigans to continue at our expense, and at the country's expense? Can we not learn at least one lesson from history – that if the ISI and the others are given a free hand there can be no such thing as an election that is vaguely free or fair? Is Chief Justice Chaudhry listening? Will he hear the petition and decide? ??The encouraging news is that Senior Advocate Iqbal Haider has volunteered to represent Asghar Khan. Barristers Hasan Aurangzeb of Islamabad and Rafay Alam of Lahore will assist him. Let justice prevail.


 
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Pause, Sirs, and Ponder

24 Dec

This article was written by Pakistan's finest analyst, Mr. I. A. Rehman, for Dawn, published on December 24, 2009

 

The fact that in its response to the Supreme Court judgment of Dec 16 the nation is divided cannot be denied, and prudence demands that the causes of this division should not be brushed aside without careful scrutiny.

A large section of society believes that Pakistan has become a corruption-free entity and a judicially controlled democracy while a none-too-small section feels deeply hurt. Much can be said for and against both sides.

The hailers are largely guided by their desire to wipe off the shame of becoming one of the most corrupt states in the world. They appear full of zeal for righteousness. However, they will do their cause enormous harm if they fall for the universally repudiated view that the ends always justify the means. The people of Pakistan paid a heavy price for taking this route when they welcomed the usurpation of power by Ayub Khan, Ziaul Haq and Pervez Musharraf.

The wailers are largely moved by the apparent setback to their group. They think the law has been used for a political purpose. They have strong memories of the Tamizuddin and Nusrat Bhutto cases and the judgment against Zulfikar Ali Bhutto. They could be wrong. However, they will do themselves enormous harm if they appear to be defending corrupt persons or practices.

Somewhere between the two extremes stand those who wish to make sure that good intentions do not lead to the dreaded hell. Some of them have a longer record of denouncing corrupt rulers and condemning the NRO than the born-yesterday anti-vice squad. They believe the NRO was a bad law, that it should not have been made, that no one claiming public support should have sought to benefit from it and that those who made this obnoxious law as well as its beneficiaries should pay for their lapses.

According to them the Supreme Court verdict has two parts: one dealing with the NRO, the other with broader themes. They have no quarrel with the first part. They only want to have their fears of the long-term implications of some of the assumptions underlying the court order duly and properly addressed.

The NRO was such an easy target that a single shot (Articles 4, 8 and 25 of the constitution) was enough to demolish it. A fusillade from heavy cannons (Articles 62 (f), 63 (i and p), 89, 175, and 227) has created problems.

The clauses of Articles 62 and 63 cited now constitute part of Ziaul Haq’s arbitrary amendments. They have never been debated by a representative assembly and have been consistently denounced by democratic opinion. It has often been said that the legislatures have not touched them. But this argument should be examined in the context of the circumstances in which the post-Zia assemblies have been elected and the conditions under which the democratic regimes have been allowed to function. Invoking Ziaul Haq’s interpolations in the 1973 constitution, whose revival in its original form is the battle cry of all democratic parties, is like quoting a PCO judge’s ruling before today’s independent judiciary.

Further, reference has again been made to the 'salient features of the constitution, i.e., independence of the judiciary, federalism, parliamentary form of government blended with Islamic provisions' and 'no change in the basic features of the constitution is possible through amendment'. The argument was last heard in May 2000 when 12 judges of the Supreme Court had not only upheld the Pervez Musharraf coup of October 1999 but also allowed him the power to amend the constitution.

Now, the debate over certain parts of a national constitution being outside parliament’s authority to amend them has been going on in Pakistan, India and Bangladesh for over 40 years (Indian Supreme Court verdicts of 1967, 1973 and 1975; Pakistan Supreme Court verdicts of 1963, 1997 and 2000). Professor Conrad, the German scholar who has done much to promote this principle, has succinctly put it thus: 'Any amending body organised within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.'

An essential question is: are courts the sole forum for determining the basic or fundamental or salient features of a constitution? In many countries (including Canada, Germany and India) the provisions that cannot be routinely amended by parliament are identified in the constitution itself. This is an issue that calls for a thorough debate.

In any case the issue before the Supreme Court was not an amendment to the constitution that would have attracted the basic features theory. The issue before it was an ordinary presidential ordinance. And for laws and ordinances that conflict with the constitution clear remedies are available.

By invoking Article 227 in the present case the Supreme Court seems to have put Islamic injunctions in command of the whole constitution. Quite a few lawyers argue that this amounts to overruling the court’s judgments in the Hakim Khan (1992) and Kaneez Fatima (1993) cases.

The position as far as a lay writer can understand is this: the power to strike down a law for being repugnant to Islamic injunctions lies with the Federal Shariat Court and no other court. Article 227 only allows the Council of Islamic Ideology to recommend changes in laws on the ground of repugnancy to Islam. The article does not empower any forum to strike down any law. When 17 judges of the highest court invest Article 227 with the power to nullify a law it could amount to constitution-making. It is necessary to dispel the fears that the courts could start striking down any law they consider violative of Islamic injunctions.

Besides, the matter is not one of law alone, it is essentially political. The 'salient features of the constitution' theory has no answer for conflicts between these features — between a parliamentary form of government and Islamic injunctions, for instance. And what will happen to the independence of the judiciary if one accepts the view propounded by many Islamic scholars that in an Islamic order the ameer is the head of all state organs — the executive, the legislature and the judiciary?

One cannot forget the case started by Mr Kaikaus, a former Supreme Court judge, in a Shariat appellate bench but which was dismissed by the Federal Shariat Court on a technical ground. He appealed to the bench but withdrew his plea because he did not think the judges on it were Muslims! Mr Kaikaus had branded the parliamentary form of government, the system of elections, and the existence of political parties as un-Islamic! Fears of many such cases coming up are not groundless. The people of Pakistan have every right to ask whether Ziaul Haq’s agenda has been revived.

 
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You’re Being Watched Mushy Baby!

06 Dec



This article was published in The Post in October, 2007 after the NRO promulgation. I've posted it here just as a record of history.

BB 4

As Pakistan treads through most dangerous decade of its political history, people keep witnessing densely shaded political kaleidoscope. Things have been especially precarious during past one week. Amid an intense public desire for the judiciary to play its independent role in country’s political well being, the apex court passed a judgment not very popular. Nothing could have been a surer recipe for political chaos than an adamant soldier to get re-elected as president, somersaulting politicians, a rubber-stamp parliament, a puppet executive, a divided judiciary and confused public.

 

Life has never been bed of roses for Pakistan’s uniformed president, General Pervez Musharraf after March 9, 2007 when top judge refused to succumb to the pressure exerted by the government to leave office. Invigorated by people’s support, judiciary risked going against the will of the government and first time in Pakistan’s history, people got an inkling of judiciary’s independence. Under the hang-over of a successful campaign for the restoration of Chief Justice of Pakistan, lawyers’ community announced to launch a campaign for the restoration of “true democracy” and for a president without uniform. Qazi Hussain Ahmad, the aged leader of extreme right winged orthodox religio-political party, Jamaat-e-Islami, joined hands with Imran Khan the only MP from Pakistan Tehrik-e-Insaaf, for filing a petition against the election of president in uniform in the apex court. mush

 

Once again, people’s heightened expectations from recently got “independence” of judiciary bucked up the lawyers to make the petition a rallying point. On September 29, 2007 however, the Supreme Court saved the day for Musharraf by dismissing both the petitions on “technical grounds” for not being maintainable.  Lawyers and civil society, intrigued but not disappointed by this judicial drama stretched through the past two weeks, vowed to fight the battle through the Election Commission of Pakistan. “The decision of the apex court that the petitions challenging General Pervez Musharraf’s taking part in presidential election in uniform is not maintainable, might be on the grounds that it was premature as at the time of filing the petition General Musharraf had not filed his nomination papers as presidential candidate before the Election Commission,” Justice (Retd) Fakhruddin G Ibrahim said and added “In fact, nothing has been decided still and all issues raised in different petitions will be challenged again in a more effective manner now”.

 

The lawyers, now immersed in political game, announced their candidate for presidential race. Justice (Retd.) Wajihuddin Ahmad, a respected former judge who had to leave office when he refused to take oath under notorious Provisional Constitutional Order introduced by Musharraf immediately after his taking office of the Chief Executive of Pakistan. Proposed and seconded by religious parties’ alliance Muttahida Majlis-e-Amal (MMA), Wajihuddin filed his nomination papers on September 27. Things went more baffling when Pakistan Peoples Party (PPP) nominated Makhdoom Ameen Faheem as its Presidential candidate.

 

All Parties Democratic Movement (APDM), an alliance of opposition parties minus PPP, went on with their decision of resigning from the National Assembly and dissolution of NWFP Provincial Assembly, where MMA, a prominent member of APDM, was in power. The decision has not been an easier one for Jamiat-e-Ulamai Islam Fazlur Rehman group (JUI-F), a coalescing unit of MMA. Posed with potent threats of internal rifts that might amount to its ultimate breakage, MMA parleys took just too long to decide about the resignations issue. Maulana Fazlur Rehman, the JUI Chief, popularly dubbed as ‘soft opposition’ and ‘the king of double talk’, went head over heals to convince party mates not to resign. Qazi Hussain Ahmad, the Jamat-e-Islami (JI) leader, however, took it as a threat to his party’s credibility and insisted on resignations as decided by the All Parties Conference convened in early July by Mian Nawaz Sharif.

 

The complex political horizon got thickened by PPP’s resolve to support democracy by negotiating with the General for a broader national reconciliation – a move completely un-understandable by Pakistan’s politicians whose politics revolve around trumpeting superficial political morality. Little can they sense that an all powerful military general cannot be pushed to give off power, unless is negotiated. While PML-N chief did not stop cooing the song of “threatened democracy” by Bhutto’s talking to the General, BB kept on playing table talk with the dictator’s front men for a national consensus formula that would include her three point agenda; ONE: repealing the constitutional amendment that includes bar on third term of the Prime Minister and 58-2(b); TWO: dismissal of all corruption cases on politicians, which were registered by successive political regimes against each other in their bid to eliminate opposing party from the political scene of the country, since 1985; and THREE: doffing off of the uniform by the president alongside bringing electoral reforms to ensure free and fair elections in transparent manner.

 

In an unexpected move from the presidency on October 2, withdrawal of all politically motivated cases against many politicians and thousands of non-political victims was announced. The announcement was also made nominating General Ishfaq Pervez Kiani, former spy chief, as Chief of Army Staff, which is being discussed in all drawing room discussions as being Bhutto’s recommendation, since Kiyani is said to have a “good working relationship” with Benzir Bhutto. The next day, Maulana Fazlur Rehman together with fellow clerics resigned from the National Assembly. His clever move of announcing dissolution of provincial Assembly on September 29, almost four days before the scheduled dissolution, gave government enough time to move a No-Confidence Motion against the MMA Chief Minister (According to the Constitution, a Chief Minister cannot dissolve the Assembly if a No-Confidence Motion comes against him). Exactly according to the expectations, the Provincial Assembly opposition members (the ruling party at federal level) filed a No-Confidence motion. To counter which, smart strategy should have been to take a vote of confidence next day and go for dissolution. On the contrary, the Chief Minister adjourned the session till Oct 8 – two days after the presidential polls.

 

Benazir Bhutto, meanwhile, successfully crossed all milestones of negotiations with the General and agreed on a “National Reconciliation” Formula in lieu of which, PPP would not resign from the parliament thus ensuring a legitimacy of presidential polls and giving the General a space to give off something as a gesture of reciprocating. A politically sagacious Bhutto has shown a farsightedness par excellence in that only this kind of give and take could make a long serving dictator give off maximum of his power to political actors.

 

A National Assembly Session was heard to be summoned on Oct 3, but was delayed due to ongoing parleys with Bhutto. As a successful breakthrough on these parleys could lead to hurried issuance of an Ordinance, which can only be done when Parliament is not in session, the National Assembly session was delayed for two more days. 

 

As a confident president calmly announces his resolve to contest presidential elections while in uniform, and working on post election business details with Bhutto, Justice ®Wajihuddin Ahmad, another presidential hopeful, moves a petition to the Supreme Court for a stay on presidential elections. After three days of rigorous debate, the court adjourned on Oct 5, a day prior to the elections, to Oct 17 refusing a stay on elections and barring any announcement of results till Oct 17. The decision makes both sides happy and hopeful. It seems that the newly freed judiciary is not yet ready to do away with doctrine of necessity. It has generated an unbearable disappointment among those sections of civil society, who were hoping the judiciary will now be able to play its long awaited role for strengthening democracy.

 

Maulana Fazlur Rehman is left alone by JI, its coalescing partner after a rift over resigning from the provincial Assembly of NWFP. While Maulana was facing sheer opposition from his own party members against resigning from NWFP Assembly,  he was consoled by Chaudhry Shujaat Hussain, the top leader of the ruling Muslim League who issued orders to his party men in the Provincial Assembly of NWFP to withdraw the No-Confidence motion. It has taken all the air from the Opposition balloon, leaving JI and Nawaz League as a shaky opponent.

 

As these lines are written and presidency has announced a National Reconciliation Ordinance, right wing politicians powered by a short sighted civil society and media are raising hue and cry on the Ordinance. People are being dragged to believe that the Ordinance is something which is going to give way to corruption in country. Little can we realize, had this move not been there, Musharraf would be keeping on with his unbridled power despite newly found alliance of media and civil society.

 

The life seems bed of roses for powers that be, which have traditionally been against the idea of a pro-people polity in the country. Bhutto being the only hope for people right now, is giving unflinching signs of returning back home. It is hoped that people of Pakistan would see the events with greater maturity, rather than being manipulated by the media hostage to the designs of establishment.

 
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Two Courts, Why Not?

10 Sep

Published on: May 19, 2008

As the judicial imbroglio thickens the air between two coalition partners, the speculative analyses and predictions keep creeping through the op-ed columns and current affairs talk shows on umpteen TV channels in Pakistan. Whatever the analysts say, however serenity and reason PPP leadership tries to bring to the negotiating table, the fact remains that it’s not the dearth of solutions that is leading to uncertainty in reinstatement of judges, its lack of political commitment to do so. The solutions that have came up so far range from an executive order to a constitutional amendment or the act of Parliament. Considering the significant moves on the part of political movers and shakers, it is becoming all the more necessary to reach an upshot as soon as possible. The more time is spent on proving that every proposed way out has more cons than pros, the easier it would be for the anti democratic forces to draw the conclusion that no solution is possible for this political riddle.
The recent proposal, which was instantly denied by the Prime Minister, was that of establishment of two supreme courts. The idea perceptibly seems to be mala fide and an attempt to appease the lawyer / civil society pressure and placate a presidency that is shamelessly being lactated by the world powers. But at the same time, it deserves a serious thinking and analysis. The two Supreme Courts would mean a judicial system that allows the power of constitutional review to concentrate within a single judicial body. This proposal has a history of being in force in various countries of Western Europe alongside new democracies of Eastern Europe; and has displayed a widely accepted version of constitutional protection and control.
The presence of Constitutional courts gives rise to the anomalies of overlapping jurisdiction of Federal Constitutional Court and the supreme civil court, their absence critically contradicts with the principles of sovereignty of parliament and judicial review especially in democracies like Pakistan and India whose constitution remains a major source of this paradox. In India, where no Constitutional Court exists, the constitution has successfully fought back to be the supreme law of the land; in Pakistan, it still is a political instrument that every regime uses to consolidate its power. This fundamental difference in political cultures of both the countries makes them incomparable as far as judicial system is concerned. The emerging democracies in the European world, on the other hand, might offer an attractive judicial package to be replicated here in the backdrop of fierce battle between the state and the judiciary in Pakistan over last one year – a case much similar to postwar Germany when Bundesverfassungsgericht (Federal Constitutional Court) was established.
The German Constitutional Court had to encounter five branches of specialized courts already well established in the pre-Natzi tradition of German judiciary. The specialized courts had to overcome the failure of their immediate past, whereas, the Constitutional Court was offered a considerable chance of success by the climate of postwar reform. If in Pakistan, the existing Supreme Court takes on the jurisdiction of civil, criminal and administrative cases and a new Federal Constitutional Court is established with the mandate of constitutional interpretation, it is expected to correspond well with the democratic tradition of separation of power and centrality of constitution.
It should, however, be kept in mind that developing a commonly accepted model of cohabitation at the supreme judicial level will be extremely difficult and would require stronger political commitment from parliament, the existing Supreme Court as well as from other power players. The answer to fundamental question of distribution of judicial power between the two courts would largely depend on the intent of establishment of such bi-faceted judicial system that divorces American system of diffused judicial review. If the sole objective is to keep one single individual from heading the apex constitutional court, and limiting his power to civil and criminal suits, the new system may lack vision and design to sustain and might not produce popularly desired results.
The apprehensions of some experts, as reported in media over last few days, about the establishment of Constitutional Court in Pakistan weigh much lesser compared to the positives of it. If established on the following lines, the system can, by design, respond to most of the apprehensions:
1. The Federal Constitutional Court (FCC) should be structurally independent with respect to the Executive Branch and to the Supreme Court
2. The FCC should be mandated to develop the concept of direct applicability of the Constitution (including its guarantees of fundamental rights) and to impose that concept on other segments of the judicial branch.
3. Procedures of the constitutional complaints should be such designed that they should extend the applicability of complaints to all the situation involving conflicts with fundamental rights of individual liberty
4. The FCC, while preserving the last word in the wake of a controversy, should not claim a monopoly over application of the Constitution but, rather, should act as a coordinator of that process.
5. The FCC should be vested with the competence to review ordinary statutes and other legal regulations as well as to annul them in case of unconstitutionality or nonconformity with any international instrument to which Pakistan is a party. Such decisions of the FCC should be universally binding i.e., also binding on all other courts, including Supreme Court.
6. Each court (Higher and Supreme) while resolving an individual case should consider whether the statutory provisions based on which the judgment will be give, are in conformity of the constitution or not. In case of a doubt expressed by the complainant or the judge herself about the constitutionality of such provision, the judge should refer that issue to the FCC as a legal question. The decision of FCC should be binding on the other courts to be applied to the case(s).
7. The FCC’s composition should be such that all the provinces and other federating units are equally represented.
While smoothening public opinion on any set of judicial solutions, we need to keep in mind that present crisis has a hidden opportunity – the opportunity of making our judicial system more relevant to a parliamentary democracy and constitutionalism. Change is sometimes uneasy, but it surely bears the fruit of development. And the key to change is . . . let go of fear!

 
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