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Posts Tagged ‘Constitution’

NRO Verdict: A Dangereous Path

23 Mar

ZardariNawazAPP-608

Finally the Supreme Court of Pakistan gave a much awaited judgment on National Reconciliation Ordinance 2007 after hearing the case for 7 days. The judgment has, at one hand, made urban citizens smile, it has greatly perturbed rural population – the bulk of PPP vote bank. The urban population has been the main recipient of propaganda campaign sponsored by the establishment in connivance with media, who has shown unprecedented support to the establishment in recent months. In the past, most of the media had to stand with army-dominated secret agencies sponsoring this propaganda, under duress and for fear. But this time around, the media dynamics have changed to a great extent. Corporate interest of the media owners and individual interests of major columnists / reporters and TV talk show anchors have taken a new turn. 

As soon as President Asif Ali Zardari took oath, some media sections also took oscillating positions on a rapidly moving political pendulum. Those who were eying on lucrative positions owing to their close relationship with the President, were greatly disappointed when they were not even contacted by the presidency. Others had a more "jihadi" stance against a slightly left to the center PPP. There were yet others who were very successfully lured by PML-N leadership, who is not only fond of doing it but is also very well trained in such measures since the days when they received huge amount of cash from secret agencies for establishing notorious IJI in opposition to PPP. All of them got together to defeat a president who was trying to play smart and outwit army by getting financial support for people, right in the hands of civilian government unlike past fundings by the donor countries (mainly USA) that used to go directly to the armed forces. The sin was unpardonable. So, Mr. Zardari had to face it!

Newly unleashed judiciary – the Azad Adliyah – got a nod from establishment to break the DEAL Mr. Chaudhry had entered in, brokered by army, for getting reinstated in March 2009. It is interesting to note here, that NRO came under attack in Nov – Dec 2009, despite the fact that it was in force since Oct 2007, precisely the point when PML-N stalwarts were too anxious to join hands with same Zardari lead PPP. He still was a "NRO laundered" president when Mr. Nawaz Sharif was trying to make up with him and meeting him under carefully created media hype. But it was not about time yet, I think. Mr. Sharif was still trying his luck with Zardari to get his share. All he was interested in was, laying off of 58-2(b) and 17th amendment (that would allow him to be a third time prime minister, without a president carrying a sword on his head). He did not intend to "derail the democratic system", since it involves money and resources to fight an unncessary mid-term election. The short cut seemed, getting it done through chopping off the third time PM bar and 58-2(b). So, if necessary, he could always make a move towards contesting an election and getting on the band wagon, with an unpredictably pro-establishment MQM and the comrades in waiting under the flag of PML-Q. 

But Zardari, it appears, proved to be a hard nut to crack. The man was able to foresee the plan. He did not loosen his grip on necessary constitutional clauses. In this case, it became necessary for Nawaz, to get rid of the president, and become one. In this way, there won't be any need to abolish 58-2(b), or 17th Amendment, because what fun would it be becoming a 58-2(b)-less president? The traditionally anti-PPP media sections, the sections of media that could not get benefits it had been eying on, MQM – the great political pendulum, PML-Q comrades and a greatly misguided urban citizenry all flocked together to buck up an activist and obliged judiciary to "correct" the "corrupt politicians". The Corrupt politicians in this case obviously meant PPP leadership, especially Zardari. And to "correct" meant, it was obvious too, deposing Zardari from presidency. The easiest way was to use a highly manipulatable media and civil society and gather them under the morally high grounded flag of "Anti-Corruption". 

Everything is, so far going according to the plan. But our worthy intellectuals (mainly coming from urbanized upper middle class / elite of Punjab) probably forgot that creating a public euphoria about such a verdict and thus influencing the court, would result in many controversies and power imbalance that would not only derail democratic system, but would also affect a concerted action against terrorism dangerously prevalent in the country. Surprising, also, was the fact that the worthy court did not take any notice of every B'Grade reporter turned TV anchor talk endlessly about the NRO, which had to be treated as sub judice. 

Supreme Court gave the judgment despite the fact that it had given an opportunity to the Parliament few weeks ago, to get the Ordinance validated by it. Giving the judgment against the validity of NRO, it seems that the worthy court has said loud and clear that the Ordinance had been acceptable, had it been validated by the Parliament. But since it has come to the court, it is not going to allow a "notorious" ordinance in the statutory book. Strange it may sound, but still our media pundits are happy about a "historic" judgment. 

It may also be noted that the judgment recognizes the highly controversial clauses of the constitution 62(f) whereby the prerequisite for acquiring public office has been attached to being undefined "sagacious, righteous and non-profligate and Ameen". The said clause was added to the constitution by the then dictator Zia ul Haq through a Provisional Order (14) in 1985. Those who are rejoicing must also remember that they are not only validating but legitimizing Zia ul Haq's notorious tailoring of the constitution in favour of marrying religion with the business of state. 

Whereas Nawaz Sharif, powered by media jihadis and civil society muftis, remains worried about 17th amendment, he surely is not concerned about the unjust and unfair amendments made by Zia ul Haq through P.Os and notorious 8th Amendment. It may be reminded here, that Nawaz Sharif during his HEAVY MANDATE days did not repeal 8th amendment, he only trimmed it by giving off 58-2(b) that suited him. He was, also, not worried about NRO till he had hopes from Zardari. 

The present judgment, among many other things, builds upon Mr. Salman Akram Raja's contention that the "Legislative judgment cannot be enacted by the Parliament. [ Smt. Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299)]" and states in section 14 of the judgment that ". . . no change in the basic features of the Constitution, is possible through amendment as it would be against the national reconciliation . . ". This would be against the spirit of section 239 (6) of the constitution whereby legislature (Majlis-e-Shoora) is fully empowered to amend any part of the constitution. 

Strangely enough, the worthy court, whereas, speaks about those who benefited from the Ordinance, it is absolutely silent about the author of the Ordinance, General (R) Pervez Musharraf. The court also, did not consider that if it has started opening cases  in retrospect, probably no one including superior judiciary itself, is going to be above it. In some cases, the honourable judges have to open cases against their own children, and some of very important cases pending before the court since very long. few among them are, notorious Sabza Zar case, Mehran Bank case and IJI formation and doling out money case filed by Asghar Khan.

Media is watching its own corporate interest. Civil Society is confused. Citizens' minds are manipulated. Political parties are trying to build on the opportunity provided by you, you have treaded on a dangerous path my lord!


 

 

 
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It’s all about Constitution Marvi, Keep Bias aside! (An analysis of Marvi’s Article)

18 Feb

This Note was posted on my Facebook page by Mr. Noman Shabbir. I'm posting it here as received, with no amendments, respecting his right to express opinion. I would be, however, happy to respond to the important points raised by him, for it is important to generate an environment of healthy dialogue in our society. I thank Mr. Shabeer for writing this.

 

Note: that I Wrote this Note yesterday but could not post due to some net issues! But as the matter is of serious nature and Marvi Sarmad Tried to Mislead People of less interest in governmental or Judicial Matter thats why I thought it to be necessary to post it today when Prime Minister has acted according to the points Presented in this note and Expressed by all Experts of Constitution!

 

lines in inverted commas are of Marvi.

 

 

“There is a judicial crisis, the media says. This claim seems to be correct if one realizes the level of urgency the Supreme Court showed in responding to a presidential notification.”

 

Showing urgency is not, by any means, against the law of land of Pakistan! Neither it makes any action of Supreme Court Suspicious. The objection that the Supreme Court had acted in an unjust and objectionable haste and manner, to say the least, is capricious and without any substance. Like the top executives of the government such as the president house, the Prime Minister house, the Supreme Court also does not have fixed working hours. It is at the discretion of the chief justice to resume working and start hearing of cases and pass orders at any time as may be considered by the court as just and appropriate, in the circumstances of each case. The honorable Supreme Court has held hearing of cases many times, even in late hours of the evening and announced their orders late at night. Just to remind you that the same supreme court, Headed by Chief Justice Iftikhar Mohammad Chaudhry, Denounced/Invoked the proclamation of Emergency of November 3. Soon after the imposition of Emergency.

 


“Those having objections to the President’s notification say it violated Article 177 of the Constitution. The Said Article provides for a consultation with the Chief Justice (CJ) of the Supreme Court prior to making such appointments, but it does not give a Definition of the “consultation”.”

 

Sorry, President (Especially this president) knows the meaning of Consultation because he has already appointed twelve judges in lahor high court in 2009, The judges are Namely Syed Mansoor Ali Shah, Najam ul Hassan, Manzoor Ahmad Malik, Asad Munir, Ijaz ul Ahsan, Hafiz Abdul Rehman Ansari, Tariq Javaid, all Advocates Lahore and Sardar Tariq Masood and Nasir Saeed Sheikh, Advocates Rawalpindi, and District & Sessions Judges Mansoor Akbar Kokab, Imtiaz Ahmad and Sagheer Ahmad Qadri. So stop borrowing bogus reasoning from presidential camp and start to run your own Brain!
 

 


“It is also true that the CJ Supreme Court sent a summary to the president who subsequently rejected it and sent it back. The allegation of “not consulting the CJ” thus becomes irrelevant”

 

First you yourself accepted that it is not clear from the article 177 that what Consultation is and here you have decided that “rejection” of CJ’s recommendation is “Consultation” what a dubious Example of Reasoning!

 


“Article 177 does not make the CJ’s recommendation binding on the president.”

 

Once again this shows your sheer ignorance towards constitution, Judiciary and Its rulings. Let me explain you the article and related ruling of Supreme Court in this regard!

First of all you or I are not an authority to tell what article 177 is. It’s the right of Supreme Court to interpret the constitution. A perusal of the relevant provisions of the Constitution and the famous cases decided by the honorable Supreme Court, confirm beyond any doubt that consent of chief justices concerned for appointment of new judges or elevation from high court to the Supreme Court is mandatory under Article 260 of the Constitution in its present shape, and also on the basis of the decision of the Supreme Court in the famous Judges’ Case (PLD 1996 SC 324). It may also be noted if the president disagrees with the recommendations of the chief justices concerned, then he is obliged to give very sound reasons having substance for reconsideration of the recommendations by the chief justices.



“Interestingly, elevating a judge of a lower court to the apex court and Appointing the next senior judge as acting chief justice of the lower court does not seem to either derail democracy or attack on the independence of the judiciary. It rather seems to be quite in accordance with the principle of Seniority set by the Supreme Court in 1996 (Al-Jihad Trust Case).”

 

If president doesn’t consult with Chief Justice of Supreme court of Pakistan then by doing this he is committing an act of High treason by violating the article 177 of Constitution of Pakistan. It is also abundantly clear the requirement of the senior most judge fit is only mandatory for appointment as the chief justice and not for elevation of any judge of a high court to the Supreme Court as was repeatedly confirmed, inter alia, in the case of Supreme Court Bar Association vs. the Federation of Pakistan (PLD 2002 SC 939), where it is held “principles of seniority and legitimate expectancy neither apply nor can be expected to judges of the Supreme Court, and that no constitutional convention or past practice exists to appoint more senior judge of a high court as a judge of the Supreme Court…” Hence the plea in support of the notification that Mr. Justice Khwaja Muhammad Sharif, being the senior most judge of the Lahore High Court, could only be elevated to the Supreme Court is without any substance, and untenable in the light of the provisions of the Constitution and decisions of the Supreme Court.

 

“Justice Khwaja Sharif, whose elevation is in question, is a former member of a city council from Muslim League (now PML — N) and a family friend of the Sharifs, which makes it easier for the Sharif brothers to rule Punjab comfortably compared to a situation where a non-partisan judge becomes the Chief Justice of LHC.”

 

These lines completely exposes your mentality, Bias towards free and fair judiciary and Alignment towards PPP. I will raise a lot of Questions here,

 

Once again it’s not against the law of land of Pakistan that a counselor can’t become a judge! Verdicts are on Merit, if they are against merit then go supreme judicial counsel and get him removed! The same Judge Namely “Justice Khawaja Sharif took suo moto on lala zar case against Shahbaz Sharif” so you once again this shows your ignorance!


“What irks an objective mind is why the Supreme Court is making the Presidential decision a point of friction?”

And why the president is hell bent on Going against the Constitution? Last but not least, the people of Pakistan, who have been the ultimate casualty in every crisis induced by the interests of a few, have to think “objectively. For once, we all need to refuse to play in the hands of those who are pursuing nothing but their own vested interests. Many of us might have an opinion against the policies or persons of either Mr. Zardari or Mr. Sharif, but we have to keep our sanity intact and let reason prevail”

Agreed!

“Justice Khwaja or no Justice Khwaja, the Constitution and the spirit of democracy should be considered supreme.”

 

In democracy where constitution is written Sprit of Democracy means nothing. For example it will also become a matter of Frictions that what the Sprit of democracy is! Whatever is in constitution has to be obeyed by all President or judiciary or Parliament. Don’t forget that Constitution is supreme!

P.S.
 

Here are some of the Reasons why the president was hell bent to elevate the above said judges to supreme court (clippings from Iqbal Haiders article, A Supreme court lawyer and former Minister of Law and Attorney General in The government of PPP).

 

In view of such a categorical constitutional position as explained above, the question arises then why did the president choose to issue the two notifications. I discard the possibility of incompetence of the legal advisers. I cannot accept the assumption that all of the bigwigs of the president were not well-versed with the Constitution or the decisions by the Supreme Court. The real reason and answer lies in Article 206(2) of the Constitution, which clearly provides “A judge of a high court who does not accept appointment as a judge of the Supreme Court shall be deemed to retire from his office…” In the not so distant past, we find a precedent on this issue. Mr. Justice Amirul Mulk Mengal, who was the chief justice of Balochistan High Court in 1998, had refused to accept his elevation to the Supreme Court. Hence, he retired prematurely.

 

This eventuality was very much expected by the coterie of advisers of the president who had drawn a “win-win strategy”. The condemnation and opposition to their notifications was very much expected by them. They had also envisaged the likelihood of the two judges concerned not accepting appointments conferred by the notifications. Hence, for the president there could not have been a better situation as the two judges upon not accepting their appointments would have retired prematurely. As a result of which, the president would have availed the opportunity of appointing judges of his choice, in their place. It was for this reason alone that the oath-taking ceremony of Justice Mian Saqib Nisar as acting chief justice of the Lahore High Court was simultaneously announced on Sunday morning and reportedly the governor had also returned the earlier summary sent by Chief Justice Khwaja Muhammad Sharif for appointment of the judges. This was done to confirm without any delay if the two judges are accepting their appointment or not.

 

On the other hand, had the two judges accepted the appointment the president would still be very happy, as it would have amounted to acceptance by the superior judiciary that the president has the power to reject recommendations of the chief justice of Pakistan. Such acceptance of appointments by the two judges would have established at least a precedent, howsoever it maybe in clear violation of the Constitution and decisions of the Supreme Court in famous cases, on this issue.

 

As expected, the two honorable judges in question rightly did not accept the appointments mentioned in the two notifications. They would have been treated as retired prematurely had the honorable chief justice and his peers available in Islamabad not rightly suspended operations of the notifications. Perhaps this prompt intervention by the honorable chief justice and the forthwith suspension of the notifications by a bench of the Supreme Court was not envisaged in the strategy framed by the legal wizards in the president house.

 
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Let reason Prevail

16 Feb



Marvi SirmedThis column was published in Daily Times on Feb 16, 2010


A section of the media is putting the credibility of the entire media at risk by siding blindly with the political interests of one political party. Chasing small-term superficial benefits and satisfying the fragile egos of a few anchorpersons is going to curtail the freedom of the media at the hands of the media itself

There is a judicial crisis, the media says. This claim seems to be correct if one realises the level of urgency the Supreme Court showed in responding to a presidential notification. This notification was nothing bigger than the elevation of the senior-most judge of the Lahore High Court (LHC) to the Supreme Court and the subsequent appointment of the second senior judge as the Acting Chief Justice of the LHC. Those having objections to the president’s notification say it violated Article 177 of the Constitution. The said Article provides for a consultation with the Chief Justice (CJ) of the Supreme Court prior to making such appointments, but it does not give a definition of the “consultation”. It is also true that the CJ Supreme Court sent a summary to the president who subsequently rejected it and sent it back. The allegation of “not consulting the CJ” thus becomes irrelevant. Article 177 does not make the CJ’s recommendation binding on the president.


Interestingly, elevating a judge of a lower court to the apex court and appointing the next senior judge as acting chief justice of the lower court does not seem to either derail democracy or attack on the independence of the judiciary. It rather seems to be quite in accordance with the principle of seniority set by the Supreme Court in 1996 (Al-Jihad Trust Case). However, it is noteworthy that a five-member bench of the Supreme Court headed by the then Chief Justice Sheikh Riaz Ahmad and including the controversial Justice Hameed Dogar, set aside the seniority principle in the Appointment of Judges Case in 2002. Insisting on following this judgement made under the dictatorial regime is going to raise questions on the independent judiciary.


The technical side of the whole issue aside, there is an ugly political side to it as well, which amply puts everything in perspective. Justice Khwaja Sharif, whose elevation is in question, is a former member of a city council from Muslim League (now PML — N) and a family friend of the Sharifs, which makes it easier for the Sharif brothers to rule Punjab comfortably compared to a situation where a non-partisan judge becomes the Chief Justice of LHC. In order to secure their undisturbed political future, the Sharif brothers are understandably leaving no stone unturned to keep Justice Khwaja Sharif in as the CJ of the LHC.


What irks an objective mind is why the Supreme Court is making the presidential decision a point of friction? Sections of the media, in connivance with the PML-N, are doing no good to democracy by insisting on something as visibly partisan as his demand to keep Justice Khwaja Sharif in the LHC. In a well-attended press conference in Islamabad, Mian Nawaz Sharif termed the presidential notification an attack on the judiciary, and the president himself as the biggest threat to democracy. Both these statements make him appear a political pygmy, as he could not answer one simple question: how will keeping Justice Khwaja Sharif in the LHC ensure democracy and the independence of the judiciary? Not that this question was put to him in the press conference, which appeared like an internal meeting of the PML-N.


In all this tumult, we are forgetting what is at stake. A section of the media is putting the credibility of the entire media at risk by siding blindly with the political interests of one political party. Chasing small-term superficial benefits and satisfying the fragile egos of a few anchorpersons is going to curtail the freedom of the media at the hands of the media itself. Freedom is not necessarily attacked only through curbs by the government. Rather, the media itself has to ensure that one actor of the political arena does not exploit the media for its own selfish political interests. Freedom of the media does not rest in freedom to use strong abusive words against someone. It rather rests in the freedom to report the facts. If the media restrains itself from reporting the facts and continues with an opinionated and partisan media trial of anybody who fails to offer a competitive benefits package, it surely is going to erode not only the media’s credibility in the eyes of the people, but will rob it of its own freedom.


The second casualty of this unrealistic and false hype about a concocted ‘judicial crisis’ would be the judiciary. It is quite sad to see the judiciary endangering its own independence by insisting on something that could best be described as its tilt towards those who marched for Justice Iftikhar Chaudhry’s restoration. Also, putting aside the principle of seniority following the judgement under a dictator’s regime would set a tradition not very different from the infamous doctrine of necessity, which everyone thought has been buried forever. Lamentable, also, is the fact that the judiciary has already invoked the controversial clauses of the Constitution introduced by another dictator in a recent case against the NRO. It is sheer disappointment for the progressive sections of society who sided with the CJ for his restoration all through the months of struggle.


This is the point to ponder for Mian Nawaz Sharif too, who has announced in his press conference on Sunday that his party will take to the streets if Justice Khwaja is elevated to the Supreme Court. Despite frequently violating the Charter of Democracy (CoD) on many counts, he keeps trumpeting about the continuation of democracy and upholding the independence of the judiciary. Advocating the appointment of a Supreme Court judge on one person’s choice rather than following the constitutional procedure of appointment by the president, Mian Nawaz Sharif is once again making himself hostage to the 1990s’ frictional politics.


Last but not least, the people of Pakistan, who have been the ultimate casualty in every crisis induced by the interests of a few, have to think objectively. For once, we all need to refuse to play in the hands of those who are pursuing nothing but their own vested interests. Many of us might have an opinion against the policies or persons of either Mr Zardari or Mr Sharif, but we have to keep our sanity intact and let reason prevail. Justice Khwaja or no Justice Khwaja, the Constitution and the spirit of democracy should be considered supreme.


 
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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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The Freely Political Judiciary and the NRO Fiasco

26 Dec

 

This article has been contributed for Baaghi, by Ahmad Nadeem Gehla. Baaghi is grateful to him for a brilliant analysis.

A dictator in military uniform does not become ‘constitutional head of state’ even after getting a verdict of ‘constitutionality’ from a handpicked judiciary and approval from a rubber stamp parliament. Constitution of Islamic Republic of Pakistan, clearly states that a dictator who abrogates constitution along with judges and the parliamentarians who assist him are all guilty of high treason. The institutions which assisted a dictator as well as acts carried, by default remains unconstitutional unless approved by a duly elected parliament. Even after approval from a legitimate parliament, these acts might not satisfy the constitutional demands and remain as ‘political arrangements’.

Present Chief Justice was the member of Bench which validated the unconstitutional martial of General Pervez Musharaf in judgment of Supreme Court in Syed Zafar Ali Shah case. He subsequently was appointed as a Chief Justice by the same dictator.  Many of us participated in movement for restoration of Chief Justice and his reinstatement was a great landmark achieved by newborn civil society of Pakistan. Apart from the political success with his restoration as Chief Justice, his appointment as a judge of supreme Court when 11 judges refused to take oath under ‘Legal Frame Work Order (LFO)’ and subsequent oath as Chief Justice was and still remains unconstitutional, as he has yet not taken oath under constitution of Pakistan. His reinstatement at the best can be a ‘political arrangement’; it cannot be constitutional by any stretch of constitutional interpretation.

Liberal and left wing politicians in Pakistan have never been able to get justice from judiciary in Pakistan, especially when powerful military establishment remains on the opposite side. ‘Jihad Enterprise’ of notorious ‘mullah-military alliance’ closed doors for ousting dictator through political movement which  face the danger of being hijacked by religious extremist groups and turned in to civil war. We have witnessed that a dictator can stage a 12th May and suicide blasts as counter measures. The options available to politicians are of negotiations with dictators to finds a workable middle path for transition to democracy, end up in prisons without conclusion of trial by puppet judiciary or get deported and exiled.

Mian Nawaz Sharif’s return after eight years of exile from Saudi Arabia can serve as the best example of choices available to politicians. On his arrival, not a single of his supporters was able to break the security arrangements of police and reach airport to welcome their leader. His party leadership rushed to Supreme Court to get a ‘restraint order’ to prevent him being illegally deported.  He is the head of second biggest political party in country, even if he was an ordinary citizen, his detention and threat of deportation was an ‘urgent matter’ in legal terms, to be taken up by court.

Constitutional courts suspend procedures to take up such matters and there are precedents where judges passed orders on such issues in middle of night. Unfortunately the Supreme Court, headed by Chief Justice Iftakhar Muhammad Chaudhary after being restored first time, gave it a deaf ear. Mian Nawaz Sharif remained under detention at airport for several hours and was illegally deported from his own country by a dictator. What was the remedy available to Mian Nawaz Sharif to come back once again?

National Reconciliation Ordinance was issued by dictator Pervez Musharaf and was purely a political arrangement to withdraw politically motivated cases and facilitate the return of exile leaders. Withdrawal of cases is a recognized practice around the world where any state transforms from dictatorship to democracy. However, such arrangements are recognized being the ‘middle path’ for transition towards democracy and conflict resolution. There can be nothing more absurd than judging the ‘constitutionality’ of a law signed and issued by a dictator in uniform. As the dictator, being a party in such arrangements himself does not enjoy any legitimacy, these arrangements could not satisfy the constitutional criteria.

The NRO expired month before Supreme Court took it up for a judicial review and was not available as a law, the actions taken under that law became covered by doctrine of ‘past and closed transactions’. Only in case, President had promulgated it again after first expiry of 120 days, or Parliament has passed it in to a law, it would have been open for a judicial review. However Supreme Court decided to give it a new life for another 120 days in disregard of constitution, through the order passed in the petitions on PCO of 2007 and sent it to parliament for considering and vote. The order of SC was a clear violation of constitution as no court including SC has power to extend the time for a law which has already been expired.

During lawyer’s movement, we did not grant the power of legislation to ‘Chief Justice’ otherwise we would have follower the appeal of lawyer leaders and boycotted the election. The voluntary and unconstitutional legislation by SC and later striking down its own created law is the only precedent in legal and constitutional history of civilized world. While doing so, judiciary acted as ‘Judicial Messiah’ giving life to dead laws and later judged its constitutionality. This violation is nothing short than any dictator’s violation of constitution.

We have witnessed the extreme of ‘judicial biases’ in present formation of the ‘Bench’ of Supreme Court. This is important to remember that a decision by full court of Supreme Court in cases directly filed under constitutional jurisdiction closes every door of appeal. Those aggrieved can only file their appeals before ‘divine court’ even if the judgment doesn’t meet the standards of law and constitution and is biased. If it was a case decided by a larger bench of a High Court or minority view of a bench of SC, it does make sense. Composing such a bench in order to close all doors for those who are aggrieved, especially when President of the country is focus of proceedings leaves little doubt about Supreme Court playing a ‘political game’.

More than 200 lawyers, political workers and civil society activists gave their blood in lawyer’s movement. Off course, we did not struggle for a ‘Messiah’ but an institution. Although an overwhelming majority supported the restoration of Chief Justice, they participated in elections in much greater number despite the appeal of ‘lawyer leaders’ to boycott the elections of 2007. The record turnout in elections is a clear verdict of people that they are not looking for a messiah but wanted to judge and choose their leaders.

Although judiciary around the world observes a self imposed restrain in interfering into ‘political issues’, the situation in Pakistan had been opposite. We are witnessing same thing happening once again while judiciary is busy interfering in to ‘political questions’, its own functioning has changed little even after so many sacrifices. Public perception about judiciary in ‘Transparency International’ report for 2009 has put judiciary at the seventh most corrupt institution of the country. The head of lawyer’s movement and former President of SC Bar Association has expressed his appointment stating that ‘this is not the judiciary for which we struggled’.

When judiciary or military interferes in to political issues, it puts the institution against the will of people and people do react when their will is not respected. There can be nothing more shameful for institution of judiciary that whoever it convicts by them become qualified for highest offices of the country. When a handpicked judge of Pervez Musharaf convicted Yousaf Raza Gillani, the former Speaker of National Assembly, Asif Ali Zardari, present in court told the judge, “You have made him qualify for President of Pakistan”. When Gillani, who served five years in prison while judges were dancing on tunes of Pervez Musharaf, became Prime Minister, he released these judges from detention of the same dictator.  

Let us take case of Mian Nawaz Sharif who was removed and put in prison by General Pervez Musharaf. Supreme Court, including Justice Iftakhar Muhammad Chaudhary, not only validated the Martial Law but gave dictator the powers to amend the constitution. The same judiciary convicted Mian Nawaz Sharif for hijacking and corruption. On his return, people gave their verdict by giving government of biggest province of country to the party of that ‘hijacker’ and he is one of most popular leader of the country. On his initiative parliament is set to remove the changes from constitution which were introduced by Pervez Musharaf with ‘permission’ of judges.

Judiciary partnered in murder of ZA Bhutto and one of the judges who signed the verdict has confessed that it was a ‘judicial murder’. The people turned the grave of a ‘murder convict’ Bhutto, in to a shrine. Million visit his grave every year giving him a verdict of innocence and add in to shame for judges and generals. Benazir Bhutto was charged of corruption and made to rush from one court to other for years while millions marched for her chanting ‘Ya Allah Ya Rasool – Benazir Bekasoor’. People turned her death in to their own loss and even his worst rivals cried on her death, her party secured the highest vote in next elections.

Almost every provision of criminal laws was used against Asif Ali Zardari from corruption to terrorism and murderer charges. He was dragged from one court to other for eleven years while ‘judges of dictator’ sat over the trials for over a decade keeping him in a continuous imprisonment. In the first free election people put the same corrupt, terrorist and murderer in Presidential Palace with a two third majority. Even in bye elections his ticket holders won from Gilgat to Quetta. Dr. Ayesha Siddiqua, one of the supporter of restoration movement has expressed that ‘judgment will strengthen the military establishment and undermine democracy and weaken President’.

 Despite observing the restraint from interfering in to a political arrangement, while declaring NRO as unconstitutional, judiciary has once again decided to reopen these cases even after same exercise in futility for a decade. Each of such interference has historically proved another blow to already deteriorating institution.  Amazingly, Supreme Court ignored to pass any order against the ‘judges’ who did not conclud cases against President Zardari for a decade just to please a dictator and got favors in return. Asima Jahangir, UN Reporter for Human Rights and top supporter of judiciary restoration movement has declared the judgment to be delivered by a ‘jirga’ rather than a court of law.

Judicial activism can be a blessing and every sane person will support if courts take up issues of public interest. Unfortunately in Pakistan the trend is reverse; courts interfere in to popular and political issues while matters of public interest are pushed under the carpet. The politicians have been always a soft target for ‘dispensation of justice’ while mighty generals and judges all remain holy cows. While politicians get ‘speedy justice’, the case filed by Air Marshal Asghar Khan against the generals for misuses of public funds to form notorious right wing alliance IJI is pending in Supreme Court for twelve year without a verdict. In Asima Jahangir’s words, the order is ‘targeted justice’.

Supreme Court also announced in it short order to ‘judge’ all politicians under controversial Article 227 of Constitution which was inserted by a dictator to disqualify the liberal politicians. The law requires all politicians to be ‘righteous’ and is under review of parliamentary committee for striking down the constitutional classes inserted by a dictator. The dangerous power acquired by Supreme Court will give it a right to disqualify political leaders who does not offer five time prayers regularly and does not fast. Qazi Hussain Ahmad, head of Pro Taliban JI has announced to ‘implement’ SC judgments through street power and SC has not taken any action on his statement.

Every dictatorship in Pakistan was imposed in name of ‘accountability’ and ‘good governance’ and proved to be another disaster.  People do react when someone pretending to be a ‘Messiah’, disregards their mandate and rejects their political decision. When people had a chance, they brought back the same leaders who were ousted by ‘Messiah’. This behavior is not limited to Pakistani society alone, people in India, Philippine, Thailand, Malaysia and Bangladesh has reacted in similar manner. Judiciary lead government grilled politicians for two years while people voted same politicians back in government.

Corruption is a reality in developing world and particularly in Pakistani society. It can never be eradicated in one day or by once again inviting a ‘Messiah for a quick fix’. The continuation of democratic process strengthens institution and as process takes course, it eradicates corruption. Whenever an institution or a person has crossed the constitutional boundaries, it has weakened the institutions and paved ways for dictatorship.  While Human Rights Commission of Pakistan, liberal and democratic forces are strongly criticizing the judgment, ‘Pro-Taliban’ religious groups are celebrating the verdict.

The top lawyer leader and head of ‘lawyer’s movement has declared the judgment as been delivered after watching the ‘Talk Shows’ of pro Taliban private media. Many legal experts, civil society activists and human rights advocates are terming the Supreme Court’s intervention in to political decisions as revival of notorious ‘mullah-military-judges alliance’, to undermine democracy. IA Rehman, the Director of Human Rights Commission of Pakistan wrote, “The people of Pakistan have every right to ask whether Ziaul Haq’s agenda has been revived”.

Apart from some revolutionary verses of Habib Jalib sung by ‘Lal Band’ during lawyer’s movement, the role of Supreme Court remains limited to constitutional boundaries. In democracy, only people can ‘judge’ their representative, any unconstitutional exercise will again fail. The Supreme Court was restored with sacrifices and is built on ‘people’s blood’ and bound to respect ‘people’s will’. If Supreme Court sides with establishment and derails democratic process in dreams of acquiring the powers of ‘Judicial Messiahs’, people who struggled for its restoration will surely hold it accountable.

 

 
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The Story of My Beloved

06 Oct

Published on March 14, 2007
The story of my beloved has taken many turns, pleasant and unpleasant, cheery and miserable, heartwarming and upsetting, pleasing and distressing. Some times it seems to be ‘child of lesser god’. And at others, it appears to be the victim of sheer credulity of those who gave birth to it and disregard of its guardians. Who is this ill-fated fellow? It’s none other than my beloved country.
Born out of wedlock, it showed the world one of the chain products of the end of colonial era. Those at the helm of affairs at that point in time, probably knew very well what unfortunate course of actions they’ve allowed to happen for superficial reasons. They wrote the history with a vision to push the posterity in unfathomable oblivion. And sons and daughters of my age and the younger fell prey to immeasurable degrees of historical and geo-political visionless-ness at the hands of raped history that was taught throughout the decades. All the voices of dissent were termed against the spirit of “patriotism” – a dubious airy term that did not have a definite shape, colour and intensity. It acquired whatever shape and colour “they” wanted it to have. And it was “they” who continued to determine the level of ‘Muslamaaniyat’ of fellow citizens thereby nationalizing the religion.
People, who historically had been against the territorial concept of state and restricting Musalmaans to the geographical boundaries as opposed to a more totalitarian concept of Pan-Islamism, suddenly started dictating the terms to govern the new born country. Who let that happen? Probably the ones who had, besides professing the greater ideals of humanism, equality of opportunities and political participation of the socially excluded Musalmaans – the values far greater than blind theocracy, carried on with permitting the pregnant slogans like, Pakistan Ka Matlab Kia: La Ilaha Illallah. As an insightful and astute statesman, Jinnah soon comprehended the gravity of the turn of events and tried to mend the error (deliberate or un-deliberate) in judgment of the popular sentiment on the part of the political coterie of the time that led the euphoria to an unprecedented hike. He delivered a marvelously drafted speech on August 11, 1947, refuting any likelihood of a theocratic state in the making. The speech, understandably, was put under the carpet after his death.
During his very short post-partition life time, he tried his best to mend the ways the politicians had chosen as the mean to perpetuate their consolidation of power. The unbridled political cronies of that period went berserk after the death of their Quaid. The problems of governance resulted in a political penumbra that was unmanageable and irrepressible by them on account of being under trained in the traditions of democracy and business of politics. The country being diversified ethnically, linguistically and culturally, posed various problems of governance. The most intoxicating one being the tribulation of keeping un-natural adherents united. The air of distress and feelings of downright disillusionment of people of these diverse federating units accelerated the centrifugal forces amid oft repeated Indian apprehensions about sustenance of the juvenile country. The situation compelled the leaders to create something that could gel the culturally and ethnically disparate people together.
In the backdrop of a campaign for Pakistan run mainly by the British-leaning Muslim feudal triggering religious sentiments in order to gain maximum popular support for a bizarre political solution, the best solution that appeared to those in control was to continue with religious question as the prime concern of country’s polity. And that’s the point where things started to take a turn for worst. The right refused to budge in for slightest of disagreement. Politicians, out of their vested interests, continued to bow before the Islamists throughout Pakistan’s history checkered with intermittent short periods of democratic respite as well as longer autocratic regimes run largely by the supreme ‘protectionist’ institution of the country.
On the other hand, the ‘Protectionist Inc.’ was allowed to claim its political role in early years of Pakistan. The young country failed to inherit politicians with a farsighted vision, experience of parliamentary democracy and acquaintance with political nuances of the time, necessary to lead the popular prophecy. The lot that was available was content finding easy answers to strategic questions. Appointments of political personages at public offices without elections and a lack of unified inspiration to run the business of country on a dialogue and consensus-based governance structure took it away from democratic norms and traditions. The scripture of country’s security was written overnight to shift the attention from failures to deal with brawling issues of ethnicity and socio-political hegemony of a political powerful group. The notion of security took the rulers on the gates of Protectionist Inc. that ended up in continually empowering this institution with almost no accountability and frequent opportunities for it to exercise power beyond its ambit of security.
On economic front, the early rulers, wrongly or rightly, decided to sell the balance-of-power theory of the world powers in a post World War II scenario. The one with an offer of larger ‘profit base’ as opposed to the one more just but politically closer to India – the enemy, won the game. It’s the same point in time when Maulana Ubaidullah Sindhi warned to beware of the capitalist scheme but in vain. Pakistan succumbed to the glittering capitalist west and showed emerging communist neighborhood a thumb down in “larger interest” of the country. The shrewd capitalist used the religious euphoria of newly born nation that was in search of its identity after divorcing five thousand years of glorious history.
How much we gained and lost due to this policy, are questions the answer of which has now come to be known to all and sundry. But the story doesn’t end here. My beloved endured severest of blows in its face. It saw a nerve wrecking war within, it saw its daughters raped by those who were trusted for protecting it, it saw its own sons slaughtered in the name of internal security and saving federation. To the extent that its eastern arm was maimed. And when its shoulder was bleeding after the painful amputation, those who were responsible for the situation, started a high pitched drama to shift the focus from their failure to the alleged failure of the political parties. An excruciating defeat for which the people were not taken into confidence, they were not prepared for the results very well calculated by the army during the whole incidence. The scars were deep. The wounds were hemorrhagic.
The story still goes on. People were deceived, democracy was robbed, elected premier was hanged, a long black night prevailed. When my beloved saw a small ray of hope by comforting light of democracy, it turned out to be mirage. The same religious fanaticism was flourishing, political exclusion was at its peek, and lack of accountability had become a contagious epidemic, which had now infested politicians as well as other vital institutions. It was only then, that a strange thing happened. A good man of military came to the rescue. Beating the drums of equal opportunities, meritocracy, consensus-based governance, accountability for all, promises of probable economic boom, mixed slogans of eradicating poverty and hopes to become home of multinationals and what not? The civil society experienced a much desired political orgasm.
No, not a happy ending folks! It was only after that climax of excitement did the people find out that they were used as medieval concubines. Same era of sham democracy, exclusion, disregard of democratic institutions and now offense to the prime instrument of justice had returned with all its “pomp and glory”. My beloved is blubbering. My question from the most potent man of this country is: Is there any relief fro my beloved? When?
 
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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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