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Posts Tagged ‘Democracy’

Listen, Gentlemen!

22 Jul

This piece was originally published in Daily Times on July 21, 2010 

Considering the establishment’s numerous attempts in the past to disgrace the civilian leadership both domestically and internationally, it is particularly disturbing to see the latter not trying to understand the hazards involved if it keeps on kneeling before the former

Like Dwight David Eisenhower, I had always thought that both the people of Pakistan and India have wanted peace and that both governments (read establishments) had better get out of their way and let them have it. This thought remained embedded in my mind until I went outside the usual circle of peaceniks on both sides of the border and met people from the ‘other’ side of the ideological divide thanks to the social networking media. 

Almost a week before the recent talks between the two foreign ministers, S M Krishna and Shah Mehmood Qureshi, there was a huge cry on the internet from the Indian side against the discussions. These people, as I understand, might not be pro-war but still do not support the dialogue unless Pakistan takes concrete actions against the 26/11 accused who are roaming scot-free in Pakistan. Amid a strong opposition from the domestic front, Mr Krishna came to Pakistan and in his first pre-negotiations statement, reiterated India’s desire for an open dialogue for the sake of long-term peace. 

Many analyses have been heard about the course of discussions, the post-discussions scenario, the body language of the two ministers and the ensuing diplomatic spat that ended the episode on a rather bitter note. While the media was not very hopeful regarding the outcome, the stiff stance maintained by Shah Mehmood Qureshi and an equal display of terseness by S M Krishna was far from the expectations of many. 

The press conference started with a comparatively lukewarm opening by Qureshi, but gradually showed signs of unprecedented bluntness and marked an unpleasant departure from diplomatic finesse. Towards the end of the event, Krishna had established himself as the mature diplomat, avoiding indulging in personal criticisms. It is important to note that Qureshi continuously used the word ‘engagement’, while Krishna adopted ‘concern’. This difference in the substance of the discourse — a willingness to engage as opposed to the element of distrust as the primary matter of concern — resulted in a poorly written soap opera.

My Twitter account was flooded with taunts by a host of Indians from different walks of life — from media and film celebrities, youngsters from universities to marketing and sales persons — all directed against the Pakistani foreign minister. It seems that generally, Indians were following the Indo-Pak talks with more interest and anxiety as opposed to a strange indifference in Pakistan. Upon my deliberate provocative statements (the usual way to get response from Pakistanis on social media because they seem to be there for fun, not intellectual discourse), some of the responses were of a reactive nature rather than antagonistic to the peace process. Indians, on the other hand, were lambasting their government for making the ‘wrong’ decision to engage in talks with Pakistan. Hawks on both sides were smiling with a “See, didn’t we say earlier?” kind of arrogance.

Things were different a day before Krishna arrived. What went wrong then? It is intriguing to note that Krishna was to meet the prime minister (PM) at 3:30 pm and see President Zardari exactly two hours later. Around 3:00 pm, he was notified of the change in schedule and that he would call on the president prior to the PM. While he was meeting the president, the PM was giving an audience to the army chief (who had already met the president earlier in the day). Reportedly, both the meetings involving General Kayani were regarding the security situation and the army’s operational matters. When the talks between the two foreign ministers resumed, the atmosphere, according to a fly on wall, had totally changed.

Considering the establishment’s numerous attempts in the past to disgrace the civilian leadership both domestically and internationally, it is particularly disturbing to see the latter not trying to understand the hazards involved if it keeps on kneeling before the former. Whatever truth may be behind the Kargil misadventure, it was the civilian administration that had to take the brunt of embarrassment internationally. Likewise, in the wake of this badly handled ministerial engagement, it is the political leadership that has made itself a target of international humiliation by appearing unreasonable even in a media briefing. 

Analysts have been heard advising those in power not to touch an organised and dreadful militant outfit such as the Lashkar-e-Tayyaba (LeT) and its leader Hafiz Saeed, the alleged mastermind of the Mumbai attacks. The view is that since LeT is not bothering Pakistan as much, it would be better not to divert the military’s attention from the Taliban on the northern front. If we even have some sense of learning left in our poisoned minds, it might not be very difficult to ascertain that giving militancy, even if it is dormant, a free hand is going to be fatal for Pakistan itself. The moment (which has probably come) when these ‘dormant’ militant organisations gel with their ideological brethren in the north, turmoil, destruction and blood will be the only things Pakistanis would witness.

Pushing the Pakistani Taliban to the corner, while safeguarding their Afghan parents and potential allies at home would only make them join hands rather swiftly because those fighting against the Pakistan Army need hard cash, logistics and supplies. Who better than the establishment would know that among the entities in the settled plains, which one can provide these services to the warring Taliban? Instead of making dormant militant groups a future asset against regional rivals, we need to deal with them firmly in order to save our country.

The faulty paradigm of strategic depth has to be replaced immediately with an alternative foreign policy free of the establishment’s influence that relies on pulling regional powers with the economic magnet rather than winning their support through planted troublemakers. The current strategy has been tested time and again, and has miserably failed over the past three decades, bringing not only humiliation and shame to Pakistan, but also harm to the people and the economy. A quick way would be to completely halt all the covert operations in the region, give the political government a free hand to deal with international and regional actors, and allow the economy to be viewed through a lens that sees manufacturing and industrial development as key to progress. Absence of terrorists and terrorism is going to bring long lost foreign investment to our courtyard. 

We all are to benefit from this progress, not the civilian leadership alone. The establishment must understand, and accept this. 

 
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Posted in Writings

 

The Unbearable Lightness of Being Zardari!

11 Apr

Posting this to remind Pakistanis, what was being written about President Zardari (the then inmate of a jail) in 2005. Written by  a veteran journalist, a columnist par excellence, an inspiring rights / peace activist and a professional with unblemished credentials, Beena Sarwar, this post appeared on January 26, 2005 in The News, a paper of the same Jang Group currently at a well declared war with one person they seem to hate endlessly – Asif Ali Zardari.

It would be interesting for the readers to think and recall history of this media group, and how it has changed sides with every changing regime. May be then we're in better position to peep through their headlines and "breaking news", into the reality!

"Corruption," pronounces Asif Ali Zardari, "is a state of mind. A corrupt person wouldn’t have taken on the establishment, wouldn’t have sacrificed eight years of his life in prison. I could have accepted a deal and got out, and kept them happy — that’s what would have benefited me most."


No, no, no, there’s been no deal, he repeats. But he is confident that the government will have to call for early elections, and that BB (whom he refers to as his ’leader’) will be back, "INSHALLAH!" We’re at Bilawal House — or Bilawal Fortress, as some call it — in Karachi (the one in Lahore is a rented premise), a few days before his departure to Dubai. There is an air of expectancy about the place, which is buzzing with men, outside the gates, in the courtyards, under a shamiana, in the living room next to the book-lined study where we meet him.

Wondering if it’s always like this, one learns that yes, it was like this even when he was in prison — having an easy time of it, one heard, air-conditioned rooms, all kinds of visitors, nudge, nudge, wink, wink… And yet, it could not have been that easy. Even if he was given preferential treatment, he was still a prisoner, deprived of home and family. And yes, there were some pretty rough moments, including solitary confinement, denial bail, and worse (remember the tongue incident?). Any luxuries would have been countered by such moments — and rides in the back of rickety police vans charging along from Karachi to Lahore for court hearings. A reporter later mentions that he developed spondalitis because of this mode of transport — he could either sit on the hard wooden bench, or stand all the way. This is why he has to walk with a cane and undergo physiotherapy.

He comes into the room briskly, despite the cane. We’re expecting an informal meeting, but the seating arrangement — he sits behind the large wooden desk facing the four of us — implies an interview. During the ensuing discussion one thing becomes clear: Zardari isn’t going to complain about his prison stint or political and personal adversities. Instead, he repeats what appears to be his mantra: positive thinking (reflected in that wide, somewhat cheeky grin, flashed along with a V-sign in every newspaper photograph or television shot taken during his prison days) — "Convert weaknesses and adversity into strength."

"There is an unrepresentative, undemocratic government, and the West will eventually have to stand with the democratic forces. That process has started. Musharraf can’t step out of the umbrella of democracy. PPP is not in a rush to get into governance, and we believe that a martial thought process is not the answer — the strength it provides is temporary. We can’t wish away those who believe in a militant approach, but the real strength comes from the people, and we have to educate them against the prevalent defeatist attitude, we must be positive, we must assert our thought process. Civil liberties are never given voluntarily; we have to demand them. And we must each do what we can. I am doing what I can; I have chosen politics. I didn’t need to."

This was a ’considered decision’. The only regret is not being able to see his children grow up — the eldest, Bilawal, was just eight when Zardari was imprisoned by the Nawaz Sharif government. But this is not a complaint. "I did it for the sake of democracy, for the people, for all our children. I could have taken the easy way out, but I didn’t. I knew that one day I would win. I didn’t know how long it would take. I am fighting and I will continue to fight."

He dismisses the allegations of corruption. "They haven’t proved one case against me. You know how it started? It was Gen. Mujibur Rehman’s brainchild (information minister during Gen. Zia’s martial law), to use the old trick: give the dog a bad name and hang him. So they created this image of me, as an Achilles heel of PPP. I couldn’t counter it because I didn’t have a political image. I did have a personal political history, my family has always been in politics that people chose to ignore, but prison was a new experience for me."

And then, some unexpected philosophy — "History will redeem me. What am I? I am just a bleep in the universal picture. So I might as well try and shine."

There were times when no one would come to see him, but he never lost faith. "Nawaz Sharif left. My graph went up. The only people I’d see would be the court reporters, and the people who were looking after me — I learnt a lot from interacting with these downtrodden people. So I wasn’t entirely isolated. I’ve spent these eight years thinking, dreaming about how we can change Pakistan’s destiny for the better."

The answer, he believes, is utilising what is considered Pakistan’s weakness — its burgeoning population — and converting this into strength. "We must invest in manpower, instead of ’toys for boys’. Invest a billion dollars in our people instead of planes."

Then he makes a startling revelation: "We are working to export nurses; I believe that women are twice as hardworking as men. We will monitor everything with modern technology. The emancipation of women is the future of Pakistan. If we give land to anyone, we will ensure it is given only to women. The trouble is that we train our sons but not our girls." His own children are treated equally, he says. Bilawal and Bakhtawar are both karate black belts, and if Bilawal is learning to shoot, so does his younger sister.

What about Benazir Bhutto, will they (the establishment) let her return? "They? Who are they to stop her? She has chosen to stay away because the world has gone mad. She is working nine hours a day, to change world opinion about us, about Pakistan."

He disagrees that she is arrogant and unapproachable. "A person with an arrogant mindset wouldn’t work so hard. Look, people here are hypersensitive. She has a thousand things on her mind. But you know how people are — they’ll want to ask something, but the preamble is so long. So sometimes she may be a bit short, and that could be seen as arrogance."

What about the contention that the Peoples Party should have sat in Opposition in 1988, instead of coming into power with their hands tied? "The circumstances then were such that that seemed the only choice," he answers. "Perhaps it was not, but we are saying that with hindsight."

So if there were fresh elections and a similar situation developed, would his party accept power with similar compromises? Zardari refuses to say. "She’s the leader. Her wisdom is more than mine. Whatever decision she makes will be correct and we will abide by it."

But speaking for himself, what he would like to be if in power again, is environment minister. "That’s my passion. I can’t believe that the people responsible for that oil spill near Clifton beach are still around, that the environmentalists have not picketed KPT and so on. There is so much apathy. I’d like to change that."

But he has full faith in the people. "We are portrayed as a lawless society, but it’s not true. The average person is hardworking and honest and law abiding. Who are the people who indulge in crime? Who supports them?" He answers his own question: "From political parties like the MQM, from the jagirdars and the sardars, all crime stems from these roots!"

His minders finally prevail upon him to leave for his next appointment, and as he exits the room, that wide grin reminds one of the Cheshire Cat in Alice in Wonderland, who every now and then would slowly vanish, its grin being the last thing to fade out. Asif Ali Zardari’s grin lingers on too. And you wonder who will have the last laugh…

 
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Posted in Looking Back

 

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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Posted in Writings

 

Lets Read History Anew

21 Mar

It took me quite some time and effort to come to terms with the fact that we’re, sadly, living in a society where mediocrity is promoted with an unprecedented rigor, where ordinariness becomes your asset and where intelligence and ability to question is regarded as your super disqualification.

My increasing criticism of the happenings and our collective thinking has become my trademark of “negativity” for people from seemingly all kinds of ages, backgrounds and classes. An out of proportion emphasis on “positivity” in recent times has become more than delusional in our society. One would find no soul who’s left there able to see the damage all of us are collectively doing to this country by choosing wrong ways of responding to national disasters.

This refusal to reason, inability to analyze things objectively and incapability to question and process raw information has made people of Pakistan succumb irrecoverably to rhetoric. We are now the people who offer most profitable package to exploiters for befooling us. We love to be fooled and to live in fools’ paradise. It’s easy and requires no effort. Someone asks us to be happy we do it. Someone else asks us to be enraged we do it. Isn’t it sweet?

It remained an enigma for me as to how we were able to develop ourselves in such an unimaginative, dim-witted, obtuse and thick skinned heap of people, till I happened to see a social studies text book for grade 5 couple of years back. Since then, studying the level of incompetence promoted by these state prescribed text books has become my favourite pass time. Not only that the kids are subjected to “torture” of having to read these mind-numbing monotonous piles of raw paper, but they are also pushed into oblivion never to surface again.

The trick has been done by either telling the selective truth or by out-rightly distorting it. Not that I don’t understand the dilemma of those who run Pakistan, but still we can do it with half more decency! Yes we do understand how can they tell young generation six decades later that they did an unforgivable blunder? But at least they can let people come to terms with it by asking honest questions.

I can vaguely recall those days when we were strictly prohibited to read history textbooks written by people like Dr Mubarak Ali and K. K. Aziz sahib. It was easier to encage information then. But we somehow managed to get hold on alternative history. Today, when it’s a million times easier to get hold of any information you like, students are strongly conditioned to neither reach out to readings other than prescribed, nor to trust sources other than state-engineered ones.

Whenever someone asserted the need to rationalize the historical narrative, one was invariably called an anti-state element that has to be gotten rid of. One matter of special fragility has been the presentation of facts related to or covering the movement that lead to the partition in 1947 and resultant birth of Pakistan.

Very interestingly, when I see the textbooks for grade five in India, I don’t see such a Pakistan (or Muslim-centric) hate propaganda. Despite the fact that we in Pakistan have got significant Hindu and Sikh population in pockets of Sindh, Punjab and Pakhtunhwah (the North Western Frontier Province as the colonial bosses called it to be followed by us to date), our text-books have left no stone unturned to present these religious groups as not only the enemies of Muslims, but also a sub-human creature who is in humane and too mean to be allowed to exist – yes, I know I’m harsh here.

The difference in conceiving the curriculum and packaging the information therein is way too conspicuous to ignore. A grade five student in India, according to the online curricula available on the website of National Council of Education and Research and Training (NCERT), studies Mathematics, English, Hindi and Environmental Studies. In the land of the pure, a student of the same level becomes a guinea pig of the state and undergoes the injections of Urdu, Islamiat, Mathematics, Science, Social Studies. In private schools, Arts & Crafts, English and computing is added to this. The non-Muslim students are given a choice of Ethics in Islamiat’s stead.

One wonders why such a young mind needs religious education? But such a question should not come out lest you may not be labeled as a lesser Muslim. World saw all hell breaking when there was contemplation on government’s part back in 2004, of removing Islamiat from primary education. It had to be re-introduced from grade three this time after a strong propaganda campaign was led by the media to fuel right wing consumer of curricula against the change.

There were many at that time who would ask what was harm in religious education, which should be a must. When, in response to the latter part of the question, one would argue WHY, the answer invariably was: Because Pakistan was created in the name of Islam! And this answer has been universal. So incessant has been the hammering of this lie that after sixty-two years, no one is able to even imagine challenging this assertion. Who has benefitted from this lie? Who was damaged by this? People of Pakistan and the society.

The wrong notion created since the beginning of country’s birth has won the establishment an unquestionable hegemony on power and resources. That the Muslims are one nation, and all non-Muslims are distinctly different from them, amply gives Muslims a reason to get a different homeland, came to play soon after the partition as one of the biggest challenges to keep diverse sub-nationalities within newly created state.

Differences in language, traditions, culture, social norms were too manifest to give neo-Pakistanis enough adherent to survive as a nation. Religion was the easiest way out. It was forcefully made one adhesive factor for keeping the nation together, which was undergoing labour pains ever since it came into existence. The ethnic differences erupted as soon as Urdu was declared national language of the country. The schism widened when federal government chose to impose governor rule in NWFP, disrupting popularly elected government of Dr. Khan sahib, just because he was from Congress. The Baluchistan’s independent states i.e., Qallat etc. too were not very happy with the way center was trying to consolidate itself at the cost of provinces’ independence. Although Khan of Qallat was convinced by Jinnah to sign instrument of succession, it still demanded a lot to appease the sentiment of exclusion.

In Sindh too, there were tensions between the local Vadera (feudal) politicians and migrated UP elite. Punjab’s Unionist party was also lured into coming in the lap of Pakistan Muslim League. An era of dirtiest politics started, which resulted into first military rule in Pakistan. No insight of politics in those times is available in any of the textbook in Pakistan. On the contrary, the history of Pakistan starts from Mughals (grade 6) and ends on August 14, 1947.

In my next post, I would be examining the way history is distorted and crammed up in young minds to make them belligerent against everybody who looks different in terms of religion.


 
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Posted in Research n Record, Writings

 

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

05 Mar

 

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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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List of Presidents of Pakistan 1956-2008

05 Mar

The following list has been taken from Xcitefun.com

10462,xcitefun-president

 
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Adda Sayeen, Bhali Karay Aaya!

05 Mar

asif_ali_zardari4This piece was originally published in Daily The Post on September 13, 2008

The sight of slogan shouting jiyalas at the gates of Presidency was not only a rare but moving one on ninth day of ninth month – a historic day in the annals of Pakistan’s political saga, when democratic process of electing state’s sovereign head was completed. As Plato puts it, “Democracy is a charming form of government, full of variety and disorder, and dispensing a sort of equality to equals and unequals alike”. Pakistan People’s Party displayed it with full life. Amid the fears raised by certain sections about his credibility and ability, Asif Ali Zardari finally took oath as the democratically elected President. While watching the ceremony on TV, one could hardly resist tears rolling down the cheeks, as the event reminded of the biggest loss people endured during their struggle for democracy in Pakistan.

Whether it was the exchange of harsh words between security personnel and supporters of the president, or embarrassment of forces’ chiefs who could not get way to leave the presidency after the ceremony due to the presence of enchanting jiyalas; whether it was dripping down of painful tears from Sanam Bhutto’s eyes or loving glitter of pride on Hakim Ali Zardari’s face; whether it was forlorn thought of the gone dictator who was nowhere to be seen or the Zinda hey BiBi Zinda he slogans gushed out naturally of the people present there, everything was but manifestation of nation’s emotional state experiencing peaceful and amicable transformation of hurly-burly arbitrary rule into serenity of democracy.

All the romance of PPP’s success and its pro-people slogans aside, one needs to objectively watch the actions of a party in-charge of country’s affairs completely, from now on. The real responsibility starts from this day. After a very successful and ably handled press conference, morale is high and spirits are up to the sky. It’s high time to capitalize on this breadth of acceptability and deliver in real terms of the word. Notwithstanding the fact that newly elected president, it is understandable, is confronting umpteenth challenges as the leader of ruling party. But the huge responsibility is not carried by Zardari alone, we all must share it. The nation must understand the fact that if past nine years have made Pakistan’s citizenry an alert one, they have taught many things to political adversaries as well. The parties, traditionally right of the center (or center for that matter), especially the ones who were born out of the wedlock of civil and military bureaucracy with clergy, now have creative ways to confront a popularly rooted political party.

We have seen how ambivalent the stances of conventional opponents of PPP have been during past six months. All popular slogans were picked up to embarrass PPP among people while indulging into inflexible single faceted politics – a quick recipe for disaster in as complex a state as Pakistan, facing multiple internal and external threats. Mr. Zardari’s politics since last half a year has been of that of reconciliation and inclusion, an evidence of party’s maturity over the years and an outcome of its sufferings at the hands of powers that be. And now, when the power at home has been successfully consolidated, these “wiser adversaries” need to be tackled in equally befitting manner. The politics of signing the documents you don’t believe you’d be able to abide by has been a tactic for a particular situation, which should be avoided in future at all costs.

It was no later than 4th century BC that Demosthenes, a prominent Greek orator and statesman of ancient Athens was able to realize that there is one safeguard known generally to the wise, which is an advantage and security to all, but especially to democracies as against despots. What is it? Distrust. The rulers should now candidly recognize the amount of trust deficit that exists between elements of PPP and the masses, owing to some undesirable happenings during past regimes ruled by the party. Serious efforts need to be put in to ensure issues of governance in every field and every aspect of policy implementation. That does not need resources; it just needs commitment and sincerity, which the party is not lacking right now. Whatever drastic steps government has to take, no qualms should be felt while pruning off of bureaucrat friends.

During the maiden press conference of the president, he sounded genuinely cognizant of the supremacy of the parliament. This, however, should go beyond rhetoric. Instead of putting the onus on parliament, the co-chairperson of the ruling party should actually initiate the move to remove notorious 58-2(b) and chopping off of presidential powers transferring them at length to the Prime Minister. Sooner the better. In order to avoid unnecessary political instability at the hands of opponents, and to concentrate on real problems of people, these basic hitches are required to be removed as quickly as possible.

Another monster Zardari is facing is economic challenge. Creative solutions inclined towards people oriented public policies are urgently needed. Broad based technical expert groups should be immediately established to assist the executive branch as well as legislative branch (especially parliamentary committees). While direct transfer of money, however little it is, to the poorest of the poor through Benazir Cards is highly commendable, the removal of subsidies with no plans of their provision in near future is a question mark on party’s prop-people credentials.

A long-awaited change in country’s polity is coupled with immense challenges of economic crisis, constitutional and judicial issues viz a viz credible democracy, coalition management and dealing with war on terror with popular support.  We offer you Pakistan to manage and rule Adda Sayeen, Bhali Karay Aaya!

 
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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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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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