Original Articles

18th amendment case in SC: ‘We have given sacrifices!!’ – by pejamistri

It is indeed the most interesting case in the supreme court where Judges are deciding their own cause and boosting about their credentials. I am prepared to give them some leeway on that as this is first time in the history of Pakistan that the majority of honorable judges have something to boost about.

It was amusing to read the comment from Justice Ramday.

“We made sacrifices for the system, democracy and constructed a wall to save it and even became prisoners, faced starvation for declining to take oath under the PCO, but the judiciary got its hands cut in the follow-up and was told how dare you say it; we have also given sacrifices of over 70 judges, adding that in view of the July 31, 2009 verdict, many competent judges who took oath under the PCO had to relinquish their jobs.”

yes my lord you have given sacrifices for the system (first time!!!) , however there are several in this beloved country of ours who have given sacrifices not once but many a times.. these many are called politicians and political workers.

Ask Nawaz Sharif what it means by sacrifice when you are in Attock Jail and you even don’t have the proper toilet facilities.
Ask Benazir Bhutto how it feels when your father is hanged on the orders of “judges” sitting in your seats.

Ask the thousands of political workers of PPP, PML(N) , ANP and several other parties what it means by the word “sacrifice” , I must say we should use the words with their proper meaning. But let me add that there is nothing taken away from the honorable judges who have struggled against the mad dictator.

Let me come to the “arguments” of Mr. Akram Shaikh yesterday…

1. Article 175-A and independence of judiciary:
As usual Mr. Akram Shaikh kept insisting that new procedure for appointment of judges as described in article 175-A will compromise the independence of judiciary without substantiating it with any valid arguments. Justice Saqib Nisar rightly asked him how is it possible when 3 senior judges including the CJ are part of the commission. Mr. Akram Shaikh kept trying to malign the politicians of Pakistan , and again Justice Saqib Nisar rightly reminded him that it was a politician who is the founder of this Country. I must say that just like honorable judges are so sensitive to their prestige , they should also ask the lawyers to be responsible when talk about the politicians.

2. Article 6-2A:
Not really sure why the judges are afraid of Article 6-2A (when their fellow power center COAS and his cronies in the past , present and future don’t care 🙂 Ask Gen. Musharraf does he fear Article 6? ). The verdict of July 31st has nothing to do with Article 6-2A , we already know that Dogar Courts can easily over turn such verdicts with a larger bench. Justice Javed S. Khwaja and CJ IMC should not be worried about the article 6-2A , as if Kiyani wants to impose Martial law , he will make sure the judges who support him don’t get hurt by article 6-2A , if you don’t believe me ask Abdul Hameed Dogar.

3. 18th Amendment was passed in hurry:
The Constitutional reforms committee representing every party in the parliament held 77 meeting , spending 385 hours excluding the hours spent by each of the committee member with his/her party. And the research by numerous constitutional wizards including Wasim Sajjad, Raza Rabbanis of this world. Mr. Akram Shaikh you might not have spent enough time to read the constitution of Pakistan (which is obvious from your arguments so far) , the time most of this committee members have spent in researching the constitutions all over the world.

Let me quote here the paragraph 13 from 18th amendment bill.

“The committee in its meeting dated 29th June, 2009, decided to invite suggestions/proposals and amendments from the public at large through the press with a cut-off date of the 1st of August 2009, which was subsequently extended by the Committee to 10th August 2009. The committee received a total number of 982 recommendations/proposals and amendments through this process.”

I am sure Mr. Akram Shaikh would not have sent a single proposal to the committee.

Summary:
So far the arguments of Mr. Shaikh had revolved around two basic points.

1. The Judiciary was not consulted when changing the procedure of appointment of judges.

2. The politicians want to destroy the independence of judiciary by having a say in the appointment of judges.

Honourable Judges sitting in te full bench must understand that both of these points are with malicious intent. There is no reason for the judiciary to be consulted directly when framing a policy or procedure. The constitution of Pakistan represents the will of people and the amendments in constitution of Pakistan are made by the parliament consisting of the representative elected by the people of Pakistan. The constitutional reforms committee in it earnest heard and reviewed 100′s of proposals , many of the members of constitutional reforms committee spent days and nights researching and ensuring the best possible procedure for the appointment of judges. The procedure described in article 175-A is a consensus procedure by all the parties and has been approved unanimously by the parliament.

The politicians of Pakistan , just like any other country, may have 100′s of drawbacks however one thing is time-tested and proven is that whenever they have embarked on weaving the dreams of prosperous future of People of Pakistan , they have always proven themselves honest and expert at it. Constitution of 1973 , Struggle against the Dictatorship , and 18th Amendment are glorious examples of their honesty. Supreme Court of Pakistan must respect the parliament and parliamentarian as much as it expects others to respect the Supreme Court and her honorable judges.

Observations from the Judges:

1. It was interesting to note that how CJ IMC was guiding Mr. Akram Shaikh to frame his arguments. At one stage CJ told him how to first focus on the separation of judiciary from the executive and then criticise article 175-A. I wish Mr. Akram Shaikh had learnt something in his college 🙂 .

2. “System bent upon committing suicide” roared Justice Ramday.
“We order for deputing a person to conduct an independent investigation into a particular case, but no one pays any heed to this”.
C’mon Justice , the appointment is the affair of executive. Please pass the orders that can be implemented : )

3. “they desire that no damage is done to democratic System” said CJ. Things happen without desire most of the time. Important thing is to make sure that institutions don’t become instruments in the hand of Army to slaughter the democratic system.

Source: Pakistan and Future

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Abdul Nishapuri

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  • Here is another funny headline by our CJ Iftikhar Chaudhry:

    Will of people is above Constitution, says SC judge
    By Nasir Iqbal
    Thursday, 03 Jun, 2010

    Chief Justice Iftikhar Mohammad Chaudhry observed that there should be no threat to the democratic system and it should be allowed to work smoothly, but he wondered about the addition of Clause 2-A to Article 6 of the Constitution. – File Photo.

    ISLAMABAD: A member of the 17-judge full court hearing petitions challenging the 18th Amendment said on Wednesday that the will of the people was above the Constitution and upholding and protecting that will was the ultimate objective of every organ and functionary of the state.

    “Even if there are deficiencies, it is for the people to point out and determine it ultimately,” Justice Jawwad S. Khawaja observed in response to arguments put forward by Advocate Mohammad Akram Shaikh, the counsel for petitioner Nadeem Ahmed.

    Advocate Shaikh said that the amendment to Article 175 (method of appointing superior court judges) under the 18th Amendment militated against the very ideals of the independence of judiciary.

    “Even we as judges of the Supreme Court are sitting here as representatives of the will of the people and only because of their will this institution was established,” Justice Khawaja observed.

    “Don’t brand politicians good or bad,” Justice Asif Saeed Khan Khosa said. Pointing towards the imposing picture of Quaid-i-Azam Mohammad Ali Jinnah hanging above the chief justice, the judge said the picture “you see was a politician who created this country and the Constitution we have now was also given by the politicians”.

    Surely parliament could make any amendment to the Constitution, Justice Khosa said. He asked the counsel to establish how Article 175-A destroyed the cherished goal of the independence of judiciary.

    Chief Justice Iftikhar Mohammad Chaudhry observed that there should be no threat to the democratic system and it should be allowed to work smoothly, but he wondered about the addition of Clause 2-A to Article 6 of the Constitution (high treason not to be validated by any court, including the Supreme Court or high court).

    The CJ said that after the July 31, 2009, verdict judges had adopted a code of conduct under which they would refrain from rendering any support to any authority that came by adopting extra-constitutional mode.

    “The judiciary has to be independent, come what may,” the chief justice observed.

    But Justice Khalilur Rehman Ramday regretted that the judiciary had rendered sacrifices, judges faced detention and hunger along with their children and had to let go numerous competent brother judges by way of the July 31 verdict (for taking oath under the PCO) only to save the democratic system. But, he said, the hands of the same judiciary were being tied.

    “Who will be responsible if the system itself is bent upon committing suicide,” Justice Ramday observed. “We give orders but no one bothers to get it implemented.”

    The judge observed that a new provision of fair trial had been added through the amendment, but “can you imagine fair trial without an honest investigation and prosecution”.

    Akram Sheikh pleaded that the 27-member Parliamentary Committee on Constitutional Reforms headed by Senator Raza Rabbani had been constituted as a follow-up of the annual speech of President Asif Ali Zardari to the joint sitting of parliament, but there was no categorical mention of amending Article 175 of the Constitution.

    Justice Nasirul Mulk, however, reminded the counsel that the Charter of Democracy signed by two major political parties had a provision for the setting up of the judicial commission and parliamentary committee for the appointment of superior court judges. Akram Sheikh argued that before bringing the 18th Amendment parliament did not bother to get input from any quarter and did not even consult the Law and Justice Commission of Pakistan or National Judicial Policy Making Committee.

    He recalled that Senator Rabbani had in 1996 presented in parliament a resolution seeking to set up a 33-member committee for sending a non-pliable judge on forced leave or home permanently if a simple majority of the committee decided to do so.

    One of the allegations against the second PPP government after its dismissal in 1996 was that it tried to militate against the judiciary, the counsel said.

    When asked why was the judiciary not declared the third pillar of the state in the Constitution, Akram Sheikh said that its role was different from the governance because it had to oversee the working of the federation and perform multiple roles like settling disputes between federating units, man and the state and the man and man, in addition to its advisory role.

    Justice Khawaja observed that for the first time in the country’s history the judiciary had demonstrated that it would not allow in future any praetorian intervention or any deviation from the Constitution. He sought the assistance of the counsel on the point whether parliament had consciously deliberated on changing the mode of appointment of judges.

    Justice Tariq Pervez said that except for the lawyer to be nominated by the Pakistan Bar Council no tenure has been fixed for any member of the judicial commission. The judge asked about the criterion for filling the vacant seat of a judge if the assembly was dissolved and new elections were three months away.

    “What will happen if there is a criminal charge against the law minister who is also member of the judicial commission,” the judge asked.

    “Suppose the term of an additional judge of a high court expires, but the assembly is not there, then what,” Justice Ramday quipped.

    http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/front-page/19-will-of-people-is-above-constitution,-says-sc-judge-360-hh-01

  • Here is another masterpiece:

    Judiciary-related matters should not be discussed in parliament: CJP

    ISLAMABAD: The Chief Justice of Pakistan (CJP) Justice Iftikhar Muhammad Chaudhry has remarked that the judiciary-related matters should not be discussed in the parliament.
    The CJP gave these remarks while presiding over a 17-member larger bench of the Supreme Court (SC) during the course of hearing of various petitions filed to challenge certain provisions of the18th amendment here Wednesday.
    “We have withdrawn all the judges from the administration and restriction has been imposed on the judges that they cannot hold the executive office. We have separated the judiciary from the executive under the judicial policy. Now, no judge can become the governor. This all has been done so that the independence of the judiciary is not affected”, he further remarked. Continuing his arguments, Akram Sheikh, the counsel for petitioner, Nadim Ahmad said that the parliament had passed the 18th amendment in haste and no debate had taken place in this respect. He contended that the judiciary should keep an eye on the federation and the provinces. The constitutional amendment had not been translated in any regional language, he pointed out.
    The court sought all the record from parliament related to the18th amendment. The Attorney General (AG) held out assurance that he would present all the record today (Thursday). The CJP observed that the Supreme Judicial Council (SJC) had made it part of its code of conduct that decision of any dictator would not be approved. The SC had rendered a clear verdict in the Sindh Bar Council case in this connection. Then what need arose to incorporate the procedure of the induction of the judges in the constitutional amendment, he inquired. The CJP remarked that the 18th amendment case would be decided on merit. There should be no threat from the judges to democracy and it would become possible only when the judiciary would be fully independent, he further added.

    http://regionaltimes.com/03jun2010/frontpagenews/judicaryt.htm