Original Articles

In the Supreme Court: At least one sane voice might be heard! – by pejamistri

At least “My Lord” in his full majesty allowed Mr. Raza Rabbani to present his arguments in this case, though he will have to wait for his turn.

On the arguments being presented by Mr. Akram Shaikh , let me tell you a little anecdote.  When I was a student in the college, Nawaz Sharif the then Chief Minister of Punjab , put a ban on wearing “Chappals”  and “Chadar” , the big shawl popular in South Punjab particularly in winter. The students were enraged and started boycotting the classes. In my college, our Principal made a committee of two teachers to hear the students. I presented the case of students in front of that committee , and argued that the college is being run like a textile mill , the teachers are acting like foremans and managers of the mill and treating the students like “Mazdoor” , and so on and so on.  My teacher (Rizwi Sahib) heard me with patience and at the end said to me that he partially agrees with me about the textile mill analogy in that my speech was not that of enlightened student leader but it was more like a textile “Mazdoor Rahnama”.

Listening the Akram Shaikh yesterday I was reminded of Rizwi Sahib’s remark. Mr. Akram Shaikh’s arguments yesterday were not that of a constitutional lawyer discussing the delicate points of constitutional matters. It was that of a “Mazdoor Rahnama” pleading his case in front of textile mill management. The unfortunate thing was that most of the  listeners to his arguments on their Majesties seats were not the honorable judges of the supreme court but the middle management of the mill.

Now let me come to the points Akram Shaikh raised so far.

1. Media/Textile Policy and the Judges Appointment:  I was dumb founded when Akram Shaikh said when government makes the textile policy or media policy , government consults the relevant people , whereas in this case Government did not consult the judiciary… C’mon Akram Shaikh , don’t equate the honorable judges of Supreme Court with the Textile mill owners and Media tycoons.  The constitutional reforms committee held the longest discussion on the point of judges appointments and they had one of the hottest debates on these points. The members of the constitutional committee did exhaustive studies of the judicial appointments world over. They sought proposals from all the citizens of Pakistan and there were many people who had provided them proposals. You know the difference between the textile policy and judicial appointments.  If your point is that CJ was not “formally” contacted to ask for his opinion on the appointment of judges then I am afraid your wish is far fetched. Akram Shaikh was unable to answer the question posed by Justice Tassaduq Husain Jilani

“Was judiciary in Britain asked to give opinion before any change was effected in the modus operandi of the judges” appointment? Or, was Parliament made part of the process?”

Although the same question can be asked in case of United States.

2. March 09 2007: As a I said earlier that the people who keep comparing the “benevolent dictatorship” with “worst democracy” are below the human intellect. Mr. Akram Shaikh keep giving references to March 09, 2007.  The judiciary is not being ambushed as it was done on that fateful day. The 18th amendment is not the PCO of a mad dictator , it took 2 years and combined will of all the parties in Parliament to reach to a consensus document. Mr. Akram Shaikh should come out of his misconceived notions and preconceived ideas.

3. Objective Resolution: Some of the curses of military dictators are hard to get rid off. The article 2-A is one of those curses by the mad dictator General Zia. And as aptly put by Justice Saqib Nisar

“Why was not it considered at that time and why it was brought into the Constitution by a martial law administrator through insertion of Article 2-A!” he questioned. He asked him how 1973 Constitution could be interpreted on the basis of Artcle 2-A.”

There is no doubt in their infinite wisdom the forefathers of 1973 constitution decided not to make the objective resolution part of the constitution and now we understand why they decided so. The Akram Shaikh’s of this world use it for their nefarious designs.

Observations from the Judges:

From the observations the shape of the bench is now becoming little bit clearer. The first day on CJ and Justice Ramday were vocal. However now Mr. Justice Saqib Nisar snd Mr. Justice Asif Saeed Khosa and Mr. Justice Tassaduq Hussain and last but not the least Justice Javaid Iqbal are also showing their presence.

While giving his remarks, Justice Javed Iqbal said that this isnot a constituent assembly. He added that by keeping in view the doctrine of electoral mandate they have to observe whether this assembly can bring large-scale changes in constitution.

Constituent vs Non-Constituent Assembly? I don’t know why certain judges are always obsessed with the argument of constituent and non-constituent assembly. This question has been discussed several times. It is interesting to note that the question is always raised to discredit the sitting Parliament. One must also note that this question has not been raised by the partitioner either.

Source: Pakistan and Future

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4 Comments

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  • @drtahir did you actually read this ‘crap?’

    I found this article quite reflective and informative though. This also shows the hypocrisy of our (predominantly right wing) judges in the supreme court, who according to their own convenience, engage in useless debates, for example, the distinction between constituent and non-constituent assembly.

    Thank you pejamistri for writing this series!

  • @Akhtar
    I say it is crap because the arguements are futile. It is futile to comment on proceedings of Supreme court. We should not comment as we are not the witness to the proceedings. We dont know the perspective of the said comment which you mentioned. Let the supreme court decide about the case. Present supreme court is not a puppet supreme court. Present supreme court is the saviour of 17 crore Pakistanis. Whatever they will decide, it will be in the best interest of Pakistan.
    So if anybody says anything against Honb’le supreme court of Pakistan is basically saying against people of Pakistan. The Supreme court is exposing the corruption–thatz why jialas like mr.peja etc are against it.

  • Comment received by email:

    By Fawad Manzoor:

    I am pasting some of the info that is placed on the WIKIPEDIA regarding Iftikhar Choudhry CJ of General Pervaiz Musharraf.

    Mr. PCO On April 13, 2005, in the “Judgment on 17th Amendment and President’s Uniform Case”, Justice Iftikhar Chaudhry was one of 5 Supreme Court judges who dismissed all petitions challenging President Musharraf’s constitutional amendments. In a wide ranging judgment they declared that the Legal Framework Order (LFO) instituted by General Musharraf after his suspension of the constitution, the 17th amendment which gave this constitutional backing, and the two offices bill which allowed Musharraf to retain his military uniform whilst being President were all legal because the Parliament had approved the amendments.

    Oath on PCO 1999

    In January 2000, Justice Iftikhar Chaudhry then a serving judge on the Balochistan High Court (BHC) was one of the first judges to take an oath on the PCO. This allowed him to be elevated to the Supreme Court to fill one of the vacancies left by the 11 judges who had resigned in protest at taking this oath.

    Supreme Court Validation of General Musharraf’s Military Coup

    In May 2000 Justice Iftikhar Chaudhry was one of the 12 judges of the Supreme Court bench which reviewed and endorsed the legality of General Musharraf’s military coup d’état. It also allowed General Musharraf to make amendments to the Constitution of Pakistan to fulfill his purpose.

    Dismissal of petition challenging Legal Framework Order (LFO) 2002

    Just prior to the holding of the October 2002 General Elections a five member bench the Supreme Court of Pakistan that Justice Iftikhar Chaudhry was a member of dismissed a petition which challenged the promulgation of the Legal Framework Order(LFO)2002 by Chief Executive and President General Pervez Musharraf. Under the LFO General Musharraf announced amendments to the constitution which restored executive powers to the President, including the right to dismiss the National Assembly, appoint Governors and Service Chiefs and created a National Security Council (NSC).

    Judgement on 17th Amendment and President’s Uniform Case 2005

    On April 13, 2005, in the “Judgment on 17th Amendment and President’s Uniform Case”, Justice Iftikhar Chaudhry was one of 5 Supreme Court judges who dismissed all petitions challenging President Musharraf’s consistitutional amendments. In a wide ranging judgement they declared that the Legal Framework Order (LFO) instituted by General Musharraf after his suspension of the constitution, the 17th amendment which gave this constitutional backing, and the two offices bill which allowed Musharraf to retain his military uniform whilst being President were all legal because the Parliament had approved the amendments.[18]

    Son Admission In FIA

    Ansar Abbasi brought forth allegations against Chief Justice Iftikhar Choudhray for gross misconduct in 2002, accusing him for admitting his Son Dr. Arsalan to FIA undermining all merits.

    Confusion between Dejure & Defacto

    There have been several instances where certain people have marked and/or referred to the current Chief Justice of Pakistan Abdul Hameed Dogar as the Defacto Chief Justice of Pakistan, and referred to Iftikhar Muhammad Chaudhry as the legal and/or current Chief Justice of Pakistan.

    Justice Dogar was to the position of Chief Justice of Pakistan on 3 November 2007 and he was offered to take an oath on the Provisional Constitution Order (PCO) which replaced the Constitution like Iftikhar Muhammad Chaudhry who took a similar oath on the PCO in 2000 and was elevated to the Chief Justice position. The oaths taken by Chief Justice Iftikhar however, were accorded constitutional status under the 17th Constitutional Amendment passed by parliament of Pakistan on 29 December 2004. Such ratification is yet to be accorded to oaths taken by Justice Dogar.

    As with Iftikhar Muhammad Chaudhry, Justice Dogar later took a fresh oath according to article 178 of the Constitution on 15 November 2007, thus making him the legal and dejure Chief Justice of Pakistan. Under the Constitution of the Islamic Republic of Pakistan a state of emergency can only be declared by the president. Instead of the president the emergency was declared by the army chief, the actions of Gen. Musharraf were illegal.

    On 30 July 2009, a 14 member bench of the Supreme Court of Pakistan ruled that all the judges who had taken an oath under the Provisional Constitution Order (PCO), were removed from office and are now facing the Supreme Judicial Council. Two days later an ordinance signed by President Asif Ali Zardari officially removed all PCO judges from office.

    I love it now when this PCO CJ talks about power of parliament to amend constitution. Where was the basic structure of the constitution when he allowed Musharraf to be president in uniform according to the amendment by the parliament. This two face CJ is now hell bent on trying to destroy what people of country have fought for. This mullah n black robe is only causing hurdles for the elected government.

    by

    Fawad Manzoor