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Greater threat than floods: Pakistan’s judiciary?

The historic flooding that has ravaged Pakistan was considered for a brief period to be a grave threat to the country’s stability. Analysts were unsure if the young democratic government would be able to provide relief and reconstruction services enough to satisfy a panicking public. As the waters subsided, though, the civilian government demonstrated that it could work with the military and the international community to provide services to the people. Today, however, the government faces a possibly greater challenge: continued attacks from the nation’s judiciary.

Pakistan’s judiciary has been threatening to topple the democratically elected government in what many are calling a “coup by other means”. While unprecedented challenges to elected officials have been going on for some time, the courts appear to be determined to continue their attacks.

Since its December judgment striking down an amnesty that shielded President Asif Ali Zardari and other officials from old criminal allegations, the top court has pressed the government on corruption, in particular a dated money-laundering case against Zardari. The stakes have risen as repeated government delays have stoked frustration within the army and the political opposition. Another showdown is scheduled for Wednesday, when the court could hold the prime minister in contempt or indicate that it will reconsider Zardari’s presidential immunity from prosecution.

The standoff has cemented the Supreme Court’s position as a central player in Pakistan’s nascent democracy. But it has also highlighted questions about the solidity of that system.

The Army has largely stayed out of the affair, though as Ahmed Rashid writes for BBC, they would stand to gain the most should the courts succeed in overthrowing the government.

It would be a constitutional rather than a military coup, so that Western donors helping Pakistan with flood relief would not be unduly put off, but the army would gain even more influence if it were to happen.

The courts, for their part, are attacking the government from two flanks – the Supreme Court is threatening to disqualify President Asif Zardari more than two years since his election, and the Lahore High Court – headed by Chief Justice Khawaja Sharif, an ardent supporter of the opposition Pakistan Muslim League – Nawaz (PML-N) – has reinstated an old corruption conviction against Interior Minister Rehman Malik, despite his having been pardoned in May.

According to a growing number of voices in the legal community, the politicization of Pakistan’s courts is a growing problem that threatens the stability of the government and the legitimacy of the nation’s judiciary.

“This judge and the court have embarked upon politics,” said lawyer Khurram Latif Khosa, whose father, also a lawyer, advises Prime Minister Yousaf Raza Gillani. “The lawyers who were chanting slogans in their favor are now burning effigies of their idols.”

Mr. Khosa is not alone in his analysis. His statement echoes the sentiments of Supreme Court advocate and human rights activist Asma Jahangir who wrote in December of last year:

While, the NRO can never be defended even on the plea of keeping the system intact, the Supreme Court judgment has wider political implications. It may not, in the long run, uproot corruption from Pakistan but will make the apex court highly controversial.

Witch-hunts, rather than the impartial administration of justice, will keep the public amused. The norms of justice will be judged by the level of humiliation meted out to the wrongdoers, rather than strengthening institutions capable of protecting the rights of the people.

There is no doubt that impunity for corruption and violence under the cover of politics and religion has demoralised the people, fragmented society and taken several lives. It needs to be addressed but through consistency, without applying different standards, and by scrupulously respecting the dichotomy of powers within statecraft. In this respect the fine lines of the judgment do not bode well.

The lawyers’ movement and indeed the judiciary itself has often lamented that the theory of separation of powers between the judiciary, the legislature and the executive has not been respected. The NRO judgment has disturbed the equilibrium by creating an imbalance in favour of the judiciary.

A few months later, Ms. Jahangir’s tone turned decidedly more dire.

People will soon witness a judicial dictatorship in the country if the judiciary continuously moves ahead in its present direction and then we would forget military and political dictatorships, HRCP chairperson Asma Jahangir said on Wednesday.

By April, even opposition politicians the PML-N were raising concerns that the courts were over-stepping their constitutional role to topple the government.

Raising concerns about the conspiracy, PML-N spokesman and senior leader Ahsan Iqbal has said that a third force wants a clash between the judiciary and parliament.

Iqbal did not name the third force precisely in the same fashion, as Pakistan President Asif Ali Zardari has repeatedly done in recent months, The News reports.

According to another PML-N leader, the Army is trying to pitch the judiciary against parliament and for this purpose it is using certain elements in the media.

Recently, Pakistan’s Chief Justice issued a statement condemning those who are speaking out against perceived judicial overreach.

Ironically, the Chief Justice who is leading this assault on the government, Iftikhar Chaudhry, was himself the victim of extra-constitutional removal by then President and Chief of Army Staff Gen. Pervez Musharraf. Justice Chaudhry was released from detention by Pakistan’s newly elected government in 2008, and reinstated to the Supreme Court in 2009.

Some believe that during the year between Justice Chaudhry’s release from detention and his reinstatement, the judge grew to resent the new government and has taken it upon himself to bring a myriad of legal challenges to its authority. In fact, many of the cases before the court were not brought by any individual or official agency, but were taken up “suo moto” – by the choosing of the Chief Justice, himself.

Regardless of what is motivating the incessant attacks by members of Pakistan’s judiciary, the right to decide the nation’s leadership rests solely with the people of Pakistan. Military generals, religious clerics, and judicial appointees all have a role to play in the success of the nation. But each must work within the bounds of the constitution and the democratic process. Whether led by the military, the Taliban, or an army in black robes, a coup is a coup – and any coup will be devastating to Pakistan’s future.

Source: Americans for Democracy in Pakistan

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Ahsan Abbas Shah

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  • Right Under Pakistan’s Present Judiciary: REFERENCE: Pakistan Country Reports on Human Rights Practices Bureau of Democracy, Human Rights, and Labor 2002 March 31, 2003
    http://www.state.gov/g/drl/rls/hrrpt/2002/18314.htm
    Asif Zardari, husband of former Prime Minister Benazir Bhutto, has waited for more than 5 years for the start of his trial on charges of killing his brother-in-law, Murtaza Bhutto in 1997. In April 1999, Zardari was tried and convicted separately on corruption charges. In December 2001 Zardari received bail but was not released; the NAB ordered his continued detention on suspicion of corruption. Despite government claims that NAB cases would be pursued independent of an individual?s political affiliation, NAB has taken a selective approach to anti-corruption efforts (see Section 1.d.). The Musharraf Government in 1999 created by ordinance the NAB and special accountability courts to try corruption cases (see Section 1.d.). The NAB was created in part to deal with as much as $4 billion (PKR 208 billion) that was estimated to be owed to the country’s banks (all of which were state-owned at the time; several have since been privatized) by debtors, primarily from among the wealthy elite. The Musharraf Government stated that it would not target genuine business failures or small defaulters and does not appear to have done so. The NAB was given broad powers to prosecute corruption cases, and the accountability courts were expected to try such cases within 30 days. As originally promulgated, the ordinance prohibited courts from granting bail and gave the NAB chairman sole power to decide if and when to release detainees. The ordinance also allowed those suspected by the State Bank of Pakistan of defaulting on government loans or of corrupt practices to be detained for 15 days without charge (renewable with judicial concurrence) and, prior to being charged, did not allow access to counsel. In accountability cases, there was a presumption of guilt, and conviction under the ordinance can result in 14 years’ imprisonment, fines, and confiscation of property. Those convicted also originally were disqualified from running for office or holding office for 10 years. In August 2000, the Government announced that persons with a court conviction would be barred from holding party office. This provision was used during the general election to prevent certain candidates from entering the contest.

  • Right Under Pakistan’s Present Judiciary:REFERENCE: Special Corruption Courts in Asia
    http://www.u4.no/helpdesk/helpdesk/queries/query19.cfm

    National Level: The Musharraf Government in 1999 created by Ordinance the NAB (National Accountability Bureau) and special accountability courts to try exclusively corruption cases. These Courts are part of the national judicial system and operate under the Chief Justices of the High Courts of Pakistan. For up-to-date statistics on the number and type of cases files, convicted and acquitted, please refer to the Appendix. The NAB was created in part to deal with as much as $4 billion (PKR 208 billion) that was estimated to be owed to the country’s banks (all of which were state-owned at the time; several have since been privatized) by debtors, primarily from among the wealthy elite. The Musharraf Government stated that it would not target genuine business failures or small defaulters and does not appear to have done so. The NAB was given broad powers to prosecute corruption cases, and the accountability courts were expected to try such cases within 30 days. As originally promulgated, the ordinance prohibited courts from granting bail and gave the NAB chairman sole power to decide if and when to release detainees. The ordinance also allowed those suspected by the State Bank of Pakistan of defaulting on government loans or of corrupt practices to be detained for 15 days without charge (renewable with judicial concurrence) and, prior to being charged, did not allow access to counsel. In accountability cases, there was a presumption of guilt, and conviction under the ordinance can result in 14 years’ imprisonment, fines, and confiscation of property. Originally, those convicted were set to disqualify from running for office or holding office for 10 years. In August 2000, the Government announced that persons with a court conviction would be barred from holding party office. This provision was applied during the general election to prevent certain candidates from entering the contest.

  • Right Under Pakistan’s Present Judiciary:REFERENCE: Human Rights Developments http://www.hrw.org/legacy/wr2k1/asia/pakistan.html

    The new government’s principal vehicle for detaining former officials and party leaders, however, was the National Accountability Ordinance, a law ostensibly created to bring corrupt officials to account. The ordinance confers sweeping powers of arrest, investigation, and prosecution in a single institution, the National Accountability Bureau (NAB), and permits detainees to be held for up to ninety days without being brought before a court. The law was later amended to facilitate conviction by shifting the burden of proof during trial from the prosecution to the defense. There were persistent reports of ill treatment in NAB custody, particularly in the case of high profile detainees who were held early in the year in Attock Fort. Persons convicted under the ordinance were prohibited from holding public office for a period of twenty-one years. An amendment to the Political Parties Act in August also barred anyone with a court conviction from holding party office. The combined effect of these acts, as they were applied, was to eliminate the existing leadership of the major political parties. While administration officials said that parties would be allowed to participate in future elections to the Senate and national and provincial assemblies, local government elections, scheduled to be held in December, were to be conducted on a non-party basis. The Musharraf government also suppressed political activity by conducting raids on party offices, preventing political rallies from being held, and lodging criminal cases against rally organizers under laws governing sedition and the Maintenance of Public Order (MPO) Ordinance. The sedition law, Section 124-A of the Pakistan Penal Code, criminalizes speech that “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Central or Provincial Government established by law.” Section 16 of the Maintenance of Public Order Ordinance prohibits speech that “causes or is likely to cause fear or alarm to the public” or any section thereof, or which “furthers or is likely to further any activity prejudicial to public safety or the maintenance of public order.” Rana Sanaullah Khan, a member of the suspended Punjab provincial assembly from Sharif’s Pakistan Muslim League (PML), was arrested in Faisalabad on November 28, 1999. The arrest came after he criticized the army at a meeting of former legislators and urged his colleagues to launch a protest movement against the military government. He was tortured while in custody, and criminal charges were registered against him under the sedition law and MPO. On March 15, the government formally curtailed freedom of association and assembly with an order banning public rallies, demonstrations, and strikes. The order’s enforcement against a procession from Lahore to Peshawar that Nawaz Sharif’s wife, Kulsoom Nawaz, had planned to lead, resulted in the arrests of at least 165 PML leaders and activists. On September 21 the ban was also invoked against 250 members of the hardline Sunni Muslim group, Sipah-e-Sahaba, who had planned a march to celebrate a religious anniversary.

  • REFERENCE: Judicial Coup in Pakistan – Once a democratic champion, the Chief Justice now undermines the elected government. by DAVID B. RIVKIN JR. AND LEE A. CASEY FEBRUARY 23, 2010, 7:51 P.M. ET http://online.wsj.com/article/SB10001424052748704057604575080593268166402.html Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan andGeorge H.W. Bush administrations. When U.S. President Barack Obama sharply challenged a recent Supreme Court decision in his State of the Union address, prompting a soto voce rejoinder from Justice Samuel Alito, nobody was concerned that the contretemps would spark a blood feud between the judiciary and the executive. The notion that judges could or would work to undermine a sitting U.S. president is fundamentally alien to America’s constitutional system and political culture. Unfortunately, this is not the case in Pakistan.Supreme Court Chief Justice Iftikhar Mohammed Chaudhry, the country’s erstwhile hero, is the leading culprit in an unfolding constitutional drama. It was Mr. Chaudhry’s dismissal by then-President Pervez Musharraf in 2007 that triggered street protests by lawyers and judges under the twin banners of democracy and judicial independence. This effort eventually led to Mr. Musharraf’s resignation in 2008. Yet it is now Mr. Chaudhry himself who is violating those principles, having evidently embarked on a campaign to undermine and perhaps even oust President Asif Ali Zardari.

    Any involvement in politics by a sitting judge, not to mention a chief justice, is utterly inconsistent with an independent judiciary’s proper role. What is even worse, Chief Justice Chaudhry has been using the court to advance his anti-Zardari campaign. Two recent court actions are emblematic of this effort. The first is a decision by the Supreme Court, announced and effective last December, to overturn the “National Reconciliation Ordinance.” The NRO, which was decreed in October 2007, granted amnesty to more than 8,000 members from all political parties who had been accused of corruption in the media and some of whom had pending indictments. While some of these people are probably corrupt, many are not and, in any case, politically inspired prosecutions have long been a bane of Pakistan’s democracy. The decree is similar to actions taken by many other fledgling democracies, such as post-apartheid South Africa, to promote national reconciliation. It was negotiated with the assistance of the United States and was a key element in Pakistan’s transition from a military dictatorship to democracy. Chief Justice Chaudhry’s decision to overturn the NRO, opening the door to prosecute President Zardari and all members of his cabinet, was bad enough. But the way he did it was even worse. Much to the dismay of many of the brave lawyers who took to the streets to defend the court’s integrity last year, Mr. Chaudhry’s anti-NRO opinion also blessed a highly troubling article of Pakistan’s Constitution—Article 62. This Article, written in 1985, declared that members of parliament are disqualified from serving if they are not of “good character,” if they violate “Islamic injunctions,” do not practice “teachings and practices, obligatory duties prescribed by Islam,” and if they are not “sagacious, righteous and non-profligate.” For non-Muslims, the Article requires that they have “a good moral reputation.”

    Putting aside the fact that Article 62 was promulgated by Pakistan’s then ruling military dictator, General Zia ul-Haq, relying on religion-based standards as “Islamic injunctions” or inherently subjective criteria as “good moral reputation” thrusts thePakistani Supreme Court into an essentially religious domain, not unlike Iranian Sharia-based courts. This behavior is profoundly ill-suited for any secular court. While Article 62 was not formally repealed, it was discredited and in effect, a dead letter. The fact that the petitioner in the NRO case sought only to challenge the decree based on the nondiscrimination clause of the Pakistani Constitution and did not mention Article 62 makes the court’s invocation of it even more repugnant. Meanwhile, the decision’s lengthy recitations of religious literature and poetry, rather than reliance on legal precedent, further pulls the judiciary from its proper constitutional moorings. The second anti-Zardari effort occurred just a few days ago, when the court blocked a slate of the president’s judicial appointments. The court’s three-Justice panel justified the move by alleging the president failed to “consult” with Mr. Chaudhry. This constitutional excuse has never been used before. It is well-known in Islamabad that Mr. Zardari’s real sin was political, as he dared to appoint people unacceptable to the chief justice. Since consultation is not approval, Mr. Chaudhry’s position appears to be legally untenable. Yet Mr. Zardari, faced with demonstrations and media attacks, let Mr. Chaudhry choose a Supreme Court justice.

    There is no doubt that the chief justice is more popular these days than the president, who has been weakened by the split in the political coalition which brought down Mr. Musharraf. Former Prime Minister Nawaz Sharif is now a leading opponent of the regime. There is a strong sense among the Pakistani elites that Justice Chaudhry has become Mr. Sharif’s key ally. The fact that Mr. Chaudhry was a victim of an improper effort by former President Musharraf to replace him with a more pliant judge makes his current posture all the more deplorable. His conduct has led some of his erstwhile allies to criticize him and speak of the danger to democracy posted by judicial meddling in politics. The stakes are stark indeed. If Mr. Chaudhry succeeds in ousting Mr. Zardari, Pakistan’s fledgling democracy would be undermined and the judiciary’s own legitimacy would be irrevocably damaged. Rule by unaccountable judges is no better than rule by the generals.

  • Right Under Pakistan’s Present Judiciary: Ayaz Amir wrote….. That was the mother of all sins. So how strange and dripping with irony this omission: about that seminal event, which set in train all the sorrows the nation was to reap thereafter, their lordships in their “historic” judgment have nothing to say. For this of course we must understand the problems of the past. For in 2000, a few months after the mother of all sins, when this matter came before the then Supreme Court headed by Chief Justice Irshad Hasan Khan, the nation witnessed another of those electrifying performances which have made “the doctrine of necessity” so famous in our land, the Supreme Court validating Musharraf’s coup and, what’s more, allowing him a grace period of three years to hold elections. In its generosity, it also gave Musharraf the authority to amend the Constitution for purposes of holding elections. So just as the Anwarul Haq Supreme Court gave a clean chit to General Ziaul Haq’s coup of 1977, another Supreme Court signed a papal bull conferring legitimacy on another illegitimate offspring of our political adventures. Now for an inconvenient fact. On the bench headed by Chief Justice Irshad Hasan Khan there sat an up-and-coming jurist, stern of eye and distinguished of look, by the name of Iftikhar Muhammad Chaudhry. Yes, he was among the illustrious upholders of the law and the Constitution who bathed Musharraf and his generals in holy water. —- Talking of Musharraf’s military rule, what was the role of our present lordships when Triple One Brigade, our highest constitutional authority, reinterpreted the Constitution once again on the long afternoon of Oct 12, 1999? A few judges — Chief Justice Saiduzzaman Siddiqui comes to mind — did not take oath under the Provisional Constitution Order (PCO) issued two months later. But if imperfect memory serves, all of their present lordships, at one time or the other, took oath under the PCO. Not only that, some of them were on the bench which validated Musharraf’s takeover. A few, including My Lord the Chief Justice, were on the bench which validated Musharraf’s takeover for the second time in the Zafar Ali Shah case (2005). Of course, we must let bygones be bygones and deal with the present. But then this principle should be for everyone. We should not be raising monuments to selective memory or selective condemnation. If the PCO of 2007 was such a bad idea, in what category should we place the PCO of 2000? And if in this Turkish bath all are like the emperor without his clothes, the least this should inculcate is a sense of humility. REFERENCE: Writing of history or triumph of amnesia? Friday, August 07, 2009 By Ayaz Amir http://www.thenews.com.pk/print1.asp?id=191800 The road to hell — and similar destinations Islamabad diary Friday, January 01, 2010 Ayaz Amir http://thenews.com.pk/daily_detail.asp?id=216323

  • Where were Pristine Principles of Justice and Quran and Hadith Quotation [which the present Judiciary and Jang Group exploit] in 2006 while judging the Treason Case against Makhdoom Javed Hashmi – PML – N.

    ISLAMABAD: Supreme Court has dismissed three appeals filed by PML -N president Makhdoom Javed Hashmi against his trial in jail and for his release on bail and suspension of jail term. A two members bench of apex court comprising chief justice Iftikhar Muhammad Chaudhry and justice Muhammad Nawaz Abbasi heard the case. Chief Justice observed that judiciary is independent and the supreme can in no way be pressurized in any decision. ” We will give decision according to law of the land. We have to see the law. No one will be allowed to politicize the case. There is ambiguity in the arguments offered by Akram Sheikh, counsel of Makhdoom Javed Hashmi. It is in the knowledge of those who hold press conference that their statements would reach the military men as well. Earlier giving arguments, Akram Sheikh said federal government had lodged no complaint. Is there any law in place in the country under which holding the press conference in cafeteria is a crime. The apex court has taken thousands of suo motu actions on social issues. Can suo motu action not be taken with reference to an individual whose fundamental rights have been breached, he contended. Chief Justice observed that the court has to see if the appeal can be declared maintainable or otherwise. The High court verdict has also been reviewed.

    Akram Sheikh told Makhdoom Javed Hashmi is in jail since October, 29, 2003 who was convicted and sentenced on April, 12, 2004. Cafeteria is part of parliament and it is legally protected. Some one had talked in upper house and action was initiated against him. Chief Justice remarked speaking in the upper house and holding press conference are two different things. Does it fall under the powers of speaker that the case should have been registered on his complaint or otherwise. Akram Sheikh submitted that national assembly had tried to explain about the constitution but no mention was made about cafeteria in the constitution. NA speaker can register case through his secretary. But he did not do so. It was a strange press conference where in no reporter was present. Defending the government, special prosecutor general Munir Ahmad argued high court had taken no wrong decision. The man who had registered FIR had entered into cafeteria with the special permission and card. 14 witnesses were presented in the trial court who proved 7 charges correct which were leveled against the accused. The trial court had awarded punishment after it. The high court had also declared the verdict of subordinate court correct . No defence witness appeared from the accused side in the court. The appeal filed by Malik Qayyum against trial in jail was also rejected. REFERENCE: SC dismisses 3 appeals of Javed Hashmi for his release on bail Tuesday October 10, 2006 (0139 PST) http://www.paktribune.com/news/index.shtml?156686

  • Where were Pristine Principles of Justice and Quran and Hadith Quotation [which the present Judiciary and Jang Group exploit] in 2006 while judging the Treason Case against Makhdoom Javed Hashmi – PML – N.

    ISLAMABAD, Oct 9: Former prime minister Nawaz Sharif on Monday paid rich tribute to jailed party leader Makhdoom Javed Hashmi, saying that his name would become synonymous with courage and sacrifice in the country’s history. The PML-N leader’s statement was issued from London and released by the party’s secretariat here after Mr Hashmi’s bail appeal was rejected by the Supreme Court. The PML-N chief said that the entire nation saluted him for remaining steadfast on principles. Injustices done to Mr Hashmi were evident, even to the ‘outside world’ but “unfortunately it is not obvious to our higher judiciary”, he said. “Spirits of political workers, who have dedicated their lives for the supremacy of the constitution and democracy, cannot be subdued by such decisions,” the statement quoted him as saying. Mr Sharif said that Javed Hashmi and others, who had refused to bow before the dictatorship of Gen Musharraf, were assets for the party and society. He expressed the hope that democracy would prevail over forces of military dictatorship because of the sacrifices rendered by Mr Hashmi, adding that Pakistan would soon attain a respectable position in the comity of nations.

    Javed Hashmi, PML’s acting president, is in detention for the past three years on charges of treason. Commenting on rejection of Mr Hashmi’s appeal by the Supreme Court, PML-N information secretary Ahsan Iqbal in a separate statement said that unfortunately this had shown that the judiciary had double standards. “We welcome the release of PPP leader Yusuf Raza Gillani by the judiciary, who was subjected to victimisation by the Musharraf regime, (but) in Mr Hashmi’s case the criteria changed,” he said. “Mr Hashmi is a prisoner of conscience and the whole nation feels proud of him. Such decisions will not break the resolve of the PML-N but further strengthen the will of its leaders and workers to continue the struggle for victory of constitutions and democracy in the country. This has once again demonstrated that the Musharraf regime still fears the PML-N and considers it (the main threat),” he said. REFERENCE: Nawaz criticises judiciary for rejecting Hashmi’s appeal By Our Staff Reporter October 10, 2006 Tuesday Ramazan 16, 1427 http://www.dawn.com/2006/10/10/nat2.htm

  • Where were Pristine Principles of Justice and Quran and Hadith Quotation [which the present Judiciary and Jang Group exploit] in 2006 while judging the Treason Case against Makhdoom Javed Hashmi – PML – N.

    ISLAMABAD, Dec 5: The District and Sessions Judge, Islamabad, Chaudhry Asad Raza, dismissed on Friday the bail application of Alliance for Restoration of Democracy President Makhdoom Javed Hashmi and fixed Monday for regular hearing of a mutiny case against him. “By going through the record of the case, it seems the accused, prima facie has committed an offence which falls under section 124 A (Sedition) of the Pakistan Penal Code (PPC) and, therefore, cannot be granted bail,” observed the judge in his 11-page verdict. The judge said the letter the accused read out and distributed among press reporters and others seemed to be carried by him for the first time. “We will definitely challenge the decision before the high court and will avail all judicial avenues available to us to get a bail in favour of Javed Hashmi,” defence counsel Latif Khosa and Syed Zafar Ali Shah told Dawn.

    The district and sessions judge also mentioned the statements of the witnesses which were produced by the prosecution and observed that an attempt was made to create a feeling to abet mutiny against the high command of the armed forces. Two witnesses, Captain Jehanzeb Zahoor and Captain Nadir Saleem, in their statements before the magistrate had stated that they felt insulted while listening to the letter being read out which instigated them for mutiny against the high command of the armed forces. Two media persons, one from daily Islam and other from the government news agency APP, who had covered the press conference, had also recorded their statements.

    According to the verdict, the statement of the witnesses also showed that this letter could cause treason among the army personnel and create public disturbance, hatred against the Constitution, subvert laws of the state and disturb tranquillity in society. The issue as to from where the letter came and its veracity would also be looked into during the regular hearing of this case. About the application of Mr Hashmi, arrested on Oct 29 on the charges of issuing statements against the army, regarding the provision of A-Class in the jail, the court directed the Adyala jail authority to submit a detailed report in this regard on Dec 8 when Mr Hashmi would be produced before the court on the expiry of his judicial remand. The court also might give its decision on his application on the same date. Later, Mr Zafar Ali Shah, talking to reporters, said the decision was expected and accused the government of political victimization. He recalled that special prosecutor Munir Bhatti in the challan he presented before the court had also involved other parliamentarians in the case but only Mr Hashmi was being victimised. REFERENCE: Hashmi’s bail plea rejected By Nasir Iqbal December 6, 2003 Saturday Shawwal 11, 1424 http://www.dawn.com/2003/12/06/top13.htm

  • Where were Pristine Principles of Justice and Quran and Hadith Quotation [which the present Judiciary and Jang Group exploit] in 2006 while judging the Treason Case against Makhdoom Javed Hashmi – PML – N.

    MULTAN: MMA central leader Liaqat Baloch has said MMA does not welcome government step on late release of Makhdoom Javed Hashmi enabling him to attend marriage of his daughter and demanded case be withdrawn and PML-N acting president be set free. He said this while talking to the journalists on the eve of marriage of Makhdoom Javed Hashmi`s daughter marriage. Baloch held NA speaker is custodian of house and he should have taken timely step. He did not do so nor he issued production order. Case should be withdrawn against Makhdoom Javed Hashmi and he should be released. Hamza Shahbaz son of PML-N president Shahbaz Sharif was also present on occasion but he did not talk to the journalists. JI leader Farid Ahmad Paracha said responsibility rests with the PPP-P to play its role for formation of grand alliance. The impression about deal between government and PPP-P should be dispelled. Opposition should jointly wage struggle against the dictatorship. Transparent elections can not take place under general Musharraf. Resignations from MMA are not hurdle on the way to formation of grand alliance. He told MMA supreme council will take final decision on resignations. Time has come collective campaign should be launched and resignations be tendered, he stressed. PPP-P leader Fakhar Imam said Benazir has to decide about attending the All Parties Conference (APC) convened by Nawaz Sharif or otherwise. Former president Rafiq Tarar said general Musharraf is playing the role of enemy of country. REFERENCE: Late release of Javed Hashmi on the eve of his daughter`s marriage, an unwelcome gesture: Liaqat Sunday December 24, 2006 (0215 PST) http://www.paktribune.com/news/index.shtml?164043

  • International Crisis Group Report on Pakistani Judiciary: REFERENCE: Reforming the Judiciary in Pakistan Asia Report N°160 16 October 2008 http://www.crisisgroup.org/home/index.cfm?id=5728&l=1

    Pakistan’s higher judiciary has repeatedly validated military interventions and sanctioned constitutional amendments that have fundamentally altered the legal and political system. Attempting to explain its failure to protect the constitution through the “doctrine of state necessity”, the judiciary has relied on the dubious argument that the army’s intervention could be justified because of the pressing need for political stability. This doctrine was first developed in three cases in 1955 in the Federal Court, as the Supreme Court was then known, to justify the extra-constitutional dismissal of the legislature by a titular head of state.11 Drawing on the precedent of those decisions, the Supreme Court validated General Mohammed Ayub Khan’s 1958 declaration of martial law, General Mohammad Ziaul Haq’s 1977 coup and General Pervez Musharraf’s 1999 coup. While these Supreme Court judgments gave military regimes the trappings of legality, repeated military interventions have hampered the growth of civilian institutions and moderate political parties and forces. The centralisation of power in a Punjabi-dominated army has also strained centre-province relations in a multi-ethnic, multi-regional state, even as the military’s use of religion to justify political control has undermined the security of Pakistani citizens, particularly women and religious and sectarian minorities.

  • International Crisis Group Report on Pakistani Judiciary: VALIDATING MILITARY INTERVENTIONS – REFERENCE: Reforming the Judiciary in Pakistan Asia Report N°160 16 October 2008 http://www.crisisgroup.org/home/index.cfm?id=5728&l=1 Some courageous judges, such as Supreme Court Justices Dorab Patel and Fakhruddin G. Ibrahim,15 have refused to sanctify authoritarian interventions, and preferred to resign rather than undermine constitutionalism and the rule of law. By legitimising military rule and intervention, most have, however, abdicated their duty to uphold the law. Following Musharraf’s coup, the Supreme Court was purged of judges who might have opposed the military’s unconstitutional assumption of power. Judges were required to take an oath to Musharraf’s Provisional Constitutional Order (PCO), 1999, superseding the oath they had sworn at their induction to the 1973 constitution.16 On 26 January 2000, thirteen judges, including Chief Justice Saiduzzaman Siddiqui and four other Supreme Court justices, were removed for refusing to do so. The reconstituted Supreme Court was composed of judges who willingly accepted the military’s directions. They included Iftikhar Muhammad Chaudhry, who was elevated to the Court in January 2000 and appointed chief justice by Musharraf in 2005. The judges took their oath of office under the PCO 1999, which omits the reference to their duty to “protect, uphold and defend” the 1973 constitution. On 21 May 2000, this bench upheld the legality of Musharraf’s coup under the doctrine of state necessity. The Supreme Court also authorised the army chief to amend the constitution, albeit within the bounds of its federal, democratic and parliamentary character. The Court also concluded that those judges who had been sacked following the PCO oath had lost any right to challenge their removal due to the passage of time. By placing personal survival over the rule of law and constitutionalism, these judges allowed another dicta tor to implement sweeping changes that expanded the military’s political powers and hold over the state.

  • International Crisis Group Report on Pakistani Judiciary: REFERENCE: Reforming the Judiciary in Pakistan Asia Report N°160 16 October 2008 http://www.crisisgroup.org/home/index.cfm?id=5728&l=1
    Like Zia’s Eighth Amendment, Musharraf’s Seventeenth Amendment, passed by a rubber-stamp parliament in December 2003, enshrined all executive orders and changes made under military rule.21 The Seventeenth Amendment gave the president, the titular head of state, the power to dismiss elected governments and parliament and also transferred from the prime minister, the head of government, key appointment powers to the president including appointments of governors, the three service chiefs and the chief justice of the Supreme Court. Musharraf’s constitutional distortions weakened civilian institutions. By sidelining secular democratic forces, the military government also enabled right-wing religious parties to fill the vacuum. In dismissing legal challenges to Seventeenth Amendment, the Supreme Court shirked its responsibility to protect constitutional rule.

  • REFERENCE: Pakistan’s Chief Justice Takes on its Political Class By RANIA ABOUZEID / ISLAMABAD Saturday, Mar. 27, 2010 http://www.time.com/time/world/article/0,8599,1975646,00.html To his supporters, and there are many, Pakistan’s Supreme Court Chief Justice Iftikhar Chaudhry is a hero, a man of honor who stood up for an independent judiciary and defied the diktats of former President Pervez Musharraf — and who continues to hold the political establishment accountable. To his detractors, however, Chaudhry is an activist jurist with unbridled powers, a populist with grandiose political ambitions. In a country where politics can get very personal, the Chief Justice’s relationships with the pillars of civilian and military power, President Asif Ali Zardari and Army Chief of Staff General Ashfaq Kayani respectively, could be important in shaping Pakistan’s transition from de facto military rule to civilian democracy. And those relationships are likely to be tested in the tussle over a package of wide-ranging constitutional reforms that was due to be introduced to parliament on Friday, whose purpose is to reverse changes made by previous military rulers, trim the power of the presidency, and alter the procedure for Supreme Court appointments. The bill would take Supreme Court appointments out of the hands of the president, who now makes nominations after consulting with the chief justice, and place them before a government legal committee that also includes several justices. Unlike the present system, judges would have to be confirmed by a parliamentary vote. The proposed reforms have widened the rift between Chaudhry and the government that has grown since the Chief Justice last year struck down amnesty decrees by Musharraf that protected many senior figures in government — including Zardari himself once out of office — from prosecution on corruption charges. And some saw the Chief Justice’s hand in the eleventh-hour stalling of parliamentary debate on the package on Friday by opposition leader Nawaz Sharif, who objected to proposals on the selection of judges. Sharif’s opposition, some senior politicians suggest, results from being pressured by Chaudhry, who is allegedly opposed to having his own power in the selection of judges curtailed. “The chief justice threatened [Sharif]. He said he’d open up all cases against him,” a senior leader of the ruling Pakistan People’s Party said on condition of anonymity. “He’s become an absolute dictator.”

    On the contrary, says a legal expert at the Supreme Court and Chaudhry associate speaking on condition of anonymity, the conflict is caused by the “government [wanting] a chief justice and court which is compliant, not independent.” The standoff over how judges are selected could have far-reaching implications in a political order feeling its way towards democracy, with the different branches of government are “attempting to first stretch the bounds of their authority and second, to learn how to work with each other,” says Samina Ahmed, Pakistan director for the International Crisis Group, a global policy-research center. “The problem in Pakistan has [historically] been with the military’s intervention, transitions have been disrupted, and the judiciary in the past has supported every military intervention.” But as the two civilian branches of government tussle over their powers, neither appears to have clear backing from the military, whose preferences are often decisive. Still, some Pakistani media commentators suggest that the generals may be colluding with the judges to limit the power of government, already groaning under the weight of the president’s sagging popularity. They point to a stalled but soon-to-be-reopened Supreme Court case that accuses intelligence agencies of using the “war on terror” as a pretext to secretly detain thousands of citizens suspected of links to Baluchi separatists and other radical groups. The local Dawn newspaper reported last month that Supreme Court Justice Javed Iqbal said that the court “would not like to create the impression that it was out to destroy or tarnish the image of intelligence agencies” with regard to these cases. Chaudhry had in 2007 begun to investigate the issue of Pakistanis alleged to have disappeared into secret custody before he was deposed by Musharraf, and had ordered members of the security forces to produce several of the missing in court. Now, some media commentators are suggesting that Chaudhry is retreating from that fight. Chaudhry’s supporters deny the claim, and say that the court will not shy away from prosecuting any security officials who have broken the law. Whatever the outcome of the particular battles over constitutional powers and various court cases, what remains clear is that Justice Chaudhry, while holding an office that is ostensibly above politics, will remain in the thick of it.

  • REFERENCE: PAKISTAN: International Commission of Jurists http://www.icj.org/IMG/pdf/pakistan.pdf
    The independence of the judiciary was largely undermined by the order by General Musharraf in January 2000 that Pakistani judges take a fresh oath of loyalty to his administration. In May 2000, the Supreme Court, reconstituted after the dismissal of six judges who refused the oath, upheld General Musharraf’s military coup of 1999, under the doctrine of state necessity. Pakistan is a constitutional republic. On 15 October 1999, the Government promulgated the Provisional Constitution Order, (PCO), No.1 of 1999, overriding the 1973 Constitution of the Islamic Republic of Pakistan, previously suspended following the 12 October 1999 military coup led by General Pervez Musharraf. The PCO provided for the suspension of the National Assembly, the Provincial Assemblies and the Senate and mandated General Musharraf to serve as the new Chief Executive. On 20 June 2001, General Musharraf became President of Pakistan after dismissing the incumbent President, Muhammad Rafiq Tarar. On 12 May 2000, the Supreme Court validated the October 1999 coup under the doctrine of state necessity. However, the Court ordered that the Government hold national and provincial elections by 12 October 2002. In response, President Musharraf presented a four-phase programme aimed at returning the country to democratic rule, with local elections to be held from December 2000 until August 2001. Subsequently, a series of local elections were held in December 2000, March 2001, May 2001 and July-August 2001. However, political parties were prohibited from participating in the contests and party leaders were disqualified from holding political office.

  • SHC dismisses Musharraf treason plea Updated at: 1050 PST, Thursday, October 14, 2010 http://www.thenews.com.pk/latest-news/2908.htm KARACHI: Sindh High Court (SHC) discharged a petition regarding high treason charges against former President Gen (rtd) Pervez Musharraf and his associates, Geo News reported Thursday. The petitioner has been directed to go to Supreme Court (SC). Petitioner Maulvi Iqbal Hyder filed the plea, which said Pervez Musharraf, resorting to extra-constitutional measure, imposed emergency on November 3, 2007 and put over 60 judges of higher judiciary under house arrest with all rampant willful decisions.

    The Attorney General of the time Malik Qayyum and Sharifud Din Pirzada assisted him; thus, all the three committed high treason. As no later assemblies gave constitutional protection to these measures; accordingly, the court was pleaded to take action against all these defendants under Article-6 of the Constitution. The court, dismissing the plea, said the matter has come under hearing before the apex court; hence, any high court ruling in this regard is uncalled for.

  • Pakistan’s emboldened judiciary threatens government stability By Karin Brulliard Washington Post Foreign Service Wednesday, October 13, 2010
    http://www.washingtonpost.com/wp-dyn/content/article/2010/10/12/AR2010101205922.html

    ISLAMABAD, PAKISTAN – After this country’s then-military dictator deposed the Supreme Court chief justice in 2007, a boisterous movement of protesting lawyers took to the streets and ushered in the return of democracy. Now that same court may be poised to bring about a premature end to Pakistan’s elected government.

    Since its December judgment striking down an amnesty that shielded President Asif Ali Zardari and other officials from old criminal allegations, the top court has pressed the government on corruption, in particular a dated money-laundering case against Zardari. The stakes have risen as repeated government delays have stoked frustration within the army and the political opposition. Another showdown is scheduled for Wednesday, when the court could hold the prime minister in contempt or indicate that it will reconsider Zardari’s presidential immunity from prosecution.

    The standoff has cemented the Supreme Court’s position as a central player in Pakistan’s nascent democracy. But it has also highlighted questions about the solidity of that system.

    To many here, the drama represents progress: In a nation with a history of military coups, an independent judiciary has emerged as the major threat to the unpopular government. To others, including some government critics and lawyers’ movement stalwarts, the court and its chief justice are on a warpath against Zardari that threatens a fragile democracy that needs an elected government – even a bad one – to complete a term in office.

    “This judge and the court have embarked upon politics,” said lawyer Khurram Latif Khosa, whose father, also a lawyer, advises Prime Minister Yousaf Raza Gillani. “The lawyers who were chanting slogans in their favor are now burning effigies of their idols.”

    Pakistan’s stability is vital to the United States, which depends on this South Asian nation to support the war in Afghanistan and combat a vigorous Taliban insurgency on its own soil. U.S. officials express concern that the government’s foot-dragging is weakening its credibility and distracting it from urgent issues such as the fallout from recent flooding and a collapsing economy.

    Some analysts say the standoff is unlikely to imperil the democratic order. They call it just another act in the performance art of Pakistani politics, in which protagonists jockey for power while the masses await leadership that will improve their lives. The government insists that the cases against Zardari were politically motivated and that a hostile media are sensationalizing the court’s wrangling.

    From 2007 to 2009, scores of lawyers rallied for the restoration of Chief Justice Iftikhar Mohammed Chaudhry. He was removed by military dictator Pervez Musharraf but not restored by Zardari’s civilian government until several months into its administration.

    The lawyers’ movement dissolved after it achieved its goal, and the lower judiciary is still plagued by complaints about corruption, sluggishness and bias. But the Supreme Court has surfaced as one of Pakistan’s most respected institutions. After decades of deference to presidents, prime ministers and, especially, military rulers, it has doggedly pursued cases involving the Zardari government.

    “That the problems of governance were not highlighted in the past seems to suggest that the court is more aggressive on a democratic government than it was on an authoritarian government,” said Munir Malik, a former president of the Supreme Court Bar Association. “But that’s the way to move forward.”

    The court has also gained popularity by regularly taking up the grievances of ordinary citizens, often after Chaudhry has read about them in the newspaper. Small and thickly mustached, Chaudhry ranks in polls as one of the nation’s most esteemed figures.

    “He is the only person standing firm against the unlawful practices of the government,” said Ibrahim Rasheed, among a group of lawyers sipping tea recently at the Islamabad bar association office.

    On Monday, after rejecting a government plea to postpone Wednesday’s hearing, Chaudhry and his colleagues moved briskly through the morning docket. One case involved a man who said policies at the federal medical institute where he worked had unfairly blocked his promotion, while another dealt with “lady health workers” allegedly being paid less than minimum wage by a provincial health department.

    Later, the judges harangued the Islamabad police chief over a failure to arrest a suspect in the months-old slaying of a former attorney general – an “eminent man,” in the words of one justice, Khalil Ramday.

    Court detractors, who include Pakistan’s top human rights lawyer, point to the court’s cap on the price of sugar and the nullification of a carbon-tax law as crowd-pleasing but overreaching rulings.

    The court has not taken kindly to such grumbling. Last week, after a federal minister accused it of activism and interference, the court released a statement criticizing “unwarranted and uncalled for comments” on its judgments.

    Some legal experts say they are disturbed that the court rarely pursues matters involving non-ruling-party politicians or the military establishment. Under Musharraf, Chaudhry was a vocal advocate for cases involving suspects who disappeared, allegedly at the hands of Pakistan’s intelligence services. The cases have made little progress since last year.

    “The court can be faulted not for what it is doing, but for the omissions,” said Babar Sattar, a constitutional expert who supports the court’s efforts to pursue government corruption cases.

    The high court has focused on 13-year-old allegations that Zardari, the widower of former prime minister Benazir Bhutto, stashed $60 million in kickbacks in Swiss bank accounts. Swiss authorities closed the case in 2008, after a 2007 Pakistani amnesty deal.

    When the Supreme Court nullified that amnesty, it instructed the government to write a letter informing the Swiss authorities about the development. A Swiss prosecutor has since noted publicly that Zardari has presidential immunity, and many Pakistani legal experts say the government could calm the judiciary by simply sending the letter.

    The government says it should not have to do so.

    Legal experts say that defiance could prompt the court to hold the prime minister or the law minister in contempt or trigger it to review the constitutionality of Zardari’s immunity. Either could threaten the Zardari administration, endangering the coalition it depends on to govern and – in an extreme scenario – spurring the military to seize control.

    Special correspondent Shaiq Hussain contributed to this report.

  • Foolish thinking ! Dont cut your feets by urself,differirntiate between friends and enemies, and donot be your own enemies

  • On the contrary, says a legal expert at the Supreme Court and Chaudhry associate speaking on condition of anonymity, the conflict is caused by the “government [wanting] a chief justice and court which is compliant, not independent.” The standoff over how judges are selected could have far-reaching implications in a political order feeling its way towards democracy, with the different branches of government are “attempting to first stretch the bounds of their authority and second, to learn how to work with each other,” says Samina Ahmed, Pakistan director for the International Crisis Group, a global policy-research center. “The problem in Pakistan has [historically] been with the military’s intervention, transitions have been disrupted, and the judiciary in the past has supported every military intervention.” But as the two civilian branches of government tussle over their powers, neither appears to have clear backing from the military, whose preferences are often decisive. Still, some Pakistani media commentators suggest that the generals may be colluding with the judges to limit the power of government, already groaning under the weight of the president’s sagging popularity. They point to a stalled but soon-to-be-reopened Supreme Court case that accuses intelligence agencies of using the “war on terror” as a pretext to secretly detain thousands of citizens suspected of links to Baluchi separatists and other radical groups. The local Dawn newspaper reported last month that Supreme Court Justice Javed Iqbal said that the court “would not like to create the impression that it was out to destroy or tarnish the image of intelligence agencies” with regard to these cases. Chaudhry had in 2007 begun to investigate the issue of Pakistanis alleged to have disappeared into secret custody before he was deposed by Musharraf, and had ordered members of the security forces to produce several of the missing in court. Now, some media commentators are suggesting that Chaudhry is retreating from that fight. Chaudhry’s supporters deny the claim, and say that the court will not shy away from prosecuting any security officials who have broken the law. Whatever the outcome of the particular battles over constitutional powers and various court cases, what remains clear is that Justice Chaudhry, while holding an office that is ostensibly above politics, will remain in the thick of it.