Original Articles

Military judiciary nexus is a threat to parliament – by Junaid Qaiser


Good news for Pakistan’s undemocratic forces and bad news for Pakistan’s Parliament and its supremacy: Government accepts judiciary’s recommendations. We are continuously moving towards judicial dictatorship.

Pakistan army has always played an integral role in Pakistan government and politics since 1948. It has virtually remained as the most powerful party that has seized power every now and then in the name of stabilizing Pakistan. Although Pakistan was founded as a democracy after the partition of the Indian sub-continent, the army has remained one of the country’s most powerful institutions. These political invasions of pak army’s into politics cost lots of damges to the political and social body of Pakistan. The take over by the military four time in Pakistan’s political checkered history and the determination of unrepresentative rulers to stay in power as long as possible by manipulating political parties and institution has caused institutional Decay. The military stands established as the real origin of power in the state structure, even after the lifting of the martial law in 1985 and even after musharaf’s regime.The concept of troika, sharing power between the president, the prime minister and chief of army staff , though clearly an extra constitutional development become a fact of life in Pakistani polity after the death of General Ziaul Haq. The role of the military in the affairs of politics and governance is now beyond dispute and open secret.

Military rulers have always tried to reorient the Pakistani parliamentary democratic system toward some sort of unparliamentary form of government, with the help of judiciary. General Ayub Khan to General Pervaiz Musharaf all dictators changed the parliamentary form of democracy, which unanimous passed 1973 constitution amply reflect. After the seventy one war the democratic setup was restored only to be cut short in 1977 after a coup which saw the end of another democratically elected Government and the Judicial murder of Quaid e Awam Zulfikar Ali Bhutto, the Pakistani Premier. General Zia ul-Haq ruled as a dictator virtually unopposed until his death in 1988. Despite the exit of the army from mainstream politics, the political muscle of the military was everpresent. The last and latest political invasion was made by current President, General Pervez Musharraf who came to power in a bloodless coup in October 1999 overthrowing the last democratically elected government led by Nawaz Sharif.

All dictators tried to undermine parliament supremacy with the blessing of judiciary. Since 1985 we have seen clear attempts by two military rulers Zialul Haq and Musharraf to alter the fundamental nature of the parliamentary structure of the constitution. Unfortunately our judiciary always supported military dictatorship and their so called guided democracy. If we examine why democracy has not taken root and what have been the obstacles in the way of strengthening democratic norms and institution.We see power full alliance of military, media, judiciary and religious parties against peoples representative institution.

The judiciary in Pakistan unfortunately, has not payed it’s role in upholding constitution and democracy> The supreme court of Pakistan has provided a legal and constitutional cover to all dictators from Ghulam Muhammad to General Pervaiz Musharraf. In Pakistan’s recent constitutional history General Musharraf’s Refrendum was up held by the supreme court on 12 May, 2002, the supreme court legitimized his action by ordering th government to hold general elections by October 2002.

The supreme court in 2002 , declared the General Musharaf’s extra constitutional coup d’ eta of 12 October 1999 was validated on the basis of doctrine of state necessity .these judgments undermined the supramacy of parliament .Parliament now once again surrender it’s supremacy in front of Judiciary. It seems the judiciary assumed an supervisory position over the elected government and judge it’s performance according to it’s own wish and interest. General Musharaf Strengthen his position by issuing a Legal Frame Work Order(LFO) on 21 August 2001, which so called legitimized his presidency,Thanks to independent free judiciary…?General Musharaf said the constitutional amendments would not require validation from parliament “I don’t need the assemblies approval, if any one has any objection to this, he better go to the supreme court, which has mandated us to amend the constitution.”

The original spirit of the constitution recognized the sovereignty of parliament and peoples representatives. in my view after the acceptance of supreme courts unconstitutional; demands, the supremacy of parliament further undermined and diminished.

Now it seems that after media now judiciary, is bent upon pitting against the elected civilian president of Pakistan. In fact, judiciary declared mutiny against civilian elected govt and state,as President of Pakistan is symbol of state.In present circumstances few internal forces would like to see confrontation between state institutions that could only cause irreparable loss to the democracy. Due to apex court’s behavior , attitude, mindset and it’s one sided so called activism against PPP-led government, we are continuously moving towards judicial dictatorship.

Pakistan Peoples Party always supported a free and independant judiciary, which is indispensible for parliamentary democracy , to work within the ambit of law and constitution. Unfortunately, the judiciary has with rare exception been facilitating the military regimes, the acceptance of the doctrine of necessity has on critical occasion undermined the judiciary from working as the guardian of the constitution and protector of the constitution plus supremacy of parliament. Many observer and jurists, identified judiciary as power broker.It has been facilitator under the cover of the law of necessity , infect judiciary has been a part of undemocratic forces.
Chief Justice of Pakistan(CJP), Iftikhar Muhammed Chaudhary, took oath as CJP under musharaf ‘s (PCO), and legitimized the military coup and authorized musharaf to amend the constitution according to his wish and desire…Now every one is asking this valid question that how can judge be independent and pro democratic if he ever willing to facilitate the military ruler?

It is also high time to revisit and reexamine the allegations contained within the Presidential reference which was filed against the CJ in 2007? The text of the reference is available on the internet for all to read. Please see it. I was shocked at the type of allegations of corruption listed against the CJ. It was more shocking that the reference was later on just tossed aside and dismissed on a technicality, with no attempt to look into the serious charges of corruption listed within it. So we have here a CJP who has been accused of numerous cases of corruption, with not the slightest attempt made by the court to investigate the allegations. Why?

http://www.dawn.com/2007/03/21/nat2.htm

Keeping in view the lego-constitutional position, Prime Minister Yousuf Raza Gillani has advised President of Pakistan Asif Ali Zardari to request Chief Justice of Pakistan (CJP) Iftikhar Muhammad Chaudhry to reconsider his recommendation of December 19, 2009 and had advised the president that in view of the legal position and the guidelines laid down in the Al Jehad Trust case PLD 1996 SC 324, primacy should always be given to the senior most judges in matters relating to elevation of high court judge in the Supreme Court unless found to be unsuitable by the Chief Justice of Pakistan for such elevation. But the Chief Justice of Pakistan defied Presidential orders through a suo moto action against the Presidential notification for appointment of certain judges, If we examine present situation than it seems, politics is dominating in this whole episode, rather than constitution. And now every one is understanding that chief justice is acting like political player toeing establishment’s line.

Same PCO judge allowed Gen Pervaiz Musharaf to rule country for three years and amend constitution according to his wishes and interests. All his main supporters Aitzaz Ahsen, Ali Ahmad kurd, Justice Tariq Mahmood , Asma jehangir and Abid Hussain Minto criticizing CJ political posture and attitude ??According to Article 206 of the constitution, the judge stood as “retired” after refusing to accept the decision of elevation.These judges declare mutiny against democratically elected civilian Government.
Ali Ahmed Kurd clearly stated that the principle had been set by the SC verdict in the Al-Jihad Trust case that the senior most judge of a high court would be elevated to the Supreme Court,He termed the president’s decision was in accordance with the constitution.

The Pakistan Peoples Party has held Cheif justice Iftikhar chaudhary responsible for the present judicial crises.PPP’s Punjab president Rana Aftab Ahmed clearly stated that

“Heavens would not have fallen had the CJP waited till Monday to take up the matter of elevation of Justice Khwaja Sharif to the Supreme Court and appointment of Justice Saqib Nisar as acting chief justice of the Lahore High Court,”

“Perhaps it is the first example in the country’s history that a CJP held court in the evening to suspend a presidential order.This is against the spirit of independent judiciary. The CJ should respect the mandate of people. If he does not want to allow the democratic system to run it is better for him to assume offices of the president and the prime minister.”

Mr Aftab alleged the CJ’s decision to suspend the president’s order was a move to destabilise the country. “Please stop playing with the nation and don’t take steps which result in disintegration of Pakistan,” he said.

PPP leader Prof Mian Ijazul Hasan said: “The CJP has become a party against the PPP government and is acting like an SHO.” He said: “Actions of the CJP must be impartial.”

The current propaganda campaign by some section of media and one sided judicial against PPP led government and especially against President Asif Ali Zardari has not only developed a sympathetic feeling and increased popularity, plus it also developed hate against establishment and center in Smaller provinces..

Advisor to Sindh Chief Minister Ms Sharmila Farooqui said on Monday that undemocratic forces have hijacked lawyers in a bid to destabilize the popular democratic government of PPP and harm the country.

“It is the PPP government that supported lawyers’ movement and restored democracy in the country and in this cause, Shaheed Benazir Bhutto sacrificed her life, she said in reaction to Nawaz Sharif’s statement in which he said that Zardari is threat to democracy. She said that President Asif Ali Zardari elevated judges as per the Constitution and law and he is also respecting all laws in true spirit. He is the man who is taking all major political parties on board by following reconciliation policy which is history in the country. Shamila also flayed miscreants and anti-state elements, who torched the banners of PPP and portraits of Shaheed Benazir Bhutto and called them self-seekers, wishful dreamers and opportunists, adding these people are creating chaos in the country in a bid to get lust of power but they would never succeed in getting their nefarious designs.

She said that the PPP has come to power through the blood of Shaheed Benazir Bhutto and many other party workers. It has become very popular among the people due to dynamic leadership of President Asif Ali Zardari.

“The government is taking hectic steps to provide independence to judiciary besides making all other institutions of the country strong and stable. It is resolving public and political problems on priority basis so as to boost national harmony and restore durable peace in the country”, she said. Sharmila said that the PPP is the party of downtrodden people and is striving hard for the solution to the people’s problem. She warned the undemocratic forces and anti-state elements to stop hatching conspiracies against President Asif Ali Zardari and his government, otherwise they would have to face a great destruction in recent future.

Even high caliber people like Ali Ahmad Kurd and Asma jehangir could not understand that what chaudhary iftkhar hopes to gain by setting asides the seniority principle and appointing the less senior justice Saqib Nisar to supreme court instead of Lahore High court cheif justice Khawaja Sharif. Ali Ahmad Kurd and the chairperson of Pakistan Human Rights Commission Asma Jehangir has spoken loud against the chief Justice of Pakistan Iftikhar Muhammad Chaudhry and his court.

’عدالتی آمریت کی طرف بڑھ رہے ہیں‘
ریاض سہیل
بی بی سی اردو ڈاٹ کام، کراچی
آخری وقت اشاعت: جمعرات, 18 فروری, 2010, 19:39 GMT 00:39 PST
http://www.bbc.co.uk/urdu/pakistan/2010/02/100217_asma_judges_mah.shtml

پاکستان میں انسانی حقوق کمیشن کی سربراہ عاصمہ جہانگیر نے کہا ہے کہ وہ ملک میں عدلیہ کی آمریت آتے دیکھ رہی ہیں جسے کے بعد لوگ سیاسی آمریت بھی بھول جائیں گے۔
انہوں نے اعلان کیا کہ انسانی حقوق کا کمیشن آئین میں اصلاحات کے لیے ایک چارٹر تیار کر رہا ہے جس میں یہ مطالبہ کیا جائے گا کہ اعلیٰ عدالتوں میں جج بننے والوں کے بارے میں عوام کو ان کی پروفیشنل زندگی کے بارے میں آگاہ ہونا چاہیئے اور اس چارٹر پر وہ عوام کی رائے لینے کے لیے مہم چلائیں گے۔
عاصمہ جہانگیر کا کہنا تھا ’میں نے عدالتی آمریت دیکھی ہے ہم اس طرف جا رہے ہیں وہ ایسا سخت وقت ہوگا کہ عوام سیاسی آمریت کو بھول جائیں گے یہ رویہ رکھنا کہ ہمارے منہ سے جو بھی لفظ نکلے اور اسے فوری پورا کیا جائے ورنہ کالے کوٹ والے آپ کو ٹھیک کردیں گے یہ ایک آزاد اور غیر جانبدار عدلیہ کو زیب نہیں دیتا‘۔

Advocate Athar Minallah, who acted as the spokesperson of the chief justice during the two years long lawyers struggle also expressed his frustration and said that the development was infact a gift to the non democratic forces and to those who were sitting on the fence and would like to see confrontation between state institutions that could only cause irreparable loss to the country.

Al Ahmad Kurd expressed disappointment over the events and deplored that it appeared as Justice Khawaja had become the most important individual in the country.

“We the people of the Pakistan want to see constitution, democracy, parliament as well as the judiciary flourished in the country,” he said adding the seniority principle settled in the 1996 Al-Jihad Trust should be honoured at all cost.

Eminent constitutional expert Fakhruddin G Ibrahim was also of the view that it would always be good that senior judge must come to the Supreme Court asking what was wrong if the senior judge was elevated.

“Do not leave such matters on discretion but always respect the seniority principle,” he said.
It is unfortunate that once again Judiciary pitted against Pakistan’s biggest federal democratic party,PPP. Establishment headed by military undermined the supremacy of peoples representative institute parliament and now judiciary, by using the so called judicial activism to undermine the sovereignty of parliament. Such sort of dictatorial mindset would be very dangerous for federation, democracy and ultimately country’s survival.

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  • Extensions do not need govt’s approval: Army Sunday, February 21, 2010
    ISPR clarifies only promotions require ratification By Ahmad Noorani
    http://www.thenews.com.pk/top_story_detail.asp?Id=27383

    ISLAMABAD: As promotions of senior officials in the Army are becoming the centre of focus in the national politics, the Pakistan Army has officially clarified that extension in services of lieutenant generals is purely the prerogative of the Army chief and does not need the federal government’s approval.

    Director-General Inter Services Public Relation (ISPR) Maj-Gen Athar Abbas told The News that the COAS can extend the service of any serving lieutenant-general without any ratification from the federal government. “The cases of promotion are sent to the federal government for approval, but, according to rules, there is no need to get approval in case of extension in service of a lieutenant-general,” the Army spokesman said.

    This issue is being considered very important because the extension in service of any of the lieutenant generals retiring this year would have significant impact on the present seniority list.

    Lt-Gen Ahsan Azhar Hayat, Lt-Gen Tanvir Tahir, Lt-Gen Mohammad Ashraf Saleem and Lt-Gen Ahmad Shuja Pasha are retiring in March this year; Lt-Gen Ijaz Ahmad Baksh and Lt-Gen Nadeem Ahmed in May; and Lt-Gen Masood Aslam, Lt-Gen Shahid Iqbal, Lt-Gen Zahid Hussain and Lt-Gen Mohammad Asghar are retiring in October this year.

    The ISPR chief’s statement has also raised question marks on some news reports that a summary for the extension in services of some top Army generals is being or has been sent to the Prime Minister Secretariat through the Ministry of Defence.

    It has also been reported that Lt-Gen Masood Aslam, Corps Commander Peshawar, was given extension last year by the COAS without any approval from the federal government.

    The second most important issue is the appointment of CJCSC which would definitely have an impact on the appointment of COAS. This appointment will be made six weeks prior to the appointment of the Army chief (if the PPP government does not extend the service of General Ashfaq Parvez Kayani who is retiring on November 28, 2010).

    The incumbent CJCSC General, Tariq Majeed, will retire on October 8, 2010. Lt-Gen (retd) Hamid Nawaz told The News that after creation of this office some thirty years back, this position was given to the services chiefs in rotation. However, during the tenures of Gen Zia and Gen Musharraf this criteria was not followed and this office remained with the Pakistan Army.

    Lt-General Hamid Nawaz was of the view that this time the position should be offered to some top official of the Pak Navy or the PAF keeping in view the tradition of democratic governments in the past.

    This issue is being considered very important as this position could be used to manipulate the appointment of the COAS. If a junior officer is pushed up, others may be forced to retire, thus creating space for the desired officer, many analysts think.

    According to Lt-Gen (retd) Hamid, a major-general is retired on reaching the age of 57 while a lieutenant general is retired either on reaching the age of 58 or completing the four-year tenure, whichever comes first. He explained that if a major-general is promoted as lieutenant general at the age of 56 he will be retired after two years on becoming 58 and if he was promoted as lieutenant general at the age 52 he will stand retired after four years at the age of 56.

    Hamid said that the COAS is always made form the armoured, artillery or infantry corps of the Pakistan Army and lieutenant-generals from the engineering or services corps are not considered.

    Following this principle and considering all lieutenant-generals who will retire this year, the seniority list will be as follows on November 28, 2010 (the date Gen Kayani will retire):

    1- Lt-Gen Khalid Shameem Wynne (retiring on March 8, 2011)

    2- Lt-Gen Muhammad Yousaf (retiring on March 8, 2011)

    3- Lt-Gen Syed Absar Hussain (retiring on March 8, 2011—never commanded any core)

    4- Lt-Gen Javed Zia (retiring on Sep 21, 2011—never commanded any core)

    5- Lt-Gen Shujaat Zamir Dar (retiring on Sep 21, 2011—never commanded any core)

    6- Lt-Gen Mohsin Kamal (retiring on Sep 21, 2011óhe has opted for a office job because of health issues)

    7- Lt-Gen Jamil Haider (retiring on Sep 21, 2011 ñnever commanded any core)

    8- Lt-Gen Nadeem Taj (retiring on Sep 21, 2011)

    In case ISI chief General Pasha is given extension by the COAS, he will be on the 12th position and Chief of General Staff Lt-Gen Mustafa Khan will be on number 13 on the seniority list.

    According to Gen Hamid, for being a suitable candidate to become COAS, command of a corps is almost a mandatory condition. Some experts say that the present seniority list is also the result of tactical and strategically planned promotions and appointments by ex-Army chief and military dictator General Pervez Musharraf.

    These experts said that during Kayani’s tenure as COAS, appointments and promotions were made on merit. At the same time, they fear that any mistake by the political rulers of the country may lead to handing over the command of the Pakistan Army to someone very close to Musharraf.

    These experts also say that while making recommendations for the next COAS, the issue of illegal allotment of agricultural farmhouse adjacent to that of former prime minister Shaukat Aziz at Chak Shahzad, could also be considered by the relevant influential circles.

    These experts say that in fact the equally important appointment will be that of CJCSC. If he is taken from the Pakistan Air Force or the Pakistan Navy as per the democratic tradition, issues could be resolved amicably. Otherwise, if some junior-lieutenant general is promoted as general to make him the CJCSC, those senior to him will have to resign keeping in view the Army norms and that could possibly open a Pandora’s box which will pave the way for political appointments.

    General Aslam Baig was of the view that the outgoing COAS sends a list of five senior lieutenant-generals to the federal government four months prior to his retirement, and the government can appoint anyone from this list keeping in view the criteria and cannot go beyond this list.

    However, Lt Gen (retd) Hamid Nawaz was of the view that the federal government had full powers only in case of appointment of the COAS, and it could appoint any of the senior lieutenant generals for the position.

  • Kayani gives one more extension Sunday, February 21, 2010 By Umar Cheema
    http://www.thenews.com.pk/top_story_detail.asp?Id=27384

    ISLAMABAD: Chief of the Army Staff General Ashfaq Parvez Kayani, who previously extended the tenure of the corps commander, Peshawar, has now granted a one-year extension to another lieutenant general, as the DG ISI is the third in a row who is likely to be its recipient, all in a space of six months.

    Defence Minister Ahmed Mukhtar confirmed to The News that he and Prime Minister Gilani had been intimated about the extension to the general serving with the UN. The minister was reluctant to discuss the nitty-gritty terming it a sensitive issue.

    Lt-Gen Sikandar Afzal has received a one-year extension that will come into effect from March 1, the day he will retire from service. He is currently abroad serving on deputation with the United Nations Peace Mission. After commanding the peace troops in Liberia, he is now believed to be stationed in New York, United Nations’ headquarters. His official engagement abroad has been cited a reason for extension in service, a senior Army official privy to the development said.

    The Army chief previously granted extension to the Corps Commander Peshawar, Lt-Gen Masood Alam, in November 2009. Sikandar is now second in the row and the DG ISI Ahmad Shuja Pasha retiring on March 18 is all set to receive one-year extension in no time.

    The extension in lieutenant general’s service was made the prerogative of the Army chief during Gen Zia-ul-Haq’s time when he was COAS-president.

    In Benazir Bhutto’s 2nd term in office, the issue again cropped up with the prime minister wanted to reclaim the lost authority of her office. But General Kakar had told Benazir Bhutto that the generals seeking extension would be running around the politicians in case the authority to do so was rested with the prime minister/president. Gen Kakar finally succeeded in retaining the authority of granting extension.

    However, Lt-Gen (retd) Hamid Nawaz, former secretary defence, said that the extension requires approval from the federal government and cited the example of extension to Lt-Gen Kidwai. “Granting extension is considered the prerogative of the Army chief but he sends a summary to the federal government that is rarely objected to,” he said. Same kind of views was echoed by former ISI head, Lt-Gen (retd) Hamid Gul. Another former secretary defence, Kamran Rasool, who is the only civilian, headed this ministry, when contacted, said no extension was granted during his time hence he was not aware of the rules about it.

  • Govt offers Kayani two-year extension Sunday, February 14, 2010 By Absar Alam
    http://thenews.jang.com.pk/top_story_detail.asp?Id=27249

    ISLAMABAD: The government has asked General Ashfaq Parvez Kayani to accept an extension in his tenure as Chief of Army Staff for another two years. The verbal offer was made to sound out General Kayani whether he would agree to or turn it down.

    The move has been made to ensure continuity in Pakistan’s policy on the war on terror and it also has a nod from Washington as the Army has achieved remarkable successes in the war on terror under General Kayani’s command.

    General Kayani has not yet given his consent and is considering this offer, it was learnt.

    The offer of extension has come at a time when battle lines for a second round have been drawn between the government and the judiciary. It was learnt that the Army has communicated its decision to all stakeholders that it would prefer not to be seen taking sides.

    According to the sources, the extension in service cases of Chief of Army Staff General Kayani, Chief of General Staff Lt-Gen Muhammad Mustafa Khan, and DG ISI Lt-Gen Ahmad Shuja Pasha are ready to be sent to the prime minister and the president for approval.

    The ministry formed the recommendations on the basis of a consensus that emerged within Pakistan and outside after military’s successes in Swat, South Waziristan and other Fata areas.

    Although, the DG ISI has already given his consent to accept the extension, the cases of General Kayani and Lt-Gen Mustafa are still pending. Knowledgeable sources claim that General Mustafa, who retires in October this year, will accept the extension if only General Kayani decided to stay. Washington, which has already given an extension to its Centcom Chief General David Petraeus, has supported this move by Islamabad as it believes that such an extension would ensure continuity in Pakistan’s policy towards the war on terror.

    The decision is linked to the resolution of the ongoing confrontation between the judiciary and the government and the constitutional package that would ensure the supremacy of parliament vis-i-vis the president. The problem with Pindi establishment is that Washington is not comfortable with the perception of Zardari government’s governance style which is being equated with the corrupt Karzai administration in Kabul.

    “The US is not comfortable working with two corrupt administrations in two neighbouring countries which are at war with terrorists,” the sources said. The sources claimed that the establishment had no axe to grind and was making sincere but quiet efforts to play the role of a firefighter to end the confrontation between the executive and the judiciary.