Original Articles

Constitutional amendments can’t be challenged in Supreme Court: Aitzaz Ahsan

Former president of Supreme Court Bar Association (SCBA) Chaudhry Aitzaz Ahsan has said amending the constitution is the right of the parliament and the constitutional amendment can not be challenged in a court.

People of Pakistan are currently witnessing an interesting but very important row between two groups of lawyers. The first group, which supports the supremacy of democracy and the parliament, is represented by Aitzaz Ahzan, Ali Ahmed Kurd, Justice Tariq Mehmood and others.

The other group which supports the supremacy of bureaucrat sittings in the Supreme Court and is also known for its right wing (pro-Taliban, pro-Jamaat-e-Islami and pro-Imran Khan tendencies) is represented by Akram Sheikh (of Jamaat-e-Islami), Hamid Khan (of Imran Khan’s PTI) and Abdul Hafeez Pirzada (of ‘the establishment’).

The row is about the 18th Amendment Law that whether or not the Parliament has the authority to amend the basic features of the Constitution. The two groups have a conflicting view over a point whether or not any court of law can be moved in case any such amendment occurs. (Source)

Key arguments

Aitzaz Ahsan opined that the Parliament was empowered to change the fundamentals of the Constitution and the apex court could not nullify the Constitutional amendment, while Akram Sheikh had filed a petition on behalf of Advocate Nadeem Ahmed in the SC challenging the establishment of the judicial commission through the 18th Amendment. The SCBA’s former president said formula of judges’ appointment does not harm the independence of the judiciary, as the names of the judges will be proposed not by the parliamentary committee but by the Judicial Commission headed by the CJP.

Aitzaz said the apex court can only give suggestions regarding the amendments but cannot amend the constitution by its own. Ahsan argued, according to the Article-238, 239 neither any Constitutional amendment can be challenged in any court nor the powers of the SC to hear petition. It was 2005 Lawyers Forum case verdict, where the court ruled that the SC could not overrule the Constitutional amendment, Aitzaz said, adding the LFO was challenged in that case. Zafar Ali Shah is the only case, which sets limits for the constitutional amendments but these restrictions were meant not for the Parliament but for a single person i.e. Gen (Retd.) Pervez Musharraf.

Hamid Khan contradicted with Ahsan’s arguments and said that such judicial commission did not exist anywhere in the world, adding that if Indian Supreme Court could nullify Indian Parliament’s amendment then why not Supreme Court of Pakistan could not do so. He said that within a week SCBA would file a petition in the SC against 18th Amendment.

Further arguments

Explaining, Barrister Ahsan said, the 18th Amendment had been unanimously adopted by all the major political parties and even though parties opposing some provisions voted in favour of the amendment by adding dissenting notes.

If the 17 judges of the Supreme Court strike down the amendment adopted by the representatives of the 170 million people, it would naturally be seen as judiciary pitted against the legislatures, Barrister Ahsan feared. He said upsetting the amendment would spark convening of meetings by parliament to nullify the effects of any judicial verdict.

“I can cite at least 15 judgments of the Pakistan’s Supreme Court as well as similar number from the Indian jurisdiction to establish that constitutional amendments cannot be struck down by the courts,” he said.

Barrister Ahsan quoted the Pakistan Lawyers Forum (PLF) case in which amendments inserted in the constitution through the legal framework order were dismissed by the Supreme Court bench of which Justice Iftikhar Mohammad Chaudhry was also a member only because the amendments were subsequently validated by the parliament through the 17th constitutional amendment.

Referring to the Zafar Ali Shah case, Barrister Ahsan recalled that the Supreme Court had prescribed limits not to touch the basic feature of the constitution because it was granting the right of amending the constitution on an emergency basis to a single person who was a dictator then.

Articles 238 and 249 of the constitution also take away the right of the judiciary to strike down any constitutional amendment, he said, adding what the apex court could do on the petitions challenging the 18th Amendment was to suggest certain improvements after interpretation but not modifying it by itself.

Barrister Ahsan accused the lawyers who used to appear before the Dogar court and PCO judges of advocating against the supremacy of the parliament. Source: Dawn, 21 April 2010

Advocate Akram Sheikh (of Jamaat-e-Islami) Advocate Akram Sheikh who alleged that Mr Ahsan had appeared for the independence of judiciary only once in his career by defending the chief justice against his suspension. “Mr Ahsan appeared on behalf of the federal government in the 1996 Al-Jihad Trust case to oppose the independence of judiciary”, said Mr Akram Sheikh who is representing one of the petitioners who have challenged the 18th Amendment. “Mr Ahsan also used to appear before the military courts, he alleged suggesting that he should not pelt stones while sitting inside a glass house.” On apex court’s authority, he said that the Supreme Court could not only strike down the 18th Amendment but could also suspend it as an interim measure.

Abdul Hafeez Pirzada believes that parliament that had made significant changes in the constitution through the 18th Amendment is not a constituent assembly and quoted the 1975 Indian case, namely Indira Gandhi versus Raj Narayan, in which the Indian Supreme Court had struck down certain amendments. Amendments are meant to improve things and not to destroy things, he said.

On the other hand, Advocate Tariq Mehmood said the basic structure of the constitution was something which in practical terms did not exist, adding that the constituent assembly which adopted the 1973 constitution also inserted Article 238 and 239 under which no constitutional amendment could be challenged before the courts. He recalled that when the idea of judicial commission was suggested through the Charter of Democracy, the Pakistan Bar Council had tried to claim the credit by stating that the concept was first coined by it. Source

Related article:
Dr Shahid Masood as Chief Justice Iftikhar Chaudhry’s Jan-Nisar: Dangerous portents – by Kamran Shafi

Tahir Sarwar Mir’s article in Express: http://express.com.pk/epaper/PoPupwindow.aspx?newsID=1100918706&Issue=NP_LHE&Date=20100421

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Abdul Nishapuri

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  • Mr Pirzada, don’t sabotage the consensus

    By Wajid Shamsul Hasan

    LONDON: The historic signing of the unanimously passed 18th Amendment into an act of parliament by President Asif Ali Zardari was the finest moment in the nation’s history.

    The nation has had a roller-coaster existence ever since the first extra-constitutional intervention by the Praetorian-civil bureaucratic establishment unscrupulously sanctified by the apex judiciary in 1953, which plunged the Quaid’s dream of a democratic Pakistan into an unending obscurantist nightmare.

    While the president affixed his signatures to go down in Pakistan’s history abdicating his absolute powers to gift the nation with the priceless dividend of the supremacy of parliamentary democracy, satisfaction was seen on the faces of Prime Minister Yousaf Raza Gilani and a galaxy of top political leadership of the country.

    Senator Mian Raza Rabbani, chairman of the Constitutional Reforms Committee and his colleagues who burnt midnight oil for months to perform a “consensus-based constitutional miracle”, will now sleep in peace for having performed a feat that was considered impossible by doomsayers.

    Both Zulfikar Ali Bhutto who fathered the 1973 constitution and his daughter Benazir Bhutto, who gave her life to seek its restoration in its original glory, must be happy in heaven over the historic feat.

    It speaks in volumes of the evolution of political development in Pakistan through blood, toil and tears of hundreds and thousands of people who braved the most atrocious dictators anointed as legitimate by the successive chief justices and pliable members of superior judiciary, more interested in their pound of flesh rather than abide by the oath they undertook to defend the constitution.

    The 19th of April made every Pakistani proud when not only President Zardari and PML-N chief Nawaz Sharif were at the Presidency, but heads of all the political parties that participated in the 18th amendment deliberations, including ANP leader Asfandyar Wali, Fazlur Rehman of the JUI, Dr Farooq Sattar of the MQM and other members of parliament.

    In my view, the democracy was at its supreme that day and every one of us rightly felt proud to be Pakistanis.

    However, one is flabbergasted at the attitude of some the so-called constitutional experts, who in their hay-days were champions of constitutional democracy.

    But now they are playing the role of summer soldiers and sunshine patriots, apparently without a trace of a dictator. Or do they smell their boots? Who knows?

    The other day Abdul Hafeez Pirzada was piggish and unhappy over four of the constitutional amendments – (a) powers of the prime minister and party leaders, (b) provincial autonomy and the abolition of the Concurrent List, (c) human rights violation due to accumulation of powers in a single person (party leader), and (d) appointment of the judiciary.

    Mr Pirzada’s major objection concerns a party leader’s powers to recall the prime minister being elected by the people.

    Mr Pirzada must be aware of the fact that as in the 1973 constitution, the 18th Amendment was the result of party politics and each participating party kept its party position in view while deliberating these amendments.

    Political parties represent country’s political institutions. Therefore, it is superfluous to demonise the political parties or their heads by undermining the prime minister who represents a political party for having re-acquired the powers that belonged to that office in the original 1973 constitution.

    Whether it is the developing or the developed world, parliamentary democracy revolves around political parties. Congress leader Sonia Gandhi is a party leader and derives her strength from the party as its president. Tony Blair or Margaret Thatcher did not loose the vote of confidence in the parliament, but their party made them to resign as prime ministers.

    In a parliamentary democracy it is the party which remains supreme not the offices of the president or prime ministers.

    Human rights of the people have not been violated (which is the third objection of Mr Pirzada) by making the party leader strong, who, in any case remains strong by virtue of his party’s position in the assembly.

    As regards Mr Pirzada’s objection to Concurrent List and the provincial autonomy, let me remind him of the provincial autonomy he used to plead along with Mr Mumtaz Bhutto, when the duo discovered quantum of provincial autonomy insufficient.

    From being a champion of confederation to strong centre, Mr Pirzada has forgotten the fact that the abolition of the Concurrent List represents the collective will of the people of the country, which should serve to lessen the differences between the provinces.

    Ironically, some novices in the media and politics are whining over hereditary politics. In a country still suffering from mass illiteracy, feudalism, nepotism and frequent visitations of martial laws, how they can expect British or American type of democracy without fulfilling the conditions prevailing in those societies.

    India, with uninterrupted civilian rule has not come out of the “Nehru dynasty”. But before passing a judgment, it needs to be determined whether these “dynasties” have done good or bad for the country. The detractors of “Bhutto dynasty” will have to first match their charisma amongst the people and their sacrifices for the country. The Bhutto legacy continues to rule the hearts and minds of the toiling masses from their graves while those who betrayed the Bhuttos have no doubt survived but only as monumental pygmies.

    http://dailytimes.com.pk/default.asp?page=20104\21\story_21-4-2010_pg7_13

  • * Aitzaz says SC cannot strike down constitutional amendments
    * Hamid Khan, Akram Sheikh, Ikram Chaudhry say SC has power to set aside amendment

    By Masood Rehman

    ISLAMABAD: Noted lawyer and former president of the Supreme Court Bar Association (SCBA), Aitzaz Ahsan, on Tuesday said the Supreme Court had no power to strike down any of the changes incorporated in the 18th Amendments, as it was also subservient to the constitution.

    Talking to reporters at the Supreme Court, Aitzaz, who led the lawyers’ movement for the restoration of sacked judges of the Supreme Court, said the judiciary was also subservient to the constitution and was required to act in accordance with the constitution.

    Empowerment: He said parliament was empowered to change the basic structure of the constitution and the Supreme Court could not interfere in legislative matters. Aitzaz said he had more respect for Chief Justice Iftikhar Muhammad Chaudhry than the president and the prime minister, as he rendered great sacrifices for an independent judiciary.

    However, he said, institutions should work within their parameters.

    He said the procedure provided in the 18th Amendment for the appointment of judges to the superior judiciary did not usurp the independence of the judiciary, as the names of the judges to be appointed had to be suggested by the judicial commission, to be headed by the chief justice and not by the parliamentary committee.

    Aitzaz said under the provisions of Articles 238 and 239 of the constitution, an amendment in the constitution by an elected parliament could not be challenged before any court of law.

    Citing the Pakistan Lawyers’ Forum case of 2005 in which the Legal Framework Order (LFO) was challenged before the Supreme Court, Aitzaz said the court had ruled in the case that it had no power to strike down the constitutional amendments.

    He said the Syed Zafar Ali Shah case was the first instance in which the Supreme Court had set certain parameters for bringing amendments to the constitution, however, these parameters were not for parliament but for an individual, Pervez Musharraf.

    The former SCBA president said in accordance with the constitution, parliament enjoyed vast powers, adding that the legislature had not overstepped its limits by passing the 18th constitutional amendment.

    He added that no one could challenge the jurisdiction of the Supreme Court as well.

    At most, he said the Supreme Court could only suggests changes in an amendment and interpret the constitution, however it had no power to amend the constitution.

    To a question, he said all provisions in the 18th Amendment were not good, adding that it was surprising that a clause, which provided for intra-party elections, had been deleted through the constitutional amendment.

    “Due to the deletion of this clause, the decision that who will remain in parliament and who will remain outside it, would be done out of the parliamentary party which is no good, because in this way, un-elected people will take decisions,” Aitzaz said.

    He said he would not appear before the chief justice in the case of the 18th Amendment.

    Aitzaz said how could 17 judges of the Supreme Court strike down the laws made by representatives of over 170 million people.

    He said if the Supreme Court did so, a clash between the apex court and parliament could be in the offing.

    The senior lawyer said the lawyers’ movement forced former president Pervez Musharraf to flee the country.

    Commenting on the UN commission’s report regarding the assassination of Benazir Bhutto, Aitzaz said immediate action should be taken in the light of the commission’s findings.

    http://dailytimes.com.pk/default.asp?page=20104\21\story_21-4-2010_pg7_12

  • Iftikhar Chaudhry was on the bench that issued the Lawyer’s forum case verdict of 2005 which Aitzaz Ahsan is referring to. Everyone should read this verdict to see how the CJ and his defenders are now going against his own decision of 2005

    http://www.supremecourt.gov.pk/web/user_files/File/JR_Judgment_on_17th_Amendmend_and_Presidents_Uniform_Case.pdf

    relevant excerpt from the detailed judgment:

    “57. The conclusion which emerges from the above survey is that prior to Syed Zafar Ali Shah’s case, there was almost three decades of settled law to the effect that even though there were certain salient features of the Constitution, no constitutional amendment could be struck down by the superior judiciary as being violative of those features. The remedy lay in the political and not the judicial process. The appeal in such cases was to be made to the people not the courts. A constitutional amendment posed a political question, which could be resolved only through the normal mechanisms of parliamentary democracy and free elections.”
    58. It may finally be noted that the basic structure theory, particularly as applied by the Supreme Court of India, is not a new concept so far as Pakistani jurisprudence is concerned but has been already considered and rejected after considerable reflection as discussed in the cases noted hereinabove. It may also be noted that
    the basic structure theory has not found significant acceptance outside India, as also discussed and noted in the Achakzai’s case. More specifically, the Supreme Court of Sri Lanka refused to apply the said theory in a case, reported as In re the Thirteenth Amendment to the Constitution and the Provincial Councils Bill (1990) LRC (Const.) 1. Similarly, the said theory was rejected by the Supreme Court of Malaysia in a case titled Phang Chin Hock v. Public Prosecutor (1980) 1 MLJ 70.
    “59. The position adopted by the Indian Supreme Court in Kesvavananda Bharati case is not necessarily a doctrine, which can be applied unthinkingly to Pakistan. Pakistan has its own unique political history and its own unique judicial history. It has been the consistent position of this Court ever since it first enunciated the
    point in Zia ur Rahman’s case that the debate with respect to the substantive vires of an amendment to the Constitution is a political question to be determined by the appropriate political forum, not by the judiciary. That in the instant petitions of this Court cannot abandon its well settled jurisprudence.”

  • Sanctimonious Lawyers: Barrister Akram Sheikh & Mehran Bank Scandal
    http://chagataikhan.blogspot.com/2010/04/sanctimonious-lawyers-barrister-akram.html

    Why do we forget that Lawyers Movement was basically a game to ease out Pakistan Army from the mess which was the creation General Pervez Musharraf and Military Establishment. CJ basically attained a lot from 2000 to 2007 [March to be precise]. I wonder how an Incommunicado CJ was issuing statement often published in The New York Times/Washington Post “during his days in Bastille” – [I still fail to understand that when CJ was sacked in March 2007, he and the press said the CJ is under house arrest and held incommunicado whereas the very next day Air Marshal [R] Asgher Khan “successfully” met him As per Daily Dawn dated March 12, 2007 Monday Safar 22, 1428

    “ISLAMABAD, March 11: Chief Justice Iftikhar Mohammad Chaudhry has demanded that the Supreme Judicial Council (SJC) should hold open proceedings on the reference against him sent by President Gen Pervez Musharraf. This was stated by seasoned politician Air Marshal (retired) Asghar Khan after a meeting with Justice Chaudhry here on Sunday. The demand made by the suspended chief justice indicates that he is not ready to resign and is determined to contest the allegations levelled against him. – But one day earlier the CJ was held incommunicado – “There is no other way to describe the situation as no one is being allowed to meet him,” he said after police officials stopped him and other lawyers from going inside the chief justice’s residence. REFERENCES: Justice Iftikhar seeks open SJC proceedings: Asghar By Iftikhar A. Khan March 12, 2007 Monday Safar 22, 1428 CJ held incommunicado; lawyers slam ‘arrest’ By Nasir Iqbal

    If he was held incommunicado then how the hell Air Marshal (retired) Asghar Khan [a key Musharraf adversary] succeeded to meet with Mr Justice Iftikhar Mohammad Chaudhry? These Four artciles from Daily Jang and text after that will further expose the filthy character of General Retd. Chisti, General Retd Aslam Beg, Air Marshal Retd. Asgher Khan, General Retd Asad Durrani and last but not the least the Mother of All Trouble General Retd. Hamid Gul [after committing every crime mentioned in the book against innocent Pakistanis is now itching for Non-Sense Islamic revolution. REFERENCE: Cowasjee: Who can tolerate an independent judiciary? http://letusbuildpakistan.blogspot.com/2009/03/cowasjee-who-can-tolerate-independent.html

    There was one person who was not seen but he and others were with CJ in all this AND now read what CJ had submitted in the court and also read as to how Ansar Abbasi is trying to save Kayani. [read every word of it]: Establishment VS Judiciary & Demented Pakistani Media.http://chagataikhan.blogspot.com/2010/01/establishment-vs-judiciary-demented.html

    Referring to the Zafar Ali Shah case, Barrister Ahsan recalled that the Supreme Court had prescribed limits not to touch the basic feature of the constitution because it was granting the right of amending the constitution on an emergency basis to a single person who was a dictator then. Articles 238 and 249 of the constitution also take away the right of the judiciary to strike down any constitutional amendment, he said, adding what the apex court could do on the petitions challenging the 18th Amendment was to suggest certain improvements after interpretation but not modifying it by itself. Barrister Ahsan accused the lawyers who used to appear before the Dogar court and PCO judges of advocating against the supremacy of the parliament, an accusation that was taken seriously by Advocate Akram Sheikh who alleged that Mr Ahsan had appeared for the independence of judiciary only once in his career by defending the chief justice against his suspension. Mr Ahsan appeared on behalf of the federal government in the 1996 Al-Jihad Trust case to oppose the independence of judiciary, said Mr Sheikh who is representing one of the petitioners who have challenged the 18th Amendment. Mr Ahsan also used to appear before the military courts, he alleged suggesting that he should not pelt stones while sitting inside a glass house. REFERENCE: Aitzaz, Akram spar over parliament By Nasir Iqbal Wednesday, 21 Apr, 2010

    Mr. Mohd Akram Sheikh is a Senior Advocate of Supreme Court of Pakistan. He graduated with an LL.B from one of the most prestigious educational institutions: Foreman Christian College, University of the Punjab, Lahore, Pakistan in 1970. He subsequently attained postgraduate studies from Punjab University in 1972. To enhance his education, he then went to England and spent a year to complete his postgraduate studies at the Queens’ Mary College, University of London, London. He started his legal career in 1973. Throughout his legal career, Mr. Sheikh has been involved in various critical cases which effected major changes in various areas of law such as Constitutional and Human Rights matters. He won the national and international admiration when he acted before the Supreme Court (1988-1990) in a famous case pertaining to “determination of the powers and relations between the Federal Government & the Province of the Punjab”. He has introduced the provincial banking system, independent of the Federal regulatory system, which later resulted in the formation of one of the most successful banks, The Punjab Bank, Khyber Bank and other Banks. He has conducted the first case of floor crossing before the Supreme Court of Pakistan in (1989) and later, in 1993 acted as Senior Counsel in the famous case of “Dissolution of the National Assembly”. Mr. Sheikh successfully challenged the establishment of Military Courts to try civilians on charges under anti terrorist laws in 1998 and has been a counsel in almost all landmark Constitutional cases. He has always been a very vocal Member of the Bar – fighting for Human Rights, rights of women and Independence of Judiciary. The “blind girl” (Safia Bibi) case conducted by him in 1983 which won him international acclaim. He has always been criticizing appointment of Judges on political basis and in violation of the principles of seniority and due to his very vocal criticism he has had to face contempt charges. REFERENCE: Profile:Barrister Akram Sheikh

    The Judges and Judiciary are quite fond of lecturing the Lawyers as to who should they plead or defend and who shoudn’t be represented at all and while passing this most perverse comment the Judiciary conveniently forget that – “QUOTE” Whereas 1973 Constitution of Pakistan says; – nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. Reference: 9. security of person. 10. Safeguards as to arrest and detention. PART II Fundamental Rights and Principles of Policy Chapter 1. FUNDAMENTAL RIGHTShttp://www.pakistani.org/pakistan/constitution/part2.ch1.html”UNQUOTE” Recently the court also called Home Secretary. The court also scolded the Rasheed A Rizvi for pleading the case for Ahmed Riaz Sheikh. As per Daily Dawn – The court questioned Advocate Rasheed A. Razvi for pleading the case of Mr Sheikh while being the president of a bar association. The counsel replied that he strongly believed in the established principle that justice should not only be done but appear to have been done. REFERENCES: NAB chief to be jailed for defying court order: SC warns Updated at: 1245 PST, Monday, March 29, 2010 SC irked by govt failure to implement NRO verdict By Nasir Iqbal Tuesday, 30 Mar, 2010 SC sends ex-FIA official to jail Updated at: 1358 PST, Tuesday, March 30, 2010

    No such question or rude remarks were passed against several Devil’s Advocates like Qazi Anwar, Barrister Akram Sheikh, Athar Minallah [Former Spokesman of incumbet CJ na Former Minister of General Pervez Musharraf’s Cabinet] Barrister Khalid Anwer [a Former Deputy of Notorious Martial Lawyers like Syed Sharifuddin Pirzada, A. K. Brohi and last but not the least, the Maverick Abdul Hafeezz Pirzada??? Why this “Double Standard”????

    Let me give a glimpse of Barrister Akram Sheikh [who is nowaday itching for the Supremacy of Judiciary over Parliament, Rule of Law, Constitution and bla bla bla] and one of his most Lethal and Valuable Client i.e. General [R] Mirza Aslam Beg who is involved in a worst kind of Corruption Scandal in Pakistan i.e. Mehran Bank Scandal. Abdul Hafeez Pirzada is also involved in Mehran Bank/ISI Scandal and accepted Bribe and Petition Vide Number (HRC 19/96) is still pending in the Supreme Court of Pakistan. One wonders where the hell is the Suo Moto Notice and Judicial Activism of Judiciary???? Read what General [R] Mirza Aslam Beg had to say about the Judiciary and Barrister Akram Sheikh was representing him.

    ISLAMABAD, Feb. 24: Former army chief Gen Aslam Beg told the Supreme Court that he was not answerable to it regarding his actions as the chief of army staff and the sitting COAS is the only competent and proper person to look into the allegations or take action. He made this statement after the issuance of notice by the Supreme Court on the petition of Air Marshal (retd) Asghar Khan. The former air chief had filed a petition against the former COAS alleging that he had drawn Rs150 million from the Mehran Bank and had distributed the amount to different politicians before the 1990 elections. When the hearing started on Monday, Deputy Attorney-General Mumtaz Ahmed Mirza placed a certificate from the secretary ministry of defence stating that the ISI had not received any money. The counsel for Gen Beg, Mohammad Akram Shaikh, demanded that Gen (retd) Asad Durrani and General (retd) Naseerullah Babar should be summoned to the court for recording their statements. The three-member bench of the Supreme Court consisting of Justice Saiduzzaman Siddiqui, Justice Fazal Ellahi Khan and Justice Bashir Jehangiri, adjourned the hearing of the case till March 26. REFERENCE: Beg says he is not answerable to court Staff Correspondent DAWN WIRE SERVICE Week Ending: 01 March 1997 Issue:03/09

    Barrister Akram Sheikh provided his “services” to a Corrupt Ex-Army Chief of Pakistan i.e. General [R] Mirza Aslam Beg who was least bothered about the “Honour and Respect of Judiciary, another glimpse,

    Former Army Chief General Mirza Aslam Beg in an interview on February 04, 1993 admitted that he had sent an emissary, then senate chairman Wasim Sajjad to the Supreme Court to warn the justices not to restore the national assembly. Two weeks later, Supreme Court charged General Beg with contempt of court. Beg met with army Chief Abdul Waheed Kakar and later appeared defiantly in the court and many witnesses ridiculed the judges. Supreme Court could not handle the fallout from its confrontation with even a retired army chief. Court finally convicted him of contempt but strangely did not give any judgment about the sentence. The same court even overturned its own decision after an appeal was filed. After a year of half hearted measures, on January 09, 1994 the court dropped all proceedings against general Beg. REFERENCE: Judicial Jitters in Pakistan – A Historical Overview Hamid Hussain Defence Journal, June 2007

    Abdul Hafeez Pirzada is also involved in Mehran Bank/ISI Scandal and accepted Bribe and Petition Vide Number (HRC 19/96) is still pending in the Supreme Court of Pakistan. One wonders where the hell is the Suo Moto Notice and Judicial Activism of Judiciary????

    Now, as we approach the promised October elections, our press carries many a story about how the intelligence agencies are transferring and ‘placing’ officials all over the country, and how the agencies are harassing certain individuals for not toeing the official line. We also read reports about how the ‘placed’ aspiring legislators and their ‘supporters’, all renowned as shady characters, are even managing to ‘influence’ men in uniform to gain support. On July 3, the governor of Sindh, Mohammadmian Soomro (my ‘nephew’ – he very respectuflly addresses me as ‘uncle’), transformed his learned and efficient education minister, Professor Anita Ghulam Ali, into an ‘adviser’ and also sent home his irrigation minister, Ali Mir Shah. He then swore in Syed Ejaz Ali Shah Shirazi as irrigation minister and Sardar Muqeem Khan Khoso as agriculture minister (water tap and land ownership/transfer controllers), Khan Mohammad Dahri as education minister (organizing teachers at polling stations), Mian Abdul Baqi as auqaf minister (money to spend and distribute), and Dr Arbab Ghulam Rahim as minister of local government (the works). My ‘nephew’ could not explain who chose these ‘fixers’, who ordered him to swear them in, and who is their ‘godfather’.

    Nothing new. On April 25, 1994, this newspaper carried an editorial entitled ‘Our secret godfathers’, which opened up : “Two basic points emerge from General Aslam Beg’s admission that in 1990 he took Rs 14 crores from the banker Younus Habib and that part of this money was spent by the ISI during the elections that year . . . . . “. And closed, saying “. . . it is time now for some sort of check on the rogue political activities of our intelligence agencies . . .”. It was not time, and apparently it is still not time. In 1996, Air Marshal Asghar Khan filed a human rights petition in the Supreme Court against General Mirza Aslam Beg, former chief of army staff, Lt General Asad Durrani, former chief of the Inter Services Intelligence, and Younus Habib of Habib Bank and then Mehran Bank, concerning the criminal distribution of the people’s money for political purposes (HRC 19/96). In this case, Lt General Naseerullah Babar filed an affidavit in court supported by copies of various documents and a photocopy of a letter dated June 7, 1994, addressed by Durrani to the then prime minister, Benazir Bhutto, who, during her second term in office, appointed him as her ambassador to Germany, which reads:

    “My dear Prime Minister,” A few points I could not include in my ‘confessional statement’ handed over to the director, FIA. These could be embarrassing or sensitive. (a) The recipients included Khar 2 million, Hafeez Pirzada 3 million, Sarwar Cheema 0.5 million and Mairaj Khalid 0.2 million. The last . . . . . . . [illegible] someone’s soft corner that benefited them. (b) The remaining 80 million were either deposited in the ISI’s ‘K’ fund (60 m) or given to director external intelligence for special operations (perhaps the saving grace of this disgraceful exercise. But it is delicate information.) [Noted in the margin of this paragraph, by the writer in his own hand: “This is false. The amount was pocketed by Beg (Friends)”]

    “The operation not only had the ‘blessings’ of the president [Ghulam Ishaq Khan] and the wholehearted participation of the caretaker PM [Ghulam Mustafa Jatoi], but was also in the knowledge of the army high command. The last mentioned will be the defence of many of us, including Gen Beg (who took his colleagues into ‘confidence’ but that is the name that we have to protect). “The point that I have ‘wargamed’ in my mind very often is : what is the object of this exercise? (a) If it is to target the opposition, it might be their legitimate right to take donations, especially if they come through ‘secret channels’. Some embarrassment is possible, but a few millions are peanuts nowadays. (b) If the idea is to put Gen Beg on the mat : he was merely providing ‘logistic support’ to donations made by a community ‘under instructions’ from the government and with the ‘consent’ of the military high command. In any case; I understand he is implicated in some other deals in the same case. (c) GIK will pretend ignorance, as indeed he never involved himself directly. (d) Of course, one has to meet the genuine ends of law. In that case let us take care of the sensitivities like special operations and possibly that of the army.

    “It was for these reasons that I desperately wanted to see you before leaving. I also wanted to talk about my farewell meeting with the COAS [General Waheed Kakar]. In the meantime you must have met often enough and worked out what is in the best interest of the country. I keep praying that all these natural and man-made calamities are only to strengthen us in our resolve and not in any way reflective of our collective sins. With best regards and respects Yours sincerely, Asad” Filed also in the court is a note, attached to Durrani’s letter written in his own hand, reading: “YH TT Peshawar A/C Sherpao For Election 5,00,000; Anwar Saifullah for MBL deposit 15,00,000; Farooq Leghari PO Issued 1,50,00,000. Another 1,50,00,000 paid through Bank. There are a host of other political figures who received funds like Liaquat Jatoi, Imtiaz Sheikh.” Naseerullah Babar also filed in court a copy of a bank account sheet headed “G/L Account. Activity Report. Account 12110101 G. Baig (sic.)” The column heads read “Transaction, Date, Particulars, Debit, Credit.” The numbered transactions took place between October 23, 1991, and December 12, 1993. The first transaction listed was “Cash-P.O. Karachi Bar Association A/C Gen. Baig (sic.), debit, 5,05,680” (advocate Mirza Adil Beg, Aslam Beg’s nephew, the then president of the KBA, confirms that the KBA received the money).

    In January 1992 USD 20,000 was sold @ 26.50 and 5,30,000 was credited to the account. Thereafter all debits: “Arshi c/o Gen. Baig (sic.) 2,90,000; Cash paid to Gen. Shab 2,40,000 ; Cash Friends 1,00,000 [Aslam Beg’s organization, FRIENDS, Foundation for Research on National Development and Security] ; Cash TT to Yamin to pay Gen. Shab 3,00,000 ; Cash TT to Yamin Habib 12,00,000 ; Cash Friends 1,00,000 ; Cash Friends 1,00,000 ; Cash paid through YH 10,00,000 ; Cash Friends TT to Salim Khan 2,00,000 ; Cash 1,00,000 ; Cash Towards Friends 5,00,000 ; Cash Asif Shah for Benglow 35,000 ; Cash Friends 1,00,000 ; Cash Friends 1,00,000 ; Cash TT through Yamin for Friends 1,00.000 ; Cash paid to Fakhruddin G. Ebrahim 2,00,000 [he confirms having received the money from General Beg as fees and expenses for defending him in the contempt of court charge brought against him – PLD 1993 SC310] ; Cash paid through TT to Yamin for Friends ; Cash paid to Fakhruddin G Ebrahim 1,28,640 [he confirms receipt for fees/expenses for contempt case] ; Cash Guards at 11-A 10,500 ; Cash TT for USD 240,000 Fav. Riaz Malik to City Bank (sic.) New York 68,76,000 ; Cash Friends 1,00,000; Cash Guards at 11-A 10,500 ; Cash Mjr. Kiyani 10,000; Cash mobile phone for Col. Mashadi 28,911 ; Cash TT fav. Qazi Iqbal and M Guddul 3,00,000 ; Cash Mjr. Kiyani 10,000 ; Cash TT to Peshawar 3,00,000 ; Cash deposited at Karachi A/C EC [Election Commission] 3,00,000 ; Cash Guards 24,000 ; Cash TT to Quetta 7,00,000 ; Cash mobile bill of Col. Mashadi 3,237 ; Cash TT to Peshawar Br. 4,00,000 ; Cash deposited at Karachi Br. 4,00,000 ; Cash Guards 11,520 ; Cash TT to Peshawar for EC 2,00,000 ; Cash TT to Quetta for EC 2,00,000 ; Cash Guards 5,760 ; Cash Mjr. Kiyani 5,000 ; Cash A/C Guards 8,640 ; Cash th. YH 2,00,000 ; Cash A/C Guards 5,760 ; Cash TT to Salim Khan 1,00,000.”

    The “host of other political figures who received funds” from an ISI account were revealed in the Supreme Court when Air Marshal Asghar Khan’s petition was being heard. Inter alia, Nawaz Sharif received (in rupees) 3.5 million, Lt General Rafaqat [GIK’s election cell] 5.6 million, Mir Afzal 10 million, Ghulam Mustafa Jatoi 5 million, Jam Sadiq Ali 5 million, Mohammed Khan Junejo 2.5 million, Pir Pagaro 2 million, Abdul Hafeez Pirzada 3 million, Yusuf Haroon 5 million [he confirms having received this for Altaf Hussain of the MQM], Muzaffar Hussain Shah 0.3 million, Abida Hussain 1 million, Humayun Marri 5.4 million. During the hearing of the case, Aslam Beg, under oath, revealed the existence of a political cell within the ISI, whilst clarifying that though he was aware of the distribution of funds he was never personally involved. These documents and many others, filed in the Supreme Court, are a matter of public record. In this regard, reference should be made to paragraph 111, ‘Corruption’, of the judgment of the Supreme Court of Pakistan on the Proclamation of Emergency dated 14th, October, 1999 (approved for reporting), delivered by Chief Justice Irshad Hassan Khan and his eleven Brothers, sanctifying General Pervez Musharraf’s takeover. It is a list presented by Attorney-General Aziz Munshi listing cases of corruption, some dating back to 1990, the lists of ISI payments, Babar’s and Durrani’s affidavits being amongst them. Should not all these corrupt, bribed political people who shamelessly accepted the people’s money for their own political ends, and who have never denied having received such payoffs, not stand disqualified for life? Air Marshal Asghar Khan is still waiting to have his petition challenging the corrupt and clandestine use of public funds (pending since 1996) heard by the Supreme Court, as is also General Naseerullah Babar. They both have much to reveal. They are prepared to face the judiciary. REFERENCE: We never learn from history – 2 By Ardeshir Cowasjee DAWN WIRE SERVICE Week Ending: 10August 2002 Issue : 08/32

    The petitioner, Asghar Khan, requested that Beg, Durrani and Younus Habib of Habib and Mehran Banks be named as respondents. The ISI requested that the hearing be in camera and the court agreed to the request in so far as proceedings regarding the legal position of the ISI were concerned. Hearings commenced in February 1997 and continued through the year. On November 6, the statements of Babar and Durrani were to be recorded, and Justice Shah recounts how his court was faced with the awkward question as to the law under which the ISI and its political cell had been set up. Beg’s counsel, the weighty Akram Shaikh, after fulsome praise of the agency and its great achievements – greater than those of RAW, the KGB or MI-5 – explained how the political cell had been established in 1975 under the orders of the then prime minister, Zulfikar Ali Bhutto. The court asked the attorney general (Nawaz’s lawyer Chaudhry Mohammed Farooq) to provide the relevant documentation as to the scope of the activities of the political cell and to clarify whether, under the law, part of its duties was to distribute funds for the purpose of rigging elections. The AG, of course, wriggled out of that one by stating that the matter was of such a ‘sensitive’ and ‘delicate’ nature that it could not be heard in open court. Asghar Khan’s lawyer, Habibul Wahabul Khairi, countered by saying that as the entire matter had been aired in the press, with all the names involved fully listed, there was little left to warrant in camera proceedings, and besides, the people had every right to know how their money had been used and whether the use in question was permitted by law. The court, however, allowed the recording of Babar’s and Durrani’s statements and their cross-examination to be held in camera, which were done on November 19 and 20. That was the last hearing of this important case. Eight days later, on November 28, 1997, the Supreme Court was stormed by men of the government of Nawaz Sharif. A group of judges of the Supreme Court (whose intention for some months had been to oust Sajjad Ali Shah) via a series of orders issued by the Peshawar and Quetta benches forced him to step down as chief justice. Sajjad went on leave prior to retirement and Justice Ajmal Mian took his place. REFERENCE: We never learn from history – 5 By Ardeshir Cowasjee DAWN WIRE SERVICE Week Ending: 31 August 2002 Issue:08/35

    Barrister Akram Sheikh used to support Notorious 8th Amendment [introduce by a Military Dictator General Zia in 1973 Constitution of Pakistan]

    LAHORE, Nov. 21: Parliament has no power to summon any member of the superior judiciary, including the chief justice, for any reason or purpose under the Constitution of Pakistan, Supreme Court Bar Association outgoing President Muhammad Akram Sheikh said. Talking to Dawn on his return from Islamabad after a week of eventful Supreme Court proceedings, he said the position was entirely different under the Indian Constitution, which empowers parliament to impeach superior court judges. A judge guilty of misconduct in the eyes of the government in Pakistan can only be dealt with under Article 209, which provides for inquiry and adjudication by the Supreme Judicial Council. There is no corresponding provision in the Indian Constitution. But Indian parliament has used its power to impeach the superior court judges sparingly, probably only once. It was not exercised when Mrs. Indira Gandhi was unseated, or when certain constitutional amendments protecting her were declared ultra vires for being repugnant to the basic structure of the Indian Constitution, or even when corruption cases were started against leading parliamentarians. Mr. Akram Sheikh, who is appearing as amicus curiae in the contempt case against Prime Minister Nawaz Sharif, said Article 68 is quite categorical in prohibiting Parliament from even discussing the conduct of any judge. How can it summon a judge when it cannot even discuss his conduct in his absence.

    IMPEACHMENT MOVE: Mr. Akram Sheikh said the Supreme Court can stay an impeachment move against the president if it has no nexus with the grounds mentioned in the Constitution for the president’s removal — incapacity or gross misconduct.

    As in case of the repealed Article 58 (2) (b) envisaging the National Assembly dissolution by the president if the constitutional machinery breaks down, the superior courts can assume jurisdiction to examine whether the grounds mentioned in an impeachment notice or resolution have any nexus with the grounds mentioned in Article 47 of the Constitution, he said. Mr. Akram Sheikh affirmed that he always supported Article 58 (2) (b) and most other provisions of the Eighth Amendment as they provided for a system of checks and balances. The Supreme Court also upheld them as being in accord with the salient features of the Constitution — Islam, democracy and federal parliamentary system. About the Supreme Court restraint order to the president, who has power to consider and return a questionable bill adopted by parliament within 30 days, Mr. Akram Sheikh said the court can intervene when a matter is patently outside the legislative competence of parliament. It is better to nip an illegality in the bud rather than waiting for it to mature before striking it down. REFERENCE: Parliament cannot summon CJ: Akram By Shujaat Ali Khan DAWN WIRE SERVICE Week Ending:22 November 1997 Issue:03/47

    Barrister Akram Sheikh also loves “Boxing” with PML – NAWAZ GROUP.

    ISLAMABAD, Nov. 18: Exchange of hot words between Privatization Commission Chairman Khwaja Mohammad Asif, PTV Managing Director Sen Pervaiz Rashid and Advocate Akram Sheikh led to a scuffle in the precincts of the Supreme Court when the contempt case against Prime Minister Nawaz Sharif and his colleagues came up before the court for hearing. It all began with an exchange of light taunts between the old buddies when in the heat of the moment their tempers snapped and they started hurling abuses at each other. Khwaja Asif gave two punches on Akram Sheikh’s face. This left a scar on his face. “Take the picture”, a baffled Akram Sheikh shouted at a photographer standing nearby. Some lawyers intervened and saved Akram Sheikh, who later raised the issue inside the court and narrated the whole story. He said he had invited Khwaja Asif and others to join him at tea. Akram Sheikh said he called Khwaja Asif a corrupt banker and also admitted to hurling an obscenity. He said he had decided not to lodged any formal complaint with the police. He, however, called upon the Chief Justice to take note of the violation of the sanctity of court. REFERENCE: Scuffle breaks out in Supreme Court precincts DAWN WIRE SERVICE Week Ending:22 November 1997 Issue:03/47

    Swinging Mood of Barrister Akram Sheikh:)))

    ISLAMABAD, April 18: Justice Nasir Aslam Zahid took oath as a permanent judge of the Supreme Court and the Chief Justice Sajjad Ali Shah described the event as a step towards the implementation of the SC verdict. The President of the Supreme Court Bar Association, Akram Sheikh, a Muslim League lawyer, termed the appointment of Justice Nasir Aslam to the Supreme Court illegal, asserting that being the most senior judge he should have been appointed chief justice of the Sindh High Court under the SC judgement instead of Justice Mamoon Qazi. When his attention was drawn to a reported statement by Akram Sheikh alleging that the government was pressuring him for an agreement and to administer the oath to the newly-appointed judge, he said: Neither there has been any agreement nor I am the kind of a person who can be pressured. Asked whether the appointment of Justice Mamoon Kazi as the SHC chief justice was in line with the Supreme Court decision verdict, he said the appointment was all right as Justice Nasir Aslam had taken oath as a permanent judge of the apex court. Justice Sajjad Ali said the next step in the implementation of the apex courts judgement would be regularisation of the ad hoc judges in the High courts. REFERENCE: Nasir Aslam sworn in CJ denies any govt pressure Bureau Report DAWN WIRE SERVICE Week Ending: 25 April 1996 Issue:02/17

    LAHORE, Jan 23: Chief Ehtesab Commissioner Justice Ghulam Mujaddid Mirza heard submissions from two senior counsels about which records should be summoned from which departments in references against Prime Minister Nawaz Sharif, Ehtesab Bureau Chairman Senator Saifur Rehman and others. Advocates Muhammad Akram Sheikh and Sharif Husain Bukhari said the references should be referred for investigation to an agency, which was not under the direct or indirect influence of the Prime Minister and the Punjab chief minister. In their opinion, Military Intelligence or the Federal ombudsman could be entrusted with the investigations, and the CEC was fully competent to call for its assistance. Akram Sheikh presented the case of the development of Prime Minister Nawaz Sharif’s Raiwind farms (Jati Umra) at a cost of Rs630 million to Rs700 million of the public money. Mr Sheikh pointed out that because of the development of the area, its value had gone up to Rs600,000 to 700,000 a kanal while once it was possible to purchase a square of land for that Price. “The development of the area (at the public expense) has caused the nation a fortune, and it has made a fortune for a few individuals (of the ruling family)”, Mr Sheikh said. REFERENCE: Independent agency should investigate, say counsel By Ashraf Mumtaz DAWN WIRE SERVICE Week Ending:30 January 1999 Issue:05/05

    Barrister Akram Sheikh is also confused, in the Past and nowadays as well on Nataional Accountability Bureau.

    ISLAMABAD, Sept 12: A three-member bench of the Supreme Court admitted on Tuesday 15 constitutional petitions challenging the validity of the National Accountability Bureau Ordinance for early hearing by a larger bench. Headed by Chief Justice Irshad Hasan Khan, it ordered that notices be issued to the Federation through the cabinet division and the federal law secretary and to the NAB chairman. Another notice was issued to the attorney-general under Order 27-A of the Civil Procedure Code as important questions requiring interpretation of constitutional provisions are involved. The petitions were filed directly before the apex court under Article 184 (3) of the Constitution. The provision confers original jurisdiction on the court if the matter agitated involves enforcement of fundamental rights and is of public interest.

    The petitions have been filed by ousted premier and NAB convict Mian Nawaz Sharif, GDA leader Nawabzada Nasrullah Khan, NAP president Asfandyar Wali Khan, PPP leaders Hakim Ali Zardari and Ms Naheed Khan, Dr Farooq Sattar of MQM, NAB accused Asif Saigol and Hussain Nawaz, former petroleum minister Anwar Saifullah Khan, PML lawyer Zafar Ali Shah, Ghulam Qadir Jatoi, ex-MNA Chaudhry Sher Ali, Punjab Bar Council member Pir Masood Chishti and Syed Iqbal Haider of Muslim Youth Movement. Advocates Abdul Hafeez Pirzada, Aitzaz Ahsan Chaudhry, Mohammad Akram Sheikh, Dr Abdul Basit, K.M.A. Samdani, Supreme Court Bar Association president Abdul Haleem Pirzada, Chaudhry Mushtaq Ahmad Khan, Zafar Ali Shah and M. Ikram Chaudhry and Mr Iqbal Haider pressed for the admission of petitions for regular hearing. Though not on notice, NAB prosecutor-general Farooq Adam Khan was present throughout the proceedings. AG Aziz A. Munshi and Senior Federal Minister Sharifuddin Pirzada also watched the proceedings for quite some time.

    The admission order said the petitions have raised 23 questions as ‘matters of first impression’. They are of great public importance involving fundamental rights as ordained by Article 184 (3) of the Constitution. The ordinance has been assailed for being repugnant to the principle of the separation of powers and the independence of judiciary, freedom of trade, business and profession, security of person, safeguard from arrest and detention, protection from retrospectivepunishment, inviolability of dignity of man, freedom of movement, equality of citizens and other basic rights. The order recalled that in the case of Syed Zafar Ali Shah and others versus Gen Pervez Musharraf, Chief Executive of Pakistan, and others, the Supreme Court had observed that the ‘validity of the NAB Ordinance will be examined separately in appropriate proceedings at appropriate stage’. The court made it clear that it would examine the question of validity of the impugned ordinance and not individual grievances raised by some of the petitioners directly or indirectly. However, the petitioners shall not be debarred from pressing their pleas through appropriate proceedings before competentcourts. The SC admission order shall not operate as stay of proceedings before NAB, accountability courts or any other court in relation to matters arising out of the impugned ordinance. REFERENCE: SC admits 15 pleas against NAB law: Larger bench to be formed Shujaat Ali Khan DAWN WIRE SERVICE Week Ending: 16 September 2000 Issue:06/35

  • Controversy over 18th Amendment
    By Cyril Almeida
    Thursday, 22 Apr, 2010

    ISLAMABAD: The claim: parts of the 18th Amendment should be struck down for violating the ‘basic structure’ of the Constitution. The object of ire is the new process for appointing judges to the superior judiciary (Article 175A).

    The question: does the Supreme Court have the power to do so? And if so, in what circumstances?

    The answer: it’s complicated.

    In constitutional matters, the first port of call is the text of the Constitution itself. Article 239(5) reads: “No amendment of the Constitution shall be called in question in any court on any ground whatsoever.”

    The very next clause (6) is: “For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (parliament) to amend any of the provisions of the Constitution.”

    The two clauses were inserted by Gen Zia and validated by the 8th Amendment. “The idea was to give parliament confidence,” explained Wasim Sajjad. “It was a way of suggesting, ‘Do whatever you like, it’s your business now’.”

    “Another reason was that in India the courts had appeared to suggest that they had the power to strike down changes to the constitution, and the clauses were introduced to suggest that was not the case for Pakistan,” Sajjad continued.

    Case closed, then? Not quite.

    The relevant parts of Article 239 amount to what in legal parlance are known as ‘ouster clauses’, i.e. the legislature tells the judiciary that it has no power to examine the legality of the laws concerned. But courts the world over have tended to be dismissive of such clauses, either voiding them outright or defining their scope very narrowly.

    So we have to move on to the case law. According to Feisal Naqvi, a Lahore-based lawyer, “There is no categorical statement anywhere in Pakistani judgments that says the Supreme Court has the power to strike down an amendment.”

    What has happened on at least three occasions, though, is that the Supreme Court has mentioned the existence of ‘salient features’ and ‘basic characteristics’ in the Constitution.

    In one of those judgments, Wukala Mahaz (1998), then-chief justice Ajmal Mian posed a tantalising question: “If the parliament by a constitutional amendment makes Pakistan as a secular state, though Pakistan is founded as an Islamic ideological state, can it be argued that this court will have no power to examine the vires of such an amendment.”

    Naqvi argued that even if there is such a thing as a ‘basic structure’ that the Supreme Court must protect, justice Ajmal Mian’s question suggests the court can only act in extreme cases. “Complete rewriting of the Constitution appears to be the touchstone,” Naqvi said.

    But such fundamental rewriting of the Constitution does not lie at the heart of the complaint in the petition filed by Karachi-based lawyer Nadeem Ahmed. Rather it is the role of the present government: “Article 175A… represents the fourth attempt of the executive to acquire control over the judicial organ,” Ahmed alleges in his petition.

    Both Ahmed and his lawyer, Akram Sheikh, emphasise the “circumstances and background” to the 18th Amendment.

    “The secretiveness, haste and timing are relevant. The judiciary is under attack by the government. Half the cabinet is facing charges, the law minister has said he’d ‘rather die’ than implement judgments, there have been three attorneys general in quick succession,” argued Ahmed.

    “It is with these circumstances in mind that the amendment should be viewed. Even otherwise, there was no need for a new process. Not a single judge appointed under the old process has been accused of any wrong.”

    Left unsaid was the fact that it was under the old process that judges such as Abdul Hameed Dogar, Gen Musharraf’s emergency-era pick for chief justice, were appointed.

    An incensed Athar Minallah argued: “All those who’ve suddenly remembered the ‘basic structure’ were more than happy to appear before the Dogar court. Where were their concerns about structure then?”

    Raza Rabbani was also dismissive: “I can say very emphatically that the basic structure of the Constitution has not been affected.”

    “When we were toying with the idea of the judicial commission, we were very clear on two things: one, independence of the judiciary should not be touched; and two, the ‘trichotomy of powers’, which had earned a mention in two recent cases of the Supreme Court, not be disturbed.”

    Rabbani also posed this question: “If anything, the 8th and 17th amendments altered the ‘basic structure’ of the Constitution and yet they were subsequently validated by the judiciary. How can the judicial appointment process be compared to those amendments?”

    “It will be awkward for the Supreme Court to strike down the (18th) amendment,” Wasim Sajjad observed. “Nobody has ever set aside a constitutional amendment. This one was passed unanimously by parliament.”

    Athar Minallah went further: “I challenge anyone who claims Article 175A is against the interests of the judiciary and democracy. It enhances transparency. (Those arguing against it) look down on the elected representatives and are expressing their contempt for the people of Pakistan.”

    Difficult or not, advisable or not, the bottom line is this: the Supreme Court is the ‘decider’ here. Notwithstanding past judgments, it alone will decide whether a constitutional amendment can be struck down and whether anything in the 18th Amendment deserves to be struck down.

    So what’s next?

    A lawyer requesting anonymity because he appears before the superior judiciary claimed, “We’ll know very soon if the court intends to take this further. If a larger bench, seven members, is formed, then the court may be in the mood to reverse itself on the position taken in the Pakistan Lawyers’ Forum case.”

    (That case, a 2005 judgment and the latest on the subject, notes that the ‘basic structure’ needs to be enforced not by the judiciary but by the “body politic, i.e. the people of Pakistan”. A certain Chief Justice Iftikhar Chaudhry was part of the five-member bench.)

    Ather Minallah pleaded for caution: “We are at a juncture where everyone must act with wisdom and set aside dislike for certain individuals.”

    He added, “There is a very strong undemocratic mindset behind these petitions. They must not be allowed to succeed in making the Supreme Court controversial.”

    But controversy is embedded in Pakistan’s DNA. It, more than democracy or the process for appointing judges, is part of our ‘basic structure’.

    What else can explain the fact that applause for the 18th Amendment has barely subsided and already the ‘land of the perennial crisis’ is bracing itself for the next round?

    http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/front-page/Controversy-over-18th-Amendment-240

  • Hamid Mir:

    وکلاء تحریک کے ایک اہم کردار اطہر من اللہ ایڈووکیٹ کا کہنا ہے کہ جس طرح صدر آصف علی زرداری کو بہت سے نادان دوستوں نے گھیر رکھا ہے اسی طرح وکلاء کی صفوں میں بھی کئی نادان دوست گھس چکے ہیں۔ ان نادان دوستوں نے سب سے پہلے تو وکلاء کی قیادت کو اختلافات کا شکار کیا اور اب سپریم کورٹ کو پارلیمنٹ کے ساتھ محاذ آرائی کی طرف دھکیل ر ہے ہیں۔ ستم ظریفی یہ ہے کہ دوسال پہلے عبدالحفیظ پیرزادہ صاحب کہتے تھے کہ معزول جج صرف اور صرف پارلیمینٹ میں آئینی ترمیم کے ذریعہ بحال ہوسکتے ہیں۔ چوہدری اعتزاز احسن کہتے تھے کہ معزول ججوں کی بحالی کیلئے ایک ایگزیکٹو آرڈر ہی کافی ہے۔ آخرکار وہی ہوا جو چوہدری اعتزاز احسن نے کہا تھا۔ آج عبدالحفیظ پیرزادہ صاحب عدلیہ کی آزادی کے بہت بڑے علم بردار بن گئے ہیں اور ہمارے دوست اکرم شیخ صاحب ان کے ساتھ مل کر کہہ رہے ہیں کہ سپریم کورٹ 18ویں ترمیم کو ختم کرسکتی ہے۔ اعتزاز احسن اور علی احمد کرد کہتے ہیں کہ 18ویں ترمیم میں کچھ خامیاں ضرور ہیں لیکن یہ پارلیمینٹ کا اتفاق رائے ہے اور سپریم کورٹ کو پارلیمینٹ کے اتفاق رائے سے ٹکرانے کا مشورہ نہ دیا جائے۔ 1973ء کے آئین کی دفعہ 239 کی شق 5 میں واضح ہے کہ آئین میں کی جانے والی کسی بھی ترمیم پر کسی عدالت میں سوال نہیں اٹھایا جاسکتا۔ دفعہ 270 کی شق 2 بھی یہی کہتی ہے کہ پارلیمینٹ کے بنائے گئے کسی قانون پر عدالتوں میں اعتراض نہیں کیا جاسکتا ۔ کچھ ماہرین بھارت کی عدالتوں کے حوالے دے رہے ہیں جہاں پارلیمینٹ کی ترامیم کو مسترد کیا گیا ۔ بھارت اور پاکستان میں خاصا فرق ہے۔ بھارت میں کبھی مارشل لاء نہیں لگا نہ وہاں کے ججوں نے کبھی پی سی او پر حلف لیا ہے اور نہ کبھی کسی منتخب و زیراعظم کو متنازع فیصلے کے ذریعے پھانسی پر لٹکایا گیا ہے۔ پاکستان کے حالات بالکل مختلف ہیں۔ پاکستان میں 9/مارچ 2007ء کے بعد ججوں کی جرات انکار نے یقیناً عدلیہ کو ایک نئی عزت دی لیکن اس عدلیہ نے بحالی کے بعد ججوں کی تقرریوں کے معاملے پر دوبارہ خود کو تنازعات میں الجھا لیا اور پارلیمینٹ کو مجبور کردیا کہ وہ صدر کیساتھ ساتھ چیف جسٹس کے لامحدود اختیارات پر چیک اینڈ بیلنس قائم کرے۔ مجھے ذاتی طور پر 18ویں ترمیم کے ذریعہ جوڈیشل کمیشن کے قیام پر کوئی اعتراض نہیں البتہ سیاسی جماعتوں میں الیکشن کرانے کی شرط کا خاتمہ میرے لئے مایوسی کا باعث بنا۔ پچھلے دنوں میں اس تذبذب میں تھا کہ 18ویں ترمیم کی حمایت کروں یا مخالفت؟ عالم تذبذب میں رہنمائی کیلئے اس خاکسار نے جسٹس (ر) فخر الدین جی ابراہیم سے ہدایت طلب کی۔ فخرو بھائی کی فکری دیانت اور حب الوطنی پر مجھے اندھا اعتماد ہے۔ وہ ایک بے لوث اور انتہائی ایماندار انسان ہیں جنہوں نے جنرل ضیاء الحق کے دور میں سپریم کورٹ کے جج کا عہدہ چھوڑا، پھر اٹارنی جنرل کے عہدے سے استعفےٰ دیا، پھر وزیر قانون کا عہدہ چھوڑا اور گورنر سندھ کا عہدہ بھی چھوڑا۔ فخرو بھائی نے مجھے کہا کہ 18ویں ترمیم میں کچھ خامیاں تو موجود ہیں لیکن مجموعی طور پر یہ پارلیمینٹ کے احتجاجی شعور کی آئینہ دار ہے۔ پارلیمینٹ کو موقع دیا جائے کہ وہ اس پر عمل درآمد کرے اور اس میں خامیوں کو خود دور کرے۔ فخرو بھائی موجودہ حالات میں پارلیمینٹ اور سپریم کورٹ میں تصادم کو قومی سلامتی کیلئے سخت مضر سمجھتے ہیں۔ ان کی ہدایت نے مجھے مطمئن کردیا۔
    اگر خدانخواستہ سپریم کورٹ نے 18ویں آئینی ترمیم کے خلاف کوئی فیصلہ دیا تو پارلیمینٹ کے دونوں ایوانوں کے اجلاس بلا کر فیصلے کو مسترد کردیا جائے گا۔ عبدالحفیظ پیرزادہ کہتے ہیں کہ سپریم کورٹ آئین کی دفعہ 190 کے تحت فوج کو بلاسکتی ہے ۔لیکن سپریم کورٹ نے 1998ء میں بھی فوج کو مدد کیلئے بلایا تھا لیکن جہانگیر کرامت نے سپریم کورٹ کا خط وزارت دفاع کو بھیج دیا تھا۔ جنرل کیانی بھی وہی کریں گے جو جنرل کرامت نے کیا تھا کیونکہ ملک نہ تو آج فوجی مارشل لاء کا متحمل ہے ، نہ جوڈیشل مارشل لاء کسی مسئلے کا حل ہے اور نہ ہی سویلین مارشل لاء کی حمایت کی جاسکتی ہے۔ سب ادارے اپنی اپنی حدود میں رہیں، تصادم سے گریز کریں۔ صدر زرداری اور نواز شریف اپنی اپنی پارٹیوں میں الیکشن کروا کر ہم جیسوں کو مطمئن کردیں اور زرداری آئندہ نادان دوستوں سے دور رہیں تو بہتر ہوگا

    http://search.jang.com.pk/details.asp?nid=426994

  • Nazir Naji

    ۔ اکانومسٹ جیسے معتبر جریدے نے تو باقاعدہ نام لے کر ہمارے چیف جسٹس کوکشمکش اقتدارکا ایک کردار بھی لکھ ڈالا۔ ظاہر ہے عدلیہ کے بارے میں یہ تصور کہ وہ حکومت کی حریف یا اقتدار کے معاملات میں دخیل ہے۔ اس کے تقدس کو متاثر کرتا ہے۔
    حقائق یا محض تصورات پر مبنی یہ تاثر کہ سیاسی مقاصد کے لئے عدلیہ سے مدد لی جا سکتی ہے‘ 18ویں ترمیم پاس ہونے کے بعد کئی خدشات اور امیدوں کو ہوا دینے لگا ہے۔ دو گروہ باقاعدہ طور سے کھل کر عدلیہ سے اپنی خواہش کے مطابق کردار کی توقع کرتے ہوئے‘ کھلی بحث چھیڑ بیٹھے ہیں۔ ایک گروپ وہ ہے‘ جو حکومت سے اپنے سیاسی حسابات‘ عدلیہ کی مدد لے کر چکانے کا خواہش مند ہے۔ وہ گروپ یہ دلائل دے رہا ہے کہ عدلیہ آئینی ترمیم پر نظرثانی کرنے کی مجاز ہے۔ وہ آئین کا حصہ بن جانے والی کچھ شقوں یا پورے آئین پر پھیلی ہوئی 18ویں ترمیم کو معطل کرنے کا بھی اختیار رکھتی ہے۔ ایک ریٹائرڈ جج صاحب تو اپنے موقف کے حق میں دلائل دیتے ہوئے‘ اتنے جوش میںآ گئے کہ پوچھنے لگے ”اگر پارلیمنٹ پاکستان کو بھارت میں شامل کرنے کا فیصلہ کر دے‘ تو کیا ہم اسے مان لیں گے؟“ دلائل میں زور پیدا کرنے کے لئے مفروضے بھی کسی مثال پر قائم کئے جاتے ہیں۔ مجھے کوئی ایسی مثال نہیں معلوم کہ جمہوری تاریخ میں آج تک کسی منتخب پارلیمنٹ نے ‘ اپنے ہی ملک کو دوسرے ملک میں شامل کرنے کا فیصلہ کیا ہو۔ دلائل کے حق میں مثالیں دیتے ہوئے ہوش و حواس کا قائم رہنا ضروری ہے۔ دلیل منطق کا حصہ ہے اور منطق شدت جذبات میں غرق ہو جائے‘ تو دیوانگی کی حدود میں داخل ہو جاتی ہے۔ دیوانگی کی صورتحال اس وقت پیدا ہوتی ہے‘ جب آپ عقل و فہم اور دلائل سے محروم ہونے کے بعد اپنی بات منوانے کے لئے ضد پر اتر آئیں۔ آئین پر عدلیہ کی بالادستی قائم کرنے کے خواہشمندوں نے سابق چیف جسٹس سجاد علی شاہ سے ایک ایسا ہی فیصلہ کرا ڈالا تھا‘ جس طرح کا فیصلہ آج ایک گروہ عدالت عظمیٰ سے حاصل کرنا چاہتا ہے۔ انہوں نے ایک آئینی ترمیم کو عدالتی فیصلے کے ذریعے ختم کرنے کا فیصلہ دیا‘ تو خود بھی گھر چلے گئے اور وہ فیصلہ بھی اپنے نفاذ کی صورت دیکھے بغیر دفن ہو گیا۔
    جس طرح جسٹس سجاد علی شاہ کے ہاتھوں ناجائز قرار پانے والی ترامیم کے پیچھے ایک متحدہ پارلیمنٹ کھڑی تھی۔ 18ویں ترمیم کے پیچھے بھی متحدہ پارلیمنٹ موجود ہے۔ بے شک اس پارلیمنٹ کے اندر موجود بعض عناصر‘ اپنے ذاتی مفاد کے لئے آئین کو عدلیہ کے ہاتھوں پامال کرانے کی خواہش رکھتے ہیں لیکن خدانخواستہ کسی بھی طرف سے آئین پر ہاتھ ڈالا گیا‘ تو ایسے عناصر کو یا عوام کے ساتھ کھڑے ہونا پڑے گا یا عوام کے ہاتھوں رسوائی کا منہ دیکھنا ہو گا۔ مجھے علم ہے پاکستان میں آئین کو بار بار پامال کیا گیا۔ لیکن ہر پامالی میں فوج کی طاقت کا دخل ضرور تھا۔ جسٹس سجاد علی شاہ نے فوج کی مدد پر بھروسہ کرتے ہوئے فیصلہ سنایا تھا۔ لیکن جنرل جہانگیرکرامت آئین کے پابند رہے اور ان سے مدد مانگنے کے لئے جو خط لکھا گیا تھا‘ وہ خط انہوں نے اس وقت کے سیکرٹری دفاع کو بھیج دیا تھا۔ عدالت عظمیٰ کا وہ فیصلہ اور وہ چیف جسٹس آف پاکستان ‘دونوں ہی تاریخ کا حصہ بن گئے۔ اسی بنا پر بار بار لکھتا ہوں کہ عدلیہ کو اپنی اخلاقی اور آئینی طاقت پر بھروسہ کرنا چاہیے اور ایسے ہر فیصلے سے گریز کرنا چاہیے‘ جس پر عملدرآمد کے لئے کسی بھی دوسرے ریاستی ادارے کی طاقت ‘ دوسرے ادارے کے خلاف استعمال کرنے کی ضرورت پڑے۔ اگر بعض لوگوں کی خواہشات کے مطابق عدالت عظمیٰ 18ویں ترمیم یا اس کے کسی ایک حصے کو معطل کرتی ہے‘ تو نفاذ کی طاقت کہاں سے لے گی؟ ایک ہزار طریقہ سوچ کر دیکھ لیں۔ ہر طریقے میں کسی ایک ریاستی ادارے کو دوسرے بڑے ریاستی ادارے یعنی پارلیمنٹ کو زیرکرنا پڑے گا۔ اگر کوئی چیف آف آرمی سٹاف‘ اس صورتحال سے فائدہ اٹھانے کا آرزو مند ہو‘ تو یقینا یہ آئیڈئیل صورتحال ہو گی۔ لیکن پاکستان کا کوئی بھی فوجی سربراہ اتنا کوتاہ اندیش ثابت نہیں ہوا کہ تمام ریاستی اداروں کو تہس نہس کرتے ہوئے‘ اقتدار پر قبضہ کرے۔ ہر ایک نے ریاستی ڈھانچے کو بچانے کی خاطر‘ تسلسل برقرار رکھنے کا طریقہ ضرور اختیار کیا۔ جس طرح جسٹس سجاد علی شاہ کے فیصلے پر عملدرآمد کی خاطر فوج کو پارلیمنٹ کے خلاف کارروائی کے لئے کہا گیا تھا‘ نئے فیصلے کے آرزومند بھی اسی طرح کی صورتحال پیدا کرنا چاہتے ہیں۔ یہ پیدا ہو گئی تو؟ چیف آف آرمی اسٹاف نے اس کھیل کا حصہ بننے سے انکار کر دیا تو؟ حکومت اور فوج نے یکجا ہو کر آئین کا تقدس برقرار رکھنے کا فیصلہ کر لیا تو؟ سارے جھگڑوں سے تنگ آ کر فوج اقتدار پر قبضہ کر بیٹھی تو؟ سوچتے جایئے اور پھر غور کیجئے کہ چوہدری اعتزاز احسن ‘ جسٹس (ر) طارق محمود‘ علی احمد کرد اور اطہرمن اللہ کیا کہہ رہے ہیں؟ اور کیوں کہہ رہے ہیں؟اور جو وکلاء ان کی مخالفت کر رہے ہیں ان میں اکثر کی شہرت‘ اپنے پیشے اور معاشرے میں کیا ہے

    http://search.jang.com.pk/details.asp?nid=427000

  • Dirty Past of Supreme Court Advocate Qazi Anwar & Lawyers Movement.
    http://chagataikhan.blogspot.com/2010/04/dirty-past-of-supreme-court-advocate.html

    ISLAMABAD: Supreme Court Bar Association (SCBA) has filed a petition in the Supreme Court, challenging the judicial commission on judges’ appointment. Talking to media outside Supreme Court, President SCBA Qazi Anwar said that Hamid Khan, Rashid A Rizvi and he himself will appear before the court. He said the present assembly is not constitutional making body but a legislation making institution. Qazi Anwar said the Indian Supreme Court had also declared constitutional amendments as void. Replying to a question about Aitizaz Ahsan and Ali Ahmad Kurd, he denied to give the reply and said lawyers community from Chitral to Karachi stands behind them. REFERENCE: SCB challenges judges commission Updated at: 1545 PST, Wednesday, April 21, 2010 http://www.thenews.com.pk/updates.asp?id=103340
    Wednesday, April 21, 2010, Jamadi-ul-Awwal 06, 1431 A.H
    http://www.jang.com.pk/jang/apr2010-daily/21-04-2010/u28424.htm

    Supreme Court Bar Association (SCBA) president Qazi Anwer said that neither he is an agent of the Chief Justice nor he termed all the Parliamentarians as ‘smugglers’. He said that he would be happy if the Parliament handed him death sentence. Talking to media outside the Supreme Court, he said that ‘smugglers’ can be part of the Parliament but without verification; they were abused in the National Assembly, Senate and provincial assemblies. He said that Fauzia Wahab called him mad and also said that ‘I need treatment in hospital.’ He said that judiciary is a professional institution whereas the Parliament can do law-making under the limits. Qazi Anwer said that he always advocated the oppressed and nobody would be allowed to interfere in works of independent judiciary. REFERENCE: SCBA President Says He Is Not Agent Of CJP Wednesday, March 31, 2010 at 1:06 pm under Pakistan News http://www.apakistannews.com/scba-president-says-he-is-not-agent-of-cjp-173247

    LAHORE: Qazi Mohammad Anwar was elected president of the Supreme Court Bar Association on Wednesday. According to unofficial results of the elections held for offices of the association, Qazi Anwar got 401 votes in Lahore, 118 in Karachi, 19 in Abbottabad, 25 in Bahawalpur, 32 in Quetta, 133 in Islamabad, 55 in Multan, 43 in Peshawar and five in Sukkur. His rival Barrister Bachaa bagged 340 votes in Lahore, 73 in Karachi, 11 in Abbottabad, 21 in Bahawalpur, 31 in Quetta, 137 in Islamabad, 26 in Multan and 50 in Peshawar. He did not get any vote in Sukkur. Talking to newsmen, Qazi Anwar, who belongs to the Professional Group, vowed to keep the lawyers’ movement intact because, he said, there were still many challenges for the nation. Raja Zulqarnain and Syed Rifaqat Hussain, also belonging to the Professional Group, were elected as secretary and finance secretary, respectively. Mian Waheed Akhter, Malik Manzoor Hussain and K.A. Wahab were elected as vice presidents for Punjab, the NWFP and Sindh, respectively. Amanullah Kanrani Baloch and Ahsanuddin Sheikh had been elected unopposed as vice president and additional secretary, Balochistan, respectively. – PESHAWAR: The Awami National Party (ANP)-backed Malgary Wakeelan has nominated senior advocate and former senator Qazi Muhammad Anwar for the office of president in the forthcoming election for the Supreme Court Bar Association. It has been learnt that a meeting of Malgary Wakeelan, chaired by its provincial president Abdul Lateef Afridi, decided to field Qazi Anwar for the contest. The post of SCBA’s president is filled on rotational basis and this time it is the turn of the NWFP. The annual SCBA election would be held in October for which the date would be announced later. The meeting was attended by senior members of the association, including its provincial secretary general Rafiq Mohmand, Fazlur Rahman Khan, Ishtiaq Ibrahim, Sher Afgan Khattak, Qaiser Rasheed and Raza Khan. The meeting considered the names of Qazi Anwar and Barrister Baachaa for the office and opted for the former. It was learnt that Barrister Baachaa would be contesting for the office without the ANP’s support after being assured of backing by certain lawyers’ groups. Qazi Anwar is member of the Pakistan Bar Council and has also served as NWFP advocate general. He was also elected to the Senate on ANP ticket. He was one of the six lawyers who had represented Chief Justice Iftikhar Muhammad Chaudhry when General (R) Pervez Musharraf filed the controversial reference against the top judge in March 2007. REFERENCES: Qazi Anwar elected SCBA president Thursday, 29 Oct, 2009 http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/news/pakistan/12-qazi+anwar+elected+scba+president–bi-10 ANP names Qazi Anwar for SCBA top office Friday, August 07, 2009 Bureau report http://www.thenews.com.pk/daily_detail.asp?id=191908

    ISLAMABAD: The Pakistan Bar Council (PBC) has issued notice to Qazi Muhammad Anwar, President, Supreme Court Bar Association, to appear on February 14 and submit reply for his alleged involvement in possessing explosives and detonators. Barrister Bacha, a leading lawyer of the Peshawar High Court, had filed an application with the PBC, seeking disqualification of Qazi Muhammad Anwar for being a convicted person in a case of possessing hand grenades and detonators. The Executive Committee of the Pakistan Bar Council (PBC) has issued notice to Qazi Anwar to explain his position, Barrister Bacha told The News on Monday in the Supreme Court. The PBC, the main forum of the country’s legal community, is the main licence issuance authority to the lawyers of the country. Qazi Anwar is also facing rigging charges in the last annual elections of the association. His opponent and runner-up in the SCBA elections, Barrister Bacha had also moved an application to the committee for probing the matter. In his application, Barrister Bacha has alleged that Qazi Anwar is a convicted person for having grenades and detonators in his possession thus a convicted person can neither be an advocate of the Supreme Court nor could and should represent the SCBA as president as he is patently disqualified. Qazi Anwar, however, reportedly said that the Lahore High Court had set aside his conviction in the case. Meanwhile, Barrister Bacha told reporters that Qazi Anwar was sentenced nine monthsí imprisonment by a military court for possessing explosives in 1979, adding that the Lahore High Court curtailed his punishment; however, his conviction was still intact. REFERENCE: PBC issues notice to Qazi Anwar By Sohail Khan Tuesday, February 02, 2010 http://www.thenews.com.pk/top_story_detail.asp?Id=27023

    ISLAMABAD: The Pakistan Bar Council (PBC) will be moved today (Sunday) for disqualification of Qazi Muhammad Anwar, President, Supreme Court Bar Association (SCBA), for being a convicted person possessing grenades and detonators in the past. The Executive Committee of the Pakistan Bar Council (PBC) is meeting today (Sunday) in the Supreme Court and, besides other issues, would focus on the rigging complaints, filed by Barrister Baacha, the runner-up and opponent of SCBA President Qazi Muhammad Anwar. As dark clouds surrounding the Supreme Court Bar Association (SCBA) President, Qazi Muhammad Anwar, for alleged rigging in its annual election, his opponent Barrister Baacha is moving another application against the sitting president, seeking his disqualification. “Qazi Muhammad Anwar is admittedly a convicted person for having grenades and detonators in his possession, thus a convicted person can neither be an advocate of the Supreme Court nor could and should represent the SCBA as president as he is patently disqualified,” says Barrister Baacha in his application.

    The copy of the application available with The News further reads that the respondent, Qazi Muhammad Anwar, has admitted his conviction and sentence, which is placed on Pakistan Law Journal (PLJ) 1998, Peshawar, page No 200. The applicant (Baacha) requested the Executive Committee of the Pakistan Bar Council that as Qazi Muhammad Anwar was a convicted person, therefore, an order may be passed immediately, restraining him from acting as the Supreme Court Bar Association president. He also prayed to the committee to direct the senior vice president of the Supreme Court Bar Association to act as SCBA president till such time that the appeal against the election of Qazi Anwar was finally decided as was done in the case of controversial election between Malik Muhammad Munir and Raja Haq Nawaz. Barrister Baacha said that in 1979, some grenades and detonators were recovered from the possession of Qazi Muhammad Anwar, and he was later convicted in the case and sentenced to nine months imprisonment. Barrister Baacha was the opponent of Qazi Muhammad Anwar in the last annual election of the Supreme Court Bar Association and had challenged the victory of the sitting president and had filed a complaint with the Executive Committee of Pakistan Bar Council (PBC), alleging vast rigging in the election. The PBC Executive Committee, which is meeting today (Sunday) with its Chairman Chaudhry Nasrullah Warraich, is also expected to take up the application filed by advocate Hashmat Habib, alleging that senior lawyers of the Supreme Court, including Syed Sharifuddin Pirzada, Malik Muhammad Qayyum, Law Minister Dr Babar Awan and Barrister Aitzaz Ahsan, had received millions of rupees in Haris Steel Mills scandal. He had submitted that these lawyers had violated Article 10 of the Cannons of Profession Conduct and Etiquettes. REFERENCE: PBC being moved for Qazi’s disqualification By Sohail Khan Sunday, January 31, 2010 http://www.thenews.com.pk/daily_detail.asp?id=221755

    Qazi Anwar says that Smugglers are sitting in the Parliament but failed to remember that one of the party which is in the Parliament i.e. Awami National Part had nominated him for the Bar Election:))) REFERENCES: Smugglers in Parliament cannot appoint judges Updated at: 1313 PST, Saturday, March 27, 2010 http://www.geo.tv/3-27-2010/61831.htm SCBA rejects judges’ appointment by ‘smugglers’ in Parliament March 27, 2010 http://www.nation.com.pk/pakistan-news-newspaper-daily-english-online/Politics/27-Mar-2010/SCBA-rejects-judges-appointment-by-smugglers-in-Parliament Fake Video of Swat Flogging, Alleged Justice & Lawyers Movement. http://chagataikhan.blogspot.com/2010/03/fake-video-of-swat-flogging-alleged.html

    Barrister Ahsan accused the lawyers who used to appear before the Dogar court and PCO judges of advocating against the supremacy of the parliament, an accusation that was taken seriously by Advocate Akram Sheikh who alleged that Mr Ahsan had appeared for the independence of judiciary only once in his career by defending the chief justice against his suspension. Mr Ahsan appeared on behalf of the federal government in the 1996 Al-Jihad Trust case to oppose the independence of judiciary, said Mr Sheikh who is representing one of the petitioners who have challenged the 18th Amendment. Mr Ahsan also used to appear before the military courts, he alleged suggesting that he should not pelt stones while sitting inside a glass house. On apex court’s authority, he said that the Supreme Court could not only strike down the 18th Amendment but could also suspend it as an interim measure. Both senior counsel, Akram Sheikh and Aitzaz Ahsan, also had a brief tiff at the outer gates of the apex court. Senior counsel Abdul Hafeez Pirzada believes that parliament that had made significant changes in the constitution through the 18th Amendment is not a constituent assembly and quoted the 1975 Indian case, namely Indira Gandhi versus Raj Narayan, in which the Indian Supreme Court had struck down certain amendments. Amendments are meant to improve things and not to destroy things, he said. A.K. Dogar was of the view that the power of a judicial review of the apex court was part of a basic structure which could not be touched by the parliament. REFERENCE: Aitzaz, Akram spar over parliament By Nasir Iqbal Wednesday, 21 Apr, 2010 http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/front-page/19-aitzaz,-akram-spar-over-parliament-140-hh-02

    Qazi Anwar doesn’t even spare his own colleague Aitzaz Ahsan

    LAHORE: Lawyers have accused Supreme Court Bar Association (SCBA) President Aitzaz Ahsan of sabotaging their movement for restoration of the judiciary. Pakistan Bar Council (PBC) member Parvaiz Anayat Malik said the SCBA president had played a “double game” which did not last long. NWFP Bar Council Vice-Chairman Qazi Naeem said Aitzaz had ruined the lawyers’ long march after ending it inconclusively. On February 24, PBC members accused Aitzaz of taking a ‘solo flight’ when he announced to hold a long march to Islamabad on March 9. Withdrawing his long march call following the PBC’s reservations, he, instead, announced a black flag week between March 9 and 16. Former PBC Executive Committee chairman Qazi Anwar said that lawyers supported Aitzaz’s black flag week to maintain unity among their ranks. Relations between the SCBA president and his party, the PPP, also deteriorated when a foreign newspaper quoted him as saying on June 2 that “most corruption allegations against Asif Ali Zardari and Benazir Bhutto were justified”. However, Aitzaz denied as saying so. Lawyers have also accused him of striking a deal with the PML-N when he decided not to conclude the long march with a sit-in outside Parliament House. Aitzaz said elements against the lawyers’ movement were alone trying to sabotage it by creating rifts among movement leaders, adding that these elements would fail in their designs. He denied the impression that he had benefited from the lawyers’ movement, saying he did not avail the opportunity to contest the general elections and by-elections when his victory was evident due to his popularity during the movement. REFERENCE:‘Aitzaz sabotaged lawyers’ movement’ Saturday, October 25, 2008 rana tanveer http://www.dailytimes.com.pk/default.asp?page=2008\10\25\story_25-10-2008_pg7_36

    DARK PAST OF SENATOR QAZI MUHAMMAD ANWAR [NOW PRESIDENT SUPREME COURT BAR ASSOCIATION]

    LAHORE, April 25: Chief Ehtesab Commissioner Justice Ghulam Mujaddid Mirza has dropped three references against Prime Minister Nawaz Sharif as they have either no substance and merit or they don’t pertain to the period with which the Ehtesab Act deals. In a fourth reference, the CEC has excluded the prime minister as respondent but has referred the matter for inquiry and investigation to the Ehtesab Bureau. The other respondent in the reference against whom the EB will now carry out investigations, is NWFP Chief Minister Mehtab Ahmed Khan Abbasi. Knowledgeable sources say that proceedings on many other references against the prime minister and others are in progress. Records summoned by the CEC in various cases have reached the Ehtesab commission and are being examined. In the light of the records, Justice Mirza will decide whether or not to refer the matters to the Ehtesab benches of the relevant high courts. A reference against Prime Minister Sharif is that he offered Rs10 million to ANP Senator Qazi Muhammad Anwar to get his support for the Shariat Bill. The CA-15 bill, though passed by the National Assembly, is yet to be approved by the Senate as the ruling party does not have the required two-third majority in the Upper House. Maj-Gen Sikandar Hayat Khan, who has recently been removed as chairman of the prime minister’s monitoring and evaluation cell, is the co-respondent in the said reference. After going through the relevant evidence and record, justice Mirza ruled on Saturday that the complaint was devoid of merit and thus there was no need to initiate further proceedings on it in the light of the Ehtesab Act. “The complaint is, accordingly, ordered to be filed,” the CEC said in his four-page judgment. It was alleged in the complaint that Maj-Gen Hayat, on the direction of the prime minister offered Rs 10 million to Sen Qazi Anwar to support the CA-15 Bill in the Senate. The complainant, a PPP leader, appeared before the CEC on April 21 at Islamabad in response to the commission’s notice. He made an application under section 20 of the Ehtesab Act for summoning Sen Anwar, an advocate of the Supreme Court. He also said that Gen Hayat and the editor and reporter of weekly Tribune, Islamabad, be summoned. In addition to this application, he also produced a copy of the weekly, dated November 22 to 28, 1998, which carried an article on the subject.

    Having gone through the article, the CEC said: “In my considered view the article does not advance the complainant’s case. On the contrary there are substantial and material discrepancies and contradictions in the narration of the Tribune’s article and the contents of the complaint. “For example,” the CEC said, “in the complaint it is stated that it was Maj-Gen Sikandar Hayat who had offered bribe to Sen Qazi Anwar in Peshawar in the last week of October, 1998, and that the former was sent by the prime minister to negotiate the deal and to offer Rs10 million which the general was carrying as a token money in a briefcase”. However, the CEC said in his order that the article did not substantiate that it was the Gen Hayat who had contacted the ANP leader and offered him the bribe. The CEC observed that “it is quite obvious that the stance taken in the complaint is irreconcilable with the interview given by the senator to the weekly and cannot be conformed on any plain. It also does not stand to reason that the token money of Rs10 million was offered and that too for one vote. It also does not stand to reason that the bribe was offered to Qazi Anwar when he was present on the premises of the Peshawar High Court.

    Justice Mirza said: “In view of the above, I am of the opinion that the complaint is devoid of merit and, therefore, it is not necessary to initiate proceedings on it under the Ehtesab Act, 1997. The complaint is, accordingly, ordered to be filed”. Yet another case dismissed by the CEC is that the prime minister, without any authority, had allotted 18 plots to a single family. A similar reference dismissed by the CEC says that the PM allotted plots to Ms Fatima Ishrat Iqbal and her daughter Nuzhat Iqbal in the Area Development Scheme 1, Rawalpindi. Justice Mirza said the case did not pertain to the period the Ehtesab Act deals with and was thus dropped. Another reference closed by the CEC was based on the allegation that the prime minister had awarded Senate ticket to law minister Khalid Anwar. Justice Mirza ruled that the proper forum for this matter was the chief election commissioner and not the chief Ehtesab commissioner. The fourth case pertained to illegal acquisition of precious lands in Abbottabad district. The CEC ruled that the matter was examined but due to lack of substantial evidence against the prime minister, his name was deleted as respondent. However, he referred the matter against NWFP Chief Minister Mehtab Abbasi to the Ehtesab Bureau for investigation. REFERENCE: CEC drops 3 references against Nawaz Ashraf Mumtaz DAWN WIRE SERVICE Week Ending:01 May 1999 Issue:05/18 http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/1999/01May99.html

    PESHAWAR, July 17: Awami National Party (ANP) has again expressed dissatisfaction over the government policies, and resolved that unless it is removed, the country could not be steered out of present predicament. The Deputy Secretary General of the ANP, Qazi Mohammed Anwar, a dissident of the PPP and a former advocate general of the NWFP, at a Press conference here on Monday released decisions taken at ANP’s Central Committee’s meeting held under the presidentship of the party’s chief, Mohammed Ajmal Khattak, at Rawalpindi on Friday last. Replying to a question regarding MQM’s demand for a separate province, Qazi claimed that the MQM chief, Altaf Hussain had given a written assurance to the ANP that his party would never demand for the division of Sindh and termed it a propaganda by the government to portray MQM’s negative impression to achieve its ‘nefarious designs’. REFERENCE: No demand for separate province, Altaf assures ANP From A Correspondent DAWN WIRE SERVICE Week Ending:20 July, 1995 Issue:01/28 http://www.lib.virginia.edu/area-studies/SouthAsia/SAserials/Dawn/1995/20Jly95.html

    Qazi Anwar was sentenced nine months in jail for possessing explosives in 1979, adding Lahore High Court curtailed his punishment; however, his charge was kept unchanged. PESHAWAR: Peshawar High Court’s Barrister Bacha requested Pakistan Bar Council’s Executive Committee for the ineligibility of Supreme Court Bar Association President Qazi Muhammed Anwar, Geo News reported Monday. Talking to Geo News, Bacha said Qazi Anwar was sentenced nine months in jail for possessing explosives in 1979, adding Lahore High Court curtailed his punishment; however, his charge was kept unchanged. Bacha said a convicted person cannot be the representative of the lawyers; therefore, he demanded the removal of Qazi from his office. He said the PBC’s executive council directed Qazi Anwar to appear before the body on February 14 for explanation in this connection. REFERENCE: PBC approached for Qazi Anwar’s ineligibility Updated at: 1445 PST, Monday, February 01, 2010 http://www.thenews.com.pk/updates.asp?id=97613

    Monday, February 01, 2010, Safar 16, 1431 A.H
    http://www.jang.com.pk/jang/feb2010-daily/01-02-2010/u19629.htm

    Rogue AND Anarchist Lawyer of Supreme Court Bar Insults Pakistani Voters.

    Sindh Assembly members on Monday took strong exception to the statement of President Supreme Court Bar Association (SCBA) Qazi Anwar and termed it an insult to the august house. PPP’s parliamentary leader Pir Mazhar-ul-Haq said that the SCBA president had breached the privilege of legislators by saying that “smugglers and rogues” were sitting in the parliament. He condemned such attitude of the leader of lawyers’ body, saying that the lawyers were supposed to follow their code of conduct, which calls for using cautious language and avoiding allegations. He said that good and bad people happen to be everywhere but it was not advisable to generalize the matter. Minister for Law Mohammed Ayaz Soomro said that parliament was a supreme body that makes the constitution. MQM’s Shoaib Bukhari said that Qazi Anwar has “belittled” his stature by using such awkward language. He said that Supreme Court exists because of parliament, adding, if the lawyers continued this attitude the people might stop respecting them. Speaker Nisar Ahmed Khuhro observed that the legislators could move a privilege motion to summon the SCBA president before the PA body. –
    ISLAMABAD: The statement of President Supreme Court Bar Association (SCBA) Qazi Anwar in which he labelled the parliamentarians as “smugglers” made the legislators protest strongly against these remarks in the National Assembly and urged the House to move a joint privilege motion against these remarks. Raising the issue on a point of order on Monday, PML-Q legislator Waqas Akram Sheikh contended that the SCBA president had declared all the parliamentarians “thieves and smugglers” without any evidence and thus insulted parliament that is a supreme body. He proposed for a joint privilege motion of the House against such remarks so that no body could level charges against parliamentarians without any evidence.PML-N legislator Khawaja Saad Rafiq declared the SCBA president as an unbalanced person, who should not be taken seriously yet he opposed any motion against him. But PPP legislator Nadeem Afzal Gondal, who supported Sheikh Waqas Akram’s view of presenting the joint privilege motion against the SCBA president’s remarks, at the same expressed the desire that some anchor persons and a section of the media should also be included in it. However, independent legislator Saima Bharwana and PPP legislator Syed Zafar Ali Shah opposed the proposal to move a privilege motion. Saima Akhtar Bharwana said rather than focusing on these remarks there is a need to question those legislators, who spent two years in the House with fake degrees. “The government should go into a review petition with a plea to put a life ban on those who got fake degrees and recover all the money from them spent in two years on their perks and privileges,” she added. While Syed Zafar Ali Shah was of view that rather than focusing on this issue there is need to consume the energies on the issues relating to people. Earlier, raising the issue on a point of order, Sheikh Waqas Akram suggested that the Parliamentary Committee on Constitutional Reforms was still working so they should be requested to add a clause to the Constitution that anybody who accused the parliamentarians without any evidence would be liable to contempt of parliament. REFERENCES: MPAs take strong exception to SCBA president’s comment By our correspondent Tuesday, March 30, 2010 Karachi http://www.thenews.com.pk/daily_detail.asp?id=231614 Qazi Anwar under fire in NA By Asim Yasin Tuesday, March 30, 2010 http://thenews.jang.com.pk/top_story_detail.asp?Id=28072

  • Sarah Khan :
    Nazir Naji
    ۔ اکانومسٹ جیسے معتبر جریدے نے تو باقاعدہ نام لے کر ہمارے چیف جسٹس کوکشمکش اقتدارکا ایک کردار بھی لکھ ڈالا۔ ظاہر ہے عدلیہ کے بارے میں یہ تصور کہ وہ حکومت کی حریف یا اقتدار کے معاملات میں دخیل ہے۔ اس کے تقدس کو متاثر کرتا ہے۔
    حقائق یا محض تصورات پر مبنی یہ تاثر کہ سیاسی مقاصد کے لئے عدلیہ سے مدد لی جا سکتی ہے‘ 18ویں ترمیم پاس ہونے کے بعد کئی خدشات اور امیدوں کو ہوا دینے لگا ہے۔ دو گروہ باقاعدہ طور سے کھل کر عدلیہ سے اپنی خواہش کے مطابق کردار کی توقع کرتے ہوئے‘ کھلی بحث چھیڑ بیٹھے ہیں۔ ایک گروپ وہ ہے‘ جو حکومت سے اپنے سیاسی حسابات‘ عدلیہ کی مدد لے کر چکانے کا خواہش مند ہے۔ وہ گروپ یہ دلائل دے رہا ہے کہ عدلیہ آئینی ترمیم پر نظرثانی کرنے کی مجاز ہے۔ وہ آئین کا حصہ بن جانے والی کچھ شقوں یا پورے آئین پر پھیلی ہوئی 18ویں ترمیم کو معطل کرنے کا بھی اختیار رکھتی ہے۔ ایک ریٹائرڈ جج صاحب تو اپنے موقف کے حق میں دلائل دیتے ہوئے‘ اتنے جوش میںآ گئے کہ پوچھنے لگے ”اگر پارلیمنٹ پاکستان کو بھارت میں شامل کرنے کا فیصلہ کر دے‘ تو کیا ہم اسے مان لیں گے؟“ دلائل میں زور پیدا کرنے کے لئے مفروضے بھی کسی مثال پر قائم کئے جاتے ہیں۔ مجھے کوئی ایسی مثال نہیں معلوم کہ جمہوری تاریخ میں آج تک کسی منتخب پارلیمنٹ نے ‘ اپنے ہی ملک کو دوسرے ملک میں شامل کرنے کا فیصلہ کیا ہو۔ دلائل کے حق میں مثالیں دیتے ہوئے ہوش و حواس کا قائم رہنا ضروری ہے۔ دلیل منطق کا حصہ ہے اور منطق شدت جذبات میں غرق ہو جائے‘ تو دیوانگی کی حدود میں داخل ہو جاتی ہے۔ دیوانگی کی صورتحال اس وقت پیدا ہوتی ہے‘ جب آپ عقل و فہم اور دلائل سے محروم ہونے کے بعد اپنی بات منوانے کے لئے ضد پر اتر آئیں۔ آئین پر عدلیہ کی بالادستی قائم کرنے کے خواہشمندوں نے سابق چیف جسٹس سجاد علی شاہ سے ایک ایسا ہی فیصلہ کرا ڈالا تھا‘ جس طرح کا فیصلہ آج ایک گروہ عدالت عظمیٰ سے حاصل کرنا چاہتا ہے۔ انہوں نے ایک آئینی ترمیم کو عدالتی فیصلے کے ذریعے ختم کرنے کا فیصلہ دیا‘ تو خود بھی گھر چلے گئے اور وہ فیصلہ بھی اپنے نفاذ کی صورت دیکھے بغیر دفن ہو گیا۔
    جس طرح جسٹس سجاد علی شاہ کے ہاتھوں ناجائز قرار پانے والی ترامیم کے پیچھے ایک متحدہ پارلیمنٹ کھڑی تھی۔ 18ویں ترمیم کے پیچھے بھی متحدہ پارلیمنٹ موجود ہے۔ بے شک اس پارلیمنٹ کے اندر موجود بعض عناصر‘ اپنے ذاتی مفاد کے لئے آئین کو عدلیہ کے ہاتھوں پامال کرانے کی خواہش رکھتے ہیں لیکن خدانخواستہ کسی بھی طرف سے آئین پر ہاتھ ڈالا گیا‘ تو ایسے عناصر کو یا عوام کے ساتھ کھڑے ہونا پڑے گا یا عوام کے ہاتھوں رسوائی کا منہ دیکھنا ہو گا۔ مجھے علم ہے پاکستان میں آئین کو بار بار پامال کیا گیا۔ لیکن ہر پامالی میں فوج کی طاقت کا دخل ضرور تھا۔ جسٹس سجاد علی شاہ نے فوج کی مدد پر بھروسہ کرتے ہوئے فیصلہ سنایا تھا۔ لیکن جنرل جہانگیرکرامت آئین کے پابند رہے اور ان سے مدد مانگنے کے لئے جو خط لکھا گیا تھا‘ وہ خط انہوں نے اس وقت کے سیکرٹری دفاع کو بھیج دیا تھا۔ عدالت عظمیٰ کا وہ فیصلہ اور وہ چیف جسٹس آف پاکستان ‘دونوں ہی تاریخ کا حصہ بن گئے۔ اسی بنا پر بار بار لکھتا ہوں کہ عدلیہ کو اپنی اخلاقی اور آئینی طاقت پر بھروسہ کرنا چاہیے اور ایسے ہر فیصلے سے گریز کرنا چاہیے‘ جس پر عملدرآمد کے لئے کسی بھی دوسرے ریاستی ادارے کی طاقت ‘ دوسرے ادارے کے خلاف استعمال کرنے کی ضرورت پڑے۔ اگر بعض لوگوں کی خواہشات کے مطابق عدالت عظمیٰ 18ویں ترمیم یا اس کے کسی ایک حصے کو معطل کرتی ہے‘ تو نفاذ کی طاقت کہاں سے لے گی؟ ایک ہزار طریقہ سوچ کر دیکھ لیں۔ ہر طریقے میں کسی ایک ریاستی ادارے کو دوسرے بڑے ریاستی ادارے یعنی پارلیمنٹ کو زیرکرنا پڑے گا۔ اگر کوئی چیف آف آرمی سٹاف‘ اس صورتحال سے فائدہ اٹھانے کا آرزو مند ہو‘ تو یقینا یہ آئیڈئیل صورتحال ہو گی۔ لیکن پاکستان کا کوئی بھی فوجی سربراہ اتنا کوتاہ اندیش ثابت نہیں ہوا کہ تمام ریاستی اداروں کو تہس نہس کرتے ہوئے‘ اقتدار پر قبضہ کرے۔ ہر ایک نے ریاستی ڈھانچے کو بچانے کی خاطر‘ تسلسل برقرار رکھنے کا طریقہ ضرور اختیار کیا۔ جس طرح جسٹس سجاد علی شاہ کے فیصلے پر عملدرآمد کی خاطر فوج کو پارلیمنٹ کے خلاف کارروائی کے لئے کہا گیا تھا‘ نئے فیصلے کے آرزومند بھی اسی طرح کی صورتحال پیدا کرنا چاہتے ہیں۔ یہ پیدا ہو گئی تو؟ چیف آف آرمی اسٹاف نے اس کھیل کا حصہ بننے سے انکار کر دیا تو؟ حکومت اور فوج نے یکجا ہو کر آئین کا تقدس برقرار رکھنے کا فیصلہ کر لیا تو؟ سارے جھگڑوں سے تنگ آ کر فوج اقتدار پر قبضہ کر بیٹھی تو؟ سوچتے جایئے اور پھر غور کیجئے کہ چوہدری اعتزاز احسن ‘ جسٹس (ر) طارق محمود‘ علی احمد کرد اور اطہرمن اللہ کیا کہہ رہے ہیں؟ اور کیوں کہہ رہے ہیں؟اور جو وکلاء ان کی مخالفت کر رہے ہیں ان میں اکثر کی شہرت‘ اپنے پیشے اور معاشرے میں کیا ہے
    http://search.jang.com.pk/details.asp?nid=427000

    Dear Ms. Sarah,

    Would you please kind enough to provide the original article of Economits on Ifti.

  • Ayaz Amir writes:

    Lawyers taking the law into their own hands and browbeating judges and thrashing litigants, as is happening all too frequently; senior lawyers like my friends Qazi Anwar and Akram Sheikh, who felt few qualms in appearing before Justice Dogar when he was chief justice, now turned, with all the zeal of fresh converts, into uncompromising champions of judicial independence; senior lawyers pestering the Supreme Court with constitutional petitions, some with a decidedly surreal edge to them; all the talk of a looming clash of institutions; the never-ending saga of the quarrel between the actor Veena Malik and Muhammad Asif, the cricketer; the media and popular interest in the marriage of Sania Mirza and Shoaib Malik; are all signs of a people not dead but alive.

    http://thenews.com.pk/daily_detail.asp?id=235577

  • @Aamir Mughal I am unsure as I don’t have a subscription to the journal. Possible one of these two articles:

    Pakistan’s constitutional troubles
    Aug 6th 2009
    From The Economist print edition

    FOR much of the past two years, the judiciary has been at the centre of political turmoil in Pakistan.
    http://www.economist.com/world/asia/displaystory.cfm?story_id=E1_TQTJTNQP

    Or

    Pakistan’s embattled president
    Dec 30th 2009
    From The Economist print edition

    EVER since pressure from the public and the army forced President Asif Zardari to reinstate Iftikhar Mohammad Chaudhry as Pakistan’s chief justice in March, he has looked rattled.
    http://www.economist.com/world/asia/displaystory.cfm?story_id=15176459

  • Arif Nizami writes in The News:

    Aitzaz Ahsan fears another confrontation between the judiciary and parliament if the Supreme Court strikes down the 18th Amendment. However, a senior lawyer and one of the former stalwarts of late Zulfikar Ali Bhutto, Abdul Hafeez Pirzada, who played a pivotal role in evolving a consensus on the 1973 Constitution, thinks that parliament has overstepped its mandate by amending the Constitution. He thinks the basic structure of the Constitution has been changed, which cannot be done without a referendum.

    Pirzada, who bid adieu to the PPP long ago, is these days perceived to be close to the dictator-in-exile, Gen Musharraf. Maverick lawyer Akram Sheikh and Supreme Court Bar Association president Qazi Anwar vociferously support his view. Hamid Khan, a prominent jurist, a stalwart of Imran Khan’s Tehreek-e-Insaf, feels that there is nothing odd about the Supreme Court striking down constitutional amendments, as has happened many times in India.

    Notwithstanding the hiccups, all political parties present in parliament rallied around in support of the 18th Amendment in the final analysis. PML-N leader Nawaz Sharif and his brother Shahbaz Sharif, who had absented themselves when the National Assembly passed the amendment, were present at the Presidency for the signing ceremony.

    Nawaz Sharif, who has come under severe criticism from his own party for supporting the change of name of NWFP to Khyber-Pakhtunkhwa, was seen being warmly embraced by President Asif Ali Zardari. This was a good gesture, especially in the backdrop of the music Nawaz Sharif has been facing from his self-styled mentors for conceding on the Khyber-Pkhtunkhwa name.

    These elements are trying in vain to drive a wedge between the Sharifs by painting Mian Shahbaz Sharif, known for his rather hawkish political views, as “a true Muslim Leaguer,” whereas Nawaz is criticised as a deviant for going along with the consensus on the Pakhtunkhwa issue. They have not only castigated Nawaz for attending the ceremony but have also launched a media campaign against him for cosying back to President Zardari.

    His being a signatory to the Charter of Democracy with Ms Benazir Bhutto, it would have been sheer opportunistic politics on the PML-N supremo’s part if he had done anything but support the 18th Amendment. However, it remains to be seen whether in its anxiety to cash in on anti-PPP constituencies, the PML-N does not waver again from its stance on the 18th Amendment.

    The 26-member constitutional committee comprising all political parties under the chairmanship of Mr Raza Rabbani has been officially disbanded .It deliberated for more than nine months to produce a consensual draft of the 18th Amendment. Ishaq Dar and Ahsan Iqbal were representing the PML-N in the committee and obviously enjoyed the confidence of their party and leader. Hence, to say that the constitutional amendment was passed in two days without debate is not only a travesty of truth, it is an insult to the travails of the chairman and members of the committee who toiled for almost a year to produce an agreed draft.

    Aitzaz Ahsan has warned about the clash if institutions with disastrous consequences if the apex court strikes parts of the 18th Amendment. Hopefully, better sense will prevail. The chief Justice of Pakistan in his wisdom is well aware of the parameters set by the Constitution. While inaugurating the national judicial conference he aptly remarked: “The role of the judiciary is not that of an opposition to the legislature and the executive but that of a custodian and a bastion of the constitutional rights and liberties of the citizens.”

    Parliament represents the collective will of the people and, in the case of the 18th Amendment, signifies the consensus of all the political parties. Those who are crying hoarse that only a constituent assembly has the mandate to amend the Constitution kept mum when the 1973 Constitution was maimed and truncated beyond recognition through arbitrary amendments. These amendments were mostly initiated by military strongmen, duly rubberstamped by parliaments and validated by the courts.

    A new controversy

    Saturday, April 24, 2010
    Arif Nizami
    http://thenews.com.pk/daily_detail.asp?id=235762

  • ٹھارویں ترمیم سے عدلیہ کی آزادی متاثر ہوئی اور نہ ہی عدلیہ اور پارلیمنٹ میں کوئی ٹکراﺅ ہو گا: ڈاکٹر فاروق حسن

    لاہور (رپورٹر۔ خواجہ فرخ سعید) بین الاقوامی قانون کے ماہر بیرسٹر ڈاکٹر فاروق حسن نے کہا ہے کہ موجودہ قومی اسمبلی نے بجا طور پر آئین میں اٹھارھویں ترمیم منظور کی ہے‘ مشرف دور کے بعد ایسا کرنا منتخب اسمبلی کا فرض تھا جس کا وعدہ 18 فروری کے عام انتخابات سے پہلے میثاق جمہوریت اور دیگر دستاویزات میں ملک کی سیاسی جماعتوں نے عوام سے کیا تھا‘ اٹھارویں ترمیم سے عدلیہ کی آزادی متاثر ہوئی ہے اور نہ ہی عدلیہ اور پارلیمنٹ میں کوئی ٹکراﺅ ہو گا۔ اس سلسلے میں معروف قانون دانوں اکرم شیخ اور اعتزاز احسن محض اپنی سیاست کے لئے معاشرے میں افراتفری کی کیفیت پیدا کرنے کا سبب بنے۔ ان خیالات کا اظہار انہوں نے ایوان وقت میں گفتگو میں کیا۔ قبل ازیں انہوں نے ایڈیٹر انچیف نوائے وقت گروپ مجید نظامی سے ان کے دفتر میں ملاقات کی۔ ڈاکٹر فاروق حسن نے مزید کہا کہ 18ویں ترمیم کے حوالے سے اکرم شیخ نے 17 اپریل 2010ءکو سپریم کورٹ میں جو مقدمہ پیش کیا ہے اس میں مختلف نکات اٹھائے گئے ہیں لیکن ان تمام دلائل میں دو بنیادی قانونی ضروریات کا فقدان ہے ایک یہ کہ پٹیشن 18ویں ترمیم پاس ہونے سے پہلے ہی دائر کر دی گئی تھی اور اس میں نہیں بتایا گیا کہ 18ویں ترمیم کی کونسی شق آئین کے کس آرٹیکل سے متصادم ہے۔ انہوں نے کہا کہ میری رائے کے مطابق یہ صریحاً قبل از وقت (PREMATURE) پٹیشن ہے۔ انہوں نے کہا کہ جہاں تک چودھری اعتزاز احسن کی رائے کا تعلق ہے وہ واضح طور پر سیاسی ہے۔ ایسا لگتا ہے کہ انہوں نے انتباہ کیا ہے کہ اگر سپریم کورٹ نے 18ویں ترمیم کے خلاف فیصلہ دیا تو اداروں کے تصادم کا خطرہ ہے۔ اس سے پہلے کہ میں اس پر تبصرہ کروں یہ کہنا ضروری ہے کہ اعتزاز احسن کی بات قانوناً جائز اور ممکن ہے تاہم پاکستان کے تحریری آئین کے تحت سپریم کورٹ اس بات کی مجاز ہے کہ آئین کی تشریح کرے۔ انہوں نے مزید کہا کہ اس تشریح کے دائرے میں سپریم کورٹ یقیناً کالعدم قرار دینے کا بھی اختیار رکھتی ہے۔ ایک سوال کے جواب میں انہوں نے کہا کہ ایسی کوئی بات نہیں ہے کہ عدلیہ اور پارلیمنٹ ایک دوسرے کے سامنے آ جائیں گے یا ایک دوسرے کے خلاف صف آرا ہوں گے کیونکہ ابھی یہ مقدمہ عدالت کے سامنے پیش ہی نہیں ہوا لہٰذا مجھے یہ تمام بحث صرف وکلاءکی ذاتی رائے لگتی ہے۔

    http://www.nawaiwaqt.com.pk/pakistan-news-newspaper-daily-urdu-online/National/25-Apr-2010/26058

  • Sarah Khan :
    @Aamir Mughal I am unsure as I don’t have a subscription to the journal. Possible one of these two articles:
    Pakistan’s constitutional troubles
    Aug 6th 2009
    From The Economist print edition
    FOR much of the past two years, the judiciary has been at the centre of political turmoil in Pakistan.
    http://www.economist.com/world/asia/displaystory.cfm?story_id=E1_TQTJTNQP
    Or
    Pakistan’s embattled president
    Dec 30th 2009
    From The Economist print edition
    EVER since pressure from the public and the army forced President Asif Zardari to reinstate Iftikhar Mohammad Chaudhry as Pakistan’s chief justice in March, he has looked rattled.
    http://www.economist.com/world/asia/displaystory.cfm?story_id=15176459

    Thanks Ms. Sarah! You know how I need “dirt” for “dirt”

  • What if we wake up one day and realize that the terrorist threat is a predictable consequence of our meddling in the affairs of others?

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