‘Police ka Hey Kaam Madad Aap Ki’
Reformed Police need of the hour
By Amjad Malik, MA, LLM
I saw that picture too and thought that it is only possible in Pakistan first you keep somebody’s father in unlawful detention without involving court and if someone by mistake cries then he faces our police force in our ‘might is right’ culture.
These unbridled police powers and ruler’s silence on the brutalities which we are witnessing now a days in Pakistan remind us not only the slogan upon which modern police force of western world works and our force was established i.e ‘police ka hey kaam madad aap ki (duty of police is public service) which has become a thing of the past but also it is making holes in the false claims of government machinery of the rule of law, public order and public service. I have read statements on all sides calling our people ‘fundamentalist’ I feel if some one is fundamentalist in our society that’s our police force and our fundamental job must be as citizens of Pakistan to demand for whole sale reforms in this institution too along with judicial reforms.
We always cry for equality, good treatment, our rights any where we go. European Convention on Human Rights also arms the general public at least here in west against “torture or inhuman or degrading treatment or punishment.” What I see in that picture is rightly amount to ‘inhuman treatment’ public humiliation is visible from the picture what law opposes the authorities to do, ‘heavy handedness’ in general public matters.
It is very important to create political consensus on the issue of de-politicization of police as without the timely and correct implementation of laws, rules and judgments given by the judiciary to the police, all the laws and rules will be meaningless. Political class must re-evaluate the function of the police and make it absolutely independent so that it becomes ‘a true public service force’ and combat what harms comes public’s way. This will make the police force more professional, incorruptible and to ensure that they act in the cause of justice.
I welcome Political Quarters pledge to reform judiciary and request them to include Police force too as without proper Professional Police Force nation’s rights must be given as rights not favours and I am afraid they can not be delivered as rights unless Police act as public servants impartially.
When General Sahib came to power, he promised to bring about true democracy and rule of law. His claims of bringing rule of law to the nation can be seen with naked eye and we do not need special glasses and his good governance has fallen on already poverty ridden lower and middle classes who are shaken and Pakistani assets are on ‘loot sale’ only Supreme Court sometimes grab them back from the vultures like they did in ‘steel mills case.
Land mafia, sugar and cement crisis, oil price hike, steel mill reference, stock exchange crashes, and above all his ‘Nabina Cabina’ Nabbed Ministers are shining like a medal on his collar of achievement and blood of ‘Bajaur’ victims dripping from those medals.
A common man who is so frightened and sick of political slogans is thirsty of clean water, free education, cheaper medicine which is turning into a dream in this lawless land of corporate interests.
General Musharaf bitterly failed in achieving what he himself offered to the whole nation in his tv broadcast. Musharraf Sahib similarly states in his autobiography, "we have done more than any other country to capture and kill members of al Qaeda and to destroy its infrastructure in our cities and mountains." He continues, "We have captured 689 [suspected al-Qaeda members] and handed over 369 to the United States. We have earned bounties totalling millions of dollars. Those who habitually accuse us of ‘not doing enough’ in the war on terror should simply ask the CIA how much prize money it has paid to the government of Pakistan".
While offering cash rewards for the capture of suspected criminals does not in itself violate international human rights standards, offering large amounts of money for the capture of people matching a vague and broadly defined profile rather than for specific individuals who can be identified, opens the door to opportunists and bounty hunters to claim the reward for the arrest of people without reasonable grounds that they committed a crime. In Pakistan, the practice has encouraged arbitrary detention and enforced disappearance.
We did not see any role of judiciary in the arrest, detention and transfers of Pakistani Citizen as well as foreigners. The speed of the transfer does not allow for meaningful consultation with the country of origin. Moreover, the quick transfer to US custody of this and other detainees indicates that the procedures followed are in breach of Pakistan’s extradition law and that the principle of non-refoulement, which prohibits the transfer of detainees to a country where they risk serious human rights violations, Nation asks where does the court fit in all these proceedings unless they take suo moto action which they did on this occasion. When he himself is judge and jury to decide who should be arrested, where should he be kept or sent negating the will of people and without judicial oversight thus denying individual’s basic rights given to them by the Constitution as well as international law.
On 8 January 2007 Supreme Court of Pakistan criticised as insufficient efforts by authorities to trace at least 16 people believed to be held by intelligence agencies for suspected links with militants. We need a Civil system of governance with strong institutions full of professionalism. Federation and future of Pakistan lies with democracy which is not possible unless and until free elections are held under independent care taker set up as only true civil rule where people are accountable for their conduct can save this shattered nation who is in dire need of ‘nationalism.’ If one wishes to save the country then one have to sacrifice the interest of one institution alone and make ‘Pakistan’ a priority. I think its time that ‘one man one vote’ principle and an in born right of the people is restored and establishment lay back and let the people decide what they want, and who they want and democracy in its true form is allowed to return as a system of governance as Abraham Lincoln said’ Government of the people, for the people and by the people.’ This is not possible by current rulers who are on ‘hit and run’ and have shaken nation’s confidence.
My commiseration to Mohammed Masood that I could not save him from that inhuman treatment visible in the picture, however my strong advice to him is that he should curse his current day rulers if he can not ‘take arms against the sea of trouble’ like Hamlet of Shakespeare so that on the day of judgment they are answerable for their deeds. This is 'apathy' a worst kind of hopelessness and May God save Pakistan.
Amjad Malik is a life member of SCBA & a Solicitor-Advocate of the Supreme Court (England) , please contact: amjadlaw@hotmail.com:
11 January 2007
NEW HSMP LAW CHANGES, WHAT TO DO NEXT
By; Amjad Malik, MA, LLMSolicitor-Advocate Supreme Court (England) I am writing this article on the above issue for the benefit of migrants who are already in UK in HSMP category and I have been told that they are over 25,000 from Pakistan and around 100,000 will be affected including their families. HSMP migrants range from Doctors, Engineers, teachers, nurses and lawyers etc who have migrated to Britain leaving everything behind to earn their living in UK and have made it their second and they are considering to apply to UK and highly skilled migrant category and have mobilized in UK economically and will be affected with the new changes introduced on November 2006. The Highly Skilled Migrant Programme was set up in January 2002 as a route through which "particularly talented" people could apply to work in the UK. It differs from the work permit arrangements in that it does not require an employer to obtain a work permit for the individual. Applicants are assessed on a points system based on their qualifications, earning ability and experience. The latest changes for the Highly Skilled Migrant Programme were announced on 7 November 2006. The points requirement has gone up to 75 points from 65, however, with the other changes some people may find it easier to come under the new HSMP system. The latest changes for the Highly Skilled Migrant Programme were announced on 7 November 2006. To make a successful application you will now need to provide evidence that you score 75 points or more in the categories set out below and demonstrate that you will be able to continue your career in the United Kingdom along with strong English language command. One does not have to score points in all categories to qualify under the program, as long as the applicant scores a total of at least 75 points. Points are awarded on the basis of a number of factors as following:
Young Person Assessment 20 points
Qualifications 50 pointsEarning Power 45 pointsUK Experience 5 pointsEnglish Language Ability Other Requirements Applicant will gain points based on degree level qualification, or professional level qualifications. Unfortunately, there are no extra points for a 4 year Bachelors degree rather than a three year degree, or for having more than one degree at any given level (e.g. B.Sc and B.eng, or M.Sc and MBA). If applicant wishes to score points based on professional qualifications they will need to show the equivalency of this to the relevant British Qualification. This will need to be validated with the National Academic Recognition Information Centre Database. If applicant(s) have attended one of 50 eligible MBA programmes and graduated since 2 December 2004, they may be eligible under the MBA provision of the HSMP. List of the 50 eligible institutes is also enclosed at the advice. One will have to gain 75 out of 120 points to be successful in obtaining HSMP approval and or visa. Previously before amendment on 65 points immigration was given prior to the new changes came in to force. Following was the old criteria: Points are awarded on the basis of a number of factors:Young Person Assessment Maximum 5 Points Qualifications Maximum 30 Points Work Experience Maximum 50 Points Past Earnings Maximum 50 Points Achievements Maximum 25 Points Partners Achievements if graduate Maximum 10 Points Priority application - Currently only for doctors allowed to practice as General Practitioners in the UK Maximum 50 Points Other Requirements: Any person achieving 65 points out of 220 was entitled to UK immigration and once he enters UK after 1 year o stay if he is economically active his or her visa was extended for further 3 years and total 4 years would entitle them Indefinite Leave to remain in UK on the basis of following old rules 135 of HC 395. The existing migrants who entered UK on the old scheme may be able to switch as well as obtain Permanent residence upon completion of their probationary period, however new applicants will face the strict requirements post November 2006. New Rule 135 has totally changed the previous scheme. 135 Rule requires 75 points on new changed rule and criteria has changed too which is alleged discriminatory too on age and nationality basis. New rule 135 says as following;”The existing migrants who entered UK on the old scheme may apply to extend and or indefinite leave on the following basis:135D. The requirements for an extension of stay as a highly skilled migrant for a person who has previously been granted entry clearance or leave in this capacity, are that the applicant:(i) entered the United Kingdom with a valid United Kingdom entry clearance as a highly skilled migrant, or has previously been granted leave in accordance with paragraphs 135DA-135DH of these Rules; and (ii) has achieved at least 75 points in accordance with the criteria specified in Appendix 4 of these Rules, having provided all the documents which are set out in Appendix 5 (Part I) of these Rules which correspond to the points which he is claiming; and (iii) (a) has produced an International English Language Testing System certificate issued to him to certify that he has achieved at least band 6 competence in English; or(b) has demonstrated that he holds a qualification which was taught in English and which is of an equivalent level to a UK Bachelors degree by providing both documents which are set out in Appendix 5 (Part II) of these Rules; and (iv) meets the requirements of paragraph 135A(ii)-(iii).” 135DA deals with the requirements for an extension of stay as a highly skilled migrant for a work permit, 135B for student, 135C for a postgraduate doctor or postgraduate dentist, 135D for a working holidaymaker, 135E for a participant in the Science and Engineering Graduates Scheme and 135Ffor an innovator are that the applicant. The requirements for an extension and permanent stay a highly skilled migrant is described in details at the following: Paragraph 135 of HC 395 please visit the link: http://www.ind.homeoffice.gov.uk/lawandpolicy/immigrationrules/part5.
Indefinite leave to remain maybe granted, on application, to a person currently with leave as a highly skilled migrant, provided that he has had a continuous period of at least 5 years' leave to enter or remain in the United Kingdom and meets the criteria set in 135 G & HA. The new regime under which qualifying period for indefinite leave has increased to 5 years and points have increased to 75 on a different criteria is alleged discriminatory and wednesbury unreasonable and is challengeable as it will put thousands of families in an ‘illegal catchments’ if they are unable to extend their visas despite being resident in Britain and economically active. This rule change will affect not only the applicants who will apply afresh but most important of all the existing ‘highly skilled migrants’ who have sold all their belongings and made Britain their home are likely to suffer the most. They will have to comply to the following:1) they will have to secure over 75 points under new criteria which totally ignore the old criteria under which old HSMP migrants entered. 2) There will be age discrimination as over 32 will not gain any points as opposed to most of the Immigrants who came to UK in last 5 years were around or over 30 years old.3) Secondly, they will have to complete 5 years to obtain Indefinite Leave to Remain. If the readers look at the old criteria over 100,000 overseas graduates from all around the globe came to UK leaving their jobs and homes to join and contribute British economy. They were experienced and graduates. However new changes will take them out of the consideration despite the fact that they are already part of the system. Their over 10 years experience is worthless and they may not qualify even if they are completing their 4th year of residence. Human Rights groups and lawyers organisations feel that this policy and change of rule may apply to fresh candidates of British Migration, however the ones who have already joined must not be penalised for selecting Britain as their home. Therefore, john Reid Secretary of State responsible for this department should announce in the following: a. Announcement forthwith by Secretary of State of a policy concerning existing Highly Skilled Migrants that a policy will be announced to accommodate those who are in UK and are affected by the changes of Rule 135 of HC 395. b. Announcement forthwith by Secretary of State that appropriate consideration will be given to accommodate those who are already in UK and are economically active to be granted extension of stay on case by case basis and on the basis of old rule as they may be discriminated due to age restrictions put in the new rules and difference of criteria to assess points. c. Existing Migrants on HSMP basis will be able to obtain ILR upon completion of 4 years as opposed to 5 years as in new Rules Anyone affected by these rules must contact straightaway for legal advice and they may write to SSHD themselves and or through their Member of Parliament on the following address: Rt. Hon. John Reid, Secretary of State for Home Affairs, House of Commons, London, SW1A OAA. It is imperative that action is taken before their current visas run out. I feel a challenge may be brought by an individual and or group of affected migrants via a judicial review application to High Court challenging individual refusals of extensions as well as difference of approach in old and new rule, assessment criteria as well as issues which breaches migrant’s core human rights on the basis of age and nationality and these changes are challengeable and questionable under ‘wednesbury unreasonable’ test. P.S. Amjad Malik is a Solicitor-Advocate of the Supreme Court of England and Wales, a member of Law Society’s Immigration Law committee, and may be contacted at 01706-346111 or email him with your CV for free individual advice at AMSolicitors@aol.com. Note: I am sure this article will benefit those who are intending to apply afresh, however if someone is in UK and is struggling with their extension application(s) I would recommend to seek independent legal advice immediately. Immigration advice may be available free from OISC listed advisors or email at: info@oisc.gov.uk, or you may also obtain three immigration practitioners names from the Law Society number 0044 207-242 1222 or email them at info@lawsociety.org.uk that may be able to assist further or if you wish to have an independent advice further. Please visit Home Office web site for further details and guidance on HSMP: http://www.workingintheuk.gov.uk/content/working_in_the_uk/en/homepage.html.
The meaning of “To Serve”
Mian Shehbaz Sharif
PML(N) President
After this 130th birthday of the Quaid-e-Azam, it is both factual and appropriate to declare that the multitudes which participated in the creation of Pakistan remain the only generation that has thus far rendered fundamental and decisive sacrifices to the nation.From the pain of witnessing their women and children brutally killed, renouncing their ancestral properties, and uprooting their torn and broken families they migrated by the millions to manifest their dreams in a new homeland, a dream that at last our way of life would be based on justice, merit and fair play; whereby we would stand united and share in our prosperity, just as they had shared in their sacrifices to achieve independence for Pakistan.
But 60 years on – whenever I have asked any surviving members of that great generation about this dream, they have wept!
It is not difficult to see why, for we have rapidly regressed from the 1940s to the 1490s. To the period of the Spanish Inquisition, and the dark ages of Europe, where the poor could be exploited without retribution, where the law was arbitrary and subservient to the rich and powerful, where religious intolerance was propagated with the spread of hatred and slaughter, where the innocent were witch hunted, and political rivals and minorities tortured and murdered.
This unfortunately, is also the condition of 21st century Pakistan; due to which, it is only natural that the collective hope which the Quaid-i-Azam instilled in our people, has transformed into a collective loss of hope, apathy and discontent that is by far the most detrimental disadvantage a nation has to confront.
In his first address to Pakistan’s Constituent Assembly, the Quaid stated that: “the first duty of a government is to maintain law and order, so that the life, property, and religious beliefs of its subjects are fully protected by the State.” We have even failed to value this important criterion set by the greatest leader Pakistan has produced.
An Independent Judiciary is what the Quaid envisioned for the nation he created, and I have no doubt that in the freedom of the Judiciary lies the solution to even our most complex problems. Therefore, we must return to the Quaid’s ‘verdict’.
A fearless, free and independent judiciary grounds societies in the rule of law and justice, prevents the tyranny of the majority, protects people from the ‘convictions’ of a militant minority, and most importantly provides a check and balance on government.
Exile provides time to reflect and strategize. This imposed separation from our beloved homeland has given us the opportunity to examine the problems that plague Pakistan and propose optimal solutions to the most pressing issues confronting our people.
Therefore, I candidly proclaim here, that the first act that the PML-N government, under the leadership of Mian Nawaz Sharif, when it returns to power, will be to promulgate, the absolute independence of the judiciary.
Access to expedient, fair and transparent justice, will solve the gruelling problems faced by the common man. Today; the majority of people spend an inordinate amount of time at police stations (thanas) – dens of coercion and corruption – and lower courts (kutchery) where, along with their representatives, they have no recourse but to buy justice through the vicious and endless circle of “sifarish, blackmail and bribery.” This culture must ruthlessly be uprooted and we hereby solemnly pledge to do so.
Just as John Marshall said in his famous speech:
“I have always thought, from my earliest youth till now that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and sinning people was an ignorant, corrupt, or compliant judiciary.” Judicial reforms are not only imperative; they have been deferred and impeded for far too long.
Access to justice is the birthright of every citizen and we resolve to deliver on this promise as one of the foremost policy reforms of our government.
Firstly, through a fiercely transparent and foolproof system of judicial appointments comprising men of the highest standing and character, we will double the number of judges at both the lower and high court levels;
Secondly, we will increase the salary of the entire judiciary by at least five times their current level, to safeguard them against monetary temptations. (The PML-N government did substantially increase the salary of a High Court Judge from approximately Rs 17, 000 a month to over Rs 70,000 a month, – which we admit was not enough)
Thirdly, we will ensure complete independence and meritocracy in the appointment of judges even at the cost of judicial activism.
The above reforms will have immediate beneficial effects on the entire populace: a) a drastic reduction in the pendancy of cases; b) it will make the judiciary a most sought after career, even more appealing than employment at banks and multinationals, thereby attracting outstanding candidates to this most noble of professions; c) it will lead to the effective accountability of police, government servants and rulers across the board; d) it will improve the investment and business environment in Pakistan; e) most importantly it will provide speedy access to justice, without fear or favour to the resource-less common man, who will be provided free legal assistance by the state.
There is no reform more significant than judicial reforms. An incorruptible and undaunted Judiciary will make Pakistan leap out of the middle ages and stand with respect in the comity of nations.
We have bound ourselves to the Quaid’s ‘ruling’, and pledged our lives to liberating Pakistan by liberating its judicial system. Perhaps then, we too can raise our heads and stand among the only generation (to date) that has factually practiced the meaning of the words “To Serve”.
The writer is PML(N) President.
Email: shehbazsharif@btinternet.co
Presidential Election a critical overview
By: Amjad Malik, MA, LLM,
Solicitor-Advocate Supreme Court (England)
There has been several news reports where President assured of taking his uniform off as per agreement but he did not keep his promise to which lawyer community has found unease upon this kind of unconstitutional decision making which has kept Pakistan derailed from real civilian rule so far and that may not be the intentions of SC in Zafar Ali Shah case when SC gave Gen Musharaf 3 years to hold elections post military coup on 12 October 1999. Furthermore, independent and fair elections are impossible if President of the nation who defiantly violates the constitutional position of Federation and solidarity to all irrespective of their stance of opposition is addressing only one party functions and as the elections are nearer, it is very difficult not to take them as ‘political processions’ in the run up to election thus making him partisan linked with the aspirations of PML(Q) his own brand of political party which was assembled as a result of suspending one clause of Constitution, by horse trading and using NAB is a switching tool after coup to counter PML(N) alone. This tendency of lack of respect of the rule of law, unconstitutional mannerism undermine the effective role of judiciary.
The whole nation is trying to digest the insistence of General Musharaf to retain his uniform post 31 December 2004 in violation of his pledge to nation which is keeping Pakistan away from true civilian rule and there is no contingency either in place. He is retaining his second cap against the agreement with MMA one of the main alliance emerged as a result of 2002 elections who supported the General in legalizing his former acts in the form of 17th amendment to the constitution and since are regretting to believe the dictator on uniform issue as per Senator S M Zafar’s book ‘Dialogue on the Political Chess Board.’ This insistence is also in contravention to article 63(1)d of the Constitution of Pakistan 1973. Article 63(1) d says as following: 63 (1) A persona shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora [Parliament], if –
(d) “he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or”
If we see his reign briefly we see his tactics somewhat hasty, he took over the state of business on 12 October 1999 as a result of a military coup and used a term ‘chief executive until 2001. In June 2001 he dismissed assemblies and assumed the office of President which became vacant after the resignation of President Rafiq Tarar. To date Mr. Tarar is of the view that he is still the duly elected President of Pakistan. General Musharaf has the privilege to send twice elected Premier, sitting Chief Justice and duly elected President home for reasons unknown constitutionally in the case of two latter sending backs.
On 30 April 2002 he held referendum and declared himself the President with people’s vote of confidence. On 24 August 2002 General Musharaf announced constitutional reforms package widely knows as LFO (Legal Frame Work Order) and as a result of new elections General Musharf took new oath as President on 16 November 2002.In December 2003 his constitutional reforms were affirmed by the Parliament under Constitutional Amendment No 17. Under this amendment not only his LFO was made part of Constitution but his Presidency was confirmed too. Under this amendment article 41 was changed which deals with the Presidential Election.
Now legal expert are of the view that his tenure comes to an end on 16 November 2007, some constitutional experts dispute that but to advance the discussion we take his latest oath & vote of confidence to start with. Article 41(5) confirms that Presidential Election(s) can be held 60 days before or 30 days after the expiry date of his current Presidency so ideally fresh election time frame will be ideally from 16 September to 16 December 2007.
Now the issue arises whether he can be re elected in Uniform, if we see the Article 63(1) d the answer is no, if we keep in view the overall intention of the 1973 Constitution of Pakistan, again the answer is no as ‘Uniformed Presidency’ gives a horrific picture of a Democracy only 3 countries out of over 166 countries in the world who have similar tendencies & regime, Burma is an other and Thailand recently joining the club. However, if we look at his previous trail of unconstitutional reforms marathon which include, his PCO, Judges sacking & oath under PCO, Referendum, Legal Framework Order, 2002 Elections, Local bodies system & polls and WPB Act 2006, it does not seem impossible that he will definitely attempt for the top slot.
His elections will be held under article 41 (3) & (7) of the Constitution. Now whether the President gets himself elected from the current assemblies which is unprecedented act as no assembly in the past voted twice for the President is one question. The other question is the political and constitutional implication of such election on the state of play as under Article 44(2) & Article 63(1)d the issues will need to be decided whether he can retain his uniform whilst going to electoral college and will it be his second or 3rd term.
17th Amendment brought back in the Constitution most of the ‘8th amendments’ provisions which were originally introduced by former military dictator and were repealed by the Civilian Prime Minister unanimously. 17th amendment as well as an Act of Parliament to allow a General to remain in Uniform in contravention to Constitutional provision of art 63(1)d may be declared ultra vires as it hits the basic intention of the constitution and are unconstitutional mechanism where COAS an employee of state takes the role of head of state. However as President kept his uniform post 31 December 2004 at a time when article 63(1)d became effective and decided otherwise to his promise to nation and current Parliamentary party readily passed a bill in Parliament to allow him to keep ‘two offices’ then we may expect the following from the President in coming days:
a) President may rely on his current strength in the shape and form of Q league and may bargain with the one of the main political parties one way or the other and get himself elected from these assemblies. Political parties on the name of ‘giving exit to army’ may opt out to vote him for next term. I feel personally that he may struggle to gather this kind of support due to disadvantage to political parties except Q league but the air tells that deal is negotiable and is available with certain sections of our current political Parties. In that situation uniform will be an issue and ‘two offices Act of Parliament’ may be used to counter that argument and this will be an ideal situation for President which will allow him to have his Presidency and command of armed forces to do whatever he likes with 2007 General election(s). Or President announces and holds fresh General elections before his own Presidential election is due either on the advice of Premier or by dismissing current assemblies if the ‘resignation(s)’ of opposition parties mature and brings new electoral college ideally of his own choice and numbers before his election is due from 16 September to 16 December 2007
b) Alternately, President may dismiss the current assembly upon resignations of opposition parties if they get together and or on the current prevailing situation in the country very nearer to the expiry of his term so that he avoids his election, announces elections under care taker set up and throws election as a bait, that way he takes the sting out of any opposition movement and his own election and uniform issue goes in the back drop of fresh elections. In that situation his own election will be held once the new electoral college is formed and that will again be his wishes to retain maximum powers & numbers. In that situation if he places his bet on Q league for future his election then unprecedented rigging may be in the offing and Punjab may be under a ‘chowdry’ in a care taker set up. That will be very alarming as fairness will not suit him as he may loose election, may not be Presidential candidate and on top of that may be asked to lay off his uniform as well by the coming Premier.
In all these situation what opposition can or can’t do will be very crucial. The only option which is strong and viable is that the electoral college is vacated by current opposition the moment current President announces his Presidential election if he does decide for that before General election though it will be a defensive position but opposition after resigning may initiate strong struggle to stop that election and demand for fresh general polls under care taker set up and independent election commissioner on one point agenda.
There is an attacking strategy too ideally as Mian Nawaz Sharif former premier proposed to opposition parties to vacate the house now and continue up right struggle for free and fair elections under impartial care taker set up, to me ideally under judges as very few political stalwarts are left untarnished by our military regime(s) whom the political parties jointly will trust for holding election. In effect, the names of care taker set up nominees may further divide the opposition, and judges may be the best bet, in office or retired judges may be decided. In that situation, President will have no choice but to get elected from the next electoral college and opposition demands for fair elections under a neutral care taker set up and independent Election Commissioner as agreed by all parties where ‘Judiciary’ as a monitor is free to dispense justice independently without cloud of PCO’s fair to all parties. At that time if with sheer will fair elections are held, that will close the chapter of current military regime in Pakistan for the time being. To end it completely politicians will need to show political maturity, will and sacrifice in the interest of Pakistan. Federation and future of Pakistan lies with democracy which is not possible unless and until free elections are held under independent care taker set up where Election Commissioner is neutral and independent and judiciary needs to play its role.
In all this process Supreme Court’s role will be crucial as SC will be asked to determine few questions which are following:
Whether General Musharaf’s first reign of President from June 2001 to 16 November 2002 in which he held referendum on 30 April 2002 to legalise his stay at office as well may be classed as one and whether he has finished his two tenures if that regime was legal under Article 44(2) of the Constitution.
What is the actual date from which his first or current tenure as President of Pakistan started.
Finally, the most important of all is, can General Musharaf retain his uniform and contest next Presidential Election against the letter and Spirit of the Constitution 1973 and in particular article 63(1)d which is effective from 31 December 2004 and can a simple majority Act of Parliament with supra constructional intentions override the operation of Article 63 as opposed to the requirement to amend the Constitution with 2/3 majority.
Supreme Court’s ruling will be very crucial & if not given in time will lead to prolong one man’s rule against the wishes of millions of Pakistanis whose will is already negated. SC gave 3 years to the dictator in Zafar Ali Shah case and its 4 years beyond that 3 years limit and there is no sign of him going and there is no one to ask the man when will you leave. I think its time that ‘one man one vote’ principle and an in born right of the people is restored and establishment lay back and let the people decide what they want, and who they want and democracy in its true form is allowed to as Abraham Lincoln said’ Government of the people, for the people and by the people.’
Amjad Malik is a life member of SCBA & a Solicitor-Advocate of the Supreme Court of England and Wales, member of English Law Society’s Immigration Law committee, and a legal advisor of PML(N), Contacts: amjadlaw@hotmail.com
Is ‘uniformed President’ the future of Pakistan’s democracy in modern times
By Amjad Malik, MA, LLM, Solicitor-Advocate Supreme Court (England)
This basic issue which form the salient ingredients of a civil democratic system is in jeopardy and the majority is worried whether they continue to bear to see a ‘uniformed President in Pakistan’ against the wishes of the 160 million people & the letter and spirit of the Constitution of Pakistan coupled with the statements and wishes of our beloved Quaid, the founder of Pakistan Mohammad Ali Jinnah. It is good that he is not alive to see all this happenings and what the leaders have done to Pakistan and to the dream he saw for all of us. That is the true & important issue which is clouding the whole system of civil democracy in Pakistan. The insistence of President General Musharaf to retain his uniform is adding insult to injury when he retained his 2nd cap post 31 December 2004 in violation of his agreement with MMA via PML(Q) as per Mr. S M Zafar’s book ‘Dialogue on the Political Chess Board’ and in contravention to article 63(1)d of the Constitution of Pakistan 1973 (as amended).Article 63(1) d says as following: 63 (1) A persona shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora [Parliament], if –
63(1) (d) “he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or”
There has been several news reports where President assured of taking his uniform off as per agreement but he did not keep his promise whether it was ‘in the supreme national interest’ or ‘his personal interest’ due to which lawyer community has found unease upon this kind of unconstitutional and irrational decision making which has kept Pakistan derailed from real civilian rule so far and that may not be the intentions of SC in Zafar Ali Shah case when SC gave Gen Musharaf 3 years to hold elections post military coup on 12 October 1999.
Independent and fair elections are impossible if President of the nation who defiantly violates the constitution and is addressing only one party functions one time at Lahore at ‘Minar e Pakistan’ delivering political speeches to teach lessons to opposition leaders and other times in other parts of the country. As the elections are nearer, it is very difficult not to take them as ‘political processions’ in the run up to election thus making him partisan and one sided President linked with the aspirations of PML(Q) his own brand of political party which was assembled after coup to counter PML(N) alone and his own allies and leaders loudly and clearly asked him to remain in Uniform as well as being a President. This tendency of lack of respect of the rule of law, unconstitutional mannerism undermine the effective role of judiciary.
History tells us that Generals translate, exploit and manipulate the voice of silent majority who remain uninvolved in political business and politics on day to day basis and takes over the governance of a country on the name of holding fair elections, ridding corruption and providing basic needs to common man. In this current case that ‘silent majority’ is our broken middle class who supports helplessly every one who aspire to bring economic change, social justice and is a reformer in nature and they always fall a prey to this illusionary slogan. They fell for ‘Rooti, Kapra aur Makaan’ and also fell for General Zia’s ‘Islamisation and fair election & true democracy’ slogans. Nation needs to sweep that carpet under the General and military rulers and give rule of law and respect for the law of the land to this society to secure their own right by learning from India and Bangladesh who has strengthened their democratic forces as compared with us. By allowing a usurper to stand defiant and keep on rolling our political system with a twitch of his fingers is a blatant disregard to the Constitutional provisions where nation feel that the Parliament never intended that. The founder of the nation Mohammed Ali Jinnah never aspired when he fought for Muslims of sub continent to secure an independent homeland, that it will be ruled by Generals, in fact, he whilst addressing at Staff College in 1948 which was his only address to armed forces advised them to learn their oath with Pakistan fully and understand its commitments and obligation. Mr. Jinnah was so apt and keen to keep army Officers in their limits that he even put a mark against the promotion of one too ambitious and corrupt General to a senior level who later took over and held martial law after the death of our Quaid. That military dictator even said the opposite to the norm, ‘that we can not trust and leave important decision to civilians.’ Nation suffered for not following the directions of our Quaid..
I think time has come that before any so called ‘Act of Parliament’ is presented yet again and or a supra constitution mechanism is adopted like referendum to request the military dictator to retain his status in violation of the constitution’s true intentions thus allowing a General to hold his own office of profit as ‘Chief of Army Staff’ as well as the office of ‘President of Pakistan’ thus depriving the national parties to elect their own civilian President, Supreme Court must put it aright what they initially directed as the time is ripe in the following lines:
· That 3 years were given by the SC to bring true civilian rule in Pakistan by holding fair election(s), shedding uniform and appointing new COAS and to allow the system to run under Constitution of Pakistan 1973 and that period has expired and President is asked to choose one between his two roles before the deadline given;
· Alternately, Declaration that his tenure came to an end on 31 December 2004 as COAS as he promised publicly and was agreed between the opposition parties as well as ruling coalition on an understanding upon which controversial constitutional package was approved by Parliament ‘17th amendment.’ Article 63 came into effect after the deadline agreed between Parliamentarians and unless constitution is amended with 2/3 majority to that effect, it is not possible for the President to retain his uniform which in any event will be against the spirit of the Constitution itself.
17th Amendment brought back most of the ‘8th amendments’ changes which were originally introduced by former military dictator and were repealed by the Civilian Prime Minister unanimously. Lawyers feel that current Parliament and parties did not have any mandate to support a uniformed President as no party expressed in their manifesto that those 2 things (Uniform & LFO) will be decided against the constitutional norms and that they will vote in favour, therefore 17th amendment as well as an Act of Parliament to allow a General to remain in Uniform in contravention to Constitutional provision of art 63(1)d is ultra vires as it allows unlawful action.
In these circumstances , only fair, faster and firmer justice and free elections under a neutral care taker set up and independent Election Commissioner can ensure that no one dares to breach the core essence of Pakistan’s constitution in future. We need a strong Parliamentary system where all departments gain their integrity and strength in order to save this democratic system and lawyers feel that couple of ‘sham convictions’ like in the case of Javed Hshmi as well as Syed Yousaf Raza Gilani and many other political prisoner who are being victimized for toeing the line of their conscience, it can not deter political activists and leaders to save their country from yet an other disaster. Federation and future of Pakistan lies with democracy which is not possible unless and until free elections are held under independent care taker set up where Election Commissioner is neutral and independent and judiciary needs to play its role.
This intervention of SC & its ruling if not given in time will lead to further dictatorial manipulation to secure one man’s seat on top regardless of the wishes of 160 million Pakistanis which is already suppressed and it will breed hatred, contempt and injustice, which the honourable Supreme Court can avoid.
Amjad Malik is a life member of SCBA & a Solicitor-Advocate of the Supreme Court of England and Wales, member of English Law Society’s Immigration Law committee and Legal Advisor of PML(N).
Sharif’s exile of 6 years - By: Amjad Malik, MA, LLAM
Sharif’s completed their 6th year of exile on 9 December 2006 and they are currently continuing their struggle for military free real democracy in Pakistan. Pakistan since the formation of 1973 constitution has seen 2 military Coup’s and none have delivered anything to Pakistani people and in fact, dictators left leaving behind ruins but never admitted their mistakes. In 1971 during Yahya’s reign we lost East Pakistan and Bangladesh emerged due to ruler’s unfair policy of not sharing power with them. We did not learn any lesson and ‘Hamood Ur Rehman’ commission report was hidden for decades. In General Zia’s regime we lost ‘Siachen’ and acted as hired guns against Russian aggression and same continued when we were playing on the flute of our masters becoming party to killing of thousands of Muslims in Afghanistan on the name of so called ‘war on terror’. Neither brave General Musharaf’s ‘Kargil’ mystery is resolved nor he could conquer ‘Dehli’ in his 7 years unlawful rule. General Musharraf came to power to bring about true democracy and rule of law. His 7 points agenda is all in tatters and his good governance is sacrificed on the alter of scandalous government which has land mafia, sugar and cement crisis, oil price hike, steel mill reference, stock exchange crash, Nabbed’ ministers and incidents of ‘Bajaur’s medal on their collar with hundreds of unfinished achievements of which each one of them is worthy of shame. A common man fears that if permitted these rulers will not hesitate to sell Mangla Dam for a potential housing scheme as they are on ‘hit and run’ policy because their political days are numbered and only true Parliamentary democracy is the future of Pakistan.
Musharaf bitterly failed in achieving what he himself offered to nation. Kashmir is still in turmoil, Qadeer Khan is made an escape goat, industry is ruined and investor is scared, Provincial harmony slogan has witnessed ‘Akbar Bugti’s killing, and services has not reached to lower level but individual has and this devolution is weakening the cause. In order to continue his unlawful rule, judiciary is weakened further and Chief Justice Mr. Siddiqui was made to go home without reason and oath under PCO hit the nail aright and judiciary lost its teeth thus his claim of cheaper justice at the door step of common man was gone out of the window, now it is the face saving exercise. On the name of enlightened moderation, a youth is given an illusionary direction where Indian culture is already all over on us and the results are disastrous, a common man is in a fix his dream of having a respectable living in a just and democratic society is still far from reality. General sahib promised to shed his uniform by 31 December 2004 which was not kept as well as he continued his rule by becoming President himself. His NAB did not touch the one who took refuge under his wings however, opponents were grilled as state enemy.
His claim to have earned millions for taking part in War and handing over culprits to US is open for challenge when Pakistan’s deficit is growing faster and difference is amounting to 10 billion. SC decisions are mocked and common man is committing suicide as there is no self respect and no respectable living, we are victim of brain drain as all middle class top students are attracted for H1 visas or HSMP migration to US, Canada and Europe and working hard to reform foreign countries. Now this is the horrid picture of Pakistan painted by current rulers where transparency has graded us on 142 number in corruption and we are in top 30 corrupt countries and the level is over 60% higher than any political government in the past 35 years. Women Protection Bill has added insult to the injuries of the nation where an unjust and untimely discussion is initiated which has no relation to the common man’s problems of rule of law, health, justice, education and reforms in all sectors. This government rather than taking the blasphemous cartoon issue to European Court has given flame to the West to ignite that we are intolerant and extremist if we protest. Hadood Ullah is touched by one man without involving ‘Islamic Ideology Council’ and at a time when war is at our doors, economy is going down, corruption is ripe and democracy is far far away and as Be Nazir Bhutto said that no contingency after General Musharaf as as ‘Musharaf is an endangered species’ in those circumstances only fair, faster and firmer justice and free elections can ensure that no one dares to breach the core essence of Pakistan’s constitution. We need a strong system not couple of ‘sham convictions’ to deter political activists and leaders to save our country from destruction. Federation and future of Pakistan lies with democracy which is not possible unless and until free elections are held under independent care taker set up and judiciary needs to play its role.
Turning to Sharif’s Mian Shahbaz Sharif President Pakistan Muslim League (N) former CM Punjab and was deported from Lahore Airport to Jeddah on Monday 11, May 2004 when he attempted to return to his homeland. This was another political twist which Pakistanis were shocked to see how such an unconstitutional and ultra virus action could be allowed. Mian Nawaz Sharif and his family imprisoned under charges which were politically motivated after his ouster by Military , while the old and the young of his family were put under house arrest for months. As a result of military action, Pakistan was suspended from the Commonwealth. On the 9th of December 2000, Prime Minister Nawaz Sharif along with his family was exiled to Saudi Arabia. Mian Shahbaz Sharif current President of the Pakistan Muslim League (N) resisted the extreme emotional blackmail and refused to leave his prison cell in Landhi jail in Karachi. Despite his resistance, he was forced to board the aircraft by the brutal force of the military authority. During his stay in Saudi Arabia he developed a serious ailment in January 2003 for which he had to urgently travel to the United States where he underwent a surgery in New York. On 11th May, when as a result of Supreme Court observation in his two petitions to the Supreme Court, the Court ruled that every citizen has a right to enter and remain in the country of his origin and there can not be any restriction put on his entry. On paragraph 15 of the Judgment of SC in Const Petition Number: 55/2003 said that govt. neither deny his right to enter and remain nor brought on record any agreement / document permitting the government to force the petitioner to live in exile. The Para says as following: “15.It is significant to note that neither in the comments nor during the course of arguments the Federal Government/ Government of Punjab has disputed the right of the petitioner being a citizen of Pakistan to come back to the country nor referred nor brought on record any agreement/document permitting the government to force the petitioner to live in exile. On paragraph 28 C confirmed that AG did not dispute the article 15 rights of the petitioner: “28.It is not denied by learned Attorney General for Pakistan and Advocate General Punjab nor so could be denied that Article 15 of the Constitution bestows a right on every citizen of Pakistan to enter or move freely throughout the country and to reside and settle in any part thereof. It is a settled proposition of law that the right to enter in the country cannot be denied but a citizen can be restrained from going out of the country. The petitioner is a citizen of Pakistan and has a constitutional right to enter and remain in the country. 29 (2) For reasons to be recorded later on, both these petition are dismissed with an observation that the petitioner may come back from abroad subject to the law of the country.” Mian Shahbaz Sharif’s family returned to Pakistan to attend their daughter’s wedding but unfortunately, on 1st July 2003 under an illegal order of the military government, his wife and daughters were hunted down and arrested without any charge in the most cruel and humiliating manner and made to forcibly board a plane to Jeddah. Mian Shehbaz Sharif tried to go back to his country but was forcibly deported back to Jeddah from Lahore despite his willingness to appear before court of law as was said in SC’s observation in his petition No. 55/2003. Sharif never followed it up in courts for specific relief and or for contempt after his deportation as he learnt the state of play that justice will be denied by the current rulers to him, but Political circles, intelligencia and lawyer community asked on numerous occasion that it was the duty of court when State failed to produce any evidence, did not disagree petitioner’s right to enter Pakistan, therefore his removal from Lahore to Jeddah was an act of contempt as well as was in defiance of Supreme Court observation. Court must look into this matter as once the observation is given, any action otherwise makes it questionable and sub judice and needs to be looked by the Supreme Court for complete scrutiny evaluating all statements which were given after deportation as if the Govt of day has won a war. This was confirmed by General Musharaf ‘In the line of fire’ published in the end September 2006. On page 166 first paragraph on sixth sentence, it reads as following, “It must be said that Shahbaz Sharif initially refused to sign and did not want to leave Pakistan. But we could not have this partial acceptance.” General Musharaf however reiterated in December 2006 once again when he was interviewed by an Indian Journalist that if any one out of the exiled 2 leaders attempt to enter Pakistan to take part in election, first of all they will not be allowed, and secondly one of them will go to Saudi Arabia and the other to jail. Nation asks where does the court fit in when he himself is judge and jury to decide who should be the Chief Executive of the country negating the will of people and denying their right to choose. That one sentence not only supports all previous statements and apprehensions of Sharifs & strengthen their case that courts must take suo moto action for the safe return of the exiled leaders. Mian Shehbaz Sharif’s deportation & defiance of General Musharf after failure to deliver his so called ‘7 points agenda’ to keep Sharif’s & Mohtarma away from Pakistan proves the following:- The government does not care for rule of law and they found him guilty without trial of unknown charges and deported him under a contract which is unknown and unseen and no access to court was provided;
- The government did not respect the Supreme Court observation that no restriction can be put on citizens on their entry and every citizen has inborn right to enter and remain in their country of birth; the deportation of Mr. Sharif thus amounts to contempt of court. Accordingly under the rules of natural justice, he should have been allowed to wait till his petitions were decided.
- Most important of all, current regime does not wish to see any opposition leader carrying a political profile like Nawaz Sharif, Shehbaz or even Kalsoom Nawaz and Be Nazir Bhutto outside on the streets telling the masses what is going on in the country. That is a clear example of weakness on part of the Nabbed government.
‘Women Protection Bill is a ‘ good for nothing’ exercise at a wrong time and is An eye wash By: Amjad Malik, MA, LLM
Recent passing of the Women Protection Bill from the lower house of the Parliament has started a new debate in Pakistan. This bill which has given message of good days to come for women as well as has sparked an Islamic and non Islamic debate on the contents quite to the contrary to what the reality is. We have not yet forgotten the effect of Danish cartoons and here come an other jolt in the form of criticism right to the top on our ‘Hadood laws’ which is untimely, un thoughtful and very callous and above all it does not take into account Muslim sensitivities at this crucial time within which we are going through when the war is at our door front.
WPB seems a tester to initiate a debate that ‘Hadood Laws’ and punishments are ‘nauzbillah’ unworkable and it will lead to a bigger debate on issues like, Drinking Alcohol, Saudi Laws, Pardah, arrange marriages, and above all blasphemy laws versus freedom of expression and Super powers & think tanks will be finding an excuse to either declare states non tolerant if public protests in the country on these irrelevant issues or finding an excuse to attack them considering them a category of state and people who wishes to bring Islamic revolution and are a threat to world peace, both situations are fatal for Muslims and in particular Pakistanis.
This is truly starting a dividing line and Alas we are not united as one nation as well as not mindful of the gravity of the situation. No civilian rule promote fundamentalism and or terrorism but it is insane to bring terrorism at our door step either. Pakistan can never be Turkey or Egypt as envisaged by our so called, self imposed rulers and these efforts will weaken the moderate and middle class Muslims further which will have dangerous repercussions. Pakistan as an ideological state is a thorn in the eyes of West and we all must protect this from all dangers and sooner the better. I am still of the view as have advocated for years that, ‘Rule of law’ has its own price and at this moment Pakistan desperately needs a ruler who can make rule of law a distinctive feature of his governance and initiate a ruthless department building process as well as accountability which include along with others ‘judiciary’ and ‘military’ as ‘all citizens are equal in the eyes of law’ and he at least intends to eradicate all the evils in civil society and brings a reform package for the dying middle class and poorer and ensure justice at the door step of common man. Justice delayed is justice denied and Justice should be seen to be done at least in an Islamic Society, in Pakistan we are 50 years behind in giving justice to nation and have learnt nothing from our past and are not ashamed of our glorious heritage. Only fair, faster and firmer justice can ensure that no one dares to breach the core essence of Pakistan’s constitution & brings insecurity to its national assets if we are strong inside (law an order) and economically viable (strong economy). We need a strong system and reliance of that system and continuity where no institution start waiting for its term but institution start acting to protect the system of Parliamentary Democracy. Pakistani common man still is ready for sacrifice and can live in poverty, restlessness, without food, hygiene or modern facilities but they can not live in an unjust society where might is right is applied as a principle and incident like Bajaur happens on a whole scale where 80 people dies and no one knows who killed them. Unless people get their basic rights as per right, democracy can not flourish in Pakistan, as we desperately need a social reform package if we are to survive as nation, otherwise we will be brought down and limited to a multi national companies & mafia interest sometimes land mafia and other times stock exchange mafia. True problem in Pakistan is rule of law, education, social reforms and justice. Time is ripe that Judiciary gets its teeth out and do justice with common man. WPB is one of the tricks of juggler and these tricks are to deviate nations attention of what could not be delivered and to give them a dream unattainable. Women needs education and empowerment, very rarely ever, a rape case was decided in completeness under ‘Hadood laws’ in Pakistan, simply because, the basic requirement of 4 witness wasn't met, therefore, courts almost in all such cases punished rapist under Criminal Procedure Code of Pakistan, the other venomous propaganda that victim of rape (women) gets into trouble at the hands of police because of influence and money used by big people, have some truth in it, but this highhandedness one observes in every walk of life in Pakistan and you name it and it is there. So in short, the answer to this lies in reforming police powers by completely doing away with their ingrained practice of misusing powers in return for money and not making drastic changes in the law itself. Ideally, police can be barred from imprisoning any women until court decision and there must be presumption in favour of release of women out of custody on bail on conditions with or without sureties and in rare circumstances they are detained. They must only be imprisoned after having been sentenced. I feel this is an illusion an all eye wash, if the current ruler(s) were ever serious they wouldn't have waited for 7 years to bring this only change to please their master. I will only quote one sentence from Charles Cannedy’s book, ‘The Status of women in Pakistan in Islamization at P.74, where he says , “women fearing conviction under section 10(2) frequently bring charges of rape under 10(3) against their alleged partners. The FSC finding no circumstantial evidence to support the latter charge, convict the male accused under section 10(2)—the women is exonerated for any wrong doing due to reasonable doubt rule” The current ratio of convictions tell the whole story as to how many women have been sentenced under ‘Hadood laws’, its police powers which needs to be bridled not to change laws on the whole scale basis thus wasting nation’s time and money. Its time that we get down to true business which is taking off the uniform and hold free, fair and impartial elections under judiciary. Nation is sick of mockery and false pretences to extend unlawful regimes and can not be made fool any longer.Amjad Malik is a Solicitor-Advocate of Supreme Court of England and Wales and Legal Advisor PML(N)
