OPEN LETTER TO LORD JUSTICE RANA BHAGWAN DAS
March 24, 2007
Your FCO Ref: FCO Pro Bono Panel/suo moto/larger bench /2007
Lord Justice Rana Bhagwan Das
Acting Lord Chief Justice of the Supreme Court of Pakistan
Constitution Avenue, Islamabad
Supreme Court of Pakistan
Islamabad
Pakistan
Section Lines # 9220581-9220600
Fax # 9213452
Email: scp2000@isb.paknet.com.pk
Dear Honourable Lord Justice Mr. Das, the Acting Chief Justice of Pakistan,
Re: Chief Justice of Islamic Republic of Pakistan
We at the Association of Pakistani Lawyers (APL) along with fellow English Judges & Solicitors of the Supreme Court of England and Wales as well as members of respective regional Bars and ex pat members of APL refer to above and we jointly express our deep sorrow and dismay at the unconstitutional dismissal of Chief Justice, making him the extinct and rare position of ‘non functional’ and filling a mala fide reference against him on 9 March 2007, as well as the ‘ill treatment’ of current Chief justice Iftikhar Mohammed Chaudhary at the hands of local police on the 13th March 2007 as well as his continuous detention of which Lordship Lord Justice Iqbal took a suo moto notice and we all appreciate and welcome this gesture of good will towards your lordships fellow brother Judge.
We all jointly appreciate in the highest terms of the Lord Chief Justice Iftikhar Mohammed Chaudhary’s unprecedented determination to face allegations against him at SJC and not to resign from his constitutional position. English media declared it a 'Judicial Error’ as was the editorial in The Times newspaper (London) on 14 March 2007 at the following link: http://www.timesonline.co.uk/tol/comment/leading_article/article1511796.ece
We all are agreed on one point and are in favour of judicial activism when government of the day fails to deliver truly the relief people deserves, however, unconstitutional means follow when constitution fails to address the real issues and we foresee and fear a trail of further unconstitutional action(s) which may be in the offing and can trigger any time due to foreign interest in our country and request the Acting Judge to be ready to face the challenge to preserve rule of law and superiority of the Constitution of the Islamic Republic of Pakistan 1973.
We jointly request your Lordship’s intervention and consideration in order to initiate a full scrutiny of the above matter by forming a full bench consisting of all Apex judges in SC within a limited time frame to ensure proper scrutiny of Article, 209 and ensuring justice with the sitting Chief Justice of Pakistan. We are assured by your court as always and by previous incidents that ‘Justice will be done in this matter as was in the case of Mukhtara Maee, Sonia Naz, victims of Basant and missing people, trial of which are pending.
My Lord, We all jointly request your worship to consider the following:
- Whether the term ‘non functional’ Chief Justice of Pakistan is Constitutional, can it be applied to Sitting Chief justice of Islamic Republic of Pakistan. If it does where this term gets its roots and judicious scrutiny of this term, and can a sitting chief justice of Pakistan be made non functional by President of Pakistan on advice of the Chief executive and or any other constitutional body where CJ already has given judgments against that Chief executive for mal administration and or false practices;
- Whether the honourable Chief Justice of Pakistan can be sent on ‘forced leave’ applying Section 2 of the Judge’s Compulsory Leave Order 1970, validated in 1975 under the validation of Laws Act 1975 and legal status and validity of that Order and application of that law and that act on the Chief justice of Pakistan.
- Whether Acting Chief Justice may be appointed when Chief justice of Islamic Republic of Pakistan is able and available on the basis of ‘innocent until proven guilty’ legal test.
- Whether Acting Chief Justice can be appointed without consultation of Sitting Chief Justice under article 180;
- Whether acting Chief Justice in Article 180 means ‘the Most senior Judge of the apex court available’ or the most senior judge of the Supreme Court.
- Whether filing of reference before Supreme Judicial Council will automatically take away the rights and privileges & perks or protocol plus the in born constitutional rights of the Chief Justice of Pakistan and whether Chief Justice of Islamic Republic of Pakistan can be restrained, detained, put on house arrest, and can be manhandled (as obvious from pictures in the media) will all those acts not amount to contempt and bringing the office of the Chief Justice into disrepute and can an action be taken afterwards against the perpetrators on the basis of the media reports?
- Whether fundamental right of Chief Justice of Pakistan as citizen of Pakistan of having access to court, right to have access to his legal team, right to consult a doctor at his will, right to freedom and liberty, right to express his view and move freely can be restrained under any circumstances after filing a reference under Art. 209.
- Whether Chief justice of Pakistan until removed judiciously by a successful reference by SJC can be mal handled, mistreated, and his words are not acted upon as if he ceases to be the Chief Justice of Pakistan by reason of a reference pending before a SJC, and will it not be against the rules of natural justice to declare someone guilty before a trial in particular the sitting Chief Justice of Pakistan.
We expect your speedy action suo moto on this issue and request to consider this letter as a request to call a full court reference to decide the above questions. I am sure once the above questions of law are settled only then reference can proceed fairly as we have only one precedent so far in the case of President of Pakistan v Shaukat Ali PLD 1971 585 which is prior to the Constitution of Pakistan 1973 coming into force. We request your lordships guidance towards these important issues of law to bring the state of Pakistan out of a legal quagmire.
We are sure when the Apex judges will sit and ponder this most controversial reference in the Judicial history of Pakistan, they will come to an understanding how to proceed in the best interest of the country preserving rule of law and ensuring individual’s interest to guarantee fairness and due process of law. History is in the making if today Lord Chief Justice Iftikhar Mohammed Chaudhary is removed unconstitutionally as he is restrained at his house, what guarantee lies ahead that any future Chief Justice including your Lordship who tend to hear any controversial case against the Govt. may not be removed arbitrarily and detained by announcing and filing merely a plain reference before SJC challenging his conduct and is humiliated publicly, his flag taken off his residence and his cars fork lifted and he is mal handled and is subject to media trial at the hands of 68 Ministers of the current Govt. and he is gagged and cant answer them all. We need future guarantees in this case and nothing in this world is given free without asking and fighting for it. It’s a dangerous tendency and only Supreme Court itself from its own internal mechanism can address and challenge it and may save this institution by due consultation, wisdom, patience and honour and we wish you all the best in your endeavors to bring us all out of this constitutional crisis. We agree that personalities are not higher than national interest and sometimes, one ought to sacrifice personal pride and interest upon supreme national interest, and same maxim applies to our current rulers too.
Once again I am grateful for your access to us. Please do not hesitate to contact the Association at 01706-346011 if we can be of any assistance and we look forward to hearing from your Lordship a statement which has become a public demand a surety of ‘justice’.
Yours faithfully,
Amjad Malik, MA, LLM
Solicitor-Advocate of the Supreme Court of England and Wales
Life Member SCBA (Pakistan)
Chair Association of Pakistani Lawyers (UK)
Chief Justice needs a fair trial and treatment befitting to his office
By Amjad Malik
I endorse the demand of the lawyers as well as intelligent circles of the nation for a fair treatment of the chief justice in the current prevailing situation. The whole nation is condemning the mal handling of Chief Justice at the hands of elite force on 13 March when CJ desired to attend the Council meeting on his own will on foot. The footage was disgusting when he was mal handled and it gives a horrific picture, if Chief justice’s self respect is not intact, how come the nation can feel at ease that its sovereignty and respect is secure. It is matter of caution now and the executive of repercussions as nation may take to street and can take law in their hands if this mal treatment continues.
In the current geo political situation in the country The President must consider an option of reconciliation with Chief Justice as the Government with Steel Mill Judgment, land grabbing mafia, sugar and cement crisis, continuous stock exchange crash(es), and Nabbed’ ministers amongst their ranks will struggle to prove beyond reasonable doubt the issue and allegations of misconduct and abuse of power especially when they themselves drive bullet proof cars at public expense and order new planes for their personal use. The demand of the nation is just that Justices against whom reference and complaints of corruption and misconduct are pending must not be made part of the adjudication panel as desired by the Chief justice. However current situation desires all heads of constitutional tracheotomy to observe extreme patience and wisdom and be visionary to avoid conflicts which have serious repercussions for the state of Pakistan.
Current Chief is no threat to the President and or army as past record speaks for itself from incidents like Chief Justice waiting for 30 minutes in a queue to say good bye to the President at the ‘Wattoo’s’ wedding, attending your camp office to present report about SC annual progress, clearing backlog of 20,000 extra cases, setting up human right wing in SC to bridle unlimited powers of police in judicious manner, no major constitutional decision against army chief on his uniform and its expiry or president on his dual status, or 17th amendment in his tenure and no condition of ministerial resignation in ‘steel mills’ reference show that the said Chief has the capacity to work with the government and have never intended to confront army or army led rulers, in fact he was more deadly for opposition than his predecessors.
It must be pointed out here that if this reference continues it will make our country a laughing stock in the west, and we will be ridiculed when our dirty laundry is washed by our own self in front of all the world media, however in any event, Government must allow the chief justice the right he deserves at least to have a fair hearing against this reference. Chief Justice deserves a due respect and proper treatment to have his legal team for consultation and advice and unless Council decides otherwise all the privileges he deserves in the remit of constitution. At least Chief deserves the honour to have a fair hearing and at all times he must be treated with respect. Army General must bear in mind that even enemies in battlefield are given proper funeral & burial. I think m edia trial of Chief Justice must end here, now Chief Justice is a victim of his own deeds.
Top Judicial brass as an institution must have a full court reference to get out of this constitutional crisis and in principle either restore respect for which Chief Justice rightly deserve or assure fairness in his reference. Ideally SC must consider to wait for the arrival of the senior most Judge Rana Bhagwan Das too to construct a complaint free Supreme Judicial council. Lesson of history is that we do not learn any lesson from it and around 500 years ago The Queen of England tried to subdue her Chief Justice Mr. Justice Coke and people resented and took to street until that sacking was off,. Its time that Chief Justice is acknowledged as being on right.
Amjad Malik is a life member of Supreme Court Bar Association and & a Solicitor-Advocate of the Supreme Court (England) and chair of Association of Pakistani Lawyers (UK).
March 2007
Innocent until proven guilty By Amjad Malik
In last 36 years only one judge has been tested through Supreme Judicial Council Mr. Justice Shaukat Ali and that was in 70’s since then though judiciary had been more or less a spectator in all major constitutional struggles and could not play a due role either due to ‘law of necessity’ invented by Justice Munir or PCO’s introduced by military hierarchy. One thing is sure that in the past most of the judges caved in soon they saw an army man standing outside or inside their house telling them that they are fired unless resign otherwise and thus no struggle for judicial independence could take place from inside the judiciary until the day of 9th March 2007. Bars and Bench act like a glove in hand and they can only struggle for rule of law if the victim itself stands for supremacy of constitution.
Its rule of natural justice that a person accused of any allegation is innocent until proven guilty. Chief Justice is made subject to negative frenzy & media trial which is seeming one sided. On 20 March BBC published the whole of the government dossier which was leaked to them contrary to a gagging order by the tribunal hearing the reference against the Chief Justice. Wide circulation of the letter of film star cum lawyer all around and Govt Ministers without restrictions holding press conference(s) and issuing statements and highest office holders attending special live interviews about chief Justice’s personal life which is now sub judice for Chief Justice also give rise to serious questions of fair hearing of the reference and throw doubts about the true motive of the Government behind this reference.
Its rare in British justice system in last 400 years of this ever occurring, even Government of Blair since 1990’s which took controversial and split decisions like Iraq war has been challenged on various fronts by Law Lords whether it is the issue of ‘detaining foreign nationals’ or putting foreign national who cant be deported and pose threat to state under virtual house arrest under ‘controlled orders’. UK Ministers have been crying out helplessly but no executive had the guts to challenge the authority of the highest judicious office, let alone mal handling. Even matters involving national security does not allow challenging the authority of high judicial office.
All the happenings in Pakistan give a picture of Pakistani government as being intolerant and weary of free press and rule of law and can not stand even positive criticism. Nation is right in feeling that if all this is not stopped at the earliest stages it will not end here as we have witnessed some horrific developments since 9 March despite there being only one precedent so far in the case of President of Pakistan v Shaukat Ali PLD 1971 585 which is prior to the formulation of the Constitution of Pakistan1973. People need answers to serious questions which has arisen from this crisis and Apex court has the key to those answers because of the sensitivity involved around the office of sitting Chief Judge.
If today Lord Chief Justice Iftikhar Mohammed Chaudhary is removed unconstitutionally, what guarantees lie ahead that any future Chief Justice if challenges the govt over their inefficiencies, abuse of power, corrupt practices or intends to hear any controversial case against the Govt may not be removed arbitrarily and detained by announcing and filing merely a plain reference before the judicial tribunal (SJC) challenging his personal conduct and is not humiliated publicly as was the case with the current chief Justice whose protocol was withdrawn, liberty was snatched, coat was torn, national flag was taken off his residence and his cars were fork lifted and shown on TV live to give a strong message of ‘might is right’ to the nation. It does not end here he was later mal handled and was made subject to worst media trial at the hands of 68 Ministers of the current Govt. on top of that he is gagged by a tribunal order and cant even answer those allegations. In any event judges speak through their judgments as they are not political leaders and current chief has many judgments for public. In these circumstances can he get a fair trial is any body’s guess but to me not at all.
We must learn an other lesson or at least attempt to learn one, and nation is right in demanding future guarantees as It’s a dangerous tendency to disrespect the office of the sitting CJ who is a guardian of justice and messiah for all those who are victims at the hands of unbridled police and law enforcement agencies who does not read law, and notice their duties and follow orders from top without looking into their legality and only Supreme Court itself from its own internal mechanism can address and challenge it and may save this institution by due consultation, wisdom, patience and bring the state out of this constitutional crisis.
Rule of law has its own price and at this moment Pakistan needs a ruler who can make rule of law a distinctive feature of his governance and eradicate all the evils in civil society and ensure justice at the door step of a common man. All this is happening because tracheotomy and balance of power is non existent and all the power is in one man’s hand. Only fair, faster and firmer justice and free elections can ensure that civil normalcy returns as soon as possible in Pakistan. Pakistani people can live in poverty a little longer but living in an unjust society’ where their own chief justice begs for justice and rule of law is unthinkable. It’s a dangerous tendency to try to tame the important pillar of state and intimidating the office of Chief justice and there is still time as the Ginny is not totally out of bottle yet to save the nation from this uncalled for judicial crisis by restoring & reinstating The Chief Justice honourably. Its not me alone, the whole world is demanding reinstatement with apology.
Amjad Malik is a life member of Supreme Court Bar Association and & a Solicitor-Advocate of the Supreme Court (England) and Chair of Association of Pakistani Lawyers (UK).
21 March 2007
Open letter to Lord Justice Javed Iqbal
Thursday, March 15, 2007
Your FCO Ref: FCO Pro Bono Panel/suo moto/larger bench /2007
Private and strictly confidential and for the addressee only
Lord Justice Javed Iqbal
Acting Lord Chief Justice of the Supreme Court of Pakistan
Constitution Avenue, Islamabad
Supreme Court of Pakistan
Islamabad
Pakistan
Section Lines # 9220581-9220600
Fax # 9213452
Email: scp2000@isb.paknet.com.pk
Dear Honourable Lord Justice Mr. Iqbal, the Acting Chief Justice of Pakistan
Re: Chief Justice of Islamic Republic of Pakistan
We at the Association of Pakistani Lawyers (APL) along with fellow English Judges & Solicitors of the Supreme Court of England and Wales as well as members of respective regional Bars and ex pat members of APL refer to above and we jointly express our deep sorrow and dismay at the ‘ill treatment’ of current Chief justice Iftikhar Mohammed Chaudhary at the hands of local police on the 13th March 2007 as well as his continuous detention of which your Lordship took a suo moto notice yesterday and we appreciate and welcome this gesture of good will towards your fellow brother Judge.
We all jointly appreciate in the highest terms of the Lord Chief Justice Iftikhar Mohammed Chaudhary’s unprecedented determination to face allegations against him at SJC and not to resign from his constitutional position. English media declared it a 'Judicial Error’ as was the editorial in The Times newspaper (London) on 14 March 2007 at the following link:
http://www.timesonline.co.uk/tol/comment/leading_article/article1511796.ece
We all are agreed on one point and are in favour of judicial activism when government of the day fails to deliver truly the relief people deserves, however, unconstitutional means follow when constitution fails to address the real issues and we foresee and fear a trail of further unconstitutional action(s) which may be in the offing and can trigger any time due to foreign interest in our country and request the Acting Judge to be ready to face the challenge to preserve rule of law and superiority of the Constitution of the Islamic Republic of Pakistan 1973.
We jointly request your Lordship’s intervention and consideration in order to initiate a full scrutiny of the above matter by forming a full bench consisting of all Apex judges in SC within a limited time frame to ensure proper scrutiny of Article, 209 and ensuring justice with the sitting Chief Justice of Pakistan. We are assured by your court as always and by previous incidents that ‘Justice will be done in this matter as was in the case of Mukhtara Maee, Sonia Naz, victims of Basant and missing people, trial of which are pending.
My Lord, We all jointly request your worship to consider the following:
• Kindly Consider to meet the Chief Justice ‘one to one’ to assure him that he will get a fair hearing against the reference filed with ‘Supreme Judicial Council’ by the President of Pakistan on the 9th of March 2007.
• Kindly Consider to call a full court of all Apex judges to consider this important constitutional elaboration in the light of the reference and Executive’s insistence to make CJ ‘non functional’ contrary to the letter and Spirit of the Constitution of Pakistan 1973 (Art 209) as there is no precedent of CJ ever being made non functional in any country in the World unless charged with a criminal offence or treason.
• Kindly consider an issue to resolve by full court reference to restore Chief’s administrative position as CJ because Art. 209 is silent on the ‘non functional’ status of CJ and there is no provision of non functional Chief justice as would be the case if President is impeached and or Prime Minster awaits the outcome of a no confidence motion. To our consolidated view CJ may not take legal cases due to future application of ‘miscarriage of Justice’ allegation against the judgments he delivers whist he awaits the outcome of his reference, however we feel that he still remain functional and may not leave Supreme Court un administered.
• Kindly Consider an issue to resolve by full court reference to restore all privileges of the CJ and bring him out of said ‘house arrest’ and allow him to meet his lawyers and whosoever the Honourable CJ desires, CJ also must be provided with the local necessities such as newspapers, telephone facility, and medication as he desires and CJ must be allowed to use his chamber and staff at SC.
• Furthermore, kindly consider an issue to resolve by full court reference to restore order to restore normalcy around CJ’s private life as we learnt with shame that his daughter is not allowed to attend school, as well as his family is restrained to entertain their worried relatives and they are unable to communicate independently to convey their well being and are unable to meet them.
• Kindly consider an issue to resolve by full court reference to order full restoration of Chief Justice’s protocol and privileges less his judicial duties.
• Kindly consider as an issue to resolve by full court reference to consider hearing the submissions of Attorney General as to prima facie allegations to prove that there is a reference to answer as there is several references and complaints already pending and not always all complaints are just and equitable, and before making him non functional if that is the desire of Apex Court a prima facie case must be made with regard to reference.
• Kindly consider an issue to resolve by full court reference an option of Govt. withdrawing the said reference if the Government is willing to request the President in the supreme national interest as the media trial of CJ and remarks of two CM’s and media minister as well as wide circulation of the letter of Advocate cum TV star Naeem Bukhari has already put CJ in a very compromised position and he may not get a fair hearing if the media trial continues.
• Kindly consider an issue to resolve by full court reference to order to ensure that the chief justice at least to have a fair hearing against this reference. Chief Justice deserves a due respect and proper treatment to have his legal team for consultation and advice and unless Council decides otherwise all the privileges he deserves in the remit of constitution.
• Kindly consider an issue to resolve by full court reference to invite and appoint the senior most judges in the SC as the Acting Chief Justice. In current case Mr. Justice Rana Bhagwan Das has done this job twice in the past when current CJ was on foreign tour to China and for pilgrimage and we do not see any reason why he can not redo it again. I hope he will be happy to do it again though reluctantly if the matter proceeds. There are rumors circulating about his presence in the country, therefore, in this ‘national constitutional crisis’ the prolonged leave and absence of Justice Bhagwan Das is adding more suspense to this mystery, and your Lordship is kindly invited to consider giving Mr. Justice Das a courtesy call to invite him to return to his homeland and if already in country to attend SC to perform his constitutional duty.
If your Lordship ensures that, we assure you that the working of Supreme Court will resume as normal. We will just mention here a lesson of history though we tend not to learn the lesson(s) of history and forget it quickly. Around the year of 1616 The Queen Elizabeth the First of England tried to subdue her Chief Justice Mr. Justice Edward Coke who gave decisions against the realm and people resented and took to street and made him a living legend, its still time to hold the last assault on CJ which may prove disastrous for the judiciary as well as the interest of Pakistan.
We expect your speedy action on this issue and request to consider this letter as a request to call a full court reference to decide the following:
• Appointment of Senior Most judge as Acting CJ under Art 180.
• True elaboration of Art 209 and legal position of CJ whether he can be made ‘non functional’ or not.
• Construction of SJC to maximize fairness and how this can be guaranteed addressing prima facie reservations of CJ.
We are sure when the Apex judges will sit and ponder this most controversial reference in the Judicial history of Pakistan, they will come to an understanding how to proceed in the best interest of the country preserving rule of law and ensuring individual’s interest to guarantee fairness and due process of law. History is in the making if today Lord Chief Justice Iftikhar Mohammed Chaudhary is removed unconstitutionally as he is restrained at his house, what guarantee lies ahead that any Chief Justice in future including your Lordship who tend to hear any controversial case against the Govt. may not be removed and detained by announcing and filing merely a plain reference before SJC challenging his conduct.
It’s a dangerous tendency and only Supreme Court itself from its own internal mechanism can address and challenge it and may save this institution by due consultation, wisdom, patience and honour and we wish you all the best in your endeavours to bring us all out of this constitutional quagmire. We agree that personalities are not higher than national interest and sometimes, one ought to sacrifice personal pride and interest upon supreme national interest, may be same must apply to our rulers too. Once again I am grateful for your access to us. Please do not hesitate to contact the Association at 01706-346011 if we can be of any assistance and we look forward to hearing from your Lordship a statement which has become a public demand a surety of ‘justice’.
Yours faithfully,
Amjad Malik, MA, LLM
Solicitor-Advocate of the Supreme Court of England and Wales
Life Member SCBA (Pakistan)
Chair Association of Pakistani Lawyers (UK)
Link: http://www.prideofpakistan.com:8080/maincontroller?requestId=26&id=126
Yet an other blow on the weaker judiciary of Pakistan
Yet an other blow on the weaker judiciary of Pakistan
By Amjad Malik
Yet an other black day in the short history of Pakistan. Last full decade of Army Chief cum President General Mushraf is full of black days, and it has happened so many times that we feel reluctant to call it a black day.
On 12 October Army came to Capture capital in defiance of Prime Ministerial orders and that was considered a black day, Chief Justice Siddiqui was made to go home and Judges took oath under PCO, again that was called a black day and now again Chief Justice was in some what similar style and circumstances was confined and reduced to a normal man, now critics call it again a black day. I differ as it is under statement, we must reconsider as we can not have 3 black days in 10 years. So lets call it a ‘Chief Day’ one chief tells the other as to who is real chief, the other chief tried to be chief and real chief confined him to a chief he really is in a chiefly manner. In the west the news was taken that an Army Chief called the Chief Justice in his army camp, asked him to leave honourably or face the wrath and upon his refusal confined & reduced him till the evening against his will and shuffled the whole Supreme Court and put a reference against Chief Justice in the Supreme Judicial Council who will hear dozen of allegations full of metal against their peer on 13 March 2007. That’s the way the current government is used to changing ‘thanidars’ and the same way they have decided to change the Chief JusticeIrony is that his fellow judges rather than enquiring the well being of their Chief and ordering for his production and availability in Supreme Court so that proper consultation could take place as to resolving the President’s reference to (SJD) Supreme Judicial Council ideally a full court reference of all judges to decide the full mechanism of Article 209, instead they went ahead and took oaths as was desired by an other Chief and people saw them congratulating each other on this victory. We see that when its time of Judicial unity you can always find judges who would come forward and act against their own peer, army does not do that when time comes, and they always boost of this quality.
Now we must look at reasons as to why chief has to go. I spoke to a few friends who were saying since x-mas that chief is going then came Arsalan (his son’s) issue, letters started circling here and there and a story in popular channel in Pakistan on bribery in judiciary and last nail in coffin a letter purported to be from Naeem Bhukhari which was highly circulated as I myself received it from USA. These were the chain of events that gave rise to intelligent bye slanders that ‘cookie is cooking’ and cat was out of the bag on 9 th March. Why it happened is very crucial. I think Chief was acting as a real chief. He gave a very popular judgement in public against steel mill sell off, he was hearing cases of missing people which was against the desires of intelligence top brass, he gave access to truly affected people like Sonia Naz & Mukhtaran Maee against the wishes of Police though he may have gone little bit far in doing so. And he was about to decide very few important constitutional matters in next 6 months and looking at his track may be ‘they’ were not truly satisfied whether he will given them in levy. I think they panicked.
I personally am in favour of judicial activism when government of the day fails to deliver truly the relief people deserves, unconstitutional means follow when constitution fails to address the real issues now I feel our favourite general is entering into that regime and next 6 months are very crucial for him. The way Chief Justice was aggravated by attacks on his personal life for last 12 weeks, similarly I feel he himself is taking aggravated decisions and critic says he has shot on his own foot by sacking the Chief Justice.
I myself am a witness of the fruit of pro active judicial work when Chief Justice last year upon my request asked IG Punjab to register a case of murdered women in Gujrat upon the request of his elderly parents over 70 years of age living in UK. The girl was brutally bruised and killed and later was buried without her parents present by her husband. Even after Chief’s intervention FIR was registered good 6 months after her death. Though they still did not get trial or complete justice but this gives the reader an idea of state of play. We can not punish him for the good he intended to do in the country.
How this change procedurally has been carried out is a mockery pf justice. Even chief justice deserves justice and due process of law, he is not above law. Article 209 is very clear. Chief is always chief. He can not be tamed, confused, reduced and confined. He could not have been called to army camp and humiliated by asking to resign. Filing reference was President’s prerogative and after filing that Reference CJ should have been allowed to attend SC and decide as to the fair conduct & hearing of that reference and peers would independently decide on it. They had already done so in the past at the time of unprecedented clash of views when Honourable Sajjad Ali Shah was Chief and they jointly decided to ask him to step down for the sake of unity in judiciary. They would have done it this time too and nation becomes strong only with these passages given the opportunity.
Government has no leg to stand on the issue of abuse of power and corruption when Steel Mill Judgement, land grabbing mafia, sugar and cement crisis, continuous stock exchange crash(es), Nabbed’ ministers and Bajaur and Dama Dola killings are shining like medals on its collar. No sacking took place then and no reference was filed. Government should have resigned in any event or could have been sacked after Steel Judgement. English cabinet would have if that have been a decision by English Court.
Nexus of our judges with Generals have ruined the future of democracy in Pakistan. Nepotism, bribery, lawlessness, unmeritorious appointments and lack of respect of law in an unjust society has made life impossible for lay Pakistanis who are looking towards a ‘messiah’ for their salvation. In order to continue this trail of unlawful rule, judiciary has weakened further and Chief Justice has been made to go home the second time. Ordering oath under PCO hit the nail aright and judiciary lost its teeth as an institution long ago. Will Iftikhar Choudhary get a fair hearing when his peers do not speak up upon his confinement, when he is stripped off his freedom of speech and his lawful privileges, its any body’s guess though I hope he does.
Now what will happen, I think even Chief Justice deserves a fair hearting, a due respect and proper treatment to have his legal team for consultation and advice and unless Council decides otherwise all the privileges he deserves in the remit of constitution. Media trial must end here, now Chief Justice is a victim of his own deeds good or bad and let the council decide on 13th the future course of business. I must mention here that whilst CJ had a chance, he could have decided some constitutional issues too whilst he was in power. Now regrets is an asset for his memory when he witnessed the Army chief retaining his uniform post 31 Dec 2004 he remained silent, when he rejected to entertain two offices bill, when his office entertains president’s reference against NWFP assembly’s passed bill but he refused to give relief against 17 th amendment. Equality is a virtue of which our SC is envy of especially when army is out of barracks. We still pray that justice is done with the Chief Justice. I must mention here that sitting in London I could find only one gentleman out of the whole judicial class (Mr. Justice Wajeeh uddin Ahmed) who showed his guts and voiced the true feelings of lawyers all around and judicial class and demanded the fair treatment of the Chief Justice.I must end here saying that if his fellow peers decide in his favour then including Attorney General from lower to the top brass must be ready to resign as filing reference on unfounded charges and on the basis of some letter(s) is a serious business and may amount to contempt too for those who choose to ridicule the Chief in this unbefitting manner and especially for the Govt who have no track record of angels themselves. President must also be ready to digest more reference(s) against his own hand picked government if this reference succeeds as it opens a window to people to complain and demand sacking of his own hand picked Ministers amongst those are some real absconders and criminals who are looting the state of Pakistan on wholesale basis. Nation is demanding justice and it must be seen to be done. One time the same thing The Queen of England did to his Chief Justice Coke 500 years ago and people took to street until that sacking was off, and later people got him elected and he was made a speaker of the assembly without opposition by all the houses of parliament. That’s the power of people where rule of law exist.Amjad Malik is a life member of Supreme Court Bar Association and & a Solicitor-Advocate of the Supreme Court (England) and chair of Association of Pakistani Lawyers (UK).
Dated: 10 March 2007
‘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
