‘Leaderless Nation’ By Amjad Malik
Pakistani nation amongst a few in the history of modern times who witnesses helplessly the character assassination and political demise of any potential rising leader at the hands of the dictators of its time without any judicial oversight . After the death of Barrister Jinnah, the nation felt that Liaqat Ali khan will take the mission forward but unfortunately he was shot in front of his own people.
Another popular leader emerged within a martial law and we saw the fate of Zulfiqar Ali Bhuttoo whom western world called ‘zulfi’ a man with a vision and passion for his country who not only inaugurated the idea of making this nation an atomic power but also signed to bring infrastructure as well as the man with know how. He successfully advanced the country on the route to progress front nationally as well as on foreign front but when his wisdom and skills came nearer to serve Pakistan at the highest level he was sent to gallows and ‘was made an example’ as he himself warned. His death was a fatal blow to the state of Pakistan. His daughter could never come nearer to delivery of his father’s famous and politically romantic slogan of ‘roti, kapra aur makan’ (bread, clothes and accommodation) despite having two chances of crippled administration.
Then came a businessman who aspired to translate this declining economy a vibrant, powerful and progressive market and bridge in between hot waters and states of Asia and his first reign was called a way to turning this country a ‘tiger of Asia’ as said by a top magazine of its time. However his rule was toppled yet again by a powerful military dictator who is in power violating the article 6 of the Constitution of Pakistan which say, ‘(1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts to conspire to subvert the Constitution, by use of force or show of force, or by other unconstitutional means, shall be guilty of high treason.’ He sent them in exile and nation is again leaderless.
When popular leadership is politically assassinated then we are left without a voice. Pakistan is seriously suffering from a vacuum. Empty floor is occupied by scoundrels who can bargain on anything and have no morals and principles and no love for the country. Loot sale of the national assets is on. Ruling coalition does not carry the voice of masses, military dictator is showing autocracy by detaining the creator of the national supreme arsenal, exiling the both political leaders popular in the masses, and bringing the top judge of the state on his knees and on the road begging for justice. Its waste of time to even think the treatment bestowed on the sitting chief justice of Pakistan.
One single breach of any constitution if tolerated leads to a chain of similar events which can never be curbed later. Pakistan is seriously a victim of lawless clan of a few who do not understand the language of law. Might is right is their motto and oppression is their answer. In these circumstances democracy, free judiciary, political wise leadership, free media and accountability is a dream which may never come true.
Time has come that the maker of this country are looking towards the nation as well as the nation’s dearest soldiers to find the key to the question as to why Pakistan was made.
Pakistan is a dream come true, a story of a nation who without having similar language, culture and geographical heritage decided to live peacefully at one platform. They won a ‘statehood’ as a result of a one man one vote rule and opted for this land later called Pakistan and attempted to preserve their identity as well as their vision as an independent nation and their religious practices upon which were proud. That dream had a passionate leader a barrister from London’s Lincoln’s Inn. In 1971 that dream had a fatal blow when a popular mandate upon which this country was made was denied to its people. Second blow collectively is a collateral damage caused by ‘military coup de tat’s. If its one successful coup then history negates it, if that act puts you on the real road to strength, but when it turns into a periodical habit then state organs and its leaders start loosing their grip and those who are sub ordinate to sovereign must pay heed to this trend which is damaging the core essence of a state. Our political clan has not shown ‘white than white’ philosophy either and lust for money, greed for power and intolerance for others has damaged the original principle. Autocracy has not confined to one particular institution and or party it has become a common phenomenon in our mind set. Time has come to change our course and call for a public accountability. This nation is not a private land of any one particular individual, group, class and or party. This land of pure is a shelter for all classes, cultures and safety zone for all languages and geographical heritage on top of that it has a scared role of leading and assisting the Muslim community of nations by preserving its own. ’
Unjust society kills its own children like a rattled snake eats its own eggs. If our countrymen does not realise at this juncture then we will be very soon out of league even to think comparing with our arch enemy India whose system of governance is strong and judiciary is independent and common man is confident of its system. Self accountability is a noble cause for nations who believe in truth, rule of law and justice. Denial of truth and sham convictions may for the time being put the founders of great nations who lay leading bricks behind bars and glory greets those who strengthen their system. Qadeer Khan and Abual Kalam Azad is a glaring example like a slap on the face of tyranny. If this leaderless chain of events continue for little longer, then this time, even they will not require to lay down their arms as public will snatch those arms and put the barrels on their chest asking them to shoot.
Nation takes pride of their leaders and feels secure on the basis of the strength of their judicial system. Alas we have none at the current time. Government of Pakistan has turned into a rattled snake and is eating its own leaders and founders of its institutions whose efforts are enormous for the state of Pakistan whether its Qadeer Khan, Akbar Bugti, Nawaz Sharif, Benazir Bhuttoo, or latest victim Iftikhan Choudhary. Time is asking them to lay down their weapons and preserve what’s left otherwise eternal repentance will be their asset but will that repentance bring those times and leaders back?.
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and a life member of Supreme Court Bar Association as well as Chair of Association of Pakistani Lawyers (UK).
25 April 2007
‘EXIT’ By Amjad Malik
In Pakistan military dictators come unchallenged but their departure is never scheduled, same is the case with General Pervez Musharraf who is in a fix as what to do and popular date of 17th August is coming nearer. Their masters can never be their friends cried out loud General Ayub Khan in his last days in his autobiography so did Zulfiqar in his famous speech in Parliament that conspiracies are being hatched against him. Great nations keep their national interest supreme and weaker nation’s leaders their power . Pakistan a vibrant nation full of potential, talent has become a victim of a few whose vision has no boundaries and no respect for rule of law and justice. Alas the current ruler also could not do anything for the masses on a large scale and never commanded their support and always looked towards his masters as well as unit for maintaining power. He must look back and see how many friends are left behind, one by one he is getting lonely.
Ariel exit is normally the only route available for those who came violating the popular mandate of the people as leaving peacefully is an option idealistic but rarely practical. News reports indicate desperate attempts of such ‘political exit’ carefully concentrated between military dictator and other political parties, on top of list is PPP. Those who believe in the positive outcome of this relationship are living in Cukoo’s land as there can be no sane agreement between a military ruler and popular political party without compromising rule of law and constitutional supremacy. These Confidence building measures merely can pave the way of exiled leader’s peaceful return to Pakistan which is denied by force as Pakistanis are given their in born rights as favours not as a right, but partnership with an unpopular outgoing leadership is very tricky especially after judicial crisis of 9 March where they have self inflicted a wound which is not going to go away esaily.
Pakistan’s establishment knows it better that partnership with ppp with crippled opposition can be very dangerous. It can act as a double edge sword and only restoring two party system in reality as was before 12 Oct 99 is the ultimate solution and key to the security of the system guaranteeing protection to the state. Q league with divided vote with N league will suffer heavily at the hands of PPP, in fact it will eat them alive if allowed to canvass single handedly and maturity desires the return of other exiled leaders to ensure free, fair and impartial elections to allow the people to elect and reject the leaders. This fair dual is also necessary to have a check and balance to preserve serenity and common sense.PPP in power with military dictator will not be able to deliver as per claims and assessments are that such govt will be short lived and could be toppled with any uneven incident whether it is an incident like 9/11 or sudden death of any stalwart and then the situation will desire a rematch calling all the players again but at that juncture the loss will be of Pakistan.
Mullah is not the root cause of the actual problem, lack of political will is, and the direct diagnosis of such extremism is vacuum and the absence of political leadership which has roots in the masses on conservative front which use to keep middle class mobile and up right to check and out number the militant out fits. If you remove conservative leadership, ultimately you are left with Lal Masjid style leadership who are ready to interpret Islam to their own choosing though not shared by commoners but have a frightening effect on already weak government who is fearing of a political explosion all around, any time.
I feel time is up and rather than opening back door channels of secret negotiations with a,b,c parties and damaging the system further, military leader must act as Spartan and initiate open and public discussion in the supreme national interest with all political parties at a round table ensuring presence of all exiled leaders to discuss how an exit can be practically made possible and how a fair and transparent elections can be held in Pakistan. Those consultations may discuss the time table for laying off his uniform before his elections, and mechanism of inducting an independent and reliable care taker set up possibly judges along with powerful election commissioner who will impartially hold elections. He also needs consultation with all parties how the independence of judiciary can be secured as his actions speak louder than his claims that he believes in justice and fair play.
Only a fair and independent judiciary can guarantee holding of a fair election(s) in Pakistan. These elections can’t be held fairly if the head of judiciary is begging justice in his own court. What a picture the regime is showing the whole world of the state of play at judicial front, and the humiliation of masses over this issue is visible from their wider condemnation. These suggested actions are not imminent and may not happen at all as our leadership lack political will and have no roots as well as wisdom which needs to solve the crisis they are in and followers of Imam Hussain who are not a few applauded an other ‘NO’ to the tyrant of its time and time is running fast.
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and a life member of Supreme Court Bar Association as well as Chair of Association of Pakistani Lawyers (UK).
Press Release
By: Amjad Malik, M.A, LLM
- 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.
Life Member SCBA (Pakistan)
Chair Association of Pakistani Lawyers (UK)
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
