Amjad Malik`s Personal Page

‘BALL IS IN YOUR COURT’ BY: AMJAD MALIK

On 28 September 2007, nine member bench hearing the identical constitutional petitions comprised of Justice Rana Bhagwan Das, Justice Javed Iqbal, Justice Abdul Hameed Dogar, Justice Sardar Muhammad Raza Khan, Justice Muhammad Nawaz Abbasi, Justice Faqir Muhammad Khokar, Justice Falak Sher, Justice Mian Shakirullah Jan and Justice M Javed Buttar in their short verdict dismissed all the constitutional petitions declaring them not maintainable by 6:3, as a result the top judiciary threw the ball in the court of parliamentarians who gave exit to a military man to re decide whether President General Pervez  Musharraf could win the presidential elections with their votes on 6 October 2007.

Though the judgement is quite to the contrary to the expectations and wishes of the people of Pakistan which were raised by the judgement of 20 July by Justice Ramdey’s court but since its early days of this newly achieved independence as a result of lawyers movement therefore the legal hawks were expecting this sort of mild decision on the logic to save the system thus avoiding martial law the old fear in Pakistan at all times and SC once against lost the chance to nip the evil in the bud and bury ‘the law of necessity’ forever and exit military from national politics. However SC refused such relief inviting the Parliamentarians to do the dirty themselves and decide whether they wish the General to be elected or not. Its up to them what they do.

This is the time that main political parties must consider the options to vacate the electoral college before he is re-elected or if its too late to put all the efforts behind one neutral candidate to show spirit of participation in electoral process otherwise people have to put up with military controlled democracy for further five years which may result in tragic incidents like 1971 looking at kidnapped army personnel’s in Waziristan and wishy washy statements on Dr Qadeer Khan.  

As the battle for true democracy, rule of law and justice in Pakistan has not finished and it will be unwise to link it with one judgement or with one judge because it has merely begun with this decision, and one thing for sure SC closed the doors of going to courts every Friday for seeking political decisions. Its up to the politicians to close the gap of constitutionally improper accommodation of any individual ultra constitutionally against the letter and spirit of the Constitution of Pakistan wherever it is with unity by sheer intelligence, reconciliation and consultation in the wider interest of the state and in order to promote democratic process.  

Amjad Malik is a Solicitor-Advocate of the Supreme Court of England & Wales and a chair of Association of Pakistani Lawyers (UK)

28 September 2007

• Posted by valiantpk on 28/09/2007.
• login or register to post comments

‘Its Difficult to be a Devil’s Advocate’ By: Amjad Malik MA, LLM

Post 9^th March 2007 whilst lawyers of Pakistan gathered storm in support of a victim Chief Justice and received nation’s appreciation all around, at the same time a few emerged as devil’s advocate on the national scene too. In adversarial system its common that you have a brief, either for or against and one has to lose the case too and accepting defeat graciously and winning honourably is the key, however its opposite in Pakistan. No one wins or lose normally.

Whilst condemning the acts against Naeem Bukhari, Khalid Ranjha and Wasim Sajjad a few renowned lawyers and a TV star in Pakistan as well as an un called for show of aggression against President’s chief lawyer cum spokesman Mr. Qasuri is condemnable in the highest terms, at the same time, those so called barristers who wish to render their services as devil’s advocate must be aware of the public sentiments which always go against those who argue for their brief as well as publically incite hatred against the popular cause. When a lawyer  represents a case of public interest, criticism of good and bad comes with the job, however when one over represents, one mixes rightly or wrongly one’s representations with one’s aspirations, and same is the case with a few stalwarts as they are never aware when and where to stop. In this context Mr. Pirzada the magician lawyer and S M Zafar are noteworthy as they never go out of their brief. General Musharraf devoid of legal sanctity is without doubt the most disliked legal animal in Pakistan at the moment, declared ‘an endangered species’ by Ms. Bhuttoo and let alone winning, fighting his case is not an easy job and publically representing I believe is the job of his clan of Q.

In my practice in Britain, advocates exchange views, fight their cases in courts tooth and nail  and during breaks or in the end often have a cup of coffee together in the bar room or court lounges. They are always cordial with each other and always show respect to the other side lawyer and at all times address them as ‘my learned friend’. The incident which we are witnessing on television these days of blackening faces are rare in my years of practice in Britain. In fact, there is truly a culture of tolerance, acceptance of each other’s views and accepting defeat in the land where all the barristers are produced. In fact, lawyers as other professionals perform their professional duty and in principle they must not be penalised for performing their professional duty.  

Its a red hearing for those who whilst representing initiate a debate and express personal slanderous views without evidence or justification about past or present popular leadership or a cause. In Pakistan if you wish to be a gutsy lawyer and publicly wishes to say to a bhuttoites that you are the one responsible for sorting him out or declare Shraif’s traitor or call lawyers as foreign agents then either you are mad or you are with beggars’ belief that those who are paying you to represent a case will come to rescue you for your madness. Or it will be highly unlikely that millions of supporters of those individual parties or cause will  welcome you after those remarks with flowers as tolerance level is not that high yet in Pakistan and those who pay will rightly justify their payments for what one reaps for being a devil’s advocate in the end, a black face.   

However, the lawyers movement and its leaders must preach sanity and their papers on law must be apt to be considered by main stream political parties for their manifestos in coming elections. If wisdom is not preached at this juncture then the whole argument will fail where thousands of lawyers supported the cause all around the globe. Senior lawyers must consider the sensitivity of the situation, decorum and use their oratory for the sake of Pakistan and nomination of Wajihuddin Ahmed I think is a starting point towards the right direction.

Initiation of spade work early as possible is the message from abroad , as the independence of the whole institution is the aim and it must not be linked with winning one case or restoring one judge.  Nexus of our judges with Generals so far in Pakistan hindered democratic flow and process and the struggle must be for strengthening the institutions rather than promoting individuals. If system is strong enough and is allowed to run at its full capacity with free media and judiciary as monitors, it will automatically start chunking out leadership as is the case in India, Britain and United States.

If these dreams are to be translated in reality then visionary orators must keep their road map to the goal intact. Crucial topics such as appointment of judges via non political and unbiased commission, non controversial non political ethical future lawyers who in the end become  judges, politics free bar, training of lawyers and judges, accountability & financial autonomy of top judiciary including their  protection and true separation of administration from judiciary are the questions which as a overseas Pakistani lawyer I can think of to start with though I know that the true work will start when Ginny is in the bottle and military is shown  exit from the civilian set up. However, what if that happens overnight, therefore lawyers must be ready to play their due role even if the task lands on them all of a sudden.

Amjad Malik is a Solicitor-Advocate of the Supreme Court of England & Wales and a chair of Association of Pakistani Lawyers (UK)

• Posted by valiantpk on 25/09/2007.
• login or register to post comments

Musharraf Refused Entry of Democracy in Pakistan By: Amjad Malik MA, LLM

• Posted by valiantpk on 12/09/2007.
• login or register to post comments

‘What if the General does the unthinkable’ By: Amjad Malik

Sharifs were given a relief to enter and remain and continue political activity as guaranteed in the 1973 Constitution as a basic right of every Pakistani citizen on 23 August 2007. 7 member bench of Supreme Court in Constitutional petition no 48 & 49 of 2007 of Sharifs said in their short order , “1) For reasons to be recorded separately, both the captioned petitions, being maintainable, are accepted. 2) It is declared that Mian Muhammad Nawaz Sharif, and Mian Muhammad Shahbaz Sharif, under Article 15of the constitution of Islamic Republic of Pakistan 1973 have an inalienable right to enter and remain in country, as citizens of Pakistan. Their return/entry into country shall not be resisted, hampered or obstructed by the Federal or Provincial Government agencies, in any manner.”   

Sharifs have indicated their plans to return on 10 September 2007 and along with it General Musharraf has shown intentions of subverting those plans despite the order of the court. For readers I would mention that article 190 of the Constitution binds all authorities judicial as well as executive to ensure implementation of the orders of highest court as it says, “All executive and judicial authorities through out Pakistan shall act in aid of the Supreme Court”.

Now looking at the tendencies General Musharraf has developed in the state by bulldozing the constitution to secure one man’s job at top slot and sacking elected Premiers twice, Chief Justice of Pakistan twice, President once as well as overhauling the Constitution to that extent that its neither Parliamentary nor Presidential. He has the credit of deporting Shehbaz Sharif in May 2004 despite clear observations too.

Supreme Court, media as well as Civil Society fully charged along with 90,000 lawyers force will not allow the outgoing president to have first aid in the shape and form of any constitutional package to secure one man’s future role before and or without ballot. This new power in the state of Pakistan will not allow the business of wheeling and dealing as the true dealers must rightly be ‘160 million people’ and they must be given a right to choose their representatives through a ballot which is free, fair and transparent and it is not  going to happen if General Mushrraf does not declare that he has withdrawn from his vested interest in continuing his armed forces employment as well as civil aspirations.

General Musharraf came to power to bring about true democracy and rule of law. His 7 points agenda is all but a shameful slogan seeing results of his 8 years reign when we see land mafia and absconder and wanted criminals in the list sitting besides him as national heroes and good governance idea  is sacrificed on the alter of scandalous government which has land mafia, sugar and cement crisis, oil price hike, steel mill reference, stock exchange crash, Nabbed’ ministers and incidents of Bajaur and damadola shining like a medal on their collar. A common man fears for the worst if not stopped here and if permitted these rulers will not hesitate to sell any thing they grab as they are on ‘hit and run’ policy because their political days are numbered and only true Parliamentary democracy is the future of Pakistan.

If general Mushrraf tried to stop Nawaz Sharif and did not allow the nation to make a choice at free polls, then he must be ready for their wrath too as post 20 July its a new Pakistan and its a new political climate and people if risen will become unstoppable and 400,000 army men will feel helpless to impose martial law even if the General desires as the charged civilians who have still to digest the humiliation with the Chief Justice and incident of 12^th May in Karachi are waiting for punishment to those responsible for the onslaught.

Pakistan does not need a martial law any more, it only requires a free and fair elections under a lawful authority and smooth running of the institutions as desired by the Constitution. People will not allow these hybrids any more and Mushrraf sahib must be weary of that. People are not willing to give in their rights so easily anymore. Nation is watching you.

Amjad Malik is a Chair of Association of Pakistani Lawyers (UK).

30 August 2007

• Posted by valiantpk on 09/09/2007.
• login or register to post comments

‘Implication of recent events in Pakistan and Why British Lawyers should be concerned’

By: Amjad Malik MA, LLM

Pakistan emerged on the international scene in 1947 when British imperials left its colony leaving behind two separate states, India & Pakistan. Being a former colony most of the legal  framework is based on English law in Pakistan. Over a million souls have settled in UK creating a unique relation between two countries and Britain is considered as second home for many ex patriots thus creating public interest in each other societies. However, Pakistan could not lift itself from ground due to death of its founder Lincoln’s Inn Barrister Mr. Jinnah, and poor infrastructure and lack of political and  economic stability in early years. In 60 years of its life nearly 4 decades are covered by 4 military regimes and Parliament is still struggling with other institutions for its sovereignty.  Pakistan Judiciary and Media both are fighting hard to come out of the strong grip of military rulers.

Britain in recent years have signed bilateral agreements & protocols to promote cooperation in various sectors in Pakistan. In particular in 2003 both judiciaries signed a Memorandum of Understanding to tackle child abduction and following visits of both members of top judiciary paved a way for  better understanding for the sake of rule of law and justice in Pakistan. This interaction have also caused to promote infrastructure in legal industry especially to enhance professionalism and improve syllabus as only good lawyers in return can become good judges.

Then came 9 March 2007 when the Military ruler tried to subdue Pakistan’s Chief Justice Mr. Iftikhar Mohammed Chaudhary by filing a rare reference and stopped him from judicial work, incarcerated him and made him incommunicado along with his family without counsel. Lawyer fraternity stood up for him and  that single judge on the street conquered the minds and hearts of Pakistani people and scores of people sided by the judge in dock. Even the Times newspaper wrote an editorial on March 14 with the title ‘Judicial Error’ asking General Mushraf to withdraw the reference and reinstate, quoting, “Good Generals know when to retreat.’  

The writer wrote to General Pervez Musharraf on 12 March 2007 to consider withdrawing this reference as the procedure adopted gives rise to serious questions of procedural impropriety and the way CJ was handled created serious doubts whether Chief Justice can ever have a fair hearing if he is treated as guilty before even having a trial. The Chief Justice resorted to higher courts and petitioned for justice in his own court and on 20^th July, Supreme Court bench of 13 top judges quashed the reference and restored the Chief Justice to his old position.

Recent events in Pakistan  including Chief Justice’s dismissal, 12^th May Massacre in commercial city of Karachi when Chief Justice was due to address Karachi Bar, military operation in Capital Islamabad in Red Mosque and a sharp increase in suicidal attacks in Pakistan give rise to serious questions of ever growing radicalisation threat in the society and ever widening gulf between liberals and theologians which affect UK too. I believe simple democracy with justice can solve half of the problems in Pakistan. In the whole power struggle the common man is suffering and middle class conservatives are loosing ground. The West must play its role to ensure free and fair elections in Pakistan under a credible care taker set up and a powerful election commissioner along with independent monitors. The sooner nuke armed Pakistan returns to normalcy the better it is for the rest of the world. This radicalisation may increase where military which lacks legitimacy runs the country by making certain compromises with the hardliners and only civilian set up can absorb those radical ideas by addressing political issues by a dialogue thus stopping it from spilling over & multiplication. Pakistan being front line state in War against Terrorism is a key country seeking attention of the West towards their claim of spreading true democracy in the world. Historic judgement of 20th July is a ‘turning point’ in the short history where the Pakistani rulers are on a cross road whether to move forward from here or run backwards and the Western World especially  Britain’s role is very important to return its old colony towards military free democracy.

Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and a Chair of Association of Pakistani Lawyers (UK).

3 August 2007

• Posted by valiantpk on 16/08/2007.
• login or register to post comments

Message on Pakistan Day

We can only make Pakistan a successful, progressive Islamic state if we individually eliminate the differences in our sayings and doings and remain firm and united and fight on principles, remain honest with the cause and practice justice in small and large matters of our individual as well as in our national life.

Pakistan  and its executive as state representatives practices complete fairness in relation to its obligations and responsibilities and are accountable to public and their orders are sub judice and operate a crystal policy of unity, faith and discipline in nation building and they provide their services in accordance with the Islamic injunctions, Constitution of Pakistan coupled with complete harmony of nation’s trust and promote acceptable internationally recognised human rights articles in respect of its citizens, minorities and above all women.   

May God bless Pakistan with strong, brave and intelligent united leadership who think in the wider interest of Pakistan and utilise its resources for Pakistan's development and its people's progress in this and coming centuries.  Pakistan Zinda Bad, Quaid e Azam Painda Bad. 

Amjad Malik

Solicitor-Advocate Chair

Ilyas Gonday

Secretary  

Mr M Rafiq

Assistant Secretary   

Association of Pakistani Lawyers

149a Drake Street,

Rochdale, OL11 1EF 

00 44 1706 346 011 

00 44 7770 983308          

• Posted by valiantpk on 14/08/2007.
• login or register to post comments

‘Pakistan’s Presidential Elections 2007 Constitution must be implemented in letter and spirit not in mere words’ By Amjad

2007 in Pakistan is an election year General election as well as Presidential. History tells us that military rulers translated, exploited and manipulated the voice of silent majority who remain mostly uninvolved in political business until 9^th of March when all the bookies lost their bet and a new leaf in the state of Pakistan emerged which resulted in a struggle for rule of law in the country and as a result Judges  delivered a land mark judgment on 20^th July 2007 restoring the Chief Justice thus inaugurating the road towards independence of judiciary. That judgement for the time being broke the knot of the nexus between military rulers and judiciary which on the common objective of ‘law of necessity’ legalised military coup de tats and in return render themselves unaccountable to public, NAB or courts.

That one institution is a guarantor of the free press, smooth running of Parliament, institutions  and maintains checks and balances amongst state organs. Military rulers who are blood hungry for power politics took over the governance of the country on the name of holding fair elections, ridding corruption and providing basic needs to common man. In this current case that ‘silent majority’ is our broken middle class who supports helplessly every one who aspire to bring economic change, social justice and is a reformer in nature and they always fall a prey to this illusionary slogan. They fell for ‘Rooti, Kapra aur Makaan’ and also fell for General Zia’s ‘Islamisation and fair elections within 90 days & General Mushrraf’s call for enlightened moderation, true democracy and 7 points relief slogan. The founder of the nation Mohammed Ali Jinnah never aspired when he fought for Muslims of sub continent to secure an independent homeland which will in the end be ruled by Generals, in fact whilst addressing soldiers at Staff College in 1948 which was his only address to armed forces warned them to learn their oath with Pakistan fully and understand their commitments and obligations, and declared that they are servants of state not masters.  

We are still in a fix whether to return to democracy or still wait for right time, right environment and right people and there is never a right time. There has been several news reports where President Musharraf assured of taking his uniform off as per his agreement with Parliamentarians and address to the nation by 31 December 2004, instead he introduced ‘President to Hold Another Office Act, 2004’ which gave him exemptions to hold two offices until expiry of his current term which will trigger unless new Act is passed or amendment to the Constitution is invoked via 2/3 majority to stop 63(1)d triggering though all actions will be subject to proactive judicial scrutiny. However, he never amended or re took his new oath which currently bars him from entering politics being an armed officer and continued addressing PML(Q) gatherings leading an example of his lieutenants to nourish a desire for the top slot as their predecessor in comings days, months and years. This tendency and desire kill the chances of the nursery of democracy getting its roots.

Legal expert are of the view that current tenure of President comes to an end on 16 November 2007, so if we take his latest oath & vote of confidence to start with, then Article 41(5) confirms that Presidential Election(s) can be held 60 days before or 30 days after the expiry of his current Presidency so ideally fresh election time frame will be ideally from 16 September to 16 November or if new assembly is in place then 30 days after the elections under  41(4) which says, “(4) Election to the office of President shall be held not earlier than sixty days and not later than thirty days before the expiration of the term of the President in office”;

Now legality is the key issue and following may be the hindrances in his election: A candidate for presidency must be eligible to be a member of Parliament to be able to contest Presidential election, under article 41. Which says, “ 41(1) There shall be a President of Pakistan who shall be the Head of State and shall represent the unity of the Republic. (2) A person shall not be qualified for election as President unless he is a Muslim of not less than forty-five years of age and is qualified to be elected as member of the National Assembly”.

Following hinders in him holding two offices: “43. (1) (1) The President shall not hold any office of profit in the service of Pakistan or occupy any other position carrying the right to remuneration for the rendering of services”.

And the following are relevant disqualifications in respect of the Presidential candidate: “63. Disqualifications for membership of Majlis-e-Shoora (Parliament).  (1) A person 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  (k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or”

Furthermore, Chief of Army Staff ’s oath under art.244 in Third Schedule of the Constitution 1973  also makes the picture clear even if any other argument fails, the oath wording is as following: “Members Of The Armed Forces [Article 244] (In the name of Allah, the most Beneficent, the most Merciful.) I, ____________, do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law. May Allah Almighty help and guide me (A'meen)”.

When COAS takes oath that ‘I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law’ then it makes life difficult if President wishes to retain both offices as that is not desired by the Constitution and it opens up avenues to allow all retired officers to contest and or first secure their candidacy whilst in office and then retire from govt service and in future all Chief of Army staff, Chief Justices and top civil officers may become candidates for vacant President office which will be negation of people’s mandate.  Now the issue arises whether he can be re elected in Uniform or not.

If we see the reign of General Musharraf 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 doubtful resignation of President Rafiq Tarar.  Mr. justice Tarar maintains 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 not mentioned in constitution especially 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. Now the log book of General Zia is silent as to second tenure and Courts will be ready to interpret the law. If we see the overall intention of the 1973 Constitution of Pakistan, the answer is no as ‘Uniformed Presidency’ gives a horrific picture of a Democracy only handful countries out of over 166 countries in the world have similar tendencies & regime, Burma and Thailand are few examples to this exception. However, if we look at President Musharraf’s 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, and his use of NAB as a political revenge tool, it does not seem impossible that he will definitely attempt for the top slot, yet again careless of public anxiety.

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 43(1), 44(2) & Article 63(1)d the issues will need to be decided at earlier stages by courts as

whether he can retain his uniform whilst going to electoral college and will it be his second or 3^rd term. As under 41(6) The validity of the election of the President shall not be called in question by or before any court or other authority. Therefore the timing to challenge any election will be on the outset at the time of nomination papers.

17^th Amendment brought back in the Constitution most of the ‘8^th amendments’ provisions which were originally introduced by former military dictator and were repealed by the Civilian Prime Minister unanimously. 17^th 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 and 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 Q league readily passed and strongly support any action including an Act of  Parliament to allow him to keep ‘two offices.’ In theat case, 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. There will be disadvantages to political parties except Q league. However any party who accepts wheeling dealing will be subject to anxious scrutiny of free media and proactive judiciary which in return may expose those black sheep who bring law of necessity in the Parliament. But the meeting of President in UAE with a opposition leader which is neither accepted nor rejected tells that deal is negotiable and is available with certain sections of our current political Parties who have their own inherited problems. In that situation uniform will be an issue and ‘two offices Act of Parliament’ or amendment via 2/3 majority may be used to counter the legality issue thus paving the way for civil rule 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).

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 of his own choice and throws election as a bait and open bargain business to buy and sell, this 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 30 days after the new assembly 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 lose 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.

c)   President may impose emergency under Article 232 & 233 upon advice of Premier on the name of external security leading to martial law on the name of internal de-stability if total defeat on all sides is envisaged by the defeated soldier. Both proclamation(s) though will be subject to strict judicial scrutiny and un acceptance of the lawyers and civic society.   

I think whichever option he chooses it will be vigorously opposed by political parties in streets and lawyers in Courts and if Courts do not allow him to contest elections in Uniform his civil presidential aspirations may suffer too as at that time his election will be challenged overall keeping in view the overall intention of the constitution. Opposition may resign en masse and resort to nationwide protests which may result in any way as the gulf between civil society and the military may not bring them to a win win situation and in the end political process may be derailed which is not in the best interest of the state of Pakistan. Though it will suit to United States to deal with rulers with questionable legitimacy and lack people’s confidence and President Mushrraf has the key to avoid all that. For the President the best possible way to resolve this situation may be as following:

·         Unilateral, unconditional and voluntary ‘cut date’ of shedding uniform in advance of his presidential election; or announcement to take his uniform off on any next national day;

·         Allow unilateral, unconditional and voluntary return of exiled leaders to come to Pakistan and unconditional amnesty before Court allows them relief and allow them to face trials without interference and let the ball go to court decide their fate and public to hold them accountable by vote;

·         Take all opposition in confidence via APC to hold free and fair elections, including appointment of Chief Election Commissioner, care taker set up of clean people or ideally non PCO judges as no political stalwart is left unopposed or untarnished

·         Let 2 party system take shape which is in best interest of Pakistan and pave way towards United Muslim League as it was before 12 October 1999 even if it means to limit or eliminate Q League which is in the best interest of Pakistan,

·         Once all is agreed, hold General election first and then seek his re-election 30 days after the new assembly and if the parties are willing to make him a candidate

·         Alternately, if he wishes to get elected from current Parliament, take his uniform off at the time of nominations coupled with necessary amendments to allow him to go for election under 41,43,44,244:

·         Allow free and fair elections to take place which are not only free but appears to be free and independent monitors and courts confirm its fairness and allow the political exit of military from politics peacefully without fail and any derailment.

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 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 on one point agenda. Opposition may lodge along with lawyers community necessary petitions to Supreme Court to clear this ambiguity as to whether amendments to law for one man can override the intentions of Constitution.

There is an attacking strategy too ideally as Mian Nawaz Sharif former premier earlier 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 non PCO judges. In effect, the names of civil 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.

Time has come that before any so called ‘Act of Parliament’ is presented yet again and or a supra constitution mechanism is adopted like referendum to request the military dictator to retain his status in violation of the constitution’s true intentions thus allowing a General to hold his own office of profit as ‘Chief of Army Staff’ as well as the office of ‘President of Pakistan’ thus depriving the national parties to elect their own civilian President.  Supreme Court must put it aright what they initially directed. 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 commenced.
• 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.

Supreme Court’s ruling will be very crucial and will be subject to Article 190 of the constitution which binds all executive and judicial authorities through out Pakistan to act in aid of the Supreme Court and if that ruling is not given in time, it  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 military man  in Zafar Ali Shah case and its 4 years beyond that 3 years limit and 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.’ If bold decisions are not taken at this juncture, then we must be ready for unconstitutional rule for a long time which may create further unrest, emergency, civil disobedience, and martial law as civic society and lawyers are not going to digest anything less than rule of law and justice and true implementation of the Constitution in letter and spirit, and no ultra vires Act of parliament will be accepted to override the true intentions of the Parliament. General sahib must call it a day and pave way for true democracy in Pakistan, enough is enough. 

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 Chair of Association of Pakistani Lawyers (UK): contacts: amjadlaw@hotmail.com.

• Posted by valiantpk on 13/08/2007.
• login or register to post comments

‘NATION NEEDS ORDERS NOT OBSERVATIONS’ By Amjad Malik MA, LLM

Sharifs are approaching Superior Courts for a verdict yet again for relief for which one does not need permission in West i.e right to free movement in the country of birth & nationality as free citizens. The early hearing is expected this week where well respected lawyer Fakhuruddin G Ibrahim will open the case and Attorney General to oppose his own arguments. Younger brother of the exiled Prime Minister, Shahbaz Sharif who is also President of Pakistan Muslim League (N) was deported from Lahore Airport to Jeddah on Monday 11, May 2004 when he attempted to return to his homeland thinking that he will be allowed to enter after Supreme Court judgement . Government of the day in defiance of the observation by the Superior Court actually deported Shehbaz Sharif without judicial oversight as exactly as he feared in his court case in Supreme Court.  

In that Judgement of Supreme Court: 55/2003 the following is worth noting that no document was produced to confirm there is a contract and there was no denial to freedom of movement rights by Federation, Judgement at para 15 & 28 says, “15.  It is significant to note that neither in the comments nor during the course of arguments the Federal Government/ Government of Punjab has disputed the right of the petitioner being a citizen of Pakistan to come back to the country nor referred nor brought on record any agreement/document permitting the government to force the petitioner to live in exile. And at para “28. It is not denied by learned Attorney General for Pakistan and Advocate General Punjab nor so could be denied that Article 15 of the Constitution bestows a right on every citizen of Pakistan to enter or move freely throughout the country and to reside and settle in any part thereof.  It is a settled proposition of law that the right to enter in the country cannot be denied but a citizen can be restrained from going out of the country. The petitioner is a citizen of Pakistan and has a constitutional right to enter and remain in the country”.

Still after this judgement he was deported back to Jeddah and that proves the following points: i) The government does not care for rule of law and they found him guilty without trial of unknown charges and deported him under a contract which is unknown and unseen by judiciary and no access to court was provided; Post deportation, 9^th March 07 reference against Chief Justice proves that point; ii) The government did not respect the Supreme Court observation that no restriction can be put on citizens on their entry and every citizen has inborn right to enter and remain in their country of birth; iii) the deportation of Mr. Sharif thus amounts to contemptuous behaviour of defying court which continued till 20 July 2007. Legally, he should have been allowed to wait till his petitions were decided. Most important of all, current regime does not wish to see any opposition leader carrying a political profile like Nawaz Sharif &  Shehbaz outside on the streets telling the masses what is going on. That is a clear example of weakness on part of the government.

Why Sharifs are in exile is that Nawaz & Shahbaz held the position of Prime Minister & Chief Minister respectively in Pakistan until 12^th October 1999, when General Musharraf removed Mian Nawaz Sharif’s elected government by imposing military rule and all his family imprisoned while the old and the young of his family were put under house arrest for months. On the 9^th of December 2000, Prime Minister Nawaz Sharif along with his family were exiled to Saudi Arabia. His brother ShehbaZ Sharif resisted the extreme emotional blackmail and refused to leave his prison cell in Landhi jail in Karachi. Despite his resistance, he was forced to board the aircraft by the brutal force of the military authority and even remarks of General Musharaf supported this contention in his book ‘In the line of fire’ at page 166, where he wrote, “ It must be said that Shahbaz Sharif initially refused to sign and did not want to leave Pakistan. But  we could not have this partial acceptance.”  Thus the family were sent into exile. They always maintained that there can not be a contract between a jailor and a prisoner and tried to attempt their return but Govt of the day always created hurdles sometimes by delay in issuing their passports, or putting restrictions when they wish to attend funeral of their father or when after judgement Nawaz Sharif was forewarned by his brother’s deportation. 

Its worth noting as to what the Govt have been saying about Sharifs and why Sharifs had to go to court(s) which in fact proved right even after Supreme Court judgement. The following are few statements which were before SC: (1)  Faisal Saleh Hayat, Then Federal Minister for Interior (The Daily Dawn dated 17.01.2002): “Sharifs won’t be allowed to return…….” (2) General Pervez Musharraf (The Daily Jang dated 21.8.2002): “If they come back, Shahbaz will have to go back to Saudi Arabia and Benazir Bhutto to jail…….”  (3) Nisar A. Memon, then Information Minister (The Daily Jang dated 9.8.2002): “We will not let Shahbaz Sharif come back.” And that what they did in May 2004. Sharifs desired to return but feared removal and on 11^th May, when as a result of Supreme Court observation and his two petitions to the Supreme Court where Court ruled that every citizen has a right to enter and remain in the country of his origin and there can not be any restriction put on his entry, Shehbaz Sharif tried to go back to his country of origin unsuccessfully.

Now Sharifs realising that Chief Justice himself has realised the pain and sufferings at the hands of the regime by standing in the dock and after 20 July 2007 decision there is a glimmer of hope to secure justice where justice is seen to be done and not delayed so that it seems denied. Sharifs have contacted the door of Superior Courts once again and a clear verdict is required this time to prevent any unlawful deportation without judicial oversight. These questions are circling in Pakistani’s mind today and only the Supreme Court now can save the future of the political leadership in Pakistan by allowing them a remedy this time to enter and remain in order to practise their constitutional right of taking part in political decision making and if there are any cases on them, they may defend in courts freely. If they (Sharifs & Bhuttoo’s) are not allowed to participate elections being the top two party leaders who will and what repercussions it will have on Federation is alarming.

I remember during French revolution General Charles-de-Gaulle of France was asked to exile his opponent a fiery poet ‘Jean Paul Sartre’ and De-Gaulle said these historic remarks that Sartre is France and how can we exile France. Nawaz Sharif is Pakistan, how can rulers keep him in exile forever so time has come to allow him to breathe freely in the air he belongs. Nation needs clear orders from Supreme Court that From now onwards no one will be deported and handed over to West for few hundred dollars and none will be refused to return to their homeland without judicial oversight.

Amjad Malik is a Solicitor-Advocate of the Supreme Court (England), a life member of Supreme Court Bar Association and a Chair of Association of Pakistani Lawyers (UK).

6 August 2007

• Posted by valiantpk on 02/08/2007.
• login or register to post comments

‘And Chief Justice was Restored’ By: Amjad Malik MA, LLM

9 March 2007 will be remembered in the history of Pakistan as a ‘defining moment’ when ancient battle of Yazeed and Imam Hussain got a quick reminder to us all that good and evil will always remain with the people till Dooms Day to judge their conscience and the victory will always be of good. Historic judgement of 20th July is a ‘turning point’ in our short history where a single man on the street conquered the minds and hearts of Pakistani people and 160 million souls sided by the side of a victim of brute force. We are at a cross road whether to move forward from here or run backwards and our history is full of Mir Jafar’s but this opportunity may never knock our doors for a long time.  

The writer From the British Pakistani lawyers platform wrote to General Pervez Musharraf on 12 March 2007 to consider withdrawing this reference as procedure adopted gives rise to serious questions of procedural impropriety and the way CJ was handled it will create suspicions whether Chief Justice can ever have a fair hearing if he is treated as guilty before even having a adjudication hearing for example restraints to his access to SC, virtual house arrest, his privileges withdrawn, and keeping him incommunicado. I quote one para from the 12 March letter which says as following, “In the current geo political situation in the country The President must consider an option of reconciliation with Chief Justice and he has by tonight to facilitate a meeting with CJ as on 13 March 2007 CJD starts its contemplation over the charges against Chief Justice and it will be too late by then. 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 of misconduct and abuse of power especially when they themselves drive bullet proof cars at public expense. 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”.

No action was taken and I assume the President may not have read that letter either. The writer also wrote to Acting Chief Justice(s) then was Mr. justice Javed Iqbal on 15 March  and Mr. Justice Rana Bhagwan Das on 24 March 2007 requesting them to convene a full court reference to determine the true interpretation of Article 209, and 180. But no full bench was constituted and later British Lawyers on 5^th of April moved the petition under ref 15/2007 to Supreme Court asking the SC to determine whether the term ‘non functional Chief Justice of Pakistan’ is Constitutional and requested true interpretation of the relevant article(s). There were around 35 other petitions too and thus this full hearing which ended on 20 July 2007.

I think the decision has given the unique pleasure to the nation and its the second biggest incident after the independence, first being the nuke tests on 28 May 1998 by Sharifs. Civil Society’s work does not end here, they must be ready to work for the sovereign Parliament and raise issues wherever they see injustice. Praiseworthy media and newly born with fresh vigor Superior Courts must work hand in hand to root out the real evil from its ground and secure justice for the needy and play their role to break the orthodox nexus of judiciary and Generals. I think Pakistan must better be known for a tolerant, just and democratic society rather than ‘militant in mind and uniformed democracy in system’.

Lawyers must not sit here either, their struggle was not to reinstate Chief Justice alone as that was the small picture, the big picture was always to struggle for true democracy, for a system not for a personality. Lawyers must be ready to convene a convention of all elected representatives and bodies to feed in their joint declaration(s) or demands to political parties to secure their support on issues like full judicial independence, financial autonomy to Superior Court, Separation of administration from Judiciary, appointment of judges commission, breakage of nexus of judiciary and judges completely, viable accountability process of judges and generals to eradicate no sacred cow concept, promote non political bar & bench, promotion of ethical and professional lawyers, cheap justice at door step of common man and quick relief process, including security of judges. We must also ensure the  continuation of judgements like 20 July especially in matters of future course of action i.e stopping military coup de tats , Judges oaths under PCO’s, Presidential referendums,  uniformed president, and return of exiled etc.

Now that Chief Justice is fully armed and abreast with the challenges ahead he must ensure the safety and security of the State. Only a fair and independent judiciary can guarantee holding of a fair election(s) in Pakistan where transit from military to civil takes place in an honourable fashion rather than by a blood bath, ideally at this juncture and care taker set up & election commissioner is appointed in consultation with opposition and former judges who refused to take oath under PCO are given preference. People of Pakistan stood by Chief Justice for a better cause not for a judge to complete his tenure but to see Pakistan as a vibrant economically powerful and strong democratic country, if that is not possible now then we will have to wait for centuries for an other follower of Hussain to challenge the tyrant Yazeed of his time to pull the crowd. Decision is simple this is the only Chief Justice of modern history who has regained his position by public support and now nation seeks justice.

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).

 23 July 2007

• Posted by valiantpk on 23/07/2007.
• login or register to post comments

APL welcomes SC decision to restore Chief Justice of Pakistan and congratulate the whole nation for their patience and bravery

Association of Pakistani Lawyers a team of Pakistani origin lawyers, Solicitors, Barristers, Judges in UK jointly welcome the decision of full court of 20 July 2007

Quashing the reference and restoring the chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry.

APL congratulates further the Acting CJ Mr. Justice Das’s decision of 9 May 2007 forming a full bench and all the judges of the 13 member full court comprises of Mr. Justice Khalil Ramdey, Mr. Justice Muhammad Nawaz Abbasi, Mr. Justice Faqir Muhammad Khokar, Mr. Justice Mian Shakirullah Jan, Mr. Justice M Javed Butter, Mr. Justice Tasudduq Hussain Jilani, Mr. Justice Syed Ashhad, Mr. Justice Nasirul Mulk, Mr. Justice Raja Fayyaz Ahmad, Mr. Justice Chaudhry Ijaz Ahmad, Mr. Justice Syed Jamshed Ali, Mr. Justice Hamid Ali Mirza, and Mr Justice Ghulam Rabbani for hearing patiently constitutional petition of Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry and all other petitions and declaring a judgement meeting the norms of justice.

British Pakistani lawyers wrote to General Pervez Musharraf on 12 March 2007 to consider withdrawing this reference as procedure adopted give rise to serious questions of procedural impropriety and the way CJ was handled it will create suspicions whether Chief Justice can ever have a fair hearing if he is treated as guilty before even having a adjudication hearing for example restraints to his access to SC, virtual house arrest, his privileges withdrawn, and keeping him incommunicado. No action was taken. Furthermore, APL also wrote to Acting Chief Justice(s) who then was Mr. justice Javed Iqbal on 15 March 2007 and further to current Acting CJ Mr. Justice Rana Bhagwan Das on 24 March 2007 requesting them to convene a larger bench ideally a full court reference to determine the true interpretation of Article 209, and 180. As the requested larger bench was not constituted therefore British Lawyers on 5^th of April moved the petition under ref 15/2007 to Supreme Court asking the SC to determine whether the term ‘non functional Chief Justice of Pakistan’ is Constitutional and requested true interpretation of the relevant article(s). There were several other petitions too and thus this full hearing which ended on 20 July 2007.

APL congratulate the masses for their bravery and patience in this turmoil and steadfastness of lawyers during this uncertainty and appreciate in highest terms despite sanction of the brave role of media to keep the public aware of all the developments and facilitate intellectual discussions and debate and live coverage of Chief’s addresses to respective Bar(s).

APL further canvass that lawyers work does not end here, they must be ready to form a joint action convention of all elected representatives and bodies to feed in their joint declaration(s) or demands to political parties to secure their support on issues like full judicial independence, financial autonomy to Superior Court, Separation of administration from Judiciary, appointment of judges commission, breakage of nexus of judiciary and judges completely, viable accountability process of judges and generals (no sacred cow concept), non political bar & bench, promotion of ethical and professional lawyers and law studies syllabus in line with modern technology, cheap justice at door step of common man and quick relief process, security of judges and above all continuation of such judgements especially in matters of future course of action i.e military coup de tats , PCO’s, Presidential referendums,  uniformed president, etc

APL desires that all lawyers, civil society and media’s contribution must continue as Chief Justice restoration is one aspect of the long struggle where destination is still away and we need to jointly work for a free democratic, economically strong country to bring Pakistan out of this chain of crisis, and our voice goes with common man’s voice goes and we hope it reaches to those rulers who make decision(s) to listen to it and act accordingly.

Amjad Malik, MA, LLM

Solicitor-Advocate of the Supreme Court of England and Wales
Life Member SCBA (Pakistan)
Chair Association of Pakistani Lawyers (UK)

00 44 1706 346 011 &

Email at: APLrochdale@aol.com

20 July 2007

• Posted by valiantpk on 20/07/2007.
• login or register to post comments