Work Permits gone, replaced by a new visa system, a critical analysis By: Amjad Malik
From 25 November 2008, a new visa system is coming into force where by an old work permit scheme which will be scrapped & replaced by a new system in which an employer shares the responsibilities by seeking a licence if he wishes to sponsor a foreign skilled work force. On top of that non EEA skilled workers who come from abroad will need to meet the minimum 70 points to secure entry visa to work for a specific employer in UK. This new regime will be divided into 5 categories, tier 1 deals with highly skilled migrants, and tier 2 deals with skilled workers and it will replace Work Permits scheme, and will change the law towards Minister of Religion, Airport based operational and ground staff, overseas nurses, sabbatical posts, seafarers, researchers, training and work experience scheme, Jewish agency employees as well as overseas news and media representatives who will all be required to successfully secure 70 points. We will focus on tier 2 in this article.
Any British Employer and or organisation which seeks foreign skilled workers will have to apply for a four year licence by making an application which will attract a fee of £300 to £1000 subject to size of the business. If an employer secures a band ‘A’ he will be able to issue a ‘certificate of Sponsorship’ akin to work permit himself to a foreign skilled worker who will in return applies for an entry clearance visa from abroad. Securing ‘B’ category will make the employer ineligible for such exercise however they will have 3 months to re attempt to secure Category ‘A’ otherwise they will not be able to sponsor foreign workers. Employer will be required to furnish the required documentation with an application such as company listings, business plan, audited accounts, employer liability and other insurances, certificate of registration with VAT and HM Customs and revenue, bank statements, relevant licences and lease documents and so on to show that they have the capacity, in built system and viability to sponsor and fund a foreign employee. With registration Britain based employers undertake to monitor the system themselves any change in the migrant worker’s professional activity at the place of their business within 10 days as well as authorising UK Border Agency to monitor, audit and do spot checks.
On Second stage, all Foreign Employees in the above categories will have to secure minimum 70 points to be able to come to UK to work. There are 3 main categories in which tier 2 skilled workers may come which are 1) intra company transfers if they have worked for 6 months or over in the similar company and or discipline, 2) shortage occupation category list of which will be compiled any time soon by the ‘Migrant Advisory Committee’ which advises to the Home Office Ministry and 3) if the skilled worker meets the ‘resident labour market test’ whereby genuine vacancy exists and an advertisement is placed for 2 weeks to recruit a potential employee from the existing labour market, the requirement will be reduced to 1 week if the salary is over 40,000. They will also have to meet language and maintenance requirements which will be compulsory and carry 10 marks each. Now the chart for any potential foreign skilled worker who is seeking 70 marks is as following :
· Certificate of Sponsorship Category, (any one) : 1) ICT(Intra Company Transfers 30 marks), 2) Shortage occupancy (50 marks) and 3) RLMT(Resident Labour Market Test: 30 marks);
· Section B: Maintenance (10 Marks) if you have minimum amount in your bank which is £800 a month for 3 months per applicant;
· Section C: Language, A1 of council of Europe scale or equivalent , however no requirement of stringent language condition if it is an intra company transfer (10 marks);
· Qualification (any one): NVQ level 5 marks, Bachelor or Masters 10 marks and PhD: 15 marks;
· Prospective earnings: 17,000 plus 5 marks, 20,000 plus :10 marks, 22,000 plus:15 marks and 24,000 plus will carry 20 marks.
Looking at the above stringent conditions attached to this new system, it will have a huge impact on hospitality and catering industry as Chef’s and cooks rarely get a pay of £24,000 and they may not be classed as shortage occupancy which will deprive the food industry of the opportunity of tasting one of the best Indian curry and Chinese food which in true sense made the revolution in changing attitudes towards food culture. It replaced the fish and chips culture to ‘chicken tikka masala’ which was voted as one of the best selling dish of the country.
Having said that there is no harm in applying a robust approach towards eliminating scrupulous employers who make applications without thinking and there were numerous complaints about impropriety in the past in that culture at the hands of gang masters or organised crimes criminals and trafficker mafia. Government’s un thoughtful policy of seeking thousands of migrant workers under a ‘sector based scheme’ failed bitterly and there are no concrete figures as to how many returned. In March 2006 the Home Secretary suddenly announced that the Sectors Based Scheme (SBS) would close by the 31 December 2006. Whilst immigration remains on agenda on most of the political parties in UK, a thoughtful approach to tackle the problem is the dire need of the time and if curry chefs are not included in the shortage occupancy, then Britain will lose the taste of one of the finest Indian, Chinese and Bangladeshi cuisine which is a hall mark of modern day Britain as everyone may not afford to go to Gordon Ramsey’s.
A word of wise to thousands of British employers, Mosques, temples, airlines, news channels, agencies and newspapers and all those who seek foreign employees must act quickly as after 25th of November they may not be able to bring their foreign skilled workers as desired if they are not licensed. Though there will be transitional arrangements in place to accommodate existing foreign work force, however thousands of work permit holders who are already in the country working in different sectors must seek advice in order to properly continue to stay in UK upon expiry of their current work permits, visas and or permit free employment or training as the goal post will change all of a sudden without notice. Time is short and both employer and foreign workers need to act promptly before its too late.
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) , has done LLM and a Member of Immigration Law Committee of The Law Society of England & Wales
18 July 2008
Lost Opportunity By: Amjad Malik MA, LLM
18th February elections in Pakistan put politicians of opposition in a position to invoke parliamentary sovereignty, independent judiciary and civil rights hence setting their targets towards a shared goal of Pakistan as a welfare, democratic, progressive and just society. Loss of Be Nazir as well as indecisiveness of her successors in decision making have halted the whole political system and we are progressing day by day to strengthen the dying regime rather than finishing them with the power of coalition in the early days of Parliament. I thought the mandate required them to do certain action(s) within days of the inaugural session of the parliament and the kind of things they were professing in their charter of democracy were unachievable unless both liberal and conservative forces work in alignment to achieve the reversal of 17th amendment, restoring 2nd November judiciary and ending military dictatorship of 12 October and putting barricades in the way of future coup-de-tats. However to prove Paul Nitze wrong, who will bell the cat.
Our military is not under civilian rule at any standards. India and Bangladesh learnt that lesson and brought from Major to Colonel promotions under the Civil government however, our top army elite is only responsible to the chief and chief is under the constitution answerable to the elected premier, though in reality he is all in all. In Pakistan Pentagon to GHQ relations are much closer and stronger and has a long history as compared with that of our politicians. These bilateral military relations gives the Pentagon an opportunity to meet our future commanders and they inadvertently mentor the future leaders of Pakistan and have their views known to their assessment bodies, at the same time playing the stick and carrot approach with our politicians who are always under cloud of accountability for their mal administration as Paul Henry Nitze professed to deal with military in the longer run, and play with politicians with carrot and stick with accountability always hanging on their heads. This nexus which is running fine for US as well as Pakistan cannot easily be broken unless our political clan understands it fully, ready to work for the country and in a coalition for a longer time taking the top army leadership in a confidence. It entails many dangers too. The fate of two Bhutto’s, Liaqat Ali Khan and Nawaz Sharif is in front of all. At this very moment, as it appears they are not ready for it.
Pakistan was made for high morals, on bigger claims and ensure self respect, dignity and identity, we are running short of all despite the fact that it has a potential to rise individually though not collectively yet. Democracy could not fit or survive in a society where mind set is ripe for mental dictatorship. Political classes made General Ayub part of cabinet in his uniform despite the warning given by its founder Mr. Jinnah about the aspiring General and neglected the mandate given in 1971, thus losing one limb along with it all chances of democracy. Pakistani elite establishment are never ready to accept the verdict of people. Adjudication on merit and justice is extinct in a society where 4 Prime Ministers are out of scene without any trial of facts. Lack of political infrastructure and respect for political classes where Police is corrupt, judges blindly follow orders and military foot prints every where is the root cause of lack of institutional strength in the 60 years old country. Political parties never could regroup, and if they ever do by luck, they lose their leaders, thus making bigger parties leaderless or confined to its strong holds. It has truly become an experiment ground at the hands of a clan who knows no boundaries and has limitless authority. Dictators pitch the story that they always came to save the country and always returned halving the remaining part, and the country as a nation could never learnt from their mistakes identified in Hamood ur Rehman commission, in fact we close our eyes on incidents like 12th of May, Benazir’s death, sacking of Judges on 3rd November, and attacks on Pakistani post in tribal areas where scores were killed and we deny the reality as if it never happened.
We are part of a war on terror in which other states are contributing too. Turkey refused 35 billion package and preferred to deal with the issue through Parliament as they concluded that they could not decide an issue which has far reaching repercussions for the generations. Bangladeshis intelligently got all their debts wiped off in exchange of their support for this new ideology and their 2008 budget is in surplus as compared with Pakistan which is trailing in around 10 billion. Our supreme leader in dream of pouring dollars caved in meagrely and offered ‘unstinted support’ for a drive which has a fatal consequences for us in years to come like a nightmare. Our politicians cried out loud from exile and prisons that they will work closely to make parliament sovereign and so far the most controversial and highly sensitive matters have yet to see the Parliament, though army chief has been armed with the power to call shots without a debate in Parliament. The power which rests with the Prime Minister.
This uncertainty is the asset of the ruling government which will be their charge sheet when someone sacks them. Their negligent quietness on national matters will cost the drive for rule of law big time and longer military regimes will be our destiny for which this time people may not be blamed as they came when called, and voted whenever asked, as opposed to our politicians as a class failed as they joined the military dictators when it suits them, passed 17th amendment, got Generals elected for presidential post in uniform, and they will do it again to prove Pau Nitze right about Pakistan. The nation will have to work heart and soul, all institutions, all political forces including armed forces and only drive for rule of law and constitutionalism is anti dote of Paul Henry Nitze’s theory on Pakistan. The historic event of 9th of March 2007 is potentially a turning point in the country’s short history – Pakistan’s leaders are now at a crossroads. The Pakistani society on the whole including lawyers, judges, civil society and media have a very important role to play to return Pakistan a country akin to a ‘dream come true’ to a democracy where the rule of law, rather than military rule, holds sway and for that we need a collective effort, political will and unified approach coupled with result oriented efforts in good with, as it stands, yet again we have lost a big opportunity. The question in every one’s minds is we truly ready to prove Paul Henry Nitze wrong once for all about Pakistan.
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and a political analyst based in UK
14 July 2008
42 days detention, is it ‘justified’ or merely a case of ‘islamophobia’ By: Amjad Malik
Clause 29 of the Magna Carta ensures that ‘no freeman shall be taken or imprisoned or have his liberties removed but by lawful judgement of his peers’. This 800 years old tradition is mirrored in Article 5 of the European Convention on Human Rights 1950 where it was pledged that “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law” and due process of law and fair trial were considered as the basic ingredient of a citizen’s freedom.
Britain is also trying to revive the old attempts where post 7th of July bombings, 90 days limit of detention without trial was sought and an agreement was reached to extend it to 28 days from 14 on suspicion of terrorism. Now UK parliament is at a crossroad to either sacrifice some of the basics of freedom or to digest Gordon Brown’s attempt to seek 42 days detention without charge. House of Commons narrowly escaped from a defeat on a bill which faces a serious opposition and dissent from treasury’s own back benchers who voted against. We expect a strong opposition in the House Lords. Human Rights organisations expressed reservations and Muslim MP’s though voted for the bill but overall general public in particular minority communities have an anxiety over it and Lord Ahmed of Rotherham has assured to fight their case in Lords.
Looking at the history being a minority community, the Irish would have felt the same pre settlement what Muslims feel now that it will be used as a ploy to increase ‘stop and search’ Muslims and detain possible suspects even if there is no evidence and in desperation, evidence may be orchestrated to avoid public outrage. People may loose liberty, livelihood and reputation for unlawful arrest and few thousand pounds ex gratia may never compensate and revive the lives back of innocent victims to a place where they were before the arrest. Feelings of Muslims are the same as would be the case of Christians and other minorities in Muslim countries over blasphemy law as lack of due process and fair trial invite manipulation of such laws and we risk serious judgemental errors. Political priorities are different too as Salman Rushdie goes scot free after being provocative hurting billions of Muslims and is knighted as a literary master in the same society where as young Samina is branded ‘lyrical terrorist’ for possessing a literary material which had a potential of incitement. I wonder what would be the case if renowned for his revolutionary verses, Pakistani poet Habib Jalab’s poetry is found in some one’s house who always waited and encouraged mobs to struggle in order to see the time ‘ when empires will fall.’ I think governments are reaping advantages by creating fear which is counter productive. 28 days detention in last one year has been used once and it does not call for need to revise the detention limit, just for insurance purposes, in case one is needed in future. Having said that in order to protect the cosmopolitan nature of the British multicultural community intelligence sharing and widening the intelligence net increasing the resources of units that combat pre crime detection of terrorism is a genuine need of the hour. Young British minds especially from religious back grounds are a fit case for delineation as they are invited participation on international political and foreign policy discussions and universities are breeding grounds for achieving disillusionment and recruitment of potential die hard anti war segments. Govt needs to root out such elements and increase surveillance of those elements who target young minds, creating safer environment for students to interact on healthy forums too. Foreign Policy and international politics discussion is the hobby of an angry, young, and voiceless community who remain targeted and in constant fear from both sides.
If the 42 day detention bill is approved it may be advantageous to allow time for evidence gathering and securing more convictions, thus create a fear in organised crimes community. It will also act as a deterrence to keep people away from such activities which may have a potential to be branded as ‘terrorist’. However, the potential unreasonable or excessive use of it can flare community relations. The disadvantages overpower advantages as post 9/11 and 7/7 Muslims have been on back foot feeling threatened by the political onslaught on their civil liberties and making them victim of crimes which they as a general community did not commit. I think more underground work without creating fear using existing legislation is the key to ensure all communities that they are safe and free.
I think British courts have played genuinely a praiseworthy role by separating the chaff from grain. They ensured that due process of law, fair trial and citizens liberties remain intact whilst govt ensures to protect the public and look after the interest of the state. In 1999 Muslim Imam Shafiq Ur Rehamn won his appeal on facts by the first tribunal set up to adjudicate national security deportations, same tribunal hears appeals of all foreigners who faces eviction. Law Lords in 2004 refused to allow 17 Saudis to be detained forever without a charge creating a sense of justice in the victim communities. In the same tone ‘control orders’ were scrapped if they were unreasonably restrictive in free movement jeopardising liberty of foreign individuals facing curfew of more than 20 hours. In 2008, one of the friends of Osama, Abu Qatada was released on bail when continuous detention was sought without charge . Abu Hamza Al Masri was offered a fair trial and free legal access to his lawyers whilst he was facing strip off his nationality and extradition to United Sates on terrorism charges and Samina Malik’s conviction was quashed on the premises that it was too excessive. Looking at this I am assured that British Courts have not only gained respect but allowed the government to function as well as keeping the civil liberties intact. It was a fine balance between the interest of individuals and that of the state which was kept under check by British Courts as opposed to its counterpart US courts. Life would be miserable if on the basis of fear, further fear is created and these liberties which were achieved by continuous sacrifices of our ancestors are lost on the basis of some threats of a few fanatic and thugs, who are, and will remain in a small minority.
Looking at the treatment of missing persons where hundreds were handed over to CIA by Pakistani regime & military authorities in exchange of dollars without due process of law in the absence of any extradition treaty without a judicial oversight and USA’s military trials in Guantanamo bay its very reassuring that whatever the case may be British subjects are safe in securing their basic human rights such as right to have an attorney, free trial, innocent until proven guilty and right to liberty through its free, independent, robust and pro justice Civil and Constitutional Courts. I think Labour government must also start concentrating on the issue of food crises, looming recession and dying economy as post George Bush the world priorities and politics emphasis is likely to change at 180 degrees towards economic survival rather than chasing in the hills of Afghanistan with millions of soldiers whilst at home people cry for food and over priced oil.
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and has done LLM on national security law
20 June 2008
True independence of institutions or just a ‘job’ a short story of struggle for institutional rights in Pakistan By: Amjad M
On 5th of May 2007 Lahore High Court Bar gathered a storm where deposed Chief Justice of Pakistan was facing trial on charges of misconduct, came to the city with a procession of lawyers and won the day. He won the hearts and minds of lay Pakistanis for just saying ‘No’ to the outgoing General. Ahsan Bhoon then President of Lahore High Court Bar was at forefront in the host committee organising that event. Since then he became a priority in the eyes of establishment and like Americans say ‘there is a price for everyone in Pakistan’ Mr. Bhoon proved that right by putting the price of his leadership of popular lawyer movement for the sake of becoming Mr. Justice Bhoon proving Sir Allama Iqbal right that Muslims bowed down when the time came to standstill in the battlefield. No offence to the judge, he did what all are doing around, he grabbed what he could.
Another example of a fiery anchor Dr Shahid Masood who gained prominence from his popular ‘views on news’ programme at local TV channel later was prompted or rather demoted to ‘Merey Mutabiq.’ He successfully caused stir in the ranks of the blue eyed clan by touching the corny subjects. One TV channel nearly went bankrupt as these lots were adamant that these newly liberated channels can truly bring true independence of media in a society where military regimes have deep rooted stakes visible at every corner of the major cities and ingrained in every chapters of the national history of Pakistan. He hit the nail aright and after partly causing 3 of November emergency, caved in when newly installed Government found him to be their loyal subject ready to do a job under them other than the job of nailing them for their wrong doings. At last his fire, mighty claims of principles, and future aspirations seeing media on top, all went to ashes and he gave in and accepted the hiring & firing role of chairmanship of national television PTV, a job truly well suited for a managerial type man. In UK, Jeremy Paxman would never accept a job of management of a TV station when his mastery is an anchorship of BBC ‘Newsnight’ a popular daily current affair programme. However, the sacred struggle for a genuinely free media was sacrificed at the altar of pragmatism and after shaking all the conscience of the nation to be brave and steadfast against the General, he left all on the likes of Hamid Mir, Ansaar Abbassi and Rauf Klasra or at best for the younger generations to fight for the so called freedom in some other times. He must have thought that he has done enough and let’s give other a chance, can’t blame him, he did befittingly to the environment as who knows he may not have this opportunity again. Alas, the destination is far away but struggle is lost for a job.
9th March initiated an era of constitutionalism in Pakistan and 20th of July 2007 could have been a beginning of a new era if the top judge understood it, however, we lost the opportunity to psychologically defeating the mind set which promotes dictatorship in our minds and attitudes. On 3rd of November General Musharraf once again imposed emergency curbing media freedom and sacking loyalist judges. Be Nazir was hunted down to save the western monopoly and despite all odds 18th February 2008 election results vetoed all the actions of the military man. Parliament came and went without declaring unlawfully confined judges as ‘restored’ instead they were merely freed by the Chief Executive who was yet to swear his oath. General Musharraf was resuscitated by the same clan who prayed 9 years for his ouster and if he survives another 6 months, critics strongly believe that he has the capacity to stay for another 5 years and all thanks to anti Musharraf forces who are wishy washy lacking unity of thought and action. Since taking his oath, PM so far, could not get time to enact the so called ‘Bhurban Declaration.’ Despite the fact that Mr. Gilani lost good 5 years of his life in jail on trumped up charges for the sake of parliament’s sovereignty, when the time came he happily handed over to the military commander the very powers and vested in him to exhibit fireworks in Fata at his sweet will. It begs the question what is the difference of Q league and the current administration, is it not just faces. Rule of law’ justice and constitutionalism became a slogan and a ball in the hands of politicians and My God, they played it well.
Then came a call for a long march as mandate was being humiliated by rulers. Lawyers without meritoriously bringing ‘legal action committee’ into action to adjudicate the wisdom of Chief Justice’s visit to then under trial Zardari failed in bringing a close check on those responsible rather went ahead with the leadership of one man. Aitzaz with the slogan and style of Bhuttoos and with the aid of ‘habib jalab’s verses mesmerised most of the nation especially young dancing advocates. We thought for once, that he meant it. Negligent ignorance to leave Justice Wajeeh, Siddiqui and Fakhur uddin Ibrahim behind was spared too. Then came 14th of June when all was set and ready to rock and roll but Ali Ahmed Kurd was gone and here came a messiah of the nation who taught the lesson of pragmatism that leader of his party must have understood the underlying message of this million march. In his self belief he called it a day without taking any public statement in response to his million march, in fear of unrest without proper consultation leaving the nation in shock and lawyers in dejection. How will he ever gather 5 lakhs in future, only he knows?
On top, people were humiliated by saying that Supreme Court Bar is short of funds and there was a fear of unrest. Alas, who will tell them that Quaid made Pakistan and 40 lakh people died at that time but no one blamed him for that onslaught. How come a few scoundrels in peaceful gathering could have created havoc in this march or sit in if the lawyers were determined? Young advocates cried and genuinely lawyers mourned with them and apologised to the nation. I must say, in the past even Clerk’s association have performed better in their negotiation skills to muster their minimum demands whilst staging a protest. He caved in meagrely, called off his moot and went to United States where all leaders go once they are tired.
With him on that day the dream of rule of law, justice and constitutionalism for the time being was also washed away as it will take time to pick up pieces from the rubble of pragmatism. Constitutional package is yet to be tabled and I genuinely feel for those great judges who did what they could but in the end the issue became a shuttlecock. In these circumstances, how can we expect a successful drive of democracy when every one wishes to keep his feet in two boats keeping their options open? They are busy negotiating their future on one hand whilst shouting slogans of ‘Go Musharraf Go’ and ‘long live Iftikhar’ on the other. They consider receipt of judge’s salaries out of PM’s alimony fund as their partial success, funnily they cannot see the difference, as they see everything with their own eyes and read Jalab with their style without understanding him. I think they need to read Allama Iqbal more. Aitzaz is confronted with his own conscience his aspirations, party loyalty up are against the popular drive of restoration of 2nd November judiciary. He cannot escape from lawyer’s movement as that is his recognition but he cannot decide on 40 years association either so he himself is standing in between both. Jinnah left congress the day he knew it can’t go together. His lawyer’s move against his own party PPP is failing as his party knows how to lose one stalwart for the sake of party. But he is no different to other Pakistani folks who know that freedom will take time, and in his self belief he put all off till some other day when people will not be hungry and he will have money for food, and when General Musharraf is a little more aged. That’s why we have no independent judges as the very people who raise voice for them do not want them back due to fear of losing their jobs.
This is the sorry state of play of the drive of civic rights in Pakistan where all stake holders keenly keep an eye on each other so that no one could rock the boat. It’s a land where heroes are ruined like Qadeer Khan, where judges are detained like Iftikhar Choudhary and Premiers are hanged, shot and exiled like Bhuttoo’s and Sharifs. Protest leaders eyes are stuck in their bellies. Public for once is confused whether all this is carried out in genuine sincerity or everything is done for a job. It’s a fittest to survive society and I fear the day when public who always back popular movements turn into a pragmatic nation and never come out when they call, then where will all these lots go and who will give them a job.
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and a political analyst based in UK
2 July 2008
Long March: a show of public support By: Amjad Malik MA, LLM
14 June Long March ended inconclusive, where lawyers showed wisdom by curtailing the gathering of masses turning into a mob wiping out the political process emerged as a result of 18 February elections. Lawyers made their point that public wants some sort of credible judiciary and to start with, they have at hand the 2 Nov Judges who refused to take personal oath of loyalty to outgoing General. Layers, Civic Society, media and politics of conscience have patiently rang the alarm bells giving time to the civilian govt to meet the public demand reserving the right to come again and next time they may not go back, until judges are restored and accountability is held on streets.
However, pressure to wind up all the ‘sit in’ slogans or threats was all carried out in a bit of a hurry. May be lawyer leaders were a little bit tired or were under pressure of handling thousands on street which was a unique & unprecedented experience. In any event the show was successful and all credit goes to Nawaz Sharif for helping lawyers to muster public support and successful winding up as well as conveying clear threats to the President standing in his back yard. Now one thing is for sure that either this public demand will be met in its entirety and judges will take charge in a few months to come or the whole political process will be wound up to either have new elections or new set up. In any new elections, lawyers may jump in the elections too with the same demand jointly with other political forces or singularly on the slogan of ‘justice for all including judges’ as they have an elected team present to contest from Karachi to Peshawar with a strong net working. The ball is now in the court of the shrewd politicians some of which are still under the impression that President’s survival is a security to the National Reconciliation ordinance which I think is a fallacy. Politicians who have been facing trumped up charges on political grounds must be ready once for all to face the music before a true independent judiciary with sharp teeth. It will not only ensure due process of law, fair trial and will promote a principle of an end to political victimisation of prisoners of conscience where people like Zardari and Javed Hashmi wait for years to have justice. A clear bill of health by free judiciary may only purify them all from the sins of past or by a South African style truth & reconciliation commission where looted money is given back in the public purse.
One thing missing in the whole scheme was the stalwarts of lawyers movement like Justices Wajeeh Uddin Ahmed, Fakhur uddin Ibrahim and Justice Siddiqui who have been vocal on the right direction as this consultation process must never end which differ them from the others. Otherwise progress may be hindered due to civil dictators creeping in the ranks of lawyers movement. Lawyers are different from others only because they consult, take advice from seniors and agree to disagree on all major issues of principle. A few also felt that Justice Chaudhary should have led the long march from Lahore towards Islamabad. He should have concluded the Long march by speaking to masses in the end thanking every one where lawyers in the end proposed a carefully drafted resolution which should have been presented and approved by public at hand and should have been given to politicians in Govt in the morning of 15 so that crowd goes back less dejected. Ali Ahmed Kurd whose fiery claims and speeches always gave a revolutionary approach with which normally things are settled in Pakistan was not there either and was missed dearly. It also gives a lesson that with fiery speeches you may get applause but judiciary does not get independence. It requires sheer political will, joint collaboration and consultation in the national interest, wisdom and sacrifice which is pre requisite to translate this dream into a reality. May be consultation is the key which needs to be mastered in coming days by lawyers.
In the end a word of wise to lawyers that they must not fall a prey to pragmatism and lack of resources thesis. If according to them 5 lacks can join them at Parade ground late at night in the barren lands of Islamabad, the very people have the capacity and courage to manage without food and drink for at least 48 hours so that a taster is given to the dictator for occupying the seat denying the mandate of 18 February elections. At that team lawyers negotiation teams must have polished their nails to extract a Governmental statement with a concrete promise to restore judges within a time framed deadline and or punishment to those who fired them. At least 48 hours sit in at the same ground would have unnerved all quarters and would have benefitted enormously and lawyers must have left with a date to come back again in case the judges are still on the road.
These are all academic analysis. In all process, Barrister Aitzaz Ahsan deserves an applause for staging a mini referendum against General Musharraf as well as against indecisive Parliament. Now they must pay attention to the fact that whether its Executive Order, resolution or Constitutional package, Judges ought to be restored. Parliament so far has failed to make any progress to restore those judges who were made non functional on the eve of 3rd November against the order of then Chief Justice Iftikhar Choudhary. Road map is given, its do or die stage and I am afraid this time Parliamentarians will be responsible themselves for the downfall of political process if they fail to respect the public demand and the mandate given to them. The so called constitutional package has not yet been presented in the legislative body so far and Parliament is idle killing flies in first 3 months and rulers have vetoed its effectiveness by preferring to settle issues of national importance in drawing rooms and through back channel diplomacy. Unelected are dictating the elected ones and President is heading the gang of unelected who are ready to do any dirty just to please their boss. Two parallel governments are in action, one stops national media airing a top talk show and the other denies any involvement in it. Popular leaders are watching all this helplessly.
Public is gauging the mood of this parliament with a caveat and they have enjoyed coming to street to raise their voice of dissent and if this enjoyment becomes a habit due to inefficiency of our ruling clan then they all will go who used to raise slogans of democracy, rule of law, justice in their election campaigns and did nothing when they came to power for their voters, people, institutions or to strengthen the very parliament they sit in except forming committees over committees to oversee matters until the demand is gone without justice. They have lost sanctity of their words now fear is their asset from those days when public questions their very eligibility to govern.
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and a political analyst based in UK
16 June 2008
‘In The Line of Fire’ By Gen Musharaf (a critical analysis) By: Amjad Malik MA, LLM
'An old article written on 28-09-2006 in response to ctiticism levelled against Lt. Gen. Jamshed Kiani'
I feel that sitting COAS has broken service rules as well as official secret Act and he may have breached his two oaths by writing about the most sensitive as well as matters of national showing his superfluous strength and applying the ‘might is right’ maxim. In particular he has written about following:
· Pakistan’s nuclear capability whether it was operational at the time of Kargil incident or not;
· Abdul Qadeer Khan’s alleged role in nuclear proliferation without him available to defend thus tarnishing his character and gaining publicity for himself;
· Writing about his role That he made PML(Q) being under oath not to indulge in politics as chief and being neutral as President;
· Accepting that he agreed to be part of military campaign against Afghanistan on Richard Armitage’s threat via DG ISI to bomb Pakistan if they refuse, giving in to demands upon threat thus departing from core Islamic values of faith and discipline;
· Handing over US wanted personnel’s for millions of dollars thus accepting to override the judicial scrutiny and present them to other states without due process of law and judicial oversight.
I must say that my close scrutiny of his office’s oath gives a very clear reading. Article 42 of the Constitution of Pakistan 1973 relevant paragraph of the oath of President (third Schedule) says as following: “That I will not allow my personal interest to influence my official conduct or my official decisions”. It further says in the last para, “And that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall become known to me as President of Pakistan, except as may be required for the due discharge of my duties as President”. Article 244 of the Constitution of Pakistan 1973 (third Schedule) in respect of the relevant paragraph of the oath of COAS says as following,” 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”.
Now if we see the ‘THE OFFICIAL SECRETS ACT, 1923 [Act No. 19 of 1923 dated 2nd. April, 1923]1 ’ of India which is identical to Pakistan as Pakistan’s criminal jurisprudence is based on British colonial law in order to see the regional view on OSA, it says at para 5 as following:
“5. Wrongful communication, etc., of information
(1) If any person having in his possession or control any secret official code or pass word or any sketch, plan, model, article, note, document or information which relates to or is used in a prohibited place or relates to anything in such a place, 13[or which is likely to assist, directly or indirectly, an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States or which has been made or obtained in contravention of this Act,] or which has been entrusted in confidence to him by any person holding office under Government, or which he has obtained or to which he has had access owing to his position as a person who holds or has held office under Government, or as person who holds or has held a contract made on behalf of Government, or as a person who is or has been employed under a person who holds or has held such an office or contract-
(a) wilfully communicates the code or pass word, sketch, plan, model, article, note, document or information to any person other than a person to whom he is authorised to communicate it or a Court of Justice or a person to whom it is, in the interests of the State, his duty to communicate it; or
(b) uses, the information in his possession for the benefit of any foreign power or in any other manner prejudicial to the safety of the State; or
[(4) A person guilty of an offence under this section shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.]”
I am sure Defence Ministry as well as Supreme Court will carefully examine the book as well as those oaths taken and their wording subjectively and objectively as well as service rule to see if the book has opened a Pandora’s box and there is any issue of compromising national integrity & security and sovereignty by disclosing material facts of confidential and highly sensitive nature which came to the possession of the writer in his official capacity. If that’s right, then necessary action must be taken to preserve rule of law in Pakistan in respect of this book and conduct of the writer which is already under criticism in intelligencia and higher circles of Pakistan and abroad. But here we are confronted an entity which seems above than rule of law, something supra constitutional in nature and meaning. Question for all is ‘Who will bell the cat’ I guess it is public who needs to mobilize and as Shakespeare said in hamlet, ‘to take arms against the sea of trouble and by opposing end them’
I feel the time requires the CJ of Supreme Court of Pakistan to form a ‘Kargil commission’ headed by CJ and 11 non LFO judges of Supreme Court who are assisted by amicus including 4 former COAS and 4 DG ISI’s on military matters and they must find truth within 3 months. India is renewing their nation’s father’s belief of ‘truth ’ and ‘ non violence’ why can’t we find truth being a Muslim State who believes in truth, unity faith and discipline and yet to learn lessons after loosing its one limb in 1971.
*Amjad Malik is a Solicitor-Advocate of the Supreme Court of England and Wales, and is a member of the English Law Society’s Immigration Law Committee and life member of Supreme Court Bar Association of Pakistan.
2006
Where is our parliament in all this? By: Amjad Malik MA, LLM
Economy is nose diving in Pakistan and people with load shedding, wheat and oil crisis are forced to take law in their own hands and we saw people burning the robbers in Karachi and indecisiveness is breeding law and order crisis, apathy and decline where any thing can happen as a result and whatever happens is not at all in control of the human mind and may affect the best interest of Pakistan especially when foreigners are flying like eagles on our rear borders. Those who came declaring themselves the champions of democracy are solving constitutional matters outside the Parliament and democrats this time have made parliament a rubber stamp not the dictator, Judiciary is on the road, Justice Dogar is unacceptable to majority and he is facing extreme resistance by lawyer fraternity, CJ Iftikhar has a personality clash with the President, establishment is confused waiting for further instructions, Police is unable to enforce law, and people doing road justice by force in the absence of credible judiciary and Malik Qayum fame tapes are in the market spreading revelations about schemes to keep Sharifs out of election race. In these circumstances 10th of June Long March of lawyers have hidden stings in it which are many fold and they may attempt to put deposed judges back in the Supreme Court by might which may result in a successful lawful coup or it can be counter productive to invite a counter coup by President throwing his wrath on the parliament for their indecisiveness, breaching their pacts and neglecting to avoid the economy from decline or at best military intervention to stop this unrest multiplying reaching no where which all ends in the collapse of the 18th February popular mandate of the people of Pakistan and in the end so much so for the democracy of Pakistan and people’s vote.
I for one, feel that we all are bound to look after the best interest of the state and at best if this uncertainty is allowed to loom, it can be disastrous for the state economically, politically, and socially. As any constitutional package containing unpopular clauses will hardly get to the stage of royal assent at least for a year unless Q or N league supports, I feel lawyers as well as people of Pakistan are getting restless because of this hit and run politicians who are ridiculing the judiciary by the very delay in restoring them. If they are unable to reach consensus then there must be some confidence building measures to show their commitment akin to the circumstances where politicians supported Musharraf to get elected by abstaining to vote instead by remaining in Parliament and in exchange getting a hero’s welcome on 18 October and issuing of a National Reconciliation Ordinance by the President who swore to keep BB and Babu out at every cost. Though we all are the passengers of the same boat and none have the exact answer but I have the following few suggestions throwing some workable scenarios for the legal hawks to brain storm in case the time comes for possible solutions;
· The political clan may Offer Chief Justice to resign with full political backing and invite him be the candidate for the President of Pakistan. He will be an ideal candidate to be the President carrying the symbolic federation support as well as lawyers and civil society especially after clipping the wings of the President turning it into a ceremonial status. The argument in favour would be the justiciablity of his position once he is restored as his brother judges can do a better job in supreme Court and he has done his bit (if he agrees), Alternately;
· Chief Justice is restored after a resolution with an executive order withdrawing earlier law secretary notification immediately making him functional who takes charge and decide the fate of the decision of 3rd Nov PCO, 23 Nov 2007 case of Iqbal Tikka Khan, and settle the issue of post 3rd Nov appointment of judges via full court reference and issue guidelines. That will be an ideal solution and Parliament can bring constitutional package to sort out the rest. Alternately;
· To start with all the 59 judges must be restored to their positions immediately by Executive Order making them functional so that it seems that politicians are willing to settle the judges issue. Chief Justice Iftikhar Choudhary is allowed all the privileges and protocol of the Chief Justice in waiting and he is allowed to rest until consensus is evolved to restore him as CJ i.e viable mechanism and or political consensus by majority on realistic Constitutional Package. In the interim most senior judge of the SC is made the Chief Justice of Pakistan with an understanding that Justice Iftikhar Choudhary will take over once back. Justice Dogar and others who have taken oath in violation of the 3rd November judgement are left on the mercy of the full court of 2nd Nov which decides what should be course of action as to the best disposition of their taking oath, early retirement and or reference to the SJC and give guidance to deal with the other two categories i.e those who were freshly appointed but taken oath under PCO and those who were freshly appointed and have taken only oath under Constitution of 1973 only bearing in mind the earlier ruling in Al-Jehad Trust case. If any post 3 Nov PCO judge disagrees to the restoration of the judges, his reference is filed at Supreme Judicial Council which decides the fate of the judge in question on case by cases though to me in any event guidelines must be given by full court of 2 Nov 2007 as to best course of action to deal with the three categories of post 3 Nov judges. Alternately;
· If that is not acceptable then Judges retirement age can be extended to 75 as in United States there is no retirement age for the judges and Saeed Uz Zaman Siddiqui along with clean judges the likes of Justice Wajeeh uddin, Justice Nasir Aslam zahid, Justice Mamoon Qazi of the SC who were acting on the fateful day of the issuing of PCO in 2000 must be brought in to make up the required number of SC judges as per constitution which is 17 and all those undesired judges by the fraternity are either given an option to resign, face possible SJC reference or they are made non functional until their eligibility as well as appointment is scrutinised by the Highest Court via full court checking the validity of PCO too in the larger interest of the institution. Alternately;
· I know for the fact that the ruling camp would be dying to restore and resubmit Art.209 reference against Chief Justice on the premises that the actual reference on facts have not been adjudicated yet and restore the rest of the judges keeping all the PCO judges too which will be disastrous for the independence of judiciary drive and for any political party to take this bitter pill. Public will not accept this onslaught too so rulers must be careful too. If we leave the 2 Nov judges to decide the fate and future of their brothers , it will be best as the same would be the case in Pakistan army as the Chief of Army Staff will be left with wisdom, will, choice & authority to do justice with his own Corpse Commanders if any is undesirable as we saw in the case of Lt. General Hameed Gul, Lt. General Tariq Parvez or at best Lt Gen Zia Uddin Butt. We saw no executive interference, no summary trial and no adjudication was ever seen by civilian authority despite conduct issues against those, then why so animosity against CJ, the same is required for the sake of saving this institution which is core to the heart of the people.
I am sure these may sound hypothetical scenarios, however post 10 of June 2008 Long March these options will sound blackberries as who knows where this movement leads and it is not guaranteed that things will turn out as planned, the failure of politicians to come up with the logical conclusion safeguarding the larger interest of state as well as one institutions along with avoiding collusion with other will be a challenge for them to solve this mystery at a crossroad otherwise, anything wrong, they will bear the blame too and who knows lawyers and general public floods the streets on that day breaking the famous status quo. Rulers must fear from that day as in that case public will hold accountability and will ensure justice and there will be no 90 billion tax free meal at public expense as Americans themselves say that there is no free lunch in the world. Public will demand accountability of all, where is our Parliament?
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and a political analyst based in UK
27 May 2008
Letter to the Ambassador of The People's Republic of China to the United Kingdom
Monday, 19 May 2008
Our ref: APL/China/2008
Madam Fu Ying: Ambassador
The People's Republic of China to the United Kingdom
49-51 Portland Place
London
W1B 1JL
Her Excellency Madam Fu Ying
Re: Earthquake in China
APL (Association of Pakistani Lawyers) a team of Pakistani origin lawyers, Solicitors, Barristers, Judges in UK jointly has noted with great sorrow and grief that China was hit by a quake on 12 May measured 7.5 on the Richter scale resulting over 21,000 deaths so far where the number of people still buried are over 26,000 and the missing over 14,000 and 7000 schools have collapsed.
On behalf of people of Pakistan, we all mourn the death of our brethren in China. People of Pakistan are with their Chinese brethren in this time of need and we express extreme pain at this natural catastrophe and we have urged the Govt of Pakistan as well as Great Britain to do whatever is possible to assist the people of China in this difficult times befitting to how they helped Pakistan during the earth quake on 8 Oct 2005.
Our sympathies are with the Chinese people and Chinese state and we convey our feelings of sorrow and good will to The Prime Minister of China Mr. Wen Jiabao, and the President Hu Jintao and condole on the death of their beloved ones. We pray that as the Chinese are a brave nation, May they find strength to bear this irreparable loss of their loved one’s.
APL would urge the citizens of Pakistan to show solidarity to the people of china in their own way and if possible pay visit of condolences to the nearest Chinese embassy to show their solidarity to Chinese people with flowers and messages of good will and Govt must open a condolences book at all civic centres for public to write their condolence messages.
Amjad Malik, MA LLM
Solicitor Advocate
Vice Chair
Association of Pakistani Lawyers (UK)
Pakistan’s modern day media challenges By: Amjad Malik MA, LLM
I am a great supporter of media growth and its freedom which keeps the public informed, shos a mirror to rulers and facilitates a debate on the policies of the govt. Which have far reaching effects on nation’s day to day business including a portrayal of other side view. I must accept that media growth is new in the country and it will take time to counter western media challenges as well as addressing our own inefficiencies in time but one thing which is quite irritating is the control with which this newly attained power be used keeping in view the national interest of their own country. BBC is renowned in news making business, however their ultimate allocation & reaction to events and news affecting their national interest would be positive and timely whereas this newly grown outfit in Pakistan must not ignore their important national contribution share in safeguarding the interest which comes with the job as wherever there are extreme rights there are extreme responsibilities too. China has been hit with one of its history’s the worst quake resulting in thousands of death(s), Burmese are going through the effects of one of worst tsunami of 2 May in their country where 200,000 people were already dead or dying and Indians have been hit by latest bomb blasts in Jai Pur on 13th May resulting in several deaths, but looking at last week’s Pakistani newspapers and media programmes in totality its regrettable that their share in highlighting such events in order to shape public opinion in order to assist nation’s due response over these events is minimal, unbefitting and unjust. I would even go to an extent that it is criminal negligence to ignore such events in China as the issue in hand is core to nation’s heart and mind and is not properly portrayed.
China is an emerging economy in the world, a strategic partner and a long trusted ally of Pakistan who come and stay with us through thick and thin not like USA who never came whenever the country was in dire need. China’s support during Wars and in peace time to the country is exemplary and their contribution during our bad time is praiseworthy but our media has failed to acknowledge our national strategic interest in order to inform and shape public opinion as it is their duty to wake the masses as well as the govt to encourage reciprocal response of cooperation which we always received in order to strengthen people to people contact with our strategic partner. Pakistan was hit by the quake in the capital and Azad Kashmir on 8 October 2005 and it registered a debatable 7.6 or 7.7 on the Richter scale and around November, the official death toll was 79,000 though the overall figure was quite high and aid poured in from the entire world including China. China was hit by a quake on 12 May the quake measured 7.5 on the Richter scale and tremors were felt as far away as Thailand and Vietnam. It hit 57 miles (92km) north-west of Chengdu, the capital of Sichuan province, at 2.28pm (7.28am BST). The death toll from the most deadly earthquake of its history have reached over 10,000 and on 16 May Chinese officials raised their estimate of the number of people killed to nearly 21,000. The latest figures put the number of people still buried at 26,000 and the missing at 14,000 where 7000 schools collapsed. The Prime Minister, Wen Jiabao, rushed to the area and appealed for people to rally together and said, "In the face of the disaster, what's most important is calmness, confidence, courage and powerful command." The quake is the worst to hit China in 32 years since the 1976 Tangshan earthquake in north-eastern China which claimed up to 300,000 lives.
Pakistani media having known the feelings of such fatality from their own experience of October 2005 quake in Pakistan remained casual with this news and developments which is unforgiveable. They should be at forefront in running ‘News Breaks’ and doing reports on china Pakistan bilateral friendship and cooperation which is an asset for the state. They should have given worthy coverage to the topic and must have encouraged the public as to the possible reaction in order to facilitate walks and collect funds or charity symbolically to support those schools where all 4 storey’s turned into rubble and must have asked the public to make a mountain of flowers outside the embassy of china in Islamabad showing solidarity to Chinese people in their time of need. It is their utmost duty to show the countrymen the possible ways to show our feelings and contribute even if it is little to strengthen our deep rooted historic ties & cooperation thus building our national self respect. Pakistan may be a poor country but not senseless in a sense that it cannot respond love and friendship reciprocally and media’s role is vital to engage the nation in other worthy causes but highlight their role towards this too. Upon media encouragement if 5 rupee collection on a larger scale is given in some thousands to Chinese Govt, it will make a symbolic gesture that Pakistani people may not contribute befittingly as China did during their disaster but their support, cooperation and friendship in spirit is as good as Chinese.
Media can play an important role in country’s grooming and upgrading psychological profile. If the role of media does not change from just covering political events only where politics has been turned into a ‘national sports’ and all the nation from a taxi driver to milkman are all advising judges how to handle Musharraf and whenever, one turns the television on one nearly have a heart attack with the flashing of breaking news which is none other than a meeting of a politician(s) except china’s earth quake update, Burmese tsunami efforts or some international or national aspect then I am afraid people who are psychologically wrecked by these developments will run for refuge after the restoration of judges as their problem of water shortage, price hike, unemployment, electricity, food and oil and international recession are not going to be solved with meager claims and cheaper slogans.
Nation takes pride from what they do in their life span, our individual and national character is at stake and we are blaming others. The wreck less emerging psyche from apathy and hopelessness is visible from the gang rape of ‘Kubra’ in the vicinity of the tomb of Mr. Jinnah, the founder of Pakistan in Karachi. I watch BBC and compare with it with some of our programmes and wonder that though in Pakistan media is in their early days and there are teething problems but national interest is not protected conditionally only if General Musharraf is out of the Presidential slot. National interest is as ‘live & active’ as our neighbors because as we cannot change our neighbors similarly media can not absolve themselves from the responsibility to protect our national interest. Pakistani media has a role to play and they must play it honestly considering it their faith professionally as its their ‘bread and butter’ and perfectly as it’s their work which distinguishes them from the other comparators in the international market. By sitting on chair and grilling few politician of present and past and doing a ‘monkey show’ our national and strategically historic problems are not going to solve but that time waste may cost us a lot. So Pakistani media must wake up, and warn the nation of their requisite task and shake their humanity by hitting the nail aright as china is in trouble and is asking for help. So wake up Pakistani media, you have a job to do.
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and a political analyst based in UK
16 May 2008
Amjad Malik Live on DM Televion in programme Aap Ki Aawaz on 15-05-2008
Please watch live comments of Mr. Amjad Malik on restoration of judiciary and future of coalition between PML(N) and PPP. Kindly click on the links below:
http://www.youtube.com/watch?v=S1pLWx0WgyM (1)
http://www.youtube.com/watch?v=v0UQjKarl3g (2)
http://www.youtube.com/watch?v=1dw_HD9dKqQ (3)
http://www.youtube.com/watch?v=y5HZbseLG4g (4)
http://www.youtube.com/watch?v=VTDLCjeJozY (5)
http://www.youtube.com/watch?v=hUbpLhBVq90 (6)
http://www.youtube.com/watch?v=E-R7u01liGc (7)
http://www.youtube.com/watch?v=TzAO_ht6L_s (8)
http://www.youtube.com/watch?v=Yp0fKCwOPhQ (9)
Thanks
