Wednesday, 18 January 2012

CONTEMPT NOTICE TO THE PRIME MINISTER OF PAKISTAN


The Supreme Court of Pakistan has issued a notice to the Prime Minister of Pakistan asking him to show-cause as to why contempt of court proceedings may not be initiated against him. (Contrary to what the media, both print and electronic, has been saying this does not amount to an initiation of contempt proceedings and the court cannot sentence the Prime Minister when he appears in response to the notice) This action has been taken on account of the ire expressed by the court on the 16th of January, when the Attorney General told the court that he had not received any instructions from any “of those concerned” as stated by the court in its order of January 10, 2012. Before dilating further it would be of benefit if the relevant paragraph of the order is quoted in full;

“6. The learned Attorney-General for Pakistan is hereby put on notice to address arguments before this Court on the next date of hearing, after obtaining instructions from those concerned, as to why any of the above mentioned options may not be exercised by us in these matters. It goes without saying that any person likely to be affected by exercise of the above mentioned options may appear before this Court on the next date of hearing and address this Court in the relevant regard so that he may not be able to complain in future that he had been condemned by this Court unheard. The learned Attorney-General for Pakistan is directed to inform all such persons mentioned above about the passage of this order and also about the next date of hearing.”

It seems to a bit odd that the highest court of the land is warning not anyone in particular but ‘those concerned’ and goes on to state that this warning is being issued so that “he may not be able to complain in future that he had been condemned by this Court unheard.” Such a warning is certainly strange if not unheard of.
On the 16th the Attorney General pleaded ‘no instructions’ and therefore the court exercised Option No. 2 as enunciated in its order of the 10th of January, 2012. It also went on to declare that the perceived inaction on the part of the Prime Minister in implementing its orders in the NRO case “reflects, at least prima facie, that he may not be an “honest” person on account of his not being honest to the oath of his office and seemingly he may not be an“ameen” due to his persistent betrayal of the trust reposed in him as a person responsible for preserving, protecting and defending the Constitution and also on account of allowing his personal political interest to influence his official conduct and decisions.”

The Supreme Court is of course hearing the now infamous National Reconciliation Ordinance (NRO) case which, to the credit of the ‘media cell’ set up by the Chief Justice, has hardly been out of the news-headlines since the day it was instituted. In this case the Supreme Court has shown efficiency which has sadly been lacking in other instances. The importance of the NRO case cannot be overemphasized. However one is amazed to see orders in this case being reserved and then announced within hours. And then the orders are not short orders but detailed ones covering several vital legal issues which take days to argue and contain references to cases from the US Supreme Court, Britain and even India. The cases quoted, only to read, would take more time than the time taken to announce these orders. One is tempted to ask: Do the judges come to court having already made up their minds and are the orders already drafted even before the hearing begins?
It seems to have escaped many of our ‘expert’ analysts that an important aspect of the case has not been addressed by the court at all until now; a detailed interpretation of Article 248 of the Constitution and its impact. This seems to have been acknowledged by the court itself in its order of the 10th of January 2012 when it puts out Option No. 4 and says;

“Option No. 4: Although in the present proceedings nobody has so far raised the issue pertaining to the protections contemplated by Article 248 of the Constitution yet if anybody likely to be affected by exercise of these options by this Court wishes to be heard on that question then an opportunity may be afforded to him in that respect before exercise of any of these options.”

Here again, for some strange reason, the court is not addressing anyone in particular but ‘anybody’ who claims protection of Article 248 and is likely to be affected by the decision of the Court even though it is quite apparent whom the Supreme Court is referring to. It is important to note that the Supreme Court itself admits that ‘nobody has so far raised the issue pertaining to the protections contemplated by Article 248”.
Article 248 (2) which needs to be interpreted reads as under;
“248 (2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term in office.”

It is being suggested by some that Article 248 is presumed to have been considered by the Court as it has not been said that the Presidential immunity extends to the present case. Others are suggesting that if the President is seeking immunity he must appear before the Court and claim it as such and the Court would not by itself grant him immunity.
The fact that the Supreme Court has not addressed the question of immunity in detail has been acknowledged by the Court itself as stated above. The Supreme Court is the final court (at least in this mortal world of ours) and is expected to decide cases not only in the present time frame but for the future too. It is therefore bound to take into consideration the entire gamut of law even if a point has not been pleaded before it. There have been occasions where the Court has decided a point of law in such a way that it resulted in an injustice to the litigant before it but to give another interpretation to the law would have lead to injustice in the future. In the NRO case the Supreme Court should have taken up the immunity granted to the President both under our Constitution and international law and given a decision one way or the other. To say that anyone claiming immunity should come and ask for it only shows that the court has made it a matter of its ego even though there is a presumption that immunity exists and the onus to prove otherwise is on the one claiming the contrary. Immunity granted to the President under Article 248 of the Constitution is not unique to our Constitution. Similar provisions exist in many other countries and there have also been several cases under International law. The Swiss authorities have made it obvious that they feel that the President enjoys immunity under International law also needs also to be taken into consideration.
One only hopes that saner counsel would prevail and the Supreme Court would exercise restraint and not become a vehicle for derailing democracy for which the people of Pakistan have shed their blood.

Monday, 11 April 2011

THE SUPREME COURT REFUSES PERMISSION TO GOVERNMENT TO CHANGE COUNSEL IN REVIEW OF NRO CASE.


It is with regret that one has to point this out but the bias of our Most Honourable Chief Justice is once again apparent in the proceedings on the government's review petition on the NRO case. The court is refusing to allow the government to replace Mr. Kamal Azfar, who originally pleaded the case, by another lawyer of its choice on the ground that the Rules of the Supreme Court make it mandatory that the same lawyer who pleaded the original case also plead the review application. This is said to be a requirement under Order XXVI Rule 6 of the Supreme Court Rules. Rule 6 of Order XXVI states: "[6. Except with the special leave of the Court, no application for review shall be entertained unless it is drawn by the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made. Nor shall any other Advocate, except such Advocate, be heard in support of the application for review, unless the Court has dispensed with the requirement aforesaid." A plain reading of this Rule shows that a change of counsel will not be allowed "unless the Court has dispensed with the requirement aforesaid". It is as clear as daylight that the Supreme Court has the power to allow a new counsel to plead the review application and there is nothing mandatory about the rule. The Supreme Court is the apex court in our country. There are vested interests who would like to see a confrontation between organs of the state. Our country has been rid of a military dictatorship after giving great sacrifices. Our people have yet to see the benefits of democracy trickle down. Our people are targets of extremism, ethnic killings and sectarian strife. Is it too much to expect that at least the Supreme Court interpret it's own rules correctly? And even if the rules had not permitted a change of counsel would it not have been better if the Supreme Court had shown a little magnanimity in the matter? After all the rules have been framed by humans and not ordained by God. What about the age old maxim that justice must not only be done but must also be seen to have been done. But then maybe magnanimity by Muslims came to an end with the conquest of Mecca.

Saturday, 19 February 2011

THE SUPREME COURT AND AD-HOCISM

The Supreme Court of Pakistan has been coming down heavily on ad-hocism. Headline grabbing remarks against the government for making ad-hoc appointments to the higher echelons of the civil bureaucracy are the daily norm. Contractual employees are being berated and humiliated in open court. The Chief of the National Bank of Pakistan who had turned it into a record profit making institution was forced to quit by the Supreme Court because he had retired and was appointed on a contract. Yet when it came to itself the Supreme Court, on the suggestion of the Chief Justice Iftikhar Chaudhry, adopted a unanimous resolution calling for the ad-hoc appointment of 2 of its own judges including Justice Ramday who was already on a one year extension after retirement. If this is not a glaring example of double standards we will have to redefine the phrase. Even more surprising was the fact that Justice Ramday was himself a part of the meeting at which his own further extension was sought. Ms. Asma Jahangir, the outspoken President of the Supreme Court Bar Association, came out lashing at this. She said that the lawyers 'were counting days', to the retirement of Justice Ramday as his behaviour towards lawyers was harsh and haughty. If I recall correctly a former well known Attorney General of India Mr. M.C. Setalvad, who also became President of the Indian Supreme Court Bar Association, in his autobiography has said that he set up a practice not to hold the customary full court reference that is held on the retirement of judges for those judges who, while on the bench,did not have a proper attitude towards the lawyers. I think it is time we adopted that same practice and start with Justice Ramday. The Express Tribune newspaper had carried the story of the Supreme Court's resolution and I had made the following comments;
"Is this not the judicial dictatorship that Ms. Asma Jahangir had spoken about? And is this not the Justice Ramday who had said during Musharraf's days that he would resign only if he was restored? Is this the same Supreme Court that chides the government day in and day out on ad-hoc appointments? Shameless is the only word that comes to mind. The PCO tainted but now Snow White dry-cleaned Most Honourable Chief Justice must feel threatened, insecure and shaky if Mr. Justice Ramday is not with him on the bench, it seems. But it must be remembered that history will hold all the judges present in the meeting seeking these ad-hoc appointments equally culpable for they have aided and in this case abetted the MOST HONOURABLE PCO CHIEF JUSTICE in his designs. Whether Justice Ramday is a gem, honest, fearless, just and experienced is not the issue. These same virtues abide in several individuals who have gracefully served their allotted time and made place for others. The issue here is about principles; for it is adherence to principles that make an institution. The Supreme Court of Pakistan is not a personal fiefdom - it belongs to the people of Pakistan. It is not there to serve and settle personal vendettas; it is there to do justice to all manner of people. It is not supposed to seek publicity in the media; it is supposed to go about its work quietly and speak only through its judgments. The Supreme Court of Pakistan has not yet shaken off its image as an institution which has always pandered to the wishes of dictators on the one hand or like Judas Iscariot sold it's principles for the proverbial 13 pieces of silver. Examples abound; why is the Chief Minister of the largest province ruling by virtue of a stay order? Why is the case not coming up for hearing? Is it only to let him serve his term and let the matter become infructous? Why and under what principle of law were time barred appeals entertained and convictions turned into acquittals? Why were the rules of the Supreme Court itself violated and a review petition heard by a benign bench rather than the bench which passed the original order even though the original judges were all available? Why is it that one Prime Minister is restored in a single attempt and drives back in his silver Mercedes under a debatable judgment while another is hanged under a glaringly unjust order? Instead of trying to repair its image we now have this ad-hoc business. Lawyers were 'counting the days' to Justice Ramday's retirement and there we have the MOST HONOURABLE PCO CHIEF JUSTICE proposing ad-hoc appointments! Is this glaring instance of double standards not visible. But as is said;'There are some who have ears but hear not; have eyes but see not. Oh LORD! Give to man the seeing eye!"
Mr. Hamid Khan, a former President of the Supreme Court Bar Association, in a subsequent TV Talk Show had tried to distinguish the Supreme Court resolution by saying that it was in accordance with the Constitution. One would like to ask him if ad-hoc appointments to the civil bureaucracy are barred by the Constitution? To his credit, however, he accepted that in principle he was opposed to such ad-hoc appointments.
It is time that the Supreme Court tried to shed the perception that it is on a government baiting mission. The backlog of cases has grown because the Supreme Court has taken upon itself the duties of the Executive as well as the Legislature and months have been spent hearing cases only to snub the government while cases like the Hudabiya Mills case, the Air Mrshall Asghar Khan, the disqualification case of the Punjab Chief Minister etc. are confined to cold storage.

Sunday, 31 October 2010

THE SUPREME COURT


The Supreme Court of Pakistan has never been out of the news for over a year now. This might be due in part to the efficiency of Supreme Court Media wing set up by the Chief Justice-an unheard of thing in any other Supreme Court to my knowledge. The Chief Justice himself has left no stone unturned to see that he is never far from the main headline in the media - the mid-night meeting called on the basis of an as yet unconfirmed news report, the order to the Prime Minister to submit a one line (or was it two) statement within an hour, and that obsession of obsessions; the National Reconciliation Ordinance (NRO) implementation case are all juicy enough subjects to grab the headlines in our ‘breaking news’ crazy media. One has to ask; is it necessary for the Supreme Court to always remain in the headlines or is the Supreme Court better off quietly doing its job of handing down justice to the meek and down-trodden? The judges were busy past midnight on Thursday chalking out strategy to counter a de-notification of the restoration notification just on the basis of an as yet unconfirmed news leak and all 17 of them were busy all of Friday waiting for the PM to write one line to assuage their fears of de-notification of just 3 of the judges’ restoration? And what happened? The PM rightly refused and addressed the nation on Sunday explaining that his word was his bond and that he would not write what the SC had asked him to. The SC which had, for reasons best known to it, not listed any other case on Monday, backed down and the case was adjourned sine die. Two full days of the Court were lost for nothing. All the hype was in vain. How many precious hours were wasted and who is to account for them? What of the old, poor and down-trodden who have decade old cases still pending? Is this justice that the now bathed in milk judiciary was expected to hand down?
And now for the NRO cases. Justice Ad-hoc Ramday is reported to have asked; ‘Is it our fault if Parliament fails to ratify the NRO?” That, your honour, is the wrong question to ask. This blogger had already raised the question in an earlier post as to under what provision of the Constitution had the SC revived an Ordinance which was already dead according to a specific provision (Article 89) of the Constitution? The Supreme Court has only the power to interpret the Constitution and is itself bound by it. It does not have the power to amend it. Why was the NRO revived when it had died its death under a specific and unambiguous provision of the Constitution? Unfortunately it seems that the Supreme Court has forgotten that it lays down the law not only for the present but also for posterity. Decisions which make headlines today will also have to be read and applied when the present becomes the past. That realization seems to be missing.

Tuesday, 4 August 2009

The Supreme Court

The events in the Supreme Court of Pakistan have over-taken everyone expectations. The judgment on the November, 03, 2007, actions of the then Chief of Army Staff cum President is being hailed as 'historic' for various reasons. With respect, some questions arise. Why the hurry to announce the order on the same day as the hearing concluded? It was after all an important issue being adjudicated upon and no matter how black and white the legality of the actions in question there was no apparent reason for announcing that the order would be announced at 3:30 p.m. and then keep everybody waiting till past 8 in the evening. Could it not have waited till the next day? After all when the Supreme Court says 3:30 it should mean that!
Then there is the issue of the Ordinances (37 of them) which have now been handed over to Parliament to either transform into Acts or let them die a second death. Second death? Yes, most of these Ordinances had already lapsed but now the court has revived them and given Parliament another chance to look at them. Some opine that this amounts to an amendment of the Constitution which grants only a limited life to Ordinances passed by the President (120 days) or by the Governors of the provinces (90 days). Can the Supreme Court amend the Constitution and that too by a side wind so to say. More later.

Sunday, 26 July 2009

Hello everybody - Everyone is talking about the notice sent by the Supreme court to Gen. Musharraf and what may come of it. I would like to hazard my guess. A top notch lawyer will appear on his behalf (S.S. Pirzada or A.H. Pirzada maybe through Malik Qayyum) and a preliminary objection will be taken that the action of November 03, 2007, was taken in the capacity of the Chief of Army Staff and as such cannot be called in question in the Supreme court. The Court might decide to hear the objections and decide to over-rule them, but more likely might say that they would like to hear the entire case and decide the issue and the main case together. Also an objection may at some stage be taken that the Chief Justice should not hear the case as he was personally affected by the actions taken. What will happen next will be discussed in my next post.

Saturday, 30 August 2008

ELECTION BOYCOTTERS & LOSERS

The plethora of private TV channels has provided an opportunity for every Qazi, Imran and Shaikh to somehow squeeze space for themselves into our sitting rooms -uninvited, unconvincing and unwelcome. Yet they are there no matter how many buttons you press on the remote. They refuse to answer questions put to them directly and will say the same thing over and over again. Verbosity is a word unknown to them. In this my first posting I would like to request them and their ilk to first establish their credentials before they open their mouths. Qazi Hussain Ahmed (who incidently has a son studying in America) and Imran 'the lone ranger' Khan (educated in the UK) are election boycotters and therefore have no locus standi to either speak on behalf of the people or criticise a government they did not vote for or against. Please wait until the next elections and politely turn down offers of TV appearances. Shaikh Rasheed of the infamous 'Lal Haveli' forfieted his deposit in the last elections and therefore should not speak for the people.
Qazi Hussain is an American baiter and because of the failed policies of the current US administration has many listeners. But please listen to his expalanation for sending his son to study in the US: "He was studying a subject for which there were no 'boys only' institution in Pakistan. So he had to go to America!
I think that statements like that are an abuse to our intelligence. More later.