Monday, 11 April 2011


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 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.