AN EXTENSION UNDER CHALLENGE

THE SUPREME COURT ASSERTS ITSELF

The short order passed by the Supreme Court of Pakistan on 28 November, 2019, against extension of tenure of Chief of the Army Staff (COAS), is a landmark in the legal history of our judiciary. The Chief Justice of Pakistan (CJP) Mr. Justice Asif Saeed Khosa and his brother judges on the bench need to be commended for the courage and grit that they have exhibited in not only taking up the case in full public view but also passing an order that, to say the least, would be unpalatable to the powers that be. Why? Because such cases in the past were taboo and no government, or shall we say no branch of government, including the Executive, the Judiciary and the Legislature, could even think of entertaining a case involving the army what to speak of a case involving the COAS directly. Even a generally conservative newspaper like Dawn called the order passed by CJP Khosa suspending the Notification granting the COAS an extension as ‘stunning’! The Notification was suspended on grounds of procedural flaws and the fact that The Army Regulations had no provision for such an extension. Dawn had this to say about the case: “This is a landmark case: unprecedented questions are being raised, threatening to upend the accepted status quo, and holding a mirror to society’s psyche.”

No sooner was the order suspending the Notification granting the COAS an extension passed, social media was flooded with an anti-Supreme Court in general and an anti-CJP in particular, tirade. People ‘dared’ the CJP and reminded him that he was no one to suspend a Notification issued by The President and Prime Minister and also that he was not God! Oblivious of the fact that, thankfully, neither were the President and Prime Minister nor was the COAS himself, God! 

And then came what can only be termed as a ‘comedy of errors!’ Within hours of the Supreme Court’s order the government set about amending the Army Regulations to provide for an extension in the COAS’s tenure. And ended up amending the wrong Regulation which did nothing to regularize his extension! The initial decision of the Cabinet recommending the extension which had the assent of only 11 of the 25 member Cabinet was revisited. And the initial stand of the government that the PM had recommended the extension to the President, who had assented to the same was also questionable. The Law Minister was made to resign so that he could represent the COAS at the hearing. Why was this necessary? Why was the government so ingratiated to the COAS that instead of letting him chose a lawyer it sacrificed the Law Minister to defend the COAS? Is it right for the government to defend an individual rather than to stand by an institution? These questions were thrown to the winds by a government which has been barking hoarse that it is out to restore public confidence in national institutions! Notwithstanding that the PM is on record that an extension in the COAS’s term adversely affects the morale and standing of institutions. Dawn again puts it brilliantly: “The episode lays bare the PTI government’s authoritarian streak and its lack of maturity — a lethal combination.”

The hearing again turned into a cliff-hanger. The Supreme Court in the order of 28 November, 2019, had this to say about the incompetence displayed by the government: “during the last three days the Federal Government has moved from one position to another referring to it as reappointment, limiting of retirement or extension of tenure and has also interchangeably placed reliance on Article 243(4)(b) of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”) and Regulation 255 of the Army Regulations (Rules), 1998.”

The Court was also dismayed at the fact that the Army Regulations were never publicized or published. The Attorney General had to fall back on the flimsy justification that the extension was granted on the basis of a practice being followed by the Army – even though there was no legal basis for such a practice!

However in order not to upset the applecart the Supreme Court passed a well-reasoned and extremely well-worded order that clearly indicates that the governments stand on the issue was confused, irrational and with no basis in law or the Constitution, but in the interest of continuity and to avoid a crisis like situation to takeover it allowed the COAS to continue in office for another six months to allow the government time to set-up a legal framework for an extension in the term of a COAS.

With regard to the government’s justification that the extension was granted in view of ‘the regional security situation’ the Supreme Court said that such a situation was for the army to handle as an institution not an individual’s task. The last paragraph of Dawn’s editorial on this needs to be quoted: “The court has also rightly noted that the regional security situation — the official reason given for the extension — is for the army to handle as an institution, rather than being an individual’s job. Surely there are other officers more than capable of leading the army. Gen Bajwa’s next step will determine whether he is thinking of himself or his institution.” The last line needs to be pondered upon by all of us especially General Bajwa!

AN EXTENSION IN QUESTION

The Chief Justice of Pakistan (CJP) Mr. Justice Khosa was the target of an unbridled video tirade by – quite naturally – an ex-army gentleman Mr. Iftikhar Rehman. Don’t know how far up Mr. Iftikhar got in the Army but he is certainly a nincompoop as far as the Constitution and law are concerned. His tone and manner made it quite obvious he had nothing substantive to say because we have a saying in the legal profession that goes like this: “If you have the facts on your side in a case bang the facts at the jury! If you have the law on your side bang the law at the Judge. But if you have neither on your side just bang the table!” And banging the table was all that Mr. Iftikhar was doing!

His first point was that when the Lahore and Islamabad High Courts were issuing bail orders for the Sharifs the CJP was quiet. Why? A lawyer who has just come out of law school will tell you that any order passed by a High court is open to challenge in The Supreme Court. If the government felt aggrieved by these orders it should have filed appeals. Why didn’t the government do so? And the CJP is not authorized to interfere is such matters either by The Constitution or any law.

The less said about the ‘wisdom’ of The President and The Prime Minister the better! But Mr. Iftikhar goes on to ‘dare’ the CJP as to who is he to challenge the ‘wisdom’ of The President and Prime Minister? The simple answer to that is that The Constitution mandates that the High Courts and The Supreme Court shall have the power to examine both the legality and validity under law and the Constitutionality of any law or actions taken by any authority, “including any Government exercising any power or performing any function” within its jurisdiction. (See Articles 199 and 184 of The Constitution of Pakistan, 1973) It is these courts that are supposed to act as guardians of our Fundamental Rights under these Articles of The Constitution. (The only thing we as a people can complain about is that in the past the Supreme Court and The High Courts have failed to do their duty under The Constitution by allowing our Fundamental Rights to be trampled upon so many times in the past and I will revert to this in a future post soon.) And what is the status of the document granting extension? It is a mere Notification! It is not an Act of Parliament, it is not an Ordinance, it is not even a Regulation or Rule approved or made with the approval of Parliament. It is just a Notification issued by the government which is considered as the lowest rung of law making! And Mr. Iftikhar ‘dares’ the CJP for suspending that! It only shows his ignorance! And I say that with respect as the law is not his profession and he is not supposed to know it. But then he should not put his foot in his mouth on a subject he does not understand!

And then Mr. Iftikhar goes on to threaten the CJP that ‘the people will tear you apart…blah blah blah!” I won’t stoop so low as to even answer that! Oh yes even elementary knowledge would tell you that The PM heads the Executive branch, The CJP heads the Judicial branch, and The Parliament is responsible for lawmaking and neither can step into the role of the other.

The only thing I agreed with in that video charade was that the CJP is not God! To put the record straight neither are the President, The PM or even Mr. Iftikhar himself God! And Thank God for that!

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 16^th 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 16^th the Attorney General pleaded ‘no instructions’ and therefore the court exercised Option No. 2 as enunciated in its order of the 10^th 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 10^th 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.

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.

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.

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.

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.