Former Justice Strikes Back at the Chief Justice

Judicial Commission is as an hierarchy created under the Constitution.

The functions of the Judicial Commission are not that of a Supreme Court or a High Court or even a Tribunal and as such procedures required of a Judge or a Court is neither resorted to nor adopted.

Concerns paving way and charges of professional misconduct leveled against my person by the Chairman and members of the Judicial Commission for my unceremonial exit, though upsetting, insulting and offending are not legitimately disclosed to me inspite of my written requests.

Talk of the town, in the earlier days, for my unceremonial exit, was

(a)       blames against my person for illegal appointments in Islamabad High Court & District Courts;

(b)       acceptance of illegal gratifications in cases; and

(c)       embezzlement of funds in purchases of photostat machine.

According to the Chief Justice Islamabad High Court my person was not involved in any illegal appointments or any other undesirable activities. However, despite my insistence, the denials were not made public as this would expose certain members of the Judicial Commission and their associates to hazards including his own removal from office.

By Justice Azim Khan Afridi

Orders and Disorders of the Chief Justice

Author’s Note: For appreciation of this post scrutiny and study of other articles, videos and multimedia presentation on “Screen” and judgment in Malik Riaz Case would be helpful.

The CJ, while sitting and hearing causes as a Judge, commands all respects of the nation as he represents an important office under the Constitution.

His notable and significant remarks are frequently reported by media in “Breaking News”.

There is no cavil to the proposition that adherence to statutes, apart from bringing fame, eminence and prominence to the Judge, make a judgment, ruling or verdict exhaustive and all-encompassing.

The CJ, in other sittings, neither respects Constitution and law nor lets other to follow.

He, with all respects, would never hesitate to influence others with his cautious and cagey attitude.

It was shocking to learn that the CJ, in a private sitting, directed Dr. Faqir Hussain, Registrar Supreme Court to watch the demeanor of the Court during hearing of Judges Case. Oddly he purposely included Mr. Justice Ijaz Afzal Khan in the Bench inspite of my reservations as Judge Islamabad High Court and, the latter warmly received the offer, inspite of knowing my valid alarms and apprehensions.

Strangely the CJ, for my ouster, hatched a conspiracy and influenced others to disbelieve official reports and accept as true off-the-record material including that procured through a family of my commune, involved in illicit earnings. He deliberately concealed illegal appointments made by Mr. Justice Iqbal Hameed Ur Rahman, Chief Justice Islamabad High Court and Mr. Justice Muhammad Anwar Khan Kasi and articulately managed elevation of one of the Judges as Judge of the Supreme Court and the other as the Chief Justice of Islamabad High Court.

He probably settled the encounter with Malik Riaz of Bahria Town, after punishing the authors of the judgment in WPs No. 2009 of 2012 and 2076 of 2012. He unilaterally ignored the decision taken on the floor of the Parliament for appointing the Chief Justice from FATA and arrogantly managed my expulsion inspite of my straight matchless record, dedicated hard work and inspirational role aimed at lessening wave of deprivation and terrorism in FATA.

Orders of the Chief Justice are prima facie aimed at strengthening governance and judicial system in the country. However, disorders attributed to him, in other sittings, are undoubtedly aimed at abating and weakening the Judiciary and intensifying terrorism.

A shared folly, that of mine & Mr. Justice Riaz Ahamd Khan, is a Judgment delivered by us in a Division Bench constituted by the Chief Justice Islamabad High Court, wherein famous case of Malik Riaz of BehriaTown came up for hearing before us which was decided by us in the following manners: 

JUDGMENT SHEET.

ISLAMABAD HIGH COURT, ISLAMABAD.

WP No. 2009 of 2012

Ch. M. Naeem Ali Advocate and another

versus

Federation of Pakistan through Secretary, Ministry of Interior and three others.

 

WP No 2076 of 2012 

Advocate, Malik Abdul SattarAwan

Versus

Federation of Pakistan through Secretary, Ministry of Interior and three others.

Petitioners by:                Barrister ZafarUllah Khan

Respondents by: Syed Zulfiqar Abbas Naqvi Advocate        and  Mr. Javed Iqbal Butt, Standing Counsel.

DATE OF HEARING:                     28-6-2012.

DATE OF DECISION:                    03-7-2012

 

Muhammad Azim Khan Afridi, J: Ch. M. Naeem Ali and Mr. Umar Khayam Advocates hereinafter referred to as the petitioners are seeking issuance of writ against the respondents i.e. Federation of Pakistan and others to declare letter No.F.No.3/100/2011-PTNS dated 13-6-2012 as illegal, unlawful, fanciful, against the principles of natural justice, equity and equality and that the remission of sentence by the President of Pakistan, awarded to Muhammad Basharat(respondent No.4) under the Anti Terrorism Act 1997,  be declared null and void and that respondents No.1 to 3 be restrained from implementing the decision vide the said impugned letter.

2.         Malik AbdulSattarAwan Advocate has also called in question the vires of the said order and has also prayed for laying down parameters for exercise of powers by the President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan hereinafter referred to as the Constitution.

3.         Since identical questions of facts and law are involved in both the constitutional petitions No.2009/2012 and 2076 of 2012 and the same are arising against one and the same order dated 13-6-2012, as such, both the petitions are disposed of through this single judgment.

4.         Facts in brief stated in the constitutional petitions are that the petitioners, respectable citizens of Pakistan, belonged to the legal fraternity and committed for rule of law, equity, fair play and equality.  Respondent No.4, accompanying Malik Riaz Hussain of Bahria Town, as his guard, fired at one Hamid in parking area adjacent to the Court of learned District & Sessions Judge, Islamabad who, as a result of the said firing lost his life.   A criminal case U/Ss 353/337-F/337-C, 148/149/324/316 PPC and 7 ATA, 1997 was registered vide FIR No.19/2010 at Police Station Margalla, Islamabad.  After commencement and conduct of trial respondent No.4 was acquitted of other charges on the basis of compromise but was found guilty and sentenced to life imprisonment under section 7 ATA.   That former boss of respondent No.4, by exercising his influence, illegally and unlawfully, managed remission of remaining sentence of respondent No.4 by the President of Pakistan.

5.         Learned counsel for the petitioners has argued that under Article 45 of the Constitution the President is empowered to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence by any Court, tribunal or other authority, however, the said powers of the President were subject to limitations laid down under Article 48 of the Constitution, according to which the President, in the exercise of his functions, was obliged to act on and in accordance with advice of the Cabinet or the Prime Minister.  That the grant of pardon extended to respondent No.4 was without any such advice and was, therefore, nullity in the eye of law and the impugned order was, therefore, passed by the President without any lawful authority.    That the respondent No.4 was convicted by the Court for his act of terrorism inspite of the fact that legal heirs of the deceased had entered into a compromise with respondent No.4.  He further argued that discretion, under Article 45 of the Constitution, was to be exercised with care keeping in mind the duty to maintain justice so as to prevent erosion of the deterrent effect that judicial punishment must retain.  That the exercise of power of remission of sentence by the President was based on malafide and against the scheme of constitutional provisions and law.   That remission in cases breeding terrorism cannot be legally granted.

6.         Reliance was placed on case law reported in PLD 1992 SC 14,  PLD 2006 SC 365, 1999 MLD 3112 (Quetta),  PLD 1989 Supreme Court 633, 2010 PLD Lahore 605,  PLD 1998 Karachi 416,  PLD 1991 Federal Shariat Court 236, 1999 SCMR 2883,  (1987) 1  Supreme Court Cases 288,  (2002) 7 Supreme Court Cases 222,  (2006) 8 Supreme Court Cases 161,  (1982) 1 Supreme Court Cases 417, (1981) 1 Supreme Court Cases 107, (1989) 1 Supreme Court Cases 204, (2004) 7 Supreme Court Cases 634 and 274 U.S. 480 (1927). 

7.         On the other hand, learned counsel appearing on behalf of respondent No.4 and learned Standing Counsel for respondents No.1 to 3 have argued that the writ petition was not competent as the petitioner was not an aggrieved person within the meaning of Article 199 of the Constitution.  That the powers of pardon vested in the President of Pakistan under Article 45 of the Constitution are not subject to any restrictions including the provisions of Article 48 of the Constitution.  That no malafide was established by the petitioners and that the remission was granted by proper exercise of powers vested in the President under Article 45 ibid. Reliance was placed on case law reported in PLD 2007 SC 52, PLD 2007 SC 386, PLD 1992 SC 14, PLD 2004 Quetta 1, PLD 2010 Lahore 428 and PLD 2006 Supreme Court 365.

8.         We have heard arguments of the learned counsel for the parties and perused the record.

9.         Undisputed facts of the cases are that Muhammad Basharat, respondent No.4 was charged for offences punishable U/Ss 353, 337-F, 337-C, 148, 149, 324 and 316 PPC and 7 ATA 1997 vide FIR No.19 of 2010 registered at Police Station Margalla, Islamabad.  During the trial before the Anti Terrorism Court, Rawalpindi, respondent No.4 was acquitted of other charges on the basis of compromise but was found guilty and sentenced to life imprisonment under section 7 of Anti Terrorism Act 1997.   Respondent No.4 was suffering the sentence when vide impugned letter dated 13-6-2012 President of Pakistan remitted his remaining sentence.

10.       With reference to maintainability of the constitution petitions, in case of Province of Balochistan Vs. Murree Brewery Company Ltd. reported in PLD 2007 SC 386 it was observed that for invoking the jurisdiction of High Court through constitutional petition, the petitioner must be an aggrieved person and he must have a locus-standi for availing such jurisdiction.  In case of Hafiz HamdullahVersus Saifullah Khan and others PLD 2007 SC 52 it was held that a person invoking constitutional jurisdiction under Article 199 of the Constitution is to establish that any of his legal or fundamental rights guaranteed under the Constitution were violated resulting any legal loss.

11.       In case of AttaUllah Khan Malik Vs.   Federation of Pakistan through President of Pakistan and 3 others 2010 PLD Lahore 605 it was observed that in any matter pertaining to public interest litigation rule of ‘standing’ or    ‘locus-standi’ or ‘aggrievedperson’ has received liberal interpretation and any person or citizen having sufficient interest can maintain a petition as ‘aggrieved person’ under Article 199 of the Constitution subject to satisfying the other requirements of the said Article.  In case of Mushtaq Ali Vs. Government of Sindh through Chief Secretary, Sindh and 11 others PLD 1998 Karachi 416 it was observed that strict rules and technicalities with respect to locus-standi of petitioner in a public interest litigation would have no room in such matters.

12.       In case of ArdeshirCowasjee reported as 1999 SCMR 2883 it was observed that for maintaining a proceeding in writ jurisdiction it was enough to see that the petitioner has a personal interest in performance of the legal duty, which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise.

13.       In case of Zahir Enterprises reported as 1999 MLD 3112 (Quetta) it was observed that condition of an aggrieved person stands fulfilled when it is established that the petitioner is an interested person.   It was further observed that the object of invoking the constitutional jurisdiction is not to claim relief essentially in favour of the petitioner

14.       A careful study and scrutiny of the aforestated case law would reveal that for maintaining constitutional petition under Article 199 of the Constitution, a person seeking order or directions of the Court must be an “aggrieved party” within the meaning of the said Article.  The petitioners, with reference to controversy in hand, were obliged to show that their vested or established fundamental rights were infringed or violated by the impugned notification.  Since no right whatsoever vested in the petitioners is affected by the impugned notification directly or indirectly as such we would hold that the petitioners are not an “aggrieved party” for the purpose of Article 199 of the Constitution and as such the writ petitions are not maintainable.

15.       With reference to commutation of sentence under the provisions of PPC, Cr.P.C. and ATA 1997 and presidential power to grant pardon etc. it is necessary to reproduce the relevant provisions of law and Constitution,  for ready reference and facilitation:-

Article 45 of the Constitution.

President’s power to grant pardon, etc.   The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority. 

Article 48 (1) & (2) of the Constitution.

President to act on advice, etc. (1) In the exercise of his functions, the President shall act on and in accordance with the advice of the Cabinet or the Prime Minister.

            Provided that with in fifteen days the President may require the cabinet or as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall within ten days act in accordance with the advice tendered after such reconsideration.

(2)        Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever.

Provisions of Pakistan Penal Code.

Section 55.  Commutation of sentence of imprisonment for life.— In every case in which sentence of imprisonment for life shall have been passed, the Provincial Government of the Province within which the offender shall have been sentenced may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years:

            Provided that, in a case in which sentence of imprisonment for life shall have been passed against an offender convicted for an offence punishable under Chapter XVI, such punishment shall not be commuted without consent of the victim or, as the case may be, of his heirs.

Section 55-A.  Saving for President’s Prerogative.— Nothing in section fifty-four or section fifty-five shall derogate from the right of the President to grant pardons, reprieves, respites or remissions of punishment.

            Provided that such right shall not, without the consent of the victim or, as the case may, of the heirs of the victim, be exercised for any sentence awarded under Chapter XVI.

16.       A careful perusal of the aforestated provision of law and proviso added to the said section read with Section 401 Cr.P.C. and Section 21(1) of Anti Terrorism Act 1997 would reveal that the Government has the authority to commute the sentence of imprisonment in the following manners and circumstances:-

(i)         Sentence of imprisonment for life without the consent of the offender.

(ii)        Punishment of imprisonment of life can be commuted for imprisonment of either description for a term not exceeding 14 years.

(iii)       Punishment under Chapter XVI i.e.  Offences affecting the human body, cannot be commuted without consent of the victim or, as the case may be, his heirs.

(iv) Remissions in sentence to a person convicted and sentenced for an offence punishable under Anti Terrorism Act 1997 is not allowed except in case of a child convicted and sentenced for an offence under the said Act.

17.       There is no cavil to the proposition that in the exercise of his “functions” the President is to act on and in accordance with the advice of the Cabinet or the Prime Minister, however, the President, as envisaged in Article 48 (2) of the Constitution is to act in his “discretion” in respect of any matter of which he is empowered by the Constitution to do so.  The expression “discretion” in Article 48(2) of the Constitution is the manifestation of authority, which the President of Pakistan is to exercise and perform independent of any advice obligated under Article 48 (1) of Constitution.  Article 45 of the Constitution empowers the President to grant pardon, reprieve and respite and to remit, suspend or commute any sentence awarded by the Court, tribunal or the other authority in his discretion, as such, advice of the Cabinet or the Prime Minister for exercising his “power” under Article 45 of the Constitution would neither be a prerequisite nor essential.

18.       The Scheme of commutation or remission of sentence under the provisions of Pakistan Penal Code 1860, Criminal Procedure Code 1898 and Anti Terrorism Act 1997 can neither limit nor restrict the authority of the President of Pakistan vested in him under Article 45 of the Constitution as a subordinate legislation, in no circumstances, can influence or affect power of the head of State vested in or conferred on him under the Constitution.

19.       According to the arguments of the learned counsel for the petitioners, in case law of Indian Supreme Court, referred to above and relied on by the learned counsel for the petitioners, judicial review of the order of the President was available,  more particularly on the grounds when:-

(i)         an order was passed without application of mind, or

(ii)    withmalafide or on extraneous or             wholly irrelevant consideration or

(iii) when the relevant material was kept out of consideration or

            (iv)   when the order was suffering from                                           arbitrariness. 

Similarly in law laid down in Biddle, Warden Vs. Perovich 274 U.S. 480 (1927), the pardon was a part of constitutional scheme and was to be granted if the public welfare was better served by inflicting less than what the judgment fixed.           To further elaborate the issue Article 189 of the Constitution is also reproduced for facilitation:-

189.  Decision of Supreme Court binding on other Courts.   Any decision of the Supreme Court shall, to the extent that it decides question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.

20.       It is thus clear that a decision of the Supreme Court of Pakistan is binding on all Courts in Pakistan in the following circumstances:-

  (i)         When by the same a question of law is decided.

(ii)        When the same lays down or enunciates a principle of law and

(iii)       When the same is based upon a principle of law.

The decision of the August Supreme Court of Pakistan referred to above, deciding the question of law and enunciating the principles of law are to be mandatorily followed by all Courts including this Court exercising extraordinary jurisdiction under Article 199 of the Constitution.

21.       Though the foreign case law referred to and relied on by the learned counsel for the petitioners define parameters for the exercise of powers in almost similar circumstances with respect to pardoning, remission etc. of an offender but the same cannot be imported and taken into account for the interpretation of Article 45 of the Constitution, more particularly, when the said Article was interpreted by the Courts of the country including the Apex Court of ultimate jurisdiction.   In case of Abdul Malik and others Vs The State  PLD 2006 SC 365 the August Supreme Court of Pakistan has observed that power of President of Pakistan to grant remission in terms of Article 45 of the Constitution was unfettered and no clog stipulated in a piece of subordinate legislation could abridge such power of the President.  It was further observed that such power of the President was not violative of the spirit of Article 2-A of the Constitution.  Similar view was taken in case of Haji Bismillah reported as PLD 2004 Quetta 1 wherein it was further observed that exercise of such discretion was not assailable before any forum including a Court of law. 

22.       Malafide on the part of President of Pakistan in exercise of his discretionary powers, though alleged but remained unsubstantiated. Respondent No.4 was convicted by the Court under section 7 ATA.   In offences punishable under Chapter XVI, legal heirs of the deceased had consented to his acquittal.  Mere allegation of malafide, without persuasive material would not entitle an aggrieved party to seek annulment of orders of remission in sentence passed under Article 45 of the Constitution, on the plea of malafide. 

23.       Keeping in view the arguments of the learned counsel for the parties and assistance extended to us through case law and provisions of law and interpretation of statutes by the August Supreme Court of Pakistan we hold that the impugned notification originating from the order of the President of Pakistan, while exercising his power under Article 45 of the Constitution cannot be impugned before us in the constitutional jurisdiction of this Court.

24.       We, would, in view of above, dismiss the constitution petitions for the reasons enumerated above.           

 (RIAZ AHMAD KHAN)                   (MUHAMMAD AZIM KHAN AFRIDI)

JUDGE                                                          JUDGE

 Announced in open Court on 03-7-2012

According to certain critics the said judgment was not regarded commendable and became an off-screen justification warranting my unceremonial exit as Judge of the Islamabad High Court and deprivation of Mr. Justice Riaz Ahmad Khan from his legitimate expectancy of becoming the Chief Justice Islamabad High Court.

I believe that the President of Pakistan, being Head of State and representing the unity of the Republic, taking oath before entering upon office, in the larger interest of the State would act as required of him by the Constitution.

If directions to relevant state agencies/organizations for digging out the truth are issued, then the President of Pakistan would not only save his office from illegal appointments of Judges but would also control  and curb the offending efforts of victimization and humiliation of innocent Judges.

Let me plead that the Judges delivering justice also need, expect and deserve justice and those offensively using, misusing or abusing official positions need to be brought to justice. Such functions require of the office of the President to bring about changes vital for upholding rule and supremacy of law in the country.

aleee_1@live.com

File attached or is available on http://www.azimafridi.com or http://www.azimafridi.blogspot.com/2012/12/the-folly-judges-holy-chief-justice.html

Legal Notice by Justice Afridi

Under the instruction of Mr. Muhammad Azim Khan Afridi, hereinafter also referred to as the Hon’ble Judge, I hereby serve you with the instant legal notice for the reasons and on the grounds stated below:

1. That the Hon’ble Judge while performing his functions and discharging duties as Additional Judge Islamabad High Court, was nominated by the Chief Justice Islamabad High, for confirmation as Judge Islamabad High Court, placing him higher than his contemporaries i.e. Mr. Justice Noor-ul-Haq N. Qureshi and Mr. Justice Shaukat Aziz Siddiqui.
2. That the meeting of Judicial Commission was convened and held on 22/11/2012 and in the said meeting Mr. Justice Muhammad Anwar Khan Kasi, Judge Islamabad High Court was also invited though he was not the senior most Judge of Islamabad High Court.
3. That earlier to the above stated meeting, another meeting of the Judicial Commission dated 27/09/2012 was held in which Mr. Iqbal Hamid Ur Rahman Chief Justice Islamabad High Court was recommended as Judge Supreme Court of Pakistan and Mr. Justice Muhammad Anwar Khan Kasi Judge Islamabad High Court as the Chief Justice Islamabad High Court.
4. That in the meeting dated 22/11/2012 the Judicial Commission recommended Mr. Justice Shaukat Aziz Siddiqui for confirmation, while Mr. Justice Noor-ul-Haq Qureshi was placed on extension for six months and Mr. Justice Muhammad Azim Khan Afridi was dropped on the charges of professional misconduct, details whereof were neither conveyed to his honor either earlier nor later, or till date.
5. That the Hon’ble Judge wrote a letter dated 25/10/2012 for provision of material considered against him as charges of professional misconduct, corruption, illegal appointments etc.
6. That the Hon’ble Judge also made a representation to the Judicial Commission dated 29/10/2012, accusing therein, inter alia, Mr. Justice Kasi for his illegal input and Mr. Justice Ijaz Afzal Khan for entertaining malice against him.
7. That the Hon’ble Judge lodged a writ petition in Islamabad High Court for procuring the material and documents considered for his ouster but of no avail as the said writ petition is not being heard till date in-spite of its emergent status.
8. The Hon’ble Judge made vigorous efforts to seek the protection of law and in the said directions also submitted an HR case before the Supreme Court of Pakistan via webpage followed by a letter to the Registrar Supreme Court of Pakistan.
9. That the Hon’ble Judge has come to irresistible conclusion that his removal, based on malice was strategic, preplanned and for that illicit arrangement were plotted.
10. That the Hon’ble Judge is entitled to seek justice and secure reliefs available to him under the Constitution and law including damages from the Judicial Commission collectively and from its Chairman and members distinctly in addition to his claims from Mr. Justice Muhammad Anwar Kasi who, one of the schemers, leveled unfounded allegations of corruption against the Hon’ble Judge in preparatory meeting held prior to the meeting of Judicial commission.
11. That apart from the community of lawyers, inhabitants of FATA,  Judges of High Courts and District Judiciary including staff members, litigants and all those knowing the Hon’ble Judge, hold him in high estimations.
12. That the Hon’ble Judge and his family members are facing acute and recurring mental torture for the reasons and due to events likely to happen in the near future as the recommendations of the Judicial Commission in the above stated meetings, apart from purposely damaging the institution and justice sector of the country, are offending and tortious for the Hon’ble Judge and his family for the following reasons:

13. (i)Mr. Justice Iqbal Hameed Ur Rahman, Member Judicial Commission, was recommended for elevation as Judge Supreme Court of Pakistan though he was involved in numerous unconstitutional and illegal cases of appointments, promotions and absorptions in Islamabad High Court including appointment and promotion of Mr. Attiqur Rahman as Registrar Islamabad High Court who was appointed and then promoted without dossier. These illegal appointments are in the notice of the Chairman of the Commission what to say of certain members of the commission(ii)                        Mr. Muhammad Anwar Khan Kasi, Judge Islamabad High Court was recommended as Chief Justice inspite of the fact that he was also involved in illegal appointments including illegal appointment of his own brother Mr. Muhammad Idrees Kasi as Deputy Registrar.

14. (ii)The said appointments are also in the notice of the Chairman and certain members of the Commission.

15. (iii)                      Mr. Noor-ul-Haq N. Qureshi was recommended as Additional Judge IHC for six months inspite of illegal appointment of Ghawas Gul Mastoi, his nephew, as Assistant Registrar.

16. (iv)                      Mr. Shaukat Aziz Siddiqui was recommended as permanent Judge, though popular for not writing judgments. He is yet to write hundreds of judgments including judgments annulling certain illegal appointments made by the Chief Justice of the Islamabad High Court. Apart from the above references etc. pending against him were deliberately concealed and additionally illicit reputation which he earned due to his 2^nd marriage was also kept aside.

17. (v)                        The Hon’ble Judge was not recommended for reasons illegally kept abreast by the Secretary Judicial commission at the instance of Chairman Judicial Commission and for his performances explained in “Dispatches” www.azimafridi.blogspot.comandArchives at webpage www.azimafridi.com

18. (vi)The Hon’ble Judge and his family members are constantly traumatized, disgraced, ridiculed, defamed and his career destroyed for which the Hon’ble Judge is justified to seek damages to the tune of rupees of one billion.

19. (vii)That the Hon’ble Judge and his family members are facing recurring mental torture for the above reasons and for the events likely to happen in future to the tune of rupees one million per month as the recommendations of the Judicial Commission in the above stated meeting being highly illegal, immoral and offending would be a source of constant torture for the Hon’ble Judge.

Through this legal notice you are therefore informed and requested to present the grievances of the Hon’ble Judge for rectification and payments as compensation for trauma and tortures referred to above within a period of 15 days otherwise the Hon’ble Judge would be constrained to sue all concerned for remedy and reliefs available to him under the Constitution and law.

Mian Muhibullah Kakakhel

Senior advocate Supreme Court Pakistan

A copy of this notice is kept in record and another sent to the Secretary Law and Justice Division for information and necessary action at his end.

WRIT PETITION FILED IN THE PESHAWAR HIGH COURT  

Mr. Muhammad Azim Khan Afridi S/O Malik Zar Khan, (Additional Judge Islamabad High Court, Islamabad) presently under report to Peshawar High Court, Peshawar                                      PETITIONER

VERSUS

1. The President of Pakistan through Ministry of Law & Parliamentary Affairs Division Islamabad

1. Govt. of Pakistan through Ministry of Law & Parliamentary Affairs Division Islamabad

1. The Secretary, Judicial Commission of Pakistan, Supreme Court of Pakistan, Islamabad                         RESPONDENTS

PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN 1973

Respectfully Submitted that:

1. That the petitioner was serving as District & Sessions Judge in the Province of Khyber Pakhtunkhwa, when elevated as Additional Judge Islamabad High Court against the seat reserved for FATA,
2. That after taking oath of office as Additional Judge, the petitioner has discharged his duty and performed his functions meritoriously, honestly & with dedication so much so that right from the date of taking oath of office the petitioner had not availed any leave even for one hour and has worked hard, day and night in order to deliver and come up to the expectation of the community of FATA in general and the nation, public litigants and other stakeholders in particular.

1. That while performing as Judge, the Chief Justice Islamabad High Court started assigning administrative duties to the petitioner immediately after his elevation.

1. That vide circular no. Reg./IHC/2011/5021 Dated 24/11/2011, the Hon’ble Chief Justice Islamabad High Court nominated the petitioner to get completed the process of independent functionality of both the Civil District & Sessions Divisions of Islamabad Capital Territory by suggesting ways & means for

(i) Bifurcation of Judicial work,

(ii) Appointment of the Judicial Officers

(iii) The allied staff,

(iv) Their housing &

(v) Taking of all necessary steps in that regard.

5.               That the petitioner was also appointed by the Hon’ble Chief Justice as “Inspection Judge” for the District Judiciary, Islamabad (East & West) & “In-charge Judge” of Judicial Branch of Islamabad High Court. That the petitioner successfully performed the said duties and achieved the said targets apart from other important assignment & thus successfully brought the High Court on the desired track.

1. That Mr. Atiq-ur-Rehman, Ex-Registrar Islamabad High Court (now posted as OSD) who claims to be inducted in the District Judiciary by the Chairman Judicial Commission & allegedly enjoying close contacts with him was transferred from the office of Registrar and posted as OSD by the Hon’ble Chief Justice Islamabad High Court. That the said Registrar approached the Chairman Judicial Commission for cancellation of his transfer order which request of the Chairman of the Judicial Commission was regretted by the Hon’ble Chief Justice Islamabad High Court. That the said event, apart from annoying the Registrar & Hon’ble Justice Muhammad Anwar Khan Kasi, also annoyed the Chairman Judicial Commission and the episode was falsely attributed the to the petitioner.

1. That the transfer of the said Registrar exposed numerous illegal appointments made in the High Court & District Judiciary made prior to elevation of the petitioner while certain appointments were made later on during the establishment of District Judiciary at the instance of tall & influential entities. The petitioner, being in-charge of the project wanted to annul the said process which also annoyed the Chairman & certain other members of the Judicial Commission.
2. That meeting of Judicial Commission of Pakistan was convened on 22.10.2012 wherein Hon’ble Mr. Justice Muhammad Anwar Khan Kasi was also   invited & allowed with an ulterior motive & preplanned scheme so as to charge & malign the petitioner.

1. That Hon’ble Mr. Justice Kasi was neither holding the post of Chief Justice nor the senior most Judge of Islamabad High Court and as such he was debarred from participation in the meeting & influencing other members with his opinion. (The petitioner reserves his rights to proceed against all concerned in accordance with law).

1. That participation of the Hon’ble Mr. Justice Muhammad Anwar Khan Kasi was neither a constitutional obligation nor required in view of clause 14 of Art. 175-A of the Constitution which explicitly debars seating a substitute.

1. That the career & future of the petitioner was purposely destroyed for the above reasons & without any justification or reason, tangible or intangible, when he was not considered for confirmation in-spite of meritorious record, hard work, excellent decisions &, additionally, improving the administrative working in accordance with written directions of the Hon’ble Chief Justice Islamabad High Court.

1. That the charges, what-so-ever, are never conveyed to the petitioner though the same was & always is a mandatory requirement of Constitution & law. That for discovering the reasons & securing the material, the petitioner addressed a letter dated 25^th October, 2012 to respondent No.3 which is yet to be answered & order thereon conveyed to the petitioner “Copy of the letter is Annexure-A”.

1. That apart from the above a representation was also preferred to the Judicial Commission through respondent no.3 which is also kept maliciously undecided. Copy of the same is annexed as Annexure “B” while copy of seniority list showing Hon’ble Mr. Justice Riaz Ahmad as senior Judge is  Annexure “C”

1.  That the true facts are maliciously concealed by the Judicial Commission in order to avoid accountability & liability & to maliciously inflict   damage to the bright future career of the petitioner apart from humiliating the dignity & honor of the petitioner, his family & community. Needless to add that the petitioner & his family is undergoing mental stresses & trauma due to offending action of the Judicial Commission regarding which the petitioner has also served a legal notice claiming damages & redress therein, copy whereof is annexed as Annexure “D”

1. That, strangely and surprisingly, the petitioner has been allowed to join the District Judiciary to serve as District and Sessions Judge though he has been ostensibly ousted on the charges assassinating the character of the petitioner. Had the petitioner been found involved in such activities the petitioner would have never been allowed to serve as District & Sessions Judge. This aspect of the case clearly indicates malice, abuse & misuse of authority by the members of the Judicial Commission.

1. That the petitioner instituted a constitutional petition in Islamabad High Court for procuring the said illicit documents however neither the constitutional petition was heard till date nor the said documents were provided to the petitioner clearly establishing the fact that there are no material available with the respondent no.3 warranting removal of petitioner. Copy of the Constitutional petition for procuring documents is annexed as Annexure “E”

1. That it has come to the notice of petitioner that the petitioner was punished by the Chairman Judicial Commission in connivance with certain other members of Judicial Commission due to a judicial pronouncement in W.P. No.2009 of 2012 titled “Ch. M. Naeem Ali advocate and another -VS- Federation of Pakistan through Secretary, Ministry of Interior and three others” & Writ Petition No.2076 of 2012 titled ”Advocate, Malik Abdul Sattar Awan  Versus Federation of Pakistan through Secretary, Ministry of Interior and three others” which constitutional petitions were heard and dismissed by a Division Bench graced by Hon’ble Mr. Justice Riaz Ahmad (who was not recommended as Chief Justice in-spite of seniority) & the petitioner as the judgment was authored by the petitioner & the convict Muhammad Basharat (a guard of Malik Riaz, Bahria Town) was acquitted on the basis of Presidential orders remitting the sentence (Copy annexed as Annexure “F”
2. 17.              That Peshawar High Court Bar Association has also expressed serious concern over the recommendation of Judicial Commission of Pakistan made in its meeting dated 22/10/2012. Copy of resolution is annexure “G”

1. That after the illegal & offending ouster of the petitioner the summary of two Hon’ble Judges namely Mr. Justice Shaukat Aziz Siddiqui & Hon’ble Mr. Justice Noorul Haq N Qureshi was submitted to the president. That the said summary & another summary of the Judicial commission for appointing Mr. Justice Muhammad Anwar Khan Kasi as Chief Justice was returned & the President of Pakistan sought opinion of the Supreme Court under Art.186 of the Constitution which opinion is yet to be given by the August Supreme Court of Pakistan. The opinion sought for by the President of Pakistan on questions of law will have direct bearing on the case of the petitioner as a question of law regarding participation of Mr. Justice Kasi in the meeting & validity of such meeting is also made the subject matter of the reference & in such eventuality the proceedings & recommendations in the said meeting would be vitiated being void.

1. That the respondent no. 2, on the basis of a short order passed by Supreme Court of Pakistan in case of one Nadeem Ahmad Advocate has moved a summary for approval of the President of Pakistan without waiting for the opinion of the Supreme Court of Pakistan which is mandatorily required as desired by the President of Pakistan & which the August Supreme Court of Pakistan is going to give within a couple of days. Additionally the petitioner was maliciously not made a party to the said petition with an object to damage his career without affording him an opportunity of being heard.
2. That the antecedent of the recommended Judges are to be enquired into by the respondents no.1 & 2 & that without such enquiry the respondent no.3 would be achieving the desired result by appointing such Judges who lack the essential credentials.
3. That action of respondent no. 2, in view of the above, is malicious, contrary to law & mandates of constitution & therefore requires immediate interference by this Court in its extraordinary Jurisdiction of this Court.
4. That the petitioner has got no other adequate & alternate remedy & that this Hon’ble Court has got the Jurisdiction to entertain the constitutional petition & grant the relief.

It is, therefore, prayed that meeting of the Judicial Commission dated 22/10/2012 and its proceedings may kindly be declared illegal, without lawful authority, coram non-judice, malicious and of no legal effect.

It is further prayed that the respondents be restrained from passing / issuing any orders/ notifications detrimental to Constitution & law.

It is further prayed that the respondent no.1 may graciously be directed to perform his functions in accordance with the constitution of the Islamic Republic of Pakistan and the law and not to accept any recommendation contrary to his constitutional functions, official conduct and without verification of antecedents and credentials of the recommended judges.

It is also prayed that the respondents be directed to provide opportunity of hearing to the petitioners.

Interim Relief

It is earnestly prayed that till the decision of the constitutional petition respondents be restrained from passing/ issuing any adverse orders/ notification against the interest of the petitioner.

It is further prayed that the respondent no.3 be directed to produce the record before the court for perusal on the next date of hearing

Petitioner 

Dated: 26/12/2012  Through Mian Muhibullah KakaKhel                                                             Senior Advocate, Supreme Court of Pakistan.

IN THE PESHAWAR HIGH COURT, PESHAWAR 

Mr. Muhammad Azim Khan Afridi ———— (PETITIONER) 

VERSUS                

The President of Pakistan & 2 others —— (Respondents)

 APPLICATION FOR SUMMONING OF RECORD

1)      That the above-captioned writ petition has been filed along with the instant application, wherein no date of hearing has been fixed so far.

2)      That the petitioner instituted a constitutional petition in Islamabad High Court for procuring the said illicit documents however neither the constitutional petition was heard till date nor the said documents were provided which deprived the petitioner from availing certain legal remedy available to him under the law.

3)      That requisitioning of the above said record is essential for just decision of this writ petition.

4)      That the petitioner has prima facie case and is sanguine of its success.

It is therefore prayed that minutes/record of meeting of Judicial Commission of Pakistan convened on 22.10.2012 may kindly be summoned/requisitioned from respondent No.3 for just decision of this writ petition.

Supreme Court Needs to Direct its Attention to Judicial Reforms

Open letter to the chief justice of Pakistan -by Imtiaz Gul

On August 8, 2012, Yaseen Azad, President of the Supreme Court Bar Association, drew your attention to an extremely pressing issue, i.e., massive pendency at various courts. He requested the apex court to attend to cases other than those revolving around the NRO.

Mr Azad’s statement relates to the heavy pendency that the judiciary currently faces. The Supreme Court’s annual report covering the period between April 2010 and December 2011 speaks of a staggering pendency of 17,246 cases. Add to them another 620 cases, at least, so far this year, according to a monthly news magazine.

The courts in Punjab, e.g., face a pendency of some 1.6 million cases, including over 700,000 civil cases awaiting decisions since March 2011 in lower and high courts. The pendency at courts in Sindh, Balochistan and Khyber-Pakhtunkhwa is equally staggering. This is disturbing if viewed against the new judicial policy developed under your august guidance. This policy had stipulated a maximum of six months for adjudication of civil cases.

On several occasions and at an international judicial conference in April this year, you expressed your commitment to ending the backlog through quicker settlements. However, the cases keep mounting due to deterioration of law and order and abuse of law.

Honourable chief justice, an admirer of the activism you have demonstrated in public interest litigation, I would like to humbly state that the relentless pursuit of the NRO cases has led to the perception of the highest court being driven by political motives. This undermines the esteemed and extremely important office that you and your colleagues hold.

While public sector litigation deserves urgent attention, it also puts limits to the extent to which apex courts can go. Doesn’t the superior court run the risk of losing sight of its primary function, i.e., serving as the guardian and interpreter of fundamental human rights, when it overwhelmingly stretches itself into what is usually the executive’s domain (checks on prices, television censorship and graft cases, for example)?

While the Supreme Court’s proactive moves on various counts came across as a major unprecedented consolation for the hapless millions that continue to suffer under the ruling elite’s abuse of power, poor governance and corruption-plagued system at the lower court level, the Court needs to guard against the hazards that its activism brings with it. Do the highest courts get themselves involved in the constitution of commissions (media, memo, Abbottabad) or act as consumer protection cells?

Interventions in human rights issues, abuse of state power and resources have indeed raised the stature of the apex court but nullification of the privatisation of Pakistan Steel Mills or indecision in the Reko Diq case — so vital to the interests of people of Balochistan — are some examples where the Court was seen lacking and oblivious to economic dictates.

Pakistanis will remember all justices if the justices manage to set new benchmarks for the accountability of public representatives and the ruling elite and ensure rule of and respect for law. This must be the end goal for the Court instead of spending time on cases that are administrative or political in nature.

 

Supreme Court Justice Saqib Nisar Gives One Lac Out of His Own Pocket to an Italian Female Litigant

The PPP Government Keeps Making a Joke of the NRO Verdict

On June 10, 2010, the five-judge bench of the Supreme Court, set up to oversee implementation of the court judgment on the National Reconciliation Ordinance, summoned the acting Law Secretary Syed Sultan Shah for June 11, along with a summary sent by his ministry to the PM on implementation of the NRO verdict that requires reopening of Swiss cases involving President Zardari. It expressed its displeasure over a 13-page reply submitted by the federal government. On June 11, it rejected the summary and ordered a fresh one to be prepared.

At the last hearing, the court had asked Law Minister Babar Awan to submit a concise statement after he said that the PM was seized with the tricky issue of reopening Swiss cases, but there were some “grey areas and legal intricacies”.

“I am feeling disturbed,” Justice Jawad S. Khawaja said after reading the statement. He said that all institutions had one function to adhere to the Constitution.

Addressing Attorney General Maulvi Anwarul Haq, Justice Khawaja said he feared defiance of the Supreme Court verdict would have serious implications, adding that it was a duty of the attorney general to guide the government.

“There are fallouts and implications like Article 6 (high treason) of the Constitution for not implementing the judgment,” Justice Khwaja warned.

He said that many sitting on ringside seats were waiting for a showdown, but “we are acting with great caution since it is our desire to see the sapling of the nascent democracy to nurture. It can only be possible by adhering to the Constitution. But for the last six months after the judgment we are still groping in the dark”.

The judge also referred to Article 5, which demands complete obedience to the Constitution, and Article 190, which empowers the Supreme Court to call any authority in its aid.

Justice Raja Fayyaz Ahmed wondered whether was it not the responsibility of the prime minister to take the judgment seriously. “Why is he reluctant? This is a mockery of the law, the Constitution and the court’s judgment. How long will we tolerate,” the judge remarked.

Justice Mulk made it clear that the court could not go beyond the NRO judgment, saying no way the judgment could be left in lurch.

In its statement, the government accused former senator Saifur Rehman (of the PML-N) of victimising Benazir Bhutto and Asif Zardari. Without any reference to the law division, AG office or foreign affairs division and even without intimating the former Chief Ehtesab Commissioner, Mr Rehman directly met Federal Police Officer Beat Frey, handed over certain documents and asked for international legal assistance.

The government alleged Mr Rehman also resorted to gross misrepresentation when he wrote a letter on Sept 8, 1997, to Mr Frey and cited at least 200 cases of corruption before the Supreme Court against Mr Zardari and Benazir.

“It appears from the letter that Mr Rehman was purportedly acting on behalf of the then government as the letter quoted him as saying to Mr Frey that he would personally come to extend thanks of the government of Pakistan to the government of Switzerland.”

The government said when Swiss officials insisted that the request should be made only by an authorised officer to launch prosecution against the accused in Pakistan, a letter was written on Sept 20, 1997, on an official letterhead of then attorney general, the late Chaudhry Mohammad Farooq, but signed by Hassan Wassem Afzal (joint secretary serving as staff officer of Saifur Rehman).

“Apart from committing this act of misrepresentation, the personal venom and vengeance motivating Saifur Rehman will be manifestly clear from the letter of Oct 10, 1997, in which he proposed to give a complete list of the accused and mentioned the name of Zulfikar Ali Bhutto at serial 5. Needless to say this was done 18 years after his death.”

The government said that prior to pronouncing indictment against Mr Zardari and Benazir Bhutto that was later suspended, Investigating Magistrate Daniel Devaud also pointed out in a document that he was under immense pressure.

It was in this background, the reply said, that former law secretary Justice (retd) Aqil Mirza had stated in his report that no case or trial was pending and that the investigation was closed by the attorney general for Geneva.

Criticism of the Supreme Court by Shafiq Awan

Justice should be blind, not deaf and dumb

Shafiq Awan/ Daily Times

Nodoubt the Supreme Court did a wonderful job and for the first time in history, we saw sacred cows at the mercy of the court, otherwise they were considered to be above the law and we salute the Chief justice Mr Iftikhar Muhammad Chaudhry and his team for being so courageous.

The deprived feel a sense of strength and pride as every one was being honked with the same stick, which called – justice is blind – treating every one setting aside someone’s status.

Finally NAB has written letters to the Swiss government for the reopening of Swiss cases.

The question is, if the government had done it now, why did it delay this action and embarrass itself?

But every one felt that during Tuesday’s (March 30/ 10)proceedings, the accused were humiliated and the Supreme Court’s remarks were taken in bad taste.

Ali Ahmed Kurd, former president of Supreme Court Bar Association, and many others felt this bitterness and had their own interpretations. Kurd was of the view that he was afraid of the time when the appeals of his clients would be heard in the Supreme Court. Kurd is an emotional person and his commitment with the independence of judiciary is undoubted and the chief justice (CJ) should weight his arguments.

The Supreme Court is the last mercy and through their act, people should not get the impression that mercy could not be that ruthless. Kurd quoted Jamshed Dasti, former member of national assembly, and said he was humiliated by the court. I was also shocked when he recited the holy Quran and the right answers to the question asked by court to a few TV anchors, why he could not answer in the court.

His point of view was t hat he was confused and under pressure due to his respect for the court. Such aggressive and humiliating stance by the Supreme Court is painting a different picture in the public. Although people have argued when you leave your answer-papers blank in the examination hall, you can not blame the examiner as you were under pressure. Even in that case he should not be humiliated. Ahmed Riaz Sheikh’s council Rashid A Rizvi remarks that the Supreme court snubbed him on defending Sheikh in the court.

To me, the judge should speak through his decision but not his grudges. On Tuesday, news channels were painting the judiciary like a horror movie in which cruelty prevails and not sense. Even my kids were confused and terrorised when they were reading the tickers in which the government officers were praying to the court for mercy in the name of God and the Holy Prophet (peace be upon him), but their pleas were rejected. We are living in a civilised society and not in a barbaric era.

The court can simply punish them if they were not abiding by the law instead of humiliating them and spreading a sense of insecurity among the masses. The Supreme Court could at least direct the electronic media to avoid spreading sensationalism, which is not in favour of the Supreme Court as well. Ahmed Riaz Sheikh might have deserved more punishment, but not the humiliation he received.

TV talk shows are creating a perception that judiciary might have played a role in Nawaz Sharif’s U-turn over judges appointment. There arguments said that Nawaz was told that pending cases against him would be reopened if he supported the proposed amendments over the judges appointment recommended by the PCCR and agreed by his party as well.

These channels are also talking that the president’s wings would be clipped first then it would be his turn. Is it a service to judiciary? Please stop such nonsense discussions and do not hurt the judiciary’s respect and honour.

I disagree with this perception as the judiciary has nothing to do with what politicians are doing. Nawaz Sharif is habitual in betraying as he did with Muhammad Khan Junejo when he sided with Ziaul Haq, then his party while taking a solo flight to Saudi Arabia through striking a deal with the dictator Mushrraf and now backstabbing parliament on the 18th amendment by his U-turn. The judiciary should not be blamed for his acts.

However the argument carries weight as to why Zardari and his team was targeted for accountability. Nawaz Sharif’s dozen of cases are pending in the courts. Why is he immune? Now TV shows are talking about Punjabi Supreme Court as no Judge from Sindh or Balochistan are in the Supreme Court bench? This allegation could be for the sake of allegation and have no weight. But leg-of-mutton sleeve policy should not be applied and both parties should be dealt even-handedly. Justice should be blind, but not deaf and dumb.

Only across the board accountability could save Pakistan. Justice should not be a beauty for a certain group and a beast for others. 

Supreme Court NRO Judgment Will Not End Corruption: Aitzaz

Mr Aitzaz Ahsan was interviewed by the Asian Human Rights Commission on the detailed judgment of January 19, 2010 of Pakistan’s Supreme Court regarding the issue of the National Reconciliation Ordinance (NRO).

Issued by former military dictator General Musharraf, the Ordinance provided legal amnesty to numerous government officials, businessmen and politicians who were faced of corruption charges.

Aitzaz Ahsan in his interview, while strongly supporting the judgment of 17 judges, discussed every aspect of the judgment including the articles 62 (f) and 227, pertaining to disqualification of a parliamentarian and Islamic criteria for the members of the parliament introduced by a former military ruler, General Zia, and says that both the above are progressive caveats in the judgment. They rule out recourse to vague and unspecific concepts in the future.

About article 62 (f), Aitzaz says that judgment takes the teeth out of Article 62(f) for all times (being a ruling of 17 judges). Only a person finally convicted by the highest appellate forum can hence forth be presumed to be foul of Article 62(f).

He also explicitly denounces that the judgment was discriminative, against the politicians and biased and says that in many respects it is the first time such a strong judgment by a larger bench of as many as 17 judges, has come with respect to the issue of corruption.

About the possibility of elimination of corruption by the judgment of the court, Aitzaz was of the view that corruption will become a more prominent subject and no possibility that any judgment will eliminate corruption altogether, it will be a serious blow to people who want to indulge in corruption and corrupt practices.

About the judges who took oath under provisional constitutional order (PCO), Mr Ahsan said that the judges who took oath under the martial law imposed by General Musharraf came into a different category than judges who had previously endorsed military takeovers.

Following is the full text of Mr. Aitzaz Ahsan’s interview:

Question: What are the effects of this NRO judgment on the overall human rights movement?

Aitzaz Ahsan: Well, basically, to determine the effect of the NRO, particularly in the light of human rights, we must first examine its scope and span. The NRO promulgated under Article 89 of the Constitution, which permits the president and head of the executive to pass and promulgate temporary laws and temporary legislation for a maximum of 120 days when the National Assembly is not in session, and there is an emergency requirement for legislation. This is legislation by the executive. It is temporary legislation, it is to be employed in the rarest cases, although it is frequently employed as a practice in Pakistan.

I will walk through the facts to clarify the position. Several ordinances had been passed by General Musharraf under Article 89 in exercise of the executive power to pass temporary legislation for 120 days when the National Assembly was not in session before he proclaimed the emergency on November 3rd 2007. Some more were promulgated during the Emergency (Martial Law). When he proclaimed the Emergency, Musharraf suspended the Constitution and he gave a permanent life to all these ordinances by inserting an Article 270AAA in the Constitution, declaring all Ordinances to be permanent laws and not liable to expiry after 120 days. The NRO had been promulgated on October 5, 2007, so its 120 days were still to expire when the emergency was proclaimed and Article 270AAA was inserted into the Constitution by the fiat of one man, General Musharraf, not by the fiat of Parliament.

In the judgment of July 31, 2009 in the Sindh High Court Bar Association petition, the Supreme Court held that everything that General Musharraf had done, – which included suspending the Constitution, amending the Constitution, providing a new oath for the judges, providing a provisional constitutional order known as the PCO, arresting judges, dismissing judges, – was illegal and all his steps were unconstitutional. This meant that the indefinite life given to Ordinances, which otherwise had the limited life of 120 days, by virtue of Article 270AAA was also struck down. Therefore, the NRO could also remain alive for only 120 days from October 5, 2007 to February 3, 2008, provided, that is, it was a valid law. Despite this ruling, the court, by an extra-constitutional measure, allowed Parliament four months starting from July 31, 2009, the date of its judgment to validate and enact these laws as Acts of Parliament. This was done in recognition of Parliament’s right to le gislate.

Now another significant event took place concerning the NRO. There are several laws, out of 37 affected Ordinances, that Parliament endorsed and enacted as permanent laws, but it did not enact the NRO as a permanent law. The NRO, therefore, even as per Parliament, and at best, had no life after 120 days ending on February 3, 2008.

Only one issue therefore remained: whether the NRO, for those 120 days also, was a valid law or was it ultra-vires of the Constitution and therefore void ab-initio? Did it conflict with the Constitution even for those 120 days and even at its very inception? If so, it would be non est, non existent, and a stillborn piece of law. That is what the Court has now held. In its short order on December 16, in Dr. Mubashar Hassan’s Petition, specifically relating to the NRO, (and elucidated in the detailed judgement of January 19, 2010), it has struck the NRO down completely. It has wiped it off the slate of legislated laws and from the statute books completely.

The question: what is the impact of the NRO, and what is the impact of its being struck down on the human rights situation can thus be addressed now in the above perspective.

Since the NRO had not been made permanent law by Parliament itself with retrospective effect the only issue that remained is: was it a good law even for the 120 days or not? If it was a good law, then how many people took benefit of it?

Out of 180 million people, 8041 individuals, maybe more individuals because 8041 cases were affected as in some there would be multiple accused. But 8041 prosecutions were stalled and were discontinued by the effect of the NRO. Details have not been provided, but what is known, and what has been stated by ministers and by the acting attorney general and the advocates general of the four provinces, is that these cases involve prosecutions for corruption, for murder, for Dacoity, for rape and in many cases, convictions had been accorded. The accused or the convicts were given immunity and indemnity by the NRO.

So the span of the effect of the NRO is only with respect to the cases decided under it from October 5th 2007 to February 3rd 2008 and if it had been valid law for that period, then 8041 cases would have been settled and finished under it. By the NRO Short Order given on December 16th 2009, (and the detailed judgement give on January 19), the court has set aside and washed away completely the effect of the NRO, declaring it void ab-initio, and therefore, of no effect whatsoever. So what happened between October 5th 2007 and February 3rd 2008 was that 8041 cases were withdrawn and now those 8041 cases have been revived. Many of these cases are of grievous offences.

If a convict is arrested again on grounds that he was proven guilty of murder or rape or gang rape or arson or such other offences, robbery, Dacoity, corruption, would it be a human rights matter? But if the victim’s point of view is to be seen, then probably the revival of these 8041 cases do not really impinge on human rights. But each case would have to be taken up on its own facts without a general law of amnesty.

Question: Why is it said that the decision only targeted 25 politicians, whereas there were 8041 cases under the NRO?

Aitzaz Ahsan: Well, I believe that among the 8041 cases there are something like 45 or 46 allegations against politicians also; people who are or have been members of Parliament or ministers. So it is true that there are cases against parliamentarians or former parliamentarians that were compounded or terminated under the NRO, and these news been revived by the judgment of December 16th 2007, which declared that the NRO is void ab-initio. But the political element appears to be a small minority compared to the cases which have been withdrawn under the NRO for other crimes, some of which were heinous crimes.

Question: What was the need to target politicians when there are so many other cases? Why hasn’t the judgment discussed the criminal cases?

Aitzaz Ahsan: In the detailed judgment there are two categories of cases discussed by the Supreme Court: Cases (a) Within Pakistan and (b) Cases outside Pakistan. In the latter category there was only a few. These came under the focus of the Court primarily because of the incident in which 12 cartons of documents related to that one such case were removed from Geneva while the NRO petition was being heard by the Supreme Court in Islamabad. The other reason, perhaps, that it has been focussed upon in the Detailed Judgment, is the barrage of criticism that the Court came under after the Short Order. Judges also live in the same society and are exposed to media and press reports. The reason they probably went to some length in justifying attending to this aspect, and drew from precedents in which authorities in other jurisdictions had vigorously traced and chased proceeds of corruption, was this criticism that the Court had gone beyond its ambit and prece dent. What is important is that a bold line on corruption, which is an element militating against due process, rule of law and human rights, has been drawn.

Question: And can we say that this decision could lead to the elimination of corruption or that corruption will be discussed more than other things, like political issues?

Aitzaz Ahsan: Well, corruption will become a more prominent subject and while I don’t think any judgment will eliminate corruption altogether, it will be a serious blow to people who want to indulge in corruption and corrupt practices. It will greatly discourage corruption and is a striking blow on people who want to enjoy the proceeds of corruption and crime. So it’s a positive step in many respects and it’s the first time such a strong judgment by a larger bench of as many as 17 judges, has come with respect to the issue of corruption. Otherwise, there have been vague and non-authoritative observations, there have been prosecutions and convictions and appeals and convictions set aside in appeals, or sentences set aside in appeals by the subsequent executive order. In the absence of the will of executive authorities in the past six decades to suppress corruption, the court now appears interested in taking up not only the general prec epts of the elimination of corruption, but wants to take hold of the nuts and bolts of the system and provide for mechanisms which will discourage the corrupt and corruption.

Question: Why are the cases only against politicians and not the judiciary, who we know are also corrupt, and people are unable to attain justice without paying bribes?

Aitzaz Ahsan: Except for judges of the superior court, that is the high court and the Supreme Court, and that is about 80 individuals who have their own method of accountability, whether good or bad, that is a constitutional matter, then under Article 209, they go before the Supreme Judicial council in case there are allegations of corruption against them.

The court is interested, it seems, to provide for mechanisms in the fight against corruption. Not just general broad principles, but the mechanism also. It’s a step forward, not backwards, because corruption is one of the most primary elements in the suppression and destruction of human rights.

Question: so what about this Article 62F was also referred in Article 227? Why was there need for this coming at 227?

Aitzaz Ahsan: In our tradition the court has to advert to every argument and point submitted by either party at the Bar. Whatever the counsel raise, the court has to address. These Articles form part of the judgment because vigourous reliance was placed upon them by the attorneys for the petitioners. The court could not avoid discussing matters raised, and raised with some passion, by M/s Hafiz Pirzada and A.K. Dogar, advocates, in their submissions.

Even otherwise there has been much discussion and debate on Art.s 62-f and 227 in the media recently. In fact for several decades now Courts too have been engaged in frequently hearing contradictory arguments relating to their effect. There is, accordingly, lengthy discussion on these Articles in the detailed judgement also. But what is reassuring is the way these controversies have been put to rest in this decision. In one way this is perhaps the first judgement that effectively shuts the door to the random, indeed any possible, use of both.

About the possible use of Article 62(f) in knocking out a Parliamentarian on the vague and unspecific notions that he is not “sagacions” or “ameen” the Court rules, despite these being express provision of the Constitution that:

“It is true that Section (sic) 62(f) of the Constitution cannot be considered self executory but if a person involved in corruption and corrupt practices has been finally adjudged to be so, then on the basis of such final judgement, his candidature on the touchstone of Article 62(f) of the Constitution can be adjudged to the effect whether he is sagacions, righteous, non-profligate, honest or amen.” (para 114).

This takes the teeth out of Article 62(f) for all times (being a ruling of 17 judges). Only a person finally convicted by the highest appellate forum can hence forth be presumed to be foul of Art. 62(f).

Similarly, the Court had to address the issue of Article 227 at length only because prolonged arguments were addressed on behalf of Dr Mubbashar Hassan by his attorney, Mr Hafiz Pirzada. There was indeed lengthy discussion of Article 227 and recourse to Islamic criteria and yardsticks from the bar. The Court, as per practice, had to deal with these arguments in its detailed judgement. And, refreshingly, 17 judges of the Supreme Court have unanimously and the first time, ruled out unspecific challenges on grounds of Precepts of Islam, the morality and conscience of the Constitution or any other principle except the strict letter of the Constitution itself.

“We may add a word of caution since there is a tendency among some litigants to invoke such precepts of Islam as do not have universal acceptance even among the jurists and schools of Islamic Sharia, or who will invoke, on vague and unspecific grounds, recourse to the morality and conscience of the Constitution or to international conventions. These cannot be invoked as a matter of course, and certainly not to strike down formal legislation or executive action which is otherwise found to be within the scope of the Constitution and the law. The Constitution remains supreme and the primary reason for striking down the NRO has been its being ultra vires the express and stated provisions of the Constitution. The observations relating to the application of Article 227 and to the morality and conscience of the Constitution are only further supportive observations that can be construed as a reconfirmation of the essential and inherent invalidity in the light of the other express provisions contained in the Constitution. The primary touchstones remain the other provisions of the Constitution specified in the judgment.” (para 139).

Both the above are progressive caveats in the judgement. They rule out recourse to vague and unspecific concepts in the future.

Question: But it is generally said that the judgment has encroached upon the powers of the executives and disturbed the balance of institutions, particularly the executive and judiciary.

Aitzaz Ahsan: What is being said is that because it provides for a monitoring process of the judges and of the investigative machinery which is under the executive, therefore, it has encroached upon the executives’ domain. The superior courts in Pakistan have for the last 62 years been giving directions to the executive with respect to investigations and matters that related to prosecutions. Everyday, police officers are given directions and their progress is monitored, prosecutions are monitored. So this is not something unique that the Supreme Court has done. And moreover, it is in the interest of the accused.

In these cases, the main complaint of the accused was that prosecutions were inordinately delayed. And the court has probably taken this up on that ground also that prosecutions should not be delayed.

Question: The government says that it has started a reconciliation process, and the NRO is about political reconciliation. So how do we choose between corruption and reconciliation?

Aitzaz Ahsan: I don’t know what is meant by reconciliation in this context, it is titled Reconciliation Ordinance, but it relates only to prosecutions within a certain time period from January 1st 1986 to October 12th 1999. Anybody who has committed the same offence outside these dates is subject to criminal law. Anyone who has committed offences within this period are the beneficiaries of immunity. That is what it says really. It is difficult for me to comment on the area of reconciliation that it really spans.

Question: And you think that corruption is more important than reconciliation?

Aitzaz Ahsan: Well, reconciliation is very important in politics. But in my estimation, this law is not about political reconciliation, it is basically about the withdrawal of prosecution and the acquittal of people convicted of serious crimes. That is the matter of the law. It is called a reconciliation ordinance, but that is the obvious application of this law.

Question: The thing is this period of the NRO, which according to Justice Nasir Aslam Zahid that army generals take this period as the political era. And they think that whenever there was a military government, there was no corruption. So why was this period of time taken, and not other periods of time?

Aitzaz Ahsan: Well that is a defect in the law. It is one of the reasons the law was struck down. It is discriminatory. It discriminates between a convict or an accused who has committed a certain kind of offence outside these dates and a person who has committed the same offence within these dates. So obviously, this was discriminatory. In fact, I had advised Mohtarma Benazir Bhutto at that time that it was likely to be struck down in a court of law, on the grounds that it favours people within a certain span of time and secondly, it favours only holders of public office. What about the ordinary citizen who has committed the same offence and is not a holder of public office? The giver of bribes may be an ordinary citizen. He will be tried and the bribe he has given to the person who has received the bribe, in the same transaction will be exempt from trial because he is the “holder of public office”. Actually, he should be more responsible and more liable to trial than the ordinary citizen, even though both have committed the same offence and both are jointly and equally responsible and liable. But the holder of public officer is held while the person who gives the bribe is considered a criminal.

Question: The judiciary has legalized martial laws. So why do they think that they only have amnesty and not the politicians? Is there any need to try those judges who have given sanctions to the military government?

Aitzaz Ahsan: Well, unfortunately, Parliaments have, (first)by the two-thirds majority in the 8th Amendment and (second) two-thirds majority in the 17th Amendment, legitimized military takeovers and legitimized therefore, judges supporting these military takeovers and taking oath under the military dictate. The military intervention of November 3rd 2007 is distinct only to the extent the Parliament did not validate or legitimize it and has not done so to this day. So the judges who took oath under the martial law imposed by General Musharraf came into a different category than judges who had previously endorsed military takeovers.

I personally think they should all be lumped together, but the Parliament and Constitution really discriminate and hold them apart because every military takeover that was legitimized and validated by the judges was also validated by Parliament in earlier times, except the November 3rd 2007 takeover which was not validated.

Question: there are millions of cases where the chief justice after restoration has announced judicial policy. But this judicial policy is not working, there were hundreds of thousands of cases this year, more added in the courts, so how will this judiciary provide justice to the common man?

Aitzaz Ahsan: In the judicial policy, a monitoring mechanism has been set up. And I think they are taking reports each month from every district and almost every time the Supreme Court registrar has been holding press conference and announcing how many cases have been decided, they run into hundreds of thousands of cases every month. So I personally think it is having an effect, particularly the monitoring mechanism, because the lower courts are not ready now to adjourn cases. There is certainly a speeding up of the judicial process. How far it can go is another matter. But there is certainly a visible speeding up of the judicial process because of the new judicial policy.

Question: The judiciary speaks so much, passing remarks in the cases of disappearances, not asking intelligence agencies to come, in spite of so many people saying they have been in military torture cells. What is the role of the judiciary? Just passing remarks?

Aitzaz Ahsan: It’s also the media. The media picks up every word, every sentence that comes from the lips of a judge and makes a story out of it. So it’s a mix of speaking judges and media activism.