by Ansar Abbasi
ISLAMABAD: General (retd) Pervez Musharraf can be tried under Article 6 of the Constitution for his November 3, 2007 action as well as for his October 12, 1999 martial law, but the 18th Amendment gives constitutional cover to the PCO oath taken by superior court judges in 2000.
Although the 2008 parliament scrapped certain parts of the 17th Amendment passed by Musharraf’s parliament in 2004, the 18th Amendment endorses the indemnity of the oath of judges under PCO taken in 2000.
Therefore, as per the Constitution Musharraf could be tried for high treason for twice abrogating the Constitution, once in October 1999 and again in November 2007, but the judges who had taken oath under Musharraf’s PCO in 2000 are protected by the pre as well as post 18th Amendment Constitution.
Musharraf’s 12 October 1999 martial law, which was indemnified by the 2002-2007 Parliament under dictator’s rule, did not get the 2008-2013 parliament’s endorsement but the dictator’s consequent actions including the oath of judges in 2000 under the PCO got complete constitutional protection in the 18th amendment.
Those media commentators, politicians and opponents of the present independent judiciary, who are desirous of dragging others including the PCO judges of the 2000 PCO, in the high treason case are making an unconstitutional demand. The 18th amendment despite having declared the 2000 PCO as unlawful protected the superior court judges, who had taken the said oath, through 270AA (3), which reads as:
Judges of the Supreme Court, High Courts and Federal Shariat Court who were holding the office of a judge or were appointed as such, and had taken oath under the Oath of Office (Judges) Order, 2000 (I of 2000), shall be deemed to have continued to hold the office as a judge or appointed as such, as the case may be, under the Constitution, and such continuance or appointment, shall have effect accordingly;
Judges of the Supreme Court, High Courts and Federal Shariat Court who not having been given or taken oath under the Oath of Office (Judges) Order, 2000, (I of 2000), and ceased to hold the office of a Judge shall, for the purposes of pensionary benefits only, be deemed to have continued to hold office under the Constitution till their date of superannuation.”
Musharraf’s parliament through its 17th Amendment, had validated/indemnified the October 1999 martial law of Musharraf besides giving constitutional protection to all other president’s orders, ordinances, chief executive’s orders, including the Provisional Constitution Order No. 1 of 1999, the Oath of Office (Judges) Order, 2000 (No. 1 of 2000), Chief Executive’s Order No. 12 of 2002, the amendments made in the Constitution through the Legal Framework Order, 2002 (Chief Executive’s Order No. 24 of 2002), the Legal Framework (Amendment) Order , 2002 (Chief Executive’s Order No. 29 of 2002), the Legal Framework (Second Amendment) Order, 2002 (Chief Executive’s Order No. 32 of 2002) and all other laws made between October 12, 1999 and the date on which Article 270AA was inserted by Musharraf’s parliament in 2004.
As the previous parliament could not completely scrap the 17th Amendment, therefore, it gave partial indemnity to all presidential orders, laws etc that justified the consequential actions of Musharraf’s first martial law. The 18th Amendment also did not indemnify the November 3, 2007 action of Musharraf but gave constitutional cover to the general elections of February 2008 as announced by the former dictator.
Supreme Court has ordered to public lal masjid commission report and told the government to give it to anyone requesting for it. In the report the commission has put the blame of innocent loss of lives on General (R) Pervaiz Musharraf and his team at that time including former Prime Minister Shaukat Aziz.
There were some issues in the report which are still a subject of great like the body count and who died. Reportedly, according to the commission report some 103 people were killed in the operation including 92 civilians and 11 security personnel. They also said that no woman was killed in the operation.
However, according to several accounts from lal masjid students, prominent journalists and religious leaders, there were much casualties including women and children. Those who were killed, also allegedly included mother of Abdur Rasheed Ghazi and Abdul Aziz.
Before jumping on any conclusion, we need to take this report very carefully and in full context.
There are two parts of the issue:
a) circumstances in which the operation happened:
The commission interviewed people involved in negotiations and from establishment. based on that they put the blame on government for unnecessary loss of innocent lives. they have recommended DIYAT for the victims and also mentioned that they can go for QISAS as well.
b) ground evidence and number count of bodies and who died:
They had to rely on people sitting in ISI, MI or IB to get ground intelligence on that.
A good thing Supreme Court has done is that they have told the government to make the report public and so it will be a good chance for victim families and supporters to come forward and challenge the given figures based on possible lies of ISI, IB and MI or other govt. agencies. We need to know that most of the relevant ground evidence was destroyed by Army when they shut down the area.
Tahir al Qadri, another dirty game of establishment and their foreign masters to hijack the momentum of change
After all the thought process and failed attempts to hijack the momentum of change being developed, Pakistani establishment and their foreign masters in USA/UK have come up with another puppet named Tahir al Qadri.
It seems all the pressure on MQM by Scotland yard for Imran Farooq murder case was to make them support this game and stay in their limits by accepting the role of a sidekick instead of growing beyond their given size and role.
MQM, ANP, PPP, PML and JUI have done so many crimes that its very hard for them to take a stand against establishment and their masters in USA/UK. Imagine if they can be forced to accept arrangements in local politics because of their criminal record then how can they take any stand (if they have any) on issues related to foreign policies, war policies and other important areas?
Apparently Tahir al Qadri’s mission is to hijack the slogans, confuse the masses by using similar points as used by anti status-quo parties and then present this hijacked revolution in the plate of Pakistani establishment and their masters abroad.
It seems propaganda against Imran Khan on stupid tape issue, Zaid Hamid letter to Imran Khan attacking his loyalty to the country and presenting him as security risk, and propaganda against Chief Justice Iftikhar Chaudhary especially on sectarian lines and Arsalan Iftikhar case are part of the same dirty game plan.
Its a big test now for Pakistan Tehreek e Insaf (PTI), Jamat e Islami (JI) and other smaller parties to come up with a counter strategy and stand above their petty issues to counter this evil plot by Pakistani establishment and USA/uK.
Next election will again be on fake war on terror policies, independent judiciary, missing persons, NRO and other important issues on which establishment is on the opposing side of judiciary and parties who support judiciary and oppose this fake war.
Many people are stupid enough to be fooled by this ass hat Tahir al Qadri and his fake agenda of change and now we need to see how the forces of change in politics, media and civil society can counter this attack.
Statements by Chief Justice of Pakistan and Army Chief –> We support the Supreme Court, Chief Justice and the Constitution
In past few days there were some statements given by Chief Justice of Pakistan Iftikhar Muhammad Chaudhar and Army Chief General Ashfaq Prevez Kiyani. According to media reports, Kiyanis words were (from Pakistan Today):
“Any effort which wittingly or unwittingly draws a wedge between the people and armed forces of Pakistan undermines the larger national interest.”
Also he said:
“No individual or institution has the monopoly to decide what is right or wrong while defining the ultimate national interest.”
These words may not seem very harmful but if we look them in the context of Asghar Khan case and recent proceedings of missing persons cases in the
Supreme Court then one can get some idea about the possible target of the statements.
On the other hand, SC released a speech of CJP which he gave earlier but the timing of releasing the speech to media seems to be interesting and apparently it is related with the statement by Army Chief. In the speech, honorable Chief Justice of Pakistan Iftikhar Muhammad Chaudhary renewed his stance to protect the constitution.
According to media reports, he said:
“Gone are the days when stability and security of the country was defined in terms of number of missiles and tanks as a manifestation of hard power available at the disposal of the state,” the chief justice said while speaking to a delegation of the 97th National Management Course, National School of Public Policy and National Management College Lahore at the Supreme Court building.
Also he said:
“The composition, powers and jurisdiction of the Supreme Court are set out by the Constitution itself and the court exercises original, appellate, review and advisory jurisdictions and its decisions are binding on all other courts of Pakistan,”
I am glad that he acknowledges the struggle by the justice loving people of Pakistan who didn’t buy Musharraf’s national interest or national security type bogus cards and supported the judiciary.
“The present day Supreme Court is alive to the fact that it has been restored to its original position by unprecedented struggle carried out by a consort of such professional classes as lawyers, students, media persons and civil society at large.”
If I have to choose between judiciary and useless army, I will choose judiciary and constitution. It seems army chief is upset because of Asghar Khan case and missing persons cases. Also people like IK have openly said that if he will be in power then generals will also be made accountable in front of the law. Indeed these are some disturbing times for anti-Pakistan corrupt mercenary generals. Army will be the biggest hurdle in any genuine change against the forces of evil and status-quo. Prime example of Army’s support to status-quo is NRO which was given to the corrupt political and bureaucratic elite.
Kiyani needs to understand that if they follow the constitution and respect the principles of justice, human rights and freedom then people will not criticize them. Exceptions are those who are working on foreign agenda but if we look into it then we can see that most of them were supported by Army because of the pro-war stance by these people. If army wants respect then they have to come out of this American war and leave their role of mercenary army. They also need to focus on defending the country instead of taking part in political activities or taking control of land and economic resources of the country. Also accountability of culprits in the institution is also required to improve the image of the institution. We need a credible or even a strong defense but not at the cost of freedom, justice and human rights.
We support CJP and SC. Its our moral and constitutional responsibility to protect the constitution and country from these evil Khakis who only know how to serve their lust of power. They only love that Pakistan which is under their boots and we have to change this situation and inshaAllah it will be changed in a good way.
by Babar Sattar
The writer is a lawyer based in Islamabad.
The chief justice did the courageous thing by taking suo motu notice of the clandestine affair between Malik Riaz and his son Arsalan Iftikhar that had spread like wildfire through a crafty whispering campaign. And after putting the judicial wheels in motion to hold to account his son and Malik Riaz, and throwing his weight behind affixing the liability of the two in a transparent and impartial manner in an open court, he did the right thing by recusing himself from the case. Those who argue that the accusations rooted in gossip should have been shrugged off are wrong. The conduct in question might be that between two private individuals, but one of them being the CJ’s son, the insinuation was that illegal gratification was offered and accepted to influence the outcome of court cases pending before the Supreme Court.
From the disclosures made by journalists so far it is obvious that documents and accounts (and probably even videos?) were meticulously kept to drag the name of the CJ through dirt and consequently bring into disrepute the integrity and credibility of the apex court. The matter therefore didn’t relate to the CJ alone, but would bring under cloud the competence of the highest court of the land to dispense justice not adulterated by considerations of favour. And this in turn would bring into question the very notion of the existence and utility of rule of law in Pakistan by lending credence to the view that (i) law is not a shield for the weak but a weapon in the hands of the powerful to keep in subjugation the lesser mortals in society, and (ii) unimpeachable integrity is a defunct concept as every mortal is up for sale at the right price.
Such jaundiced view of the state and society is not a figment of cynical imagination but is rooted in the reality that the ordinary Joe is confronted with on an everyday basis. By all rational accounts we are living in a kleptocracy: a government of the extortionist, by the extortionist, for the extortionist. The state is in default of its contract with the citizen. You no longer have an entitlement to your rights even if you do your duty as a citizen. And consequently you have to pay for everything, even to protect your most basic rights to life, liberty and dignity. And if you are ready, willing and able to pay, it doesn’t matter if what you seek is right or wrong. State largesse flows through channels of personal patronage. Personal loyalty trumps merit. There is no distinction between honest and dirty money. And there are no principles remaining, only interests.
And consequently instinct demands that one accumulate as much wealth and influence as possible and use it to build social networks of protection to replace the role of the state. And it is people like Malik Riaz, who have mastered the ways of this ‘brave new world’ where money buys influence, influence yields more money, and with the use of money and influence to cajole the powerful and coerce the weak there are no limits to what you can accomplish. But not everyone in this state and society is comfortable with the rules of our evolving kleptocracy. And when someone who has reached the highest echelons of power within the state, like the CJ, refuses to be bought or otherwise inducted within the kleptocracy, the stakes go through the roof.
Within the kleptocracy that we are referring to, the kith and kin of the powerful do exceedingly well. Why should it be surprising that the mediocre son of our CJ grew a sense of entitlement to receive preferential treatment and climb the ropes without paying his dues? Does such lack of discretion and propriety reflect poorly on Iftikhar Muhammad Chaudhry, the father? It probably does. But does it undermine his integrity or credibility as a judge and a public-office holder? Absolutely not. In exposing the dealings between himself and Arsalan Iftikhar, Malik Riaz has used the nuclear option. Why would anyone need to employ means of last resort in the event that quiet persuasion is working? According to media accounts, Malik Riaz leaked details of sponsoring the merry-making of Arsalan Iftikhar because his investment wasn’t paying off.
So what we have so far is this. By his own account, Malik Riaz paid Arsalan Iftikhar to influence the outcome of judicial proceedings pending before the Supreme Court. Was he forced to do so because the wily Arsalan was blackmailing poor Mr Malik? Improbable, and Mailk Riaz would need to adduce evidence to establish that he was at the receiving end of this clandestine relationship with the imprudent 34-year-old. As Arsalan Iftikhar was not holding court and adjudicating cases implicating Malik Riaz, he would in fact need to establish that the CJ was in fact blackmailing him while using his son as an agent. Without this, and in view of information disclosed by Malik Riaz himself, he could be charged for offering illegal gratification to influence a public servant.
This could make him liable under Section 165-A read with Sections 162 and 163 of the Pakistan Penal Code as well as Section 9 of the NAB Ordinance. If it were established that Arsalan Iftikhar accepted the gratification with a view to influence the discharge of functions by the office of the CJ or other public servants due to the exercise of his personal influence, he could also be liable under Sections 162 and 163 of the PPC. Now that details of this scandal are out in the open, it is essential for the apex court not to take a narrow view of this affair in the event that Malik Riaz backs off and doesn’t adduce any evidence before the court, but instead exercise its inquisitorial powers to collect and decipher facts to ensure that both Malik Riaz and Arsalan Iftikhar are held to account for their actions in accordance with the law.
In this debate, Malik Riaz must not be seen as a solitary individual. He might be a good friend, a loving father and a rich man who believes in charity. But he is also a phenomenon that highlights the growing predatory instincts of our society. This phenomenon has cultivated the myth of infallibility and immortality of the powerful within the society. It has defeated the conventional wisdom that if you are caught with hands in the cookie jar society holds you to account and respectable folk refuse to associate with such delinquents. It has established that irrespective of personal repute, money can buy the best professional assistance. It has proven that if cut a piece of the pie everyone is willing to play ball. This phenomenon has established an ethic of success that labels right and wrong as irrelevant for those who aim for upward professional and social mobility.
The CJ’s commendable action of dragging his son before an open court and laying his ethical failings in plain public view is a defining moment in the fight between continuity of the depraved status quo and the desire for change. As nothing succeeds like success, the strength of the entrenched kleptocracy is rooted not in its popularity but in its efficacy. Our ruling elites – across the political class, the khakis, the bureaucracy, the media and the lawyer fraternity etc – are mostly its beneficiaries.
The few who still have qualms about meddling in grime have turned apathetic having made their peace with the ‘ground reality’ they cannot change. In this environment, the action of the CJ to stand by law and principle, even as he subjects himself and his family to public scrutiny and possible embarrassment, has provided a unique opportunity to stand up and fight the kleptocracy. We must not fitter this opportunity away.
Arsalan to be punished in accordance with the law if proved guilty: Chief Justice–> Great to hear that in Pakistan
Just went through some of the remarks during the case proceedings in Arsalan Iftikhar and Malik Riaz case, shared by Nadeem Malik and Umar Cheema on facebook.
Here are few of the remarks:
Arsalan to be punished in accordance with the law if proved guilty: Chief Justice
We’re the followers of Muhammd (PBUH) who said he won’t spare if his daughter Fatima (RA) found guilty: Justice Khilji.
We’ll not spare anybody who tried to ruin the institution of judiciary, be he’s my son: Chief Justice
If Arsalan found guilty, law will take its course: Chief Justice
Great to see that happening in Pakistan.
Chief Justice summons his son on reports of financial impropriety –> Great to see that. We support you CJP
It was a great news to hear that Chief Justice of Pakistan has summoned his own son and Malik Riaz in Supreme Court regarding the report of financial impropriety. Government , Malik Riaz Hussain (Real Estate Mafia lord who runs his business with the help of Army and Government) and other corrupts were trying to corner Supreme Court using this issue. Recently Shaheen Sehbai , a respectable name in the media of Pakistan, uncovered the story in an online interview.
It was a good move by CJP Iftikhkar Muhammad Chaudhary to counter this government conspiracy against the judiciary. Government is trying its best to give a bad name to SC especially after the decision on NRO case. They wanted to repeat what Musharraf did in 2007 but this time justice loving people and honest people in media are ready to deal with the situation.
We are with you Mr. Chaudhary as long as you are giving decisions based on the principles of justice and rule of law. We know army, government and their corrupt allies in feudal and corporatist class are trying to undermine the judiciary but we will do whatever we can to support good actions of Supreme Court of Pakistan.
ISLAMABAD: Taking note of reports of financial impropriety circulating on various social media platforms and media channels, Chief Justice of Pakistan Mohammed Iftikhar Chaudhry sent notices to Dr Arsalan Iftikhar and Malik Riaz, Express News reported early Wednesday morning.
Malik Riaz Hussain is the chief of Bahria Town. Dr Arsalan Iftikhar is the Chief Justice’s son.
A notice has also been sent to the Attorney General of Pakistan
The case is due to be heard on Wednesday June 6, 2012 (today) by a three-judge bench headed by Chief Justice Iftikhar Chaudhry himself.
The Chief Justice had taken a suo motu notice of the reports circulating and has summoned the two men allegedly involved in the matter.
Express News correspondent Faisal Shakeel reported that according to sources, the reports on which the suo motu was taken suggest that Dr Iftikhar had taken between Rs300-400 million from Malik Riaz. Shakeel said that the impression given by some of these reports was that the sum was being exchanged on behalf of the Chief Justice for disposing off cases pending before the Supreme Court.
Shakeel clarified that the case at this point in time is not against any one and once hearings start on Wednesday, would seek to establish the authenticity of the reports.
By Sohail Khan
ISLAMABAD: The Supreme Court on Friday issued notices to the heads of secret agencies, directing them to submit a report by November 25 pertaining to 11 prisoners who had gone missing from the Adiala Jail, Rawalpindi.
A three-member bench of the apex court, comprising Chief Justice Iftikhar Muhammad Chaudhry, Justice Tariq Parvez and Justice Ghulam Rabbani, was hearing a case of 11 missing prisoners of the Adiala Jail, allegedly handed over to secret agencies by the jail authorities.
The court issued notices to the heads of secret agencies, including the Inter Services Intelligence (ISI), Intelligence Bureau (IB) and Military Intelligence (MI), seeking their comments on the disappearance of the 11 prisoners.
Attorney General Maulvi Anwarul Haq again told the court that the whereabouts of the 11 missing prisoners could not be found. He informed the court that he had approached the concerned authorities, including the Interior Ministry, but they denied having any information about the whereabouts of the missing prisoners.
Online adds: It may be recalled that it is for the first time in history that notices have been issued to heads of intelligence agencies in a case.The AG said that intelligence agencies personnel wanted to tell the court something secretly.
“The case is in open court. No talks can be held with the intelligence agencies in separation. Evidences are available under whose custody the prisoners are kept. The court should not be forced to go to extreme end. If matter proceeds further, more complications will arise. The country cannot afford a clash among the institutions. Action will be taken against all the persons involved in this incident indiscriminately. All will have to appear after the reply is received. It can lead to dire consequences if the matter is not resolved soon,” the CJP remarked.
The chief justice noted that it was not appropriate for him aswell as other judges to meet them in chamber and observed that everyone should respect the court and avoid disharmony. He said the apex court was responsible for safeguarding its constitutional obligations, keeping in view Articles 9,25,4 and 10-A of the Constitution.
The CJP asked the AG, “You are Amicus Curiae of the court, therefore, you should play your role for resolution of this problem.” When the court resumed the hearing after the intermission, the AG said the intelligence agencies were holding the same stance that these prisoners were not in their custody.Meanwhile, the court adjourned the hearing till November 25 after issuing notices to heads of the intelligence agencies.
PAKISTAN: Zarina Marri has been missing along with 429 persons since December 2005;The life of a disappeared student leader is in danger–>AHRC
After the 18th February 2008 elections it was expected that the newly elected government would try to improve the human rights situation and give some relief to the families of victims. But this proved to be another shattered dream of people blinded by their faith and hope, which soon turned into disbelief on the system for many.
It is amazing that in the time of elected government with new army chief and intelligence chiefs no actions were taken against those involved in these illegal and inhuman activities during the former dictator’s rule.
The statements by the Asian Human Rights Commission given below raises more questions about the seriousness of our government to solve the issue of missing persons.
PAKISTAN: Zarina Marri has been missing along with 429 persons since December 2005
FOR IMMEDIATE RELEASE
January 23, 2009
A Statement by the Asian Human Rights Commission
PAKISTAN: Zarina Marri has been missing along with 429 persons since December 2005
The Asian Human Rights Commission has received further details in the case of Ms. Zarina Marri, a 23-year-old schoolteacher from Balochistan province, who has been held incommunicado in an army torture cell at Karachi, the capital of Sindh province and used as a sex slave, please see our statement; http://www.ahrchk.net/statements/mainfile.php/2009statements/1843/
The officials of the education department of Kahan have disclosed that Ms. Marri was a teacher at a government middle school in Kahan, Kohlu district, she was registered as Zarina Bi Bi and she was trained as a Junior Vocational Teacher. She was among those people who were transferred from Kohlu, Kahan, Sibi, Hernai, Much, Kohlo, Dera Bugti, Sabsilla, Bhambhoor, Loti, Dhaman, Pir Koh, Spin, Tangi, Babar Kach, Tandori and Sangan of the Balochistan province during December 2005 and July 2006 when the military government of the then President/General Musharraf was using aerial bombardments to defuse the nationalist movement of Balochistan against the construction of cantonment areas. On 14 December 2005, paramilitary troops accused the people of the area of firing eight rockets at a paramilitary base on the outskirts of the town of Kohlu, a stronghold of the Marri tribe, while President Pervez Musharraf was visiting it. After the visit of President/General Musharraf, within three days of the rocket firing incident, the paramilitary forces began attacking vast areas including the Kahan. It is reported in the media that the military government used the Pakistan air force for bombarding the area. During the fighting between local nationalist militants and the government forces particularly, due to the aerial bombardments, the local population started migrating to other places including to Punjab and Sindh provinces. Please also see urgent appeal of AHRC;
http://www.ahrchk.net/ua/mainfile.php/2006/1872/ dated July 21, 2006.
After some days around 429 persons left the Kahan, district Kohlu, and migrated towards Dera Ghazi Khan district, Punjab province, Zarina Marri and her parents were also among the caravan. Since then there is no trace of the caravan of 429 persons. After some months people tried to search the missing people and some army officers deputed at the Kohlu district told the people of the area that so many persons were killed in the fighting between the government forces and militants and also in aerial bombardments. But after the revelation from Mr. Munir Mengal, managing director of Baloch language television channel, to Reporters without Frontiers (RSF) that Zarina Baloch was in military torture cell at Karachi and was forced in to sexual slavery, the concern of the people of Kohlu, Kahan, and Dera Bugti has risen about the people of the 429 persons which includes more than 70 women, including many young women, who may be used as sex slaves by the Pakistan military.
The government of Pakistan has still not initiated any serious efforts to investigate the case of Ms. Zarina Marri, despite, of continuous demonstrations in several parts of the country including, Islamabad, capital of country for the recovery of Zarina Marri from the military torture cell at Karachi and halting the business of making young Baloch women work as sex slaves by the Pakistan army. The government’s ignorance of the serious crimes by the military officers during Musharraf’s regime is evidence for the people in the country that the present government still does not have the power to investigate the military misdoings.
The case of Miss Zarina Marri has ignited the narrow nationalist and secessionist feelings of the ethnic Baloch nation which can easily turn into a bloody mutiny against the state if the cases of sex slavery by the military torture cells are not investigated. The Asian Human Rights Commission urges the government to initiate a probe for the recovery of 429 people who are missing since December 2005. The government should also bring the persons who made Marina Marri work as a sex slave before the law regardless of how powerful they are or whether they are military persons.
For further information please see:
PAKISTAN: The life of a disappeared student leader is in danger
Source : http://www.ahrchk.net/statements/mainfile.php/2009statements/2400/
FOR IMMEDIATE RELEASE
February 4, 2010
A Statement by the Asian Human Rights Commission
PAKISTAN: The life of a disappeared student leader is in danger
The life of a student leader who was arrested by state intelligence officials is in danger. It is apprehended that he might have been killed. The government of Balochistan says that he was released on January 22, 2010, but his family members have said that he has not yet returned home. They have inquired after him at all local police stations, asking if he was booked under another case, but have not been able to find him.
Mr. Zakir Majeed, a student leader, was allegedly abducted by state intelligence agents on June 8, 2009 from Mastung, near Quetta. Majeed is the senior vice chairperson of the Baloch Student Organization, Azad. His alleged abductors drove up in two cars without number plates and asked the young man a few questions, saying that they were intelligence agents.They took Majeed away with them in their cars without making any charges. One car was a Toyota Vego, the other a Toyota Surf SSR. After UN Special Rapporteurs on Disappearances wrote letters about Mr. Majeed’s disappearance, his release was announced by the National Crisis Management Cell (NCMC) For more details of the case, please see the following link, dated June 10, 2009; http://www.ahrchk.net/ua/mainfile.php/2009/3175/.
The UN Working Group on Enforced or Involuntary Disappearances (WGEID) has taken up Mr. Majeed’s case after the submission of the WGEID form by the AHRC. After an intervention was made by the WGEID, the government announced on January 22, 2010 that Mr. Majeed had been released. The Balochistan High Court also ordered that an FIR (First Investigation Report – a legal document for police investigation) be filed for Mr. Majeed. Until this point, the police refused to register the young man’s disappearance, and a case of habeas corpus was up for regular hearing before the High Court of Balochistan. On January 27, 2010, a police official at Khuzdar Police Station of Balochistan, asked the younger brother of the victim, Mr. Waheed Majeed, to file the FIR before the Mastung Police Station. He did so, but the FIR was not entertained. After an intervention was made by higher-ranked police officers, the FIR was finally lodged. On February 2, 2010 Mr. Aslam Bizenjo, Provincial Minister for Irrigation telephoned Mr. Waheed to inform him that according to the list provided by the NCMC, his brother had been released. The Provincial Minister then asked him to speak with Mr. Akbar Durrani, the Home Secretary of the Balochistan government for further details. The Home Secretary confirmed that Mr. Zakir Majeed had been released on January 22, according to the NCMC list published on its website.
These conflicting pieces of information about Mr. Zakir Majeed’s disappearance have created a great deal of confusion in the minds of Mr. Majeed’s family and the human rights activists who are working for his release. In many past cases, the bodies of the disappeared have been found abandoned on roadsides after courts have ordered for their release, or family members of the disappeared person in question testified in courts that the arrest was done by intelligence agents.
The Asian Human Rights Commission urges the provincial government of Balochistan and federal government of Pakistan to secure the safe release of Mr. Zakir Majeed immediately. Since government officials have already confirmed Mr. Majeed’s safe release, we call upon these officials to be held accountable for these confirmations of safety, and urge these officials to take direct action to reunite Mr. Majeed with his family.
Enforced disappearances of civilians and the perpetual lack of thorough investigation by state officials has become so common that the sanctity and dignity of each human life is being ruthlessly compromised in the name of personal or professional gain. The AHRC calls upon the government of Pakistan to take a strong stand against corruption at all levels of its justice system and take steps towards rebuilding the rule of law in the country.
Musharraf was denied immunity in CJP restoration case
By Ansar Abbasi
ISLAMABAD: The critical issue whether the president enjoys immunity under Article 248 of the Constitution was categorically and specifically decided by the Supreme Court and it was denied to former president Pervez Musharraf in the case of restoration of the then-deposed chief justice Iftikhar Mohammad Chaudhry.
While the short order in the case given on July 20, 2007, by a 13-member bench, headed by Justice Khalilur Rehman Ramday, restored the chief justice, in its detailed judgment of the same case, given just 35 days ago, no room for any ambiguity has been left.
The detailed judgment, which did not receive much legal or media attention, addressed the issue, which Prime Minister Yousuf Raza Gilani has now referred back to the Supreme Court in his speeches in the National Assembly, and gave reasons and past references to deny immunity to a sitting president, even in criminal cases as provided for in Article 248 of the Constitution.
The detailed judgment issued on Dec 24 clearly states: “…allegations of mala fide had been levelled against the person of the president by no less a person than the chief justice, no exception could be taken to implead the president as a respondent…”
Responding to objections raised in 2007 by the then-government (of Gen Musharraf), over impleading the then-president, the detailed judgment also refers to several previous judgments on this specific issue of Article 248 and cites examples where such immunities were not accepted.
The Ramday judgment refers to mala fide actions of Gen Musharraf and ruled in Para 107: “As would appear from the averments made in this petition, some of which have even been noticed in the earlier part of this judgment, the mainstay of the case of the petitioner, the chief justice of Pakistan, is that the entire exercise in question had been commenced for collateral purposes and suffered from mala fides which was sought to be established, inter alia, through the chief justice of Pakistan being summoned by the president to the Army House/President’s Camp Office; detention of the chief justice at the said office for about five hours; attempts made to secure the resignation of the chief justice under duress and through coercion; the alleged illegal detention of the wife and the children of the chief justice in their house and the alleged unconstitutional removal of the chief justice from his office and appointment of acting chief justice of Pakistan. Since such serious allegations of mala fide had been levelled against the person of the president by no less a person than the chief justice of Pakistan, no exception could be taken to implead the president as a respondent in this petition, which was in fact imperative in view of the above-mentioned precedent cases.”
Interestingly, this judgment says the president can be impleaded for his actions of illegal detention of the chief justice, his wife and children, etc. All these actions are of criminal nature, which a sitting president ordered, but the Supreme Court did not give him immunity under Article 248(2), which says no criminal proceedings can be initiated or continued against a sitting president. The Constitution does not give immunity to president or any other public office holder in civil matters.
Referring to the objection raised that Gen Pervez Musharraf, the president of Pakistan, had been impleaded in the said petition as one of the respondents, which was seen by the then government as against the provisions of Article 248(1) of the Constitution, the judgment reproduced the said Article, which reads as: “The president, a governor, the prime minister, a federal minister, a minister of state, the chief minister and a provincial minister shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a province.”
Many past judgments were also quoted by the Ramday judgment of Dec 24, 2009. It said that such an immunity clause had been examined by the Privy Council in HB Gills case (AIR 1948 Privy Council 148) and the reaction of the Privy Council to such-like protective provisions was as under: “Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus, a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a government medical officer acts or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.”
The judgment added: “In our jurisdiction the pleaded Article 248 came up for interpretation in Chaudhry Zahur Elahi’s case (PLD 1975 SC 383). The scope and the operational area of the said provision was so stated by this court: “…the immunity provisions must, in accordance with the accepted principles of interpretation, be construed strictly and unless persons claiming the immunity come strictly within the terms of the provisions granting the immunity, the immunity cannot be extended. The immunity is in the nature of an exception to the general rule that no one is above the law.”
The matter was further explained in these words: “Hence, since neither the Constitution nor any law can possibly authorise him to commit a criminal act or do anything which is contrary to law, the immunity cannot extend to illegal or un-constitutional acts.”
This court, the judgment said, when confronted again with the protection provisions of Article 248 in Amanullah Khan’s Case (PLD 1990 SC 1092) reiterated that the said provisions were required to be strictly construed and added in para 56 that: “If mala fide of fact was pleaded by a party then it had to decide for itself whether on the material with it, the minister has to be impleaded in spite of the protecting provisions of the Constitution; because if his act does not fall within the purview of the provision so interpreted, then he can be impleaded as a party and all objections to such impleadment dealt with in the proceedings. In the absence of the party, no finding with regard to mala fide of fact (as distinguished from mala fide of law) can be recorded, should be recorded and should have been recorded. Recourse to the principles of natural justice to overcome the prohibition contained in Article 248 of the Constitution is not permissible.”
“It was further declared: “Protection under Article 248 of the Constitution is not available to the designated functionaries if their actions suffer from mala fide of fact where the allegation against the protected functionaries is one of mala fide of fact, they have to be personally impleaded as a party to the proceedings;”
“The views of Nasim Hassan Shah J in the same case are also enlightening for the resolution of the issue in question. His views were: “Now the immunity to a minister extends only to the exercise of powers and performance of functions of his office or for any act done or purported to be done in the exercise of those powers and performance of those functions. A minister can be said to be acting in exercise of the powers and functions of his office, if his acts are such which not only lie within the scope of the powers and functions conferred on him by law but are performed bona fide and for carrying into effect the intention and purposes of the statute under which, he is acting. If on the other hand his acts are performed with mala fide intent or for a colourable purpose, such acts will not be deemed to have been performed in the lawful exercise of the powers and functions vested in him and will not, therefore, be covered by the immunity. Accordingly, where it transpires that a minister has acted illegally and abused his discretion and the illegality committed was not in the bona fide exercise of his powers and functions but on account of mala fides the immunity contained in Article 248(1) would not extend to protect such an act.”
Similar views were expressed by this court in Nawabzada Muhammad Umar Khan’s Case (1992 SCMR 2450) which were as under: “Secondly, where allegations of mala fide of fact are involved or alleged, it is necessary that the parties against whom such mala fide of fact is alleged must be impleaded as a party so that it has occasion to meet the allegation. This is notwithstanding the constitutional protection enjoyed by such functionaries under Article 248 of the Constitution vide Amanullah Khan and others Vs the Federal Government of Pakistan through secretary, Ministry of Finance, Islamabad, and others (PLD 1990 SC 1092).”
While there are such specific rulings and judgments given by the Supreme Court itself, the latest being on December 24, 2009, a new case filed by Khalid Khwaja is again before the Supreme Court to give another judgment on the subject.
The prime minister has promised in Parliament that he would act if the SC clarified the ambiguity, although after reading the Dec 24, 2009, judgment of Justice Ramday, there is no ambiguity left, an expert said, lamenting that perhaps no one in the government had bothered to go through this detailed judgment that has squarely discussed the issue of President’s immunity.