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Supreme Court’s correct decision and PPP attempt to come out as victims.

February 13, 2010 1 comment

PPP and Zardari especially have shown their incapability to run their country and hide their corruption.
In order to overshadow their weaknesses they are trying to go in a clash with institutions and other forces especially judiciary so that they can come out as victims.

The recent notification of President Zardari is also an attempt in this direction.

Supreme Court has rightly suspended the unconstitutional notification of Zardari to appoint the judges against the advice of Chief Justice.

In cases where president or governor or anyone requires consultancy means they need to consult the office whose consent is required for must. And the office being consulted needs to agree with the position otherwise the decision will not be implemented.

However in case of an advice given by the office whose consultancy is required for must, the advice needs to be implemented. It not only happens in SC CJ but also for PM advice to President, CM advice to governor and Provincial HC advice to government.

The office which needs consultancy (here presidency) cannot take the decision on their own on the matters where consultancy is required.

SC also has the duty (not only right) to interpret the wordings of the constitution. This
is not only in case of Pakistan but in most part of the world including so-called mother of
democracy, UK.

In this case which comes under article 177 the situation is same. Article says:

177. Appointment of Supreme Court Judges.
(1) The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice.

(2) A person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan and-

(a) has for a period of, or for periods aggregating, not less than five years been a judge of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or

(b) has for a period of, or for periods aggregating not less than fifteen years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day). “

The role of president here again is of just giving Presidential approval.
This is adapted from British system where in issues like these “Royal Assent” is required and even if it is not given due to some reason it is assumed that it is given after some given period but in this case formal approval is required.

According to the interpretation in Judges Case or Al-Jihad Case,in the appointment of the Supreme Court Chief Justice seniority principle will prevail and senior most will be made the Chief Justice (This was done to ensure judicial independence from executive discretion).
The issue currently is of new appointments in Supreme Court as Justice where the
consultation is binding on the president not the seniority principle.

Similarly in appointments of the High Court judges the consultation from CJ  is binding on the president according to article 193.

SC once again proved their independence and their will to strengthen the judiciary by stopping the PLUTOCRATS to damage the federation for their evil goals.

Delaying the appointments of judiciary in High Courts is also an attempt by government to not only undermine judiciary but also to frustrate the common man from judiciary.

Another motive is to start a seniority issue between judges to break their strength but this also has failed.

For once we need to go for across the board accountability without becoming a prey of illusions created by the players of National Security Card, Democracy Card, Shaheed Card, Ethnic Card, Sectarian or any other Card.

Anyone who wants strong Pakistan instead of few faces ruling the country cannot afford a weak judiciary.

Also, the commitment for free judiciary shown by Justice Saqib Nisar and Justice Khwaja Shareef is appreciable.

Army must keep itself away from another confrontation with the civil society

It will be a serious debacle to the social and national integrity of Pakistan if General Kiyani decides to intervene in favour of General (R) Musharraf and his dictatorship.

According to media reports the current PCO-SC of Abdul Hameed Dogar may call the army to help Supreme Court (PCO-SC) in abstaining the National Assembly to revoke the November 3 2007 actions by Dictator Musharraf.

The media reports say that PCO-SC may use article 190 which obligates all the executives to act in aid of the Supreme Court BUT the executives must remember that the constitutional SC is of Honorable Chief Justice of Pakistan Iftikhar Chaudhary not of Abdul Hameed Dogar so if the article 190 is invoked it should be in aid of Justice Iftikhar Chaudhary and the Supreme Court which he heads constitutionally.

For the army and military establishment we can only pray that they will keep themselves away from another confrontation (or a possible clash) with the civil society of Pakistan and for the dictator we can only say,” Quit your position,have mercy on Pakistan and stop playing with the constitution and integrity of Pakistan”.

WE LOVE OUR ARMY(IT’S OUR OWN ARMY), WE RESPECT IT VERY MUCH AND IF THE TIME COMES WE WILL FIGHT ALONGSIDE WITH THEM (AGAINST THE ENEMY NOT JUDICIARY OR OUR OWN PEOPLE) BUT WE WANT THE ARMY TO ACT ACCORDING TO THE CONSTITUTION AND TO FOCUS ON THEIR ORIGINAL DUTY (POLITICS IS NOT THEIR JOB).

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Related Report:

A new crisis brewing for General Kayani(The News)

By Ansar Abbasi

ISLAMABAD: Despite the legal wrangling on the highly controversial action, the ball will be thrown into the court of Chief of Army Staff Gen Ashfaq Kayani if the Supreme Court calls the Army to its aid, apparently to subvert the restoration of the deposed judges by parliament.

The Supreme Court action, some legal minds say, may spell disaster and chaos given the prevailing charged environment in favour of reinstatement of the sacked judges with two main winning parties having vowed to restore them.

Even on the very first meeting of the National Assembly that was meant just for its swearing in, the Pakistan People’s Party (PPP) and Pakistan Muslim League (PML-N) made it quite evident that they do not accept the Nov 3 constitutional amendments, which paved the way for sacking of the superior courts’ judges. The two leading partners of the future coalition government — the PPP and the PML-N, which together have 212 members in the National Assembly — have already committed on March 9, 2008 in the Bhurban Accord that they would restore the pre-Nov 3 judiciary through a parliamentary resolution.

If the chief judge decides to invoke Article 190 of the Constitution, which says, “All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court”, and calls the Army in aid of the apex court than such a thing would happen for the second time in the history of Pakistan.

During the second term of Nawaz Sharif, the then chief justice Sajjad Ali Shah had also written to the then Army Chief Jahangir Karamat and sought the military help but he and the GHQ he was heading did not find the chief justice’s request valid for consideration and referred the same to the defence ministry, which is part of the executive.

A simple understanding of Article 190 lays bare the fact that the request to call the Army can’t be made directly to the military and it has to be routed through the executive. But at the same time, there are some constitutional experts, who argue the Supreme Court could directly call the Army.

One of the top legal aides of the government, on condition of anonymity, also argued that the Army could not only be called “to act in aid of the Supreme Court” but also be ordered by the Supreme Court to do the same.

The same legal aide claimed that the purpose of the Full Court meeting is firstly to show solidarity and give clear signal to all and sundry that the post-Nov 3 judiciary is united, and secondly, possibly to consider the option of writing to the Army Chief “to act in aid of the Supreme Court”.

He said if the next government restores deposed judges through a parliamentary resolution and revert the Supreme Court to the pre-Nov 3 situation then who would be there to protect the post-Nov 3 judiciary. The legal aide denied that he was part of a recent presidency meeting, which continued till 4:30 in the morning.

Gen Kayani has already put in a lot of effort ever since becoming the Chief of Army Staff to redeem the respect of the Army. He has not only directed the men in uniform to keep themselves away from politics and political leaders but also issued orders for the return of Army officers from civil institutions back to the GHQ.

The Kayani-led Army also received kudos for its impartial role during general elections. Although the Supreme Court’s order is generally binding on every institution, the present situation is a complex one.

The standing of the present Supreme Court is being questioned by the vast majority of parliamentarians, the legal fraternity, the civil society and others who do not accept actions of Nov 3 emergency-cum-martial law, including sacking of almost 60 judges of the superior judiciary.

In a situation where the people has given their mandate to the anti-Musharraf political forces and in favour of the general demand for restoration of deposed judges, dragging the Army into this matter would be highly controversial. It would be considered as taking side with the dictator and against the interests of the people. Such a situation would be chaotic.

Meanwhile, in the official circles there are fears being raised that the stage is being set by the presidency for imposition of emergency to regain its firm control over the state of affairs. It is apprehended that a situation is being deliberately created where constitutional institutions look like proceeding for a head-on collusion, which would make a perfect case for the caretaker prime minister to advise the president to promulgate emergency in the country.

But in such a scenario, yet again, the result would be complete chaos, anarchy and possibly bloodshed. It is relevant to mention here that 22 retired judges of the Supreme Court, including six former chief justices of Pakistan, have recently supported the idea of deposed judges’ restoration through an executive order or a parliamentary resolution.

They categorically said that this reinstatement does not require any constitutional amendment. All these respected former judges have found the Nov 3 action unconstitutional, including the oath of judges under the PCO.

Despite all this both mainstream parities, the PPP and the PML-N, and the lawyers’ community in order to avoid a possible confrontation, do not seek removal of the PCO judges or those who took oath under the Constitution after Nov 3. Contrary to this accommodation by those who enjoy the will of the people, any move to block reinstatement of deposed judges would be like inviting crisis.

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