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.
Transparency International Pakistan says Gilani tenure has given a loss of Rs 8,500 billions in corruption so far. Still nincompoos and corrupts in government expect people to pay taxes like “responsible” citizens. Yes, people like us who pay taxes despite corruption are responsible and they are responsible for beeing ignorant.
People should go for a collective boycott of taxes and take back the country from these evil ruling elite.
by Ansar Abbasi
ISLAMABAD: Pakistan has lost an unbelievably high amount, more than Rs8,500 billion (Rs8.5 trillion or US$94 billion), in corruption, tax evasion and bad governance during the last four years of Prime Minister Yusuf Raza Gilani’s tenure, Transparency International Pakistan (TIP) claims.
The TIP advisor, Adil Gillani, told The News that the real impact of corruption in the country’s economy is far more than what is generally estimated or what is formally uncovered. He believes that Pakistan does not need even a single penny from the outside world if it effectively checks the menace of corruption and ensures good governance.
It is generally believed that the four years of the present regime under Gilani had been the worst in terms of corruption and bad governance in the country’s history. Past records of corruption were broken and Pakistan started rising in the ranks of the most corrupt nations of the world.
There has been no check on corruption as the anti-corruption institutions like the National Accountability Bureau and Federal Investigation Agency instead of checking corruption have been siding with the corrupt.
These institutions have been helping the corrupt to get off the hook by distorting and mutilating the evidence in favour of the influential accused.
Adil Gillani, the TIP representative, who too has been haunted by the government during these years for producing corruption reports, explained that the TIP pointed out corruption of Rs390 billion in 2008, Rs450 billion in 2009, Rs825 billion in 2010 and Rs1,100 billion in 2011 under the present regime. The total of these identified cases of corruption is Rs2,765 billion.
In addition to this, he explained the following:
The minister of finance of the present regime himself confirmed corruption in FBR of over Rs500 billon per year, which makes the total Rs2,000 billion; Auditor General of Pakistan pointed out Rs315 billion corruption in 2010; Public Accounts Committee recovered Rs115 billion in 30 months till 2011; circular debt is Rs190 million; KESC was given Rs55 billion illegal benefits per annum since 2008; state-owned enterprises like PSO, PIA, Pakistan Steel, Railways, SSGC, SNGC are eating away Rs150-300 billion per annum; tax to GDP ratio in 2008 was 11%, which in 2011 has reduced to 9.1% instead of being increased.
Gillani explained that Pakistan’s Gross Domestic Product is worth US$175 billion and in the light of this the drop of 1.9% in the tax GDP means annual loss of US$ 3.3 billion. This confirms that FBR is losing Rs300 million per annum, which is annual additional loss since 2008 and stands at Rs1,200 billon in four years
The TIP adviser added that India’s tax-GDP ratio is 18%, and at that rate, Pakistan’s tax evasion/corruption in FBR is 9% of $175 billion, which is US$15.5 billion per year, i.e. Rs1,400 billion per year.
It is worth mentioning here that it is not only the Transparency International but there have been different international bodies including the World Bank and world capitals, which have been showing their concern over rising trend of corruption in Pakistan under the Gilani’s regime. It was mounting corruption and extremely bad governance, which even dithered the outside world to offer cash to Pakistan during 2010 and 2011 floods, which devastated different parts of Pakistan and affected millions of people.
At home the corruption became a fashion in such a shameless manner that even the cabinet ministers started openly pointing fingers at each other and even at the highest levels including the prime minister. Some even approached the Supreme Court but despite all this, corruption remained the hallmark of the present regime, which instead of curbing it started defending it in the name of democracy.
Lets see where it goes as now the ball is in the court of parliament. Lets see whether country goes towards constitutional supremacy, rule of law and protection of human rights or goes for -rule of elite and rule of government.
Article175-A to be sent back to Parliament
Source : http://geo.tv/10-21-2010/73179.htm
ISLAMABAD: The Supreme Court delivered the verdict on the longest running case on certain clauses of the 18th Amendment, Geo News reported Thursday.
Chief Justice of Pakistan Justice Iftikhar Muhammed Chaudhry read out the verdict in courtroom-1.
Article175-A of the Constitution will be sent back to the Parliament for review, according to the verdict.
The verdict said the Article affected the freedom of the judiciary, as judiciary’s freedom is of prime importance.
The Chief Justice of Pakistan has the main position in the procedure of judges’ appointment.
The Parliament and the judiciary are indispensable for each other and both of them should work in sync for supremacy of law in the country, the ruling said.
It should be mentioned here that Article 175A of the Constitution deals with the appointment of judges of the higher judiciary.
The ruling also dictates that under Article-68 of the Constitution, the behavior of judges of higher judiciary could not be brought under discussion at the Parliament.
The Parliamentary Committee is authorized to veto the recommendations put up by the Judicial Commission, according to the ruling. The Parliamentary Committee is bound to have in-camera sessions.
However, the Parliamentary Committee is bound to give reason for rejecting a name. The ruling said if the Parliament is suspended, the Committee will be incomplete.
The ruling on the clauses 8, 9 and 10 of the Article-175-A has been deferred.
“To enable the parliament to proceed and re-examine the matter in terms of the observations made above, these petitions are adjourned to a date in the last week of January 2011,” said the order signed by 17 Supreme Court judges.
The case has been adjourned till January 2011, when the SC will take up other remaining clauses on the pending petitions in the same case.
Nearly three dozen lawyers addressed the apex court during the lengthy hearing, spanning more than four months, starting on May 24 and concluding on September 30. Of them, 21 opposed different constitutional changes while others held the opposite view.
Since the 18th Amendment was passed some six months back, there has been no substantial implementation of it although the court had not stayed its operation. During this period, not a single judge to any superior court has been appointed as per the new procedure introduced by Article 175A although many vacancies exist in high courts.
The serious issue of extension of 34 additional judges of the four high courts on expiration of their first one-year term was temporarily resolved by the apex court when it ordered that they should continue for the time being. This was done only because of the pending verdict on the 18th Amendment.
The government representatives defended the 18th Amendment, mainly arguing that parliament has the supreme right to amend the Constitution and no institution can undo it.
The Punjab government’s stand remained confused most of the time. Its Advocate General left it to the Supreme Court to decide the issues in any way it wants while Shahid Hamid, who was separately hired by it for this case, stood for parliament’s right to amend the Constitution, which, he said, can’t be taken away by any other state organ.
The SC verdict deals with five key questions, the principal being the new mechanism of judges’ appointment to superior courts, which is yet to be put into practice.
Earlier talking, Barrister Wasim Sajjad, one of the leading lawyers, who represented the government to defend the constitutional changes, said, “Primarily, the court is likely to take care of these main issues raised in arguments and different petitions, challenging some clauses of the 18th Amendment.”
According to him, the first and foremost issue relates to the new procedure regarding the judges’ nomination that provides for the creation of a judicial commission (Article 175-A), headed by the chief justice of Pakistan, and a rare parliamentary committee that would finally approve the appointments.
The second challenge pertains to the unseating of MPs on the charge of defection (Article 63A) with this power having been given to political party heads, taking it away from heads of parliamentary parties.
The third issue concerns the undoing of the condition of elections within political parties on the ground that the requirement exists in a law and there is no need to keep it in the Constitution. Another question relates to the women’s reserved seats, which its challengers wanted to be dispensed with for being discriminatory. This was introduced by the 17th Amendment, which was retained by the 18th Amendment.
Yet another issue pertains to the shifting of some subjects to the provinces after the scrapping of the Concurrent Legislative List. The sixth question concerns the conclusive determination of the basic structure of the Constitution, which has not been elaborately settled on in any judgment of superior courts.
The performance of every additional high court judge is reviewed after one year to take a decision on confirming or showing door to him. After Thursday’s verdict, one of the major appointments is expected to pertain to Lahore High Court Chief Justice Mohammad Sharif, who retires on December 8. He will either be elevated to the Supreme Court or will retire.
Legal experts say that the new Article 175A is silent on how the judicial commission will get names of lawyers or judges for appointment as justices of the high courts or the Supreme Court. Before the 18th Amendment, the procedure being followed was that high court chief justices would generate names of lawyers or sessions judges for appointment as judges of their courts, which were finally approved or disapproved by the chief justice of Pakistan.
Experts say it is not known in view of the 18th Amendment that how the judicial commission will come to know of suitable names although it is the forum that will send its recommendations to the parliamentary committee for final approval. The committee can’t consider any name on its own. Neither the president nor the prime minister can send any name to the commission or the committee for consideration.
By Ansar Abbasi
18th amendment has made government more strong and more above the law. Now judiciary will be literally a subordinate institution of parliament and will be lead by the will of
plutocrats. Real bad part of this so called revival of 1973 constitution spirit is that they have further damaged the institution of judiciary and no curbs are put on corruption.
It doesn’t matter much who exercise the power , PM or President. The real things are transparency, accountability and rule of law which now seems to be further weakened.
Now judges will be appointed by a seven membered committee having only 3 serving judges and one retired judge appointed by government, rest of the members will be from government. The approval of the judges appointed by the committee will be approved by an 8 membered parliamentary committee having 4 members from and government and 4 from opposition.
Now the opposition will play give and take even on the issue of judges appointment, judges will be nominated by party heads.
No checks on corruption. They have only exploited slogans , no true decentralization of power.
I don’t know where the people who don’t like both opposition and government or don’t have their share in electing these corrupt feudal-corporatist will go?
We have been saying this regularly that military-feudal-corporatist are playing with our country, they don’t want to give up their control and treat everyone as equal in front of the law.
We need to continuously make efforts for freedom and justice.
We need RULE OF LAW!
We don’t need RULE OF A MAN or RULE OF ELITE.
Current plutocracy is no different than dictatorship. They, including feudal, corrupt corporatist and corrupt generals are all same.
Even interior ministry and police have confirmed that recent target killings and ashura incidents are done by local mafias and they are backed by political parties in government . So why not a full scale military operation with air strikes in Karachi if we have this “successful” strategy in our national policy making?
Why not allow USA to conduct drone attacks in the hideouts of these mafia supporters in Islamabad Parliament lodges, Presidency , Prime minister house, GHQ and all provincial capitals?
And don’t forget USA embassy itself which controls the whole setup run by puppets and slaves?
On Friday after a long delay of more than 4 hours SC of Pakistan gave a remarkable judgement of declaring the 3rd November 2007 as unconstitutional,illegal and extra judicial.
The 14 member bench headed by Chief Justice of Pakistan Iftikhar Ahmed Chaudhary who was restored by the government on 16 March 2009 after immense pressure from a long march by lawyers,civil society and politicians on Friday also rejected the unconstitutional amendments made by former dictator Musharraf during the time of emergency (between 3rd November 2007 and 15 December 2007).
SC sent the cases of those judges who violated the judgement of 7 member bench which declared 3rd November 2007 actions as unconstitutional and ordered the judiciary not to take oath under the PCO of dictator to Supreme judicial council.
Also the Supreme Court declared:
1) The sacking of judges by Musharraf on 3rd November as unconstitutional.
2) The removal of judges appointed during the PCO period and the Dogar period.
3) The tenure of Abdul Hameed Dogar (The PCO CJ appointed by Musharraf) as unconstitutional.
4) The increase in number of SC judges to 29 through finance bill by current parliament as unconstitutional.
5) The Islamabad High Court as unconstitutional and now after this decision all the judges of Islamabad HC are dismissed from their service.
6) The Ordinances issued by the dictator are referred to the parliament for review.
However in the decision SC did not change the status of :
1) The presidential oath taken by Dogar from Zardari.
2) The financial and administrative decisions taken by Dogar.
3) The cases related to day to day personal issues settled by the courts during that time.
One thing which didn’t go in favor of the government apart from the removal of jiala judges is the change in status of NRO which was approved by the Dogar court is now a thing to be decided means people including or specially Zardari are now not indemnified from the cases of corruption.
The court has indeed played their part expected from them (people also expect more good news from them) and now the ball is in the court of the national parliament to show what they are capable of doing.