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.
ISLAMABAD: A five member bench of the Supreme Court has decided to refer the six options relating to the NRO implementation case to the Chief Justice for constitution of a larger bench for hearing of these options.
Announcing the verdict on NRO implementation case‚ the bench headed by Justice Asif Saeed Khosa said the six options are being handed over to the Attorney General.
01: To initiate the contempt of court proceedings against the Chief Executive and the Secretary Law for not implementing the NRO verdict.
02: To declare the chief executive ineligible from the membership of the Parliament.
03: The court may form a commission to get the verdict implemented.
04: The people themselves decide on the issue and the court exhibit patience.
05: Contempt proceedings against Chairman Nab may be initiated.
06: The action may be taken against President for violating the Constitution.
The Supreme Court said in its order in NRO implementation case that the government has failed to implement the verdict.’The government is not taking interest to observe the order for the last two years. We knew that the actions we are about to take they may be unpleasant.’
‘The court has taken oath to defend the Constitution. The prime minister respected the party over the Constitution.’
‘The president in an interview to Geo News said his government would not implement one part of NRO verdict.’
As per Article 189 and 190 all institutions are bound to help the apex court, the order said.
‘Prima Facie the prime minister is not an honest man and violated his oath.’
The court recommended the case to the chief justice to form a larger bench to hear the case on January 16.
A Five-member bench of Supreme Court (SC) headed by Justice Asif Saeed Khosa resumed the hearing of the case pertaining to the implementation of National Reconciliation Ordinance (NRO) verdict today.
Our political dynamics are changing drastically with new players emerging and old players losing their positions. We are also seeing a power struggle between so called Rightists vs Leftists or Seculars vs Theocrats and somewhere there are parties which place themselves in-between. People are even talking about Judicial Martial Law.
But over all out look shows that the focus is on putting together a centralized system with some aspects of democracy. Our feudal culture, history of martial laws and domination of state institutions have restricted our minds to run things from centre with iron fist or authoritarian ways.
What is lacking in this approach is the realization of our diversity in the society. We are a country with diversified ethnic, sectarian and other social classes. Many of us cite China as an example and consider their Democratic Centralization as an ideal concept for Pakistan. We need to know that China has a dominant socialist ideology and their culture is pretty much same throughout China. They have a civilization which can be called as a Chinese Civilization. On the other hand Pakistan doesn’t have a single Pakistani Civilization. Pakistan is on the meeting point of several civilizations on both sides of Indus and which show different cultural and demographic colors if we move from Karachi to K2.
We cannot have a same system for Karachi and FATA or Islamabad and Dera Bugti. Attempts were made by Military dictators like Zia, Musharraf and Ayub who tried to implement their personal ideologies on the whole country and ending up creating a mess. Similarly civilian feudal-corporatists also tried to implement their vision on the whole country and again added to the mess. Even those who talk about liberalism have their own sectarian, ethnic and social class prejudices backing their ideals.
We need a decentralized system where federal government has minimum authority to run defense, dispute resolution and few other things. Even with them a concept of voluntary involvement and local considerations need to be taken into account. We need a system where decision making is brought to the local level which will also ensure merit among different localities selecting their leaders. It is unfair for those who don’t elect a corrupt government but they also have to face the bad consequences of its actions. To keep things in tact we can have a constitutional setup where rules of engagements should be mentioned between different constituents of the country. In short we need a “Rule of Law based Decentralization”.
This decentralization should be in Governance, Legislation and Economics. This is not something impractical; we can see some colors of it in countries like United States or Australia. Obviously for that we need to consider the ideology which dominated at the time of the creation of the country which is also reflected in the Objective Resolution. If we talk about Islam then “Meesaq e Madina” can show us how Muslims and Jews made an agreement by accepting each other as a reality. Even in a centralized country like China, they had to make adjustments in Xinjiang and Hong Kong. Even Russia has different Republics with some autonomy. In Pakistan’s case Quaid e Azam made agreements with our tribes which resulted in the tribes becoming part of Pakistan. These agreements allowed the tribal people to maintain their autonomy and also accept few fundamental laws of Pakistan. We also need a loose central structure to avoid the class clashes.
At the moment power is concentrated to center and everyone wants to control it either through the power of masses or power of gun. We even cannot afford a democratic system where 90% decides to suppress the remaining 10%. It will create the sense of alienation and hopelessness in the parties not in power and so can result in an undesirable retaliation which can be damaging for all.
We need to come out of the copycat mentality and be genuine in our approach as our problems are genuine and bit different from where we are trying to import the solutions.Mutual existence can only prevail through mutual acceptance of each other as a reality.
Note : A bit edited version is also available on http://blogs.thenewstribe.com/blog/66276/decentralization-a-solution/
Recent murder of former Punjab Governor, Salman Taseer has left many things for us to think over. I really disagree with Salman Taseer,his politics and many other things especially of exploiting the blasphemy issue for political gain. But the issue for which he was killed is of academic and legal nature and there was no reason for anyone to kill him for this reason. This really shows the absence of Rule of Law in our country and also it shows the flaws in training of our security forces as the person(Mumtaz Qadri) who killed him was part of Punjab Police.
Apart from intolerance another issue for me is that our establishment can use the current situation to take out those whom they disagree with, whether they belong to this or that side of the issue.
Rememeber its the policy of establishment ,to use sectarian and social class differences to expand the war for dollars, which has also contributed to the current mess.
The ideas which were floated to expand the war, especially in last 3-4 years, are really destroying our social fabric. We always had differences and diversity in terms of religion, sects and social classes but things were not that bad as today.
Sectarianism converted into sectarian violence from the time of Iranian revolution as attempts were made to replicate the revolution which many saw as sectarian based revolution. Later Afghan war, flow of weapons and boneless policy making added to the fuel. Iran-Iraq conflict and Arab-Iran tension also made the situation worse.
But even after that things were not that bad as today and even in 90s we were not that intolerant as a society. Current mess is a result of the unwanted dollar war we are fighting.
Not only Pakistan jumped into a foreign war but Pakistani establishment floated ridiculous ideas in masses to use sects against sects , ethnicities against ethnicities and social classes against social classes.
The thing is that people who were supported by the establishment to take forward the war on terror against Taliban are now among those who are also or mainly supporting the act of Mumtaz Qadri. Also now a false sense unity is being promoted in different sects on the basis of the issue, which has nothing to do with the teaching of Quran and Sunnah, to start another clash between social classes.
Quran even teaches us to be reasonable and “Just” with those who are involved in doing bad with us or who don’t agree with us but are peaceful with us.
“Do not allow your hatred of a folk who stopped your going to the Inviolable Place of Worship seduce you to transgress; but help ye one another unto righteousness and pious duty. Help not one another unto sin and transgression, but keep your duty to God” (5:2)
“God does not forbid you to be kind to those who do not take arms against you. God loves those who are just” (60:8)
“There is no compulsion in religion” (2:256)
“Had God willed, they had not been idolatrous. We have not set thee as a keeper over them, nor art thou responsible for them” (6:107)
Using Wahabis and Sufis against each other, Liberals and Mullahs against each other or invoking Deobandi/Barelwi and Shia/Sunni clashes to serve the “Divide and Rule” policy or to introduce the bogus concepts of “Pakistani Brand of Islam” in line with the wishes and ideals of establishment and their foreign masters can only result in destruction of our country.
Ideas like fight against Takfeeris especially to justify Lal Masjid Operation and Swat Operations, fight against Yazidis, fight against people who don’t believe in Prophet (S.A.W) according to the standards they have set or spreading things like Mullah Umar’s one eye is the eye of Dajjal or spreading fake ideas like Ghazwa e Hind (To glorify the role of Pakistan Army and the dollar wars they fight) which are not part of any authentic teachings of Islam, all have contributed to this disastrous situation.
I mean it’s a real big mess we are into and it will take real honest and just approach to get out of this. We are in a real self destruction mode and we have to come out of it.
Before the concepts of agrarian and market economies, ancient societies especially the Roman Empire used to have a system based on Manorialism. In that society ruling elite comprising mostly of feudal elite and others used to control the land resources of the state through their political and military influence. The ruling elite support their finances and lifestyle by collecting obligatory contributions from the peasants and slave population under their jurisdiction. The contributions were in the form of coins, mandatory labor or even in the form of usable items and kinds. The dependent in return only used to get the right of living, earning just enough to live and a false sense of security.
The way situation in Pakistan is going, it seems we are moving very fast in backward direction of time to the point where Manorialism was at its peak and few lords used to enjoy enormous economic and ruling power. Recent debate on imposing new taxes or increasing the percentages of the old one to serve the expenses and corruption of our ruling elite is a good example of this.
The reality of our situation is that few classes of our people are working like bonded labour to pay most of the taxes so that they can ensure their living and also serve the ruling classes of the state. The Tax to GDP ratio debate and the methods which are devised to increase it in order to bring it to so called international standards seems to be leading a common salary class person in a position where he will only be able to serve the ruling elite with his hard work and his own survival will be just enough to keep him available for work.
The problem with our country is not of low Tax to GDP ratio but the real problem is wastage of resources and money for serving the huge size of governments comprising of around hundred of federal ministers and equal positioned offices. Also in provinces the situation is no different with lots of illicit ministries and offices working just to accommodate the supporters of ruling elite and ensure a regular income through kick backs and percentages.
Major area of our budget goes into debt retirement and interest payments. With Debt to GDP ratio of over 60 percent resulting in high interest payments and no policy of reducing or controlling the expenses, we cannot expect any improvement in our current economic crisis. In fact the current tax debate is for RGST which is being imposed to fulfil the demand of IMF to get more loans.
Another area where we are suffering badly is unaccounted defense budget and useless expense on an unwanted war. The war is not only hitting some estimated 13.5 billion dollars annually but it is taking the investment and business opportunities away from the country resulting in unemployment and economic slow down. This economic slow down and unemployment is also resulting in high crime rate and low standard of living. This shows a real sorry situation and it seems we are in a self-destruction mode.
Now the question is how to come out of this mess keeping in mind our problems, limitations, resources and opportunities. The problems and limitations discussed above are obvious and only an average mind is required to understand them. The real thing is to look what resources we have and what opportunities we can produce for the economy of our country.
First thing to do is to reduce government expenses and for that reduction in the size of government is must. Government should limit itself in areas where it is required most or if required at all. Most of the departments and ministries like housing, women development ,defence production and many others are simply there to accommodate political allies and cronies. Also we need to see how much burden the government-owned organizations put on our economy. Not only illicit expenditures are a problem but the real problem is corruption and resulting loss of money. Not only ending corruption in these institutions is required but giving them to private sector through privatization or if no buyer is there then involving private sector through public-private partnership on merit and transparent accountability can help in reducing the expenses.
For debt retirement, not only steps like privatization based on merit, transparency and fair value can help but selling the prime commercial land which our institutions hold can help the cause. There is simply no reason to have military bases or armed forces colonies on prime commercial area such as Shahra e Faisal or Sadar. In most of the countries military bases are planned outside the cities which not only help in controlling the problem of population congestion and development of new areas but the commercial value of land can give billions of dollars which can be used for debt reduction. If we are able to reduce or eliminate our debt then instead of putting more taxes on people, our country can afford some tax relief for them.
We also need to end non productive politically motivated programs such as Benazir Income Support Program which are making people beggars. For welfare of extremely needy a community driven Zakat system can help the cause with checks and balance from the society, where it is collected from. There is a serious requirement of revising our defense and intelligence budget and for this transparency and accountability are must. We need to see where the money is going and whether it is required in the area or not. This is every taxpayers right to know that the money is spent in the right direction.
We have also invested heavily in defense technology areas including nuclear technology, military vehicles and aeronautical technology. It is right time now to open the opportunities for private sector and share the research with private sector in return of royalty or going for joint ventures with government only contributing with technology base or in rare cases land. This can help us a lot in developing a strong private sector base in automobile, aeronautical, energy and other areas of industry. Not only huge revenue can be generated but job creation without burdening the budget and taxpayers will be possible with this.
Instead of taking flood taxes, value added taxes or useless surcharges on energy which make the economy slow and increase the cost of living and business. Again a community driven Aushur system for agriculture and natural resources areas can help bring those people in contributing classes who only know how to get more out of the economy i.e. feudal-corporatist ruling elite. Also the plot and agriculture land distribution culture is needed to be ended. Currently prime residential and agricultural land is being distributed in influential sections of our society especially related to military and political elite. This culture of giving exclusive control of land based on influence is a sign of slave society discussed in the beginning.
Apart from reducing cost of business to ensure economic growth and progress of business, Rule of Law is must. Not only terrorism and government created energy crisis are making the business difficult but red-tapism, extortion money collected by mafias and political parties, illicit licensing and quotas for political corruption are making it harder for a genuine business to flourish or even start. Independent and strong judiciary, protection of human rights and freedom are must for the progress of any country.
It is wrongly assumed that government has every right or authority to get taxes out of the hard-earned money of its working classes. Government needs to justify the taxes they take and expenditure they make. Its high time for nation to see what their ruling elite is doing and whose interest they are serving. We need to decide whether we live in a free country or a medieval slave society.
Recently, Transparency International published their Corruption Perception Index in which Pakistan was placed at 34th position. Also in UN Humanitarian Development Index, Pakistan is proudly placed at 125 with Zimbabwe at lowest on 169 and small countries like Srilanka and Maldives in better positions of 99 and 107 than World’s 7th Nuclear Power. Many people especially those with some sort of sympathies with our ruling elite criticize the authenticity of these indexes.
One of the main argument presented against the results is lack of understanding by these institutions about the local conditions and environment. This criticism seems to be valid and genuine because if the analysis is based on real conditions then the results might come out worse.
If we look at the problems a common person faces due to corruption, law and order situation, and incompetent governance then the seriousness of the issues become a bit clear. Reality on the ground is that not only corruption is destroying our so-called national institutions and costing us billions but it has buried a common man straight under.
From cartelization to paying forceful unnecessary taxes, there is no justification of calling the present situation even near satisfactory. High inflation and energy crises are a result of government sponsored cartelization and corrupt privatization without merit. If things are done in transparent way and Rule of Law is established then we can expect some improvement in turbulent economy, if it has not crashed yet.We are already moving around 4 percent GDP growth which is very low as compared to countries like India and China in the same region.
If a common man saves enough money through his hard work, even in this time of government sponsored inflation, and decides to build his house then a new series of hurdles and problems start for him. First one is to go through the government doors for transferring the plots, passing the site plan and other unnecessary approvals which not only cost huge amount of fees but a big amount is taken from his through forceful corruption otherwise his file disappears somewhere in hell.
Once he goes through the process then the process of construction comes, if high prices of construction material due to unjustified sales taxes is not enough then extortion money will surely take a lot juice out of him. All the major government parties and their allied mafias are involved in this game. In case of Karachi, areas are distributed and in each area people are bound to pay this money if they want to make their houses or they want to do business. If someone denies then Shersha Kabari Market incident is not that old to remind us what can happen.
Recent target killing also has some touch of this mafia war for taking more and more area under control. Many times where demarkation of areas is not clear people have to pay extortion to multiple parties. The situation has gone worse after floods, especially in Karachi, not only due to chanting demographics but also due to further slowdown in economy and high inflation.
Cost of doing and initiating business is also a major problem. Not only permits, licensing and quotas are a major problem but red-tapism, corruption, security issues and high electricity are things which in any country can break the backbone of business. Load shedding of 12 hours in a commercial hub like Karachi cannot send a positive message for any investor whether local or international.
The situation is not only resulting in the flight of capital but it has created unemployment issues as well which directly impacts the standard of living. We often demand overseas Pakistanis to bring their money in the country but if we honestly analyse the situation then the demand looks a bit unjust.
At the moment our country is facing worst kind of shameless plutocracy in the name of democracy with mafias and government cronies hammering the life out of our people.
The responsibility also lies on the shoulders of people as they are the ones who chant slogans for these leaders and support either corrupt politicians or dictators.
The real issue is not just that how long this situation can go on but the real issue how long our country can sustain it. We need to come out of this situation otherwise time doesn’t wait for anyone and if worse becomes worst and worst becomes unchangeable then collapse of everything becomes inevitable. So the choice is ours and we are already getting late for the right choices to be made. Instead of cursing institutions for bringing out reports reflecting our dismal performance we need to focus on improving the situation and coming out of this mess.
- Also on : http://blogs.aaj.tv/2010/11/shameless-plutocracy-and-turbulent-economy/
By Ansar Abbasi
ISLAMABAD: The case of newly discovered 11 missing persons, presently being heard by the Supreme Court, is yet another reminder of how callously intelligence agencies of the country operate without showing any respect to rule of law.
The saga of missing persons seems to be getting more and more complicated with every passing day as the governments, whether federal or provincial, political parties and parliament are simply incapable or indifferent to providing the needed support to the Supreme Court to keep intelligence agencies under check and to make them behave as per the law of the land.
Illyas Siddiqui, the attorney of these 11 persons, insists that the Lahore High Court had ordered the release of these 11 persons on July 21, and on July 28, the orders of the court were received by the Adiyala Jail’s superintendent but instead of releasing them, the jail authorities handed them over to intelligence agencies on July 29, from the main gate of the jail. He also referred to a video evidence to prove his point.
Siddiqui did not precisely name as to which intelligence agency had abducted these persons, all of whom were acquitted in terrorism cases, including rocket attack on the Pakistan Aeronautical Complex, Kamra, anti-aircraft shots fired at a plane carrying former President Pervez Musharraf and suicide attacks on the bus of an intelligence agency in Rawalpindi and at the main entrance of the GHQ.
A deputy attorney general told the apex court that none of the three leading intelligence agencies — ISI, MI and IB — have in their custody any of these missing persons. The Punjab government authorities also don’t admit that the acquitted persons were handed over to any of the intelligence agencies but say that all the persons were released as per the high court’s order.
The then Home Secretary, Nadeem Hasan Asif, said that after their acquittal by the court in terrorism cases, the Punjab government, on the recommendation of CID, kept them under detention, initially under Maintenance of Public Order (MPO) and later by invoking the Anti-Terrorism Act.
But when the LHC set aside these detention orders, Nadeem told The News, the jail authorities were asked to release all the acquitted persons. When asked, Nadeem said that none of the intelligence agencies, including ISI, MI and IB, had approached him either to keep these persons under detention or hand them over to the spy agencies.
On the files of the provincial government, all these detainees were released from the Adiyala Jail. However, when they were to be released, quite a reasonable number of their relatives were waiting outside the Adiyala Jail to receive their acquitted relatives. The superintendent and the deputy superintendent of Adiyala Jail have already been arrested from the Supreme Court following the court’s order.
No matter what the government files read, some of the provincial government authorities do believe that these 11 persons would have been in the illegal custody of the intelligence agencies.
Six out of these 11 persons are those who were acquitted in a case of attack on the ISI bus near Hamza Camp on the morning of November 24, 2007, killing 17 persons and injuring 35 others. According to media reports, the Punjab Police had held the intelligence agencies responsible for their acquittal on grounds of non-cooperation and mishandling of the case.
The report said that these six people were first picked up by intelligence agencies and were latter handed over to the Punjab Police after almost nine months of detention with not a single evidence provided to police and the spy agencies even refused to share any information gathered from the illegal detainees. These reports were carried by the national press in June this year and neither the Punjab Police nor the ISPR or any intelligence agency had rebutted the news.
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.
We have seen some interesting developments in last 4-5 days including NRO case and government deceptions, government sponsored rifts between lawyers and we also need to look at this in Supreme Court Bar elections and now the notification issue.
PPP leaders including PM gillani have given statements in the past regarding the March 2009 restoration notification . Circles in PPP have been talking about it as a possible card to counter the judiciary. PM also hinted this in parliament when he said that the restoration order is still needed to be endorsed by the parliament.
Its good to see that media , civil society and judiciary are alert on this issue. SC has clearly said that a move like this will be termed as high treason and will be dealt with according to Article 6 of the constitution.
Our ruling elite doesn’t want Supremacy of Law and Constitution based on justice and equality. They want a rule of elite including feudal-corporatist politicans and military establishment. They only know how to serve their greed and the will of their imperialist masters.
It seems our government is planning another game. They want to come out of this situation as victims as they are not able to government properly. It will be on judiciary, media and civil society to ensure accountability and justice to prevail.
We as civil society should keep ourselves ready for any attempt to again create a constitutional crisis. The struggle for Rule of Law must go on all grounds. We all need to play our part and the least thing can be done is not to support the evil.
Also there is a planning of North Waziristan Operation going on . The decision will further damage the federation and will result in more terrorism as we have seen in the past.
By Faisal Rahman
General (R) Pervez Musharraf, has launched his political party recently in London. Pakistan’s politics is amazing, a dictator who was all in all in his time and used to stop people from taking part in politics or coming back in the country is now forced to restart his politics from abroad.
Public opinion is divided in Pakistan over the comeback of Musharraf. It will surely not be an easy ride for him in politics. Arrival and stay in country will not be an easy task for the former dictator.
First and the biggest hurdle that will haunt him is 3rd November. It is something over which many sections of society, regardless of their social class and political affiliations, oppose him. 3rd November issue is not only related to the suspension of constitution and illegal sacking of the judiciary, but it also connects to several human rights violations to crush the lawyers movement, media and civil society.
Lal-Masjid operation, extra-judicial killings in Baluchistan, allowing US drone and missile attacks in Pakistan, NATO supplies and troops in tribal areas have put Pakistan into a real mess. The damage he did is so severe that even after two years we are facing the deadly impact. The violations of human rights in his tenure are probably worst in the history of Pakistan. Issues of missing people, particularly Dr. Aafia Siddiqi, will surely haunt him when he comes back.
The post 9/11 policies, which were mainly adapted to give legitimacy to Musharraf’s dictatorship in the eyes of world powers, have caused more than 40 billion dollars direct economic losses to Pakistan, according to government’s own sources. In Musharraf’s tenure, the real areas of economy such as agriculture , technology manufacturing and energy were not focused upon. As a result, we are undergoing food and worst energy crisis ever.
Some impression of stability was created through fictitious economy based on banking, real estate and telecom sector, which eventually resulted in the flight of capital and currency devaluation. This short sighted approach may have got him some political support, but for the country, the approach proved to be destructive in the long run. In fact, the economic bubble burst during the last days of his tenure.
Kashmir is another issue on which Musharraf needs to be questioned. According to APHC leaders, Musharraf damaged the Kashmir cause by sidelining the issue. The main leader from APHC, Syed Ali Shah Gillani, also accused Musharraf for the split of APHC. Keeping eyes close on India’s violations of Indus Water Treaty and letting India build dams was criminal negligence. His mishandling of Dr. AQ Khan’s issue and insulting the national hero will also not be forgiven by Pakistanis.
People including me often criticize the current setup, but we also need to see the cause of this mess i.e. NRO. We shouldn’t only see the ugly dry branches of the dead tree but also need to see who is responsible for the hot water going into roots.
Musharraf’s arrival is very important for Pakistan, as we need answers for many crimes he did against the nation. His arrival is important for strengthening rule of law as it will give chance to trial him for his unconstitutional actions. I am sure if people in NWFP and Baluchistan get a chance to file cases against him in the courts for his crimes against humanity, it will help in calming down the situation in many parts of our country. It will give a chance for Army to restore its image in the eyes of many, who have grievances against the national institution due to the policies by former dictators.
Musharraf’s arrival will also be a big test for our civil society, media and the Pakistani nation as a whole. It will give us a chance to set precedence of indiscriminate justice and rule of law. I hope we will take the right decisions without falling to our prejudices and greed.