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Yet an other blow on the weaker judiciary of Pakistan

19 March, 2007

By Amjad Malik


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Yet an other black day in the short history of Pakistan.  Last full decade of Army Chief cum President General Mushraf is full of black  days, and it has happened so many times that we feel reluctant to call it a  black day.  On 12 October Army came to Capture capital in defiance of  Prime Ministerial orders and that was considered a black day, Chief Justice  Siddiqui was made to go home and Judges took oath under PCO, again that was  called a black day and now again Chief Justice was in some what similar style  and circumstances was confined and reduced to a normal man, now critics call it  again a black

day. I differ as it is under statement, we must reconsider as we  can not have 3 black days in 10 years. So lets call it a ‘Chief Day’ one chief  tells the other as to who is real chief, the other chief tried to be chief and  real chief confined him to a chief he really is in a chiefly manner.  

In the west the news was taken that an Army Chief called  the Chief Justice in his army camp, asked him to leave honourably or face the  wrath and upon his refusal confined & reduced  him till the evening against his will  and shuffled the whole Supreme Court and put a reference against Chief Justice  in the Supreme Judicial Council who will hear dozen of allegations full of metal  against their peer on 13 March 2007. That’s the way the current government is  used to changing ‘thanidars’ and the same way they have decided to change the  Chief Justice Irony is that his fellow judges rather than enquiring the  well being of their Chief and ordering for his production and availability in  Supreme Court so that proper consultation could take place as to resolving the  President’s reference to (SJD) Supreme Judicial Council, instead they went ahead  and took oaths as was desired by an other Chief and people saw them  congratulating each other on this victory. We see that when its time of Judicial  unity you can always find judges who would come forward and act against their  own peer, army does not do that when time comes, and they always boost of this  quality.

Now we must look at reasons as to why chief has to go. I  spoke to a few friends who were saying since x-mas that chief is going then came  Arsalan (his son’s) issue, letters started circling here and there and a story  in popular channel in Pakistan on bribery in judiciary and last nail in coffin a  letter purported to be from Naeem Bhukhari which was highly circulated as I  myself received it from USA. These were the chain of events that gave rise to  intelligent bye slanders that ‘cookie is cooking’ and cat was out of the bag on  9th March. Why it happened is very crucial. I think Chief was acting  as a real chief. He gave a very popular judgement in public against steel mill  sell off, he was hearing cases of missing people which was against the desires  of intelligence top brass, he gave access to truly affected people like Sonia  Naz & Mukhtaran Maee against the wishes of Police though he may have gone  little bit far in doing so. And he was about to decide very few important  constitutional matters in next 6 months and looking at his track may be ‘they’  were not truly satisfied whether he will given them in levy. I think they  panicked.

I personally am in favour of judicial activism when  government of the day fails to deliver truly the relief people deserves, unconstitutional means follow when constitution fails to address the real issues  now I feel our favourite general is entering into that regime and next 6 months  are very crucial for him. The way Chief Justice was aggravated by attacks on his personal life for last 12 weeks, similarly I feel he himself is taking  aggravated decisions and critic says he has shot on his own foot by sacking the  Chief Justice.

I myself am a witness of the fruit of pro active judicial  work when Chief Justice last year upon my request asked IG Punjab to register a  case of murdered women in Gujrat upon the request of his elderly parents over 70  years of age living in UK. The girl was brutally bruised and killed and later  was buried without her parents present by her husband. Even after Chief’s intervention FIR was registered good 6 months after her death. Though they still  did not get trial or complete justice but this gives the reader an idea of state  of play.  We can not punish him for  the good he intended to do in the country.

How this change procedurally has been carried out is a  mockery pf justice. Even chief justice deserves justice and due process of law,  he is not above law. Article 209 is very clear. Chief is always chief. He can  not be tamed, confused, reduced and confined. He could not have been called to  army camp and humiliated by asking to resign. Filing reference was President’s  prerogative and after filing that Reference CJ should have been allowed to  attend SC and decide as to the fair conduct & hearing of that reference and  peers would independently decide on it. They had already done so in the past at  the time of unprecedented clash of views when Honourable Sajjad Ali Shah was  Chief and they jointly decided to ask him to step down for the sake of unity in  judiciary.

 

They would have done it this time too and nation becomes strong only  with these passages given the opportunity.    Government has no leg to stand on the issue of abuse of  power and corruption when Steel Mill Judgement, land grabbing mafia, sugar and  cement crisis, continuous stock exchange crash(es), Nabbed’ ministers and Bajaur  and Dama Dola killings are shining like medals on its collar. No sacking took  place then and no reference was filed. Government should have resigned in any  event or could have been sacked after Steel Judgement. English cabinet would  have if that have been a decision by English Court.

Nexus of our judges with Generals have ruined the future  of democracy in Pakistan. Nepotism, bribery, lawlessness, unmeritorious  appointments and lack of respect of law in an unjust society has made life  impossible for lay Pakistanis who are looking towards a ‘messiah’  for their salvation. In order to  continue this trail of unlawful rule, judiciary has weakened further and Chief  Justice has been made to go home the second time. Ordering oath under PCO hit 

the nail aright and judiciary lost its teeth as an institution long ago. Will  Iftikhar Choudhary get a fair hearing when his peers do not speak up upon his  confinement, when he is stripped off his freedom of speech and his lawful  privileges, its any body’s guess though I hope he  does.

Now what will happen, I think even Chief Justice deserves  a fair hearting, a due respect and proper treatment to have his legal team for  consultation and advice and unless Council decides otherwise all the privileges  he deserves in the remit of constitution. Media trial must end here, now Chief  Justice is a victim of his own deeds good or bad and let the council decide on  13th the future course of business. 

I must mention here that whilst CJ had a chance, he could  have decided some constitutional issues too whilst he was in power. Now regrets  is an asset for his memory when he witnessed the Army chief retaining his  uniform post 31 Dec 2004 he remained silent, when he rejected to entertain two  offices bill, when his office entertains president’s reference against NWFP  assembly’s passed bill but he refused to give relief against 17th  amendment. Equality is a virtue of which our SC is envy of especially when army  is out of barracks. We still pray that justice is done with the Chief Justice. I  must mention here that sitting in London I could find only one gentleman out of  the whole judicial class (Mr. Justice Wajeeh uddin Ahmed) who showed his guts  and voiced the true feelings of lawyers all around and judicial class and  demanded the fair treatment of the Chief Justice.

I must end here saying that if his fellow peers decide in  his favour then including Attorney General from lower to the top brass must be  ready to resign as filing reference on unfounded charges and on the basis of  some letter(s) is a serious business and may amount to contempt too for those  who choose to ridicule the Chief in this unbefitting manner and especially for  the  Govt who have no track record  of angels themselves. President must also be ready to digest more reference(s)  against his own hand picked government if this reference succeeds as it opens a  window to people to complain and demand sacking of his own hand picked Ministers  amongst those are some real absconders and criminals who are looting the state  of Pakistan on wholesale basis. Nation is demanding  justice and it must be seen to be done. One time the same thing The

Queen of  England did to his Chief Justice and people took to street until that sacking  was off, and later people got him elected and he was made a speaker of the  assembly without opposition by all the houses of parliament. That’s the power of  people where rule of law exist.

Amjad Malik is  a life member of Supreme Court Bar Association and & a Solicitor-Advocate of  the Supreme Court (England) and Chair of Association of Pakistani lawyers (UK).

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