ISLAMABAD: A full bench of the Supreme Court started hearing a suo moto notice of reports about the withdrawal of judges’ notification on Friday.
Hearing of the case is underway in the Supreme Court.
The Supreme Court’s move follows its dramatic late-night meeting regarding rumours of the executive seeking to pull the plug on an increasingly assertive judiciary.
The Attorney General of Pakistan, Maulvi Anwar ul Haq appeared before the court and denied the withdrawal of judges restoration notification. He said reports of the withdrawal came as a surprise for the government.
He said an inquiry has also been launched into the news item aired by a private TV Channel that caused this furor.
Meanwhile, heading the full bench, Chief justice of Pakistan directed the Attorney General to submit the prime minister’s written reply by 11.30 am. He clarified that the reply should be signed by a top government official and not the law secretary. He also said such rumours surface when important cases are underway adding that similar rumours had surfaced before the November 3 emergency.
Justice Ramday said that everything cannot be blamed on the media in this case.
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Pre-emptive strike
17-member bench constituted to hear the matter from today.
High drama unfolded in the capital late Thursday night, resulting in what appears to be a pre-emptive strike on the part of the Supreme Court regarding rumours of the executive seeking to pull the plug on an increasingly assertive judiciary.
A dramatic late-night meeting of all 17 judges of the Supreme Court of Pakistan took notice of the purported plans of the government to withdraw the executive order that reinstated the judges that were earlier sent packing by the Musharraf regime after the Nov 3, 2007, Emergency.
In a clear-cut statement, the Supreme Court has “clarified” that the issue of the reinstatement of the judges has already been “conclusively settled.” According to the Supreme Court, the notification cannot be taken back, as the reports were suggesting was the government’s plan.
Moreover, the apex court has also constituted a 17-member bench that will hear a case regarding the reports that were being aired by the media regarding the government’s purported plans to this effect.
The hearings will begin today (Friday) and the Attorney General of Pakistan has been summoned to appear before the 17-member bench.
The following is the text of the Supreme Court’s late night press release issued by Additional Registrar Sajid Mehmood Qazi:
“As per reports telecast tonight on several TV Channels including AAJ, GEO & ARY, alleging that the Government is considering to withdraw the notification/executive order dated 16.03.2009 of restoration of the Chief Justice of Pakistan and other Judges of the Supreme Court of Pakistan and Chief Justices/Judges of High Courts. Some newspapers have already reported this issue as well. Earlier on, few months ago, a similar statement was made by one of the high constitutional office holders in the Parliament.
“As the news item was flashed by other TV channels, some channels have also telecast denial today (14.10.2010) from the Government, saying that there is no truth behind the said news.
“It may be clarified that the issue of restoration of Judges through notification has already been conclusively settled by the Supreme Court of Pakistan in its judgment dated 31.07.2009 in the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), relevant paragraphs whereof are reproduced below: -
“The Proclamation of Emergency issued by General Pervez Musharraf as the Chief of Army Staff (as he then was) on November 3, 2007; the Provisional Constitution Order No.1 of 2007 issued by him on the same date in his said capacity; the Oath of Office (Judges) Order of 2007 issued by him also on the same date though as the President of Pakistan but in exercise of powers under the aforesaid Proclamation of Emergency and the Provisional Constitution Order No.1 of 2007; The Provisional Constitution (Amendment) Order, 2007 issued by him like-wise on 15.11.2007; the Constitution (Amendment) Order, 2007 being President’s Order No.5 of 2007 issued on November 20, 2007; the Constitution (Second Amendment) Order, 2007 being the President’s Order No.6 of 2007 issued on 14th December, 2007; the Islamabad High Court (Establishment) Order 2007 dated 14th December 2007 being the President’s Order No.7 of 2007; the High Court Judges (Pensionary Benefits) Order, 2007 being President’s Order No.8 of 2007; the Supreme Court Judges (Pensionary Benefits) Order, 2007 being President’s Order No.9 of 2007 dated 14th December, 2007 are hereby declared to be un-constitutional, ultra-vires of the Constitution and consequently being illegal and of no legal effect.
“As a consequence thereof: -
“The Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Courts and the Judges of the High Courts who were declared to have ceased to hold their respective offices in pursuance of the afore-mentioned alleged judgments or any other such judgment and on account of the instruments mentioned in Para 21 above, shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration;”
“It may be stated that the issue of appointment or removal of Judges is clearly prescribed by the Constitution of Pakistan, which has been elaborated through successive verdicts of the Supreme Court. The Supreme Court has held time and again that a Judge of the superior judiciary may not be removed except on the grounds and as per procedure laid down in Article 209.
“In view of the facts stated above, the Hon’ble Chief Justice of Pakistan, on a note moved by the Registrar, has ordered registration of the matter as Civil Miscellaneous Application and its fixation before a 17 – Member Bench on 15.10.2010. Notice has been issued to the Attorney General for Pakistan.”
Published in The Express Tribune, October 15th, 2010.
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How it all unfolded
President Zardari and Prime Minister Gilani jumped to dispel media reports that the govt may withdraw the notification to reinstate judges. PHOTO: FILE
ISLAMABAD: On Thursday evening, the media was alerted to a ‘report’ that a nervy government might withdraw a notification it issued back in March 2009 to reinstate all those judges of the superior judiciary sacked by former president Pervez Musharraf in the November 2007 emergency declaration.
The report had been doing the rounds in recent days with key verdicts in high-profile cases within sight.
The rumours had it that the notification of judges’ restoration lacked parliamentary cover, and hence could be withdrawn by the executive at any time – sending the judges packing once again. This, the rumours had it, would help the government escape what was being perceived as impending action against it by the apex court.
Rumours and speculation gathered steam in the backdrop of a marathon meeting on Thursday morning by the 17 judges of the Supreme Court, which was reportedly called to ponder upon a decision in the recently concluded 18th Amendment case – the verdict of which had been reserved. The meeting dispersed without any concrete information on the agenda or any decisions.
However, in the absence of information, speculation took over.
So sudden and potent were all these developments that both President Asif Ali Zardari and Prime Minister Yousaf Raza Gilani had to jump in to dispel these reports, calling them baseless and attempts to malign the government of their Pakistan Peoples party (PPP).
“It’s not true. We are the ones who render sacrifices for the independence of the judiciary. We give our blood for that,” a spokesperson for the President said.
The Prime Minister House was next to respond with a statement issued by its media office saying: “Prime Minister Syed Yousaf Raza Gilani taking notice of the news items being flashed at TV channels regarding withdrawal of notification of judges’ appointment. He said that these news reports are baseless. Certain elements are trying to create bad taste among the institutions but these conspiracies will fail. We respect (the) judiciary. The government will take every possible step for strengthening of institutions. Pakistan Peoples Party (PPP) leadership has scarified their lives for the independence of judiciary.”
However, as all this was happening, the drama unfolded even further. The PPP then began a meeting of its own with the president himself in the chair. The speculation heightened further. News then broke that the 17 judges of the apex court had rushed back to the Supreme Court building and had begun another meeting in the middle of the night.
All the cameras shifted their attention to the hallowed building, which was now lit up in the darkness of the speculation-filled night. In the end, a press release was issued – “clarifying” that the matter was beyond reversal now.
This story has opened another chapter in the ongoing judiciary-executive saga.
Published in The Express Tribune, October 15th, 2010.
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AG couldn't submit satisfactory reply: CJ
The Supreme Court is hearing the case regarding reports about govt withdrawing judges' reinstatement notification.
ISLAMABAD: The Attorney General of Pakistan, Maulvi Anwar ul Haq has asked the Supreme Court for more time for the government’s reply on the notification regarding the withdrawal of judges’ restoration.
The chief justice said that the Attorney General didn’t submit a satisfactory reply. He said any move against judges will be in defiance of Article 6 and that the government was trying to sabotage the judiciary.
The hearing has been adjourned till Oct 18. The Supreme Court ordered the government to submit an inquiry into the incident. Lawyers chanted slogans outside the Supreme Court saying that a conspiracy was afoot against the judiciary.
The Attorney General said he was unable to meet the prime minister to get his reply on the case as the premier was in a meeting.
The chief justice had directed the Attorney General to submit the prime minister’s reply by 11.30 am, clarifying that the reply should be signed by a top government official and not the law secretary.
A full bench of the Supreme Court started hearing a suo moto notice of reports about the withdrawal of judges’ notification on Friday.
The Attorney General of Pakistan had appeared before the court and denied the withdrawal of judges restoration notification. He said reports of the withdrawal came as a surprise for the government. He said an inquiry has also been launched into the news item aired by a private TV Channel that caused this furor.
The Supreme Court’s move follows its dramatic late-night meeting regarding rumours of the executive seeking to pull the plug on an increasingly assertive judiciary by issuing a notification for the withdrawal of judges’ restoration.
The chief justice of Pakistan said such rumours surface when important cases are underway, adding that similar rumours had surfaced before the November 3 emergency.
Justice Ramday said that everything cannot be blamed on the media in this case.
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Justice far and near
By Ardeshir Cowasjee
Sunday, 03 Oct, 2010
The Supreme Court has struck down the NRO and is now attempting to enforce the law as it should be enforced. The government is playing the usual cat-and-mouse games, deadlines come and go, crisis after crisis is averted, and the court maintains its composure. But one day there will have to be a reckoning. Justice will have to be seen to be done. - Photo by AP.
The national mindset is not given to looking before it leaps, to thinking or to cogitation.(Thoughtful consideration) Emotions overtake the process of reasoning and the ubiquitous(Being or seeming to be everywhere at the same time;)issue of national ‘honour’ and ‘pride’ often defies logic.
Dr Aafia Siddiqui, US citizen, is a case in point where the truth has got lost somewhere along the way and is now unfathomable. The government of Pakistan has blown $2m defending someone who knackered (Very tired; exhausted.) her own defence. Her ranting in court sealed her fate as far as the jury was concerned.
Her family and supporters, and the political parties of the religious right, used her case to attack government authorities at home and in Washington, but provided no evidence to absolve her.
They found a controversial ex-congresswoman Cynthia McKinney, an Iranian-born wannabe human rights advocate, Tina Monshipour Foster and Yvonne Ridley, a British journalist who was converted to Islam by the Taliban, to support her case but none managed even one inch of sympathetic press coverage in US — and, what’s more, no major human rights organisation picked up the case.
Why were the international supporters of her case more intent on getting to Pakistan to register their protest than doing so in the States where Dr Siddiqui was imprisoned?
The verdict and sentencing passed by the US court may have been harsh but the comprehensive sentencing judgment goes a long way to explain the whys and wherefores. However, there are jurisdictional issues which need to be examined. For one, how does the US claim jurisdiction to try an alleged offence which did not take place within its territory? She was arrested by the Afghan National Police in Ghazni province in 2008 on charges of suspected terrorism.
The judgment makes a most illuminating read. The judge clearly states that he doesn’t realise why Dr Aafia was in Afghanistan, and we must all wonder, like him, as to what exactly she was doing there in the first place.
On her mental state, while saying that he believes that she is mentally fit to stand trial, he states that “this is most certainly a situation where the defendant’s political beliefs and perspectives blur the line between mental health issues and political advocacy” and “… while this court has found that she is competent, she is in fact suffering from mental illness and diminished capacity. And that has been supported by not only the psychologist we hired for the defence, but also her treating clinician….”
Sending someone like her to prison for a period of 86 years does not seem to be a balanced decision in any legal system. She has a right to appeal but so far has stated that she will not do so.
Such is life — the sane sit in our parliament cleared of their crimes and a mentally incapacitated woman is sentenced to 86 years in jail. Injustice is relatively easy to bear. It is justice that too often stings. And now, Aafia Siddiqui is being used by political parties and ‘civil society’ to vent the anti-American sentiments that are a must if one is to attempt to prove patriotism.Meanwhile, let us return to Ranch Pakistan. In 2003, I wrote:
“This nation is internationally deemed to be corrupt. Such is our destiny — we were born to be corrupt, and yet we persevere in ‘demanding’ accountability. If this government adheres to the norm, it will keep its mouth firmly shut.”
The government today is not keeping its mouth firmly shut. Its utterances are as strange as those of Aafia Siddiqui. One Abdul Qayyum Jatoi, one of the uncountable ministers, has clarified articulately that corruption has been institutionalised (he is the second minister of this dispensation to do so), that it is a fundamental right of every person to be corrupt and that there should be no discrimination between the provinces in respect of corruption. The prime minister had little option but to call for and accept the man’s resignation.
The institutions of state, civil and military, and society as a whole seem to have accepted that corruption is a Pakistani way of life, that bereft of corruption little can function (indeed little does function). All attempts to combat corruption have failed.
Take the last 13 years as an example. Under the Ehtesab Act of 1997 millions of rupees were spent, people were harassed, settlements made and then the entire exercise was discredited as a political witch hunt. It was disbanded and re-branded as the National Accountability Act, and again millions more were spent, prosecutions undertaken, convictions obtained.
It all ended with the amoral and wicked piece of legislation, the National Reconciliation Ordinance, thrust upon the nation in the national interests of the US and the UK, and to preserve the presidency of Gen Pervez Musharraf, which it failed to do, but it did gift to Pakistan the personage of our present president who could in no way have been where he is without the NRO (and of course the tragic loss of his wife).
The Supreme Court has struck down the NRO and is now attempting to enforce the law as it should be enforced. The government is playing the usual cat-and-mouse games, deadlines come and go, crisis after crisis is averted, and the court maintains its composure. But one day there will have to be a reckoning. Justice will have to be seen to be done.
Corruption is a crime. It cannot be eradicated but systems can be put in place to control it. This will not happen until the people, not the Supreme Court, wish to make a change.
arfc@cyber.net.pk
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'Various elements trying to destabilise government'
Babar Awan said that the government slams rumors about the reinstatement of judges.
ISLAMABAD: Federal Minister for Law and Parliamentary Affairs Babar Awan on Friday said that there are elements that are trying to destabilise the government, but the government has been patient and it is not going anywhere until it fulfils its five-year term.
Addressing the media in Islamabad alongside Information Minister Qamar Zaman Kaira, he said the Pakistan People’s Party government respects the Supreme Court’s (SC) verdicts and a difference of opinion cannot be considered a clash between the two institutions.
Regarding rumours about the withdrawal of the judges’ reinstatement, he said the government slams such news and the prime minister himself denied the rumours. He also said stern action will be taken against those who spread the rumours.
He also said there should be no doubt whether, the party that created the constitution, has read Article 6 or not.
Awan said that the government is proud of having removed the anomalies from the constitution through the 18th amendment and asserted that efforts to destabilise the government will be foiled.
The minister added that his party has suffered from extra constitutional actions but it will never resort to any extra constitutional acts.
Awan mentioned that state organs considered to be in the service of Paksitan are not allowed to indulge in politics and so they should not do so.
Addressing a question about the NAB Chairman’s appointment, Awan said that there is a difference between consultation and consent and the opposition was consulted in this regard.
Information Minister Kaira said that personal opinions should not be aired as news. He also said that there is a voluntary code for the media, adding that the government does not belief in limiting freedom of media.
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Govt cannot undo restoration order: SC
The Supreme Court is hearing the case regarding reports about govt withdrawing judges' reinstatement notification.
The Supreme Court (SC) ruled on Friday that the federal government could not undo the restoration of the judiciary by withdrawing the prime minister’s executive order of March 16, 2009.
The 17-member full court, headed by Chief Justice of Pakistan Iftikhar Muhammad Chaudhry, also disclosed that it had credible information that suggested that the government was considering withdrawing the notification. The court warned that any such move will be tantamount to subversion of the Constitution and directed the prime minister, president and other state functionaries to refrain from steps that may violate Article 6 of the Constitution.
The apex court had taken suo motu notice of media reports that the government was contemplating withdrawing the order. “Come out with the truth [about] who is responsible for spreading such rumours as the SC has observed that media reports were based on facts,” the chief justice asked Attorney-General Maulvi Anwarul Haq. “A clear-cut policy statement must be submitted by Monday.”
He said the government should investigate the issue as it was its duty, otherwise the court will have to issue an order.
The court order states that the government was trying to pressurise the judiciary by spreading news that since the chief justice and other judges had been restored under an executive order that was yet to be sanctified by parliament, therefore all relevant members of the judiciary must take note of it, as a similar statement was made by the highest constitutional functionary in parliament.
It continued to state that all constitutional and state functionaries and administrative heads of the country should ensure that no such action was taken that could lead to the withdrawal of the executive order.
The court ordered the government or the prime minister to conduct an inquiry through an appropriate, responsible functionary and if it were true that no such action was being contemplated, then how had the news spread in the media and who was responsible for it. The court feels that it is the government’s primary duty to look into the matter.
The court also observed that the PM’s executive order had ceased to be effective after the verdict of July 31, 2009, and heads of all constitutional organs must abide by that verdict.
The attorney-general denied that the government intended to withdraw the judges’ restoration notification, adding that the news had come as a surprise for the government thus it had immediately issued a clarification.
He sought more time to reply to the SC for an explanation pertaining to the executive policy on the notification for restoration of superior courts’ judges. He also informed the court that he had told the PM’s principal secretary Nargis Sethi but she had replied that the prime minister was busy in some official engagements in Lahore and could not spare time to write the policy today (Friday).
At this point, Justice Jawad S Khawaja asked the AG whether he had met the prime minister. “Sorry, my lord, I could not meet him because he is in Lahore,” the AG replied.
Justice Sair Ali asked “Is the PM holding a meeting on the judges’ restoration issue?” The AG remained silent. Justice Sair again asked what sort of meeting the premier was attending that he couldn’t spare time for this issue.
Justice Khalilur Rehman Ramday said that the PM’s reluctance to give a statement was adding fuel to the fire and increasing the anxiety of SC judges as they were all protecting the Constitution.
He recalled that such rumours had surfaced before the November 3, 2007, emergency when Aitzaz Ahsan had informed the SC through a letter that an emergency-like situation was imminent. But the judges had not taken the warning seriously. “Unfortunately, November 3, 2007, became a black day for the judiciary,” he said.
Justice Javaid Iqbal observed that such rumours always surfaced when high-profile cases were being heard in Court Room No 1. “There is no need to fear. We are the custodians of democracy and nobody will be allowed to derail it,” Justice Javaid said.
Published in The Express Tribune, October 16th, 2010.
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