Saturday, May 17, 2008
Wednesday, May 7, 2008
Walk for the Restoration of Judiciary on 8th May
Peoples Resistance shall hold a demonstration for Restoration of Judiciary on Thursday May 8th, 2008, at 6:15 pm at Khadda Market DHA (in front of Rahat milk shop). Participants will walk down to the Legal Chief Justice of SHC, Mr. Sabihuddin Ahmed’s house for a 30 minute protest. PR expresses its disappointment that this important issue has not been addressed as promised. This protest acquires even more significance in view of the increasingly lesser chances of a solution by the 12th of May. Fakhruddin G Ibrahim opting out in protest from the core mediating body in Islamabad and the postponement of the bye-elections all have added to the crisis. We would like to reiterate the demand for urgent and unconditional restoration of judiciary.
All concerned citizens /groups are requested to join and show solidarity for the cause of restoration of original judges.
People’s Resistance is a coalition of students, teachers, NGOs, journalists and citizens concerned with restoration of judiciary, freedom of media and restoration of constitution. Bring banners, placards, flags, T-shirts and your friends!
All those in Karachi are requested to join. Please inform all your friends in Karachi.
Date: Thursday 8th May 2008
Location: Khada Market DHA (in front of Rahat Milk Shop)
Time: 6:15 sharp
Facebook Event: Walk for the Restoration of Judiciary - May 8th
Monday, May 5, 2008
Gilani cancels illegal allotments
By Rauf Klasra
ISLAMABAD: Prime Minister Yousuf Raza Gilani has cancelled with immediate effect 3,281 eligibility certificates issued by outgoing MQM housing minister Syed Safwanullah for government properties and accommodations in Karachi estimated to be worth Rs 450 billion.
Bulk of these properties was quietly sold in the private market by those who had received these illegal certificates. The prime minister who may face political pressure from his party’s new coalition partner in Sindh after this decision, has also ordered the immediate ejection of all those now illegally occupying these government properties and houses. The buyers of most of these government properties were given eligibility certificates by the housing minister during 2005-2008 but they sold them in the open market and disappeared.
While a total of 3,281 occupants of these government properties worth Rs450 billion in Karachi were shown occupying government houses, only 413 certificates were given to government employees. Rest were either retired or private individuals who were occupying these properties without any legal authority.
Before issuing these certificates, the former minister for housing Safwanullah had evolved a new method as he stopped the fresh allotment of the government houses in these areas to the civil servants. As such the accommodation vacated by retired officers in these three years, were also shown as occupied and later given to private parities who sold them in the open market to earn billions.
Even eight officers of estate office Karachi who had conducted a faulty survey of these houses were rewarded with eight certificates for their collaboration. These properties worth Rs450billion are located in Karachi's Martin Road, Clayton road, Jail Road, Jehangir Road, old Alkhhest, Patail Para, Jehangir Road West and Pakistan Quarters.
The letters were issued by MQM minister Safwanullah without getting the required approval from the cabinet of Shaukat Aziz or Housing Secretary Rauf Chaudhry. The certificates doled out by the MQM minister were being openly sold in the city markets in the range of Rs5 million to Rs15million and hundreds of people who have bought...full story @ http://thenews.jang.com.pk/top_story_detail.asp?Id=14511
ISLAMABAD: Prime Minister Yousuf Raza Gilani has cancelled with immediate effect 3,281 eligibility certificates issued by outgoing MQM housing minister Syed Safwanullah for government properties and accommodations in Karachi estimated to be worth Rs 450 billion.
Bulk of these properties was quietly sold in the private market by those who had received these illegal certificates. The prime minister who may face political pressure from his party’s new coalition partner in Sindh after this decision, has also ordered the immediate ejection of all those now illegally occupying these government properties and houses. The buyers of most of these government properties were given eligibility certificates by the housing minister during 2005-2008 but they sold them in the open market and disappeared.
While a total of 3,281 occupants of these government properties worth Rs450 billion in Karachi were shown occupying government houses, only 413 certificates were given to government employees. Rest were either retired or private individuals who were occupying these properties without any legal authority.
Before issuing these certificates, the former minister for housing Safwanullah had evolved a new method as he stopped the fresh allotment of the government houses in these areas to the civil servants. As such the accommodation vacated by retired officers in these three years, were also shown as occupied and later given to private parities who sold them in the open market to earn billions.
Even eight officers of estate office Karachi who had conducted a faulty survey of these houses were rewarded with eight certificates for their collaboration. These properties worth Rs450billion are located in Karachi's Martin Road, Clayton road, Jail Road, Jehangir Road, old Alkhhest, Patail Para, Jehangir Road West and Pakistan Quarters.
The letters were issued by MQM minister Safwanullah without getting the required approval from the cabinet of Shaukat Aziz or Housing Secretary Rauf Chaudhry. The certificates doled out by the MQM minister were being openly sold in the city markets in the range of Rs5 million to Rs15million and hundreds of people who have bought...full story @ http://thenews.jang.com.pk/top_story_detail.asp?Id=14511
Reality of prosperity that Musharraf's 9 years have given us...
Men gathered at the Data Durbar mosque to get a piece of bread during a food distribution.
Is 2008 another 1998? By Asad Umar
A debate has been raging regarding the position taken by the different political players on the issue of restoration of the Nov 2 judiciary. However, not enough has been said, at least in the post election period, regarding the overall context of that strategy of which the issue of restoration of judges is just one element.
The principal strategic choices available to the political forces have been labeled transition and transformation. The strategic choices being made clearly point towards a strategy of transition. These choices include acceptance of Musharraf, continuation of attorney general Qayyum, crafting of a new role for Durrani (Pak ambassador in the US), a strong desire to retain the post Nov 3 judges, amendments aimed at positioning Dogar for a second stint as CJ etc. These steps have been reciprocated by the establishment with the NRO being only the most high profile of these reciprocal gestures.
What the strategy of a negotiated transition has achieved is expansion of the political space for democratic forces. This included the doffing of the uniform, non involvement of the agencies in the electoral process, withdrawal of the army from civilian institutions etc. As a result the democratic forces have a majority in the parliament and hold the office of prime minister and cabinet positions. Seemingly the democratic forces are in the ascendancy and the influence of establishment curtailed. All of this made possible by the negotiations between Benazir Bhutto and the Musharraf led establishment with these negotiations brokered and in a way performance guaranteed by the Americans. BB used the backdrop of the lawyers, media,civil society movement against the General to leverage her negotiating position both with the Americans and Musharraf.
So if this strategy has achieved all of this in such a short period of time isn’t it worth sacrificing a few pristine principles regarding the issue of the restoration of the judiciary to keep the transition strategy going? That is the principal question facing us today but nobody is willing to ask let alone answer.
For me the strategy is wrong on two counts. One is the process used and the second is the long term impact of the strategy. In terms of process the lack of transparency of the negotiations is a critical factor. It is the result of this lack of transparency that people are suspicious of conflicts of interest having come into play in these negotiations with the NRO being mentioned repeatedly as evidence of this conflict of interest. The second aspect is the complete lack of any clear markers of how the progress and success of this transition will be measured.
However, the most important aspect is the long term impact of this transition strategy. After all didn’t we see the same transition strategy in action in 1988 after Zia’s death? And didn’t we hear the same arguments in its favour? How successful did that strategy turn out to be? Pakistan is a poor country with weak institutions, wide spread poverty and an ambitious establishment. As they say “soney par sohaga” is the current global commodity crises which is creating the worst global inflationary environment since the 70’s. All of this means that the popularity of any govt can erode very fast. Would the establishment attempt once again to regain its absolute control if such an opportunity arises? Would they work pro actively to engineer such a situation as they have done in the past? After all the behavior of the establishment in the 90’s was not because the political forces had refused to “show maturity” or confront the establishment by stripping it of its undue powers and hold them accountable for their transgressions.
My fear is that we are repeating a historic mistake. The driving force for this strategy is of very little interest to me. Whether, it is personal greed for power and pelf or a poor read of historical lessons, the results are going to be identical. I hope of course that I am wrong in my analysis and fears.
__________________________________________[Courtesy http://www.teeth.com.pk/blog/2008/05/05/is-2008-another-1988#more-2024]
Restitution of judges: A case for constitutional survival
Huzaima Bukhari & Dr. Ikramul Haq
After lapse of mutually-agreed and self-imposed condition of 30 days on April 30, 2008 for the restitution of judges announced in Bhurban on March 9, 2008, a new deadline of May 12, 2008 has been announced by Mian Nawaz Sharif in Lahore on May 2, 2008. This delay once again proved the lack of political commitment on the part of majority party. Their leadership may have many pretexts, valid or invalid, for not following the deadline or deviating from the original declaration promising the restoration of status quo ante of November 2, 2007 without any conditionality.
The long-drawn parleys between Nawaz Sharif and Asif Ali Zardari for implementation of Murree Declaration of March 9, 2008 on restitution of judges has serious implication for determining whether 8-year-long dictatorial rule in Pakistan will end or not. The issue of restitution of judges (reinstatement is wrong notion as they are still judges) is in fact a question of great important vis-à-vis constitutional rule in Pakistan. In parleys between leaders of coalition partners in Karachi, Dubai and elsewhere, the issue reportedly was to devise a “correct legal methodology” to counter the strategy of Musharraf camp to block the move through a stay order from apex court. One wonder why the political forces are not uprooting the root-cause by impeaching the unconstitutionally-imposed President, rather than waiting for his purported further illegal actions.
Illegally removed judge, in fact, never ceased as judges. The question is not that of their reinstatement but ordering of status quo ante existing on November 2, 2007. The Parliament unquestionably and unambiguously under the Constitution has full authority to do so. Unfortunately, the Musharraf camp, with the connivance of certain elements in judiciary and political parties, has managed to create confusion in this regard. The Musharraf’s propaganda machine using certain quarters, including some members of legal fraternity, started a debate that in the presence of judgements, namely, Tika Iqbal Muhammad Khan v General Pervez Musharraf and 2 others (PLD 2008 Supreme Court 6) and Tika Iqbal Muhammad Khan v General Pervez Musharraf and others (PLD 2008 Supreme Court 178), it is not possible to restore the judges through passing of a resolution in the Parliament and/or an executive order.
These quarters conveniently ignore the fact that these judgements are coram non judice, issued after seven-member bench declared action of November 3, 2007 illegal. These judgements also have no binding force as reached per incuriam in view of ratio decided by the apex court in PLD 1997 SC 351. On the one hand, it has been recorded that “Prime Minister apprised the President of the situation through the letter of 3rd November 2007” for imposition of emergency, and on the other order passed by the Chief of Army Staff is approved, which is self-contradictory. The decision does not elaborate under what authority of law Chief of Army Staff could impose emergency on the advice of Prime Minister. It is held that judges “who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007, have ceased to hold their offices on the 3rd day of November, 2007.” Since the Oath of Office (Judges) Order, 2007 is void ab initio, any proceedings taken in pursuance of the same are nullity in the eye of law. No judge can be removed except the method provided in Article 209 of the Constitution.
Since the judgements of apex court, issued after seven-member bench declaring action of November 3, 2007, are untenable, the restitution of judges, deposed through a law violative of express provisions of the Constitution, poses no problem. The newly-elected parliament by refusing to validate Article 270AAA and passing an Act nullifying the judgement of Supreme Court can restitute the pre-November 3, 2007 judiciary. The matter is of simple legal nature and should be solved through a legal procedure rather than entering into political polemics and undue controversies. This will not be the first time that the Parliament will nullify a judgement of apex court; it was done in the past by passing a law through simple majority. Numerous precedents are available to this effect, which Mr. Farooq H Naik certainly knows. The act of Parliament will restore the rule of law in its real sense in the country and all the deposed judges will be restituted without any interference on the part of executive. If done through an executive order, it will set as bad an example as by the Musharraf on November 3, 2007. In future, any Chief of Army Staff or government can resort to such an illegality.
There, however, is no need for any constitutional amendment, for which two-third majority is required, as propounded by Abdul Hafeez Pirzada, Rashid Quershi, Malik Qayyum, Waseem Sajjad, Khalid Ranjha, and Ahmad Raza Kasuri et al. The Supreme Court after restitution of pre-November 3, 2007 judiciary will certainly take cognizance of the matter suo moto or on the initiation of aggrieved party [which is public at large] to correct the mistakes committed by their learned colleagues. It will restore the rule of law in its real sense in the country. All the judges [illegally removed] are still judges as action of November 3, 2007 was declared void ab initio by seven-member bench. The illegally removed judges must assume their offices immediately an Act is passed by the parliament nullifying the above-referred judgements. In addition, in terms of Article 190 of Constitution, all executive and judicial authorities throughout Pakistan are legally required to act in the aid of Supreme Court. Thus, the new government is duty bound to implement the order of seven-member bench of apex court of November 3, 2007.
However, the issue of ousting of judges, their house arrests, denying them right of free speech and movement and now hindrances in their restitution cannot be examined in isolation. This confirms that as a nation even after 61 years of existence, we have miserably failed to abide by rule of law. At the heart of the concept of democracy is the assurance for the citizens that their affairs are going to be managed by a ‘Responsible Government’ and rule of law will be ensured. If we analyse the Pakistani scenario in the light of the above basic principle, there will be utter disappointment and frustration. The conduct of each government after the death of Father of the Nation was to waste or plunder public money, force the people into international debt enslavement and mercilessly flout all rules and laws. Therefore, if we have failed to establish independent judiciary, true democracy or a responsible Government, it is not surprising. Dispensation of justice is the main pillar of democracy, which is not possible without ensuring independence of judiciary.
The Parliament, irrespective of allegiance of individual members, must rise to the occasion—which is their historic challenge—to take the following steps for the restitution of illegally deposed judges, which also take care of Mr. Zardari’s concern (sic) for “real change” and “truly independent judiciary”:
In its resolution, newly-elected parliament denounces all the acts taken on November 3, 2007 and resolves that for a true democratic and constitutional rule, a strong and independent judiciary is a sine qua non. Thereafter, the following bills should be tabled and passed:
Bill for ‘High Treason Act 1973 (Amendment Act 2008).
This Act amending High Treason Act, 1973 should provide that that in case of violation of Article 6 of Constitution, it will be incumbent upon the apex court to take immediate cognizance and direct the Attorney General of Pakistan to initiate trial of offender. Thus in future, the apex court instead of validating any violation of Article 6 will be legally obliged to punish the offender(s). It will send clear message to imposer of emergency on November 3, 2007 to step down voluntarily or face trial for his admitted extra-constitutional acts.
Bill for ‘Oath of Judges, Act, 2008’ (invalidating Oath of Office (Judges) Order 2007).
By Passing this Act, the National Assembly will pave the way for reinstatement of November 2, 2007 Judiciary and nullify the judgements of apex court, namely, Tika Iqbal Muhammad Khan v General Pervez Musharraf and others (PLD 2008 Supreme Court 178) and Tika Iqbal Muhammad Khan v General Pervez Musharraf and 2 others (PLD 2008 Supreme Court 6). With the passing of this Act, in future no judge will be removed through any executive order or through any law related to oath of judges.
Bill for National Reconciliation Act 2008 (NRA)
In National Reconciliation Ordinance 2007, Musharraf intentionally excluded cases registered after 12 October 1999 for ulterior motives to exclude Nawaz Sharif and Shahbaz Sharif. In order to create a genuine atmosphere of national reconciliation and put an end to political victimization, this new Act should be passed immediately removing all the time-specific and person-specific provisions in NRO, 2007, which are in direct conflict with Constitution, and extending its scope to all the persons affected.
The above measures will pave the way for a new beginning in this country ensuring the rule of law, constitutionalism, democracy and justice through an independent judiciary.
_______________________________________________________
After lapse of mutually-agreed and self-imposed condition of 30 days on April 30, 2008 for the restitution of judges announced in Bhurban on March 9, 2008, a new deadline of May 12, 2008 has been announced by Mian Nawaz Sharif in Lahore on May 2, 2008. This delay once again proved the lack of political commitment on the part of majority party. Their leadership may have many pretexts, valid or invalid, for not following the deadline or deviating from the original declaration promising the restoration of status quo ante of November 2, 2007 without any conditionality.
The long-drawn parleys between Nawaz Sharif and Asif Ali Zardari for implementation of Murree Declaration of March 9, 2008 on restitution of judges has serious implication for determining whether 8-year-long dictatorial rule in Pakistan will end or not. The issue of restitution of judges (reinstatement is wrong notion as they are still judges) is in fact a question of great important vis-à-vis constitutional rule in Pakistan. In parleys between leaders of coalition partners in Karachi, Dubai and elsewhere, the issue reportedly was to devise a “correct legal methodology” to counter the strategy of Musharraf camp to block the move through a stay order from apex court. One wonder why the political forces are not uprooting the root-cause by impeaching the unconstitutionally-imposed President, rather than waiting for his purported further illegal actions.
Illegally removed judge, in fact, never ceased as judges. The question is not that of their reinstatement but ordering of status quo ante existing on November 2, 2007. The Parliament unquestionably and unambiguously under the Constitution has full authority to do so. Unfortunately, the Musharraf camp, with the connivance of certain elements in judiciary and political parties, has managed to create confusion in this regard. The Musharraf’s propaganda machine using certain quarters, including some members of legal fraternity, started a debate that in the presence of judgements, namely, Tika Iqbal Muhammad Khan v General Pervez Musharraf and 2 others (PLD 2008 Supreme Court 6) and Tika Iqbal Muhammad Khan v General Pervez Musharraf and others (PLD 2008 Supreme Court 178), it is not possible to restore the judges through passing of a resolution in the Parliament and/or an executive order.
These quarters conveniently ignore the fact that these judgements are coram non judice, issued after seven-member bench declared action of November 3, 2007 illegal. These judgements also have no binding force as reached per incuriam in view of ratio decided by the apex court in PLD 1997 SC 351. On the one hand, it has been recorded that “Prime Minister apprised the President of the situation through the letter of 3rd November 2007” for imposition of emergency, and on the other order passed by the Chief of Army Staff is approved, which is self-contradictory. The decision does not elaborate under what authority of law Chief of Army Staff could impose emergency on the advice of Prime Minister. It is held that judges “who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007, have ceased to hold their offices on the 3rd day of November, 2007.” Since the Oath of Office (Judges) Order, 2007 is void ab initio, any proceedings taken in pursuance of the same are nullity in the eye of law. No judge can be removed except the method provided in Article 209 of the Constitution.
Since the judgements of apex court, issued after seven-member bench declaring action of November 3, 2007, are untenable, the restitution of judges, deposed through a law violative of express provisions of the Constitution, poses no problem. The newly-elected parliament by refusing to validate Article 270AAA and passing an Act nullifying the judgement of Supreme Court can restitute the pre-November 3, 2007 judiciary. The matter is of simple legal nature and should be solved through a legal procedure rather than entering into political polemics and undue controversies. This will not be the first time that the Parliament will nullify a judgement of apex court; it was done in the past by passing a law through simple majority. Numerous precedents are available to this effect, which Mr. Farooq H Naik certainly knows. The act of Parliament will restore the rule of law in its real sense in the country and all the deposed judges will be restituted without any interference on the part of executive. If done through an executive order, it will set as bad an example as by the Musharraf on November 3, 2007. In future, any Chief of Army Staff or government can resort to such an illegality.
There, however, is no need for any constitutional amendment, for which two-third majority is required, as propounded by Abdul Hafeez Pirzada, Rashid Quershi, Malik Qayyum, Waseem Sajjad, Khalid Ranjha, and Ahmad Raza Kasuri et al. The Supreme Court after restitution of pre-November 3, 2007 judiciary will certainly take cognizance of the matter suo moto or on the initiation of aggrieved party [which is public at large] to correct the mistakes committed by their learned colleagues. It will restore the rule of law in its real sense in the country. All the judges [illegally removed] are still judges as action of November 3, 2007 was declared void ab initio by seven-member bench. The illegally removed judges must assume their offices immediately an Act is passed by the parliament nullifying the above-referred judgements. In addition, in terms of Article 190 of Constitution, all executive and judicial authorities throughout Pakistan are legally required to act in the aid of Supreme Court. Thus, the new government is duty bound to implement the order of seven-member bench of apex court of November 3, 2007.
However, the issue of ousting of judges, their house arrests, denying them right of free speech and movement and now hindrances in their restitution cannot be examined in isolation. This confirms that as a nation even after 61 years of existence, we have miserably failed to abide by rule of law. At the heart of the concept of democracy is the assurance for the citizens that their affairs are going to be managed by a ‘Responsible Government’ and rule of law will be ensured. If we analyse the Pakistani scenario in the light of the above basic principle, there will be utter disappointment and frustration. The conduct of each government after the death of Father of the Nation was to waste or plunder public money, force the people into international debt enslavement and mercilessly flout all rules and laws. Therefore, if we have failed to establish independent judiciary, true democracy or a responsible Government, it is not surprising. Dispensation of justice is the main pillar of democracy, which is not possible without ensuring independence of judiciary.
The Parliament, irrespective of allegiance of individual members, must rise to the occasion—which is their historic challenge—to take the following steps for the restitution of illegally deposed judges, which also take care of Mr. Zardari’s concern (sic) for “real change” and “truly independent judiciary”:
In its resolution, newly-elected parliament denounces all the acts taken on November 3, 2007 and resolves that for a true democratic and constitutional rule, a strong and independent judiciary is a sine qua non. Thereafter, the following bills should be tabled and passed:
Bill for ‘High Treason Act 1973 (Amendment Act 2008).
This Act amending High Treason Act, 1973 should provide that that in case of violation of Article 6 of Constitution, it will be incumbent upon the apex court to take immediate cognizance and direct the Attorney General of Pakistan to initiate trial of offender. Thus in future, the apex court instead of validating any violation of Article 6 will be legally obliged to punish the offender(s). It will send clear message to imposer of emergency on November 3, 2007 to step down voluntarily or face trial for his admitted extra-constitutional acts.
Bill for ‘Oath of Judges, Act, 2008’ (invalidating Oath of Office (Judges) Order 2007).
By Passing this Act, the National Assembly will pave the way for reinstatement of November 2, 2007 Judiciary and nullify the judgements of apex court, namely, Tika Iqbal Muhammad Khan v General Pervez Musharraf and others (PLD 2008 Supreme Court 178) and Tika Iqbal Muhammad Khan v General Pervez Musharraf and 2 others (PLD 2008 Supreme Court 6). With the passing of this Act, in future no judge will be removed through any executive order or through any law related to oath of judges.
Bill for National Reconciliation Act 2008 (NRA)
In National Reconciliation Ordinance 2007, Musharraf intentionally excluded cases registered after 12 October 1999 for ulterior motives to exclude Nawaz Sharif and Shahbaz Sharif. In order to create a genuine atmosphere of national reconciliation and put an end to political victimization, this new Act should be passed immediately removing all the time-specific and person-specific provisions in NRO, 2007, which are in direct conflict with Constitution, and extending its scope to all the persons affected.
The above measures will pave the way for a new beginning in this country ensuring the rule of law, constitutionalism, democracy and justice through an independent judiciary.
_______________________________________________________
The writers (ikram@huzaimaikram.com), tax advisers, legal historians and authors, are visiting Professors of DR. IKRAMUL HAQLLD, MA, LLBInternational Tax Counsel
[Courtesy http://pakistanmartiallaw.blogspot.com/]
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