CJ salutes parliament for not ratifying Nov 3 acts
Wednesday, July 22, 2009
By Sohail Khan
ISLAMABAD: The Supreme Court would announce its decision in the judges appointment case by Friday and proclamation of state of emergency by former military dictator Pervez Musharraf on November 3, 2007.
Chief Justice Iftikhar Muhammad Chaudhry, while hearing a case of the Sindh High Court Bar Association (SHCBA) seeking regularisation of services of two judges of the Sindh High Court (SHC), said on Tuesday the decision in the case would be announced by Friday.
He was heading a 14-member larger bench of the apex court, comprising Justice Javed Iqbal, Justice Sardar Muhammad Raza Khan, Justice Khalil-ur-Rehman Ramday, Justice Mian Shakirullah Jan, Justice Tassaduq Hussain Jillani, Justice Nasir-ul-Mulk, Justice Raja Fayyaz Ahmed, Justice Chaudhry Ijaz Ahmed, Justice Ghulam Rabbani, Justice Sarmad Jalal Usmani, Justice Muhammad Sair Ali, Justice Mahmood Akhtar Shahid Siddiqui and Justice Jawwad S Khawaja.
During the course of proceedings, the chief justice saluted parliament for not ratifying the November 3, 2007 actions relating to the proclamation of emergency.
At a point in the proceedings, the chief justice remarked the people of Pakistan had suffered a lot and no more unconstitutional measures would be allowed. Enough is enough, he observed.
The SHCBA had filed a constitutional petition through its president Rashid A Rizvi, seeking the regularisation of services of two judges of the SHC, Rashid Kalhoro and Zafar Sherwani.
The bench was reviewing the apex courts decision in the Tikka Iqbal case validating the imposition of emergency on November 3, 2007, making more than 60 judges of the Supreme and high courts non-functional.
The same bench was also hearing Muhammad Akram Sheikhs petition against the judges of the superior judiciary who took oath under the Provisional Constitution Order (PCO) promulgated on November 3, 2007.
On Tuesday, Attorney General Sardar Latif Khosa submitted that the present government did not support the imposition of emergency on November 3, 2007.
The bench asked the attorney general to state whether the incumbent government supported the emergency rule imposed by the then Army chief Gen (retd) Pervez Musharraf and the Supreme Court judgment in the Tikka Iqbal case validating the imposition of emergency.
The attorney general replied that the Pakistan Peoples Party had rendered great sacrifices for the rule of law in the country and lost a number of party workers in the movement for the restoration of the judiciary. We believe in democracy and strengthening of the institutions and never supported repressive rules, Sardar Latif Khosa said.
He further submitted that neither parliament nor the president or the prime minister ever supported the imposition of November 3 emergency. He contended that the apex court had the jurisdiction to review its judgment in the said case.
At this, the chief justice, in his observation, said he saluted parliament for not validating the November 3 acts. He further observed that the February 18, 2008 elections were held under the 1973 Constitution of Pakistan and that the incumbent parliament, provincial assemblies and the president and the prime minister were elected under the Constitution.
Rashid A Rizvi, the counsel for the SHCBA, while continuing his arguments before the bench, prayed the court to set aside the SC judgment in the Tikka Iqbal case, to which Justice Sarmad Jalal Usmani enquired as to what was the link between the two cases.
Rashid A Rizvi replied that this case provided basis for denial of confirmation to the two SHC judges. He further submitted that the SHC chief justice had recommended the said judges. He said the views of the respective CJ should be given preference in appointment of judges, as he better knew their judicial and extra-judicial conduct.
He further submitted that the SC judgment in the Tikka Iqbal case had not spelled out the nature of disastrous consequences it had feared in case of non-imposition of emergency.
At this, Justice Khalil-ur-Rehman Ramday said emergency was imposed when the SC started hearing the petition against the candidature of Gen Musharraf for the Presidency and the rulers realised they would not win the case.
He further said the situation during the last two months was more crucial than in November 2007, as millions of persons were displaced due to the armed forces operation against the militants in Swat.
However, Justice Ramday said no emergency was imposed and all the state institutions remained working in their constitutional spheres.
He said Sharifuddin Pirzada used to threaten the court while arguing before the bench hearing the petition against the candidature of Musharraf for the Presidency.
Advocate Hamid Khan, another counsel for the SHCBA, submitted before the court that the February 18 elections were constitutional as, he said,these were the consequence of the expiration of constitutional term of the assemblies and were held under the Article 224 of the Constitution. He said they were focusing on the instruments introduced by the dictator after the imposition of emergency till December 15.
Justice Ramday said the term emergency should not be used for the unconstitutional measures taken on and after the November 3, 2007. We should not defame the word emergency which is a sacred constitutional exercise, he remarked. It was not even the martial law as the Army was not involved in Nov 3 acts, rather it was Generals law, he further observed. The court adjourned the hearing till today (Wednesday).
CJ salutes parliament for not ratifying Nov 3 acts
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No one to defend Musharraf in SC
Wednesday, July 22, 2009
By Ansar Abbasi
MURREE: It would have to be a diehard loyalist legal eagle of Gen (retd) Pervez Musharraf to swoop in to his legal defence before the Supreme Courts 14-member bench, as the government clearly has no plans, or intention, to protect the man who had ruled the country for over eight years with absolute authority and impunity.
An official source closely associated with Prime Minister Yousuf Raza Gilani told The News on Tuesday the attorney-general had been asked not to defend Musharraf before the 14-member bench of the apex court, which is currently hearing an all important case that would focus on major distortions made in the system by Musharraf on and subsequent to Nov 3, 2007.
Musharraf is currently in London and as things are proceeding in Islamabad, the former dictator is left with two options: either to settle for an exiled life in the UK or to show courage of facing independent courts in Pakistan. Musharraf has recently purchased a flat in an expensive locality in London Edgeware road.
The Prime Minister Secretariat source said although the government may like to retain some of the bits of Musharrafs unconstitutional actions of Nov 3, 2007, it does not want to defend Musharraf himself before the 14-member Supreme Court bench.
The source though insisted the president and the prime minister are in unison to secure appointments of all the judges, those who took oath under the PCO on Nov 3, 2007 or those who were appointed on the recommendations of de facto chief justice Abdul Hameed Dogar.
Interestingly, the PPP is divided on the issue as the likes of Raza Rabbani and Safdar Abbasi seek complete cleansing of the system from the distortions created by Musharraf.
While the government would defend the PCO judges and also those appointed on Dogars recommendation, a law ministry source said the Nov 3 decision of the seven-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry and the principles as laid down by the Supreme Court in the Al-Jihad case would serve as the cornerstone to decide the future complexion of the superior judiciary.
The seven-member bench of the de jure Supreme Court had barred Musharraf on Nov 3, 2007, from taking any action contrary to the independence of the judiciary.
The Supreme Court had also noted no judge of the Supreme Court or high courts, including chief justices, should take oath under the PCO or take any other extra-constitutional step. It had clearly stated any further appointment of the chief justice and judges of the apex court and chief justices of high courts or judges of provinces under the new development shall be unlawful and without jurisdiction.
Musharraf, however, turned a blind eye to this order of the Supreme Court and so did the then-chief justice Dogar, who was immediately appointed as the chief justice of Pakistan in clear violation of the Constitution as well as the decision of the Supreme Court. More than 60 judges of the superior judiciary, however, refused to show their allegiance to the dictator whereas others like Dogar, who were in minority, took oath under the PCO.
Within a few days of his appointment, the de facto chief justice constituted an 11-member bench and validated the abrogation of the Constitution by Musharraf, overturned the order of the de jure Supreme Court and had ruled that all those judges of the superior judiciary who had not taken oath under Musharrafs PCO had ceased to be judges. However, the nation neither accepted Musharrafs unconstitutional action nor did it accept Dogar and joined the countrywide judicial movement that finally ended up in the restoration of all the deposed judges in March this year.
No one to defend Musharraf in SC
