Executive vs. Judiciary

Yesterday, a presidential order was passed to elevate Lahore High Court Justice Saqib Nisar to an apex court Justice. Within four hours of the presidential order, the apex court slammed the presidential order, besides, terming it a serious violation of article 177 of the constitution.

The article 177 of the constitution of Pakistan states: The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice.

In a wake of this donnybrook between the lawyers or Judiciary and federal government or Executive, it’s also said that president did consult the Chief Justice Iftikhar Muhammad Chaudhry before the presidential order was passed. Simply following a formality and consulting the Chief Justice of Pakistan within this formality border isn’t a right way. Our constitution doesn’t speak about the further solution lest there’s a dissonance between the CJP and president. So here something called a ‘common sense’ needs to be used that both CJP and president should unanimously agree over the decision of appointing the Judge. One agreeing and other disagreeing isn’t viable specially when Judiciary and Executive are important part of country’s edifice and their tussle would surely create more problems in an already troubled country.

Hence, it’d be letter-perfect to say that the presidential order by Zardari was an overhasty act which lead to a quick brouhaha in the country. Had Zardari consulted the CJP in order to deduce a unanimous decision, the today’s melee amongst the custodian of country’s edifice would have not happened.

Another controversy is the Al-Jihad Trust Case. Former Chief Justice of Pakistan Justice Saeeduzzaman Siddiqui has also said that at no point the Al-Jihad Trust Case judgment binds the Chief Justice to recommend the Chief Justice of a high court to be elevated as judge of the Supreme Court and the Chief Justice could recommend number two or even number three senior most judge for this elevation.

Confusion in this regard has been created because of intermixing of the Al-Jihad Trust Case with Malik Asad Case by some people. In Malik Asad case, Justice Saeeduzzaman Siddiqui himself gave the verdict in 1997 that senior most judge of a high court will become the Chief Justice of that high court and senior most Judge of the Supreme Court will become the Chief Justice of Pakistan. What needed to be understood is that the seniority principle is not applied in the issue of elevation of High Court Judge to the Supreme Court.

This means that if Chief Justice recommends Justice Saqib Nisar, who is second in seniority, for elevation to the Supreme Court and ignores the Chief Justice of the same High Court, neither the Constitution nor the Al-Jihad Trust case bars him from doing so.

To release the tension in the country that doubles every second day, president of Pakistan needs to act prudently and adopt a strategy of balancing things in order to restore the harmony. If anything, challenging the apex court is as equal to showing the red reg to the bull. This is right to say: Once the Supreme Court gives a judgment after scrutinizing the constitution profoundly, it’s not open to any authority to defy or ignore it. While there is room for criticism of the judgments, there is no room for defiance.

NRO Thrashed

17 Members Bench Of Supreme Court

17 Members Bench Of Supreme Court

Since the promulgation of NRO to date, it has always been confronted by absolute majority of Pakistanis. Now it’s adjudicated by 17 members bench of Supreme Court of Pakistan, after 5 hours of long discussion in a meeting room, to ultimately drub the NRO. A host of argle-bargles had kept on brewing in at times to prove and disprove if NRO was really an ordinance to subscribe to.

The controversy has now come to an end. A long standing issue is finally settled with a strongly yearned for decision.

Today again, I’ve started believing that the ‘Doctrine of Necessity’ — that has always been a part of Judiciary in the past — is now buried deep under the ground. This is the same de facto ‘Doctrine of Necessity’ that has ruined Pakistan all the time in the past. This decision of Supreme Court is lauded by everyone by and large. Some exceptions — when ‘Jiyalas’ are concerned at this particular event — are always there.

The recent decision has opened new horizons of Justice, and that how Supreme Court will adjudicate so many cases against the so many beneficiaries of NRO. Supreme Court should adjudicate the long standing cases imminently. But there are problems with the initial velocity of the proceedings at this beginning stage against the culprits since the hierarchy begins with the name of incumbent president of Pakistan Asif Ali Zardari who’s said to be the top banana amongst the NRO beneficiaries.

The Article 248 of the constitution of Pakistan gives legal immunity to the president of Pakistan. But there’s something startling in the same constitution under the article 25 of the constitution which guarantees that every citizen is equal before the law and is entitled to the equal protection of law. The startling thing is now about to begin that no ‘reference’ has been made in the article 25 of the constitution that can disjoin or conjoin article 25 with the article 248 and vice versa. So, if anything, it has in some manner become an oxymoron. However, at different places, there are quite a number of references mentioned in the constitution just in case that it wouldn’t become double-barreled.

Whatever the case see may, but the question is simple: why a president can’t be summoned before the court?

Once, Hazrat Omar RA appeared before the court of Medina. Somebody had made a complaint against him. The judge stood up to show respect to the Caliph as he entered the court. “This is the first injustice you have done to the plaintiff,” said Omar RA, addressing the judge.

Modern democratic states have yet to reach this level of democracy. Their heads cannot be summoned before an ordinary court.

Not long since the article 248 of the constitution has been challenged in Supreme Court — the petition of which was filed by Communist Party of Pakistan — which says that the article 41 of Chinese constitution gives courts the right to summon any leader including the president of China before the court. A socialist country can summon its president, democratic countries can’t. Gee whiz!

In a wake of this donnybrook, we should be thinking that why such looters and plunderers like Zardari hasn’t been punished ever in the past. Perhaps or rather we don’t have any quick response to this question — only when the de facto ‘greatest national interest’ is concerned — yet we’ve so many responses suddenly lining up one after other once the de facto explanandum is snubbed from the mainstream politics of Pakistan. One big response would be the uncontrolled state of accountability which, to all appearances, is now attempting to get back on the track.

The journey to provide justice to Pakistan — by Supreme Court judges restored after 2 years of interminable efforts and exertion of awaam — hasn’t finished after the annulment of NRO. The rejoicing is effective at the moment, but subject to change depending upon the performance of Judiciary in future, as I’ve an urge to remind this again and once again. Supreme Court must again prove its commitment to the Justice by rendering the Justice — again, in a manner which gives evidence about Justice. Justice is all we need.

This is for the genuine beneficiaries of NRO: for how long could you save yourself now? Your time’s up.

Youm-e-Iftikhar — The victory of Justice

Freedom of Judiciary!!

As the Aristotle said:

Moral excellence comes about as a result of habit. We become just by doing just acts, temperate by doing temperate acts, brave by doing brave acts.

16th March 2009 — has become a red-letter day in the history of Pakistan. The day is marked with the great fortune for Pakistan when the Nation witnessed the Independence of Judiciary in the form of restoration of deposed Judges including the Chief Justice of Supreme Court — ousted during the dictatorial regime of General Pervez Musharraf on 3rd November 2007. After more than two long years and the interminable endeavors of Lawyers — resulted in the reinstatement of Judges — has made Pakistanis enthralled and turned their caprice to begin with a new future of nation with more devotion and optimism.

1400 years back, there was a society where rich and poor, friend or foe, Muslim or Non-Muslim, the rule and the ruled — all were treated equally. Each of them would count on Judiciary. The management was strong — and the Justice was satisfactory enough. Then a downfall of Justice occurred. Even during this downfall we saw some of the precedents which entails that the Justice on the land of Allah wasn’t yet obliterated completely. Once, when British used to rule over sub-continent, a dispute of some land arose between Muslims and Hindus. Hindus laid a claim that the land belonged to a temple while Muslims laid a claim that the land belonged to a Mosque. Both the groups were trying to be eminent in claims and prove their due rights. The British Judge was bewildered and confused to announce the final result so he asked both the groups if they could accept the testimony of a third person who’s known as pious amongst both the groups. The third person was a Muslim. The entire Muslim community urged him to help them win the case by giving a testimony in favor of them. The pious man would never do so. He briefly reviewed the case and gave a final proclamation in favor of Hindus.

That’s the Justice we need today and for the same Justice — today, we see Pakistan with a different aspect. Long before — 61 years back when this Nation got independence and till to-date — it has always fought for the Independence of Judiciary. Lawyers have given so much of the sacrifices to acquire the independence of this grand institution. Not only Lawyers, the civilians of Pakistan have sacrificed majorly and fought considerably for this great cause. The supporters during the Lawyers Movement were aimed by violence and vehemency, the brutality and cruelty, apprehended and jailed, and what not. Yet these things never derailed the aim of the supporters of this great cause, and they brave out such difficulties. At this phase, I feel like quoting Allama Iqbal — One of the verse from the conversation between Hazrat Jibrael AS and Ibless: Kar gaya sarmast mujh ko toot kar mera saboo — Which means: The loss I have suffered, has increased my passion more. I feel it’s the same example conformed to the Lawyers Movement. They were duped, they rose. They were suppressed, they rose. They were beaten yet they rose again. Their aim was one, their vision was clear, their demands were long promised, their support was bulky. The verge of loosing was never near to them — in fact it can never be. They had the blessings of “Justice” which always win ultimately. And finally they won. They set upped example — example of dedication to the truth and a valor.

The Nation has great hopes from them. The clouds of despair were rising above the country, the hopes were near to forlorn — but now people are greatly optimistic to see a spectacular change. Now this change can’t come overnight. But sure, the change is on it’s way now. It has started from 16th of March 2009. We’ll see this change in a time to come – InshaAllah.

As Allama Iqbal said:

Zamaney key andaaz badley gae;
Naya raag hai saaz badley gae

The Fashions of the age turn round,
From new tuned strings, new harmonies sound

The new tuned strings and the new harmonies that will sound will be good enough to live with – InshaAllah!!

Pakistan Zindabad!! Long live Islamic Republic of Pakistan!!