Guest Blog by Amjad Malik
Public have silently spoken through ballot putting added pressure on our political clan who always fall a prey to pragmatism and accept defeat before even the battle starts. Lawyers moved, bench stood up, media bore with the bashing honourably but only the clan of Q did not move and surrender to public demand and in the end they fell badly from their throne as pride hath a fall. Now public with sheer wisdom have given the task to the new parliament to sort out the mess the country is in rather than boycotting or bringing an orange revolution which is in true sense a silent revolution where opponent is defeated though still alive.
I foresee many tasks which are coming before the new Parliament and I will divide in 4 issues, constitutional, judicial, Social, and nationalism. I will talk on first two in this essay. First and foremost task ahead is to liberate the Parliament from the unseen pressures and fears including Art.58(2)b. There is no doubt that we have mutilated the constitution badly into a position that its neither Islamic nor UK or US style, its a mixture of all three and its neither Presidential nor Parliamentary. Parliament needs to at once resort to constitutional overhaul to bring it back to the place where it stood on 12 October 1999, sooner it is done the better it is. We also need to determine the role of army in politics. Hamood ur Rehman commission was quick to depict our weaknesses earlier in 70s and in particular I quote one sentence from the report at Chapter 1, Para (9), according to Rear Admiral M. Sharif (Witness No. 283) who was the Flag Officer Commanding the Pakistan Navy in East Pakistan, said ” While learning the art of politics in this newly assigned role to themselves, they gradually abandoned their primary function of the art of soldiering, they also started amassing wealth and usurping status for themselves.” We need to decide, do we still wish to keep the role of army in our politics, if yes, Parliamentary defence committee could be broadened further giving more representation and say of army commanders in it. If the answer is negative, which to me is just, then Parliament may consider amending the Article 6 finishing the law of necessity and creating a free standing clause that any commander of armed forces who invades the parliamentary sovereignty and abrogate the Constitution will stand dismissed from his post of government service and SC will initiate the trial under Art.6 of the Constitution of 1973 forthwith and give judgement within 90 days and his deputy will take oath as acting commander of armed forces whilst the article 6 trial is pending. I think we are ignoring the development, India and Bangladesh have made to curb this tendency to coup de tat especially in the promotion of officers of the armed forces and these promotions from the rank of Lt. Colonel may be brought under Parliament ideally before defence Minister and Chief Executive, of course with the recommendation of their commander to bring the officers who are ready to die in the line of duty for their country to be accountable to civilian authority. It is similar to judges, higher officials of police and civilian machinery. There is no shred of doubt that Pakistan army is one of the finest and can do any task given the opportunity however, its past record of bringing in 4 martial laws in the short span of countrys 60 years life speaks for itself that there is a need of genuine thinking to make this organisation parliament friendly and new army commander with his wisdom and consultation must consider to compete with other armed forces in the region as well as bringing it to some sort of legal excellence, thus by default promoting the parliamentary form of democracy in the state of Pakistan.
Second most important task would be to create an independent judiciary which in true sense can act as a buffer zone between the power struggle of politicians and Generals and may act given the opportunity as an arbitrator to absorb all the shocks to the state and handle any tussle between the institutions in accordance with the law of the land and where provinces have a grudge with the other, it can safeguard the national interest. Looking at the scene very few legal stalwarts are left untarnished by the mighty, but still bar, bench and media can take this struggle further to strengthen the judiciary in true sense. Dream of independent judiciary though does not suit the rulers military as well as civil but inevitably is the key to stop military interventions in order to bring true democracy. However this independence does not come easy. Lawyers need to keep its ranks politics free and work hand in hand with the bench. A lawyers work must start from its professional service and must peak to the highest ranks of the bench. If lawyers wish to play a political role, they must continue their politics of electioneering, however to promote the fairness and independence they must consider not to act in dual capacity being an office bearer of a political party and elected member of bar thus avoiding unnecessary conflict of interests as there is a room of both interest ever conflicting. In that case either you can be loyal to one party or the Bar & cause of judiciary. Judiciary as an institution also requires financial autonomy, complete separation of power from executive, a crystal clear method of appointment of judges, and they must be held to account only by Parliament. They must be facilitated for their ongoing professional training and mentoring, personal security, as well as constitutional safeguard from executive man handling. Its a dream which has no complete answer and can only be achieved with the passage of time if necessary steps are taken. If our children in schools now study law and attain the right to judgeship after duly required qualifying criteria with the environment predicted only then we can say that the judiciary is on the sail to its freedom and independence. It is not liberated with one decision as happened on 20 July 2007 and it will not be liberated with one man as was the case with Justice Choudhary as still Nawaz Sharif was deported on 10 of September 2007 which shows the clear conviction of the establishment on the topic. Its an ongoing struggle which requires vision and political will to facilitate that atmosphere in which a judge can dispense justice. The image of detained judges with families is horrific one and its a night mare for rulers who have received their first instalment by way of 18th February election results and if the mandate is not accepted then people may take to street to embrace the detained judges and escort them with their full honour to their courts by force as rulers may not accept the power of vote and thats the language they are promoting might is right. Thats the way things are in General Mushrrafs Pakistan where government is constituted and run by force and people are coming to a stage where they will feel that judges need to dispense justice by force too, though the anomaly is very dangerous but someone should listen to the verdict of janta too the lonely voice of silent majority who always remain out of touch in the countrys national business. People wishes to see Quaid e Azams Pakistan in which judges are not detained, media acts free and Parliament is sovereign and army protects the borders of the country, thats for 4 million people laid their lives to bring this dream come true. Thank God Quaid e Azam Mohammad Ali Jinnah is not alive to see all this lawlessness otherwise he would have caught the collar of the ruler and would have said, what have you done to my Pakistan.
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and a political analyst based in UK
Silent Revolution (2)
By: Amjad Malik
My brief visit to Pakistan in March was welcomed by suicidal blast in Lahore FIA building and farewell attack in Islamabad restaurant resulting several deaths and injuries which pose a serious question of law an order situation in Pakistan where some ordinary citizens still believe that its more of self created problem and may be some agencies involved in it. Opinion is divided which is fatal for Pakistan as govt of the day has failed to send a message across the gravity of situation where unknown sophisticatedly armed men are willing to die with hundred others to score some political point, is it a revenge or the foreign invasion of different kind. It may be the failure of Musharraf regime to properly advocate in favour of their ill thought policies which are back firing. As a nation Pakistanis are not trained to an extent where they can stop any danger coming towards the state in fact, we all awake when the water is above the danger threshold, and nationalism is no where seen in Pakistan and alas Qauid e Azam Mohammad Ali Jinnah is confined to portraits and ceremonial status. His sayings and doings are hardly remembered in particular by our rulers. If they are acted upon from the beginning or even now, we would not be in the mess we are currently in.
12th May massacre showed the tendency of rulers to an extent they may go to suppress lawful drive for constitutionalism in Pakistan, however, the way nation behaved over the tragic death of late Be Nazir burning their own train stations, looting banks and blowing businesses and damaging properties is a worrying sign for the flag carriers of federation. We need to knit ourselves to one nation without caring our geographical heritage or regional location in order to combat the 21st century war of information. Of course, language can play an important and integral part in carrying the message and none other than Urdu could be used to broadcast national message which may be understood by all as if you speak in foreign language how can you convey your message in a borrowed language. I would go one step further and would recommend national disciplinary service to train the whole nation towards rule of law & basic defence drive so that we as a nation start to learn respecting the law of the land.
Common Pakistanis are hit by price hike, lawlessness, and are suffering due to lack of educational, health and social welfare facilities and above all we are perturbed by political Mullahs role in our day to day life. Extremism is multiplying and lack of stable political activity is doubling the radicalisation in our attitude where poverty and unemployment throw a bait to the rich mafia to do dirty and manipulate our young uneducated radical mind to use suicidal attacks as a fire work. Political business reduce tension and put people on table to solve problems. Pakistan needs a national drive of reconciliation to set up a political system and ponder on a serious social charter where nation which lacks infrastructure can come nearer to a dream to get justice, economic strength and basic necessities like free education, state health service and employment. New govt must consider granting the dictatorship ridden Pakistan a ray of hope where social welfare dream comes true. A lay person gets justice at the door step due to devolution of justice system to the town level, poor gets flour to eat bread and gets employment and his sick mother can be treated free at a national hospital and his daughter can go to school trouble free at state expense. At the moment people in General Musharrafs Pakistan are on the street with mobile phone in their hands crying for shortage of flour, sugar, oil and high price petrol. Work work and more work must be the aim of the nation who achieved the statehood after sacrificing 4 million souls in 1947 and democratic parties must show sensitivity befitting to the situation and try to promote culture of democracy within their parties and try to bring the politics of issues back in business and remove high level investment out of electioneering. As it stands politics is a cup of tea of a investor mafia, landlords, successful business men or retired bureaucrats and lay middle class cannot even think participating elections as normal election cost around 20 million Pakistani rupees and one who invest that much would definitely wait to double their investment once elected. The whole business of politics must be brought back at a cup of tea rather than a tea break with a roast chicken and Indias example is in front of us.
We must foster new traditions where live and let live must be the motto and the whole nation must be taken into confidence in this national drive of building Pakistan once again. We are once again at a stage where we have to decide and revive the principle and discipline ourselves to beat other nations with progress, modernity of mind and prosperity of our life style where we are well versed of our Islamic teachings ourselves so that mosque leader does not take advantage of our ignorance and interpret Islam the way he likes. Pakistan is in serious trouble at the hands of a few and the nation can beat this faceless enemy who is after its progress, modernity, and conservatism if the difference between our sayings and doings is eradicated and we all work for national cause. Pakistan first seems a popular slogan but do the rulers really mean it. Pakistan day begs this very question if the country comes first then why the whole nation is witnessing unprecedented oppression against the chief justice and his fellows who took a stand to preserve the interest of state first than the interest of a man. Is it not what Article 5 of the constitution 1973 says, “ (1) loyalty to the state is the basic duty of every citizen. Lets all be loyal to the state of Quaid e Azam on this 23 March and onwards.
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and a political analyst based in UK
21 March 2008
A very beautiful analysis but ignores the fundementals. Why army intervened during earlier times?When Nawaz an elected leader wanted friendship with Vajpayee, Musharaff put kargil on the front burner sothat the initiative is killed.He got benefit of 8 years of rule with both Americans,chinese and Saudi arabia supporting him. Ofcourse the voice of people of pakistan didnot matter to these international backers of pakistan.
Patriotism is the tool which Army used to rule Pakistan and now when Nawaz proposes visa less travel with India or Zardari propses kashmir backburner, immediately comes response from Kiyani and Jammat that NATIONAL CONCESUS must not be changed!!!!!!!!!!!!
Islamic SHARIA cannot be changed and any law which gives equal rights to woman becomes the target for status quoists and men
Where is our parliament in all this?
By: Amjad Malik
Economy is nose diving in Pakistan and people with load shedding, wheat and oil crisis are forced to take law in their own hands and we saw people burning the robbers in Karachi and indecisiveness is breeding law and order crisis, apathy and decline where any thing can happen as a result and whatever happens is not at all in control of the human mind and may affect the best interest of Pakistan especially when foreigners are flying like eagles on our rear borders. Those who came declaring themselves the champions of democracy are solving constitutional matters outside the Parliament and democrats this time have made parliament a rubber stamp not the dictator, Judiciary is on the road, Justice Dogar is unacceptable to majority and he is facing extreme resistance by lawyer fraternity, CJ Iftikhar has a personality clash with the President, establishment is confused waiting for further instructions, Police is unable to enforce law, and people doing road justice by force in the absence of credible judiciary and Malik Qayum fame tapes are in the market spreading revelations about schemes to keep Sharifs out of election race. In these circumstances 10th of June Long March of lawyers have hidden stings in it which are many fold and they may attempt to put deposed judges back in the Supreme Court by might which may result in a successful lawful coup or it can be counter productive to invite a counter coup by President throwing his wrath on the parliament for their indecisiveness, breaching their pacts and neglecting to avoid the economy from decline or at best military intervention to stop this unrest multiplying reaching no where which all ends in the collapse of the 18th February popular mandate of the people of Pakistan and in the end so much so for the democracy of Pakistan and people’s vote.
I for one, feel that we all are bound to look after the best interest of the state and at best if this uncertainty is allowed to loom, it can be disastrous for the state economically, politically, and socially. As any constitutional package containing unpopular clauses will hardly get to the stage of royal assent at least for a year unless Q or N league supports, I feel lawyers as well as people of Pakistan are getting restless because of this hit and run politicians who are ridiculing the judiciary by the very delay in restoring them. If they are unable to reach consensus then there must be some confidence building measures to show their commitment akin to the circumstances where politicians supported Musharraf to get elected by abstaining to vote instead by remaining in Parliament and in exchange getting a hero’s welcome on 18 October and issuing of a National Reconciliation Ordinance by the President who swore to keep BB and Babu out at every cost. Though we all are the passengers of the same boat and none have the exact answer but I have the following few suggestions throwing some workable scenarios for the legal hawks to brain storm in case the time comes for possible solutions;
• The political clan may Offer Chief Justice to resign with full political backing and invite him be the candidate for the President of Pakistan. He will be an ideal candidate to be the President carrying the symbolic federation support as well as lawyers and civil society especially after clipping the wings of the President turning it into a ceremonial status. The argument in favour would be the justiciablity of his position once he is restored as his brother judges can do a better job in supreme Court and he has done his bit (if he agrees), Alternately;
• Chief Justice is restored after a resolution with an executive order withdrawing earlier law secretary notification immediately making him functional who takes charge and decide the fate of the decision of 3rd Nov PCO, 23 Nov 2007 case of Iqbal Tikka Khan, and settle the issue of post 3rd Nov appointment of judges via full court reference and issue guidelines. That will be an ideal solution and Parliament can bring constitutional package to sort out the rest. Alternately;
• To start with all the 59 judges must be restored to their positions immediately by Executive Order making them functional so that it seems that politicians are willing to settle the judges issue. Chief Justice Iftikhar Choudhary is allowed all the privileges and protocol of the Chief Justice in waiting and he is allowed to rest until consensus is evolved to restore him as CJ i.e viable mechanism and or political consensus by majority on realistic Constitutional Package. In the interim most senior judge of the SC is made the Chief Justice of Pakistan with an understanding that Justice Iftikhar Choudhary will take over once back. Justice Dogar and others who have taken oath in violation of the 3rd November judgement are left on the mercy of the full court of 2nd Nov which decides what should be course of action as to the best disposition of their taking oath, early retirement and or reference to the SJC and give guidance to deal with the other two categories i.e those who were freshly appointed but taken oath under PCO and those who were freshly appointed and have taken only oath under Constitution of 1973 only bearing in mind the earlier ruling in Al-Jehad Trust case. If any post 3 Nov PCO judge disagrees to the restoration of the judges, his reference is filed at Supreme Judicial Council which decides the fate of the judge in question on case by cases though to me in any event guidelines must be given by full court of 2 Nov 2007 as to best course of action to deal with the three categories of post 3 Nov judges. Alternately;
• If that is not acceptable then Judges retirement age can be extended to 75 as in United States there is no retirement age for the judges and Saeed Uz Zaman Siddiqui along with clean judges the likes of Justice Wajeeh uddin, Justice Nasir Aslam zahid, Justice Mamoon Qazi of the SC who were acting on the fateful day of the issuing of PCO in 2000 must be brought in to make up the required number of SC judges as per constitution which is 17 and all those undesired judges by the fraternity are either given an option to resign, face possible SJC reference or they are made non functional until their eligibility as well as appointment is scrutinised by the Highest Court via full court checking the validity of PCO too in the larger interest of the institution. Alternately;
• I know for the fact that the ruling camp would be dying to restore and resubmit Art.209 reference against Chief Justice on the premises that the actual reference on facts have not been adjudicated yet and restore the rest of the judges keeping all the PCO judges too which will be disastrous for the independence of judiciary drive and for any political party to take this bitter pill. Public will not accept this onslaught too so rulers must be careful too. If we leave the 2 Nov judges to decide the fate and future of their brothers , it will be best as the same would be the case in Pakistan army as the Chief of Army Staff will be left with wisdom, will, choice & authority to do justice with his own Corpse Commanders if any is undesirable as we saw in the case of Lt. General Hameed Gul, Lt. General Tariq Parvez or at best Lt Gen Zia Uddin Butt. We saw no executive interference, no summary trial and no adjudication was ever seen by civilian authority despite conduct issues against those, then why so animosity against CJ, the same is required for the sake of saving this institution which is core to the heart of the people.
I am sure these may sound hypothetical scenarios, however post 10 of June 2008 Long March these options will sound blackberries as who knows where this movement leads and it is not guaranteed that things will turn out as planned, the failure of politicians to come up with the logical conclusion safeguarding the larger interest of state as well as one institutions along with avoiding collusion with other will be a challenge for them to solve this mystery at a crossroad otherwise, anything wrong, they will bear the blame too and who knows lawyers and general public floods the streets on that day breaking the famous status quo. Rulers must fear from that day as in that case public will hold accountability and will ensure justice and there will be no 90 billion tax free meal at public expense as Americans themselves say that there is no free lunch in the world. Public will demand accountability of all, where is our Parliament?
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and a political analyst based in UK
27 May 2008
I've invited the family to ours this xmas for a traditional dinner, so obviously the roast is pretty important! I found a tonne of ideas at this roast recipe site, but cant decide on one – there's too many to choose from! It is fun planning such a big xmas dinner though!