LHC Justice: Bail for Sohail Zia Butt, conviction for Rehman Malik!

The honourable judges of the Lahore High Court continue to leave no stone unturned in disgracing the institution of judiciary in Pakistan. On 11th October 2010 the court granted bail to the PML-N leader Sohail Zia Butt and suspended his three year sentence given in absentia.

The verdict is in line with every verdict given in Pakistan and worldwide. Verdicts pronounced in absentia are procedurally rescinded and sentences suspended pending appeals and retrials, the verdict follows all precedents except one.

Not six months ago, due to the ‘increasingly deteriorating situation in the country’ the LHC took a novel step by upholding the conviction of interior minister Rehman Malik. His bail was terminated and an arrest warrant issued. This was done by the independent judiciary in the name of setting an example, certainly it wanted to set examples it had no intention of following.

The fact that the conviction of Rehman Malik was done in absentia was ignored. The bench observed in its order while dismissing the minister’s appeals that, “after conviction, if a person is not taken into custody or not admitted to bail, such a person is deemed to be fugitive of law and would not be entitled to any relief.” It was in this scenario that President Zardari was forced to pardon Mr Rehman Malik, him being denied a fair trial in broad daylight.

The news published in Dawn News:

LAHORE: The Lahore High Court (LHC) on Monday released PML-N leader Sohail Zia Butt on bail. The court also suspended the three-year-long prison sentence given to him by an accountability court.

The Accountability Court in Lahore had sentenced former MPA of the Pakistan Muslim League – Nawaz to prison.

He had been arrested by the National Accountability Bureau on September 1 over his alleged involvement in a National Industrial Cooperative Corporation scam.

The PML-N had termed the arrest of Butt, who is Nawaz Sharif’s brother-in-law, as “politically motivated and illegal”.

Cricket at the Courthouse!!

What happened in the Supreme Court of Pakistan on the 24th and 25th May 2010 was some brilliant politics by President Zardari, which despite my avid support of PPP I had never expected of him. It was cunning yet simple. In fact what he did was a nine year old's trick that resulted in the judges and media getting caught in public unaware, with their pants down. Here is what happened, in full view:

Judiciary:

A couple of weeks before 24th, the judges coincidently decide to hear the following cases one after another,

1: NRO review petion
2: Review of 18th amendment
3: NRO implementation case

What a mighty display of strength would it be?! The judges will set an example and show these crooks their rightful place, they will be mocked about in broad daylight. We will ridicule their arguments, which shall make headlines. On rhetoric not reason we shall decide but decisions will be made, it matters not who is being punished as long as some one is being punished. So what if our blatant disregard for law in convicting Rehman Malik was spoiled by Zardari, we will show them who's the boss.

Statements are made, from the two towers of Lahore and Islamabad under the shadow casted from the heart of Pindi. "If heavens fall, so be it; justice shall be served," roars Islamabad, "we are with you, your soldiers! united under your command" retorts Lahore (right now on some brief excursion to another of those petty bar associations). Enough fodder is provided to the media, armor is strapped on, judges assembled and orders from the pit of doom in Pindi in hand, countdown to May 24th begins!

Media:

"Hail thou mighty, thee is our only saviour." I am not praying to God but that is what is going on or rather was going on until a few days back in the media. Every statement of the Chief Justice of the Supreme Court and LHC is the first headline. All the six major Urdu channels go into a trance, not unlike that of Shoaib and Sania's wedding (duh don't you get it?! It is the eighteenth amendment, yes, happening for the eighteenth time where as Shoaib-Sania's wedding is a first). So yes it will be the first headline on the news, on the newspapers and the most frequented piece on the newsticker that runs on the bottom of your screen.

All columnists write about the magnamity of the Chief Justice and his pure intentions. How the Pakistan Peoples Party under Zardari is being stubborn and if BB was alive she would have done things differently (that is why we were talking ill about her until the day she died)? How Zardari is mistaken in trusting Babar Awan and Rehman Malik when he should be trusting maybe Hamid Mir and Shaheen Sehbai? The daily batch of two dozen programs start airing war chants, predicting an impending clash which shall finally call it a day for the current setup. With dearth of people with integrity available to support their cause, non-representatives like Qazi Anwar, Imran Khan and a long list of the PML-Q members are invited to comment on the government's unacceptable attitude towards the judiciary. The matters pertaining to ordinary citizens are forgotten, this jive by judges is what matters, or so the boss said.

Government:

To the annoyance of many, PPP personnel on talkshows remain a mood kill. There are sporadic accusations against the obvious bias by that Abidi guy and Ms Wahab but nothing concrete, nothing tangible. Then what? Media prays hard and their prayers are answered, Babar Awan delivers a defiant speech in support of the President lambasting his critics with Maula Bakhsh Chandio joining in the frenzy to defend the Presdient. Everything makes headlines and the discourse of talk shows that air eight o'clock onwards. PPP though keeps playing dumb and it starts getting annoying for all including many in their own ranks I'm certain.

As the day nears, Prime minister calls up Chief Justice, to assure him of full cooperation. The media is immediately divided, half the channels consider his inappropriate behaviour on the part of the PM and the other half resort to the old rebellion against Zardari mantra.

Day 1: The beginning

24th of May is here, the government lawyers are not prepared. They request withdrawl of their plea, then eventually ask time to reconsider. Similar proceedings take place in the sitting on Eighteenth Constitutional amendment. The lawyers representing the Federation seek refuge under some article which requires that they be officially informed about the need to file a reply, which according to all legal minds was not required in this case. Either way, the judges are forced to give time to the Federation's lawyers who are now dubbed by all lawyers coming on tv as complete morons for over looking such an obvious legal clause. Still tomorrow is another day, in fact the real showdown, fireworks may still happen.


Day 2: The (anti)climax

The judges are in the courts, the lawyers, the media and anyone else who can be there is there. Cameras roll as the cars pull into the driveway. Babar Awan flanked by a dozen ministers, walks in. The judges are all ready to bat, they jump a couple of times,
stretch out their muscles, the grip is straightened out, gloves are restrained and tightened, helmet is positioned, this ball will be a six, they huddle up to nervous their oppponents, the crowd begins cheering as Awan paces to deliver, the crowds cheer harder, commentators blabber, momentum peaks as the bowler approaches to deliver and when he does, he delivers a wide ball. The climax is an anti-climax, there are more balls to come but these batsmen are no Bradman, with the momentum gone, the media discredited and judiciary effectively disgraced by themselves tomorrow may now be another day but it surely will not be this one!

Plenipotent!! Rule of law or rule of judges

The lawyers’ movement beginning on 9th March 2007 and ending after the restoration of judges on 16th March 2009 was a major milestone in the struggle for rule of law by people of Pakistan. However, little that goes on in the corridors of power of our or any nation is as black and white we would like it to be. For it is clear, that the judges that occupy the benches today have an agenda that steers away from justice and rule of law. The consistent disregard for ethical principles, maxims of law, judicial principles have now given way to blatant violations of Constitution itself.

Sensationalizing of issues

The Lords as I shall call them for I fear being charged for contempt of Court that the courts are so eager to convict for, have developed a practice of sensationalizing the issues at hand. The verdicts are delivered on Friday just like the movies were released in the good old days of Lollywood. The NRO verdict was an exception but the date ‘coincidentally’ chosen for that verdict stood out for other reasons. The people of Pakistan remained glued to screens for hours as the judges took a recess, after they had already reached the verdict. After further hours of deliberation and ensuring that every businessman and investor has been panicked to the hilt, confidence of the nation shaken, a verdict which was expected all along was announced but the damage had been done.

Statements by Judges

The Lords have also developed a habit of giving remarks that are unprecedented. The remarks by judges that have been published as head lines over the year outnumber those by the President or the Prime minister. The remarks are not confined to those given during the proceedings of the Court but also in seminars and visits to the bar associations. That the judge shall speak through his verdicts is apparently not applicable on our Lords, who seem to have taken a leaf from the villainous old hags in the stories of Khawaateen Digest.

Disregard for ethical norms

The Lord are devoid any concept of ethics that need to be observed in the workings of judiciary. The blatant disregard for the principle of seniority was observed in the promotion of Justice Saqib Nisar to the Supreme Court. However, more questionable was that the ethical principle of having parity between provinces was also not observed. The most senior judge after Khwaja Sharif was Chief Justice Peshawar High Court Justice Ijaz Afzal Khan. It may have been Khwaja Shairf's prerogative to forgo his right but who made the right transferable? Since, one of the two retiring justices was from Peshawar it made sense that he should be sent to Supreme Court. This was not done, making the court acutely imbalanced in terms of ethnic background.

Soldiers of the Chief Justice

The Lords also have decided that it is about time that they should get rid of the ethics regarding the judicial principles where a judge shall not be influence in any way by any other judge. When the President promoted Justice Khwaja Sharif to Supreme Court, a bench was immediately formed to stall the notification. The formation of bench at such short notice, questionable in itself was none the less constitutional. What was not constitutional was the fact that all Justices of the Supreme Court were summoned to Islamabad, where they reportedly met the very next day. The judges met, chatted and in presence of one of the party to the case Chief Justice Iftikhar Muhammad Chaudary apparently reached a verdict in absence of the other party i.e. the government of Pakistan. The following morning the Constitution was further disgraced by its custodians when the judges of Lahore High Court did not hold courts. Whether they officially applied for a leave that the civil court judges did is unclear. They did not however, perform their Constitutional duties. Other notable violations of judicial principles have been the declaration of Judges being the soldiers of CJ Iftikhar and the more notorious talk of chain of command in judiciary being headed by the Chief Justice himself.

Onus of proof

In any judicial system the onus of proof is on the accuser and only after some evidence has been presented against the accused he would be asked to refute the allegation. This was not to be in the case of Jamshed Dasti. The Lords apparently in the absence of substantial evidence decided to take a pop quiz. Asked to recite a few verses and the tables of two he got confused and announced his resignation there by dismissing the case. The Lords assumed the role of the prosecutor and became party to the case showing little regard for rules of law. Justice was not served.

The act of the Court also bordered on violation of the article 13 (b) of the Constitution of 1973, as per which,

No person
shall, when accused of an offence, be compelled to be a witness against himself.

NRO verdict

The Lords verdict on 16 December 2009 was judiciary sans grace. The verdict was due to be announced but then delayed as is the practice of the current Court. Reports of shutters being pulled down in Sindh and Balochistan started pouring in and eventually after bringing the nation to the brink of a break down the verdict was delivered.

Much has been written about the poor quality of jurisprudence shown in the verdict but that is another matter. The manner how it was all handled is purely dramatic, was there a need to have a full court? Whether it was right for the Supreme Court to answer questions that were not asked in the petitions? When the Supreme Court itself was on a spree to give free judicial cum Islamic advice in its 300 page verdict, was it not the duty of the Court to clarify its position on the Presidential Indemnity? Why was it that thousands of words were written recounting Suharto, Marcos and others, quotations of Maududi and others but not one word regarding the very article 248 of the Constitution that would need to be interpreted should the cases be reopened? The intention was clearly malafide.

Selective Justice

The Lords may not be hearing cases selectively but it is certainly one hell of a coincidence that the lucky draw always spits out a PPP name. Be it Rehman Malik, Pervaiz Ashraf, Babar Awan, Latif Khosa or any other PPP member, they always get the summons first. The NRO absolved people accused of crimes that were not under purview of NAB, crimes far more heinous than corruption but why only cases under NAB are being considered? The optimists who sincerely want to believe judiciary to be impartial come up with the logic that corruption needs to be tackled from the top. The logic is acceptable, how can a government headed by a corrupt person deliver? But then it is clear that judiciary is not interested in applying the same criteria when it is dealing with the largest province of Pakistan where 57% of the population resides. The numerous cases pending against Khadim e Aala Punjab Shahbaz Sharif are not in the list of cases to be heard anytime soon.

Whither 1973 Constitution

The gross disregard for and rules remind me of the famous quote that the Chief Justice of Pakistan so fervently misquoted during the movement for restoration of judiciary, “absolute power corrupts absolute.” In its wrath the Lords are starting to think that it is about time that they do away with the Constitution. Constitution today is being violated in letter and spirit, the Lords seek to draw their power in their own twisted understanding of right and wrong and free from any form of judicial restraint.

The right to counsel of choice

The right to defend oneself and choose a lawyer of ones own choice is a fundamental right that the Lords have done away with. The conviction of Additional DG FIA Ahmed Riaz Sheikh left many lawyers awestruck. The accused was served the summons to appear before court in the evening of the preceding day and despite the short notice the accused did manage to do so. However, it was in the court room that the Constitution was trampled. When the counsel of the accused Mr Rasheed A Rizvi started presenting the case before the Lords, if media reports are to believed (and since no denial or clarification has been presented by the court I think they are true) the Lords scolded the esteemed lawyer for defending the accused. It is also reported that he was not allowed to complete his arguments and dismissed. The right to counsel of choice and defend oneself was thrown in the bin. The article 10 subsection 1 of the Constitution reads as follows:

10. Safeguards as to arrest and detention.
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

Independent mind

The actions of the Lords also demonstrated that they lacked another key requirement of a jurist i.e. independence of mind. For this reason Judges who have had appeared as lawyers for an accused refuse to sit in benches as they may not be unbiased. In this case, however, the Lords dislike for the accused was so visible in their desperate attempt to humiliate him and his counsel that I was reminded of the conviction by the all white jury of a black man in the famous Harper Lee novel, To Kill a Mockingbird whereby the only crime of the black man is the color of his skin.

Double jeopardy

Double jeopardy a Constitutional right in many countries including ours and an accepted norm in most is the reasoning that no person shall be punished for the same crime twice. If media reports that Mr Ahmed Riaz Sheikh was convicted upon appeal are to be believed, the question is that since he has completed his imprisonment term why was he sent back to jail? The Lords again were more interested in making a scene than giving any explanation to reduce public anxiety.

The article 13 (a) of the 1973 Constitution states:

No person:-
shall be prosecuted or punished for the same offence more than once;

Why are legislators legislating?

The Lords are indeed very talkative reminding me of the saying that ‘sayana kawa goo khaata hai’(a close translation would be smart asses, shame themselves), The Lords in their routine streak commented, “have not the parliamentarians got anything else to do that they are after judicial reforms.” Well no sir, they have not got anything else to do. Had you not missed those crucial classes in law school you would have known that legislators legislate. They make laws! While our legislators digress and get funds for development they are none the less the domain of the executive and not legislature. So when they are performing their Constitutional duty you should commend their efforts.

Presidential immunity

The last attack on the Constitution at the behest of the Lords is the consistent ignorance of Article 248 of the Constitution. The desperate attempt to reinterpret it is mind boggling. The Lords now say that when the President has not sought refuge under the immunity, cases be reopened in the first instance. A plain reading of the said article would apprise us that the very judge and prosecutor who orders and indulges in bring a proceeding against the President is violating the Constitution. The President does not need to seek immunity but our Lords who were well aware of the dynamics of the article during the dictatorial rule have now forgotten it. A similar immunity is granted all over the world but the heart believes what it wants to believe.


It is clear that the Lords in their absolute power have misunderstood the people of Pakistan. They forget that the struggle by the people of Pakistan was for the rule of law and Constitution, our beloved dastoor. Should they transgress any further, they should know that the same masses under the guidance of the same leaders and lawyers will be ready flood the streets of Islamabad. And though the cause will remain the same too i.e. rule of law, the target this time will be the rule of judges.

Pachyglossal!! Thy shall not speak

Coming back from work, I tuned into the daily news at nine bulletin. As the shalwar kameez adorning pretty news caster started firing off the headlines, I realized that my first five minutes would consist of yet another narcissitic member of the judiciary boasting about their achievements. Normally I simply ignore their wishful thinking but this time the judge, whose name I shall dare not quote for the fear of being convicted in contempt of court went a bit too far. It would be injustice that his accusations and statements are not rebutted.

The esteemed judge talked about many things, including the Chief Justice of Pakistan's refusal to resign and his own 'feat' of not taking oath on 3rd of November. He quickly moved on to remind the present government that it owed its existence to the Chief Justice of Pakistan and on his part threatened that corruption would no longer be tolerated and can not be concealed. The highlight of quoted by the media was how he pointed finger at all other institutions of the country, specifically mentioning the police and how they have failed to deliver to people of the country.

In your sermon, sir, you violated all norms of a democratic structure and undermined the status befitting a judge of Supreme Court. Moreover, most of your statements were slanted and questionable in their usage and context.

You impressed upon us how you refused to take oath on the 3rd of November. I will like to remind you that you took oath on 9th March as acting Chief Justice of Pakistan while the Chief Justice of Pakistan was being beaten up by the police . You did not take oath on the third because you were not offered to. You sir, however, accepted a lucrative job offer as the Chairman of Press Council of Pakistan only 12 days later.

You reminded us of how we owe the present democracy to the Chief Justice of Pakistan. Your this statement was directed towards the parliament and current government, hence, I use us. These are our representatives and they owe their existence to the people of Pakistan. We the people of Pakistan, are responsible for the re-crowning of the Chief Justice and for creation of this parliament. It was our struggle that you address these people today as a serving judge of this country and not a retired one.

You quote the Steel mills and Haris mills cases which saved this nation billions of rupees. You do not quote, however, the endless privatization and procurement deals that cost this nation billions, transacted before the sudden enlightment of the Chief Justice of Pakistan. His lack of interest, costed Pakistani nation, PTCL, KESC, Habib Bank along with rest of Banks of Pakistan, state-owned sugar, rice and flour mills which the last regime privatized in totality. All while you were sleeping.

Your final jab at the police and other institutions was most distasteful! The reason police and other organs of the state are not delivering are because they have been in decay for the past ten years. With recurring martial laws, the organs of state are falling apart, the prime accused in this tragedy maybe our security establishment but the prime abettor in this crime is and always have been the judiciary.

The police has indulged in chhitraul because you have failed to fulfill your duties. Corruption is rampant because you let it reach to the roots of this society in the past ten years. It was you who was sided with the dictator foremost. Even today you do not call in a member of the previous regime, to hold him accountable. You refuse to examine evidence against the security establishment in the missing persons case.

You recount to us, the order by judiciary on the 3rd of November. I ask you, was that order made forsake of this nation or forsake of thy selves?! Will a similar order be passed again if the civilian government and not the judges themselves are at the other end of the gun? People of Pakistan have given you a chance, show the grace that your exalted position deserves or the people of this country do at least. Use your time hearing the pleas of thousands of cases you impress upon us day and night not making political statements.

Polls!! Gilgit-Baltistan

The first ever polls of Gilgit-Baltistan were held on 12th November 2009. The polls were largely peaceful and held in an atmosphere that rest of the Pakistanis and the media had started to envy. Needless to say, it was not to last. As the poll results started coming in, the tone and stance of media and political parties began to change. In a couple of hours into the evening it turned into a large scale government bashing competition. Anchors and academics alike were expressing their amazement at the PPP victory. In a television show where some of the most eminent Urdu columnist express their views, were trying so hard to compete with their fellow media stars that it became unbearable. Half the conversation was based on how it was not a surprise that PPP managed to win as it had historical ties and the nature of the people in the area after all has been to vote for Islamabad, the other half consisted of rigging allegations. Their arguments were self contradictory as are of many others who have taken up the task of high lighting the supposed dis-enfranchisement of the people of Gilgit-Baltistan. Media due to it's endless appetite for controversies or its inherent detesting of a civilian government has come to the rescue of MQM, PML-N and Q, high lighting their case ten times the merit. It is thus only reasonable that the situation be objectively. This is thus a simple analysis that should provide some guidance to those cry fowl.

The allegations include pre-poll rigging, missing names in voting lists, violence at polling station and use of state machinery. The proof apart from eye witnesses restricted who are party members: the fact that they did not win as many seats as they expected.

The MQM puts a conservative estimate of their seats at 5, PML-N five to eight and PML-Q eight to ten. This puts the total number 5+5+8, a staggering eighteen seats. Two seats in Diamier region fall under Pakhtoon influence and were called by JUI-F. That leaves three seats on the platter for PPP. The stances are unbelievable and even more is the attitude of media projecting them.

PPP which had been winning a quarter of seats in every past elections was expected to give a worse performance this year. Wishful thinking it maybe, but media did a good job of defamation out of the Kerry-Lugar bill and then NRO. To make the matters fool proof, it did not project the PPP campaign, except the public address of the prime minister, it carefully limited the election footage to rallies of MQM and PML-Q. Surprisingly apart from Nawaz Sharif's addresses the PML-N campaign was for some reason largely boycotted by the independent(read biased) Urdu news channels. Rallies of PPP workers like Khurshid Shah and Chaudary Manzoor were not shown even once where as their counterparts Marvi Memon and Haider Abbas Rizvi of MQM kept beaming at the cameras. I for one was pretty confused as to why were PPP candidates not campaigning as hard. It was not until I glanced over an Urdu daily that I came to know that many PPP workers were indeed campaigning, some as hard as the energetic Ms Memon.

The opposition parties and MQM are still in disbelief, a simple listing of what PPP had to offer, versus the other parties would do well to uncover the implausibility of their arguments.

MQM offered the people a provincial status, PML-N and Q more rights! PPP on the other hand actually gave them rights. All three major legal reforms were done by the PPP governments. No matter how short or long PPP governments, symbolized empowerment and change. The other three as people saw it, MQM has been part of all the six previous governments, PML-Q just ruled for a de facto eight years and PML-N during it tenure passed plenty a constitutional amendments for its own needs, none for Gilgit-Baltistan.

Pre-poll rigging charges are being thrown at the prime minister for his announcements of welfare projects. Obviously the fact that Sharif brothers announced projects for their benefit, is somehow different. The only difference is that they had or rather wanted to offer little, fifty seats in med-schools do not look pretty when announced in election rallies and certainly do not lure 700,000 voters who would never get admissions any way due to their age and lack literacy.

The allegation of using state machinery is rather funny. On one hand Babar Ghauri, Haider Abbas Rizvi, Senator Nisar Memon, Nawaz Sharif and CM Punjab were all travelling with protocol in state vehicles, but it only counts when the acting governor uses state conveyance? The fact that a nuber independents were being helped by the local administration some at behest of judges is another story.

Marvi Memon goes on to state that she had been campaigning for more time then anyone else, then how could PPP change that in such a short time through a less forceful campaign. Well, surprise! surprise! it turns out that PPP did just stump you out. Rhetoric apart, where she had been campaigning for three onths, the PPP had been campaigning for thirty years. All the former chairpersons especially Ms Nusrat Bhutto paid a personal attention to the area. They did not wait unlike the rest to wait for election time.

It is, however, confusing as to why is MQM complaining, it did a good job of raking plenty votes, giving a tough time to many other parties. It is evident it galloped the urban vote which, traditionally is the domain of a PML faction in power. It can only be assumed that it's out off rhetoric, the seat they were sure of winning LA-3 was won by an independent candidate, who is the brother of a local judge.

All in all, PPP had a good all-weather loyal vote bank, with the local tradition of cozying up to the government in Islamabad, lack luster campaign by PML-N and the last five year rule at center by PML-Q and MQM which ignored the plight of the local population, meant that PPP was in better position then ever to win this election. The only thing surprising was the reaction of the media and opposition, but whom am I kidding, was it!

Preface!!

I have been thinking for a while, what to write?! but had been unable to come up with anything so far. Obviously I do have opinions and perspectives along with the ability to translate them into words. However, as I discovered after creating this blog that what we have in mind often contradicts our own thoughts. We advocate one thing on certain presumptions we hold true and hold them to be untrue a moment later. Thus with all my thoughts and ideas confused, I laid back on the chair, took a deep breath and put myself in a writer's shoes. How does a book begin? and thus this post, I shall begin my posts with a preface. I know the technicality is that the writer begins his own words with a prologue and prefaces are to be written by eminent scholarly people, but since William's(you call him Shakespeare) dead, there is no one worthy enough to write one for me.

So this blog is dedicated to current affairs, of this beloved nation, which are normally in a sorry state. As it is I think there is more hope than ever before, all we have to be is, be patient. Cliches such as night is darkest before the sunrise and a bridge wobbles hardest before you get off, are cliches for a reason.

My views are democratic and secular and my posts shall reflect the same. That is the only way for any nation to progress! Writing on current affairs, I'm bound to have political leanings, in my case you'll find them to be tilted towards Pakistan Peoples Party. Though this might just repulse many not revisit my blog, I assure you that it's out of reason and not rhetoric.

Until later..