DAWN - Cowasjee Corner; 21 February, 1999
'Transactions'
By Ardeshir Cowasjee
"THE first duty of a government is to maintain law and order so that the life, property, and religious beliefs of its citizens are wholly protected by the state." ( From Mohammad Ali Jinnah's Creed, enunciated by the founder himself on August 11, 1947, three days prior to the birth of his Pakistan).
This duty can only be fulfilled by an independent fearless judiciary. Sadly one must say, with deep regret and without fear of contradiction, that each government of Pakistan, in turn, has successfully done its best to hinder any chance of the judiciary gaining an even minimal independence. And this has been done at times with the active connivance, or the passive acquiescence of the judiciary itself.
The question today, fifty-one years down the road, is not how independent is the judiciary, but how demoralized and dependent it lies following the assault upon it engineered by this present government in November 1997.
The assault culminated in the storming of the Supreme Court building on November 28, while the court was in session, presided over by Chief Justice Sajjad Ali Shah. The stormers who successfully obstructed the course of justice included parliamentarians, members of the ruling party and toughs of its street squads (euphemistically referred to as members of its various "youth" wings).
An enquiry was instituted by the succeeding Chief Justice Ajmal Mian on December 15 1997, a tribunal was thereafter constituted of which the last hearing was held on June 15 1998, over six months after the storming and of the commission of the gravest contempt in the face of the court.
During the course of the enquiry, exhibited in open court was a film recorded by the Court's closed circuit cameras, installed by an external independent agency on the orders of the previous Chief Justice, which clearly and in detail showed the storming. The sole tangible action taken by the Court during the hearings was to request the 'authorities' to dismantle the cameras as the honourable judges felt their security was at risk and threatened. Their announced intention was to install their own internal system of surveillance, which so far has not been done.Sadly, to this day, the judges of the Supreme Court have done little to attempt to redeem their Court's honour by punishing those who belittled it.
'Life' in our country has been in constant and increasing jeopardy. When not taken by run-of-the mill dacoits, murderers, thieves etc., it is taken by terrorism, state or otherwise inspired, by religious and ethnic fanatics, by internecine turf wars, by the police in their staged 'encounters,' by the numerous government agencies in the course of their duties, by government activists and street-fighters.
November 20 1998 : the draconian Ordinance XII was promulgated, allowing for the formation of a forum - Military Trial Courts (MTCs) - which was apparently unconstitutional and in conflict with the recent judgment of the Supreme Court (Mehram Ali case). The MTCs were empowered to impose even the irreversible penalty, the death penalty. This excess of the government was not checked by the judiciary. No order emanated from it suspending the execution of the penalty pending the examination of the vires of the Ordinance.
November 24 : Advocate of the Supreme Court Khan Muttaqui Nadeem filed in the Sindh High Court a constitutional petition (CP 1824/98 along with CMA 5105/98) on behalf of Arif Khan and Qazi Khalid Ali, both Muslim adults, advocates by profession, against the Federation of Pakistan (Respondent No.1) and the Province of Sindh (Respondent No.2). The petition, inter alia, challenged the validity of the constitution of the MTCs and sought prohibition of the enforcement of the punitive provisions of the ordinance.
November 26 : the petition was heard by Chief Justice Kamal Mansur Alam and Justice Ghani Shaikh. Pre-admission notices were issued to the two respondents and a hearing fixed for December 4. Nadeem pleaded for interim relief, as he feared that men may be hanged, and thus irreversibly punished, while the court deliberated. He asked that executions be stayed. His pleadings were not considered, went unheeded.
December 4 : Nadeem again pressed for interim relief and a stay of the execution of irreversible penalties. A stay was not granted. The Court ordered : "It appears that service has been effected on both the respondents. Yet none is present for Respondent No.1. The Advocate General Sindh for Respondent No.2 requests for ten days time for filing comments. Time is granted. Adjourned to 16.12.1998 .... The points involved in this case are important and it is a pity that despite of service on Respondent No.1 none is present on its behalf."
December 16 : No comments were filed by either respondent, no relief was granted, and the matter adjourned to December 24. On that date the Chief Justice constituted a full bench, comprising Justices Ghous Mohammed, Hamid Ali Mirza and Syed Saeed Ashad. The matter was fixed for hearing on December 30.
December 30 : Attorney General Chaudhry Mohammad Faruq appeared for Respondent No.1, Advocate General Mohammad Iqbal appeared for Respondent No.2. Interim relief was again sought but not granted. The order of the Court delivered by Justice Ghous Mohammad reads :
"Today this matter is fixed for hearing by a full bench comprising myself and my learned brothers Hamid Ali Mirza and Syed Saeed Ashad. Both of them are on winter holidays and at least one of them (Mr Justice Syed Saeed Ashad) has not been intimated about the constitution of this full bench. Therefore when this fact was brought to the notice of the learned counsel for the petitioners he submitted that in that case the matter may be listed for hearing on the 31st of this month. An application has also been submitted by the learned Attorney General wherein the prayer is that this matter be stayed till the petitions relating to the same subject matter which are fixed for hearing on 7.1.1999 before the honourable Supreme Court are disposed of. So far as this application is concerned copies have been supplied to the petitioners' learned counsel and this will be considered by the full bench. Since my learned brothers Hamid Ali Mirza and Syed Saeed Ashad, JJ, are on winter holidays and in the second week I will be on vacation therefore it is not possible for us to assemble for the hearing of this petition. Accordingly, office is directed to list this petition immediately after winter holidays according to roster."
December 31 : The next day, Ashraf Chakar Irani, alias Waheed, was hanged in Karachi Central Prison, the death penalty having been imposed by an MTC on December 17.
January 4 : Mohammad Rafi, alias Bubbly, was hanged in Karachi Central Prison, the death penalty having been imposed by an MTC on December 17.
January 8 (Friday) : The Supreme Court restrained the Government from executing any convict sentenced to death by the Military Courts until January 11 (Monday) when the MQM's application seeking interim stay of MTC's executions was to be taken up.
January 11 : The Supreme Court stayed the execution of those convicted by the MTCs until a decision is reached on the petitions challenging the formation of the MTCs.
February 17 : The Supreme Court declares that the setting up of MTCs for the trial of civilians is unconstitutional and without lawful authority. The cases of the two men who were hanged lie buried by the following sentence from para one of the Supreme Court Order : ". . . The above declaration will not affect the sentences and punishments already awarded and executed and the cases will be treated as past and closed transactions."Present and correct when these "closed transactions" were transacted : Prime Minister Mian Nawaz Sharif plus his entire cabinet and his administration; Leader of the Opposition Benazir Bhutto and her acolytes; the honourable judges of the Supreme Court - Chief Justice Ajmal Mian, retires 30/6/99; Saeeduzzaman Siddiqui, J-1, retires 30/11/2002; Irshad Hassan Khan, J-2, retires 6/1/2002; Raja Afrasiab Khan, J-3, retires 17/9/2000; Mohammed Bashir Khan Jehangiri, J-4, retires 31/1/2002; Nasir Aslam Zahid, J-5, retires 2/3/2000; Munawar Ahmad Mirza, J-6, retires 17/8/2007; Khalilur Rahman Khan, J-7, retires 24/4/2001; Shaikh Ejaz Nisar, J-8, retires 14/6/2000; Mamoon Kazi, J-9, retires 29/12/2000; Abdur Rahman Khan, J-10, retires 5/6/2001; Shaikh Riaz Ahmad, J-11, retires 8/3/2003; Mohammad Arif, J-12, retires 9/1/2002; Munir A Shaikh, J-13, retires 1/7/2003; Wajihuddin Ahmad, J-14, retires 30/11/ 2003. (CJP Ajmal Mian will be succeeded by J-1 Justice Saeeduzzaman Siddiqui who will in 2002 be succeeded by J-6 Justice Munawar Ahmad Mirza, who will remain as CJ of the Islamic Republic of Pakistan until 17/8/2007.)
February 19 : The prime minister addressed the nation. According to this newspaper's Islamabad Bureau report : "Justifying his decision of setting up military courts, he argued that the government had taken the decision under the Article 245, assuming that it was in line with the Constitution and it could not be challenged in the superior court."
The assumption of the Government was obviously wrong.