Pakistan and Future

Preface

Couple of years back I wrote “Contradictory judement on the book of contridiction” , today I bring to you most amazing judgment in the world’s judicial history. Normally a judgment is written by a “Judge” , either convicting or exonerating the “accused” from the charges brought against the accused. This is the first judgment in the world’s judicial history where an accused “writes” “judgment” to exonerate himself from the charges ranging from “accusation of bias” , “breaking of law” , “dishonesty” and the “faithlessness” by not only the so-called “accused” , but also by the “learned counsels” and the “whole nation”.

Before talking in detail about this judgement ,  let me first highlight certain very interesting and amazing points in the judgement. 

1. We should note that this “judgment” is not on the appeal of an “accused” against his/her “conviction” by the lower courts.  In fact appeal was filed by the “opponents”  in response to their acquittal from the charges at three different levels of judiciary. First Sharif brother’s papers were accepted by a “Returning officer” (a judge of the lower court) , then in the High Court one (out of the two) “PCO Judge”  (I shall come to this one “PCO judge” later) again acquitted them from the charges from their opponent, then another “PCO CEC” decided in favor of them by allowing them to contest the elections. Hence these “PCO Judges” were not re-affirming the decision of any previous court , instead they gave the opposite of what ALL the previous courts have held.

2. It is not that such situation can not occur in the judicial course, in fact the charge of “biasness” is quite common , and this has been discussed in this “judgment” as well.  There is a legal maxim that “Court should not only do justice but they should be seen by the people to be doing justice” ,  We know that most of the judges are “honest” , “fair” and “trustworthy” , therefore they will give a “fair” judgment. However it is well established truth that “in-camera” proceedings of a case are not considered appropriate unless both parties agree and their is a very valid reason. One can say that if the judges are “fair, honest and trustworthy” then weather they hold the court “in-camera” or “in public”, outcome of the case will not be affected. But better let me refer to a keynote address by the real judge about “the principle of Open Justice”, ..“Seen to be Done: The Principle of Open Justice“

3. It is also pertinent to note that based on the accusations against the judges there could have been three possible outcomes of this.

a) The “PCO Judges” could have refused to sit on the bench as plead by the learned counsels. 

b) The “PCO Judges” could have remained in the bench and then decided in favor of the Sharif brothers like the “One PCO Judge” in the high court.

c) The current outcome in which defiant “PCO Judges” “BRAVELY” gave the decision on the “TRUE MERITS” of the case.

I’ll quote later the interesting remarks and quotes from the said judgment about the “TRUE MERITS” and “Fairness” and “Honesty” , but one can easily guess that how easy it would have been for these judges to base their decision on “TRUE MERITS” of the case , when the judges at three level could not do so.

Well it was a long opening paragraph, but let me jump directly to the review of this judgment.

RECUSAL

This is perhaps the most “interesting” (I am avoiding the use of words like “absurd”, “redicuilous” etc. etc.) defense of recusal.  For those who want to learn more about recusal (Judicial Disqualification) , please refer to this wikipedia article  http://en.wikipedia.org/wiki/Recusal

So how a “PCO” Judge defends the argument of Recusal. Let us see. I will just quote few paragraphs from the judgment. (Emphasis is mine).

1. Quran to the rescue :

“Therefore, if they come to you with their cases, you may judge

between them or refuse to do so. Even if you refuse, they will

not be able to harm you the least, but if you do act as a judge,

judge between them with fairness, for Allah loves those who

judge with fairness.”

See how “PCO” judges try to use this in their favor.

22. From the above Quranic Verse, it is the will, wish and

choice of the judge to accept the case for imparting justice

between the parties or to recuse himself from adjudicating the

dispute.

23. From this verse, a litigant has not been granted a

right to ask the judge to recuse himself. In a given case, it is the

option of the judge to entertain it or to decline its admission with

himself to administer justice between the parties of that case. If a

litigant does not feel justice to be done from a judge, he must not

place his case before the Judge. When the case is placed before a

judge by a litigant, thereafter the litigant cannot ask the judge to

recuse himself. The presentation of a case for decision before a

judge presupposes that he believes the judge able in all respect to

deliver justice. It would be contemptuous act of a litigant to

present his case for adjudication and then ask the judge to

decline to decide it. When a case is proffered before a judge, in

that event, the right to ask the judge to recuse himself is lost by

the litigant because he has already accepted his authority, valid

appointment, competency to administer justice, and with the

belief of his independence. He is presupposed to have believed

the judge to be a judge a person of integrity. 

Wow… look how “PCO”  Juges prove the definition of the word “PCO” (I’ll explain it below). First of all according to the verse “if they come to you” , and “litigant” never came to the “PCO Judges” , and that was the whole point of the case that “litigant” is not coming to the judges for the justice. Then as the PCO judge himself said “If a litigant does not feel justice to be done from a judge, he must not place his case before the Judge” , they (Sharif brothers) did not place their case before the PCO judges. The case was placed before them by third parties, but the decision came against the “accused” who were not even present in the case. Yes that’s how PCO judge dispense justice.  

Not only that PCO judge himself writes in the judgment , I quote

 

15. It is interesting to note that Mian Muhammad Nawaz Sharif,

in whole of the proceedings during the hearing of election

petitions, petition filed under section 14(5-A) of the Act, Writ

Petitions in the High Court and CPLAs, thereafter in this Court has

not appeared to defend his qualifications and disqualifications,

allegations and incriminating attributions, levelled against him by

his contesting candidates in the election. From the above noted

narration, an inference is easily deducible that Mian Muhammad

Nawaz Sharif has either got nothing to say in his defence or is shy

of and nervous to face the case and its consequence or does not

want to become a candidate, after the submission of nomination

papers in the by-election, otherwise he would have contested the

stigma of disqualification ascribed and attributed to him

 

So PCO judge admits that Mian Muhammad Nawaz Sharif never appeared in this court.  And the Quranic verse clearly states that “if they come to you” , the “honesty” of the PCO judges does not stop here , he goes on to infere that Mian Nawaz Sharif has “nothing to say in his defence” , or “is shy of and nervous to face the case” , but could not “infere” the obvious and clear that “litigant does not feel justice to be done from a judge, he must not place his case before the Judge” , and therefore he does not want to place his case before the judge.

2. Conspiracy against the judges whose honesty MIGHT BE above board:

The amazement does not stop anywhere in the judgment so PCO judge writes. Read this paragraph (but don’t laugh , its a judgment)

 

18. In fact, it is a conspiracy of highest and gravest nature

which has been hatched up by some vested interests, to destroy

the whole judicial fabric of this highest judicial institution of this

country, for their own interest and purpose. It is being bred so as

to get appointed judges of their own choice and interest, in the

offices of judges of superior courts, by eliminating out the present

judges even whose impartiality and honesty might be above

board. This rule of politics, to divide and rule is being played and

brought into this realm of judicial institution, so as to cause

disturbance into peaceful, harmonious working and smooth

running of this Institution, by raising prejudices and differences

amongst the Judges, by procreating two factions in the judiciary,

which is most harmful and sinful act, plea, stand and stance of

the petitioners. All the Judges sitting in this Court are equal,

respectful and revered and brother Judges, amongst whom no

distinction and discrimination of belonging to one or the other

group can be allowed and permitted by any of the Judges of this

Court to be made and raised at this stage and thereafter. All the

Judges having taken oath under the present Constitution, a few of

them cannot be given preference by the petitioners or their

counsel over or against the others. On this basis, unity amongst

the Judges has been attempted to be tarnished and torn into

pieces through these baseless, frivolous and unfounded premises

particularly when it has already been ruled out by the Seven

Hon’ble Judges of this Court in Tikka Iqbal Muhammad Khan’s

case (PLD 2008 S.C. 178) and thereafter by 17 Judges of this

Court in review jurisdiction, and the actions taken against the

judiciary are to be considered a past and closed transaction. It is

worth-mentioning that judgment in Tikka Iqbal Muhammad

Khan’s case was never disputed or challenged by these

petitioners, through any review petition. It does not now lie in their

mouth through these petitions to criticize the above noted

judgment of Tikka Iqbal Muhammad Khan case, in collateral

proceedings, which have got no nexus to the merits of this case,

in respect of question of qualification and disqualification of Mian

Muhammad Nawaz Sharif. Having lost the proper opportunity of

disputing the validity and vires of that judgment of Tikka Iqbal

Muhammad case (ibid), now the petitioners cannot be permitted

to dispute or impugn the vires of that judgment, especially

through these applications. The petitioners and their learned counsel

have attempted to destroy the safe sailing of the ship of this great

judicial institution. They have tried to make a hole in the ship so

as to let it sink. The obnoxious plea raised and stand taken

requires to be deprecated by all the prudent men, women

including all stake holders interested to uphold the dignity and

independence of this judicial institution and by all the citizens of

Pakistan. It is the contempt of serious nature which cannot be

forgiven/pardoned by this Court. The petitioners who have sworn

affidavits by instructing their learned counsel through the above

arguments, addressed by their counsel, do not deserve any

leniency shown in the matter of this contumacious and

destructive arguments and the stand taken of bifurcating this

institution into two water tight compartments.

 

I don’t know how can one comment this paragraph , I have read many many judgments of the courts but honestly speaking I have never come across such language used by a “Judge” , the words used in this paragraph seems to be coming out of a defence lawyer who after finding no arguments in defence decides to counter attack.  Let us take a detailed look at this paragraph. So according the PCO judge , “it is a conspiracy of a highest and gravest nature” ,  that somebody accuses a judge of “recuse” , whose impartiality and honesty MIGHT BE above board.  I can’t help but smiling on the use of word “MIGHT BE“, this is first time a judges is not sure of his “impartiality and honesty”. Well indeed it shows the “honesty” of the PCO judge.

 

PCO Judges

This is the most interesting part of the “judgment” , so I believe this is first time an attribute with the Judges that has been accepted by a court … “PCO” Judge. We know that there are “honest” Judge, “Upright” Judge and “Fearless” Judge and now we have “PCO” judge.

1. Term PCO Judges 

According to the judgment ,

“29. This term has been invented when a Provisional

Constitution Order was enforced by a brutal force, by deviating

from constitutional provisions and taking extra constitutional

steps.

Oh my God! how could I believe this , the apex court of the country giving a clear and open statement that “PCO” was enforced by a “BRUTAL FORCE” and that too “BY DEVIATING FROM CONSTITUTIONAL PROVISIONS” and “TAKING EXTRA CONSTITUTIONAL STEPS“, it is amazing (in fact mind boggling) that some times back the mad dictator himself said that “November 3rd Actions were unconstitional” , and then the Supereme Court says that the PCO was deviation from constitutional provision.  We got a criminal admitting his crime and a court giving verdict he comitted the said crime and still we have the criminal out in the open.

The paragrpah number 29 in the judgment makes certain sweeping statement while defining and elaborating the term “PCO” judges , I will touch upon some of them

a) The proclamation of emergency, enforcement of

Provisional Constitution Order I of 2007 and the issuance of an

order in the form of the Oath of Office (Judges) Order, 2007, were

not enforced upon the advice of the PCO Judges. 

No advice was delivered by the PCO Judges and no assistance was provided by

these Judges to the military force to do such acts.

I am not sure what assistance “PCO Judges” wanted or could have provided to the military force to do such acts. I am sure learned PCO judges does not mean by this that PCO judges “could have assissted the military force” by taking guns in their hands and sorrounded the “supreme court” and have taken the CJ IMC along with his seven brother judges to their residences and stood guard on the gates of thier residence so that they could not come out. Military force already had enough soldiers to do such acts. The only “ASSISTANCE” military forces needed from these PCO judges was that they take oath under the PCO and defy the judgement of the 7-member bench stopping them to do so.

b)In the event of refusal to take the oath, it was

expected that this judicial institution might be occupied by such

persons who had no knowledge and expertise of delivering

justice.

 

This is very interesting comment, “BECAUSE PEJAMISTRI DID NOT TAKE OATH AS PRESIDENT OF UNITED STATES OF AMERICA WE SEE  A PERSON OCCUPYING WHITE HOUSE WITH NO KNOWLEDGE AND EXPERTISE OF RUNNING THE SOLE SUPERPOWER”  Seriously though question at the time of taking oath was not that who occupies the judicial institution because as soon as a judge takes oath under the PCO against the clear judgment by the 7-member bench of the supremece court , he proves that he has no knowledge and expertise of delivering justice. 

c)As pointed out by Mr. Ahmed Raza Kasuri, it were the efforts of these

PCO Judges who had tamed the jungle loin by their wisdom. The

judges, who are now being named as PCO Judges are in fact, the

saviour of judicial institution and system, the main organ of the

State and the interest of the litigant public at large

 

Who was the “JUNGLE LION” ahh.. I remember it is Mad Dictator. I salute the bravery and wisdom of the PCO judges who tamed the “Jungle Lion” who could not be tamed by the 160 million people of Pakistan . Thank you very much sir. 

2. PCO Judges defined by A. K. Dogar : “faithless, law breakers and dishonest” :

Let me quote this paragraph , the most amusing one..

It was, therefore, a matter of two

different thoughts to achieve the same goal of saving the judicial

institution and system, for which no one can be blamed. It is a

very sorrowful state of affair that a learned counsel of such a

stature, namely Mr. A.K. Dogar has uttered these words of

“faithless, law breakers and dishonest” persons. Before arguing

the case on this premises, Mr. A.K. Dogar must have given

thought, time and again to this aspect of the case and should not

have been swayed by the street slogans and should have avoided

to utter these words even upon the instructions of his cliental,

particularly when the transitional period was got immediately

wrapped up by the efforts of these P.C.O. Judges from General

Pervaiz Musharraf. If one set of judges had stood up for upholding

the flag of independence of judiciary, the other was defending the

fort of judiciary from being intruded from the aliens to this

complexity of judicial system, although task was different but the

goal was one.

 

Honestly I feel pity , this is perhaps the faintest defence of a criminal when he has no defence left. It is like a murderer pleading the court that by killing he was doing the same “i.e. dispensing justice” which court wants to do now. So objective of both (criminal and the court) is the same so please have mercy on me .

BTW this is also most important statement in the judgment as it will have significant importance in the future (i.e. now) when the real judges have come in the court.