Missing persons killed by al Qaeda: SC told

The Supreme Court was informed on Wednesday that missing persons — Masood Janjua and Faisal Faraz– had been killed by the terrorist outfit al Qaeda six years back.

Additional Attorney General for Pakistan Karim Khan Agha told a three-member bench headed by Justice Javed Iqbal that resumed hearing of missing persons cases that the data gathered from laptops in possession of Janjua and Faraz showed their links with al Qaeda.

He said Janjua and Faraz had been killed some six years back and it was highlighted by the media as well.

Amna Masood Janjua, wife of Masood Janjua and chairperson Defence of Human Rights, claimed that her husband and Faisal Faraz had been alive and were in the custody of sensitive agencies.

She demanded that their graves should be identified and DNA tests be carried out to determine their identity.

Justice Javed Iqbal directed her to provide evidences in his chamber.

The bench who took up issue of chronic missing persons cases expressed dissatisfaction over delayed action against Frontier Constabulary personnel who had been identified by six of the missing persons’ families, accusing them of taking away their loved ones.

Asma Jehangir, president Supreme Court Bar Association and counsel apprised the bench that despite recommendations of Commission on missing persons, so far no action was taken against the FC personnel.

The bench also directed the police to present a report on next date of hearing in the case of MNA Fazal Rab Pirzada who had gone missing few years back.

Further hearing was adjourned till next week.

SC resumes hearing of NRO review petition

ISLAMABAD: Supreme Court on Monday resumed hearing of a petition filed by the government against the court`s verdict of declaring the National Reconciliation Ordinance (NRO) illegal,our corespondent reported.

According to sources the apex court refused the request of senior government cousel Kamal Azfar of withdrawing advocacy from the case, as he argued that the government did not approached him yet.

“I will surely be in the Supreme Court because it is the direction of the court, but I don`t know what I will be pleading because the government has not yet approached me,” Mr Azfar told Dawn on Saturday.

The chief Justice Iftikhar Chaudhry notified Azfar that the court would reject the review petition if he was not able to plead.

The additional attorney general asked the bench to allow him to represent government in the case but was refused and was told to ‘sit down on his seat.’

Azfar asked for more time as he needed directions from government to present evidences.

After a respite of over five months the government is again in the eye of the storm as a 17-judge full court resumed the hearing on Monday of the review petition against the NRO verdict.

Mr Azfar, who had pleaded the case in the main petition against the NRO, was replaced by Sardar Latif Khosa who took the charge after Mr Azfar was made adviser to the prime minister on disaster management.

However, court rules make it mandatory that a lawyer who argues the main case pleads the review petition.

Since Mr Khosa has been made governor of Punjab after the assassination of Salman Taseer on Jan 4, he will not be available to plead the government case.

Legislature can take action against executive: CJP

ISLAMABAD: Chief Justice Iftikhar Muhammad Chaudhry has stated that support of masses became vital when the Executive did not implement laws.

Chief Justice observed that in case the executive does not comply with law, the legislature must take action against such arbitrary non-compliance.

Addressing a delegation of trainee officers of the National School of Public Policy Lahore, here on Saturday, the Chief Justice said that two factors were considered as crucial for enforcement of the rule of law - political fragmentation and the public support for establishing and maintaining the rule of law.

"In systems, such as ours, where the executive has the majority in legislature, the legislature may not induce executive to observe legal limits on their actions. In such a situation, the role of public support for judicial ruling becomes most valuable enforcement mechanism," he added.

He said if the general public wanted the executive to comply with judicial rulings then the executive would have to comply with the same while anticipating the electoral reaction.

"When people do not have trust in the national institutions, they tend to resolve their day to day problems through other means. This leads to anarchy in the country. Therefore, it is in the interest of nation to strengthen the institutions by strict and unequivocal recourse to the Constitution and law," he emphasized.

About role of bureaucracy, he said an independent bureaucracy meant a civil service which was not beholden to executive.

He said even if the executive had no costs for forming illegal policies, the civil servants had preference for working on legal policies mainly for the reason that they have different time horizons.

"There is possibility that the executive government may not be in office in future to provide protection to them against their illegal actions. They have to serve under future elected government that might have a different policy view. The uncertainty over who will control the government in the future makes them more reluctant from implementing an illegal policy," he added.

The Chief Justice told the trainee officers that a permanent principle of bureaucracy was to maintain mutual respect and follow the orders of superiors but on the other hand, the officers were not obliged to follow their illegal orders.

About rule of law, he said it required both citizens and government officials to be made subject to laws.

"However, even an independent judiciary cannot guarantee that government officials necessarily abide and respect rule of law. The institutional solution to induce executive compliance with the law is to entrust the power of defining the legal limits of executive actions to courts of law. However, an independent judiciary itself cannot solve the fundamental problem of enforcing compliance with laws and legal rulings," he added.

Enumerating role of civil servants in country's history, the Chief Justice said in the early days of independence, the standard of civil service was fairly high and its performance was better. The use of political influence or any other external pressure was out of question.

The officers had the courage and the wisdom to give their independentopinion, without any fear or favour. With the passage of time, however, things started to fizzle out, he added.

He said during the tenure of Ghulam Muhammad and Iskandar Mirza, thestandard of civil service deteriorated, primarily on account of their involvement in political matters.

"In its zeal to gain control over the civil service, the Executive acquired control over the power of transfers, posting and extensions, which has placed the officers of civil service at the mercy of their political masters," he added.

He said such like transfers, postings, out of turn promotions, suspension, denial of promotions demoralized the honest and diligent officers. Resultantly, there was tendency that the officers would become more loyal to the Executive and the ruling political party than the state of Pakistan.

He said the Supreme Court, having been bestowed with the important role of overseeing the executive actions, had come to their rescue from such political victimization.

In many cases the officers wrongfully dismissed from service, had been re-instated. In cases where officers were deprived of their legitimate right to be considered for promotion, directions were issued to the authorities concerned for their consideration and many of them got promotions, he added.

He further said the Constitution of Pakistan provided the system of checks and balances, where under the judiciary had been given the power of judicial review of executive and legislative action.

Articles 199 and 184 of the Constitution ordained the High Courts and the Supreme Court respectively, to ensure protection of the fundamental rights of the citizens, he added.

About role of judiciary he said "While deciding the cases involving the infringement of the fundamental rights, the approach of the courts should be dynamic rather than static, and flexible rather than rigid. It is not new or novel for the courts to exercise the powers of judicial review."

He said the Constitution of Pakistan 1973, provided mechanism for the distribution of powers between various organs of the State, and also defined their limitations so that one organ might not encroach upon the legitimate domain of the other.

"The Constitution is supreme and all organs have to remain within their allotted sphere. The exclusive domain of legislature is to make law. The judiciary is entrusted with responsibility to decide cases according to law and further to ensure that all branches of the State are functioning within their jurisdiction and is also invested with the powers to intervene whenever any State organ exceeds its prescribed limits," he added.

If all the institutions of state performed adequately and the rules and regulations were followed strictly, the recourse to litigation would be minimized and the work load of accountability bodies and the courts would be significantly reduced, he opined.

The Chief Justice also advised the traineee officers by saying that being officers of the civil service they ought to be aware of political, legal and constitutional development in the country.

They needed to learn from the chequered history so that the past blunders and mistakes could not be repeated, he added.

Anti-corruption strategy in doldrums after NAB chief’s removal

ISLAMABAD: The government’s plan to revise the national anti-corruption strategy, which was approved by Gen (retd) Pervez Musharraf’s cabinet in 2002, is in the doldrums because the post of National Accountability Bureau chairman is lying vacant, sources told Dawn on Wednesday.
The Supreme Court had recently declared the appointment of Justice (retd) Syed Deedar Hussain Shah as illegal and ordered his removal.The NAB and Transparency International, which had jointly drafted the strategy, signed a memorandum of understanding on January 13 this year to revise it.“The whole process of revision of the strategy has come to a halt because the NAB chairman, who is the only decision-making authority, is not there,” said Transparency International Pakistan chairman Adil Gilani.He said the NAB and TI had chalked out a six-month plan for the revision of the strategy keeping in view the passage of 18th and 19th Amendments and announcement of new judicial policy.“A two-week workshop of all stakeholders, who were supposed to give suggestions to improve the strategy, was to be held in Islamabad this month,” he said.Asked why it was felt that the strategy should be revised, Mr Gilani said it had to be improved because nine years had passed since its introduction.Former NAB chairman Justice (retd) Syed Deedar Hussain Shah had assured the TI of full support in its efforts to control corruption in the public and private sectors.In its annual report for 2009, the TI had claimed that corruption in Pakistan had shot up to Rs195 billion from Rs45 billion in 2006 and declared police, power and health sectors and the land department the most corrupt.Most respondents in a survey conducted by the TI were of the opinion that lack of accountability and transparency and discretionary powers were the main reasons for corruption.A spokesman for the NAB told Dawn that many of the functions of the authority had been suspended since the removal of Justice (retd) Deedar Shah.Another senior NAB official said that no further action was being taken on the improvement of the strategy.He said the basic reason for the proposed revision of the strategy was that it could not be implemented in true letter and spirit.“The strategy was to be implemented in all federal ministries to control the white-collar crime, but only a few ministries followed it,” he said.The interior ministry also tried to introduce a separate national anti-corruption strategy under the supervision of the Federal Investigation Agency after Interior Minister Rehman Malik launched an anti-corruption campaign in government departments.A meeting of the heads of anti-corruption departments was held in the interior ministry in December last year. However, Mr Malik shelved the idea when he was told that the national anti-corruption strategy was being implemented by the NAB.“But the minister asked the NAB officials to keep close coordination with the interior ministry to make the strategy more effective,” the official said.The national anti-corruption strategy approved by former president Gen (retd) Pervez Musharraf in November 2002 had empowered the NAB to check or monitor all development projects having estimated cost of Rs500 million and above.It has, however, been learnt that a direct interference and involvement of the NAB in uplift schemes under the strategy were not acceptable to the provincial governments.

Flood Commission submits report in SC

 

ISLAMABAD,: Flood Commission appointed by the Supreme Court of Pakistan under the petition of Marvi Memon VS Federation of Pakistan etc (const. petition no. 62 of 2010) submits an interim report after field visits.The Flood Commission comprising of the members representing each province after conducting the field visits of the flood affected areas in the provinces of Sindh, Balochistan and Southern Punjab have submitted an interim report to the SC Bench of the Supreme Court of Pakistan.In the interim report the Commission has pointed out that the irrigation infrastructure in the province of Balochistan suffered a major damage during the July 2010 floods. Most part of that infrastructure has still not been repaired. This is causing major problems to the people of the affected areas especially in the Jaffarabad Division as the water is not available for cultivation or even for human/cattle consumption. During the field visit, the Members of the Commission met the flood affected People in Dera Allah Yar.The Commission also had an aerial view of the damaged infrastructure. It was pointed out to the Commission that Kirther Canal suffered a major destruction during the floods. Since this canal provides bulk of the water in the Jaffarabad Division, its immediate repair is necessary to make the cultivation of Kharif crop possible.Meanwhile on receipt of the interim report the Chief Justice of Pakistan who is heading the Bench of the Supreme Court ceased with this matter has fixed this case on 8.03.2011. Notices have been issued to all concerned including the Petitioners to appear on the said date.

ISLAMABAD: The Supreme Court has held that the Parliamentary Committee (PC) stepped over the rightful jurisdiction of the Judicial Commission (JC) and ignored its constitutional boundaries while rejecting one-year extension to six additional judges of the Lahore and Sindh high courts. “The Judicial Commission and the Parliamentary Committee are two limbs of one constitutional mechanism created by the newly-added Article 175-A (through the 18th Amendment),” Justice Mahmood Akhtar Shahid Siddiqui observed on Monday while giving detailed reasons why a four-judge bench had overturned the PC’s decision through a March 4 short order. The controversy over powers of the PC and JC erupted in the first week of February when the eight-member committee, headed by Senator Nayyar Hussain Bokhari of the PPP, rejected JC’s recommendations to extend the service of four additional judges of the LHC — Justices Muhammad Yawar Ali, Syed Mazahir Ali Akbar Naqvi, Mamood Rashid Sheikh and Muhammad Farrakuh Irfan Khan. On March 1, the bipartisan committee again rejected JC’s nominations of Justices Muhammad Tasnim and Salman Hamid of the SHC. In its short order, the bench comprising Justice Shahid Siddiqui, Justice Jawwad S. Khawja, Justice Khilji Arif Hussain and Justice Tariq Parvez had directed the federal government to immediately issue a notification endorsing extension to the six judges in line with JC’s recommendations. The PC had expressed its intention of requesting the prime minister to go to the court for a review of the decision. The short order had drawn instant reaction from different quarters. Supreme Court Bar Association President Asma Jehangir said the order struck down the spirit of the 19th Amendment which had been adopted after accommodating the concerns expressed by the Supreme Court. In a separate concurring note, Justice Khawaja observed that differences of opinion between the JC and the PC should not be seen as adversarial turf-wars or matters of prestige between the two bodies. “Both of them have a common aim of ensuring that the will of the people of Pakistan to establish independence of the judiciary is fully secured. As nations mature and polities evolve, their maturity is reflected in the manner in which such differences are resolved in accordance with the governing compact, which is the Constitution. The two constitutional bodies should not be seen as adversaries serving antagonistic and conflicting ends,” he observed. Justice Khawaja said it would negate the very purpose of the 18th and 19th amendments if the PC was to have the power to rely on the opinion of just one member of the JC, that too expressed prior to collective deliberations. “The purpose of spreading the decision-making process over a collegium comprising 13 persons (in the JC) was to ensure an objective and balanced opinion. This process is meant to ensure, to a great degree, objectivity in the nominations made after discussion and inputs from all members of the JC,” Justice Khawaja explained. Authored by Justice Shahid Siddiqui, the detailed judgment held that decisions of the PC were subject to judicial scrutiny of this court (Supreme Court). It said that the reasoning adopted by the committee while rejecting the nominations was irrelevant, unjustified and improper under the law and, therefore, without legal force or constitutional sanctity. The verdict said: “The entire reasoning of the PC is focused on no material other than that which had already been thrashed out and discussed in depth by the JC. Instead of giving its own reasons for not confirming the nominations, the PC merely opted to usurp the territory reserved for the JC. “And in doing so, they again passed judgment on the professional calibre, legal acumen, judicial skill and quality and the antecedents of the judicial nominees — an exercise already done by the JC. “Neither the PC has expertise nor the constitutional mandate to reverse the reasoning and findings of the JC; when the JC comprises people having an immense background and stature in the field of law and the judicial system. “The purpose then was that the discretion in making judicial appointments should not be the forte of one man, as in the old system, but should rather be devolved to a body consisting of people who could be trusted to make a just evaluation through related criteria relevant for the appointment of a person as a judge of the high court. “We are thus unable to see how the technical expertise, judged by the JC comprising people having spent decades in the legal field, could be better judged, or worse, reversed by the PC. If this is intended by the legislature then simply there is no need to even constitute the JC. “How could the PC arrive at a conclusion that the entire exercise of the JC was flawed, based on the piecemeal views of one member of the JC? The PC cannot simply brush aside the recommendations of the JC without its own sound reasons. The PC is to confine itself to the purpose for which it is constituted, which is evidently the thrashing out of issues not related to the domain of the JC. “The committee (PC) can, based on factual data and reasons, for instance, declare that a nominee is corrupt or is affiliated/partial making him a controversial choice, but judging the calibre of a nominee as a judge rests with the JC.”

ISLAMABAD: The Supreme Court has held that the Parliamentary Committee (PC) stepped over the rightful jurisdiction of the Judicial Commission (JC) and ignored its constitutional boundaries while rejecting one-year extension to six additional judges of the Lahore and Sindh high courts.

“The Judicial Commission and the Parliamentary Committee are two limbs of one constitutional mechanism created by the newly-added Article 175-A (through the 18th Amendment),” Justice Mahmood Akhtar Shahid Siddiqui observed on Monday while giving detailed reasons why a four-judge bench had overturned the PC’s decision through a March 4 short order.The controversy over powers of the PC and JC erupted in the first week of February when the eight-member committee, headed by Senator Nayyar Hussain Bokhari of the PPP, rejected JC’s recommendations to extend the service of four additional judges of the LHC — Justices Muhammad Yawar Ali, Syed Mazahir Ali Akbar Naqvi, Mamood Rashid Sheikh and Muhammad Farrakuh Irfan Khan. On March 1, the bipartisan committee again rejected JC’s nominations of Justices Muhammad Tasnim and Salman Hamid of the SHC.In its short order, the bench comprising Justice Shahid Siddiqui, Justice Jawwad S. Khawja, Justice Khilji Arif Hussain and Justice Tariq Parvez had directed the federal government to immediately issue a notification endorsing extension to the six judges in line with JC’s recommendations.The PC had expressed its intention of requesting the prime minister to go to the court for a review of the decision.The short order had drawn instant reaction from different quarters. Supreme Court Bar Association President Asma Jehangir said the order struck down the spirit of the 19th Amendment which had been adopted after accommodating the concerns expressed by the Supreme Court.In a separate concurring note, Justice Khawaja observed that differences of opinion between the JC and the PC should not be seen as adversarial turf-wars or matters of prestige between the two bodies.“Both of them have a common aim of ensuring that the will of the people of Pakistan to establish independence of the judiciary is fully secured. As nations mature and polities evolve, their maturity is reflected in the manner in which such differences are resolved in accordance with the governing compact, which is the Constitution. The two constitutional bodies should not be seen as adversaries serving antagonistic and conflicting ends,” he observed.Justice Khawaja said it would negate the very purpose of the 18th and 19th amendments if the PC was to have the power to rely on the opinion of just one member of the JC, that too expressed prior to collective deliberations.“The purpose of spreading the decision-making process over a collegium comprising 13 persons (in the JC) was to ensure an objective and balanced opinion. This process is meant to ensure, to a great degree, objectivity in the nominations made after discussion and inputs from all memberstheJC,”JusticeKhawajaexplained.Authored by Justice Shahid Siddiqui, the detailed judgment held that decisions of the PC were subject to judicial scrutiny of this court (Supreme Court). It said that the reasoning adopted by the committee while rejecting the nominations was irrelevant, unjustified and improper under the law and, therefore, without legal force or constitutional sanctity.The verdict said: “The entire reasoning of the PC is focused on no material other than that which had already been thrashed out and discussed in depth by the JC. Instead of giving its own reasons for not confirming the nominations, the PC merely opted to usurp the territory reserved for the JC.

“And in doing so, they again passed judgment on the professional calibre, legal acumen, judicial skill and quality and the antecedents of the judicial nominees — an exercise already done by the JC.“Neither the PC has expertise nor the constitutional mandate to reverse the reasoning and findings of the JC; when the JC comprises people having an immense background and stature in the field of law and the judicial system.

“The purpose then was that the discretion in making judicial appointments should not be the forte of one man, as in the old system, but should rather be devolved to a body consisting of people who could be trusted to make a just evaluation through related criteria relevant for the appointment of a person as a judge of the high court.“We are thus unable to see how the technical expertise, judged by the JC comprising people having spent decades in the legal field, could be better judged, or worse, reversed by the PC. If this is intended by the legislature then simply there is no need to even constitute the JC. “How could the PC arrive at a conclusion that the entire exercise of the JC was flawed, based on the piecemeal views of one member of the JC? The PC cannot simply brush aside the recommendations of the JC without its own sound reasons. The PC is to confine itself to the purpose for which it is constituted, which is evidently the thrashing out of issues not related to the domain of the JC. “The committee (PC) can, based on factual data and reasons, for instance, declare that a nominee is corrupt or is affiliated/partial making him a controversial choice, but judging the calibre of a nominee as a judge rests with the JC.”

Now rule of law will take its course, says CJP

 ISLAMABAD: Supreme Court Monday sought detailed viewpoint of the government over defunct PCO judges.Seven-member bench of the apex court headed by Chief Justice Iftikhar Muhammad Chaudhry conducted hearing on petition filed by six PCO judges against their indiction in contempt courtcharges.During the hearing, counsel of defunct judges gave his arguments.Chief Justice in his remarks said that nation has faced so many martial laws, adding that now rule of law would take its course.Chief Justice Iftikhar Muhammad Chaudhry further said that Article 6 is present against those whoever break the constitution.

He directed AG to submit the detailed viewpoint after consultation with the government.Later, the hearing was adjourned till April 04.