The law new issue 2016 by The Law

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Regd SS 1249

Nov. 2016

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Cover Story by: Jawaid Siddiqi

Three Amigos Summit

by: Qamar Jawaid

Page 5

CONTENTS Editor-In-chief

E-mail: jawaidlaw@ yahoo.com Tel: 92-21- 35852326 Cell: 0300 8263639 Fax: 92-21- 5871551

Jawaid A Siddiqi

Address: 11C South Seaview Avenue, Main Sunset Boulevard, Defence Phase 2, Karachi Phone Number: +92 21 35888047; 35897681 Fax number: +92 21 35891379

Page 28

Cover Story by: Jawaid Siddiqi

VALIDATION OF MUSHARAF’S

MARTIAL LAW Page Page

28 Page

NCDR holding international seminar on mediation tomorrow Page 28

Mystery of the ‘surgical strike’

Page 28 IMPORTANCE OF

MEDIATION SERVICE BESIDE LAW

Page 28

Is America Going to Turn on Pakistan?

Address: 11C South Seaview Avenue, Main Sunset Boulevard, Defence Phase 2, Karachi Phone Number: +92 21 35888047; 35897681 Fax number: +92 21 35891379

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Story

Contrast the Summary Judgment Framework of the

United States and Pakistan Prepared by: Barrister Zohaib Ahmed

s an attorney, the Federal Rules of Civil Procedure (“Federal Rules”) never cease to amaze me because of the level of intellect involved in formulating the Federal Rulesespecially those pertaining to summary judgment.Therefore, I have chosen this subject matter in which I would firstly set out the applicable rules of summary judgment of the United States and the manner in which courts apply them. Thereafter, I will mention the procedure followed in Pakistan that is akin to summary judgment. Lastly, I will contrast the summary judgment frameworkof the United States and Pakistan before concluding that certain summary judgment rules set out in the Federal Rules should be incorporated in the Pakistan Civil Procedure Code, 1908 (“CPC”) to further its objective of disposing of cases summarily where there is no genuine dispute of material facts. There are three devices in which a litigant could end a lawsuit without a trial under the Federal Rules, which are: (i) a voluntary dismissal of an action by a plaintiff under Rule 41(a)(1), or by a court order under Rule 41(a)(2); (ii) an involuntary dismissal of an action under Rule 41(b); or (iii) a motion for summary judgment under Rule 56.

stated in the notice. This means that the plaintiff may institute the same claim in a court. However, if the plaintiff previously dismissed any federal or state court action based on or including the same claim, notice of dismissal operates as anadjudication on the merits under Rule 41(a)(1)(B). There are a variety of reasons as to why the plaintiff may seek a voluntary dismissal of the action without a court order, including: (i) to redraft or correct the errors apparent on the face of the complaint; (ii) to defeat diversity jurisdiction by adding a defendant from the same state; (iii) to preserve diversity jurisdiction by dropping a defendant from the same state; or (iv) to avoid adverse determination on the merits of a case. The rationale allowing the plaintiff to voluntarily dismiss the action without a court order is that the defendant would not have expended a lot of resources at that stage of litigation since he or she would not have filed an answer or a motion of summary judgment. Thus, there would be no prejudice caused to the defendant if the action is dismissed without a court order. However, in the event that the defendant has filed an answer or a motion for summary judgment, the plaintiff can file a motion for a voluntary dismissal under Rule 41(1)(2) of the Federal Rules. In such a case, the court has discretion to grant such a motion. In this regard, the court will determine the legal prejudice caused to the other side if the motion is granted. More specifically, the court will see several factors, including the stage of litigation and resources expended by the other side. The court may pass an order setting out the condition of dismissal that will have the effect of mitigating the legal prejudice to the nonmovant.

Voluntary Dismissal under the Federal Rules As to a voluntary dismissal of an action under Rule 41(a)(1) of the Federal Rules, the plaintiff may dismiss the action without a court order. However, a notice of dismissal should be served before the other side serves either an answer or a motion for summary judgment to the plaintiff as provided under Rule 41(a) (1)(A)(i). The dismissal is without prejudice unless otherwise

Involuntary Dismissal under the Federal Rules In regards to the second device available to a party to end the lawsuit without a trial, which is an involuntary dismissal of an action under Rule 41(b) of the Federal Rules, a defendant may move to dismiss the action or any claim against it if the plaintiff fails to prosecute or to comply with the Federal Rules or a court order. As I understand, the rationale for an involuntary

Story dismissal is that the inactive cases on the court’s docket should be dismissed to ease the burden of the court. There is an equity maxim, which says: “Equity aids the vigilant, not the indolent.” The effect of dismissal is that it operatesas an adjudication on the merits and hence, bars a fresh case on the same claim. Therefore, the idea is to deter the plaintiff from being inactive. Summary Judgment under the Federal Rules The third device available to a party to end the lawsuit is by filing a motion for summary judgment under Rule 56(a) of the Federal Rules, which provides that: “A party may move for summary judgment identifying each claim or defense—or the party of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.” (Emphasis supplied) From a plain reading of Rule 56(a) of the Federal Rules, it appears that the movant has the burden to show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Therefore, the basic purpose of summary judgment is to determine whether there is a genuine dispute. If not, then there is no point of going to trial and wasting resources just to achieve the same result. It may be noted that either a plaintiff or a defendant can file such a motion. If the plaintiff files a motion for summary judgment, then the plaintiff must present undisputed facts in order to prove each essential element of the claim. This is called proof-of-theelements. However, in the event that a defendant files a motion for summary judgment, he or she has two options: (i) to disprove an element of the plaintiff’s claim by showing affirmative evidence; or (ii) to show that there is no evidence in the record to support a judgment for the non-moving party. Summary Procedure under the CPC Now, adverting to the procedure in Pakistan pertaining to summary judgment, the CPC does not provide for summary judgment. However, it provides for a summary procedure under Order 37 of the CPC for certain classes of suits, includingcases based on negotiable instruments. The basic objective under the summary procedure is to fast track the proceedings by not providing the defendant a right to file a written statement (which is known as an answer in the United States under the Federal Rules). In fact, the defendant has to seek the court’s leave to defend the suit. In this context, the defendant may file an affidavit or leave to defend application setting out a substantial defense to the plaintiff’s claim. Thereafter, the court exercising wide discretion decides on the defendant’s affidavit or leave to defend application by determining whether the defendant has disclosed a substantial defense to the plaintiff’s claim. If the defendant has raised a frivolous defense, then the court is likely to refuse leave to defend and render a judgment accordingly. If, however, the defendant is able to show a substantial defense, then the court would grant leave to defend and the matter will proceed as a matter of course.

while the basic objective remains the same, which is to dispose of a case summarily. Firstly, the most important difference is that under the Federal Rules, the plaintiff could dismiss the action without a court order by merely filing a notice prior to the defendant filing an answer or a motion of summary judgment. In contrast, under the CPC, the plaintiff is not allowed to dismiss the action without the court’s leave at any stage of the proceedings. Secondly, under the Federal Rules, the plaintiff could seek a court order to dismiss the action even after filing of the answer by the defendant. The court considers the legal prejudice to the other side, which is the resources expended and the stage of litigation of a case. While,under the CPC, the plaintiff could file an application under Order 23, Rule 1 seeking withdrawal of a case at any stage, the reasons for allowing the application by courts in Pakistan are different as opposed to reasons considered by the courts in the United States under the Federal Rules.As stated above, the courts in the United States will see legal prejudice in terms of time and resources expended by the other side. While, in Pakistan, the courtsin considering to grant permission to withdraw the case will see whether the suit will fail by reason of some formal defect or there are other sufficient grounds for the plaintiff to institute a fresh suit. Thirdly, in relation to an involuntary dismissal under the Federal Rules, an action could be dismissed if the plaintiff fails to prosecute or to comply with the Federal Rules or a court order. In such an event, the dismissal will operate as an adjudication on the merits. However, Rule 41(b) of the Federal Rulesexcludes involuntary dismissals for lack of venue, improper venue, or failure to join a party. Under the CPC, a court either on its own or based on the defendant’s application may dismiss a case if the plaintiff fails to prosecute and not for any other reason. However, under the CPC, no exception is set out in relation to a dismissal of an action for non-prosecution and hence, the plaintiff will be barred from filing a new case on the same claim even if the court lacks jurisdiction. Lastly and more significantly, while summary judgment is provided under the Federal Rules, the CPC does not cater to summary judgment.Instead, the CPC caters tothe summary procedure and that only for certain classes of cases, namely suits for recovery of debt andsuits based on negotiable instruments, including bills of exchange and promissory notes.

Conclusion vvThe differences in terms of the procedure relating to fast tracking the proceedings intrigued me to contrast the applicable rules of both jurisdictions, i.e. the United States and Pakistan. There are several striking differences between both jurisdictions,includingthe fact that under the Federal Rules, a plaintiff could voluntarily dismiss the action without a court order or seek summary judgment as a matter of law for any claim where there is no genuine dispute, whereas the CPC does not cater to such a situation. I personally believe that the voluntary dismissal of an action without a court order and summary judgment under Rule 56 of the Federal Rules should be incorporated in the CPC so as to dispose of cases summarily in which there is no genuine dispute of material facts. This could be one of the ways to tackle the problem of a huge backlog of cases that the Contrasting the Summary Judgment Framework of the courts in Pakistan are confronting which is adversely impacting U.S. and Pakistan the litigants. Therefore, the incorporation of such Federal Rules As an attorney, I can see striking differences in the procedural in the CPC will help the cause of the judiciary in a significant rules of both jurisdictions, i.e. the United States and Pakistan manner.

View Storyfrom Canada

Three Amigos Summit by: Qamar Jawaid

here never been a dull moment in Canada in forward march on all fronts since Liberals in the leadership of young dynamic leadership of Justine Trudeau has taken the reins of Government in historic elections few months earlier. There is no looking back. From victory speech in Ottawa to the extraordinary welcome to President Obama who receives extraordinary welcome in Parliament. These are best of time after a decade of despondency on most fronts.Trudeau played a brilliant host to long due US President Visit to Canada after twenty years. It was much treated as back waters of US. The tide has turned and famous words became resounding voice as ‘Three Amigos join hands’. The summit hosted by Canada brought back the shine to state as being great success. It is rightly termed as historic as ‘three Amigos join forces’ in this visit.Justine Trudeau playing host was most visible in making the occasion historic in looks and in substance both. Trudeau in wake of happenings did invent the word “dudeplomacy” during Three Amigos Summit in the lighter vein. The three handshake is well described as may it looked little awkward but it captured the feeling of brotherly love between three, Justine Trudeau, U.S. President Barack Obama and Mexican President Enrique Pena Nieto which made head line throughout the continent. This trio meeting bade good omen for mutual trade benefits in future. After the diplomatic niceties being over three world leaders got down to serious working. This historic meeting of three President US visit was after twenty years. This is how diplomacy works.The three

leaders sat to down serious business in the historic meeting and after deliberations a comprehensive communique was issued.‘North American climate, clean energy and environment partnership and committed themselves to better protecting the LGBT community.’ It sounded strongly that three leaders with one voice denounced the isolationism of Brexit and the “demagoguery” of politicians like Donald Trump, although they were careful not to directly challenge his candidacy. Most eloquent and of substance was the address of President Obama to the House of Parliament. It was very heart warming and with substance. He is a great orator and with his crisp jibes of sentences enlightened the house. He spoke for a full 50 minutes, touching on everything from equal pay for women and climate change to economic justice. In context of Brexit and of Donald Trump rise, ‘Obama’s speech reaffirmed the role that Canada and the United States can play to promote progressive social and economic policies in a globalized society.’ His words resounded, “We must not waver in embracing our values, our best selves, our histories…” It clearly went over well with parliamentarians, who gave standing ovation after standing ovation. Obama praised Canadian troops, and the co-operation between the two countries during the Iraq war. He added, “The world needs more Canada,” Obama said. The point to appreciate is that Obama thanked Canada for helping to broker negotiations between Cuba and America, and cheekily jabbed at this country’s penchant for cheap tropical vacations. His speech was indicative of friendship with Justine Trudeau, because their shared commitment towards building a better world for their children. Obama did quote twice Trudeau’s father’s words too, “A country is something that is built everyday out of shared values.” Justine Trudeau was as usual in friendly tone did talk to press to. He talked about agreement to protect LGBTQ rights in the wake of Orlando, and then announced the new North American climate, clean energy and environment partnership. He said, “Cooperation pays off. Working together always beats going alone.’ Pena Nieto also declared that his visit was a success. His impression was as he said, “We’re going back to Mexico with memories of the warm welcome that the Canadian people showed us in Quebec, Toronto and Ottawa.” It is interesting that two topics-Brexit and Donald Trump’s contentious election campaign — dominated the conference. All three leaders being much civilized thus did not explicitly disparaged Trump, all three leaders warned about “demagogues” who think they can rule by appealing to people’s basic instincts. At the end as reported Obama did show concerns and rightly so that voters who supported Brexit were fair to the extent that‘it is getting harder for workers — but that leaving the EU will only make matters worse.

Judicial Story

Regular law in ordinary courts

The writer is a barrister and UK solicitor who works with Aurat Foundation on law and governance issues

n August 8, black coats of the Balochistan uniform-clad legal fraternity were covered with dust, blood and tears when a large explosion went off in a Quetta hospital. Generations of lawyers lost their lives, Pakistan lost the security that hospitals are a safe space. Balochistan lost the little hope of normalcy it once had. Yet again. The silence had not fully set in when, a few weeks later, a bomb blast went off in Mardan’s district and sessions court, killing 13 people.

Bar Councils and the legal fraternity around the country came out in full solidarity over the attack in Quetta and then went on a day’s strike after the Mardan attack. But among the expected chaos of raucous voices, of who to blame for the bloodshed in the hospital, the Bar and black coats have been drowned out. But after the dust settles, what is the long term damage to the already fragile rule of law, of which courtrooms and lawyers are an integral part. This is a fundamental question, which we have failed to ask. A just society is one where the rule of law is the cornerstone of its very foundation. The 19th century constitutional scholar, Dicey, articulates rule of law in three basic ways. As absolute supremacy of regular law over the influence of arbitrary power; equality before the law where the ordinary law of the land is administered by the ordinary courts of the land; and lastly, the constitution being not the source but the consequence of the rights of individuals, as defined and enforced by the courts. To ensure regular law through ordinary courts on all citizens is no ordinary and regular feat. It’s not a box one can just tick. Evolved societies consider rule of law a goal to be strived towards, where the fundamentals of embed-

ding the rule of law requires the building and the constant strengthening of institutions; multi-layered, gender sensitive and accountable structures that allow less dependence on individual and political leadership to deliver justice to those seeking relief. In the past, Pakistan’s establishment has shied away from encouraging judicial institutions to take on an independent role. Because too often has illegitimate and arbitrary power been laundered into legal action, using the courtroom and its judgments as the perfect washing machine. The last dictatorship lasted eight years. Musharraf legitimised his rule in 2001, rubberstamping his authority through Supreme Court approval. Ironically, the system that once approved his tenure turned out to be the very reason he was ultimately ousted. But Musharraf is not alone, Pakistan and its dictators have always used courts to legitimise a constitutional wrong — power of men over the power of law. And there is no denying that the judiciary has not raised cries of foul play. Silence by the judiciary since the 1950s. A silence too long to ignore perhaps. But we are moving forward. Two relatively unobstructed elections, devolution of power to the provinces, opposition parties on the side of democracy, and in turn the right side of history, when they supported the government over self-proclaimed political change makers knocking on parliament’s door. The lawyers’ movement in 2007 recognised the importance of ridding the country of dictatorship, followed by the National Judicial Policy in 2009. The Judicial Policy, adopted by the Supreme Court, recognises the flaws in the judicial system and articulates transparency and swift deliverance of actual justice. Progressive case law, such as the declaration of jirgas and panchayats as illegal by the Supreme Court and the Sindh High Court, are signs of things moving forward. But these important developments are followed by bombs in the district court in Islamabad, on lawyers in Quetta, in the courtroom in Mardan. Two steps forward and two steps back means we are still standing in the same place. The rule of law flourishes in a strong democracy. And vice versa. Democracy thrives in a society where the rule of law is well-embedded. But the judicial machinery, which was once cracking under the might of men in uniform, steering from the illegal to the legal, is now crumbling under suicide bombers and bomb blasts. If anything should accelerate the National Action Plan it should be that pivotal institutions of the state are cracking under the pressure of a force determined to break down constitutional structures. And in turn our central value and the only real protection we have — equality before the law. Published in The Express Tribune, September 22nd, 2016.

Terrorism

Is America Going to

Turn on Pakistan?

A new bill in Congress would formally label Pakistan as a state sponsor of terrorism.

by: Shivaji Kumar

ast month Reps. Ted Poe and Dana Rohrabacher cosponsored a bill in the U.S. Congress known as the Pakistan State Sponsor of Terrorism Designation Act. Congressman Ted Poe introduced the bill with thefollowing words: “From harboring Osama bin Laden to its cozy relationship with the Haqqani network, there is more than enough evidence to determine whose side Pakistan is on in the War on Terror. And it’s not America’s.” If passed, this bill would require the U.S. government to produce a detailed report, weighing whether to designate Pakistan as the state sponsor of terror. In contrast, a day later, Chinaaffirmed its unflinching support for Pakistan’s position on terrorism and vowed to use Chinese membership in all international fora to amplify that position. Whatever measures the United States takes against Pakistan’s use of terrorism as an instrument of its foreign policy, one thing is clear: America is rapidly handing over the tools for reining in that country’s terror policy to China. First, China has emerged as the principal supporter of Pakistan’s longstanding policy of training and equipping terror groups, and it is willing to use its diplomatic resources to defend that policy at all international forums. Although Pakistan justifies its support for terror groups in terms of liberating part of Kash-

mir from India, the evidence shows that this support extends to providing safe havens to terror groups that have worldwide operations. A Department of State country report for 2015, released in June 2016, concludes that “Pakistan has also not taken sufficient action against other externally-focused groups such as Lashkar-e-Tayyiba (LeT) and Jaish-e-Mohammad (JeM), which continued to operate, train, organize, and fundraise in Pakistan.” In the past, Pakistan has also depended on China to block U.S. efforts to designate Lashkar-e-Taiba, Jaishe-Mohammad and other related fronts as terrorist organizations at the United Nations Security Council. It is precisely for this reason that Poe’s statement has particular resonance in Washington: “Not only is Pakistan an untrustworthy ally, Islamabad has also aided and abetted enemies of the United States for years.” While the United States and most other states are convinced that Pakistan is pursuing a deliberate policy of supporting international terrorism, China isincreasingly using its influential position in major international organizations to highlight Kashmir as an important issue for which Pakistan needs to train and arm freedom fighters. The contrast in the American and Chinese positions could not be starker. While Poe introduces a bill in the House of Representatives in

Terrorism Washington to designate Pakistan as a state sponsor of terrorism, Chinese premier Li Keqiang holds a meeting with Pakistan’s prime minister in New York to affirm his country’s support for Pakistan’s position on terrorism. The Chinese premier phrased his support this way: “We support Pakistan and will speak for Pakistan at every forum.” Second, China has become a preferred source of Pakistan’s economic support, without much attention to how to stop diversion of that money to terror groups. It is certainly emerging as a reliable investor, replacing on-and-off aid from the United States. Last year, China announced a planto invest $46 billion in Pakistan’s economy through massive energy and infrastructure projects. These projects have the potential to improve much of Pakistan’s dilapidated transportation infrastructure, and produce energy to power its ailing economy, none of which U.S. economic support could do. Although the United States provided Pakistan with more than $31 billion in the period 2002–14, Americans have become increasingly impatient with Pakistan military’s diverting of funds to terror groups and the ever-growing use of those groups to achieve country’s foreign policy goals. Congressman Poe echoed this frustration well: “It is time we stop paying Pakistan for its betrayal and designate it for what it is: a State Sponsor of Terrorism.” Third, China is also deeply involved in building Pakistan’s nuclear-weapons program, without any concern for those weapons falling into the hands of terror groups. Al Qaeda had a strong presence in Pakistan both before and after the September 11, 2001, attacks, with a fairly sophisticated mechanism to plan and execute operations. It is also no secret that Osama bin Laden was found hiding in Pakistan. As the State Department’s report highlights, some of the most organized terror groups, such as Lashkar-e-Taiba, the Taliban, Jaish-e-Mohammad, the Haqqani network and others, continue to operate from Pakistan even today. The suspect in last month’s New York and New Jersey bombings also appears to have connections with the Pakistani Taliban. Driven by these concerns about Pakistan’s nuclear weapons falling into terrorist hands, the United States has over the years opposed Pakistan’s expansion of

its nuclear program and, when that failed, pressured the country to prepare a contingency plan for its safety. In contrast, China has actively supported Pakistan’s nuclear program, supplying some of the critical components for its operation. China appears undeterred by the outcome of Pakistan’s nuclear weapons falling into terrorists’ hands. Some externally focused terror groups, such as the Afghan Taliban and Haqqani network, which the U.S. Department of State’s 2015 report points out are active in Pakistan, have had close links with influential military or other institutions in the country, through which they could get access to nuclear weapons. For these reasons, the State Department report concluded that Pakistan did not take substantial action against the Taliban or Haqqani network, or substantially limit their ability to threaten U.S. interests. No wonder, then, that Poe’s statement echoes a growing concern in Washington. Three specific laws of the United States kick in, triggering punitive measures whenever Congress approves a bill like the Pakistan State Sponsor of Terrorism Designation Act and the secretary of state makes a final determination. The Export Administration Act, Arms Control Act and Foreign Assistance Act are the instruments used against a country designated a state sponsor of terrorism. Together, the resulting four categories of sanctions from designation under these laws comprise restrictions on U.S. foreign assistance, a ban on defense exports and sales, some specific controls over exports of dual-use equipment, and a variety of financial and other restrictions. These powers give real teeth to the American action of designating a country as a state sponsor of terrorism. Although China appears to have gained strong influence on the ways in which Pakistan reacts to U.S. antiterror strategy, this designation will make a raft of punitive measures available to the United States. The calls for using these measures are likely to become persistent and grow louder as Americans confront the threat of terrorism at regular intervals, as almost every trail of terrorist attack at home leads them to Pakistan. Shivaji Kumar is assistant professor at the Centre for International Politics at Jawaharlal Nehru University’s School of International Studies.

Pakistan delays Asia Bibi Blasphemy Appeal

Top court adjourns final appeal in case of Asia Bibi, on death row since 2010, after a judge recuses from bench.

akistan’s S u p r e m e Court has delayed an appeal i n t o t h e c o u n t r y ’s most notorious blasphemy case against a Christian mother on death row since 2010, after one of the judges stepped down. Thousands of security troops had been deployed in the capital, Islamabad, as the court prepared to hear a final appeal in the case of Asia Bibi o n T h u r s d a y. The court did not immediately set a new date for the appeal. But the threat of violence was largely abated when one of the three-judge bench, Justice IqbalHameedurRehman, told the court he had to recuse himself from the case. “I was a part of the bench that was hearing the case of S a l m a a n Ta s e e r, a n d t h i s c a s e i s r e l a t e d t o t h a t , ” h e t o l d t h e court. Pakistan army called in to quell blasphemy law protest Ta s e e r, a l i b e r a l p r o v i n c i a l g o v e r n o r, w a s s h o t d e a d i n I s l a m a b a d i n 2 0 11 a f t e r s p e a k i n g o u t f o r B i b i . His assassin, MumtazQadri, was hanged earlier in 2016 in a s t e p w e l c o m e d b y l i b e r a l s i n t h e c o u n t r y, b u t w h i c h b r o u g h t

h a r d l i n e r s i n t o t h e s t r e e t s c a l l i n g f o r B i b i ’s d e a t h . A senior police official said that up to 3,000 forces were dep l o y e d i n t h e c a p i t a l o n T h u r s d a y. “ S e c u r i t y i s v e r y t i g h t i n I s l a m a b a d a l l a r o u n d t o d a y. A d ditional troops have been deployed on checkpoints and city junctions in general. There is also deployment of paramilitary force Rangers and FC [Frontier Corps] on some additional p o i n t s , ” a p o l i c e s o u r c e t o l d A F P n e w s a g e n c y. U p t o 1 0 0 o f f i c e r s , m a n y i n r i o t g e a r, w e r e s t a t i o n e d o u t s i d e t h e S u p r e m e C o u r t a s B i b i ’s l a w y e r a n d h u s b a n d a r r i v e d f o r t h e h e a r i n g , w i t h m o r e t h r o u g h o u t t h e c i t y. “ I h a v e m a d e m y p r e p a r a t i o n , w e a r e v e r y h o p e f u l , ” B i b i ’s l a w y e r S a i f - u l - M a l o o k t o l d A F P e a r l i e r. Blasphemy is a hugely sensitive issue in Pakistan. Rights groups complain that the controversial legislation is often abused to carry out personal vendettas, mainly against minority Christians. Bibi was convicted and sentenced to hang in 2010 after an a r g u m e n t w i t h a M u s l i m w o m a n o v e r a b o w l o f w a t e r. H e r supporters maintain her innocence and insist it was a personal dispute. But successive appeals have been rejected, and if the Sup r e m e C o u r t b e n c h u p h o l d s B i b i ’s c o n v i c t i o n , h e r o n l y r e c o u r s e w i l l b e a d i r e c t a p p e a l t o t h e p r e s i d e n t f o r c l e m e n c y. She would become the first person in Pakistan to be executed f o r b l a s p h e m y. The repercussions for minorities, human rights and the blasphemy laws will be “tremendous” if that happens, said Shahzad A k b a r, a h u m a n r i g h t s l a w y e r. Observers have warned of possible violence if the conviction is overturned, with some calling the case a battle for Pakis t a n ’s s o u l a s t h e s t a t e w a l k s a l i n e b e t w e e n u p h o l d i n g h u m a n rights and appeasing hardliners.

Pak-India

Mystery of the ‘surgical strike’

by: ZAHID HUSSAIN

t cann o t g e t more absurd. While the Indians insist that they carried out a cross-LoC surgical military strike, the Pakistanis are befuddled by the claim. Either the Indians are hallucinating or the Pakistanis are in a complete state of denial. The riddle gets more confusing with the Indian claim of having destroyed ‘terrorist camps’ a few kilometres inside Azad Kashmir killing dozens of militants, and the Pakistani security forces unofficially claiming to have captured one Indian soldier who ‘strayed’ into our part. The mystery thickens. There is no evidence substantiating the Indian boast of conducting cross-LoC preventive strikes demonstrating their new aggressive approach. This according to some Indian analysts, redefines its nuclear threshold. There has certainly been an incessant exchange of fire between the two forces along the Line of Control over the past one week leaving two Pakistani soldiers dead. However, there has not been any clear answer by the Indian officials about where exactly the targeted camps were located. They have reportedly released some grainy videos of the operation feeding into the jingoistic frenzy of the local media. But that has failed to clear doubts. Surely the Indian claim has far too many holes — but so does our story. Intriguingly, Pakistan has maintained a low profile throughout the crisis, focusing entirely on falsifying the Indian claims of a surgical strike. One may argue that it was not in our interest to cause the situation to escalate thus falling into the Indian trap. But there was no rationale in glossing over some facts that were already in the public domain. There is not one official confirmation of the report about the capture of the Indian soldier. In fact, it was an Indian minister who broke the news. Perhaps we have deliberately ignored the message behind the Indian belligerence. Later, Ambassador Maleeha Lodhi mentioned the incident in her speech at the United Nations. There was no word, however, from the military spokesman who is otherwise eager to comment on every subject. It is still not clear how the Indian soldier was captured if there was no incursion inside our territory. It is hard to buy the argument that the soldier just strayed into our territory crossing over the tight security fencing. All this is quite puzzling. Initially, the Indian officials indicated that helicopters were used in the surgical operations, but they soon backtracked saying there were no aerial strikes and the cross-LoC operation just involved ground troops. The Indian forces apparently launched attacks simultaneously on several positions and reportedly the fire was promptly responded to by Pakistani troops. Indeed, Indian military officials have not provided full details about the number of targets or the number of casualties, nor have they identified them. Undoubtedly, there is much ambiguity over what the surgical strikes by the Indian forces achieved exactly. But there is some indication that the Indian troops did come inside our territory, though it is not clear how far they penetrated. Of course, incursion by the rival troops on both sides of the LoC is not unusual and there are some recent examples. But the context and scale of

the latest infringement, and the fact that the Modi government has chosen to publicly announce it, has completely changed the situation. While in the past, neither side would acknowledge an incursion, it was different this time with New Delhi brazenly owning the act of aggression. Our response uncharacteristically has simply been to repudiate ‘Indian lies’. It may be true that the Modi government has begun a trend of making exaggerated claims of conducting preventive strikes across its borders. One recent example was its claim to have destroyed the Naga rebel camps in an ambush inside Myanmar in 2015. That so-called surgical strike provoked huge criticism in India after some reports revealed that there were no rebel camps in that area. But while trying to prove New Delhi’s claim wrong, perhaps we have deliberately ignored the message behind the Indian belligerence. It is not important whether technically speaking it was a surgical strike or just an incursion. The real issue is that the Modi government has set a new and dangerous precedent signalling its willingness to go to the extreme in the event of any militant strike on its soil in the future. It is what is described as Modi’s doctrine of aggressive diplomacy. Indeed, the Modi government has been under pressure to up the ante after the Uri military camp attack to pacify public opinion that has been fed on the intense anti-Pakistan sentiments whipped up by the right-wing government itself. But the latest aggression was not just for local consumption. It was also meant to send a clear message to the international community about India’s new and more aggressive approach to deal with Pakistan. New Delhi’s growing influential position on the world scene has encouraged the Modi government to take a more reckless path. “The Modi government wants to redefine the idea of ‘no escalation beyond’ the nuclear threshold. It believes the nukes have become a onesided deterrent or a kind of umbrella under which Pakistan can carry out low-level activity to bleed India,” writes Shekhar Gupta, a leading Indian journalist. Some Indian analysts believe that Modi is willing to call what they describe as “Pakistan’s tactical nuclear bluff”. What is most worrisome is that there seems to be little understanding in Islamabad about Modi changing even more than just the rules of the game. Surely, the growing perception of Pakistan’s diplomatic isolation has given further impetus to Modi getting more adventurous. So far our response to the grave challenge has remained incoherent and patchy. We have failed even to present our case effectively to the international community and there is little hope of things changing for us. Although the two sides seem to have agreed to de-escalate the situation, it may not be too long before it flares up again. The writer is an author and journalist. zhussain100@yahoo.com

Blasphemy Law

Campaigning to reform Pakistan’s deadly blasphemy law By Sarah Alvi

Pakistani researcher takes an innovative - and dangerous - approach to change the controversial blasphemy law. blasphemy case can be penalised under the existing provisions of the criminal law,” Khan told Al Jazeera.

he recent killing of prominent activist Sabeen Mahmud in Karachi is a chilling reminder of the rapidly shrinking space for open dialogue in Pakistan. So a push for deliberation on the country’s highly contentious blasphemy law may surprise many.

But it is happening. Arafat Mazhar, a young researcher from the eastern city of Lahore, has launched a campaign to use Islamic legal reasoning to demand an overhaul of the blasphemy law, which can result in a death sentence for those convicted. Outside the justice system, meanwhile, at least 60 people have been killed in cases related to the blasphemy law since 1990, according to Islamabad-based Center for Research and Security Studies. Though “angry and hurt” at the news of Mahmud’s assassination, Mazhar told Al Jazeera he feels motivated to continue building a bridge with hard-line conservatives in Pakistan to change the acrimonious law by “bringing them [to] the table rather than antagonising them”. Before her killing, Mahmud - who also championed for intellectual engagement - said she was “fascinated” by Mazhar’s campaign. “It is an incredible step in the right direction,” she told Al Jazeera several weeks before her assassination. “It takes generations to change mindsets. But there should at least be a space to reform the law and to have a discussion or debate over it,” she said. The blasphemy law mandates the death penalty for anyone who defiles the name of the Prophet Muhammad as a divine decree - a concept perpetuated by right-wing hardliners and religious political parties. “When political forces are the only ones using the religious symbol, it is very easy for them to manipulate the narrative and misguide the masses,” Mazhar said. His campaign is based on the belief that the inclusion of a divinely ordained and unpardonable death sentence as the only possible punishment for blasphemy in Pakistan’s legal framework is wrong. Mazhar’s claim is backed by research on the history of Hanafi deliberation on the issue of blasphemy. Hanafi dogma is one of the five major Islamic schools of thought, and is widely followed by Muslims in Pakistan. Now, by using classical Islamic reasoning to interpret the law, Mazhar is championing for change. The great divide Mazhar is not the first to challenge the blasphemy law. Javed Ahmed Ghamidi, a reformist scholar, has also criticised it saying it’s not in accordance with the Quran. But he has left Pakistan, fearing for his life. Punjab Governor Salman Taseer and Minorities Minister ShahbazBhatti were both assassinated within two months of each other for asking for the law to be reformed. After Taseer’s killing, Pakistan Peoples Party MP Sherry Rehman was forced to withdraw a bill she presented in parliament seeking reform. She was later threatened and charged with blasphemy under the same law she had hoped to change. Critics also say the contentious law continues to be used to settle personal scores. But Ilyas Khan - director general of research at the Council of Islamic Ideology, a constitutional body responsible for advising parliament on aligning laws with Islam - defended the legislation. “Anyone who wrongly accuses someone of blasphemy or becomes a false witness in the

‘No compromise’ Khan said deliberation is a continuous process and the council may look into the blasphemy law again should the need arise. But for now, the council is unanimous in its views. “In cases of blasphemy against Prophet Muhammad there should be a mandatory death penalty and there can be no pardon based on repentance if the act of blasphemy is proven in the court of law,” he said. Jamaat-e-Islami-Pakistan is one of the most influential political parties in the country. It has been instrumental in deflecting any hopes for debate on the law in the past through massive rallying. “We agree that the law can be made better,” said Jamaat’sFareedParacha. “But there can be absolutely no compromise on repealing the death penalty.” Human rights groups, however, have reiterated calls for reform or repeal of the blasphemy law. They say it violates international human rights - an approach seen as “secular” by conservatives, resulting in more acrimony and resistance. According to a 2014 policy brief by the United States Commission On International Religious Freedom, Pakistan tops the world as the country with the highest number of people incarcerated under blasphemy charges. At least 19 people are serving life sentences and Asia Bibi, a 50-year-old mother of five found guilty of blasphemy is one of 17 people currently on death row. Governor Taseer was actively seeking a pardon for her before he was gunned down. Hopes for Bibi’s acquittal diminished further when the Lahore High Court “In cases filed under the blasphemy law, the courts are under so much pressure that it is impossible to do justice,” said IA Rehman, secretary-general of the Human Rights Commission of Pakistan. “Whenever such cases are heard there are mobs that surround the courts, and sometimes the defendant is even murdered,” Rehman told Al Jazeera. In this hostile landscape, what chance does Mazhar’s approach have? He said he believes a fairly good one. Campaign against death Mazhar said reform will come from the grassroot level. “If we successfully start engaging authority figures from the ground rather than imposing change from the top, then I think we can build foundations for some changes,” he said. Working with his team at Engage - a Lahore based research and advocacy group - he is collecting legal opinions by qualified Islamic scholars to highlight factual inaccuracies in the judicial interpretation of the law. This includes support for a pardon and the waving of the death penalty for some convicted of blasphemy. The campaign couldn’t be better timed. With the recent lifting of moratorium on death penalties in the country, an effort to seek such concessions will bring hope for some such as Asia Bibi. Mazhar is working in rural Punjab, an area notorious for mob violence in cases of blasphemy. He said he has already won over some religious scholars who are endorsing his initiative. Fuelled by a crowdsourcing campaign, his team expects to spearhead the “Fatwa Drive” into other parts of the country and approach foreign scholars as well. “Together, the moral authority of these opinions can be used as a force for legal and popular reform in much the same way that fatwas from independent jurists functioned for much of Islamic history,” Mazhar said. Before being gunned down, Mahmud said she feared Mazhar’s campaign will face violence. “When push comes to shove, no one is going to listen to any of this. That is how a mob functions,” she said. “The biggest challenge they will be up against is fear.” Mahmud said she anticipated funding for Mazhar’s campaign would speed up as Pakistanis recognise the importance of using legitimate Islamic channels to change the deadly law. “I would invest in their boldness, their bravery, and the fact they are putting their lives on the line for tackling something so complex and problematic. That in itself is worthy of support,” she said. Follow Sarah Alvi on Twitter: @sarah_alvi

Judicial

Story

After army, judiciary also initiates accountability within ranks

hile Pakistan Army has dismissed six top officers including two generals for corruption charges, the judiciary has also begun a process of accountability with ranks and issued show-cause notices to two judges of Lahore High Court. According to information available with Daily Pakistan Global, the Supreme Judicial Council (SJC) took up the case in a session convened on April 14 and directed the two judges to submit their response in 15 days. The notices were issued after initial investigation by SJC. The sources, however, showed reluctance to disclose the names of the judges, while adding that Chief Justice of Pakistan Anwar ZaheerJamali had directed the SJC to take action against one of the two judges and an inquiry was conducted against the other judge as well. The Chief Justice of Lahore High Court has also been asked to submit a response to this effect. The judges have, recently, also be stopped from their working at LHC. The SJC is responsible to hear cases of misconduct against top judges under Article 209 of the Constitution of Pakistan and a judge belonging to the superior judiciary can only be removed on the recommendations of the council. It is also relevant to be mentioned here that no superior court judge has been removed by the Supreme Judicial Council since the 1970s.

Pakistan’s Besieged and Corrupt Judiciary

By DrShahid Qureshi

well-functioning justice system is crucial to address corruption effectively, which in turn is important for development. But judicial institutions are themselves corruptible. Illegitimate political influence on judges take different forms, some are clearly illegal (bribes, blackmail, threats, violence/murder), while other forms of undue influence stem from the ways in which relations between the judiciary and other arms of government are organized, or reflect a legal culture where judges are expected to defer to political authorities. About a year ago I told the Columbian ambassador HE. Néstor Osorio Londoño in a meeting at Westminster in London: “Columbian mafia is controlling economy, security and politics via banks and you are deliberately or may be unwittingly supporting the mafias. I asked him why you need a high denomination currency notes. Well it serves the mafia’s purpose to hide their corruption smartly.” Columbian Government raised Special Forces Unit with help from the USA to protect judges, journalists and other critics of mafia groups. Sometimes judges use to come in masks to hide their identity. To deal with this kind of situation one need special measure for special ground realities and circumstances. In Pakistan’s neighbouring Afghanistan majority of the area is under the control of Taliban commanders who are actually running daily business. I was reading in the media that a case was presented to Taliban where aggrieved victim came to them for justice as it was impossible for him to get justice. Complainant’s brother was murdered by a mafia lord and his land was also taken away. Lawyer in Kabul was asking for half million US$ for his legal fees.

Honorable: Chief Justice Sajjad Ali Shah (R) speaks to media as his son Awais Ali Shah

Judges were reportedly receiving bribes in cash and kind and even a cow was taken by someone. In this situation Taliban was the only hope left for the victim of this mafia. Taliban took Rs. 1000 as legal fees and ordered both parties to be present at Friday afternoon. After listening to both parties Taliban judge decided the case: “He gave choice to the victim if he would like to have blood money or death sentence of the murderer. The judge ordered mafia leader to immediately release land and property of the victim. He was also ordered to pay a fine. The victim accepted blood money for the widow and orphans of his brother. Continued on page 16

Famous Trial

THE BROWN V. BOAR OF TOPEKA TRIA by Douglas O. Linder (2011)

rown v. Board of Education of Topeka is widely known as the Supreme Court decision that declared segregated schools to be “inherently unequal.” The story behind the case, including that of the 1951 trial in a Kansas courtroom, is much less known. It begins sixty miles to the east of Topeka in the Kansas City suburb of Merriam, Kansas, where Esther Brown, a thirty-year-old white Jewish woman, became incensed at the local school board’s reluctance to make modest repairs in a dilapidated school for area black students, even while it passed a bond issue to construct a spanking new school for whites. Eventually, Esther’s empathy would cause her to push the state’s NAACP chapter to launch a campaign to end segregation in Kansas schools--a campaign that would lead to victory on May 17, 1954 when a unanimous Supreme Court declared that the Topeka Board of Education’s policy of segregation violated the Equal Protection Clause of the United In 1876, Kansas required that all of its public schools be open to all students, regardless of their race. Just three years later, however, the legislature backed away from its enlightened approach to racial issues, and authorized school boards in cities of over 15,000 persons to establish separate black and white schools for elementary and junior high students. Topeka exercised its option to segregate its elementary schools, and the Topeka School Board’s policy of segregation was upheld by the Kansas Supreme Court in 1903, seven years after the U. S. Supreme Court upheld the principle of “separate but equal” in the case of Plessy v. Ferguson. It would be more than four decades before another challenge to segregation in Topeka’s elementary schools would be mounted. At the end of World War II, Topeka was a Jim Crow city in some respects, but not in others. In the capital of Kansas, a city of about 80,000, the 7,000 or so black residents could sit where they wished in buses, enjoy integrated waiting rooms at train stations, and attend integrated junior high and high schools. On the other hand, Gage Park swimming pool was for whites only, and many of the city’s movie theaters, restaurants, and hotels practiced racial discrimination. And although Topeka High had an integrated student body, it had separate sports teams and cheerleading teams for blacks and whites. The black basketball team was called the “Ramblers” and the white team was the “Trojans.” Blacks and whites had separate

student governing bodies and generally sat at separate tables in the school cafeteria. Topeka operated twenty-two elementary schools at the time the Brown suit was filed in 1951, eighteen schools for white children and four for the city’s black students. In many cases, black students were forced by the policy of segregation to attend a designated black school far from their homes when a much closer elementary school, open only to whites, was nearby.

The NAACP Takes Action Topeka was not the only place in Kansas where segregated education existed in the elementary schools in late 1940s. In the suburban Kansas City neighborhood of South Park, white students in 1948 could look forward to moving into a brand new brick school, while the areas blacks attended the 88-year-old, two-room Walker School, a facility without indoor plumbing, a cafeteria, or even a principal. When Esther Brown learned from her black maid about the abysmal conditions at the Walker School, she began a campaign to improve the facility. She took her complaints to the allwhite School Board. When the Board agreed only to make minimal improvements, such as installing new light bulbs, Brown left the meeting feeling “nauseated.” Brown stepped up her efforts, organizing meetings of African-American parents and trying to rally white parents to join her cause. Faced with continued Board intransigence, Brown enlisted a black Topeka attorney, Elisha Scott, to file suit against the South Park District. Brown paid a price for her activism, as she was threatened, a cross was burned in her yard, and her husband fired from his job. Nonetheless, the lawsuit she instigated led to a victory in the Kansas Supreme Court

Famous Trial

RD OF EDUCATION AL: AN ACCOUNT years. In 1950, McKinley Burnett gave the Board what seemed to be a threat to institute a lawsuit. Burnett later recalled telling the Board, “You’ve had two years now to prepare for this”--to which a board member replied angrily, “Is that a request or is that an ultimatum?” In the summer of 1950, the NAACP’s Topeka Secretary, Lucinda Todd, wrote to Walter White, president of the NAACP, to tell them that the “unbearable” situation in Topeka called for legal action. In a separate letter to White, Burnett wrote, “Words will not express the humiliation and disrespect in this matter.” In response to the letters from Topeka, the NAACP Legal Defense Fund in New York initiated contact with the legal team being put together in Kansas. With the help of the national organization’s lead attorney on the case, Robert Carter, a complaint, for filing in federal district court, began to take shape. A complaint requires plaintiffs, and so the NAACP began recruitEsther Brown, crusader for equal educational opportunities in Kansas ing black parents of Topeka elementary school children who might in 1949. Webb v School District No. 90 held that blacks had the be willing to participate in the lawsuit. Eventually, the Kansas right to attend the new, previously all-white, South Park School. branch identified thirteen willing parents, and their twenty elemenAfter achieving success in the Webb case, Esther Brown through tary-age children, to serve as plaintiffs. The first plaintiff listed her support behind efforts already underway by the NAACP in To- in the complaint was a thirty-two-year old assistant minister and peka to integrate the city’s elementary schools. In 1948, a loosely welder named Oliver Brown, who had an eight-year-old daughter formed group, organized named Linda who attended all-blackMonroe Elementary School. by Topeka NAACP presiOn February 28, 1951, the complaint was filed with the United dent McKinley Burnett States District Court for Kansas. Trial was set for June 25. and calling itself “The Citizen’s Committee,” peThe Brown v Board of Education Trial titioned the Topeka School Robert Carter joined Thurgood Marshall’s Legal Defense Fund Board to end its policy of office after finishing his service as a lieutenant in World War II, maintaining separate ele- where he had developed a reputation among white officers as “an mentary schools for blacks uppity Negro” for his insistence upon equal treatment. As a memand whites. The petition ber of a team of lawyers working to end segregation in the nations’ noted “The world is in the schools, Carter advocated bringing social psychologists into the midst of a mighty upheaval cases. Carter believed, and eventually the U. S. Supreme Court and conditions change in would prove him right, that demonstrating how segregation adthe twinkling of an eye.” versely affected the ability of black students to learn in the classIn ended with the prayer room might be the key to winning in the courts. Before heading that “the Board take cog- west to Topeka to assume command of the Brown case, Carter nizance of our petition and turned to his junior LDF colleague, Jack Greenberg, and assigned instruct its agents to adopt him the task of locating expert witnesses willing to testify at thepolicies which will be an Brown trial. inspiration to all the people As the trial date approached, Carter and Greenberg and various regardless of race, color or NAACP expert witnesses began settling into hotel rooms arranged The students represented in Brown et al. v. creed.” for the group by Esther Brown. Esther booked Carter and GreenBoard of Education of Topeka. The Superintendent of berg into one of Topeka’s “colored” hotels, but the lawyers found (L to R: Vicki Henderson, Donald Henderson, Linda Brown, James Emanuel, Nancy Todd, and Schools in Topeka, Ken- the room sufficiently scruffy that they promptly relocated to a neth McFarland, adamant- home of a local NAACP member. Katherine Carper) Photo by Carl Iwasaki/Time Life Pictures/Getty ly supporting keeping the The two NAACP attorneys and the local NAACP attorneys met, Images city’s elementary schools a bit uneasily, to decide on strategy for the trial. Topeka attorney segregated. Even many John Scott found Carter overbearing: “He knew what he wanted of the city’s black teachers were content with the status quo, fear- and implied that this was the way it was going to be.” The trial ing that their jobs might be in jeopardy in a fully integrated system. would take place before a three-judge panel that included WalAs one black teacher explained her opposition to integration, “Do ter Huxman, a tough-minded conservative Democrat and a former you think the white people would have me teach their children?” governor of Kansas, Arthur Mellott, and Delmas Hill. Defending The NAACP’s petition requesting integration languished for two the Topeka School Board was Lester Goodell, former prosecuting

Famous Trial attorney for the county of which Topeka was the seat. Goodell certainly was not an ardent segregationist, and local attorney for the plaintiffs, John Scott, later questioned whether “Goodell’s heart was really in this case.” The first witness called by Robert Carter was Arthur Saville, a former member of the Topeka school board who had just been swept out of office in an election less than three months earlier. Carter hoped to probe the reasons for the school board’s policy of

Segregated Monroe Elementary, the school attended by Linda Brown

reach the light is to start our children together in their infancy and they come up together.” No witness in the Brown trial spent more time on the stand than Hugh Speer, chairman of the education department at the University of Kansas City. For over two hours, Speer testified about ways in which Topeka’s all-white elementary schools were superior to those set aside for blacks. Although the plaintiffs hoped to convince the courts that separate education is inherently unequal, they thought it advisable to present evidence supporting their fallback position: segregated schools in Topeka are not, in fact, equal. Speer testified that the all-black schools were, on average, six years older than the all-white schools, but generally had to concede that physical and curricular differences between white and black schools were small. In fact, in some respects the black schools provided arguably better educational opportunities; Speer testified that the average class size in white kindergartens was 42, but only 25 in black kindergartens. Speer seemed most determined, however, to argue that the effects of differences in the schools on the quality of education were smaller than the adverse effects from segregation itself. Speer told the court, “If the colored children are denied the experience in school of associating with white children, who represent 90 percent of our national society in which these colored children must live, then the colored child’s curriculum is being greatly curtailed.” The most important testimony in the trial came from experts who testified about the negative effects segregation has on learning. Horace English, a psychology professor from Ohio State, told the court that the lower learning expectations that society has for blacks adversely affects their classroom performance. English testified “there is a tendency for us to live up to--or perhaps I should say down to--social expectations and to learn what people say we can learn.” On cross-examination, Goodell elicited the concession from English that he had never tested the performance of AfricanAmerican children in segregated schools and compared that performance to those of black children in integrated schools. The testimony of Kansas University psychology professor Louisa Holt, further developing the theme of segregation’s adverse effects on learning, provided the basis for what would be a central finding in the court’s decision. Holt testified that the policy of segregation “is inevitably interpreted both by white people and Negroes as denoting the inferiority of the Negro group.” She said that the internalized “sense of inferiority” of black students affects their motivation, as they fatalistically assume that any efforts to prove they were not inferior to whites “would be doomed to failure.” Holt’s articulate testimony captured both the court’s attention and that of spectators. Richard Klugar, in his book Simple Justice, reports that after Holt left the stand one of the black mother’s in attendance brought her children over to the psychologist and asked if they could shake her hands. “I want you children to remember this day for the rest of your lives,” she told Holt. The following day, lawyers for the Topeka School Board presented their witnesses. District employees testified about their efforts to maintain bus schedules, to staff and supply black and white schools on an equal basis, and to offer identical curriculums for students in both sets of schools. Superintendent McFarland defended the district’s policy of segregation, arguing it was not the School Board’s place to “dictate the social customs of the people.” He said the Board had “no objective evidence” that the citizens of Topeka desired “a change in the fundamental structure.”

segregation, but Judge Huxman quickly cut off this line of questioning, declaring it irrelevant to the issue in the case, whether or not the board’s policy violated the equal protection rights of the plaintiffs. Carter then turned to his next witness, former Superintendent of Schools Ken McFarland, who also was recently removed from school board politics, having just resigned in the face of a financial scandal. Carter’s examination of McFarland also proved rather pointless, other than gaining the concession that the board’s policy sometimes meant that black children would have to travel a greater distance from their homes to their schools than they otherwise would. McFarland pointed out that the district supplied buses for black children, but not for whites, to alleviate the effects of their sometimes extended journeys from home. Each of the plaintiffs was given his or her chance to testify. Questioned by local attorney Charles Bledsoe, Oliver Brownappeared nervous on the stand. Judge Huxman had to urge Brown to speak up. Eventually, however, Brown’s story came out. He testified that Linda had to leave home at 7:40 each morning and walk through the dangerous switching yards of the Rock Island Line on her way to the bus stop where she would be picked up and taken to the allblack Monroe Elementary School. He said the bus was often late and that “many times she had to wait through the cold, the rain and the snow until the bus got there.” Moreover, Brown said, the bus schedule was inconveniently timed, forcing Linda to wait for up to ninety minutes some days until the school doors opened at nine. When Bledsoe asked Brown if he would prefer to have Linda attend the much closer Sumner School, Goodell objected. Judge Huxman said the court could take judicial notice of the fact that parents almost always would prefer to have their children attend a school closer to home than one far away. After a few meaningless questions on cross-examination, Oliver Brown was excused--and took his place as a footnote in history books. Much of the testimony from the plaintiffs was repetitive, each explaining the travel inconvenience caused for their children by the policy of segregation. Standing out from the testimony of the other plaintiffs was that of Silas Fleming, who asked the court if he could say why he joined the suit. When Judge Huxman replied, “All right, go ahead and tell it,” Fleming said “it wasn’t to cast any insinuations that our teachers are not capable of teaching our children because they are supreme, extremely intelligent and are capable of teaching my kids or white kids or black kids.” Rather, The Court’s Decision and the Appeal Fleming testified, he became a plaintiff because he was “craving On August 3, the three-judge panel handed down its unanimous light--the entire colored race in craving light, and the only way to decision. Writing for the panel, Judge Huxman (a Tenth Circuit

Famous Trial Court of Appeals judge and a former governor of Kansas) concluded that the Supreme Court had not yet overruledPlessy v Ferguson, and the case “still presently [is] authority for the maintenance of a segregated school system.” He wrote, “The prayer for relief will be denied and judgment will be entered for defendants for costs.” While denying the plaintiffs relief, Judge Huxman’s findings made clear that his sympathy lay with them. In a finding that would attract the attention of the United States Supreme Court, Huxman concluded: Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial integrated school system. Even as the Brown trial took place in Topeka, several other challenges to segregated schools were wending their way through the courts. In Briggs v Elliot, another three-judge federal panel upheld Clarendon County South Carolina’s policy of segregation. The Delaware Supreme Court, in Gebhart v Belton, found that a school board’s failure to maintain truly equal facilities in black and white schools violated the Equal Protection Clause. A challenge to Prince Edward County Virginia’s policy of maintaining segregated schools was rejected in Davis v County School Board. Finally, in Bolling v Sharpe, a trial court rejected the NAACP’s argument that the Due Process Clause of the Fifth Amendment required the federal government to integrate the public schools of Washington, D.C. The Supreme Court of the United States, in the fall of 1952, either granted cert or noted probable jurisdiction in all five cases, and scheduled arguments for them to be heard together on December 9, 1952. The Brown decision was especially critical to the NAACP’s challenge, because Judge Huxman’s finding about the psychological impact of segregation had to be accepted unless it was found to be clearly erroneous, as would his finding that the facilities, quality of staff, and quality of black and white instruction were equal. The Brown decision, more than any of the other cases, boxed the Supreme Court in. It left the Court little option but to either uphold the separate but equal education in Topeka, relying on the Plessy precedent, or to overrule Plessy and hold that segregated education was inherently unequal. In the packed Supreme Court hearing room, Brown was the first case to be argued on December 9. Four hundred more people, about half of whom were African-American, lined the corridors in the hopes of witnessing the historic argument. Robert Carter told the justices that the court’s findings in Brown meant that this case presented a challenge to the constitutionality of segregation itself, while Kansas Attorney General Paul Wilson defended the Topeka policy. Thurgood Marshall took the podium after arguments were complete in Brown, presenting the NAACP’s reasons for believing that Clarendon County’s policy of segregation violated equal protection principles. John W. Davis, a man who argued more cases before the Supreme Court than any other man in the twentiethcentury, defended South Carolina’s law. Over the next two days, justices heard arguments in the three remaining school segregation cases. Two days after arguments, the Supreme Court met in its conference room to discuss the segregation cases. As the justices took turns expressing their thoughts, it quickly became apparent that the

Court was badly split. Chief Justice Vinson argued that the framers of the Fourteenth Amendment had no intention of ending all forms of segregation. Justices Black and Douglas disagreed, arguing that the Amendment was meant to protect the Negro against all forms of discrimination, which these policies clearly were. Justice Frankfurter agreed with Vinson that the Fourteenth Amendment did not abolish segregation, but suggested scheduling the cases for reargument on the question of whether equality still meant what it meant in 1868. Justice Jackson waffled, but indicated he might support finding segregation unconstitutional if the states were given reasonable time to desegregate. Justice Burton suggested that “education is more than buildings and faculties--it is habit of mind” and that segregation violates equal protection. Justice Minton argued racial classifications were unreasonable and that “segregation is per se unconstitutional.” Justices Clark and Reed both indicated that they generally supported the right of states to segregate students. Adding up the votes, there were only four clear votes (Black, Douglas, Burton, Minton) to end policies of segregation. The justices voted to have the cases reargued the following term. Before the cases could be reargued, Chief Justice Vinson died of a heart attack and was replaced by Earl Warren. There were now five clear votes for ending segregation in the schools. As Philip Elman, author of the federal government’s brief in Brown would later observe, “Thurgood Marshall could have stood up there and recited ‘Mary Had a Little Lamb’ and the result would have been exactly the same.” On May 17, 1954, the Supreme Court issued a unanimous ruling in Brown v. Board of Education of Topeka. (Chief Justice Warren, former governor of California, used his impressive political skills to discourage justices who might have been inclined to write a dissent, including Justice Stanley Reed, from doing so.) The Court held that “in the field of public education, the doctrine of ‘separate but equal’ has no place.” Warren wrote: To separate [the Negro children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs: Segregation of white and colored children in public schools has a detrimental effect upon the colored children.... Integration came earlier and easier to some school districts than to others. In Topeka, which had previously integrated its junior high and high school, and where integration meant adding two to four black children to previously all-white classes, things went relatively smoothly. Within three years of the Supreme Court’s decision, integration of Topeka’s schools was complete. By the time the Court announced its decision in Brown, Linda Brown and the other twelve child plaintiffs had already moved on to integrated junior high schools. Linda’s her two younger siblings, however, were able to enjoy the benefits of integrated elementary school classrooms. Other school districts took the Supreme Court’s language in Brown II (its 1955 decision implementing the Brown I ruling) , suggesting that integration should proceed “with all deliberate speed,” to be an invitation to deliberate and deliberate, and to forget about speed. A decade after Brown, most black children in the Deep South still attended segregated schools. Not until the 1960s, after much sorrow and even some bloodshed, did the use of invidious racial classifications in the public schools finally come to an end.

Curruption Continued from page 11 Case dismissed in couple of hours and both parties were satis- came when a premier intelligence agency got the wind of these fied with the decision”. sickly endeavours and they played their hand very adroitly. Chief On the other hand, Oxford, Cambridge and Harvard educated Justice was now faced with the choice of the devil and the deep run Kabul could not provide justice to the weak victim. Kabul is a blue sea and he showed extra ordinary courage even at peril of his punching bag of the big US corporations after all they are making life and decided not to cooperate with the ‘Don Supremo’. When US Government spend US$ 7 billion every month to search 150 this happened his son was kidnapped with perfect ease and as the terror suspect of Al-Qaida now perhaps re branded ISIL or Daesh. source said with complete connivance and material support of the Now coming to Pakistan I have personally experienced Paki- Sind government of Qaim Ali Shah. But the Sind government and stani judicial system and the ‘Don Supremo’ did not realise that treatment of the lawyers they were being outwitted by the Agency both treated me like who managed to track and trace the kid‘shit’. The problem was nappers. All leads pointed towards the I paid the Pakistani lawSind government and right to the dooryers to be treated like steps of the ‘Don Supremo’ AsifZardari. shit. A sitting judge was As we later learnt that the main characrunning a land mafia ter in this kidnapping was AsadKharl. gang in Johar Town with Now released on bail of Rs.50000? the full support of local At one stage there was great deal of PML-N politician and embarrassment for the Agency when the police off course. The police sided with the Dons henchmen to judge and mafia refused intimidate the personnel of the Agency, to vacate my house for however, they recovered their poise 18 months which in the rather quickly. When Zardari mafias reend forced me to emleased that beans had been spilled, we ploy ‘special measures’ now noticed a new twist in this drama and within few days when the son of the Chief Justice was judge himself vacated apparently sold out to a jihadist outfit. Awais Shah says was kept blindfolded throughout captivity: report the house and apoloOnce gain the ‘Don Supremo’ was at his gised. He said: “I am sorry for the damage caused please consider usual best. Let us not forget PPP terrorists had hijacked a PIA plane as if you have given charity for your kids”. The judge was so mean and killed an army officer at Kabul Airport so this is not the first that they took the bulbs and fans from the house. That shows what time. Also AsifZardari was prime suspect in the murder of Juskind of people we have sitting in judiciary but then there are al- tice Nizam and his brother in law Murtaza Bhutto according to his ways exceptions. daughter Fatima Bhutto who wrote an article in The News. Sadly, I am not alone in this treatment by the lawyers and judiNow the current position is that both Chief Justice and his son ciary every inch of the judicial system is full of cancerous corrup- are under protection of Special Forces in Karachi. tion.  Lawyers conduct themselves in the most undignified manUnder these circumstances it shall be a quixotically fancy to exner, at the drop of hat they go on strike and behave like hooligans pect Gen Raheel Sharif to clean the stables. These stables have on rampage. They beat up police officers in uniform, damage court no thoroughbred horses but hordes of stinking pigs with lots of premises and manhandle the judges losing sight of all decorum and bullshit. He can only do so if he himself begins to thinks like a respectability. They are the most educated people in the country super don and use extraordinary ‘special measures’ like the Ameriyet they behave like uneducated savages. One more thing disgust- cans did during and after the revolution. But he won’t and perhaps ingly my own paid lawyer was bought or coerced by the ‘mafia’ he can’t because after all he is too much of a gentleman and on top and was insidiously siding with the accused party. I knew it all of this he is overly concerned to be remembered as a gentleman. along yet I felt helpless. The misconduct of lawyers, police and The entire episode is a case study that would shows that the judges is in fact mockery of justice system judges of higher judiciary are not safe and God knows how many As justice Kazim Ali Malik said: “cases could be decided in days are forced to work under threats bribery and intimidation by powor few hearings but if we do that all lawyers will die of hunger”. erful political mafias. Establishment in a fire fighting mode can Since Pakistan is being run by Mafias with full support of likes at least protect the higher judiciary or at least the Chief Justice of of AsifZardari and Nawaz Sharif so all the enforcement institu- Pakistan and other chief justices of the provinces so that at least tions like police. FIA, National Accountability Bureau, prosecu- they can work freely and fairly. If they do not do so, then whither tion and judiciary are part of the syndicate. all hopes of future of our children and Quaid’s dreams of a great In the current situation judges of the superior courts are found to prosperous Pakistan. Whither any hopes of justice or rule of law. have received bribes from the mafia dons in cash and kind. Please (DrShahidQureshi is senior analyst with BBC and editor don’t come to ask me for the evidence as in this case it is the con- of The London Post. He writes on security, terrorism and cerned judges who have to provide evidence of their assets and foreign policy. He also appears as analyst on Al-Jazeera, income. It was reported that chief justice Sind High Court had to Press TV, MBC, Kazak TV (Kazakhstan), Turkish TV, LBC face a very discomfiting situation when he was asked to accept Rs Radio London. He was also international election observ500 million by Zardari Mafia for his cooperation to let: er for Kazakhstan 2015. March 2016 and Pakistan 2002. 1) DrAsim off the hook legally so that he could join the Don He has written a famous book “War on Terror and Siege Supremo in Dubai of Pakistan” published in 2009. He studied at prestigious 2) and do all he can to let Ayaan Ali go abroad to serve her Government College Lahore. He did his MA thesis on ‘Pomaster in Dubai. Clearly non-compliance was not an option. If the litical Thought of Khomeini’ and visited Tehran Univerhonourable judge failed to deliver he shall face dreadful reprisals. sity. He is a PhD in Political Psychology and also studied According to sources everything was fine but an important turn Law at a British University)

SJC Story

Supreme Judicial Council by: Reema.Omer

is an Ineffective Institution

he accountability of the judiciary has largely been absent in Pakistan. Without accountability, judiciary’s independence acts as a shield behind which judges have the opportunity to conceal possible unethical behavior. Indeed, judicial accountability is part and parcel of judicial independence, since a judge whose conduct and decisions are influenced by extra-legal elements cannot be independent. Under international standards, including UN basic principles on the independence of the judiciary, the independence and accountability of the judiciary are inextricably linked. Corruption in the judiciary is a long-standing and chronic issue in Pakistan. Transparency International’s corruption perception surveys, for example, frequently place the judiciary as one of the most corrupt institutions in the country (along with the police). In the past, where judges have acknowledged corruption in the judicial institution, the focus has been limited only to judges in the subordinate judiciary. The National Judicial Policy adopted by the SC in 2009, for example, recommended that strict action be taken against district and sessions judges who carry a “persistent reputation of being corrupt”. However, while judges of the superior courts were encouraged to decide cases expeditiously, there was no recognition of corruption or other misuse of authority by judges of the supreme and high courts in the policy. The Supreme Judicial Council (SJC), under Article 209 of the Constitution, is tasked with carrying out inquiries into the capacity and conduct of SC and high court judges. The SJC comprises the chief justice of Pakistan, the two most senior judges of the SC, and the two most senior chief justices of the high courts. Disciplinary proceedings are initiated before the Council if there is information from ‘any source’, or it is the opinion of the president of Pakistan, that a judge from the superior judiciary is either incapable of performing his or her duties due to mental or physical incapacity, or that he or she may have

engaged in misconduct. A finding of guilt by the SJC is the only method by which a judge of the SC or of a high court can be removed. The chief justice has acknowledged that the SJC has been rendered ineffective because of prolonged delays in deciding complaints: according to the chief justice, 90pc of cases before the SJC have become moot, as the accused judges retired while their cases were still pending. In addition, especially in the recent past, military governments and judges of the SC have also undermined the authority and the constitutional role of the SJC. Ironically, under the leadership of chief justice Chaudhry, the process of circumventing the SJC continued. Following restoration in 2009, the SC gave at least 72 judges who were accused of taking oath under Musharraf’s provisional constitution the option of resigning or facing contempt of court charges. Their plea to appear before the SJC for hearing was dismissed by the SC. In this context, therefore, Chief Justice Jamali’s focus on rejuvenating the SJC to perform its constitutional role is a welcome move. The process of judicial accountability, however, will require much more: First, measures must be taken to ensure that disciplinary proceedings are not used as a means of intimidation, harassment, or retaliation against judges for exercising their judicial functions independently and diligently. At the minimum, this would mean that disciplinary proceedings against judges are strictly according to the provisions of the Constitution and international standards, and must meet all fair trial and due process guarantees. Second, transparency should be a key aspect of disciplinary proceedings against judges. The number of cases referred to the SJC; the legal and evidentiary bases for the complaints; the time taken for adjudication; and the outcomes of the proceedings must be made public — both to maintain the public’s confidence in the administration of justice and also to protect the interests of the parties involved. Third, what amounts to judicial misconduct must be clearly defined and must be appropriate under the rule.

We Indians continually say War is Not an Option

Vikram Sood, a former Indian spy chief

e Indians continually say war is not an option. We have to say war is an option, however ugly it is.”But the prospect of tit-for-tat attacks between two nuclear-armed countries terrifies many. Even if Indian forces could execute a pinpoint strike, experts say it could provoke further aggression from Pakistan and allow it to portray India as an aggressor in Muslim lands — as it has done during the recent unrest in the Indian-controlled portion of Kashmir, the disputed Himalayan territory claimed by both countries. Indian forces have been accused of excessive force in quelling protests over the past two months in which more than 80 civilians have died. Pakistan even accused India of staging last week’s attack — in which four assailants opened fire on a brigade headquarters as soldiers slept — saying it “has all the hallmarks of an operation designed to divert attention from India’s atrocities” in Kashmir. “Which country benefited from the Uri attack?” said NafeesZakaria, spokesman for Pakistan’s foreign ministry. “Definitely, India is the beneficiary.” But Pakistan’s international standing is fraying, as is its longstanding alliance with the United States. The Obama administration withheld $300 million in support for Pakistan’s army this year over its failure to rein in militant groups staging attacks in next-door Afghanistan. “When you don’t have any short- to medium-term options, then you pres-

ent yourself as the country that is hurt by Pakistani aggression,” Dasgupta said. “That creates a certain kind of momentum in the international system.” Seeking to exact diplomatic revenge, India said this week that it would boycott a summit of South Asian nations scheduled for Islamabad in November, and that other countries might follow suit. That followed an announcement that India would suspend further talks with Pakistan on a water-sharing treaty that governs six rivers that flow through both nations. A former army colonel, AjaiShukla, said other non-military options also could serve India well, including calming tensions among Muslim demonstrators in Kashmir. “Modi has the option to escalate the situation” with Pakistan, Shukla said. “It is just that he chose the most prudent option, which is that this incident is not worth getting into a possible military exchange. He chose the de-escalatory option.”

Judiciary on Trial

VALIDATION OF MUSHARAF’S

MARTIAL LAW P

akistan has a long history of imposition of Martial law. Ironically the first Martial Law was imposed by a civilian president Iskandar Mirza. He abrogated the constitution of 1956 and appointed General Muhammad Ayub Khan as the Chief martial Law Administrator and Aziz Ahmed as Secretary general and Deputy Chief Martial Law Administrator. Aziz was the first civilian to hold such an office that made the by: M. Zia Kayani civil servants partners in the Military takeover. Incidentally his role was duplicated with some variation by late Zulfiqar Ali Bhutto in 1971 when he took over from General Yahya Khan and assumed the office of President as also that of chief martial Law Administrator ………a civilian Chief Martial Law Administrator. However only three weeks later General Ayub……….. who had been openly questioning and criticizing the authority of the government prior to the declaration of Martial Law deposed Iskandar Mirza on Oct. 27, 1958 and himself assumed the presidency. This action of General Ayub practically brought the civilian setup under the Military influence and down the road during the last 63 years the civilian governments have functioned under the invisible hands of the military bureaucracy. Nawaz’s second government was no exception despite his claim of being firmly seated on the saddle with the reigns of power in his hands. The Cargill episode proved that Military bureaucracy had its own priorities, it was this mind set that motivated the then Military Junta to topple Nawaz Government. Though Nawaz himself due to his fool-hardy exercise of power provided an opportunity to Musharaf and his collaborators to take over. I have dilated on this issue elaborately in the previous episode. The take over by General Musharaf was premeditated. As General Aziz has revealed in his book that a contingency plan had been prepared by Musharraf and he had directed his corps. Commanders to takeover in case Nawaz attempted to depose him. After the hijacking of Musharaf’s plane, the military moved in as planned to takeover Karachi Airport and the P.M. House at Islamabad. It indeed was not a sudden move, The COAs General Musharraf was in the air and could not have conceived a plan at eleventh hour. It was a well thought of plan and was executed with great precision. According to General Aziz “a wrong perception had developed in the Army that the politicians want to politicize the Army and if the Army like civil bureaucracy is politicized then it would damage the Army. By highlighting this fear some of the army officers were detailed to overthrow the Government. I was also one of them. I never thought as to how politicians can politicize the Army not as much as an Army Chief who himself assumes the office of political ruler. He further writes that during Musharraf’s rule the Army was deeply involved in polities. Its system was in disarray. The Military ruler had no time to pay attention to the Army. His only concern was that the Army should remain loyal to him. To look after the affairs of the Army a new post of vice chief was created. But it was necessary to control him also lest the Army Chief may loose his hold over the Army”. For Musharraf as a head of country a novel title of Chief Executive was by invented. This idea was conceived by the innovative mind of Mr. Shareef uddin Pirzada – a senior member of legal fraternity, whom the late Ardsher Cawasjee a shipping tycoon and a renowned columnist used to call him as “Jadoogar of Jeddah”. He was legal advisor to the Military Government. The Military government announced a seven point agenda on 17 October 1990 likely to stay for a long time. As the international environment was not supportive of military regimes therefore the military government moved cautiously, unlike previous military takeovers, Martial Law was not proclaimed and the constitution was not abrogated but was

held in abeyance. The constitutionally elected president was allowed to continue for the time being. The judiciary was also not touched in the beginning. Both the houses of Parliament and provincial assemblies were dissolved. The military rulers knew that their action to takeover would be challenged in the apex court. therefore they adopted a two pronged strategy. Firstly a case of hijacking was made out against Nawaz Sharif to defang and demorolize him and his political supporters. The Military rulers succeeded in creating a wedge in PML (N) and another faction of Muslim League (Q) was formed led by Chaudhry Shujahat. The PML (Q) became General Musharrafs ardent supporters. The MQM in Sindh also lent support to him both in Sindh and in the Centre. Secondly military rulers made in roads in the Supreme Court. Arrangements had already been made to create division among the judges of Supreme Court through yet another innovative piece of constitutional aberration the provisional constitutional order (PCO) which was promulgated on 26th January 2000. THE SUPREME COURT DIVIDED: The provisional constitutional order (1 of 1999) promulgated by Musharraf sought to amend Article 178 of the constitution whereby a new oath of office for judges of Supreme Court was introduced in place of the existing oath. Oath of office prescribed under Article 178 and 194 of the constitution for the judges of the superior courts contains a specific provisions that a judge shall abide by the code of conduct issued by the Supreme Judicial Counsel and to preserve and defend the constitution of Pakistan. Almost same was the position with regard to the provisions regarding Oath of Office (judges) order No.1 of 2000. The precise provisions were “that a judge to whom oath is administered shall abide by the provisions of Proclamation of Emergency of 14 October 1999 , (PCO 1 of 1999) as amended and the code of conduct issued by the Supreme Judicial Council. But there was specific omission of words “to preserve and defend the constitution”. The matter came to head when judges of the superior courts were forced to make oath under the PCO on 26th January 2000. The Chief Justice Saeed-uz-Zaman Siddiqui refused to take oath. He was virtually put under house arrest. He was appeased by Aziz A Munshi the Attorney General and the Chief Advisor to Military government Mr. Sharif uddin Pirzada. But the Chief Justice stood his ground. The result was that Chief Justice and other five judges did not make oath and had to quit as per provisions of PCO No.1 of 2000 which was that “any judge who would not make oath or would not be given oath would cease to hold the office of Judge”. The five judges who refused to take oath were (1) Justice nasir Aslam Zahid (2) Justice Khalilur Rehman Khan (3) Justice Mamoon Kazi, (4) Justice Wajihuddin Ahmed and (5) Justice Kamal Mansoor Alam. The remaining seven judges took oath under the PCO. The operation to divide weaken and emaciate the supreme court had been successfully completed by the Military rulers with the connivance and collaboration of the insiders. They saw the division to advance their personal interests, to have one of them become Chief Justice even if it was at the expense of independence and credibility of the judiciary. Subsequent events demonstrated that justice Irshad Hasan Khan in collusion with the Military Junta had been instrumental in the conspiracy to divide the Supreme Court. And in turn was rewarded by being sworn in as the chief justice and was later appointed aft¬er retirement as chief election commissioner. But this was not the only occasion when the judges of Apex court have failed to preserve the dignity and independence of judiciary On an earlier occasion during Nawaz Sharif’s confrontation with Chief Justice Sajjad Ali Shah in some what similar situation, the Judges of the Supreme Court had revolted against the Chief Justice and Justice Saeed-uz-Zaman Siddiqui had played an active role in it. As a result of which justice Sajjad Ali Shah was forced to quit. Now justice Siddiq was confronted with the similar situation. The petitions challenging the imposition of Military rule had been

Judiciary on Trial

filed before the promulgation of PCO. These petitions now came up for hearing. The petitioners failed to comprehend that after the Supreme Court judges had taken oath under the PCO and had thus lost its authority to decide any case under the constitution. The judges of the supreme court were beholden to the military rule either for appointment as chief justice or for being retained or appointed as judges. They were under an oath to defend PCO rather than the constitution. A total of seven petitions were filed under Article 184 (3) of the constitution of Islamic Republic of Pakistan 1973. The judgment was rendered on 12 May 2000 and is reported / cited as Syed Zafar Ali Shah and others V/s General Pervez Musharraf Chief Executive of Pakistan and others (2000 SCMR 1173). The case was heard on various dates from 1st Nov., 5th Dec. 1999, 31st January, 1st and 3rd march 6th to 10th, 13th, 14th, 22nd, 24th March 1st to 5th and 8th to 12th May 2000. The case was argued by prominent layers including Sharif uddin Pirzada, Aziz A. Munshi (for the Military Ruler) S.M. Zafar Senior Advocate Supreme Court appeared as Amicus â&#x20AC;&#x201C; currie. However It was forgone conclusion that the Musharraf take over would be validated if not for any other reasons then certainly for personal reasons. Here it may be stated in all fairness that the judgment does take stock of events which are justiciable. It may also be mentioned here that every military take over in Pakistan was primarily due to ineptitude, ineffiency and corruption of the civilian rulers. The judgment describes in detail the circumstances and events that necessitated intervention by the Army. Relevant portions of the judgment are reproduced below. INTERVENTION BY ARMED FORCES: National Assembly is the highest representative body, which reflects the will and aspirations of the people of Pakistan. Similar is the status of a Provincial Assembly in a Province. Senate, being a symbol of unity of the federating units has its own utility for the country as a whole. It is therefore of utmost importance that the impugned suspension of the above democratic institutions is examined with great care and caution, otherwise it would adversely affect the democratic process in the country. However, where the representatives of the people, who are responsible for running the affairs of the State are themselves accused of massive corruption and corrupt practices and in the public as well as private sectors are benefiting there from and resist establishing good governance;

where a large number of references have been filed against the former Prime Minister, Ministers, Parliamentarians and members of the Provincial Assemblies for their disqualification on account of corruption and corrupt practices; where there is a general perception that corruption is being practiced by diversified strata including politicians, Parliamentarians, public officials and ordinary citizens and that a number of Parliamentarians and members of the Provincial Assemblies misdeclared their assets before Election Commission and Tax Authorities; where there was no political and economic stability and bank loan defaults were rampant and that as per report of Governor, State bank of Pakistan Rs. 356 billion are payable by the bank defaulters up to 12-10-1999, having no accountability and transparency; where economic stability in Pakistan was highly precarious and there was an overall economic slowdown as GDP growth during the past three hears had hardly kept pace with the growth of population; where Pakistan has a debt burden, which equals the countryâ&#x20AC;&#x2122;s entire national income; where all the institutions of the State were being systematically destroyed and the economy was in a state of collapse due to self-serving policies of the previous Government, which had threatened the existence, security, economic life, financial stability and credit of Pakistan; where a situation had arisen under which the democratic institutions were not functioning in accordance with the provisions of the Constitution, inasmuch as, the Senate and the National and Provincial Assemblies were closely associated with the former Prime Minister and there was no real democracy because the country was, by and large under one man rule; where an attempt was made to politicize the Army, destabilize it and create dissension within its ranks and where the judiciary was ridiculed, leaving no stone unturned to disparage and malign it by making derogatory and contemptuous speeches by some of the members of the previous ruling party inside and outside the Parliament and no Reference was made to the Chief Election Commissioner for their disqualification as members of the Parliament under Article 63(2) of the Constitution; where the disparaging remarks against the judiciary crossed all limits with the rendering judgment by this Court in the case of Sh. Liaquat Hussain V. Federation of Pakistan PLD 1999 SC 504, declaring the establishment of Military Courts as ultra vires of the constitution, which resulted into a slanderous campaign against the judiciary launched by the former Prime Minister registering his helplessness in the face of the Judiciary not allowing him the establishment of Military Courts as a

Judiciary on Trial mode of speedy justice; where the image of the judiciary was tanished under a well conceived design where the telephones of the judges of the superior Courts and other personalities were tapped in spite of the law laid down by this Court in the case of Mohtarma Benazir Bhutto v president of Pakistan PLD 1998 SC 388, that tapping of telephones and eaves-dropping was immoral, illegal and unconstitutional; where storming of the supreme court was restored to allegedly by some of the leaders and activities of the Pakistan Muslim League which ultimately led to the issuance of contempt notices against them/ contemners by the Full Bench of this Court in a pending appeal; where Mian Nawaz Sharif’s Constituional and moral authority stood completely eroded and where situation was somewhat similar and analogous to the situation that was prevalent in July, 1977. “But surprisingly there is no mention of the incident of Hijacking of PIA Flight. Apart from the circumstances stated above these was the single most important event which prompted the Army to Takeover”. The supreme court while performing its role as “the beneficial expression of a laudable political realism” had three option open to it in relation to the situation arising out of the military take over on 12 Oct. 1999. Firstly, it could tender resignation en block which most certainly could be equated with sanctifying (a) chaos / anarchy and (b) denial of access to justice to every citizen of Pakistan wherever he may be, secondly a complete surrender to the present regime by dismissing these petition for lack of jurisdiction in view of the purported ouster of its jurisdiction under PCO No. 1 of 1999 and thirdly acceptance of the situation as it is in an attempt to save what institutional values remained to be saved” in view of these laudable objectives the supreme court after conscious deliberation and with a view to preserve the national independence, security and stability of Pakistan, decided to maintain and, uphold the independence of judiciary which in turn would protect the state fabric and guarantee human rights/ fundamental rights, it took the oath under PCO No.1 of 1999 to secure the enforcement of law and to restore the democratic institution and to guarantee constitutional rights to the people of Pakistan. The supreme court also sought to justify military take over on the principle of “Salus Popule Supreme Lax”, on the basis of state necessity. The skeleton of Doctrine of Necessity was again resurrected and given new lease of life. The judgment notes that the doctrine of state necessity is recognized not only in Islam and other religion of the world but also accepted by the eminent international jurists including Hugo grotius, Chitty and De Smith and some superior courts from foreign jurisdiction to fill a political vaccume and bridge the gap. The court also observed “that legal recognition / legitimacy can be accorded to the military regime also on the principle that the government should be by the consent of the governed whether voters or not. Here there is an implied consent cosent of the governed i.e. the people of Pakistan in general including politicians / parliamentarians etc to the Army takeover in that no protests worth the name or agitations have been launched against the Army takeover or its continuance. The court further observed that “it can take judicial notice of the fact that the people of Pakistan have generally welcomed the Army Take over…..” The judgment was rendered by chief justice Irshad Hasan Khan while other judges (full court) concurring. The court in its short order disposed of the petition under Article 184(3) of the constitution directed against the army takeover of 12 October 199, the proclamation of emergency of 14 Oct. 199 the PCO No.1 of 1999 and the Otath of Office (judges) order No. 1 of 1999. The court besides validating Military takeover validated all past and closed transactions as well executive actions. The court also ordered that ‘General Parvez Musharraf, Chairman Joint Chief of Staff Committee and Chief of Army Staff through proclamation of emergency of 14 Oct. 1999 and PCO-1 of 1999 whereby, he has been described as Chief Executive …. In the interest of the state and for the welfare of the people is entitled to perform all such acts and promulgate all legislative measures ……”. That these acts or any of them may be performed or carried out by means of orders issued by the Chief Executive or through ordinance on his advice”. The court not only gave unfettered powers to Musharraf to legislate but also allowed him three years period to implement the avowed agenda announced on 17th Oct. 1999, although none of the parties before the court sought such power for the Chief Executive and it was given sue generis. The court also confirmed that general parvez Musharraf is a holder of constitutional post and that his purported

arbitrary removal in violation of the principle of “audi alterane partem” was abinitio void and of no legal effect. The court however for obvious reasons, with regard to the matter of judges of supreme court who had refused to take oath under PCO and held it to be a closed and past transaction although this was not even before the court”. This was indeed a blanant display of self interest which was being justified by the beneficiary judges in the garb of national interest. Looking at the judgment as an impartial arbiter, it can be said that it would have been an honest thing for supreme court not to adjudicate upon the petitions against the Army takeover for the reason that it would not do so after making oath under PCO. They were under an oath to defend PCO and not the constitution and which in the final analysis they did. Their deliberations merely added to the plethora of existing judgment of superior courts on the validation of military takeover . In conclusion I reproduce below excerpts from the White Paper on the role of judiciary issued by Pakistan Bar Council in the year 2000, which are not only though provoking but also instructive and still relevant. “The judiciary has miserably failed to protect, preserve and defend the Constitution, oath of office that members of judiciary make at the time of induction as judges. The judiciary has thus reduced itself to the position of being protector, preserver and defender of unconstitutional acts and orders of the military regime. The role of the judiciary in the history of Pakistan has been extremely controversial. Chief Justice Muhammad Munir and Anwar-ul-Haq compromised the independence and credibility of judiciary due to their controversial judgment. There has been a continuing trend towards deterioration and degeneration during the past fifty years. However Chief Justices Irshad Hassan Khan and Sheikh Riaz Ahmed have destroyed the institution of judiciary as effective and independent organ of State. Corruption and incompetence in the judiciary have become the order of the day. The judiciary lost its respect and credibility due to their pursuit of offices and personal interests. They have unfortunately brought ultimate disgrace to the judiciary. The power of the Chief Justice to form benches has been misused throughout the history of Pakistan. It has been abused to the maximum during the past three years. It now appears that the government needs the services of only five judges, that is the Chief Justices of the Supreme Court and four High Courts, to obtain favourable verdicts. Musharaf has ensured that he has five Chief Justices predisposed towards him and that they would and have actually managed verdicts favourable to him all these years. To top it all, the Chief Justice of Pakistan alone can manage all the verdicts desired by the military rulers. Chief Justice Riaz has blatantly established how the power to constitute benches can be abused. This power should be curtailed and formation of benches should be regulated in such a way that a committee of judges consisting of Chief Justice and two or three senior most judges be responsible for constitution of benches. We have come to a stage in Pakistan where certain questions have to be settled once and for all if the country is to be administered as a civilized state under a Constitution. These questions include: Whether the will of the people or the whims of the military, aided by its intelligence agencies and its surrogates in judiciary, would prevail? Whether the civilian authority would have primacy over the military authority? Whether amendments in the Constitution is the sole prerogative of the Parliament or amendments can also be made by a military ruler? The answer to these question must come from the people of Pakistan, the politically aware sections of the society and the civil society as a whole. No one should delude himself into thinking that by leaning on judiciary we can find answers to these difficult and intricate questions. Judiciary has abdicated its moral authority and responsibility in providing solution to these national problems. A colossal effort has to be made to spread awareness amongst the people to build strong and organized public opinion to preclude any future attempts by any Bonapartist generals to experiment with the future of the nation. This is the responsibility of the members of the Bar, other professions and the journalists. The history would judge the bar harshly if it does not try to eliminate the Bonapartist Cancer from the political system. The Bar would also not be absolved if it did not undertake an endeavour to reform and restructure the judiciary so that it may develop into an obstructor and not facilitator of the Bonapatist generals. ….To be continue

COVER STORY

“ARE COURTS FUNCTIONING?” by: jawaid Siddiqi

hen bombs were raining on London in Second World War by Germany and situation was very gloomy. Prime Minister Winston Churchill was briefed on the casualties and economic collapse. He, it is said, was taking bath but due to urgency he accepted briefing and after that just asked, “Are the courts functioning?” When told that the judges were dispensing justice as normal, Churchill replied, “Thank God. If the courts are working, nothing can go wrong.” This quote is just for reminding that normal state functioning normally can take on most adversarial situations. A normal state is where institutions

and particularly judiciary are working normally. This is again a folly to compare a situation to most powerful state of the time, No doubt all British colonies adopted most system of governance on the British pattern with some cosmetic changes to suit each colony needs but in essence it was well modelled on secular democracy governance. Most colonies more or less forged ahead with basics of democratic governance and quite successfully. Fast forward, Pakistan turned into garrison state became an experimental laboratory as governance is concerned. It will be separate debate and research wether Pakistan can be called an ‘natural state’? At present as ‘Unique state’ it emerged on the map of the world purely, at that point of time, on the basis of religion. Yet, like any state it was bestowed with the constitution (Government of India Act 1935) and political system which ensures independence of judiciary. Unfortunately, a quote from South Asian Study journal explains quite near to point. ‘The Constitution and the political system of any country guarantees and makes favourable atmosphere to ensure independence of judiciary. However, sometimes due to certain political events or dictatorial regimes, the judiciary may face certain limitations which affect ultimately its independent and impartial character.’ This happened to ‘unique state’ of Pakistan. It is ‘Unique’ state and has unique destiny too as per book written by Javed Jabbar. In fact the situations happening for the past decades has come to pass as of today. One feels that nobody knows where to go from here? It is become a most paradox or rather enigma that what are the reasons for the circumstances in which Pakistan is in? Some say it is from the day one. Yes but there are reasons too and just one or two factors cannot be blamed. Blame has to be equally

shared. Just academically speaking then it is well written in the paper of south Asian research institute which “focuses on the comparative analysis of judicial set up of the U.S.A. and Pakistan to jot down the weaknesses of Pakistan’s judiciary in the past and to look forward for judicial independence in the country. In Pakistan ‘role of judiciary, to uphold the Constitution and rule of law in Pakistan got compromised.’ In fact Pakistan case theoretically does not fit in any other state’s circumstances. There is lot of material about the reasons of failure but besides many birth defects the main reason comes to mind is the judiciary it self. Nothing is more apt then the opening lines of the book ‘Destruction of Pakistan’s Democracy by Allen MacGrath written 1996. ‘This book is a dissertation which was successfully defended and awarded a Ph.D. from Columbia’s Human right’s Institute in 1991’. Perhaps the seeds of destruction were inbuilt in its creation. This quote from Introduction of that explains all, “on 28th October 1954, Pakistan Governor-General Ghulam Mohammad ordered the police to bar the members of the Constituent assembly from entering their meeting hall in Karachi. The sole item on the agenda of their aborted meeting was a formal vote on the published draft of Pakistan’s new constitution, which had been approved at the Assembly’s previous session.” The worst act which once for all made the judiciary of Pakistan in service of powers that be and it has never looked back doing that wilfully. The first unholy sin was committed by the then Chief Justice Mohammad

Munir of the Federal Court and by the majority of his colleagues legitimized the dissolution of Assembly. Rest is painful history till to date. ‘The role of judiciary is inherent to uphold the Constitution and rule of law’ but in Pakistan it got compromised. In spite of all pressures whenever Judiciary took up a stand it led to confrontation with establishment and establishment got its way but in the process Judiciary became an institution which is there but in reality it cannot act in the manner as it has evolved in civilized states to the level that it is become a protector of constitution and human rights. This all is showing in western working democracies. Lot volumes has been written in this regard but resultant is neither democracy is working nor Judiciary is left with clouts to become the defender of faith as of justice. In fact it is political culture of every state which grinds to grow democracy and in consequence a liberal democratic secular civilized society gets strengthened. It is not so here.

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IMPORTANCE OF

MEDIATION SERVICE BESIDE LAW Future depends on better Mediation service to save time by: ShohratRizvi

ediation service is slowly becoming an important part of dispute solution, taking into account that the economic opportunities are dropping down and the common interests of people either of corporate sector or of public sector is to generate money in short-run by way of investment through risk involving efforts raise the risk of li-

abilities discharge result in growth of overall disputes. Mediation service is very effective under the time constrain situation, whereas Mediation service works to filter and resolve dispute by saving time without following any steps of

procedure, as there are no steps of procedure govern by the Law for Mediation, while on the other hand Law follows its steps of procedure which consume ample of time. Mediation service neither changes Law nor makes any Law though Mediator works according to Law for resolving the dispute of all the parties involved in the disputed matter, as we know that Law never changes only the facts changes and when the facts changes Law follows the facts, so Law depends upon the facts of the matter but Law independently answer the question of facts, while Mediation service deals

with the facts of the matter according to Law. Mediation service is pushing forward because of the globalization expresses different domestic and external polices, whereas those policies are experienced with the past policies been involved in various investments by the foreign and the local investors; it will be found easier for the investors to solve their disputes by hiring Mediation service for hedging their business polices and its disputes not to be exposed, something that has in the past been a big problem of exposing the disputes, Mediation service provide privilege of confidentiality for the involvement of various investments and its disputes in the foreign and in the local market for the investor. Mediation service suppo r t h i s c l i e n t b y k e e p i n g c o nfidential the dispute unl e s s t h e g o v e r n m e n t r e q u i r e s the real facts of the matt e r a n d / o r t h e g o v e r n m e n t o ffers and deal with an ass o r t m e n t o f e c o n o m i c o p p o rtunities that those oppor t u n i t i e s c a n g e n e r a t e a c o mmercial or a common inte r e s t f o r t h e i n v e s t o r s , w h i c h leads for the arrangemen t o f f i n a n c e s f o r i n v e s t m e n t with a view to maximize o u t c o m e v i a Ta x e s . Mediation service is a ke y o f s u c c e s s i n a s h o r t e r t i m e period that needs our im m e d i a t e a t t e n t i o n , w h e r e a s financial awareness has b e c o m e a s i g n i f i c a n t p o r t i o n of our population but ou r p o p u l a t i o n i s n o t e d u c a t e d and informed about the a v a i l a b l e M e d i a t i o n s e r v i c e , which provide consumer p r o t e c t i o n t h a t t h e i n t e r e s t s of all parties remain wit h i n t h e f i n a n c i a l e c o s y s t e m and are fully protected. I t i s i m p e r a t i v e t o s a y t h a t those communities who h a d e x p e r i e n c e d t h e M e d i ation service have a conve n i e n t a n d s e c u r e e x p e r i e n c e , so the phenomenon of Me d i a t i o n c a n s n o w b a l l w i t h i n their peers too. Mediation service is an i n n o v a t i v e a n d i m p o r t a n t s e rvice for those people wh o w a n t s t o r e s o l v e t h e i r d i sputes in lesser time; it is a l s o a m o b i l e s e r v i c e m o d e l and a crucial piece to so l v e p r o b l e m s o f p o v e r t y l i n e people who follows redu c t i o n d i l e m m a .

NCDR

NCDR holding international seminar on Mediation Tomorrow

he National Centre for Dispute Resolution (NCDR) is holding the country’s first international seminar on “Mediation: Improving Business Climate & Promoting Communal Harmony”, here on Saturday. Addressing a news conference on Thursday at the NCDR headquarters, President NCDR former chief justice Saeed-uz-Zaman Siddiqui said that Chief Jus-

tice said. The seminar will give an insight into the world of Alternative Dispute Resolution, in particular the benefits of mediation and how mediation can improve the economical condition of Pakistan as well as promote communal harmony and religious tolerance. More than 200 stakeholders from different parts of country and abroad will participate in this mega event, he told. Justice Siddiqui was of the view that mediation was the future of Pakistan and extensive legislative work was underway to make it mandatory in the country. He said that in November 2015, a proposed amendment to section 89-A making mediation mandatory had been submitted in the National Assembly. Students and faculty members need to familiarise themselves with mediation as an alternative dispute resolution mechanism, he said, adding that with mediation soon becoming mandatory in Pakistan, a market would be created for accredited mediators. This seminar will also serve as a platform where students and faculty members could network and meet with leading national and international expert mediators, he added. “Currently, in Pakistan there is a tradition of informal justice and dispute resolution forums or “panchaayats/jirgas”, where ADR is applied, but judgements are often dispensed by local elites and are arbitrary. Within the legal framework, laws have been drafted, some passed, that have ADR articles for court annexed mediation, he said. He said that however, it was widely acknowledged in Pakistan that ADR lacks “teeth”, in that it had not been effectively implemented or institutionalised. Essentially, High Court rules did not apply ADR practices while judges and lawyers were not sensitized and rarely referred cases for mediation; hence, as per

tice of Pakistan Justice Anwar Zaheer Jamali would be the chief guest at the seminar, which will be held at a local hotel. He said that the seminar was aimed at creating more awareness to help improve mediation in the business climate in the country, besides promoting the communal harmony with the resolution of disputes at the earliest stages. He said that the formal justice delivery system was presently overburdened with litigation and cases for weak governance, increase in public’s awareness of rights, urbanisation, waning of non-judicial traditional dispute resolution institutions and availability of resources to the aggrieved. “This enhances access to affordable legal counsel and representation,” he said. “Being aware of the situation, which affects litigants with time and costs involved in litigation, the government had amended provision of a section 89 A of the Civil Procedure Code 1908 (CPC) and introduced a well-recognised concept of Alternative Dispute Resolution (ADR) in 2002 into formal judicial system,” he added. Section 89 of Code of Civil Procedure, 1908 as inserted by Amendment Ord. XXXIV of 2002, dated 27.2.2002 reads “89-A Alternate dispute resolution: The Court may, where it considers necessary, having regard to the facts and circumstances of the case with the object of securing expeditious disposal of case, in or in relation to a suit, adopt with the consent of the parties alternate dispute resolution method, including mediation and conciliation,” the former chief Jus-

a media report dated March 31, 2011, Pakistan was facing a backlog of about 1.355869 million cases of varying nature. Talking about NCDR, Justice Siddiqui said that it was Pakistan’s first mediation centre had been established with the approval of the High Court of Sindh and funded by International Finance Corporation in February 2007. The Centre has since been involved in commercial, international and family mediation, he said. With a success rate of over 75 percent, he said that the centre had been responsible in the release of over $32 million under various disputes. The centre has also played a major role in suggested amendments to the existing laws of mediation in Pakistan. It has a memorandum of association signed with bodies like the Securities & Exchange Commission of Pakistan, The High Court of Sindh, Karachi Chamber of Commerce, Trade Dispute Resolution Organisation (Ministry of Commerce) and the Institute of Chartered Accountants of Pakistan, he said. Other prominent speakers of the seminar are former Interior Minister Rehman Malik, MNA Arif Alvi, Vice President NCDR Anwar Mansoor Khan, COO NCDR Ebrahim Saifuddin, foreigners Firdosh Karachiwala (India), Willem Meuwissen and Philippe Billiet from Belgium. Vice President NCDR Anwar Mansoor Khan, Board Members Majyd Aziz, Abrar Hassan, Arshad Zuberi, Zia Ahmed Awan, Younis Bashir, Mom M Fudda, Habib-ur-Rehman and Nadeem Ahmed Adil were also present in press briefing.

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