|Nawaz Shrif's second stint in Office|
Human Rights situation criticized
The US State Department in its Annual 1997 Human Rights Report harshly criticized Pakistan's general political and human rights situation, saying the government infringed on citizens' privacy rights, extra-judicial killings in Karachi were still common, the judiciary was under political influence and journalists were on payrolls of agencies. "The government's human rights record remained poor in 1997, with serious problems regarding police abuse, religious discrimination, and child labor."
The report released on Jan. 30, 1998, said:
* The government imposes limits on the freedom of assembly, movement, and-for the Ahmadis in particular-religion. The extra-judicial killing of criminal suspects, often in the form of deaths in police custody or staged encounters in which the police shoot and kill the suspects, is common. Although Karachi remained a hotbed of politically motivated violence, extra-judicial killings by security forces there had diminished (as compared to the previous government).
* The authorities sometimes transferred, suspended, or arrested offending officers, but seldom prosecuted or punished them. Investigating officers generally shielded their colleagues. The Amnesty International estimated that up to 100 people died from police torture each year.
* The MQM contends that several thousand of its members are still in jail on politically motivated charges that date from the 1992-96 period. The government is supposed to be reviewing the cases of these imprisoned individuals (most of whom are awaiting trial) to see if they can be released. To date, few of them have been released.
Although Pakistan's constitution provided for an independent judiciary, in practice, the judiciary was subject to political influence. Journalists, routinely underpaid, are on the unofficial payrolls of many competing interests, and the military (or elements within it) is presumed to be no exception.
The Human Rights Society of Pakistan described the US State Department's report on human rights environment in Pakistan as a "fairly" objective document and said that it needed to be taken seriously. In a statement issued on Feb. 2, HRSP chairman S. M. Zafar said:
* The society shared the concern of the US State Department with regard to the attitude of police towards human rights and considered it to be failure of successive governments in Pakistan in controlling the situation.
* The argument about the problem being a legacy of the past was untenable as "the 1997 record of the government does not indicate any serious attempt by the government to punish the violators, some of whom resorted to extra judicial killings". Unless the government could exhibit an iron will, the bad habit already formed would continue to persist, he pointed out.
* The US report correctly portrayed the damage suffered by the judiciary that required immediate attention of all concerned. Code of conduct of judges for the superior court, he added, should be followed in letter and spirit by the learned judges and the government should avoid in passing any law, constitutional or otherwise that might erode the independence of judiciary.
MQM leader Altaf Hussein acquitted in Major Kaleem kidnapping case
A division bench of the Sindh High Court on Feb. 5 1998 acquitted Muttahida Qaumi Movement chief Altaf Hussain and 18 other top leaders in the Major Kaleem kidnapping case and overturned Altaf Hussain's 27-year jail sentence ordered by a special Suppression of Terrorist Activities (STA) court. The court ordered the release of three of the 18 acquitted leaders - Ashfaq Chief, Javed Kazmi and Haji Jalal- who are serving their term in Karachi Central Prison. Ashfaq Chief, Javed Kazmi and Haji Jalal were sentenced to 30 years' imprisonment while others, including Altaf Hussain, sentenced in absentia and declared absconders, were awarded 27 years' imprisonment each. The 16 others acquitted in the case included Altaf Hussain, Saleem Shahzad, Safdar Baqri, Dr Imran Farooq, Yousuf, Nadeem Ayubi, Ayub Shah, Aftab Ahmed, Ismail alias Sitara, Ashraf Zaidi, Sajid Azad, Asghar Chacha and Rehan Zaidi.
After A.Q. Halepota, one of the counsels for the Muttahida leaders, concluded his arguments, the court asked Advocate-General Shaukat Zubedi to make his submissions. Zubedi said that a lot of omissions amounting to contradictions had been made during the trial and that he would not support the convictions of the accused by the STA court. The advocate-general said further that the proper course would be to send the case for retrial before a competent court, but the court didn't agree with his contention and acquitted the appellants.
According to the prosecution, Major Kaleem and three other army officers were patrolling the Landhi area in civilian clothes in an army jeep when about 20-armed youths took them hostage after seizing their weapons. The army men were taken to a place called White House in Landhi where they were allegedly tortured and kept for seven hours. They were rescued when the police reached the place.
The incident had happened on June 20, 1991 and the FIR of the incident was lodged on June 24. The accused in the case had been charged with kidnapping the army officers and torturing them. Trial before STA Court No. 3, began before judge Ghazanfar Ali Shah in March 1993 and the judgment was delivered on June 9, 1994 when Altaf Hussain was not in Pakistan.
The counsel for the Muttahida leaders pointed out a number of contradictions in the statements of the state witnesses who had appeared before the STA court. They said the state witnesses had failed to substantiate how army officers possessing automatic weapons could be overpowered by armed youths. The counsel also submitted before the court that Major Kaleem and those with him should have been court-martialled for surrendering to civilian youths instead of accusing the Muttahida leadership of kidnapping and torturing the armymen. They were of the view that it was a fabricated case against the Muttahida.
They argued that the names of top Muttahida leaders were not mentioned by the state witnesses, but were later inserted in the challan by the investigation officer, and added that this suggested that the party leadership had been named in the case with mala fide intention.
The Major Kaleem kidnapping case took a new turn on Feb. 4, when a prosecution witness confessed that the name of MQM chief Altaf Hussain had been belatedly inserted in the FIR. Akbar Beg, the officer who had conducted the initial investigation into the case, told the court that Altaf Hussain's name was included in the challan against him after the start of the army operation against the MQM.
SC issues detailed judgment in Sajjad's appointment case
The Supreme Court on Feb. 9, 1998 issued detailed judgment on the petitions challenging the appointment of Justice Sajjad Ali Shah as the chief justice of Pakistan. The ten-member bench headed by Justice Saiduzzaman Siddiqui in its short order on Dec 23, 1997 had declared the appointment of Justice Sajjad as the CJ, illegal and unconstitutional.
The court in its 391-page judgment rejected the argument that if the appointment of Justice Sajjad as the chief justice was held unconstitutional; its application would be with retrospective effect. The court held that doctrine of de facto would apply to the appointment of Justice Sajjad as the chief justice of Pakistan till Nov 26, 1997, when a division bench of the Supreme Court restrained him from performing his administrative and judicial functions.
Abdul Hafeez Pirzada, the counsel for the former chief justice, had argued that if the appointment of Justice Sajjad Ali Shah as the chief justice was declared invalid, it would lead to serious consequences as except three judges of the Supreme Court - Justice Ajmal Mian, Justice Saiduzzaman Siddiqui and Justice Fazal Illahi Khan - the appointment of all the Supreme Court judges and a number of high court judges would become invalid as all of them were appointed by the president in consultation with Justice Sajjad Ali Shah who was then the Chief Justice of Pakistan.
The ten-member bench after discussing the doctrine of de facto observed: "the principle of de facto exercise of power by a holder of the public office is based on sound principle of public policy to maintain regularity in the conduct of the public business, to save the public from confusion and to protect the private right which a person may acquire as a result of exercise of power by the de facto holder of the office."
The court also dismissed the argument that the appointment of Justice Sajjad as the chief justice of Pakistan was a past and closed chapter after the apex court judgment in Judges case. Responding to the argument of Hafeez Pirzada that no judge affected by the appointment of Justice Sajjad as the CJ had objected to his appointment and they continued to function, the court said it was incorrect.
The court maintained that three judges senior to Respondent No 2 (Justice Sajjad) in spite of invitation by the president of Pakistan did not attend the oath-taking ceremony of Justice Shah as the CJ to express their resentment. Justice Saad Saood Jan, the senior most judge of the apex court who had legitimate expectancy to become the chief justice of Pakistan after the retirement of Justice Nasim Hasan Shah, the court observed, proceeded on leave for three months and until his retirement on June 30, 1996, spent most of his time at the apex court branch registry at Lahore. The court also referred to the speech of Justice Saad Saood Jan on the occasion of his retirement and a press statement issued by him, to show that he had resented his supersession by a junior judge.
Justice Ajmal Mian, another judge who was affected due to the violation of the principle of seniority in the appointment of the CJ, had also expressed his opinion on the appointment of a junior judge as the chief justice. The court referred to the two judgments in Al Jehad Case 1, and Al Jehad Case II, in which Justice Ajmal Mian had expressed his views on the subject.
Justice Ajmal Mian and Justice Saad Saood Jan did not surrender their right of legitimate expectancy to the office of the chief justice of Pakistan in favor of respondent No. 2, the court observed. "It must be borne in mind that judges of the superior courts by tradition maintain high degree of comity amongst themselves. They are not expected to go public on their differences over any issue."
The court observed that it was not expected of the superior court judges to litigate in courts like ordinary litigants in case of denial of a right connected with their offices as the code of conduct for the superior court judges enjoined upon them to avoid as far as possible any litigation on their behalf or on behalf of others.
It held that the principle of seniority in the appointment of the CJ since the establishment of the Supreme Court in 1956 was upheld. It was only violated in 1994 when the Respondent No 2 (Justice Sajjad Ali Shah), fourth on the seniority list, was appointed the chief justice of Pakistan.
The court rejected the argument of Hafeez Pirzada that no writ could be issued against a judge, the court held that judgments delivered by a judge or group of judges were the functions which were covered under Article 199(5) of the Constitution. "The difference between a judge acting as court and a judge acting in his personal and individual capacity is not only real but is necessary to preserve, otherwise a judge will not be answerable for wrong done by him in his individual capacity."
Action taken or orders passed by him in his capacity as a judge of the court cannot be brought under challenge under Article 199 of the Constitution but his action as ordinary individual would be subject to ordinary law of the land including Article 199 of the Constitution, it was maintained. When the appointment of a judge is challenged that he did not possess the qualification prescribed by the Constitution, the relator was not asking the court to strike down any of his action which he had performed or was performing as judge but was asking for examination of personal qualification. "We are therefore of the view that such an attack on the validity of the appointment of a judge of superior court through collateral proceeding is not proper remedy."
The court held that petitions challenging the appointment of Justice Sajjad Ali Shah as the chief justice were maintainable. The SC reacted to the objections raised by Justice Sajjad Ali Shah against six judges on the bench, accusing them of bias. The court rejected the objections. The court also rejected the objection to the presence of Justice Saiduzzaman Siddiqui, Justice Fazal Illahi Khan, Justice Irshad Hasan Khan, Justice Nasir Aslam Zahid and Justice Khalilur Rehman Khan on the bench hearing the petitions. The court also rejected the objection of bias against Justice Saiduzzaman Siddiqui that he was prejudiced against Justice Sajjad for the reason that he had recommended to the president to refer his (Justice Siddiqui's) case to the Supreme Judicial Council.
The Supreme Court converts 'charge sheet' against Nawaz Sharif into notice
A supreme court bench headed by Chief Justice Ajmal Mian agreed on Feb. 17, 1998 to treat as a mere "show cause notice" a "charge sheet" issued to Prime Minister Mian Nawaz Sharif by a bench headed by the former chief justice, Justice (retd) Sajjad Ali Shah, for alleged contempt of court. S.M. Zafar, counsel for Prime Minister Nawaz Sharif, took 90 minutes to persuade the court that the charge sheet issued to the prime minister was not a charge sheet as required under the law, and the court was still at the stage of "show cause notice".
When the proceedings started, Chief Justice Ajmal Mian observed that the previous bench had charge sheeted the prime minister, and the only question for the court to decide was what procedure to follow.
S.M. Zafar contended that no charge sheet had been "issued", but admitted that a charge sheet had been "drafted". He said unless a charge sheet was read out to an accused asking him whether he pleaded guilty or not guilty, there was no charge sheet. He said under rule 7 of the 1976 Contempt of Court Act, the attorney general had to act as a prosecutor, and it was his duty to read out a charge to an accused. He said no such thing had happened in this case, and the so-called charge sheet was handed down to representatives of the respondents at the office of the deputy registrar.
When the chief justice observed that a mere formality of reading out a charge sheet to an alleged contempt was not performed, the counsel for the prime minister stated that reading out the charge sheet to the accused was not a "mere formality", but an "essential formality."
Mr Zafar argued suspending the potency of the 14th Amendment through an interim order without hearing the Federal Government or the attorney general, had upset parliamentarians who raised the issue in the parliament and this necessitated an explanation by the respondent. He contended that by virtue of section 8 of the Contempt of Court Act, Chief Justice Sajjad Ali Shah, after having taken cognizance, could not proceed with the case.
Pakhtoonkhwa: Renaming of the NWFP
The issue of renaming the North Western Frontier Province has sparked an acrimonious argument between the Awami National Party (ANP) and the Pakistan Muslim League (Nawaz group). A resolution on renaming of the province as Pakhtoonkhwa was passed by majority in the NWFP assembly on Nov 13 1997. The resolution later became controversial due to a tough resistance by several political parties of the province against the backdrop of an aggressive campaign launched in its favor by the ANP and some other nationalist groups. By February 1998, the situation in the NWFP reached a point of acute polarization between the pro-Pakhtoonkhwa campaigners, particularly those from the ANP, and the opposing group led by veteran Muslim Leaguers.
The ANP leader, Khan Abdul Wali Khan says that (a) changing the name of the province was no longer an issue as the matter was settled by the NWFP Assembly and (b) that they were discussing with Mian Nawaz Sharif whether Punjab should accept the NWFP resolution. Wali Khan argues that the question of Pakhtoonkhwa was not the question of change of name but of safeguarding the provincial autonomy. The ANP President, Senator Ajmal Khattak has clarified that his party wanted that except for foreign affairs, defense, currency and communications, which should remain with the center, all other subjects should be handed over to the provinces.
The PML (N) parliamentary party of NWFP on Feb. 20, 1998 rejected the ANP demand for renaming the province as Pakhtoonkhwa, but empowered the Prime Minister to suggest any other "non-controversial" name. The PML (N) members stressed that Frontier (Sarhad) was a good name for the province. But if at all, renaming the province was needed, then it should be named as Khyber or Abasin. The NWFP Chief Minister, Sardar Mehtab Ahmed Khan, said that the will of the people should be taken into account while resolving the Pakhtoonkhwa issue and referendum could be one way of ascertaining what the people wanted.
However, the Awami National Party (ANP) leadership rejected the offer of holding referendum on the issue. The ANP also disapproved "Khyber" to be the new name of the province and it had told the government that it would get its demand accepted or would leave the coalition with the PML both in Center and the province.
The fact of the matter is that there is an agreement between PML(N) and ANP that the name of NWFP be changed. The ANP gave full support to Mian Nawaz in his confrontation with the judiciary and supported each amendment without asking for a free and judicious debate. The ANP President, Senator Ajmal Khattak, on Feb. 11, 1998 reaffirmed that the Prime Minister had given an undertaking to the ANP that the NWFP would be renamed as Pakhtoonkhwa. He said it was because of this understanding that his party had supported Nawaz Sharif as Prime Minister and Sardar Mehtab Abbasi as NWFP chief minister.
As the acrimonious debate continued, the former chief justice of Pakistan Dr Nasim Hasan Shah called for the dissolution of the NWFP Assembly and fresh elections in the province on the issue of Pakhtoonkhwa. The press in the Punjab reminded the ANP Rehbar, Khan Abdul Wali Khan, the negative role played by his father, Khan Abdul Ghaffar Khan, during the struggle of Pakistan. One of the newspapers from the Punjab suggested that the province should have all the say in the affairs of the state because it provides wheat to smaller provinces.
On Feb. 15, 1998, speaking on the 10th death anniversary of his father, the Pakhtoon nationalist leader, Khan Abdul Ghaffar Khan, Rehbar of the Awami National Party, Khan Abdul Wali Khan, warned the government of grave consequences if Pakhtoons were not given their due rights." If the demand for Pakhtoonkhwa was not met it would amount to curbing provincial autonomy, on which there could be no compromise."
"The provincial assembly has given its decision on renaming the NWFP by adopting a resolution in this regard and as such the province has been renamed as Pakhtoonkhwa. Now it is a matter of provincial autonomy and non-acceptance of the NWFP Assembly's resolution by the center would mean that Islamabad has no respect for the demand voiced by the elected representatives of a province.
"The Prime Minister was trying to re-create One-Unit to establish the supremacy of a specific larger province. However, the ANP would be the first one to resist such a move as we did in the past when Z.A. Bhutto was the Prime Minister. If they try to re-impose One-Unit, then we will say goodbye to them. We have good wishes for them; let them live there and we [Pakhtoons] here".
Wali Khan also warned prime minister Nawaz Sharif that his party would not bow down before the government over the question of Pakhtoons' rights and reminded him the his party's 15 members had resigned from the provincial assembly in protest when the prime minister [former] Bhutto dislodged the Balochistan government. "The ANP which has a strength of over 30 members in the provincial assembly would not hesitate to do so again if the center tried to curb provincial autonomy", he remarked.
He argued that the ANP's stand over Pakhtoonkhawa was not just a matter of renaming the province rather it was a struggle for the rights of Pakhtoons and the well being of their province. " Our forests, waters and all other provincial resources are in the control of other people."
About the Afghan refugees settled in the NWFP, he said they were not refugees, they were living in their own area because they were Pakhtoons. "The British rulers drew Durand Line just to divide the Pakhtoon nation, it has no significance at all because the Pakhtoons are united. We did not recognize the Pakhtoons' division neither at that time, nor do we accept it at present. The Pakhtoons living in Pakistan and Afghanistan are the one and same nation, they cannot be divided".
On February 25, 1998, the talks between the ANP and the federal government, on renaming the province as Pakhtoonkhwa, failed that led to the ending of a year-old ANP-PML(N)alliance.
According to Dr. Ahmad Hassan Dani, Northwest of the British has been a changing phenomenon in history. In their westward advance over the decline of the Mughal Empire the British first created the North West Province, which is now called Uttar Pradesh in India, and much later in 1901 they agreed to the formation of the present North West Frontier Province and separated it from the province of Punjab. To NWFP was added the Hazara division for administrative purposes, as Gulab Singh to whom Kashmir was sold, could not pay the full amount and hence Hazara was taken away and added to this newly created province. The Mughals had formed Suba-i-Lahore, Suba-i-Multan, to which Sindh was attached, and Suba-i-Kabul, to which was attached more or less the present NWFP. Later the Mughals conquered Kashmir and extended their sovereignty over Baltistan and Ladakh. (17)
Lord Curzon, in his Forward Policy, distinguished between the settled districts of NWFP and the newly established tribal agencies and fixed the border between British India and Afghanistan at the western end of the Khyber Pass for the first time in history and thus made a political division of the Pakhtoon tribes. (18)
To the original British NWF Province the government of Pakistan, in 1970-71, after the abolition of the states, added Swat, Dir and Chitral as new districts and also created the district of Kohistan, which was practically no-man's land in the British period. Just before partition of the sub-continent, the idea of Pakhtoonistan was floated by Congress for reasons not difficult to understand, but it fizzled out in the referendum as the people voted to join Pakistan. (19)
"As far as the British Indian Empire was concerned, the new colonial name of the province was fully justified as this province lay to the north-west frontier of the Empire but in the present geographical context of Pakistan it is neither the only region in the north-west nor the only part lying in the frontier of the state," argues, Dr. Dani. (20)
No doubt, 'NWFP' is no name for a province. This name is a legacy from our colonial past. We must be realistic in our approach and change the name of this province. A number of names have been suggested as a substitute for the NWFP. These include:
ABASIN: Abasin is one of the historical names of the river Indus that flows through the province.
GANDHARA: This is the historic name of this region. It is the Aryans who first started the geographic name of Gandhara in about the middle of the second millennium BC that extended on either side of the river Indus, with two capitals, Pushkalavati (modern Charsadda) on the west and Taxila on the east. Later the western capital was transferred to Peshawar (old Purushapura). The geographical name Gandhara continued until AD10 century, i.e. for nearly twenty-five hundred years, when after the overthrow of the Hindu Shahi dynasty by Sultan Mahmud of Ghazni, it was incorporated into his Ghazni Empire and Gandhara was forgotten into the limbo of history. (21)
KHYBER: After the name of the historical Khyber Pass.
PAKHTOONKHWA: It literally means the side where the Pakhtoons live. Pakhtoonkhwa has been used in Pushto literature to identify the region.
For many people the Pakhtoonkhwa issue is a regional matter, having no major consequences on the country's politics but political analysts believe that, if not handled with care, the Pakhtoonkhwa issue has the potential to turn into a major catastrophe for the country. The net result of the ruling elite being led by the bureaucracy is unending polarization between the center and regional nationalism. It is the rock on which the ship of state foundered in 1971. But the center-province bitterness and antagonism have not changed since then. The unchanging ruling elite -- in terms of social and economic provenance of a vast majority of the bureaucrats, generals and deputies of both the major parties -- refuse to be accommodative and flexible to the demands of regional nationalists in Balochistan, Sindh and even the NWFP. (Pushtoon nationalism has become an extremely complex issue with an international dimension.) The all-powerful center looks upon regional identities with suspicion and tends to react with vehe mence. The only means of dealing with them is through infiltration, subversion and division with the help of intelligence agencies. This method works for a time, as it seems to have done in Sindh, Balochistan or even in Karachi. But that resolves no problem. It merely buys time. (22)