18th January 1998

No chance of a pak CJ drama here

By Mudliyar

In Pakistan the President under Article 58(2)(b) of the Constitution has the power to dissolve the National Assembly elected by the people. President Farooq Leghari was appointed President of Pakistan by Benazir Bhutto after she was elected to the office of Prime Minister, defeating Nawaz Sharif. Mrs. Bhutto appointed Farooq Leghari with one intention. He was a loyalist of the PPP headed by Ms. Bhutto, and she thought that Mr. Leghari would be a party loyalist and a ‘henchiya’ of the Government, and would never even dream of dissolving Ms. Bhutto’s Government until she went through the full term in office.

Farooq Leghari was a human being with frail human qualities. He found that he had enormous power under the Pakistani Constitution. He had the power to dissolve any elected Government on accusations of corruption, bribery etc. The most serious offence was the interference of the Executive with administration of Justice. He realized that once he was appointed he could not be removed from office as President of Pakistan, but he could remove the very person who appointed him, that is Ms. Bhutto, the Prime Minister of Pakistan, from office, on real or imaginary allegations of corruption bribery and interference with the Judiciary.

He also realized that the allegations that were made against Ms. Bhutto’s husband and the dubious nick name he has earned as ‘Mr. Five percent’ could well be true. But like allegations of bribery against Government politicians in Sri Lanka and some Indian and Pakistani cricketers for fixing matches these are difficult to prove. He had information of corruption of Ms. Bhutto’s Government which he thought was extremely reliable. But as long as Ms. Bhutto was the Prime Minister, nothing could be proved as no witness would give evidence against the second most powerful person in the country. He had to take a decision which would affect the course of the political future of Pakistan. Mr. Leghari used the famous and now infamous, Article 58(2)(b) of the Constitution of Pakistan, which gave the President the power to dissolve the National State Assembly, and dissolved Ms. Bhutto’s Government.

Ms. Bhutto’s Government, elected by popular vote was dissolved by the power vested with the President under the Constitution. The President made accusations of corruption, bribery and interfering with the Judiciary like a Presidential Commission inquiring into the conduct of political opponents by biased and partisan Judges.

Ms. Bhutto cried foul, and rushed to the Supreme Court, asking for an order to quash the decree made by the President, and she appealed to the Supreme Court to restore her as the Prime Minister and to permit the National State Assembly to continue in office. Ms. Bhutto appointed Chief Justice Sajjad Ali, who was a junior Judge, and elevated him to the position of Chief Justice by superseding the other senior Judges. This Judge in turn supported the most powerful political figure in Pakistan, who was President Farooq Leghari, as every one knew that Mr. Leghari had more power than any other person in Pakistan. The Supreme Court rejected Ms. Bhutto’s petition in limine, as was expected by the people who were close to Leghari and to the Judges of the Supreme Court.

Ms. Bhutto who had just completed only half her term in office, was defeated by her arch rival Nawaz Sharif. After Pakistan formed a separate state after seceding from India, it had never installed a Government with a landslide majority. Pakistani people did just that. They defeated Ms. Bhutto. Most of her Ministers lost the election by very large majorities. Mr. Sharif became the saviour of the Nation, and Ms. Bhutto was hounded out from politics. After she was defeated, the only important ceremony she was invited to was for the Prathiba Pranama celebration of our own Anura Bandaranaike. The Pakistan Government used tremendous power and pressurized the Swiss banks to make public the numbered accounts of Ms. Bhutto, her husband and her family members, who had millions of Dollars stashed away in secret accounts.

The Government in Switzerland ordered the banks to freeze all monies that came into these accounts via Mr. and Ms. Bhutto. The revelations about the monies in numbered accounts in Switzerland which were alleged to be ill-gotten wealth from corrupt activities and robbing the people’s wealth more or less vindicated the stand taken by Mr. Leghari. It also reposed tremendous confidence in the poor masses of Pakistan who had voted overwhelmingly to defeat Ms. Bhutto’s Government, as they sincerely believed that the Government was totally and absolutely corrupt to the core. Mr. Sharif had two thirds majority to amend certain provisions of the Constitution.

The Constitution like almost all the Constitutions in the democratic world ought to have provisions to amend the Constitution by a two thirds majority of members in Parliament and not by a dubious non binding Referendums. Mr. Sharif believed that it was time to act fast, and like our JRJ he wanted to remove or suspend the powers given to one solitary person, the President of Pakistan. Mr. Leghari was furious. He did not want any lesser mortal to interfere with the supreme power he had wielded for a number of years, under the constitution which in effect gave him the power of life and death over the National State Assembly.

The amendment to the Constitution was to remove the infamous Article 58(2)(b) of the Constitution. Mr. Leghari wielded so much power that he was able to pressurizes some of the Judges including the Chief Justice Sajjad Ali. What happened to the 13th amendment (which suspended or repealed Article 58(2)(b) of the Constitution in Pakistan could be called the biggest surprise in judicial interpretation in recent times. The Judges were divided into two separate groups, one group supporting the incumbent President headed by Chief Justice Sajjad Ali Shah and the other group opposing the President and thereby supporting the Prime Minister Nawaz Sharif.

On the 2nd of December, 1997 the infamous Article 58(2)(b) of the Constitution was restored and the operation of the 13th amendment was suspended by a three member Bench headed by Chief Justice Sajjad Ali Shah who had been ordered by a Majority of Judges to restrain him from functioning as the Chief Justice. When the order was pronounced by the Chief Justice, Ashtar Ausaf Ali, a defence counsel who was opposing the restoration of Article 58(2)(b) before the Chief Justice Sajjad Ali ran to the next room which was in Court No 3 where a ten member Bench was hearing a case against the appointment of the Chief Justice, informed orally about the order which was made by the Chief Justice Sajjad Ali suspending the 13th amendment.

A ten member Bench headed by Justice Saiduzzaman Siddiqui held in abeyance the order suspending the 13th amendment passed by a three member Bench headed by the Chief Justice, as they were hearing Petitions challenging the validity of Justice Sajjad Ali Sha’s appointment as Chief Justice and referred to an earlier order passed by nine Judges on the 30th of November, 1997, declaring that any order passed by a Bench presided over by the Honourable Chief Justice (under restraint) would not be given effect.

The order has been made when the chief Justice was restrained by the Majority bench. Therefore they accordingly directed the order passed by the Bench presided over by the Chief Justice and two other Judges has been stayed and will not be acted upon as there is an inquiry conducted by ten members of the Supreme Court had restrained the Chief Justice from performing his duties. Later President Farooq Leghari found that his struggle to remain supreme had failed and that the faithful Judges who wanted to give him the power to dissolve the National State Assembly were in a minority, and a majority of the Supreme Court was now siding the Prime Minister Nawar Sharif, and he had no other alternative but to resign.

The interesting feature of the majority Bench of the Supreme Court of Pakistan which restrained the Chief Justice from performing his duties was that it entertained an oral application for the restoration of the 13th Amendment without a formal Petition and affidavits and the copy of the Order. This clearly shows that the Judges wanted to make an Order for their own survival and that they would throw overboard the rules and principles of law which they would strictly enforce in any other case. The Supreme Court of Pakistan excelled in exhibiting and performing an act of judicial mockery, by Judges dividing themselves into political groups, giving Orders virtually in order to serve their own interests.

This is why the United Nations has declared that any Presidential Commission appointed by a political figure from Judges selected by the politician must be thrown into the dust bin.

This kind of judicial impudence and mockery would not happen in Sri Lanka as long as the Chief Justice G.P.S. de Silva continues as the Chief Justice and he is succeeded by the Senior most judge in the Supreme Court. His Lordship G.P.S. de Silva was the son of Dr. M.W.H. de Silva who was appointed as a Cabinet Minister by the SLFP Government. There was a lot of speculation when Mr G.P.S. de Silva’s name came into discussion as a successor to another independent Judge Mr. Parinda Ranasinghe. Mr. Premadasa ignored the opposition to the nomination of G.P.S. de Silva, and appointed him as the Chief Justice of Sri Lanka. Though there was one judge claiming that he was more senior but lost his seniority by one day due to the act of a former Minister. Mr. Premadasa stickler for procedure and is credited as the only President who never interfered with the judiciary ignored these lamentation and appointed the most senior judge on record. Mr. G.P.S. de Silva, is one of the most humble persons to adorn the office of the Chief Justice.

He never tried to display his power or authority in public. He is one of the few Buddhists living in Sri Lanka who truly practices his religion, observes Sil on every Poya Day, and visits a temple close to his official residence at about 8 o’clock and listen to Pirith chanted by monks without any one, other than those who are close to him, knowing his routine, and not exhibiting his devotion to his religion. He practiced his religion which he never preached.

As long as Mr. G.P.S. de Silva remains as the Chief Justice of Sri Lanka and his successor would not be a political appointment and strictly follow the recommendation of the Chief Justice in appointing the successor. The oppressed people and the underprivileged of this country can hope that their grievances would be looked into with a benignant heart.

So much has been said about Kamal Addaraarchchi’s case, but no one knows if not for the intervention of the Chief Justice directing the Magistrate to issue certified copy of the order discharging Kamal there would never have been an indictment. The people of Sri Lanka should consider themselves extremely fortunate to have the Chief Justice and the other Judges of the Supreme Court who would always uphold the Rule of Law as against any oppressive regime.

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