Update on Performance of Democratic Institutions | March 2021

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This update is meant to identify key developments during the month on Performance of Democratic Institutions in Pakistan with selected high-profile international developments included occasionally.

In this Issue:

  1. Senate Elections under Secret Ballot
  2. Prime Minister Seeks Fresh Vote of Confidence
  3. PM and PTI Ministers criticize the ECP
  4. The Saga of Senate Chairman Election
  5. PDM Alliance and Leader of the Opposition in the Senate
  6. PTI, PPP Legislators clash in Sindh Assembly
  7. Islamabad Security Dialogue: PM and COAS call for civilized relations with India
  8. IHC orders removal of Lt General Asad Durrani’ s name from ECL
  9. Senior Parliamentarians Council
  10. NA-75 Bye Election and the Supreme Court
  11. Peshawar High Court Adjourns Cases of Military Court Convicts
  12. Supreme Court warns of uncontrolled Judicial overreach
  13. Ministers threaten to attack Judge with Rockets if Sindh Assembly Membership suspended
  14. Supreme Court allows DHA Quetta to develop schemes
  15. Supreme Court Orders Restoration of Local Government in Punjab
  16. Justice Qazi Faez Isa Case
  17. Change in Federal Cabinet
  18. Removal of HEC Chairman
  19. Chairman, Deputy Chairman Senate call on PM and President
  20. Fourth conference of Speakers of Parliaments ends in Turkey
  21. COAS calls on PM
  22. British High Commissioner calls on COAS
  23. Qatari Land Forces Commander calls on COAS
  24. German Ambassador to Pakistan calls on COAS
  25. Ambassador Zalmay Khalilzad calls on COAS
  26. COAS and DG ISI attend a session on Afghan Peace Process in Bahrain
  27. Uzbekistan FM and COAS discuss Afghan peace process
  28. Ambassadors of Denmark, Canada and European Union (EU) call on COAS
  29. US Defence Secretary praises Pakistan’s role in Afghan Peace Process
  30. Saudi Commander Royal Saudi Land Forces calls on COAS
  31. Ukrainian Ambassador calls on COAS
  32. Myanmar Coup

Senate Elections under Secret Ballot

On March 1, the Supreme Court of Pakistan in its opinion said that elections for the Senate are to be conducted through secret ballot as required under the Constitution.

On December 23, 2020, in a reference, President of Pakistan had sought the opinion of the Supreme Court on whether Senate election can be held under the article 226 of the Constitution. Article 226 of the Constitution reads that “All elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot.” In its opinion, majority of the judges said that Senate election is to be held under article 226 and thereby through secret ballot. Justice Yahya Afridi in his minority opinion held that the presidential reference sought opinion which is not a question of law within the contemplation of Article 186 of the Constitution is returned unanswered.

The Supreme Court, in its opinion, also asked the ECP to look into the possibility of using technology to guard against corrupt practices in terms of its responsibility under Article 218 of the Constitution. Since the opinion came just two days ahead of the Senate election scheduled for March 3, the ECP in view of the ‘time constraint’ decided to conduct elections as per past practice and by secret ballot but formed a three-member committee to explore possibility of use of technology in the next senate elections. [1]

On March 2, at a PILDAT Virtual Forum on Supreme Court Judgement: Open or Secret Ballot in Senate Election? panellists strongly supported the decision by the Election Commission of Pakistan and shared consensus on holding Senate election through Secret ballot.

The panel at the PILDAT Forum included Mr. Shahid Hamid, Senior Advocate Supreme Court and Former Governor; Former Caretaker Federal Minister, Mr. Fawad Hasan Fawad, Former Principal Secretary to Prime Minister, Mr. Ahmed Bilal Mehboob, President PILDAT while the forum was moderated by Ms. Aasiya Riaz, Joint Director PILDAT

Opening the Forum, Mr. Ahmed Bilal Mehboob said that while the issue of the secrecy of the ballot for the Senate Election 2021 is resolved, it remains to be seen how this is played out in the future. In raising various questions emanating from the Supreme Court’s opinion on the Presidential Reference on Senate election. He questioned whether the opinion by the Supreme Court is to be treated as binding or just an opinion? He also asked what is the relevance of the 1967 Niaz Ahmad v. Azizuddin & Others (PLD 1967 SC 466) regarding secrecy of the ballot for Senate election. Mr. Mehboob also raised a question about future relationship between the Supreme Court and the Election Commission of Pakistan in the context of the tone and tenor of exchange between the two during the hearing of the presidential reference.

Mr. Fawad Hasan Fawad believed that it was premature to discuss secrecy of ballot until detailed opinion of Supreme Court was available. However, supporting secret ballot to be the basis for Senate Election, he argued that this was a well-considered decision by the framers of the 1973 Constitution and has not been changed since despite many amendments to the Constitution. Commending the Election Commission of Pakistan, he said that the ECP has shown tremendous restraint in answering queries of the Supreme Court adding that restraint in exercise of power in discharge of its duties essentially increases the stature and respect of the institution.

Mr. Shahid Hamid believed that while opinion of the Supreme Court is not binding, there have to be concrete reasons on why an opinion cannot be implemented. Disagreeing with the minority view of Justice Afridi, Mr. Shahid Hamid believed that issue of corrupt practices is indeed an issue. He supported secret ballot and commended the decision of the ECP in holding Senate Election 2021 accordingly. Mr. Hamid, argued, however, that the issue of corrupt practices must be resolved and the Parliament and relevant institutions have three more years to resolve this before the next Senate election.[2]

Prime Minister Seeks Fresh Vote of Confidence

Prime Minister Mr. Imran Khan

In the Senate Election held by secret ballot on March 03, candidate of the PTI-led ruling coalition, Dr Abdul Hafeez Shaikh, Finance Minister at the time, suffered defeat at the hands of opposition’s Syed Yousuf Raza Gilani. After the Senate election results, Prime Minister Imran Khan sought a fresh vote of confidence from the National Assembly on March 6 which resulted in him obtaining 2 more votes of confidence than what he received in August 2018 at the time of his election as PM. [3]

PM and PTI Ministers criticize the ECP

Addressing the nation on March 04 after the Senate election, Prime Minister Mr. Imran Khan accused the ECP of protecting those who made money by holding the Senate elections through secret ballot alleging that “money was used” in the Senate election. He said that “when the Supreme Court gave you a chance and asked you to keep the election secret but ensure identification of the ballot, for example today if we want to know that who are those 15, 16 people, who traded their conscience? But you saved them by allowing secret ballots. You have damaged our democracy and morality. What kind of democracy is this where a senator wins by paying money?” [4]

In what it termed as a rebuttal of Prime Minister’s statement regarding the ECP on the Senate election, the ECP issued a press statement on March 5 saying that the commission was saddened to hear of the views by the Prime Minister and those of his cabinet colleagues. The statement highlighted that the ECP is a Constitutional and independent institution and its actions are guided by the authority vested in it under the constitution and laws of Pakistan. If anyone has an objection on the directives and decisions of the ECP, they are free to follow the Constitutional route while the ECP acts independently, adding that neither the ECP has bowed to any pressure before, nor will it do so. [5]

“It is a shocking matter that under the same staff in the same [election] under the same roof on the same day, [what they won] is acceptable and [what they lost] is unacceptable. Is this not open contradiction?” the ECP questioned in its rebuttal, adding that “The ECP rejects this.”

On March 15, taking an unprecedented and dangerous perspective, three PTI Federal Ministers including Mr. Shafqat Mahmood, Minister for Federal Education, Professional Training, National Heritage and Culture; Senator Syed Shibli Faraz, Federal Minister for Information and Broadcasting and Mr. Fawad Choudhry, Federal Minister of Science and Technology, demanded resignation from all the five members of the Election Commission of Pakistan alleging the ECP had “completely failed” in making Senate election transparent. The Ministers maintained that all political parties, including the ruling PTI, had lost confidence in the ECP and the current ECP could not continue if the political parties and people of the country did not have confidence in it or saw its decisions with suspicion. “We want the ECP to play the role of a neutral umpire, which it is not doing,” they said, adding that although the Supreme Court had given an “opportunity” to the ECP which it could have utilized and taken measures to make the Senate polls fair, the ECP did not do so and “hurt our democracy.”[6]

However, the interpretation offered by the three ministers that the Supreme Court had asked the ECP to make Senate ballot papers traceable is not supported by the majority of legal fraternity. If the PTI government is of the view that the ECP has violated any of the Supreme Court directives, it could have petitioned the court. The government can also follow the Constitutional route of removing the Election Commissioners and the members through the Supreme Judicial Council but it cannot decide on its own whether the ECP is right or wrong and what action can be taken against it.

It was only in January 2020 that the incumbent chief election commissioner and two other ECP members were appointed to a five-year term with the consensus of the prime minister and the leader of the opposition. In the case of the chief election commissioner, it was the prime minister who had reportedly proposed his name and the leader of the opposition concurred with his choice. [7] The PTI government must also be held liable and take responsibility for its judgement, if, according to them, it turned out to be a wrong judgment. [8]

Most importantly, if the PTI government is setting a dangerous precedence of asking for resignation of constitutional bodies such as the ECP, then this or any future government can also question the conduct and decisions of other constitutional bodies such as superior judiciary. [9]

The ECP has been criticised by one political party or the other in the past, usually after the election results, but never has a sitting government ever asked a constitutionally mandated body to pack up. The government’s demand for the resignation of all five members of the ECP needs to be viewed against the background of the commission acting independently and asserting its authority probably for the first time in the electoral history of Pakistan. Political parties and the government are perhaps not used to such independence and will take time to adjust the same way as the Indian politicians did to the ruthlessly independent T.N. Seshan, the chief election commissioner from 1990 to 1996. It is extremely important for the credibility of the electoral process in Pakistan that now when the ECP has started to assert its authority, its independence be jealously guarded, by the commission itself as well as society at large, against all sorts of pressures. The ECP should not be made to pay a price for being independent. [10]

In another related development on March 31, Prime Minister Mr. Imran Khan said that the government is committed to the use of Electronic Voting Machines (EVM) in the electoral process. He also said that Pakistan’s democratic and electoral process could no longer afford a system which is questioned and the public confidence in it is shaken and that the introduction of the EVM will make the electoral process transparent, secure and impartial which is in the interest of the country and democracy. Minister for Science and Technology, Mr. Fawad Chaudhry gave a briefing to Prime Minister on EVM voting procedure and various features of the machine developed by the COMSATS and the National Institute of Electronics. [11]

The Saga of Senate Chairman Election

Senator Syed Yousuf Raza Gilani, PDM candidate and Senator Sadiq Sanjrani as PTI Ruling Coalition Candidate

On March 12, the candidate of PTI-led ruling coalition, Mr. Mohammad Sadiq Sanjrani defeated the opposition candidate Syed Yousuf Raza Gilani to retain Senate chairmanship for another term even though the opposition had majority in the house.

Seven (7) votes polled for Mr. Gilani were ‘rejected’ by the Presiding officer Senator Muzaffar Hussain Shah. The polling agent for opposition alliance Pakistan Democratic Movement’s candidate, Farooq H. Naek, questioned the decision of the presiding officer arguing that the intent of the voters was clear and the instructions of the Senate secretariat did not clearly mention the exact space where the stamp was supposed to be affixed. He said for the mistake committed by the Senate secretariat, the voters could not be punished. The presiding officer, however, ruled otherwise and rejected the votes. .[12] This decision was challenged by Syed Yousuf Raza Gilani through a petition before the Islamabad High Court (IHC). However, on March 24, the Islamabad High Court (IHC) dismissed the petition noting that proceedings of the Parliament were “immune from the interference” of the high court.[13]

Ahead of the election of the chair, the opposition Senators claimed that secret cameras were installed at the polling booth. On submitting a written complaint, the chair announced formation of a six-member committee comprising three members from each side to investigate the matter. However, regarding the report about installation of hidden cameras which were traced ahead of the polling, the Senate Secretariat said the cameras, booth and other material were sealed in the presence of senators before the process of election of the chairman began and some of those present there made videos and photographs from their cell phones. The Secretariat made no official video or photographs of the same.[14]

PDM Alliance and Leader of the Opposition in the Senate

On March 26, Syed Yousuf Raza Gilani was declared as Leader of the Opposition in the Senate by the Chairman Senate after his name was submitted with signatures from 30 senators, 21 from the PPP, 2 from the ANP, 1 from the JIP, and 2 Senators belonging to FATA and 4 from the independent group of Senator Dilawar Khan. [15]

The disagreement between the PML-N and the PPP on the issue of the Senate Leader of the Opposition has caused a major rift within the PDM. While the PML-N had maintained that PDM had decided that the office of the Leader of the Opposition in the Senate would go to the PML-N, the PPP maintained that it had previously agreed to giving the office of the Leader of the Opposition to the PML-N in return for nomination of Syed Yousuf Raza Gilani for the office of Senate chairman but it changed its position after Mr. Gilani was defeated in election to the post of Chairman Senate.

According to Rule 16 (1) of the Rules of Procedure and Conduct of Business in the Senate,[16] Senate Chairman is empowered to declare Leader of the Opposition within fifteen days after the election of Chairman and Deputy Chairman. Rule 16 (2) states that the Chairman Senate shall inform the members about the date, time and place for submission of a name for the Leader of the Opposition under their signatures. Rule 16 (3) states that the Senate Chairman shall declare a member as Leader of the Opposition having the support of majority of the members in opposition. If in case, two or more members have equal support for the office of Leader of the Opposition, Chairman is bound to declare the member belonging to the party with largest numerical strength in the Opposition as Leader of the Opposition. A Leader of the Opposition also stands to lose the office of the Leader of the Opposition as and when the majority of the members in Opposition withdraw their support after which the Chairman is required to declare another member as Leader of the Opposition.

A war of words followed Mr. Gilani’s nomination as Leader of the Opposition. In a media talk, Ms. Maryam Nawaz Sharif accused the PPP for “sacrificing everything” for a “minor, inconsequential office” and said that she was glad that “a visible line has been drawn.” “If you [PPP] asked [Nawaz Sharif for office of the Leader of the Opposition in the Senate], he would have given it to you but you took votes from BAP (Balochistsn Awami Party), who without the permission of his baap [father] does not vote for anyone.” [17]

PPP Chairman Mr. Bilawal Bhutto Zardari, however, said that he would like the PDM to remain united so “I will not respond to Maryam Nawaz’s statement.” Speaking at a press conference in Karachi following Ms. Nawaz’s press talk on March 27, he also said that the PML-N candidate Senator Azam Nazeer Tarar was a “controversial” person for the PPP as he, as a professional lawyer, was a lawyer for the accused in the Benazir Bhutto murder case.[18] “How do you expect, given that we have the majority, that I ask my party members to make PML-N’s Azam Nazeer Tarar Leader of the Opposition and not Yousuf Raza Gilani? ”said Mr. Bilawal Bhutto Zardari. [19]

Earlier, on March 16, PDM had announced postponement of its March 26 anti-government long march due to differences over the issue of submitting resignations from the assemblies. PDM President Maulana Fazlur Rehman said at a press talk that the PPP had sought more time to reconsider its position on the issue of resignations, the long march stood “postponed.” [20]

PTI, PPP Legislators clash in Sindh Assembly

PTI and PPP MPAs clash in Sindh Assembly

On March 2, a day after the PTI alleged that three of its MPAs from Sindh had gone “missing,” the Sindh Provincial Assembly witnessed a physical brawl between members of the PTI and PPP as soon as the missing members entered the house and the former tried to get hold of them ahead of the Senate election.

In the ensuing chaos, PTI lawmakers managed to take away MPA Mr. Karim Bakhsh Gabol out of the Assembly, but Mr. Shahryar Shar, MPA and Mr. Aslam Abro, MPA, left the house reportedly with PPP members.

Mr. Haleem Adil Sheikh, MPA and Leader of the Opposition in Sindh Assembly, accused the PPP of kidnapping PTI members. Sindh Information Minister Mr. Nasir Shah, MPA, rejected the allegation and said that the missing MPAs had expressed reservations over their party’s nominations for Senate election.

Mr. Agha Siraj Durrani, MPA and Speaker Sindh Assembly ordered an inquiry into the incident and sought a report from the Assembly Secretary. [21]

Islamabad Security Dialogue: PM and COAS call for civilized relations with India

Prime Minister addressing the Islamabad Security Dialogue

On March 18, Prime Minister Imran Khan, while inaugurating the first edition of the two-day Islamabad Security Dialogue hosted by the National Security Division in collaboration with government-funded think tanks, said that India would have to make the first move to normalise ties with Pakistan. He said that “We are trying, but India would have to take the first step and unless it does that we cannot move ahead”

Since February, Pakistan and India relations first saw movement when DGMOs from the two countries announced resumption of ceasefire at the Line of Control (LoC) after a ‘hotline contact.’ Later, on March 22, Indian Prime Minister, in a Pakistan Day message to Prime Minister Mr. Imran Khan said that India desires cordial relations with the Pakistani people, adding, that for this, “an environment of trust, devoid of terror and hostility, is imperative.” [22] In responding to Prime Minister Modi through a letter dated March 29, Prime Minister Imran Khan wrote that “The people of Pakistan also desire peaceful, cooperative relations with all neighbours, including India. We are convinced that durable peace and stability in South Asia is contingent upon resolving all outstanding issues between India and Pakistan, in particular the Jammu & Kashmir dispute,” adding that “creation of an enabling environment is imperative for a constructive and result-oriented dialogue.”

Speaking at the Islamabad Security Dialogue, Prime Minister also emphasized that Pakistan could not fully exploit its geo-economic potential unless it improved its ties with neighbours by strengthening trading connection and establishing peace in the region. “We have to see how we can resolve it through dialogue and establish relations like civilised neighbours.” “If poverty has to be eradicated, our trading and economic ties should be strong in addition to greater connectivity.[23]

On March 18, COAS General Qamar Bajwa, while addressing the Islamabad Security Dialogue, also made a strong indication for peace with India and sought the world’s help in ending the conflict between the two South Asian nuclear armed rivals. “We feel that it is time to bury the past and move forward.” He said that the policy decision taken by Pakistan in this regard was a “deliberate” one based on “rationality.” He made it clear that Islamabad had chosen this path not because of “pressure”, but out of “sincere desire” to reframe Pakistan’s image as a “peace-loving nation” and a “useful member” of the international community. The COAS also mentioned the steps taken by Pakistan for enhancing Afghanistan’s trade and connectivity, including re-energising the Afghan-Pakistan Transit Trade Agreement, improving economic and trade environment along the Pak-Afghan border by establishing border markets and development of infrastructure, making Afghanistan part of energy and trade corridors binding Central, South and West Asia through land routes and inviting Afghanistan to be part of the China-Pakistan Economic Corridor (CPEC).[24]

IHC orders removal of Lt General Asad Durrani’ s name from ECL

On March 4, the Islamabad High Court (IHC) ordered removal of the name of Lt. Gen. (Retd.) Asad Durrani, former DG, ISI, from the Exit Control List (ECL).

Chief Justice Athar Minallah issued the order while hearing Mr. Durrani’s petition seeking removal of his name from the ECL. The Court noted that “There is no valid ground on the touchstone of the principles and law highlighted in the judgement of this Court titled “Muhammad Amjad v. Federation of Pakistan” [2017 PCrLJ 1266] to justify keeping the name on the Exit Control List.”

The Defence ministry had accused Lt. Gen. (Retd.) Asad Durrani of being involved in anti-state activities and alleged that he was “affiliated/interacting with hostile elements especially Indian RAW [Research and Analysis Wing] since 2008.” In 2018 the Military Intelligence had written to the interior ministry to put Mr. Durrani’s name on the ECL for co-authoring a book “The Spy Chronicles” with Amarjit Singh Dulat, former chief of Indian spy agency RAW. The defence ministry’s report furnished in the court stated: “A court of inquiry under the provision of Pakistan Army Act Rule 157 was convened to ascertain facts about the contents of the book and the circumstances under which the book was co-authored. Consequently, petitioner’s name was placed on the ECL vide memorandum dated May 29, 2018.[25]

Senior Parliamentarians Council

Fakhar Imam and Pervez Khattak in a meeting

On March 10, Mr. Asad Qaiser, Speaker, National Assembly of Pakistan constituted a ‘council of senior parliamentarians’ for “promoting democratic and parliamentary norms across the party divide line”.

The speaker formally notified the formation of the 15-member council and its terms of reference (TORs) placing himself as the head the council. Statement from National Assembly Secretariat said, “The TORs of the council include promotion of established parliamentary norms and to encourage the young parliamentarians to participate in the proceedings of the house,” adding that “the council will also ensure issue-based debate and avoidance of any sexist, religious or ethnic slogans during the proceedings of the House.” The council will also guide and assist the chair in implementing democratic norms in the house.[26]

However, on its first meeting held on March 22, only three members attended the meeting. The meeting was presided over by its convener Syed Fakhar Imam and was attended by Minister for Defence, Mr. Pervez Khattak and Minister for Inter-Provincial Coordination, Dr Fehmida Mirza. The convener constituted a subcommittee comprising Mr. Khattak and Dr. Mirza to approach other members of the committee for their “meaningful participation” in the proceedings of the council so that the parliamentary norms could be strengthened within parliament.

The opposition members had already announced boycott of the council, terming it “useless and unnecessary” in the presence of the house committee on rules and privileges as well as in line with its previous decision to stay away from any committee formed by National Assembly Speaker due to his partisan role during proceedings of the National Assembly.[27]

NA-75 Bye Election and the Supreme Court

Supreme Court of Pakistan

On March 25, the Supreme Court ordered the Election Commission of Pakistan (ECP) to postpone the schedule for holding by-polls in NA-75 Daska on April 10. .[28]

A three-member bench headed by Justice Umer Ata Bandial was hearing the petition of PTI candidate Ali Asjad Malhi, challenging the ECP order which declared the by-election in NA-75 Daska void and ordered re-polling.

The Daska by-election, held on February 19, was marred by violence as armed men on motorcycles were seen roaming in Daska city and resorting to aerial firing which scared away many voters. Two persons died and many were injured as a result of the firing at one location.

The ECP maintained that the petition challenging the re-polling in NA-75 should be dismissed as many rules were violated. The ECP also stated that it had ordered “a prohibition on the commencement and carrying on of the development work at the behest of the political offices and the government” but the work continued. The ECP also observed that various violations of the code of conduct by public functionaries, government officials, leaders of the political parties, the security officials, administration and law enforcement agencies also surfaced. The civil administration failed to control the law and order which ultimately led to serious violence on the day of the poll in almost the whole constituency and interference and the intermittent interruption in the polling process.[29]

Peshawar High Court Adjourns Cases of Military Court Convicts

Peshawar High Court

On March 16, the Peshawar High Court adjourned the hearing into around 135 petitions against the conviction by military courts of suspected militants, who were mostly sentenced to death or life imprisonment.

A bench consisting of Justice Lal Jan Khattak and Justice Syed Arshad Ali declared that hearing into those petitions would resume after the Supreme Court decided scores of appeals filed against the earlier high court judgments in the cases about the military court convictions.

The petitions have been filed against the convictions by military courts and award of death penalties to suspected militants from time to time in scores of cases of terrorism. The court had already granted an interim relief to those convicts by staying their execution. On October 18, 2018, a high court bench headed by the then chief justice, Waqar Ahmad Seth, had accepted 75 other petitions of military court convicts and set aside their convictions and sentences mostly death penalties. On June 16, 2020, the court had accepted 198 petitions filed mostly by close relatives of the military court convicts, mostly sentenced to death or life imprisonment on account of different acts of terrorism.

The Supreme Court of Pakistan had suspended the said judgments of the high court of 2018 and 2020 over appeals filed by the government. The main appeals of the government have still been pending before the apex court.

Supreme Court warns of uncontrolled Judicial overreach

Justice Syed Mansoor Ali Shah

On March 6, the Supreme Court held that a constitutional judge could not issue directives which did not draw legitimacy from the Constitution

Justice Syed Mansoor Ali Shah in a five-page judgement he authored observed, “When judges uncontrollably tread the path of judicial overreach, they lower public image of the judiciary and weaken public trust reposed in the judicial institution. In doing so, such judges violate their oath and turn a blind eye to their constitutional role”

The judgment stated that constitutional democracy leaned on rule of law, supremacy of the Constitution, independence of the judiciary and separation of powers. He warned that any order not anchored in law and which did not draw legitimacy from the Constitution shook foundations of democracy and affects other branches of the government.

Justice Shah was a member of a three-judge Supreme Court bench, also consisting of Justice Manzoor Ahmad Malik and Justice Amin-u-Din Khan, which had taken up an appeal filed by Mian Irfan Bashir against the January 24, 2019 Lahore High Court directives. While hearing a case relating to removal of signboards and advertisements from Mall Road, Lahore, the then judge of the LHC, Justice Ali Akbar Qureshi, on a suo motu notice had on December 20, 2018 during a chamber hearing ordered petrol pumps in Punjab not to provide petrol to the motorcyclists who were not wearing helmets with the warning that a petrol pump dismissing the order would be sealed and heavy fine would be imposed on its owner.

The order was challenged before a division bench of the high court which dismissed the appeal on January 24, 2019 with an observation that the directive given by the judge in chambers was not unlawful, rather it was in accordance with the law as every person riding a motorbike was required by law to wear a helmet.

While deciding the appeal in the Supreme Court, Justice Shah observed that having taken an oath to preserve, protect and defend the Constitution, a constitutional judge could not be forgetful of the fact that he himself was first and foremost subject to the Constitution and the law. He observed that judicial overreach took place when the judiciary started interfering with proper functioning of the legislative or executive organs of the government.

Justice Shah explained that a dispute before the high court must exist for it to exercise judicial power. It is an essential prerequisite before invoking the constitutional jurisdiction of the high court under Article 199 of the Constitution that an application of the aggrieved party must be before the court, since the high court does not enjoy suo motu jurisdiction under Article 199 of the Constitution.

In the present case, the judgement said, the directives against the motorcyclists who did not wear helmets and petrol pump owners was a suo motu exercise of judicial power not available to the high court under the Constitution.

According to the judgement, judicial overreach is uncharacteristic of the role of the judiciary envisaged under the Constitution and most undesirable in a constitutional democracy. Such overreach also amounts to transgression as it transforms the judicial role of adjudication and interpretation of law into that of judicial legislation or judicial policymaking. This also amounts to encroaching upon the functions of other branches of the government and disregarding the fine line of separation of powers, upon which is pillared the very construct of constitutional democracy. [30]

Ministers threaten to attack Judge with Rockets if Sindh Assembly Membership suspended

Provincial Assembly of Sindh

On March 31, Justice Aftab Ahmed Gorar disclosed, while hearing a petition about rise in dog-bite incidents across the Sindh province, that Provincial Ministers were threatening to hit [judges] with rockets and stop their salary in the wake of Sindh High Court Sukkur bench’s decision to suspend Sindh Assembly membership of Ms. Faryal Talpur and Mr. Gianchand Esrani.

The judge passed the remark when a double bench including him and Justice Faheem Ahmed Siddiqui was hearing a review application filed by Ms. Faryal Talpur, PPP MPA and Mr. Gianchand Esrani over suspension of their assembly membership. The court, however, restored the MPAs’ membership after secretary for local government submitted in writing it was his department’s responsibility to address dogs’ issue. The MPAs’ counsel Senator Farooq H. Naek argued before the bench that it was responsibility of local government department to check incidents of dogs bite and members of provincial assembly could not be held responsible for it. [31]

Supreme Court allows DHA Quetta to develop schemes

DHA Quetta Logo

On March 27, the Supreme Court allowed Defence Housing Authority Quetta to develop schemes in accordance with the provisions of the DHA Quetta Act, 2015, but at the same time stopped it from exercising any power over the lands outside the scope of a “specified area” as defined in the act.

In a four-page order issued by a three-judge bench comprising Justice Umar Ata Bandial, Justice Qazi Mohammad Amin Ahmed and Justice Sayyed Mazahar Ali Akbar Naqvi, the court directed the DHA Quetta to adopt a cooperative approach by consulting with local authorities concerned or the provincial government while formulating its development schemes.

On March 16, the Supreme Court had put in temporary suspension the December 16, 2020 order of the Balochistan High Court (BHC) in which several provisions of the DHA Quetta Act 2015 were held to be unconstitutional. Earlier a five-judge full-court of the BHC had also held that since the DHA Quetta was a non-government agency, acquisition of property by it would violate the constitutional right to property. The Balochistan High Court had also declared that the DHA Quetta could not be allowed to develop its own master plan or perform other municipal functions.

The Supreme Court order said the concerns expressed about the DHA Quetta Act by the BHC might not have been precisely formulated, however, they did invite caution. “How can an acquiring agency conduct acquisition proceedings for itself without indulging in conflict of interest? Also such a power is lacking in the sister organizations of the petitioner (DHA) established in other urban areas of the country,” the order said.

During the hearing, the petitioner’s counsel had said that the BHC had wrongly presumed the Land Acquisition Act (LAA) 1894 to be a federal law and held that Section 6(b)(1) of the DHA Quetta Act 2015 which allowed the DHA Quetta to acquire land in accordance with the LAA violated Article 142 of the Constitution.[32]

Supreme Court Orders Restoration of Local Government in Punjab

On March 25, the Supreme Court ordered restoration of local governments in Punjab declaring that their dissolution was unconstitutional.

A three-member Supreme Court bench headed by Chief Justice had taken up a petition challenging the dissolution of local governments with a plea that the elected members were entitled to complete their constitutional term which will expires on December 31, 2021.

In the judgement, it was stated that “For reasons to be recorded later, Section 3 of the Punjab Local Government Act 2019 (PLGA) whereby the local bodies were dissolved is declared ultra vires of the Constitution and the local governments as were existing in Punjab prior to the promulgation of the Section 3 stand restored and it shall complete its term in accordance with the law.” [33]

Justice Qazi Faez Isa Case

On March 1, Justice Qazi Faez Isa turned up for the second time before a 10-judge Supreme Court bench hearing a set of review petitions and apprised the court that he and his family would argue the case instead of his counsel Mr. Muneer A. Malik, who is unwell. Justice Isa maintained that he wants this case to finish before one of the members of this bench, Justice Manzoor Malik, reaches superannuation next month. [34]

In the backdrop of the application moved by Justice Qazi Faez Isa before the Supreme Court seeking live streaming of the court proceedings, Justice Syed Mansoor Ali Shah observed on March 3, that science and technology should be welcomed as they hugely help improve and bring more transparency to the system of justice. Chaudhry Aamir Rehman, Additional Attorney General (AAG) informed the court that the Federal Government would oppose the plea for live telecast. The AAG requested the court to allow Dr. Farogh Naseem, Federal Minister for Law and Justice, to argue in his private capacity since he was also a respondent in the case. However, Justice Isa, citing Rule 29 of the Supreme Court Rules, contended that the AAG should have requested the court for notice and not insisted. Besides, he said, the Federal Government deliberately wanted the decision on the review petitions not to conclude in time to keep the sword of Damocles hanging over his head.[35]

On March 8, Justice Syed Mansoor Ali Shah suggested to the Supreme Court to livestream its proceedings to full public view when no secrets were involved and let citizens from across the country have easy access to justice. [36] However, the bench headed by Justice Umar Ata Bandial reserved its ruling on the application seeking permission for livestreaming of the hearing of review petitions in the Justice Isa case. “We will consult and ponder over the arguments advanced by Additional Attorney General (AAG) Chaudhry Aamir Rehman and the petitioner judge (Justice Isa). The review petitions will be fixed in near future,” the court said. Justice Isa, however, requested the court to consider issuing a short order in case or in any eventuality it was considering allowing live streaming since the writing of the judgement may take some time. During the hearing, Mr. Rasheed A. Razvi, representing the Pakistan Federal Union of Journalists (PFUJ), furnished a resolution supporting the request of Justice Isa for live telecast. The resolution highlighted a number of instances and precedents in the past around the globe where the proceedings of important cases were telecast live in the public interest and said that since the case of Justice Isa had immense importance, it needed to be telecast live.[37]

Earlier, on March 17, Justice Qazi Faez Isa cautioned the fellow Supreme Court judges that it was not him alone but files were ready against each of them. He said that “I can honestly say that files are ready against each one of you and it could be the turn of any one of you against whom it could be said that he should be put before the firing squad.” [38]

Change in Federal Cabinet

Mr. Hammad Azhar replaced Dr. Abdul Hafeez Shaikh as Finance Minister

On March 29, Prime Minister Imran Khan made yet another change in his federal cabinet by removing Dr. Abdul Hafeez Shaikh from the portfolio of Finance and Revenue and giving the additional portfolio to Mr. Hammad Azhar, MNA and Minister for Industries. This is the fifth re-shuffle by Prime Minister Imran Khan in his federal cabinet since assuming power in August 2018. [39]

Earlier, on March 26, Special Assistant to Prime Minister on Petroleum, Mr. Nadeem Babar, was asked to step down from his position for a 90-day period, during which the FIA will conduct a forensic investigation into the “criminal acts” that led to the fuel crisis last year, announced Mr. Asad Umar. [40] He was replaced by Mr. Tabish Gauhar, a former managing director of K-Electric and a senior executive of Abraaj Capital of Mr. Arif Naqvi, as Special Assistant to the Prime Minister on Power and Petroleum, on honorary basis, with immediate effect.” [41]

Removal of HEC Chairman

On March 27, the Federal Government removed Dr. Tariq Banuri from the office of the Chairman of the Higher Education Commission (HEC).[42] Dr. Banuri was appointed for a 4-year term in May 2018. [43]

Earlier, it was reported that the Cabinet Committee on Legislative Cases (CCLC) had recommended on March 24 that the tenure of HEC chairman should only be two years instead of the existing practice of four years.

On March 27, a letter written by Syed Babar Ali, former caretaker Finance Minister of Pakistan and founder of LUMS, to Federal Minister for Education, Mr. Shafqat Mahmood, circulated on social media, in which Syed Babar Ali criticized the removal of Dr. Tariq Banuri and said that the “HEC’s role is being severely curtailed via an ordinance and the likes of Dr. [Attaur] Rehman are likely to oversee whatever will remain of Higher Education.” He further added in the latter that “You do not need a nuclear bomb to destroy a nation. Just hand over Education to incompetent and dishonest people!” [44]

Dismissal of HEC Chairman was widely criticized for countering meritocracy and violating rule of law. That it sends wrong message to overseas Pakistanis, demoralises education community and portrays Pakistan negatively to the international community have been highlighted as key damages of the move by the Government. [45]

Chairman, Deputy Chairman Senate call on PM and President

Chair and Deputy Chair Senate call on Prime Minister

On March 15, Prime Minister Imran Khan met the newly-elected chairman and deputy chairman of the Senate and expressed the hope that the election of leaders from Balochistan and merged tribal districts would help strengthen the federation.

Senator Sadiq Sanjrani, Senate Chairman and Mr. Mirza Mohammad Afridi, Deputy Chairman, said their election was a matter of pride for the people of their areas. Defence Minister Pervez Khattak was also present during the meeting. [46]

Fourth conference of Speakers of Parliaments ends in Turkey

Speaker of the National Assembly Mr. Asad Qaiser

On March 25, the Fourth Conference of Speakers of Parliaments of Afghanistan, China, Iran, Iraq, Pakistan, Russia and Turkey ended in Antalya, Turkey, after adopting a joint statement, the ‘Antalya Declaration.’

In line with Speaker National Assembly Asad Qaiser’s proposal, the Antalya Declaration recognised Pakistan’s principled position on the resolution of Jammu and Kashmir dispute between India and Pakistan in line with the UNSC resolutions.

The conference also stressed the need for all states to avoid politicisation of the FATF. Antalya Declaration also adopted Pakistan’s iteration that COVID-19 vaccines must be made affordable for the people of developing countries so as to ensure access of vulnerable populations to vaccines. [47]

COAS calls on PM

File Photo: COAS and DG ISI call on PM

On March 4, General Qamar Javed Bajwa, Chief of Army Staff, along with Lt. General Faiz Hameed, Director General, Inter-Services Intelligence, called on the Prime Minister Imran Khan.

No statement on the meeting was issued by the Prime Minister Office, which normally gives out press releases on such interactions. An official, speaking on the background, said the meeting was held to review the “internal and external situation.” [48]

British High Commissioner calls on COAS

British High Commissioner calls on COAS

On March 1, Dr. Christian Turner, British High Commissioner to Pakistan, called on the COAS at the GHQ. Matters of mutual interest and overall regional security situation including Afghan peace process were discussed.[49]

Qatari Land Forces Commander calls on COAS

Qatari land forces commander and COAS at GHQ

On March 3, Major General Saeed Hassen Mohammad Al-Khayareen, Qatari land forces commander, while meeting with General Qamar Bajwa, Chief of Army Staff, at the GHQ observed that Pakistan’s friendly and cooperative ties with Qatar were growing and termed them mutually beneficial. General Bajwa told the visiting commander that Pakistan Army greatly valued its “brotherly relations” with Qatar, “its time-tested friend.” [50]

German Ambassador to Pakistan calls on COAS

German Ambassador calls on COAS

On March 4, Mr. Bernhard Stephan Schlagheck, German Ambassador to Pakistan, called on the Chief of Army Staff at the GHQ. German Ambassador acknowledged Pakistan’s continuous efforts for peace and stability in the region and vowed on enhancing bilateral relations.[51]

Ambassador Zalmay Khalilzad calls on COAS

Ambassador Zalmay Khalilzad and COAS Bajwa

On March 8, Ambassador Zalmay Khalilzad, US Special Representative for Afghanistan Reconciliation, and General Austin Scott Miller, Commander Resolute Support Mission in Afghanistan, called on the COAS at GHQ.[52]

COAS and DG ISI attend a session on Afghan Peace Process in Bahrain

COAS with Commander of Bahrain Nation Guard Field Marshal Mohammed Bin Isa Al Khalifa

On March 9, General Qamar Javed Bajwa and Lt General Faiz Hameed attended a session on Afghan peace process in Bahrain.

The ISPR said in a statement that “current developments in Afghan peace process, border security and necessary steps to be undertaken to facilitate an Afghan-led and Afghan-owned peace process were discussed at the meeting.” [53]

Uzbekistan FM and COAS discuss Afghan peace process

Foreign Minister of Uzbekistan with Army Chief

On March 10, Abdulaziz Kamilov, Foreign Minister of Uzbekistan, called on General Qamar Javed Bajwa. Matters of mutual interest, overall regional situation including the Afghan Peace Process and bilateral cooperation in various fields were discussed between the two. DG ISI was also present during the meeting.[54]

Ambassadors of Denmark, Canada and European Union (EU) call on COAS

Ambassador of European Union with COAS

On March 30, Mrs. Androulla Kaminara, Ambassador of European Union (EU), Her Excellency Ms Wendy Gilmour, Canadian High Commissioner & Her Excellency Ms. Lis Rosenholm, Ambassador of Denmark, called on General Qamar Javed Bajwa, at the GHQ.

According to the ISPR, matters of mutual interest, regional security and enhanced bilateral cooperation with European Union (EU) and Canada came under discussion. The visiting Ambassadors also appreciated Pakistan’s role in regional stability, especially the Afghan Peace Process and pledged to play their role for further improvement in diplomatic cooperation at all levels.[55]

US Defence Secretary praises Pakistan’s role in Afghan Peace Process

US Defence Secretary Lloyd Austin and Pakistan’s Chief of the Army Staff General Qamar Javed Bajwa

On March 22, Lloyd J. Austin, US Defence Secretary, praised Pakistan’s cooperation for peace in Afghanistan. Mr. Austin, in telephone conversation with General Qamar Bajwa, according to a readout of the conversation issued by Pentagon, “expressed gratitude for Islamabad’s continued support for the Afghan peace process.” According to the readout: “Secretary Austin reinforced the United States’ commitment to maintaining a strong bilateral defence relationship with Pakistan and expressed gratitude for Islamabad’s continued support for the Afghan peace process.”[56]

Saudi Commander Royal Saudi Land Forces calls on COAS

Saudi Commander calls on COAS

On March 25, Lieutenant General Fahd Bin Abdullah Al-Mutair, Commander Royal Saudi Land Forces, called on General Qamar Javed Bajwa. During the meeting, regional security situation and issues of mutual interest including cooperation in the fields of defence, security and military training between both the armies were discussed. [57]

Ukrainian Ambassador calls on COAS

Ukranian Ambassador calls on COAS

On March 31, Mr. Markian Chuchuk, Ukrainian Ambassador to Pakistan, called on the COAS. According to the ISPR, matters of mutual interest, regional security and enhanced bilateral and defence cooperation came under discussion. [58]

Myanmar Coup

Protestors making a three finger salute during the demonstration against the military coup in Myanmar

Since the military coup in Myanmar and year-long emergency imposed on February 01, mass protests by citizens have been met by military brutality resulting in killing of hundreds of citizens, including children. Elected leader Aung San Suu Kyi and members of her National League for Democracy (NLD) party are among those detained.

March 27 has so far been marked as the deadliest day since the coup when more than 100 people were killed in a day as the security forces have continued to use water cannon, rubber bullets and live ammunition to try to disperse protesters. [59] On March 27, the Myanmar’s military celebrated its annual Armed Forces Day holiday with a parade in the country’s capital resulting in the large number of death of protesters. It must be noted that while US Ambassador to Myanmar and British Foreign Minister strongly condemned the bloodshed, eight countries including Russia, China, India, Pakistan, Bangladesh, Vietnam, Laos and Thailand sent representatives to join the parade on Armed Forces Day. [60]

The three-finger salute has been adopted by the protesters in opposition to the military coup. The three-finger salute that originated in the Hunger Games film series has been adopted by activists from Thailand to Myanmar becoming a symbol of resistance and solidarity for democracy movements across south-east Asia.[61]

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