TO give the devil his due, when he wishes to be, he can be honest. When Mushahid Hussain made Nawaz Sharif read the editorial in The Economist of May 22 Nawaz Sharif did not order him to refute what was written, nor did he threaten to sue for defamation. He took all in his stride, including:

"The judiciary at first tried to check Mr Sharif, but has given up. When the chief justice of the Supreme Court, Sajjad Ali Shah, took the president's side in an argument with the prime minister in 1997, a mob from Mr Sharif's party stormed the Supreme Court and Mr Sharif sacked Mr Shah. The courts have given Mr Sharif little trouble since .... "

After the Supreme Court had, in December 1997, reluctantly taken notice of the storming incident, inquired into it, issued a few contempt of court notices, pardoned many and charged a handful of nonentities with contempt of court, it delivered its judgment on May 14, 1999, exonerating those charged. The nation was aggrieved by this judgment and now one of the aggrieved, Shahid Orakzai, has filed a petition in the Supreme Court praying that the matter be examined and tried de novo. The petition was heard by a bench of five comprising Chief Justice Ajmal Mian, Justices Saiduzzaman Siddiqui, Irshad Hasan Khan, Raja Afrasyiab Khan, and Bashir Jehangiri and converted into an appeal. The bench ordered that notices be issued to the respondents, "the Attorney-General of Pakistan and the persons against whom the charges were framed," and that the appeal would be heard on June 28.

The bench will surely do 'complete justice' according to Article 187(1) of the Constitution: "Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document."

The framers of our contempt laws never contemplated the possibility that the government of the day would organize a mob to storm the Supreme Court whilst in session, i.e. commit contempt in the face of the court (as reflected in Order 27 Rule 7(2) of the Supreme Court Rules 1980). The Attorney-General of Pakistan and his deputies are men appointed and employed by the government. They cannot be expected to wholeheartedly and honestly conduct a prosecution against their appointers and employers. The "aggrieved," therefore, urge that in conformity with current international judicial norms and practices, the Supreme Court appoint an independent special prosecutor able to prosecute the case in an unbiased manner (covered in my statement placed on the court record on May 6, 1999).

Another good reason why the Attorney-General is incompetent to prosecute this case is covered by excerpts from my affidavit placed on the court record on April 22, 1998:

"That it is on record that the first law officer of the people, Attorney-General Chaudhry Farooq, has himself committed contempt in the face of the Court. During the 1993-96 PPP government of Benazir Bhutto, Advocate Chaudhry Farooq, defending an Ittefaq case in the Lahore High Court, swore at the presiding judge, Mr Munir A Shaikh, in open court, using the crudest of language. For this blatant contempt committed in the face of the court, the honourable presiding judge could have convicted and imprisoned him.

"That Advocate Chaudhry Farooq was not prosecuted does not deviate from or alter the fact that he abused an honourable High Court judge in open court, thus committing contempt in the face of the court.

"That with the advent of the PML government of Nawaz Sharif, the Prime Minister appointed as Attorney-General of Pakistan, as the people's lawyer, his own lawyer, Ittefaq's lawyer, Advocate Chaudhry Farooq.

"That the judiciary and the people accepted him, without protest, as the first law officer of the land rests heavily on the heads of the people and even more heavily on the heads of those in power and authority who could have opposed his nomination and subsequent appointment, and, additionally, this advocate can hardly be considered to be competent to aid the Supreme Court in the investigations it is now conducting to establish the identity of those members of the ruling party who had either organized the storming, or were leading the mob, or were with the mob on November 28, 1997."

Unless a special prosecutor is appointed, the exercise now in the mill will be an exercise in futility. The appeal will be admitted for hearing by CJ P Ajmal Mian who will clear his conscience and retire two days later, leaving his successor CJ P Siddiqui to carry on.

The Attorney-General is hardly likely to consider the involvement of the new CJP in the removal of CJP Sajjad Ali Shah in November/December 1997, or the contents of Sajjad Ali Shah's letter dated November 28, 1997, addressed to the President of Pakistan which has been placed on the Supreme Court record as an attachment to my affidavit dated May 9 1998 :

"I am very sorry to state that Mr Justice Saiduzzaman Siddiqui, a judge of this court, who is presiding over a bench of three judges at Peshawar registry, has issued an administrative order constituting a full court consisting of 15 judges to commence sitting on 1/12/97 for hearing of the cases at Islamabad. He has heard and decided a petition under Article 184(3) of the Constitution, which cannot be registered and heard at the Peshawar registry and can be registered and heard only at the principal seat of the Supreme Court unless so authorized by the Chief Justice. This petition was taken up for hearing without any authorization from me and such action was also taken by two judges, namely, Mr Justice Irshad Hasan Khan and Mr Justice Khalil-ur-Rehman Khan at Quetta without permission of the Chief Justice, and the order was passed holding in abeyance the notification of my appointment as Chief Justice, which order has been set at naught by the bench of five judges by a majority of four to one sitting at the principal seat.

"Mr Justice Saiduzzaman Siddiqui, as stated above, has passed an administrative order taking over the control of the whole administration which is the exclusive function of the Chief Justice. This divide amongst the judges of the Supreme Court is deliberately created by interested quarters. I do not want to make any comments on the conduct and attitude motivating such actions, which smack of defiance and rebellion and amount to misconduct calling for action by the Supreme Judicial Council for which necessary steps are to be taken."

The AG will also not consider what Senator Iqbal Haider has recorded in his statement handed in to the Supreme Court on May 21, 1998:

"The attacks on the Supreme Court started on August 21, 1997, when the strength of the Supreme Court judges was arbitrarily reduced. The spate of attacks by the ruling party on the Supreme Court continued thereafter with the intent to disrupt the course of justice and to prevent the court from hearing most crucial cases incriminating the prime minister, his parliamentarians and friends."

In order to survive, the people desperately feel the need for an independent judiciary, particularly with the government we now have. Those who try to help the judges regain their dignity and status are generally regarded as fools and asked the simple question: "Well, you may want to do something for the judges, but do the judges want to be independent enough to rule against the government?"

Take the FCA case. For some reason or other, stress was laid on the production of a list of those who withdrew or remitted foreign exchange between May 11 and 28, 1998. That does not matter one iota, for by law people were free to remit whatever they liked during this period. What was to be revealed to the Court and to the people of Pakistan were the names of the powerful people in government, the culprits, who sent out money in between the time the embargo was declared on May 28 and the returns submitted to the State Bank the next morning. The Governor of the State Bank has a list of these people, but the court did not ask for it.

Another worrying aspect is the appointment of judges. Three eminent additional judges of the Lahore High Court, Justices Saqib Nisar, Asif Saieed Khosa and Mian Zafar Yasin, recently completed their statutory probationary period of one year, and were recommended by the CJ of the LHC and the CJP as being suitable for confirmation as permanent judges.

The law ministry processed their cases and the prime minister advised the president to confirm them. They had to be confirmed "in the absence of very strong reasons to be recorded by the President/Executive which may be justiciable". President Tarar refused to confirm them, stating that the first two are young (both are over 40 and constitutionally eligible) and that the third's rate of disposal of cases was poor. Would the CJ of the LHC and the CJP have recommended confirmation? "Strong reasons"?