August 15, 2004

This is an account in former chief justice Ajmal Mian’s words of the happenings in the highest judiciary in 1997 just before he was appointed the acting chief justice

On December 2, 1997, the court office arranged the courtrooms according to the roster framed by Justice Sajjad Ali Shah the day before. While I was sitting in my chamber in the morning before going to the courtroom, Justice Saiduzzaman Siddiqi phoned and told me that the seven judges were ready to sit as the roster framed, but wanted to confirm with me whether Justice Sajjad Ali Shah was still adhering to the arrangement. I told him that I had no personal contact with him and, therefore, I was not in a position to give him any information, I also told him that I was going to the court for my sitting with Justice Abdur Rahman Khan. In the waiting room outside the court, I found Justice Mamoon Kazi, Justice Chaudhry Mohammad Arif, Justice Munir A. Sheikh and Justice Abdur Rahman Khan waiting to go to their respective courtrooms. While we were sitting there, Justice Saiduzzaman Siddiqi phoned and told me that he had sent Abid Minto to Justice Sajjad Ali Shah to ascertain whether he was still adhering to the arrangement arrived at on December 1, 1997 between him and the judges. He had come back and informed him that Justice Sajjad Ali Shah had said that he was not bound by any arrangement, and that the parties were free to do what they considered proper. He then requested Justice Abdur Rahman Khan not to sit with me as he was to sit with him as a member of the full bench which would hear the petitions challenging the appointment of Justice Sajjad Ali Shah as the Chief Justice.

We were still sitting in the waiting room when Abid Minto came in and enquired whether Justice Sajjad Ali Shah had come there. In the meantime Justice Sajjad Ali Shah arrived but before he could enter the waiting room, Abid took him aside to the adjoining room. What transpired between them I cannot say. After a few minutes Justice Sajjad Ali Shah came to the waiting room and asked the judges of his bench to accompany him to the courtroom. I asked him to sit for a few minutes as I wanted to talk to him. I did not ask any judge to leave the room, as has been alleged by Justice Sajjad Ali Shah in his autobiography. He sat down with me on a sofa and the other judges remained. In their presence I told him that the opposing judges were ready to sit as per his roster, since they recognized him as the Chief Justice, so why did he want to damage the Supreme Court, right at the end of his career, when he had barely two-and-a-half months to retirement? His reply was, “Mian Sahib you have no knowledge about the Sharif brothers. Shahbaz Sharif had been claiming that he had many Supreme Court judges with him.” I told him that if that was so Shahbaz Sharif’s claim would be defeated if the judges would be allowed to sit by the roster framed by him. I never asked him not to hear the cases against Nawaz Sharif as alleged by Justice Sajjad Ali Shah in his autobiography. What I asked was for the sake of unity, that he adhere to the arrangement which had been arrived at between him and the opposing judges. However, he seemed to be in a hurry, and got up as soon as he saw Justice Bashir Ahmed Jehangiri, and asked him and Justice Chaudhry Mohammad Arif to accompany him to the courtroom, which they did. This was a very unfortunate moment in the history of the Supreme Court.

Justice Saiduzzaman Siddiqi headed the bench of ten members and sat in the adjoining courtroom according to the second cause list. I returned to my chamber and Abid Hassan Minto and Ashraf Whalla came to me. We were sorry that the Supreme Court was thus divided. Ashraf Whalla was critical of both the groups of judges who according to him were acting at the behest of outside elements. He was also extremely critical of Abid’s meeting with Nawaz Sharif, on December 1, 1997, without taking any other advocates into confidence. It was agreed by us that after the tea break, we would make fresh efforts to bring about a reconciliation between Justice Sajjad Ali Shah and the opposing judges. However, that occasion did not arise, as before this could happen, both groups of judges reached a point of no return.

It was reported that on December 2, 1997 Justice Sajjad Ali Shah, immediately after sitting in the court, announced an order suspending the Thirteenth Constitutional Amendment (which had been unanimously passed by the Parliament) without hearing the Attorney-General and the counsel for the Federation, as was claimed by the latter, thereby conferring on the president the power to dismiss the National Assembly and Nawaz Sharif’s cabinet. I am unable to lay my hands on any precedent of any court in the world of suspending a constitutional amendment, by an interim order, a year after its incorporation into the constitution, without the respondents and the Attorney-General even being fully heard.

Chaudhry Mohammad Farooq, the Attorney-General, upon hearing the announcement of this order, dashed to the adjacent courtroom where the bench of the ten judges headed by Justice Saiduzzaman Siddiqi was holding court, and moved an oral motion to suspend the interim order passed by the three-member bench headed by Justice Sajjad Ali Shah. This was entertained and the interim order was suspended.

A copy of the interim order suspending the Thirteenth Constitutional Amendment reached the President’s House immediately on its pronouncement. The president was pressed hard to bring into service the power conferred on him by Justice Sajjad Ali Shah’s three-member bench. Repeated enquires were made by the office of the Supreme Court to the President’s House as to whether the action had been taken or not. The Army Chief apparently did not support this idea. On the contrary, a colonel attached to the ISI visited Justice Sajjad Ali Shah in his chamber early in the morning of December 2, 1997. Thereupon, President Farooq Ahmad Khan Leghari opted to resign from office. Wasim Sajjad, the Chairman of the Senate, in terms of Article 49(l) of the Constitution, assumed the office of acting President.

On the same day, that is, December 2, 1997, the bench of ten members headed by Saiduzzaman Siddiqi noted that Justice Sajjad Ali Shah, despite the orders of the Quetta and Peshawar benches, was passing judicial orders including the order suspending the Thirteenth Constitutional Amendment. The bench reaffirmed the orders of the Quetta and Peshawar benches, and directed the president to issue a notification under Article 180 of the constitution appointing me as an acting Chief Justice. It also ordered that till the issuance of the above notification, as the senior-most judge, I discharge the administrative as well as the judicial functions of the Chief Justice of the court.

After the pronouncement of the interim order suspending the Thirteenth Constitutional Amendment, I was able to comprehend why Justice Sajjad Ali Shah had not accepted my humble advice, offered to him early in the morning. He did not foresee that Justice Saiduzzaman Siddiqi would outwit him. His plan appeared to be that, after the dissolution of the National Assembly and the dismissal of Nawaz Sharif’s cabinet, he would get the judges who had passed the orders against him removed. But it was to be otherwise.

It was unfortunate that the benches in Quetta and Peshawar had to pass orders suspending the notification of appointment of Justice Sajjad Ali Shah as the Chief Justice in the unusual manner that they did, at a time when a confrontation between him and Nawaz Sharif was going on. This provided an opportunity for some people to project and propagate that the suspension orders were passed at the behest of the Federal Government, and some people honestly believed this to be so. The intention of the judges who were party to the orders, was that it was necessary to prevent Justice Sajjad Ali Shah from damaging the Supreme Court’s image by passing arbitrary orders in violation of the basic norms of jurisprudence. This episode can be judged by the fact that by his arrogant behaviour, he isolated himself, treating his senior judges shabbily, sending them out of Islamabad suddenly. When they requested a full court meeting, he turned their request down by issuing an order to the press. He thought that he alone was the Supreme Court, and as such was not required or expected to consult his senior colleagues, even on important policy matters. Most of the controversial and sensitive orders relating to the Thirteenth and Fourteenth Constitutional amendments were passed by the benches of three members headed by him.

Furthermore, it was a matter of common knowledge, particularly among the members of the legal fraternity, that Justice Sajjad Ali Shah’s appointment as the Chief Justice had been made in breach of the well-established convention of seniority. The appointment was criticized by members of the Bar as well as by political leaders and in order to silence them, various contempt proceedings were initiated. Justice Sajjad Ali Shah successfully avoided adjudication on the legality of his appointment for more than three-and-a-half years (that is, from June 5, 1994, when he was appointed, till November 26 and 27, 1997, when the benches at Quetta and Peshawar passed the interim orders).

It may be pointed out that under the judgment in the Judges’ Case, the above question was kept open on the insistence of Justice Sajjad Ali Shah. This question had to be adjudicated upon, but instead of facilitating its adjudication, he avoided it. The first opportunity to help settle the issue after the handing down of the judgment in the Judges’ Case arose in the review petitions against the judgment. Benazir Bhutto’s government raised the question, but the review petitions had to be withdrawn by the Federal Government as Justice Sajjad Ali Shah insisted that he would preside over the bench and decide the question himself, though it is a well-established rule of jurisprudence that nobody can be a judge in his or her own cause. He could have constituted a full bench comprising all the judges of the Supreme Court excluding himself and me. However, he did not. The second opportunity occurred when Justice Nasir Aslam Zahid and Justice Khalil-ur-Rehman Khan on November 18, 1997, while sitting in Quetta, made a reference to the Chief Justice to constitute a full bench for hearing the legality of his appointment as the Chief Justice as this point had been raised before them. The reference was not responded to either.

Pursuant to the direction contained in the order dated December 2, 1997, in the case of Malik Asad Ali v. Federation of Pakistan and Others, I framed a new roster. Justice Sajjad Ali Shah was included as a member of one of the benches constituted; he, however, opted to go on leave.

On December 2, 1997, 1 was appointed as the acting Chief Justice in view of the mandatory requirement of Article 180 of the constitution. I asked my colleagues that the oath taking ceremony be very simple and that government functionaries not be invited, other than a few relevant persons from the Ministry of Law and Justice, but I was told that it was not for me to decide who should be the invitees. The oath was administered on December 3, 1997 by Justice Saiduzzaman Siddiqi in the Supreme Court Auditorium. It was attended by a large number of people from the judiciary, the Bar, and the government, much to my distaste. On December 6, 1997, Benazir Bhutto, chairperson of the PPP, welcomed my appointment as the acting Chief Justice. Talking to the newsmen inside Karachi Jail, where she had gone to watch the proceedings of a case against her husband, Asif Ali Zardari, she said that according to the March 20, 1996 judgment, the senior-most judge had to be elevated as the Chief Justice. She contended that the former president, Farooq Leghari, had confirmed in an interview, that he had opposed her advice in this regard.

Excerpted with permission from

A Judge Speaks Out
By Ajmal Mian
Oxford University Press, Plot # 38, Sector 15, Korangi Industrial Area, Karachi
Tel: 111-693-673
Email: ouppak@theoffice.net
Website: www.oup.com.pk
ISBN 0-19-579984-4
383pp. Rs595

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