Know thy facts

Published: July 16, 2012
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The writer is a partner at Bhandari, Naqvi & Riaz and an advocate of the Supreme Court. The writer can be reached on Twitter @laalshah. The views presented in the article above are not those of his firm

The writer is a partner at Bhandari, Naqvi & Riaz and an advocate of the Supreme Court. The writer can be reached on Twitter @laalshah. The views presented in the article above are not those of his firm

There are moments in my academic past of which I am quite proud. Getting a distinguished Yale Law School professor of Constitutional Law to swear at me in open class is not one of them.

Some context first; the debate in question related to US vs Fordice, a case then pending before the US Supreme Court. The facts were that prior to segregation being declared illegal, Mississippi universities had been strictly divided into universities for blacks and universities for whites. After the US Supreme Court declared segregation illegal, Mississippi’s universities were ostensibly desegregated. However, a race-neutral admission test was implemented under which any student wanting to go to the historically white universities had to meet a minimum standard. The result was that the historically white universities remained overwhelmingly white, while the historically black universities remained overwhelmingly black. It was this de facto segregation that was under challenge.

My view then was that if the segregation resulted from a race-neutral test, then there was no ‘principled’ basis on which to declare it illegal. In other words, it was rational for the state to have universities of different standards and it was not the fault of the state if blacks could not meet the minimum entry standards. And it was this view, which had driven my normally mild-mannered professor to expletives.

As it turned out, all nine members of the US Supreme Court disagreed with me, a fact that I filed away under the general heading of  ‘inexplicable mysteries’, at least, until the day I read a biography of Judge Frank Johnson.

Judge Frank Johnson was a district judge based in Alabama who became the point man for judicial efforts to force desegregation. What I learnt from his biography was that disputes regarding blacks and whites in the American South could not be seen in terms of abstract principles. Instead, because opponents of desegregation had used every ostensibly neutral option to try and prolong white domination and that, as a consequence, the judiciary had decided that no rationale and no argument would be accepted for whatever reason, unless and until it produced desegregation in actual fact, principles be damned.

I mention all of this because our country will soon be plunged into a maelstrom of debate when the Supreme Court takes up the constitutionality of the new contempt law. All sorts of abstract principles are going to get thrown around. But this is not a case about high jurisprudence. As with the Mississippi colleges, judgment will be driven by the desired result. And I don’t have much of a problem with that.

Before I explain why I don’t have a problem, let’s review the facts. The new contempt law has been passed solely for one reason, that is, to try and delay the inevitable disqualification of Raja Pervaiz Ashraf for failing to implement the NRO judgment. In my view, the PPP’s stated excuse for not writing to the Swiss is rubbish. However, I also think the Supreme Court should avoid yet another fight by setting up a commission to send the letter directly to the Swiss.

Wait, you ask, if the Supreme Court shouldn’t be fighting with the PPP over this issue, how is striking down the new contempt law justified? Let me explain.

The short version is that all legal principles are not equal. Some principles are more important, more fundamental and more ‘weighty’ than others. And out of all legal principles and concepts, perhaps the most important is the concept of a ‘rule of law’.

There is no precise definition of the term ‘rule of law’. However, the essence of the concept is that the rule of law requires the exercise of governmental power to be subject to certain rules enforced and interpreted by an independent authority.

The new contempt law provides that certain high political functionaries such as the President, the Prime Minister and federal ministers cannot be charged with contempt for  “any act done or purported to be done … in exercise of their powers and performance of functions as a public office holder”. In other words, what the contempt law provides is that our President, Prime Minister and federal ministers will henceforth have the right to ignore the courts and instead only apply such laws as they deem fit. Self-evidently, this is a complete negation of the rule of law.

At the same time, the new contempt law is not what scares me because that law is as good as dead today: all that remains is the formality of declaring it unconstitutional. Instead, what scares me is what lies beyond. If the majority of Parliament can be so unmindful as to enact this law, can the day be far behind when the Constitution itself will be amended to provide the same?

I hope that day never arrives. If it does, the country will learn that because of our history of constitutional adventurism, our judiciary has developed a vast arsenal of techniques to protect the Constitution. For example, all our military dictators have tried to provide immunity to their deeds through constitutional amendments. And in each case, the courts have steadfastly held that actions that are mala fide and without jurisdiction can never be protected from judicial scrutiny, irrespective of what any validation clause may say.

There is also one final ‘nuclear’ weapon that our judiciary holds in reserve — the ‘basic structure’ doctrine. Our judiciary has never applied that doctrine and, in fact, has never even held that it has the power to strike down constitutional amendments. But I have no doubt that if the immunity provision was incorporated into the Constitution, then that amendment too would be struck down.

It has now become trite to observe that we are witnessing a power struggle between the judiciary and Parliament. Perhaps, that was true earlier but it is no longer accurate. What we are witnessing instead is a struggle between visions of Pakistan — between those who want the rule of law and those who want the rule of man. For now, the rule of law is safe. But if this confrontation continues, the result may be a loss for both sides: an end to the rule of law, as well as an end to those men currently doing the ruling.

Published in The Express Tribune, July 17th, 2012.

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Reader Comments (42)

  • Muhammad
    Jul 16, 2012 - 10:37PM

    I completely agree with you on this one. Brilliant article, amazing read. Although I’m not optimistic enough to think that Parliament will not amend the Constitution out of the picture. That was exactly what they did after the Supreme Court ruled that government could not discriminate against Ahmedis or declare them non-Muslims — they passed a constitutional amendment saying they could. I think the judiciary should develop basic structure doctrine, and take on the power to invalidate those constitutional amendments which compromise fundamental rights and the rule of law.

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  • Mirza
    Jul 16, 2012 - 10:48PM

    Many don’t care what is clearly written in constitution but what the PCO justices say. It is the same way that most do not know and don’t want to read what is written in our holy Quran but what the mullahs say, even though the writings are very clear for everybody to read.

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  • Falcon
    Jul 16, 2012 - 11:05PM

    Brilliant put. Pretty much sums up the crux of the issue: man vs. law.

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  • Logic Europe
    Jul 16, 2012 - 11:18PM

    A typical chief ke Jaan Nisar
    for millions the logic is simple ,,it is not that judiciary is trying to uphold some LAW or protecting constitution , it is only targeting and destablising the government out of animosity revenge and for payback to Nawaz shareef ,,,To compare this judiciary to another country is ludicrous ,,,Not a single lower court in America is corrupt lot a single judge is tainted with allegations of corruption in their families and none has been issued government plots
    Mr naqvi lease can you swear on Quran that you know of any judge who is honest .. please don’t over celebrate this rather discredited judiciary

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  • Lala Gee
    Jul 16, 2012 - 11:18PM

    An excellent op-ed.

    I would go for the rule of law over the rule of man.

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  • sidjeen
    Jul 16, 2012 - 11:21PM

    the problem is that both organs of state who initially were fighting a turf war has now gone beyond that and are now fighting because of ego. we all know that even if the Government writes a letter to the Swiss authorities nothing much will happen beyond that. we also know that if the judiciary let this Government complete the last few months of its mandated tenure no catastrophes will befall this nation. perhaps its time that at least one side acted like a mature adult and not like an adventurous teenager.

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  • Parvez
    Jul 16, 2012 - 11:30PM

    Brilliant, brilliant, brilliant.
    What astonishes me is the level that our politicians can stoop to, in order to protect their self interest without even realising the harm they are doing, even to themselves.

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  • gp65
    Jul 16, 2012 - 11:36PM

    “What we are witnessing instead is a struggle between visions of Pakistan — between those who want the rule of law and those who want the rule of man”

    This is a false dichotomy. The laws are man made and can be changed by men. It is upto the Pakistani people to elect the right representatives to the Parliament so that they pass laws that reflect the will of the people.

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  • Salman
    Jul 17, 2012 - 12:46AM

    I completely agree with the writer and fear the same too!!!

    One thing to note, we elected representatives who in turn elected Zardari as President. People with no education, no ethics and no principles are running the reigns of our country.

    What else did you expect from them?

    It is time to set the record straight and stop the electing corrupt and greedy rulers. GOD SAVE PAKISTAN!!!

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  • Max
    Jul 17, 2012 - 1:04AM

    Sir, I am not a lawyer and know very little about legal complications. Desegregation was a matter of yesterday. You may probe through by looking at the following citations to correct the information.
    The Southern universities case was settled long time ago and here is the citation for you to look.

    bepress Legal Series
    Year 2007 Paper 2021
    Black, White, Brown, Green, and
    Fordice: The Flavor of Higher Education
    in Louisiana and Mississippi
    Alfreda S. Diamond
    Southern University Law Center

    Here are a few cases that determine the admission policy in colleges/universities and all over the country and not just South.
    Bakke v. University of California, 1976
    Hopwood v. University of Texas 1998.
    Grutter v. University of Michigan, 2003
    Gratz v. University of Michigan, 2003

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  • Max
    Jul 17, 2012 - 1:55AM

    Forget to mention that all four cases were about reverse discrimination. In all cases racial minority candidates were admitted superseding the eligible white candidates. Bakke was a medical school admission case. Grutter and Hopwood were about law school admission and Gratz was admission as a freshman (undergraduate).

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  • Muhammad
    Jul 17, 2012 - 2:37AM

    Brilliant read, I completely agree, except I perhaps don’t share your optimism that the Parliament will not resort to amending the Constitution. We all remember what they did after the Supreme Court ruled that the government could not declare Ahmedis non-Muslisms or discriminate against them — they amended the Constitution and gave themselves that power.

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  • Jul 17, 2012 - 2:47AM

    Another pillar arising, wielding it´s full power, pushing the common people one more step down.

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  • Khalq e Khuda
    Jul 17, 2012 - 3:26AM

    Know thy facts first sir!

    In each of the martial laws judiciary not only justified Constitutional amendments but allowed the dictators to change it at their whim. The so called doctrine of basic structure was contested by SCBA to invalidate 17th amendment and a bench consisting none other than Iftikhar Chaudhry declared that parliament can amend Constitution as it willsrendering the whole doctrine irrelevant for Pakistan.

    This change of mind for personal accumulation of power is the very thing that Parliament should unite against.The doctrine of basic structure has been rendered invalid by 2nd 3rd 8th and 17th amendment to the Constitution and their subsequent validation by the Courts. The Supreme Courts intentions are malafide to begin with and indeed as you pointed out should be fought at all costs notwithstanding principles.

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  • Shahid Jamil
    Jul 17, 2012 - 3:52AM

    @Parvez:
    Agreed. This exactly is the problem.

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  • Usman
    Jul 17, 2012 - 4:55AM

    Now where are the PPP apologists who have been crying ‘save democracy’ for so long? This article should shut them up.

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  • Mirza
    Jul 17, 2012 - 8:35AM

    Let us assume for the sake of argument that decades old unproven Swiss cases are true. The same time taking oath under PCO by these judges twice is also a fact. Their contribution in endorsing and supporting high treason and mutilation of constitution is a fact and cannot be denied. Yet the highest and worst crime against the country is forgotten by most and the unproven charges are facts and should be punished? The PCO judges have lost their credibility when they conspired with Gen Mush against democracy and even today they have no case against a single general despite Asghar Khan, Mehran Bank, Balochistan murders, Abbottabad and Bugti, BB, Taseer, Bhatti’s murders. In addition the SC has no cases against rightwing corrupt leaders and terrorists roaming around openly with guns.

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  • Lala Gee
    Jul 17, 2012 - 11:20AM

    @Author:

    “It has now become trite to observe that we are witnessing a power struggle between the judiciary and Parliament”.

    This was not the power struggle between the judiciary and parliament, rather it was and is a continuous struggle between judiciary who want to enforce the ‘rule of law’ and the oligarchs who want to be above all the laws. The truth is, these oligarchs in the facade of democracy are yearning for an unabated free environment for their corruption and plunder of the public exchequer. The whole tussle is nothing more than that.

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  • Lala Gee
    Jul 17, 2012 - 11:37AM

    There are couple of regular commentators in these forums who always side against the judiciary, no matter what. Their political inclinations have blinded them so much that even when they do not have any argument in defense of the party of their liking, rather than accepting their mistakes and crimes, they start bashing the judiciary for victimization or why the others go unpunished ignoring the fact that registering a case against the unpunished and prosecuting them is the responsibility of the government not the courts. God enable them to go beyond their biases.

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  • Fahad Kamil
    Jul 17, 2012 - 12:22PM

    Sadly, after being subjected to decades of crippling military rule, Pakistanis, it seems, have become so desensitized to attempts at toppling democracy that there is hardly any outrage at one unelected man’s relentless confrontation with a government that was voted into power by a plurality of the country’s 160 million people. The silence of the people who should care is deafening.

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  • imran
    Jul 17, 2012 - 1:48PM

    No my brother you miss lot of political aspect of this law, you want public to see court,s decision on this matter or previous verdicts through legal means but you forget that Supreme Court is bluntly supported by political parties to limiting executive authority of the government. First time PPP use legal mean to fought political battles but opposition parties is using this techniques since couple of years.

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  • ishrat salim
    Jul 17, 2012 - 2:05PM

    Reply to Lala Gee…You could not be more right….these opponents are unable to clarify, what sort of judiciary they hv in mind ?..a very compliant like during the dictators rule, which they detest but wud prefer same in this period…what shud we call this attitude of such people ? they criticise the judiciary & call them with various names yet do not hv the guts to give solutions.

    – The new law of contempt hv been opposed by no less than persons of Mr Raza Rabbani / Aitzaz Ahsan, Mr Iqbal Haider & Babar Awan…all PPP stalwarts.So, PPP jiyalas…even these PPP stalwarts are wrong ?..the whole world is wrong except you guys & your allies.May Allah swt make you among saner element to call ” a spade a spade “.You all will be responsible in destroying this country…if the judiciary is wrong, corrupt etc; shut it down & let Parliament decide cases as per their whims.It will save much of tax-payers money & all the arguments of biasness etc;Recommend

  • elementary
    Jul 17, 2012 - 4:15PM

    @Mirza:
    AAZ has been convicted in swiss courts so these are not unproven charges.

    Even if, for arguments sake we take your point of view and accept that these charges are baseless and would not stand a single hearing; then why not simply write the damned letter to swiss court and resolve the matter in your favour?

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  • Logic Europe
    Jul 17, 2012 - 5:47PM

    elementary @ your thinking is elementary …….You are obsessed with Swiss money and almost five hundred times it is mentioned on tv every day THIS IS the proof that ZARDARI is honest and he has done no corruption
    you have nothing against him apart from this case made by the biggest money laundering company ,the Nawaz shareef and shebaz shareef there is actual photographic evidence produced by BBC but chief justice is walking against ZARDARI
    IS THERE ONE PERSON IN PAKISTAN WHO CAN COME OUT AND CLAIM HE PAID MONEY TO ZARDAR .. ?.
    the conspiracy to defeat PPP at the next election will fail and it will return to power again Recommend

  • yousaf
    Jul 17, 2012 - 5:56PM

    @author::Very realistic analogy about Southern America’s laws of black vs white Americans and Pakistan’s concept of ‘rule of law’ vs ‘rule of lawlessness’.Even time-period (historically speaking) of the two issues is somewhat the same.What’s interesting to note is that the time to resolve both the issues too is going to take almost the same time,in case they ever get resolved.Question mark.

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  • Jul 17, 2012 - 6:13PM

    @yousaf:
    .
    “What’s interesting to note is that the time to resolve both the issues too is going to take almost the same time,in case they ever get resolved.”
    .
    This would entail that the country’s name would no longer be a headline grabber every day. Who does not want a little publicity for the Islamic Republic, for whatever reason?

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  • elementary
    Jul 17, 2012 - 6:38PM

    @Logic Europe:
    If he has not done any corruption then why not write the letter?? case will fall apart. matter resolved.

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  • Mirza
    Jul 17, 2012 - 7:00PM

    @elementary:
    My dear if the Swiss Court has already convicted (only according to you) AAZ then what is the fuss of trying him again? It is not legal in any law to try a person for the same crime twice. If the Swiss courts have convicted him while he was not a president then what would they do now, try and convict him again? If the Swiss convict him again would the PCO judges would send his case again for the third time? Either the Swiss cases have been tried and ended in a conviction or there has not been any decision, you cannot have both.
    Regards,
    Mirza

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  • Logic Europe
    Jul 17, 2012 - 7:01PM

    the reason is that an investigation will,start and Pakistan will be disgraced as its president will be bowing before an officer in switzerland The immunity is against prosecution and not investigation. THE result will be that he will have to RESIGHN and that is what this letters means. This is a conspiracy to remove a democratically elected president and to make people’s party leaderless ,,,Mr chaduhry is not stupid to insist on writting a letter which has no purpose and Ppp is not stupid not to know what is behind this conspiracy.
    When ZARDARI is not president then letter will be written AND why doesn’t mr chaudhry RESIGHN and let investigation be carried out against his family ?? also why he did not answer the allegations made against him by his ex boss Musharaf ?.
    ELEMENTARY AND OTHERS ,, YOU ARE SUPORTING AOLITICAL AGENDA BY JUDICIARY . Recommend

  • Logic Europe
    Jul 17, 2012 - 7:20PM

    A campaign should be lodged in all parts of Pakistan by PPP to show resentment and no confidence in these judges otherwise they will destroy Pakistan more than the dictators have done Recommend

  • sabi
    Jul 17, 2012 - 7:22PM

    why is judiciary silent on taliban and hate mongster mullas.

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  • elementary
    Jul 17, 2012 - 7:30PM

    BBC news amongst others, reported AAZ as convicted in the swiss court.Please see the link.

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  • elementary
    Jul 17, 2012 - 7:40PM

    In August 2003‚ a Swiss court convicted AAZ‚ in absentia‚ of money laundering. The sentences of six months’ suspended jail time‚ a fine of $100‚000‚ and the order that they return some $2 million to Pakistan’s government‚ were suspended on appeal.

    [http://newsweekpakistan.com/the-take/88][1]

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  • Attorney Kamal
    Jul 17, 2012 - 7:48PM

    For instance, Mr Naqvi wrongly asserts that “…what the contempt law provides is that our President, Prime Minister and federal ministers will henceforth have the right to ignore the courts and instead only apply such laws as they deem fit…” The fact is that the new contempt law says no such thing; it is a very specific and limited law, exempting only some officials from contempt of court in their official duties only.

    He is also completely wrong about judiciary’s ovesight of constitutional amendments.Amendments are purely a function of the sovereign right of the people, expressed through the parliament, to change or amend the constitution any time by following the amendment procedure. It has nothing to do with the SC. An amendment when constitutionally passed and enacted becomes a part and parcel of the Constitution itself, which thre SC has a sworn duty to obey and uphold. The so-callec basic provision doctrine is similar to the nefarious doctrine of necessity that was used by SC to uphold overthrows of the Constitution and rules of law previously…

    And finally what segregation cases has to do with the present judicial mess. Recommend

  • Mirza
    Jul 17, 2012 - 8:51PM

    @elementary:
    An elementary fact is till the person is convicted by the final court after the appeals are disallowed he/she is not convicted. A person is not a murderer till the case is final. Many lower courts make faulty decisions that are overturned on appeals. That is why there is a basic right to appeal to a higher court.

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  • Logic Europe
    Jul 17, 2012 - 8:59PM

    elementary jee the evidence presented was by agents of Musharaf All cases made by him were illegal as we’re his other actions supported by PCO judges .the swiss courts were mislead so you can seethe are not perusing the case,,,,, if ZARDARI is convicted then why didn’t they ask for his expatriation ?. like courts here are trying to write a letter ??
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  • annonymus
    Jul 17, 2012 - 9:57PM

    Dear author,
    when it comes to interpretation it is personal liking or disliking or faith. for example
    Recent US court decision that corporations can donate unlimited versus previous decision that they cannot, shows only one thing that it is not the law but personal whims that can change over time. in a right set up that can be influenced though in case of US courts that is very unlikely.
    if I was parliamentarian, I would have made an effort that laws should be unambiguous . at the end of every sentence should say that no interpretation is needed.

    if some one does not like the law then next assembly can remove that.
    what u are saying if capital punishment provision is eliminated in constitution but court still can order death sentence if they wish so

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  • ET
    Jul 17, 2012 - 10:04PM

    No surprise Mirza is pretty upset with this Op-Ed. Mr Mirza may i ask you know thy facts! Swiss courts have declared BB and zardari to be convicts and has even turned down their review petitions. Please stop goofing us by saying ‘unproven cases’. They are well proven and the letter is not to reopen cases but to claim the money on behalf of govt of Pakistan.

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  • Jul 17, 2012 - 10:19PM

    How about applying the segregation argument where it applies? There is de facto segregation in the educational institutions in the Sindh province, where the top tier institutions in the capital Karachi are overwhelmingly non-Sindhi, and outside the capital, Sindhis attend second tier institutions. Any takers?

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  • karma
    Jul 18, 2012 - 12:25AM

    There are three pillars in democracy. CJ has been pressuring one of the pillars to implement an order that is not acceptable to Executive.

    Can he also take up a case su-moto, deliver a judgement directing Parliament to pass a particular law, and threaten all MNAs of ‘contempt’ punishment – if they didn’t vote as he commanded?

    What is the difference between a Dictator and such judge?

    If he can’t force the parliament to do so, how can he do the same on another pillar?

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  • FAI
    Jul 18, 2012 - 4:04AM

    Excellent written article… wooh.. down with the supporters of every act that can help in destabilize our country…
    you will never win.. let me tell you. accept your defeat and step aside.. otherwise you are already doomed..

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  • ishrat salim
    Jul 18, 2012 - 1:44PM

    FAI Sb…I hv been looking for solutions from these judiciary bashers, but it semm they hv none except ” to go on bashing ” without steam…I also suggested them especially Mirza Sb.. to shut down judiciary & put it under ministry of law or part of Parliament & pass new & amended law as per their wishes & resolve peoples issues.This will save substantial tax-payers money which people like Mirza Sb & others can spend the way they like to save ” democracy under new system ” invented by PPP & its allies….

    Obsessions & paranoid against judiciary are reaching its height….only Allah swt judgement is awaited against such people who suports & thinks that they are right & the whole world hv gone against them.Recommend

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