Wednesday, January 4, 2012

Alleged Independent Judiciary & So-Called Lawyers Movement.

ISLAMABAD: Pakistan Bar Council (PBC) Vice chairman (VC) Latif Afridi has backed Asma Jahangir’s stance regarding court’s judgement in the controversial memo scandal, saying that the superior judiciary cannot play the role of an investigator in any matter. Talking to Daily Times, the PBC vice chairman endorsed Asma Jahangir’s stance that the Supreme Court has wrongly assumed its jurisdiction in the memo scandal. Regarding the memo probe commission, consisting of three high courts chief justices, Afridi said that ordinary litigants would face difficulties in this situation. “The nation is already divided politically, ethnically and economically... it cannot be allowed to further divide on judicial consideration,” he added. The VC hoped the judiciary would not become a source of conflict and things would proceed in accordance with the constitutional division of powers. “Pakistan needs coherence, unification and support of all the federation units and democratic forces, minus those who make hay while the sun shines,” Afirdi said. He urged the SC not to adopt dual standards, and take notice of Mansoor Ijaz’s other statement regarding the ISI director general’s visits to the Arab countries for the removal of President Asif Ali Zardari. The PBC VC urged the court to adopt the policy of judicial restraint, and refrain from entertaining political cases, as the move could make the SC prone to allegations of favouritism. On the other hand, he urged the chief justice of Pakistan to take up the Asghar Khan case. Concerning Pervaiz Musharraf’s return, he said the lawyers would agitate against the former dictator upon his arrival. hasnaat malik. REFERENCE: PBC backs Asma’s stance on memogate Tuesday, January 03, 2012

MNA Farahnaz Ispahani appeal for justice (CNN 2011)

CNN's Wolf Blitzer talks to Farah Ispahani, the wife of Husain Haqqani, the former Pakistani ambassador to the United States, who is involved in a scandal being investigated by Pakistan's high court. REFERENCES: 'Memogate' rocks Pakistan post-Bin Laden December 31st, 2011 Pakistan's high court investigating memo scandal From Nasir Habib, for CNN December 30, 2011

Selected Justice In Pakistan - Eye Opener 2011

Chief Justice Iftikhar Muhammad Chaudhry ILLEGALLY Favours Nawaz Sharif

Nawaz Shareef didn't Walk through Security Gates in Supreme Court

ISLAMABAD: Former Director-General of the Federal Investigation Agency (FIA) Tariq Khosa has refused to head a one-man commission to investigate the memo scandal, DawnNews reported on Saturday. The commission was set up by the Supreme Court. Khosa, who has also served as inspector general of Balochistan police, is a brother of Justice Asif Saeed Khosa and Punjab Chief Secretary Nasir Khosa. Earlier, former law minister Babar Awan had questioned Khosa’s nomination at a press conference by saying that he was a brother of the Punjab chief secretary and a judge of the Supreme Court. But those who worked with Khosa called him an ‘upright’ man and a ‘clean’ government officer. The scandal erupted when US citizen of Pakistani origin, Mansoor Ijaz, accused Pakistan’s former ambassador to the United States, Husain Haqqani, of masterminding an alleged memo sent to a senior US military official asking for help to rein in the Pakistani military after the American raid that killed Osama bin Laden in Abbottabad in May. Haqqani denied the allegation and resigned from his position of ambassador in the wake of the controversy. REFERENCES: Tariq Khosa refuses to head commission on memogate December 3, 2011 •One-man commission named •PPP’s angry reaction •President, COAS, ISI chief to explain position: SC orders memogate inquiry, tells Haqqani not to go abroad December 2, 2011

ISLAMABAD: Renowned lawyer Asma Jahangir on Sunday refused to continue acting as former Ambassador to the US Hussain Haqqani’s counsel in the memogate case, DawnNews reported. Asma Jahangir said that she did not trust the commission formed by the Supreme Court to investigate the memo-scandal, alleging that the Supreme Court judges were under the establishment’s influence. Asma also told DawnNews in an exclusive interview that Hussain Haqqani feared the powerful spy agencies may force him into giving a statement. This fear was the reason behind the former ambassador’s stay at the prime minister’s house, she said. Moreover, she said that the Supreme Court’s decision on the memogate petition was a victory for the country’s establishment. The law was being used to transform the country into a ‘security state’, she said. REFERENCE: Asma refuses to continue as Haqqani’s lawyer

Asma Jahangir discusses memogate investigation

Noted lawyer and human rights activist Asma Jahangir has refused to appear before the judicial commission investigating the memo case as counsel for Mr Husain Haqqani. Ms Jahangir’s decision is a serious expression of no confidence in justice being delivered from either the court or the judicial commission. This has raised some serious questions regarding the superior judiciary. From the very beginning of the memo case, it was obvious that more credence was being given by the court to the military top brass as against the civilians. Ms Jahangir expressed her disappointment with the judgement of the nine-member bench of the Supreme Court (SC) headed by Chief Justice Iftikhar Chaudhry. She termed the judgement as a win for the military establishment, which undermined civilian supremacy: “If nine judges of the SC can be [under the establishment’s influence], then I am sorry to say I cannot have any expectations from the high court judges [heading the judicial commission].” That the court is focused on national security instead of upholding fundamental rights and civilian authority has turned the public’s expectations from the ‘independent’ judiciary into disillusionment. Those who have criticised Ms Jahangir for ‘running away’ from the fight or ‘defeatism’ must remember how hostile the bench was towards the defence counsel. In fact, it seemed like a repetition of Zulfikar Ali Bhutto’s case, where some quarters lamented that Mr Yahya Bakhtiar did not plead Mr Bhutto’s case well, which led to his hanging. This was despite the fact that the judiciary in those days was completely under the army’s thumb and highly biased towards Mr Bhutto. A similar scenario is in the making today in the memo case. Independent courts all over the world do not hear political cases but in Pakistan’s case, as the Human Rights Watch (HRW) has pointed out, “a tendency for the courts to find themselves embroiled in matters that they would not otherwise be an appropriate forum for”. HRW also expressed “concern about the fear of judicial overreach and unwarranted intrusion into the affairs of the legislature and the executive”. Courts should be a forum of justice where citizens go expecting their rights will be protected. Ms Jahangir was not able to get justice for her client despite making a strong legal case about the maintainability of the memo petitions. Now the judiciary’s ability to provide justice hangs in the balance. It would be interesting to see if the findings of the judicial commission are different from that of the parliamentary committee’s investigation. In such an event, whose findings would be considered ‘supreme’ would determine where the real power lies. In principle, parliament is supreme but by hearing the petition on an unsigned memo, and that too when parliament is siezed of the matter, the court has in effect given an impression of ignoring the possible pitfalls ahead. With the success of the lawyers’ movement, it was expected that the judiciary would become truly independent but now the perception is growing that not much has changed. If this trend continues, the issue of civil-military imbalance may not be addressed and democracy remain in the dock. * REFERENCE: EDITORIAL: Whither an independent judiciary? Tuesday, January 03, 2012\01\03\story_3-1-2012_pg3_1

Reality of Lawyers Movement - 1 (Capital Talk 2007)

ISLAMABAD, May 29: The Chief Justice of Pakistan, Justice Iftikhar Muhammad Chaudhry, on Tuesday narrated for the first time his version of the events of of May 9 at the President’s camp office in Rawalpindi. He said in an affidavit that top intelligence officials had constantly pressured him into resigning, and after keeping him confined at the office for over five hours, he was allowed to leave in a flagless car. “I was informed that I have been restrained from acting as the chief justice.” The `non-functional’ chief justice informed the full-bench hearing identical petitions against the presidential reference that since the action of March 9, he had remained a victim of intrusive and not-so-intrusive intelligence and police operation. Justice Iftikhar said his entire house had been bugged, all his activities were being monitored, and `everything and everyone’ in and around his residence was being watched through a listening post set up at the nearby Sindh House. He did not say in the affidavit if he had been summoned to the Army House by President General Pervez Musharraf or whether he had made a request to meet the president. “When I reached the Army House, President Musharraf, wearing military uniform, told him he had received a complaint against him from a judge of the Peshawar High Court.. “I replied that it was not based on facts as my case was decided by a two-member bench and that attempts are being made to maliciously involve the other member of the Bench as well.” After this, the president said there were a few more complaints as well, directing his staff to call the 'other persons'. The 'other persons' entered the room immediately. They were: Prime Minster Shaukat Aziz, the Directors General of Military Intelligence (MI), Director General of Inter Services Intelligence (ISI), Director General Intelligence Bureau (IB), Chief of Staff (COS) and another official. All officials (except the IB chief and the COS) were in uniform. He said Gen Musharraf started reading notes from bits of paper. There was no single consolidated document containing charges against him. Most of the allegations had been taken from the contents of a 'notorious letter' written by Mr Naeem Bukhari. The Chief Justice said he dismissed the accusations as being baseless, having been engineered to defame him and the judiciary. He said President Musharraf insisted on his resignation. The president also said that if he agreed to resign, he would 'accommodate' him. In case of refusal, Gen Musharraf warned him, he would have to face a reference. “I replied: `I will not resign and would face any reference since I am innocent; I have not violated any code of conduct or any law, rule or regulation. I believe that I am the guardian of law. I strongly believe in God." He said the reply angered the president. He left the room in haste along with his military secretary, COS and the prime minister, saying that others would show evidence to him. “The meeting lasted about 30 minutes. The chiefs of the MI, ISI and IB stayed back, but they too did not show him me a single piece of evidence.” In fact, Justice iftikhar said, no official, except the ISI chief, had any document with him. The officials, however, alleged that Justice Iftikhar had used his influence to get his son admitted in Bolan Medical College, Quetta, when he was serving as a judge of the Balochistan High Court. The ISI and MI heads persisted in their demand for resignation, the CJ said. “I refused, saying that the demand has a collateral purpose.” “I was kept there absolutely against my will till 5pm. I was stopped there on one pretext or the other and at one stage was told the president will once again see me. “After 5pm, the MI chief told me `This is a bad day. Now you are taking a separate way and you are informed that you have been restrained from working as a judge of the Supreme Court or the Chief Justice of Pakistan’.” Justice Iftikhar Chaudhry further said when he came out of the room, he was stunned to find that the national flag and the insignia of office were no longer there on his car. “My staff officer later informed me Justice Javed Iqbal has taken oath as Acting Chief Justice and it has been shown on TV. My driver said he had been instructed not to drive the Chief Justice to the Supreme Court.” Justice Iftikhar Chaudhry said while on the way home, he asked the driver to take him to the Supreme Court, but an army official stopped his car near the Sports Complex from proceeding further. In the meantime, an SP, Tariq Masood Yasin, appeared. “He (SP Tariq) ordered the driver to come out of the car so that he (SP) could drive. He also asked his gunman to come out of the car. “I intervened, telling the SP `okay, I will not go to the Supreme Court, but my chauffeur will drive the car and my gunman will escort me home. Only then, did the SP allow the chauffeur to take the steering.” Justice Iftikhar said he reached home at 5.45pm and was shocked to see policemen and agency officials in mufti all over the place. My phones had already been disconnected, cellphones, TV, cables and DSL had been jammed or disconnected. He said he and his family were completely cut off for several days from the outside world. He said by 9pm, all official vehicles in his use, including a Mercedes, had been taken away by means of a lifter. One of the vehicles was returned to him later in the night, but without the key. The next day (March 10), the chief justice recalled, he received a `notice' from the Supreme Judicial Council informing him hereby he came to know that a Reference (No.43/2007) had been filed by the President before the Council. There was also a copy of the Order passed by the Council restraining him to function as a Judge of the Supreme Court or Chief Justice of Pakistan. He said the copy of the Reference had also been appended with the Notice without any annexure or supporting documents for his perusal. Justice Chaudhry said it was also surprising for him to note that the aforesaid reference came up for hearing on March 9, 2007 after 6 pm in indecent haste. Two members of the Council as was evident from news published in an urdu daily on March 10, 2007, had been flown to Islamabad in special flights, from Lahore and Karachi simply to participate in a meeting of the Council. In fact, no meeting had been called by the Secretary of the Council namely Mr Faqir Hussain. No one had issued either agenda for the meeting or notice thereof. He said the Council, rather than merely scrutinizing the material, if at all and serving notice on him (without prejudice to his rights and interests as averred in the titled petition), went ahead and passed an order very detrimental to his interests as well as the interests of the institution. He said he was restrained to perform his functions as a Judge of the Supreme Court Judge and or Chief Justice of Pakistan. He said that he had been detained along with his family members including his infant child of seven years from the evening of March 9, 2007 till March 13. He had to walk till the other end of the road when the police officer confronted him and manhandled him as has now been established by a judicial enquiry.He said the Supreme Court staff attached to him was reportedly missing and had been kept at an unknown place. An attempt was being made to fabricate the evidence through them by coercive means against him. Even other employees working at his residence were taken and made to appear before some agency officials. They were released after 2/3 days. He said the grocery man was not allowed to go to Šcollect grocery; he was made to wait till an agency official accompanied him to the market and back. He said his chamber was sealed and certain files laying therein were removed and some of them had been handed over to the ISI under the supervision of the newly appointed Registrar.He said such an act was contrary to all norms and practices of judiciary and being the CJP, he was entitled to occupy his chamber along with his staff. He said on account of deployment of heavy contingents, no one was allowed to meet him freely, in as much as his colleagues were not allowed access to meet him. Even a retired judge of the Apex Court Mr Justice (R) Munir A Sheikh was not allowed to meet him. He said he was not all alone to suffer this agony. Even his children were not allowed to go to school, college and university. He said he and his family members were deprived of basic amenities of life, including medicines and doctors, etc.He said even when ordered by the Council, he was deprived of the assistance of his counsel to seek legal assistance regarding legal and factual issues involved in the reference. He said he and his family have been made to go through a lot of mental, physical and emotional agony, torture and embarrassment and words could never be enough to properly and adequately express that. He said all these tactics were used to put pressurise him to resign from the office of the Chief Justice of Pakistan. But after March 13, 2007 when he succeeded in establishing at least some contact with his lawyers team during a brief appearance before the Council and after March 16, 2007, the on going pressure to 'resign the office' was released to some extent. He said he believed that his entire house has been bugged and at the Sindh House which is located right opposite the residence of the deponent, the officials of the agencies other than police have established a place therein to keep an eye on those who come and visit him. He said his children were so scared that they could not go to school or university. "As a result, one of my daughters failed to appear in her exams (1st year, Federal Board) whereas my other daughter who is a student of Bahria university is not being allowed to take her examination (1st semester) due to lack of attendance in internal studies. My younger son is also not in a position to attend his school because of circumstances through which I am passing". Though the affidavit did not say the Chief Justice was summoned to the Army House, the lead counsel for the Chief Justice Barrister Aitzaz Ahsan who concluded his arguments on maintainability of the petition challenging the reference against CJ, before a 13 member bench of the Court headed by Justice Khalilur Rahman Ramday said he had evidence that the Chief ŠJustice was summoned to the Army House. He said he will prove that the respondent side was telling lies before the Court.He said President General Pervez Musharraf must be impleaded as an essential party in the case.Justice Faqir Muhammad Khokar asked how can a referring authority be made a party in the case. Aitzaz Ahsan replied that he should acted like a post office as a referring authority, but he summoned the Chief Justice, pressurized him to resign and punished him for the refusal by filing a reference against him before the Supreme Judicial Council with malafide intention. He said there were precedences of President being made a party in Farooq Leghari, Benazir Bhutto, Nawaz Sharif and Aftab Khan Sherpao cases. “This is a case of the Chief Justice of Pakistan and the President must be impleeded as a party”, he submitted. He said under Islamic jurisprudence also, the rulers were answerable to the courts. He cited various judgments passed by superior courts in Pakistan as well as India to build his argument that the immunity to the President under Article 248 against judicial proceedings would not apply in this case and it was open for judicial review by the Court. REFERENCE: CJ says chiefs of MI, ISI asked him to quit: Affidavit on March 9 camp office event By Iftikhar A. Khan May 30, 2007 Wednesday Jamadi-ul-Awwal 13, 1428

Reality of Lawyers Movement - 2 (Capital Talk 2007)

Reality of Lawyers Movement - 3 (Capital Talk 2007)

LAHORE: Judges of the higher judiciary are making up their minds about cases after reading newspaper headlines and watching TV shows, former president Supreme Court Bar Association (SCBA) Ali Ahmed Kurd said on Tuesday. Describing the present situation as “justice hurry and justice worry”, Kurd deplored the fact that the judges were visiting and addressing the bars and said they would have to “prove themselves worthy of their positions”. According to Kurd, judges in the United States neither read newspapers nor watched TV programmes, but focused only on their work. – ISLAMABAD: Ali Ahmed Kurd, the firebrand leader of the lawyers’ movement and former president of the Supreme Court Bar Association, who has been keeping quiet for quite some time, surprised a lot of people on Tuesday with his blunt criticism of the way the Supreme Court was behaving. Judges should “behave like judges”, he said. Speaking during a talk show on “Challenges facing the judiciary”, he said that people had reservations about the verdict handed down by the Supreme Court on petitions challenging the National Reconciliation Ordinance.According to him, the judgment appeared to be based on newspaper headlines and talk shows of private TV channels. REFERENCE: Kurd unhappy over SC verdict on NRO By Iftikhar A. Khan Wednesday, 23 Dec, 2009 Judges deciding cases on media lines: Kurd Daily Times Monitor Wednesday, December 23, 2009\12\23\story_23-12-2009_pg7_12 
Lawyers Movement & Chief Justice Case - 1 (Capital Talk 2007)

Husain Haqqani was forced to resign as ambassador late last year after a Pakistani-American businessman claimed he had passed on a memo on behalf of President Asif Ali Zardari pleading for US help to oust its army chiefs. The memo was allegedly sent to the United States then Joint Chiefs of Staff, Admiral Mike Mullen, via former National Security Advisor General James Jones. Both President Zardari and Mr Haqqani have denied the claims. Pakistan's Chief of Army Staff Gen Ashfaq Parvez Kayani and the intelligence director Lt-Gen Ahmad Shuja Pasha have encouraged the establishment of a judicial inquiry into the allegations. The developing confrontation between Pakistan's civilian and military leaderships has triggered warnings of a coup against the Pakistan People's Party-led democratic government and fueled rumours that President Zardari may yet flee the country. The extent of mutual suspicion between the military and political leaderships was exposed by Asma Jahangir, who told The Daily Telegraph Mr Haqqani was too afraid to leave the prime minister's house to meet her in her office. Instead she was forced to obtain a court order to allow him to visit her at the Supreme Court under a heavy police guard. Miss Jahangir accused the judges of the Supreme Court of falling under the influence of the country's army chief after it established a judicial commission to establish whether Mr Haqqani had violated the constitution by seeking to colluded with a foreign power against state officials. An investigation into the allegations had already been announced by the country's National Assembly, but Nawaz Shartif, the opposition leader and former prime minister, appealed to the Supreme Court for a separate judicial inquiry. Mr Haqqani's lawyer Asma Jahangir last night said she will not represent him in the inquiry because she believes the judges are acting under the influence of the military establishment. "They've set up a commission not to probe what is there already but to go further and create more evidence the case is stacked against Haqqani, of course," she said. "He would not come to see me at my office in Islamabad. The only place I could meet him was at the [prime minister's] house. I refused to take his affidavit unless we were face to face and in a place where I was certain no-one was watching us," she said. Former senior Pakistan Army officer Lt-Gen Talat Masood said the military had already achieved its objectives when Mr Haqqani was forced to resign, but it remains determined that the truth be established, regardless of the political fall-out. "They want to see whether it was done at the individual level or whether it had the blessing of anyone in the presidency. Whatever the political consequences, they still think it's worth it," he said. REFERENCE: Husain Haqqani 'too afraid to leave Pakistan prime minister's house' Pakistan's former ambassador to Washington was sheltering on Monday night in the prime minister's official Islamabad residence as his lawyer accused the judicary and military of conspiring against the ex-official. By Dean Nelson, New Delhi and Javed Siddiq5:31PM GMT 02 Jan 2012

Lawyers Movement & Chief Justice Case - 2 (Capital Talk 2007)

THE FIRST time I ever traveled to Pakistan — in December of 2001 — I was quickly introduced to that country’s fondness for conspiracy theories and its deep mistrust of the United States. Over a delicious dinner of rice and lamb, an elected Pakistani official informed me that the United States had perpetrated the 9/11 attack on its own people. My fork stopped mid-air. “Why would they do that?’’ I asked. “To get their hands on Afghanistan, of course.’’ So the alliance between the United States and Pakistan in the so-called war on terror was always bound to be, shall we say, rocky. Ten years later, this forced marriage of convenience has been going through a nasty divorce. A string of unfortunate incidents have confirmed Pakistan’s view that Americans are up to no good: A CIA contractor shot two Pakistani men in Lahore. The United States swept in and killed Osama bin Laden - publicly humiliating Pakistan’s army. A November air strike killed 26 Pakistani soldiers - an accident for which President Obama has not seen fit to personally apologize. Perhaps the most foreboding sign of chilly relations has been the public allegations against Husain Haqqani, a Boston University professor who served as Pakistan’s ambassador to the United States. Haqqani has been virtually accused of treason for allegedly authoring a secret memo to the Americans that offers more transparency in Pakistan’s nuclear program, a stronger hand against militant groups, and an investigation into which Pakistani military officials knew about bin Laden’s hideout. In short, the memo offers to give the Americans pretty much everything they want. In return, Haqqani is accused of asking for one thing: protection for Pakistan’s weak elected government from Pakistan’s military, which has staged three coups and ruled for half of the country’s 64 years of existence. You might think that an effort to protect an elected government from a coup might elicit praise from the public. Not in Pakistan. The rumor that Haqqani asked for American help has sparked such outrage that Haqqani — a tenacious survivor of numerous political battles — was forced to resign. He has been called everything from a traitor to an American sell-out. Now Pakistan’s Supreme Court has appointed a three-judge committee to investigate whether Haqqani did indeed author the memo — a charge he strenuously denies. If Haqqani — and his former boss, Pakistan’s president Asif Ali Zardari - are proven to be behind the memo, Zardari could be forced out. Haqqani could have shied away from this trouble and returned to Boston, where a job awaits him at BU, and settled back into a quiet life. Instead, he flew to Pakistan to fight the charges. Today, he is holed up in the prime minister’s guest annex, with extra security to protect him from assassination. He isn’t allowed to leave Pakistan without the court’s permission. “It is an intense and scary time,’’ says Asma Jehangir, a human rights lawyer representing Haqqani in court. Haqqani’s political survival rests on his ability to convince the Pakistani public that he didn’t write a one-page, unsigned memo. The only evidence that he did comes from a Pakistani-American businessman named Mansoor Ijaz, who sent the memo to Admiral Mike Mullen but claims Haqqani dictated it. Ijaz, who revealed the memo’s existence in an op-ed to the Financial Times, has a history of sensational claims. During the Iraq war, he claimed to have knowledge of an impending chemical weapons attack. During the hunt for bin Laden, he gave detailed descriptions of his hide-out. During the diplomatic frenzy to prevent Iran from obtaining a nuclear weapon, Ijaz announced that Iran already has one. Now Pakistan is abuzz with delicious conspiracy theories about Ijaz and why he would try to ruin his former friend. Maybe he is a Trojan Horse, sent by the army to try to topple Zardari. Or maybe he is an American spy. Pakistan loves conspiracy theories so much that Haqqani might yet survive this scandal. I wish I could say the same for US-Pakistani relations. REFERENCE: Political survival test for BU’s Haqqani FARAH STOCKMAN January 03, 2012|By Farah Stockman

Lawyers Movement & Chief Justice Case - 3 (Capital Talk 2007)

When U.S. President Barack Obama sharply challenged a recent Supreme Court decision in his State of the Union address, prompting a soto voce rejoinder from Justice Samuel Alito, nobody was concerned that the contretemps would spark a blood feud between the judiciary and the executive. The notion that judges could or would work to undermine a sitting U.S. president is fundamentally alien to America's constitutional system and political culture. Unfortunately, this is not the case in Pakistan.Supreme Court Chief Justice Iftikhar Mohammed Chaudhry, the country's erstwhile hero, is the leading culprit in an unfolding constitutional drama. It was Mr. Chaudhry's dismissal by then-President Pervez Musharraf in 2007 that triggered street protests by lawyers and judges under the twin banners of democracy and judicial independence. This effort eventually led to Mr. Musharraf's resignation in 2008. Yet it is now Mr. Chaudhry himself who is violating those principles, having evidently embarked on a campaign to undermine and perhaps even oust President Asif Ali Zardari. Any involvement in politics by a sitting judge, not to mention a chief justice, is utterly inconsistent with an independent judiciary's proper role. What is even worse, Chief Justice Chaudhry has been using the court to advance his anti-Zardari campaign. Two recent court actions are emblematic of this effort. The first is a decision by the Supreme Court, announced and effective last December, to overturn the "National Reconciliation Ordinance." The NRO, which was decreed in October 2007, granted amnesty to more than 8,000 members from all political parties who had been accused of corruption in the media and some of whom had pending indictments. While some of these people are probably corrupt, many are not and, in any case, politically inspired prosecutions have long been a bane of Pakistan's democracy. The decree is similar to actions taken by many other fledgling democracies, such as post-apartheid South Africa, to promote national reconciliation. It was negotiated with the assistance of the United States and was a key element in Pakistan's transition from a military dictatorship to democracy. Chief Justice Chaudhry's decision to overturn the NRO, opening the door to prosecute President Zardari and all members of his cabinet, was bad enough. But the way he did it was even worse. Much to the dismay of many of the brave lawyers who took to the streets to defend the court's integrity last year, Mr. Chaudhry's anti-NRO opinion also blessed a highly troubling article of Pakistan's Constitution—Article 62. This Article, written in 1985, declared that members of parliament are disqualified from serving if they are not of "good character," if they violate "Islamic injunctions," do not practice "teachings and practices, obligatory duties prescribed by Islam," and if they are not "sagacious, righteous and non-profligate." For non-Muslims, the Article requires that they have "a good moral reputation." Putting aside the fact that Article 62 was promulgated by Pakistan's then ruling military dictator, General Zia ul-Haq, relying on religion-based standards as "Islamic injunctions" or inherently subjective criteria as "good moral reputation" thrusts thePakistani Supreme Court into an essentially religious domain, not unlike Iranian Sharia-based courts. This behavior is profoundly ill-suited for any secular court. While Article 62 was not formally repealed, it was discredited and in effect, a dead letter. The fact that the petitioner in the NRO case sought only to challenge the decree based on the nondiscrimination clause of the Pakistani Constitution and did not mention Article 62 makes the court's invocation of it even more repugnant. Meanwhile, the decision's lengthy recitations of religious literature and poetry, rather than reliance on legal precedent, further pulls the judiciary from its proper constitutional moorings. The second anti-Zardari effort occurred just a few days ago, when the court blocked a slate of the president's judicial appointments. The court's three-Justice panel justified the move by alleging the president failed to "consult" with Mr. Chaudhry. This constitutional excuse has never been used before. It is well-known in Islamabad that Mr. Zardari's real sin was political, as he dared to appoint people unacceptable to the chief justice. Since consultation is not approval, Mr. Chaudhry's position appears to be legally untenable. Yet Mr. Zardari, faced with demonstrations and media attacks, let Mr. Chaudhry choose a Supreme Court justice. There is no doubt that the chief justice is more popular these days than the president, who has been weakened by the split in the political coalition which brought down Mr. Musharraf. Former Prime Minister Nawaz Sharif is now a leading opponent of the regime. There is a strong sense among the Pakistani elites that Justice Chaudhry has become Mr. Sharif's key ally. The fact that Mr. Chaudhry was a victim of an improper effort by former President Musharraf to replace him with a more pliant judge makes his current posture all the more deplorable. His conduct has led some of his erstwhile allies to criticize him and speak of the danger to democracy posted by judicial meddling in politics. The stakes are stark indeed. If Mr. Chaudhry succeeds in ousting Mr. Zardari, Pakistan's fledgling democracy would be undermined and the judiciary's own legitimacy would be irrevocably damaged. Rule by unaccountable judges is no better than rule by the generals. REFERENCE: Judicial Coup in Pakistan - Once a democratic champion, the Chief Justice now undermines the elected government. by DAVID B. RIVKIN JR. AND LEE A. CASEY FEBRUARY 23, 2010, 7:51 P.M. ET  Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan andGeorge H.W. Bush administrations.

Lawyers Movement & Chief Justice Case - 4 (Capital Talk 2007)

To his supporters, and there are many, Pakistan's Supreme Court Chief Justice Iftikhar Chaudhry is a hero, a man of honor who stood up for an independent judiciary and defied the diktats of former President Pervez Musharraf — and who continues to hold the political establishment accountable. To his detractors, however, Chaudhry is an activist jurist with unbridled powers, a populist with grandiose political ambitions. In a country where politics can get very personal, the Chief Justice's relationships with the pillars of civilian and military power, President Asif Ali Zardari and Army Chief of Staff General Ashfaq Kayani respectively, could be important in shaping Pakistan's transition from de facto military rule to civilian democracy. And those relationships are likely to be tested in the tussle over a package of wide-ranging constitutional reforms that was due to be introduced to parliament on Friday, whose purpose is to reverse changes made by previous military rulers, trim the power of the presidency, and alter the procedure for Supreme Court appointments. The bill would take Supreme Court appointments out of the hands of the president, who now makes nominations after consulting with the chief justice, and place them before a government legal committee that also includes several justices. Unlike the present system, judges would have to be confirmed by a parliamentary vote. The proposed reforms have widened the rift between Chaudhry and the government that has grown since the Chief Justice last year struck down amnesty decrees by Musharraf that protected many senior figures in government — including Zardari himself once out of office — from prosecution on corruption charges. And some saw the Chief Justice's hand in the eleventh-hour stalling of parliamentary debate on the package on Friday by opposition leader Nawaz Sharif, who objected to proposals on the selection of judges. Sharif's opposition, some senior politicians suggest, results from being pressured by Chaudhry, who is allegedly opposed to having his own power in the selection of judges curtailed. "The chief justice threatened [Sharif]. He said he'd open up all cases against him," a senior leader of the ruling Pakistan People's Party said on condition of anonymity. "He's become an absolute dictator." On the contrary, says a legal expert at the Supreme Court and Chaudhry associate speaking on condition of anonymity, the conflict is caused by the "government [wanting] a chief justice and court which is compliant, not independent." The standoff over how judges are selected could have far-reaching implications in a political order feeling its way towards democracy, with the different branches of government are "attempting to first stretch the bounds of their authority and second, to learn how to work with each other," says Samina Ahmed, Pakistan director for the International Crisis Group, a global policy-research center. "The problem in Pakistan has [historically] been with the military's intervention, transitions have been disrupted, and the judiciary in the past has supported every military intervention." But as the two civilian branches of government tussle over their powers, neither appears to have clear backing from the military, whose preferences are often decisive. Still, some Pakistani media commentators suggest that the generals may be colluding with the judges to limit the power of government, already groaning under the weight of the president's sagging popularity. They point to a stalled but soon-to-be-reopened Supreme Court case that accuses intelligence agencies of using the "war on terror" as a pretext to secretly detain thousands of citizens suspected of links to Baluchi separatists and other radical groups. The local Dawn newspaper reported last month that Supreme Court Justice Javed Iqbal said that the court "would not like to create the impression that it was out to destroy or tarnish the image of intelligence agencies" with regard to these cases. Chaudhry had in 2007 begun to investigate the issue of Pakistanis alleged to have disappeared into secret custody before he was deposed by Musharraf, and had ordered members of the security forces to produce several of the missing in court. Now, some media commentators are suggesting that Chaudhry is retreating from that fight. Chaudhry's supporters deny the claim, and say that the court will not shy away from prosecuting any security officials who have broken the law. Whatever the outcome of the particular battles over constitutional powers and various court cases, what remains clear is that Justice Chaudhry, while holding an office that is ostensibly above politics, will remain in the thick of it. REFERENCE: Pakistan's Chief Justice Takes on its Political Class By Rania Abouzeid / Islamabad Saturday, Mar. 27, 2010,8599,1975646,00.html

No comments: