Sunday, June 24, 2012

The Ayatollah, Dictatorship & Judiciary.

General Ziaul Haq offering prayers behind Khomeini - "QUOTE" Quotes from just after the Islamic Revolution in 1979: "The mullahs are going to rule now. We are going to have ten thousand years of the Islamic republic. The Marxists are going to go on with their Lenin. We are going to go on in the way of Khomeini." Ayatollah Khalkhali ---- "What he [Stalin] did in Russia we have to do in Iran. We, too, have to do a lot of killing. A lot." Behzad, Iranian interpreter for Western journalist V.S. Naipaul ----- "I inform the proud Muslim people of the world that the author of the Satanic Verses book which is against Islam, the Prophet and the Koran, and all involved in its publication who were aware of its content, are sentenced to death."Ayatollah Ruhollah Khomeini FATWA issued February, 1989 against Salman Rushdie "The mullahs are going to rule now. We are going to have ten thousand years of the Islamic republic. The Marxists are going to go on with their Lenin. We are going to go on in the way of Khomeini." Ayatollah Khalkhali ---- "--- "There is no room for play in Islam... It is deadly serious about everything." Ayatollah Ruhollah Khomeini Speech at Qum, reported in Time magazine January 7, 1980 "UNQUOTE" 

On Wednesday October 24, 2007, Mr. Justice Khalil-ur-Rehman Ramday remarked during the course of hearing of the petition against the eligibility of General Musharraf’s nomination as a presidential candidate, “I am not ashamed if I had taken the oath under the PCO,” “We have made our country, its institutions and the Constitution a matter of laughing stock in the world.” Perhaps he has forgotten General Zia’s famous remark, “Constitution is a book containing 12-13 pages and I can tear it apart whenever I feel like it.” Justice Ramday further said that whatever ‘burble and verbal jugglery’ might be behind the changes made since 1977 in the Constitution, the country had been ruled under the Constitution. If the judge has indeed made these remarks, people should take a serious note. First, the wisdom of the judges making highly controversial political remarks in one of the most important cases of Pakistan’s history, or even otherwise, is seriously questionable and debateable. It is a time honored best practice that judges should speak through their decisions. Leaving that aside, to assert that Pakistan has been ruled under a constitution since 1977 is a joke with the people of Pakistan, an insult to their intelligence, a travesty of justice and a distortion of history. From 1977 to 1988, Pakistan was ruled by a military dictator who did not hesitate to flog his political opponents and journalists under military regulations [On the left: a couple of pictures from that dark period of Pakistan's history]. The view expressed by Justice Ramday, and it is no more than that, similar to views of the likes of – Justice Munir, that stooge of the military dictators, Sharifuddin Pirzada, unsrupulous judges like the Former Chief Justice Nasim Hasan Shah, yes-man judges like the present attorney general Justice (retired) Malik Qayyum – belongs to the dustbin of history. And yes PCO is and was a violation of article (6) of the constitution and judges should at least have the moral courage and humility to admit that they too are ordinary mortals and too meek to resist the force of gun. And by the way, Justice Javed Iqbal should stop giving remarks like “these” people (critics) know nothing or do not know the basics of the law because many of the critics (e.g. Justice Fakhruddin G. Ibrahim) in this country are better qualified and better educated than Justice Iqbal (with due apologies) is. Since he had made this sort of remark on more than one occassion, a comment had become unavoidable. It is symptomatic of a general decline and degeneration of institutions under military or quasi-military regimes that some quite medicore people have risen to senior positions in all branches of the government and the talented and the better ones have opted to work outside the government due to pervasive corruption, low compensation, and a complete lack of meritocracy. REFERENCE: I am not ashamed if I had taken the oath under the PCO: Justice Ramday October 26, 2007 By Editor

Article (6) of the constitution 6. (1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason. (2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason.

CJ Iftikhar Muhammad Chaudhry also Violated Constitution (Frontline Express News)

ISLAMABAD: Parliament cannot adopt a law that is repugnant either to the Constitution, Islamic injunctions or fundamental rights and if it does so, the action will be open to judicial review, Chief Justice Iftikhar Muhammad Chaudhry said on Saturday. The chief justice told a 50-member delegation of a mock Youth Parliament that an underlying objective of judicial review was to check abuse of power by public functionaries and to ensure fair treatment to all citizens in accordance with law and constitutional norms. He said the Supreme Court, through its judgments, had stressed the need for adherence to law and the Constitution in order to bring about civilised governance in the country. “Law applies to all, irrespective of their status, power, caste, creed and religion. No one can claim supremacy over and above the law,” Justice Chaudhry observed. Talking about trichotomy of powers, the chief justice said: “The Constitution is a complete document which answers all questions. Every organ of the state enjoys complete institutional independence within its constitutional domain. However, any excess or misuse of power beyond that domain becomes the subject matter of judicial scrutiny.” The judicial institution of the state with the Supreme Court as the final arbiter acts as the ultimate protector of citizens’ rights and upholder of constitutional supremacy. The Supreme Court enjoys original, appellate and advisory jurisdiction, he said. The advisory jurisdiction of the Supreme Court extends to matters referred to it by the President for obtaining its opinion on any question of law which he considers of public importance, the Chief Justice added. In 2005, the Supreme Court while deciding a presidential reference made under Article 186 of the Constitution declared certain provisions of the North-West Frontier Province Hasba Bill as null and void, he recalled. Likewise, he added, the Supreme Court, to the exclusion of any other court, had the jurisdiction to pronounce declaratory judgments in any dispute between the federal government and a provincial government or between any two or more provincial governments under Article 184(1). Justice Iftikhar Chaudhry said where any question of public importance arose with reference to the enforcement of any of fundamental right, the Supreme Court has the power to issue an order for enforcement of these rights. The chief justice said: “Youth being a crucial segment of society forms the basis for future development, and you are also face and future of nation. I am hopeful that ambitious and zealous young people of today will prove to be the true leaders of democracy in future.” Giving a piece of advice to members of the delegation, he said: “As you are young and have to set a future roadmap for democratic rule and harmony in Pakistan, I would like to advise all of you to study the basic features of our Constitution and also how the document has been interpreted by courts so as to acquaint yourselves with constitutional history and the role of superior courts in protecting fundamental rights and the constitutional development of Pakistan”. Senator S.M. Zafar and Wazir Ahmed Jogezai, a former deputy speaker of the National Assembly, accompanied the delegation. REFERENCE: Parliament can’t make laws repugnant to Constitution: CJ Iftikhar A. Khan

Judicial Dictatorship & Lawyers - Part - 1 (GEO 22 Dec 2009)

Pakistan's Supreme Court has gone overboard - It has no right to dismiss a Prime Minister or overrule the constitutional immunity given to the President --- When I was I was a student of law at Allahabad University, I had read of the British Constitutional principle ‘The King can do no wrong’. At that time I did not understand the significance of this principle and what it really meant. It was much later, when I was in law practice in the Allahabad High Court, that I understood its real significance. The British were experienced and able administrators. They realized from their own long, historical experience that while everybody should be legally liable for his wrongs and made to face court proceedings for the same, the person at the apex of the whole constitutional system must be given total immunity from criminal proceedings, otherwise the system could not function. Hence the King of England must be given total immunity from criminal proceedings. Even if he commits murder, dacoity, theft, or some other crime, the King cannot be dragged to court and made to face a trial. One may ask why should the King be given this immunity when others are not? The answer is that in the practical world one does not deal with absolutes. The British were one of the most far sighted administrators the world has known. They realized that if the King is made to stand on the witness box or sent to jail, the system could not function. A stage is reached at the highest level of the system where total immunity to the person at the top has to be granted. This is the only practical view. Following this principle in British constitutional law, almost every Constitution in the world has incorporated a provision giving total immunity to Presidents and Governors from criminal prosecution. Thus, Section 248(2) of the Pakistani Constitution states:

“No criminal proceedings whatsoever shall be instituted or continued against the President or Governor in any Court during his term of office.” The language of the above provision is clear, and it is a settled principle of interpretation that when the language of a provision is clear the court should not twist or amend its language in the garb of interpretation, but read it as it is.

I therefore fail to understand how proceedings on corruption charges (which are clearly of a criminal nature) can be instituted or continued against the Pakistani President. Moreover, how can the court remove a Prime Minister? This is unheard of in a democracy. The Prime Minister holds office as long he has the confidence of Parliament, not the confidence of the Supreme Court.
I regret to say that the Pakistani Supreme Court, particularly its Chief Justice, has been showing utter lack of restraint. This is not expected of superior courts. In fact the court and its Chief Justice have been playing to the galleries for long. It has clearly gone overboard and flouted all canons of constitutional jurisprudence. The Constitution establishes a delicate balance of power, and each of the three organs of the state -- the legislature, the executive and the judiciary – must respect each other and not encroach into each other’s domain, otherwise the system cannot function. It seems to me that the Pakistani Supreme Court has lost its balance and gone berserk. If it does not now come to its senses I am afraid the day is not far off when the Constitution will collapse, and the blame will squarely lie with the court, and particularly its Chief Justice. REFERENCE: Pakistan's Supreme Court has gone overboard MARKANDEY KATJU June 21, 2012 (Justice Markandey Katju is a former Judge, Supreme Court of India. He is currently Chairman, Press Council of India)

Perhaps the real question I should ask is, why do I even care? When I took time off from Harvard to be part of the lawyers’ movement I had seen a ray of hope. There were concerned citizens and lawyers who stood for what was right, no matter what the consequences. We fought for a principle and won, with the hope that things will slowly improve. Today the very judges we had faith in released the Lal Masjid cleric whose crimes everyone knows about. If the judiciary was going to release people whose crimes were recorded on TV, perhaps it does explain why the Taliban are growing popular. Having said that, rays of hope like Afzal Khan Lala, who has refused to move from Swat while he is alive, appear every now and then. However, he stands alone in facing the storm. Other than Ayaz Amir, not a single Pakistani leader has spoken out against the Taliban. Will the real leader who can get rid of these monsters stand up, please? Imran Khan? Qazi? Nawaz Sharif? This silence is criminal! What’s worse is that these leaders of ours have unanimously approved a state within a state run, which is not accountable to anyone, absolved the Taliban of all crimes and provided them a safe haven to kill more Pakistanis. The so-called Nizam-e-Adl Regulation was endorsed by the National Assembly without any proper debate. The sad story, friends, is that the Taliban are here, and unless we stand up against them in every possible way, Pakistan will be lost for good. And it will not be lost because of Zardari’s real or perceived corruption or anything else like that, but because of the silence of the lambs – we ALL will be responsible if Pakistan fails. The writer is a student at Harvard University and turned down an award from the US ambassador as a mark of protest against killings of Pakistanis by US drone attacks. The Taliban are here Samad Khurram Monday, April 20, 2009

Rinkle Kumari Award for CJ Iftikhar Muhammad Chaudhry

In 2008, Pakistan Chief Justice Iftikhar Muhammad Chaudhry became the symbol of the lawyers’ movement which toppled an unelected president and brought democracy back to the country. Harvard Law School even presented Mr. Chaudhry with its Medal of Freedom. A new report by the International Commission of Jurists, a Geneva-based nongovernment organization of judges and lawyers, suggests his legacy might be more complicated. The report, released this month and based on a field trip to Pakistan last fall, paints a picture of a judiciary under Mr. Chaudhry that is exercising unusually wide-ranging powers. Pakistan’s judiciary has, during Mr. Chaudhry’s tenure as chief justice, stepped into areas normally reserved for a nation’s government, raising concerns over the balance of power, the report said. It noted that judges in Pakistan are increasingly initiating court proceedings on issues – as opposed to hearing cases brought by plaintiffs. The courts often launch these so-called “suo moto” cases in instances where the government has failed to take action. The report said in some cases this helps to protect the rule of law. It cited an example last year when paramilitary forces were caught on video shooting dead a teenager who was pleading for his life. The Supreme Court ordered senior paramilitary officers removed from their posts within three days and told a state prosecutor to launch an investigation. But in other cases Mr. Chaudhry appears to arbitrarily initiate “suo moto” proceedings based on articles in Pakistani newspapers, the report said. “This introduces a certain element of chance to the practice which is hardly compatible with the rule of law.” REFERENCE: Report Dings Pakistan’s Lawyers and Chief Justice April 20, 2012, 1:38 PM IST 
ICJ Mission to Pakistan Pakistan Mission Report 30 March 2012

Judicial Dictatorship & Lawyers - Part - 2 (GEO 22 Dec 2009)

In the past, Pakistan's supreme court has hanged an elected prime minister on trumped-up charges, sentenced another to life imprisonment and forced several career politicians into exile. So the disqualification of the prime minister, Yousuf Raza Gilani, on contempt-of-court charges should be seen as a step forward. Nobody died, right? The Pakistan Peoples' party and its coalition partners now have another prime minister in the shape of Raja Pervez Ashraf. Pakistan's supreme court will thump its chest and say we have proved that the law is the same for a commoner and a king. Pakistan's all-powerful army will say: look, no hands. So why are Pakistan's human rights activists calling it a judicial coup and warning us that the whole democratic facade is about to be pulled down? Political decisions used to be made in the Pakistani army's HQ. But the action has shifted to court one of the supreme court, in full view of the public, with judgments framed and delivered like soundbites for the primetime news.

Since being restored to his job after being sacked by President Musharraf in 2009, the chief justice, Iftikhar Chaudhry, has been betraying an evangelical streak in his pronouncements. Maybe he feels that, with a country full of self-righteous zealots, he needs to adapt their tone. Or perhaps he is one. He doesn't wait for the petitioners to come to the court, he watches TV and acts on his own cognizance. Even the half of Pakistan that can't read or write will tell you what a suo motu is. We have already been quoted Khalil Jibran and the Persian poet Hafiz, and, it seems, a verse from the Qur'an or a hadith is only ever a suo motu notice away. When the chief justice took suo motu notice of allegations of his own son's corruption he turned up in court waving a copy of the Qur'an and insinuating comparisons with himself and the second caliph, Umar. Last year the chief justice took suo motu notice against the country's most famous television actress for possessing a bottle of wine. Elsewhere, one of his sidekicks wondered aloud that if one day Pakistan's parliament were to legalise gay marriages, would the supreme court sit quietly and watch?

This court is not as much in love with the rule of law as with the sound of its own sermonising voice. It has also mastered the art of selective justice. The same supreme court that has been sitting on an ISI corruption case for 15 years, the same judiciary that can't look a retired general in the eye or force a serving colonel to appear in court, feels it perfectly constitutional to send a unanimously elected prime minister home. There are not many tears being shed over Gilani. Looking at his record, many would say that he should have stayed home in the first place. But what is the point of clamouring for democracy if we can't elect imperfect people – slightly less competent and way more corrupt than our average traffic cop – to lead us?

There are many ways of getting rid of a prime minister (though the old-fashioned way of voting them out has never been tried in Pakistan) but no simple way of telling the country's highest judge, restored to his job as a result of a popular movement, that he has begun to sound like that dictator who sent him home. In Pakistan, generals often confuse access to private golf courses with the country's security. Senior bureaucrats consider it their right to name roads and villages after their grandfathers. Mullahs always fall back on God to justify their greed. Political leaders believe that democracy makes it mandatory to groom sons and daughters to take over their political parties. It's not surprising that senior judges have started to believe that respect for them is the same thing as respect for the rule of law.

Pakistanis are being forced to choose between Gilani's right to rule without doing a thing for his people, and a supreme court judge's right to send him home. And people are refusing to choose. For a few days the country lacked a prime minister and a cabinet. And nobody really missed them. The alarm being raised by pro-democracy people in Pakistan is that the whole system is about to be derailed. The supreme court's reckless pursuit of government politicians could pave the way for a caretaker setup that will suit the military establishment. The military, indeed, sulking after a series of humiliations at home and abroad, is watching from the sidelines. Some would say it's even gloating at the prospect of civilian institutions cutting each other down to size, traditionally its job. There was a time in Pakistan when people joked: why hire a lawyer when you can buy a judge? Now you can't buy them because they are too busy shopping for a place in history. REFERENCE: Yousuf Raza Gilani's sacking is bad news for Pakistan Pakistan's judiciary is starting to care less for the rule of law than the sound of its own sermonising voice. Which suits the military BY Mohammed Hanif Friday 22 June 2012 19.00 BST

Judicial Dictatorship & Lawyers - Part - 3 (GEO 22 Dec 2009)

(Reuters) - To his admirers, Pakistan's Chief Justice Iftikhar Chaudhry is a hero whose relentless pursuit of a money-laundering case against the president is teaching a generation of the country's leaders a long-overdue lesson in respect for the law. To his critics, he is a runaway judge in the grip of a messiah complex whose turbo-charged brand of activism threatens to upend the power balance underpinning Pakistan's precarious embrace of democracy. Last week, Chaudhry made his boldest move yet by disqualifying prime minister Yusuf Raza Gilani as punishment for his repeated refusal to obey court orders to re-activate a corruption case against President Asif Ali Zardari. Gilani's downfall marked a watershed in a long-running showdown between the judiciary and the government that has laid bare the institutional tensions plaguing a country that has test fired ballistic nuclear missiles, but has yet to agree on how it should be run. "In practical terms, democracy is finished because the balance of power between the parliament, the executive and the judiciary has been ruined," said a senior member of Zardari's ruling Pakistan People's Party (PPP). The military, which has ruled Pakistan for about half of its 65 years as an independent nation, has also not hidden its disdain of Zardari's government, but has made it clear it does not wish to seize power. And it has its own problems with Chaudhry's activism. The drama has been spiced by allegations of bribe-taking brought against Chaudhry's son by a billionaire property developer, who has himself been accused of land-grabbing and fraud. The controversy briefly put the stern-faced judge on the defensive before he regained the initiative by disqualifying Gilani.

The next chapter in the saga could start as early as Wednesday, when the Supreme Court holds its latest hearing in more than two years of legal wrangling aimed at forcing the government to re-open proceedings against Zardari. Pakistan's political class is now transfixed by the question of whether Chaudhry will opt to pause in the wake of his victory over Gilani, or press home his advantage by demanding that Raja Pervez Ashraf, the new prime minister, re-activate the case. Zardari, a consummate political survivor, has already sacrificed Gilani in his determination to ensure the money-laundering case, which falls under Swiss jurisdiction and dates back the 1990s, remains closed. While many Pakistanis are happy to see his unpopular government on the ropes, the pugnacious chief justice is facing a growing backlash from those who fear his court-room victories are being bought at the price of Pakistan's stability. "We all have a problem with corruption, we all want these guys taken to task," said Mehreen Zahra-Malik, a columnist with The News. "But I don't think it should be at the expense of the entire house falling apart." Opposition parties have exploited the crisis to pile pressure on Zardari, raising the risk that the government might be forced to call general elections before its term expires in March.

Whatever the president may decide, the stage is set for a new bout of institutional gridlock at a time when Pakistani needs agile leadership to face a host of challenges, from a chronic power crisis to Islamist militancy and tense relations with Washington. The source of Chaudhry's zeal is to be found in one of the more turbulent episodes in Pakistan's recent history, according to lawyers and commentators who have tracked his ascent. Appointed in 2005, Chaudhry became embroiled in a confrontation with Pervez Musharraf, then Pakistan's military leader, who removed him from office after he opposed plans to extend the general's term in office. Huge crowds poured onto the streets to support Chaudhry's stand against the generals. Zardari's government, which took power in 2008, was forced to re-instate him the following year after an outpouring of street protests by lawyers. The heady victory seems to have shaped the judge's self-image as a champion sent to right the wrongs inflicted on ordinary Pakistanis by a self-serving elite and an over-privileged military.

He has since used his powers to investigate everything from petrol and sugar prices to cases of people whose relatives say they have been abducted by Pakistan's intelligence services. The judge's eagerness to rewrite the rules of Pakistan's power game have won him support among those who see the judiciary as the only realistic hope of holding their leaders to account. Zardari's choice of Ashraf as prime minister may only reinforce Pakistanis' sense of despair in their government. As a former power minister, many Pakistanis hold Ashraf partly responsible for the chronic electricity shortages that triggered a fresh bout of violent protests last week. But Chaudhry, too, has got his fair share of criticism. Some say the decision to disqualify Gilani smacks of a grudge match cheered on by his allies in Pakistan's boisterous media. Legal experts have questioned whether Chaudhry may have exceeded his powers by ousting the prime minister, arguing that there were other options available to resolve the stand-off with Zardari's government. "It's my impression that the judgments are highly politicized," said Asma Jahangir, a respected human rights lawyer. "The populist approach of the chief justice will destabilize the democratic process." The ruling PPP believes Chaudhry is deliberately fast-tracking corruption proceedings against its members, while leaving cases against opposition politicians to gather dust.

The media frenzy triggered by Gilani's ouster also eclipsed a sub-plot that had, days earlier, put Chaudhry in the spotlight over allegations that his son had accepted huge bribes from Malik Riaz, a business magnate. Malik Riaz said he had given almost $3.6 million in bribes to Arsalan Iftikhar, the chief justice's son. Iftikhar has denied any wrongdoing. The growing backlash against Chaudhry in some parts of the political sphere may temper his next move. While Zardari's government is widely tarnished with allegations of cronyism and incompetence, it also stands at a unique juncture in Pakistan's evolution from an army-dominated to a civilian-led system. Before he was ousted, Gilani had been on course to become the first prime minister to lead a democratically elected civilian government to the completion of a five-year term. The government has often sought to deflect criticism of its record by portraying itself as a "martyr" to a conspiracy by its opponents in the judiciary and military. That narrative gained more credence in the eyes of many last week when an anti-narcotics court run by the military issued an arrest warrant for Makhdoom Shahabuddin, a former health minister, who had been Zardari's first pick to replace Gilani. Should Chaudhry attempt to disqualify Ashraf, the prime minister, if he also refuses to re-open the graft case against Zardari, then the unease over his no-holds-barred activism is only likely to grow. "The Supreme Court will be under tremendous pressure not to send two prime ministers home," said Babar Sattar, a legal commentator. "Irrespective of the legalities of the issue, I just don't think people will have the patience to live through that drama." REFERENCE: Pakistan's gun-slinging chief justice faces backlash By Matthew Green and Qasim Nauman ISLAMABAD | Sun Jun 24, 2012 6:20am EDT (Editing by Michael Georgy and Raju Gopalakrishnan)

Judicial Dictatorship & Lawyers - Part - 4 (GEO 22 Dec 2009)

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. ----------Daily Dawn The judgment appeared to be based on newspaper headlines and talk shows of private TV channels: Ali Ahmed Kurd. 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. Mr Kurd said that an independent judiciary had been restored after a great struggle, adding that the country would become stronger if the judiciary acted in the manner expected by the nation during the struggle. “If it does not happen, it will cause a blow to national security.” He said he had been invited by various bar councils after the restoration of the judiciary, but he preferred to keep quiet. He said he did not attend functions where the chief justice had been invited and quit his practice as a lawyer in the Supreme Court. It was astonishing to see judges visiting bar councils, he added. Mr Kurd described the National Judicial Policy as detrimental to the judicial system. He pointed out that a deadline of Dec 31 had been set for courts to decide cases. He said the maxim of ‘justice hurried is justice buried’ would turn out to be true in many cases because these, including cases of murder and dacoity, and the rights of defence and the practice of producing evidence of many people would be compromised due to paucity of time. Human Rights Commission of Pakistan Chairperson Asma Jehangir also criticised the Supreme Court’s judgment on the NRO and said it appeared to be a decision pronounced by a ‘jirga’. She was of the opinion that the NRO could have been declared null and void by merely declaring it as repugnant to Article 25 of the Constitution, but a Pandora’s box had been opened by the court. Syed Iqbal Haider and Justice (retd) Tariq Mehmood also spoke on the occasion. REFERENCE: Kurd unhappy over SC verdict on NRO By Iftikhar A. Khan Dated 23 December 2009 Judges deciding cases on media lines: Kurd Daily Times Monitor Wednesday, December 23, 2009\12\23\story_23-12-2009_pg7_12

Judicial Dictatorship & Lawyers - Part - 5 (GEO 22 Dec 2009)

“On the issue of former Chief Justice Iftikhar Chaudhry, Shahbaz claimed that the PML-N was open to negotiation, provided that Chaudhry was symbolically restored.” The conversation took place just a day before Nawaz Sharif would join a lawyers’ long march in a dramatic public protest for the reinstatement of judges deposed by Gen Musharraf, a demand that President Zardari had been resisting. In private, however, a different story was being told. - File Photo (Thumbnail illustration by Faraz Aamer Khan/ KARACHI: Even as PML-N chief Nawaz Sharif was rallying street support by publicly refusing to back down from demands for the restoration of Chief Justice Iftikhar Chaudhry in February and March 2009, the party was privately telling American diplomats that the future of the then-non-functional chief justice was up for negotiation.

“Shahbaz stated that following the restoration, the PML-N was prepared to end the issue and remove Chaudhry once and for all,” reported Lahore Consulate Principal Officer Bryan Hunt in a secret American diplomatic cable describing his meeting with the younger Sharif on March 14, 2009.

“On the issue of former Chief Justice Iftikhar Chaudhry, Shahbaz claimed that the PML-N was open to negotiation, provided that Chaudhry was symbolically restored.”

The conversation took place just a day before Nawaz Sharif would join a lawyers’ long march in a dramatic public protest for the reinstatement of judges deposed by Gen Musharraf, a demand that President Zardari had been resisting. In private, however, a different story was being told.

“Shahbaz stressed that his party could not afford the political humiliation of abandoning what had become a long-standing principle in favour of Chaudhry’s restoration,” Mr Hunt reported. “At the same time, Shahbaz claimed to understand that Chaudhry was a problematic jurist, whose powers would need to be carefully curtailed.”

Shahbaz Sharif strategised that as a judge who had taken oath under Gen Musharraf’s first provisional constitutional order, Chaudhry could be removed – once “some sort of face-saving restoration” had been carried out – “by adopting legislation proposed in the Charter of Democracy that would ban all judges who had taken an oath under a PCO from serving.”

A week earlier, in another meeting at the Lahore consulate, Shahbaz Sharif had proposed an alternative solution: creating the Constitutional Court envisioned in the Charter of Democracy and ensuring that “it be made superior to the Supreme Court. Iftikhar Chaudhry’s restoration … would then have little measurable impact, as the Constitutional Court, staffed by appointees from both parties, could nullify his decisions.”

Even before the restoration, Shahbaz Sharif confided, the PML-N leadership would agree to any constraints President Zardari might want placed on Chaudhry, “including curtailment of his powers to create judicial benches, removal of his suo motu jurisdiction, and/or establishment of a constitutional court as a check on the Supreme Court.”

“Although Nawaz publicly has said Chaudhry’s restoration is also a red line,” commented US Ambassador Anne Patterson in a separate report, “no leader in Pakistan really wants an activist and unpredictable Chief Justice. … Nawaz emerges stronger in the public eye and retains the ‘high moral ground’ by defending the judiciary.”

As late as January 22, in fact, PML-N leader Khawaja Saad Rafique had told Mr Hunt that a minimum requirement for saving the coalition with the PPP in Punjab was “full retirement of Chief Justice Hameed Dogar and appointment of Justice Sardar Raza in his place.” Chaudhry did not seem to have been a concern.

But by March 2009 he had become the PML-N’s rallying cry, and the timing clearly had to do with political developments at the time: a February 25 Supreme Court decision had declared the Sharif brothers ineligible for office, and the president had imposed governor’s rule in Punjab.

“Nawaz and Shahbaz Sharif told Principal Officer Lahore that the decision [to declare them ineligible to hold public office], which they claimed was entirely Zardari’s, was a declaration of war; they would … take their battle to the streets. Following the decision, PML-N certainly will participate in the lawyers’ march,” reported a February 2009 cable previously published in the media.

“Before the Court ruling, ‘95 per cent of the party’ had opposed joining the lawyers’ March 16 sit-in because it might lead to violence,” Opposition Leader Chaudhry Nisar Ali Khan revealed privately in a separate conversation at the US embassy. “Now, the party had little choice but to support them.” Cables referenced: WikiLeaks # 196903, 195758, 196939, 188203, 193807, 194540. All cables are available on REFERENCE: Shahbaz was willing to have CJ removed after ‘face-saving’ restoration By Madiha Sattar | From the Newspaper | 20th May, 2011

Judicial Dictatorship & Lawyers - Part - 6 (GEO 22 Dec 2009)

Contempt of Court and Mr. Nawaz Sahrif DAWN WIRE SERVICE November 1997 ISLAMABAD, Nov. 17: The National Assembly adopted, with a majority vote, a bill that amended the Contempt of Court Act, 1976, by providing an intra-court appeal against the orders passed by the Supreme Court to a larger bench consisting of all the remaining available judges of the court within the country. The leader of the opposition Benazir Bhutto and a couple of other PPP MNAs opposed the bill. Just before the bill was put before the House for passage, the PPP members walked out in protest. They wanted to suggest some changes but the speaker ruled they could not do so because they had not formally moved their amendments to the bill. The bill was earlier approved by a special cabinet meeting chaired by Prime Minister Nawaz Sharif and was thoroughly discussed in a meeting of the PML and its allied parties. The purpose of the bill, the special cabinet meeting said, was to bring the provisions of the Contempt of Court Act, 1976, in conformity with the injunctions of Islam.

The eminent constitutional expert, Syed Sharifuddin Pirzada, and a couple of other prominent lawyers are said to have been behind the preparation of the new bill to stop the Chief Justice of the Supreme Court Syed Sajjad Ali Shah to take any final decision against Prime Minister Nawaz Sharif and others involved in the contempt of court case that was heard today and was adjourned for Tuesday. The bill passed by the National Assembly holds that an intra-court appeal shall lie against the issuance of the show-cause notice or an original order, including an interim order passed by a bench of the Supreme Court in any case, including a pending case, to a larger bench consisting of all the remaining available judges of the court in the country. It also provided that in the event the impugned show-cause notice or order has been passed by half or more of the judges of the Supreme Court, the matter shall, on the application of an aggrieved person, be put up for re-appraisal before the full court. The bill further provides that "the operation of the impugned show-cause notice or order shall remain suspended until the final disposal of the matter in the manner herein before provided...and ..(ii) after sub-section (3) the following new sub-section shall be added namely: "An intra-court appeal or application for re- appraisal shall be filed within thirty days from the date of show case notice or the order, as the case may be". REFERENCE: NA amends Contempt of Court Act By Ihtasham ul Haque DAWN WIRE SERVICE Week Ending:22 November 1997 Issue:03/47

22 November 1997 ISLAMABAD, Nov. 18: The Senate passed the Contempt of Court (Amendment) Bill, 1997, with a voice vote amid a walkout by the opposition over misinterpretation" of the Supreme Court and Federal Shariat Court verdicts on the issue of right of appeal by Parliamentary Affairs Minister Yasin Wattoo. The bill was passed by a voice vote. The bill will now go before President Farooq Ahmed Khan Leghari for assent. The Leader of the Opposition in Senate, Aitzaz Ahsan, and deputy leader Raza Rabbani argued against the bill. Parliamentary Affairs Minister Mohammad Yasin Wattoo defended the bill, saying that it was in consonance with the verdicts passed by the Supreme Court, Federal Shariat Court and recommendations of the Islamic Ideology Council and provided right of appeal to aggrieved individuals and parties. He defended the summoning of the two Houses, saying that it fulfilled the Islamic requirements of consultation on important issues facing the nation. He justified the suspension of rules of business and procedures of the House to meet an emergency. He said while every forum provided a right of appeal to an aggrieved party, there was no such recourse in cases relating to the Supreme Court. REFERENCE: Senate passes Contempt Bill DAWN WIRE SERVICE Week Ending: 22 November 1997 Issue : 03/47

22 November 1997 ISLAMABAD, Nov. 18: Exchange of hot words between Privatization Commission Chairman Khwaja Mohammad Asif, PTV Managing Director Sen Pervaiz Rashid and Advocate Akram Sheikh led to a scuffle in the precincts of the Supreme Court when the contempt case against Prime Minister Nawaz Sharif and his colleagues came up before the court for hearing. It all began with an exchange of light taunts between the old buddies when in the heat of the moment their tempers snapped and they started hurling abuses at each other. Khwaja Asif gave two punches on Akram Sheikh's face. This left a scar on his face. "Take the picture", a baffled Akram Sheikh shouted at a photographer standing nearby. Some lawyers intervened and saved Akram Sheikh, who later raised the issue inside the court and narrated the whole story. He said he had invited Khwaja Asif and others to join him at tea. Akram Sheikh said he called Khwaja Asif a corrupt banker and also admitted to hurling an obscenity. He said he had decided not to lodged any formal complaint with the police. He, however, called upon the Chief Justice to take note of the violation of the sanctity of court. REFERENCE: Scuffle breaks out in Supreme Court precincts DAWN WIRE SERVICE Week Ending: 22 November 1997 Issue : 03/47

15 May 1999 ISLAMABAD, May 14: The Supreme Court on Friday acquitted all the ruling party legislators who were indicted on the charges of contempt of court for attacking the court building when proceedings against Prime Minister Nawaz Sharif were underway. The three-member bench which decided the case on Friday observed that though flagrant contempt of court was committed but showed its inability to convict the accused as the people had not given specific evidence against them. The court deplored that people had not come forward to give evidence nominating specific persons involved in the violence. The case was initiated by the court itself in early 1998 under its suo motu jurisdiction. "We would like to observe that it is very unfortunate that people have not come forward to give evidence nominating specific persons involved in rowdyism/violence that had taken place in and around the Supreme Court premises and building on 28-11-1997." 

The court had indicted seven persons including six PML(N) legislators after marathon inquiry proceedings. They were MNA Tariq Aziz, MNA Mian Munir, MPA Chaudhry Tanvir Ahmed, MPA Chaudhry Akhtar Rasool, MPA Akhtar Mehmood, MPA Sardar Nasim and Shahbaz Goshi, a young Muslim League activist. The bench consisted of Justice Nasir Aslam Zahid, Justice Munawar Ahmed Mirza, and Justice Abdur Rehman Khan.  However, there is no mention of Senator Saifur Rehman against whom oral as well as documentary evidence was in abundance. Number of witnesses had informed the court that they had seen him directing the police not to stop the mob from entering into the court room. The close circuit cameras had also shown him leading the crowd towards the court room where the then chief justice Sajjad Ali Shah was presiding over a bench. The court stated it was constrained to observe that despite large numbers of onlookers, visitors and officials and also members of the press being present perhaps from early morning till the end of demonstration, none came forward to name or nominate the culprits. "It either shows lack of moral courage on the part of eye witnesses to come and speak the whole truth before the Court or they did not want to get involved in the proceedings perhaps for being singled out for having spoken the truth."

The bench had examined 54 witnesses before indicting seven persons who it had found, prima facie, guilty of contempt of court. The court observed on Friday that it could not act as investigators. "As a court we do not act investigators. We could only call persons as witnesses about whom information was given that they might be able to assist the court." It was observed by the bench that verbal as well as video evidence established that a mob had gathered on that day outside the court building which was raising objectionable slogans and also carrying banners and placards with objectionable writings against the judiciary. The court held that the incident had not happened on the spur of moment and evidence showed it was premeditated. "It appears from   the evidence that the action of that day was planned and purpose was to disturb the court proceeding which was conducting contempt proceedings at that time." It, however, stated that the evidence did not establish at what  level and by whom the planning was done. It added: "but could be presumed that it was not done at the local level." The court stated: Despite reaching the conclusion that the action of the mob/crowd amounted to most flagrant type of contempt of the court, as the evidence does not specifically point out any of the respondents to the extent that it could be said that the case against any of them had been established beyond reasonable doubt. In our view the respondents are entitled to acquittal under the law.

The court further held that mob attack on the court was intended to undermine the independence of judiciary. "It should be endeavour of every government to strengthen the institution of judiciary and to jealously guard its independence and not to weaken it . "It appears from the evidence that perhaps time positive action could have avoided the ugly situation that was ultimately created. The government in power should ensure that incidents of like nature are never allowed to be repeated and the judiciary is as jealously guarded against such attacks as the Parliament." REFERENCE: Storming of SC building: PML MPs acquitted for lack of evidence Rafaqat Ali DAWN WIRE SERVICE Week Ending : 15 May 1999 Issue : 05/20 

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