Justice in Uthopia – Nadeem F. Paracha

In April 2007, one of my favorite cousins who was then a student at the prestigious LUMS in Lahore visited me on the evening of Chief Justice Iftikhar Chaudhry’s “historic” procession in Lahore (during the Lawyers Movement). She said she was joining many of her colleagues who were already at the event.

Knowing my past as a former student activist, she was taken aback when I told her I’m not all enthusiastic about the commotion.

Responding to my lukewarm reception to her youthful idea of “bringing a revolution,” she said the principle behind the tumult is vital.

“What principle?” I asked.

“Justice and democracy,” she said.

“But you don’t even vote!” I smirked. “90 per cent of the middle-class people I’ve heard passionately supporting the cause of the CJP (who was fired by the Musharraf dictatorship on corruption charges), have never bothered to vote. What democracy are you talking about?”

However, I did add that she should go to the rally to learn.

“Learn what?” She asked.

“Learn how the most vivacious leaders are better at hijacking movements than they are at initiating revolutions,” I replied.

“So why were you guys so gung ho about Benazir Bhutto in the 1980s?” She asked.

“Because Benazir inherently represented so many sides that were a natural anathema to whatever Zia’s dictatorship stood for” I said. “First of all, in an era of Hudood laws, chauvinism and mullah politicians, she was a woman; an educated and outspoken woman. Benazir shone brightly like the country’s finest hope for a democratic system.”

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Judges should not govern country: India’s chief justice

NEW DELHI, Aug 25: Asserting that judges should not govern the country or evolve policies, the chief justice of India said on Saturday he wondered what would happen if the executive refused to comply with the judiciary’s directives.

Justice S.H. Kapadia asked judges if they would invoke contempt proceedings against government officials for not complying with their decisions and disapproved a recent Supreme Court judgment which said “right to sleep” was also a fundamental right.

“Judges should not govern this country. We need to go by strict principle. Whenever you lay down a law, it should not interfere with governance. We are not accountable to people.

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Chief Justice of Pakistan, Iftikhar Chaudhry is a Mullah Omar of Pakistan; says Senator Faisal Raza Abdi

Language of the talk show is urdu (Hindi).

Courtesy: ARY News Tv (Talk show ‘Agar‘ with Aamir Ghori Faisal Raza Abdi - 24th August 2012)

Via » ZemTV » YouTube

Isn’t it strange that he consider vulgarity on TV to be Haram [unIslamic] and immoral. However, the income he pocket every month from this vulgarity is Halal and moral!

Letter to Ansar Abbasi on vulgarity

By: Farooq Sulehria

Dear Mr. Ansar Abbasi,

When I recently heard about your latest crusade against vulgarity and obscenity, planned in connivance with our puritan Chief Qazi, I could not help laughing aloud.

By moving the Supreme Court against obscenity and vulgarity on television channels, you have indeed exposed the bankruptcy of the Moral Brigade’s policing of women’s bodies.

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Open letter to Their Lordships

By Kamran Shafi

My Lords of the Supreme Court,

With due respect, I write for the second time in two weeks about a most horrific matter: that of a former member of our National Assembly and many times minister, calling upon My Lord the Chief Justice of Pakistan to commit murder.

I know we have plumbed the depths in this God-given but now surely God-forsaken country over the 66 years of its existence: from the unjust and cruel way in which we treated our East Pakistani brethren; to the killing of innocents by the ‘bad’ Taliban and the genocide of minorities by self-same Taliban and their cohorts that we see every single, tortuous day; to the fact that we are now an international pariah, the mere sight of our green passport sending immigration agents across the world into an almighty tizzy.

We have seen generals and politicians and bureaucrats violate the Constitution and misrule and steal; we have seen some of our great national treasures like the railways and PIA steadily driven into the ground; our archaeological treasures and rare books stolen and sold abroad for a pittance by members of our so-called ‘elite’. We have literally seen this country rent asunder by adventurists and carpet-baggers. Indeed, we have seen a senior retired air force chief-turned-politician say that he would personally hang an elected prime minister from the Kohala Bridge.

We have seen, too, a prime minister shot in broad daylight and his assassin conveniently shot dead by a police officer who ‘happened’ to be standing by him; an elected prime minister hanged in what the world believes was a complete miscarriage of justice, nay cold-blooded judicial murder; and another jailed in Attock Fort by a usurper general and then exiled.

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How long and how many more liberals you will kill? You can crush all of us. But you can’t stop the spiring.

Pakistan’s musician Taimur Laal on massacres of liberals in the “Land of the Pure” by the “guardians of the Religion of Peace!?” Laal’s video on the trials, tribulations, and sacrifices of the people of Pakistan in the struggle against extremism in our society.  Religio-fascists! how do you claim that the battle is over in which we have not even taken the very first step! You can crush All of us. But you can not stop the spring.

Poet: Faiz Ahmed Faiz. Directed by Dr. Taimur Rahman.

Courtesy: Laal » YouTube

Judicial supremacy or Judicial dictatorship?

By Khaled Ahmed

We have to wait till the Chief Justice and his fellow judges overreach themselves and finally come to the conclusion that moderation is the only path to tread in this imperfect Third World environment

On 7 July, 2012, Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry said that Article 8 of the constitution empowered the Supreme Court to strike down any legislation which encroached upon the basic rights of the citizens. He said this while speaking at a ceremony for newly enrolled advocates at the Supreme Court’s Karachi Registry.

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Zia’s legacy

PRECIOUS little happens in Pakistan that cannot be traced to the man who ruled over this country for 11 dark years of its existence. On the morning of Aug 17, exactly 24 years after his death, Gen Ziaul Haq’s presence was felt all the more poignantly. ‘Terrorists attack Kamra airbase’, ‘19 pulled out of buses, shot dead in sectarian attack’ at Babusar Top, ‘Zardari seeks Muslim countries’ assistance’ on Afghanistan. Rulers either side of Zia have contributed to this mad, unending dance of death that Pakistanis have been subjected to. But while the dictator may have found the soil fertile for cultivating his brand of hatred, he was so thorough in his execution of the self-assigned job and so heartlessly committed to his creed that he ensured that generations after him will find it impossible to escape his influence.

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Sheikh Rashid, ex-minister & now Imran Khan’s ally, exhorts Iftikhar Chaudhry, Chief Justice of Pakistan, to “kill” President Zardari

Courtesy: Duniya Tv » YouTube

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SC asks PEMRA if it has taken notice of TV programs defaming judiciary

By Web Desk

We will show you advert­isemen­ts, you tell us if they are obscen­e or not, says chief justic­e to PEMRA

ISLAMABAD: The Supreme Court of Pakistan, hearing applications filed against “obscene content” being aired on television channels, asked Pakistan Electronic Media Regularity Authority (Pemra) if it had taken any notice of programs defaming the judiciary.

The applications were filed by ex-Ameer of the Jamaat-e-Islami, Qazi Hussain Ahmad, and Justice (retd) Wajihuddin Ahmed of the Supreme Court, who has recently joined the Pakistan Tehreek-i-Insaf.

The three-member bench hearing the applications rebuked Pemra’s performance in this regard, while Justice Jawad S Khwaja remarked that the regulatory body never does anything concrete.

Chief Justice Iftikhar Muhammad Chaudhry said to Pemra that the bench will air TV advertisements and Pemra will be made to decide if they are obscene or not.

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For sure, as a family member Justice Chaudhry cannot elude such questions

Ward of the Court

By Saroop Ijaz

Finally, all of us can go to sleep in peace with the newly acquired knowledge that My Lord, the Chief Justice remains vigilant as ever to ensure that no vulgarity slips through the cracks on our television channels on his watch and the Pemra chief can no longer slack in his duties. My Lord, with customary wisdom, has observed that there are certain programmes and advertisements that one finds unbearable to watch alongside with the family. This exercise of the “paternal” jurisdiction of the court and the fact that the Chief Justice is a “family man” is infinitely comforting. It might be interesting to mention that My Lord is not always the brilliant, stoic, sober statesmanlike, paragon of justice and has a human, lighter side to his personality as well as indicated by his remarks in court that the parodies of politicians are in “good humour” and “are enjoyed”.

As we swoon in relief on the consolation of being under the eternal, paternal gaze of My Lord, one is also conscious of a slight unease. Dr Arsalan Iftikhar is hard to banish from the mind. The latest, although unconfirmed news report about Dr Arsalan using the address of the Chief Justice House for commercial purposes is unnerving to say the least. One sincerely hopes that the unconfirmed report is a complete fabrication. Nevertheless, many other questions still remain regarding the Young Doctor. What serious person has not indulged in some juvenile frolics behind their parents’ back at one time or another, however, Master Arsalan seems to have taken this mischievous streak of youthfulness well into his adulthood.

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The nanny court – Dr Mohammad Taqi

It is this cherry picking of issues, petitioners and the amicus curiae that raise serious concerns about the ideological agenda of the Pakistani Supreme Court

The Supreme Court of Pakistan has taken the hapless acting chairperson of the Pakistan Electronic Media Regulation Authority (PEMRA), Mr Abdul Jabbar to task again. Remember the grainy video of the chairperson being grilled by the Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, while presiding over a full court meeting recently? At that time, he had come under fire after a ‘planted’ interview of the Bahria Town fame Malik Riaz was aired on a private television channel. It is pertinent to recall details of that episode as the august court has developed a penchant for taking up serious, yet simple issues, with an unusual populist sensationalism.

In that video the Chief Justice was seen sitting at the head of the table, which had his brother judges comfortably occupying the other seats. The PEMRA chairperson was then called to the front and made to stand next to the Chief Justice. There did not appear to be a chair for him there and neither was one offered to him. The chairperson, with a stack of files under his arm, stood there literally trembling. The spectacle was reminiscent of a harsh schoolmaster chastising his unruly student. Now the chairperson himself was not an accused in the matter and obviously not a serf of the Supreme Court to have been subjected to such humiliation. To add insult to injury, the whole episode was being recorded and was subsequently released to the media. With whose permission the cameras were allowed in that room, we might never know. The release of the video was never probed or owned by the court. No matter what the rationale behind the court’s decision to let the poor man’s ordeal be televised, this is certainly not what is meant by the adage that justice must also be seen to have been done.

But this time around the honourable court was apparently relaying its displeasure on certain ‘objectionable’ programmes being televised on various channels in Pakistan. The court has taken upon itself, inter alia, to act as the moral police or more accurately as the nation’s nanny. It has set out to decide for the people what is, or is not, vulgar or obscene. The three-member bench of the SC was deliberating on a letter filed by the former Jamaat-e-Islami chief, Qazi Hussain Ahmed and Justice (retired) Wajihuddin of the Pakistan Tehrik-e-Insaf against what they alleged was obscenity on the television channels.

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Kindness of Supreme Court – Realistic Voice

By: Humza Ikram

Excerpts;

….. But in contrast to the hopeful symptoms, when I listen to the constitutional experts, none of them is optimistic. All are arguing that in the presence of SC’s judgment expecting something different is reckless because the previous decision was given by 17 judges, but now the bench has been reduced to mere five, so it is impossible to defy the verdict of 17 over 5.

In this regard, Former CJ, Saeed u Zaman Siddiqui says there cannot be any change possible in the previous judgment; they eventually have to write the letter, there is no possibility of any other option. And then we heard another remark from the CJ to the public exclaiming that whatever the court has said, it will happen, nothing can be done against it. It seems as if he is dictating the Supreme Court sitting bench.

After listening all of them, it is obvious that there is no option left for the Government to provide any middle way, then why the Supreme Court has done this gag with the nation? Aren’t they aware of it? What was the need of giving 15 days hope to the nation? If it was not just a gag from the SC, then now it is the responsibility of Supreme Court to offer a possible solution. So, after a lot of contemplation that what will be the Government’s stance on 8th of August, seeing the evident thinking of CJ. There is no other possible way for the Attorney General that in spite of submitting any argument in the court, he should straight away sing a famous song from Dillip Kumar’s golden film Devdas before the honorable court:

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PAKISTAN PERISCOPE – The case of exploding lawsuits

As the Supreme Court ups the ante against the new prime minister, the battle between various stakeholders in Pakistan is likely to get intense

By: Ayesha Siddiqa Independent Social Scientist

Excerpts

…. the most challenging act seems to be the case against Chief Justice Iftikhar’s son Arsalan Iftikhar. Allegedly, Arsalan blackmailed real estate tycoon Malik Riaz into paying him more than PKR 36 crore in bribe for getting favourable judgments in cases being heard in the Supreme Court. Although nothing has been definitely proven against him as yet, the glitterati of Lahore talk about Arsalan’s extravagant lifestyle, which comes as a surprise since he didn’t have a job three years ago. The Chief Justice comes from a humble background and claims to have no property, a statement that adds to the complexity of his son’s fortune. Riaz, who is considered as being close to both the military and Zardari, has continued to point fingers at Arsalan, his father and the entire family for extorting money and favours out of him.

The Arsalan-Riaz case is now being heard by the Supreme Court and probed independently by a Joint Investigation Team (JIT) comprising members from the country’s prime anti-fraud agency, the National Accountability Bureau, the Islamabad Police and the Federal Investigation Agency. Clearly, this is a card in the government’s hand that Chief Justice Iftikhar and his team of close aides seem to try to destroy by casting aspersions on the JIT’s credibility. It is not a coincidence that after every hearing by the JIT, there is an effort by the pro-Chief Justice wing of a certain media group to point fingers at the credibility of JIT. The effort increases around every hearing by the court or the investigating team.

The yet-to-be-proven case of extortion and the players involved in it make the head spin at the complexity of the case. According to sources, Riaz, who is reputed to be an “ISI asset”, could not have taken the risk of so brutally challenging the Chief Justice without taking the security establishment on board. The question is how does one juxtapose this assumption against another that the higher judiciary has the army’s support to destabilise the government?

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Dictators and the Supreme Court

by: Mohammad Khan Sial

SINDH – KARACHI: The attorney general of Pakistan told a five-member bench of the Supreme Court of Pakistan headed by Chief Justice Iftikhar Muhammad Chaudhry on August 2, that the Supreme Court has always exonerated military dictators by targeting democratic governments. The attorney general’s comments are based on facts irrespective of intentions. I would humbly suggest that all the judges who have validated military dictatorships in the past should be tried for their decisions under Article 6 of the Constitution.

Courtesy: The Express Tribune, August 6th, 2012.

http://tribune.com.pk/story/417939/dictators-and-the-supreme-court/

Senator Faisal Raza Abidi demands Chief Justice’s resignation

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By Sidrah Moiz Khan

Abidi held Justice Chaudhry responsible for the alleged financial impropriety done by his son, Dr Arsalan Iftikhar

While hurling fiery allegations at Chief Justice Iftikhar Muhammad Chaudhry, Pakistan Peoples Party (PPP) Senator Faisal Raza Abidi on Sunday demanded a resignation from him and other judges who were reinstated under the Provisional Constitutional Order (PCO).

During a press conference in Islamabad, Abidi held Justice Chaudhry responsible for the alleged financial impropriety done by his son, Dr Arsalan Iftikhar.

The senator said that if the chief justice does not tender a resignation, then he will “force him out from the same way he had been restored as a judge.”

“He [Justice Chaudhry] says that he did not have any idea where his son got all that money from…I ask, when the case emerged, did you ask him where he got Rs900 million from?”

The senator produced bank account statements of Dr Arsalan and said that the person who used to “work under somebody else” now owns billions of rupees. He also showed that the billing address mentioned was that of the Chief Justice House in Islamabad.

“You [Justice Chaudhry] are to be blamed for this. This happened right in front of you. You cannot pretend to not know anything. Who gave Dr Arsalan the right to use government’s property for running his own businesses? Could he not rent out an office in some other area?

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Arsalan-Iftikhar case: NAB dissolves JIT after SC’s concerns

ISLAMABAD: National Accountability Bureau (NAB) on Thursday dissolved the Joint Investigation Committee (JIT) which was investigating Arsalan-Iftikhar case after the Supreme Court had stopped it from conducting inquiry for two days, DawnNews reported.

A two member bench of the Supreme Court comprising of Justice Jawwad S Khawaja and Khilji Arif heard the review case of alleged corruption of Arsalan Iftikhar, son of Chief Justice Iftikhar Muhammad Chaudhry.

The Prosecutor General NAB K.K. Agha of the NAB informed the apex court that the accountability bureau will formulate a new team comprising of NAB’s officials.

In reference to yesterday’s court order of stopping the JIT to continue its investigation of the Arsalan –Iftikhar case after one of the members of the team Faisal Memon was accused of being partial, Agha said that “NAB has decided to formulate a new team comprising of its own officials.” Adding that, “the bureau does not doubt the credibility of Memon, but it is for the greater good that we form a new investigation team.”

On the petition of Malik Riaz’s attorney Zahid Bukhari, the apex court directed the investigation teams and other sub ordinate courts, who are dealing with other cases of Riaz and his family, to perform their duties without getting under pressure of the proceedings of Arsalan-iftikhar case.

The apex court subsequently adjourned the hearing for an indefinite period of time.

Courtesy: DAWN.COM

http://dawn.com/2012/08/02/arsalan-iftikhar-case-nab-dissolves-jit-after-scs-concerns/

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More details » BBC urdu

http://www.bbc.co.uk/urdu/pakistan/2012/08/120802_arsalan_nab_supreme_court_uk.shtml

Supreme court order on Swiss letter ‘unconstitutional’ – Govt can’t carry out court orders

* AGP tells court ‘PM can’t be asked for implementation of an un-implementable direction’

* SC returns federation’s reply, says only remedy available is to file review

By Hasnaat Malik

ISLAMABAD: Declining to implement Supreme Court’s (SC) December 16, 2009 judgement on the NRO case, the government on Tuesday said the premier is not authorised to write letter to Swiss authorities …..

Read more » Daily Times

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More details » BBC urdu

Independence and accountability

By: Yousuf Nasim

Over the last two decades, a significant amount of work has been done in Pakistan on the Constitutional subject of Judicial Independence. While the Al-Jehad Trust Case set the stage for this development by limiting political interference in the process of judicial appointments, the doctrine – as it exists in Pakistan today – reached its nadir with the Supreme Court’s order in Nadeem Ahmed v Federation of Pakistan, which precluded perceived nascent threats to independence through the proposed 18th Amendment. The 19th Amendment to the Constitution, which followed shortly thereafter, crystallised the predominance of the judiciary insofar as fresh appointments were concerned. Today the process is overseen by the Judicial Commission of Pakistan, which is composed primarily of sitting judges. The JCP nominates individuals for consideration to a Parliamentary Committee, whose decision is open to judicial review.

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Contempt law case: SC rejects federation’s request for full court

ISLAMABAD: The Supreme Court on Monday rejected the federation’s request of a full court to hear the petitions against the recently passed contempt of court law, DawnNews reported.

A five-judge bench of the apex court comprising Justice Iftikhar Muhammad Chaudhry, Justice Shakirullah Jan, Justice Khilji Arif Hussain, Justice Jawad S Khawaja and Justice Tassadduq Hussain Jilani heard the petitions against the new law.

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What is wrong with our judiciary? By: Imran Kureshi

In the darkest days of dictatorship, because of the previous role of some courageous judges, their respected and somewhat inviolable positions, the public has always considered the judiciary as a ray of hope

Primarily what is wrong with our judiciary is that apparently it is corrupt. No! This is not a jaundiced personal opinion; this is according to the rating of Transparency International. Among the primary 10 institutions in the country previously, the judiciary was very low in the ‘corruption’ ratings. In 2008 and 2009, it rocketed up to number three, in 2010, it was number six and in 2011, it was number four. Such an increase in corruption is understandable because of the inadequacy of the judicial accountability regime.. A vocal section of the public and media influence public opinion considerably, and in the eyes of this section, the judiciary with its newfound independence can do no wrong. It is about time somebody revealed the other side of the picture. In this country, it has always been a problem of who will check the corruption of those who are checking corruption.

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Supreme Court or supreme power?

By: Fatima Mustafa

On Saturday, Imran Khan, a Pakistani cricketer-turned-politician with a propensity for threatening massive protests, once again threatened to lead a “tsunami march” to the country’s capital if Pakistan’s PPP-led government ignores (for the second time) the Supreme Court’s orders concerning the reopening of corruption cases against President Asif Ali Zardari. This is just the latest development in a growing confrontation between the executive — led by the Pakistan People’s Party (PPP) — and the Supreme Court.

In recent months, Pakistan’s judiciary and executive have been engaged in a power struggle that threatens to further destabilize a politically weak government already beset by problems ranging from economic decline to a major electricity crisis. The root of the current conflict lies in the Supreme Court’s insistence that Prime Minister Raja Ashraf write a letter to the courts in Switzerland, asking them to reopen previous corruption cases against President Asif Ali Zardari. In a bold move, the Supreme Court already dismissed previous Prime Minister Yousuf Raza Gilani on charges of contempt of court for refusing to write such a letter to the Swiss courts. It has now warned PM Ashraf that it will take “appropriate action in accordance with the law” in the event that he refuses to comply with the Court’s order.

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Pakistan’s chief justice considering broad Internet/ media censorship at request of Jamaat-e-Islami & PTI

CJ takes suo moto notice of obscene TV shows, internet sites

By: Ansar Abbasi

ISLAMABAD: Chief Justice Iftikhar Muhammad Chaudhry has taken notice of the applications filed by former Jamaat-e-Islami (JI) amir Qazi Hussain Ahmad and retired judge and PTI leader Justice Wajiuddin against growing vulgarity and obscenity in the society through electronic media, illegal Indian channels, cable network and internet.

Following the complaints from the two respected public figures, the Human Rights Cell of the apex court, following CJ’s direction, sought views from Chairman Pemra and Chairman PTA, both of whom, however, had given routine bureaucratic responses without any concrete assurance that the menace would effectively be checked and controlled. …

Read more » The News

http://www.thenews.com.pk/Todays-News-2-120964-CJ-takes-suo-moto-notice-of-obscene–TV-shows-internet-sites

The battle in Pakistan is not between executive and judiciary, but between rule of law and rule of a Judge

Know thy facts

By Feisal H Naqvi

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.

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Partymen caution Nawaz against blindly supporting judiciary

By Zia Khan

ISLAMABAD: Leaders of the Pakistan Muslim League-Nawaz (PML-N) have begun to advise party chief Nawaz Sharif against blind support for judicial activism.

The main opposition party has sided with the higher judiciary in the standoff between the government and the apex court, which has begun to reach a crucial point once again – however, recent developments have led to a reconsideration among the PML-N’s hierarchy.

PML-N insiders told The Express Tribune that several central party leaders had cautioned Nawaz to be calculated in his backing for the judiciary, warning of a slippery slope. “A significant number of people in the party feel the judiciary in its decisions recently, and [Chief Justice] Iftikhar Chaudhry in his statements, have crossed certain red lines. This is not a good omen for the democratic system,” said an official. ….

Read more » The Express Tribune

Getting priorities straight – By Saroop Ijaz

Suppose for a moment that the Constitution of Pakistan is unanimously amended by the Parliament and an article is inserted saying, “from here on in all military takeovers/coups are declared illegal and treasonous and no court of law shall legitimise such a takeover…”. High-minded as it would be, one needs to be fantastically gullible or hopelessly optimistic to believe that mere tinkering with some legal provisions is all that is required for uninterrupted democratic governance. This may seem odd to you coming from someone who makes his sustenance on legalese but law is not really all that it is made out to be and especially not what our media would lead (or perhaps, like) you to believe. Firstly, a military coup is by definition extra-constitutional (or to quote the Supreme Court from the past meta/supra-constitutional) and hence, it will be merely another clause violated and on most occasions, the khakis are not overly concerned about constitutional nuance anyways. Secondly, the courts would read such an article as creatively as they desire since interpretation is, admittedly, their prerogative. However, the hypothetical article would serve some purpose insofar as it will make it more embarrassing for the courts and maybe even for the military adventurers, although they are generally immune from such petty sensibilities.

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Say ‘NO’ to Judicial Coup – by Dr. Saif-ur-Rehman

Dear countrymen, democracy in Pakistan is gone, our country is running under “Judicial coup”[Judicial dictatorship]. Pity the judiciary that some judges have declared “Judicial coup” in Pakistan. May 24th ruling of the Speaker of National Assembly on the issue of PM Yousaf Raza Gilian’s conviction in the contempt of court case was declared void.

The court observed that the speaker had no authority to find faults in the apex court’s judgement and should have sent the disqualification reference to the Election Commission of Pakistan within 30 days. Supreme Court’s disqualification of the sitting Prime Minister Yousaf Raza Gilani on 19th June was a practical example of Judicial coup in Pakistan. And that decision was widely lamented by the world leaders, scholars and journalists round the globe. All the democratic nations, pro-democratic think tanks and groups of scholars, journalists, students of politics and people from all walk of life were deeply shocked, when they heard about disqualification of sitting Prime Minister of Pakistan by biased judiciary.

Yet again, Supreme court is on its way to hunt its prey –another elected prime minister of Pakistan. For to fulfill its nefarious designs, court has accepted petitions against contempt of court act 2012, which was signed into law. It is pertinent to mention here that CJ had already vowed to do declare contempt of court bill null and void before its passing in elected houses both upper and lower.

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Judicial hyperactivism is threatening democracy in Pakistan

By: Junaid Qaiser

Pakistan is known for its weak political institutions, powerful army, several military coups and the infamous Article 58(2)-(B) that was used to send elected prime ministers to home or jail.

But this time around we are seeing a slightly different technique when the three member bench of the Supreme Court declared Yousuf Raza Gilani disqualified from holding a seat in the parliament from the date of his conviction on April 26 by a seven-member bench for contempt of court. A prime minister, who enjoyed confidence of the Parliament, who even before taking the oath of office, ordered release of the judges sacked and detained by former military ruler Gen Pervez Musharraf and later reinstated all the deposed judges on 16th March 2009 through an executive order. Many renowned experts as well as common person termed the ouster of elected PM similar to a judicial coup.

The Twitterities are using the hashtag #JudicialCoup to explain a new (invented)mechanism to oust an elected government.

The judges’ restoration movement, has been wrongly termed by many as a new beginning for Pakistan, as it’s not only failed to create and develop space for civilian supremacy, but also emerged a main hurdle in democratic evolution. And, today, we are more concerned than ever about the political instability. International media and observers place Pakistan in the category of countries, where parliament is continuously under sieges.

Pakistan’s judiciary has a very controversial history, which had never opposed, even the unconstitutional actions of the military dictators. The frequent imposition of martial laws, abrogation and suspension of constitutions were acts of treason under the law but were frequently validated by our apex courts.

In Maulvi Tamizuddin Khan versus the Federation of Pakistan, Justice Munir declared that the Assembly was not a sovereign body. He gave the ruling that the Constitutional Assembly had “lived in a fool’s paradise if it was ever seized with the notion that it was the sovereign body of the state”. The wording may be slightly different but the mindset remain the same, when the present Chief Justice said that the concept of parliament’s sovereignty was ages old so it was not so it was not applicable now. Historians feel that Justice Munir destroyed Pakistan’s constitutional basis when he denied the existence of Assembly’s sovereignty, and further harmed it by not indicating where sovereignty resided. It is quite obvious that historians will also judge the serious consequences of the present role of the judiciary for parliamentary democracy in Pakistan.

The observation by Justice Munir in Dosso versus the Federation of Pakistan, that a successful coup is a legal method of changing a constitution, sets the basis for the Commander-in-Chief of Pakistan Army, General Ayub Khan, to takeover the government from Iskandar Mirza. Ironically, the military takeover by General Ayub Khan on October 27, 1958, took place one day after the decision of the court was announced. By November 10, 1977, a nine-member bench of the Supreme Court of Pakistan, headed by Chief Justice Sheikh Anwarul Haq, unanimously validated the imposition of martial law under the ‘doctrine of necessity’. The judgment provided cover to the unconstitutional act of General Ziaul Haq and even gave him authority to make changes in the constitution. And in the Zafar Ali Shah case, the Supreme Court had granted three years to General Musharraf to hold elections and amend the Constitution and, in turn, General Musharraf gave three-year extension in service to the then incumbent judges.

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Restructuring of the Judicial System – Taj Haider

Article 209 (Supreme Judicial Council) lays down the composition as well the procedure to be followed to probe into capacity or conduct of a judge of the Supreme Court or a High Court.

While the said article in Sub-article (3) sections (a) and (b) looks at the possibility of looking at the capacity or the conduct of a member of the Supreme Judicial Council who is a judge of the Supreme Court or a Chief Justice of a High Court, it clearly omits the possibility of looking into the capacity and conduct of the Chief Justice of the Supreme Court.

There is a clear procedure laid down for the impeachment of the President of Pakistan by the Parliament in article 47. However, the Chief Justice of Pakistan is not answerable to any authority if he is accused of misconduct or is perceived to be unable to perform his duties for any reason.

The composition of the Supreme Judicial Council is also faulty in the sense that it establishes a complete monopoly of the Supreme Court and makes the provincial High Courts subservient. Only two most senior Chief Justices of High Courts are council members as against three (Supreme Court Chief Justice and two next most senior Judges from the Supreme Court). This composition clearly violates the autonomy principle and concentrate authority in the Centre and de-facto in one person, who is the Chief Justice and also above probe if accused of incapacity or misconduct.

It is thus proposed that:

1) Besides the Chief Justice of Pakistan only the one senior most judge of the Supreme Court should be member of the Supreme Judicial Council.

2) The Chief Justices of all the four provincial High Courts should be members of the Supreme Judicial Council.

3) The Senate of Pakistan shall have the power to impeach the Chief Justice of Pakistan by two third majority.

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Pakistani Liberals Are No Leap of Faith

This beleaguered minority in the country still deserves international support.

BY SADANAND DHUME

This isn’t the best time to be a Pakistani liberal. Opinion polling shows most Pakistanis thinking of America as an enemy, democracy as an unwelcome concept and the imposition of Shariah law as a no-brainer. Meanwhile, recent news out of the country involves the judiciary taking down an elected prime minister and politicians like Imran Khan riding high by invoking anti-imperialist and Islamist ideas, even as an Urdu-language media remains saturated with hyper-nationalism.

Against this backdrop, the world can’t be blamed for regarding the Pakistani liberal as an exotic hothouse flower with no roots in the country’s unforgiving soil. As the United States enters a shaky new period of detente with Pakistan following the reopening last week of supply routes to Afghanistan, it’s fair to ask if these liberals deserve notice at all. Doesn’t it make more sense for the West to instead engage more intensely with the powerful army and assertive hardliners such as Mr. Khan?

The answer is no. It’s always tempting for the West to do business with whoever’s powerful, but this is a recipe for the kind of trouble America right now faces with its troublesome “ally.” Pakistan’s liberals are not only less weak and less of a fringe phenomenon than they’re made out to be, they’re also the only ones who hold out the promise of a better future for their country.

One recurring complaint against liberalism is that though Pakistan regained its democracy four years ago, President Asif Ali Zardari’s civilian government still can’t wrest decision-making away from the military. But no civilian government could realistically be expected to immediately assert its authority over an army that has directly ruled the country for 34 of its 65 years, and continues to command the lion’s share of national resources. As the experiences of Indonesia and Turkey show, only when democracy grows roots do politicians acquire the finesse and self-confidence to take on generals accustomed to command. This takes patience.

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Rough justice

By Asad Jamal

June 2012 will go down in the legal and political history of Pakistan as a watershed month as the Supreme Court (SC) of Pakistan intruded not only the domain of other state institutions and violated the code of conduct for the superior judiciary but also disregarded some of its own recent and not-so recent pronouncements.

It was the June 19 decision to disqualify Yousuf Raza Gilani as a member of the National Assembly (NA) and as Prime Minister of Pakistan that really stole the limelight. The decision, delivered through a short order which states that the reasons for disqualification will be recorded later, has been criticised on various grounds. The critics of the verdict variously call it legally infirm, an encroachment upon the domain of parliament and other constitutional offices, lacking impartiality and being potentially detrimental to democracy in Pakistan.

On the lack of impartiality first: while the decisions of a court may be debated and questioned, the judges should never lose the appearance of impartiality. In a 2006 speech during the Golden Jubilee celebrations of the SC, Justice Asif Saeed Khosa had said “… independence of judiciary is not an end in itself; it is only a means to the end, and the end for sure is impartiality of judiciary.” Unfortunately, the order for Gilani’s disqualification is a glaring example of the court’s transgression into the jurisdiction of other constitutional offices, if not outright bias.

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CJ’s remarks

CJ’s remarks

CHIEF Justice Iftikhar Chaudhry on Saturday fired the latest salvo in the perceived escalating fight between the superior judiciary and the PPP-led federal government. The Supreme Court, according to Justice Chaudhry, can strike down any legislation that is incompatible with the fundamental rights guaranteed under the constitution. While this is a well-established principle, the timing of Justice Chaudhry’s comments is impossible to ignore: the chief justice’s dilation on the ins and outs of the constitution came in a week that the government proposed legislation to protect its constitutional office-holders from suffering the same fate as former premier Yousuf Raza Gilani suffered recently. Unfortunate as it is that the past judicial practice of justices speaking only from the bench and through their judgments has been discarded in recent years, the comments by the chief justice come very close to pre-empting the legislative process. Astonishingly, however, the chief justice did not just stop there: he indicated that the supremacy of parliament was ‘out of place in the modern era’, the constitution itself enjoying pre-eminence over the will of parliament. This is explosive, particularly given the backdrop of the judiciary-government battles. Start with the claim that the constitution, not parliament, is supreme, add the corollary that the SC is the final and unquestioned interpreter of what the constitution does or does not permit — and suddenly Pakistan is in the realm of a supreme judiciary, an unelected institution dictating the contract by which state and society interact. This would be a fundamental shift in the way Pakistan’s constitutional arrangement is imagined and it is quite extraordinary that a serving chief justice would see fit to make such a pronouncement outside a judicial forum. In the SC, the chief justice is the administrative head but his vote is equal to that wielded by any other justice in any given case. Surely, then, at the very least, this is a matter to be decided before a full court, if and when the matter comes before the court.

But returning to the issue of fundamental rights guaranteed in the constitution, why is it that the court keeps invoking fundamental rights when it comes to engaging with the government instead of concentrating on securing the fundamental rights of the people? Why not focus on the broken judicial system in which the average complainant has virtually no hope of ever getting justice, and none of getting it on time? Why not focus on the abysmally low rate of successful prosecution that allows criminals to walk free? Must the court be so obviously selective?

Courtesy: DAWN.COM

http://dawn.com/2012/07/09/cjs-remarks-3/

Our right to know

By Saroop Ijaz

The refusal of the Supreme Court Registrar to render to the Public Accounts Committee any details of the plots ostensibly allotted to the Honourable Judges leaves a distinctive and familiar bad taste in the mouth. The reason put forth by the Registrar is that according to Article 68 of the Constitution, no discussion can take place in parliament regarding the conduct of any judge of the Superior Courts  “in discharge of his duties”. The argument is indeed peculiar since I certainly hope that the Registrar is not implying that the land was acquired in discharge of duties. Let us get a few things clear at the outset; firstly, no allegation has been made against any judge or the judiciary. Secondly, even if an extra plot was accepted, it forms no basis of a prima facie misconduct. In this light, the reluctance or the outright denial seems faintly paranoid and defensive, in any event puzzling. I have a feeling that because the Supreme Court thinks that parliament is made up of incompetent crooks, it (the SC) cannot and should not subject itself to scrutiny by them. If that is so, the problem should be obvious: clichés likes “checks and balances”, “who will guard the guards” etc. The SC is empowered to interpret the law and decide what is permissible, yet the refusal comes too close to ambitiously high-minded self-comparisons with two of the four Caliphs. I am against anyone being held to the standards of the pious Caliphs and quite content with imperfect temporal constitutional standards. Yet, to the cynic it may seem as what can be colloquially termed as a “having-it-both-ways” approach.

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