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Lal Masjid issue and its Blocked Website

lalmasjid.jpgI am sure many have heard and read about the Burqa clad women armed with sticks who were protesting in Islamabad. The set of images has been displayed across millions of websites showing yet another extremist element in Pakistan.

I have a slightly different take on the entire issue, but before you start rapping me on the knuckles read the entire post with the knowledge that I am not a FUNDO (Fundamentalist).

Try to understand the other side of the argument and also filter through conspiracy stories to better appreciate the issue at hand. Every Pakistani knows that the ISI and GHQ have a tremendous control over anything and everything that goes on in the country specially in ragards to the fundamentalist element in Pakistan hence nothing can be done without the expressive permission of these agencies. Additionally for this incident to have taken place ‘in Islamabad’ was enough to say that it was carefully orchestrated, if not a slap on their face. I think that the agencies probably had been stimulating the extremist element which ultimately boiled over leading bringing the women on the street. For non-Muslims reading this blog, burqa-clad women on the street is a big deal, as they are generally prefer to remain behind closed doors regardless of how frustrated one might be, for them to come armed with sticks is literally a jaw dropping incident.
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A Leadership ‘Beyond Repair’ – Asma Jahangir

This interview appeared in the Newsweek issue last week, Asma Jahangir, the Human Rights Activist in Pakistan has some interesting views worth a serious look.
Start Quote
April 2, 2007 issue – These are tough times for Pervez Musharraf. Under increasing criticism for his inability to control Islamic militants in the country’s tribal areas, the Pakistani president now faces a revolt within his own judicial establishment. For the past two weeks, hundreds of lawyers have staged protests and gone on strike over the president’s decision to suspend Chief Justice of the Supreme Court

Iftikhar Muhammad Chaudhry for alleged misuse of his powers. (The charges include nepotism and an excessive fondness for luxury cars and aircraft.) In addition to the demonstrations, eight judges and the deputy attorney general have resigned, raising questions over the future of Pakistan’s judiciaryand its leader’s grip. NEWSWEEK’s Ron Moreau spoke to Asma Jahangir, one of Pakistan’s foremost Supreme Court lawyers and chairwoman of the Human Rights Commission of Pakistan. Excerpts:

MOREAU: What is Musharraf’s motive for suspending Chaudhry?
Jahangir: Insecure dictators see ghosts everywhere. This is not the first time it has happened. He forced the Supreme Court justices to swear a loyalty oath to him when he came in [via a bloodless coup in 1999.] He’s insecure. Not only does he want a pliant judiciary, he wants a totally subservient one. But it’s very difficult in 2007 to have that with today’s free media and the independent bar.

Musharraf claims that he is only following procedurethat Chaudhry’s suspension is standard reaction to the charges against the chief justice.
The president has tried once again to lie and to mislead everybody. His move is not as casual and simple as he puts it. It was obviously preplanned. He claims that placing Chaudhry under house arrest was a tactical error. Yet for two days this “tactical error” continued.

Chaudhry ordered the government to begin looking into the hundreds of so-called Islamic extremists who had been detained and disappeared. Is this a factor in Musharraf’s decision?

Musharraf is a very skillful liar, but now he is losing his touch. He says: “I’ve been very worried about the missing people, too, but what can I do? They are jihadis.” He wants the world to feel that these disappeared people are Islamic militants, which is not true. I would say 60 percent to 70 percent on the list of the 141 disappeared people that we have given to the Supreme Court are Sindhi and Baluch nationalists who are secular. And some of these nationalists are well known in the country. They are poets and writers, and their work is secular. They have no connection to jihad, or Al Qaeda or Taliban. Either he’s living in denial or is misled. But I think he is just lying.

But Chaudhry ruled that the government should produce the missing people, didn’t he?
As far as the missing people are concerned, Chaudhry has not given a single judgment on it. He kept the Human Rights Commission’s petition pending for one and a half months. But since we are lawyers of renown, it is very difficult for any judge to kick us aroundhe had to hear it. But he went at it very slowly. He did give a notice to the government [to act], but he really didn’t give a judgment. There was not a single time when he said that those who kept these people should be brought to justice. All he was doing was saying to the government, “Let’s find some people.” How can any court close its eye to hundreds of people who have disappeared?

Was Musharraf worried that Chaudhry would rule against his retaining a dual role as president and chief of Army staff later this year?
Whether the president can continue to wear his uniform or not was not an issue. We do not think that any judge has that kind of courage, including Chaudhry. We don’t think that these judges have gumption or courage.

The police roughed up Chaudhry as he went to his hearing last week.
You even see the chief justice on television being dragged by the hair. It was all over the newspapers and television. It’s a violation of human rights. What frightens people the most is that if they can treat a chief justice so shabbily and humiliate him so shamelessly, then nobody is safe. We all feel that we are next in line.

What will happen if the Supreme Judicial Council exonerates and reinstalls the chief justice?
If the SJC restores [Chaudhry] to the bench I don’t know if he can perform independently because lawyers are championing his cause. Would a chief justice who comes back riding on the shoulders of lawyers be able to sit on the bench and not be able to think about the fact that he owes his reinstatement to lawyers?

How do you see this ending?
They [the government] probably feel the longer they prolong the proceedings the greater the chance that the movement will eventually fizzle out. My own assessment is that the situation will become defused because lawyers can’t stay on strike and keep protesting for months on end. But this government will make another mistake. This government is beyond repair.
© 2007 Newsweek, Inc.
End Quote


An Unconstitutional Reference

The Musharraf FactorGuest Post by: Rai Muhammad Saleh Azam
The writer is an Advocate of the High Courts based in Lahore

Ever since the President sent a Reference to the Supreme Judicial Council (SJC) against the Chief Justice of Pakistan (CJP), Justice Iftikhar Muhammad Chaudhry, under Article 209 of the Constitution of Pakistan on that fateful day of March 9, 2007, public and legal opinion has been divided into two camps: one side opposing and the other side supporting the Reference. Various arguments have been put forward by both sides to support their contentions. Be that as it may, most seem to agree that the President of Pakistan is empowered to send a reference against the CJP under Article 209 of the Constitution.

A close scrutiny of the Constitution, however, reveals that the CJP cannot be the subject of a reference under Article 209 of the Constitution. Article 209 only permits the SJC to take up references against other Judges of the Supreme Court and the High Courts, and not the CJP. This is why, prima facie, there seems to be an apparent inconsistency and, one may dare say, conflict between Articles 209 and 180 of the Constitution and so much confusion and divergence of views on the subject.
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Dawn Under Pressure

Open Letter written by Hameed Haroon (CEO & Publisher, DAWN Group of Newspapers)

March 23, 2007
Dear Madam / Sir,

I am writing to draw your attention to an important matter that indicates the rapidly worsening environment for the freedom of press in Pakistan.

It has always been difficult for governments to coexist with a free and independent press in Pakistan. Of late, however, the government headed by President Musharraf has become increasingly intolerant towards criticism in the press and towards the publishing of news that reflects poorly on the performance of his government on security matters.

One of the intended casualties of this swelling hostility between government and press in Pakistan is the DAWN Group of Newspapers, the country’s largest independent English language newspaper and magazines publishing house.

Since December 2006, the DAWN Group is facing massive advertising cuts equivalent to two thirds of total government advertising. This has occurred primarily as a consequence of a decision ostensibly taken by Prime Minister Shaukat Aziz’s government, but in reality ordered by General Musharraf and engineered by several of his advisors that constitute the government’s inner cabinet.

It is clear that objections to the propriety of the DAWN Group’s editorial policies emanate mainly from President Musharraf’s office and his stance is heavily influenced by key advisors who have been entrusted with responsibility for implementing crisis management and conflict control in flashpoint areas. Particularly sensitive for the agreement are the escalating developments in Pakistan’s western province of Baluchistan, and in the tribal agencies of North & South Wazirstan on the Afghan border. Also irksome have been the DAWN Group’s related attempts to monitor a recurring tendency toward covert militancy among responsible decision-makers in government.

While preparing this dossier, I have attempted to include details and supporting documentation wherever possible, to facilitate your assessment as a key practitioner in the press rights movement internationally. Recent events in Pakistan indicate that attempts by the government to curtail the autonomy of the judiciary have been on the increase. This may have facilitated a temporary unintended pause in the government’s relentless campaign to muzzle the press. But such pauses presage a return to more coercive methods by government against the press, once the messy business of the executive – judicial conflict is brought to a successful halt.

If you peruse the documents accompanying this letter, you will find a chronology of events that cover the continuing conflict between the DAWN Group and the Government of Pakistan in the critical years 2004 to 2007. (Refer Appendix A 1.0) and that reflects some of the main causes of the present breakdown of communication between the government and the DAWN Group.

In the first phase, approximating with the years 2004 to 2005, the Government of Pakistan essentially worked by attempting to exert pressure on the Dawn Group by proxy – the proxy in this case being the Provincial Government of Sindh. It is in Sindh’southern metropolis of Karachi, that the headquarters of the DAWN Group of Newspapers are located.

This period first witnessed the government’s exerting of harsh pressures on our daily evening Newspaper – The STAR – by attempting to intimidate and harass journalists with false cases and concocted charges, and by a failed attempt to implicate the writer of this letter, as CEO of the Group, in a totally fabricated incident of terrorism and illegal weapons possession. (Refer Appendix A 1.1.1, to, 1.1.4 and 2.1.2)

This attempt culminated with a complete ban on advertising on DAWN Group newspapers and magazines by the Government of Sindh. However, in response to a petition filed by DAWN’s lawyers, the Sindh High Court ruled in DAWN’s favour. The Sindh Government sensing an impeding debacle withdrew the advertising ban in advance of the Court’s final verdict.

The second stage involved the direct exerting of pressure by the Federal Government itself. After a series of fumbling measures and half-hearted advertisement bans by the Federal Government with respect to DAWN in 2005, a turning point was reached when one of our influential current affairs magazines, the HERALD, published a series of controversial stories and articles from June 2005 onwards on topics such as the Pakistan Government’s war against Al-Qaeda and the Taliban in North and South Wazirstan; a possible resurgence of covert government support to Kashmiri militants; and also on the mushrooming policy debacle for government with respect to the Bugti insurgency in Baluchistan. (Refer Appendix A 1.2.1, to, 1.2.4 and 2.2.2)

In September 2006 when the government approached DAWN in its attempt to seek a news blackout regarding Baluchistan and the troubled FATA agencies of North and South Wazirstan, the editor of DAWN, Mr. Abbas Nasir, and the Directors of the Board of the DAWN Group, concluded that the government’s ‘request’ was unreasonable and needed to be firmly turned down. (Refer Appendix A 2.2.2 September – December 2006)

As a consequence, the government imposed an almost comprehensive ban on Federal Government advertising. (Refer Appendix A 2.2.2t) with an intent to provoke the financial collapse of the DAWN Group.

The DAWN Group had somewhat anticipated events from the increasingly strident tone of government criticism of its news policies and from the subsequent escalation in unreasonable informational demands from the government. As a precautionary measure aimed at reducing large financial deficits, we were forced to suspend the publication of our newspaper, the STAR, an important, but financial deficit generating newspaper, which has existed for over half a century and had been founded by working journalists of the DAWN Group.

Financial conditions within DAWN now became even more vulnerable to outside pressures as a consequence of our decision to commence work on a new TV channel – DAWN News. The grant of television broadcasting licences by the government towards such end is farmed out to a government organisation – the Pakistan Electronic Media Regulatory Authority (PEMRA) set up courtesy of an Ordinance passed in 2002. The President of Pakistan had on three different occasions in the last three years publicly announced that the controversial cross-media ownership rule (illegally tagged onto the PEMRA Ordinance as a subsequent rule/regulation by the authority) would be withdrawn and the large resource of talent available in the print media would be allowed to participate in the burgeoning electronic media revolution in Pakistan. Public opinion expressed itself in the widely held conviction that with the entry of the mainstream print media in the electronic media profession, discriminatory attitudes and the repressive stance of PEMRA with respect to press freedoms in the electronic media (Refer Appendix B & C) would be rolled back. However, the government’s current position in the courts with respect to DAWN’s application for a television broadcast licence (Refer Appendix A 2.3.2) has forced a rapid reassessment of public opinion with respect to the bonafides of government intention and clearly demonstrates that President Musharraf’s government is bent on pursuing a policy of blatant cronyism vis a vis the inclusion of selected and preferred print media houses in the electronic media revolution, and the rejection of others considered as hostile or non-compliant to government needs.

The government also appears determined to continue the domination of all news content on TV channels and on FM radio through harsh and repressive regulatory directives from PEMRA, evidenced in the grant of temporary uplink permissions in place of valid broadcasting licenses to selected channels of PEMRA’s preference.

The recent spate of programmes banned on television by PEMRA and a physical attack engineered by government on the offices of a prominent TV news channel-cum-newspaper office, clearly demonstrate the prevalence of government’s excesses in this matter.

In early December 2005 when the Prime Minister of Pakistan, Mr Shaukat Aziz summoned the undersigned to a meeting at Governor House (Sindh) to announce the Sindh Government’s decision to withdraw its advertising ban on the DAWN Group, he clearly informed me that the government was keen that DAWN should go ahead and set up a TV channel for the broadcast of English language news. The President’s constant public declarations regarding the withdrawal of the notoriously exclusionary cross-media ownership clause in the PEMRA rules and regulations and Parliament’s decision to finally withdraw this rule have not resulted in the licenses promised to newspaper publishing houses outside of government favour- this despite the passing of the legislation by both houses of Parliament . Such permissions have only been granted arbitrarily to selected groups by the government. This has led to a situation where we, at DAWN, in anticipation of the government decision to implement the new law have set up an entire organisation in Pakistan, employing over 350 journalists, technicians and managerial personnel and are anxiously awaiting the promised government license, all the while being forced to squander large financial outlays in anticipation of this.

The government’s refusal to give us a license mainly stems from our refusal to submit to its unethical pressures while reporting events in Baluchistan and North & South Waziristan. This refusal has become an acute cause of concern for the future financial viability of our publishing group.

Clearly the government would dearly like to see us lay off our journalists as they are viewed as a potential source of unwelcome criticism of government policies, rather than as compliant sheep to be hurriedly shepherded by PEMRA according to government whim.

Our colleagues in organisations devoted to protecting the freedom of the press throughout the world have always been a source of moral inspiration and help to us in our struggle for press freedoms in Pakistan.

We therefore urge you to extend your help in this matter and would appreciate if you address your concerns to the authorities in Pakistan regarding the following areas:

1. That the advertising ban by the Federal Government on the DAWN Group’s advertising is both unwarranted and unethical and a transparent mechanism to exert pressure on the newspaper group’s policies in contravention of the internationally accepted norms of objective news reporting.

2. That the decision to withhold a television broadcast license to the DAWN Group by the government is in violation of the judgments of the High Court of Sindh and the consent declarations made by PEMRA and the Federal Minister of Information in the Sindh High Court. Such right should be granted to other applying media groups as well on the same terms.

3. That the Government of Pakistan continue to submit its policies in Baluchistan and its agreements with the pro Taliban tribesmen of North & South Waziristan to the rigorous assessment of public and media scrutiny.

4. That the Government of Pakistan desist from abducting and arresting journalists in the judicious performance of their duties, and desist from physically attacking newspaper offices as has occurred last week in Islamabad.

Your concerns in this respect may be addressed to:

* The President of Pakistan, General Pervez Musharraf,
* The Prime Minister of Pakistan, Mr Shaukat Aziz,
* The Acting Chief Justice of the Supreme Court of Pakistan, Justice Rana Bhagwandas,
* The Federal Minister for Information Development, Government of Pakistan, Mr Mohammed Ali Durrani.

In addition your concerns should also be expressed to other key decision makers in the Government of Pakistan, urging all of them to desist from repressive, illegal and unethical practices deployed in their effort to subvert press freedoms.

For your ease of communication, I am including relevant fax contact details:

* General Pervez Musharraf, President of Pakistan +9251-9221388
* Mr Shaukat Aziz, Prime Minister of Pakistan +9251-9212866
* Justice Rana Bhagwandas, Acting Chief Justice of the Supreme Court of Pakistan +9251-9213452
* Mr Mohammed Ali Durrani, Federal Minister for Information Development, Government of Pakistan +9251- 9203740

Thank you in anticipation for your much needed support in this matter.

Yours sincerely,

Hameed Haroon
CEO & Publisher,
DAWN Group of Newspapers

Annex A: Summary and Chronology 2004-2007
Annex B: Media Control Through PERMA Ordinance
Annex C: Explanatory Note on the PERMA Rule on Cross Media Ownership
Annex D: Supporting Documentation


CJP & the Politico-Constitutional Crisis

By Amicus

Part One

Presently President Musharraf is faced with the most serious political crisis since he assumed the power on 12 October 1999. Briefly the unfolding of the events may be recorded in a chronological order. Read the lines and read between the lines.

March 9:
1. President General Musharraf summoned the Chief Justice of Pakistan, Justice Iftkhar Mohammad Chaudhry, to his Camp Office, located in the annex of the Chief of Army Staffs official residence in Rawalpindi, and in the presence of Prime Minister Shaukat Aziz sought his resignation. The Chief Justice refused to tender the resignation.

2. Confronted with an unexpected situation, President Musharraf, through a notification sought to make the Chief Justice of Pakistan non-functional and decided to send a reference, purportedly, under article 209 of the Constitution, to the Supreme Judicial Council to investigate the charges of misconduct and misuse of authority against him.

3. Not even a draft of reference had been prepared, perhaps owing to misplaced confidence or out of arrogance or in the hope that the Chief Justice would resign under persuasion or pressure. President only had letter of lawyer Naeem Bokhari containing some unsubstantiated allegations against the Chief Justice.

4. Simultaneously, President Musharraf, un-necessarily, appointed available senior-most judge, Justice Javed Iqbal, as the Acting Chief Justice of Pakistan. He was administered oath while the Chief Justice was still under detention in the Chief of Army Staffs Camp Office.

5. The Supreme Judicial Council was hurriedly formed. Since the senior-most Judge, Justice Rana Bhagwandas was outside the country, the Supreme Judicial Council did not fulfill the constitutional requirements.

6. If the Supreme Judicial Council was to find the non-functional Chief Justice guilty of the charges contained in non-existent or yet to be prepared reference, he was to be removed.

7. The Chief Justice was not allowed to go to his office even after several hours of detention. Against his wish, police escorted him to his residence where he was virtually placed under house arrest.

8. The Chief Justice was denied facilities of cable TV, newspapers and telephone. The flags of Supreme Court and Pakistan were removed from his hitherto official residence. Even his name was removed from the Official Web Site of Supreme Court. The Registrar of the Supreme court too was changed.

9. The legal fraternity took the Presidents action as unconstitutional and a blatant attack on the independence of the judiciary.

10.The Private TV channels exposed the hollowness and unconstitutionality of the Presidents action in their news, reports and discussion programs.

11.The nation was taken aback. The country was plunged into a deep crisis.

March 10
1. The newspapers were full of editorials and comments, and statements of lawyers and politicians condemning presidential reference. The private TV channels were seized of the matter. There was no respite. The intelligentsia and liberal sections of the society were shocked over the Presidents crude action.

2. It was vehemently contended that the government wanted to remove the Chief Justice because he had given bold decisions. His Suo- motu actions in the cases of privatization of Pakistan Steel Mills, the forced disappearance of the people, allotment of land to bureaucrats and army officers in Gwadar, etc were cited, as having presumably incurred displeasure of the government and prompted it to act against the Chief Justice. The whole exercise was rendered malafide and motivated by anything but the Constitutional diktat.

3. It was asserted with conviction that the Chief Justice had declined to promise a deputation of intelligence officials that he would uphold as lawful the actions which President Musharraf might take to get himself elected as president in uniform. And that this had left President Musharraf with no choice but to seek his removal before such actions were taken or emergency imposed.

4. The Chief justice remained incommunicado and a heavy police contingent was posted to guard his residence. His family was confined to the house and his son was denied access to his school.

5. All bar councils and bar associations decided to observe a black day on March 13 when the Supreme Judicial Council was to take up presidential reference. The lawyers began their agitation, which has continued to this date without let up.

March 11

1. Air Marshall Asghar Khan was allowed to meet with the Chief Justice. He disclosed that the Chief justice wanted the Supreme Judicial Council to have open proceedings.

2. Not sure of themselves, the ministers gave contradictory statements. The Sindh Chief Minister made wild allegations against the Chief Justice. The MQM was conspicuously silent. So did the Chief Minister of Punjab. Ironically both were, reported to have had complaints against the Chief Justice of Pakistan, which allegedly formed part of the reference.

March 12
1. Nationwide protests were reported. 40 lawyers were hurt in baton-charge in Lahore.

2. Two private TV channels were put off air for showing recordings of how lawyers were brutally beaten.

3. The government got visibly nervous and embarrassed.

March 13
1. The overwhelming support of the lawyers for the Chief Justice upset the government.

2. The Chief justice was roughed up on his way to the Supreme Judicial Council.

3. The Chief Justice demanded reconstitution of the Supreme Judicial Council.

4. The Opposition leaders stood by the Chief Justice.

March 14
1. The Acting Chief Justice took Suo motu notice of the manhandling of the Chief Justice.

2. The suspension of the Chief justice was challenged in the Lahore High Court.

3. Khalid Anwar and Fakhruddin G. Ibrahim declined to represent the government in the Supreme Judicial Council.

4. The US Assistant Secretary of State Richard Boucher arrived. The US State Department announced that his visit was not linked to the current situation in Pakistan.

March 15
1. Shaken by lawyers agitation and spontaneous outpourings of public support for the Chief Justice, the government reportedly initiated talks with the Chief Justice to find a way out of the crisis.

2. Sharifuddin Pirzada expressed his inability to represent the government in the Supreme Judicial Council.

3. A petition was filed in the Supreme Court to declare the whereabouts of the senior-most judge, Justice Rana Bhagwandas.

4. President Musharraf said that he would accept the verdict of the Supreme Judicial Council.

5. Boucher described the crisis in Pakistan as sensitive and said that it needed to be handled carefully.

March 16
1. Daylong battles were fought between protestors and the police across the capital, Islamabad, on the occasion of the second hearing of the presidential reference.

2. The defense lawyers said that no copy of reference was provided to them.

3. The police stormed the office of Geo TV. President Musharraf apologized for the attack.

4. The attack on media was condemned. Journalists came out on the streets.

5. The opposition flexed its muscles. The MQM declared that it was not consulted about the reference.

6. The British lawyers assured support to the Chief justice.

March 17
1. The Chief Justice declared that he would not resign and fight the battle for the rule of law and supremacy of constitution.

2. The Federal Minister for Law, Wasi Zafar stated that the Chief Justice was on forced leave under section 2 of the Judges Compulsory Leave Order 1970, validated in 1975 under the Validation of Laws Act 1975. A belated change in governments position?

3. President Musharraf said that he had no personal differences with the Chief Justice. The president tried to save his position by claiming that the government had sent a reference against the Chief Justice to him and as president it was his constitutional duty to send it to the Supreme Judicial Council.

4. President Musharraf termed the police attack on Geo TVs office in Islamabad a conspiracy [yes conspiracy] aimed at tarnishing his image.

5. 50 were injured as lawyers and police clashed in Lahore. There is a call by lawyers for countrywide strike on 21 March.

6. Balochistan cities were hit by rockets and bomb blasts.

7. In New York, Benazir Bhutto said that the Taliban must be defeated in Pakistan this year or the country risked to fall under the sway of extremists.

Part Two

The above-mentioned developments from March 9 onwards suggest that the situation is very tricky and has all the potentials to drift out of control.

President Musharraf needs to weigh his options very carefully and take a decision that appears to be in national interest and in the interest of his own survival.

From a hind side, on three counts President Musharraf must be very clear:

1. He did not have the authority to make the Chief Justice non-functional. His act was unconstitutional.

2. He did not have the authority to appoint an Acting Chief Jusitce nor was it called for or ever occasioned.

3. In the absence of the senior-most judge after the Chief justice, who in the present case is Justice Bhagvandas, the composition of the Supreme Judicial Council is not as per mandatory requirements of the Constitution.

In the present circumstances when the legal fraternity has discussed the whole issue threadbare in bar associations and in public through electronic media, the Supreme Judicial Council is likely to declare its own composition unconstitutional or wait for the return of Justice Bhagvandas to fulfill the constitutional requirement.

Justice Bhagvandas has a reputation for being a man of principles. He is not likely to accept any pressure from executive in dealing with the matter.

The Supreme Judicial Council under Justice Bhagvandas would more likely to declare presidential notification, making the Chief justice non-functiona,l as null and void. Such a decision would be extremely embarrassing for President Musharraf.

There is no guarantee that any fresh reference against the Chief justice as per constitutional procedure would result in his conviction and removal. If the Supreme judicial Council absolves Justice Iftikhar Mohammad Chaudhry, President Musharraf would become laughing stock in public.

The best course for President Musharraf is to admit publicly that he had committed a procedural mistake and to withdraw his notification of declaring Chief Justice non-functional and so also his reference against the Chief Justice to the Supreme Judicial Council.

In the past we have seen that President Musharraf broke his promise of giving up uniform by 31 December 2004 and explained his reasons to the nation for that. If he is able to convince the people that some advisors misguided him regarding the procedure of filing the reference, the people are likely to excuse him for what happened.

Within a few weeks the whole issue may go into oblivion and become a thing of the past. The lawyers would go back to their business and the opposition would be left without a potentially dangerous issue.

President Musharraf would then be in a position to take a fresh stock of the situation. He may identify the people who made error of judgment or deliberately misguided him. Once the culprits are identified, he may get rid of them in a proper manner. Some heads would roll and the things would settle down.

For future, it is advisable that President Musharraf realizes the limitations in which he has to maneuver. The present political dispensation has lost its worth. If he tries to get himself elected from the existing assemblies without consent of the real stakeholders, he would face an extremely stiff opposition. The country may plunge into another major crisis, the first casualty of which would be Musharraf himself if extra-constitutional forces intervene.

Instead, a sensible option is to take all the stakeholders, including the Pakistan Peoples Party, on board and form a government of national consensus.

If needed due to genuine reasons, President Musharraf may impose emergency with the approval of stakeholders and as per constitutional provisions the term of the present assemblies may be extended by one year. The assemblies may elect President Musharraf without uniform for another five years and at the end of the assemblies extended period, free and fair elections may be held under the national government.

If the real stakeholders (foremost being the PPP) are not prepared for postponement of general elections, the present assemblies may be dissolved under relevant constitutional provisions, a national government or a government of consensus may be formed and general elections held without unnecessary delay. (This may not be to his liking owing to the fact that he, at the behest of his over zealous advisors, has squandered lot of capital for now).

The circumstances are such that if the dissolution of the assemblies is challenged, the Supreme Court is likely to uphold the legality of dissolution on the ground of state necessity or on the basis of the argument that for holding of presidential election, which is due between 16 September and 15 October 2007, it is imperative that the newly constituted assemblies should serve as electoral college.

Another sensible way is that after the budget session, President Musharraf may persuade the Prime Minister and the Chief Ministers to tender advice as per constitutional provisions for dissolution of the National and Provincial Assemblies. By the second week of September 2007, the new assembles may come into existence to serve as electoral college for presidential election which is, as stated above, due between 16 September and 15 October 2007.

For all these options to succeed, President Musharraf would have to strike a deal with the Pakistan Peoples Party on future political set up. The PPP is likely to accept Musharraf as president without uniform provided it is offered a level playing field and allowed to form government in case it is able to forge a majority.

This would take the country back to erstwhile system of troika. The restoration of the troika system would be acceptable to the armed forces also. It will let the Supreme Court in its place, as the arbiters for convenience or exigency.

Other options are fraught with extreme dangers.

If the legal battle over the presidential reference takes a nasty turn due to any reason and anti-government agitation picks up, President Musharraf may be forced to have unceremonious exit by the armed forces.

If President Musharraf wins legal battle through unscrupulous means – he pressurizes the Supreme judicial Council or bribes or threatens Justice Iftikhar Mohammad Chaudhry to obtain resignation – neither the people would accept it nor the legal fraternity or opposition.

If President Musharraf imposes emergency without approval of the stakeholders or tries to get himself elected by the present assembly without first forging understanding with the stakeholders, he is almost certain to fail.

His emergency may then be followed by martial law.

President Musharrafs own constituency is already uneasy with him. Some of his policies are resented by strong quarters in the armed forces. It is advisable for him not to go for head-on collision with the opposition.

A recent, motivated, article in The New York Times, has indicated that the United States no more considers General Musharraf as indispensable. If Musharraf goes, the Vice Chief of Army Staff would simply become the Chief of Army Staff and the Chairman of Senate would assume presidency. It would be a re-enactment of what happened in 1988 after President and Chief of Army Staff General Mohammad Zia ul Haq was killed in a plane crash.

When some sensible options are available, why take risk?


Text of Reference Filed Against the CJP

Start Quote
BEFORE THE SUPREME JUDICIAL COUNCIL, PAKISTAN
ISLAMABAD

Reference by the President, Islamic Republic of Pakistan under Article 209 of the Constitution

Respectfully sheweth:

The facts and circumstances necessitating this Reference by the president of the Islamic Republic of Pakistan (“Pakistan”) under Article 209 of the Constitution, briefly stated, are as under:

I. The Prime Minister of Pakistan on receipt of information, from several sources, with respect to the conduct of Mr. Justice Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistan (hereinafter referred to as, “the learned judge”) was pleased to advise the President of the Islamic Republic of Pakistan to “direct” the Supreme Judicial Council of Pakistan, in exercise of its powers under Article 209 of the Constitution, to inquire into the matter and report to the President whether the learned judge has been guilty of misconduct and further, whether he should be removed from office?

II. The advice of the Prime Minister was, inter alia, based on the following:

Arsalan Iftikhar

1. Dr. Arsalan Iftikhar is one of the sons of the learned judge. As narrated in paragraphs 2 to 25, the learned judge committed misconduct by employing his position to gain undue advantage for Dr. Arsalan Iftikhar. To secure this end he committed and was responsible for the commission of a number of unlawful acts. That all the acts narrated in paragraphs 2 to 25 were committed as a result of his influence and on account of the demands made by him and the pressure exerted by him. He unlawfully used his position as a judge and Chief Justice of the Supreme Court of Pakistan influence, harass and intimidate all concerned and compelled them to act in an unlawful manner. Such conduct is unbecoming a judge and is particularly reprehensible in the case of the Chief Justice of Pakistan.

2. Dr. Arsalan Iftikhar sought admission to Bolan Medical College in the year 1996. Having secured 639 marks with an overall “C” grade in his Intermediate Examinations he could not be admitted on merit. The threshold being 750 marks. The Chief Minister of Balochistan was approached who nominated him, “for admission in 1st year MBBS class in Bolan Medical College, Quetta, against leftover foreign vacant seats/special seats”.

3. On 22 June 2005 Dr. Arsalan Iftikhar was appointed as Medical Officer/Demonstrator in the Institute of Public Health, Quetta.

4. On 18 July 2005, a few days after Dr. Arsalan Iftikhar was so appointed, the Chief Minister of Balochistan passed the following order:

“Dr. Arsalan Iftikhar, Medical Officer, presently posted as Demonstrator, Institute of Public Health Quetta be transferred and posted as Section Officer (Technical) in Health department with immediate effect in the interest of public service. Please issue notification.” [Emphasis supplied]

The Chief Secretary, Balochistan, to whom these orders were addressed, directed these to the Health Department on that very day (18 July 2005).

5. The Health Department on 10 August 2005 referred the case to the Services and General Administration Department (“S&GAD”) as the authority “for posting/transfer of Secretariat staff is S&GAD Department.

6. On 11 August 2005, in a Summary for the Chief Minister, the S&GAD pointed out that “no … post in Technical quota is available against which Dr. Arsalan could be considered for posting as Section Officer”. It was, however, pointed out that 07 posts of Section Officers against the “quota of initial recruitment are vacant”, the case for placing the requisition of these posts with the Balochistan Public Service Commission was being processed separately. It was “proposed that Dr. Arsalan Iftikhar be considered for posting as Section Officer against one of the vacant post as a temporary arrangement”.

7. On 15 August 2005 a notification was issued to the effect that Dr Arsalan Iftikhar Demonstrator in Institute of Public Health, Quetta, was “transferred and posted as Section Officer (Dev) in Health Department, against existing vacancy with immediate effect until further orders.”

[Emphasis supplied]. It may be stated that as was pointed out in the Summary to the Chief Minister, there was no existing vacancy. The 07 vacancies had to be filled by initial recruitment through the Balochistan Public Service Commission. What was proposed was that at best Dr Arsalan Iftikhar be temporarily accommodated against one of these vacancies, till it was filled by a suitable candidate by the Balochistan Public Service Commission.

8. Nine days before the notification of 15 August 2005 was issued, the Ministry of Interior, Government of Pakistan, addressed a letter on 6 August 2005 to the Chief Secretary, Government of Balochistan:

The services of Dr. Arsalan Iftikhar, BS-17 officer of the Health Department, Government of Balochistan are required to be utilized in FIA in public interest [Emphasis supplied]

2. It would be highly appreciated if you could place the service of Dr Arsalan Iftikhar at the disposal of the Ministry of Interior for posting in FIA.

On 13 August 2005, two days prior to the notification of 15 August 2005, the S&GAD, Government of Balochistan conveyed to the Ministry of Interior, Government of Pakistan, its “no objection for placing the services of Dr. Arsalan Iftikhar (Health/B-17) at the disposal of Ministry of Interior for posting in FIA. While this letter was either in the mail or had not reached the “right” hands, the Ministry of Interior sent a reminder on 16 August 2005.

9. On 5 September 2005 a notification was issued by the Ministry of Interior, Government of Pakistan. Dr Arsalan Iftikhar was transferred and his services were placed at the disposal of FIA for posting as Assistant Director (BS-17) in the FIA, on deputation for a period of three years, in his own pay and scale, with immediate effect and until further order.

10. On 9 September 2005, the Secretary S&GAD brought the matter to the attention of the Chief Secretary, Balochistan. On 13 September 2005 the Chief Secretary Balochistan on behalf of S&GAD issued a notification pursuant to the notification of the Government of Pakistan. On 30 September 2005 Dr Arsalan Iftikhar received charge of the office of Assistant Director, FIA at Islamabad. This was notified on 24 October 2005.

11. Within four months of his appointment as Medical Officer/Demonstrator in the Institute of Public Health, Quetta, Dr Arsalan a BS-17 officer, who had not even completed the mandatory period of his probation, was transferred and posted first as a Section Officer in the Government of Balochistan against a non-existent vacancy and then sent on deputation as Assistant Director, FIA, to the Ministry of Interior, Government of Pakistan, for a period of three years; all in the public interest. And this for a person who had appeared thrice in the CSS competitive examinations and failed each time.

12. Under Rule 8 of the Health Department, Government of Balochistan, Service Rules 1984, a person appointed to the service against a substantive vacancy remains on probation for a period of two years if appointed by initial recruitment. Dr Arsalan, having been so appointed, on 22 June 2005, his period of probation would have been completed on 21 June 2007.

13. On 22 November 2005 the S&GAD, Government of Balochistan moved a summary to the Chief Minister, Balochistan proposing confirmation in services of Dr Arsalan Iftikhar “with immediate effect against the substantive post of Medical Officer in the Provincial Health Department by relaxing Rule 8 of the Balochistan Health Department (Basic Pay Scale 16 and above) Service Rules 1984 for completion of probation period of 2 years.” On 5 December 2005 the S&GAD, Government of Balochistan issued a notification whereby the services of Dr Arsalan Iftikhar were confirmed.

14. On 22 March 2006 in continuation of its notification of 5 September 2005, the Ministry of Interior issued yet another notification, Barely within 5 months of having assumed the charge of Assistant Director FIA in BS-17:

Dr Arslan Iftikhar (BS-17) Health Department, Government of Balochistan Quetta is transferred and his services are placed at the disposal of Director General Federal Investigation Agency for posting as Deputy Director (BS-18) in FIA on deputation basis for a period of three years….(Emphasise supplied)

On 7 April 2006 it was notified that he had assumed charge of the office of Dy Director (BS-18) FIA on 22 March 2006. On 9 May 2006 by a letter issued by the Office of the Director General Federal Investigation Agency it was clarified as follow:

Now he has been upgraded as Deputy Director in BPS-18 with retrospective effect, i.e. from the date of initial joining as per notification dated 22-03-2006.

On 9 May 2006 the Ministry of Interior issued yet another notification in partial modification of its notification of 22 March 2006. It was stated:

Dr Arslan Iftikhar has assumed the charge of the post of Deputy Director /BS-18, FIA on 3rd September 2005 with retrospective effect.

15. This done, a campaign was launched to induct Dr Arsalan Ifitkhar in the Police Service of Pakistan. As BS-17 officer Dr. Arslan Ifitkhar could have joined the Police Service only through the competitive services examination conducted by the Federal Public services commission but being in BS-18 made induction possible and the FPSC route could be avoided. As a first step he was to be sent to the Police Academy for training with PSP officers all of whom had been selected by the Federal Public Services Commission. The training was exclusive to PSP officers.

16. On 19 May 2006, the Ministry of Interior addressed a letter to Commandant, National Police Academy, Islamabad, stating that Dr. Arshaln Iftikhar, Deputy Director, FIA, was attached with the National Police Academy for training with CTP batch. The Commandant was requested to attach the said officer for field training along with under training ASPs to cover catch aspect of the required training.

17. On 24 May 2006, the Ministry of Interior again issued a letter to the Commandant, National Police Academy, Islamabad, stating that after the completion of the specialized training programme at the National Police Academy, the services of Dr Arslan Iftikhar be placed at the disposal of Punjab Police for further posting at Lahore for his District Attachment Training.

18. Pursuant to the letter of 24 May 2006, the National Police Academy, Islamabad, on 27 June 2006 relieved Dr Arslan Ifitkhar, “for completion of remaining training programme of 32nd CTP, and directed to report to Elite Police Training School, Bedian Lahore on 02-07-2006 doing six weeks Orientation Course.” After completion of the course he was to “report to CPO, Punjab, Lahore for Phase III part of training which is six months Field Attachment”.

19. In the meantime, the Prime Minister’s Secretariat was approached for the permanent induction of Dr Arsalan Iftikhar in the Police Service of Pakistan in BS-18. On 16 May 2006 the Prime Minister’s Secretariat sought the views of the Establishment Division in that regard.

20. The UO Note of the Prime Minister’s Secretariat was also circulated to FIA. On 3 June 2006 the Office of the Director General, FIA, stated that, “neither FIA requisitioned his services, nor was involved at any stage for his deputation or district attachment etc.” FIA, therefore, expressed its inability to offer any views/recommendations on the UO Note.

21. On 23 May 2006 the Establishment Division noted that as per the PSP (Composition, Cadre and Seniority) Rules, 1985, “the request of the officer for induction in PSP in BS-18 is not feasible.” In a separate note the Establishment Division observed that Dr. Arsalan Iftikhar could not be inducted in the Police Service of Pakistan without an amendment in the PSP (Composition, Cadre and Seniority) Rules, 1985. Such an amendment could only be made with the approval of the President.

22. On 31 May 2006 the Secretary, Establishment, was called by the learned judge for a meeting at his residence. The meeting took place at 2100 hours. The observations of the Establishment Division were also communicated to him. The learned judge appreciated the aforementioned reservations but the meeting ended with the learned judge insisting on:

(a) the induction of Dr Arslan Iftikhar in FIA preferably in BS-18;

b) his subsequent deputation to the Punjab government without their specifically mentioning the post against which he will be posted; and

c) simultaneous initiation of a proposal to amend the rules to provide for induction of FIA officers in the Police Service of Pakistan, and sought his son’s permanent induction in (BS-18) in the Police Service of Pakistan.

The Secretary, Establishment, communicated these demands to the Principal Secretary to the prime Minister, around midnight, the same evening. Soon thereafter the Secretary Establishment received a call from the learned judge saying that he had found a number of precedents of induction into various groups. On 1 June 2006 the papers were received from the learned judge. Later, the learned judge called the Secretary Establishment on the Green Line to enquire if the papers sent by him had been examined. The Secretary Establishment stated that it would take some time. The learned judge stated that orders of the Prime Minister be obtained by referring to these precedents. He was told that a written reference would be made to the Prime Minister’s Secretariat giving the precedents as well as the legal position. The learned judge responded that a written reference would “jeopardize the case and that this was part of a package and reference to the rules need not be made.”

23. The learned judge continued to “insist” that all concerned make the necessary changes and warned of “consequences” if his desires were not met. Due to the relentless pressure and the campaign of intimidation and harassment launched by him, ultimately a summary was prepared and submitted by the Establishment Secretary on 23 June 2006 to the Prime Minister for addition of a new “Rule 7-C” in the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985. The amendment was tailor made for Dr. Arsalan Iftikhar.

24. Since then the learned judge has almost on a daily basis exerted all kinds of pressure on the Prime Minister’s Secretariat to secure the approval of the summary aforementioned and for the consequent induction of Dr. Arsalan Iftikhar as an officer in the Police Service of Pakistan as a BS-18 officer.

25. He also used his influence and authority to have Dr. Arsalan Iftikhar nominated to attend the 2nd Training Course in Combating International Terrorism and Organized Crime from 30 October 2006 to 3 November 2006 in Istanbul. He was the only non-PSP officer and the only under training person to attend this course.

26. The learned judge is entitled to one 1600 CC car, but he has contrary to the norms and rules on the subject secured the use of the following cars for himself at Islamabad:

i) Mercedes Bens 3000cc

ii) IDJ-166 Toyota Corona Model 1993 – 1300cc

iii) ODF 6828 Toyota Corona Model 1993 – 2000cc

iv) CIA-9 Toyota Corolla Model 2000 – 1300cc

v) GP-8695 Toyota Corolla Model 2002 – 1300cc

vi) IDM-7976 Toyota Corolla Model 2003 – 1300cc

vii) IDM-7977 Toyota Corolla Model 2003 – 1300cc

27. Besides these the learned judge has the use of a fleet of cars at Islamabad, Lahore and Quetta.

28. On more than one occasion demands have been made to the Chief Minister or Governor of the province which the learned judge is visiting to provide the cars for their own official use to the learned judge during the period of his stay in the province.

Protocol over and above entitlement

29. The learned judge insists on being provided protocol which has neither been ever sought by or provided to a Chief Justice. Besides an outrider to lead the cavalcade the demand is for a number of police vehicles to follow him. The men have to be from elite units. At times specific demands have been made for an officer not below a particular rank to act as an outrider. Traffic has to be diverted or stopped while the convoy travels from one point in the city to another at high speed. Such actions are completely unprecedented for a Chief Justice.

30. Demands have been made for senior bureaucrats not below a particular rank to receive him at the airport when he arrives in a provincial capital.

USE OF PLANES AND HELICOPTERS

31. The learned judge frequently demands the use of the plane or aircraft of a Governor or a Chief Minister to travel from one place to another or for a private visit to offer condolences or to attend a function. The learned judge is well aware that he is not entitled to the use of these aircraft and helicopter but is in the habit of making these demands frequently and secures these by insisting on these.

Para 32 deleted

33. For some time a BMW car registration No “RAZIA-1” remained in the use of the learned judge and members of his family. The story hit the press and when it refused to die down the car was quietly moved elsewhere.

Judicial Conduct

34. There are complaints of orders being verbally announced in open court in favour of one party and subsequently a written order at variance from the order announced in court being delivered. Two such cases have acquired particular notoriety. In one of these two cases it is alleged that amounts as large as Rs55 million may have been involved.

Reports

35. These matters have been subject of general and uncontradicted public comment, press reports, magazine articles, media comments by senior and respected members of the bar and former members of the superior judiciary.

Entitlements

36. The learned judge used the influence of his position to gain undue advantage by “insisting on an increase and enhancement in his entitlements or in securing the relaxation of the rules in that respect.

III. In the light of, inter alia, the foregoing facts and circumstances, and after a thorough consideration of the matter the Prime Minister of Pakistan advised the President of the Islamic Republic of Pakistan to refer to the Council, for its report, the question whether the conduct of Mr Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan in the following matters namely:

(a) in using his position, office, influence and authority as a judge of the Supreme Court and Chief Justice of Pakistan to:

(i) secure the appointment of his son Arsalan Iftikhar as a Section Officer in the Health Department, Government of Balochistan;

(ii) to have his son Arsalan Iftikhar sent on deputation by the government of Balochistan to the Ministry of Interior, Government of Pakistan as Assistant Director, FIA in BS-17;

(iii) to have his son Arsalan Iftikhar confirmed in the service of the Health Department, Government of Balochistan, much before the expiry of the mandatory period of probation in violation of the applicable rules;

(iv) to have his son Arsalan Iftikhar upgraded as Dy Director, FIA, in BS-18 with retrospective effect;

(v) to make efforts to have his son Arsalan Iftikhar inducted in the Police Service of Pakistan in violation of the rules and/or to seek an amendment of the applicable rules;

(b) in seeking and securing official vehicles and transport for his use much beyond the sanctioned and permissible limits;

(c) in insisting on protocol to which he was not entitled;

(d) in demanding and securing use of helicopters and planes to the use of which he was not entitled;

(e) in accepting accommodation with a litigant before the Surpeme Court;

(f) in using the BMW car “Razia 1”;

(g) in writing judgements which were contradictory to orders announced verbally in open court;

(h) in insisting on entitlements or having rules relaxed for such entitlements;

constitutes a ground of misconduct on which the learned judge ought to be removed from the office of a judge of the Supreme Court of Pakistan and the Chief Justice of Pakistan.

IV: The President of the Islamic Republic of Pakistan is of the opinion that the learned judge may have been guilty of misconduct and therefore, is pleased to refer the question aforementioned to the Council for the purpose of conducting an inquiry into the matter and after such inquiry as it may deem fit report to the President its opinion whether the learned judge has committed misconduct and whether he should be removed from the office of a judge of the Supreme Court and the Chief Justice of Pakistan.

V. That the Prime Minister was further pleased to advise the President that besides making the reference to the Council the President may simultaneously, in exercise of his constitutional and inherent powers under the Constitution of Pakistan and all other power enabling him in that behalf, direct that as a reference would be pending against the learned judge before the Council it would be neither in the public interest nor in consonance with the norms of judicial propriety that he continues to perform the functions of his office as a judge of the Supreme Court or as the Chief Justice of Pakistan. This would be in consonance with past practices as well. For these reasons, till such time that the reference has been disposed off by the Council and final orders in the matter have been passed, the most senior of the other judges of the Supreme Court shall act as the Acting Chief Justice. The President has been pleased to pass orders accordingly.

VI. It is requested that this reference may please by taken up as soon as it may be convenient, an inquiry into the matter be commenced and the reference be disposed off as expeditiously as may be possible for the Council.

General Pervez Musharraf President, Islamic Republic of Pakistan

Through

Mr Justice (Retd) Mansoor Ahmed
Secretary, Ministry of Law, Justice and Parliamentary affairs Islamabad
Date: 9th March 2007

End quote


Lawyers Mobbed by Punjab Police

whiteband_v20_m.jpgReported by: Rai Muhammad Saleh Azam

The All Pakistan Lawyers Convention was held under the auspices of the Pakistan Bar Council (PBC) and the Lahore High Court Bar Association (LHCBA), attended by approximately 3,000 lawyers, some political leaders, NGOs and even some students and faculty members from LUMS.

The Convention commenced at 10:00 a.m. at the Karachi Shuhada Hall of the LHCBA and the LHCBA Courtyard, both packed to capacity. The plan was that, after the convention, the lawyers would take out a peaceful procession to the Punjab Assembly and back. At about 11:00 a.m., lawyers started to march out from the LHCBA courtyard and towards the GPO Gate of the Lahore High Court (LHC). They were still in the precincts of the LHC parking lot when the police, without provocation, started teargassing the lawyers. Teargass shells were fired indiscriminately into the crowds, injuring dozens of people and temporarily incapacitating hundreds. Teargas cannisters were falling even inside the courtyard of the LHCBA.


Continue reading “Lawyers Mobbed by Punjab Police” »


Justice or Martial Law?

Ever since the attack on the Judiciary in Pakistan, last Friday (post) practically the entire country is abuzz with a number of confusing questions of which probably the least addressed is when does Pervaiz Musharraf enforce a proper Martial Law. In my opinion Pakistan is already under a full fledged Martial Law since 1999 but disguised as a torjan horse titled Enlightened Moderation.

Iftikhar beaten up
Police escort Manhandling the
Chief Justice of Pakistan Iftikhar Mohammad Chaudhry,
A picture not aired in the media outlets in Pakistan

A number critics say that it just can’t happen, while many believe that martial law is inevitable. I belong the latter group, in my opinion Musharraf had been buttering the people of Pakistan for the past year in preparations to make them swallow the presidency pill for another five years. The stage was prepared when he successfully masterminded a thumbs up from Uncle Sam, it was during his US-Book Tour visit that Pakistan went through an interesting roller coaster ride, I had protested back then that the simple revelation of Pakistan being bombed back into the stone ages should have been enough for any decent Pakistani leader to walk off, but not Musharraf as he was their for a more personal reason far more important then Pakistan. Millions back home reacted simply How Dare They?. It was actually Musharraf who expertly handled the ABC interview threw out this ball-busting comment to force George Bush onto the back foot and then was able to pull out the trump card right from the grasp of Uncle Sam getting himself a sexy peck on the cheek and a pat on the behind for a job well done. Musharraf finished the cake with a hilarious gig with Jon Stewart where he displayed stand-up comedy type of showmanship but the icing was when he got Bush to publicly plug his autobiography on live TV, asking people to ‘Buy the Book’, literally a dream come true for any aspiring writer.

Continue reading “Justice or Martial Law?” »


CJP Issues a Statement to SJC

Credit: Pak Law Blog

Start of Statement

The SJC on having gone through record passed an order detrimental against my interest and against the interest of institution whereby I have been restrained to work as supreme court judge and chief justice of Pakistan.

Such powers are not available at all to a facts finding inquiry commission/council as such powers are available to courts and can be derived only from the constitutional provisions and the law.

In my understanding and as per the interpretation of the constitution under article 209 no such powers are available to the council as it is not exercising the power of the court.

Be that as it may by passing restrained order by the council as well as the earlier order notified in notification no 529/(2)/2007 issued by the president of Pakistan which is equally contrary to the

constitution I have suffered as under

  • (A) Detained for all intend and purpose with my family members including my infant child of 7 years from the evening of march 9th, 2007 uptill now. My official residence is seiged with heavy contingent comprising police and member of other agencies. For which there is no justification.
  • (B) The vehicles which were in my use have been taken away by means of a lifter. Out of which one has been brought back by a lifter without its keys.
  • (C) Staff of Supreme Court attached with me is reportedly missing and had been kept at an unknown place. I believe that they have been detained just to fabricate evidence against me. I have also learned reliably that my chamber was also sealed and reportedly files lying there in have been removed and some of them had been handed over to ISI under the supervision of newly appointed registrar. Such act is contrary to all norms and practices. I being CJP is entitled to occupy my chamber along with my staff.
  • (D) On account of deployment of heavy contingencies I am not allowed to go outside nor my family members are allowed to do so. Similarly no one is allowed to meet me freely. In as much as my colleagues have no access to me and whenever they want to visit me they have to wait on the gate for a considerable period during which permission is sought from high ups. example of Mr Justice Raja Fayyaz Ahmed can be quoted as on one occasion he has to go back without meeting me. Similar treatment was offered to Mr Justice (Retd) Munir.A Sheikh.
  • (E) My children are not allowed to go to school, college and university.I am not getting facility of telephones, cable and DCL. Similarly I along with my family members have been deprived from basic amenities of life i.e medicines and doctor etc.
  • (F) No panel of lawyers is available to discuss the legal and factual issues involved in this reference. This fact I have already highlighted on the notice received on march 10th,2007.
  • By noting the above agonies which are being suffered by me I do not want to seek any relief from the council except that an unconstitutional order dated march 9th,2007 passed by the council has persuaded me to show distrust on the formation of the council because the manner in which I have been dealt with. I do not expect a fair inquiry particularly for the following reasons with reference to the Chairman and 2 other members.

    Justice Javed Iqbal

    He has been appointed as acting Chief justice contrary to article 180 of the constitution of Islamic republic of Pakistan which provides that acting Chief justice can be appointed when the office of the Chief justice of Pakistan is vacant or the Chief justice of Pakistan is absent or is unable to perform the functions of his office due to any other cause. The cause could be that if the Chief justice is incapable of properly performing the duties of his office by a reason of physical or mental incapacity, which is not the case over here.

    Therefore he should not have taken oath of the office of the acting Chief justice not withstanding that whosoever has issued his notification.

    As per the mandate of article 209 of the constitution if the reference is to be heard against the Chief justice of Pakistan the judge of the supreme court who is next in seniority would head the council BUT without being appointed as acting Chief justice.

    Mr Justice Rana Bhagwandas is admittedly the senior most judge therefore on account of his temporary absence from the country up to March 22nd,2007 there was no urgency to convene the meeting of SJC during night/after office hours and by ensuring presence of 2 Chief justices by making arrangements by a special plane. Such actions on his part speak volumes as it has been reported in international The News. Extract of which is appended here with as annex-B.

    Justice Abdul Hameed Dogar

    He administered oath to Justice Javed Iqbal on march 9th,2007 for the office of acting Chief Justice disqualifying himself to be Judge of the supreme court knowing well that office of the Chief Justice is not vacant as he is not incapable to perform his duties physically or mentally.

    Justice Iftikhar Hussain Chaudhry

    I have serious objection on his being member of the council and I do not have expectations of fair inquiry from him.

    Thus his name should be excluded from the panel in the interest of justice and fair play.

    In view of above objections I am of the opinion that SJC is not duly constituted and is incapable to hold inquiry against me.

    Without prejudice to above I reserve my right to raise any other objection at the time of submitting my reply to charge sheet because so far no documents have been supplied to me nor I have any facility to consult panel of lawyers because no one has been allowed to accompany me.

    Therefore I maybe supplied precis of oral evidence and documentary evidence.

    I will be submitting a list of documents in support of my defence, which shall be summoned by the SJC as I have no access.

    PUBLIC INQUIRY

    The contents of notice indicates camera inquiry but I am of the opinion that charges against me are not sustainable being unfounded.

    Therefore to vindicate my honour I would prefer for a public inquiry, so whole of the world may know the nature of allegations and my defence, and I am confident that I will be exonerated of the charges if fair inquiry is allowed. As for as the rule 13 of conducting inquiry is concerned it pertains to the inquiry in respect of which a direct complaint has been received by the SJC and powers are to be exercised by the council under the article 209(5),but in my opinion for the reference received from the President of Pakistan the SJC can follow any other procedure including public inquiry.

    The necessity of public inquiry is also called for because the reference is based in a letter and spirit of open letter written by Mr Naeem Bokhari which has already been publicized widely.

    Therefore there should not be any objection/observation in holding public inquiry. As a question of my and institutions prestige is involved therefore I volunteer for open inquiry so the public of this country may have more respect and confidence in the institution of the higher judiciary.

    Thus for the above reasons the council maybe reconstituted accordingly excluding the members in respect of whom objections have been removed here and above and to negate the impression nationwide and to save the countrys image internationally that this is one sided biased dummy and command performance.

    The copies of requisite document be supplied to me along with the copy of the rules of SJC.

    A panel of the lawyers ready to defend me and the judicial system of this nation is present outside the court building since they are not being allowed to enter in the court premises against all norms and ethics as well as the principle of access to justice and justice for all.

    Therefore lawyers should be allowed inside to argue these objections because the building of the Supreme Court belongs to bench and bar both.

    At the end I say that the order dated march 9th,2007 restraining me from functioning as the Judge of the supreme court and the Chief justice of Pakistan be recalled being contrary to the provision of the constitution.

    Justice Iftikhar Mohammad Chaudhry
    (Chief Justice Islamic Republic of Pakistan)

    Start of Statement
    Credit: Pak Law Blog

    Protest Against the Mockery made of our Judicial System by signing this Petition


    An Executive Assault on the Judiciary

    Guest Post by: Rai Muhammad Saleh Azam
    The writer is an Advocate of the High Courts based in Lahore

    The reference filed by General Pervez Musharraf against the Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, and his “suspension of the Chief Justice of Pakistan (CJP) adds to the many instances of attacks on the judiciary by the executive branch of government in Pakistan, which, more often than not, has been dominated by military rulers. It is a direct and frontal assault on the independence of the judiciary intended to ridicule the judiciary, to undermine its constitutional authority and to prevent it from freely exercising its power of judicial review of executive actions. It is an assault that is most shameful, deceitful and Machiavellian in its scheme.

    Ever since Pervez Musharraf came into power through an unconstitutional military takeover on 12 October 1999 (which the Constitution of Pakistan, 1973 terms as “high treason), he has been persistently and consistently acting in violation of constitutional norms and undermining and weakening Pakistans civilian institutions. This latest move against the CJP is intended to browbeat the judiciary into submission and subservience so that it cannot challenge executive authority or hold the government accountable for its misdeeds.

    One does need to strain ones eyes to see that this move is underpinned by ulterior motives and a mala fide intent on part of the executive branch. This is a move to check a Chief Justice who was

  • (i) increasingly becoming judicially active,
  • (ii) taking bold and daring steps to hold the executive branch accountable on multiple fronts,
  • (iii) genuinely concerned with the cause of justice and the plight of the common masses of Pakistan
  • (iv) taking practical steps to reaffirm the rule of law and independence of the judiciary and
  • (v) exercising his suo moto powers to take judicial notice of illegal omissions and commissions of both the federal and provincial governments.
  • Particularly, a series of decisions and posturing by the CJP on key economic and social issues put the CJP-led Supreme Court on a collision course with the executive branch. The CJPs judgment which set aside the privatization of the Pakistan Steel Mills in which allegations of impropriety and lack of transparency were leveled against the Privatization Commission was the first blow against the government. It put a question mark on the entire privatization policy of the government and the credibility of the Privatization Commission, of which the Prime Minister himself was such a key player. Never, in the course of Pakistans history, had a court set aside such a major privatization. It was judicial activism at its finest.

    Subsequently, the CJPs position a number of issues further perturbed the executive branch. These included the CJPs position on the increasing number of missing persons in Pakistan on a petition filed by the Human Rights Commission of Pakistan, his position on the negative environmental impact of the New Murree development project, his blocking of a scheme to convert public parks into private sector commercial ventures, his reprimanding of the police for dereliction of duty in the face of the spiraling crime rate, lawlessness and the deteriorating security situation in the country and his position on the dual nationality of Parliamentarians that threatened to disqualify a number of Parliamentarians.

    The government was feeling increasingly insecure and threatened by the CJPs brand of bold judicial activism. Musharraf was, personally, feeling threatened because he felt that the CJP was a wild card on key political and constitutional issues affecting his future, particularly on the question of whether or not Musharraf could, constitutionally, continue to wear the uniform whilst holding the Office of the President of Pakistan. So, in Musharrafs view, the CJP had become a liability that had to be dealt with and, true to his cavalier and reckless style of going about governing, this is the manner in which Musharraf sought to resolve his problem.

    Musharraf hoped that he could twist the CJPs arm and he would capitulate under pressure and resign. However, it is now clear to the nation that this CJP is made of a different ilk. His refusal to bow down to military and executive pressure has renewed the faith of millions of Pakistanis in the judiciary. It is heartening to note that there still are (albeit a few) public functionaries who will not be afraid of standing their ground in face of injustice, who will not capitulate in face of immense pressure and who will take on the powers that be for the sake of doing the right thing. The CJP, in refusing to resign, is not only standing up for himself, he is standing up for Pakistan and its people.

    This entire episode underpins some fundamental issues. The judiciary is not subservient to the executive under the scheme and spirit of the Constitution. The CJP is not answerable to the Prime Minister or the President. He is only answerable to the Supreme Judicial Council (SJC) and his peer judges and, of course, to the court of public opinion. The manner which he was “called to answer frivolous allegations by the President and the Prime Minister was deliberately intended to insult and undermine the Office of the CJP. Pervez Musharraf, who illegally and unconstitutionally holds two offices that of the President of Pakistan and the Chief of the Army Staff had no right to summon the CJP, let alone to suspend him.

    If Musharraf had called the CJP in his capacity as the President of Pakistan, then, one wonders, why did Musharraf, dressed in his military uniform, chose the Army House, Rawalpindi (so-called “camp office) as the venue for the meeting? If, indeed, Musharraf wanted to talk to the CJP in his capacity as President, then Musharraf should have adorned civilian attire and called the CJP to the Aiwan-e-Sadr in Islamabad. The fact that the CJP was summoned to Army House, Rawalpindi and Musharraf met him in his military uniform means that Musharraf was misusing his position as the Army Chief to exert pressure on the Chief Justice to resign. It was a threat. Musharraf has, once again, abused his position as Army Chief to undermine, intimidate and threaten an important civilian institution. Prime Minister Shaukat Azizs presence in Army House was also insulting because it implied that the CJP (head of the judicial branch) was answerable to the Prime Minister (head of the executive branch), which is not the case. The CJP does not report to the Prime Minister under any circumstances because the Constitution envisages a system of checks and balances where the judiciary acts as a check on the executive branch. If the CJP were to be hauled up to explain frivolous allegations against him before the Prime Minister, then it would undermine the judiciarys constitutional role as a check on the executive branch. The right thing for Prime Minister Shaukat Aziz to have done was to decline Musharrafs invitation to be present on such an occasion to humiliate the CJP.

    President Musharrafs move itself is unconstitutional because:-

  • (i) The President has suspended the CJP, which he does not have the power to do under any provision of the Constitution. Nor is there any provision in the Constitution that empowers the President to declare a judge to be “non-functional. In fact, the announcement of the CJPs suspension or, rather, “non-functionality was made before sending the reference to the SJC under Article 209 of the Constitution.
  • (ii) Under Article 209 of the Constitution, the President does not have the power to remove or suspend the CJP without the recommendation of the SJC, which comprises of (a) the CJP; (b) the two next most senior Judges of the Supreme Court; and (c) the two most senior Chief Justices of High Courts.
  • (iii) The President can only send a reference to the SJC against a judge. The SJC then conducts a hearing into the allegations and, after inquiry, submits its recommendations to the President. Only in the event that the SJC reports to the President that a judge is guilty of misconduct can the President proceed against that judge by removing him.
  • (iv) The constitution of the SJC itself is unconstitutional because even if the CJP himself is being inquired, then, by virtue of Article 209(3), the next senior-most Judge of the Supreme Court shall act in his place on the SJC. Supreme Court Judge Mr. Justice Javaid Iqbal has been appointed as Acting Chief Justice whereas Mr. Justice Rana Bhagwandas is the senior-most judge of the Supreme Court after the CJP. So the SJC, as presently constituted, is a forum non judice and lacks the competence to function under Article 209.
  • (v) Under Article 180 of the Constitution, only the senior-most Judge of the Supreme Court of Pakistan can be appointed the Acting CJP if (a) the office of CJP is vacant; or (b) the CJP is absent or is unable to perform the functions of his office due to any other cause. So the appointment of Mr. Justice Javaid Iqbal is also in violation of Article 180 of the Constitution since he is not the senior-most judge. Secondly, the criteria for appointment of an Acting Chief Justice has not been met since neither the Office of the CJP is vacant nor was the CJP absent or unable to perform his duties.
  • This entire sordid affair gives rise to the following questions:-

  • (a) What was the hurry in filing this reference against the CJP, when Justice Rana Bhagwandas, the next senior-most judge of the Supreme Court was outside the country? Couldnt the President have waited for Justice Bhagwandas to return? Couldnt the President have requested Justice Bhagwandas to return to Islamabad before filing the reference?
  • (b) If the President is going to file a reference against the CJP on the basis of a vague and frivolous letter written by a lawyer, will the President then also file a reference against a Chief Justice if, tomorrow, another lawyer were to write an open letter to some sitting Chief Justice with more serious allegations leveled against him? Is a letter all that it takes for the President to invoke Article 209 of the Constitution against the CJP?
  • (c) If the transfer of the CJPs son to the Punjab Police was illegal, then what action is the government going to take against all those in the executive chain of command who approved such a transfer? Would the government care to make the prosecution of all those officials public who were a party to this transfer?
  • (d) If Justice Iftikhar Muhammad Chaudhry is innocent until proven otherwise, if he is still the CJP and has not been found guilty of any misconduct by the SJC, then why is he and his family under house arrest and being held incommunicado? Why have his telephone links been severed? Why have the passports of the CJP and his family been confiscated? Why are the CJPs relatives being hounded by the intelligence agencies after speaking out against his illegal detention? Why were the flags of Pakistan and the Supreme Court removed from the CJPs official residence? Why has his name been removed from the website of the Supreme Court?
  • One hopes that the Honble Judges of the SJC realize that that this is not just a move against the CJP by the President, it is a move against the judiciary by the executive intended to undermine, tarnish and erode the image, integrity and authority of the judiciary. Removing the CJP in such circumstances would not be conducive to the judiciary or the interests of Pakistan. This is a turning point in the constitutional and political history of Pakistan. It is a moment of historical significance that will define executive-judicial relations for years to come. This is a time to protect the collective honour of the judiciary and to defend the Constitution of Pakistan. Let it not be said that we were not equal to the task.


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