Tag Archives: Iftikhar Chaudhry

A Way Out?

Justice Asif Saeed Khosa

Pakistan’s Supreme Court sent mixed signals this week as it postponed confrontation with the Prime Minister over its order to write a letter to Swiss authorities reviving corruption cases against the President, Asif Zardari. Convictions against Mr. Zardari were previously overturned when evidence of a political conspiracy surfaced in 2001.

Speaking on Wednesday, Supreme Court Justice Asif Saeed Khan Khosa rejected a request by Attorney General Irfan Qadir that proceedings be delayed until after Ramadan, but then stated that the Court accepts that the President enjoys immunity under Article 248 of the Constitution.

“We don’t deny about the immunity and we are ready to give any help by even stating in our order that Zardari is the president and has the immunity. God willing nothing will happen and democracy will not be derailed,” Justice Khosa said, adding that the world would watch that both the institutions would be vindicated.

In a separate hearing on a recently promulgated bill immunizing specific high-level officials from contempt of court charges, Chief Justice Iftikhar Chaudhry seemed to signal that he is prepared to deny the president immunity.

Asking whether US Presidents Richard Nixon and Bill Clinton were granted immunity, the chief justice of Pakistan on Wednesday observed that if the court had not granted immunity to the prime minister, it could also withhold it from the president.

While Justice Khosa’s conciliatory remarks suggest the possibility of a way out to defuse the tensions, Chief Justice Chaudhry’s are somewhat bewildering. US Presidents Nixon and Clinton were not be granted immunity because the US Constitution does not provide for it like Pakistan’s Constitution does.

Whatever was intended by the Chief Justice’s remark, Justice Khosa’s statement suggests that the Court may not be willing to push the confrontation to the brink. This is a positive sign that discussions may be taking place to find a way out of the present impasse that preserves the integrity and authority of both the judicial and executive branches of government, and, most importantly, the Constitution.

Pakistan’s “Suprema Lex”

Pervez Musharraf and Chief Justice Iftikhar Chaudhry

The English-langauge daily Dawn reports today that a sense of foreboding has taken over Islamabad, where politicians and analysts fear the possibility that Pakistan could be heading towards an extended caretaker government – what some call the “Bangladesh model” after that country’s flirtation with unelected technocratic governance in 2006. Such a move would require validation from the Supreme Court, though, raising questions about whether the current Court would give sanction to such a measure. Unfortunately, there is reason to believe they might.

Pakistan’s Chief Justice, Iftikhar Chaudhry, is best known as the man who was removed from the bench and placed under house arrest by Gen. Pervez Musharraf in 2007. What is less often remembered, though, is Iftikhar Chaudhry’s role in facilitating Gen. Musharraf’s 1999 coup against the democratically elected PML-N government, and his giving sanction to Gen. Musharraf’s changes to the constitution in 2002.

In 1999, Gen. Pervez Musharraf deposed then Prime Minister Nawaz Sharif’s government in a military coup and promulgated the Provisional Constitutional Order (PCO) of 1999 declaring a state of emergency and suspending the Constitution. Gen. Musharraf ordered judges to take a new oath under the PCO, which many refused. Iftikhar Chaudhry was not one of them. In 1999, Iftikhar Chaudhry chose to take an oath of allegiance to Gen. Musharraf’s new military dictatorship.

Some might argue that Chaudhry was only doing what he had to in order to maintain a check on the new dictator, but this wasn’t the last time that Iftikhar Chaudhry gave judicial cover to Gen. Musharraf’s exploits. In 2000, Justice Chaudhry joined the Supreme Court in dismissing challenges to Gen. Musharraf’s coup. The Court, in its own words, “validated the extra-constitutional step on the touchstone of the doctrine of state necessity and the principle of salus populi suprema lex [trans. “Let the good of the people be the supreme law”].”

In 2002, Justice Chaudhry again joined the Supreme Court’s decision to dismiss petitions against Gen. Musharraf’s 2002 Legal Framework Order (LFO) which amended the constitution to, among other things, give Gen. Musharraf the power to dissolve parliament at will.

In 2005, Justice Chaudhry was one of five Supreme Court justices who voted to uphold Gen. Musharraf’s 17th Amendment to the Constitution, further giving judicial cover to exta-constitutional measures.

Justice Chaudhry’s long history of validating Gen. Musharraf’s extra-constitutional measures has led to the perception among some that he is a military stooge, and that his battles with Pakistan’s current democratically elected government are a sign that he is facilitating a “judicial coup” at the military’s behest. Things are not so simple.

Justice Chaudhry’s support for Gen. Musharraf’s dictatorship earned him the position of Chief Justice in 2005, but his independence earned him a suspension only two years later when he began to find against the military government. In one of many political missteps by the military dictator, Gen. Musharraf placed Chaudhry and his entire family under house arrest, making Chaudhry a political martyr and expediting his own downfall.

After being reinstated by President Asif Zardari, Justice Chaudhry has continued to use the court not only as a tool against civilian officials, but against Pakistan’s military intelligence agencies, publicly taking them to task for illegally detaining terror suspects. This is often cited by the Chief Justice’s supporters as further proof of his independence.

Whether or not Iftikhar Chaudhry is colluding with the military or not is the wrong question. The right question is whether he is acting within the constitutional confines of his own institution. Unfortunately, several of his past legal decisions suggest Justice Chaudhry subscribes to a jurisprudence that does not recognize constitutional confines, instead seeing his role as an independent political activist.

Justice Chaudhry claims that he no longer supports the “doctrine of necessity,” but with the introduction of the “basic structure doctrine,” he may no longer need it. The Chief Justice now has a tool that not only allows him to interpret the Constitution, but to define it.

As Pakistan proceeds towards national elections next March, Chief Justice Iftikhar Chaudhry has the opportunity to demonstrate whether he really has turned his back on the “doctrine of necessity”, or if his recently stated belief that “We should only examine our own constitution to ensure that the will of the people prevails,” indicates that he still sees himself as the guardian of salus populi suprema lex. For the sake of Pakistan’s democracy, we hope it is the former.

US Should Focus on Pakistan’s Civilian Leadership

Asif Zardari meeting with Barack Obama

This week’s visit to Pakistan by Chairman of the US Joint Chiefs of Staff Admiral Michael Mullen and the resulting public statements about cooperation in the fight against militant groups along Pakistan’s Western border has once again highlighted the extent to which US-Pakistan relations continue to focus on military-to-military dialogue. While close military cooperation against extremist groups requires military-to-military dialogue, the US must be careful not to weaken the authority of Pakistan’s civilian government by ignoring Pakistan’s civilian leadership.

An essay by Aqil Shah in the May/June 2011 issue of Foreign Affairs, “Getting the Military Out of Pakistani Politics” makes a strong case that the US should make a concerted effort to further shift its negotiations with Pakistan from a military-to-military model to one that focuses on strengthening the authority of the civilian government.

Pakistan is unlikely to collapse, but the imbalance of power between its civilian and military branches needs to be addressed if it is to become a normal modern state that is capable of effectively governing its territory. For its part, the United States must resist using the generals as shortcuts to stability, demonstrate patience with Pakistan’s civilian authorities, and help them consolidate their hold on power.

Where too many analysts express frustration with a perceived slow pace of reforms being implemented Pakistan’s civilian government, Aqil Shah prescribes patience.

If the “third wave” of democratization in the 1970s and 1980s had any lesson, it is that democracy does not necessarily require natural-born democrats or a mythically selfless political leadership. In fact, a strong democratic system can mitigate the baser instincts of politicians. If anything, the experience of countries such as Chile, the Philippines, South Korea, and Thailand in the last few decades shows that the strength and quality of democracy may be linked to the stability of the party system. This is good news for Pakistan.

The author even takes the counterintuitive, but plausible position that the family dominance of Pakistan’s major political parties may actually be a positive.

It is true that Pakistan’s civilian politics is dominated by a few families, namely the Bhuttos, who control the PPP, and the Sharifs, who control the PML-N. In a perverse way, however, the hold of the Bhuttos and the Sharifs on their parties may be one of the main reasons that these parties have survived the military’s divide-and-rule repression and may consolidate democracy in the future.

While political parties should aspire to increased internal democratization, US analysts should consider the role powerful families have played in strengthening our own party system. Pakistan’s politics may be dominated by Bhuttos and Sharifs, but America too has seen its share of Adamses, Roosevelts, Kennedys, and Bushes and, arguably, grown stronger for them.

The notion that military interventions weaken the country’s democratic institutions has even been put forth by Pakistan’s famously adversarial judiciary. Recently, Pakistan’s Chief Justice addressed the long-term effects of military intervention on democratic development.

“When there are political crises, we have witnessed military intervention followed by military rule. Thus, there emerged a vicious circle of brief political dispensation followed by prolonged military rule. This state of affairs brought many setbacks and hampered the process of evolution of constitutionalism and democratic system of governance.”

In spite of the myriad obstacles thrown into Pakistan’s path to democratic modernization – coups, wars, poverty, natural disasters, and terrorism – the Pakistani people have consistently demanded to choose their own leaders and decide their own future. Though the democratically elected civilian government faces a number of challenges both internal and external, it remains resilient.

Today the government continues to work with opposition parties to strengthen the democratic process and address important issues by building coalitions across political parties and working towards consensus solutions. The US should encourage this resilience by acknowledging the centrality of Pakistan’s civilian government in its government-to-government negotiations and providing the space necessary for democratization to firmly take root.

 

Judicial Restraint and Pakistan's Media-Judiciary Nexus

We have already commented on Pakistan’s activist media and its increasingly activist judiciary, and the potential of these two institutions to destabilize Pakistan’s fragile democracy just as it is getting its footing. The recent situation in which Pakistan’s Supreme Court called emergency hearings about a rumor reported on TV channels emphasizes not only the extent of the problem, but the nexus between media and judicial efforts in an ongoing power struggle, and the need for judicial restraint to ensure the democratic process is able to function.

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Greater Threat Than Floods: Pakistan's Judiciary?

The historic flooding that has ravaged Pakistan was considered for a brief period to be a grave threat to the country’s stability. Analysts were unsure if the young democratic government would be able to provide relief and reconstruction services enough to satisfy a panicking public. As the waters subsided, though, the civilian government demonstrated that it could work with the military and the international community to provide services to the people. Today, however, the government faces a possibly greater challenge: continued attacks from the nation’s judiciary.

Pakistan’s judiciary has been threatening to topple the democratically elected government in what many are calling a “coup by other means”. While unprecedented challenges to elected officials have been going on for some time, the courts appear to be determined to continue their attacks.

Since its December judgment striking down an amnesty that shielded President Asif Ali Zardari and other officials from old criminal allegations, the top court has pressed the government on corruption, in particular a dated money-laundering case against Zardari. The stakes have risen as repeated government delays have stoked frustration within the army and the political opposition. Another showdown is scheduled for Wednesday, when the court could hold the prime minister in contempt or indicate that it will reconsider Zardari’s presidential immunity from prosecution.

The standoff has cemented the Supreme Court’s position as a central player in Pakistan’s nascent democracy. But it has also highlighted questions about the solidity of that system.

The Army has largely stayed out of the affair, though as Ahmed Rashid writes for BBC, they would stand to gain the most should the courts succeed in overthrowing the government.

It would be a constitutional rather than a military coup, so that Western donors helping Pakistan with flood relief would not be unduly put off, but the army would gain even more influence if it were to happen.

The courts, for their part, are attacking the government from two flanks – the Supreme Court is threatening to disqualify President Asif Zardari more than two years since his election, and the Lahore High Court – headed by Chief Justice Khawaja Sharif, an ardent supporter of the opposition Pakistan Muslim League – Nawaz (PML-N) – has reinstated an old corruption conviction against Interior Minister Rehman Malik, despite his having been pardoned in May.

According to a growing number of voices in the legal community, the politicization of Pakistan’s courts is a growing problem that threatens the stability of the government and the legitimacy of the nation’s judiciary.

“This judge and the court have embarked upon politics,” said lawyer Khurram Latif Khosa, whose father, also a lawyer, advises Prime Minister Yousaf Raza Gillani. “The lawyers who were chanting slogans in their favor are now burning effigies of their idols.”

Mr. Khosa is not alone in his analysis. His statement echoes the sentiments of Supreme Court advocate and human rights activist Asma Jahangir who wrote in December of last year:

While, the NRO can never be defended even on the plea of keeping the system intact, the Supreme Court judgment has wider political implications. It may not, in the long run, uproot corruption from Pakistan but will make the apex court highly controversial.

Witch-hunts, rather than the impartial administration of justice, will keep the public amused. The norms of justice will be judged by the level of humiliation meted out to the wrongdoers, rather than strengthening institutions capable of protecting the rights of the people.

There is no doubt that impunity for corruption and violence under the cover of politics and religion has demoralised the people, fragmented society and taken several lives. It needs to be addressed but through consistency, without applying different standards, and by scrupulously respecting the dichotomy of powers within statecraft. In this respect the fine lines of the judgment do not bode well.

The lawyers’ movement and indeed the judiciary itself has often lamented that the theory of separation of powers between the judiciary, the legislature and the executive has not been respected. The NRO judgment has disturbed the equilibrium by creating an imbalance in favour of the judiciary.

A few months later, Ms. Jahangir’s tone turned decidedly more dire.

People will soon witness a judicial dictatorship in the country if the judiciary continuously moves ahead in its present direction and then we would forget military and political dictatorships, HRCP chairperson Asma Jahangir said on Wednesday.

By April, even opposition politicians the PML-N were raising concerns that the courts were over-stepping their constitutional role to topple the government.

Raising concerns about the conspiracy, PML-N spokesman and senior leader Ahsan Iqbal has said that a third force wants a clash between the judiciary and parliament.

Iqbal did not name the third force precisely in the same fashion, as Pakistan President Asif Ali Zardari has repeatedly done in recent months, The News reports.

According to another PML-N leader, the Army is trying to pitch the judiciary against parliament and for this purpose it is using certain elements in the media.

Recently, Pakistan’s Chief Justice issued a statement condemning those who are speaking out against perceived judicial overreach.

Ironically, the Chief Justice who is leading this assault on the government, Iftikhar Chaudhry, was himself the victim of extra-constitutional removal by then President and Chief of Army Staff Gen. Pervez Musharraf. Justice Chaudhry was released from detention by Pakistan’s newly elected government in 2008, and reinstated to the Supreme Court in 2009.

Some believe that during the year between Justice Chaudhry’s release from detention and his reinstatement, the judge grew to resent the new government and has taken it upon himself to bring a myriad of legal challenges to its authority. In fact, many of the cases before the court were not brought by any individual or official agency, but were taken up “suo moto” – by the choosing of the Chief Justice, himself.

Regardless of what is motivating the incessant attacks by members of Pakistan’s judiciary, the right to decide the nation’s leadership rests solely with the people of Pakistan. Military generals, religious clerics, and judicial appointees all have a role to play in the success of the nation. But each must work within the bounds of the constitution and the democratic process. Whether led by the military, the Taliban, or an army in black robes, a coup is a coup – and any coup will be devastating to Pakistan’s future.

Judiciary Continues to Attack Government, Opposition Leaders Fear Coup Plot

Attorney, Aitzaz Ashan

Aitzaz Ahsan is a former President of Pakistan’s Supreme Court Bar Association, and was a leader of the Lawyers’ Movement in Pakistan that opposed Gen. Musharraf’s unconstitutional attempt to suspend the Chief Justice of Pakistan’s Supreme Court, Iftikhar Chaudhry. Today, Mr. Ahsan finds himself opposing the actions of the Chief Justice, warning that Pakistan’s Supreme Court is acting outside its constitutionally mandated authority.

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Judiciary Threatening Stability of Pakistan's Emerging Democracy

A recent episode of Pakistani television talk show Merey Mutabiq included a disturbing conversation with Qazi Anwar, President of Pakistan’s Supreme Court Bar Association, in which several troubling assertions were made including that the parliament does not have the power to amend the constitution, and that the Supreme Court has the privilege of striking down any part of the constitution of which it disapproves. The proliferation of such statements and actions by justices and advocates of the Supreme Court are deeply troubling, and pose a potential threat to the stability of Pakistan’s emerging democracy.

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Court Appointees Should Be Independent

Just as Pakistan’s first democratically elected government in decades was on the brink of undoing a number of power grabs by past military dictators, a wrench has been thrown in the works by an opposition politician and party leader. Mr. Nawaz Sharif, head of the opposition Pakistan Muslim League-Nawaz party (PML-N) is holding up passage of a package of constitutional reforms that would restore proper checks and balances on power.

Included in his stated reasons for opposition is that Mr. Sharif would like to see implemented a a seven-member judicial commission to nominate justices to the superior courts. The commission, as envisioned by Mr. Sharif, would include three serving judges of the Supreme Court, led by the Chief Justice of Pakistan – and a seventh member to be selected by the chief justice himself. This obviously stacks the court for the Chief Justice.

Pakistani newspaper Dawn reacted strongly to this proposal, saying:

The problem that will be created by a judicial commission with a majority formed by serving judges of the SC and a handpicked choice of the CJP is not very difficult to identify. The superior judiciary is designed such that while every justice on a court has one vote, the chief justices are administratively the ‘bosses’. So it is very unlikely that in the presence of a Chief Justice of Pakistan who wants a particular nominee, the other justices on the commission would disagree with him. Also unlikely is the possibility that a handpicked seventh member of the judicial commission will oppose the CJP’s choice. And even if the CJP is an accommodating sort and encourages developing a consensus nominee among the judges and his handpicked seventh member, it would mean that the superior judiciary would determine by itself — because of the simple majority it would enjoy on the judicial commission — who can or cannot become a judge of a high court or the Supreme Court.

A hermetically sealed judicial institution of that sort is antithetical to the principles of democracy. Why should the present membership of a state institution determine what its future membership will be? Remember that judges are free to vote with their conscience once sworn in because it is virtually impossible to remove them before they retire (which is how it should be). What Pakistan needs is a judiciary free from interference, not a judiciary that is independent in the sense of deciding its own membership. Any proposal by Mr Sharif or anyone else that would effectively give the superior judiciary a majority on the judicial commission must not be accepted.

In fact, Mr. Sharif’s recent surprise decision to block passage of the democratic reform package has been met with near universal disdain in the mainstream Pakistani media. English-language daily The Daily Times has had harsh words for the former Prime Minister.

As for the issue of the judicial reforms, it was at the behest of the PML-N that a seventh member was added to the judicial commission on the appointment of judges. The constitutional reforms committee conceded to that demand but now the PML-N chief has gone further to ask that the prime minister should consult the chief justice (CJ) on judicial matters and that the CJ should be authorised to appoint the seventh member. Mr Raza Rabbani is right in rejecting this proposal because the whole purpose of the judicial commission would be defeated. The logic behind having this commission is to ensure that there is a transparent mechanism in the appointment of judges by taking it out of the purview of any one person. Unfortunately, Mr Sharif’s strategy of escalating demands does not make any sense.

Pakistan has the opportunity for the first time to rid its constitution of anti-democratic power consolidation measures adopted under duress of military dictatorship. It defies all logic that this package of democratic reforms put forward by the democratic government and initially agreed to across parliament should be held hostage by one man seeking to further consolidate power in another office – this time the Chief Justice.

Pakistan has come too far since the days of Gen. Zia-ul-Haq. The time for naked power grabs is in the past. If Mr. Nawaz Sharif cannot participate in honest democratic politics, putting the good of the nation above his personal interests, perhaps Pakistan needs to move on without him. Pakistan’s National Assembly should adopt the package of democratic reforms as they were agreed to, and get on with doing the people’s business.