INSIGHT AND FORESIGHT

September 29, 2014

RIGGING TO SUSTAIN DEMOCRACY

Filed under: Uncategorized — sharafs @ 12:29 pm

The prevailing political chaos in Pakistan is complicated by conflicting narratives. Despite confusion the time for an idea has come. People discern right from wrong.

Democracy despite its inefficacy must continue in present format; eventually it would cleanse itself. Establishment/ foreign agencies have hatched a London Plan. The narrative with minor adjustments is also used by parliamentary opposition and the pseudo liberals. Hidden behind this theory are billions of ill-gotten dollars and business empires raised out of nowhere to manifest ambitions of political upstarts and creations of opportunity. Nawaz Sharif’s sojourn in Saudi Arabia gives weightage to his religious credentials. He dislikes the army for putting a spanner in his Jihadist designs. A cartoon best sums up this fallacy with the caption that the Army instead of tanks now uses animals inscribed with ‘Go Nawaz Go’ for regime change.

Pakistan is a state with perpetual crises. The military and intelligence agencies are rouge. Without civilian supremacy and clipping of armed forces, Pakistan will remain a threat to neighbours. Ultimately Pakistan’s nuclear weapons will fall into hands of terrorists. Proponents of this theory ignore that for the past six months, Pakistan’s armed forces are fighting the most effective war against terrorism that overshadows the entire duration of ISAF-NATO operations in Afghanistan. The war lacks civil support that would rather sleep with the enemy.

Pakistan’s democratic progress is hostage to powerful corrupt and dishonest elites. Over past six decades, they have subverted Jinnah’s social contract with the people. It is time that Pakistanis become true stake holders in the system through transparency. This is the Azadi (freedom) and Inqilab (revolution). Critics maintain that Imran Khan and Dr Qadri are pawns being used to advance an agenda of establishment and foreign powers. As a corollary, another narrative describes the Azadi/Inqilab movement as precursor to anarchy, balkanisation and nuclear disarmament. The biggest merchant of horse trading and bribing General (Retired) Mirza Aslam Beg of Mehran Bank Scandal relishes the limelight to emerge from obscurity as the leader of this notion to help goons he financed and groomed.

The print and electronic media initially took a realistic and objective view of the situation. But as time passed, most media houses and anchors took to grilling their panels with some facts, half-truths and falsifications. These discussions sans framework went berserk. If this wild spin is to be believed, then corruption for the sake of giving democracy a chance and civilian supremacy is condonable. Pakistan’s staged encounters killing innocents are a necessary ends means relationship. Imran Khan and Dr Qadri are terrorists and foreign agents who must be tried for high treason.

Pakistan’s commentators and intellectuals are confused. Some have an elastic conscience or harbour personal grudges. Far and few see the entire crises as violation of fundamental human rights and international agreements. Despite accepting rigging as fait accompli, they are unnerving in their expediency to support the status quo.

Most human right organisations are biased. The curious silence over state sponsored massacre in Model Town Lahore, excessive use of chemical agents in Islamabad, use of ball ammunition against unarmed protestors, illegal custodies and deaths spell duplicity. Silence means criminal neutrality. Asma Jehanghir, the recent recipient of Alternative Noble Prize is full of hate and venom against this movement. She would rather single out presence of women and children at dharnas (human shields) than challenge death of innocents. Since these protests are premised on the fundamental rights of individuals and sanctity of the ballot, one expected an objective approach. Being a lawyer an ex-president of the Bar, one expected her to vociferously criticise aberrations in the constitution created by Chaudary Courts that led to rigged elections.

Perhaps the most despicable are the inactive left and armchair reformists. Their space as advocates of civic conscience has quickly been usurped by the Azadi/Inqilab slogan. These pseudo leftist and liberals insist to demean both leaders at every forum.

Daily speeches on the containers talk of the relationship of the people with the state as enshrined in the first three parts of the constitution of Pakistan. They create awareness on social issues mentioning women, labourers, tenants, haris, farmers, students, teachers, low income groups, human resource development, exploitative capitalism, corruption, jobbery, nepotism and injustice. Their oratory flows out of the speeches made by Qaid e Azam Muhamad Ali Jinnah, Islamic history and international charters. Some commentators have laureled them as rightists with a leftist agenda. But Imran Khan is neither left nor right. He is actually refocussing the centrality of Pakistan’s politics. As the movement gains momentum, it is a foregone conclusion that most trade unions, labour unions and small socialist parties would form tributaries to the sea resigning the intellectuals to armchairs.

Lieutenant General Khalid Rabbani’s (the chief counter terrorism commander) talk at National Defence University brings clarity to the confusion and narratives. He stressed on the need to extending operations to the mainland. He hinted that political issues were impeding action against terror groups in Punjab and Balochistan. These operations were delayed for three years due to indecision. Belatedly undertaken, urban operations are limited due to lack of civilian capacity and will. This is an issue repeatedly written by the scribe and also voiced by Ex-Prime Minister Gilani and Major General (R) Athar Abbas. The revelation by a serving general by implication singles out General (R) Kayani and the present government for the strategic impasse. Link this apprehension to the recent statement of Chaudary Shujaat Hussain. A complicity to sustain an agreement reached between foreign powers, PMLN, PPP with the then COAS as guarantor emerges. Three successive tenures is the bottom line.

Post-Election Review Report on General Elections 2013, released by Election Commission of Pakistan could not dilute the overpowering role of Returning Officers in making the elections questionable. Limited admissions by ECP in its review are made with the twin purpose of exoneration and hope to hide larger facts. Shall we therefore conclude that Elections 2013 were rigged beyond reasonable doubt but why?

Instability of Pakistan is an important plank for international actors to keep Pakistan pliant. Given a road of healthy democracy and socio-economic development, Pakistan would emerge too independent to be tamed. Thus the electoral logjam must be maintained. Who is right and who is wrong is for readers to judge.

Brigadier (Retired) Samson Simon Sharaf is a political economist and a television anchorperson. Email and twitter: samson.sharaf@gmail.com

http://nation.com.pk/columns/27-Sep-2014/rigging-to-sustain-democracy

 

 

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September 22, 2014

JUDICIAL ACTIVISM III: How a quest for an independent judiciary led to a biased one

Filed under: Uncategorized — sharafs @ 12:06 pm

The manner in which Justice (retired) Iftikhar Chaudary was reinstated and selected his bench indicates gross jurisdictional transgression, violation and overreach. Judges became judges in their own cause by overthrowing the superior judiciary of Pakistan in violation of article 209 of the constitution. The so-called treason case of General Musharraf pales into insignificance when compared to the magnitude of constitutional aberrations or violations committed by the 14 judges who removed a far greater number of judges than the total number of judges dismissed by General Musharraf. It therefore follows, that if General Musharraf is being tried for treason, then, there seems no reason why these judges should not be tried for aggravated treason on the charge of overthrowing the superior judiciary of Pakistan.

Eminent Jurists maintain that the reinstatement of Justice Iftikhar Chaudary was neither legal, nor constitutional and devoid of political consensus. The highly controversial and so called landmark judgement of 31 July 2009 was a negation and antithesis of the precedent set in Zafar Ali Shah Case that PCO judges continue to be judges. In this judgement, the entire bench acted in its own cause to rule ‘PCO judges cease to be judges’. Jurists maintain that this judgement violated the universally accepted maxim “Audi Alteram Partem”. Petitions against this judgement were repeatedly rejected by the Supreme Court indicates as no judge was prepared to entertain a case against their own vested interests. Review petition of Yasmin Abbasi previously rejected, whenever given a just hearing could result in reversing many precedents.

In a judgement Supreme Court of Pakistan struck down the Contempt of Court Act 2012 declaring that, “COCA 2012 is contrary to Article 19 and is also discriminatory in its nature and violates Article 25 of the Constitution.” The Supreme Court set a principal in this judgment that ‘freedom of speech is more important than the dignity of judges’. In another judgment Justice Iftikhar Chaudary in violation of article 89 of the constitution used a duly repealed Contempt of Court Ordinance 2003 to subdue the PPP Government and its functionaries through a contempt trap akin to Judicial Harassment. He frequently bypassed parliamentary procedures to punish and De-notify Prime Minister Yusaf Reza Gilani by subjugating the Election Commission of Pakistan. Similarly many heads of regulatory authorities seeking transparency and merit were pressurized into resignations or out rightly removed. This paved the way for an alliance between Justice (Retired) Iftikhar Chaudary, PMLN and General (Retired) Ashfaq Pervez Kayani. An environment for judicial interference in the ECP was created and pre-election rigging began to take shape.

Pakistan Tehreek e Insaf (PTI) must take responsibility for its ‘simple honest thought’ to provide the Supreme Court the justification for meddling in the affairs of the ECP. The petition for giving voting rights to overseas Pakistan should have been addressed to ECP since the issue was in the constitutional domain of the former and not the latter.

PTI was also the most vociferous in removal of Prime Minister Gilani on contempt charges. The public pressure thus generated emboldened the Chief Justice to go ahead, bypass the Speaker of the National Assembly and remove Yousaf Reza Gilani through the ECP. The ECP too failed to assert its moral and legal authority. Consequently the Chief Justice set a dangerous precedent to interfere in parliamentary affairs and laws of ECP. It was a Shakespearian tragedy that mran Khan had to stand before the Supreme Court and dilute his criticism of judicial complicity in electoral rigging, because his legal team had its heart elsewhere.

The question of dual nationals was an issue that could have been dealt by ECP under Article 63 (2) of the constitution. The Supreme Court was swift to assert over it. Earlier, Chairman Senate and Speaker National Assembly despite advice had failed to assert on the question of dual nationals.

Mr. Irfan Qadir, the then Attorney General of Pakistan (AGP) wrote a two page letter to the Chief Election Commissioner Fakhruddin G Ibrahim questioning the mandate of the Supreme Court to issue directions to the election watchdog to initiate proceedings against the disqualified lawmakers. The AGP had further written:

“I take the opportunity to request you to kindly proceed in the matter in accordance with the relevant provisions of the Constitution … while determining whether the Supreme Court is mandated by the Constitution to issue directions to the Election Commission of Pakistan or not… the Election Commission of Pakistan has the exclusive obligation to determine the questions of disqualification as per the relevant constitutional provisions and as such the ECP is not to perform its functions on the directions of any court in Pakistan including the Supreme Court…. As principle law officer of the country, I feel compelled to draw your attention to the aforesaid decision so as to enable you to take steps in terms of Article 5 of the Constitution read with your oath of office for protecting and preserving the Constitution.”

The Chief Election Commissioner though agreeing in private and writing to abide by the constitution, failed to follow the advice. ECP Secretary Ishtiaq Ahmed Khan rather than convene a full meeting of ECP under the CEC, passed on the buck to the Supreme Court. Simultaneously a Contempt petition was moved in the Supreme Court against the AGP which is still pending.

The above incidents provided Justice Iftikhar Chaudary the activism needed to overshadow the ECP. This was the beginning of the overarching interference of Supreme Court in the affairs of ECP.

It appears that the decision to appoint Returning Officers (RO) was a death kiss for PTI. Soon, these ROs made a mockery of the constitutional qualification criterion converting verifications into a joke. The returning officers rather than work under ECP began running their own show. Very sensitive documents pertaining to indictments, defaults, write offs and corruption of candidates belonging to PMLN and PPP were out rightly set aside to shape way for electoral deformities. This was a clear cut pre electoral rigging.

It is strange that PPP decimated by PMLN and Iftikhar Chaudary remains loyal to PMLN. Perhaps, as said by Shela Raza of PPP, the elections were an agreed drama by guarantors and stake holders of NRO to proceed with the next phase. Perhaps, it was an agreement by the two main parties to cover their backs on corruption?

Brigadier (Retired) Samson Simon Sharaf is a political economist and a television anchorperson. Email and twitter: samson.sharaf@gmail.com

 

 

 

 

September 16, 2014

THE AVOIDABLE 2014 FLOODS IN KASHMIR AND PAKISTAN

Filed under: Uncategorized — sharafs @ 10:34 am

Floods

This year’s floods in IHK and Pakistan caused by unprecedented rains in the upper riparian of rivers Jhelum and Chenab will remain a mystery for researcher’s world over. The world’s steepest slope that descends from 8 KMs to a few hundred meters within a lateral distance of 300 miles warranted better vigilance, water regulation and early warning. The fact that water management authorities on both sides of the divide are making lame excuses to cover unprofessionalism and lack of urgency to harness the fury of rushing waters needs no opinion. Amidst this widespread destruction, the Metrological Department of Pakistan (MET) and its Flood Forecasting Division (FFD) emerged as the most efficient organization whose alerts fell on deaf ears on both sides. Their forecasts will remain a thorn for the governments of India and Pakistan.

Despite the fact that all river systems of Indus Basin flow out of IHK, Central Water Commission (CWC) of India does not cover Kashmir. CWC’s website features 18 level and eight inflow forecasts with Kashmir excluded. In the absence of government mandated prerequisites, there are no forecasting stations. Out of 175 flood forecasting stations run by CWC none lies in IHK. Whether failure at forecasting and regulation was deliberate or due to systemic failure is a subject of heated debate in IHK and India. Silence of CWC and State Regulatory Authorities rings alarms. The disaster management authority in IHK is inoperable.

In Indian held Kashmir, there were no warnings. By 6 September over 200 had died and over 80,000 evacuated.   A year earlier the Uttarakhand cloud burst that left more than 5,700 dead and hundreds of thousands stranded went unnoticed. So who controls and regulates over 50 water structures in IHK is anybody’s guess. What is known is that IHK government exercises no control over it.

On 22nd August 2014 the Indus River System Authority (IRSA) warned the provinces of about 20 percent water shortfall for the Rabi crops. This warning came despite alerts by the Metrological Office of Pakistan on 14-15 August of medium/high level floods in Ravi and Chenab catchments.  From 3-5 September 2014, the Met office issued repeated flash alerts of exceptionally high floods in Rivers Jhelum, Chenab, Ravi and its catchment. But neither the Ministry of Water and Power nor Indus River System Authority (IRSA) that regulates the dams and barrages reacted. Mangla Dam was filled to 1236.6 MAF while gates at Head Rasul, Khanki and Qadirabad remained closed storing water upstream that should have been released and which later became the FLOOD.

Here are some astonishing statistics.

On 4 September 2014, the inflow at Mangla was 95,000 against a discharge of 30,000 cusecs. Inflow of Chenab at Marala had reached 137,000 cusecs. Mangla was being filled while Chenab was registering a low flood.

On 5 September 2014, Mangla continued to be filled by an exceptionally high inflow of 310,000 cusecs with a discharge f 15,000 cusecs. Someone in Pakistan’s water management system was not monitoring Rivers Jhelum and Neelam in Azad Kashmir. Had they, discharge at Mangla would have commenced earlier enabling water from Head Rasul to reach Trimmu before the water from Marala, Khanki and Qadirabad reached there. Meanwhile Chenab at Marala had reached exceptionally high levels of 485,000 cusecs. It never dawned on IRSA that any later discharge of water from Mangla would complicate the flood situation at Trimmu Barrage and downstream.

On 6 September, IRSA released 282,000 cusecs from Mangla against an inflow of 413,000 cusecs. The gates at Khanki and Qadirabad on Chenab were not fully opened registering a surge of over 650,000 cusecs. Had these gates been opened on 5 September, the separate surges at Jhelum and Chenab would have successively passed Trimmu, reducing flooding. The delay in alternatively opening gates at Head Rasul and Khanki-Qadirabad meant unprecedented disaster if two surges at Trimmu combined after 7 September.

By 7 September, the flood surge at Jhelum had reduced and Mangla was full to capacity. By 9 September the inflow of Chenab at Marala was down to 85,000 cusecs. A huge mass of water equivalent to two or more Mangla Dams was trapped between manmade and man regulated structures from Head Rasul and Khanki-Qadirabad to Trimmu. This was to wreak havoc downstream. Through human manipulation/error an avoidable flood situation was created upstream of Trimmu on Jhelum and Chenab. Incidentally the IRSA Daily Water Situation Report has no columns for Khanki, Qadirabad and Trimmu, an omission that may have led to their miscalculations. Yet, had IRSA and WAPDA paid heed to Daily Flood Situation Reports of Federal Flood Commission and Flood Forecasting Division, the calamity was avoidable limiting damage. There was ample information that was not acted upon.

But what about Pakistan’s flood management?

First, IRSA preoccupied by the pressures to appropriate water to provinces was more inclined to fill Mangla Reservoir despite flood warnings in August and September. When it did release 282,000 cusecs of water at 6 Am on 6 September, it did not take notice of the exceptionally high flood of over 480,000 cusecs at Marala and downstream at Khanki/Qadirabad (over 600,000 cusecs). Had the water been incrementally released between 4 and 5 September, a massive surge at Trimmu could have been avoided.

Secondly, it is strange why the management failed to open the flood gates at Marala till 5 September and why the gates at Khanki and Trimmu were kept in regulation and not flooding mode as late as 7 September?

Who will now take responsibility for storing an unprecedented volume of water (more than two Mangla Dams) from Rivers Jhelum and Chenab at Rasul Headwork, Khanki and Qadirabad and then releasing it to simultaneously threaten Trimmu and the flood protection bunds along it?

Why are the Federal Minister for Water and Power and Prime Minister terming the floods as beyond expert assessments when data released by monitoring and forecasting organisations point towards human factors?

Why is the Indus Water Commission with co-chairs from Pakistan and India dodging the issue of flooding and why are India and Pakistan preparing to take a joint stance on the issue?

There is certainly more to bite than one can chew. The damage to infrastructure, agriculture, human lives and populations is beyond imagination. In the final analysis, most of it was man made and avoidable. Who will take responsibility?

All cited data has been taken from IRSA, Flood Forecasting Division Pakistan, Ministry of Water and Power Pakistan, Metrological Reports of Pakistan, CWC India and thethridpole.net

Brigadier (Retired) Samson Simon Sharaf is a political economist and a television anchorperson. Email and twitter: samson.sharaf@gmail.com

September 15, 2014

Second Part of my Reserach on JUDICIAL ACTIVISM II

Filed under: Uncategorized — sharafs @ 7:35 am

Justice Abdul Hameed Dogar retired on Saturday the 21st of March 2009 on completion of tenure without the traditional full court ceremony. A week earlier a mass rally led by Mian Nawaz Sharif and Aitezaz Ahsan stopped in tracks at Gujranwala, after receiving a mysterious call from COAS Kayani past midnight on 15th of March 2009. The final announcement for reinstatement came from Prime Minister Gilani at 6:15 AM.

Justice Dogar was allowed to retire and replaced by Justice Iftikhar Chaudary in a manner that leaves many questions of law unanswered. Eminent Jurists maintain that the restoration of Justice Iftikhar Chaudary was neither legal, nor constitutional and devoid of political consensus. Otherwise there was no reason for the Parliament not to have given legal cover to the said restoration. Going against his own judgment in Zafar Ali Shah Case in which he ruled that a judge who is not given a PCO oath ceases to be a judge, a minority of judges (themselves questionable), adjudged that any judge who had not taken oath under the PCO 2007 would remain a judge. He violated a previous law set by him for a personal and (as time would prove) a political advantage.

Justice (Retired) Iftikhar Chaudary violated his own judgement as laid in Zafar Ai Shah and also the Tikka Iqbal Khan Case (not expunged in any manner whatsoever at the time of Iftikhar Chaudhry’s restoration). That despite his illegal and unconstitutional restoration, Justice Iftikhar Ch. reinstated himself through the judiciary in an illegal and highly questionable manner and that too by becoming a judge in his own cause thereby violating the code of conduct prescribed for superior court judges of our country. On 31 July 2009 Justice Iftikhar Chaudary and his handpicked judges sacked over 100 Judges without giving them a right of defence. The bench also included one judge who was not qualified to be appointed to the apex court. This judge was admitted to the Supreme Court illegally at the time of his appointment since at the relevant instance he was neither a judge of any High Court nor was he a practising lawyer. By means of the judgment of 31st of July, fourteen handpicked judges uprooted the entire superior judiciary of Pakistan thereby paving way for a pro PMLN and a pro Iftikhar Chaudhry Judiciary. The Bar and Bench even today remain divided.

Why General Kayani had to intervene and on what information is no more a mystery? Following the splitting of restoration of judiciary movement, mayhem was expected along the Grand Trunk Road. General Kayani stamped his boots to coerce Asif Ali Zardari and Prime Minister Gilani into conceding a position they did not consider legal. Had General Kayani been a guardian of democracy he suggested he was, he should have lifted the emergency imposed by a COAS the day he became the COAS. This opens a Pandora’s Box on the treason case, best left to discussion some other time.

Thus began a dysfunctional relationship General Kayani had with two Presidents and two Prime Ministers. Memogate, Raymond Davis and removal of Prime Minister Gilani by the Supreme Court are glaring case studies of this rocky relationship. His checkmating manoeuvring formed two camps within the establishment. Judiciary, PMLN and General Kayani versus the incumbent PPP government. What he ignored in his cantankerous style was the unequivocal commitment of PMLN and PPP under the Charter of Democracy to clip the armed forces he represented. General Kayani kept floating on the surface oblivious of the many intrigues hidden below.

Reeling from successive disappointments in restoration of the judges and memogate, Prime Minister Gilani was provoked by Chaudary Nisar Ali Khan regarding response of the Defence Ministry to the Supreme Court that the Army and the ISI were not subordinate to the ministry, the Prime Minister said, “if the Army considers itself a State within State, then it is unacceptable.” A media house was co-opted to bring the entire issue in public eye to malign the armed forces. As a result the Chiefs of Staff of the three services stopped meeting the President and Prime Minister.

As a bridge, Chairman NAB, himself an ex Naval Chief was assigned the responsibility to act as a mediator with General Kayani. To break the ice, President Zardari gave his willingness to sacrifice Prime Minister Gilani. Through judicial intimidation, NAB letter to Swiss Courts was withdrawn and onus shifted to the Prime Minister. On a wink, contempt proceedings were completed, Prime Minister Gilani punished and DE-notified through the Election Commission of Pakistan. One of the movers and shaker of this contempt proceedings was Pakistan Tehreek e Insaf, who’s Chairman in a dramatic irony was served a similar notice by the apex court. For the first time in Pakistan’s history, an elected prime minister was removed by the Supreme Court of Pakistan through a judgement that had questionable legal jurisdiction under non-existent contempt laws. The Parliament and Speaker of the National Assembly were belittled.

Accountability Courts were made to look as extension of NAB Chairman that had been to a large extent subjugated by interference from the Supreme Court. Media trial of Chairman NAB made him look wicked and complicit. Judiciary, a certain Media House and PMLN made a trio to hound independent minded regulators who ultimately became ineffective one way or another. Demeaning the armed forces and making PPP look bad in the public eye was a step towards making PMLN look good. The pre-poll rigging environment for elections 2013 began to take shape. Grounds were systematically prepared for the unchecked preponderance of the PMLN Juggernaut.

Justice Iftikhar Chaudhary’s interaction with the ECP had begun earlier. PTI petition to Supreme Court giving voting rights to overseas Pakistanis and hype in media is one instance when the apex court began direct interference in the internal working of ECP. In another, notwithstanding that the post-election forum for disqualifications is the Speaker of the National Assembly, Chairman Senate and the ECP; Justice Iftikhar Chaudary subverted the constitution and autonomy of ECP to disqualify dual nationals.

Appointment of Returning Officers from lower judiciary to conduct the elections proved the last nail in the coffin of ECP. What began as suggestive interference was now a gapping breach for electoral subversion. To be continued…..

Brigadier (Retired) Samson Simon Sharaf is a political economist and a television anchorperson. Email and twitter: samson.sharaf@gmail.com

http://nation.com.pk/columns/13-Sep-2014/judicial-activism-ii

September 7, 2014

FACING A HYPER ACTIVE JUDICIARY. PART 1

Filed under: Uncategorized — sharafs @ 6:42 am

When the Supreme Court of Pakistan issued contempt to Imran Khan, he stood abandoned by his legal team that was either questionable or incompetent or submissive or docile. I wrote to the Chairman “Hire some top grade lawyers immediately. I fear the worst”. A year later, the same was repeated in a show cause on Justice (retired) Iftikhar Chaudary later revoked by Imran Khan.

The Contempt of Court Notice on 31 July 2013 was issued under Article 204 of the Constitution of Pakistan and section 3 of the Contempt of Court Ordinance, 2003. This Ordinance had lapsed over a decade ago. The illegal notice was served under a nonexistent law.

The Contempt of Court Act 2012 passed by the Parliament had been struck down by Supreme Court in August 2012. The Supreme Court had declared that, “COCA 2012 is contrary to Article 19 and is also discriminatory in its nature and violates Article 25 of the Constitution.” The Supreme Court set a principle in this judgment that freedom of speech is more important than a contempt law.  In another case, 16 Judges of the Supreme Court had suspended the sentence of a Police Officer who manhandled Chief Justice Iftikhar Muhammad Chaudhary. It needed 16 to revoke. The contempt notice to Imran Khan was downright void being in clear contravention of Articles 89, 270AA and 264 of the Constitution.

Rather than challenge the notice, lawyers led him into giving a clarification that was not needed. By law, he was justified in expressing his reservations. Had his lawyers been competent, they could have used this occasion to address many aberrations in the law created by judicial activism.

Contempt in contemporary law is seen as an exceptional rule and not something to bring government functionaries into awe and submission. According to international commission of jurists, 

“The best shield and armour of a Judge is his reputation of integrity, impartiality, and learning. An upright judge will hardly ever need to use the contempt power in his judicial career. It is only in a very rare and extreme case that this power will need to be exercised, and that, too only to enable the judge to function, not to maintain his dignity or majesty.” 

In 1968 Lord Denning of the British Courts from whom Pakistan inherits its laws said: 

“We (the judges) will never use this (contempt) jurisdiction as a mean to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. For there is something far more important at stake, it is no less than freedom of speech itself. It is the right of every man, in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous.” 

Justice Iftikhar Chaudary’s activism in using this nonexistent law without exception means that serious issues of integrity and honesty existed. He subdued the PPP Government and its functionaries through a contempt trap tantamount to Judicial Harassment. He harassed officials facing hostility of PMLN government. Judicial bias was floating on the surface and acted like a bully. This bias is reflected beyond contempt to which, the legal fraternity has adopted a mysterious silence. Even when cases open, lawyers avoid the tenuous legal arguments thereby augmenting legal aberrations. Had Imran’s lawyers stood their ground with cogent arguments, the process of removing bias from courts could have begun. 

Irfan Qadir, the ex-Attorney General of Pakistan faced this activism of the Supreme Court more than anyone else. A certain media house also unnecessarily hyped the issue of appointment of judges. The smokescreen provided the cover for judicial activism never witnessed before. According to him: 

“On 31st of July, 2009, for the first time in our judicial history a few Judges removed a large number of their own brethren. In other words, 14 judges of the Superior Court sacked over 100 Judges without hearing them. Unfortunately, this led to a divide between the Bench and the Bar” 

Against common belief, Justice Iftikhar Chaudary was not restored but reappointed. He had to wait for Justice Dogar to retire. Going against his own judgment in Zafar Ali Shah Case in which he ruled that a judge who is not given a PCO oath ceases to be a judge, a minority of judges (themselves questionable), adjudged that any judge who had not taken oath under the PCO 2007 would remain a judge. This way he violated a previous law set by himself to be a winner of both. 

Zafar Ai Shah Case is still intact including the paragraphs that justify military interventions under necessity. In light of the precedence he set, he ceased to exist as a judge when he refused to take oath under the PCO 2007. It is only on 31 July 2009 that he reversed his judgment. If he had ceased to be a judge, how come he was reappointed as the Chief Justice of Pakistan on retirement of Justice Dogar is a question, the legal fraternity of Pakistan has to address? In focus will be the complete 14 member bench that had taken oath under the first PCO of General Musharraf. Though the Chaudary Courts maintain that Tikka Iqbal Khan Case was thrown out, the factual position is that Tikka Iqbal Khan Case is not set aside. It is a case of judicial activism against a judgment that judges once removed cease to be judges. 

According to the argument of Humayun Gauhar and to which Irfan Qadir agrees: 

“Non PCO judges were removed by PCO judge Iftikhar Chaudhry and his handpicked PCO judges of yesteryears without giving the ousted judges the opportunity of a hearing, thus making a mockery of due process. He even ignored the fact that he had been restored under a questionable Executive Order that was neither issued under any law nor the constitution, thus putting the legality and credibility of an already controversial Supreme Court and the entire judiciary into a tailspin”. 

It was General (Retired) Kayani’s phone call that resulted in reappointment of judges through an illegal procedure. The biggest beneficiary was PMLN.

Had Imran Khan’s lawyers been sincere, a first step towards removal of legal aberrations and restoration of Rule of Law could have begun. To be continued 

Brigadier (Retired) Samson Simon Sharaf is a political economist and a television anchorperson. Email and twitter: samson.sharaf@gmail.com

http://www.nation.com.pk/columns/06-Sep-2014/judicial-activism-i

 

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