INSIGHT AND FORESIGHT

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

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Create a free website or blog at WordPress.com.

%d bloggers like this: