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 In another judgment Justice Iftikhar Chaudary in violation of article 89 of the constitution used a duly repealed Contempt of Court Ordinance 2003 to subdue the PPP Government and its functionaries through a contempt trap akin to Judicial Harassment.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:






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