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Judicial activism may lead Pakistan towards a military intervention – by Amir Mir

LAHORE, 15 February 2010: A fresh tussle between the Pakistani President Asif Zardari and the Chief Justice Iftikhar Chaudhry over the appointment of the superior court judges has snowballed into a major political crisis which may lead to yet another military intervention by Army Chief General Ashfaq Kayani, who is due to retire this year and wants his tenure to be extended.

Judicial activism seems to be in top gear in Pakistan as the Chief Justice of the Supreme Court Iftikhar Chaudhry has literally revolted against the President by rejecting his decision to elevate two judges of the Lahore High Court, including the chief justice of the Punjab province despite the fact that they were elevated in accordance with the seniority principle. The chief justice, who was sacked by President Musharraf in 2007 over corruption charges and reinstated by President Zardari in 2009, insists that the president’s decision was unconstitutional because he was not consulted as per the law of the land. In a dramatic move in the after hours on February 13, the Supreme Court of Pakistan took suo moto notice of the presidential action and suspended the elevation of the two judges by President Asif Zardari.

However, the government circles say the SC chief justice is trying to impose “judicial dictatorship” by undermining the elected parliament. They add that the Chief Justice Iftikhar Chaudhry had recommended elevation of a junior judge of the Lahore High Court to the Supreme Court while retaining a senior judge, Khawaja Sharif, as Chief Justice of Lahore High Court. They argue that the chief justice’s recommendation was in violation of the apex court’s own verdict in 2002 which had set out the principle of seniority for appointment and elevation of the superior court judges. Therefore, they add, the recommendation was rejected by President Zardari.

While the main opposition leader Nawaz Sharif has decided to openly side with the judiciary in the fresh battle between the executive and the judiciary, dubbing the president as the biggest threat to democracy, the government circles say the chief justice has openly declared war against a fragile democracy at the behest of the Pakistan army and the right wing pro-Taliban leaders of the Muslim League.

According to Fauzia Wahab, the central secretary information of the ruling PPP, the right-wing military-judiciary-opposition parties’ axis of evil has taken its dagger out for a final attack on the democratically elected government of the left-wing Pakistan People’s Party.

However, the federal government intends to challenge the apex court’s action. The official circles in Islamabad claim that the chief justice was consulted but his recommendation was rejected by the president because he happens to be the final authority to appoint and elevate judges of superior courts. Yet those close to the chief justice say he is contemplating to initiate contempt of court proceedings against the president and the prime minister from February 18 for overlooking his recommendations for elevation of the two judges who are considered close to Zardari’s political rival and opposition leader Nawaz Sharif.

Therefore, it is said, the president wanted to get rid of the Lahore High Court’s chief justice Khawaja Sharif and therefore elevated him to the apex court. It may be recalled that the majority of judges currently sitting in the Supreme Court and Lahore High Court are of Punjabi origin, most of them are known for their loyalties to right-wing Pakistan Muslim League and Jamaat-e-Islami; some of them are also known to have a populist anti-West and pro-Taliban inclination.

According to legal experts, the constitutional position pertaining to the elevation of the superior court judges is that the Chief Justice of the Supreme Court is only a consultee, and it is the president of Pakistan who has the ultimate authority to take a final decision. However, the chief justice, having suspended the presidential orders on February 13, has already constituted a three member apex court bench which is to decide whether or not the presidnetial action of February 13 was constitutional. But the chief justice’s action of suspending the presidential orders within three hours of their issuance has been described by the PPP circles as a judicial martial law which might eventually pave the way for yet another military intervention by the outgoing Army Chief General Kayani.

Courtesy: Middle Eastern Transparent