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CJ Iftikhar Chaudhry should be asked to appear before Parliamentary Committee on Rules of Procedure and Privileges

Bureaucrats cannot be allowed to violate elected parliament's privileges.

Related post: Pakistan’s elected parliament must remove Chief Justice Iftikhar Chaudhry

In the light of recent commentaries by leading Pakistani and international lawyers including but not limited to Asma Jahangir, Justice Markandey Katju (Indian Supreme Court), Saroop Ijaz etc, it is evident that Supreme Court of Pakistan has violated not only national constitution but also attacked the very foundation of parliamentary democracy in Pakistan.

Former Indian Supreme Court judge Justice Markandey Katju, writing in The Hindu recently, questioned what he said was the “lack of restraint” on the part of Pakistan’s superior judiciary.

I regret to say that the Pakistani Supreme Court, particularly its Chief Justice, has been showing utter lack of restraint. This is not expected of superior courts. In fact the court and its Chief Justice have been playing to the galleries for long. It has clearly gone overboard and flouted all canons of constitutional jurisprudence.

Justice Katju noted that Article 248, Clause 2 of the Pakistani Constitution very clearly states: “No criminal proceedings whatsoever shall be instituted or continued against the President or governor in any court during his (or her) terms of office”. He then went on to ask that if this is the case, how could a court approach what is a settled provision in the “garb of interpretation”?

The Pakistan Constitution draws its basic structure from Anglo-Saxon laws, which establishes a delicate balance of power among the three organs of the state — the legislature, the executive and the judiciary. However, in recent past, particularly since April 2012, Pakistan’s top judiciary led by Chief Justice Iftikhar Chaudhry has encroached into the elected parliament’s domain. This situation is not only a violation of Pakistan’s constitution but violates privilege of the elected parliament.

In his obsession to become a saviour of the nation and hero of Pakistani media, CJ Chaudhry has become a tool in the hands of right-wing dominated politicians and media, and is through his actions and verdicts hurting Pakistan’s very security and stability.

Lawyer Saroop Ijaz writes:

The Pakistan Supreme Court has sent an elected prime minister home. This in itself is disturbing, however, permissible it may be under some circumstances. What is infinitely more worrying is the fact that the Supreme Court did not feel itself constrained by the procedure of law. The argument that the order of the Speaker cannot overrule the Court is a very decent one, yet does not explain why the Court ignored the clear provisions of the Constitution to send the matter to the Election Commission of Pakistan. There is also the issue of the three-member bench making a mockery of the seven-member bench. However, there is a vaguely linear progression to all of this. The Supreme Court terminated the employment of  “PCO” judges without reference to the Supreme Judicial Council, which was allowed to go unexamined. More recently, when memberships of members of parliament were suspended for dual nationality, again without reference to the Election Commission of Pakistan, not enough noise was created. Demagogy has a tendency of being incremental sometimes; they have tested the waters and now found it appropriate for a splash. It is likely to get worse now, it always does.

Even now there is a curious reluctance to unequivocally condemn, or mildly speaking, criticise the judgment of the Supreme Court. Yousaf Raza Gilani and his maladministration is not the issue here, the issue is considerably more fundamental, namely the right of the people to elect their representatives and also to send them home. The Supreme Court does not represent the will of the people and the Courtrepeatedly saying so to the contrary would not change that. Let me also say this about the law of contempt, if the Court in fact does believe that it represents the will of the people then it will have to make its peace with the fact, that people talk and also talk back.

It is high time that Pakistan’s parliament, not only ruling PPP but also other parties (PML-Q, ANP, MQM, JUI-F etc), require Chief Justice Iftikhar Chaudhry to appear before the Parliamentary Committee on Rules of Procedure and Privileges to explain his position on supremacy of elected parliament.

According to Section 227 of the Rules of Procedures: “A Committee shall have power to require the attendance of persons …. if such course is considered necessary for discharge of its duties.”

CJ must be asked to explain why he is insisting on violation of Pakistan’s constitution and also why he is insulting the mandate given by the people of Pakistan to their elected parliament. The Committee should ask CJ why he wants elected Prime Minister to violate Article 248 of Pakistan’s Constitution (related to President immunity). https://lubpak.net/archives/9123

The Parliamentary Committee on Rules of Procedure and Privileges must ask Justice Jawad S. Khwaja & other judges of the SC to explain their alleged past and present links with Hamid Khan Group of PTI who was a petitioner in PM Gilani’s disqualification case.

The Parliamentary Committee should require CJ to assure he won’t force Pakistan’s current Prime Minister (Raja Pervez Ashraf) and other members of the executive to violate Pakistan’s constitution. He must also assure that Supreme Court will refrain from further trespassing into the parliament’s domain.

In case, CJ is unable to satisfy the Parliamentary Committee on Rules of Procedure and Privileges, SC may be dissolved and reformed as per the Charter of Democracy (CoD) signed by late Benazir Bhutto and Nawaz Sharif.

There are precedences in other countries where elected parliament had to intervene in order to remove a corrupt or trespassing judge or chief justice. Recently in May 2012, parliament in Philippine voted to remove the country’s Chief Justice of Supreme Court.

On 29 May 2012, the Philippine Senate voted to remove the country’s top judge for failing to disclose his wealth, a landmark victory in a country wide campaign to root out endemic corruption in the Southeast Asian nation. More than two-thirds of the 23 senators voted to oust Supreme Court Chief Justice Renato Corona, who becomes the first official in the country to be removed by an impeachment court. The decision bars him permanently from public office. The ruling is likely to be welcomed by investors amid concern that the four-month-long trial was distracting the government from policy matters at a time when the Philippines is seeing a resurgence of interest in its long-underperforming economy. (Source)

The following extract from the CoD describes the formation of superior judiciary:

3. (a) The recommendations for appointment of judges to superior judiciary shall be formulated through a commission, which shall comprise of the following:

i. The chairman shall be a chief justice, who has never previously taken oath under the PCO.

ii. The members of the commission shall be the chief justices of the provincial high courts who have not taken oath under the PCO, failing which the senior most judge of that high court who has not taken oath shall be the member

iii. Vice-Chairmen of Pakistan and Vice-Chairmen of Provincial Bar Association with respect to the appointment of judges to their concerned province

iv. President of Supreme Court Bar Association

v. Presidents of High Court Bar Associations of Karachi, Lahore, Peshawar, and Quetta with respect to the appointment of judges to their concerned province

vi. Federal Minister for Law and Justice

vii. Attorney General of Pakistan

(a-i) The commission shall forward a panel of three names for each vacancy to the prime minister, who shall forward one name for confirmation to joint parliamentary committee for confirmation of the nomination through a transparent public hearing process.

(a-ii) The joint parliamentary committee shall comprise of 50 per cent members from the treasury benches and the remaining 50 per cent from opposition parties based on their strength in the parliament nominated by respective parliamentary leaders.

(b) No judge shall take oath under any Provisional Constitutional Order or any other oath that is contradictory to the exact language of the original oath prescribed in the Constitution of 1973.

(c) Administrative mechanism will be instituted for the prevention of misconduct, implementation of code of ethics, and removal of judges on such charges brought to its attention by any citizen through the proposed commission for appointment of Judges.

(d) All special courts including anti-terrorism and accountability courts shall be abolished and such cases be tried in ordinary courts. Further to create a set of rules and procedures whereby, the arbitrary powers of the chief justices over the assignment of cases to various judges and the transfer of judges to various benches such powers shall be exercised by the Chief Justice and two senior most judges sitting together.

The CoD offers best path to reconstitute the Supreme Court consistent with the essence of parliamentary democracy. In such a scenario, Pakistan’s Supreme Court may be reconstituted just like Senate, assuring equal representation of all ethnic groups (not domiciles), also making sure that no PCO judge (i.e., one who has in the past validated a military coup or endorsed dictator’s actions) is a Chief Justice of the Supreme Court or High Courts in provinces.

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Abdul Nishapuri

18 Comments

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  • Excellent suggestion. CJ Chaudhry has caused excessive damage to the stability and democratic institutions of Pakistan. He must be asked to explain his actions in relevant parliamentary committee.

  • Overall, a good proposal. One minor amendment is proposed.

    He should be asked to explain his decision to dismiss an elected Prime Minister in a joint session of the Parliament and the proceedings are televised live.

  • Most corrupt blog in Pakistan against most honest Judge.

    Not he, you are mental!

  • Thanks for writting this . Its an excellent post . Perhaps its not relevent to current debate but its important to mentioned this .

    The petition which lead to declare speaker ruling null void was based not only political one was meant to ridicule speaker . According to PTI petition against Speaker Fehmida Mirza , an MP elected on ‘reserved seat’ made mockery of constitution .

    Let me remind PTI tigers and CJ janisar Fehmida Mirza is directly 4 times directly elected MNA .

  • it must be decided that who is the superior authority LAW MAKERS or the judiciary

  • Pakistan’s gun-slinging chief justice faces backlash

    By Matthew Green and Qasim Nauman
    ISLAMABAD | Sun Jun 24, 2012 6:20am EDT

    (Reuters) – To his admirers, Pakistan’s Chief Justice Iftikhar Chaudhry is a hero whose relentless pursuit of a money-laundering case against the president is teaching a generation of the country’s leaders a long-overdue lesson in respect for the law.

    To his critics, he is a runaway judge in the grip of a messiah complex whose turbo-charged brand of activism threatens to upend the power balance underpinning Pakistan’s precarious embrace of democracy.

    Last week, Chaudhry made his most controversial move yet by disqualifying prime minister Yusuf Raza Gilani as punishment for his repeated refusal to obey court orders to re-activate a corruption case against President Asif Ali Zardari.

    Gilani’s downfall marked a watershed in a long-running showdown between the judiciary and the government that has laid bare the institutional tensions plaguing a country that has test fired ballistic nuclear missiles, but has yet to agree on how it should be run.

    “In practical terms, democracy is finished because the balance of power between the parliament, the executive and the judiciary has been ruined,” said a senior member of Zardari’s ruling Pakistan People’s Party (PPP).

    The military, which has ruled Pakistan for about half of its 65 years as an independent nation, has also not hidden its disdain of Zardari’s government, but has made it clear it does not wish to seize power, at least not directly.

    The drama has been spiced by allegations of bribe-taking brought against Chaudhry’s son by a billionaire property developer, who has himself been accused of land-grabbing and fraud. The controversy briefly put the stern-faced judge on the defensive before he regained the initiative by disqualifying Gilani.

    The next chapter in the saga could start as early as Wednesday, when the Supreme Court holds its latest hearing in more than two years of legal wrangling aimed at forcing the government to re-open proceedings against Zardari.

    Pakistan’s political class is now transfixed by the question of whether Chaudhry will opt to pause in the wake of his victory over Gilani, or press home his advantage by demanding that Raja Pervez Ashraf, the new prime minister, re-activate the case.

    Zardari, a consummate political survivor, has already sacrificed Gilani in his determination to ensure the money-laundering case, which falls under Swiss jurisdiction and dates back the 1990s, remains closed. Under Pakistan’s constitution, President Zardari enjoys immunity which the Supreme Court wants to violate.

    While opponents of ruling PPP are happy to see his unpopular government on the ropes, the pugnacious chief justice is facing a growing backlash from those who fear his court-room victories are being bought at the price of Pakistan’s stability.

    “We all have a problem with corruption, we all want these guys taken to task,” said Mehreen Zahra-Malik, a columnist with The News. “But I don’t think it should be at the expense of the entire house falling apart.”

    GRIDLOCK

    Opposition parties have exploited the crisis to pile pressure on Zardari, raising the risk that the government might be forced to call general elections before its term expires in March.

    Whatever the president may decide, the stage is set for a new bout of institutional gridlock at a time when Pakistani needs agile leadership to face a host of challenges, from a chronic power crisis to Islamist militancy and tense relations with Washington.

    The source of Chaudhry’s zeal is to be found in one of the more turbulent episodes in Pakistan’s recent history, according to lawyers and commentators who have tracked his ascent.

    Appointed in 2005, Chaudhry became embroiled in a confrontation with Pervez Musharraf, then Pakistan’s military leader, who removed him from office after he opposed plans to extend the general’s term in office.

    Huge crowds poured onto the streets to support Chaudhry’s stand against the generals. Zardari’s government, which took power in 2008, was forced to re-instate him the following year after an outpouring of street protests by lawyers.

    The heady victory seems to have shaped the judge’s self-image as a champion sent to right the wrongs inflicted on ordinary Pakistanis by a self-serving elite and an over-privileged military.

    He has since used his powers to investigate everything from petrol and sugar prices which fall under executive. However, his progress on corruption and illegal abduction and murder cases against army has been rather slow.

    The judge’s eagerness to rewrite the rules of Pakistan’s power game have won him support among those who see the judiciary as the only realistic hope of holding their leaders to account.

    Chaudhry has got his fair share of criticism. Some say the decision to disqualify Gilani smacks of a grudge match cheered on by his allies in Pakistan’s boisterous media.

    Legal experts have questioned whether Chaudhry may have exceeded his powers by ousting the prime minister, arguing that there were other options available to resolve the stand-off with Zardari’s government.

    “It’s my impression that the judgments are highly politicized,” said Asma Jahangir, a respected human rights lawyer. “The populist approach of the chief justice will destabilize the democratic process.”

    The ruling PPP believes Chaudhry is deliberately fast-tracking corruption proceedings against its members, while leaving cases against opposition politicians to gather dust.

    The media frenzy triggered by Gilani’s ouster also eclipsed a sub-plot that had, days earlier, put Chaudhry in the spotlight over allegations that his son had accepted huge bribes from Malik Riaz, a business magnate.

    Malik Riaz said he had given almost $3.6 million in bribes to Arsalan Iftikhar, the chief justice’s son. Iftikhar has denied any wrongdoing.

    The growing backlash against Chaudhry in some parts of the political sphere may temper his next move.

    While Zardari’s government is widely tarnished with allegations of cronyism and incompetence, it also stands at a unique juncture in Pakistan’s evolution from an army-dominated to a civilian-led system.

    Before he was ousted, Gilani had been on course to become the first prime minister to lead a democratically elected civilian government to the completion of a five-year term.

    The government has often sought to deflect criticism of its record by portraying itself as a “martyr” to a conspiracy by its opponents in the judiciary and military.

    That narrative gained more credence in the eyes of many last week when an anti-narcotics court run by the military issued an arrest warrant for Makhdoom Shahabuddin, a former health minister, who had been Zardari’s first pick to replace Gilani.

    Should Chaudhry attempt to disqualify Ashraf, the prime minister, if he also refuses to re-open the graft case against Zardari, then the unease over his no-holds-barred activism is only likely to grow.

    “The Supreme Court will be under tremendous pressure not to send two prime ministers home,” said Babar Sattar, a legal commentator.

    “Irrespective of the legalities of the issue, I just don’t think people will have the patience to live through that drama.”

    (Editing by Michael Georgy and Raju Gopalakrishnan)

    http://www.reuters.com/article/2012/06/24/us-pakistan-politics-idUSBRE85N05D20120624

  • I say a reference to the supreme judicial council, given the non-dissenting record of the Chaudhry Court, (with Brother judges like Khwaja, Khilji, Khosa, and the rest ) would not serve any purpose. CJ Chaudhry should be summoned by the Parliamentary Committee without further loss of time, and duly grilled to explain a lot of irregularities and clear contraventions of not only the rules and procedures but of the constitution itself that he has sworn to uphold. (Or it may be enlightening to probe whether the CJ considers that he is not bound by the post-18th Amendment Constitution vis a vis the PCO under which he has taken oath!) His bluff must be called in the light of his recent tongue-in-cheek statement in which he is reported to have said that he would be pleased to present himself before the Speaker National Assembly if she summoned him.

  • Parliament can’t frame laws repugnant to Constitution: CJ
    By: Terence J Sigamony

    June 24, 2012

    ISLAMABAD – Chief Justice Iftikhar Muhammad Chaudhry has said the Supreme Court has constitutional authority to review laws made by the parliament that do not conform to the constitution.

    The parliament should make such laws as could be implemented, the CJ told a 50-member delegation of the Youth Parliament that called on him Saturday. The judiciary is a custodian of basic human rights and protection of citizen’s rights was its duty under the constitution, he added.

    It was by no means ‘judicial activism’ but a ‘non-traditional’ power of the Supreme Court that was being used to address cases involving the fundamental rights of the people, the chief justice said. Law applies to all irrespective of their status, power, caste, creed and religion and no one can claim supremacy over and above the law, he added.

    He said the Supreme Court in its successive judgments has stressed the need for adherence to the law and the constitution and compliance with rule of law and due process requirement to establish a system of civilised governance in the country. It has always squarely adjudicated upon the matters pending before it within the confines of law and constitution in order to ensure continuation of the democratic process in the country, he further said.

    Talking about the constitutional scheme in the country, the CJ said: “In our country there is a parliamentary system. From 1973 onward there have been national assemblies and senates but on account of constitutional turmoil, which came time and again, there had been intervention in parliamentary system, therefore, the expectations of people attached to the parliament could not be fulfilled.”

    He said the parliament cannot make any law that is repugnant to constitution and injunctions of Islam and is contrary to fundamental laws; if such law is promulgated, the Supreme Court under its power of Judicial Review can review it. The underlying object of judicial review is to check abuse of power by the public functionaries and ensure just and fair treatment to the citizens in accordance with the law and constitutional norms.
    Talking about the trichotomy of power, he said that every organ of the state enjoys complete institutional independence within its constitutional domain, however, any excess or misuse of power beyond that domain becomes the subject matter of judicial scrutiny. The judicial institution of the state, with Supreme Court as the final arbiter, acts as the ultimate protector of the rights of citizens and serves as upholder of the constitutional supremacy.

    The Supreme Court of Pakistan enjoys original, appellate and advisory jurisdiction, he said. The advisory jurisdiction of the Supreme Court extends to matters referred to it by the president for obtaining its opinion on any question of law which he considers of public importance.

    Citing an example he said in 2005, the Supreme Court while deciding a presidential reference made under article 186 of the constitution declared certain provisions of North-West Frontier Province Hasba Bill as null and void. The SC also has the jurisdiction to pronounce declaratory judgments in any dispute between the federal government and a provincial government or between any two or more provincial governments under article 184(1), he added.

    Talking about the fundamental rights, he said, “Where any question of public importance arises with reference to the enforcement of any of the fundamental rights ensured by the constitution; the Supreme Court has the power to make any appropriate order for the enforcement of these rights.

    The chief justice advised the members of Youth Parliament to study the basic features of our constitution and, also, how the document has been interpreted by courts. He told the delegation that the youth were the democratic leaders of the future. He appreciated the concept and objective of the Youth Parliament and said it was encouraging to involve the youth in such sessions to educate them and develop their personalities with a view to preparing them for the challenges of practical life.

    http://www.nation.com.pk/pakistan-news-newspaper-daily-english-online/national/24-Jun-2012/parliament-can-t-frame-laws-repugnant-to-constitution-cj

  • The 90% Judiciary in our country consist of JAMAT ISLAMI MEMBERS……and what you can expect from them….but when the real forces of people will show there teeth…..PPP has spent lot of time tolerating all this bullshit..when they will fight back ????

  • Chief Justice Iftikhar is single major threat to Pakistan and its nascent democracy. Sooner we get rid of him, the better.

  • totally bull shit, why the fuck indian has to interfare in someone else business. our chief Justice knows the satuation of pakistan and he knows whats best for pakistan so better Indian Supreme Court judge keep his nose out of it …

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