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The International Crisis Group issued its new report today “Reforming the Judiciary in Pakistan.” You can download the full report from this location, but the Recommendations to the Government of Pakistan are very interesting.

To the Government of Pakistan:

1.  Reinstate, without exception, all judges deposed unconstitutionally after 3 November 2007, including Iftikhar Muhammad Chaudhry; with the Supreme Court deciding on his reinstatement to the position of chief justice.

2.  Reverse the military’s constitutional and legal changes and introduce, after broad public consultation and extensive parliamentary debate, a constitutional amendment bill to restore and enhance the 1973 constitution’s liberal parliamentary structure, including religious equality, by:

a) repealing Musharraf’s Seventeenth Amendment, including Article 58-2 (b) which gives the president the power to dismiss elected governments;

b) removing the requirement under the Third Schedule of the constitution for the president and prime minister to be Muslims; and

c) reaffirming the authority of the ordinary courts to examine laws for repugnancy to Islam by abolishing the Federal Shariat Court through a constitutional amendment.

3.  Ensure judicial independence by:

a) creating a Judicial Commission for the appointments of Supreme Court and High Court judges, guided by the May 2006 Charter of Democracy, comprising the chief justice of the Supreme Court, as its chair; the next two most senior Supreme Court justices; the four provincial chief justices; a member of the Pakistan Bar Council (PBC), nominated by the PBC; the president of the Supreme Court Bar Association (in matters related to the Supreme Court); and the four presidents of the High Court bar associations (in matters related to their respective High Court);

b) adhering to the seniority rule in the appointment of chief justices to the Supreme Court and High Courts;

c) empowering the Judicial Commission to take disciplinary actions against sitting judges; and

d) rendering invalid judicial appointments to the Supreme Court and High Courts should the oath of adherence to the constitution be violated.

4.  Reduce opportunities for executive interference in the higher judiciary by immediately ending the practice of appointing retired judges to executive posts until two years after retirement.

5.  Amend the constitution to curtail chief justices’ power over transfers of judges and assignment of cases, establishing professional, managerial divisions within the courts to fulfill this task. Read the rest of this entry »

Sajjad Ali Shah, one of my favorite ex-judges of the Supreme Court of Pakistan, who was relieved of his duties as Chief Justice by former Prime Minister Nawaz Sharif in an unconstitutional manner, provided this analysis in today’s DAWN.

I HAVE been following with great interest the proceedings of the case of the Chief Justice of Pakistan. The judiciary is an institution with two sides like that of a coin. One is external which is visible to the people and the other is internal which is not visible and is not discussed in public.

What happens inside the judiciary and to the judges as they interact with the executive is not divulged to the outside world. The Chief Justice knows better because he controls the administration and deals with the executive in that connection.

So there are wheels within wheels. The executive always tries to win over the judiciary by following a carrot and stick policy. The CJP administers the oath of office to the president and vice versa, and there are important functions in the presidency and PM House with the participation of foreign dignitaries which are attended by the CJP.

Both civil and military governments want a friendly judiciary and they don’t like decisions against the government or its policies. Even otherwise, Islamabad is a small town with a limited social life. On the administrative side, the CJP can accommodate the federal government but without transgressing the Constitution and law.

During my tenure as CJP, a request was made to me by Prime Minister Nawaz Sharif for the appointment of a particular lawyer as attorney-general of Pakistan. I consulted the CJ of the high court of the province concerned and in spite of some difficulties, we were able to make the appointment as wished by the prime minister acceptable to all relevant quarters. Read the rest of this entry »

The following is the text of short order of the 13-member full court of the Supreme Court issued Friday regarding restoration of Justice Iftikhar Muhammad Chaudhry as chief justice of Pakistan:

ORDER

For detailed reasons to be recorded later, the following issues arising out of this petition are decided as under:-

(I) Maintainability of COP No 21 OF 2007 filed under Article 184(3) of the Constitution. This petition is unanimously declared to be maintainable.

(II) Validity of the direction (the reference) issued by the president under Article 209(5) of the Constitution.

By a majority of 10 to 3 (Justice Faqir Muhammad Khokhar, Justice M Javed Buttar and Justice Saiyed Saeed Ashhad, dissenting), the said direction (the reference) in question dated March 9, 2007, for separate reasons to be recorded by the honorable judges so desiring, is set aside.

(III) Vires of judges (compulsory leave) order being president’s order No 27 of 1970 and the consequent validity of the order dated 15.3.2007 passed by the president directing that the CJP shall be on leave.

The said president’s order No 27 of 1970 is unanimously declared as ultra vires of the Constitution and consequently the said order of the president dated 15.3.2007 is also unanimously declared to have been passed without lawful authority. Read the rest of this entry »

In a very odd twist, Munir A. Malik, President of the Supreme Court Bar Association was summoned to the Supreme Court to explain his statement that people would set the Supreme Court on fire if its judgment in the Chief Justice case did not satisfy them. Associated Press Pakistan posted the story online.

ISLAMABAD, July 9 (APP) – A 13-member bench of the Supreme Court Monday summoned president of Supreme Court Bar Association (SCBA) Munir A Malik over his reported threat to burn the top court if it gave a verdict in chief justice case like the judgement in Maulvi Tamizuddin case.

The bench, headed by Justice Khalil-ur-Rehman Ramday, issued notice to Munir A Malik to appear before it on Tuesday to give an explanation, after taking serious notice of the news report.

The SCBA president reportedly told a private channel: “Lawyers will burn that Supreme Court, which will give the verdict in CJ like that of Maulvi Tamizuddin case.”

Munir A Malik also said if the SC decides the cases as a ‘B’ team of the government, they would not accept the verdict. In its order, the bench said Ch. Aitzaz Ahsan, lawyer of Justice Iftikhar Muhammad Chaudhry, was told about the reported statement in the absence of Munir A Malik who has been directed to appear before this court in person on Tuesday to explain his position.
Aitzaz Ahsan was also directed to convey the court’s order to the SCBA president. The Registrar of the Supreme Court was also directed to convey the order to the concerned by telephone as well as by fax.

One of the petitioners, Wahab ul Khairi, who is chairman of Al Jihad Trust, intervened in the matter and requested the court to take very serious notice of the reported threat. Read the rest of this entry »

ISLAMABAD: Who told the whole truth and who held it back? Who should be believed and who shouldn’t be? Ordinary mortals are in a fix.

It is well-nigh impossible for them to decipher as to what is true and what is untrue in the three affidavits filed by Lt-Gen (retd) Hamid Javed, CoS to President Musharraf, Maj-Gen Nadeem Ijaz chief of Military Intelligence (MI), and Brig (retd) Ijaz Shah chief of Intelligence Bureau (IB), and the one earlier filed by Chief Justice Iftikhar Muhammad Chaudhry with the full court.

The three affidavits rebut what the fourth one contains. All signatories are highly responsible people, three senior serving or retired military officers, and the one, the chief justice of Pakistan. All of them may be faithful to their separate cause if the saying —’everything is fair in love and war’, is given credence.

During days at the law college in the late 1970s, a teacher, who was a practising lawyer, once said to his pupils that only the words “I ____________son of______________ do solemnly state on oath as under” appearing in the beginning of affidavits are true, but nothing could be said with certainty about the remaining parts of the depositions contained in them, which are always debatable.

This was indeed a damning comment. It is not known how far this assertion applies to present affidavits. One of them noted, “by distorting the facts and relying mostly on conjecture, a very misleading picture has been portrayed (by Justice Chaudhry), which is far from the truth.”

Rare statements on the oath filed by the two chief spymasters and the CoS are in reaction to Justice Chaudhry’s affidavit. The present three statements contain several revealing claims.

They and Justice Chaudhry’s affidavit reflect the elaborate role of the intelligence agencies even in matters concerning judges. The chief justice himself comprehensively involved intelligence officials and used to have excellent relations and rapport with their heads.

The official affidavits are full of umpteen rebuttals of “inaccuracies” contained in Chief Justice Chaudhry’s statement. They claim that it was his request that MI, IB and Inter-Services Intelligence (ISI) chiefs be called in his meeting with Musharraf. Read the rest of this entry »

ISLAMABAD, June 7 (APP): Following is the text of an affidavit filed in the Supreme Court on Thursday by Lt. Gen. (retd) Hamid Javaid, Chief of Staff to the President.

“I, Lt Gen (R) Hamid Javaid son of Ch Muhammad Ashraf, presently working as Staff to the President of Pakistan, do hereby solemnly stale on oath as under:-

1. I was Appointed as Chief of Staff to the President on 1 November 2002, and have continued to work in this position todate.

2. As Chief of Staff to the President, my responsibilities include coordination of all activities related to the President’s office work.

3. That I have read the affidavit filed by Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan (on forced leave) (“CJP”) and all adverse allegations made therein unless specifically admitted herein below are hereby denied.

4. I say that as per official record, Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan (on forced leave) (“CJP”) made ten formal calls on the President of Pakistan. The CJP himself desired all these meetings. Read the rest of this entry »