Saturday, March 29, 2008

Justice Iftikhar Chaudhry Is No Angel!


"Justice Iftikhar Chaudhry was not and is not an angel" said Mr. Muneer A. Malik, the President of the Pakistan Supreme Court Bar Association, during an interview with Philip Reeves of NPR radio broadcast in the United States last year. This interview took place in 2007 after President Musharraf sacked Mr. Chaudhry and Malik launched a campaign to restore Mr. Chaudhry.

While I strongly disagree with Mr. Musharraf's decision to fire Mr. Chaudhry, I am curious to find out what Mr. Malik really thought about Mr. Chaudhry. Since Mr. Reeves did not ask the follow-up question as to what Mr. Malik meant by his "no angel" remark about Mr. Chaudhry, I can try and guess the meaning from the following snippets of publicly available information:

1. While the then Chief Justice and several other Supreme Court judges refused, Mr. Chaudhry took the oath of office as the Chief Justice under an unconstitutional "provisional constitutional order" (PCO) issued by General Musharraf after he overthrew of Prime Minister Nawaz Sharif. Having been rewarded with the high position of the Chief Justice of Pakistan, he stood by Musharraf for a long time until issues were raised about Mr. Chaudhry's own conduct in office.
2. The chiefs of two intelligence agencies, Military and Civilian, submitted written affidavits indicating that Mr. Chaudhry maintained inappropriate contacts with the agencies and sought assistance in spying on other officials including judges. Not only that, he discussed with them important cases pending in the Supreme Court on which he was to rule.
3. Once he was restored, he continued to play politics with key questions such as the President's election and the National Reconciliation Ordnance (NRO) under which the PPP leadership including late Benazir Bhutto and Asif Zardari and others returned to Pakistan for the recent elections.
4. Recently, several jurists have criticized Thursday’s meeting between Iftikhar Muhammad Chaudhry, the sacked chief justice of Pakistan (CJP), and Asif Ali Zardari, the Pakistan People’s Party (PPP) co-chairman, saying that such contacts are harmful to the judiciary’s independence. Former SCBA president Muhammad Akram Sheikh said that a Supreme Court bench, headed by Chaudhry, had stayed the implementation of the National Reconciliation Ordinance (NRO), and therefore it did not suit him to meet Zardari. The NRO provides amnesty to public office-holders charged in corruption cases between 1986 and 1999. “The late CJP, Justice Sir Abdul Rashid, refused to meet Liaquat Ali Khan, the country’s first prime minister, after he knew about some cases of the federation pending with the Supreme Court,” Sheikh said.

Mr. Chaudhry continues to show a lack of judgment in dealing with the military, the politicians and intelligence agencies. Restoring Mr. Chaudhry to the Supreme Court would amount to condoning his bad behavior and setting a bad example for the current and future holders of this high office.

As far as other supreme court and high court judges are concerned, I support the restoration of at least some of them. However, as the new prime minister and parliament consider the question of restoring judges, some of the criteria used in this process should be their behavior before and since the time they were deposed. Did they base their decisions strictly in accordance with the constitution and the laws of the country? Have they played politics from the bench? Have they avoided even the appearance of inappropriate bias or conflicts of interest? The parliament should set up a committee to investigate and hold hearings on the question of restoration of the judges before taking any action. Pakistan can not afford to have any more political generals, nor can it afford any more political judges.

19 comments:

Sharf said...

I think your post is very thought provoking. To me this so called "fight for restoration of judiciary" is a media hype, inflated by people who claims themselves to be this world's first political civil society activists. It's important that we have a free judiciary and that can only happen if we remove the parliament watchdogs from it. Iftikhar is perhaps, another opportunist politician from Pakistan, aiming for a political seat for sure.
Why does no one ask him about these questions;
1) why did he took oath under PCO previously when samezumman siddiqui was ousted?
2) Why did he allowed Musharraf to stay in uniform and head the state affairs in a ruling?
3) Why he being a judje of such high stature, mingles with political people such as zardari and nawaz?
4) how was he elected as the youngest chief justice of this country?
5) Will he go against zardari or Nawaz if he is reinstated or will he downcede the cases for the sake of reinstatement?
These are the questions which needs to be answered. As the saying goes " history repeat itself only the players changes". This is exactly what happened when he took oath under PCO to remove the chief justice of that time and now same thing has happened to him.

khurram said...

Kindly note my reply below, and help enhance my understanding of the issue, if you have any concerns about it!


Regards,
Khurram Makhdumi






"Justice Iftikhar Chaudhry was not and is not an angel" said Mr. Muneer
A.
Malik, the President of the Pakistan Supreme Court Bar Association,
during
an interview with Philip Reeves of NPR radio broadcast in the United
States
last year. This interview took place in 2007 after President Musharraf
sacked Mr. Chaudhry and Malik launched a campaign to restore Mr.
Chaudhry.

While I strongly disagree with Mr. Musharraf's decision to fire Mr.
Chaudhry, I am curious to find out what Mr. Malik really thought about
Mr.
Chaudhry.


1: Indeed this is the view point which political parties, and lawyers movement leaders hold (Musharaf's Decision). One must not deny the fact that in any political, social or such like body, the notions of the leadership tend to be much more refined than the baseline activists. Information asymmetry and "end justifies the means" attitude of the baseline cadre ( the normal lawyers for example), are two of the reasons that instigate lawyers and lay men to believe, that it is REINSTATEMENT OF IFTIKHAR CHAUDHRY that is being fought and required. Infact, the issue is to act in accordance with the stipulated rules, prescribed in the constitution of Pakistan, to enact teh verdict of SC in favor of CJ Iftikhar M. Ch. and to reverse the impacts of another pseudo martial law obligated on the nation, on Nov. 3rd.

While, Musharaf had all the privileges of manhandling the constitution, he surpassed it YET again. The question is that if CH. has done all those wrong things, is kicking him out of his job his punishment? I wonder. It is Islamic republic of Pakistan or Musharaf/Army republic of Pakistan? which law is to rule ahead? If Iftikhar CHaudhry had shown malice, he should be dealt accordingly. Wat are our courts set up for? when courts have given the verdict, the very courts setup by Government of that time (one of the complainants), what make us disobey them yet again? When a common Pakistani goes to that court, ( which you think inefficient in the light of this article), he is to suffer the ill judgements. But when its his highness Mr. Musharaff, better change the judges? What kind of Justice is this to have separate courts for the elites and the general public?

This is a rule of might is right. PRSP-II identifies poverty of Access, access to justice mainly, as one of the biggest macro variable of poverty in Urban Punjab. We never deny putting cheif justice to law, but in a lawful manner. Every person has a right to defend himself. Even in Army, army courts are setup, where the culprits are given a chance to clarify adn defend themselves. Not to defend themselves in the courts of Mr. Musharaf, but in the courts of Pakistan. The case must go on in courts, not in the President office.

Look below for in points reply to the raised issues?

Since Mr. Reeves did not ask the follow-up question as to what
Mr.
Malik meant by his "no angel" remark about Mr. Chaudhry, I can try and
guess
the meaning from the following snippets of publicly available
information:

1. While the then Chief Justice and several other Supreme Court judges
refused, Mr. Chaudhry took the oath of office as the Chief Justice under
an
unconstitutional "provisional constitutional order" (PCO) issued by
General
Musharraf after he overthrew of Prime Minister Nawaz Sharif. Having been
rewarded with the high position of the Chief Justice of Pakistan, he
stood
by Musharraf for a long time until issues were raised about Mr.
Chaudhry's
own conduct in office.


So do you consider taking oath under the PCO as right or wrong? or you consider taking oath under 1999-00 PCO wrong and tkaing Oath under 2007 PCO right? is it the timings of the PCO that matter to you, or is it the generic built up of the PCO that place decisive role in portraying it as unwanted or illegal? What are you against actually in this remark? his taking oath on first PCO or not taking oath on the second one?



2. The chiefs of two intelligence agencies, Military and Civilian,
submitted
written affidavits indicating that Mr. Chaudhry maintained inappropriate
contacts with the agencies and sought assistance in spying on other
officials including judges. Not only that, he discussed with them
important
cases pending in the Supreme Court on which he was to rule.


Firstly, mark the word MILITARY. Also, refer to the precedence set up by the late CJ during liaqat Ali Khans tenure. While, CJ may not visit PM or president, ISI or CIA chiefs may prefer not to meet CJ on such personal level. Why was CJ the only one to be tried. CHIEFS of Intelligence Agencies are a separate department, they do not come under the jursidictino of CJ< unless tey have to cover some thing evil, in their own interests. Those fellows of the CJ who kept acting and spying on CJs instructions, although they never meant to, became the victim of CJ in missing persons case. were tehy trying to hide something? were they doing something illegal as well? Is it only Illegal acts that may sustain the security of this country? yes indeed! as long as we have illegal OWNERS of this country. So why not try those military and civilian chiefs as well, who acted upon CJs instigation. why are they left behind, and only the supposed LEADER of the tribe, the CJ, was being tried. Why govt. failed to prove all this in the SC, set against CJ. Are we yet again denying the verdict of the SC. Right or wrong, that is teh verdict of the SC. Right or Rong, Bhutto was Hung. the final verdict ruled. Why did not government came up with proof of such acts to support the abdication of CJ, why was the reason of his abdication just misuse of Govt. Vehicle! hmmm! petrol consumption, Sons's promotion and such like issues. Was discussing the issues of national interest hurting the vested interests of the then rulers as well. Were those rulers consipring along side CJ at that time? Why did the onus fell only on CJ then?


3. Once he was restored, he continued to play politics with key questions
such as the President's election and the National Reconciliation Ordnance
(NRO) under which the PPP leadership including late Benazir Bhutto and
Asif
Zardari and others returned to Pakistan for the recent elections.


most absurd reason that could ever be provided in this context. words, yet no facts. there is no clue to CJ playing politics as NRO was stayed, not rejected. It must have been rejected infact, to avoid another loop hole to Mr. Musharaff to stay in POWER ( which he no longer enjoys, only the position he tastes now, with a bitter scent). who may actualy justify NRO except MQM? they very order is yet again a blot on the face of judicial system of Pakistan. Telling you that they are not capable enough to deal with teh cases. Where is my tax being ruined then, if my judicial system does nto work properly and after every 10 years, in the name o the Nationa, you have to forego all the plundering o those 10 years, through a presidential order. yet again, why is their a wall between the elite and the general public, if politicians make laws, why are they making it for themselves. why not acquit all those prisoners who are lying in jails for years now, waiting to be heard, and many of them do not even know what is that they are their for? we deny the elite politics and law making in this country, and demand equality to be bestowed on the civilians.



4. Recently, several jurists have criticized Thursday's meeting between
Iftikhar Muhammad Chaudhry, the sacked chief justice of Pakistan (CJP),
and
Asif Ali Zardari, the Pakistan People's Party (PPP) co-chairman, saying
that
such contacts are harmful to the judiciary's independence. Former SCBA
president Muhammad Akram Sheikh said that a Supreme Court bench, headed
by
Chaudhry, had stayed the implementation of the National Reconciliation
Ordinance (NRO), and therefore it did not suit him to meet Zardari. The
NRO
provides amnesty to public office-holders charged in corruption cases
between 1986 and 1999. "The late CJP, Justice Sir Abdul Rashid, refused
to
meet Liaquat Ali Khan, the country's first prime minister, after he knew
about some cases of the federation pending with the Supreme Court,"
Sheikh
said.


those people, who still consider him CJ, mite point out the incident quoted above. but in what capacity a person who believes he is no more a CJ, pointing it out. Well, once he is out of his office, legally or illegaly, that is another debate, for you he is not a CJ. then what does this point mater to you? well wait a minute, ... d u still think ..or have a doubt that he is a CJ? hmmm!

as to my view point, for I think he still stands as CJ of Pakistan in the light of SC verdict in his favor, last year. it was not CJ who went to see Zardari, it was Zardari who came to see CJ. At one place you tell him you are not CJ, so he sits back home .. now you place restrictins on him as he is to act as CJ...lolz. So infact, he has to pretend wat you dont tend him to be, for his whole life. As a CJ he should not have met Zardari (bcz of NRO) altho if we talk about NRO, he mite not meet many in this line. Zardari is not the only one to gain from NRO infact. But plz be clear in your stance if he has to pretend like a CJ even while he is not, or he knows not whether he would be in near future.


Mr. Chaudhry continues to show a lack of judgment in dealing with the
military, the politicians and intelligence agencies. Restoring Mr.
Chaudhry
to the Supreme Court would amount to condoning his bad behavior and
setting
a bad example for the current and future holders of this high office.


Lack of judgment in dealing with MILITARY: probable probation on Mr. Musharaf to contest for the second time for Presidentship, in Uniform.
Lack of Judgment in dealing with Politicians: Probable rejection of NRO
Lack of Judgment in dealing with Intelligence agencies: Missing persons cases.

Whose the best person in this case to head supreme court, with an acute sense of judgment....perhaps Mr. Musharaff himself.
Judgment in supreme court, in such cases relating government institutions is not done by CJ alone. One may doubt the Judgment of the Bench in this regard, and you end up saying that "this is not a nice restaurant, I dun like teh taste of food, lets go to some other". This unfortunately is SC, not Mcdonalds. Highest legal authority in Pakistan. If he has bad judgments, there is a way to get him over it, a legal way. If you wont reisntate, you would be setting another bad example for the rulers of Pakistan. Future holders of the prime most position in the country. Choice is yours, you want a bad precedence for SC or for leaders of your nation. after reinstatement, Govt. may put CJ on trial, if deem necessary. Who ll put your leadership on trial, if this precedence is to be followed?


As far as other supreme court and high court judges are concerned, I
support
the restoration of at least some of them. However, as the new prime
minister
and parliament consider the question of restoring judges, some of the
criteria used in this process should be their behavior before and since
the
time they were deposed. Did they base their deecisions strictly in
accordance with the constitution and the laws of the country? Have they
played politics from the bench? Have they avoided even the appearance of
inappropriate bias or conflicts of interest? The parliament should set up
a
committee to investigate and hold hearings on the question of restoration
of
the judges before taking any action. Pakistan can not afford to have any
more political generals, nor can it afford any more political judges.

Your judgments in this regard are rather myopic. As mentioned earlier, it is not a struggle to purify your judiciary. It is indeed a stupid remark to trust the rulers to install a judicial system, and believing they would act honeslty. Height of innocence or ...wat I dare say folly. Selection of judges is done through a proper channel. that channel be preserved. and extinctino of judges is done through proper channel as well. that channel be preserved for the sake of continutity in the law. TH dilemma of this nation is a will for change adn revolution, crushing the prevailing laws. and they do not realize, in doing so, they are threatening the future laws to be broken by some other rebels. A rpecedence is set, which shall be quoted and followed and laws be broken for the sake of revolution. I could never think of some educated person to believe in such KHATIMI style actions.

Who will decide on the factors discussed above for reinstatement of Judges? Judges? (another party to the issue) or parliament? or may be, Mr. meray azeez humwatnoo! Who will trust such actions? YOU? I bet not!

In the end, I would emphasize, that systems have self purifying filters installed in them. Only need is to let system function. Revolution in this age is the name of anarchy. Will of the people, Elections, the only way to evolute into what you foresee. Look at teh outcomes of revolutions...fall of one government and reign of the ones that public wanted; look at teh outcomes of these elections. There is a better way of bringing about a revolution in culturally advanced societies, elections and rule of law. Stik by it.

Kind regards
Khurram Makhdumi.

Riaz Haq said...

Khurram Sahib,
I appreciate your comment with very detailed and articulate rebuttal.
I do agree that the Mr. Chaudhry should not have been removed and imprisoned by Gen Musharraf. It was absolutely unacceptable behavior which at least partly explains the loss of pro-Musharraf forces in the last elections. However, Mr. Chaudhry is not the de facto chief justice now, hence the talk of his restoration. My concern is that the restoration process should trigger a review of the whole process of nominating/appointing judges. There should be thorough vetting and public hearings and parliamentary committee votes along the lines of the process in the US. Empowering an independent judiciary requires that we set a very high bar for people to serve as judges. This is the only way to prevent the repeat of the inglorious history of our judges serving on the highest courts of the land.

Riaz Haq said...

Here's a report about India's judges declaring their assets as part of the transparency campaign:

New Delhi, Nov 2 (IANS) Bowing to the popular demand and after a Delhi High Court ruling, which they have contested, the Supreme Court judges, led by Chief Justice of India K.G. Balakrishnan, Monday declared their assets. The CJI put the value of his assets at around Rs.18 lakh.

The judges’ assets were posted on the apex court’s official website www.supremecourtofindia.nic.in Monday evening.

Though the declaration followed a Delhi High Court ruling in September, the apex court website said the judges were voluntarily making public the assets they held.

About Justice Agrawal’s decision to declare his assets, the apex court said the details of his assets have been “uploaded on the website on his special request”.

The assets declared by Chief Justice K.G. Balakrishnan were around Rs.18 lakhs, including his two-bedroom flat in Ernakulam worth Rs.5.75 lakh, his vacant residential plot in Faridabad measuring 444.44 sq yard valued at 4.50 lakh, and his native house in Thrikkakara South village in Kerala.

The CJI also declared other landed properties in Kerala, worth Rs.3.5 lakh and Rs.4.33 lakh. He said his wife has gold jewellery weighing 20 sovereigns and an old Santro car of 2000. He said he has no investment in shares or fixed deposits.

The apex court’s second senior most judge, Justice S.H. Kapadia, appeared to be richer than the CJI.

Justice Kapadia put the value of his declared assets at over Rs.48 lakh. The declared assets include flats, buildings, shares, mutual funds, fixed deposits, provident funds. He said he owned no vehicle.

The third senior most judge, Justice Tarun Chatterjee, declared cash worth around Rs.3 lakh, but he said that he has other properties like vehicles, gold jewellery of his wife and some ancestral property in Kolkata. Justice Chatterjee’s vehicles include a Chevrolet Tavera and a Honda Seil.

The court’s fourth senor most judge, Justice Altamas Kabir declared assets of around Rs.80 lakh, including ancestral property, besides LIC policies and saving accounts.

The fifth senior most judge, Justice R.V. Raveendran, gave a detailed account of his assets running into five pages with the exact number of his shares, debentures etc.

According to the declaration, he owns shares in about 60 companies, including Reliance Group firms belonging to both Mukesh and Anil Ambani. He is also hearing a case on gas supply disputes between the firms of the two Ambani brothers and the government.

Riaz Haq said...

The Supreme Court of Pakistan has unanimously declared NRO null and void ab initio, according to Dawn News:

ISLAMABAD: The Supreme Court has declared the controversial National Reconciliation Ordinance (NRO) null and void in a short order.

In a landmark decision, the apex court unanimously decided that the ordinance was unconstitutional.

All old cases that had been dismissed under the NRO stand revived and can now be reopened as per the court orders.

The court said that all orders that were passed and all acquittals under the NRO were illegal and never existed.

The apex court in its order also said that all convictions that were held prior to the enactment of the NRO stand revived as well.

Now the Zar dari camp is expected to argue that, under the constitution of Pakistan, President Zardari is immune from prosecution as long as he is in office.


While the final outcome of the cases and the fate of corrupt politicians and bureaucrats remains uncertain, I welcome the fact that the Supreme Court of Pakistan's verdict has refused to legitimize corruption in Pakistan. It is a giant step toward strengthening rule of law and restore confidence in the judiciary.

Riaz Haq said...

Here is a recent Op Ed in Wall Street Journal critical of Justice Chaudhry:

When U.S. President Barack Obama sharply challenged a recent Supreme Court decision in his State of the Union address, prompting a soto voce rejoinder from Justice Samuel Alito, nobody was concerned that the contretemps would spark a blood feud between the judiciary and the executive. The notion that judges could or would work to undermine a sitting U.S. president is fundamentally alien to America’s constitutional system and political culture. Unfortunately, this is not the case in Pakistan.

Supreme Court Chief Justice Iftikhar Mohammed Chaudhry, the country’s erstwhile hero, is the leading culprit in an unfolding constitutional drama. It was Mr. Chaudhry’s dismissal by then-President Pervez Musharraf in 2007 that triggered street protests by lawyers and judges under the twin banners of democracy and judicial independence. This effort eventually led to Mr. Musharraf’s resignation in 2008. Yet it is now Mr. Chaudhry himself who is violating those principles, having evidently embarked on a campaign to undermine and perhaps even oust President Asif Ali Zardari.

Any involvement in politics by a sitting judge, not to mention a chief justice, is utterly inconsistent with an independent judiciary’s proper role. What is even worse, Chief Justice Chaudhry has been using the court to advance his anti-Zardari campaign. Two recent court actions are emblematic of this effort.

The first is a decision by the Supreme Court, announced and effective last December, to overturn the “National Reconciliation Ordinance.” The NRO, which was decreed in October 2007, granted amnesty to more than 8,000 members from all political parties who had been accused of corruption in the media and some of whom had pending indictments.

While some of these people are probably corrupt, many are not and, in any case, politically inspired prosecutions have long been a bane of Pakistan’s democracy. The decree is similar to actions taken by many other fledgling democracies, such as post-apartheid South Africa, to promote national reconciliation. It was negotiated with the assistance of the United States and was a key element in Pakistan’s transition from a military dictatorship to democracy.

Chief Justice Chaudhry’s decision to overturn the NRO, opening the door to prosecute President Zardari and all members of his cabinet, was bad enough. But the way he did it was even worse. Much to the dismay of many of the brave lawyers who took to the streets to defend the court’s integrity last year, Mr. Chaudhry’s anti-NRO opinion also blessed a highly troubling article of Pakistan’s Constitution—Article 62. This Article, written in 1985, declared that members of parliament are disqualified from serving if they are not of “good character,” if they violate “Islamic injunctions,” do not practice “teachings and practices, obligatory duties prescribed by Islam,” and if they are not “sagacious, righteous and non-profligate.” For non-Muslims, the Article requires that they have “a good moral reputation.”

Riaz Haq said...

WSJ Op Ed Contd...

Putting aside the fact that Article 62 was promulgated by Pakistan’s then ruling military dictator, General Zia ul-Haq, relying on religion-based standards as “Islamic injunctions” or inherently subjective criteria as “good moral reputation” thrusts the Pakistani Supreme Court into an essentially religious domain, not unlike Iranian Sharia-based courts. This behavior is profoundly ill-suited for any secular court. While Article 62 was not formally repealed, it was discredited and in effect, a dead letter. The fact that the petitioner in the NRO case sought only to challenge the decree based on the nondiscrimination clause of the Pakistani Constitution and did not mention Article 62 makes the court’s invocation of it even more repugnant. Meanwhile, the decision’s lengthy recitations of religious literature and poetry, rather than reliance on legal precedent, further pulls the judiciary from its proper constitutional moorings.

The second anti-Zardari effort occurred just a few days ago, when the court blocked a slate of the president’s judicial appointments. The court’s three-Justice panel justified the move by alleging the president failed to “consult” with Mr. Chaudhry. This constitutional excuse has never been used before.

It is well-known in Islamabad that Mr. Zardari’s real sin was political, as he dared to appoint people unacceptable to the chief justice. Since consultation is not approval, Mr. Chaudhry’s position appears to be legally untenable. Yet Mr. Zardari, faced with demonstrations and media attacks, let Mr. Chaudhry choose a Supreme Court justice.

There is no doubt that the chief justice is more popular these days than the president, who has been weakened by the split in the political coalition which brought down Mr. Musharraf. Former Prime Minister Nawaz Sharif is now a leading opponent of the regime. There is a strong sense among the Pakistani elites that Justice Chaudhry has become Mr. Sharif’s key ally.

The fact that Mr. Chaudhry was a victim of an improper effort by former President Musharraf to replace him with a more pliant judge makes his current posture all the more deplorable. His conduct has led some of his erstwhile allies to criticize him and speak of the danger to democracy posted by judicial meddling in politics. The stakes are stark indeed. If Mr. Chaudhry succeeds in ousting Mr. Zardari, Pakistan’s fledgling democracy would be undermined and the judiciary’s own legitimacy would be irrevocably damaged. Rule by unaccountable judges is no better than rule by the generals.

Riaz Haq said...

Here is a NY Times Op Ed by Nobel Laureate Paul Krugman on questions about rule of law in US foreclosures crisis:

The accounting scandals at Enron and WorldCom dispelled the myth of effective corporate governance. These days, the idea that our banks were well capitalized and supervised sounds like a sick joke. And now the mortgage mess is making nonsense of claims that we have effective contract enforcement — in fact, the question is whether our economy is governed by any kind of rule of law.

The story so far: An epic housing bust and sustained high unemployment have led to an epidemic of default, with millions of homeowners falling behind on mortgage payments. So servicers — the companies that collect payments on behalf of mortgage owners — have been foreclosing on many mortgages, seizing many homes.

But do they actually have the right to seize these homes? Horror stories have been proliferating, like the case of the Florida man whose home was taken even though he had no mortgage. More significantly, certain players have been ignoring the law. Courts have been approving foreclosures without requiring that mortgage servicers produce appropriate documentation; instead, they have relied on affidavits asserting that the papers are in order. And these affidavits were often produced by “robo-signers,” or low-level employees who had no idea whether their assertions were true.

Now an awful truth is becoming apparent: In many cases, the documentation doesn’t exist. In the frenzy of the bubble, much home lending was undertaken by fly-by-night companies trying to generate as much volume as possible. These loans were sold off to mortgage “trusts,” which, in turn, sliced and diced them into mortgage-backed securities. The trusts were legally required to obtain and hold the mortgage notes that specified the borrowers’ obligations. But it’s now apparent that such niceties were frequently neglected. And this means that many of the foreclosures now taking place are, in fact, illegal.

This is very, very bad. For one thing, it’s a near certainty that significant numbers of borrowers are being defrauded — charged fees they don’t actually owe, declared in default when, by the terms of their loan agreements, they aren’t.

Beyond that, if trusts can’t produce proof that they actually own the mortgages against which they have been selling claims, the sponsors of these trusts will face lawsuits from investors who bought these claims — claims that are now, in many cases, worth only a small fraction of their face value.

And who are these sponsors? Major financial institutions — the same institutions supposedly rescued by government programs last year. So the mortgage mess threatens to produce another financial crisis.

Riaz Haq said...

Indian Chief Justice Kapadia warns jusges not to exceed powers granted by the Indian constitution, reports NewsOne:

New Delhi, April 16 (IANS) The judiciary should not try to act as a super legislature, Chief Justice of India S.H. Kapadia said Saturday. He also asked the political leadership to resist from giving protection to corrupt judges.

Cautioning against internal interference from high-ranking judges which, if resisted, could lead to lower-ranking judges being transferred or being denied promotions, he said ‘similarly political protection should not be given to corrupt judges’.

The chief justice said judges should resist the temptation of post-retirement assignments. ‘A judge must not accept patronage through which he acquires office, preferential treatment or pre-retirement assignments. These can give rise to corruption.’

He advised judges to impose upon themselves certain ‘restrictions’ and remain ‘a little aloof and isolated’ from people in order to erase the suspicion that they were susceptible to undue influence in the discharge of duties.

He told judges to eschew contact with lawyers, individuals or political parties, their leaders or ministers unless it was on purely social occasions. A judge’s obligation must start and end with his analysis of law, not just personal beliefs or preferences.

He asked the courts to desist from the tendency of substituting decisions of legislative bodies with their own socio-economic beliefs.

‘We must refuse to sit as super legislatures to weigh the wisdom of the legislation,’ Chief Justice Kapadia said, delivering the fifth M.C. Setalvad Memorial Lecture on the ‘Canons of Judicial Ethics’ here.

‘In many PILs (public interest litigations), the courts freely decree rule of conduct for the government and public authorities which are akin to legislation. Such exercises have little judicial function in them,’ the chief justice said.

Disagreeing with the rationale that the judiciary was encroaching upon the legislative domain because the executive (government) had failed to discharge its responsibilities, Justice Kapadia said that ‘the courts should be circumspect in understanding the thin line between law and governance’.

The chief justice said a balance had to be struck between judicial independence and the accountability of judges. He said the challenge before the judiciary was how to respond to unreasonable criticism of courts.

The chief justice said that there was a need for striking a right balance between the judicial accountability and principle of judicial independence.

He said the challenge was ‘how does one achieve the right balance between autonomy in decision making and independence from external forces on the one hand and accountability to the community on the other hand?’

The habit of thinking impersonally, without regard for the worldly advantages or disadvantages of an opinion or an action was ethical thinking, he said.

‘This is the prerequisite of judicial thinking. The man who is only interested in himself is not admissible (to ethical thinking),’ said the chief justice.

The chief justice in his lecture dealt with a wide range of subjects relating to Canons of Judicial Ethics that included subject like Judicial ethics: From just words to deeds, Structuring of judgments, Accountability and judicial independence in the context of judicial activism and Value-based judicial accountability and independence.

The lecture was organised by the Bar Association of India in the memory of Setalvad, who was the first attorney general of India.

Delhi High Court Chief Justice Dipak Misra earlier said that the canons of judicial ethics should include both the judges and the advocates. He said that there should be strict adherence to integrity both in public and private life.

Riaz Haq said...

Have the Chamars no right, asks Indian Supreme Court, according to India's Financial Express:

New Delhi: The Supreme Court has severely criticised “some lawyers, journalists and men in public life” for accusing it of judicial over-reach for entertaining public interest litigation filed by “genuine social groups, NGOs and social workers” espousing the cause of the poor and downtrodden.

In a startling observation, the bench said that “so far the courts have been used only for the purpose of vindicating the rights of the wealthy and the affluent.”

“It is only these privileged classes which have been able to approach the courts for protecting their vested interests. It is only the moneyed who have so far had the golden key to unlock the doors of justice,” the court said in a July 12 judgment.

The court said it is praised when it gives judgments in favour of the rich but condemned with a “theoretical debate raising the bogey of judicial activism” when it gives relief to the poor on a PIL.

A Bench of Justices G S Singhvi and A K Ganguly, in a 45-page judgment, said the highest court will be failing in its constitutional duty if it does not accept genuine PILs and “those who are decrying public interest litigation do not seem to realise that courts are not meant only for the rich and the well-to-do, for the landlord and the gentry, for the business magnate and the industrial tycoon but they exist also for the poor and the down-trodden, the have-nots and the handicapped and the half-hungry millions of our countrymen”.

The judgment, written by Justice Singhvi, came on a PIL filed by an NGO, National Campaign for Dignity and Rights of Sewerage and Allied Workers, highlighting the frequent deaths of sewage workers trapped in manholes.

The apex court gave the government a two-month deadline to ensure that these workers are given protective gear and better working conditions.

The court said the judgment is meant to “erase the impression and misgivings of some people” that by entertaining PILs of social action groups/activists/workers and NGOs fighting for those who silently suffer due to actions and/or omissions of the state apparatus and/or agencies/instrumentalities of the state or even private individuals, the superior courts exceed the unwritten boundaries of their jurisdictions.

“There is a misconception in the minds of some lawyers, journalists and men in public life that public interest litigation is unnecessarily cluttering up the files of the court and adding to the already staggering arrears of cases which are pending for long years and it should not therefore be encouraged by the court. This is, to our mind, a totally perverse view smacking of elitist and status quoist approach,” the court said.

“If the sugar barons and the alcohol kings have the fundamental right to carry on their business and to fatten their purses by exploiting the consuming public, have the Chamars belonging to the lowest strata of society no fundamental right to earn an honest living through their sweat and toil?” the court said.

“The former can approach the courts with a formidable army of distinguished lawyers paid in four or five figures per day and if their right to exploit is upheld against the government under the label of fundamental right, the courts are praised for their boldness and courage and their independence and fearlessness are applauded and acclaimed. But if the fundamental right of the poor and helpless victims of injustice is sought to be enforced by public interest litigation, the so-called champions of human rights frown upon it as waste of time of the highest court in the land, which, according to them, should not engage itself in such small and trifling matters,” it said....


http://www.financialexpress.com/news/have-the-chamars-no-right-asks-sc/817780/0

Riaz Haq said...

Here's a WSJ report on judicial activism in Pakistan under CJ Chaudhry:

..A new report by the International Commission of Jurists, a Geneva-based nongovernment organization of judges and lawyers, suggests his legacy might be more complicated.

The report, released this month and based on a field trip to Pakistan last fall, paints a picture of a judiciary under Mr. Chaudhry that is exercising unusually wide-ranging powers.
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Pakistan’s judiciary has, during Mr. Chaudhry’s tenure as chief justice, stepped into areas normally reserved for a nation’s government, raising concerns over the balance of power, the report said.

It noted that judges in Pakistan are increasingly initiating court proceedings on issues – as opposed to hearing cases brought by plaintiffs.

The courts often launch these so-called “suo moto” cases in instances where the government has failed to take action. The report said in some cases this helps to protect the rule of law.

It cited an example last year when paramilitary forces were caught on video shooting dead a teenager who was pleading for his life. The Supreme Court ordered senior paramilitary officers removed from their posts within three days and told a state prosecutor to launch an investigation.

But in other cases Mr. Chaudhry appears to arbitrarily initiate “suo moto” proceedings based on articles in Pakistani newspapers, the report said. “This introduces a certain element of chance to the practice which is hardly compatible with the rule of law.”

A notable example of this, not contained in the ICJ report, involves Atiqa Odho, a Pakistani television actor who was allegedly detained last year at Karachi airport with liquor in her luggage but later released without charges. (Alcohol is illegal in Pakistan.)

Mr. Chaudhry, on reading media reports, ordered authorities to register a case against Ms. Odho, which they did. A court is yet to rule in the case. Attempts to reach Mr. Chaudhry were not successful.

In another well-known example, the Supreme Court tried to rule on the price of sugar – a matter usually left to government or market forces.

Mr. Chaudhry has fought in recent years to weaken the role of Parliament in appointing judges, the report noted. Under Pakistan’s constitution, a judicial commission, including the chief justice, nominates judges. But a parliamentary committee has the right to reject or confirm the nominations.

Last year, the Supreme Court overturned the committee’s decision to reject the appointment of a number of high court judges whom the judicial commission had recommended.

The report found the “authority of the Parliamentary Committee was reduced drastically,” by that judgment.

The authors nodded to concerns about the failure of governance in Pakistan. But it also pointed out the pitfalls of a judiciary trying to fill the role of an administration.

“Parliament and Government are weak, which leads to the Supreme Court filling the gap by intervening in matters germane to the administration,” the report said. “This occurs to the extent that the Supreme Court even…intervenes to strengthen its own and particularly the power of the Chief Justice as far as the appointment of judges is concerned. A concern in respect of the balance of powers thereby arises.”

The report did not get into an ongoing struggle between the judiciary and the government of President Asif Ali Zardari.....


http://blogs.wsj.com/indiarealtime/2012/04/20/report-dings-pakistans-lawyers-and-chief-justice/

Riaz Haq said...

Here's a Reuters' story on allegations against Justice Chaudhry:

A Pakistani real estate tycoon on Tuesday accused the chief justice of turning a blind eye to his son's alleged corrupt financial practices, in a scandal that could damage one of the few public figures willing to take on the powerful military.

Malik Riaz, who fashions himself as a billionaire philanthropist, said he had given almost $3.6 million in bribes to Arsalan Iftikhar, son of Chief Justice Iftikhar Chaudhry.

Riaz, who has been accused of fraud, suggested that Chaudhry knew about the matter in advance of the Supreme Court's hearings on the issue this week. Riaz has denied all allegations.

"I have three questions for the chief justice of Pakistan. He should tell the nation today that in the dark of the night how many times did he (Chaudhry) meet me," said Riaz.

"He should tell us how long he has known about this case and why he did not take suo motu action."

Iftikhar has denied any wrongdoing. Chaudhry said he would not get involved in the case, which is dominating headlines in nuclear-armed Pakistan.

The Supreme Court registrar said in a statement to the media that the chief justice had met Riaz, but at a time when Chaudhry was suspended by then President Pervez Musharraf.

Chaudhry became a household name in Pakistan and gained international recognition in 2007 when he stood up to Musharraf over his legally questionable bid to hold on to power.

Since then Chaudhry has emerged as a centre of power in Pakistan, taking on the unpopular government over allegations of corruption, and more significantly the military, which has ruled the country for more than half of its 64-year history.

Chaudhry took up cases involving kidnappings and torture of suspected Islamist militants allegedly carried out by the military and intelligence agencies. They deny the charges.

Under his leadership the Supreme Court convicted Prime Minister Yusuf Raza Gilani of contempt for failing to re-open corruption cases against President Asif Ali Zardari.


http://www.reuters.com/article/2012/06/12/us-pakistan-supremecourt-memo-idUSBRE85B1EU20120612

Riaz Haq said...

Here's an ET story on PPP Senator Faisal Raza Abidi's allegations against Justice Chaudhry:

The senator said that if the chief justice does not tender a resignation, then he will “force him out from the same way he had been restored as a judge.”

“He [Justice Chaudhry] says that he did not have any idea where his son got all that money from…I ask, when the case emerged, did you ask him where he got Rs900 million from?”

The senator produced bank account statements of Dr Arsalan and said that the person who used to “work under somebody else” now owns billions of rupees. He also showed that the billing address mentioned was that of the Chief Justice House in Islamabad.

“You [Justice Chaudhry] are to be blamed for this. This happened right in front of you. You cannot pretend to not know anything. Who gave Dr Arsalan the right to use government’s property for running his own businesses? Could he not rent out an office in some other area?”

He said that he would now “personally” investigate about Dr Arsalan’s assets and will also fly to Dubai and London to inquire about his international bank accounts. “I will probe into the accounts he has activated under the name of mamu.”

Abidi said that the Parliament is supreme and is above other institutions.

“Parliament forms laws and constitutions. Who gave you the right to criticise and meddle in its affairs?”

“I accept your challenge in the war you have waged against the parliament. But mine is not a war of arms, but is a war of words, because Pakistan cannot afford agitation at this moment as it is already going through tough times.”


http://tribune.com.pk/story/417885/faisal-raza-abidi-demands-chief-justices-resignation/

Riaz Haq said...

The contents of the proceedings in Qadri case have been widely reported and corroborated by multiple sources about the entire line of questioning which had nothing to do with the merits of the claims made in Dr. Qadri's petition. Instead, the Court chose to impugn the motives and loyalty of Dr. Qadri simply based on the fact that he is a dual national.

This court, particularly its chief justice, is an activist court that exercises absolutely zero judicial restraints. It disregards the letter and the spirit of the constitution and the laws of Pakistan to pursue its own agenda. It attempts to squelch all criticism by threatening frivolous contempt charges regularly.

It usurps the power of other institutions of government, particularly the legislature and the executive....something that has drawn strong criticism of Geneva-based International Commission of Jurists for overstepping its authority.

Justice Katju, former Indian Supreme Court Judge, has criticized Pakistan Supreme Court for "showing utter lack of restraint".

Justice Chaudhry has personally been criticized for his judgements in multiple cases by Chaudhary Aitazaz Ahsan who led the movement to restore him.

Chaudhry and his fellow judges deserve to be closely scrutinized and criticized when they make mistakes. In a democracy, everyone should be held accountable for their actions. No one should get a free pass.

http://www.riazhaq.com/2013/02/chaudhry-court-puts-pak-diaspora-on.html

Riaz Haq said...

Justice Chaudhry and his crony judges are making a mockery of Pakistan's constitution by pursuing personal vendettas against Musharraf for firing them. The CJ-friendly blood-thirsty lawyers know that they have no standing to petition the court to charge Musharraf with treason under article 6. Only the state prosecutors have the power to charge and prosecute any one for treason under article 6 of Pakistan's constitution; the judges can not usurp that authority; nor can they order the state to start such proceedings in violation of the constitution.

Anonymous said...

so all this judicial activism is mentioned but by is NRO brushed aside? this was not exactly a transparent nor a just ordinance by musharraf. I hope he get justice served!

Riaz Haq said...

Anon: "NRO brushed aside? this was not exactly a transparent nor a just ordinance by musharraf. I hope he get justice served!"

I did not agree with the NRO either but Musharraf was well within his constitutional right to issue that ordinance as president. If the parliament did not agree with it, it could have voted it down.

Riaz Haq said...

For all his revolutionary rhetoric, Justice Chaudhry singularly failed to reform the country’s crisis-ridden lower courts, where more than a million cases are pending in a shambolic system ridden with delays, corruption and systemic weaknesses.

At a time when the state’s authority is under vigorous assault from Islamist militants offering an alternative form of justice, that is no small problem.

This year, Taliban-run Sharia courts, once confined to the tribal belt, have started operating in parts of Karachi, a vast megalopolis and the country’s most populous city. Such courts can be blunt and brutal, but they resonate with a popular longing for timely justice that plays no favorites.

http://www.nytimes.com/2013/12/14/world/asia/pakistans-chief-justice-leaves-a-mixed-legacy.html?partner=rss&emc=rss&smid=tw-nytimes&_r=0

Riaz Haq said...

Here's a Jurist Op Ed by Ali Dayan Hasan of Human Rights Watch:

So, why is it such a relief to see Chaudhry go?

Pakistan's tenaciously independent chief justice also turned out to be political, arbitrary and irresponsible. Upon returning to office, he presided over the firing of judges without giving them the same due process he had demanded of Musharraf. He refused to accept parliamentary oversight of judicial appointments, threatening to overturn a unanimously passed constitutional amendment to that effect unless it was revised. Parliament complied to avoid a confrontation.

Chaudhry also made unprecedented use of suo motu proceedings—the court acting on its own motions—to engage in unwarranted intrusion into the legitimate domain of the legislature and the executive. Suo motu proceedings in defense of fundamental rights are good, but in case after case Chaudhry acted as if the Supreme Court was not a co-equal branch of government but a de facto legislature and executive branch.

Further, Chaudhry used his discretionary powers to oversee, hire and fire government officials, intervening in governance areas ranging from economic policy to traffic management. He seemed to relish triggering constitutional confrontations with parliament and government, undermining the elected parliament and disrupting governance just when Pakistan was undergoing a difficult transition to civilian rule.

In just one example, in December 2011, Chaudhry embroiled the Supreme Court in the "Memogate" scandal by agreeing to investigate Pakistan's former ambassador to the US on charges that he attempted to conspire with the US against Pakistan's military. Such an investigation was the responsibility of the government, not the Supreme Court. However, showing his biases, Chaudhry did not investigate allegations from the same source that the head of Pakistan's security services, the Inter-Services Intelligence, had conspired to oust the elected government.

In June 2012, a Supreme Court bench headed by Chaudhry took the unprecedented step of firing Prime Minister Yusuf Raza Gilani for "scandalizing the judiciary." Gilani had refused to sign a letter to the Swiss government asking for an investigation into corruption allegations against then-president Asif Zardari, even though the Swiss government said that it would not act on such a letter. Chaudhry's order appeared to be an attempt to settle a personal score—many independent observers called the move a "judicial coup." After all the controversy about the way Musharraf had sidelined the judiciary, the government decided to avoid a constitutional crisis and nominated a new prime minister.

When a corruption scandal involving Chaudhry's son emerged around the same time, Chaudhry first used his suo motu powers to seize judicial control of the investigation and then effectively prevented the investigation from proceeding.

Chaudhry treated attempts at oversight or accountability of the judiciary, however reasonable or justified, as a personal attack. He muzzled media criticism by the use or threatened use of overbroad "contempt laws."

While Chaudhry lashed out at his critics, access to justice in Pakistan remained abysmal and the courts remained rife with corruption and incompetence. Case backlogs stayed huge at all levels of the court system.

Chaudhry's supporters make much of his credentials as a champion of human rights causes. He deserves credit for standing up to a military dictator. He took a strong stand on government abuses in Balochistan and demanded the return of terrorism suspects forcibly disappeared by the military. However, after his much-publicized hearings into arbitrary arrests or disappearances, no military or intelligence officer was held accountable, even though he "loudly opined" in court that the military had been responsible..


http://jurist.org/hotline/2014/01/ali-hasan-iftikhar-chaudhry.php