Wednesday, February 13, 2013

Chaudhry Court Puts Pak Diaspora on Trial in Qadri Case

Pakistan Supreme Court has dismissed Dr. Tahir-ul-Qadri's petition to annul the current election commission. The petition was based on a claim that specific procedures laid out in Pakistan's constitution to pick the commission members were violated.

The Court, led by Chief Justice Inftikhar Chaudhry, was under no obligation to admit the petition for hearing but it decided to hear it anyway and spent three days on it. And instead of focusing on the merits of the claims in Dr. Qadri's petition, the judges proceeded to attack him personally. They said the petition was brought in bad faith, called him a "foreigner" and questioned his loyalty to Pakistan as a dual Pakistani-Canadian citizen.


The Court ignored Dr. Qadri's plea that he has filed the petition as a Pakistani citizen who has a right to vote in Pakistan and concerned about transparency of the electoral process.  The Court also refused to heed Dr. Qadri's argument that Pakistan's constitution and laws permit him to hold dual nationality. Instead, the judges demanded that Dr. Qadri produce the text of his oath of his Canadian citizenship. The Court then proceeded to read it out and claimed that Dr. Qadri's loyalty, and by extension the loyalty of millions of Pakistanis living abroad as dual nationals, is questionable. This line of questioning was clearly not based on Pakistan's Constitution and Laws which permit Pakistanis to hold dual citizenship with the UK and its several of its former colonies.The court clearly exceeded its authority by attempting to make new law for Pakistanis with dual nationality rather than interpret the laws already on the books.

Here's an interesting take on Dr. Qadri vs Justice Chaudhry:



As to the Court's argument about the petitioner's standing in the case, Dr. Qadri responded follows: "I am a Pakistani but the respected judges during the proceedings called me a foreigner and not only insulted me but the millions of Pakistanis living in foreign countries".  Dr. Qadri cited the precedent of the Court in accepting a petition by Showkat Suhail, a Pakistani-Canadian, in the Memogate case against former Pakistani Ambassador Husain Haqqani.

Dr. Qadri pointed out that Justice Chaudhry is sitting on the Supreme Court bench based on an oath he took under Gen Musharraf's PCO which was a violation of Pakistan's constitution. Eminent Pakistani lawyer Aitazaz Ahsan agreed that the sitting judges' oath  under PCO was a much bigger issue than Dr. Qadri's loyalty oath to the Queen of England. 

The overt hostility of Pakistani judges and some in the media toward Pakistani diaspora is especially troubling given the fact that Pakistani economy is being kept afloat by more than a billion dollars a month in remittances. These remittances add up to about 5% of Pakistan's GDP and represent the largest foreign currency inflow into the country. This is another case of some Pakistanis biting the hands that feed them.

While I agree with the Court's decision to dismiss Dr. Qadri's petition at this stage, I do think that the Court has left a very bad taste in the mouths of overseas Pakistanis who have become dual nationals. They currently contribute over $12 billion a year to Pakistan's economy but they have no voice in how the country should be run.

Let me remind all those interested in improving the political process and governance in Pakistan that Dr. Qadri has already made an enormous contribution by articulating and pressing for specific steps under Articles 62 and 63 of the Constitution to rid Pakistani parliament of corrupt politicians. One obvious result is the recent decision by the Election Commission of Pakistan to work with the Federal Board of Revenue (FBR) and the State Bank of Pakistan to identify and disqualify tax evaders and loan defaulters from seeking election to parliament.

This latest episode is a reminder that millions of overseas Pakistanis, with or without dual nationality, need to protect their rights of citizenship in Pakistan. They should demand greater voice in Pakistan's affairs through  reserved seats for their own elected representatives in Pakistan's parliament.  

Here's a video discussion on the subject:

Chaudhry Court Rejects Qadri's Plea, Questions Pak Dual Nationals' Loyalty from WBT TV on Vimeo.


 Related Links:

Haq's Musings

Why Make Pakistan's Election Commission Controversial Now?

Pakistani Election 2013 Election Predictions

Pakistani Diaspora World's 7th Largest

Blackberry Transcripts in Memogate

Kudos to Qadri

Iftikhar Chaudhry is No Angel

Justice Chaudhry Must Go!

26 comments:

HopeWins Junior said...

^^RH: "This is another case of some Pakistanis biting the hands that feed them.."
----

Another case? Which was the preceding one?

Riaz Haq said...

HWJ: "Another case? Which was the preceding one?"

I am referring to Pakistanis, particularly the elite, who pay no taxes, make Pakistan dependent on foreign aid to close the budget gap, and then oppose and criticize all foreigners, particularly the donor countries.

http://www.riazhaq.com/2011/05/pakistans-tax-evasion-fosters-foreign.html

Shehzad said...

He should have hired a qualified lawyer

Riaz Haq said...

Shehzad: "He should have hired a qualified lawyer"

With this court, you can't count on anything. Remember Aitazaz Ahsan, among the best lawyers in Pakistan, representing Gilani, a constitutionally elected PM who was unceremoniously sent home? And what happened after that? The letter was sent to Swiss Govt which rebuffed any talk of re-opening cases against Zardari.

So I don't think a better lawyer would have made a difference because it appears the judges had their mind made up the moment the petition came in from Qadri.

Najam said...

I found your write up a bit interesting.Particularly the change that you have started liking Maulvis.But this particular Maulvi was cut to size by Supreme Court judges and started talking rubbish in the court and later on outside.

The last two lines of your post perhaps indicate an inner feeling.And there is nothing wrong with the aspiration of becoming member of Pakistan Parliament.Thu fun,the drama the amusement you will find there will be a remarkable experience.You will find Milliners and Billioners,Tax defaulters,Tax evaders,illiterate feudal,foul mouthed persons,and what not.The problem is that those having dual nationality do not qualify for it.

Riaz Haq said...

Najam: "I found your write up a bit interesting.Particularly the change that you have started liking Maulvis.But this particular Maulvi was cut to size by Supreme Court judges and started talking rubbish in the court and later on outside."

Though I do not entirely agree with him, I do like this moulvi because he is talking sense when he marches peacefully to demand clean-up of the Pakistani parliament. In fact, Dr. Qadri has already made an enormous contribution by articulating and pressing for specific steps under Articles 62 and 63 of the Constitution to rid Pakistani parliament of corrupt politicians. One obvious result is the recent decision by the Election Commission of Pakistan to work with the Federal Board of Revenue (FBR) and the State Bank of Pakistan to identify and disqualify tax evaders and loan defaulters from seeking election to parliament.

As to your point about a bar on dual nationals from seeking election to parliament, it can be easily changed by amending the constitution to give representation to about 3% of Pakistanis living abroad and contributing to Pak economy in substantial ways. The remittances from overseas Pakistanis constitute the largest inflow of money (over 5% of GDP) into Pakistan....much more than foreign aid, foreign investments, etc.

Salman said...

Riaz/Najam,

1.Since long JI was the only party shouting for implementing Articles 62 and 63 of the Constitution to rid Pakistani parliament of corrupt politicians but they could not get any publicity.If these Articles 62 and 63 are brought in force,who you think will be eligible for participation in next election.At least none of the existing parliament.But will it really be imposed or can it be done? This is a million dollar question.

2.Supreme court really wasted time in discussing the dual nationality role.For me there is a big question mark on the credibility of the decision.They could have found all other good reasons to dismiss the case.

3.Pakistanis living overseas with Pakistani or dual nationality should have all facilities to vote in the countries they are living in and should have at least 5 % of total parliament seats.They can bring a positive change in the country.Why none of the political parties talk about it? Who can take initiative in this respect?

Riaz Haq said...

Salman,

I generally agree with your assessment.

I think the established political parties, particularly PML(N) and PPP, are the most corrupt and have the most to lose. So they fear from what Qadri talks about.

Even if Articles 62 ad 63 are partially implemented by disqualifying some of the corrupt candidates, it'll weaken PPP and PML(N) by knocking out many of their parliament members. It'll send a message to all corrupt politicians that they CAN be held accountable.

Shahid said...

Salman,

In response to point 3. if accepted, sincere people will not find any place, the chances of people having strong backing of White House & Downing Street will get in and will have even more stronger impact on our politics. Its just my thinking.

Riaz Haq said...

Shahid: "In response to point 3. if accepted, sincere people will not find any place, the chances of people having strong backing of White House & Downing Street will get in and will have even more stronger impact on our politics. Its just my thinking."

It's the voters, not the backers, who will decide who should represent them.

Anonymous said...

I dont think people with dual nationalities should be eligible as parliamenterians. The reason being they could work for foreign countries and serve their interests. Also if are caught in corruption cases then the foreign country offering them dual nationality will offer them asylum. I believe there are countries like India who dont allow this for precisely this reason.

Sarfaraz said...

Israel is a country made and run by Expats..So is Taiwan and the list goes on.

Akber said...

Dear Riaz sahib,

it is always very dangerous to comment on court's work based on news paper reports Judges speak through their written judgement only. Verbal exchanges can be mis reported, mis interpreted and may have been made intentionally provocative to bring out the real motive or truth. If you want to make a comment, pl read the judgement and then do so.

Regarding rights or loyalty of Pakistanis with dual nationality please do not forget that many countries do not allow their citizens to acquire dual nationality. That Pakistan allows it is a great convenience for those using the facility. Overseas Indians remit over 70 billion dollars to India and play much greater role in India's development than overseas Pakistanis. Yet India does not allow dual nationality. There are no figures available as to what percentage of 13 billion dollars sent to Pakistan are sent by those holding dual nationality. But, surely, dual nationality holders cannot claim credit for all the remittances because out of estimated 7.5 million Pakistanis, hardly 20 percent would have dual nationality.

Our constitution allows voting right to dual nationality holder but not the right to contest or hold a parliament seat. It seems quite logical to me. Similar precaution may also be apllied to other strategic positions. It would be a precautionery measure but certainly no conclusive evidence of loyalty or disloyalty to the country as we have plenty of sigle nationalty Pakistanis robbing the country.

That the court felt that Dr. Qadri not being eligible to contest the elections
weakened his locus standii, specially in view of the prayer by the plaintiff being considered, unanimously by all sectors of cicil society, disruptive for the election process, should not paint the court in any colour.

Dr Qadri would be well advised to continue his mission in a non disruptive manner without causing speculations about his association with one or other force. He has the talent, the reputation, the track record and the following to be a reformer like Ana Hazare of India.

Riaz Haq said...

Akber: "it is always very dangerous to comment on court's work based on news paper reports Judges speak through their written judgement only....."

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.

Safdar said...

What have overseas Pakistanis given to or for Pakistan? Yes some Dollars. Pakistan not for sale yet!

Riaz Haq said...

Safdar: "What have overseas Pakistanis given to or for Pakistan? Yes some Dollars. Pakistan not for sale yet!"

Some dollars? How about $13 billion a year now and increasing at double digits every year?

$13 billion represents the largest inflow in the country.. much more than foreign aid, loans and investments combined.

This is a case of some Pakistanis biting the hands that feed them.

These are people who pay little or no taxes, make Pakistan dependent on foreign aid to close the budget gap, and then oppose and criticize overseas Pakistanis and other foreigners, particularly the donor countries.

Akber said...

At issue was dual nationality, not remittances.
Not only we should appreciate the contribution of overseas Pakistanis, we need to do two things.
1. Encourage more remittances by providing safe and secure investment oppurtunities and similar other incentives.
2. Make an organised effort of training and export of trained manpower like nurses, hospitality workers, mechanics etc.
We have the potential of doubling remittances in 3 years, which essentially means good bye IMF.

Shaukat said...

But I am sad that the the Supreme Court that should have dealt with the matter on merit became personnel.(rejecting it if they had no jurisdiction and sending it to the relevant court) They played God in trying to Judge Dr Quadri's intentions. The intentions of one who not only lived most of his life in Pakistan as a good and law abiding citizen (Teaching Law for that matter) and then dedicated his life to educating those in Pakistan who could not afford to do so.Even outside the country he preached Peace in nearly 90 countries.

Its like doubting ones father even though your mother bore you. Or even contracting for a builder to build ones house if he doubts the contractors intentions.Or when a young woman doubts the intentions off one who offers her to cross the road.

Shafique said...

Before going into merits of any petition, the court has to determine the maintainability of the petition. When the petition is not found maintainable in the 1st stage, the question of moving to 2nd stage does not even arise.

Riaz Haq said...

Shafique: "Before going into merits of any petition, the court has to determine the maintainability of the petition. When the petition is not found maintainable in the 1st stage, the question of moving to 2nd stage does not even arise."

Supreme Court does not have to hear every petition that comes to it.

I'd understand if they decided to refuse to hear and send it to a lower court.

But the entire hearing that followed was a circus because the grounds of dual nationality on which the Supreme Court turned it down were well known already.

By hearing the case, the Supreme Court has decided to overstep its authority and made new law by limiting the rights of dual citizens to petition the court.

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.

HopeWins Junior said...

^^RH: "...overseas Pakistanis, with or without dual nationality, need to protect their rights of citizenship in Pakistan. They should demand greater voice in Pakistan's affairs through reserved seats for their own elected representatives in Pakistan's parliament"
-----

The US also have a number of its citizens who live and work overseas. And it routinely allows them to vote in US elections, just as it allows its soldiers who are stationed abroad to vote, through absentee ballots registered at their closest living relative's p-place of residence in the US.

This part is fine.

But this business of "reserved seats for their own elected representatives" is silly. Can you show me an example of this being done in any other country?

And even if it were implemented, what purpose would it serve? How would it help?

Riaz Haq said...

Here's a Dawn report on EC requiring elections 2013 candidates to submit three years' tax returns:

ISLAMABAD: The Election Commission of Pakistan has made it mandatory for candidates for national and provincial assembly seats to submit income and agriculture tax returns of the past three years.

According to changes in declaration and oath approved by the ECP at a meeting presided over by Chief Election Commissioner Justice (retd) Fakhruddin G. Ebrahim here on Tuesday, candidates will be required to disclose their income and source and income tax paid over the past three years.

They will also have to submit details of their children studying abroad and expenses incurred on their education, foreign trips undertaken by them during the period and cost incurred and a copy of the passport used.

The candidates will be required to give details of agricultural land held by them and agriculture income and tax paid during that period.

Earlier they were required to provide details of their movable and immovable property in and outside Pakistan, but now they will also have to state location, description, built-up area and market value of the house or apartment in which they are living.

The candidates will also have to submit names of their spouse and dependants and declare that the names are correct and no name has been left out. They will be required to give details of companies owned by them, their spouse or dependants.

They will also have to submit a statement on oath that they have neither ceased to be a citizen of Pakistan nor they have acquired or applied for citizenship of a foreign state and a declaration that they will have no objection if information relating to acquisition of citizenship of a foreign state or application for such citizenship is provided by a foreign state to the ministry of foreign affairs. Failure to provide details about any matter mentioned in the form shall render their nomination invalid.

Those who have been members of the national or a provincial assembly will be required to describe what they consider to be the most important contribution made by them for the benefit of their constituency.

Candidates will also be required to state whether they made any payment to their political party to obtain its ticket, and if so how much.

They will also have to disclose if they received any amount of money from the party which awarded them the ticket. They will be required to provide details of any donation given by them to any recognised charitable organisation or educational institution over the past three years.

Candidates will also be required to provide details of the bank account opened for election expenses, along with the name and branch of the bank and an undertaking that they will make all election expenses from the amount deposited in the account and will not make any transaction for poll expenses through another account.

They will have to provide details of the value of total assets and expenditure including mortgages secured on property or land and their personal expenditure, indicating increase or decrease over the previous year.

An official of the ECP told Dawn that rules needed to be amended for making changes in the format of nomination papers and declarations, which the commission would be able to do with the approval by the president. He said a reference for the purpose was being sent to the president through the ministry of law and justice.

He said the commission had taken notice of reports about Sindh government’s plan to give 27,500 plots to PPP workers and sought a report from the chief secretary.

The ECP decided that a ban on transfer of Rs250 million by the Finance Division to the ministry of law for payments to be made to the bar councils will be lifted next month after expiry of the term of the National Assembly.


http://dawn.com/2013/02/20/candidates-required-to-submit-tax-returns-of-three-years/

Riaz Haq said...

Tahir ul Qadri's Questions: Why is Musharraf the only one disqualified to run for elections? Why not the sectarian terrorists, tax dodgers, loan defaulters, electricity thieves, fake degree holders?

Riaz Haq said...

Fauzia Kasuri has left PTI because it has been "hijacked by a mafia".

She was first disqualified within PTI's internal elections, then denied party ticket for open seats even after she gave up her US nationality.

This seems to be part of the intolerance and hatred of all foreigners including dual nationals of Pak birth.

Such animosity against overseas Pakistanis was on full display in Pak Supreme Court when TuQ petitioned against EC.
·

Riaz Haq said...

Here's an excerpt from Dawn Op Ed on foreign remittances holding up reserves:

AT a time when the rupee is under constant pressure because of rapidly falling foreign exchange reserves, the increase in the amount of money sent home by overseas Pakistanis is good news. Remittances have grown 9pc in the first quarter of the present fiscal to $3.9bn — equal to the liquid reserves of the central bank. Although foreign currency earnings of overseas Pakistanis have been feeding the country’s reserves and propping up the rupee for some time now, the importance of remittances has increased recently as exports stagnate and foreign official and private flows dry up. Even an IMF loan has failed to shore up the reserves or revive public confidence in the rupee. In recent days, the latter was hit hard by a weakening exchange rate and capital flight. Most people like to park their savings in dollars rather than in rupees as indicated by the rising volume of foreign currency accounts of commercial banks to $5.17bn — an amount that is substantially higher than that of the official liquid reserves.

http://dawn.com/news/1049075/relying-on-remittances-reserves-situation

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