Showing posts with label Iftikhar Chaudhry. Show all posts
Showing posts with label Iftikhar Chaudhry. Show all posts

Monday, May 19, 2014

Ex-AG Munir Malik vs Riaz Haq on Ex-CJ Iftikhar Chaudhry of Pakistan

Viewpoint From Overseas team invited former Chief Justice of Pakistan Mr. Iftikhar Mohammad Chaudhry and former Attorney General of Pakistan Mr. Munir A. Malik for a conversation at our Silicon Valley studio last week. 

The former chief justice did not respond to our invitation.

We were fortunate to have Mr. Munir Malik visit with us and respond to the questions often asked by people here in the valley. 


L to R: Misbah Azam, Saeed Malik, Riaz Haq, Munir Malik and Faraz Darvesh
The format chosen was essentially a debate format moderated by VPOS host Faraz Darvesh. 

Mr. Malik vigorously defended the lawyers' movement a movement to bring rule-of-law to Pakistan. The former attorney general supported the actions of Mr. Chaudhry before, during and after 
his restoration to the top bench, including Mr. Chaudhry's unprecedented use of suo moto and contempt of court actions. Mr. Malik rejected allegations that Mr. Chaudhry covered up his son Arsalsan Iftikhar's corruption. 

Riaz Haq responded by pointing out the lawless conduct of lawyers during and after the lawyers' movement. Mr. Haq pointed that Mr. Chaudhry took PCO oaths twice and remained a compliant judge until his support for his son Arsalan Iftikhar's illegal and rapid promotions and conduct were discovered in 2007 and a reference filed against Chief Justice Chaudhry.  The issues of corruption brought out in that reference have remained unresolved mainly due to obstruction of justice by the Chaudhry Court. 

Faraz focused on the following questions: 

How did Mr. Munir Malik start and lead Pakistan lawyers' movement? 

Did Ex-CJ Iftikhar Chaudhry meet lawyers' expectations of him?

Was the effort to restore him worth it? 

 ViewPoint from Overseas host Faraz Darvesh discussed these questions with Pakistan's former attorney general Munir Malik and Riaz Haq (www.riazhaq.com) 

Here's a video of the Malik-Haq debate:


Ex AG Munir Malik Defends Ex CJ Chaudhry, Lawyers Movement in Pakistan from WBT TV on Vimeo.



Related Links:

Haq's Musings

Chaudhry Court Scared Away Investors

Chaudhry is No Angel

Vindictive Judges Pursue Musharraf

Is Musharraf's Treason Trial Justified?

Arsalan Iftikhar's Corruption Scandal

Lawless Lawyers of Pakistan

Viewpoint From Overseas Video Collection

Tuesday, April 29, 2014

Pakistan's Chaudhry Court Scared Investors Away

Organization of Pakistani-American Entrepreneurs (OPEN) Silicon Valley has just announced a panel discussion featuring Pakistan's former Chief Justice Iftikhar Chaudhry and former attorney general Munir Malik.

Pakistan's Ex-Chief Justice Iftikhar Chaudhry
This discussion is titled "The Pakistani Legal Code And How It Impacts Investors And Entrepreneurs". It is scheduled  for 10:15 AM at "OPEN Forum 2014", the organization's annual conference on Saturday, May 10, 2014, at the Santa Clara Marriott in Silicon Valley

If I were asked to moderate this panel, I would not treat it as an abstract discussion of how rule of law impacts investors and entrepreneurs anywhere in general. Instead, I would focus on how Justice Iftikhar Mohammad Chaudhry conducted himself and how his conduct affected the investment climate and the economy in Pakistan during his tenure as Chief Justice of Pakistan.

Foreign Direct Investment in Pakistan:

World Bank's data shows that foreign direct investment (FDI) in Pakistan reached a peak of over $5 billion (3.6% of GDP) in 2007 and then fell sharply in the wake of Justice Chaudhry's reversal of the privatization of Pakistan Steel Mills. FDI has essentially dried up and the Pakistan Steel Mills Corporation has accumulated losses over Rs. 100 billion in spite of multiple bailouts at taxpayers expense. It is currently operating at just 3% of capacity and its monthly payroll adds up to Rs. 500 million, according to Dawn.

FDI as % of GDP in Pakistan Source: World Bank

Canceled Privatization Deals:

Huge subsidies are being given at taxpayers' expense to Pakistan Steel Mills and several other state-owned enterprises which take resources away from more pressing needs for spending on education, health care and infrastructure. In fact, Pakistan Education Task Force Report 2011 reported that "under 1.5% of GDP [is] going to public schools that are on the front line of Pakistan's education emergency, or less than the subsidy for PIA, Pakistan Steel, and Pepco."

Speaking at a recent international judicial conference in Islamabad, Dr. Ishrat Hussain, current dean of the Institute of Business Administration and former governor of The State Bank of Pakistan, said there has not been a single privatization deal in Pakistan since the Supreme Court's 2006 decision voiding the steel mill transaction.

Dr Hussain said that despite fulfilling the legal requirements, the fear that the country’s courts may take suo motu notice of the transaction, and subsequently issue a stay order, deters businesses from investing in Pakistan, according to a report in The Express Tribune. “A large number of frivolous petitions are filed every year that have dire economic consequences. While the cost of such filings is insignificant the economy suffers enormously,” he added.

Crucial Projects Delayed:

Among other projects, Dr. Hussain particularly cited Reko Diq and LNG projects which could not proceed because of judicial activism of Pakistan Supreme Court judges.

The lack of progress on liquefied natural gas (LNG) deal has exacerbated Pakistan's energy crisis. It would have brought in 400 million cubic feet of gas per day to bridge the growing supply-demand gap now crippling Pakistan's economy.

The invalidation of Reko Diq license to  Tethyan, joint venture of Canada's Barrick and Chile's Antofagasta, has turned away Pakistan's single largest foreign investment deal to date. The deposit in Balochistan was expected to produce about 200,000 tons of copper and 250,000 ounces of gold annually. Under the deal Baluchistan province would hold a 25 percent stake in the project, with Tethyan holding the remaining 75 percent.

Militants Released:

In addition to activist judges intervention in economic matters, there have also been many instance in which known militants have been released by Pakistani courts. Those released have then committed acts of terror which have also scared away investors, both foreign and local.

Summary:

Dr. Hussain closed his speech by pleading with Pakistan's judges "with all the humility and without sounding arrogant or offending anyone’s sensibilities, that economic decision are highly complex and its repercussions are interlinked both in time as well as space.”

I hope that this opportunity to question the former chief justice is not wasted by an adoring crowd asking him soft-ball questions at the OPEN conference on  May 10, 2014. It's important that we, including the honorable judge, do an honest assessment of our past mistakes to learn from them.

Related Links:

Haq's Musings

Shaukat Aziz's Economic Legacy in Pakistan

Saving Pakistan's Education, Steel Mill, Railway and PIA

Politics of Patronage Trumps Public Policy 

Iftikhar Chaudhry is no Angel

Musharraf Earned Legitimacy by Good Governance

Vindictive Judges Pursue Musharraf

Rare Earths at Reko Diq?

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!

Wednesday, March 31, 2010

Judges Jihad Against Corruption in Pakistan

Led by Chief Justice Iftikhar Chaudhry, the judges of Pakistan Supreme Court have overturned former President Musharraf's amnesty order for 8000 top politicians, including current President Asif Ali Zardari, and declared jihad against corruption at the highest levels of government.



Pakistani judiciary's battle against rampant corruption has recently escalated with the jailing of a top serving police official at the Federal Investigation Agency (FIA), and the ultimatum to the anti-corruption chief of the National Accountability Bureau (NAB) to reopen domestic and international corruption cases against the beneficiaries of the NRO amnesty, or be prepared to go to jail.

Some critics of the Supreme Court actions see the top court's recent orders against top officials as abuse of power by Mr. Iftikhar Chaudhry, the head of the unelected and independent judiciary in Pakistan. They accuse the Chaudhry court of engaging in unwarranted judicial activism designed to usurp the powers of the elected legislature and executive branches.

Unfortunately, Pakistan continues to have the dubious distinction of being among the 50 most corrupt countries on a list of 180 nations ranked by Transparency International in 2009. Under the current PPP government, Pakistan has slipped 5 places to being 42nd most corrupt from 47th last year. By contrast, India is ranked much better as the 84th most corrupt country.

While I have been critical of some of Justice Chaudhry's behavior in the past, I have now concluded that judicial activism to fight high-level corruption is necessary, at least in the near term. However, I do expect that there will be both positive and negative consequences of the judiciary-led war on corruption in Pakistan.

The most likely upside to come from the court actions is that the politicians and bureaucrats will be forced to think twice before they demand to be paid off in exchange for illegal favors. The activist top court judges will certainly help reduce the current high levels of corruption among the top leaders, and help set a better tone for their underlings in positions of power.

The negative consequences of the court actions include a gross imbalance of power and a continuing institutional confrontation between the judicial and executive branches of government. An extended struggle may prove detrimental to better governance, and possibly open the way for another military intervention in the country.

Lt us hope that good sense will prevail to ensure that long-term positives will significantly outweigh the short-term negative consequences of the powerful judges' war on deep-rooted and highly corrosive corruption in Pakistan.

Related Links:

Haq's Musings

Justice Chaudhry's Address to New York Bar

Incompetence and Corruption in Pakistan

Zardari Corruption Probe

NRO Amnesty Order Overturned

Transparency International Rankings 2009

Saturday, August 22, 2009

Are Pakistan's Uncivil Lawyers above the Law?


After elevating the lawyers to very high stature, the "civil society" including foreign-funded NGOs and their media and politician cheerleaders in Pakistan have recently witnessed a string of unprovoked physical attacks by lawyers on law-enforcement officials and media men. While some of the lawyers and their supporters dismiss such incidents as isolated and involving only a few bad apples, the fact is that such violent behavior has repeatedly been displayed by Pakistani lawyers, particularly in Lahore, for at least two years or more. In the last month, there have been 18 cases of assaults carried out by lawyers in Lahore alone, according to superintendent Sohail Sukhera of Lahore police force. "In one case, lawyers broke the leg of a police inspector. Others have had their skulls exposed when lawyers have hit them on the head with stones or chair legs. It's really uncalled for."

While violence by lawyers has grown in terms of numbers of incidents and intensity, the phenomenon is not new. First, during anti-Musharraf protests in Islamabad in 2007, there were repeated scenes on television that showed anti-Musharraf lawyers viciously beating up a few Musharraf supporters carrying pro-Musharraf placards outside the Supreme Court building.

Then, there was an attack on former minister Sher Afgan Niazi by lawyers outside Lahore High Court last year. While there was no expectation from the politicians to be truthful and take responsibility for lawyers violence, it was a pleasant surprise to see Mr. Aitazaz Ahsan show a sense of responsibility by resigning. However, barely 24 hours after the resignation, Mr. Ahsan backtracked and used "conspiracy theories" and "invisible hands" and placed the blame on his favorite target: President Musharraf.

Recently, media men and policemen have been the target of violence in Lahore. As the BBC reported recently, "These days, their footage is all over the Pakistani news channels. Lawyers, dressed in black suits and ties, on the attack. Every few days seem to bring a new incident; the beating of a policeman; a scuffle with members of the press outside the high court in Lahore."

Let's examine the reality of the "esteemed" legal profession in Pakistan in a little more depth:

1. After claiming the restoration of the rule of law in Pakistan as the goal of their protest movement against Musharraf and Zardari, the lawyers have repeatedly proved by their behavior time and again that they think they are above the law.

2. In most international opinion surveys on professional ethics, lawyers consistently rank near the bottom. They are slightly below the journalists and above the politicians and used car salesmen in how they are perceived by the general public worldwide. If the recent success of the movie "Michael Clayton" is any indication, the public perception of lawyers breaks down into four archetypes, each represented by a character in the movie: brutal (Sydney Pollack), disappointed (George Clooney), psychotic (Tom Wilkinson) and criminal (Tilda Swinton). It’s probably no coincidence that Clayton’s only Oscar went to Swinton.

3. According to a Transparency International survey, the judiciaries of India and Pakistan fare among the worst, with 77 per cent and 55 per cent of respondents in the two countries, respectively, describing the judicial system as corrupt.

4. In most of the rest of the world, the judges are generally perceived as honest. But not in South Asia. According to Transparency International surveys, the Pakistani judiciary is considered the third most corrupt institution after police and power departments. Even the taxation and customs people are regarded as more honest than the judges. Among the four provincial governments, the Transparency survey ranks Punjab (the hub of the lawyers movement) as the most corrupt and NWFP the least corrupt.

5. Pakistani judiciary, including Justice Iftikhar Chaudhry who legitimized Musharraf's overthrow of Nawaz Sharif's elected government in 1999 by taking the oath of office under PCO-I, has a long and inglorious history of undermining the laws and the constitution of Pakistan. This scribe has had personal experience with the individual judges of the highest courts showing little respect for the rule of law and engaging in corrupt practices and nepotism in their own personal lives for petty gains.

The lawyers' violence is becoming so ugly that the media people, who were lawyers' closest allies opposing Musharraf, have now turned against the lawyers themselves. "The media is trying to show all lawyers in a bad light. And there are others who benefit through making us look bad," complains Raja Hanif, 33, a member of Lahore High Court Bar. However, Mr. Hanif says nothing about any disciplinary action the lawyers' body should take to punish the misbehaving lawyers for their unprofessional conduct.

Now that Justice Iftikhar Chaudhry, known for frequent suo moto actions, is back on the bench as the chief justice of Pakistan, it's important for him to act to preserve the dignity of the legal profession in Pakistan.

Here's a videoclip of lawyers attacking a police officer in Lahore:



Related Links:

Long March or Big Farce?

Has Pakistan's Lawyers Movement Gone Awry?

Lawyers Liars!

Pakistan's Lawyers above the Law?

Sunday, March 15, 2009

How Long Can President Zardari Survive?


The humiliating retreat by the deeply unpopular President of Pakistan, Mr. Asif Ali Zardari, on the question of restoring Chief Justice Iftikhar Chaudhry is reminiscent of a similar debacle by his equally unpopular predecessor, former President Musharraf, in 2007. Both leaders seriously miscalculated the public outrage against their actions. In addition to mass protests on the streets, both men had to face tremendous pressures by foreign powers, including Americans and Saudis, as well as strong private rebuke by the ultimate arbiters of power in Pakistani military. As the events unfold further, it seems that Mr. Zardari has been so badly weakened that he will be forced to resign in not too distant a future. Until that happens, Pakistan will continue to face significant instability and continuing and serious security threats from within and outside.

As the political turmoil reached alarming new heights in Pakistan over the last few days, Obama adviser Bruce Riedel said in a report, prepared in conjunction with the National Security Council (NSC), that he believed that unless serious action was taken, Pakistan would become a ‘terrorist university’, representing a far greater threat to the security of the US and Europe than Afghanistan did before 9/11.

“Recent apocalyptic intelligence on the situation in Pakistan has shocked the Obama administration and convinced Riedel’s review team that radicals trained in Pakistan are the greatest threat to western security,” the Daily Telegraph reported.

It said the Riedel review had reportedly concluded that seven out of 10 Taliban and other militants in Afghanistan and Pakistan were “reconcilable”, who could be bribed, cajoled and persuaded to turn away from extremism. This appears to be a vindication of Pakistan's policy of reconciliation with elements among the Taliban.

“The review, likely to be published within days, will recommend that non-military aid to Pakistan is quadrupled. Payments to Afghan tribal chiefs will also increase. In return, the Pakistani government will be expected to agree to a wholesale overhaul of its military which will see US special forces retrain Pakistani soldiers in counter-insurgency warfare,” The Telegraph added.

There is a great deal of urgency being felt in Washington to try and resolve political tensions in Pakistan without jeopardizing government support against the Taliban and Al Qaeda militancy. The U.S. faces a serious dilemma here. While the U.S. has found Zardari quite pliable in support of American policy in the region, a weakened Zardari and less than friendly Sharif and Kayani are seen as significant roadblocks by Washington. It will be interesting to see how Americans attempt to keep Zardari at the helm when he has become almost as unpopular as Musharraf was in his last few months in office.

In a December, 2008 poll conducted by the US-based International Republican Institute (IRI), 88% of the respondents said Pakistan is moving in the wrong direction, while 73 per cent said the economic situation had worsened in the past year.

A total of 76 per cent rated the PPP-led government's performance on key issues as poor, up from 51 per cent in a survey conducted by IRI in June.

67 per cent replied in the negative when asked if things would be better now as there is a democratically elected Parliament and President in Pakistan.

While 59 per cent of Pakistanis surveyed said they would prefer Sharif as President, only 19 per cent backed Zardari for the job. 63 per cent also said they disapproved of Zardari's performance while only 19 per cent approved it.

So what does the future hold for Zardari? Since the IRI poll was taken before Zardari's unpopular actions in Punjab, it is very likely that his support has further eroded recently. With such low level of support, it is likely that he will face a revolt within his own party. Moving forward, there are two distinct possibilities that will further hurt Mr. Zardari's chances: (1) The Iftikhar Chaudhry court could repeal President Musharraf's NRO, the executive order granting amnesty to Zardari that would force him out as president and/or (2) the repeal of article 58(b) of the constitution by parliament that would turn the president into a powerless figurehead.

Thinking beyond the Zardari era, I see many Pakistanis, such as Professor Adil Najam of Boston University, hoping that a "new politics may emerge in Pakistan around the faces and frameworks of the lawyers movement and that it will remain true to its aspirations rather than succumbing to political temptations".

While I abhor the feudal politics of Pakistan and share the hope of new politics based on civility and rule of law, I do think that the lawyers movement and the case of Chief Justice Iftikhar Chaudhry has been exploited by cynical politicians to achieve their own objectives of destroying their opponents. The violent and uncivil methods used by this movement are also highly questionable and unjustified in a democracy. What Pakistanis need more than anything now is a period of relative stability to allow economic and civic activity to resume so the poor and hungry can take care of themselves. Make no mistake about it, the lawyers’ fight for higher ideals is being fought at the expense of those who can least afford it. As long as there is serious economic deprivation and resulting violence in Pakistan, it will be extremely difficult to achieve true democratic ideals. Instead, we’ll be dealing with rising insurgency and expansion of “Swats” in Pakistan.

Related Links:

Justice Chaudry's Address to New York Bar

Has Lawyers Movement Gone Awry?

Lawless Lawyers of Lahore

Lawyers Liars

Feudal Democracy in Pakistan

Monday, November 24, 2008

Iftikhar Chaudhry Speaks to New York Bar


Chief Justice Iftikhar Chaudhry is currently on a US visit for a speaking tour, including a visit to the Harvard Law School to receive their Medal of Freedom.

Here's the text of his Speech at the New York Bar Association
17 November 2008

It is a pleasure and an honor for me to be addressing the members of one of the largest Bar Associations in the world. I am extremely touched and moved by the honor that you have conferred upon me today. In actual fact this honor is being showered on the teeming millions of Pakistanis who have dared to stand for, , struggle for and dream for those values and principles which developed societies such as yours value , cherish and I am sure at times take for granted. I stand here as in solidarity of all those Pakistanis who continue to defy autocracy and repression and have risen against despotism, dictatorship, tyranny and injustice.

My learned friends, in an ideal world I should not be standing here today giving this speech. In an ideal world where all nations bow to the rule of law, for the Chief Justice of a Supreme Court to take a principled stand against subversion of the Constitution and to and to warn against the erosion of the Rule of Law and Independence of the Judiciary, should be the norm rather than the exception. It is extremely unfortunate for us as a nation to have to fight for and struggle for something which should be the birth right of every human being. Sir Winston Churchill's statement at the end of the war about his war torn country was a deliberated comment. He said that as long as the judiciary was independent and functioning then nothing was lost. And how true that observation was, because there is an irresistible bond between an independent judiciary and a nation's capacity to resist an adversary, whether internal or external.

In any war the most effective weapon is a population with enforceable rights. Such a nation has a stake in the system and will fight to protect it. The key word here is 'enforceable'. A nation who are promised rights, even if they are enshrined in a document as sacred as the Constitution, but are denied the enforcement of those rights, then for all practical purposes they remain deprived of those rights. A system that does not enforce and protect rights alienates the people. And what good is that judiciary that is remiss in guarding a Constitution given by the people to themselves? Without an independent judiciary people lose faith and commitment to their chosen Constitutional system. They become indifferent to its survival and soon
become apathetic, cynical and resigned. They then choose to follow those who challenge it, even those who oppose it with military force. And this then leads to the inevitable loss of crucial battles.

Ladies and gentlemen, no democracy can survive without an independent judiciary. No strong and stable Parliament can be constructed on the ruins of an independent judicial edifice. An independent judiciary is, in fact, the most significant protection available to Parliament. It covers the flanks of Parliament, resisting attacks from any adventurer in the wings. The entire argument that Parliament must prevail over justice and law is therefore flawed. There can be no democracy without law. Without an independent justice system even the best democratic system remains in jeopardy, and eventually degrades into lawlessness and anarchy.

My friends, we live in times of great peril and in times of great challenge to the human spirit of resilience. No battle in modern war or battles for peace can be won in lands that lack justice. Lack of justice produces economic and social inequities, which in turn churn out disaffected elements that will destroy the fabric of the one just world that is our shared goal. Only justice for all can beat terrorism and tyranny. Only an independent judiciary can checkmate extremism. Rule of law is the most effective obstacle to repression, oppression and all their offshoots. There is no doubt about the fact that Parliamentary sovereignty is sacred. But only the Constitution is supreme, and it is for the legitimately constituted courts to interpret the constitution. Parliament and Parliamentarians cannot be exempted from judicial scrutiny by installing a feeble and timid judiciary in the name of the sovereignty of Parliament. Both Parliament and the Executive must be restrained and kept within the boundaries of the rule of law.

My fellow jurists, permit me to emphasize one additional point. Just as an independent judiciary is vital to sustain democracy, the independence of the judiciary itself is dependent entirely on "independent judges". For a truly independent judiciary the judges must be independent and fearless. If judges are afraid of being arrested, of being manhandled, of being imprisoned along with their families, and that too because they had the courage to take a principled stand against a dictator and refused to be party to the mutilation of the Constitution, then we might as well forget about any judge ever being independent or fearless. If society turns a blind eye and condones the illegal acts of the dictator, then we might as well bury the hope of ever having free judges with free minds and a free conscience. Ladies and gentlemen, this is why Pakistan is going through a decisive and definitive moment in our history.

The Lawyers' Movement in Pakistan is a unique and historic struggle against all those forces which are trying to stifle the rule of law and are hacking away at the foundations of our judiciary. They are trying to suffocate and bury the concept of an independent judiciary once and for all, and once that happens then the very fabric of society is destroyed resulting in a domino effect, with all the other organs and pillars of the state falling one by one. This movement is being led by the young lawyers of Pakistan, who seek neither office nor power. For the last 18 months these champions of freedom have risked life and limb in the face of all odds. The lawyers' movement triggered a wave of patriotism and mixed emotions in the civil society of Pakistan – both of resentment against the forces working against the wellbeing of our beloved country, as well as the urge and desire to come out and do whatever they could within their capacity to assist the lawyers in achieving their goal. The media has also played a remarkable role, and in a country where nothing is free or independent, they have carved a place for themselves in history .There is no doubt about the fact that the media has attained the status of a fourth pillar of the state, and in the case of Pakistan, it has proved to be both powerful as well as bold and courageous.

Ladies and gentlemen, I am sure all of you are fully aware of the link between economic growth and an independent judiciary. Investment shies away from economies or countries that do not have an independent judiciary. There is a report in the June 5th 2008 edition of the Economist based on the findings of a commission on the legal empowerment of the poor released on 3rd June at the United Nations. It asserts that "one of the main reasons why so much of humanity remains mired in poverty is that it is outside the rule of law." Such economies are less productive and less attractive to capital. The term 'Legal Empowerment' is therefore likely to become a part of policy making vocabulary just as the term 'sustainable development has after it appeared in a similar report 3 decades ago. After all, what capital and investment, both domestic and foreign, primarily need is security. Inflation and rising prices are also part of the same phenomenon and revolve around the question of supply and demand. Without investment there can be no increase in production and opportunities of employment. Without increase in production, supplies cannot increase and meet the
demands of an increasing and more demanding population. Net employment decreases and unemployment goes up, resulting in more competition for the same number of jobs .As a result salaries and wages go down, purchasing power falls and prices go up because productive capacity and production does not rise. Inflation, unemployment and an increase in crimes are natural consequences. As the Economist says, it is now widely understood that a vibrant, independent and fearless mechanism for imparting justice is crucial to the health of the economy.

Ladies and gentlemen of the Bar, it is not the province of the courts to step into areas that are exclusively within the domain of the Executive or the Parliament. But, if these two institutions remain indifferent to the duties entrusted to them under the Constitution, or if they have acted contrary to the principles enshrined therein, or if their acts discriminate between the rich and the poor, or on religious, class, regional or ethnic grounds, then judges are called upon by the Constitution, their oath and their office to act. We do not seek to deprive any other Constitutional pillar of its authority or strength. In fact we seek to bolster and strengthen that authority. And above all, we owe it to the citizens of Pakistan to do our duty according to our original oath, the Constitution, the law and our conscience.

Parliament is no doubt supreme but the judiciary must be equally independent and authoritative. That is how the state and its institutions retain the confidence of the people. This is how nations develop and people prosper. People must not only have rights but MUST also have the means to enforce those rights. And that is only possible through an independent judiciary, comprising of independent judges. Nations with independent judges develop fast as they attract and maintain investment, whereas a weak and compliant judiciary may benefit some individuals, but it breaks the back
of the economy, the people and the country.

Finally, ladies and gentlemen, permit me to part with this ending note. In the months that remained incarcerated with my family at the house atop the Margalla Hills, I drew strength for the light that shined through the international brotherhood of all students and men and women of law who made common cause with the lawyers of Pakistan in shared ideal of establishing the supremacy of the Rule of Law. And to the American lawyers who attired themselves in black coats and marched on the streets of New York, Washington DC and many a towns and cities though out your land in support of the thousands of lawyers who marched thought the length and breadth of my land, I say thank you and remain certain that we shall overcome.

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.