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Restoration of CJ Iftikhar Imminent: Sources

March 13th, 2009 | 55 Comments

Disclaimer: PTH takes no responsibility for the veracity of the suggestions made below.

Pakistan army and Prime Minister Yousuf Raza Gilani have asked President Asif Ali Zardari to go if he does not accept a new deal hatched by them in consultation with foreign powers.

The new political deal, backed by Washington, London and the army establishment, has quietly been conveyed to Pakistan PM Gilani, to bring down the political temperature in the country. As part of the deal, the PM has been asked to immediately convince Zardari to demonstrate the flexibility required to break the present deadlock, before the ‘Long March’ reaches Islamabad.

Gilani has reportedly been given 24 hours to convince Zardari into agreeing to the new political and constitutional arrangement, as further delay will not produce any positive results for the political forces currently on the warpath. The ball is now firmly in the court of President Zardari, who has to take a decision swiftly on endorsing the agreement brokered by powerful international actors.

If Zardari does not accept the new deal then:

* Army, foreign powers will be left with no option but to implement ‘minus-one formula’
* Presidents office will be completely marginalised, Zardari will be removed
* Gilani will take over as power will be restored to PM office
* Nawaz Sharif’s PML(N) will join the cabinet
* Deposed SC chief Justice Iftikar Chaudhary will be reappointed.

Terms of the deal are:
* Pak PM Gilani has been asked to convince Zardari to accept the new political and constitutional arrangement
* The deal also states the removal of Punjab governor Salman Taseer, who is an obstacle to good relations between the PPP and the PML(N)
* Implementation of the new Constitutional package through the Parliament
* The deal also demands the restoration of Supreme Court Justice Ifthikar Chaudhary.

Since March 11, there have been a series of meetings that have shaped this deal.
The Pakistan army chief General Ashfaq Pervez Kayani met PM Gilani in Islamabad on March 11, where in the ninety minute meeting the former essentially told the latter to set the deal in motion.

On Thursday, the US ambassador to Pakistan Anne Patterson met former prime minister Nawaz Sharif. The reason ostensibly was after Sharif alleged that there was a plot to assassinate him.

Meanwhile, the PM has not met the president after he returned from his trip to Dubai. He has however been talking to the President over the phone.UK foreign secretary David Miliband also telephoned President Asif Ali Zardari to discuss the present situation on Thursday.

Written by admin

Filed under: Pakistan · Tags: Democracy, Gilani, Iftikhar Chaudhry, lawyers movement, Miliband, Pakistan, Pakistan Army, UK, US, Zardari

55 Responses to "Restoration of CJ Iftikhar Imminent: Sources"

Owaiz Bukhari says:

March 14, 2009 at 8:44 pm

A Riposte to Ansar Abbasi
February 13, 2009

By Mustafa Azizabadi

Member – Central Rabita Committee & In charge Central Media cell. MQM

Thursday, February 05, 2009; 2:44 AM….In the Urdu daily Jang of February 2, 2009 there was a column titled “Would Altaf Hussain participate in long march ?”, by the famous journalist Mr. Ansar Abbasi known for his research and investigative journalism. This column was a direct response to MQM’s Quaid Mr. Altaf Hussain’s address to MQM’s rabita committee in London on Jan 27, 2009. During the address Mr. Altaf Hussain put a simple question to Mr. Nawaz Shareef vis-à-vis PCO judges. that “what does the Charter of democracy’s article 3, clause (a) & (b) says about those judges who took oath under the PCO and if Mian sahib can answer this question then MQM too would diligently work with them towards the enforcement of Charter of Democracy.”. But in case Mian Nawaz fails to answer the question then it will be morally binding on him and an obligation to reconsider his decision to participate in long march.

Principally & professionally speaking the answer should have come from Mian Nawaz Shareef. Alas it never came; nevertheless Mr. Ansar Abbasi took upon himself to issue a rejoinder.

Peoples Party’s Shaheed Chairperson Mohtarma Benazir Bhutto and Mian Nawaz Shareef put their signatures on the Charter of Democracy (COD) comprising of 7 pages, 4 important topics and 36 articles in London on May, 14, 2006. But here we will only talk about the relevant points brought up by Mr. Ansar Abbasi, explained and deliberated upon in the aforementioned column. Mr. Abbasi says that COD’s article 3(a) explains the procedure for appointment of new judges and that Article 3(b) addresses the already appointed judges of higher courts with relevance to their oath taken under PCO.

Indeed this is true that Article 3 (b) addresses the oath taken by superior courts judges under the PCO and this is exactly said in the COD that “No judge shall take oath under PCO and nor shall he take any oath whose language stands at odds with the 1973 constitution’s defined language for oath of judges”.

Let’s read the exact text of the relevant Article from the COD. Under Article 3(a) it says “The recommendations for appointment of judges to superior judiciary shall be formulated through a commission, which shall comprise of the following: (i). The chairman shall be a chief justice, who has never previously taken oath under the PCO.”

Ansar Abbasi in his column translates it as “The recommendations for the appointment of judges for the superior courts shall be undertaken through a Commission. This commission will comprise of following individuals. 1) The Commission’s chairman shall be a Chief Justice, who has never previously taken oath under PCO”. Mr. Ansar Abbasi himself mentions that “according to this Article Mr. Iftikhar Chaudhry (deposed) Chief Justice cannot become the chairman of this commission which has been entrusted with the task of making recommendations for the appointment of new judges. And for this any chief justice who in past did not take oath under PCO stands eligible to become chairman of this commission”. Our question to Mr. Ansar Abbasi when he openly admits that according to COD’s Article 3(a) Mr. Iftikhar Chaudhry (deposed) CJ cannot become chairman of the commission that will make recommendations for the appointment of judges to superior courts and is not eligible for the task then how can he according to Article 3(a) be eligible to hold the highest and honorable office of the superior court? Knowing this reality in its totality and fully well would it be right and legal to demand his restoration?

A very amusing point that MR Ansar Abbasi brings forth with regards to Article 3(a) in his column; it says “this sub-article has nothing to do with the current judges and that few people according to a well thought of plan are interpreting Article 3(a) in such a way so as to make the restoration of Mr. Iftikhar Chaudhry controversial and create confusion in common people”. But after explaining Article 3(a) he says “the authors of COD after much thought did not use the word “The Chief Justice” of Pakistan but used “a chief justice” since they knew that the chief justice of that time and those who will follow as chief justice will be those who took oath under the 2001 PCO”.

Quite strikingly Mr. Abbasi accepted the fact that in May 2006 this particular Article in the COD was specially included for the chief justice in office at that time and his brother justices who had taken oath under PCO so that Mr. Iftikhar Chaudhry and other justices who took oath under General Pervez Musharraf’s PCO will stand disqualified for appointment as superior court judges. Moreover this is absolutely true that on May 14, 2006 when Mohtarma Benazir Bhutto Shaheed and Mian Nawaz Shareef signed the COD, both the leaders had no clue and nor did the senior leadership of two parties knew anything or for that matter the leaders of lawyers movement had any idea that on march 9 a reference would be filed against Mr. Iftikhar Chaudhry the sitting chief justice of Pakistan, that on November 3 General Musharraf would again impose emergency in the country and that judges would again be required by him to take new oaths under the PCO. As for making Mr. Justice Iftikhar Chaudhry controversial, it is those parties who are dragging him into political rallies and processions that are to be blamed. As a justice Mr. Iftikhar Chaudhry deserves the respect and protocol that comes with the office. Sadly & with due respect the chief justices and judges of superior courts are not only and strictly prohibited from public appearances, attending or endorsing political rallies and agendas, but even barred from attending private functions of such nature. But the honorable justice thought it right to go ahead with attending political rallies and processions and let the exalted office of chief justice go to the street and let himself become a spectacle on top of being controversial.

PML (N) leadership came up with the ludicrous argument that PCO’s mention in the COD is with reference to those judges who took oath on November 3, 2007. The question is that when the signatures were being put on charter of democracy on May 14, 2006 it was way before November 3, 2007, then whether PML (N) leadership got the premonition that on November 3, 2007 judges will take oath under the PCO? As per Ansar Abbasi if Article 3(a) of COD has no relevance with current judges or of any consequence to them then who are these particular PCO judges mentioned in the COD, since before January 2000 the PCO came in General Zia-ul-Haq’s martial law in 1977 and none of those PCO judges from General Zia’s time were present in the judiciary of 2007. Accordingly it proves that in the COD announced on May 14, 2006 the very mention of PCO refers to the PCO of General Musharraf introduced in January 2000 and those who took oath on it.

The fact is that in the COD the issue of judges taking oath under PCO has been dealt with utmost seriousness and in Article 3(a) clause (2) with reference to procedure for appointment of judges in superior courts that it clearly says commission that makes recommendations for the appointment of judges, its members shall be Provincial High Court Chief Justices who have never taken oath under PCO. In case the criteria are not met then it will be senior most judges who will be members of the commission and those who have never taken oath under PCO. If in January 2000 there had been no PCO by General Musharraf and Justice Iftikhar Chaudhry and his brother justices not taken oath under the PCO and provided constitutional protection to General Musharraf’s dictatorship, then it is our firm belief that in COD the mention of judges who took oath under PCO and their appointment would not have been mentioned as an Article in order to disqualify them. But on the contrary this would not have been an issue at all.

Mian Nawaz Shareef, Qazi Husaain Ahmed, Imran Khan and their like minded political leaders, lawyers, Ansar Abbasi and others of same thought look down on the current Supreme Court Chief Justice Mr. Abdul Hameed Dogar and judges appointed under the PCO after the emergency of November 3, 2007 and don’t spare a moment in maligning them and consider them unconstitutional. Mian Nawaz Sharif has taken the extreme position of not recognizing them and has not hesitated in using derogatory and uncouth language such as “anti-state elements”, “traitors” and ”anti-Pakistan” and keeps using it in public. We have one question to all the above mentioned personalities and with all due respect we ask if Mr. Chief Justice Abdul Hameed Dogar and other judges taking oath under PCO on November 3, 2007 in their eyes was a serious and punishable crime then Mr. Justice Iftikhar Chaudhry’s oath on January 4, 2000 under General Musharraf’s first PCO too falls in the category of a serious and punishable crime. Then why do they present this one judge who committed the same unconstitutional act as a hero and the other as a traitor? Was General Musharraf’s PCO in 2000 was correct and in accordance with the constitution of Pakistan? If this is true then the Chief Justice of that time Mr. Saeed-uz-Zaman Siddiqui, Justice Nasir Aslam Zahid, Justice Wajeehuddin Ahmed, Justice Kamal Mansoor Alam, Justice Mamoon Kazi, and Justice Khalil-ur-Rahman would not have said no to taking oath under PCO and would not have said that we have already taken oath under the constitution of Pakistan and therefore we will not take a second oath under the PCO. These were the true heroes of judiciary those who demonstrated strength of character and were brave enough to not to take oath under PCO and instead submitted their resignations. This most important chapter in Pakistan’s legal history went unnoticed by Mian Nawaz Shareef and by the leadership of PML (N) who are always at the forefront of all kinds of foul and malicious attacks on Supreme Court. Rather they never came out on streets at that time, nor protested or bothered to become champions of judiciary. Nor did the lawyers who are ardently campaigning for restoration of deposed Chief Justice Iftikhar Chaudhry and equate it with freedom of judiciary ever bothered to come out at that time and launch protests. Neither did Mr. Ansar Abbasi custodian of the pen and freedom of expression bothered to come out and lodge angry protests and columns. The sad irony is that lawyers and those political leaders who are at the forefront of long marches, waving angry fists and raging in fury never bothered to come out for Chief Justice of that time Mr. Saeed-uz-Zaman Siddiqui, Justice Nasir Aslam Zahid, Justice Wajeehuddin Ahmed, Justice Kamal Mansoor Alam, Justice Mamoon Kazi, and Justice Khalil-ur-Rahman. Not even a mild protest or statement from these lawyers was registered or launched in favor of these true heroes of judiciary. Why this dual approach and where was the civil society then? And what were the prominent members of ex-servicemen’s society doing at that time or were they hiding in some hole? Where was their sense of democracy at that time? Had Justice Iftikhar Chaudhry taken the honorable and brave step of siding with the judges who refused to take oath under General Musharraf’s PCO in 2000 then MQM too would have been at his side, as MQM’s demand and stand is principled, MQM questions as to why is only the restoration of the Nov 2 2007 judges being demanded & why not the judges who refused to take oath under PCO in 2000 and are true heroes who stood up like true men and should all be restored.

MQM strictly adheres to the principled stand that if Justice Iftikhar Chaudhry’s taking oath in 2000 under General Musharraf’s PCO is acceptable and correct according to Ansar Abbasi and his confidantes and like-minded then how is that judges who took oath on November 3, 2007 under General Musharraf’s second PCO could be illegal ? If one judge who took oath under one PCO is judiciary’s hero, protector and flag bearer of the constitution and considered champion of law then how is it so that another judge who took oath under second PCO can be declared as the villain of judiciary ? and one who abrogated constitution ? If the oath taken on November 3, 2007 by judges was wrong then how is that oath taken earlier in 2000 under the first PCO by General Musharraf by justice Iftikhar Chaudhry was legit and right in the eyes of law ? Asking to restore judges appointed under the first PCO and taking out long marches in their support and when it comes to judges who took oath under second PCO showing utter and abject disregard , calling them as unconstitutional and demanding for them to be removed is nothing short of blatant dichotomy in the character and logic of those who are espousing Justice Iftikhar Chaudhry’s restoration. If the PCO of January 2000 was right and legit then how that is the PCO of November 3 2007 was wrong and illegal? If the second PCO was wrong and illegal then how can the first PCO be declared as right and legit?

Ansar Abbasi and his like minded political and religious leadership, members of legal community curse and accuse General Musharraf for breaking the constitution, twice introducing PCO, keeping both President & Army Chief offices, fighting elections in uniform and distorting the constitution of the country. Alongside they also demand the restoration of the judiciary of November 2, 2007. Basically they want the restoration of the judiciary whose Chief Justice was Iftikhar Chaudhry. For those with short memories let me remind them with great respect that General Musharraf’s takeover on October 12 1999 and his non-democratic step and his chief executive’s position was validated under doctrine of necessity by whom? In 2000 General Musharraf was allowed to postpone elections for two years by whom? Again in 2002 and in 2005 General Musharraf had both the offices of Chief of Army Staff as well as President and a constitutional writ that was filed against it in Supreme Court was rejected by whom?

Yet again on September 28th 2007 who gave permission to General Musharraf to fight elections in uniform? Was it the Dogar Judiciary as cynically put by Nawaz Shareef or was it the judiciary of November 2, 2007 that rejected the constitutional writs against General Musharraf regarding his Chief of Army Staff uniform, these writs according to Article 184(3) were declared as non maintainable and rejected by whom?

If Mr. Ansar Abbasi and his like minded friends and cronies call General Musharraf a dictator and usurper then who gave sanctuary and constitutional protection to this dictator’s extra-constitutional steps?

In due consideration and full acknowledgement of these facts and in light of this evidence Mr. Ansar Abbasi should sincerely ponder and seriously reflect as to whom is the true violator of the Charter of Democracy? Whether it is MQM or was it Nawaz Shareef and his political allies and confidantes who in demanding the restoration of PCO judges are standing accused of violating their own charter of democracy? If Ansar Abbasi and his confidantes and like minded political friends think and view the COD as that sacrosanct document that if its is not practiced then the entire judiciary, parliamentary system and democracy can be declared as non constitutional and can lead to the turning of tables on democracy and its lynching then principled approach and scruples tell us that if one has faith in COD then one should not talk of restoration of an individual who took oath under a dictator’s PCO, someone who provided full protection to the dictators extra constitutional transgressions. And if one only wants to talk out loud on the COD and not to practice it in spirit , then those who talk out the loudest on the COD should instead of long march go to the Constitution Avenue in Islamabad and burn this COD in the presence of public and in their court and to stop fooling people and pray for their forgiveness.

Would Mr. Ansar Abbasi exhibit moral courage to seek nation’s forgiveness for supporting Mr. Iftikhar Chaudhry a person who took oath under General Musharraf’s PCO, a person who provided constitutional protection on many occasions to General Musharraf’s extra-constitutional steps? MQM’s leader Mr. Altaf Hussain sacrificed his party’s interest in lieu of the sensitive national security situation, the perils that democracy is facing today and for its survival in Pakistan. But is that what Mr. Ansar Abbasi would like to see that we put the entire country at stake for one person’s ego arrogance and his employment? Would MR Ansar Abbasi like to sacrifice the entire country, throw democracy in tailspin and put it to the torment of long marches, shutter-down strikes, chaos and lawlessness in these perilous times? Is MR Ansar Abbasi ready to back a long march and sit-downs that aims to destabilize the elected parliaments and to rock democracy’s boat and only to lead to have it trampled under some new dictator’s boots?

Mr. Ansar Abbasi and his confidantes and like minded friends will for the sake of democracy have to select between an individual and our country’s democratic system. Is Mr. Abbasi he ready to do it?
yasserlatifhamdani says:

March 19, 2009 at 12:08 pm

I quote here the view of a famous Indian political scientist V D Mahajan from his book “select modern governments” page 674-675 (the publication year is 1992 when 58 2 B was in force – it was first repealed in 1998) :

“In performance of his functions, the President shall act on and in accordance with the advice of the Prime Minister and such advice shall be binding on him”

“The executive authority of the Federation of Pakistan shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the federal Ministers, which shall act through the Prime Minister who shall be the Chief Executive of the federation. In the performance of his functions, the Prime Minister may act either directly or through the Federal Ministers. “

This was the position while the so called “safety valve” of 58 2 B existed in 1992
yasserlatifhamdani says:

March 19, 2009 at 12:32 pm

Interestingly – I found a judgement PLD 1997 LHC 263 Tanveer A Qureshi v. the President of Pakistan …. says that President only becomes the “head of the government” once a government has been dismissed/dissolved (whether under 58 2 B or and a caretaker prime minister hasn’t been appointed) … or else the President remains only the head of state. The judgement it must be remembered came in the aftermath of president Leghari’s dismissal of the second Benazir Bhutto government in 1996.

The attorney general had infact taken the position that Pakistan’s system had turned into a presidential system…

I think… it is settled… the Indian scholar V D Mahajan was right and it is settled law that the Prime Minister of Pakistan is the Chief Executive… and the president is the head of state who has the power to dismiss the head of government/chief executive.

I think Justice Saeeduzzaman Siddiqui said it best in 1997 SC 84 … when he said the nature of government depended on the scheme of the constitution and not the distribution of powers between “Prime Minister as Chief Executive” and “President as Head of State”. Thus Pakistan’s retains parliamentary form… so long as parliament is sovereign… and consequently it is the PM who remains Head of Government … despite the President’s power to dismiss him.

In wake of such settled law…. all the arguments by Hades mian and Ravi mian are merely their mistaken notions of what constitutes an executive.
Deal Deadlock: Zardari Says No | Madiha R. Tahir says:

June 14, 2009 at 6:02 am

[...] Hopes were high, and intense efforts were underway for the last three days to broker the deal with the various parties urging Gilani to persuade the president. General Kayani met with the Prime Minister on Thursday to discuss the new arrangements. US special envoy Richard Holbrooke had also encouraged accomodation in talks with Zardari and Gilani while US Ambassador to Pakistan, Anne Patterson reached out to Nawaz Sharif on Wednesday. [...]
Aslam says:

February 28, 2011 at 4:44 pm

http://www.express.com.pk/epaper/PoPupwindow.aspx?newsID=1101060275&Issue=NP_LHE&Date=20100925