Pakistan SC: Paving the way for military rule?
"Let the Judges also remember that Solomon's throne was supported by lions on both sides: let them be lions, but yet lions under the throne." (Francis Bacon)
When a Judge who is appointed and not elected, assumes the role of a judge, jury and executioner, it poses serious problems. Thomas Jefferson declared: "The exemption of the judges from that [elections] is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves."
The Chief Justice of Pakistan Justice Iftikhar Mohammad Chaudhry has set a date of July 25 for the new Prime Minister of Pakistan Raja Parvez Ashraf to write a letter to the Swiss authorities in order to re-open corruption cases against President Asif Ali Zardari. Pakistan had plunged into a spell of political uncertainty on 19th June after Justice Chaudhry ruled that Prime Minister Yousuf Raza Gilani stood disqualified since his conviction for contempt and asked President Asif Ali Zardari to appoint a new premier. A three-judge bench headed by Chief Justice Iftikhar Chaudhry issued the verdict in response to several petitions that had challenged National Assembly Speaker Fehmida Mirza's decision not to disqualify Gilani following his conviction nearly two months ago. The bench further held that the post of premier had been vacant since April 26, when another seven-judge bench had convicted Gilani of contempt for refusing to reopen graft cases in Switzerland against President Zardari. The bench directed the election commission to issue a notification stating that Gilani, 60, was no longer a member of parliament.
The judiciary and the government have been in an eyeball-to-eyeball confrontation since December 2009, when the Supreme Court annulled a graft amnesty issued by Pervez Musharraf that apparently benefited Zardari besides some 8,000 others. The Court has since been pressuring the government to reopen the corruption cases against Zardari.
The President of Pakistan enjoys absolute immunity from criminal prosecution under Article 248(2) of the Constitution: "No criminal proceedings whatsoever shall be instituted or continued against the President ... in any court during his term of office."
Naturally, Justice Chaudhry has been criticised by the incumbent regime of being selective in the cases he pursues. President Zardari has personally accused him of relentlessly pursuing the government in relation to contempt of court proceedings against Prime Minister Yousuf Raza Gilani - while going slow in pursuit of the killers of his wife, Benazir Bhutto, in 2007. The Supreme Court of Pakistan has historically given legitimacy to military coups and is also said to be dragging its feet over corruption allegations against the intelligence services while doggedly pursuing different corruption cases against the government and for this reason enjoys the tacit support of the military, which has been happy to let it do the work of challenging the government. Despite enjoying the support of lawyers across the country, the Chief Justice has been accused by legal experts of acting in a biased manner against the ruling Pakistan People's Party and especially President Zardari.
Justice Chaudhry's past record indicates a marked preference for military rule - he sat on four pivotal Supreme Court benches between 2000 and 2005 that validated the military takeover by Gen Musharraf, his referendum, his legal framework order (LFO) and the 17th constitutional amendment that gave the president additional powers and allowed him to continue as the army chief. Justice Chaudhry became the country's youngest Chief Justice on 29 July 2004 and retires on 11 December 2013.
If Justice Chaudhry is breathing down the neck of Asif Ali Zardari, there are many similarities too between them, just as between him and Nawaz Sharif. Similar to President Asif Ali Zardari and opposition leader Nawaz Sharif - imprisoned and self-exiled respectively in the course of their careers - Justice Chaudhry made a dramatic return to his position as the country's top judicial job in 2009 after being sacked unceremoniously a couple of years earlier by President Musharraf. His reinstatement followed a long series of street marches in which thousands of people, including lawyers, marched around the nation ultimately leading to the Gen Musharraf's ouster.
In a phenomenal anti-climax, Justice Chaudhry recently issued notice to his son, Dr Arsalan Iftikhar, to probe allegations that he had recieved an amount of Rs 400 million in order to influence his father. Notices were issued also to Pakistani business tycoon, Malik Riaz Hussain, and Attorney General of Pakistan Irfan Qadir. Strangely, without recusing himself, CJP Iftikhar alongwith Justice Khilji Arif Hussain and Justice Jawwad S Khawaja is set to hear the case.
Dr Arsalan Iftikhar is said to have received millions of rupees plus sponsored foreign trips during 2009, 2010 and 2011 to London, with credit cards to be used abroad for him and his family from a famous business tycoon of Pakistan, Malik Riaz. With luxury flats in London, hotels in Park Lane and gambling debts in Monte Carlo thrown in, Malik Riaz, one of Pakistan's richest men delineated as to how he bankrolled a playboy lifestyle for the son of the country's Chief Justice. Dr Arsalan Iftikhar had allegedly promised to influence his father's rulings. According to the receipts set out in the 83-page document, the property developer showered gifts and cash worth more than £ 2m on Chaudhry, a 32-year-old businessman.
The document shows that on the first trip, in the summer of 2010, a three-bedroom flat was rented in Portman Square for a month for £ 40,000, and a luxury Range Rover was hired for transport around town. The party also made a four-day side-trip to Monte Carlo where Iftikhar gambled in the casino of the Hotel de Paris, losing his wealthy benefactor € 10,000 in cash. Trips the following year included stays at a luxury hotel and a flat off Park Lane costing £ 4,000 a week. During a chaotic press conference it was said that the chief justice had been warned of his son's activities more than six months previously, but nothing was done. More revelations are bound to follow.
The court deposition suggests that the benefactors of Dr Arsalan Iftikar were disappointed that he failed to get rid of their legal problems through his largesse. "I did not get any relief whatsoever in the cases pending before this august court, contrary to the assurances and promises made by Arsalan," they said during a Press Conference. Predictably, Mr Chaudhry's fellow judges are trying to silence the accuser by initiating contempt proceedings against him, a favorite tool of the current serving judges of the highest court in Pakistan to chill dissent. Chaudhry supporters are in denial, they are crying "conspiracy" to try and absolve him of a very serious lapse Justice Chaudhry's failure to act when he first learned about his son's corruption charges six months ago!
In Pakistan, from time to time, bitter power struggles occur between Pakistan's institutions of state. This in-fighting between Pakistan's various institutions of state has destabilized the country's delicately balanced democratic set-up, giving the military an upper-hand in the scheme of things. In this case, the power struggle has been initiated by the Judiciary. If this scenario persists, the military is bound to step in in the "national interest to stop the slide into anarchy" which it has done three times in the past. Or is this exactly the prescription the Supreme Court has in mind for Pakistan?
More about Brijesh KalappaBrijesh Kalappa, an advocate in the Supreme Court, is the Additional Advocate General, Haryana. A former journalist, he has a wide range of interests including reading and travelling. He has worked with several legal luminaries on subjects of importance in civil, criminal, water and electoral laws and has individually represented governments, eminent individuals and major industrial houses. Gifted with the prowess for distinctive sharp-edged analysis, he has been working closely with several leaders of the Indian National Congress.
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