lawyers’ movement

For two days the Pakistani channels are boring us with their never ending lectures and news reports about the 6th anniversary of the so-called “lawyers’ movement.” Their narrative can be summed up as follows: the one “no” of Iftikhar Chaudhry (err…”no” to what?) opened up the eyes of the Pakistani civil society and that the people were motivated when they saw a judge bravely standing up against an “Aamir.” This judge, they claim, was then vindicated in the court.

The above is a false narrative. The fact is that the so-called “lawyers’ movement” pretty much halted Pakistan’s development and produced the most politically compromised judiciary in Pakistan’s history. Moreover, it led to the restoration of Iftikhar Chaudhry as Chief Justice – a man against whom a detailed reference of corruption and misuse of power was submitted. The charges against him were never investigated and the reference against Iftikhar Chaudhry was merely dismissed. Neither is it true that the “masses” – the ordinary people – came out to support Iftikhar Chaudhry in the lawyers’ movement. Instead, Generally speaking, life went along as usual and only lawyers (not all) and, mainly, members of the corrupt political parties took to the streets. Remember also that on MQM’s call, many thousands also came out on the streets to protest against Nawaz Sharif’s confrontational style of politics.

The below is a summary of the main points so that you are able to discuss this issue whenever it is raised.

The main points and issues have been categorised and every section has been kept short so you can process the relevant details with ease.

1. The Reference against Iftikhar Chaudhry – Did Pervez Musharraf Act Illegally? 

2. The 2007 Emergency – Background

3. Constitutional Legitimacy of the 2007 Emergency

4. Iftikhar Chaudhry’s Background

5. Reference of Misconduct Against Iftikhar Chaudhry

6. Violation of Charter of Democracy by PPPP & PML-N

7. Nawaz Sharif’s Attack upon the Supreme Court

 

1. The Reference against Iftikhar Chaudhry – Did Pervez Musharraf Act Illegally? 

President Musharraf did not out of thin air invent the wide-ranging charges of gross misconduct against Iftikhar Chaudhry. Instead, the charges were levelled against Chaudhry by others and Pervez Musharraf merely forwarded them to the Supreme Judicial Council for an investigation once he received the reference from the Prime Minister. Here Pervez Musharraf simply followed the rules.

Thus, it was the job of the Supreme Judicial Council to conduct an investigation and to then decide whether Iftikhar Chaudhry was guilty or innocent. That’s all. Absolutely nothing “illegal” was committed by Pervez Musharraf in this instance.

That Pervez Musharraf correctly followed the guidelines is confirmed by the website of the Supreme Court of Pakistan, where we read [http://www.supremecourt.gov.pk/web/page.asp?id=335]:

On a reference received from the President, the Supreme Judicial Council investigates the matter and presents its finding to the President. If the council decides that the Judge is incapable of performing the duties of office or is guilty of misconduct, and therefore should be removed from office, the President may order the removal of such judge. A judge may not be removed from service except on the specified grounds and subject to the prescribed procedure.

Pervez Musharraf did precisely the above. Unfortunately, the Supreme Judicial Council dismissed the petition based on a technicality and did not bother to investigate the wide-ranging charges of gross misconduct against Iftikhar Chaudhry.

Moreover, consider the Constitution:

………………………………………………………………………………………………………..

Article 209

(1) There shall be a Supreme Judicial Council of Pakistan, in this Chapter referred to as the Council.

(5) If, on information [from any source, the Council or] the President is of the opinion that a Judge of the Supreme Court or of a High Court,

(a) May be incapable of properly performing the duties of his office be reason of physical or mental incapacity; or

(b) May have been guilty of misconduct,

The President shall direct the Council to [or the Council may, on its own motion] inquire into the matter.

………………………………………………………………………………………………………..

Article 180

At any time when-

(a) The office of Chief justice is vacant; or

(b) The Chief justice of Pakistan is absent or unable to perform the functions of his office due to any other cause,

The President shall appoint [the most senior of the other judges of the Supreme Court] to act as Chief justice of Pakistan.

………………………………………………………………………………………………………..

Therefore, President Musharraf simply followed the constitutional route.

2. The 2007 Emergency – Background

The Emergency imposed in Pakistan in March 2007 was perfectly legal. In certain situations, Emergency can be legitimately imposed to bring order to chaos and anarchy (see #3 below).

The background to the Emergency

Pervez Musharraf contested for the Presidency in 2007, when he was still the Army Chief. Therefore, objections were raised a) over his re-election in uniform and b) the fact that an Assembly reaching its end was electing the President for five years (elections took place on October 2007 whereas the Assemblies were to be dissolved in November). Petitions were submitted to the court to resolve this dilemma. The Supreme Court rejected the petitions and permitted President Musharraf to contest the elections, although barring the Election Commissioner from officially declaring a winner until it made its final decision. The Supreme Court now began hearing the case of President Musharraf’s eligibility as a candidate.

Notice here that the Supreme Court was in violation of the Constitution. The Supreme Court had no mandate to question the Presidential elections. According to Article 41 (Clause 6) of the Constitution of Pakistan, “The validity of election of the President shall not be called in question by or before any court or other authority.”

Bear in mind that President Musharraf was elected President of Pakistan, on 6th October 2007, by a combined electoral of the Senate, National Assembly and the FOUR Provincial Assemblies, acquiring 57% of the votes.

The court ordered that the election result would not be announced till the final decision was made on the basis of the hearing of the arguments from both sides i.e., Government and the petitioner. So even though Pervez Musharraf won the majority votes, the official declaration of the result was not made following the order of the Court.

The Supreme Court was desperately delaying the decision – the Assemblies were going to dissolve by November 2007 for the set-up of a caretaker government before the general elections of 2008.

The Supreme Court’s delaying tactics:

  •  Iftikhar Chaudhry changed the composition of the bench thrice – seven member bench, then nine and then eleven member bench;
  • One of the members of the bench applied for 10 days leave to attend the wedding of his daughter;

In short, Iftikhar Chaudhry was playing a game of nerves with Pervez Musharraf till the Assemblies were dissolved.

Realising that the court was just planning to announce an adverse decision against him, finally a daring decision was made and emergency was announced by Pervez Musharraf on 3rd November 2007 (Saturday).

This was a wonderful and glorious day for Pakistan. Besides the above, there were many other reasons for the Emergency. Actions taken by Iftikhar Chaudhry after his restoration paralysed the functioning of the government:

  • After few days of silence, Iftikhar Chaudhry began making personal bravado against President Musharraf, security agencies and intelligence agencies
  • A long list of suo moto actions were made every day to paralyse the functioning of executive, legislative and law enforcement agencies – all these suo moto cases were concerned with the executive, the government departments
  • Suo-moto action against the traffic jam in Karachi is just an example of the attitude of a person who has nothing better to do
  •  Iftikhar Chaudhry did not take any notice of the illegal activities of lawyers’ e.g.  beating of Naeem Bokhari and spraying of acid on Ahmed Raza Qasuri’s face
  •  He never took suo moto actions against those militants who were threatening the barber and CD shops.
  • Madaris involved in extremism and suspected of taking part in terrorist activities were re-opened
  •  61 terrorists who were declared black, meaning they were confirmed terrorists by the intelligence agencies, were released and were roaming around freely
  • He did not take notice of extremists who were blasting girls’ schools
  •  Iftikhar Chaudhry released Qari Abdul Basit, who was charged with the assassination attempt on President Musharraf

The above made it impossible for the government to function and carry out its day to day work. Terrorists were freely roaming around, the law and order situation was deteriorating, officers were constantly harassed and embarrassed in the courts, some were even suspended, and hundreds of suo moto actions were taken which made it impossible for the government to carry out even simple tasks. Moreover, investors were running away from Pakistan and the economy was again showing signs of going down the hill.

As a result, the Prime Minister wrote to President Musharraf and informed the latter that the government’s functioning in such circumstances was very difficult.

3. Constitutional Legitimacy of the 2007 Emergency

Pervez Musharraf did not impose temporary Emergency in Pakistan on his own or in a vacuum. Instead, it was the collective decision of all: the Armed Forces of Pakistan, the Pakistani government led by the Prime Minister, the ruling PML-Q party, Governors, Chief Ministers and the Parliament.

The Pakistani Constitution allows the President to impose Emergency in certain difficult circumstances.

…………………………………………………………………………………………………

Article 232 (1)

If the President is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency.

Article 270 AA (3)

All proclamations, President’s orders, Ordinances, Chief Executive’s orders, laws, regulations, enactments, including amendments in the Constitution, notifications, rules, orders or bye-laws enforce immediately before the date on the date which this Article comes into force shall continue in force until altered, repealed or altered by the competent authority.

…………………………………………………………………………………………………

There was no change in the government, Prime Minister, Governors, Chief Ministers, all continued to function, all assemblies — Senate, National Assembly, Provincial Assemblies — continued to function.

On 15 Feb 2008, a detailed Supreme Court judgement came, following its earlier short pronouncement of 24 November 2007, validating the proclamation of emergency of 3rd Nov 2007, PCO 2007 and oath of the judges. This full court judgment was written by Chief Justice Abdul Hameed Dogar.

http://archive.thenews.com.pk/TodaysPrintDetail.aspx?ID=11343&Cat=13&dt=11/27/2007

4. Iftikhar Chaudhry’s Background

As for those who regard Iftikhar Chaudhry a “hero,” they conveniently forget that Iftikhar Chaudhry was one of the judges who:

1. Legitimized Mr. Musharraf’s (rightful) takeover of the Government under the “doctrine of necessity.”

2. Was among the first judges to take an oath on the PCO in January 2000.

3. In April 13 2005, in the “Judgment on 17th Amendment and President’s Uniform Case, Justice Iftikhar Chaudhry was one of 5 Supreme Court judges who dismissed all petitions challenging President Musharraf’s constitutional amendmentsIn a wide ranging judgment, they declared that the Legal Framework Order (LFO) instituted by General Musharraf after his suspension of the constitution, the 17th amendment which gave this constitutional backing, and the two offices bill which allowed Pervez Musharraf to retain his military uniform whilst being President were all legal.

His falling out with President Musharraf occurred only in 2007, when a reference against him (Iftikhar Chaudhry) was legitimately forwarded to the Supreme Judicial Council for investigation.

5. Reference of Misconduct Against Iftikhar Chaudhry

 

Let us also bear in mind that the serious charges levelled upon Iftikhar Chaudhry in the Presidential Reference were never examined to begin with! Was it not the duty of the judges to investigate them with seriousness?

Please read the detailed charges against Iftikhar Chaudhry in the Presidential Reference below:

Text of the Presidential Reference against CJ – http://web.archive.org/web/20071031130930/http://dawn.com/2007/03/21/nat2.htm

Ask yourself if you feel comfortable having such a shoddy fellow as your Chief Justice.

6. Violation of Charter of Democracy by PPPP & PML-N

The PML-N and PPPP blatantly contradicted the chief requirement of their own signed document, the so-called “Charter of Democracy” (signed by the late Benazir Bhutto and Nawaz Sharif), which states (emphasis added):

“3. (a) 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.

ii. The members of the commission shall be the chief justices of the provincial high courts who have not taken oath under the PCO, failing which the senior most judge of that high court who has not taken oath shall be the member”

http://web.archive.org/web/20071210032448/http://www.dawn.com/2006/05/16/local23.htm

But lo and behold: Iftikhar Chaudhry is a PCO judge! Despite the best effort of many PML-N politicians, no amount of creative eisigesis can work here. The “Charter of Democracy” calls for the appointment of judges who have never taken an oath under the PCO. This includes Iftikhar Chaudhry. The Charter does not allow for a “second chance” for a PCO judge who, for whatever reason, expresses a sudden “change of heart” and “remorse” over their previous conduct. Iftikhar Chaudhry cannot be an exception. Therefore, the restoration of the PCO judge Iftikhar Chaudhry stands as a gross violation of the “Charter of Democracy.”

7. Nawaz Sharif’s Attack upon the Supreme Court

 

The main force behind the “lawyers’ movement” was Nawaz Sharif. Nawaz Sharif is quite fond of talking about the “freedom of judiciary” and about “punishing” those who interfered with the courts. The phenomenal level of his hypocrisy can be gauged from the fact that he is well-known for ordering a physical attack upon the Supreme Court in 1997 when he was Prime Minister. Nawaz Sharif ordered his thugs to attack the Supreme Court because he feared that the judgment of the Chief Justice would almost certainly go against him. In order to have his way, besides physically attacking the court and the judges, Nawaz Sharif also bought judges to stand as an opposition to the then Chief Justice and to openly challenge the latter’s authority. Nawaz Sharif has yet to apologise for his deplorable treatment of the then Supreme Court.

A detailed account of Nawaz Sharif’s confrontation, harassment and attack upon the Supreme Court is provided by Farhan Aslam:

http://www.youtube.com/watch?feature=player_embedded&v=v-me8Wkmp-s#!

+++++++

For the above summary, I have been heavily reliant upon these sources:

Lawyers’ Movement-The other side of story – by Nayyar Afaq

http://longlivemusharraf.wordpress.com/2009/03/17/lawyers-movement-the-other-side-of-story-must-read/

President Musharraf’s Address to the Nation: Declaration of Emergency

http://presidentmusharraf.wordpress.com/2007/06/02/musharraf-3-nov-emergency/

Chronological record of events, that validates President Musharraf’s election as President and subsequent endorsements by Supreme Court – Afreen Baig

http://presidentmusharraf.wordpress.com/2009/02/01/musharraf-validity-by-supreme-court/

Regards

Usman Sheikh

Information Secretary APML-UK

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