Restoration of CJ Iftikhar Imminent: Sources

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.

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54 Comments

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54 responses to “Restoration of CJ Iftikhar Imminent: Sources

  1. Anwar

    So during the next 24 hours something “acceptable” will emerge? I am not so sure about the reinstatement of CJ –

  2. PMA

    Disclaimer by PTH is fine but who is the ‘claimer’ of this ‘breaking’ news?

  3. yasserlatifhamdani

    Sources

  4. aliarqam

    One who have gone by saying
    NO……to the COAS
    Will come with the YES
    of A COAS
    Democracy Won…..
    Be Ready to Celiberate
    Basant K sath Eik Celiberation FREE….

  5. Anwar

    Similar optimism is expressed on http://pakistanpolicy.com/

  6. YLH

    I see the opponents of the lawyers’ movement are now finding it hard to save face.

    Well here is the news- I confirm at this time that there is a very strong chance the Prime Minister of Pakistan will address the nation announcing the immediate restoration of CJP Chaudhry Iftikhar and the end to the unconstitutional governor rule in Punjab.

  7. Ravi

    The Pakistan Army is stepping in to save democracy in Pakistan!

    What a bloody joke! Anyways, lets hope you guys can work something out for your country’s sake.

  8. Milind Kher

    If CJ Iftikhar is reinstated, I reiterate that it would be a great thing for democracy.

    However, it is something that is bound to make Zardari nervous. He is in bad shape and will rapidly need to mend fences with all the people he has fallen out with.

  9. YLH

    Aww Ravi…you wanted more chaos and now you are disappointed. It is alright.

    If you had been more aware, you would know that an army that refuses to take over and backs the chief executive of the country ie Prime Minister …it would be the army fulfilling its role as force subordinate to the elected chief executive of the country.

    It is a positive thing.

  10. alok

    Is this Iftikaar fellow really clean or he just became a hero overnight because of opposing musharraf? I have no clues someone pls enlighten me….on the face of it….he does not seem ‘dudh ka dhula’

  11. ravi

    @ylh – it doesn’t matter what I wanted, but for the record I am happy that Pakistan is developing somewhat of a fledgling democratic spirit.

    //the chief executive of the country ie Prime Minister //

    I wonder who exactly is the chief executive of your country under the present system. Legally I think its Zaradri but then ‘legally’ is not a term that would be of much relevance now would it?

  12. ravi

    Oh and to add to the irony I see ‘foreign powers’ are also working hard to try and restore people power to Pakistan. Maybe they are also being subservient to Pakistan’s Chief executive. 😛

  13. ravi

    My god I can scarcely imagine the stuff Manto would have churned out if he was alive today.

    Of course there’s a good chance that he would not have allowed to write or plain killed under some Islamic law.

  14. YLH

    It is the army that seems to have a developed a democratic spirit because the people of Pakistan have always wanted democracy and have expressed it through out …when they came out to support Fatima Jinnah against Ayub, when they threw out Ayub, when they fought zia’s dictatorship, when they drove out Musharraf.

    As for who is the chief executive…constitutionally that remains the PM…

    As for “foreign powers” …you Indians are just too funny. I am privy to the ins and outs of this deal…the foreign powers have had no real role except their concern about the war on terror that is going on at our border.

  15. YLH

    There are many writers in Pakistan who have written stuff of the kind Manto wrote…if anything, Manto is more widely available today and more widely read then he was then.

    Saadat Hassan Manto’s nephew, the great leftist Abid Hassan Manto is one of the leading lights of this movement. His son

    though perhaps not as eloquently. So your little superiority-laden comment is just that – of a sarial(burnt) bigoted Indian who is suddenly upset that things might not go the way he was gleefuly expecting them to go.

  16. ravi

    Yup, exrtemely democratic people. Being ruled by dictators and such is of course bad luck.

    //As for who is the chief executive…constitutionally that remains the PM…//

    I think your wrong. Zaradri with his powers can dismiss your parliament thus putting the PM out of a job, legally speaking.

    Again as I said earlier, ‘legally’ is not very relevant here.

  17. ravi

    Yes, everything is quite hunky dory. As it is poor Manto spent half his life in Pakistan in courts and such and today he would have been feted is it?

    You make it seem as if Pakistan has progressed in the last 60 years!

  18. Shaistapth

    It’s a report from Rauf Klasra….No valid sources…seems to me like one of the rubbish as of saleh Zafar about Musharraf arrest and plane ready to take off to get him out of the country…
    Just sensationalism

  19. YLH

    Ravi,

    Constitutional definition of chief executive is not about who can dismiss him but on whose advice the President acts … and who heads the cabinet…

    The difference between authority to dismiss and the power to act determines who the chief executive is.

    Constitutional conventions all dictate that wherever presidential action occurs in the constitution, it is subject to premier’s advice. This is a supreme court judgment.

  20. Hades

    What you say goes for a classical parliamentary democracy. Unfortunately, the current powers of the prez of pak are not those of a say the prez of India, whose role is largely ceremonial.

    He can dismiss parliament on his own without waiting for the advice of his ministers. Zaradri came to power promising to abplish these very powers but he didn’t. So all said and done the prez is, legally, yr CE. Please try and understand that.

  21. YLH

    Ravi,

    “Half his life”

    I am beginning to think that you are merely name dropping because had you known a thing or two about Manto…you would know that he died in 1955 and had moved to Lahore in 1947 …that is a period of 8 years in which he went to court in only one case and was acquitted I think.
    Most of his life was spent in Amritsar and Bombay till 1947…and most of the cases he faced were by British authorities.

    I spent my childhood playing in the same building in Lakshmi Mansions in Lahore where Manto lived for most his time in Pakistan and where his daughter still lives.

  22. ravi

    //So all said and done the prez is, legally, yr CE. Please try and understand that.//

    I agree

    “Half his life in Pakistan”–half his life post ’47.

  23. Hades

    Unlike you I spent my childhood playing in the same building in Lakshmi Mansions in Lahore where Manto lived for most his time in Pakistan and where his daughter still lives.

    Seriously? That is pretty cool.

    I’ve read most of his stuff but in English. If only they had audio books in Urdu/Hindi.

  24. YLH

    Hades mian,

    So you are a constitutional expert now?

    Mian try and be humble. The fact that the president can dismiss the cabinet is a problem because president is not the chief executive…hence such an action harms democracy. If the president was the chief exec, there would be no problem.

    Constitutionally the chief executive is the PM under the Pakistan constitution and not the president which is why the whole 58 2b is a problem…

    When Mush took over in 1999 he took the title of chief exec and kept the president for a year for the same reason. From 1999 to 2002 musharraf had two hats pres and chief exec. It is this separation that is an accepted principle which is why presidential power to dismiss the assembly is considered wrong and undemocratic.

  25. YLH

    Ravi

    “Half life post 1947”

    Try again maybe you can modify the statement even further… Manto did not spend 4 years in courts post Pakistan. His total court appearances would be less than 10 days.

    And as for your “agreement” with hades mian…this is a case of blind leading the blind.

    I wonder why you Indians act the way you do… Must be some very deep seated inferiority complex I must say.

  26. Hades

    Yasser/Ravi,

    Btw, how do you define CE?

  27. YLH

    Oh mian…it doesn’t matter how ravi mian from bumblefck india or I define chief exec… It has a constitutional legal definition.

  28. Hades

    Yasser,

    See, correct me if I’m wrong but what I understand of the term id the person who controls the executive. If the PM can be dismissed by the prez then we all know who’s boss and therefore who controls the executive.

    However, I agree with the fact that this is not the correct way and the current system is just a perversion which, if this article is to be believed, will be set right.

    Hades

  29. ravi

    //I wonder why you Indians act the way you do… Must be some very deep seated inferiority complex I must say.

    yes very deep seated. we feel inferior about having a failed state like pakistan as a neighbour!!!

  30. YLH

    Ravi,

    Well no need to get all cheeky…especially when you come the poverty stricken ghetto that is India.

    Now think about it… How many Pakistanis do you think are trying to prove their superiority on Indian sites right now? I would say zero.

    Meanwhile you are up in the middle of the night trying to prove your superiority on the basis of some imagined achievements of your country- I’d say we can all see who has the inferiority complex. Get a life loser.

    Hades,

    Chief Executive is that person on whose advice the president is required to act- as in sign bills etc. This is usually the first amongst the cabinet members.
    Look … the executive authority flows from/vested in the head of state – in case of Britain the Queen but it is actually vested in the prime minister. Queen can remove the PM under the unwritten British constitution but she doesn’t because it is against convention.
    In Pakistan’s case, it is similarly vested in the PM…and president has the authority to remove him except that there is no real convention to stop him primarily because 58 2 B was introduced under military rule.

    The problem with Pakistan is that the head of state can remove the chief executive at his whim and that creates a power imbalance.

  31. YLH

    To give a corporate law example…the cabinet and CE are like BOD and CEO…

    A president is equivalent not to the CEO but the chairman who doesn’t act but is a symbol of the shareholders in this case the federation.

  32. Hades

    Chief Executive is that person on whose advice the president is required to act- as in sign bills etc

    Now isn’t that isn’t a very narrow definition? Anyways…

    In Pakistan’s case, it is vested in the PM…and president has the power to remove him except that there is no real convention to stop him primarily because 58 2 B was introduced under military rule.

    Yes, but written constitutions based on the Westminster model do have safeguards for that sort of thing. They don’t depend on convention as Britain does. Again, for example, the Indian constitution makes it clear that the President shall only dismiss Parliament on the advice of his ministers.

    I still think that under the current Pak system the prez is the head of govt (and not just head of state) just on the basis of the fact that he can dismiss the govt.

    Hades

  33. Hades

    Yes, all that’s tickety-boo but your analogy describes the situations as is should be, not as it is.

    In the present scheme of things, the Prez is the CEO.

    Hades

  34. YLH

    I am well aware that you keep arguing in circles after you’ve realized you are wrong.

    Had you considered or had enough understanding of what I had written you would see that the definition I have given is too broad not too narrow.

    The head of government under the Pakistani constitution is the Prime Minister… not the president. This is why presidential power to dismiss the prime minister is considered undemocratic. Do you want to go in another loop?

  35. YLH

    We are discussing where the constitution stands on this issue. If Zardari derives some other status as the head of the PPP …well then that is a different story.

    Indeed that just condones presidential powers whereas I am saying that presidential powers are in contradiction to democratic norms because under the constitution the Chief Exec is the PM and to give the pres unbridled power to dismiss the PM creates a situation where head of state can infringe upon the business of the head of govt in a negative (not positive) way…

  36. Hades

    Yasser,

    No, I said its too narrow because, for one its a very procedural definition and because of that it fails when applied to any other system—say a presidential system.

    The head of government under the Pakistani constitution is the Prime Minister… not the president. This is why presidential power to dismiss the prime minister is considered undemocratic. Do you want to go in another loop?

    Yes, please.

    If the head of the govt under the present system is the PM pray tell me from where does the Prez derive this ‘power’ to dismiss the PM?

    Heads of states can never dismiss heads of govt.

    Hades

  37. Hades

    Yasser,

    So, basically what you are saying is that the prez powers are derived from Zaradri’s own unique position (head of ruling party) and are are not legally enshrined?

    Hades

  38. YLH

    In so far as presidential powers to dismiss the assembly are concerned… they are enshrined in the constitution but are 1. undemocratic and 2. not enough to establish the president as the head of government.

    However Zardari has acted like the executive and that is entirely due to his position as the head of the PPP.

    Now I can quote several precedents from the Supreme Court which show that wherever “president” occurs in the constitution in terms of an action other than 58 2b, premier’s advice becomes mandatory… but let us forget those precedents because I know the stock Indian answer to that even though, once the SC says something it becomes the law… however tainted the Supreme Court.

  39. YLH

    “head of states never dismiss head of gov”

    Precisely the problem with 58 2 B. On the other hand if the president was the chief executive, there would be no head of gov and dismissal would not be an issue.

  40. Monkey

    Anything that puts an end to this and lets people to FINALLY move on from Mush-Ifti-military-lawyers-PMLN-governor rule etc would be a big relief.

    Congratulations to the lawyers if they can, indeed, pull it off. This should go in the history of Pakistan as a glorious victory – not the fact that CJ Iftikhar was reinstated (for me, he is more or less as preferable as Dogar) but the fact that the lawyers/supporters were so steadfast in their struggle. Sends out a clear msg: the people of Pakistan will no longer stay put and accept a dictatorship.

  41. stuka

    I have one question to which I have not found an answer yet.

    In 1999, when Musharraf took power, there were a number of Supreme Court judges who refused to sanctify his coup under “Doctrine of Necessity”. These judges were removed by Musharraf. Other more compliant judges agreed and they stayed on. Chaudhry was one of them.

    If the objective is to gain an untainted judiciary, would it not follow that the justices of 1999 be restored?

  42. PMA

    I see non-Pakistanis–read Hindu Indians–on this board making stupid remarks and commenting about political developments in Pakistan they know nothing about. What a sick obsession.

  43. Anwar

    Stuka has a point – any thoughts? Why just hyper focus on CJ’s reinstatement..?

  44. yasserlatifhamdani

    Stuka,

    The answer to that is that in 2004 the parliament passed what is known as the 17th Amendment (same amendment through which article 58 (2) b giving the president the power to dismiss NA was re-introduced in the constitution) which gave ratified and indemnified all of Mush’s actions from 1999-2004… after which the judges took a fresh oath under the constitution of 1973.

    Thus CJP was in 2007 the legitimate CJP under the constitution of Pakistan when he was removed and then reinstated through Supreme Court’s decision in the summer of 2007…

    On Nov. 3, Mush imposed what he called “emergency”… except under constitutional emergency SC can’t be dismissed… but Mush imposed the “emergency” as the Chief of Army Staff not the President of Pakistan. On the same day CJP and his fellow justices ruled that the emergency was unconstitutional, illegal and unlawful… but Mush sent them packing and introduced a fresh PCO which sought to govern the country as closely as possible the constitution.

    Before Mush reinstated the constitution … he added what is known as Article 270 AAA to the constitution and reaffirmed it as well… now herein lies the fundamental issue: law in any theory is the general command of the sovereign and the sovereign is derived from sanctioning power… if the CJP is not restored and Mush’s actions on Nov 3rd 2007 are not undone … it would mean 270 AAA becomes the part of the constitution (which is illegal anyway)….

    Now the issue is not about CJP as much as to reverse the illegality of Nov 3rd… and how we would want to determine the very issue of “sovereign” and “legal force”.

  45. yasserlatifhamdani

    PMA…

    you’ve no idea. This Hades fellow sent me an email saying that I “ought to read 52 B” (58 2B which I have already explained is an undemocratic addition precisely because President is not the head of gov and has no business dismissing govts) which would lay to rest the issue of “head of state” and “head of govt”. The obsession you speak of runs deep. And it makes them act in ways that are just so damned undignified.

  46. lal

    Todays HINDU economics
    Tea Board Chairman Basudeb Banerjee told The Hindu that Pakistan’s tea imports from India in 2008 was being estimated at 7.67 million kg as compared to 5.5 million kg in 2007. Indications are that the upward trend in exports from India to its troubled neighbour, has been maintained so far this year too although official figures are likely to be available later. A target of 10 million kg has been fixed for this year. Between January and November 2008, exports to Pakistan touched 6.52 million kg valued at Rs. 48.65 crore as compared to 4.73 million kg valued at Rs. 51.30 crore in the same period in 2007.

    We r just checking in to see how u like our tea,YLH 🙂

  47. YLH

    Hai lal mian… You Indians and the way you always have to try and prove an esoteric point.

    Why don’t you guys get off your psychology now.

  48. Pingback: Deal Deadlock: Zardari Says No « Action for a Progressive Pakistan

  49. Pingback: Deal Deadlock: Zardari Says No « the mob and the multitude

  50. @Ravi – Here we have our friends from across the border jumping into issues they hardly knwo much about. Sadly, the more i have come across the Indians the more i have found them to be narrow minded and prejudiced. I do not rejoice at this – makes me feel pessimistic about Indo- Pak relations.

    @YLH – Kudos!! Eloquent as ever..

  51. Owaiz Bukhari

    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?

  52. yasserlatifhamdani

    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

  53. yasserlatifhamdani

    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.

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