Impeach Shaukat Aziz Siddiqui

UPDATE: The photo below has been reported to incorrectly identify Justice Shaukhat Aziz Siddiqui as the man kissing Mumtaz Qadri. According to report in DAWN, the man kissing Mumtaz Qadri is actually Advocate Yasir Shakeel. A lookalike of IHC Justice Shaukat Aziz Siddiqui.

Source: https://www.dawn.com/news/1159926

Justice Shaukat Aziz Mumtaz Qadri

Hazrat Ali (RA) famously stated that even a state based on kufr can survive, but a state based in injustice is doomed to fail. Recently we are seeing worrying signs that Pakistan is becoming a state of injustice. The most troubling of these, however, occurred only recently as Shaukat Aziz Siddiqui was appointed to Islamabad High Court.

Shaukat Aziz Siddiqui is an extremist ideologue who is out of touch with the Pakistani mainstream. In 2002 elections, he was awarded a ticket by extremist political party created by the ISI Muttahida Majlis–e–Amal whose leaders include Taliban supporters Samiul Haq and Munawar Hassan. Even then he was loudly rejected by the people receiving only 12,000 votes in NA-54.

In 2011, Shaukat Aziz Siddiqui openly celebrated the self-confessed murderer Mumtaz Qadri and was photographed kissing the killer in the streets. Let us not forget that Mumtaz Qadri confessed to the cold blooded murder of Salmaan Taseer, was convicted by the court, and sentenced to death as a cold blooded killer. Now the people are expected to walk into the Islamabad High Court and still believe that it is a place where the rule of law is respected?

There is a solution to this crisis. Article 209 of the Constitution allows Judges of a High Court to be removed if he is ‘incapable of performing the duties of his office or has been guilty of misconduct’. Shaukat Aziz Siddiqui’s misconduct is his public support for a self-confessed murderer, an act which makes him incapable of performing the duties of his office which includes in its oath the sworn duty to ‘in all circumstances…do right to all manner of people, according to law, without fear or favor, affection or ill-will’.

Through his public actions, Shaukat Aziz Siddiqui has proven himself incapable of performing the duties of a High Court Judge and should be removed from office immediately. Only then can we have faith that the Courts are actually Halls of Justice.

Supreme Irony

We are entering what promises to be an entertaining period in the history of the judiciary. The IHC has revoked Gen Musharraf’s bail and ordered his immediate arrest as the SC resumes treason hearings against the former dictator. This all sounds fairly straight forward, but as with so much in life, here too there is a twist.

The Supreme Court is considering charges of treason against Gen Musharraf due to his suspending the Constitution on 3rd November 2007. The question is an important one because it goes straight to the heart of whether Pakistan is a country of laws or a country of men. In other words, is the law supreme, or can a single man be considered as higher than even the Constitution itself? Do we have rule of law or not?

However important this question is, though, it is also curious in the way it is being addressed by the Court. After all, the 2007 PCO was not the only time that Gen Musharraf declared a state of emergency and suspended the Constitution. Actually, it was the second time. He did the same also in 1999 when he carried out a military coup d’etat against the democratically elected government of Nawaz Sharif.

So why is the SC only asking about the second and not the first act also? It might be because the first act received the help of some powerful people.

On 26th January 2000, all Supreme Court Justices were asked to take an Oath not under the Constitution, which was suspended, but under Musharraf’s Provisional Constitutional Order justifying his abeyance of the Constitution and swearing not to challenge his decisions as dictator. Six judges, including Chief Justice Saeeduzaman Siddiqi, refused to swear an oath to the dictator. These judges were quickly dismissed and replaced with others who were willing to allow the Constitution to be held in abeyance and the whims of a dictator to be made the supreme law.

Iftikhar Chaudhry and Gen Musharraf

In 2011, without a hint of irony, Chief Justice Iftikhar Chaudhry declared that “PCO judges do not have legitimacy and they could not claim themselves to be the judges of the superior courts”. Now the same Chief Justice is presiding over a Court that is considering whether suspending the Constitution itself is an act of treason.

A friend forwarded me another tale of judicial introspection, this one coming from a court in Michigan, USA. During a recent hearing, the judge accidentally poked a button on his phone causing it to start making noise. Known for strictly enforcing rules of etiquette in the courtroom by holding in contempt anyone whose phone interrupted a hearing, the judge was burning with embarrassment. But rather than threaten journalists for reporting anything that could embarrass the court, the judge did something extraordinary. He filed a Contempt of Court notice against himself!

Judge Voet, who is not only chief but the only district judge of Ionia, said he’s surprised by how much attention his story has gotten since the local Sentinel-Standard reported on it Friday. The self-flagellation was out of self-interest, he said: “It’s a small county. Your reputation is important. I wanted to make sure anyone who had a phone taken by me knew that I lived by the same rules.”

A judge who holds himself to the same rules as everyone else? How ironic.

Respect for Judiciary must be earned, not enforced

A lot of people have opinions about certain Articles of the Constitution, most of them not Constitutional scholars. That’s okay. It is a democracy and we are allowed to have our own opinions and honestly some of those with the most letters behind their name sometimes make the least sense. Most of the debate has been about Article 248 and whether its granting of immunity to the President requires interpretation. There is another Article of the Constitution that is equally controversial, though, and grants an even broader form of immunity but has not received the same level of scrutiny as Article 248, though it has, one can argue, had even greater effect on the government.

When the Prime Minister explained that the Law Ministry advised him that the president enjoys blanket immunity during his term in office under Article 248, Zardari haters in the media asked if this meant the president had ‘licence to kill’. More reasonable people suggested that being unambiguous does not make Article 248 uncontroversial.

Though the Constitution allows for immunity of a sitting head of state, the Court may want to reexamine this practice by looking to how this immunity violates other constitutional protections. However, the Court should defer to the elected branches and temper its activism to instances where the most fundamental constitutional rights are at risk.

After months of controversy and court orders, though, questions about Article 248 remain conveniently unanswered. Ironically, despite all the attention to Article 248, it was actually Article 204 that cost the Prime Minister his office.

Article 204 reads as follows:

204 Contempt of Court.
(1) In this Article, “Court” means the Supreme Court or a High Court.
(2) A Court shall have power to punish any person who,
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;
(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;
(c) does anything which tends to prejudice the determination of a matter pending before the Court; or
(d) does any other thing which, by law, constitutes contempt of the Court.
(3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court.

Let us, for the sake of argument, examine this article with the same logic used by opponents of the present government. If the Court can punish any person who disobeys any order of the Court, does that mean that Chief Justice can order the President to kill?

Okay, that was fun. But now for the sake of reason, let’s think about just how ambiguous Article 204 really is and whether such broad language is actually bad for the Court.

First, this article raises serious problems for separation of powers. Parliament is tasked with writing laws, the judiciary with interpreting them, and the executive with enforcing them. If one branch can compel another to do what it wants, though, then it creates redundancy. Why bother with an executive if the judiciary has the power to enforce its own decisions?

This might sound strange at first, but an important part of governing is prioritising. The Court will have certain priorities and these are reflected in the cases the Court chooses to take notice of. The executive has its own priorities, which may not be 100 per cent identical to the Court. These are reflected in its enforcement decisions. By separating these powers into two independent institutions, we make sure that no one institution has too much power.

It’s interesting that we come to the issue of power consolidation, because there is something of this reflected in 204(2)(b). Dictators – the greatest power consolidators of all – are infamous for demanding unquestioning fealty to their decisions. But there’s a difference between unquestioning fealty and credibility. People don’t respect dictators, they fear them. That won’t do for a court.

Some decisions of the Court will be controversial. If there was no controversy, there would be no need for a Court in the first place. But respect for the judiciary is not gained by threat of punishment, it is gained by providing well reasoned explanations for its decisions.

The former Prime Minister repeatedly said, “I respect the Court”. He appeared when called, he gave his arguments, and the Court punished him for ridicule – something the Prime Minister never did. Media are afraid to criticise the Court because the Chief Justice has sent a loud signal that he takes a very broad interpretation of Article 204 and that he will not hesitate to use it against even the most powerful if he doesn’t like what they have to say, and an army of black coats roam the streets threatening to enforce his rule.

By wielding the threat of contempt power so loosely, the Supreme Court may be asserting itself among institutions that have abused it in the past, but their Lordships should be careful that they do not become that which they aspire against – an institution seen as acting on politics and not principles, and thereby bringing the Court or a Judge of the Court into hatred, ridicule or contempt in the eyes of the public.

Events Highlight Need to Strengthen Civic Education

Mutalia PakistanOne issue highlighted by the Supreme Court’s disqualification of the Prime Minister is how many people don’t have a good understanding of how courts, parliament and the executive branch are supposed to function together. This is not to say that people don’t understand what is going on in the halls of power. Actually they understand this very well. But what is going on in the halls of power is reflects dysfunction, not the proper functioning of government.

This is not to say that we, the average citizens, are dysfunctional but only that our education system does not make a priority of these things. One of the reasons why we keep having such crises is because there is confusion and disagreement about the working of the governmental system because most people aren’t taught about these things early on in school. I vaguely remember just the one chapter of ‘parliamani nizam’ (parliamentary system) from my ‘Mutaliya Pakistan’ book from back in second year (12th grade). That too did not go deep enough into the matters of the constitution and separation of power principle or the effective working of these pillars of state (judiciary, legislative and executive branches). But even this is more information than many of our citizens will ever have about the way the government works!

I’ve seen people suggesting Supreme Court is supreme, and some saying Parliament is supreme but no one seems to suggest that it is the constitution which all of the pillars of state are trying to uphold. And that one institution does not need to be superior to the other or does not have to encroach its jurisdictional boundary as explained in the constitution, to do its job. All institutions need to work together to make an effective and working state.

Many people also seem to think that every institutions will naturally fight for supremacy. Partly this is because our history is filled with the eternal battle between military and civilian institutions. Today, the civilians are supreme and individuals favour one institution or another institution based on the need of the hour for their political party, not the good of society. For example, PML-N supporters opposed the judiciary to the point of storming the Supreme Court when it threatened Mian Nawaz, but today are supporting the judiciary because they think it will hurt the PPP.

Needless to say, various institutions within our system have also not been a paragon of how a democratic state institution should work and that has not helped the situation any, further playing into the hands of the media and its anchors who exploit these problems to advance their own fame and fortune as was recently exposed in plain sight.

The answer to this is strengthening civic education so that all citizens have a firm understanding of how the system is supposed to work. Everyone wants to strengthen rule of law, but first we must agree on what ‘rule of law’ means. Then it will become clear when individuals or institutions are acting improperly and will make it easier to hold them accountable.

Detailed Verdict Leaves More Questions Than Answers

Chief Justice Iftikhar ChaudhryThe Supreme Court’s detailed verdict, finally delivered almost two weeks after they gave a short opinion, is not likely to clear up any confusion about the legality of the contempt case against the Prime Minister or the Court’s desire to re-open money laundering cases in Swiss courts. If anything, the Court’s detailed verdict leaves more questions than it provides answers.

The Court readily admits that they were biased against the Prime Minister from the start. In Paragraph 27, the justices admit that they had already formed an opinion about the outcome of the case before arguments even began, but dismissed counsel’s argument that this deprived the Prime Minister of his right to a fair trial because they claim the opinion was “tentative”. The hearings were not to determine the Prime Minister’s guilt or innocence, but to give the Prime Minister an opportunity to change the justice’s pre-determined opinion. In other words, the Prime Minister was never given a trial at all. The court skipped straight to appeal.

Even this appeal, though, is questionable. According to Paragraph 47 of the detailed verdict, the prosecution concluded by submitting “that the evidence on record does not establish the charge of contempt” against the Prime Minister. This begs the question if the prosecution and the defence both submitted that the evidence does not establish the charge of contempt, how did the Justices come to the conclusion that it did? Did the Court decide that the prosecutor wasn’t prosecuting well enough, so they decided to act as both prosecutor and judge? How could this possibly be considered as a fair trial in accordance with Article 10A of the Constitution?

The most important question that remains unanswered, however, is an old one, but one that the detailed verdict makes ever more glaring: If the Supreme Court truly believes that the President was involved in money laundering and kickbacks that illegally deprived the state of official funds, why don’t they take suo motu action and open a case themselves? Why do they need the Swiss at all?

The Court, of course, refuses to answer this question just as they refuse to answer the question of whether Article 248 grants the President immunity during his term in office. They refuse to answer the question because they know the answer and it isn’t what they want to hear – Article 248 obviously grants the President immunity during his term in office, so they can’t open a case themselves without violating the Constitution.

In Paragraph 40 of the detailed verdict, the seven-member Bench “is in no position to examine the plea” that the Constitution provides the protection of immunity to the President. Why not? They do not explain. Perhaps it is because the obvious conclusion to such an examination would undermine their cause? It is notable that the Honourable Court refuses, once again, to acknowledge what is plainly written in the Constitution.

The Court then goes on in Paragraph 41 to claim that they cannot accept the Prime Minister’s plea to delay the writing of the letter until the President’s term of office has expired and he no longer enjoys Constitutional protection. According to the Court, “this Bench has no power to modify the judgments and delay implementation”.

And yet the same Supreme Court has no problem issuing a string of extensions to the memogate commission. Why does it seem that the Honourable Court can find the power to modify judgements and delay implementation when it suits them, but not when it is inconvenient?

Could it be that because Article 248 presents such an obvious obstacle to the Court’s desired ends, they have cleverly decided to have someone else do the work and ordered the Federal Government to request Swiss authorities to open cases against the President for them? This, too, raises serious questions about the Court’s order.

In Paragraph 5 of the detailed verdict, the Supreme Court writes that “the status of civil party and the claim lodged to the allegedly laundered moneys lying in foreign countries including Switzerland are declared never to have been withdrawn”. If the withdrawal never happened, why, then, does the government need to write to request that the case be re-instated? Shouldn’t the Ministry of Law be able to write asking to be added back as a civil party to the case? Of course not, because the cases were originally opened by and closed by the Swiss courts, and regardless of what the Supreme Court of Pakistan demands, the cases will remain closed until the Swiss themselves choose to re-open them.

This is not the only inconsistency in the Supreme Court’s behaviour. In Paragraph 43, the Honourable Justices write:

43. Since complete facts of the case in Switzerland are not before us, we are in no position to form a definite opinion about its status when the claim was withdrawn nor indeed are we competent to give our own findings on the case, even for the limited purpose of determining the question of immunity.

But later, in Paragraph 56, the Supreme Court states that it does not believe the case was closed by the Swiss authorities on merits.

We, therefore, entertain serious doubts regarding the claim that the case in Switzerland was closed on merits.

Here again, the Supreme Court’s decisions seem to be based not on a consistent application of law and reason, but on what it most convenient to the outcome that they seek – even if it means contradicting themselves in the same order.

This brings us to the next problem with the Supreme Court’s approach. In Paragraph 7 of the detailed verdict, the Supreme Court makes clear that it is instructing the Federal Government to write to Swiss authorities requesting to be made a civil party to a money laundering suit “keeping in view the relations in between the sovereign States and by following the procedure adopted earlier.”

The Supreme Court can find that the previous letter requesting withdrawal as a civil party to the case was in error, but writing a new letter to foreign authorities requesting that a case be opened against a Pakistani citizen is an enforcement action which falls under the purview of the federal government alone – not the judiciary. Otherwise, why don’t the justices simply write to the Swiss and re-open the cases themselves? Because they can’t, and they know it. They don’t have the constitutional authority to do so any more than they have the constitutional authority to open cases against the President themselves.

The Court argues that Article 190 requires authorities to act in aid of the Supreme Court, but basic common sense tells us that even this power only applies to orders that fall within the Supreme Court’s constitutional authority. If the Supreme Court can compel the Prime Minister to write a letter, can they also compel him to bring them chai-samosa? Can the Chief Justice order the Law Minister to wash his car? Will he be found in contempt if the windows are not clean enough?

Interestingly, the argument about whether the Court must be obeyed at all costs is addressed by the Honourable Justices in Paragraph 63, in which the Court poses an interesting hypothetical:

This argument, if accepted, would set a dangerous precedent and anyone would then successfully flout the orders of the Courts by pleading that according to his interpretation they are not in accord with the law.

But the inverse of this is also a dangerous precedent – a vindictive or biased Judge could successfully flout the clear and unambiguous language of the Constitution by issuing an order that was clearly unconstitutional and then demanding that its authority cannot be questioned. According to the Court, “interpretation of the law is the exclusive domain of the judiciary”. Likewise, external affairs with other countries “including the surrender of criminals and accused persons to Governments outside Pakistan” is the exclusive domain of Parliament according to the Federal Legislative List. The Court has no authority to request cases against Pakistani citizens be opened in foreign courts.

The Supreme Court spends page after page after page describing in detail the past actions of government officials that frustrated their purpose – having a letter delivered to the Swiss requesting that a case be opened against the President. But all of this is irrelevant. If the justices don’t have the authority to open foreign cases, neither do they have the authority to direct someone else to do so. The decision of whether to write to the Swiss or not rests not with the Supreme Court, no matter how much they may wish it were so.