Chief Justice’s Bad Week Gets Worse

If Chief Justice Iftikhar Chaudhry was having a bad week when he found his son dragged before the Court and his own name dragged through the mud of media talk shows, things only got worse when he was handed a sealed envelope containing the report of the judicial commission formed to investigate the memogate scandal. The Justices appointed to the commission failed in a big and serious way. They stepped so far outside their authority that they poisoned any future proceedings, basically ensuring that Husain Haqqani could not possibly receive a fair trial in Pakistan. And the Chief Justice knows it.

Here’s what happened. In Constitution Petitions No.77 to 85 and 89 of 2011, the Supreme Court constituted a Commission with a very specific and narrow mandate:

…to ascertain the origin, authenticity and purpose of creating/drafting of Memo for delivering to Chairman of the US Joint Chiefs of Staff Admiral Mike Mullen…

That’s it. Three findings of fact: The (1) origin, (2) authenticity, and (3) purpose of the memo. That’s all the Commission was formed and authorised to investigate. Now, it was never going to be an easy job. Unwinding the constantly changing story of Mansoor Ijaz – not to mention regularly changing the rules to accommodate his whims – was no small task. But when they sealed the envelope containing their report, these three Justices also sealed the fate of the entire controversy.

In their findings, the Justices wrote that “the Memorandum was authentic”, “Mr Haqqani was the originator”, and “Mr Haqqani…wanted to create a niche for himself making himself forever indispensable to the Americans…” This was the extent of their mandate, and should have been the extent of their findings. But the Justices couldn’t help themselves, and they went on…

…He lost sight of the fact that he is a Pakistani Citizen and Pakistan’s Ambassador to the United States of America, and therefore his loyalty could only be to Pakistan.

(3) Mr. Haqqani’s by offering his services as part of a proposed ‘national security team’ to a foreign government, voicing the ‘great fears’ that ‘Pakistan’s nuclear assets are now legitimate targets’ and thus seeking to bring ‘Pakistan’s nuclear assets under a more verifiable, transparent regime,’ stating that ISI maintains ‘relations to the Taliban’ and offering to ‘eliminate Section S of the ISI and to help ‘ pigeon – hole the forces lined up against your interests’ created fissures in the body politic and were acts of disloyalty to Pakistan, that contravened the Constitution of Pakistan.

That’s not an answer to any of the three questions the Commission was authorised to report on. It’s not even a finding of fact – it’s an application of the law. The Commission not only exceeded their authority, they usurped the authority of the Court by finding facts and then applying the law without filing charges or holding a proper trial.

The Commission later says that Husain Haqqani “has to answer about the findings so recorded by the Commission”, but because they have already pronounced him guilty of “acts of disloyalty to Pakistan, that contravened the Constitution”, how can he possibly answer? He has been convicted in absentia with no access to due process.

Whether or not the factual findings of the Commission are accurate, by casting judgment against Husain Haqqani absent any charges or trial, they have undermined the judicial process completely and ensured that any outcome will be forever tainted. If Haqqani is acquitted by the Supreme Court, the Chief Justice will be undermining the credibility of not one but three High Courts. If Haqqani is convicted, though, it will be stained with the appearance of a ‘Kangaroo Court’ that persecuted a man who found himself on the wrong-side of a powerful military intelligence agency for writing a book critical of their ties to religious militants.

As the Chief Justice desperately tries to convince the nation that he is presiding over a legitimate court of justice and not a political tribunal that protects its favourites while relentlessly hounding its enemies, he is handed a sealed envelope containing one of the greatest judicial mistakes the Court has seen since, perhaps, a Supreme Court Justice gave legitimacy to Gen. Musharraf’s military coup by giving his oath under the dictator’s 1999 Provisional Constitutional Order (PCO)…

New problems for the Chief Justice

Mahmood Adeel in his piece last week made an interesting observation about our Chief Justice regarding his son’s case. He pointed out that it seemed CJ had already made up his mind regarding the outcome of the case and it sounded as if he was leading the witnesses to “provide the testimony needed to give the decision already made”. This made me think that other controversial cases are also facing problems of credibility due to lack of transparency and questions of undue influence at the outset of the case.

A similar incident that can be linked to the idea of whether the CJP is influencing a trial outcome already decided is the neverending memogate case. While there have been many questions regarding the special treatment granted to Mansur Ejaz and his secret meetings with top agency officials, the Chief Justice has also found himself at the center of controversy about the contents of a secret letter Mansur Ejaz sent to the CJP and the Supreme court during the memogate saga. As reported by various newspapers earlier this year, Ejaz sent a letter to the CJ the contents of which Chief Justice wanted to remain sealed. Next thing, Masur Ejaz was permitted to give his testimony via video link from London and Husain Haqqani was permitted to leave Pakistan. Many are now asking about the contents of this top secret letter known only to Mansur Ejaz and the CJP which appears to have changed the course of the case.

Today, this question becomes even more alarming with media reporting that the Chief Justice is forming a bench for hearings on memogate charges based on a sealed probe report by the memo commission. First a secret letter influences the Court, now a secret report constitutes a larger bench. If justice is truly being served why is it being done in the dark behind closed doors?

The higher judiciary which has been considered as the institution devoted to impartial justice has found itself facing criticism for the CJP’s hesitancy to remove himself from hearing a case against his own son, and even then only after giving remarks that could influence the outcome of the case. This combined with the noted lack of dissent on the bench and the lack of transparency in memogate casew have created doubts about whether the Supreme Court is following the constitution or whether it has become the private tribunal of one man.

Was case against CJ’s son decided before it began?

Chief Justice with his sonWas the corruption case against Arslan Chaudhry decided before it even began? A New York Times article about the case against the Chief Justice’s son includes a particularly interesting paragraph:

Mr. Mir then insinuated that the powerful army and intelligence services could be manipulating Mr. Hussain in order to get at Justice Chaudhry for his relentless pursuit of cases related to illegal detention and extrajudicial killings by the security forces. “Now you are going in the right track,” Justice Chaudhry said with a faint smile.

How does the Chief Justice know what is the right track before he has heard all the evidence? Has he already decided the outcome and now he is leading the witnesses to provide the testimony needed to give the decision already made?

The Chief Justice has now recused himself, but is it not a case of too little too late? How can anyone be expected to believe that the process has not been influenced when the Chief Justice of the Supreme Court gives away the ending in the first act?

Justice or Activist?

A little noticed story from the weekend gives more evidence that the Chief Justice is acting outside his constitutional role of interpreting the law and is using the Bench as a platform for political activism.

The story, reported in The News, tells that:

…during the hearing of a case lodged against two Rental Power Projects (RPPs) on Friday, Chief Justice Iftikhar Muhammad Chaudhry observed that the emergency meeting summoned by President Asif Ali Zardari to discuss the electricity crisis was indicative of institutional and administrative breakdown in the country.

The chief justice maintained that the electricity crisis plaguing the country was so severe that it had forced the president to convene an emergency meeting, and this was an indication of the government’s failure.

It is one thing to for the Court to question whether contracts were awarded in a lawful and transparent way. It is quite another for the Chief Justice to declare the government a failure. Openly expressing an anti-government opinion in the Court raises serious concerns that the Chief Justice has crossed the line from being an unbiased judge who applies the law per the Constitution to a political activist who uses his authority to promote an agenda.

It also raises serious concerns about recent decisions by the Court which some believe go beyond interpreting the law to targeting the government. The Supreme Court’s obsession with forcing the Prime Minister to write a letter, despite the clear language of Article 248 of the constitution along with the fact that the detailed verdict in the PM’s contempt case, for example, is filled with contradictions and inconsistencies has caused many to worry that the Court is doing more than acting as a neutral judge. Then there is the never-ending saga of ‘memogate’ in which the Supreme Court has given yet another four week extension despite the fact that nothing new has been discovered for months, keeping anti-government conspiracies alive rather than settling the issue once and for all when it was supposed to be settled months ago.

When the Chief Justice took his oath, he swore in the name of Allah that he “will not allow my personal interest to influence my official conduct or my official decisions” and “that, in all circumstances, I will do right to all manner of people, according to law, without fear or favor, affection or ill-will”. After giving political statements during hearings, the Chief Justice should consider whether he has acted according to his sworn oath, or whether he has crossed the line between justice and activist.

Chief Justice Awards Himself

Chief Justice Iftikhar Chaudhry Gives Himself Award

The Chief Justice will be traveling to London next month to receive the prestigious International Jurist Award 2012, media reported over the weekend. While this recognition is being lauded in the media, it seems that there might be more to the story than has been reported.

No doubt the International Jurist Award 2012 is something of a relief for the Chief Justice after being the subject of a rather unflattering report by another international organisation, the International Commission of Jurists (ICJ). The ICJ report questioned whether the Chief Justice had crossed the line of his constitutional role as jurist and was attempting to influence the direction of policy – the latter being the proper role of parliament, not the court.

Actually, the ICJ’s findings were similar to those of another report released late last year, this one by the independent Human Rights Commission of Pakistan (HRCP). Dr Mohammad Taqi describes the HCRP’s findings as follows:

The HRCP seems to be of the opinion that the superior judiciary’s overzealous use of the suo motu powers as well as entertaining petitions by the so-called interested parties— the definition of remains nebulous and ever-expanding— has taken up time and energy of the courts to the detriment of other cases. In addition to— and often at the expense of— its normal function as the court of appeal, “the country’s apex judicial forum was also functioning as an ombudsman’s office, as an administrative court, as an anti-corruption tribunal, as a supreme investigation agency, and as the sole defender of not only the constitution but also of public morality”. In a country where the backlog of cases is to the tune of millions, by seizing itself with issues cherry-picked from or by the media or thrown in its lap for political reasons, the Supreme Court has clearly spread itself too thin.

After receiving such reviews by independent international legal organisations, finally having his work praised by an international legal organisation must be quite comforting to the Chief Justice. This award has certainly pleased the media as well as certain opposition politicians who are cheer leading for the Chief Justice in his decisions against the government. After storming the Supreme Court in 1997 during his own contempt case, Nawaz Sharif has become the Chief Justice’s most loyal servant. Even PTI’s Jahangir Tareen who only a few years ago was defending Gen. Musharraf’s attacks against the Chief Justice has had a change of heart now that the Chief Justice is attacking his political rivals.

There is, of course, one difference between the international legal organisations that are criticising the Chief Justice and the one that is granting him an award next month. That difference being that the Chief Justice himself is Vice-President of the organisation giving him the award.

It’s rather ironic, one must admit, that for all his talk about the importance of an independent judiciary, the Chief Justice is going to accept an award from an organisation that he himself sits as Vice-President. I will leave it to you, dear reader, to interpret this irony for yourself. As for me, I think that until the common man can get justice, perhaps the Chief Justice should be a little more humble about whether he deserves any awards – especially when they’re handed out by his own organisation.