When Crows Perch Where Eagles Dare: Part I

chief justice and sonBy Humayun Gauhar

This article will have to be in two parts to do it justice. It is about judicial highhandedness, like in Musharraf’s controversial treason trial and in Justice Yasmin Abbasey’s review petition to the Supreme Court challenging her removal as a high court judge by ‘restored’ chief justice Iftikhar Chaudhry and 13 other judges.

A minority of 14 questionably restored judges who took oath under Musharraf’s first Provisional Constitution Order or PCO of 2000 removed over 100 superior court judges who hadn’t taken oath under PCO of 2007 but were falsely dubbed by certain interested quarters as PCO judges, forgetting that Iftikhar Chaudhry who constituted this 14-member bench had himself taken oath under Musharraf’s first PCO as a judge of the Balochistan High Court. What’s the difference? The difference is that in the first instance he stood to save his job and in the second to lose it. In the first instance he held in Zafar Ali Shah’s case that a judge who is not given a PCO oath ceases to be a judge. In the second he adjudged that a judge not given oath under PCO of 2007 remains a judge! He changed the rules of the game. In his verdict of July 31, 2009 after his ‘restoration’ in March 2009, the dictum became: heads I win, tails you lose. Was this rule of law or was he making a fool of the law? In rendering both judgments he saved his job but applied double standards to the judges similarly placed thereby sacrificing the constitutional principle of equality by becoming a judge in his own cause.

It reads like a typical Pakistani drama. President General Pervez Musharraf declares emergency on November 3, 2007 in his additional capacity as Chief of the Army Staff (COAS). In the Proclamation of Emergency Order 2007, he names Vice Chief of the Army Staff General Ashfaq Pervez Kiyani and other august personages as having been consulted by him singly and severally before imposing the emergency, implying it was a collegiate decision of the civil and military high command.

That Kiyani was party to the emergency is a no brainer. If he had disagreed with the emergency and not been consulted or been party to it, he should have resigned, as should the others named in the Proclamation. He didn’t. In fact, no one did and continued to enjoy the perks, privileges and powers of office till the end. Kiyani became army chief during the brief emergency when Musharraf doffed his uniform. After becoming COAS, General Kiyani could have lifted emergency imposed by his predecessor if he disagreed with it, but he didn’t. Instead, it was lifted not by the COAS but by Musharraf in his capacity as President of Pakistan some six weeks later.

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So where is Kiyani? Time he stood up for the truth else his silence will harm the army’s morale. In terms of Article 6, if one goes by the spirit of the highly controversial July 31, 2009 Supreme Court judgment, Kiyani is constitutionally an “aider and abettor” unless he clarifies his position and takes a firm stand that proclaiming the emergency by no means constituted high treason or could at all be termed as abrogation or subversion of the constitution.

Federal Investigation Agency (FIA) investigators didn’t question General Kiyani and other officers named in the Order and the interior and defence ministries failed to enforce it. But now he will be investigated as the Musharraf treason trial court has ordered the statements of everyone named in the Order to be recorded and reported in their own, not the FIA’s, words. They should also question each and every parliamentarian and judge that legalized the emergency. Only then will the ends of justice best be served and we will know whether General Pervez Musharraf was right in imposing emergency or not, though after the conduct of ‘restored’ Chief Justice Iftikhar Chaudhry and many of his ‘restored’ judges, those with brains don’t need convincing that Musharraf was eminently right in sacking them.

What are these people afraid of? Asking for and imposing emergency was entirely constitutional, especially after the prime minister had rightly and accurately written to the president that he could not run the country in the face of numerous crises, though he didn’t make a written request for emergency in his letter. The president then had three options: ignore it, a possible dereliction of duty; impose martial law, or emergency. He imposed a brief emergency, a much softer measure than martial law.

Rewind to October 12, 1999. The army intervenes, removes Nawaz Sharif’s government and all provincial governments, the national and provincial assemblies, imposes emergency, suspends certain articles of the constitution and issues a Provisional Constitution Order (PCO). These actions and the emergency were validated by a full bench of the Supreme Court also comprising Justice Iftikhar Chaudhry whom President Musharraf later made chief justice. Chaudhry, along with most other superior court judges, went on to take oath under the first PCO. But later, in clear violation of the Supreme Court’s judgment in Zafar Ali Shah’s case, he and five other recently dismissed judges passed, according to Justice Yasmin Abbasey’s pending review petition, a fake and forged order on November 3, 2007 against the emergency imposed earlier the same day which became the basis of the Supreme Court’s decision of July 3, 2009 whereby around 100 judges of the superior courts were removed while others were humiliated and made to face contempt proceedings for adhering to the dictum laid down in Zafar Ali Shah’s case.

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The damage done by Iftikhar Chaudhry, the ‘restored’ judges that helped him and his minion lawyers will take a long time to cleanse. This is what happens when crows perch on the lofty heights where eagles dare.

This instance of judicial highhandedness caused by crow psyche after the ‘restoration’ of Iftikhar Chaudhry and his fellow judges arguably caused the Supreme Court to grossly overstep its bounds and order the federal government to institute a treason case against Musharraf as a sequel to the order of July 31, 2009 in which the same Justice Iftikhar Chaudhry who had validated Musharraf’s October 12, 1999 takeover, his first emergency and his first PCO and taken oath under it, declared Musharraf a usurper besides summarily dismissing judges of the Supreme and High Courts who duly took oath under the constitution and not under any PCO as Justice Chaudhry had done under PCO 2000. These non-PCO judges were removed by PCO judge Iftikhar Chaudhry and his handpicked PCO judges of yesteryears without giving the ousted judges even the opportunity of a hearing, thus making a mockery of due process.  He even ignored the fact that he had been restored under a questionable Executive Order that was neither issued under any law nor the Constitution, thus putting the legality and credibility of an already controversial Supreme Court and the entire judiciary into a tailspin. With each passing day it is becoming more and more cumbersome to uphold that we have a validly constituted Supreme Court.

Followed more instances of judicial highhandedness when one of the affected judges, Yasmin Abbasey, filed an appeal against her dismissal on many grounds. The events are worth detailing.

1.    The Order declaring the emergency illegal was itself illegal because it was given by six Supreme Court judges who had been dismissed only hours earlier.

2.    One of the six judges was allegedly not even present in

Islamabad and his signature was allegedly forged, which makes the Order declaring the emergency illegal itself illegal and a forgery.

3.    Yet the same six judges sat on the bench that heard Justice Yasmin Abbasey’s appeal, a gross violation of Article 4 of the Code of Conduct of Judges of the Supreme Court and High Courts and also a violation of Article 12 of the Constitution. Nothing came of it, of course.

4.    Then Justice Abbasey filed a civil review petition, but it was returned by the Supreme Court Registrar as not being ‘entertainable’. Her petition contends that the judges violated Article 12 of the Constitution and Article 4 of their Code of Conduct that clearly debars a judge to act in a case involving his own interest.

5.    But when Justice Abbasey challenged the order that declared the emergency illegal, all six judges sat on the bench hearing the case challenging their own order. And these guys are charged with protecting and interpreting our Constitution?


6.    Justice Yasmin Abbasey contends that it is established from a combined reading of various judicial precedents and the Constitution that former Chief Justice Iftikhar Chaudhry was a violator of his own oath under Article 178 of the Constitution.

7.    As such, Chief Justice Iftikhar Chaudhry abrogated the

Constitution by adopting an unconstitutional procedure for her removal contrary to the mode prescribed under Article 209 of the Constitution just because she had never agreed to be a part of his illegal activities. This is her contention, not mine: coming from a high court judge it assumes greater importance.

Justice could not be expected from such a chief justice who on the one hand was violating the Constitution while on the other providing safe space to his tax-evading son Arsalan Iftikhar in the case of property developer Malik Riaz. Riaz contended that Arsalan had taken a huge bribe from him by promising to help settle the cases pending against him in the Supreme Court headed by his father. That there was some fire behind the smoke was evident from the expensive cars, holidays and huge bank accounts of Arsalan, the less than mediocre student, failed doctor and failed policeman who his father failed to force Musharraf to appoint as a high ranking police officer after having had him appointed as an FIA official where he couldn’t hack it. When the scandal hit the media Iftikhar Chaudhry had no option but to take suo moto notice of the allegations against his son for appearances sake. But he violated judicial probity and propriety when he sat on the bench himself – a judge hearing a case in his own cause.  However, on strong objections from the then Attorney General Irfan Qadir he recused himself from the bench after having violated Article 4 of the Judges Code of Conduct for almost two days, as did those judges that supported him declaring that “we will not allow anyone to defame [the chief justice’s] family” before determining whether the allegations were defamatory or true. Is his family ‘royalty’ and above the law?

How can justice be expected from a chief justice who indirectly took a bribe through his son and later in collusion with two other judges endeavored to hide his illegal acts by getting a commission constituted on the issue. When this didn’t work, he caused the commission to be dissolved through his own judges while observing that it was a matter between two private individuals. Beat that if you can – briber and bribed being two private individuals when one holds a high State office.