Asma Accuses of Tehrike Insaf of Being Supported by the ISI

Asma Jahangir has described the Pakistan Tehriki Insaaf’s statement regarding her as a “fierce campaign which is not only illogical but also vicious”. “The assertion made by Imran Khan about any decision made by the two major political parties regarding her candidacy to the caretaker IM has been denied several times and thus there is absolutely no need to single her out for this vicious propaganda,” she said in a rejoinder to the PTI statement.

The criteria of the PTI were apolitical and undemocratic, she said and added: “It calls for a caretaker who has no opinion or a mind of his own.”

It’s no secret that a number of political parties had and continued to have support of the establishment, she said, asserting that there were strong indications that the PTI was no different.

“Singling out her name in an orchestrated way is another such indication. The claim that the objections are not based on any personality clash sounds hollow as her name was slammed even before laying down the so-called objective criteria.”

She said the fact that the two major parties she had often criticised found her neutral, clearly showed that neutrality was not the issue. “I had also publicly criticised the candidacy of Asif Ali Zaradari for the presidency and the PML-N often enough when in power and out of it.”

In any event, the constitutional procedure required a consensus only of the PM and the leader of the opposition and not of every party or group outside parliament, she said.

“If neutrality for the PTI means that all caretakers should toe its line then only a PTI supporter will fit the bill. If it means that the person should have no opinion other than in support of the PTI, it may be searching for a spineless person.”

Referring to the PTI accusation about ‘attacking’ the judiciary, she said criticising courts for genuine reasons was every person’s basic right to free expression.

“Whenever the judiciary has been targeted by the executive, she has been on the frontline in denouncing such executive actions. Surely anyone with some intelligence will not have blind respect for all Pakistan’s institutions. Such an expectation only
qualifies pliable entities, which is precisely what had been done in the past and is being engineered at present,” she said.

She also asserted that she had never supported any ‘undemocratic’ ruler ever, whereas Imran Khan had been a supporter of Pervez Musharraf’s referendum.

Imran Khan claims he can lead the nation with skill on the premise that he has the experience of running a hospital successfully, though his political judgments in the past had been flawed, she said.

“In the same vein I’ve also successfully run several organisations and have had no previous history of supporting dictatorships.

I remained the longest serving UN Rapporteur whose basic criteria is independence. My reputation as fearless and independent human rights activist is globally known and does not need Imran Khan’s validation.”

She said she was happy that she did not fit the ‘unfit’ criteria of the PTI and had no intention of tailoring her views and position according to the PTI’s ‘apolitical’ qualifications.

Asma said she had never lobbied for a position or accepted one even when offered as her independence was far more valuable to the causes she espoused.

Asma Jahangir: ‘The Judiciary Has Become Much More Religious In Interpreting The Law’

Human rights advocate Asma Jahangir, dubbed “Little Heroine” after demonstrating against Zia-ul-Haq’s religious laws in 1982, defines the modern face of Pakistan. She was president of the Supreme Court Bar Association of Pakistan, has chaired the Pakistan Human Rights Commission, and has won international awards for defending the rights of women, children and minorities. Excerpts from an interview with Bharat Bhushan:

Have the judiciary and the bar become the Opposition in Pakistan?

The Supreme Court certainly, but the bar is divided. The SC, however, plays the bar: half the seats in various high courts are vacant and for every seat, around 20 lawyers have been promised consideration. Lawyers demonstrating support for the court are given relief. However, the leadership of the various bar associations and councils are critical of the court.

How do you see the judiciary-PPP government confrontation playing out?

The confrontation is not limited to the government. There’s also the question of  parliamentary supremacy vis-a-vis the judiciary. The PPP is easy to destabilise because it’s done nothing for the people and is vulnerable. Either the ruling party and the Opposition agree on a caretaker government to conduct the general election, or the Election Commission decides. Three out of five commission members are pro-judiciary. So the SC has nothing to fear by destabilising this government. It’ll have the final say on the caretaker government. The game is rumoured to be about extending a judge’s retirement age from 65 to 70 years. This can even be done by a caretaker government. The chief justice is to retire next year.

Does the judiciary believe its authority supersedes Parliament’s?

The judiciary has seriously eroded Parliament’s legislative role. It claims Parliament can’t touch that ‘basic constitutional feature’: an independent judiciary.

Can the judiciary right the ship?

Some think so. However, there’s also a lot of criticism. In the recent Multan byelection, the opponent of former PM Yousuf Raza Gilani’s son had the chief justice’s picture as his election banner. He lost.

Is it true that Punjab’s samosa-makers get a faster hearing in the SC than Shias or persecuted minorities?

It’s all very arbitrary. Cases of prisoners who served their terms but languish in jail are never taken up. Three child custody cases were—with no explanation.

Why do all the SC judges appear to be on the same page on all the important political and constitutional cases?

We call them the 17 twin sisters. Everyone’s vested interest is in getting a five-year extension. They think the chief justice can pull strings and get things done. He also has pet lawyers to humiliate any judge in court. Who’d want to cross him?

Is it fair to ask for Chief Justice Iftikhar Chaudhry’s resignation due to the corruption charges against his son?

The case is under investigation. My reason for not demanding his resignation is that I don’t want to make a hero out of someone who is undeserving of such.

Has the SC moved right-wards? Is it more religious in interpreting laws?

What the court has done is under its inherent powers to take up any case of public interest linked to fundamental rights. It has somehow woven in Article 2(A) of the Constitution: the Pakistan Resolution. It is imprecise and doesn’t fall under the fundamental rights chapter, but talks of democracy as enunciated by Islam. They invoke the article in each judgement. The court has indeed become more religious in its interpretations of the law.

What about the judiciary’s activism in taking on the army for citizen disappearances in Balochistan?

This is a laudable thing they have done. However, nobody has been arrested or even charged despite precise allegations being made in court. Another judgement gave transvestites the right to work, get IDs and choose to not disclose their sex.

Have the liberals lost ground by supporting the pro-judiciary campaign?

They lost because of poor strategy and by being let down by their leadership: namely Aitzaz Ahsan who engaged the right. Their leaders needed clarity of direction.

You have said your life was in danger. Who might want to kill you and why?

I’ll never know why. I’ve never done anything to merit threats on my life. I made it very clear that the plot came from within the security apparatus. It was a plot—and not a threat—which got leaked.

Some wanted you to head the interim government. Was it a serious offer?

Nobody approached me officially. The politicians should know that the ISI will not clear my name. It will not be easy for the two main parties to find someone to head the caretaker government. That is a huge task and time is running out.

Cheating on Wives is a Way of Life for the Politicians

by Asma Jehangir

It was the first good news of the year — Imran Khan never cheated on his wife. The shocking disclosure was that the others did!

Politicians need to grow up and give some credence to their viewers.

Multiple marriages or extramarital affairs of politicians have, unfortunately, never hurt the sentiments of our people. On the contrary, in some cases, it has won them admirers. More disturbingly, the wives take it all and there appears to be no dearth of women prepared to be additional wives to those in power.

Infidelity to wives has a painful history in Pakistan but it has also had indirect advantages.

A former PM’s first wife died penniless in a destitute home. His second in wedlock was celebrated as a pioneer for women’s rights.

Another stalwart of the Pakistan movement ditched his first wife to marry her sister.

A former PM had a childhood wife, a social wife and a closet wife but this made no difference to his popularity.

Many a Sher-e-Punjab has been through several wedlocks and their exploits only added to their charisma.

A number of political Khans, Sardars and Sains maintain several households and baithaksbut remain sagacious under the law.

Nevertheless, there is a silver lining amongst all such stories of female woes.

A PM took an additional wife, in the presence of his first APWA going wife. This raised alarm bells in APWA and all wives first, second or third, were outraged and felt vulnerable. For the sake of domestic peace, the first Women’s Commission was constituted. Resultantly, the Family Laws Ordinance was promulgated, which otherwise may never have become law for decades to come. Hence, cheating on wives has produced collateral advantages too.

However, Khan sahib rightly points out that his personal life as a bachelor is kosher as long as he remained loyal in wedlock. He, therefore, stands on a higher pedestal over those who have uneventful pre-marital youth but show their true colours subsequently. The moral of the story is that the chances of disloyalty in wedlock are greater if the groom is young and green, rather than if he has sown his wild seeds and has had enough of it.

The low level of mudslinging by politicians only convinces people that none is worthy of being elected and therefore they will be reduced to selecting the worse among the worst. Seasoned politicians never stoop so low.

Rather than blowing their own trumpets and beating the war drums for others, politicians should address issues and present solutions to the economic and political mess the country is challenged with. The bankruptcy of vision is strikingly apparent. Perhaps, it is now high time for our politicians to evolve a common code of behaviour towards each other, especially while addressing each other in public. This restraint may affect the ratings of some anchorpersons but will bring sobriety to politics. In any event, corruption has been ruthlessly politicised. Powerful individuals, even when caught red-handed will call it a conspiracy against them, while others go scot-free. Only the foolish get caught and pay for it too.

The defence to charges of corruption is often responded to by counter allegations and very few have been brought to justice or punished, despite the fact that corruption in Pakistan is endemic and nepotism a contagious disease.

The moral of the story is that everyone be given an equal opportunity to their right to corruption. If trapped, act indignant, play martyr and plead unequal treatment. Or better still; paint it as an ugly conspiracy against democracy, the rule of law and the independence of the judiciary.

Make certain that all your beneficiaries stand by you and shout foul. Those who have blind faith in the impartiality of the courts may also resort to public interest litigation in an attempt to secure a certificate of innocence in their favour.

The next good news is that the 2012 law on contempt of court has been declared void ab initio. In its place, the 2003 Ordinance has been restored. It was a victory for the legal fraternity, who were falling over each other to find a space in the long list of petitioners. The success was later celebrated in the Multan Bar Association. The 2012 law was indefensible but the manner in which the legal battle was fought around the bar associations was highly distasteful. They were the petitioners, the agitators and the commentators in all evening TV shows. Would that not amount to trying to influence the administration of justice? What was all the fuss and strikes about? A law was challenged and the courts have the power to strike it down. It would have happened. Yet, unnecessary hype was created as though its existence for a single day would destroy the edifice of justice.

No time was wasted and the jurisdiction of the High Courts under Article 199 assumed by the Supreme Court. A short order was passed, not only striking down the entire law, but also curtailing the powers of the legislature. The 2012 contempt law was a bad law but not half as appalling as the new laws applicable to PATA and Fata where prisoners can be kept in custody for countless days and the evidence of security personnel is considered conclusive for conviction. The moral of the story is that the freedom of our judges to haul anyone for contempt is far more sacrosanct than the liberty of lowly citizens of PATA and Fata.

Asma Jehangir Criticizes the Supreme Court

Pakistan’s restored judiciary is obsessed about preserving its independence, but unable to appreciate the demands made on an independent judiciary. The most vital sign of independence in any judiciary is individual reasoning and the autonomy of every judge.

This is apparent neither from important court rulings on complex legal propositions nor from the collective demand made by the Supreme Court (SC) judges regarding the appointment of their peers as ad hoc judges.

Simply grabbing more and more authority does not enhance independence. It only makes the judiciary controversial and partisan. Two recent judgments of the SC, ousting the constitutional powers of the Parliamentary Committee (PC) from decision-making while appointing judges to the superior courts and suggesting that the chief justice of Pakistan be consulted while appointing a chairman of the National Accountability Bureau (NAB) indicates that the SC wishes to assume the role of legislating and in running the affairs of the state.

The NAB case argues that in the past, the institution was politicised and used for hounding opponents and is now being misused by the sitting government. Both observations are correct, but past harassment by NAB should have been checked by the SC itself — its failure to do so politicised accountability.

Fortunately, the SC is now active in ensuring that proper consultation is held between the government and the opposition. To this extent the NAB ruling should be well received.

However, to insist that the chief justice be considered as a consultant is misconceived. The law does not provide for it and more importantly, if a NAB chairman appointed by the chief justice acts arbitrarily, the victim will have little faith in being protected and the chief justice’s role will be rendered controversial.

Worse still, if the chief justice and the NAB chairman together begin to harbour prejudices against some people, the victim’s goose will be cooked.

A counter argument is that the restored judiciary can do no wrong. The same logic was used for politicians who were battered by the military. Unfortunately, politicians repeated their mistakes. Faith in an institution comes from years of consistency, rather than spells of reformation.

The judgment declares the appointment of Justice Deedar Shah as illegal and yet debars him from being appointed for another term. The NAB judgment praises Justice Deedar but declares his appointment illegal due to lack of meaningful consultation.

At the same time, the Court rules that even if the illegality is removed, Justice Deedar could not be reappointed as his ‘illegal’ few months in office amounted to one term undergone and the extension of a term is not permissible under the law.

Ironically, the judgment is full of paragraphs of remorse for having to adjudicate on a matter concerning a former peer — pain that is often undertaken by this judiciary, and, as usual, Justice Deedar was not spared.

Debates on the appointment of judges to the superior courts have dominated the discourse in the bars. Woefully, the bars lost the opportunity to present a consensus formula for the consideration of parliament. Not a single bar association sent any recommendation to the Raza Rabbani committee.

Earlier, the methodology suggested by the Pakistan Bar Council was a formula closer to that enacted by the 19th Amendment rather than the principles laid down under the Al-Jehad judgment. More generally, the bar abhors appointments made by the executive but was also unhappy when solely judges appointed judges.

The 19th Amendment model may be far from perfect but was unanimously passed by an elected parliament and does diversify decision-making. It rightly allows only judges to initiate names for elevation and reserved the right to blackball anyone erroneously recommended. This oversight role of the PC has now been struck down by the SC in Munir Hussain Bhatti’s case.

The Judicial Commission (JC) under the rules it framed allows only the chief justice of Pakistan to propose names — meetings of the JC cannot be held without him. The minutes of the JC are confidential and not distributed to its members. They are not even confirmed at the next meeting. As such, the reasons behind the conclusions reached by the JC are only known to the members themselves.

The SC judgment has virtually reduced the PC to a rubber stamp. In addition, the ruling has decided pending petitions challenging the 18th and the 19th Amendments that are sub judice before a larger bench of the apex court. One of the judges to this decision in fact dissented with his brother judge on this aspect of the judgment.

The entire judgment revolves around upholding the independence of the judiciary, which is pivotal to the constitution and democracy. There can be no caveat for upholding such noble principles. Sadly, this has too often been subverted by the courts themselves, starting with the reference by the Governor General and, hopefully, ending with Iqbal Tikka.

The SC judgment presupposes that if appointments to the superior courts were not left solely in the hands of the judiciary, their independence would suffer. There are several models for appointing judges and in a number of jurisdictions decision-making also includes commissions, legislatures and members of the executive. The US, the UK, Norway, Bangladesh and Malaysia are only a few examples. The judiciaries of these countries are as independent as those in any other.

Had the PC insisted that substandard candidates be elevated, the SC would have a sound reason for annoyance. However, in the present case, the PC had merely dropped six names that were not considered worthy of confirmation by the JC itself and had unflattering remarks against them by the chief justices of their respective high courts.

Eventually, they were recommended for extension and this decision itself raises doubts on the process adopted by the JC, rather than the decision made by the PC, which took the observations of the chief justices of the high courts in all seriousness.

Apart from the chief justice of the Sindh High Court, no other member of the JC belongs to Sindh and would have scant knowledge of the competence of the additional judges. Secondly, the remarks of the chief justices of the high courts were not limited to legal competence alone.

The SC judgment does not reproduce the comments of the respective chief justices on the six additional judges recommended to be dropped, but simply argues that the PC had no business to reopen a discussion held by the JC regarding the legal competence of those whose tenure they extend

The performance of the commission as well as the committee must constantly be watched by bar associations. So far, their performance raises concerns.

Initially, the PC simply went along with the JC. Perhaps it recognised that a slight disagreement could cause a judiciary that believes it can do no wrong to flare up. For example, the PC confirmed very few additional judges but was hasty in confirming Justice (retd) Abdul Aziz Kundi, who after a few weeks retired with a handsome pension of Rs 370,000 per month for life. What was special about this particular individual to earn a lifelong pension after a few weeks of service?

The comments were produced in court. In one case, the chief justice of the Sindh High Court wrote that “the conduct, attitude and behaviour” of the judge under consideration were not qualities ingrained in a judge and therefore senior judges did not approve or recommend his extension. For another, he wrote that the conduct and attitude was unbecoming of a judge.

The chief justice of the Lahore High Court had similar comments. In fact, in one case he wrote that the candidate for confirmation was “not inaccessible and indulges in loose talk”. In another he described the judge as a slow worker, indecisive yet opinionated. In yet another he said the person was a “novice in main legal stream” and required commitment and dedication. He added that the candidate had limited knowledge of the laws. He described yet another candidate, Yawar Ali, as a slow worker, status-conscious, moving in ultra-modern circles and with indifferent behaviour towards the public. These are not traits that can be altered within a few months of training, nor can they be ignored.

Additional judges (who are not confirmed) are kept on extension. Their numbers are overwhelming. For example, only one out of five judges of the Balochistan High Court is confirmed. Out of 28 judges of the Lahore High Court, four permanent judges are made dysfunctional, four others are confirmed and the rest are working on extension.

In Peshawar, three confirmed judges are working while one is dysfunctional and six judges are on extension.

Sindh does not fare any better. Out of 18 judges only five are confirmed but one is dysfunctional.

Confirmation of a judge is central to the independence of the judiciary. Yet the JC and the PC continue to extend the tenure of non-confirmation rather than spare the institution of those who are unfit to sit on the bench and grant worthy judges their right to confirmation.

The present chief justice of Pakistan may well be trusted with every decision he makes. However, constitutional amendments are not made around a single individual but to suit all situations. A minority of non-judges in the JC cannot be expected to check judicial nepotism, especially as they too are part and parcel of the legal community and would hesitate to be on the wrong side of their lordships.

The role of the PC must remain measured but rooting it out would be reverting to Al-Jehad, which was often bypassed by the judiciary itself and gave the judiciary unbridled powers over appointments of their peers. The SC judgment has asked that the six controversial additional judges be restored. It is obvious to anyone — sane or insane — that these judges were behind the filing of petitions for their restoration. Such over-keenness should disqualify anyone from elevation. Despite the comments made against them, which are public knowledge, they remain eager to be elevated.

This begs the question of whether the elevation of such persons will indeed add or detract from the very principles of the independence of the judiciary so eloquently written about in our judgments. All one can say is, three cheers for the independence of the judiciary and may our lordships live long enough to see what they sow.

Chief Justice SC Stops Asma Jehangir from Insulting the Army

Chief Justice Iftikhar Mohammad Chaudhry in the Memogate hearing had asked Asma Jehangir to refrain from disrespecting Pakistan Army officials and questioned her as to why should the court deem a foreign general’s statement more credible than that of ‘our own men’.

The chief justice was heading a nine-member bench of the apex court hearing the petitions filed by PML-N President Nawaz Sharif and others on the memogate scandal.

Asma Jahangir, counsel of former ambassador to the US Husain Haqqani, read out former US National Security Advisor General James Jones’ to the court. According to the general’s statement Haqqani had no involvement in the memo, she said.

The CJ said: “Instead of giving importance to our own people (COAS and ISI DG) why should we consider the James’ affidavit more credible.’

Asma said army chief’s team brought the memo issue to his knowledge and on that basis he submitted his affidavit. The CJ said armed forces have rendered lot of sacrifices for the defence of the country and they have respect for Chief of Army Staff (COAS).

Asma said: “We also respect the army and are indebted to soldiers for their sacrifices for the defence of the country.” She said in fact the army officers rule while the soldiers are giving their blood for the protection of our frontiers. She said: “History tells that wisdom is not in the knees.”

The CJ asked Asma not to use such insulting remarks for anyone.

Husain Haqqani’s counsel said no one is infallible and everyone can make mistakes.

Asma said that memo scam has become a bone of contention between the civilian government and the army. The government cannot take a tough stand against the army because it in a transitional period.

She said Husain Haqqani has resigned. The CJ immediately pointed out that the resignation had been tendered in the presence of the president in that meeting after much thought. Asma reiterated that the memo is just a piece of paper and the court should not give much importance to it.

The CJ said if the federation considers the memorandum just a piece of paper then why a key meeting was held at the Presidency, which was also attended by the PM, the army chief and the director general of ISI, in addition to Husain Haqqani. Asma said such meetings were also held at the time of your resignation but bar, media and civil society’s stance was that there should be due process of law.

Asma, submitting the record of the articles written by Mansoor Ijaz, said Mr Mansoor for the last three years has been writing articles against the ISI in foreign press, but what persuaded ISI DG to probe Mansoor Ijaz on an article appearing in Financial Times in which highest official of the country – the president – was involved? She said why did ISI DG meet Mansoor Ijaz in London without the permission of the PM?

The court observed that in that article allegation were also made against the army, adding it was the responsibility of the ISI DG to investigate that matter.

Justice Jawwad S Khawaja said: “I still wonder from where Mansoor Ijaz has come and expressed his willingness to appear before the bench in this case.”

Asma said it was the same Mansoor Ijaz who has been quoted by a Hindu writer, who claimed meeting of Ijaz with RAW authority inKashmir.

Asma asked the bench that if you talk about credibility then how Mansoor Ijaz has become credible.

Justice Shakirullah Jan said if Mansoor Ijaz has such a bad reputation then why her client remained in contact with him. He said there was exchange of messages between Husain Haqqani and Mansoor Ijaz.

Asma, reading out some portions of the Blackberry messages, said Mansoor was the person who seemed to be keen to contact with Haqqani but her client on number of occasion did not respond to him.

Asma insisted that memo is a political and not legal issue therefore the court could not hear it. Justice Jawwad S Khawaja said that they are not only judges but also Pakistani nationals, whose children are living here and in this perspective they could give relief to the petitioners.

Asma said Husain Haqqani performed his ambassadorial duties in difficult times and made earnest endeavours for the prestige of the country. But in return he was disgraced. She said her client has been sandwiched between the two institutions. She said the court’s December 1 interim order has banned Husain Haqqani from going out of the country, which is against the constitution. Justice Saqib said that Article 15 gave freedom of movement within and out of the country. The CJ said they have not stopped Haqqani from going out but ordered that he should inform the court before going abroad.

Asma also said that the memo was a figment of imagination of Mansoor Ijaz. She said that the memo had mentioned a national security team in the country, but “nobody has confirmed the presence of a national security team in Pakistan”. She claimed that this concept exists only in Ijaz’s mind as a national security team is present in theUnited States, and not in Pakistan.

Tariq Asam, a petitioner, in his rebuttal said that the contents of memo show that conspiracy was hatched against the sovereignty ofPakistan. It was violation of the citizens’ fundamental rights. Mr Tariq said Haqqani has termed him (Tariq) a doubtful person in his petition and prayed to the court to expunge those words. Asma said that she would file a written statement to expunge insulting remarks against Tariq.

Barrister Zafarullah pleaded that May 2 episode and memo scam could not be seen in different perspectives. Attack on Mehran Base and Salala checkpost was in the continuation of that incident. He prayed that if Mansoor Ijaz was involved in conspiracy then action should be taken against him. He said that except judiciary all the institutions have failed, therefore, the court should hold investigation.

Meanwhile Shafqatullah submitted a written reply through post. His stance was that the government’s resistance to the probe shows the involvement of some high officials.

Asma Jahangir’s Stance Legally Untenable

Asma Jahangir has a redoubtable and well-earned reputation as a champion of human rights. Most recently, she has garnered much praise for her criticism of the Supreme Court’s decision to set up a commission on memogate. I yield to no one in my admiration of Madam Jahangir’s courage; but she is wrong in this case.

To briefly recap the memogate issues, an article appeared in the foreign press in which one Mansoor Ijaz claimed to have handed over a memo dictated by Husain Haqqani —Pakistan’s then ambassador to theUnited States — to Admiral Mike Mullen, the then head of theUS armed services. Mr Ijaz has further said that the memo was given to him on the basis that it represented the sentiments of Asif Ali Zardari, the president of Pakistan.

The memogate scandal — as this imbroglio has been dubbed — wound up in the Supreme Court courtesy of a petition filed directly by Mian Nawaz Sharif under Article 184(3) of the Constitution seeking an impartial probe into the alleged scandal. The petition was resisted by Husain Haqqani as well as the Federation of Pakistan mainly on the grounds that the Supreme Court lacked jurisdiction.

On December 30, 2011, the Supreme Court rejected the maintainability arguments and instead issued a short order directing the formation of a three-member commission composed of the chief justices of the Sindh, Islamabad and Balochistan High Courts to “ascertain the origin, authenticity and purpose of creating/drafting” the alleged memo.

Asma Jahangir’s response to the short order has not held back any punches. According to news reports, she stated that this was one of the darkest days in the history of the judiciary. She further alleged that the nine judges of the Supreme Court were acting under the influence of the security establishment. Finally, she has announced her resignation as counsel for Husain Haqqani on the basis that she lacked all confidence in the judiciary.

Let me first begin by saying that Asma’s views should not be treated as constituting contempt of court. The Supreme Court of Pakistan now occupies a central role inPakistan’s politics and it cannot both simultaneously seek to hold centre stage and demand that it be immune from all criticism. The standard response to this from the judges is that criticism must be moderate. I disagree; the very essence of criticism is that it must be allowed to be immoderate, otherwise there is too great a danger of it becoming stifled. I obviously disagree with Asma’s views but I certainly believe in her right to express them as freely as she wants.

Having said that, let us now go back to the underlying issue. So far as I understand, the fundamental argument advanced by Asma on behalf of Husain Haqqani was that the matter did not fall within the original jurisdiction of the Supreme Court under Article 184(3) (which provides that the court may directly hear a matter if it is a matter of public importance relating to the enforcement of fundamental rights.)

Let us look at those two requirements separately. So far as the issue of public importance is concerned, it was conceded by Asma that if the memo had actually been delivered on behalf of the president then the president would be liable to be impeached. Self-evidently, the authenticity of a document capable of justifying the impeachment of the president is a matter of public importance.

The tricky part, actually, is the fundamental rights prong. The problem here from Asma’s perspective is that this requirement has become so diluted through judicial activism that it has become essentially meaningless. Major issues of public importance thus regularly bypass normal channels and head directly to the Supreme Court. This is not a legal development which I particularly like. At the same time, it is a fact of life which has been established through any number of cases.

In this particular case, it is important to note two things. The first is that the existence, the contents and the delivery of the memo are not in dispute. Instead, the only dispute is whether Husain Haqqani had anything to do with the preparation of the memo or whether the memo is entirely a figment of Mr Ijaz’s imagination.

The second point is that the Commission set up by the Supreme Court cannot determine the authenticity of the memo. Instead, the most the Commission can do is investigate the authenticity of the memo and give its report. The conclusions in the Commission’s report may form the basis of criminal charges filed against Mr Haqqani, but those charges would still be adjudicated by a competent court after a full trial.

In short, what the Supreme Court has short-circuited is not the trial of Husain Haqqani but the investigation into his alleged crimes. Is this textbook procedure? No. Is it unprecedented? No.

Criticism of the Supreme Court’s order therefore boils down to the question of whether or not the court was justified in taking over investigation of the memo. Given the fact that the memo can realistically form the basis of a presidential impeachment — as conceded by Asma herself — I personally find the Supreme Court’s decision to try and ensure an investigation of the highest possible standards to be prima facie reasonable.

This, in turn, brings me to the final point. Asma Jahangir has summarily dismissed the Commission as not being independent. I do not think that the three honourable members of the commission deserve this treatment. Each of the three is a distinguished jurist with an impeccable reputation. In the absence of any specific, substantiated allegations of bias, they deserve better than to be castigated as establishment stooges merely because Madam Jahangir is unhappy with a particular decision.

Two years ago, when Asma Jahangir ran for president of the Supreme Court Bar, I proudly voted for her. I am still proud of her achievement as the first female president of the SCBA. I am not proud of her recent tantrum. As a senior and eminent lawyer, she owed a duty not only to her client but to the institution of the law. I think she failed that second duty.

Asma Jehangir’s Victory is a Bonus for Zardari

The 38 vote victory of Asma Jehangir for the post of President of Pakistan’s Supreme Court Bar Association is a big gain for Zardari and his group led by Babar Awan whom Zardari lovingly calls Captain of his legal team.

This win would not have been possible without the presence of the third contender for the position of president, Ikram Chaudhry, and many wonder if Chaudhry was paid to remain in the run to cut down on Ahmad Awais votes.

Asma’s new position may not change things a lot as it is basically a powerless post which she would discover soon, and it mainly consists of appearing on TV. Without the media appearances, it is a useless position. It came in the limelight during 2007 when the Chief Justice was sacked by Musharraf and is fast losing its splendour.

It is possible that Asma may partly have won due to a sizeable number of female lawyers voting for her en bloc.

Asma Jehangir Accused of Representing Asif Zardari

The Zardari camp has openly started supporting Asma Jahangir as the next chief of the Supreme Court Bar Association, said present SCBA President Qazi Anwar. He said that all resources and connections of the government were being used for this purpose. They are bent upon getting Asma elected in the hope that she will stand before the Supreme Court and criticise the apex court judges as president of the SCBA.

But Qazi said that lawyers, who fought for the independence of the judiciary, would leave no stone unturned to safeguard the country’s independent judiciary. The Law Ministry has already started spending government funds by the millions on bar associations, delivered among some members of the lawyers’ community by the law minister himself in his bid to convince the lawyers to support Asma.

A major problem being faced by the lawyers’ community is that all the big names of the historic lawyers’ movement for restoration of judges are siding with Asma Jehangir. According to insiders, PPP’s Aitzaz Ahsan, Athar Minallah, Ali Ahmad Kurd and Justice (retd) Tariq Mehmood will support Asma for their own reasons.

Asma has properly started campaigning for the elections to be held in October 2010.When approached by our sources, Asma was first not available and her telephone operator was not transferring calls to her. However, eventually, she came on line, but after introduction and coming to know that a journalist wanted to speak to her, she promised to call back soon. However, she did not call back.

On the other hand, a major supporter of Asma Jahangir, Justice (retd) Tariq Mehmood, said that if the People’s Party was supporting them, there was nothing wrong with it. He said that Ahmad Awais was the candidate of Hamid Khan group and both Ahmad Awais and Hamid were the members of a political party, the Pakistan Tehreek-e-Insaaf. He said that use of the word Zardari camp was not right as lawyers from different parties were supporting their candidates.

Tariq, however, said that whatever Asma had said against the judiciary after declaration of the NRO judgment was her view and everybody had the right to have any views on any issue. It is also important that according to an audio recording of a BBC interview taken on October 12, 1999, Asma Jahangir had termed Musharraf’s coup as a step against the Constitution, but at the same time tried to give an impression that because of the large scale corruption and inability of the democratic government, there seemed to be no other way out and tried to defend the unconstitutional step of dictator Musharraf. She had also said that inefficiency of the Nawaz government was the major reason for the coup.

According to insiders, lawyers from all corners of the country have started interacting to devise a comprehensive strategy to tackle the latest move of the Zardari camp, which will be implemented through Babar Awan’s law ministry. 

Asma Jehangir’s Rejoinder

The news report titled “Zardari camp hopes Asma will confront SC judges,” is mischievous and deliberate in its attempt to dis-inform public opinion on my candidacy for the president of the Supreme Court Bar Association.

Such campaigns will not in any way deter me from contesting this election. On the contrary, it hardens my resolve to ensure that this position remains independent and non-partisan.

At the outset I want to clarify that I had received no telephone calls from this scribe and even if I had, I may well have not entertained his calls due to his behaviour. I had made it absolutely clear to the senior management at The News that I would only respond to his queries in writing because of his misreporting in the past. In the present news report he has made several allegations and assumptions against me to jeopardise my campaign and therefore, I am now compelled to respond to him.

Firstly, he has painted me as a person who is opposed to the independence of the judiciary, whereas my struggle for judicial independence precedes even the lawyers’ movement, of which I was an active participant. Any criticism of judicial performance that I have expressed has also been a part of the same commitment.

I believe that the Bar is an equal stakeholder in judicial independence. Its role is to ensure that the judiciary can function without fear or favour and at the same time it serves as the best watchdog of judicial performance. My struggle for judicial independence started much before the recent lawyers’ movement in which I was also actively involved. I suffered imprisonment during Ziaul Haq’s period and have constantly participated in the lawyers’ struggle for democracy and the rule of law.

Even during the last lawyers’ movement I was under house arrest and was willing to sacrifice much more. Nevertheless, my struggle is based on the principle of democracy and rule of law rather than to protect or hound any person or institution. As such it is not my intention to “confront” judges but to remain consistent in upholding the values of justice.

The allegation that I am a candidate of the Zardari camp is simply malicious. I am no admirer of any such camp and my criticism of nepotism, corruption and mis-governance by governments has been consistent throughout. To remind this scribe I would like to draw his attention to my article published in an English newspaper on 19 December 2009. “Another aspect of the judgment” in which I have criticized some aspects of the NRO judgment, where I have stated, “While the NRO can never be defended even on the plea of keeping the system intact the Supreme Court judgment has wider political implications.”

I believe that my criticism of using Article 62(f) as a touchstone for striking down laws was correct. Later, the detailed judgment also bore out this view. I expect that no political faction or other pressure groups will presume to think that my just criticism of any negative trends will not endure despite this candidacy to the Supreme Court Bar Presidency. My views on all important issues are in the public domain and are well-known including my statement on Mr Zardari’s candidacy to the Presidency which was published in newspapers on 26 August 2008.

It has been reported that the Law Ministry is handing out money to certain bar associations. This may well be but has no connection with me. It is between the Law Ministry and the bar associations. Nevertheless, the next allegation that “some members of the lawyers’ community” have been doled out funds in order to convince them to vote for me casts a serious aspersion on the integrity of the members of the Supreme Court Bar Association. I am certain that no lawyer of the Supreme Court Bar will be convinced to vote one way or another through any such alleged tactics. I have always denounced any such malpractices.

Next, Justice (Retd) Tariq Mehmud is quoted to have said that if the PPP was supporting me there was nothing wrong with it. In the next paragraph, the scribe contradicts himself by clarifying that Justice (Retd) Tariq Mehmud said that lawyers with different political affiliations support various candidates. I believe, as a candidate anyone would seek support of all members of the Supreme Court Bar regardless of their political affiliations, caste or beliefs.

This scribe has also quoted SCBA President Qazi Anwar, who he claims has confirmed that resources in connection with the government are being used to get me elected. I am amazed that such irresponsible statements are being attributed to Mr Anwar. When I met him after I had announced my intention to contest these elections, he expressed no such apprehensions to me. On the contrary, he promised to remain neutral, as is appropriate, for any person holding his position.

The malice of this report is most apparent from the allegation made against me that I have been in any way defensive of the Musharraf coup. I am on record of having denounced the Musharraf coup, when few spoke up. I made several public statements to this effect. My position is well known and my criticism of political leadership has never been presented as a justification for a military takeover. My struggle goes as far back as when I was a student. Let me remind the scribe that I was a petitioner in the Asma Jilani case and participated in all major protests against authoritarianism. My independence has never been compromised and will remain as such. My election, too, will be won on this premise and therefore a desperate attempt is being made to malign and demoralise me. It will not work.

Rejoinder Ahmad Noorani of the The News to Asma Jehangir’s Rejoinder
Most of what Asma Jehangir has written about herself is right and everybody respects her struggle and her views. But she did not take my calls to give her version. I can prove from data from telephone companies how many times I called her, especially on June 12, 2010 and despite a promise to return my call, she never called back. Even in her rejoinder she says so. So she should not complain on that count.

About the perception that she is a Zardari camp candidate, instead of debunking my report she should talk to Babar Awan of the PPP government who is giving out money to lawyers and asking them to support Asma Jehangir. It is they who have created this impression and I am only reporting it, as any reporter should. It is her burden to correct this perception.

I have no interest in taking sides in the SCBA election but I expect that aspirants for such prestigious positions should be straight and honest. Asma Jehangir cannot deny her comments after October 12, 1999 coup, although later she may have criticized the military regime. I stand by what I referred to about her remarks to BBC criticizing the Nawaz Sharif government. I will offer a public apology if she can prove that she did not make those comments.

On her point about statements being made by Qazi Anwar, I would simply say that Qazi Sahib can correct the record himself if any newspaper misquotes him in writing. Whatever he says to people privately is not of my concern but Ms Jehangir should not act as a spokesperson for Qazi Anwar. I wish her well in the elections.

Asma Jehangir Again Makes a U-Turn & Criticises Zardari

Leadership in Pakistan is its own worst enemy. It is quick to grab the limelight but lacks the ability to gracefully preserve the often ill-found glory and veneration that falls into its lap.

Lessons are not learnt and heroes emerge because of the mistakes of adversaries. Gen Musharraf’s highhandedness made the Supreme Court a champion of people’s rights. The handling of the NRO gave back to the presidency the support it was losing from its own party.

And now, the swansong of Asif Ali Zardari to a bewildered audience only exposed his incoherence and insensitivity to the occasion. It was a rare opportunity to remind the people of Benazir Bhutto’s philosophy of reconciliation and urge for unity to strengthen the democratic process. Instead, he threatened to pull out the eyeballs of those who dared to undermine ‘democracy’.

Democracy is not simply an exercise in electoral politics. It may begin there but also ends there if other components remain absent. Absolute power for the president under a parliamentary form of government does not reinforce democracy.

A politically partisan president can hardly claim to be a champion of democracy. Maintaining a huge cabinet is not the government’s right; it is an abuse of the people’s trust in it. Most importantly, democracy can only be sustained in a system that remains accountable and is respected by the people.

The PPP is facing a number of challenges including the absence of a seasoned leadership. 

There is no governance in sight, corruption is still tolerated if not encour aged and the Dogar period saw some of the worst practices in the judicial system fully backed by the ruling party.

Credence can be given to Zardari’s allegation that the establishment has an aversion to the PPP. But this can only be countered by addressing the people’s problems and putting the country on the right track.

The way forward can be through negotiations and not constant defiance. Governments are judged by the results they produce, not by the level of suffering in the past.

Constant harping on the martyrdom of political leaders only undermines their sacrifices. People recognise the PPP’s travails.

Friends and foes pay homage to Benazir Bhutto’s valour. But compassion for her does not necessarily extend to her spouse and other party leaders. Zardari’s repeated attempts to stir up sentiments in the context of raising his children singlehandedly have backfired. There are millions of people doing so without any support or resources. Emotionalism on that score often appears manipulative.

No doubt, the greatest loss of Benazir Bhutto’s assassination is felt by her family, but this cannot be a reason to snub those asking for a full-fledged investigation into her killing.

Murder is a crime against society and people have the right to insist and expect that with the PPP in power, the party should pursue the case of their revered leader with vigour. A UN fact-finding exercise is no alternative to a criminal investigation.

Zardari’s outburst that he would either occupy the presidency, the Prime Minister House or a prison was bizarre.

His reference to the Prime Minister House suggests he is eying the office once the 17th Amendment is repealed.

Politicians must also be prepared to sit outside the corridors of power. His famous words, “Pakistan khappay”, were appreciated all round but cannot be thrust down the throats of the nation as a great favour.

Ranting about conspiracies being brewed is no deterrence. Instead, the president should have stepped back, allowing others in his party to woo the opposition, especially after Nawaz Sharif denounced extra constitutional measures to topple the government. The PPP’s response was to let loose the Punjab governor on the PML-N.

The repeal of the 17th Amendment is being delayed on some pretext or another, allowing no space for the opposition to close ranks with the PPP.

The people hear ad nauseam the sacrifices made by the judiciary, the military and the politicians for the cause of democracy and rule of law. Yet none of these paragons of virtue, holding positions of power, contemplated resignations on a point of principle. Neither have they protested, when in power, on issues other than those that singularly affected them.

Every political party agrees that military rule has been a disaster, yet they are unable to marginalise the army’s influence in politics.

All deals and crucial decisions are left to the military. Once there is a transition to civilian rule, politicians begin to stab each other in the back, and the establishment, with the help of other institutions, takes over the decision-making process.

Eventually, politicians are unceremoniously thrown out and end up playing martyr. No doubt Pakistani politicians have suffered and been demonised, but they are rewarded as well.

In reality, people who have truly sacrificed are those who have put themselves and their children to eternal sleep because they had no food, no mercy and no hope. Those who sacrifice also consist of judges of subordinate courts who face immense pressure, have few resources and must deliver tough judgments without any security from the state; they consist of those who flee from war at an hour’s notice and of those who lose their lives in daily bomb attacks; of political workers who keep the flame of democracy alive while their leaders are in exile and of foot soldiers who die in conflict unleashed by the skewed policies of their seniors.

If Pakistan survives it is no thanks to the powerful and the mighty. The credit goes to the resilient people of this country who are witnessing a constant tamasha.

Asma Jehangir Says Army Violating Human Rights

Asma Jehangir has accussed the security forces, discovery of mass graves in the conflict-hit region, and the continued suffering of the civilian population. The security forces, in turn, have asked her to come to Swat herself to assess the situation, instead of issuing “sweet” statements from her abode worth crores in Lahore, protected by those very “cruel” forces.

Asma says that a number of Swat residents have reported sighting mass graves in the area, including at least one in Kookarai village in Babozai tehsil of Swat district and another in an area between Dewlai and Shah Dheri in Kabal tehsil. Witnesses who have seen mass burials said that at least in some cases the bodies appeared to be those of Taliban militants.

She has also expressed her concern over the worrying development and also over credible reports of numerous extrajudicial
killings and reprisals carried out by security forces.

 

Asma also says that the IDPs have returned to find a number of houses in the area damaged in the military operation. Shops in most areas are yet to reopen and the ones that are open have scare supplies. The local people demand that the government ensure the supply of essentials to the returning population, including subsidised edibles for the families that cannot afford to buy them on account of financial losses suffered during and prior to the military operation. Restoration of the devastated infrastructure and provision of safe drinking water must be given top priority to prevent the spread of disease.

Ironically, Asma also says that while a massive security operation in Swat seems to have dented the Taliban network in the area for now, but the threat of Taliban exists. Lack of safety and security remain for the people being sent back to the valley from IDP camps. That the
law and order situation is still not completely under control is
testified by the continued curfew in the area. Even military
officials in the area acknowledge that parts of Swat are yet to be
purged of the militants. The beheading of a police official in
Sangota, Mingora, on July 28 triggered fear among local residents,
who had returned to their homes after being assured that the
militants have been flushed out of the area.

None of the national and provincial assembly members or district or
tehsil nazims have so far returned to the conflict-hit area. Their
absence itself is a reflection of the apprehension of lack of security in the region. The government should provide the elected representatives of the area appropriate security to encourage their
return, which would also boost public morale.

Asma thus also wants a campaign to apprehend local-level Taliban operatives and other terrorists.