President Musharraf's 'Reference' Against The CJ and The Present Politico Constitutional Crisis.

By: Mohammed Yousuf, Advocate (AMICUS).

Part One:

Presently President Musharraf is faced with the most serious political crisis since he assumed the power on 12 October 1999. Briefly the unfolding of the events may be recorded in a chronological order. Read the lines and read between the lines.

March 9:
1. President General Musharraf ‘summoned’ the Chief Justice of Pakistan, Justice Iftkhar Mohammad Chaudhry, to his Camp Office, located in the annex of the Chief of Army Staff’s official residence in Rawalpindi, and in the presence of Prime Minister Shaukat Aziz sought his resignation. The Chief Justice refused to tender the resignation.

2. Confronted with an unexpected situation, President Musharraf, through a notification sought to make the Chief Justice of Pakistan ‘non-functional’ and decided to send a reference, purportedly, under article 209 of the Constitution, to the Supreme Judicial Council to investigate the charges of misconduct and misuse of authority against him.

3. Not even a draft of reference had been prepared, perhaps owing to misplaced confidence or out of arrogance or in the hope that the Chief Justice would resign under persuasion or pressure. President only had letter of lawyer Naeem Bokhari containing some unsubstantiated allegations against the Chief Justice.

4. Simultaneously, President Musharraf, un-necessarily, appointed available senior-most judge, Justice Javed Iqbal, as the Acting Chief Justice of Pakistan. He was administered oath while the Chief Justice was still under detention in the Chief of Army Staff’s Camp Office.

5. The Supreme Judicial Council was hurriedly formed. Since the senior-most Judge, Justice Rana Bhagwandas was outside the country, the Supreme Judicial Council did not fulfill the constitutional requirements.

6. If the Supreme Judicial Council was to find the ‘non-functional’ Chief Justice guilty of the charges contained in non-existent or yet to be prepared reference, he was to be removed.

7. The Chief Justice was not allowed to go to his office even after several hours of detention. Against his wish, police escorted him to his residence where he was virtually placed under house arrest.

8. The Chief Justice was denied facilities of cable TV, newspapers and telephone. The flags of Supreme Court and Pakistan were removed from his hitherto official residence. Even his name was removed from the Official Web Site of Supreme Court. The Registrar of the Supreme court too was changed.

9. The legal fraternity took the President’s action as unconstitutional and a blatant attack on the independence of the judiciary.

10.The Private TV channels exposed the hollowness and unconstitutionality of the President’s action in their news, reports and discussion programs.

11.The nation was taken aback. The country was plunged into a deep crisis.

March 10
1. The newspapers were full of editorials and comments, and statements of lawyers and politicians condemning presidential ‘reference’. The private TV channels were seized of the matter. There was no respite. The intelligentsia and liberal sections of the society were shocked over the President’s crude action.

2. It was vehemently contended that the government wanted to remove the Chief Justice because he had given bold decisions. His Suo- motu actions in the cases of privatization of Pakistan Steel Mills, the ‘forced disappearance’ of the people, allotment of land to bureaucrats and army officers in Gwadar, etc were cited, as having presumably incurred displeasure of the government and prompted it to act against the Chief Justice. The whole exercise was rendered malafide and motivated by anything but the Constitutional diktat.

3. It was asserted with conviction that the Chief Justice had declined to promise a deputation of intelligence officials that he would uphold as lawful the actions which President Musharraf might take to get himself elected as president in uniform. And that this had left President Musharraf with no choice but to seek his removal before such actions were taken or emergency imposed.

4. The Chief justice remained incommunicado and a heavy police contingent was posted to guard his residence. His family was confined to the house and his son was denied access to his school.

5. All bar councils and bar associations decided to observe a ‘black day’ on March 13 when the Supreme Judicial Council was to take up presidential reference. The lawyers began their agitation, which has continued to this date without let up.

March 11
1. Air Marshall Asghar Khan was allowed to meet with the Chief Justice. He disclosed that the Chief justice wanted the Supreme Judicial Council to have open proceedings.

2. Not sure of themselves, the ministers gave contradictory statements. The Sindh Chief Minister made wild allegations against the Chief Justice. The MQM was conspicuously silent. So did the Chief Minister of Punjab. Ironically both were, reported to have had complaints against the Chief Justice of Pakistan, which allegedly formed part of the reference.

March 12

1. Nationwide protests were reported. 40 lawyers were hurt in baton-charge in Lahore.

2. Two private TV channels were put off air for showing recordings of how lawyers were brutally beaten.

3. The government got visibly nervous and embarrassed.

March 13

1. The overwhelming support of the lawyers for the Chief Justice upset the government.

2. The Chief justice was roughed up on his way to the Supreme Judicial Council.

3. The Chief Justice demanded reconstitution of the Supreme Judicial Council.



4. The Opposition leaders stood by the Chief Justice.

March 14

1. The Acting Chief Justice took Suo motu notice of the manhandling of the Chief Justice.

2. The ‘suspension’ of the Chief justice was challenged in the Lahore High Court.

3. Khalid Anwar and Fakhruddin G. Ibrahim declined to represent the government in the Supreme Judicial Council.

4. The US Assistant Secretary of State Richard Boucher arrived. The US State Department announced that his visit was not linked to the current situation in Pakistan.

March 15

1. Shaken by lawyers’ agitation and spontaneous outpourings of public support for the Chief Justice, the government reportedly initiated talks with the Chief Justice to find a way out of the crisis.

2. Sharifuddin Pirzada expressed his inability to represent the government in the Supreme Judicial Council.

3. A petition was filed in the Supreme Court to declare the whereabouts of the senior-most judge, Justice Rana Bhagwandas.

4. President Musharraf said that he would accept the verdict of the Supreme Judicial Council.

5. Boucher described the crisis in Pakistan as ‘sensitive’ and said that it needed to be handled carefully.

March 16
1. Daylong battles were fought between protestors and the police across the capital, Islamabad, on the occasion of the second hearing of the presidential ‘reference’.

2. The defense lawyers said that no copy of ‘reference’ was provided to them.

3. The police stormed the office of Geo TV. President Musharraf apologized for the attack.

4. The attack on media was condemned. Journalists came out on the streets.

5. The opposition flexed its muscles. The MQM declared that it was not consulted about the reference.

6. The British lawyers assured support to the Chief justice.

March 17
1. The Chief Justice declared that he would not resign and fight the battle for the rule of law and supremacy of constitution.

2. The Federal Minister for Law, Wasi Zafar stated that the Chief Justice was on ‘forced leave’ under section 2 of the Judges Compulsory Leave Order 1970, validated in 1975 under the Validation of Laws Act 1975. A belated change in government’s position?

3. President Musharraf said that he had no personal differences with the Chief Justice. The president tried to save his position by claiming that the government had sent a reference against the Chief Justice to him and as president it was his constitutional duty to send it to the Supreme Judicial Council.

4. President Musharraf termed the police attack on Geo TV’s office in Islamabad a conspiracy [yes ‘conspiracy’] aimed at tarnishing his image.

5. 50 were injured as lawyers and police clashed in Lahore. There is a call by lawyers for countrywide strike on 21 March.

6. Balochistan cities were hit by rockets and bomb blasts.

7. In New York, Benazir Bhutto said that the Taliban must be defeated in Pakistan this year or the country risked to fall under the sway of extremists.

Part Two:

The above-mentioned developments from March 9 onwards suggest that the situation is very tricky and has all the potentials to drift out of control.

President Musharraf needs to weigh his options very carefully and take a decision that appears to be in national interest and in the interest of his own survival.

From a hind side, on three counts President Musharraf must be very clear:

1. He did not have the authority to make the Chief Justice ‘non-functional’. His act was unconstitutional.

2. He did not have the authority to appoint an Acting Chief Jusitce nor was it called for or ever occasioned.

3. In the absence of the senior-most judge after the Chief justice, who in the present case is Justice Bhagvandas, the composition of the Supreme Judicial Council is not as per mandatory requirements of the Constitution.

In the present circumstances when the legal fraternity has discussed the whole issue threadbare in bar associations and in public through electronic media, the Supreme Judicial Council is likely to declare its own composition unconstitutional or wait for the return of Justice Bhagvandas to fulfill the constitutional requirement.

Justice Bhagvandas has a reputation for being a man of principles. He is not likely to accept any pressure from executive in dealing with the matter.

The Supreme Judicial Council under Justice Bhagvandas would more likely to declare presidential notification, making the Chief justice non-functiona,l as null and void. Such a decision would be extremely embarrassing for President Musharraf.

There is no guarantee that any fresh reference against the Chief justice as per constitutional procedure would result in his conviction and removal. If the Supreme judicial Council absolves Justice Iftikhar Mohammad Chaudhry, President Musharraf would become laughing stock in public.

The best course for President Musharraf is to admit publicly that he had committed a procedural mistake and to withdraw his notification of declaring Chief Justice ‘non-functional’ and so also his ‘reference’ against the Chief Justice to the Supreme Judicial Council.

In the past we have seen that President Musharraf broke his promise of giving up uniform by 31 December 2004 and explained his reasons to the nation for that. If he is able to convince the people that some advisors misguided him regarding the procedure of filing the reference, the people are likely to excuse him for what happened.

Within a few weeks the whole issue may go into oblivion and become a thing of the past. The lawyers would go back to their business and the opposition would be left without a potentially dangerous issue.

President Musharraf would then be in a position to take a fresh stock of the situation. He may identify the people who made error of judgment or deliberately misguided him. Once the culprits are identified, he may get rid of them in a proper manner. Some heads would roll and the things would settle down.

For future, it is advisable that President Musharraf realizes the limitations in which he has to maneuver. The present political dispensation has lost its worth. If he tries to get himself elected from the existing assemblies without consent of the real stakeholders, he would face an extremely stiff opposition. The country may plunge into another major crisis, the first casualty of which would be Musharraf himself if extra-constitutional forces intervene.

Instead, a sensible option is to take all the stakeholders, including the Pakistan People’s Party, on board and form a government of national consensus.

If needed due to genuine reasons, President Musharraf may impose emergency with the approval of stakeholders and as per constitutional provisions the term of the present assemblies may be extended by one year. The assemblies may elect President Musharraf without uniform for another five years and at the end of the assemblies’ extended period, free and fair elections may be held under the national government.

If the real stakeholders (foremost being the PPP) are not prepared for postponement of general elections, the present assemblies may be dissolved under relevant constitutional provisions, a national government or a government of consensus may be formed and general elections held without unnecessary delay. (This may not be to his liking owing to the fact that he, at the behest of his over zealous advisors, has squandered lot of capital for now).

The circumstances are such that if the dissolution of the assemblies is challenged, the Supreme Court is likely to uphold the legality of dissolution on the ground of state necessity or on the basis of the argument that for holding of presidential election, which is due between 16 September and 15 October 2007, it is imperative that the newly constituted assemblies should serve as electoral college.

Another sensible way is that after the budget session, President Musharraf may persuade the Prime Minister and the Chief Ministers to tender advice as per constitutional provisions for dissolution of the National and Provincial Assemblies. By the second week of September 2007, the new assembles may come into existence to serve as electoral college for presidential election which is, as stated above, due between 16 September and 15 October 2007.

For all these options to succeed, President Musharraf would have to strike a deal with the Pakistan People’s Party on future political set up. The PPP is likely to accept Musharraf as president without uniform provided it is offered a level playing field and allowed to form government in case it is able to forge a majority.

This would take the country back to erstwhile system of ‘troika’. The restoration of the troika system would be acceptable to the armed forces also. It will let the Supreme Court in its place, as the arbiters for convenience or exigency.

Other options are fraught with extreme dangers.

If the legal battle over the presidential reference takes a nasty turn due to any reason and anti-government agitation picks up, President Musharraf may be forced to have unceremonious exit by the armed forces.

If President Musharraf wins legal battle through unscrupulous means - he pressurizes the Supreme judicial Council or bribes or threatens Justice Iftikhar Mohammad Chaudhry to obtain resignation - neither the people would accept it nor the legal fraternity or opposition.

If President Musharraf imposes emergency without approval of the stakeholders or tries to get himself elected by the present assembly without first forging understanding with the stakeholders, he is almost certain to fail.

His emergency may then be followed by martial law.

President Musharraf’s own constituency is already uneasy with him. Some of his policies are resented by strong quarters in the armed forces. It is advisable for him not to go for head-on collision with the opposition.

A recent, motivated, article in The New York Times, has indicated that the United States no more considers General Musharraf as indispensable. If Musharraf goes, the Vice Chief of Army Staff would simply become the Chief of Army Staff and the Chairman of Senate would assume presidency. It would be a re-enactment of what happened in 1988 after President and Chief of Army Staff General Mohammad Zia ul Haq was killed in a plane crash.

When some sensible options are available, why take risk?

link: http://advocateyousuf.blogspot.com/2007/03/president-musharrafs-reference-against.html