Comment by Riaz Haq on April 20, 2012 at 7:16am

Here's a WSJ report on judicial activism in Pakistan under CJ Chaudhry:

..A new report by the International Commission of Jurists, a Geneva-based nongovernment organization of judges and lawyers, suggests his legacy might be more complicated.

The report, released this month and based on a field trip to Pakistan last fall, paints a picture of a judiciary under Mr. Chaudhry that is exercising unusually wide-ranging powers.
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Pakistan’s judiciary has, during Mr. Chaudhry’s tenure as chief justice, stepped into areas normally reserved for a nation’s government, raising concerns over the balance of power, the report said.

It noted that judges in Pakistan are increasingly initiating court proceedings on issues – as opposed to hearing cases brought by plaintiffs.

The courts often launch these so-called “suo moto” cases in instances where the government has failed to take action. The report said in some cases this helps to protect the rule of law.

It cited an example last year when paramilitary forces were caught on video shooting dead a teenager who was pleading for his life. The Supreme Court ordered senior paramilitary officers removed from their posts within three days and told a state prosecutor to launch an investigation.

But in other cases Mr. Chaudhry appears to arbitrarily initiate “suo moto” proceedings based on articles in Pakistani newspapers, the report said. “This introduces a certain element of chance to the practice which is hardly compatible with the rule of law.”

A notable example of this, not contained in the ICJ report, involves Atiqa Odho, a Pakistani television actor who was allegedly detained last year at Karachi airport with liquor in her luggage but later released without charges. (Alcohol is illegal in Pakistan.)

Mr. Chaudhry, on reading media reports, ordered authorities to register a case against Ms. Odho, which they did. A court is yet to rule in the case. Attempts to reach Mr. Chaudhry were not successful.

In another well-known example, the Supreme Court tried to rule on the price of sugar – a matter usually left to government or market forces.

Mr. Chaudhry has fought in recent years to weaken the role of Parliament in appointing judges, the report noted. Under Pakistan’s constitution, a judicial commission, including the chief justice, nominates judges. But a parliamentary committee has the right to reject or confirm the nominations.

Last year, the Supreme Court overturned the committee’s decision to reject the appointment of a number of high court judges whom the judicial commission had recommended.

The report found the “authority of the Parliamentary Committee was reduced drastically,” by that judgment.

The authors nodded to concerns about the failure of governance in Pakistan. But it also pointed out the pitfalls of a judiciary trying to fill the role of an administration.

“Parliament and Government are weak, which leads to the Supreme Court filling the gap by intervening in matters germane to the administration,” the report said. “This occurs to the extent that the Supreme Court even…intervenes to strengthen its own and particularly the power of the Chief Justice as far as the appointment of judges is concerned. A concern in respect of the balance of powers thereby arises.”

The report did not get into an ongoing struggle between the judiciary and the government of President Asif Ali Zardari.....

http://blogs.wsj.com/indiarealtime/2012/04/20/report-dings-pakistan...

Comment by Riaz Haq on June 12, 2012 at 5:25pm

Here's a Reuters' story on allegations against Justice Chaudhry:

A Pakistani real estate tycoon on Tuesday accused the chief justice of turning a blind eye to his son's alleged corrupt financial practices, in a scandal that could damage one of the few public figures willing to take on the powerful military.

Malik Riaz, who fashions himself as a billionaire philanthropist, said he had given almost $3.6 million in bribes to Arsalan Iftikhar, son of Chief Justice Iftikhar Chaudhry.

Riaz, who has been accused of fraud, suggested that Chaudhry knew about the matter in advance of the Supreme Court's hearings on the issue this week. Riaz has denied all allegations.

"I have three questions for the chief justice of Pakistan. He should tell the nation today that in the dark of the night how many times did he (Chaudhry) meet me," said Riaz.

"He should tell us how long he has known about this case and why he did not take suo motu action."

Iftikhar has denied any wrongdoing. Chaudhry said he would not get involved in the case, which is dominating headlines in nuclear-armed Pakistan.

The Supreme Court registrar said in a statement to the media that the chief justice had met Riaz, but at a time when Chaudhry was suspended by then President Pervez Musharraf.

Chaudhry became a household name in Pakistan and gained international recognition in 2007 when he stood up to Musharraf over his legally questionable bid to hold on to power.

Since then Chaudhry has emerged as a centre of power in Pakistan, taking on the unpopular government over allegations of corruption, and more significantly the military, which has ruled the country for more than half of its 64-year history.

Chaudhry took up cases involving kidnappings and torture of suspected Islamist militants allegedly carried out by the military and intelligence agencies. They deny the charges.

Under his leadership the Supreme Court convicted Prime Minister Yusuf Raza Gilani of contempt for failing to re-open corruption cases against President Asif Ali Zardari.

http://www.reuters.com/article/2012/06/12/us-pakistan-supremecourt-...

Comment by Riaz Haq on January 20, 2014 at 5:00pm

Here's a Jurist Op Ed by Ali Dayan Hasan of Human Rights Watch:

So, why is it such a relief to see Chaudhry go?

Pakistan's tenaciously independent chief justice also turned out to be political, arbitrary and irresponsible. Upon returning to office, he presided over the firing of judges without giving them the same due process he had demanded of Musharraf. He refused to accept parliamentary oversight of judicial appointments, threatening to overturn a unanimously passed constitutional amendment to that effect unless it was revised. Parliament complied to avoid a confrontation.

Chaudhry also made unprecedented use of suo motu proceedings—the court acting on its own motions—to engage in unwarranted intrusion into the legitimate domain of the legislature and the executive. Suo motu proceedings in defense of fundamental rights are good, but in case after case Chaudhry acted as if the Supreme Court was not a co-equal branch of government but a de facto legislature and executive branch.

Further, Chaudhry used his discretionary powers to oversee, hire and fire government officials, intervening in governance areas ranging from economic policy to traffic management. He seemed to relish triggering constitutional confrontations with parliament and government, undermining the elected parliament and disrupting governance just when Pakistan was undergoing a difficult transition to civilian rule.

In just one example, in December 2011, Chaudhry embroiled the Supreme Court in the "Memogate" scandal by agreeing to investigate Pakistan's former ambassador to the US on charges that he attempted to conspire with the US against Pakistan's military. Such an investigation was the responsibility of the government, not the Supreme Court. However, showing his biases, Chaudhry did not investigate allegations from the same source that the head of Pakistan's security services, the Inter-Services Intelligence, had conspired to oust the elected government.

In June 2012, a Supreme Court bench headed by Chaudhry took the unprecedented step of firing Prime Minister Yusuf Raza Gilani for "scandalizing the judiciary." Gilani had refused to sign a letter to the Swiss government asking for an investigation into corruption allegations against then-president Asif Zardari, even though the Swiss government said that it would not act on such a letter. Chaudhry's order appeared to be an attempt to settle a personal score—many independent observers called the move a "judicial coup." After all the controversy about the way Musharraf had sidelined the judiciary, the government decided to avoid a constitutional crisis and nominated a new prime minister.

When a corruption scandal involving Chaudhry's son emerged around the same time, Chaudhry first used his suo motu powers to seize judicial control of the investigation and then effectively prevented the investigation from proceeding.

Chaudhry treated attempts at oversight or accountability of the judiciary, however reasonable or justified, as a personal attack. He muzzled media criticism by the use or threatened use of overbroad "contempt laws."

While Chaudhry lashed out at his critics, access to justice in Pakistan remained abysmal and the courts remained rife with corruption and incompetence. Case backlogs stayed huge at all levels of the court system.

Chaudhry's supporters make much of his credentials as a champion of human rights causes. He deserves credit for standing up to a military dictator. He took a strong stand on government abuses in Balochistan and demanded the return of terrorism suspects forcibly disappeared by the military. However, after his much-publicized hearings into arbitrary arrests or disappearances, no military or intelligence officer was held accountable, even though he "loudly opined" in court that the military had been responsible..

http://jurist.org/hotline/2014/01/ali-hasan-iftikhar-chaudhry.php

Comment by Riaz Haq on April 20, 2014 at 10:50pm

Here's an Express Tribune story on the adverse economic impact of activist judges in Pakistan:

Former State Bank of Pakistan governor Dr Ishrat Hussain claims that the country’s economy has suffered as a result of interventions by the Supreme Court in recent years.
While addressing the International Judicial Conference’s working group on Saturday, he said the country’s risk profile has been elevated as the investors fear of being embroiled in endless litigation.
“Even if the investors overcome procedural hurdles, they are now faced with an additional concern of being dragged into the court over legal lacunas, which adds to uncertainty and unpredictability of investing in Pakistan,” the former central bank chief said.
Dr Hussain said that despite fulfilling the requirements, the fear that the country’s courts may take suo motu notice of the transaction, and subsequently issue a stay order, deters businesses from investing in Pakistan.
“A large number of frivolous petitions are filed every year that have dire economic consequences. While the cost of such filings is insignificant the economy suffers enormously,” he added.
Highlighting SC’s judgments in cases such as, Reko Diq, LNG project and privatisation of Pakistan Steel Mills (PSM), the former SBP chief said the decisions have had a negative impact on the country’s economic development.

About the LNG case, Dr Hussain said the government received several bids but they could not proceed further due to the court’s intervention, adding that there is a need for expeditious disposal of suo motu cases related to economic issues.
Similarly, commenting on SC’s judgment in the PSM case, he said the country has not carried out a single transaction of privatisation since the decision.
The former central bank chief said the court judgments have instilled fear among the civil servants and political leaders for putting out any public assets for sale to avoid judicial intervention.
Lastly, taking a swipe at the judicial activism, Dr Hussain said the court’s interference in the appointments, promotions and terminations was hampering the operations of civil services.
Treading a cautious line, the former state bank governor said, “Let me submit with all the humility and without sounding arrogant or offending anyone’s sensibilities, that economic decision are highly complex and its repercussions are interlinked both in time as well as space.”
He recommended that laws related to Land Revenue Act needed to be updated, in accordance with modern demands of agro business, industry, commerce, infrastructure, etc.
The former SBP chief also stated that the disposal by the banking courts was 23,694 against a total of 68,973 outstanding cases which was lower than the disposal rate by all special courts and Administrative Tribunals.

http://tribune.com.pk/story/697952/international-judicial-conferenc...

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