A judicial coup?

Published: June 19, 2012

The view, with this verdict, the apex court has played the role of judiciary, legislature and executive, may find some takers.

The Supreme Court, in claiming to represent the will of the people, has removed from power the people’s representative, saying that he stood disqualified from being a member of parliament and hence the office of the prime minister since April 26 — the day he was found guilty of contempt. Support for the decision may not be unanimous mainly because of recent developments, especially where the Honourable Court was dragged into the Arsalan Iftikhar matter and how it chose to — itself — remove it from the allegations citing that Malik Riaz had himself admitted that he had never received any favours from the court. The procedure to remove a prime minister from office is clear: he can be voted out by parliament or the speaker of the National Assembly can send a reference to the Election Commission. So the view, that with this verdict, the apex court has played the role of judiciary, legislature and executive, may find some takers. Also, one must wonder why didn’t the seven-member bench that ruled in the contempt case in April not make matters clear, and that if the intention was to leave the matter to parliament then why wasn’t the speaker’s ruling left unscrutinised. The passage of almost two months since that verdict and Tuesday’s decision may well give ammunition to some people who may claim that the Honourable Court is perhaps trying to deflect attention from the Arsalan Iftikhar case. Furthermore, there will be people, and not entirely from within the PPP, who may consider whether yesterday’s verdict is, in effect, a judicial coup.

Of course, all of this is not to say that Yousaf Raza Gilani or the PPP is without blame. The crisis could have been avoided by simply writing to the Swiss authorities or he could have resigned on April 26. Of course, the other view is that the apex court could have let the matter rest after being told by the government that under the Constitution, the president enjoyed immunity. Of course, it has to be said, with the utmost of deference and respect, that often times, the apex court has not shown the same assertiveness to military dictators that it has shown to elected civilians/governments. Perhaps this is now changing, with the court’s renewed interest in the missing persons’ case and Asghar Khan’s petition. But one would like this interest to be sustained in order to show tangible results.

Published in The Express Tribune, June 20th, 2012.

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Reader Comments (51)

  • Fahad Karam
    Jun 19, 2012 - 10:56PM

    A ‘coup’ involves usurping someone else’s power. The CJ is still the CJ, not the president, chief executive, martial law administrator or the dark knight. This is not a coup.

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  • Mirza
    Jun 19, 2012 - 10:57PM

    This is a very balanced and fair editorial by the ET. There has not been a single military takeover and coup that the SC has not loved and endorsed in its entire history. The current PCO SC has endorsed multiple acts of high treason aided and abetted the generals. In addition the SC has never allowed any elected civilian govt to complete its term while gave all the dictators’ unlimited time. If Yehya would not have lost half of the country, Zia would not have fallen from sky they would still be ruling till their natural death. These paid govt servants are not supposed to get involved in politics even soon after retirement let alone when on payroll. The CJ should not throw stones while living in glass house. From Justice Munir to Nasim Shah to PCO judges the history would not be kind. Recommend

  • Khurram Khalid
    Jun 19, 2012 - 10:57PM

    Certainly, a judicial coup!!

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  • B
    Jun 19, 2012 - 11:02PM

    The court has not taken the decision to remove the Prime Minister from office. It has only clarified that Gillani, after his conviction, is no longer eligible to be a member of Parliament (and hence the Prime Minister). The SC has just played its role i.e. to clarify the Constitution (more specifically Article 63B Section G of the Constitution).

    Im no legal expert, but i think that this is simply the case.

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  • B
    Jun 19, 2012 - 11:09PM

    For those who want to know about Article 63B Section G, read below:

    63) Disqualifications for membership of Majlis-e-Shoora (Parliament).

    (g) he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan;

    And there it is. The SC dint make this Constitution. Parliament did. And the SC just clarified it.

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  • Mirza
    Jun 19, 2012 - 11:23PM

    @B: Are you trying to say that the SC only explained the law. The seven judge bench made two attempts to write their vague decision, then a three member bench (only in Pakistan’s PCO SC a three member bench after a seven) heard the case and finally among 10 of them, the judges were able to write a decision clear enough! Don’t feel bad taht you are not a lawyer, it took 10 SC judges and three attempts to clear it up.
    Regards,

    Mirza

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  • Reza Ali
    Jun 20, 2012 - 12:06AM

    @Fahad Karam:
    CJ has, and is, usurping the power of the parliament and the executive – just as a branch of the executive – the military – dictates foreign policy and state process, through its armed might and its intelligence agencies, to the (powerless) democratic representatives.

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  • Reza Ali
    Jun 20, 2012 - 12:08AM

    But for how long will the court, by these antics, dangerous as they are, be able to divert attention from the corruption case against CJ’s son and CJ’s family.

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  • B
    Jun 20, 2012 - 12:17AM

    Uhh…yeah. The text of the consitution is right there. I guess that the SC thought that the National Assembly wasnt soo dumb that they couldnt interpret such a basic tenet of the Constitution. But, the NA proved them wrong and then the SC had to come to clarify. Thats their job, isnt it?

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  • Khurram Khalid
    Jun 20, 2012 - 12:42AM

    You could not have expected anything else from a PCO judge-Justice Chaudhary.

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  • Z
    Jun 20, 2012 - 12:45AM

    @Mirza: You’re condemning the current court for sins judges of the past have committed by bringing up Justice Munir et. al. The fact is that the current court is the only one in history to have stood up to a military dictator.

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  • Sherlock Holmes
    Jun 20, 2012 - 1:04AM

    SC is certainly encroaching upon the authority of parliament and this is a bad precedent. Remember SC has never dared to send packing a dictator which smacks of double standards.

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  • Noor Pamiri
    Jun 20, 2012 - 1:37AM

    Certainly a judicial coup. The SC reacted in haste, trying to save its “integrity” in the Arsalan Iftikhar case. The result might be disastrous for the whole country.

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  • Jun 20, 2012 - 1:45AM

    Intentional,misconception being spread by some,about a coup ! Parliament was never dissolved nor third force took over the reign.Democracy remains intact!

    The constitution states very clearly about the disqualification of a member,if convicted.The PM was disqualified from the basic membership of the parliament for having been convicted in a contempt charge by the apex court and automatically he stood ineligible for the office!

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  • Umer
    Jun 20, 2012 - 2:07AM

    The view, with this verdict, the apex
    court has played the role of
    judiciary, legislature and executive,
    may find some takers.

    You missed out 111 brigade.

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  • elementary
    Jun 20, 2012 - 2:34AM

    The crisis could have been avoided by simply writing to the Swiss authorities.

    So True ,but then how will they play their victim card ?

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  • Shakir Alvi
    Jun 20, 2012 - 2:45AM

    Supreme Court has put the country at risk by sacking the Prime Minister for saving his son and his own corruption and bribery saga!

    Dear PCO judges you can fool some people some of the time, and some people all of the time but not all people all of the time.

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  • Cautious
    Jun 20, 2012 - 2:45AM

    Judicial Coup sounds like an appropriate label to me. The amazing thing is that your removing the head of your govt over something as mundane as a “contempt” order from a judge – something that may leave the rest of the World scratching their head. I also question the two month announcement delay with retroactive application — does that mean that everything that happened in the last two months (budget etc) is null/void?

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  • Mirza
    Jun 20, 2012 - 3:03AM

    @Sherlock Holmes:
    Thank you for telling the truth. One does not have to be Sherlock Holmes to find that out! The PCO SC is simply maintaining its traditions without fail. When they have to write one simple order for eligibility three times among 10 judges, it says a lot about their legal standards. No wonder they are only interested in political cases against the elected leaders and not the cases of public interest rotting in courts for decades.
    Regards,
    MirzaRecommend

  • Umer
    Jun 20, 2012 - 4:01AM

    @Fahad Karam:

    The CJ is still the CJ, not the
    president, chief executive,

    Are you sure about that?

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  • gp65
    Jun 20, 2012 - 4:39AM

    @Fahad Karam: “A ‘coup’ involves usurping someone else’s power. The CJ is still the CJ, not the president, chief executive, martial law administrator or the dark knight. This is not a coup.”

    The currentr ‘interim Chief Election Commissioner has been appointed by the CJ. IfPML.N and PPP do not reach consensus on new CEC, the next interim government would be determined by this CJ appointed interim CEC. So yes things are headed in that direction…At least that was the implication in today’s Aapas Ki Baat by Najam Sethi

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  • gp65
    Jun 20, 2012 - 4:42AM

    @Z: “The fact is that the current court is the only one in history to have stood up to a military dictator.”
    Not in 1999. This CJ did get sworn under PCO in 1999.

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  • OMKAR
    Jun 20, 2012 - 5:26AM

    Judicial coup?Maybe. With poor people roasting in June heat, rioting for electricity,and the pathetic power struggle at the top looks more like a freak show than anything else.

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  • A J Khan
    Jun 20, 2012 - 8:12AM

    PPP government has failed to deliver.
    From Law and Order to corruption to financial crises to energy crises. tHotwever the courts too have failed to deliver justice to the people of Pakistan. They have started involving in politics which are not viewed well.
    Who doesnt know the incompetance of PM Gilani, however the decision to dismiss him prima facia is POLITICAL.’

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  • A B
    Jun 20, 2012 - 8:14AM

    Thank you Mirza sahib for sustaining sense in the foregoing comments. In SC verdit, we are seeing the reign of Partial Law, after many a Martial Law. The Constitution clearly & unambiguously states that a Prime Minister can only be removed by National Assembly & its Speaker – a critical stipulation the CJ has bypassed. The Corruption is not only a transaction of money (which his son seemingly raveled in); it also is done through abuse of office & authority, which this honourless PCO judge’s done time & again. One ‘fall out’ of this judgement-less verdict will be that all those who hate PPP, will ‘suffer’ another tenure of PPP – inshallah…! Recommend

  • Lalai
    Jun 20, 2012 - 9:06AM

    Welcome CJ with your brilliant decision. Its time to send the constitution, parliament and the rest of the elected members back home. We have got a new hero who has now got all the power of Judiciary, the executive and the parliament.

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  • Jun 20, 2012 - 9:46AM

    Judicial Dictatorship maybe?

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  • Rana
    Jun 20, 2012 - 9:53AM

    SUPREME JUDICIARY instead of Judicial Coup!!

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  • Jpy
    Jun 20, 2012 - 11:34AM

    It is clearly a judiciary coup by showing over enthusiasim to topple an elected govt. If it was an establishment govt all these super judges should have kept mum

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  • Ahmer Ali
    Jun 20, 2012 - 11:56AM

    Supreme Court has proven that the Supreme Court has authoritative powers to take and announce any decisions.Well done Supreme Court very impressive usage of powers.

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  • Azmat
    Jun 20, 2012 - 12:16PM

    The general refrain is that ‘the CJ has saved his son by removing the PM’. Let me remind you that the CJ’s son and family’s future is in currently the hands of the government, not of the CJ. Just one PM has been removed. PPP can and will put in place a new PM in the next 24 to 48 hours.

    What do you think the current government will do with this case? Go easy on the CJ’s son now… if anything, they will ensure he is dragged through as much mud as possible. So can someone please tell me how the CJ’s current actions have eased the pressure on the CJ’s family or the courts?

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  • pakisatani
    Jun 20, 2012 - 1:08PM

    It is normal course of action taken as per law we being pakistani are not used to this. This is in the history of pakistan first time has happened that’s why we feel astonnished. I feel the court dicision is good in its spirit but more wise decision is of govt not to resist. There are lot of things never happend in the past could we don’t allow in present to happen this is very strange argument what courts did not do with the military dectators.

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  • Pakistani
    Jun 20, 2012 - 1:32PM

    It is a lust for power with utter disregard to the constitution. The CJ is flouting the rights of every institution on daily basis.
    Does the constitution give rights only to the CJ? How about the constitutional rights of the head of state, head of government, speaker of the parliament and the election commission?
    The supreme court has abused its rights and usurped other’s.
    This decision is totally agaist the law and it should be condemned

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  • LIAQAT ALI
    Jun 20, 2012 - 3:00PM

    I think the decison is legally very weak.And if SCP is playing politics, it is a very naeive decision as well.The only benefiary of this decsion is going to be PPP and their supporters. PPP will conduct itself as shaheed diverting attention from all the corruption and disasters it brought to the nation.The media which indirectly support PPP like ET itself get an excuse to criticize the Judiciarry and even bring their good decsions against PPP into question.For PPP use of Gelani as sacrifical lamb was never an issue. In fact they are celebrating it in President house more than people celebrating out on the streets.

    A bad decision, badly executed I would say.

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  • irfan
    Jun 20, 2012 - 3:44PM

    Thi is 100% a judicial coupe, if you read foreign papers they are also saying so. Read Wall Street Journal “Islamabad’s Judicial Coupe”. Pakistan’s elites deliver another blow to their democracy.

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  • iji
    Jun 20, 2012 - 5:32PM

    Very strange then tell me if govt alongwith national assemebly support and take any action which is otherewise against the law then to whom they would be accountable if not to supreme court then wait and lose 5 years who knows what will happen with the people of the country.

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  • Khurram Khalid
    Jun 20, 2012 - 5:36PM

    Pakistan Supreme Court has set a new precedence which will haunt all the future civilian governments unless this decision is turned down by 2/3 majority of the parliament. Pakistani establishment has invented itself a new instrument to topple civilian governments after 54 (2) b was removed from the constitution which allowed establishment backed presidents to topple civilian governments and dissolve assemblies. This present instrument in form of the SC is even more lethal for the civilian governments than the previous ones because the SC tends to mold and interpret constitutions at its will and there is no place for appeal. Opposition must understand that the SC under a new head will not spare them if they come to power and if the establishment so wanted. Today they must rise above their individual party interests and think in terms of institution.

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  • Ammad Malik
    Jun 20, 2012 - 5:59PM

    @B

    *[63A]
    [63. Disqualifications for membership of Majlis-e-Shoora (Parliament):
    (2) If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and should he fail to do so within the aforesaid period it shall be deemed to have been referred to the Election Comission.

    (3) The Election Commission shall decide the question within ninety days from its receipt or deemed to have been received and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.]*

    You, me or the court cannot decide if the question has arisen. It is the sole prerogative of the Speaker. Individuals are free to maintain their opinion, it has no bearing or effect on the power of the speaker to decide in his/her capacity.

    And if you go further back and study 248 carefully, you will realize Gilani is right now to right the letter. It is a separate matter what is right or wrong, but constitutionally speaking…….

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  • Abbas from the US
    Jun 20, 2012 - 6:45PM

    @Mirza:

    With the power that the SC has assumed for itself and played the role of judiciary, legislature and executive all rolled into one. It should go one step further and dismiss the entire parliament to be recognized as the power apparent that works exclusively on behalf of the establishment.

    I wonder if the coalition has enough support to pass an amendment to the constitution in order to limit the power of the judiiciary to the original intent of limiting its role to that of the judiciary working to interpret the laws ordained by the legislative.

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  • Rana Amjad
    Jun 20, 2012 - 8:10PM

    All the judgements against PPP & none against PML(N). Point to ponder upon!

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  • Mirza
    Jun 20, 2012 - 11:04PM

    @Abbas from the US:
    I would bet even if the NA/Senate passes such a resolution the PCO SC with divine powers would term it unconstitutional and against Islam where everybody is equal and elected members are no better than ordinary citizens. The SC would use poetry, Islamic equality and public support (they think they have a mandate) if and when it suits them.
    I would think the only way for the govt to work is go for elections with the slogan that they were not allowed to work. With the clear mandate the coalition govt could be in a much better position to deal with out of control PCO judges.
    Regards,
    Mirza

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  • Ahmed Khan
    Jun 20, 2012 - 11:11PM

    @Ammad Malik

    The prime minister was convicted in accordance with article 63.1.G. Which states that he is disqualified because he ridiculed the judiciary .

    regarding article 63.2 which gives the speaker power if a question would have arisen, it could only have come into play if the court had not mentioned 63.1.G specifically (if the court hadn’t specified the exact article, a question would have arose, and the ball would have been in the speakers court).

    But since the court specifically convicted the Prime Minister of ridiculing the judiciary according to 61.1.G. he was disqualified according to that article of constitution, so there was no question what so ever!

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  • Ammad Malik
    Jun 20, 2012 - 11:31PM

    @Ahmed Khan

    Without debating how the first verdict was deliberately vague regarding the premise of the premier’s conviction lets assume they explicitly indicted him under 63.1.G, what, according to the constitution, is supposed to happen then? The authority to remove a member of the parliament is through the speaker or election commission (as per the procedure laid out in 63.2). There is no other methodology. Court convicts, speaker decides or in a clear cut case refers it to the ECP for due process and implementation.

    Having said that, the premise of the conviction was: the premier ridiculed the court by not acquiescing to their demand for writing the letter; now as per 63.2 the court cannot summon him for this in the first place. Recommend

  • Ahmed Khan
    Jun 21, 2012 - 12:49AM

    @ Ammad Malik

    I think you are a bit confused. let me explain how:

    A. The court passed the verdict that Gillani is convicted under 63.1.G.

    B. according to the Constitution of Pakistan (not the court, not the speaker, not the ECP) he is disqualified.

    C.The speaker rules out that a question has been raised (when he has already been convicted and disqualified as per the constitution. The possibility of a question only comes in play if the court hadn’t specified the exact clause)

    D. The speaker rules out Gilani’s disqualification (he had already been disqualified according to 63.1.G!!, what the heck)

    E. Supreme court rules speakers judgment invalid, says that he(Gilani) has already been disqualified according to Constitution of Pakistan, issues notice to ECP.

    Now where did the Court go wrong?

    The court convicted him of ridiculing the judicatory. Any member of parliament who is convicted of ridiculing the judicatory is disqualified under 63.1.G of constitution of Pakistan.

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  • Jun 21, 2012 - 1:00AM

    @Cautious:
    Bill Clinton,the US president was charged and fined by the US court for having lied about his affair with Monica Levinsky…Is that a minor offense enough for you as an example :)

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  • ayesha_khan
    Jun 21, 2012 - 5:36AM

    @Sethi: “Bill Clinton,the US president was charged and fined by the US court for having lied about his affair with Monica Levinsky…Is that a minor offense enough for you as an example :)”

    Wrong example. Clitnto was charged and convicted for perjury because he lied under oath. However he was not removed from his office due to this conviction as Gilani seems to have been. Therein lies the difference. Only if the impleachment motion against him in COngress had succedded similar to a No confidence motion in parliament, then he would had to leave his post. Since he was not impeached by Congress he continued as President. But in Pakistan even though he did not lose vote of confidence he was still removed.

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  • Ammad Malik
    Jun 21, 2012 - 7:06AM

    @Ahmed Khan

    Its quite funny what you’re saying. You’re calling me confused; you’re premise is that 63.1G clearly states he is disqualified and there is no room for interpretation, By that same doctrine as you apply, 248 excuses him from any such accusation in the court of law.

    I’m not confused, I think you’re letting emotions get the best of you.

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  • HMM
    Jun 21, 2012 - 9:32AM

    The constitutional way was to send this to speaker and the speaker had to send reference to the EC in one month. Also during this time, the PM had the right to appeal which he didn’t as mislead by some people. And if the speaker does not send it to EC in month then automatically it will be considered with EC who is the authority to notify the disqualification of PM. So what actually happened is that the Speaker instead of doing her job passes a ruling dismissing SC decision which is unconstitutional. Hence, agaist this act of Speaker, PTI and some other people went to court, which after giving full opportunity to the PM to defend (that’s why it took so much time and for which you are lamenting) but he couldn’t. Hence, the SC gave the decision.

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  • HMM
    Jun 21, 2012 - 9:33AM

    One question from you and all those who defend PM: Wasn’t the PM convicted on 26 April? if Yes, can a convicted person be a member of the parliament? Constitutionally the answer is very clear and that is “NO”. So what was so ambiguous in that decision the a whole lot of parliamentarians and bunches of lawyers and intellectual people like you could not understand about the 26 April decision. Instead of blaming SC, you should blame PM who did went on himself when he know that he no more member of the parliament.

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  • Jun 21, 2012 - 10:25PM

    There is no question that, in their genuine zeal to tame widespread government corruption, Pakistan’s top judges have run amok by usurping powers for themselves that were never intended for them by the framers of the constitution. It’s clearly a case of ends justifying the means. The timing of the judgment also raises questions as it comes just days after billionaire businessman Malik Riaz Husain accused the Chief Justice’s son of accepting millions in bribes to swing cases. There are also significant issues of precedent. The judgement cites, for instance, two Indian court cases. Both the Rajendra Singh Rana vs Swami Prasad Maurya case and the Jagjit Singh vs State of Haryana case deal with the disqualification of members of State Assemblies on charges of defection which cannot serve as precedent for removing a Prime Minister or even a Chief Minister.

    http://www.riazhaq.com/2012/06/welcome-judicial-coup-in-islamabad.html

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  • Jun 22, 2012 - 2:05AM

    Can someone set itself up against and above the constitution.There is something behind all this !

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