The SC on the army and ISI chiefs’ removal

Published: January 24, 2012
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The writer is director current affairs at Dunya TV and a former fellow at Asia Centre, Harvard University 
nasim.zehra@tribune.com.pk

The writer is director current affairs at Dunya TV and a former fellow at Asia Centre, Harvard University nasim.zehra@tribune.com.pk

On December 28 a man by the name of Fazal Kareem Butt filed a petition in the Supreme Court claiming that the government was about to remove the army chief and the DG ISI and that the Supreme Court should seek guarantees that this should not happen since that would undermine his fundamental rights, under Article 189. The petitioner argued that martial law was triggered in 1999 upon the fear that the then army chief had been sacked and hence a repeat of that would undermine the public good.

In my detailed discussions with the petitioner, I came to know of three important facts. One, that his petition was based on three reports that had appeared in The News, and where a defence analyst had raised the possibility of a mutiny. Apart from these reports there was, he said, no other evidence for his view that the removal of Generals Kayani and Pasha was imminent.

That said, the petitioner insisted that the removal from service on January 11 by the prime minister of the defence secretary, and replacing him with a “pliable” was a prelude to the removal of the two generals. He was reminded, however, that the defence secretary was charged with creating misunderstanding between the army and the executive and therefore this was more of a statement to re-track the prime minister’s earlier uncalled-for statement to a Chinese newspaper where he had said that the filing of affidavits filed by the army and ISI chiefs was an unconstitutional act.

The second point made by the petitioner was that he was a lawyer for the recently-removed defence secretary. And the third was that he had, on and off, appeared before the courts as a lawyer for the Pakistan Army, i.e. when they have needed civilian lawyers

Interestingly, initially the deputy registrar returned the petition with some objections. The petitioner went into appeal and the Chief Justice of Pakistan called him to his chamber, and after that fixed a date for a hearing to determine whether the petition could be admitted. At that hearing, the CJP asked the attorney-general appearing before him if the prime minister was going to fire either General Kayani or Pasha to which the law officer said “no”. The CJP then adjourned the court for two weeks and the attorney-general was told that by then he would be required to submit a written statement by the government.

This particular case of the petition, of the CJP holding a preliminary hearing as a result of an appeal, the observations that he made, the questions he asked of the attorney-general, and finally the demand he made all raise major questions regarding due process and rule of law.

First, the petition was entirely based conjecture, with no concrete evidence provided by the petitioner. Two, Mr Butt has been a lawyer for the Pakistan army and is now a lawyer for the defence secretary who was recently removed and hence there is a clear possibility of a conflict of interest. Three, and above all, should not the appeal that the CJP heard in his chamber been one that should have been heard in the open, so that all sides could be heard.

The prime minister is within his constitutional authority to remove the two chiefs, and therefore under what law would the Chief Justice of Pakistan interfere in the prime minister’s authority and ask for a no-removal guarantee by the latter? Giving such a guarantee would clearly restrict the constitutional powers given to the elected prime minister. Was the CJP overstepping his constitutional mandate? The CJP can re-interpret or use his own discretion, but not without undermining the Constitution.

Such an action by the CJP could set a dangerous precedent and could undermine the recent thawing of government-army tensions. The Chief Justice of Pakistan is humbly advised to re-trace his missteps on this matter. Meanwhile, the government would be ill-advised to give in writing that it will not remove the army and the ISI chiefs.

Published in The Express Tribune, January 25th, 2012.

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Reader Comments (24)

  • logic europe
    Jan 24, 2012 - 11:53PM

    a very thoughtful genuine article
    congradulations on being the child in emperors new clothes

    Recommend

  • ishaq
    Jan 25, 2012 - 12:08AM

    3 Words can Explain it all “Judges are Biased”

    Recommend

  • American Desi
    Jan 25, 2012 - 12:17AM

    The current CJP is the most power corrupt in the recent history of Judiciary! By the time he leaves office the judiciary will be absorbed into Pakistani establishment totally.

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  • MUNIB
    Jan 25, 2012 - 12:34AM

    Excellent article

    Recommend

  • Javaid R. Shami
    Jan 25, 2012 - 12:47AM

    Um, yes, Ms Zehra seems to have got this one right. Now, if she could also see some merit in allowing guests on her show, Policy Matters, a little, not too much mind you, just a little leeway when they are critical of the army and call it on its transgressions.

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  • khan
    Jan 25, 2012 - 1:38AM

    Great article. Unfortunately we have customized laws..

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  • explorer
    Jan 25, 2012 - 1:40AM

    Nice and bravo, Hats off

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  • Farhan Gilgiti
    Jan 25, 2012 - 1:52AM

    Chief Justice of Supreme Court Mr. Justice Iftikhar Chaudhary cannot dictate an elected government on hiring/firing of government officials.

    Having said that, I am sure the PM and President would not be foolish enough to sack the Chiefs. If they were not fired after the Abbottabad debacle, then they should not be included in the list of “martyrs”.

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  • Sindhvoice
    Jan 25, 2012 - 2:08AM

    Bravo.Thanks for writing thought provoking article. CJP should NOT overstep into the boundary of Executive, Yesterday, Election commissioner was complaining of the similar thing. We need effective and upright Judiciary, not hyper active and media savvy.

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  • Cautious
    Jan 25, 2012 - 3:26AM

    Fascinating — someone can go to the SC and get action based on nothing other than an unsubstantiated article in a newspaper. It’s even more appalling that the SC totally ignored the entire basis of the article which was focused on a potential coup by the military – and chose to focus on the possibility that the govt might take peremptory action to remove the players behind the alleged coup. This stuff is blatantly political and tarnishes the reputation of the SC. Is there anything that isn’t corrupt. politicized, inept in Pakistan – the SC was my last holdout and apparently that was wishful thinking.

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  • Jan 25, 2012 - 3:47AM

    Was the CJP overstepping his constitutional mandate?
    this is a no-brainer.
    the honourable CJ is clearly overstepping lately.Recommend

  • Uza Syed
    Jan 25, 2012 - 4:16AM

    Good job Ms. Zehra, this is exactly what people in your shoes ought to be doing—–keeping an eye on everyone in any position of power and also raising questions about their behaviour and actions in the matter of public interest. It’s especially important that people in the business of dispensing justice and protecting our rights as citizens are not allowed to go beyond their limits of powers as envisaged by our constitution. Thank you for this great public service.

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  • haroon ali
    Jan 25, 2012 - 5:21AM

    Well said. Under what law did CJ asked the government in writing not that they will not sack Army Chief or DG ISI? And what about the news items where these two authorities were about to set a military coup? Did CJ called them too and asked them whether these news items were true or not.

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  • Amjad
    Jan 25, 2012 - 5:38AM

    Our CJ thinks only Judiciary is the institutions rest are just crowd. Very much like a feudal who thinks he is fountain of wisdom and all powerful in his ‘dera’ !
    Unfortunately, majority of the judges are handpicked by him from among the slogan monger lawyers during the political parties supported movement for the restoration of judges so it will take time for sanity to prevail until parliament changes the process of appointment of judges.

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  • vasan
    Jan 25, 2012 - 7:13AM

    I think things have gone into the heads of CJP and his cojudges like the pak army. Pak PM has all the powers to sack anyone in the cabinet and the army, CJP cannot question that.

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  • Haji
    Jan 25, 2012 - 8:31AM

    Nasim Zehra, you are hereby served a show cause notice for Contempt of HONORABLE Court !

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  • Mirza
    Jan 25, 2012 - 9:41AM

    PM has constitutional power to fire any govt employ if they are not performing or have failed miserably to protect the lives of citizens. Govt should assure the court that “they would not do anything unconstitutional”.

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  • observer
    Jan 25, 2012 - 9:45AM

    The Higher Judiciary of Pakistan has finally given its hand away in this case. The CJP has extracted an assurance on behalf of the PM for non-removal of the Generals. Now even though the PM , constitutionally, would be well within his rights to remove any General, including those already on an extension, if he does so, he can be charged with ‘Contempt of Court’.

    Constitution of Pakistan, please take a hike.

    Recommend

  • Ashvinn
    Jan 25, 2012 - 10:14AM

    Well very system tends to falls prey to defects, it is good that people of your intelligence and following among can point out the issues, all this augurs well for Pakistan.This how you build nations

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  • Nadeem
    Jan 25, 2012 - 11:20AM

    To carry forward Asma Jahangir’s analogy, this is like a wife going to the judge and asking him to put a stay order on the husband’s right to divorce her. Furthermore, she says that if he does divorce her, she would murder him. The judge – instead of putting a restraint order on her as a potential assassin – asks the husband to give in writing that he will surrender his fundamental right of divorcing her.

    Recommend

  • AA
    Jan 25, 2012 - 1:16PM

    A timely article.

    The CJ has thousands of pending cases before the Supreme Court, some of them demanding urgent attention. How will he attend to those cases if he fritters away his time and energy on such frivolous petitions?

    Recommend

  • Raja
    Jan 25, 2012 - 2:14PM

    While the author has chosen her words carefully in the criticism of the SC’s judgement (and I completely agree with her), some of the comments here could be in contempt of the judiciary/ courts. Not too sure if ET can be held accountable for the comments, but it can get into trouble and may want to be more careful with its moderation

    Recommend

  • Raheel
    Jan 25, 2012 - 8:16PM

    The haste of so-called Apex court was so much that they put the whole country in frenzy and uncertainty over the claims of one dubious American citizen, and they literally threatened government with severe consequences and carried on with the hearing of a baseless case. Now the same American citizen has slapped them with a shoe. This shady and seedy character of memogate scandal Mansoor Ijaz met US envoys in Switzerland for further instructions to humiliate the Pakistan and its people, and it’s people’s government. Mansoor Ijaz has ridiculed the commission by not appearing before it despite promising twice and must be laughing on the courts.
    Now courts should show some sort of sanity and forfeit the right to testify for Mansoor Ijaz. This will perhaps restore a semblance of confidence in the courts, and courts should focus on millions of pending cases of common people and let go of PPP and its leadership.

    Recommend

  • panapodi
    Jan 26, 2012 - 7:48PM

    excellent ms zehra
    can somebody ask the honorable SC to get the explanation about the trips Gen pasha took to undermine the govt ala memogate or is it only one way transactionRecommend

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