Identifier
Created
Classification
Origin
09LAHORE167
2009-08-17 06:25:00
CONFIDENTIAL
Consulate Lahore
Cable title:  

PUNJAB ATTORNEYS CONSIDER SUPREME COURT RULINGS PIECEMEAL

Tags:  PGOV PHUM PK 
pdf how-to read a cable
INFO LOG-00 EEB-00 AF-00 AID-00 AMAD-00 INL-00 DOEE-00 
 PDI-00 DS-00 DHSE-00 EUR-00 OIGO-00 FBIE-00 VCI-00 
 H-00 TEDE-00 INR-00 IO-00 LAB-01 L-00 MOFM-00 
 MOF-00 VCIE-00 NEA-00 DCP-00 NSAE-00 ISN-00 OIC-00 
 NIMA-00 PA-00 GIWI-00 PRS-00 P-00 SCT-00 ISNE-00 
 DOHS-00 FMPC-00 SP-00 IRM-00 SSO-00 SS-00 STR-00 
 NCTC-00 SCRS-00 DSCC-00 PRM-00 DRL-00 G-00 NFAT-00 
 SAS-00 FA-00 SRAP-00 SWCI-00 PESU-00 SRMC-00 /001W
 
O R 170625Z AUG 09
FM AMCONSUL LAHORE
TO SECSTATE WASHDC IMMEDIATE 4147
INFO CIA WASHDC
AMEMBASSY ISLAMABAD 
AMEMBASSY KABUL 
AMCONSUL KARACHI 
AMEMBASSY LONDON 
AMEMBASSY NEW DELHI 
NSC WASHINGTON DC
AMCONSUL PESHAWAR 
SECDEF WASHINGTON DC
USCENTCOM INTEL CEN MACDILL AFB FL
AMCONSUL LAHORE
C O N F I D E N T I A L LAHORE 000167 


E.O. 12958: DECL: 8/11/2019
TAGS: PGOV PHUM PK
SUBJECT: PUNJAB ATTORNEYS CONSIDER SUPREME COURT RULINGS PIECEMEAL
AND INCONSISTENT

REF: ISLAMABAD 1784


CLASSIFIED BY: Matthew Lowe, Acting Principal Officer, Consulate
Lahore, U.S. Department of State.
REASON: 1.4 (b),(d)


C O N F I D E N T I A L LAHORE 000167


E.O. 12958: DECL: 8/11/2019
TAGS: PGOV PHUM PK
SUBJECT: PUNJAB ATTORNEYS CONSIDER SUPREME COURT RULINGS PIECEMEAL
AND INCONSISTENT

REF: ISLAMABAD 1784


CLASSIFIED BY: Matthew Lowe, Acting Principal Officer, Consulate
Lahore, U.S. Department of State.
REASON: 1.4 (b),(d)



1. (C) Summary: Punjab attorneys from across the political
spectrum criticized Chief Justice Iftikar Chaudhry's July 31
rulings against judges appointed during former President
Musharraf's last 18 months in office as political and piecemeal,
they said in a series of meetings with Acting Principal Officer.
Chaudhry Fawad Hussain, who represents former President
Musharraf, warned that the dismissal of so many justices allows
the Chief Justice to stack the High Courts with Pakistan Muslim
League-Nawaz (PML-N) allies. Ahsan Bhoon, removed from the
Lahore High Court as a result of the judgment, complained that
the Chief Justice spared other judges who met the criteria for
removal, a principle that he termed "pick-and-choose." Nawaz
Sharif's attorney, Ashtar Ausaf Ali, described Chaudhry's
judgment as politically expedient, but discriminatory. Only
former Secretary General of the Lahore High Court Bar
Association Rana Asadullah Khan defended the decision as a
landmark bulwark against military coups. End Summary.

- - -
Former LHC Judge Bemoans Pick-and-Choose Judgment
- - -


2. (C) Former Lahore High Court Justice Ahsan Bhoon told Acting
Principal Officer (A/PO) August 6 that the Supreme Court's July
31 ruling "applied a principle of pick-and-choose." According
to Bhoon, the decision delineated three categories of judges:
those appointed under the Provisional Constitutional Order
(PCO),during the November 3-December 15, 2007 Emergency, and
after December 16, 2007 by then-Chief Justice Dogar. Bhoon fell
into the latter category, which entailed immediate removal,
according to the Supreme Court's ruling; judges in the first
category can remain but face proceedings under Article 209 for
violating the requirement of a seven-member bench. Bhoon
admitted that his affiliation with the Pakistan People's Party
(PPP) likely hurt his case in the "sharif courts." [Note: The
term "sharif courts" plays on a pun that involves the meaning of
sharif as noble and the fact that Chief Justice Iftikar Chaudhry
owes his March 2009 return to Nawaz Sharif. End Note.]

- - -
Lack of Judges Slow Courts
- - -


3. (C) The immediate impact of the decision will hurt the

forward movement of any ongoing trial, Bhoon observed.
"Litigants will suffer because everything has stopped," he
warned. The decision sacked 34 judges from the Lahore High
Court, while 14 face Article 209 proceedings, which resulted in
a mere eight currently sitting on the bench in Lahore, he
detailed. The dearth of justices has resulted in the temporary
closure of the Rawalpindi, Bahawalpur and Multan benches, while
the Lahore bench will only hear habeas corpus and bail cases
until the Supreme Court confirms new justices, he related.
Moreover, Bhoon highlighted, the new justices will require
significant on-the-job training before they can take on a full
caseload.

- - -
Iftikar Chaudhry and PML-N Can Stack Courts, Provoke Political
Strife
- - -


4. (C) According to Chaudhry Fawad Hussain, who represents
former President Musharraf, the dismissal of 105 judges,
including many confirmed under President Zardari, provides an
opportunity for the Chief Justice to install his and Nawaz
Sharif's people. "There is a huge void of vacancies, and this
will create a huge imbalance," he cautioned in an August 11
meeting with A/PO. He noted that he had just seen the list of
35 nominated replacements for the Lahore High Court sent by
Lahore Chief Justice Khawaja Sharif to Governor Salman Taseer,
which exclusively contained Pakistan Muslim League-Nawaz (PML-N)
affiliates. He highlighted that Hafiz Abdul Rehman Ansari, a
"staunch Jamaat Islami" advocate, appeared on the list.


5. (C) Governor Taseer traveled to Islamabad August 11 to
consult with President Zardari about an official response to the
nominated judges, Fawad Hussain reported. However, the 1999 Al
Jihad case shifted the burden of recommendations for justices
from the executive branch to the Supreme Court, which means
Zardari can do little beyond a formal rubber-stamp confirmation,
he explained. But he expected that the attempt by the PML-N to
install its allies will provoke a political debate with the PPP
government.

- - -
Iftikar Chaudhry Applies Pick-and-Choose Principle
- - -


6. (C) Iftikar Chaudhry opened himself up for criticism by
applying an inconsistent standard to remove justices, the
attorneys said. "He has chosen his own people," former Justice
Bhoon underlined, and cited people affiliated with the Chief
Justice whom he protected, such as the Sindh High Court Chief
Justice whom Dogar elevated. "Ultimately this is judicial
martial law," Bhoon declared. Ashtar Ausaf Ali, who served as
Advocate General in Punjab and represented Nawaz Sharif in his
recent acquittal of hijacking, critiqued the "discriminatory"
decision because it spared certain judges and saved various
ordinances issued during the Musharraf Emergency, thus failing
to address the ultimate question of legitimacy.


7. (C) Mohammad Ahmad Pansota, who opened his own practice after
working in Ausaf Ali's firm, dubbed the decision as "random."
"The line has been negatively drawn, and should have been done
just after 1999," he advised. Instead, the decision reflects
Iftikar Chaudhry's personal preferences. "The text of the
judgment makes his anger and vengeance clear," he noted. PML-N
Member of the National Assembly (MNA) Chaundry Naseer Ahmad
Bhutta agreed in an August 10 meeting with A/PO that the ruling
offered a perilous defense of the constitution.
"Pick-and-choose has taken place," he reiterated.

- - -
Musharraf Not Too Worried
- - -


8. (C) The lack of a clear judgment against Musharraf
demonstrated Iftikar Chaudhry's careful approach to politics,
the attorneys noted. Pansota called the decision
"three-quarters political, but directed at the parties, not just
Musharraf." Fawad Hussain acknowledged that the although the
Supreme Court issued a notice against the former President, the
decision "fell short of what people wanted it to do." However,
he continued, the mere notice has opened the floodgates for
anti-Musharraf media to try Musharraf in the press, which will
increase pressure on Zardari to prosecute. "How far can the PPP
resist pressure for a Musharraf trial," he wondered. But
Musharraf is "not too worried," Fawad Hussain conveyed.

- - -
Will The Judgment Protect Democracy?
- - -


9. (C) Ashtar Ausaf Ali recognized that the Supreme Court took
on the responsibility of judging the Musharraf regime only after
the National Assembly failed. He believed that the judgment
relayed "it is not in the domain of any court or judge to give
power to successful dictators." The ruling established that
"the Constitution reigns supreme and even Parliament cannot make
amendments to the Constitution in conflict with the basic
structure," he explained.


10. (C) Ausaf Ali saw the judgment as a safe ruling by the Chief
Justice. "He didn't want to rock the boat," he quipped. He
noted that lawyers leader Aitzaz Ahsan called on Chief of Army
Staff Pervez Kayani before issuing the decision, and he surmised
that Kayani drew a clear line. "Iftikar Chaudhry knows it was a
stroke of luck that he came back. He has nothing in his favor
except Nawaz Sharif," he related. As a result, he noted, the
decision lacks a citation of the portion of Article 199, which
stipulates civilian rule over the military. Ch. Fawad Hussani
opined that the 1974 Asma Jilani decision established a much
stronger bulwark against military dictatorship, but failed to
prevent a coup three years later.


11. (C) Rana Asadullah Khan, a former Secretary General of the
Lahore High Court Bar Association and close confidant of Iftikar
Chaudhry, told A/PO August 10 that the decision can help prevent
military dictatorships. "This landmark decision redefined the
rule of the judiciary and the conduct of judges during a
military government," he explained. In its citation of Article
6, the Supreme Court also "showed Parliamentarians realize their
duty to initiate proceedings," he noted. Fawad Hussain conceded
that the judgment, despite its flaws, "will strengthen
democracy." But, Pansota pointed out, "Army generals do not
care about court judgments."

- - -
Comment: Mixed Decision Creates Confusion and Potential Clash
- - -


12. (C) While the July 31 ruling has hampered an already
overburdened judiciary by removing such a large number of
justices in one gavel stroke, the decision has generated even
more political uncertainty. The potential for court-stacking
could trigger a clash between the PML-N and PPP, who will feel
disenfranchised from the system. Moreover, with the PML-N
steering the judiciary and the PPP sitting in the executive, the
federal government itself could face political bickering and
potential paralysis, as one branch of government counters the
other. The judgment may have attempted to reinforce democratic
institutions, but in doing so Iftikar Chaudhry has laid the
conditions for greater political unrest.


LOWE