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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) 
 
 
¶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