The moment of utter shame for CJ Chaudhry (and the entire court) was the Arsalan Iftikhar saga. Loud protestations of innocence did not prevent the court’s fall from grace in the pubic eye. If there was a time when CJ Chaudhry ought to have resigned to save his honour instead of showing up for work with the Holy Book in hand, it was when his son was caught red-handed. [BABAR SATTAR]
In measuring up Chaudhry’s tenure as chief justice there are five broad areas that invite comment: judicial independence; suo motu powers; judicial appointments; judicial reform; and Arsalan Iftikhar.
CJ Chaudhry’s lasting contribution to Pakistan is that no one dare mistake the judiciary for being an extension of the executive anymore. Judges no longer fear falling out of favour with the ruler of the day and we are better off for it. CJ Chaudhry might be retiring and the pendulum of activism might swing back a notch causing desirable correction, but the Supreme Court will remain a powerhouse.
It doesn’t matter that in fighting for the constitutional protection afforded to judges, CJ Chaudhry was in fact fighting for his job. Had he chosen to resign and go home on March 9, 2007, judicial independence would still be in its infancy. His decision to defy the might of the state wasn’t without grave personal consequences. His standing up created a window of opportunity that has strengthened the rule of law.
There is no question that we need a strong independent judiciary to act as an effective check on abuse of power by the executive. What CJ Chaudhry’s reign has done is highlight that we also need an effective system of internal checks to ensure that the judiciary doesn’t commit the misdeeds it is meant to check in others.
Freedom from external interference is one dimension of judicial independence. The other is the ability of the individual judge to discharge functions without interference from peers. This dimension, fettered historically by the misconceived notion of pater familias, has suffered further under CJ Chaudhry who ran a tight ship.
In the initial run after restoration, judges shared the desire to stick together and fight their fights against the PCO judges and the NRO government. This is when we saw large benches and unanimous decisions. The bonhomie probably ended with the challenge to the 18th Amendment.
As some judges refused to become party to striking down a constitutional amendment, the matter had to be sent back to parliament for reconsideration as a compromise.
Internal differences grew with the Memogate controversy and the trigger-happy use of suo motu by CJ Chaudhry. And we saw in the last year excessive reliance on administrative powers to constitute smaller benches, pack off independent-minded judges to other cities along with inconsequential cases and reserve suo motus and other populist matters for Court One.
Both in relation to suo motu and the authority to nominate judges we saw CJ Chaudhry monopolise the collective power of the Supreme Court and the Judicial Commission, respectively. First he managed to get himself granted the exclusive right to make judicial nominations. And then in exercise of judicial power the court diminished the parliamentary committee’s role in scrutinising judicial appointments. While the Supreme Court has rightly ruled that appointments and promotions within the executive must be the product of an open, rigorous and purposive process, if the same principles are applied to judicial appointments under CJ Chaudhry, many of the appointments might not pass muster.
The use of suo motu by CJ Chaudhry has been problematic. Since its use rests on the will of one man, its exercise is random and inconsistent by design. For example, there is no way to understand suo motus over increase in sugar prices or recovery of two bottles of wine from someone’s luggage except as whimsical populism. Media’s role in suo motu incitement also cultivated its raunchy relationship with the CJ office that is not in accord with the judicial code of conduct.
By laying down no clear judicial tests for ‘public importance’ and ‘fundamental rights’ for Article 184(3) purposes or clarifying the nature of relief the court ought to grant, suo motu has become a source of legal uncertainty. The manner of its use denied the accused the presumption of innocence, curbed the right to appeal, and raised doubts about the court ability to act as an impartial arbiter of the law.
The use of suo motu might have cultivated in public mind the image of the chief justice as a saviour. But it has done so at the expense of our ordinary judicial system as everyone now wishes to be heard directly by our highest court. It is true that the need for suo motu arises due to a malfunctioning governance system. But it is equally the failure of ordinary judicial processes that create a need for fire brigade operations fulfilled in turn by Supreme Court’s suo motus.
CJ Chaudhry’s biggest failing is that since June 2005 he has allowed a moribund court system to limp along under his watch. Instead of throwing his weight behind rebuilding and strengthening sustainable judicial processes, he relied on suo motus to create the perception of a functional judicial system, which is nothing more than a top heavy structure suspended in mid air with moth-eaten foundations incapable of serving the judicial needs of all aggrieved Pakistanis.
The moment of utter shame for CJ Chaudhry (and the entire court) was the Arsalan Iftikhar saga. Loud protestations of innocence did not prevent the court’s fall from grace in the pubic eye. If there was a time when CJ Chaudhry ought to have resigned to save his honour instead of showing up for work with the Holy Book in hand, it was when his son was caught red-handed.
CJ Chaudhry’s legacy is a mixed bag. He will be remembered as the politician judge who resurrected an independent judiciary, but driven by power, went too far pushing personal agendas and wading into the business of other vital state institutions. None of this should however prevent the Supreme Court Bar Association from preserving tradition and hosting a farewell dinner for the outgoing chief justice even if not for the man.
BY; BABAR SATTAR
The writer is a lawyer. firstname.lastname@example.org Twitter: @babar_sattar
Some of it, it is alleged, was driven by the CJ`s love of publicity. It`s plausible on the first day of his restoration, he walked up the stairs to his office on the top floor of the building. The clever move pro-vided visuals to the 24/7 news channels as each one of them showed the climb. It was a moment that captured the CJ and his era.
For individuals however larger than life they may be are a product of their times and the CJ is no different. He captured the imagination of a nation that was tiring of a dictator and learning to shape its destiny as the news camera stood witness.
General (retd) Musharraf provided a focal point for those opposing him when he sacked the CJ. The political parties, the lawyers, the same middle class that Musharraf was said to have mid-wifed.
And of course the television cameras turned this into the stuff of legends the 26-hour journey to Lahore from Islamabad, the May 2007 visit to Karachi and even the final Long March in 2009.The dictator slayer understood this. He returned after a revolution that had been televised and he ensured that the cameras didn`t stop rolling.
He thundered against corruption, chastised bureaucrats and police officials, treating them with the contempt ordinary people wished they could exercise. He personified the aam aadmi when he reminded the politician that his job was to serve the people.
A lawyer who does not want to be named says: `The CJ needs to be seen in his two roles his historic defiance to Musharraf, which no one can ever deny him, and then as an ordinary judge where he faulted again and again.
His courtroom proceeded to provide fodder to the 24/7 ticker monster with a voracious appetite.
In an age of experience where politicians were bound by economic constraints and could no longer promise roti, kapra aur makaan, the CJ became the mediaeval king whose darbar was open to all those who could send in a petition or get a journalist to report their story.
At the same time, the traditional saviour of the people, the army, was also busy patching its uniform that had seen considerable wear and tear during the Musharraf era.
Within this context, Chaudhry made all the right sounds, especially for the burgeoning middle class that wanted not just employment and food hand-outs from it selected representatives but also merit and honesty.
He promised to check sugar prices, corruption, appointments made on the basis of nepotism and shady contracts that were finalised after alleged kickbacks. Cartel owners, investors and prime ministers were dragged to the courts.
Bureaucrats were kept so busy that they complained they had little time left for their work.
And most were treated with disdain. For instance, Adnan Khawaja, whom then prime minister Yousuf Raza Gilani appointed as the head of OGDCL, was berated for his young age when he appeared in the court. Few managed to give as good as they got, such as former attorney general Irfan Qadir whose verbal sparring in Courtroom One was relished by many.
The Swiss cases proved such an obsession that the Supreme Court sent home an elected prime minister despite warnings that it would derail a fledgling democracy.
Perhaps, someone remembered that the middle classes in most developing countries have always prioritised honesty over democracy.
Be as it may, this was not the only time Iftikhar Chaudhry`s court was accused of judicial over-reach. The International Commission of Jurists` latest report on the SC provides an excellent and comprehensive analysis of the court`s activities.
Ahmer Bilal Soofi, who is a Supreme Court advocate as well as a former federal minister, advocated for strategic judicial restraint in the future, adding that `each time there is a violation of a rule or an audit objection, corruption cannot be assumed and a criminal case registered. The courts and NAB have to have proof of corruption before proceeding` He said the government, its bureaucrats and entrepreneurs should be given a chance to take quick decisions and turn the wheel of economy.
His views were seconded by a former government official who said that the SC had hampered decision making in the executive.
By this time, his earlier supporters had distanced themselves from him the gutsy lawyers who had led the initial onslaught against Musharraf in support of Chaudhry (Asma Jahangir,Aitzaz Ahsan and Ali Ahmed Kurd, to name a few); political parties such as the PPP and the ANP that shed blood for his restoration became his biggest critics and even within the bars there were whispers. And then came the harshest blow his son`s alleged corruption that left a dark stain on his reputation.
It`s a stain that has not faded with time.
But the final blow came just recently when protesting lawyers outside his Court House were attacked by the police. The incident brought home his isolation from his support base.
But perhaps more importantly, Chaudhry`s justice was of the mediaeval variety akin to the caring rulers who roamed the streets to check on the welfare of their subjects. This individualised approach to justice remains just that popular folklore that does not impress thosewho record history.
Sugar prices remained unchanged while the real estate juggernaut Bahria Town too ploughs ahead and McDonalds still continues to sell its burgers from the corner of the F-9 park in Islamabad; judgments cannot change market forces nor institutional working.
As an observer pointed out, `he never strengthened the judicial system, especially its lower tiers`.
The most famous political cases drag on unresolved soap operas in which the audiences have lost interest. The NRO implementation case; `Memogate`; Bahria Town`s land cases none has come to a clean end with a judgment that offers the flawed polity a new beginning or a new direction. The detailed judgment on the 18th amendment is also awaited.
Even with the missing people`s case, where the CJ`sharshest detractors have praised him, the court has simply had the Angelina Jolie effect. The high-profile hearings have given it national prominence. But beyond that, the disappearances continue, the mutilated bodies are still dumped and the relatives` search has not ended. (A lawyer described the order passed on Tuesday as `an eyewash`.) In other words, at the end the CJ proved that while judges can aspire to be charismatic figures who speak `populese` instead of `legalese` governance tasks are best left to those who accept the responsibility and the authority to rule.
His tenure reminds us that justice at the end of the day is not bigger than the system that ensures it. In most cases he had to turn to the very executive that he berated and held in contempt and asked it to investigate; establish factsor make laws. This is why perhaps all Chaudhry could do decisively was to overturn the NRO that Musharraf had bulldozed in his last days and which enjoyed little to no support. So when the court asked parliament to ratify it, everyone backed off and Chaudhry`s supporters chalked it down as a victory.
That is all the revolutionary judge will leave behind when he exits the big white building on Dec 11. Even the television cameras, his steadfast allies, will remain behind. He will walk away, aware that Musharraf will define Chaudhry`s legacy as much as Chaudhry defines Musharraf`s. The legal aspect will always remain secondary.
As journalist and analyst Nusrat Javed puts it: `The chief justice is leaving as a strong man without a legacy.
The writer is Dawn`s Resident Editor, Islamabad
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