By Ali Dayan Hasan
January 21, 2014
Former Pakistan Supreme Court Chief Justice Iftikhar Chaudhry, who retired on December 11, 2013, has earned a place in Pakistan's history as the first chief justice to successfully defy a military ruler's attempt to dismiss him. His defiance set off the "lawyers' movement," whose members took to the streets to defend judicial independence.
In March 2007, when the then-military ruler, General Pervez Musharraf, arbitrarily removed Chaudhry from office, the lawyers' movement stood up for both the chief justice and the institution he represented. Upholding the fundamental principle of judicial independence meant supporting Chaudhry's claim to regain his position, which he did in March 2009.
So, why is it such a relief to see Chaudhry go?
Pakistan's tenaciously independent chief justice also turned out to be political, arbitrary and irresponsible. Upon returning to office, he presided over the firing of judges without giving them the same due process he had demanded of Musharraf. He refused to accept parliamentary oversight of judicial appointments, threatening to overturn a unanimously passed constitutional amendment to that effect unless it was revised. Parliament complied to avoid a confrontation.
Chaudhry also made unprecedented use of suo motu proceedings—the court acting on its own motions—to engage in unwarranted intrusion into the legitimate domain of the legislature and the executive. Suo motu proceedings in defence of fundamental rights are good, but in case after case Chaudhry acted as if the Supreme Court was not a co-equal branch of government but a de facto legislature and executive branch.
Further, Chaudhry used his discretionary powers to oversee, hire and fire government officials, intervening in governance areas ranging from economic policy to traffic management. He seemed to relish triggering constitutional confrontations with parliament and government, undermining the elected parliament and disrupting governance just when Pakistan was undergoing a difficult transition to civilian rule.
In just one example, in December 2011, Chaudhry embroiled the Supreme Court in the "Memogate" scandal by agreeing to investigate Pakistan's former ambassador to the US on charges that he attempted to conspire with the US against Pakistan's military. Such an investigation was the responsibility of the government, not the Supreme Court. However, showing his biases, Chaudhry did not investigate allegations from the same source that the head of Pakistan's security services, the Inter-Services Intelligence, had conspired to oust the elected government.
In June 2012, a Supreme Court bench headed by Chaudhry took the unprecedented step of firing Prime Minister Yusuf Raza Gilani for "scandalizing the judiciary." Gilani had refused to sign a letter to the Swiss government asking for an investigation into corruption allegations against then-president Asif Zardari, even though the Swiss government said that it would not act on such a letter. Chaudhry's order appeared to be an attempt to settle a personal score—many independent observers called the move a "judicial coup." After all the controversy about the way Musharraf had sidelined the judiciary, the government decided to avoid a constitutional crisis and nominated a new prime minister.
When a corruption scandal involving Chaudhry's son emerged around the same time, Chaudhry first used his suo motu powers to seize judicial control of the investigation and then effectively prevented the investigation from proceeding.
Chaudhry treated attempts at oversight or accountability of the judiciary, however reasonable or justified, as a personal attack. He muzzled media criticism by the use or threatened use of overbroad "contempt laws."
While Chaudhry lashed out at his critics, access to justice in Pakistan remained abysmal and the courts remained rife with corruption and incompetence. Case backlogs stayed huge at all levels of the court system.
Chaudhry's supporters make much of his credentials as a champion of human rights causes. He deserves credit for standing up to a military dictator. He took a strong stand on government abuses in Balochistan and demanded the return of terrorism suspects forcibly disappeared by the military. However, after his much-publicized hearings into arbitrary arrests or disappearances, no military or intelligence officer was held accountable, even though he "loudly opined" in court that the military had been responsible.
Chaudhry showed political bias by focusing much of his energy on abuses against Islamists, while saying little about the bombing campaign by Islamist militants that killed tens of thousands and destabilized the country. On attacks on religious minorities and issues that would anger Islamists, he generally chose not to use his suo motu powers or to speak up, such as after the assassination of Punjab Governor Salman Taseer for defending a Christian woman wrongfully accused of blasphemy. At other times, Chaudhry went further: encouraging investigations that endangered public defenders of minority rights, such as another former ambassador to the US, Sherry Rehman.
Chaudhry emerged in 2009 as the most powerful civilian Pakistan has seen in decades, and he ultimately was the most unaccountable one. He made repeated political interventions, some populist, others ideologically driven. Until the day he left it, he also used his office to prevent real public debate about himself.
Chaudhry's pursuit of judicial politics sans accountability worked for one messianic politicized judge and his quest to grab power, but it does not offer a viable template for preserving or cementing institutional autonomy for his successors. Equally, it would be a tragedy if the judiciary reverted to its erstwhile status as handmaiden of the executive. Chaudhry's successors seem well aware of this conundrum and the poisoned chalice handed to them in the name of judicial independence. Hence, the incumbent chief justice, Tasadduq Hussain Jilani cuts a far more conciliatory figure.
Yet those of us in Pakistan who fight for human rights, the rule of law and a working democracy have to hope that the post-Chaudhry's independent judiciary will overcome his excesses and will be led by judges with greater wisdom and fewer biases. Only then can we be sure that this essential institution will be permanently woven into the fabric of Pakistan's democracy.
Ali Dayan Hasan is Pakistan director at Human Rights Watch. He is responsible for researching, authenticating and writing reports produced by Human Rights Watch on Pakistan.