By Dr Mohammad Taqi
December 12, 2013
Justice Chaudhry acted like an opposition leader with a singular agenda: to drag the PPP over the coals throughout the four years of his stint that overlapped with that of the party’s rule
After serving as the Chief Justice of Pakistan (CJP) since June 2005, except for a brief, forced hiatus, the honourable Justice Iftikhar Muhammad Chaudhry has finally left the Supreme Court (SC) building. His stint as the top judge of the country, the longest for any CJP, was certainly the most tumultuous one. There never was a dull moment while Justice Chaudhry occupied Courtroom One or even when the then military ruler, General Pervez Musharraf, deposed him.
Many illustrious judges have resisted military rulers but all of them, with the exception of the great Justice Rustam Kayani perhaps, also tendered resignations or were sacked. Justice Chaudhry was unique in that he acquiesced to General Musharraf at first, only to defy him later on. He was part of the bench that validated General Musharraf’s coup d’état, gave him powers to amend the constitution and was at peace with the General for the first two years of his CJP term. But, by standing up to the dictator when pressed to resign, Justice Chaudhry earned the backing of even those who disapproved of his oath of loyalty to General Musharraf. That defiance quickly morphed into a popular movement led by the lawyers but joined by people across the political spectrum, even including overseas Pakistanis.
Politicians like the late Benazir Bhutto, though critical of the judiciary’s track record, also eventually lent support to the movement to restore Justice Chaudhry along with scores of other deposed judges. However, somehow, along the way, the movement became all about Justice Chaudhry despite tens of other judges steadfastly standing by him and the people’s sacrifice in toil and blood. On the eve of the first long march in June 2008 to try to restore the judiciary, a superior court judge lamented that “Baray Sahib” (the big man) consults only his lawyer lieutenants and not his deposed colleagues on the objectives, strategy and tactics of the movement. The personal likes, dislikes and a monumental vanity probably developed during the heady days of the lawyers’ movement coloured how Justice Chaudhry conducted business after his restoration. Unlike Justice Rustam Kayani’s highly cerebral crusade, Justice Choudhary’s was a visceral one.
Lawyers who stood by him appear to have been fast-tracked to positions in the judiciary through a selection process over which Justice Chaudhry had secured a monopoly by elbowing parliament aside. Many of the appointments he made and extensions he granted might not have stood more rigourous scrutiny.
Despite the late Benazir Bhutto’s support to Justice Iftikhar Chaudhry, including a speech outside his residence, he perceived that the PPP was less than enthusiastic about his restoration. His perception strengthened after the former president, Mr Asif Ali Zardari, assumed the PPP’s helm after Benazir Bhutto’s tragic murder. Upon his release from confinement at his residence, Justice Chaudhry visited Mr Zardari on March 27, 2008 to offer condolences for the martyrdom of Benazir Bhutto. However, the visit, described by one of the former CJP’s confidants as intended to ‘break the ice’, did not clear the air.
Mr Zardari went on to become the president that year but was not terribly keen to restore Justice Chaudhry. Many in the PPP wanted the judiciary to start with a clean slate with no judge who swore allegiance to the military ruler getting restored but the PPP watered down its own principled stance by retaining one such judge, Justice Hameed Dogar, as the de facto CJP. Justice Iftikhar Chaudhry never did seem to have gotten past this affront. The PPP’s Prime Minister, Yousaf Raza Gilani, did eventually restore Justice Chaudhry, albeit under pressure from the lawyers, the PML-N and other rightwing forces. Justice Chaudhry acted like an opposition leader with a singular agenda: to drag the PPP over the coals throughout the four years of his stint that overlapped with that of the party’s rule.
The chaotic judicial hyperactivity that flowed directly from Justice Iftikhar Choudhary’s misgivings about the PPP epitomised his tenure. His brinkmanship brought the SC into confrontation with parliament and the executive, virtually paralysing these two, but he leaves behind no judicial doctrine and a case backlog of Himalayan proportions. Justice Choudhary’s tenure was marred by judicial activism of the worst kind with the judges professing to know better than parliament on what the law should be.
The other aspect of his activism was the rapid-fire suo motu actions that had a lot of thunder but little rain except on the PPP’s parade. Justice Chaudhry had no qualms in dismissing and disqualifying former Prime Minister Yousaf Raza Gilani but bent over backwards to appease the former army chief, General Ashfaq Kayani, and the ISI boss General Ahmad Shuja Pasha in the manufactured Memogate matter. The International Commission of Jurists (ICJ), in its recent report, has critiqued Justice Choudhary’s judicial contortions to justify his jurisdiction in the Memogate matter as “a novel interpretation” of the fundamental right to life. The ICJ rightly describes the former CJP’s use of his powers in the writ jurisdiction as inconsistent.
As the dust settles on Justice Iftikhar Choudhary’s feisty tenure, it would appear that he picked both warranted and unwarranted battles. Meddling in issues ranging from highly specialised economic matters to commodity prices, he apparently preferred grabbing or even commissioning headlines but either botched the business or left it unfinished. The suo motu powers originated, historically, to provide relief in habeas corpus cases where the aggrieved party could not petition the court for redress.
The former CJP took up the missing persons’ cases with bluster but, unfortunately, his priorities were elsewhere. He was able to get a few ‘disappeared’ persons produced in court last week but hundreds, especially from his home province of Balochistan, remain missing. Whether the outcome in the missing persons’ case would have been different than the Asghar Khan case-style slap-on-the-wrist judgment against the military that he just delivered, had Justice Chaudhry pursued their captors with the same zeal as he chased Messrs Asif Zardari, Yousaf Raza Gilani and Husain Haqqani, we will never know.
The SC probably is stronger today vis-à-vis the military and executive than on the eve of March 9, 2007 when Justice Chaudhry was deposed. Politically wounding a military dictator was probably Justice Choudhary’s biggest achievement. His was a political success story that quickly degenerated into downright demagogy but did he triumph in his core job of jurisprudence? Is he leaving the institutional processes in better shape than he found them in? The jury is out on that.