By Khaled Ahmed
Dec 04 2013
The chief justice of the supreme court of Pakistan, Justice Iftikhar Muhammad Chaudhry, is to retire on December 11. Partisans arrayed for and against the Chaudhry court say the date is ominous: 11/12/13. When he was elevated to the apex judiciary he was the youngest-ever judge to join. He became chief justice in 2005 and went aggressively “activist” from day one. The country probably deserved it because governance had hit rock bottom and terrorism was rampant on all fronts. The court had been supine to political machinations in the past; he “activated” it.
Judicial activism through public interest litigation, propelled by the device of suo motu jurisdiction, often declines into institutional trespass and this is what the Chaudhry court was soon perceived as doing, especially in the domain of economics, to whose “free market” dominance judges are instinctively hostile. After about 6,000 suo motu cases, a “legitimised”-by-the-court military general acting as president of the state, General Pervez Musharraf, imposed martial law to depose him and his loyal judges in 2007. The police even roughed him up when he was being “taken away” to his house-prison. But in 2008, an unprecedented nationwide lawyers’ movement compelled the army to intervene and force the newly elected “democratic” but reluctant government to restore his “hyper-activist” court.
Justice Chaudhry controlled his fellow judges effectively. There was virtually no dissent on the bench, even in blatantly controversial decisions. He was at times too outspoken and blunt, a style that infected some of his bench, and showcased himself excessively among bars where lawyers ganging up against lower court judges often resorted to violence. He had street power. And he benefited from the political divide, the conflict between the army and the elected government, and even from terrorism, judging by the “compliments” showered on him by a Taliban spokesman just before his retirement.
Justice Chaudhry was no intellectual and harangued the nation on rising prices — under an economy hamstrung by terrorism — without bothering to read a primer on how free markets worked. It was surprising that his better-educated colleagues did not intervene either. Was it a “revanchist” court bouncing back with memories of how it was maltreated? Or was it simply judicial hubris?
It all started in a 1996 judgment of the Supreme Court which gave muscle to an earlier chief who had fallen because of a rift inside the court. Justice Sajjad Ali Shah, whose “interfering” court was actually attacked by the supporters of an incumbent executive, was inspired by the Indian Supreme Court’s verdict that in the case of the appointment of judges, the chief justice of India shall always be “consulted” by the president. And by consultation the Indian court meant “concurrence”, which was binding. The Chaudhry court was also inspired by the judicial activism of India.
In India, too, an “activist” judiciary has given rise to mixed reactions. According to Madhav Godbole in The Judiciary and Governance in India (2009), some of the actions taken by the judiciary were simply an “activist overdrive”. The Indian lawyer, A.G. Noorani, noted how the high courts in India were arranging admissions in colleges and organising routines in hospitals till the chief justice of the Delhi high court issued an order that “no judge shall take suo motu notice of any news item without his prior permission”.
Later, it got so bad that former President A.P.J. Abdul Kalam had to say: “What is required is a conscious realisation of unseen boundaries that cannot be traversed without causing embarrassment and even injustice to the democratic system and the rights of its citizens”. Prime Minister Manmohan Singh had to repeat that warning in 2007: “All organs, including the judiciary, must ensure that the dividing lines between them are not breached”.
In the eyes of some legal critics, Chaudhry went berserk breaching these dividing lines, finding it easy to do so in typically third-world conditions of poor governance. The acme was his firing of a sitting prime minister and almost forcing his replacement to commit hara-kiri in the same manner. It got so bad that a retired judge of the Indian Supreme Court, Markandey Katju, published a rebuke on what the Chaudhry court was doing to Pakistan. Of course, Katju had earlier delivered the same rebuke to high courts in India. His question was: “Can the Supreme Court convert itself into an interim parliament and make laws in a vacuum? Supreme Court judges should do their job and not become a parliament and make laws.”
But there was also the third-world “autumn of the patriarch” kind of nemesis awaiting Justice Chaudhry. His son’s financial scandals broke after he kicked up his heels holidaying abroad with crores of rupees, allegedly gouged from a real estate tycoon, who went public with it. Earlier, the police department, according to a retired officer, had been forced by Justice Chaudhry to induct the laggard son as an officer, even when he had not passed the required competitive civil service examination. Young Chaudhry had set up a company, after which contracts allegedly had started pouring in.
Commenting on the tenure of Justice Chaudhry, barrister Aitzaz Ahsan, leader of the lawyers who got him restored through street agitation, said: “The test of the Court’s tolerance of the democratic political structure will come when it rules on the issue now before it: whether Parliament has an unfettered right to amend the Constitution. The Court may well follow the precedent of its Indian counterpart, which has repeatedly held that Parliament’s right to amend the Constitution is precisely that: a right to amend, not to abrogate. That Court has consistently limited the power of Parliament and kept it subject to judicial review. If the Supreme Court of Pakistan follows the same line of reasoning, there may be a clash between the two institutions.”
Weeks before Justice Choudhary’s retirement, the parliament in Islamabad actually passed a unanimous resolution objecting to the court’s tendency to set aside the opinion of the legislature. Critics are agreed that the court’s suo motu addiction has curtailed the “due process” integral to any system of justice; if the Supreme Court hands down an apparently unfair verdict, there is no appeal against it except for a review. Also, the court’s focus on high-visibility “public interest” cases — tragically, some pertaining to the economy — have diverted its attention from the lower judiciary, where the judges helplessly interface with terrorism, abstain from convicting terrorists and blink at the “replacement” of big under trial terrorist prisoners with hired surrogates.
Justice Chaudhry presided over a judicial system in tatters, inside a crumbling state. During his tenure, the lawyers beat up journalists, the police and judges inside the court premises, without him experiencing any real disenchantment with this dubious support base. The day of the non-intellectual, literalist, vatic judicial saviour is not yet over in Pakistan. There is little chance that the judges who did not dissent under him will break with his legacy. Verdict: one, the court was populist, which vulgarised justice; two, it settled scores despite knowing that the opposite of justice is not injustice but revenge.
Khaled Ahmed is a consulting editor with ‘Newsweek Pakistan’