An Indian View on Legacy of Pakistan’s Retiring Chief Justice

Pakistan's former Chief Justice Ifthikar Chaudhary leaves behind a Supreme Court that is more mindful of its role in upholding the Constitution than at any other time in its history, but continues to rely on jurisprudence previously used to validate military rule.

Posted on 12/14/13
By Nirupama Subramanian | Via The Hindu

Iftikhar ChIfthikar Chaudhary, who stepped down as Chief Justice of Pakistan on December 11, will go down in history as the first judge to challenge a military ruler successfully, and then to have spoilt it all by his relentless onslaught against a fledgling democratic government, its President and Prime Minister.


Mr. Chaudhary’s epic term in office, which included more than a year under house arrest (a total of 60 judges were similarly detained at the same time) during the (General Pervez)  Musharraf regime, and saw the Supreme Court make a comeback to assert its independence in unprecedented but controversial ways, embodies both the achievements and failures of Pakistan in this period.


If his refusal to resign on a demand by the military ruler Pervez Musharraf in 2007 reflected the political aspirations of a nation and triggered a popular movement that heralded the return to democracy, the Supreme Court was also a willing instrument in a dubious move to ensnare President Asif Ali Zardari in a case that pitted him directly against the military. Taking on politicians may have won Mr. Chaudhary much popular approval, but it shone unflattering light on all of Pakistan’s systemic flaws and on how entrenched these are in the national psyche.


Those who believed that the “black coat movement” — the long agitation by the country’s lawyers for the restoration of Mr. Chaudhary — would lead to positive systemic changes in Pakistan were disappointed. Indeed, sections of lawyers who participated in the movement were also among those who cheered the killer of Punjab Governor Salman Taseer in 2011 — he was shot down by his police bodyguard, who accused him of committing blasphemy — when he was produced in court. The more progressive among the Chief Justice’s supporters in the bar gradually distanced themselves from him.


Mr. Chaudhary leaves behind the complex legacy of an apex court that is more mindful of its role in upholding the Constitution than at any other time in its history, but continues to rely on jurisprudence flowing out of the infamous “doctrine of necessity” used by previous Supreme Courts to validate military rule.


Under Mr. Chaudhary’s unapologetic activism, it also allowed itself to be turned into a court of both first and last resort. On any given day, Court Room 1 in the marble-and-granite Supreme Court building would be packed with petitioners ranging from widows fighting off land sharks, people wronged by bureaucrats, rape victims, transgenders, orphans, jailed children, even a Hindu father who wanted the court to restore to him his daughter who had eloped with a Muslim man.


Theatrical proceedings

The proceedings were never less than theatrical. Only some of these cases would reach conclusion, but Mr. Chaudhary never failed to assure the petitioners that justice would be done, calming the sobbing widow with consoling words and sending off the land shark with a stern warning.


His tendency to take up cases suo motu based on newspaper or television reports, or on the basis of letters sent by petitioners, made him popular on the street, but saw the court pronounce on matters such as the fixing of prices of petrol and other essential commodities, or the appointment of officials.


Some cases taken up by the court under Article 184 (3) of Pakistan’s Constitution, which permits the use of suo motu, did have a positive effect. It ensured punishment to paramilitary personnel who were caught on camera as they shot and killed an innocent civilian in Karachi in broad daylight. At the other extreme was the court’s decision to take action against a popular television host and actress who was caught at Islamabad airport with bottles of liquor but had talked her way out of being booked by the police.


A people’s judge

No intellectual, Mr. Chaudhary was a conservative at heart but surprisingly progressive at times, as when the court ruled to give transgenders recognition as a third sex. His unpredictability and brinkmanship, combined with the desire to be seen as a “people’s judge” rather than as a jurist, stand out in the cases by which he will be most remembered.


Until his last day in office, Mr. Chaudhary pro-actively pursued the high-voltage “missing persons case”, on behalf of the families of people who had disappeared after being picked up and detained by Pakistani intelligence for suspected links to terrorists. His dramatic summons to top-ranking military officials heading the secret services, and his threats to slap contempt on them if they did not produce the missing persons, jolted the security establishment out of its comfort zone. Indeed, this is one of the reasons cited for President Musharraf’s decision to remove him in 2007. Largely due to Mr. Chaudhary’s efforts, some of the missing persons were restored to their families, though critics would argue that he took up with less vigour the cause of hundreds of Baloch youth who went missing in the last decade.


In 2012, he also pronounced on a long-dormant case on the money power that Pakistan’s powerful intelligence agencies brought to bear on elections and against elected governments, ruling that the 1990 polls were tainted by the ISI’s distribution of millions of rupees to select politicians. The judgment underlined that the military must not involve itself in politics.


Dubious case

But only a year before that, the Supreme Court was seen bending to please the Army in what came to be known as “memogate”, a dubious case brought against the government alleging that in the aftermath of the U.S operation in Abbottabad against Osama bin Laden, President Asif Ali Zardari had made approaches for American help to prevent a military coup that he feared was in the offing. Some Pakistani commentators asked why the hyper-activist Mr. Chaudhary had not taken suo motu notice of Osama bin Laden’s long and illegal presence in Pakistani territory, wondering if he would question the security establishment for failing to detect him.


Mr. Chaudhary also showed extraordinary zeal in reviving corruption cases against Mr. Zardari, holding that the immunity granted to him as the country’s President was not automatic. Controversially, the court convicted and ordered the arrest of Prime Minister Yusuf Raza Gilani on contempt charges for ignoring its order to write to Swiss authorities asking them to reopen specific cases against Mr. Zardari that had been closed under an amnesty ordered by President Musharraf. Earlier, in 2009, Mr. Chaudhary had set aside as unconstitutional the amnesty agreement reached between President Musharraf and Mr. Zardari’s wife and then leader of the Pakistan People’s Party Benazir Bhutto, months before her assassination in 2007.


The man on the street saw him cracking down on corruption at the highest levels, but impartial observers saw overreach that was pitting the judiciary dangerously against the executive and Parliament. The episode raised fears of another intervention by the Army but despite the professed love for democracy, most sections of Pakistan, including its influential electronic media, cheered him on.


Larger than life figure

During his tumultuous term, Mr. Chaudhary, who was Pakistan’s longest serving Chief Justice, became a larger-than-life figure, and a historic era has ended with his departure. Few now remember that he was among the judges who validated General Musharraf’s coup against Nawaz Sharif. Though some of the sheen came off after revelations that his son took favors from a property tycoon facing proceedings in the Supreme Court, Mr. Chaudhary has certainly left the judiciary stronger than when he took up office.


In an environment fraught at the best of times, the challenge for Chief Justice Tassaduq Jillani, who stepped into his predecessor’s big shoes on December 12, will be to safeguard the Supreme Court’s independence, while bringing sobriety and judicial sophistication to its working to enable it to play its proper role in a democracy that is still taking root.

This article first appeared in The Hindu, a leading newspaper of India.

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