IT is ungracious to take pot shots at someone walking into the sunset. But to refuse to take stock of the performance of a public office holder as remarkable as Chief Justice Iftikhar Chaudhry and draw lessons for the future is also undesirable.
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.
The writer is a lawyer.