A Peo­ple’s Judge

Jus­tice Iftikhar Chaudhry is the sym­bol of a move­ment that was rooted in the rule of law.

Southasia - - COVER STORY - By Kh­waja Ah­mad Ho­sain

Pak­istan’s most fa­mous Judge re­tired on De­cem­ber 11, 2013. One of his col­leagues re­marked that the Pak­istan ju­di­ciary had lost its Ten­dulkar. A lead­ing TV chan­nel ran a prime-time cam­paign high­light­ing his achieve­ments and con­grat­u­lat­ing him on hav­ing played a good in­nings. The re­ac­tion of the le­gal com­mu­nity was mixed. Bar as­so­ci­a­tions de­fied tra­di­tion and failed to hon­our his de­par­ture. The La­hore High Court Bar As­so­ci­a­tion had al­ready filed a ref­er­ence against him for ex­ceed­ing his au­thor­ity. What is his legacy? In Novem­ber 2007, I was ar­rested in La­hore with 54 other in­di­vid­u­als. We were at­tend­ing a dis­cus­sion ar­ranged by the Hu­man Rights Com­mis­sion of Pak­istan to con­sider the emer­gency that had been im­posed by Mushar­raf. Even though no crime had been com­mit­ted, the par­tic­i­pants were in­car­cer­ated for more than 50 hours in var­i­ous jails and sub-jails. The ses­sions judge who heard our ini­tial bail ap­pli­ca­tion had been in­structed by the gov­ern­ment to refuse bail. In ac­cor­dance with the in­glo­ri­ous tra­di­tion of the Pak­istan ju­di­ciary, he com­plied with these in­struc­tions. We were only re­leased on bail two days later when the gov­ern­ment de­cided that a proper mes­sage had been sent to all those think­ing of speak­ing against the emer­gency.

The 2007 emer­gency was dif­fer­ent from past emer­gen­cies in two im­por­tant re­spects. First, it was tar­geted pri­mar­ily at the ju­di­ciary and did not re­move the gov­ern­ment. The prob­lem Mushar­raf and his po­lit­i­cal gov­ern­ment was fac­ing was that of an in­de­pen­dent bench tak­ing de­ci­sions against the gov­ern­ment. Sec­ond, 60 judges of the su­pe­rior ju­di­ciary, in­clud­ing Chief Jus­tice Iftikhar Chaudhry, ei­ther re­fused to take oath or were not in­vited to take oath under the new ‘ex­tra­con­sti­tu­tional’ dis­pen­sa­tion. This re­sulted in a ju­di­cial purge which re­moved a large num­ber of able and in­de­pen­dent judges. The bat­tle to re­store them came to be known as the lawyers’ move­ment.

The im­age used to il­lus­trate Jus­tice Chaudhry’s prin­ci­pled de­fi­ance is a pic­ture of him seated next to a uni­formed Mushar­raf at the Army House in March 2007. He had been sum­moned by the gen­eral with re­gard to a ref­er­ence that had been sent by the prime min­is­ter al­leg­ing mis­con­duct. The ref­er­ence con­tained var­i­ous al­le­ga­tions, in­clud­ing al­le­ga­tions re­lat­ing to un­due fa­vors ex­tended to his son, the prodi­gal Ar­salan Iftikhar, and the mis­use of of­fi­cial fa­cil­i­ties. The aim was to in­tim­i­date the judge and to get him to re­sign. He re­fused and was sus­pended. The rest, as they say, is his­tory.

The ref­er­ence against him was quashed by his fel­low judges in June 2007 on the ba­sis that it was in bad faith. There was never any ad­ju­di­ca­tion by the Supreme Ju­di­cial

Coun­cil, the rel­e­vant con­sti­tu­tional body. The Supreme Court through its or­der ef­fec­tively by­passed the pre­scribed con­sti­tu­tional mech­a­nism for de­cid­ing al­le­ga­tions against judges. The or­der was wel­comed at the time. The un­pop­u­lar­ity of Mushar­raf and his gov­ern­ment was in­creas­ing and the com­po­si­tion of the Supreme Ju­di­cial Coun­cil was such that Jus­tice Chaudhry was un­likely to get a fair hear­ing be­fore this body.

The ini­tial re­fusal to re­sign in the face of a gen­eral in March 2007 was a per­sonal de­ci­sion taken by the judge in his own in­ter­est. The heroic de­fi­ance that changed the course of his­tory was the stand taken by him and 60 other judges in Novem­ber 2007. They re­fused to vi­o­late the oath that they had sworn to and re­fused to swear al­le­giance to Mushar­raf’s new le­gal or­der. As a con­se­quence, they were re­moved from of­fice and put under ef­fec­tive house ar­rest. At this stage their fu­ture was un­cer­tain. Many of Jus­tice Chaudhry’s fel­low judges con­tin­ued to be coun­selled by prac­ti­cal in­di­vid­u­als that they should aban­don the dis­cred­ited chief jus­tice and take oath under the new le­gal or­der. The rea­son­ing of­fered was stan­dard. Do a le­gal wrong for the sake of the larger good. Sac­ri­fice strict con­sti­tu­tional com­pli­ance for a while, be­cause the coun­try needs to be saved.

It was an ar­gu­ment that had res­onated with Jus­tice Chaudhry him­self seven years ear­lier. Mushar­raf’s mar­tial law of 1999 had been sanc­ti­fied by him and his brother judges us­ing the in­fa­mous doc­trine of ne­ces­sity. They had even granted the gen­eral the au­thor­ity to amend the con­sti­tu­tion which ap­par­ently was not even re­quested by Mushar­raf’s coun­sel.

But the en­vi­ron­ment in Novem­ber 2007 was very dif­fer­ent from that in Oc­to­ber 1999. In 1999, peo­ple were sick of the gov­ern­ment of Nawaz Sharif and were glad to see the back of him. In 2007, peo­ple were sick of Mushar­raf and his cronies and wanted a change. Lawyers, mem­bers of civil so­ci­ety, the me­dia and some politi­cians adopted the cause of the re­moved judges. Af­ter a mo­men­tous and pas­sion­ate move­ment and a glo­ri­ous long march, the judges were re­stored in March 2009.

On the evening of the restora­tion, I gath­ered to­gether with a few hun­dred sup­port­ers out­side the chief jus­tice’s res­i­dence in Is­lam­abad. It was an emo­tional evening. Pak­istani ci­ti­zens of all walks of life, from dif­fer­ent po­lit­i­cal par­ties and groups, were there to cel­e­brate their cit­i­zen­ship. They were united and all were shout­ing one slo­gan: “Rule of Law”.

It was Jus­tice Chaudhry’s finest hour. He was the sym­bol of a move­ment

There was lit­tle ju­rispru­dence of any worth. There was no dis­sent. There was more than a lit­tle sel­f­righ­teous­ness. Since no other in­sti­tu­tion could be trusted, the Supreme Court adopted the role of in­ves­ti­ga­tor, pros­e­cu­tor and ad­ju­di­ca­tor. As a re­sult, sev­eral par­ties were ef­fec­tively con­demned un­heard and due process and the right of ap­peal de­nied. While Jus­tice Chaudhry basked in his re­flected glory, the wheels of jus­tice for the bulk of or­di­nary lit­i­gants con­tin­ued to turn slowly. The con­di­tion of the lower ju­di­ciary and the de­liv­ery of jus­tice to ci­ti­zens had seen no im­prove­ment.

The most im­por­tant con­tri­bu­tion of Jus­tice Chaudhry is that we now have an in­de­pen­dent su­pe­rior ju­di­ciary.

The re­stored Chaudhry-led Supreme Court was in­de­pen­dent. In spite of this in­de­pen­dence, the court did not al­ways be­have or de­cide wisely or well. There was ex­ces­sive play­ing to the gallery. Jus­tice was se­lec­tive.

that had at its heart a fun­da­men­tal prin­ci­ple which is es­sen­tial for a fair and pros­per­ous so­ci­ety: the rule of law must take prece­dence over the rule of man.

The re­stored Chaudhry-led Supreme Court was in­de­pen­dent. In spite of this in­de­pen­dence, the court did not al­ways be­have or de­cide wisely or well. There was ex­ces­sive play­ing to the gallery. Jus­tice was se­lec­tive. Un­con­sid­ered and un­fair re­marks were made dur­ing the course of ar­gu­ments that were ex­ten­sively re­ported. The Latin term “suo moto” be­came a part of the na­tional lex­i­con. The price of su­gar was re­duced, a prime min­is­ter was re­moved, a few miss­ing per­sons were re­cov­ered and the al­le­ga­tions against the prodi­gal son were held to have not tainted an ap­par­ently ig­no­rant fa­ther. The sig­nif­i­cance of this can­not be overem­pha­sized. The in­de­pen­dence was achieved through a his­toric move­ment and through the restora­tion of judges who took a stand and faced hard­ship for their prin­ci­ples. As a re­sult of this move­ment, Jus­tice Chaudhry be­came a pub­lic fig­ure. Through his sub­se­quent pop­ulist in­ter­ven­tions, his fame in­creased. Ev­ery­one knows his name. Politi­cians are meant to serve the peo­ple who elect them. Judges are meant to serve the rule of law. Yet Jus­tice Chaudhry’s epi­taph will be that he was seen as the “Peo­ple’s Chief Jus­tice”. As a na­tion, let us hope we don’t need another. The writer is a bar at law and a part­ner in the law firm Ebrahim Ho­sain. He also teaches law at LUMS and is a mem­ber of the LUMS ad­junct fac­ulty.

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