A People’s Judge
Justice Iftikhar Chaudhry is the symbol of a movement that was rooted in the rule of law.
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.