Public discourse on the Pakistani Supreme Court is structured either by instinctual reactions based on prejudices and guided by arbitrary examples, leading to hating or loving certain judges. Or by borrowing concepts from foreign judicial contexts unguided by Pakistan’s post-colonial experience, leading to judging judges on the basis of artificial distinctions between judicial activism and judicial restraint, or accusing judges of interfering in governance.

A prominent section of the public, especially among the urban upper middle classes, viewed former chief justice Iftikhar Chaudhry as a political judge because of his accumulation of judicial power leading to judicial activism, and alleged excessive interference in governance. On the other hand, both former chief justices Tassaduq Jillani and Nasir-ul-Mulk are viewed as non-political judges because of their seeming lack of interest in power accumulation leading to judicial restraint and perceived non-interference in governance.

But as correctly noted by Chief Justice Jawwad S. Khawaja and Justice Azmat Saeed in the ‘18th and 21st Amendments cases’, judicial developments here have to be primarily understood within the Pakistani experience with a critical adaptation of judicial concepts borrowed from foreign judicial contexts. Therefore, another approach to judging the tenure of these former chief justices, ie Chaudhry, Jillani and Nasir, is in terms of their relative continuity, the differences among them and their complementing each other, as each chief justice responded to particular challenges emerging from an undeveloped Pakistani state, ie partly constitutional, partly dominated by an uncontrollable power elite especially the military, partly governed by powerful private societal actors and partly ungovernable because of anarchy.

The terms of three ex-CJs can be understood in terms of how they differed from and complemented each other.

Chaudhry — the revolution: During 2007 to 2013, only a judge like chief justice Chaudhry with a revolutionary approach to judicial power could counter a military elite trying to completely destroy judicial independence by removing judges, and a political elite wanting the power of judges to be reduced to pliant and weak bureaucrats. Such a revolutionary approach involved enhancing judicial independence at all costs, increasing access to the Supreme Court especially for the poor and powerless and instilling the fear of accountability in military, political and societal elites. It was ‘controversial’ because this is not what Pakistani judges did in the past or what judges do in the West, although such a so-called controversial approach is widespread in developing countries such as India, South Africa and numerous Latin American states.

But like all revolutions, there was a dark side. It politicised the court, leading to the loss of its credibility as an honest and fair adjudicator of disputes, especially political disputes; it courted majoritarian public opinion at the expense of non-enforcement of religious minority rights; and judicial dissent and diversity was relatively absent within the Supreme Court.

Tassaduq — the other revolution: A firm belief in judicial independence and constitutional democracy linked the Chaudhry and Tassaduq courts. But chief justice Tassaduq, in his short tenure of just over six months, brought about a silent revolution in religious minority rights. Through a short judgement, he interpreted Article 20 of the Constitution as giving non-Muslims absolute equal religious right of belief, public worship and propagation with their Muslim brothers, with Muslims having no superior right to religious belief. It also issued numerous directions for the protection of religious minorities and established a permanent bench at the Supreme Court for their redressal (the first such bench in world judicial history). With the Chaudhry court ignoring the continuing physical and social extinction of religious minorities, the Tassaduq court’s judicial activism fulfilled this indispensable role.

But chief justice Jillani’s tenure also saw a visible decrease in other human rights cases and elite accountability eg the missing persons and corruption cases lost their prominence for the court. Sadly, the judicial liberalism of chief justice Jillani was not compatible with aggressive elite accountability and an aggressively pro-poor court.

Nasir — restoring credibility and diversity: Judicial independence and constitutional democracy linked the Chaudhry, Tassaduq and Nasir-ul-Mulk courts but with the rise of Nasir’s court, Chaudhry’s project of aggressive elite accountability and pro-poor human rights litigation was completely abandoned. Chief justice Nasir accepted the illusion that Pakistani judges could adopt the role model of European judges (who operated in functioning and stable welfare states) as neutral and non-interfering arbitrators in a Pakistani state, where widespread human rights violation is the norm and the misuse of power, and plunder of public funds the practice.

But in the last three months of his tenure, and even after suffering a heart attack, he drew on his reservoir of inexhaustible decency and unimpeachable and universally accepted integrity and rectified two ills of the Chaudhry court. Firstly, it was due to chief justice Nasir’s integrity and non-controversial nature that he was able to decide the election-rigging dispute through a judicial commission without any hint of unfairness. As a consequence, a political civil war possibly leading to unconstitutional military intervention was avoided. Yes, the PTI has objected to the findings but without doubting the credibility of the judicial commission. The credibility of the court as a fair and unbiased adjudicator stands restored. It had been damaged during the Chaudhry era.

Secondly, the ‘18th and 21st Amendments judgement’ contains six dissenting opinions, 10 separate opinions (even the majority opinions differ radically from one another) and chief justice Nasir’s opinion, taken as a whole, is really a minority view with Justice Azmat Saeed writing the main judgement for the court. Such judicial diversity and dissent, ie a reflection of judicial democracy, was a direct result of the decency of chief justice Nasir who believed in the autonomy of each judge, something sadly discouraged by the Chaudhry court.

What is the lesson from the above? What is required is a rainbow/inclusive Supreme Court containing elements of all these three chief justices, each building on the other and complementing each other. More importantly, a country which has produced such great chief justices like Chaudhry, Tassaduq and Nasir is one capable of developing into a modern welfare constitutional democracy.

The writer is a lawyer.

Published in Dawn, August 25th, 2015

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