In the public discourse, Chief Justice Jawwad S. Khawaja, who retires on Sept 9, has been generally understood as being an extension of the judicial thinking of former chief justice Iftikhar Chaudhry. But such an assessment fails to fully recognise Chief Justice Khawaja’s distinctive judicial role and contribution as a Supreme Court judge and then chief justice of the Supreme Court.

The “momentousness of what has transpired in this country since 2007” has been repeatedly recognised by him in his various judgements. But very few people go through the personal transformation which the chief justice (a Lahore High Court judge at the time) went through in March 2007. He was the first and only superior court judge to resign in protest against the suspension of chief justice Chaudhry by Gen Musharraf and was content to spend the rest of his life as a stoic Sufi in intellectual contemplation. But his appointment as a Supreme Court judge in 2009, marked the beginning of a remarkable Supreme Court judicial career, guided by judicial creativity and in his own words (when he quotes justice Bhagwati), a duty “to transform the status quo ante into a new human order”.

If there is one single concept which captures the Supreme Court career of Chief Justice Khawaja, it is the mission to de-colonise judicial thinking. As he himself stated, “It is about time, 65 years after independence, that we unchain ourselves from the shackles of obsequious intellectual servility to colonial paradigms and start adhering to our own peoples’ Constitution as the basis of decision-making on constitutional issues.” In other words, to think about and find solutions to our problems in terms of our own historical and contemporary facts, with a people-centric constitutionalism.

Four key jurisprudential contributions by Chief Justice Khawaja must be emphasised.

The consequences of this de-colonising thought process were as follows.

Jurisprudential contributions: Justice and then Chief Justice Khawaja will be leaving behind a significant corpus of judicial thought but four key jurisprudential contributions need to be emphasised. Firstly, a new reading of the Preamble of the Constitution of 1973, as containing nine constitutional commands ie democracy, minority rights, Islam, judicial independence, various fundamental rights etc. — constitutional commands that are interpreted as being at the heart of the Constitution and are unalterable even by parliament.

Secondly, constitutional thinking is to be guided not by the state’s interest, or the military or political elite’s interest, or the lawyers’ interest but the ‘will of the people’. Thus, a people-centric constitutional interpretation, emphasising ‘people’s interest’ should be adopted to interpret constitutional and legal provisions.

Thirdly, there is no supremacy of the parliamentary or political elites but of the Constitution of 1973. Thus, the judiciary has a legitimate right to intervene in political matters in order to rectify constitutional violations.

Fourthly, if the Constitution is a document containing the political, economic and social rights of the people and if the constitutional judicial job is to look after the will/welfare of the people and if there is violation or non-enforcement of such constitutional rights, then the judiciary must intervene. Therefore, the neat distinctions between the law on the one hand and the political, economic and social spheres on the other hand disappear, leading to the uselessness of the traditional notion of the separation of power thesis.

Institutional/macro interventions: Shifting the role of the Supreme Court from individual, or micro dispute adjudication, justice and later Chief Justice Khawaja made four key interventions. Firstly, “can constitutional legitimacy flow from the force of arms or as is more graphically put at times — from the barrel of a gun?”, was his first salvo as justice against the powerful military elite. Military accountability became the cornerstone of his Supreme Court career whether it was Musharraf’s treason case or the vested economic interest of the military exemplified by the Makro Habib store case involving the conversion of a playground, or the DHA case involving Lahore’s alleged land grab.

Secondly, reforming state, or autonomous, institutions, through judicial interventions into governance of institutions such as the SECP, Ogra, NAB, PTA, the federal bureaucracy and Pemra.

Thirdly, reforming politics and democracy through judicial rectifications, eg dual nationality case, striking down constitutional amendments, striking down contempt laws which protected a sitting prime minister, limiting the role of parliament in judicial appointments.

Fourthly, to further the key constitutional duty of access to justice for all, he emphasised the suo motu/original jurisdiction, or the key role of the human rights cell at the Supreme Court not as the last but the first resort for the poor and powerless. He frankly recognised that in a broken-down Pakistani justice system, direct Supreme Court interventions for the poor and powerless were critical. If there is one judge, apart from former chief justice Iftikhar Chaudhry, who symbolised the key role of the Supreme Court to safeguard the right to life and liberty of the people, it is the outgoing chief justice. His contributions in the missing person’s cases are indispensable.

Critique: Briefly, three critiques need mentioning. Firstly, is the Pakistani constitutional experience really unique, or is it like that of other developing countries? Maybe, the answer to colonial judicial thinking does not lie in nativist thinking based on the authenticity myth of our ‘unique’ constitutional experience. Maybe, a good mixture of foreign and non-colonial thinking, without the ‘uniqueness myth’, is required.

Secondly, despite the valiant efforts of former chief justice Chaudhry and Chief Justice Khawaja, the rotten state of Pakistan is as rotten as ever. Maybe, the latter judge failed to recognise that the cancer is too deep and no amount of good intention or judicial will can rescue this repressive and corrupt Pakistani state which exclusively serves the interest of the civilian (including the judicial) and military elites.

Thirdly, if the judiciary has the last say on what the Constitution means then it appears that parliamentary supremacy has merely been replaced by judicial supremacy under the guise of constitutional supremacy.

But for me, the lasting impression of his Supreme Court judicial career has been his approach to the judicial role — never viewing judgeship as a mere job, never satisfied with the status quo and never fearing controversy to do the right thing. In short, it has been a truly inspiring judicial stint at the Supreme Court.

The writer is a Visiting Fellow at the London School of Economics.

Published in Dawn, September 8th, 2015

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