HOW does one judge a person like Iftikhar Muhammad Chaudhry and his chief justiceship? Pakistanis are still divided over their judgement about him. Some love him, some hate him and a lot of Pakistanis are just confused about him.
Chaudhry was no ordinary man, nor any ordinary judge. Therefore, any criterion to judge Chaudhry and his chief justiceship has to move beyond the false choice between loving or hating him and beyond trying to understand his tenure purely in legal or moral terms.
Beyond the cases he decided and the controversies he was involved in, any analysis needs to examine the basic features of his tenure, the main consequences of his judicial approach, his main contributions and a legitimate critique of his chief justiceship.
Centrality of power: Without power, the judiciary is a toothless institution. The suspension and removal of Chaudhry and his fellow judges on March 9, 2007, and Nov 3, 2007, conclusively proved that judicial power based merely on constitutional guarantees is a paper tiger and a constitutional bluff. Thus, Chaudhry sought to base judicial power on two sources — public support with the threat of public mobilisation and the power of fear ie fear about what the Supreme Court could do to politicians, the military establishment and societal power. He followed Machiavelli’s advice that it is better to be feared than loved. It is easy to criticise Chaudhry’s accumulation of judicial power but without a secured power base, judicial independence is a pipe dream.
Indispensability of strategy: It is a myth to think that judges merely apply the law and don’t engage in strategic action. In the ruthless world of power politics, judges sustain and enhance judicial power and independence by engaging in judicial quietism, defection and defiance as strategy. Chaudhry was a strategist par excellence, using political and other cases to gain the support of one power group over another. As a consequence, each of the power groups ie PPP, PML, military establishment, liberals, mullahs, lawyers, etc at times loved him and at other times hated him. Sadly, he fooled everyone because his consistent love was judicial independence, which in return also enhanced his powers as chief justice.
Law as a panacea: For capitalism the free market, for communism equality, and for fundamentalists religion, is the panacea of all human ills. In order to gain and sustain public support, Chaudhry perpetuated the law and Constitution as the panacea of all the ills afflicting Pakistan. Every individual, social, cultural and political problem had a legal solution by simply passing a judicial order. It was a powerful ideology and dream because of its remarkable simplicity.
During his tenure as chief justice, Iftikhar Chaudhry followed Machiavelli’s advice that it is better to be feared than loved.
Justice over law: It is said that there is too much law and too little justice in the courts. Chaudhry tried to provide ‘direct justice’ to the people by eliminating three obstacles to justice ie vested-interest lawyers, complicated procedures and endless appeals, by trying to resolve all cases at the Supreme Court. This kind of instant justice had great public appeal. Or to rephrase the Ram Leela song, if Chaudhry (Ram) wants the people (Leela) and the people want Chaudhry then in the love between Chaudhry and the people, why does law (world) have to interfere.
This unique judicial approach led to two basic consequences. Firstly, he became politically and jurisprudentially controversial. Politically, because of his strategy of judicial quietism, defection and defiance while dealing with different state and societal power elites. But also jurisprudentially, because the judicialisation of all or any issues and the need for public legitimacy did not neatly fit into the mainstream models of judicial philosophy. Secondly, the reliance on, and invoking the ‘people’ ie popular judicialisation, gave rise to a new phenomenon of public-speaking judges — judges who expressed their views openly and publicly.
His tenure made three remarkable contributions. Firstly, the judiciary had never been so independent. Secondly, the military establishment had never before been subjected to such accountability ie Nov 3, 2007 or martial law declared unconstitutional. This period saw the holding of Musharraf’s treason trial, the missing persons cases being pursued, an audit of the intelligence agencies, ISI election funding being declared illegal etc. Thirdly, the Supreme Court actually became accessible and relevant to the people of Pakistan especially the poor and weak ie a kind of democratisation of the Supreme Court. No wonder, between 2009 and 2013, the Supreme Court directly received over 200,000 human rights complaints and decided more than 90pc of them.
But the paradox is that what made his tenure powerful and unique also contained the seeds of self-damage. Firstly, his indulgence of political cases and strategising to enhance judicial power made him appear partisan and biased. Moreover, the Arsalan case and its unfortunate handling by the Supreme Court exposed his human failings and the dangers of the negative effects of unaccountable power.
Secondly, the need for a ‘people’s judiciary based on people’s power’ portraying the law as the ultimate panacea, was an unrealisable dream, leading to an equally unjustified critique of his period based on the premise of ‘not transforming Pakistan’.
Thirdly, the love for instant justice led to judgements and orders which provided conflicting or little guidance to the courts about how to decide future cases. The price for abandoning the law for justice led to judicial arbitrariness and uncertainty.
But the lesson from Chaudhry’s tenure is not to shy away from political and jurisprudential controversies or from being accessible to the poor and weak or from providing substantive and quick justice. Rather, the challenge for any court remains a balancing act of being powerful but accountable, being especially accessible to the poor and weak but not at the expense of the rest, being non-partisan but politically conscious and being a provider of substantive and quick justice but within the framework of reasonable legal certainty.
Any court which disturbs this balance becomes publicly controversial and any court which refuses to engage in this balance becomes publicly irrelevant.
The writer is a lawyer.
Published in Dawn ,July 13th, 2015