It is judges, especially the chief justice of Pakistan, who have the constitutional power and responsibility to judge others, ie both the elites as well as the common citizens of Pakistan. So why and how does one judge the judicial tenure of the current chief justice, Anwar Zaheer Jamali, as he approaches retirement?
The ‘why’ part is easy to answer. Firstly, one gift of the lawyers/judicial movement is that it is no longer taboo to critically evaluate judicial conduct and performance as judges realise that judicial legitimacy is based on public legitimacy, and that the latter is damaged by the excessive use of contempt powers against reasonable public criticism. Secondly, if the prime minister and the chiefs of defence forces can be critically evaluated in the public domain, it is difficult to justify the exemption of the chief justice of Pakistan from similar evaluation.
But evaluating Chief Justice Jamali’s performance is a far more difficult task for two reasons. Firstly, his immediate predecessors included four of the best chief justices Pakistan has produced — Iftikhar Muhammad Chaudhry, Tassadaq Hussain Jillani, Nasir-ul-Mulk and Jawwad S. Khawaja. These four were not without flaws and did make mistakes. But, more importantly, they are remembered for their major contributions to democracy, constitutionalism, justice and judicial independence. Therefore, Chief Justice Jamali had a difficult path to follow.
Chief Justice Jamali may have made many ‘hard’ speeches but he took little judicial action.
Secondly, in the post-lawyers/judicial movement period, the office of the chief justice of Pakistan emerged as a very powerful and very public post. Therefore, there were bound to be great expectations of the current incumbent and a critical evaluation of his role in the post.
Judicial business as usual: An examination of the various judgements authored by Justice Jamali as Supreme Court judge (appointed in 2009) shows that he has made little significant judicial contribution to developing the law and equally surprising, even as the country’s chief justice for over one year, there is, perhaps, hardly any judgement of jurisprudential or public importance authored by him except for the short order in the ‘census case’. Moreover, he implemented hardly any significant measures in trying to deal with the major ills afflicting our judicial system, eg delays in cases or lack of justice for the poor and powerless.
What was especially disappointing is that his tenure as chief justice was strewn with public speeches about the need for judicial accountability of the judges themselves, but when a public interest petition was filed seeking information about, and expeditious disposal of, complaints against superior court judges, he dismissed it on the ground that judicial accountability had to be completely secret. Therefore, it appears that his legal contribution at the Supreme Court can be symbolised as being ‘judicial business as usual’, showing little awareness of the great power bestowed on the office and the consequent public expectations from it.
Judicial weakness: During his tenure, the independence of the judicial system came under severe attack eg the Quetta attack in August, which saw the biggest massacre of lawyers in Pakistan’s history as well as in modern legal history, the kidnapping of the son of a provincial chief justice and also the continuing rise of the social and de facto political power of the military, which severely threatened constitutional governance. In relation to the latter, no significant action was taken by the Supreme Court under his tenure to roll back the de facto power of the military. In fact, rather disappointingly, a judgement upholding death sentences by the military courts was delivered during his tenure.
Chief Justice Jamali may have made many ‘hard’ speeches and court observations, but unlike the Chaudhry court that tried to hold the political and military elites accountable, unlike the Tassadaq court that tried to rein in religious extremists through a landmark judgement on minorities, unlike the Nasir-ul-Mulk court that prevented a political civil war through a landmark election-rigging commission report, and unlike the Jawwad Khawaja court that tried to hold the most corrupt and most powerful business elite accountable, he took little judicial action. A case of “full of sound and fury, signifying nothing”.
Personal controversy: “Your wealth and children are surely meant as a trial for you” (At-Taghabun, 64:15) warns the Holy Quran. It is precisely in this context that Justice Khilji Arif of the Supreme Court in the ‘Arsalan case’ had perceptively warned that family members of judges should exercise “extreme caution and discretion in their private and public dealings and conduct”. With great sadness but with a sense of responsibility, it is disheartening to note that allegations of favouritism with regard to the legal careers of the chief justice’s family members were heard in the corridors of justice and among lawyers.
It is irrelevant whether this was intentional or not; the public perception of favouritism, and the little effort to counter such public perception by exercising “extreme caution and discretion in their private and public dealings and conduct”, damaged judicial credibility.
Perhaps what stood as a remarkable contrast is the example of self-accountability of Justice Iqbal Hameedur Rahman, a judge of impeccable personal integrity and a leading icon of the lawyers/judicial movement. He resigned as a Supreme Court judge during Chief Justice Jamali’s tenure at the first hint of judicial assertions that he had made wrongful administrative appointments at the Islamabad High Court as a former judge of that court.
Despite his heading an institution in which the overwhelming majority of high court and Supreme Court judges are persons with a high sense of integrity and public service, what Chief Justice Jamali failed to realise is that the ‘new’, open judicial world of the post-lawyers/judicial movement is radically different from the ‘old’ closed judicial world of the political, military and legal elites.
This brave new judicial world gives tremendous power to judges but, simultaneously, imposes great public expectations on them for judicial reform and societal change and, resultantly, exposes them to greater public scrutiny especially where inaction or judicial weakness is concerned.
The writer is a lawyer.
Published in Dawn, December 26th, 2016