AS the current chief justice’s tenure comes to a close, the news of extrajudicial actions taken in that time has far exceeded the news of the many regular judicial decisions taken therein. This last occurred during the tenure of Iftikhar Chaudhry as chief justice.
Many articles have been written by lawyers arguing the merits and demerits of the actions of both chiefs. Proponents of this method of ‘judicial governance’ argue that overreach is necessary where the executive is so deeply flawed.
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Critics argue that there is no difference between overreach by the judiciary and overreach by similarly unelected forces.
Proponents of the Chaudhry regime who forgave its flaws only because its aims were anti-establishment find themselves in the other camp when faced with the ‘established and united’ might of the dam-funding Justice Nisar.
Critics argue this is the natural fallout of accepting the populist suo motu-ism on bottles of wine as propagated by Chaudhry.
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However, the most critical similarity is perhaps the evolution of the personal ethos of both men and how it underwent such a tremendous and perhaps mysterious change in an age where the minds of normal, lesser men are set and rigid.
Why would a judge suddenly go against his own ethos?
Some brilliant arguments were made after the reversal of the houbara bustard hunting ban judgement. The about-face came immediately post the short Jawwad Khwaja tenure as chief justice. It was argued that such a frequent change of mind dilutes the power of the judiciary as a whole and exhibits a political change of heart rather than a change of the judicial mind.
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Justice Nisar was one of four judges out of the 17-member bench of the Supreme Court who dissented against any idea of a ‘basic structure’ or salient features in our Constitution. In what orthodox legal minds would consider his finest hour, a full-throated critique from Justice Nisar of such a restriction, upon what he viewed to be the absolute right of the people, included the following: “If we were to introduce such a doctrine into Pakistan would not critics be entitled to speculate whether the nation has changed a military autocracy for a judicial autocracy, with but a brief interval for an improperly functioning democracy.”
When critiquing the power the Indian supreme court now enjoyed over parliament, Justice Nisar wrote: “This is of course a completely unprecedented display of ‘judicial’ power — power in its most naked form. Not merely unchecked, but uncheckable, since there are no means of checking it known to the laws of any civilised system of jurisprudence. This is a malady for which there is no remedy and an ailment for which there is no cure short of a complete uprooting of the judicial and democratic system. A power so vast, so all embracing, can hardly be conceived by any democratic system of governance resting on the basic principle of checks and balances.”
What then is the process by which a senior judge after assuming the ultimate seat of his office begins to rewrite theories he has personally expressed and endorsed throughout his tenure? For Chaudhry, servility had got him as far as the Supreme Court and it was going to take him no further. It was time to bare teeth to who had until then been the master, and an undercurrent of resentment already existed to help those teeth sink in deeper than they otherwise would have. A seven-year tenure as chief ahead of him, extraordinary because of the nature of his own appointment, convinced his activism and steeled it.
But what of Justice Nisar — rose through the merit of his acumen rather than his politics, authored fundamental judgements which limited the authoritarian functioning of federal government through the prime minister and his bureaucracy. He opined strictly against judicial overreach.
What makes such a man suddenly demand money for a personal pride project that he admittedly has no expertise about? What is the difference between endorsing a large dam without adequate research into its viability or feasibility, and endorsing Agha Waqar’s water kit?
Why would a judge who has personally espoused judicial restraint, written it into the body of the most famous judgements he was part of; suddenly go against his own ethos?
What made him suddenly become a jurist who threatened parties with the demolition of their premises or other criminal sanction unless they deposited money into ‘his’ dam fund? What made him the weekend warrior who held conferences on population control? What personal need for publicity or expression could suddenly arise in a man whose office was already his, and limited to a term predefined? What made or compelled this brilliant and conservative adjudicator to suddenly become this populist and activist force?
The answer to these questions may be singular; and will most certainly determine his legacy.
The writer is a lawyer practising in Karachi
Published in Dawn, January 14th, 2019