Writing about revolution, Karl Marx once said that people who are learning a new language will invariably begin by translating it back into a familiar mother tongue. Let us suspend judgment for the moment on whether the lawyers’ movement can properly be termed a revolution or not. What, however, is the ultimate proof or expression of power in Pakistan? At least in the familiar language of the past, it is the ability to send elected prime ministers home.
Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, did formally arrive on the big stage, joining the ranks of the historically powerful in June 2012, when he sent Prime Minister Syed Yousuf Raza Gilani packing. Also in the same year, he reportedly remarked that an advertisement involving Katrina Kaif was of such a nature that it could not be watched with one’s family and hence action should be taken. This does illustrate the spectrum of power and vigilance displayed by Justice Chaudhry in 2012.
While the disqualification of then prime minister Gilani remains probably the most significant event of the last year, it is by no means a single example. Ever since the restoration of Chaudhry as the Chief Justice of Pakistan, there has been a vague feeling that the court considers itself the representative of the people. That vagueness is removed now. The Chief Justice has repeatedly said that the court represents the will of the people. With the utmost of deference, it seems that the Supreme Court does not like the elected parliament and believes it to be corrupt and incompetent. Another fact that is beyond dispute now is that the Chief Justice is the Supreme Court. There has been no dissent in any major constitutional case in the past four years. The Supreme Court has accepted, or perhaps more accurately proclaimed, the Chief Justice as its leader. We do not know yet if this is ultimately a good or bad thing; still it forms a slight cause for alarm.
Chief Justice Iftikhar Muhammad Chaudhry signifies an activist judiciary in Pakistan. He has taken judicial activism to its limits in order to establish that the judiciary is the final arbiter of the Constitution in Pakistan. He believes that the Constitution has either been deliberately violated or suffered benign neglect at the hands of all the organs of the state. He, therefore, thinks that the time has come when the judiciary must stand up for strict compliance and enforcement of the Constitution in all its manifestations. This objective cannot be achieved, in his opinion, without subjecting the executive and the legislature to the Constitution and strict adherence to it.
— Hamid Khan is a lawyer and senior vice-president of the Pakistan Tehreek-e-Insaf.
Earlier in the last year, the court took cognisance of the “memo” allegedly written by Hussain Haqqani, then Pakistan’s ambassador in Washington, to solicit American support against the Pakistan Army. The foray into national security and foreign policy was a first, even by the elevated standards of judicial activism of the past four years. Here again, there was the recognisable taste of guarding our national interest at all costs even if that cost entailed some disregard of democratic values. From appointment and transfer of government officials to setting the prices of the CNG to delimitation of the constituencies, Chaudhry’s influence has been visible everywhere. The rhetoric about separation of powers has effectively been buried. The Chief Justice would act on anything and everything which he believes to be in public interest. His intentions have always been noble, if also grand and, as is the case with most grand intentions, the narrow confines of procedure have to sometimes be traversed.
One thing Justice Chaudhry is not lacking in is courage, although there are excesses sometimes. Indeed, courage it was which led to the brief shining moment this past year, when for the first time in Pakistan’s history the military establishment and intelligence agencies were indicted by him in the Asghar Khan case.
The decision in the Asghar Khan case decided in 2012, in particular the direction that army officers are not to obey unlawful commands made by superior officers outside the battle field, has the potential to strengthen democracy by warning accomplices of future military intruders into the constitutional process that they will be held criminally liable for their actions, without being able to hide behind the defence of obedience to the command of a superior.
— Salman Akram Raja is an advocate of the Supreme Court of Pakistan
The temptation to judge him too harshly should be resisted. We have made him into the omnipotent, one-stop shop for all our ills. Not a single day passes when a political leader, a media anchor or just someone from the public does not demand the Chief Justice to take “suo moto” notice of one thing or the other. He now has a constituency and people with constituencies become predictable, perhaps even weak — doing what is expected of them. As Chaudhry now goes around addressing bar councils around the country, it does not strike one as a sign of strength. What
W H Auden wrote in his tribute to Yeats, “he became his admirers” is applicable here.
Chaudhry chose to swear on the Holy Book when allegations of corruption were leveled against his son. The yet unproven allegations against his son are not unusual for sons of powerful men in Pakistan. Iftikhar Muhammad Chaudhry of the lawyers’ movement was an ideal, a principle; it was his moment of immortality. Nobody ever lives up to that moment again; it is perilous to even try.
The Chief Justice of 2012 represents our desire for solutions from above, our quest for the “Messiah” and perhaps the dangers involved.
The writer is a lawyer and partner at Ijaz and Ijaz Co.
(In the print edition, the words “ministers home” were missing from the following line: At least in the familiar language of the past, it is the ability to send elected prime ministers home. This was due to a proofing error that we regret.)