Chaudhry’s legacy

When Iftikhar Mohammad Chaudhry was restored as Chief Justice of Pakistan in March 2009, he was the conquering hero of adulatory lawyers, proud judges, hopeful civil society activists, thunderous opposition parties, supportive media and a sober military. Last Wednesday, when Mr Chaudhry departed the hallowed halls of the Supreme Court in Islamabad, the same lawyers were antagonized, the same judges were defensive, the same civil society activists were disillusioned, the same opposition parties were insulting, the same media was cynical, and the same military was resentful. Significantly, a parliament that had once cheered his return was now readying to strike down some of his cherished judicial interventions; and the PMLN opposition party that had waged and won the battle for his restoration was now in government cursing him and counting the days for his exit.

Even more critically, Justice Tassaduq Hussain Gillani, the judge who declared Mr Chaudhry’s ouster by General Pervez Musharraf in 2007 illegal, thereby legitimizing the lawyers’ movement for Mr Chaudhry’s restoration, and who is now the Chief Justice of Pakistan, has announced his intention to roll back the former CJ’s key “suo motu” populist interventions into the domain of the executive.

There was a lot of thunder and lightning in Mr Chaudhry’s SC but no downpour. He railed against the omissions and commissions of the intelligence agencies and military institutions for three years but failed to deliver the missing persons or convict the politicians, generals and bureaucrats who had done their unlawful bidding. He hounded President Asif Zardari by scuttling the NRO, destabilized the PPP government and packed off one PPP Prime Minister, but failed to revive the corruption cases against Mr Zardari at home or abroad, let alone recover a penny from him. He sacked top bureaucrats, humiliated ministers, constantly threatened all and sundry with imprisonment for disobeying him (over 100 contempt of court threats), provoking gridlock and go-slow instead of efficiency and transparency in government. He meddled in serious economic, financial, foreign policy and national security matters, disregarding the dire consequences and costs to state and society of his whimsical decisions. Unforgivably, he didn’t take a single concrete step to reform the judiciary to make it more efficient and less corrupt. Instead of delivering institutional justice at the grass roots for the “aam aadmi” he encouraged vested interests to come directly to him (the SC received more than 90,000 petitions between April 2010 and December 2011 compared to about 450 in 2004, and it continues to receive approximately 250 applications daily under Article 184(3), the SC HR cell having received 201,456 ‘complaints’ from 2009 to 2013). His weakest moment came when he was publicly confronted with the misdemeanours of his son and heir, Arsalan Chaudhry, and was compelled to seek refuge behind a handpicked one-friendly-man Shoaib Suddle commission that duly buried the file.

Iftikhar Chaudhry was, in many ways, a man of the turbulent times in which Pakistan was slowly awakening to its democratic destiny. A powerful and unaccountable executive elevated him to the top job in the Balochistan High Court and then to the Supreme Court precisely because he was meek, nondescript and subservient. But he decided to stand up in 2007 after General Pervez Musharraf had opened the floodgates of democracy by empowering the electronic media, fuelling middle-class expectations, raising civil society aspirations and announcing his intention to hold free elections. General Musharraf’s botched-up operation against the Lal Masjid, followed by a crackdown on the electronic media, became a timely springboard for Justice Chaudhry’s spirited political resistance. Much the same sort of political considerations – an overriding desire for justice or insaf, political stability and economic revival after being subjected to years of populist posturing and empty rhetoric – now cast a shadow over his legacy. Corruption at the very top may have been stalled but not a single decision by Chief Justice Chaudhry has provided any palpable economic or legal relief to the people.

Nonetheless, history will credit him for one singular achievement that may, in the long run, account for institutionally more than all his personal weaknesses, excesses and failures. Justice Iftikhar Mohammad Chaudhry has set the judiciary irrevocably on the path of unfettered autonomy from executive authority. As chief justice, he approved the selection and appointment of over 100 senior HC and SC judges who have tasted and exercised power, sometimes with frightening arbitrariness or unbridled misjudgement like their mentor. They are not likely to give this up in a hurry even if the pendulum swings back from its extreme position. No executive will be able to bully them and those they choose as their successors. This political development is a sine qua non of democracy. A corollary of an independent judiciary is that no wannabe military dictator or civilian autocrat can bank on the superior judiciary to acquiesce timidly in any grand subversion of the constitution as on so many occasions in the past.

A judge has passed away. A politician is born.