The unsung legacy

But it did more good than harm

Going by the media coverage, it seems the whole nation including the black coats is waiting with bated breath to see the back of the CJP, Justice Iftikhar Muhammad Chaudhry. Popularly referred to as 11/12/13 (11 December, 2013), is the last day of the incumbent chief justice in office. The date is being portrayed as a watershed in Pakistan’s legal history.

Notwithstanding the apex court’s admittedly proactive – bordering on the meddlesome – role in the affairs of the state it is being hoped that under the stewardship of relatively mild mannered and amiable justice Tassaduq Hussain Jilani things will change.

Probably the optics will improve. But it is unlikely that the Supreme Court will rollback its independence and revert to being a handmaiden of the executive, a la under Justice Iftikhar predecessors.

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“Only history can dispassionately judge the real legacy of the apex court under Iftikhar. However, it needs to be acknowledged that he has done more good than harm to strengthen democracy.”

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It is indeed ironical that the man who has played an historical role in unshackling the judiciary and transforming it into a watchdog – arguably much beyond its constitutional ambit – is leaving virtually unsung. The lawyers, his core constituency, are still debating about whether to dine him out or not.

Political parties both in the government and the opposition are glad that he is leaving. Prominent lawyers who were in the vanguard of the movement for his restoration have distanced themselves from him.

His strategist, scriptwriter and chauffer rolled into one during the movement for his restoration, Aitzaz Ahsan has even composed a poem not very laudatory to his former ‘chief’. Athar Minullah, Justice Iftikhar’s former spokesman has also distanced himself. Firebrand Ali Ahmed Kurd, who was in the vanguard of the movement for restoration of the CJP, remains somewhat aloof from his erstwhile idol.

The PPP understandably has no soft spot for the outgoing CJP either. Iftikhar kept the Zardari government virtually in the dock for most of its five-year term. Prime Minister Yousuf Raza Gilani was forced to leave in ignominy while his successor Raja Pervez Ashraf almost lost his job and is now facing criminal corruption charges.

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“Probably the optics will improve. But it is unlikely that the Supreme Court will rollback its independence and revert to being a handmaiden of the executive.”

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Whether it was the Memogate that implicated Husain Haqqani, Pakistan’s ambassador to the US, or the matter of writing a letter to the Swiss authorities to reopen corruption cases against Zardari, the PPP government remained the subject of CJP’s ire.

Crucially where Justice Iftikhar lost the moral high ground was the case of his own son, Arsalan Iftikhar. His nexus with property tycoon Malik Riaz was thoroughly exposed by Malik himself. But in the final analysis it was the tycoon who was in the dock and not Arsalan, who went scot-free.

The PML-N was in the forefront of the movement for restoration of an independent judiciary. In fact, it was Nawaz Sharif’s abortive long march to Islamabad in February 2009 that led to Chaudhry Iftikhar’s restoration as CJP.

But now that the PML-N is in power, it is not too unhappy seeing Iftikhar go. The reason is simple. No government, especially the present one, likes to be held accountable.

A case in point is the ham-handed and arbitrary manner in which the government removed NADRA’s chairman Tariq Malik. Only as an afterthought stories are being planted in a section of the media through pro PML-N hacks that Tariq’s appointment was illegal from the outset and that he was originally a member of the PPP‘s 2008 media cell.

If Tariq was a jiayala why he did not favour the ruling PPP that lost badly in the General Elections? Despite stiff resistance from the government, NADRA under Tariq had started investigating thumb impressions of certain important constituencies where the PML-N candidates had won in recent general elections.

The PML-N government has a lot of egg on its face as a result of Islamabad High Court’s swift action to restore Tariq as chairman NADRA. The government instead of making it an ego issue should have accepted the verdict of the court. After all heavens would not fall even if it loses a few seats in the parliament? But it chose to appeal the verdict in the apex court.

Nawaz Sharif instead of falling prey to the perverse logic of some of his egotistic and arrogant senior colleagues should learn to live with a system of checks and balances. Independent courts are here to stay and so are other institutions. Temptation to restrict their space or tinker with their autonomy will be disastrous for the system.

It is alleged that the government is waiting for the present chief justice to exit before it makes key appointments and takes important decisions. Admittedly the pendulum had swung too far towards an independent higher judiciary to the extent of interfering in the domain of other institutions.

But it is unrealistic to expect a return to the heady days of pliable and docile judges. Despite a lot of shortcomings on the basis of its record, the apex court has set the bar veryhigh.

The CJP’s successor hopefully would restore some of the sanity hitherto lost. The propensity to play to the gallery and dispensing justice though media tickers has become the hallmark of the apex court under Justice Iftikhar. This will probably have to change.

Similarly dispensing populist justice in the name of suo moto jurisdiction should be replaced with a more sustainable constitutional model. The Supreme Court is not a trial court that it has become.

The tyranny of judiciary can prove to be as bad as any other kind of tyranny. Only history can dispassionately judge the real legacy of the apex court under Iftikhar. However, it needs to be acknowledged that he has done more good than harm to strengthen democracy.

The new CJP, Tassaduq Jilani will hopefully regain the balance lost. However it will be a great tragedy if the judiciary goes back to Justice Dogar and Irshad Ahmed Khan days of being in bed with whosoever was in power.

The present Supreme Court is a far cry from the one that refused to give relief to Prime Minister Mohammad Khan Junejo who was sacked by the dictator Zia ul Haq. The apex court despite declaring Junejo’s dismissal as unconstitutional in September1988, clarified that dissolved assemblies and dismissed government will not be restored.

The deed was done after receiving a message from the military not to restore Junejo who was waiting in the anteroom of the apex court to hear the good news. Eminent jurist Wasim Sajjad brokered the whole charade. Hopefully history will not repeat itself on this count at least.

Arif Nizmai is Editor, Pakistan Today.