Calling a spade a spade

An interview with Asma Jahangir: He politicised both bench and bar

Senior Supreme Court lawyer and leading human right activist Asma Jehangir has been a thorn in the side of Pakistani establishment since she was a slip of a girl. In recent years, she has been a vocal critic on the conduct and style of working of former chief justice of Pakistan, Iftikhar Chaudhry. Never shy of calling a spade a spade, she indeed was scathing about the judgments of the top judge. As Justice Chaudhry exits, in Asma evaluation, Justice Chaudhry politicised both the bench and bar and most of his decisions were made out of considerations other than legal and constitutional.

Excerpts from an exclusive interview with DNA:

Q: How do you evaluate Iftikhar Chaudhry’s stint as chief justice of Pakistan?

A: His term in office can be divided into two parts. Before his sacking by a military dictator, Justice Chaudhry was not a very popular figure. Nor this period was as eventful from the jurisprudence point of view. Rather it was business as usual.

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‘Soon those heady expectations and sense of hope evaporated and it took not much time for lawyers to see through the real motives and true designs of the movers and shakers of the restored judiciary.’

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But after his restoration after a heroic struggle that involved all the segments of society, the former CJ’s stint merits some discussion. The bar took full ownership of the restored judiciary. There was a great feeling, and hope permeated everywhere. People thought that the restored judiciary would stand behind lofty ideals and higher principles of jurisprudence. The judiciary successfully distanced itself from the executive, which was a super start. Previously the judges used to publicly rubbed shoulders with dictators and top government functionaries. Soon those heady expectations and sense of hope evaporated and it took not much time for lawyers to see through the real motives and true designs of the movers and shakers of the restored judiciary.

Q: Where did he go wrong?

A: Much to our discomfort we found that the unfolding judiciary was hardly independent. Rather Justice Chaudhrys badly politicized the judiciary. The decisions taken by him mostly were influenced by media and political circumstances rather than law. The lawyers and their organizations could easily smell the foul play on display. It is not only the judiciary that got politicized. Even bars were not spared by none other than Chief Justice himself. This was evident from the role judges played in the elections of bars with the chief justice himself driving the wedge, doling out all sorts of goodies besides making interesting announcements. For example, chief justice made various announcements like the creation of benches of Lahore High Court (for Sargodha perhaps) when he had nothing to do with the creation of benches.

No wonder the bars and lawyers were not happy the way he conducted himself.

So as he exits no lawyer forum worth its name hosted him a farewell dinner – whether it was Supreme Court Bar Association, Pakistan Bar Council, LHCBA or bars in Karachi, Peshawar and Quetta. Only lawyers of little or no standing hosted him.

In fact I wanted to arrange a farewell for him. But my colleagues thought that it would give a very wrong message, and would be tantamount to condoning his conduct.

Q: Why and how he became so controversial?

A: Because he ran the judiciary in a very autocratic and personalised fashion. He liked to control the judiciary from top to bottom. It was like a one-unit. He was doing this when the country was headed towards devolution with powers being devolved to grassroots level. But in his case, he sought to centralise power in his person.

He also treated senior lawyers with contempt while giving the bench a holier-than-thou treatment. There was enough pick and choose in the selection of cases. There was also pick and choose at the political level. Look at what he did with Babar Awan. He has not been allowed to practice since long, which is a violation of his fundamental rights.

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‘Justice Chaudhry has badly politicized the judiciary. The decisions taken by him mostly were influenced by media and political circumstances rather than law. The lawyers and their organizations could easily smell the foul play on display.’

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Interestingly, when he was reinstated, it was believed that the chief justice after getting a new lease of life will be modest and humble. He was expected to be forgiving as he was himself forgiven by the people. But instead he followed a different course. He went for self-projection. He sounded vindictive and vengeful, not even sparing his peers as if he was out to teach people lessons. No wonder the PPP leaders accused him of showing bias. Again, appointments made by Justice Chaudhrys reflected personal likes and dislikes. The legal circles do not consider those the right material fit for elevation to the superior judiciary. Similarly look at the list of senior lawyers ignored by the apex court. It seems they were afraid of nominating talent and men of integrity.

Q: Judiciary in post-Iftikhar Ch period, what are your expectations?

A: For the new SC leadership, to put behind the legacy of Justice Chaudhry will be a very uphill task. First, the new chief justice will have to follow the procedures to the hilt in his working. Second, there is a need to bring sanity in the working of judiciary. One needs to move away from the tendency of going for headlines and all the grandstanding witnessed in recent times.

Moreover I want to make certain points here as the new chief justice takes over. One, all judges should declare their assets, and this declaration should be from the day they became judge. Two, there is a need to restore right to appeal, the original jurisdiction of appeal. Three, the judiciary should distance itself from media, discourage media trial and protect people from becoming a victim of media trial. Four, all appointments made by Justice Chaudhry need to be re-regularised.

Q: How did Justice Chaudhry handle the case of missing people?

A: The people started disappearing in 2004. In 2005, the figures touched new heights. But nothing was done despite much hue and cry. I filed a petition from the platform of HRCP in 2007. But initially no interest was shown towards the petition. Finally after a lapse of over a month the petition was taken up. But there was no sense of urgency then, as if it was a routine matter. As such he did not address the issue when he should have, thereby strengthening the hands of those behind this gory episode.

Q: Your views on the contempt of court cases?

A: There have been many instances when contempt laws were invoked when its use is advised only in extreme cases. We all should understand the judiciary enjoys a special place in the state and society and mainly runs on moral authority. The judiciary needs to earn its respect through its conduct and working and not through other means or through judicial activism.

Similarly there was a greater tendency towards suo moto notices. In fact more and more people want SC to take suo moto notices instead of adopting proper procedures to get speedy justice.

Q: What do you say on the Supreme Court’s standoff with the Public Accounts Committee?

A: How can the Supreme Court consider itself above the PAC when all other institutions can be held accountable by the parliament? This gave a very wrong signal. The question is why should the CJ be chairman of Law Commission or why he should be the head of Judicial Academy? It is through these institutions that he doles out jobs and funds among his favourites. In the Blue Book, only two state functionaries are entitled to have VVIP protocol: president and prime minister. Now add chief justice to this list. Look at the entourage of chief justice. And look at the entourage that travels with the CJ’s family! Is that all free of cost or does it entail public funds?

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‘The judiciary enjoys a special place in the state and society and mainly runs on moral authority. The judiciary needs to earn its respect through its conduct and working and not through other means or through judicial activism.’

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Similarly I could not understand as to where the funds of law commission as well as legal aid were being spent? I cannot understand despite being president of the Supreme Court Bar Association.

Likewise it is very interesting that some cases acquired great hype only to be forgotten afterwards. There was also unique example when SC registrar was asked to keep public funds and invest them. As if he was a super investor.