Justice Jawwad S Khawaja’s controversial brief tenure as CJP
At the height of his career former Chief Justice of Pakistan Iftikhar Chaudhry’s popularity could compare favourably with the best ever in the country, like Imran Khan’s in 92, or Dr Abdul Qadeer Khan’s in 1998, or General Raheel Sharif’s today.
Perched securely in Aitzaz Ahsan’s passenger seat, everybody who was anybody from that little mujahid Ali Ahmed Kurd to political heavy-weights like Nawaz Sharif had to be seen riding his coat-tails. Failing do to so would be like a succubus feasting away on their political careers.
Thanks to Iftikhar Chaudhry, Nawaz Sharif would once again resonate with the people of Pakistan. Thanks to Iftikhar Chaudhry, Ali Ahmed Kurd, a person nobody knew at the beginning of 2007, would become a slayer of dragons before the year was out. When he retired, even though Imran Khan had managed to sour the pot somewhat, it still felt like the end of an era.
If he had been in America, he would’ve had a Ben and Jerry’s ice cream named after him, or at the very least a Hollywood movie based on his life. For many, he was a shoo-in for Nobel Peace Prize. If he had been in Belgium, he would have had whatever Belgians love named after him — probably a waffle. But since he was in Pakistan, he announced he would be forming a political party after the mandatory two-year interval after his retirement. Nobody laughed when he said that because even though it wasn’t just outlandish, it was a long way outside the realm of possibility that he would succeed as head of a political party, the idea still did not register as totally ridiculous.
On the other end of the spectrum was Justice Abdul Hameed Dogar who took oath as chief justice under Provisional Constitution Order after Chaudhry was dismissed as Musharraf declared emergency in the country. Unsurprisingly, when Chaudhry was restored, he declared that Abdul Hameed Dogar was never a chief justice. It just had not happened. He was deleted from the country’s judicial history.
Fast forward to 2015, Justice Jawwad S Khawaja won’t be forming any political parties anytime soon. In his short 23 days at the helm, he managed to irk everyone from law enforcement agencies to real estate developers to the lawyers, especially the lawyers. For a man whose philosophy was so similar to Justice Iftikhar Chaudhry’s as to be practically indistinguishable, he has had a bafflingly different fate.
On the face of it, Khawaja had the makings of a folk hero — he had resigned office as Justice of the Lahore High Court rather than take oath under Provisional Constitution Order. He was on the bench with CJP Iftikhar Chaudhry, who brought him up to the Supreme Court in 2009, during most of his major cases. As chief justice, he refused protocol and a bullet proof vehicle, he insisted that Urdu be made our official language, he clamped down on financial scams, and tried to make even the DHA accountable. But he would soon find out that that is not all that it takes, not in this country.
Thanks to Iftikhar Chaudhry, Nawaz Sharif would once again resonate with the people of Pakistan. Thanks to Iftikhar Chaudhry, Ali Ahmed Kurd, a person nobody knew at the beginning of 2007, would become a slayer of dragons before the year was out. When he retired, even though Imran Khan had managed to sour the pot somewhat, it still felt like the end of an era
To the outside eye, he looked like a man groping for immortality though in his heart he probably would have settled for being a little smudge on history. But where his ideological predecessor had a pretty sweet six-year run at immortality, he had a lousy 23 days, 15 of which fell in August, the traditional vacation month for lawyers and justices.
But he would not go gently into that good night. He had more battles to fight than he had days. So he fought harder, fiercer, uglier. Lawyers thought they could run the clock on him. They went on vacations. He kept hearing their cases. His battles were aimed at public good though he had personal ones too. In his last hours in office, he probably decided to win one of each — he ordered to adopt Urdu as the country’s official language and he took away Ali Zafar advocate’s right to practice law for a year.
The lawyer community was up in arms. He was universally held as a symbol of the excesses and high-handedness that an institution is capable of. His brief tenure was “a dark period” in judicial history. He was a blemish on the pristine reputation of an institution held dear by so many. The Pakistan Bar Council and Supreme Court Bar Association even broke tradition and refused to meet him as he left office. As his term ended, Justice Khawaja faced the prospect of answering for his 23 days in office for a long time to come.
Not for him a throne in the hall of immortality, he probably wouldn’t even make it to Aitzaz Ahsan’s passenger seat.
But justice Khawaja’s fate should not be treated as a lesson or an example to be avoided. After all, he had so much in common with the most beloved chief justice of them all, Iftikhar Chaudhry. Newspaper headlines during their tenures were so similar, justices’ names could be interchanged and nobody would know the difference. Here are some headlines from justice Khawaja’s tenure and see if you can’t imagine Justice Iftikhar as the man holding his fearsome gavel:
SC looks into illegal regularisation of 150,000 govt employees
Ogra scam: SC orders to form commission to probe Tauqeer Sadiq’s escape
SC directs NAB Chairman to submit reply for not taking action on application for over 5 years
SC directs AGP to conduct audit of DHA accounts
Do these headlines not sound exactly like the ones you’d hear during chief justice Iftikhar Chaudhry’s period? Well, they should because they were actually taken from his period.
Actually, they weren’t. They were from the Khawaja’s period, but the fact that you could be made to think that was the case — doesn’t it say a lot?
Khawaja is not an aberration who should be deleted from judicial annals. His example should make us take a long hard look at whether even the apparently noble concept of judicial activism has gone awry in the country.
In other words, since we’re a constitutional institution, we have the right to review constitutional changes. In other words, since parliament, which created us is supreme, that means we are supreme. Or, in even simpler words, since parliament is supreme, we are supreme. Also, parliament is not supreme
For all the noble and brave things both Justice Iftikhar and Justice Khawaja did for the country, they were also avengers of slights, both real and imagined. Their egos were huge and they bruised easy. They wielded their gavels like hammers and beat their opponents to submission with it. They both had little regard for the other constitutionally mandated institutions. If they encroached on anyone else’s territory, they were just being right more emphatically.
It was easy to ignore all this in Iftikhar Chaudhry. He was entitled to some things because he was the one who rose up against the evil dictator. He was like James Bond. He had a license to kill. But Jawwad S Khawaja was like James Bonds’ little brother, Steve Bond. He was entitled to nothing. Without the spying James Bond, after all, is just an alcoholic trying to find his way into beautiful girls’ bedrooms.
Not that the signs weren’t there even before he took office. In a petition filed against the 21st constitutional amendment, the questions in front of the bench were two-fold: Whether they had the right to review the constitutional amendment and whether the amendment should stand. On the first count, Khawaja said that yes, the Supreme Court did have jurisdiction to review constitutional changes and on the second that the amendment was not legal.
Courts usually review laws to see if they are in accordance with the constitution. There’s something perverse about a court reviewing a constitutional change. It is hard to decide whether Justice Khawaja’s reasoning is more amusing or more tortured. Parliament is not a sovereign or supreme body, he declared, adding that “the limitations on the parliament are not only political but are borne out from the constitution itself”.
In other words, since we’re a constitutional institution, we have the right to review constitutional changes. In other words, since parliament, which created us is supreme, that means we are supreme. Or, in even simpler words, since parliament is supreme, we are supreme. Also, parliament is not supreme.
He also made a “basic structure argument” — that there was a basic structure to the constitution that could not be violated. Without going into details about what constituted that basic structure, because, you know, it’s only law.
He did mention that “powers vested in and exercisable by Courts are not a matter of parliamentary grace or sufferance” but are there “to protect the people against excesses, inter alia, of State organs and functionaries”. First of all, learn from Khawaja to phrase the rights of the people as if they were the rights of the courts. But to give the justice his due, he did go there and though it far under-weighs all the warpedness he introduced through his rulings, it does earn him a modicum of respect.
Maybe the Supreme Court is less corrupt than the political government. Maybe it is capable of running the country a lot better, but that is not what it is entitled to do.
A genuine subservience to the law means that you stop trying to abrogate power for yourself that isn’t meant for you and start enforcing it as it is meant to be. Genuine subservience to the constitution means that if a constitutional amendment passes that says all judges should do a chicken dance before making any ruling, they better stop quibbling and put on their best chicken suits.