Politician from the bench

December 15, 2013

Politician from the bench

He took on a dictator and democrats -- he led a mini-revolution while being under house arrest. Like most enduring individuals in history, he has been a divisive figure. And now he has to call it a day.

Chief Justice Iftikhar Chaudhry has lived a most eventful life as a Justice. One can only wonder if he could ever have planned such a journey. If his judicial pronouncements are anything to go by, he would attribute such a script to a higher power -- that lends him consistency and popularity in a country like Pakistan.

In the years to come, Justice Chaudhry will arguably easily surpass the late Justice Munir as the most talked about Chief Justice in this country’s history. Again, this flows from the fact that people will continue to cite or vehemently disagree with his legacy -- but his legacy is here to stay for the foreseeable future.

The outgoing chief justice of Pakistan displayed admirable courage in standing up to a dictator. And his action inspired a movement unlike any other in Pakistan. The fact that he stood his ground and the perception that he was standing up for the rule of law went a long way in ensuring that the superior judiciary of Pakistan is seen as assertive and independent of other branches of government -- particularly the executive.

The most fascinating aspect of the former CJP’s career in my eyes is his role as a politician from the bench. He has been a particularly astute one. He built on his reputation of being fearless to further judicial activism. And the apex court under him became -- for better or worse -- the most influential actor in national politics. He influenced the reach of constitutional amendments, the fate of contracts awarded by the state, appointments that traditionally fall under the domain of the Executive and he basically decided which case was important enough to result in suo moto action. And I would argue that he largely managed to do this in a way regarded as fair and just by the bulk of the apex court’s audience.

When the time was right, he even hauled up sacred cows like different branches of the military in court. It will not matter how far he went in holding them accountable. The fact that he even took the initial steps bolstered his reputation. This isn’t meant to celebrate such an approach -- only to emphasise the importance of perceptions.

There is also a tragedy in this but more on that another day.

In this sense, the fact that Justice Chaudhry did not have a longer tenure is the best possible thing for his legacy; the longer he remained in office the greater the number of questions that would have arisen regarding his selection (and omission) of suo moto cases and his judicial philosophy. In politics, particularly in judicial politics, a timely exit can influence your legacy in immensely important ways. Things have worked out well for Justice Chaudhry and he deserves the limelight -- and he must also face the critique.

I have long held the belief that separation of powers does not flow from the benevolence of individuals -- it results because of a constant power struggle between institutions (and the people running those institutions) fighting turf wars. Justice Chaudhry contributed to this and made the superior judiciary more independent. But he did not make it more efficient and he did almost nothing of significance for the aspect of the judicial system that affects most litigants: the lower courts.

If there is such a thing as justice, then it is just as far away today from the common man’s imagination as it was when the Lawyers’ Movement happened--unless you are one of a handful of citizens who became party to a suo moto case.

So, in real terms, our legal system is not any better off with a strong and activist superior judiciary. And yet, Justice Chaudhry did a remarkably good job of ‘marketing’ the slogan of justice. The fact that the court under him threw out an elected prime minister for contempt, hauled up another for corruption and made no secret of its ambition to take on the powerful ensured that people started looking up to the Supreme Court. Does it make any real difference in their lives? No. But maybe, just maybe, there is a virtue in making people believe that the powerful are not beyond the reach of the law. And the law is always used by one interest group to go after another -- so the criticism that the Supreme Court went after the PPP to further its own interest does not really add much to the debate. All superior courts take a certain direction and political actors that clash with their views have to be prepared for a fight.

I often make the criticism that Justice Chaudhry’s court showed little respect for established jurisprudence or consistency in precedents. But maybe the outgoing CJP was fashioning a culturally unique approach to adjudication. Why worry about precedents or consistency when most people in this country will demand insaaf and not always clearly elaborated or logically coherent theories of jurisprudence?

Well, one answer could be that the system is better off with such safeguards and indeed that has been the traditional approach. But Justice Chaudhry showed that legal niceties are not a stumbling block once you have populist support -- or the perception of support.

Is this effective judicial politics? Certainly. But does it make a representative democracy any stronger? I doubt it. And that was and remains the greatest source of my discomfort with Justice Chaudhry’s approach -- regardless of the fact that he has been highly effective.

If we think a system is holding us back from doing good deeds, should we assume the responsibilities of another branch of government? Justice Chaudhry showed that not only can you answer this in the affirmative -- you can also be popular while doing it. This approach has its pitfalls and one hopes the dangers will be reined in.

The judiciary today, even the superior judiciary, is not any more transparent. Individual judges are highly competent but the system of judicial accountability as a whole lacks desirable features. Under Justice Chaudhry, the court became more inward looking and rather secretive. One hopes this will change in the coming years. Sunlight is a great disinfectant -- even if it is uncomfortable at times.

The supporters of Justice Chaudhry will remember him for multiple things and his detractors will cite Arsalan Iftikhar and other sources of disagreement/controversy.

Judges, particularly Supreme Court Chief Justices, should not be defined by one action or one case. Life and judicial careers are more complicated than that. Where there is ambition, insecurity is natural. People will overstep boundaries and they will jealously guard their weaknesses. But they will also play to their strengths and different facets of the same person will matter to different people.

No verdict on Justice Chaudhry is final -- except that of history. And I hope we can even disagree about that. What is certain is that Pakistan’s most powerful politician in robes has retired after one hell of a career.

Politician from the bench