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Individual or institution

How long will it take for the judiciary to grow out of the undeniably adverse effects of unbridled populism? Looking at chief justices’ performance in office

Individual or institution

With the sole exception of Pakistan’s first chief justice, Justice Abdur Rashid, who kept himself aloof from the government and the people both and tried to follow British judicial traditions, most chief justices have tried to influence their courts in the light of their relations with the two most influential power brokers — the defence forces and the religious lobby.

The government-judiciary intrigue for enabling Justice Munir to supercede a senior judge from East Bengal (see Hamid Khan’s History of Pakistan Judiciary) meant judiciary’s alignment with the west Pakistan coterie in power.

The judiciary’s first test came when Governor General Ghulam Mohammad sacked the Constituent Assembly and Justice Munir bailed him out even if he had to repudiate the state’s claim to independence from the British crown. But he outdid himself as a protector of the ruling bureaucracy-military alliance when he not only justified Ayub Khan’s seizure of power as a revolution but also advised him on ways of moving safely through constitutional and legal minefields.

The justification offered for Justice Munir’s compromises with the de-facto authority is that the judiciary decided to protect the justice system to the extent possible within the limits allowed by the wielders of state power.

A streak of populism was present in the Munir strategy. He sought the favour of liberal, secular and anti-orthodoxy and anti-dictatorship elements through the Munir-Kayani report on the anti-Ahmaddiya riots of 1953. He succeeded to a considerable extent.

Chief Justice A. R. Cornelius, who had written the dissenting judgment in the Tamizuddin case tried to save the judiciary’s power of review under a military regime but, faced with the popular backing the Ayub regime had acquired, he chose to please the Muslim orthodoxy by extolling the punishment of chopping off criminals’ hands and feet.

During the Ayub and Yahya dictatorships the chief justices were content with keeping the courts functioning and avoiding contentious issues involving the people’s constitutional rights. For this they paid a heavy price. They allowed Ayub Khan to interview the candidates recommended for elevation to the bench, to get away with the appointment of a lawyer (though a brilliant one) as the chief justice of the Lahore High Court and with the appointment as a high court judge of a lawyer who had no noticeable record of appearance before a superior court.

Zulfikar Ali Bhutto’s government took a series of steps through constitutional amendments that provided for fixed tenures for superior court judges and the chief justices were happy if they could serve their time without compromising their dignity. But before all this happened the country’s chief justice gave a historic judgment in the Asma Jilani case that branded Yahya Khan as a usurper, a term used to identify the subsequent coup makers, despite the fact that the judgment against Yahya Khan came after he had fallen.

The 1970s and 1980s were generally bad years for the judiciary. The Bhutto government’s attempts to tame the courts were superceded many times over by Gen Ziaul Haq’s assaults on the judges and the entire judicial system. He devised new ways to get rid of judges he didn’t like.

The chief justice of the federal shariat court was prevented from announcing judgment on the punishment by stoning to death, a judgment that Zia didn’t approve of by transferring him to a ministerial job. Worse, he threw out judges he did not like or who had outlived their utility to him, by simply not inviting them to take fresh oaths of office under the Provisional Constitution Orders (PCOs).

The only strong chief justice to have emerged in this environment was CJ Anwarul Haq who was bold in serving wrong causes to please the dictator. His court dismissed Nusrat Bhutto’s petition against the martial law administrator for want of jurisdiction and gave the respondent huge relief.

The present chief justice of the Supreme Court is setting records in judicial populism. We are too close to events to be able to look at matters objectively and the public too might not be able to accept objectivity.

After the Zia period, Justice Afzal Zullah was perhaps the first chief justice to take to populism. Aware of the judiciary’s subservience to the executive over the preceding two decades he tried to raise it to a level at par with the government by increasing his interest in the promotion of human rights.

Probably the most prominent case in this category was the Darshan Masih suo motu case that marked a big step towards elimination of bonded labour. At the same time, he provided an opening to the religious lobby by giving a ruling that any gaps in law, or a situation created by the lack of a comma or a full stop would be filled or corrected in accordance with the Islamic injunctions.

However, until the arrival of Chief Justice Sajjad Ali Shah the superior judiciary was content with judicial audit of the executive’s actions that were agitated before it. Justice Sajjad Ali Shah tried to raise the level of the judiciary’s independence by taking the appointment of judges almost completely out of the executive’s hands and making it subject to the chief justice’s advice. Although Prime Minister Benazir Bhutto had picked him in preference to the judges his personal grievances against the government led him to defy Benazir Bhutto to a greater extent than Justice Tufail Ali Abdur Rahman had declined to oblige Zulfikar Ali Bhutto.

Further, he thought the judiciary could challenge the executive and, therefore, started contempt proceedings against the prime minister. His effort failed because the ruling party got away with the storming of the court and neither the president nor the army chief was in a position to come to his rescue. The judiciary lost to the executive and lost ground further when the chief justice was sent home by his brother judges in a manner that still bothers many people.

The government-army confrontation that resulted in Prime Minister Nawaz Sharif’s overthrow by the army chief offered the judiciary an option to choose for support between the military and the executive. Chief Justice Irshad Hasan Khan chose to back Musharraf and gave him extraordinary authority.

These skirmishes between the judiciary and the executive were nothing as compared to what was to happen when Chief Justice Iftikhar Chaudhry took over. Populist from the very beginning he assumed full powers to hold the government accountable to the judiciary. The result was judgments like the one that prevented the sale of Pakistan Steel Mills.

He was reluctant to take on the military establishment till he fell out with the military dictator due to the latter’s decision to win a second term in office without shedding his army uniform. The story of the chief justice’s removal and his restoration following the Lawyers’ Movement and the support it received from the people and also from Nawaz Sharif is history.

After restoration he went for the government with apparent vengeance. The drive against corruption and irregularities committed by holders of high offices is perhaps the strongest element in populist affairs. The populist delivery of justice was reinforced with indiscriminate use of suo motu powers.

Another strand of populism developed by the Iftikhar Chaudhry court was playing to the religious gallery. The CJ was not content with denouncing secularism, which was to be repelled by the court even if it was endorsed by the parliament. When he deemed it proper to hear his son’s case, he put a copy of the Holy Quran on the table, and declared that he will go by the Holy Book.

The successors of Chief Justice Iftikhar Chaudhry tried to restrict judicial activism and though their tenures were brief they did succeed in striking a balance between activism and normal functioning of the highest judicial forum.

But under the present chief justice of the Supreme Court is setting records in judicial populism. We are too close to events to be able to look at matters objectively and the public too might not be able to accept objectivity. However, those who understand judicial proprieties are already wondering as to how long will it take for the judiciary to grow out of the undeniably adverse effects of unbridled populism?

I.A. Rehman

I. A. Rehman
The author is a senior columnist and Secretary General Human Rights Commission of Pakistan (HRCP).

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