Leaving aside the merits or motives of Malik’s sensational charges, what is clear is that the hour requiring a judgment on the judiciary’s performance is, for better or for worse, upon us
By Adnan Rehmat

In hindsight it was inevitable. Both the Supreme Court of Pakistan and its judges were always going to be eventually themselves judged for performance benchmarks and high ideals they had set for themselves after being restored in the aftermath of a collective resistance against a military dictatorship. Five years after staking its claim to a ‘truly independent judiciary’ that neither brooked fear nor favour anymore and being transformed into a selfless institution, the judiciary finds itself now in an intractable situation where anything they do or decide incriminates them for, ironically, self-judgment — whether they indict or exonerate themselves.

The reason: serious allegations from the super-rich realtor Riaz Malik about Chief Justice Iftikhar Chaudhry being less than enthusiastic about bringing his prodigal son Arsalan Iftikhar to justice — in time and with the same righteous rage that he has demonstrated he reserves for others — on charges of taking massive amounts of money to influence decisions from his father’s court and the father not taking action even knowing the son was in business with Malik. And, that judges as a whole are judging their chief less harshly and more slowly than, for instance, the government’s functionaries charged for similar allegations of indiscretions at worst and indifferent at best.

Leaving aside the merits or motives of Malik’s sensational charges, which he appears to be unfolding in installments with clear indication their severity will grow and that purportedly more incriminatory evidence will be revealed, what is clear is that the hour requiring a judgment on the judiciary’s performance, priorities and singular patent on dispensing justice is, for better or for worse, upon us. How both the apex court and its judges as well as the chief justice apply their own standards of justice to themselves will show if they practise what they preach when it comes to accountability, impartiality and fairness.

The resistance in 2007 by the judges to their sacking, led by the Chief Justice, and the movement for their restoration was always predicated on a moral high ground that necessitated not accepting the decision by a military dictator to sack them en masse — notwithstanding the fact that the same set of judges had validated General Pervez Musharraf’s self-confessed unconstitutional putsch against an elected government. That the showdown between the judiciary and the army eventually resulted in Musharraf bowing out and the justices donning their black robes again ostensibly meant judiciary had become ‘truly independent’ and severely dented the military’s powerful dominance over the polity and apparently strengthened the parliament and presidency.

How ironical, then, that five years down the road, the army is stronger than ever before and the parliament and the elected representatives as well as the political forces on the back foot. And, the judiciary itself in the proverbial dock, to boot. All because, rightly or wrongly, the superior judiciary decided soon after its second restoration by the elected coalition government to focus its energies on not just taking on political cases but itself encouraged litigation on political issues. Where this encouragement wasn’t enough, it launched into an undisguised phase of judicial activism based in a perceived legitimacy drawn from restoration as an outcome of its institutional resistance to the executive fiat of General Musharraf’s dispensation.

This activism driven by a sense of mission and destiny has also been helped by the fact that Iftikhar Chaudhry has managed to get an unusually long term in office as the head of the apex court, which has fuelled the drive to be judge, jury and executioner in several cases — best illustrated by the trial of Prime Minister Yousaf Gilani for contempt of court, which by implication sought to all but throw him out of office based on perceived slight. With less than a year to go in his tenure, the chief justice, as illustrated by his larger than life profile and vocal demeanor, also seems to be obsessed by his legacy.

Legacies, however, are a dangerous business when the equation includes the power to influence events that not just go beyond your term in office but sometimes a generation and beyond and to actually have, by the last word on fates of institutions, governments and nations. Notwithstanding the intention, influence or capacity of Iftikhar Chaudhry to accomplish goals that seemingly go beyond the normally perceived and acceptable mandate of judges and judiciaries, the legacy of the Chief Justice is looking different from his stated (as opposed to accorded) mandate of ridding the society of all ills. Chief Justice Iftikhar Chaudhry’s real legacy throws up at least three characteristics in relief:

1)The Supreme Court has been rendered a court of complaint more than a court of appeal. Consequence: defendants lose at least two chances of self-defence and appeal in case they feel shortchanged by an inefficient justice system. No one in the last four years has won a single case of appeal against the apex courts own judgment. High profile examples: Admission of petition after petition against the government from ordinary citizens — from an appeal to stop sacking of ISI Chief General Pasha when there was no such decision to stop former ambassador Hussain Haqqani from working and putting him on Exit Control List.

2)The Supreme Court has turned the maxim of innocent until proven guilty to guilty until proven innocent. Consequence: Whoever moves the Supreme Court first against someone all but wins the case. High profile examples: President Asif Zardari guilty of alleged corruption despite failure of both complainants and courts to convict him for over two decades now, half of which he spent in prison. Another example is Hussain Haqqani who has been all but declared a traitor without even being tried — the commission that investigated him not having the status of a tribunal.

3)The Supreme Court moves in a pack and hands out unanimous judgments with nary a dissenting note from a judge in a bench in sight. Consequence: Defendants are at a significant disadvantage in the pursuit of justice when dealing with a bench that has clearly strong opinions on issues — sometimes bordering on premeditation. High profile example: a seven-member bench declaring Prime Minister Gilani guilty of contempt of court in a unanimous decision that oozed unusual venom.

A distinct feature of these three characteristics is that an elected government and parliamentary supremacy have been the largest victims of this judicial activism based on initiation either by the Supreme Court itself or by unelected politicians such as Imran Khan who reserve unguarded contempt for parliament and its public mandate of five years. The Supreme Court led by Iftikhar Chaudhry has not only gone about admonishing and punishing elected leaders for perceived contempt for disagreeing with the court but also singularly failed to ask others like Imran Khan and Nawaz Sharif to not openly support the judges for political ends. Not asking them to stop is akin to enjoying this perceived ‘popularity’.

Justice, they say, should not only be done but seen to be done. Has justice been done? The Pakistan People’s Party and its coalition allies may feel they have been wronged by a judiciary that is supposed to be neutral but has played political; how does the superior judiciary and its chief justice feel when the shoe is on the other foot? The irony is that the judges will judge themselves on the Arsalan-Riaz case. That may be the ultimate luxury but there’s no escaping the fact that it is judgment time and the judges are going to discover they are humans after all and the only mission is not a guilty verdict.

Source: The News

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