Will Justice Continue to Remain Elusive?
By Shahid R. Siddiqi
US
During the reinstatement campaign of Chief Justice Iftikhar Chaudhry, an impression was created by politicians and lawyers - those who were leading the campaign for his restoration - that Pakistan’s judiciary system would stand revolutionized with his return.
They tried to convince the people that Justice Chaudhry was a messiah who was about to lead them into a utopia - a typical falsehood perpetrated in the past on the people of Pakistan by similar campaigners. Obviously, political and public pressure could not have been built without such rhetoric.
But by failing to quell this impression, Justice Chaudhry chose to swim with the flow. In the process, he has adopted a position that does not seem tenable and if he does not deliver now, which seems well nigh impossible given the magnitude of the problem, his own position and that of the judiciary he heads would begin to sink again, once the euphoria of his reinstatement dies down and the people’s expectations rise.
Responsibility now devolves on Justice Chaudhry to ensure that the judiciary, higher and lower, makes a complete departure from improper practices of the past. There is no room for cosmetic changes any more.
When allegations of misuse of office against Chief Justice Chaudhry first became public through the open letter of a senior lawyer, Mr. Naeem Bukhari, they shocked every one but surprised no one. In a scandal ridden country where bigger allegations have gone unnoticed, it was a drop of ink in the ocean.
In fact, the story of judicial system across the board is so pathetic that people now consider hiring a judge rather than a lawyer to be a surer and cheaper way to win litigation.
Unfortunately, the unbecoming conduct of members of higher judiciary can only be challenged at the challenger’s own peril because their exalted position makes them holy cows placing them above the law, while ‘Contempt of court’ and ‘Suo Moto’ actions provide them tools that scare away those who demand public accountability.
With his infamous judgment of 1954 Chief Justice Munir, who has since been condemned for having given preeminence to the figurehead governor general over the legislature and created the viceregl tradition in Pakistan’s politics, paved the way for higher judiciary to indulge in miscarriage of justice. Bhutto’s ‘judicial execution’ remains a dark chapter in Pakistan’s judicial history. Barring a few exceptions, the judiciary has time and again obliged military dictators by legalizing their actions, martial laws and abrogation of constitution by invoking the ‘Doctrine of Necessity’, a concept that never found any legs to stand on.
As for the lower judiciary, the lesser said the better. Given its corruption and incapacity to enforce the rule of law, political administrations, legislators, political cronies and bureaucrats freely misuse power and indulge in rampant corruption. The poor are exploited and subjected to human rights abuses.
Despite this sad state of affairs Justice Chaudhry or his advocates held no promise of reform during the campaign. While his new found interest in judicial activism will make some difference and much as suo moto actions will bring relief to a few parties, also raising his profile in the process, these actions will neither set the judicial system right nor will they provide relief at the grassroots level where miscarriage of justice is endemic.
Justice Chaudhry did not spell out any concrete plans for bringing transparency to the judicial system or replacing the existing antiquated system of judicial accountability with the one that works.
While talking of accountability, one cannot overlook the maxim that accountability must begin at the highest level – a universal principle that Islam also upholds. So it is proper for the Justice Chaudhry to make a clean breast of allegations leveled against him by Mr. Bukhari and President Musharraf, which raised the political storm. Since transparency, integrity and independence of judiciary were the slogans that became the centerpiece of his long public campaign, it is only logical that he now sets a personal example.
This assumes even greater importance because the Supreme Judicial Council (SJC) refrained from judging him on the reference submitted by the president of Pakistan, although this forum is mandated by the Constitution to do just that. In the absence of any determination by SJC or clarification by Justice Chaudhry himself and given the politicized nature of his campaign which culminated in his reinstatement under political pressure, credibility issues will continue to be raised.
It is yet to be clarified to the nation whether or not the son of its chief justice was appointed and promoted in government jobs in violation of the merit criteria under pressure from him, or did the Chief Justice really misuse government aircraft for personal travel, or did he in fact demand guard of honor on outstation visits, a protocol he is not entitled to, etc.
The campaign for Justice Chaudhry’s reinstatement attracted the Nawaz-led Muslim League and some smaller political parties that had opted out of the last electoral process. While the smaller parties were trying to ride the judicial bandwagon to gain some legitimacy, the intentions of Nawaz League in doing so were motivated by the promise of a huge political windfall for its leaders, who were fighting for survival in political wilderness and who were otherwise known to hate judicial independence. Although a strange bedfellow to judiciary, Mr. Nawaz Sharif was allowed to virtually highjack Justice Chaudhry’s campaign, apparently under a deal brokered by Barrister Aitzaz Ahsan, the person who spearheaded it.
He is the same Mr. Sharif who as prime minister is reputed to have manipulated judges and engaged in public confrontation with the Supreme Court’s Chief Justice Sajjad Ali Shah who refused to oblige him in a case involving him. An irate Mr. Sharif then went on to let loose his party goons on the Supreme Court to physically assault and intimidate the judges into submission that eventually led to their convictions.
Important questions have since agitated many minds: Would the judges who were restored as a result of political pressure brought upon President Zardari by Mr. Sharif be fair when deciding Mr. Sharif’s political future through cases that he is pursuing before them? Would Mr. Sharif be facilitated by any other means by the judiciary to become eligible to contest elections when as a convict he cannot?
Independent observers believe that extensive media and public campaign of reinstatement of judges could not have been sustained for two years without funding from an outside party or parties. The way this campaign was run, the overt and the covert costs could easily run into several billions, which one would presume neither the lawyers nor the judges could afford. In the absence of any explanation, the general belief that funds were provided by Mr. Sharif, the wealthiest of Pakistan’s wealthy, gains credence. If true, it was a small price to pay for political resuscitation.
Every one knows that the Sharif brothers had a motive in seeing Justice Chaudhry and other judges back in their seats. Considering the importance and complexity of their legal cases for their own political rehabilitation they needed friendly courts. This was important for Mr. Sharif’s other mission too: avenge the indignity of his ouster from power, imprisonment and exile after being overthrown by General Musharraf. And many believe that the recent reshuffling of the Punjab High Court has moved the Sharif brothers closer to their goals.
Although no such tradition exists in Pakistan, it is incumbent upon those who ran the judicial campaign to make public the sources of its funding, as this was all about transparency and rule of law. This is how it is done in all civilized societies and this is how it must be done in Pakistan for the sake of creating sound judicial traditions.
It is also in the interest of justice that those judges who stand obligated to the Sharifs and his party for reinstatement should refuse to hear their cases, take any actions or cause any actions to be taken that would appear to favor them. Similarly, an arrangement should be ensured whereby lawyers, who led the intense campaign and struck close personal ties with Justice Chaudhry and other judges in the process, do not plead cases before them to avoid an impression that they are en-cashing their relationships.
It is important that Justice Cornelius be promoted as a role model for the higher judiciary and not Justice Munir. It is crucial that justice is not only done, but is also seen to be done.
Skeptics believe this to be a tall order. It is up to Justice Chaudhry and his colleague judges to prove them wrong. But whether or not this is done, he and the rest of the higher judiciary will remain under the microscope more than ever before. ( Shahid R. Siddiqi has worked as a journalist and broadcaster, has held senior management positions in the corporate sector in Pakistan, and has served in the Pakistan Air Force. He now lives in the US. E-mail: shahidrsiddiqi@gmail.com)
