Judicial Activism is Iftikhar Chaudhry’s Legacy
By Karamatullah K. Ghori
Toronto, Canada
Inevitability’s irrepressible power has forced two legends of our time to vacate the center stage in a span of less than a week.
Nelson Mandela’s death at the ripe old age of 95, on December 5, has robbed us of the most famous icon of our age. He lived the life of a revolutionary, a political giant, a visionary and a saint—all rolled into one compact life. He was, indeed, a giant among men of our times. That the world is mourning his demise is befitting recognition of his towering influence on the course of our times. This is not surprising at all.
Equally unsurprising is that the known demagogues and hypocrites of our age are also heaping praise on Mandela—once decried by them, or their predecessors in office, as a ‘terrorist.’ Mandela’s stature is not going to get an inch taller because of the mealy-mouthed accolades showered on him by the likes of David Cameron.
It wasn’t too long ago—certainly not long enough to elude our collective memory—that an uppity, upstart and opportunist Tory party whiz kid by the name of David Cameron, gladly accepted an all-expenses-paid junket to apartheid-poisoned South Africa to lobby against the sanctions imposed by the UN on that racist and oppressive regime. The year was 1989, and Mandela was still languishing in the penal Gulag of the Roben Island; he’d been there for 27 years for the ‘crime’ of demanding justice for his oppressed black-majority people.
Chief Justice Iftikhar Chaudhry of Pakistan laid down the reigns of his exalted office on December 11, on reaching the age of superannuation. The logic of retiring a person from active work at a stage where he had scaled the heights of professional glory is totally lost on this scribe. But that’s the way it’s and, much as I may go on remonstrating this silly rule, that’s how it’s going to go on.
Iftikhar Chaudhry was a judge unlike any other in the history of Pakistan. There was, in our youth, a lively judge by the name of Justice Rustum Kayani, who made his mark on the mind of every intelligent and thoughtful person with his incisive wit and razor-sharp sense of humour. Justice Kayani enthralled the then intelligentsia with his candour and his delightful capacity to make merry at the expense of a gutless bureaucracy and rapacious plutocracy.
But Iftikhar Chaudhry was a fighter. He was an iconoclast, par excellence, who didn’t flinch from taking on the most powerful of the barons who’d grown accustomed to the notion that they were untouchable and beyond the pale of the law of the land—or any law, for that matter. He was like a valiant matador who wouldn’t blink in front of a raging bull; and every student of Pakistan’s contemporary history would vouch to it that there were raging bulls aplenty that he didn’t pull back from slaying or drawing blood from.
Iftikhar Chaudhry walked into Pakistan’s Hall of Fame—and the collective memory of the people of Pakistan—that fateful day of march, 2007, when he stood up to the power-besotted dictator of the day—Pervez Musharraf—and said no, categorically and unequivocally to the lustful Musharraf’s brazen demand that he resign his office. From that moment on, Chaudhry left no one in any doubt about his determination to take on the high and the mighty, no matter what the price of his bravery.
Musharraf had assembled all the rogues of his autocratic regime that day in the Army House to intimidate and overawe Iftikhar Chaudhry. But the unruffled CJ was not about to be cowed down. And he didn’t cower, ever, from that moment on, before anyone for as long as he held the highest judicial office of Pakistan.
Pundits may go on arguing Chaudhry’s place in the history of Pakistan—not history written by a historian living in this age (because it’s next to impossible for a contemporary chronicler to remain unbiased in his case) but by one a generation or two later whose mind will not be shaded by this or that blinker. However, even the most opinionated of Chaudhry’s critics and detractors would concede that he’s the god-father of judicial activism in Pakistan.
A judicial set-up of convenience had, of course, been there in Pakistan for much of its time. Honorable judges were there, in spades, who didn’t mind playing second-fiddle to the high and mighty of the land and ready, at the first frown of a powerful ruler, to underpin his rule under the canopy of the ‘law of necessity.’
Civil and military autocrats of all shades and colours had grown smugly accustomed to the idea of an obliging and not-inconvenient judiciary at their beck-and-call. It was taken for granted that those supposed to be custodians of law wouldn’t pull the rug from under the feet of an autocrat, even when he made a hash of the constitution the judges were sworn to defend.
Justice Iftikhar Chaudhry made Musharraf and all others of his ilk hopping mad because he drew his own line in sand; nay, it has become a line cut in granite: no more of that old nonsense of law of necessity shrouding the black deeds of soldiers-of-fortune, be they in uniform or mufti.
Not only that Chaudhry pulled the rug from under the feet of the autocrats and merchants of money-based power politics. He did what no other judge in Pakistan had done before him: he made the Supreme Court and its honourable denizens accessible to the people of Pakistan. With his judicial activism—and his people-friendly suo motus—he made the people of Pakistan partners in the dispensation of justice. He became, well and truly, a people’s judge. And why not so when everything in the country is supposed to be done in their name and in their ‘highest interest’?
Justice Chaudhry’s critics—and there are loads of them, votaries of the Pakistani plutocrats and oligarchs—have been decrying him for his alleged ‘interference’ in the domain of the executive. In other words, he has been accused of poaching on the turf of the rulers and thus becoming a nuisance for the government. But that’s all fib, a blatant lie.
What’s a conscientious judge supposed to do in the face of a government unprepared to act in support of the people’s trust? Is it not a violation of the people’s trust when a government is seen to be failing to safeguard the people’s life and property? Is it not the very primary obligation of a government—especially one elected by the people through the ballot box—to work for the collective well-being of the people and not as a watch-dog of vested interests with their anti-people agenda?
Those heaping scorn on Justice Chaudhry’s judicial activism are people who haven’t read the Pakistan Constitution. The constitution makes it mandatory for every one wielding power—be that in the executive or the judiciary—to honour and safeguard the people’s fundamental rights. A chief justice is sworn to protect that constitution. So where did Justice Iftikhar Chaudhry transgress—or got out of bound—when he took it upon himself to become the promoter and custodian of a people shunned and loathed by their elected leaders? He would’ve violated his oath of office if he didn’t.
Both Mandela and Iftikhar Chaudhry distinguished themselves by donning the mantle of a crusader for the advancement of their disenfranchised people’s rights. The colored people of South Africa repressed by the apartheid regime suffered daily humiliations under racist rulers, and that was hard for Mandela to live with. So he rose against that tyranny and dedicated his life to roll it back.
Justice Iftikhar Chaudhry could see the privation of the people of Pakistan under heartless and shameless rulers whose only concern was to amass power and pelf at the expense of 180 million toiling and suffering people. He couldn’t countenance it and used his office to challenge the high and mighty and hold them accountable for their acts of omission. That’s his legacy. That’s how he’s going to be remembered: a people’s judge who brought dispensation of justice out of the cloistered halls of ignominious elites and put it within the reach of the common man.
Of course neither Mandela nor Iftikhar Chaudhry achieved all that they should’ve in their span of power. But they have laid the foundations of it. They’ve shown the way. It’s up to their successors to take their mission further and closer to fruition. It’s a big challenge. It’s a huge task to end the privation and suffering of millions of voiceless people. But the markers have been laid and goals clearly pointed.
K_K_ghori@yahoo.com
(The writer is a former ambassador and career diplomat)
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