Daily Times Editorial Dec 12, 2013

The Chief Justice’s legacy Nothing sums up the view of large parts of public opinion regarding the legacy of Chief Justice (CJ) Iftikhar Mohammad Chaudhry than the unfortunate incident that occurred on the very day he left office on Wednesday. A traditional full court reference saw the entire media except one media house turfed out of coverage of the occasion, leading to an uproar in the excluded media as a whole amidst charges that this indicated the nexus between the Supreme Court (SC) under the CJ and the ‘favoured’ media house. Despite many good judgements of the SC during the last almost five years since the restoration of the superior judiciary, many will see this as further proof of the partisanship, operating on the basis of likes and dislikes, and practicing pick and choose justice under the outgoing CJ. Whether one agrees with this contention in part or in full, it can be argued that the liberal use of suo motu (at least 118 notices) and contempt of court (at least 100 cases) powers during the last five years not only brought the court into the fold of controversy, it also militated against the mountain of backlog of cases before the SC and the judicial system as a whole, a task the CJ is criticized for not addressing. This new jurisprudence reversed the normal order of the SC’s role as a largely appellate court to one where it was exceedingly proactive in its original jurisdiction role. It is undeniable that state institutions in the country have never been citizen-friendly, and therefore e the SC’s taking up the cudgels on behalf of aggrieved individuals and parties to provide justice and relief is admirable. However, it is also a matter of concern that the overuse of such powers (unprecedentedly high) damaged the prestige and respect of the court. The SC under CJ Chaudhry became hyper interventionist, causing encroachments on the turf of other state institutions such as the executive, parliament, election commission and others, eroding in the process the division and trichotomy of powers enjoined in the constitution and making governance that much more difficult in the midst of the myriads of crises afflicting state and society. CJ Chaudhry’s eventful and as some have described it, roller coaster era has come to an end, but the legacy he leaves behind will have an equal measure of admirers and critics, making the task of the incoming CJ Tassaduq Hussain Jilani that much more difficult in restoring some semblance of appropriateness to the SC’s affairs, which he has promised to do. One only has to cast one’s mind back to the respect enjoyed by the outgoing CJ when he was finally restored in 2009 to the controversies dogging his footsteps now to understand that the absence of time-honoured judicial restraint, whatever its effects on other institutions, has also ended up eroding the respect and dignity of the superior judiciary that it deserves. Relations between the Bar and the bench are at an all-time low, resulting in the conspicuous absence of the kind of respectful farewell outgoing CJs receive traditionally. This is even more ironic given that it was the lawyers’ community that was in the forefront of the movement for the restoration of the judiciary. How the mighty have fallen. The critique of CJ Chaudhry's manner of running the SC revolves around playing to the gallery, interfering in matters normally beyond the scope of the court and lying within the purview of other state institutions, choosing high profile cases that took up most of the SC’s time at the expense of the normal (and absent) effort to reduce the huge backlog of cases that justifies the old maxim: justice delayed (in this case horrendously delayed) is justice denied. No one could possibly argue that the good work of the court under CJ Chaudhry be overturned along with the controversial, i.e. we should refrain from throwing the baby out with the bath water. However, it is hoped that the change of guard will persuade the judiciary, and especially the SC, to revert to a more appropriate stance on litigation, appellate versus original jurisdiction, and respecting the trichotomy of powers that lies virtually in tatters. That strengthens the argument for other checks and balances to kick in against our opaque and non-responsive system of government in which much happens or goes on without let or hindrance, more often than not against the interests of state and society. Whether however, the courts are to be the instruments for the undeniable need to cleanse and make transparent governance under our fledgling democracy, at the expense arguably of their own dignity and respect, remains a moot point and a challenge.