Daily Times Editorial Dec 13, 2013

Bouquets and brickbats The second (2007) and third (2009) coming of retired Chief Justice of Pakistan (CJP) Iftikhar Mohammad Chaudhry contrasted sharply with his going. It is a sad comment to record that when he retired, society was split in its opinion of him. A brief listing of the forces disillusioned with his tenure since 2009 and the reasons for this turnaround may throw some light on the issue. The media, which had stood unified for his restoration was angry (except for one ‘favoured’ media house) over its exclusion from coverage of the full court reference on the day of the CJP’s departure. The leading lights of the lawyers community who were in the forefront of the movement for the restoration of the judiciary, including Chaudhry Aitzaz Ahsan, Ali Ahmed Kurd and Asma Jahangir, have been critical of the CJP for over-reach, politicising the office of the CJP, and turning his back on the common man who struggled in the restoration movement. The Supreme Court Bar Association (SCBA) has suspended one of its vice presidents for misusing the SCBA’s name in inviting the CJP for a dinner when the SCBA had decided not to do so in protest against the thrashing of lawyers before the Supreme Court (SC) the other day. The PPP and its young co-chairperson Bilawal Bhutto Zardari have made no bones about their delight at seeing the back of the CJP and hoping for restoration of an independent and unbiased judiciary (a reference to the perceived bias against the previous PPP-led government and its leadership). All this amounts to a tsunami of disillusionment and alienation of his foremost erstwhile supporters for his conduct since 2009 and dragging the SC into controversy, with the collateral loss of respect and dignity of the court. Despite this obvious fall from the pristine heights of respect the CJP enjoyed after restoration, he seems unrepentant, at least if his remarks at the full court reference are any guide. The outgoing CJP expressed the hope that the SC would continue to take notice of violations of fundamental rights, including the right to life, by the executive and other state institutions. The implied doctrine enunciated by the CJP relies on the judiciary fulfilling its duty to step in if the executive fails. While this sounds good in theory, it carries grave risks and pitfalls. The doctrine implies the judiciary can and should set itself up above all other state institutions, with no bar or restraint on judicial intervention. If followed in letter and sprit, this doctrine could open the door to judicial dictatorship, a charge mutedly made during the CJP’s tenure. Even if the argument of the CJP that the judiciary in Pakistan’s past had been supine (a charge from which the CJP himself could not be excluded) is accepted, this does not mean the pendulum of correction should now swing so far the other way that a judicial overlordship over state and society follows. The SC’s interventionist posture and providing direct access to petitioners and the aggrieved under the outgoing CJP meant a vote of no-confidence in the lower tiers of the justice system without any serious effort to correct the system’s failings and eliminated the appellate process. Well intentioned the CJP’s efforts may have been, but their consequences will be debated for a long time to come. The incoming CJP, Justice Tassaduq Hussain Jillani, has administered a welcome and fresh breath of air to the affairs of the superior judiciary by delineating his vision of where the SC should head. The new CJP says the court should consider and determine the limits of the SC’s suo motu powers. He has argued that the fine line of distinction between the requirements of Articles 199 (setting out the powers of the higher courts) and 184(3) has been blurred. The jurisdiction of the SC under 184(3) should be reviewed to discourage frivolous petitions and prevent misuse by vested interests. CJP Jillani recounted the exponential growth of petitions under 184(3) and through the SC’s Human Rights Cell. While conceding that the SC’s mandate under Articles 184(3) and 187 meant filling the gaps between the law and social dynamics, the value of the trichotomy of powers and the fair trial provisions of Article 10A had to be deferred to. Pakistan can now look forward to sanity and appropriateness underlined by judicial restraint being restored.