In the subcontinent society, we have all been raised on the idea that once a man is dead, you do not speak ill of him. You say a prayer, and let bygones be bygones. “Kaha suna muaaf”. In that spirit – while wishing Iftikhar Muhammad Chaudhry a long a prosperous life – it is time to look past his years as the Chief Justice of Pakistan, and focus our energies and efforts towards revisiting (improving?) the legacy of jurisprudence being inherited by a new leadership of the Supreme Court.
Justice Tassadaq Jillani, the designate Chief Justice of Pakistan, who will assume the responsibilities of this esteemed constitutional office, is a scholarly man by all accounts. Those who know him personally, those who have pleaded before him as a judge, and those familiar with his approach to jurisprudence, all hold him in the highest regard and describe him with accolades of patience, wisdom, and a keen gravitas that is befitting an individual who can be entrusted with the divine responsibility of doing justice among fellow citizens.
But the task of assuming the reigns of the honorable Supreme Court, at this critical juncture in our judicial history, is as daunting as it is estimable. Justice Jillani is inheriting a Court that is torn between aspirations of grandeur, and the humble responsibilities of dispensing justice in accordance with law. In the aftermath of the fabled Lawyer’s Movement, there are those amongst us who see the court as the ‘fix all’ institution in our society. There is splendor and pageantry that invites the Court to embrace the role of a ‘savior’, even if that means stepping outside the contours of black-letter law. On the other end of the spectrum is the belief that the honorable Court must jealously guard the precarious balance of constitutional separation of powers, instead of attempting to orchestrate revolutions from the bench. And Justice Jillani will have to walk this thin rope, all the while cognizant of the fact that he is being watched through the gaze of history.
While bringing about reform in the jurisprudence of the apex Court is a long and daunting task, the following key areas require immediate and purposeful attention of the new Chief Justice.
First, the honorable Court will have to revisit its recent impulse of stepping into the legal and constitutional bounds of other state institutions. Over the past some years, the Supreme Court has unfortunately assumed the responsibilities of directing and running the affairs of NAB, FIA and even the Election Commission of Pakistan. The independent working or constitutional autonomy of these institutions has been all but wiped out. They have, for all intents and purposes, been reduced to nothing more than a subservient extension of Bench No. 1, in flagrant disregard of their legal mandate and provisions of the Constitution. And the argument in favor of this approach is that since these institutions are ‘not doing their jobs, the Court is being compelled to do it for them.’ This, however, is a self-defeating argument; it is the Court’s constitutional mandate to sit in appeal over these institutions, not to de facto direct their everyday operational autonomy. The recent interference by the Court has only weakened these institutions and eroded public confidence in their working. Such an approach is contrary to the spirit of law, and militates against the project of strengthening our democracy through the endeavor of institution building.
Next, it is of paramount importance to our jurisprudence that ascertainable contours be drawn by the honorable Supreme Court, in regards to the exercise of its powers under Article 184(3) of the Constitution. It is time that that the honorable Court ends the persisting suspense about what constitutes an issue of ‘public importance with reference to the enforcement of fundamental rights’. More specifically, it is time that the practice of taking ‘suo moto’ actions on summary (arbitrary?) recommendations of the Registrar, or based on news-clippings, be demystified, and judicious criteria be laid down for the invocation of this power. This will not only infuse greater moral authority in judicial dictas, but will also silence all criticism about the discriminatory use of such power.
Furthermore, over the past few years, under the garb of protecting ‘judicial independence’, the honorable Court has opposed all measures of material and intellectual judicial accountability. On the material side, this has included a refusal to have the Court expenditures audited by other democratic institutions, allowing the Registrar of the Court to appear before members of the Public Accounts Committee, and even disclosure of how many residential plots have been awarded to retired judges of the apex Court. On the intellectual side, criticism of the Court, or its judgments, has been silenced through the threat of contempt: be it to political leaders disagreeing with palpably partisan verdicts, or individual columnists critiquing the arc of our jurisprudence, or media groups airing views that displease the Court. Fundamental right to speech, or a desire to infuse transparency in judicial conduct, has been extinguished at the altar of a new supra-Class within our society: judges and court officials. This secrecy, and an abhorrence of dissent, breeds resentment and contempt against the honorable Court. And in the process, it tarnishes the project of justice.
In the same spirit, it would be heartening to see the new Chief Justice de-linking himself from this idea of ‘pater familias’! On the bench, in terms of judicial power, the honorable Chief Justice has no more (or less) authority than any other judge. In an ideal world of independent judges, the Chief Justice could find himself as a minority dissenter on any particular judgment. What sets him apart from other honorable Judges is his administrative power of case allocation and bench formation. And within this power, also lies the peril of his job. Used in a non-transparent manner, the very act of allocating cases and forming benches could cast aspirations of bias on the Chief Justice (as has frequently happened in the recent years). If judicial power is truly independent and unbiased, then it should not matter what bench entertains which case. As such, justice demands that an automated system of bench formation and case allocation be developed – free of arbitrary individual choice – in fidelity to our constitutional ethos of justice being ‘manifestly seen to be done’.
Retirement of Iftikhar Chaudhry, and the swearing in of the new Chief Justice brings with it a great sense of hope for all those who have become disillusioned by the conduct and jurisprudence of the honorable Supreme Court. With refreshed faith and renewed vigor, the nation now has pinned its hopes to the wisdom and leadership of Justice Jillani. Too many times, in the past, our sacred hopes in the project of justice in this land have been raised, and dashed. Too many times have we believed in the dispassionate power of law to cure the evils of our time, only to be disappointed in the application of such law. Too many times has the promise of rule of law, descended into a ‘rule of men’, either in uniform or in robes.
But as Justice Jillani is sworn in as the new Chief Justice of Pakistan, once again, with abated breath and a muted prayer, we look forward to a future that is brighter and more just than our past.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.

Email:saad@post.harvard.edu

Tweetes at:@Ch_SaadRasool