LAHORE - Chief Justice of Pakistan Iftikhar Mohammad Chaudhry will say goodbye to the Supreme Court on Wednesday on attaining the age of superannuation, handing over the cane of authority to Justice Tasaddaq Hussain Jilani, leaving it to the man from south Punjab whether to continue the judicial activism of the past few years or step back and let the courts work according to the wishes of those in power.
The policy of the new CJP will become clear in the weeks and months ahead, his judgments and style of work being the main indicators.
“I.M. Chaudhry”, as some people privately call him because of his assertiveness, leaves behind multitudes of admirers, admirers-turned-critics and outright critics. Each category has reasons to have its opinion of the outgoing CJP.
Since the respect for law in the country is declining and more and more influential people test their power by violating the law and going scot-free, Justice Jilani should have a more radical approach to cast the fear of law into the hearts and minds of the mighty. He should try to do what even his predecessor failed to do. A soft approach will mean encouraging the lawbreakers to continue violating the law.
While judges and lawyers are in a better position to comment to what extent the judgments of I.M. Chaudhry strengthened constitutionalism, as a journalist the writer is of the firm opinion that he could have played a more effective role if he had not spread himself too thin.
Unfortunately, he took up so many cases, through suo motu notices or after being approached by petitioners, that he could not take all of them to their logical conclusions. And it is not clear what fate awaits those cases now and how long will it take them to get decided.
The outgoing CJP did a great national service by blocking the privatization of the Pakistan Steel Mills, which then prime minister Shaukat Aziz was determined to do just for a throwaway price of $300 million. The anti-privatization decision antagonised the ’imported’ prime minister and he advised then president Pervez Musharraf to file a reference against the CJP. (The reference was never referred to the Supreme Judicial Council. Instead a bench of the apex court threw it away, leading to the reinstatement of Justice Chaudhry).
The outgoing CJP will also be credited for giving a landmark judgment for recovery of billions of outstanding loans. A special commission, headed by a retired judge, compiled the details of these loans. However, those who devoured the public money have not returned the same as yet. And, tragically, no one has been pulled up for not complying with the apex court order.
Justice Chaudhry did a wonderful job when he ordered the FIA to investigate which leaders had got how much money from the intelligence agencies to defeat the PPP in the 1990 elections. Prime Minister Nawaz Sharif and a large number of other political leaders were among the alleged recipients. The PPP government, however, did not refer the matter to the FIA, which amounted to violation of the apex court order.
There is, however, no progress on this front even today – but I.M. Chaudhry did not take anyone to task for not implementing this order. The reason for keeping silent is known only to the outgoing CJP.
This decision had been given on a petition by Air Marshal Asghar Khan after about a decade and a half.
The annulment of the National Reconciliation Ordinance was also an important decision. In the light of this verdict the cases against various leaders, shelved earlier, stood reopened. The $60 million of commissions and kickbacks, deposited by the late Benazir Bhutto and Asif Ali Zardari in Swiss banks, were to be brought back in the light of this order. But, so far, there is no progress on this front – and there’s little hope that there ever will be. And if a powerful CJP like I.M. Chaudhry could not bring the money back during his tenure, who will?
(Justice Chaudhry had said at a ceremony that four billion rupees have been spent on pursuing this case).
What was known as Memogate was also an important case in the country’s history. This case was about an alleged conspiracy against the armed forces of Pakistan. A letter had been written by then ambassador Hussain Haqqani to the US authorities for help to the PPP government to rein in the army.
The case continued for a long time. However, Hussain Haqqani slipped out of the country after giving an assurance that he would return to rejoin the proceedings on a four-day notice. However, now he has refused to come to Pakistan for security reasons, as a result of which this case has also not reached its logical conclusion.
The hearing of a reference about the ‘judicial murder’ of Zulfikar Ali Bhutto was a great initiative. It would have enabled the nation to know whether the PPP’s founding chairman had been judicially murdered – and thus was a martyr – or he had rightfully been sent to the gallows. After a few hearings the matter was consigned to the cold storage of the apex court.
Hajj Corruption Case, NICL Case, New Islamabad Airport Case, Police Foundation Lands Case are some of other important cases which were taken up but are inconclusive.
He always took up such cases through suo motu notices as could get maximum media coverage. As a result, hearing of regular cases was delayed.
The image of Justice Chaudhry would have been much better had his son not involved himself in some undesirable activities. The alleged Malik Riaz-Arsalan deal caused a serious blow to the Chief Justice of Pakistan. And since it has not been taken to its logical conclusion, it can’t be said that Arsalan was innocent and he had not received tons of money the property tycoon had alleged he paid to get favourable judgments from the apex court.
Justice Chaudhry would also be remembered for giving a judicial policy, which set timeline for decision of cases of all natures. However, regrettably, no court, including the apex court, is deciding cases according to these timelines. Because of this, the judicial policy is almost non-existent.
A Chief Justice who had given himself so many powers as were not exercised by any of his predecessors could have done a lot to uproot corruption from the judicial system. The on-ground situation is that the lower judiciary is as corrupt as any other institution. If the matter fell in the jurisdiction of the provincial high courts, as some argue, the CJP could have directed them to take necessary measures for the sake of the collective prestige of the judiciary.
Chief Justice Chaudhry sat for longer hours in the courtroom to hear important cases. Also, he came armed with questions for lawyers of both parties.
His role in forcing the authorities to bring missing persons to the court, and improve law and order in Karachi and Balochistan will always be remembered.
He will also be praised for making it obligatory for all judges not take oath under any extra-constitutional dispensation. The move was aimed at closing the doors of military interventions. However, the efficacy of the move will be known only when a situation arises in the future.
Chief Justice Chaudhry’s career is divided into two phases. During the first phase he took the oath under the PCO, was part of a bench which legitimised the overthrow of the PML-N government on October 12, 1999, and gave the military ruler power to amend the Constitution and three years’ term to complete his agenda.
But a different Iftikhar Chaudhry was seen when Gen Musharraf pressured him to resign on November 3, 2007.
He refused to step down and was sacked immediately. Since his survival lay in resistance, he opposed Gen Musharraf tooth and nail. Lawyers and some political parties also supported him. Had his personal interest not been at stake, he was not expected to react the way he did.