The Chief Justice of Pakistan, Mr Justice Iftikhar Muhammad Chaudhry, has retired, leaving behind an institution considerably changed from when he took office. The Chief Justice had not brought to the office any expectations, for his conduct prior to his elevation as Chief Justice had been unexceptionable. He had been as conformist as any judge would be, nothing indicating he would cause as great a change in the role of the judiciary as he did.

Until he found a new role, the Baconian phrase about judges being the ‘lions under the throne’ described Pakistani judges as well as anything. They did justice, but took into consideration raisons d’état, reasons of state. While there is a specious reasonableness about this, it very swiftly degenerates into a fall from high reasons of state, to simply saving state servants embarrassment. It has led to egregious abuses, and in Pakistan to the upholding of military coups as justified.

In contrast to this is the rule of law, which requires both a legal standard, and an independent interpreter. This is a concept which the executive finds anathema, because it makes it follow the law. The concept is present in Islam, and those who argue that the present Constitution is unIslamic do not argue against the rule of law, but against the law being determined by a legislature, not by Al-Shaari, the Almighty. The Sharia is the Divine Law, as interpreted by men. The recognition that men, with all their imperfections and fallibility, must interpret the Quran and the Sunnah to determine what the Almighty has ordained, is why there is ijtihad, and making fresh interpretations. Sharia is thus judge-made law.

Indeed, all law is judge-made law from that point of view, as the law is not so much the actual legislation, as how the courts interpret it. That also means that judicial corruption is upsetting, for it means that the law is not supreme, but money.

Mr Justice Chaudhry said that the law was not only supreme, but that the Supreme Court was its ultimate interpreter. Here he found himself in conflict with the government, which seemed to assume that reasons of state had to prevail. Reasons of state had a long history behind them. The Pakistani rulers inherited a colonial state structure from the British, who had governed essentially because they wanted to maintain control. Before that, during the Mughal period, reasons of state had prevailed. Under both the Mughals and the Raj, the state had been very powerful. There was no rule of law, because the law was merely supposed to serve the state.

This was one attraction of Pakistan to the USA in its War on Terror. Its rulers were able to serve its interests even to the extent of violating, or rather ignoring the law. This was something Chief Justice Chaudhry refused to countenance. Instead of supporting the Army, all the Supreme Court had to do was implement the law.

At the same time, in seeking the rule of law, it broke with the Army, with Chief Justice Chaudhry declaring unequivocally, and several times, that the road was closed for ‘adventurers’. That was taken to mean that future military coups could not expect the validation that was almost routinely extended. Mr Justice Chaudhry moved out of the safety zone in which the judiciary previously remained. One consequence was that he was suspended in his functions by President Pervez Musharraf in 2007, when he imposed Emergency a second time and purged the judiciary.

This led to the lawyers’ movement. Thus Mr Justice Chauhry bridged the gap between the Bench and the Bar, and made clear to the general public something any lawyer knew: the judges and lawyers form a single legal community, and an assault on one, is an assault on all.

Chief Justice Chaudhry was transformed when he was restored, but his conduct afterwards was of a piece with it, and he dared what had hitherto been thought impossible, to remove a Prime Minister. Yousaf Reza Gilani fell from office, because he was found guilty of contempt. The Prime Minister was not found guilty in a minor matter, but one involving the President.

Chief Justice Chaudhry did not innovate in this more active role, but merely followed a trend of the Supreme Court which goes back to the Chief Justiceship of Mr Justice Haleem, who delivered a verdict on bonded labour back in 1990.

There has been a constant struggle between the judiciary and military regimes. Both Ziaul Haq and Musharraf used PCOs to purge the judiciary. In the first purge, Musharraf removed Chief Justice Saeeduz Zaman Siddiqui, who had taken office in July 1999, and was to remain till 2002.

One of the reasons Chief Justice Chaudhry could do what he did was because he had a long tenure. He took office in June 2005. He had come to the Supreme Court from the Balochistan High Court, being elevated to it after serving as Advocate General. At the time he took office, he was guaranteed eight years in office. That made him the longest serving Chief Justice of Pakistan. More usually, Chief Justices hold office for a couple of years, or even just a few months. Of the previous holders of the office, Chief Justice Irshad Hasan Khan held office for just under two years, Bashir Jehangiri for 24 days, Riaz Ahmad for under two years. Of his successors, incoming Chief Justice Tassaduq Hussain Jilani will retire on 6 July 2014, then Mr Justice Nasirul Mulk on 17 August 2014, then Mr Justice Jawwad S. Khwaja on 10 September 2015, Mr Justice Anwar Zaheer Jamali on 31 December 2016, Mr Justice Amir Hani Muslim on 1 April 2017, Mr Justice Ejaz Afzal Khan on 8 May 2018, and Mr Justice Gulzar Ahmad on 2 February 2022. This means that there will be six Chief Justices in the next five years, until Mr Justice Gulzar holds office for nearly four.

Even then, Chief Justice Chaudhry, who represents continuity, has been unable to free disappeared person, and not even have them produced in court. That this was an issue about which he cared was shown in the fact that he kept pegging away at this case until his last day in office, when he pronounced judgement. It also brought him in conflict with the Army, which was accused of being behind the disappearances. The reasons given for the disappearances are that they were bad people, but the fact remained that some disappearing persons were arrested at the behest of the USA, and some because they were undesirables in the eyes of the intelligence agencies. By trying to take away this right, that of picking up anyone, Chief Justice Chaudhry was undercutting the basis of the military-judiciary compact. However, it seems that Chief Justice Chaudhry went too far, and struck at a very fundamental right. For example, Hizbut Tahrir spokesman Naveed Butt is a disappeared person, taken last year. Not only have formal charges not been laid, but the Army denies holding him. Along with so many others, he too has not been produced in court.

Chief Justice Chaudhry’s tenure has not been one of completion. It must be viewed as a work in progress. At the same time, he has set a high mark for his successors to achieve.

The writer is a veteran journalist  and founding member as well as executive editor of The Nation.

Email:maniazi@nation.com.pk