At the stroke of midnight, on 17th August, 2015, Justice Jawad S. Khawaja will take office as the 23rd Chief Justice of the Supreme Court of Pakistan. Despite a short tenure (scheduled to last just over three weeks), Justice Khawaja is expected to be an ‘activist CJP’, and a (hopefully) final hurrah of the Iftikhar Chaudhary brand of justice. While welcoming Justice Khawaja as the CJP, and bidding him farewell in the same breath, it is important to review and analyze the peculiar arc of jurisprudence developed by him, during his time at the honorable Supreme Court, even if only as a cautionary tale.

Justice Khawaja’s style of adjudicating cases, in fidelity to Iftikhar Chaudhry’s legacy, is reminiscent of the Wild West style of shooting from the hip; of converting Supreme Court into an institution to be feared; of holding personal morality to be of more consequence on deciding matters than the strict application of black letter law; of recognizing a societal truth: that media frenzy can often achieve results more effectively than judicial dictas, and that society’s aversion to politicians and bureaucracy can be used as a currency for expanding judicial power beyond its prescribed contours.
At the very outset, it must be accepted that this peculiar brand of justice has resulted in some ‘good’ in our democratic paradigm. As a result of this fear-inspiring judicial temperament, the bureaucratic and political institutions of Pakistan are more cognizant of the verdicts of the Court, and spend each moment under the looming shadow of suo moto actions. Furthermore, this brand of justice, which necessarily requires a working and symbiotic relationship with media, has succeeded in ‘mainstreaming’ the idea of constitutionalism (or unconstitutionalism), as judgments of the Court, and their consequences now form the subject matter of talk shows, drawing room discussions, and coffee-table banter.

For the most part, this is as far as the positives extend.

On the flip side of the coin, Justice Khawaja, like Iftikhar Chaudhary before him, has come to embody a capricious brand of judicial activism, which, in collaboration with Geo News tickers, has done more to undermine public faith in democratic institutions, over the past six years, than any other factor in our polity. In this regard, while it is commonplace and acceptable for competing political parties to malign each other, it is exceptionally significant for the honorable Court to become a party to the same. The casual and frequent remarks passed by Justice Khawaja, with full cognizance and knowledge of these being reflected as ‘breaking news’ and headlines, has had the consequence of eroding public confidence in the elected representatives and State institutions (such as NAB and the ECP). It must be asked: Should judges (regularly) pass casual comments, which are reported in the media, as a way of showing displeasure and influencing public opinion, or should their perspective and opinion be restricted to the judgments instead?

As an extension of this idea, Justice Khawaja has time and again demonstrated a proclivity for what can be viewed as overstepping the express command of law, and to directly interfere with the independent working of autonomous statutory and constitutional institutions. To this end, Justice Khawaja’s impulse to dictate the operational functioning of NAB through suo moto actions, while abrogating the exclusive powers and prerogatives of chairman NAB (under Section 9 of the NAB Ordinance), is noteworthy. Not only does such interference diminish the stature of NAB, but prima facie observations of the Apex Court, in ongoing investigations, also impede any possibility of a fair trial (per Article 10A of the Constitution) by the Accountability Courts. And this penchant for administrative interference has also been seen in matters concerning the ECP, CDA, FIA, and other State institutions.

Perhaps the most controversial aspect of Justice Khawaja’s peculiar brand of jurisprudence has been his entanglement with a series of indefensibly notorious cases, including the saga of Dr. Arslan Iftikhar, the Geo Television case against Mir Shakeel ur Rehman, and a personal litigation with a renowned Advocate of the Supreme Court.

In Dr. Arslan’s case, Justice Khawaja’s judgment, in defense of the prodigal son (nephew?), parted from past practice to chastise the media for sensationalizing the issue, and then saved Dr. Arslan by dismissing the case (as a private pecuniary dispute), based on an interim report submitted by a handpicked one-man inquiry commission. Later, in May of 2014, Justice Khawaja, even while accepting Mir Shakeel ur Rehman to be “the brother of the wife of [his] brother”, proceeded to hear a petition against him, ignoring all demands of recusal from the said Bench. Because when it comes to Justice Khawaja (and him alone, now that Iftikhar Chaudhary has retired), there can be no doubt as to any bias, fear, or favor.
This inclination to pursue ‘justice’, even outside the gates of express law and maxims such as ‘justice must manifestly seen to be done’, when necessary, seems to stem from an inherent, unshakable and honestly held belief on part of Justice Khawaja, as also demonstrated periodically through his media comments, that he represents a transcendental brand of justice, which is guided by an irrepressible inner calling of conscience. A belief that subjective morality, divinely inspired, can trump the menial constraints of man-made law. That the seat of apex Court is governed by an unspoken oath between man and his Creator, as opposed to Article 178 and Third Schedule of the Constitution of Pakistan.

A belief in this ethos – that a judge is governed by ideals higher than provisions of the Constitution – has recently been expressly articulated, by Justice Khawaja, in his dissenting opinion in the 18th and 21st Constitutional Amendment case. Justice Khawaja has advocated the imposition of a Basic Structure onto our Constitution, to be determined by unelected judges, based on subjective morality and reading of the Constitution, on the touchstone of which Constitutional provisions can be invalidated by the honorable Court. Sadly, at least in principle, majority of the Supreme Court (barring notable exceptions) agrees with Justice Khawaja that the amending power in the Constitution is subject to elusive constraints, as determined by members of the judiciary; and thus dependent upon the moral code of the judges.

This is an exceptionally dangerous arc of jurisprudence, not the least because it subverts the entire paradigm of democracy. It institutionalizes a sordid anvil of jurisprudence, which replaces democracy with judicial authoritarianism. It reflects an overarching judicial belief that judges, as opposed to the elected representatives, embody the will of the people. It is, regrettably, a continuation of Iftikhar Chaudhary’s legacy of ‘holier than thou’ justice.

Even while welcoming Justice Khawaja as CJP, we must look beyond the coming three weeks in order to reclaim the Constitution as being subservient to the will of the people, and the Courts to be subservient to the command of the Constitution.