All hail President Justice

Former CJ is asking to reinvent a wheel invented by military juntas by suggesting a presidential system of govt

He rises, he rises, the king across the sea. His Lordship Iftikhar Muhammad Chaudhry, Saladin of Suo Motus, has entered the arena at last. And just like he did nine years ago, the ex-Chief Justice will save us from ourselves. But are his jan-nisaars still beshumaar?

It all began with an open letter to the people last November, and it’s as eloquent as any of his judgments. “Common man,” the ex-CJ writes, “is like a wet paper that can neither burn nor can anything be written on it.” Elsewhere, he deemed the Pakistani life “less valuable than a termite-eaten door”.

With these Rumi-esque reflections, the gentleman cut to the chase: parliament, with its bickering and backslapping, had gotten us nowhere — it was time for a Great Man in a grand presidency.

“Why should not we, in the light of the teachings of Quaid-i-Azam,” he writes, “move towards presidential system of government and adopt high democratic values?”

By saying the Quaid’s teachings point to a presidency, the ex-CJ joins the esteemed company of Syed Sharifuddin Pirzada. As General Zia’s Attorney General, Mr Pirzada hawked the very same bill of goods, and endorsed the executive’s enormous powers via the same logic (a point to note here: the Quaid’s views on parliamentary systems were critical of Hindu majoritarianism in India, not an approval of the presidency in independent Pakistan).

But that may be a point too fine. To return to our Great Man Theory, who could this desi De Gaulle be?

All was unveiled when the former Chief Justice launched a party of his own: the ‘Pakistan Justice Democratic Critic Party’ (PJDCP), at last beating out Muslim League Functional for the most awkward name in our politics.

One may empathise: the last time Pakistan had a President Chaudhry, the Aiwan-i-Sadr stood ceremonial. Others weren’t so sure: that’s enough ambition, the commentariat cried. Chief Justices, they said, are meant to ride off in the sunset.

But wait — there’s precedent (pun unintended): didn’t India’s chief justice take over for a time, when President Zakir Husain suddenly passed away in office?

And further afield, wasn’t William Taft both President and Chief Justice of the United States (if in that order) — and had a cabinet stuffed with lawyers? A fellow judge wondered “why (Taft), who is so good a Chief Justice … could have been so bad as President”. This contrast is heartening for Pakistanis everywhere: considering how Iftikhar Chaudhry was as Chief Justice, he could only make a tremendous president.

But to the agenda we turn. At his party launch, His Lordship said the PJDCP would only welcome “non-corrupt people”. This is a welcome gesture: the ex-CJ is telling us, in his own subtle way, his party won’t be a dynasty.

What’s more, “the provision of justice to the common man” would be the basic manifesto. This is where the DemoCritics start slipping up. Provision of justice would require judicial reform, and judicial reform would require the judiciary. And seeing as it both regulates and appoints itself, the judiciary is just as welcome to reform itself.

The sort of reform a strong Chief Justice could have led, over seven years taken together. But while the Chaudhry Court smacked down everything from kite-flying to Karachi traffic, the ‘common man’ had — and still has — the same legal problems in common: delay, bad judges, land litigation, and laws in a language they cannot understand, in the sort of complexity they cannot access.

Meanwhile, the lower courts, where the vast majority of cases are fought, are the same old cesspit. The superior judiciary was aloof towards its district cousins then, it remains aloof now; no effort was made to bridge the gap.

The same logic applies to the ‘presidential system’ — the CJ is asking to reinvent a wheel invented by military juntas in the first place. Be it Basic Democracies or the Eighth Amendment, PCOs or LFOs, we’ve had our share of presidencies at the cost of parliament. And we’ve come to a conclusion: the weakness of the state is as evident in either — best to allow the system to grow roots and shoots.

In any case, it’s hard to get what’s been given — the Chief Justice demands the sort of imperial presidency he’s already shanghaied for himself before. In 2009, His Lordship enjoyed a large (if unquantifiable) mandate from the people via the Long March. He was not answerable to parliament, and the executive shook with fear. His suo motus went where they pleased, and rewrote all the rules.

But to what end? As Asher A Qazi pointed out in The Politics and Jurisprudence of the Chaudhry Court — subject to data available — of Justice Chaudhry’s 123 suo moto actions (as opposed to his predecessor’s two suo motus), detailed written judgments were delivered in just 37 — or 30 per cent. Only eight of these judgments “were considered to have contributed in any manner to the development of law”.

Not helping is the Democratic Critics’ last hurrah: land reform. For a while now, land reform’s been stuck in the mud, courtesy a Shariat Appellate Bench decision calling it un-Islamic in 1990.

And only the judiciary can get it out. A review petition was filed by Abid Hassan Minto in 2011, yet it all ended in tears. As the respected Dr Pervez Tahir recounted in these pages last week, “It was a large, nine-member bench headed by the … Chief Justice … raising hopes that the injustice done to the poorest of the poor will finally come to an end. In October 2013, however, the then chief justice flatly declined to nullify the decision … the petitioners were asked to file a fresh plea. And there the case rests, giving legitimacy to private landowners created by the British to buy their loyalties.”

Handed the most powerful and popular judicial apparatus in our history, His Lordship just couldn’t do much — neither by way of case delay, neither by way of case disposal, neither by way of the lower courts, neither by way of land reform, neither by way of developing the law, neither even, by way of deciding what he’d suo motu’d in the first place. Why seek the presidential equivalent?

As Doctor sahib concluded in his column, “Wo aye hain pasheman lash per ab/Tujhe ae zindagi laoon kahan se.”

It may be remiss to add any more.

Published in The Express Tribune, January 5^th, 2016.

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