A terrible responsibility

The public is likely to demand a delicate balance between activism and restraint by the judiciary.

Unfashionable as it may be to confess, I was not immediately moved when in March 2007, General (retd) Pervez Musharraf, unceremoniously and unconstitutionally suspended Chief Justice of Pakistan (CJP) Iftikhar Muhammad Chaudhry. My inability at that time to immediately respond to the call for the independence of judiciary was not because I was a Musharraf sympathiser, but because I was not entirely convinced that the judiciary that had supported and guided Musharraf to power in the first place was truly independent and had the right to claim my support.

I had found it difficult to ignore in those days, that when in 1999, Musharraf had ousted the democratically elected government of Mian Nawaz Sharif, most of these judges (the CJP being one of them), had not only endorsed and legitimised the move —by continuing in office, indeed taking oath on the Provisional Constitutional Order (PCO) and by a giving full bench judgment in support of Musharraf in the case of Zafar Ali Shah vs Pervez Musharraf 2000 SCMR 1137 — but had also, and far more damningly, invoked the doctrine of necessity to grant him the power, albeit limited, to amend the Constitution.

Of course, like everyone else in Pakistan, the judiciary, too, had justifications: in their judgment in the Zafar Ali Shah case, they claimed that they had taken the oath on the PCO merely to ‘uphold’ the judicial organ of the state and had supported the army chief because he was the holder of a Constitutional post and could not be summarily removed, even by a prime minister. Not many were fooled: it was commonly believed, even by those who benefited from the compromise, that the judiciary had preferred expediency over the rule of law and in doing so had driven yet another nail in the coffin of Pakistan’s constitutional principles.

Expediency, however, did not seem to be an option, when seven years later, the same Musharraf who had cried high treason when he was removed from office without due process, removed the CJP, also holder of a constitutional office, in exactly the same manner. Instead of accepting the decision against him and fading into a quiet retirement, as may have been pragmatic to do, the CJP chose to take a stand, not for his personal glory but for the sanctity of his office. The judiciary, and indeed the entire legal community, seemed only to have been waiting for a leader. They rallied around the CJP and did not rest until he was finally restored to office, believing somewhat naively perhaps, that they were ushering in a new era of the supremacy, indeed glory, of justice.

Although this naive belief was challenged many a time in the last three years, when questions were raised about the wisdom of judicial activism, the judiciary’s preference for taking up high profile political cases and of nurturing the media as an important pillar of state, the events of the last few weeks, seem to absolve the judiciary, at least in the eyes of legal purists. As Mr Gilani’s conviction, Arsalan and Malik Riaz’s scandal and Mr Gilani’s ultimate disqualification unfolded in quick succession, the judiciary, eschewing all exits to the doubtful road to practicality, followed instead the inherent logic of the law, and brought the legal proceedings before them, to their natural conclusion.

Legally sound, independent and brave as these decisions may be, this places a terrible responsibility not only on the CJP but also on the entire judiciary. From this moment onwards all actions of the judiciary will come under an even closer scrutiny. The conduct of judges, both public and private, as well as their judgments are likely to be examined minutely. The public, fuelled by the discontent of certain political parties, is likely to demand the same delicate balance between activism and restraint, the same commitment to due process, and the same across the board accountability that the judiciary appears to have meted out to others. It is in achieving this fine equilibrium and maintaining it consistently, that the judiciary will not only earn and uphold the respect it deserves, but also play its true role in the impartial progress of our society.

Published in The Express Tribune, June 22^nd, 2012.