Chief Justices: Pakistan
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Chief justices past & present Pakistan
By Kunwar Idris
THERE were times when Pakistan took pride in the independence of its judges as much as in that of its tribesmen. Now a question mark hangs over both.
In addition, the tribal elders were loyal and the judges learned. The question mark hanging over these virtues, if at all, is bigger. Though their place in society and role in governance are poles apart, the judiciary and the tribes now stand at the centre of the storm of national discontent. While the courts are faltering in administering the law the tribes are conniving in militant terror, if not actually fomenting it.
There was a time when the chief justice of Pakistan wouldn’t agree to dine with the prime minister lest the people think he was in any way beholden to him. Sir Abdur Rashid may have been unduly circumspect in declining Liaquat Ali Khan’s invitation to dinner but later all kinds of doctrines came into existence to justify deviations from the constitutional course.
His successor, Justice Munir, was a regular diner with Governor-General Ghulam Mohammad. The precedent that he set has since held sway despite Cornelius’s powerfully reasoned dissent. More benches and judges have followed the example of Munir rather than that of Rashid.
The tribes straddling Durand Line once kept vigil over the country’s un-demarcated northwest frontier to keep undesirable intruders out. Now some among them allegedly shelter, train and arm foreign terrorists. The answers to judicial and tribal problems are similar. Both should be left to work under the law or following their respective traditions without interference by the government or the military.
Terrorism now can be compared to a cyclone with Pakistan as its eye. The worldwide indignation the Mumbai carnage has aroused no longer leaves the government here free to deal with terrorism as it has been doing in the past or would now like to do. Almost certainly it would feel compelled to follow the strategy the world and regional powers evolve. This subject could rest at that till the investigators finally get a clue.
Pakistan, however, is free to put its judicial house in order, and that it should be doing straightaway if the people’s vanishing confidence in the impartiality and competence of the courts is to be restored. The essential steps towards this goal would be to determine how to select the judges of the superior courts and enable them to act freely under the law.
The appointment of judges in most countries is in the hands of the chief executive of the country. In Pakistan’s constitution, as amended by Gen Musharraf, they are appointed by the president at his discretion, though the chief executive is the prime minister. So it seems it will remain as President Zardari has shown little inclination to undo Musharraf’s amendment.
There is thus no getting away from this position although, in a cynical vein, such judges cannot but be the creatures of the party in power. The remedy, however, lies in laying down some elaborate and binding eligibility criteria rather than involving more people who would surely bring to bear their own preferences and prejudices on the selection process.
Equally critical is the selection of the chief justice which is also the privilege of the president. The judicial advice has been to go by the seniority of the judges which surely precludes discretion but, more dangerously, also merit. It has given the country chief justices who would never have made it on merit. Yet it is a safe rule. Ignoring seniority carries the hazard of a judge becoming a chief justice who is neither senior nor competent. Such a move is said to be in the making at this very moment.
This risk, however, must be viewed against an eventuality like the one reported by a journalist from America on the appearance of deposed Chief Justice Iftikhar Chaudhry at the Harvard Law School and Georgetown University. “The listeners,” the journalist wrote, “sat squirming and heaved a sigh of relief” as Chaudhry read his incoherent, interminable speech and “hardly a sentence from his off-the-cuff remarks was mistake-free.” Mr Chaudhry, as we all observed, had brought about almost a revolution by defying enormous pressure to resign. But then the chief justice of a country must also be able to communicate with the audience of an institution which had heard Nelson Mandela on receiving the same medal of honour as was awarded to Iftikhar Chaudhry.
Another, and more painful, hazard of the seniority rule is currently being reported in the press in great detail concerning the conduct of the successor to Mr Chaudhry. It has been noted by some commentators that the incumbent chief justice should have stepped down before the matter of his daughter’s marks’ enhancement assumed the proportions of a scandal.
Incidentally, the charges that advocate Naeem Bokhari had made against Justice Chaudhry (he still lays claims to the office) should also be investigated for they were equally degrading. If found baseless, at least Mr Bokhari should be punished for the perjury even if the chief justice, who raised a storm which swept away Gen Musharraf, is not to be indicted.
Lawyers and lawmakers need to sit together and suggest a method for choosing a chief justice who is not just the most senior but also able, articulate and unapproachable and whose integrity is beyond reproach. Surely we have judges combining all these virtues in their persons.
While it is for the president and parliament to lay down a procedure for the appointment of judges which is transparent and fair, it is equally incumbent on the judges not to trespass on the jurisdiction of other organs of the state. They must enforce the law but not create one. If a law is defective, as Justice Katju of India recently observed, “it is for the people to correct the defects by exercising their franchise properly or by other lawful methods e.g. peaceful demonstrations”.
Judges must not act like legislators or administrators. Too late though it might be, it must be said expressly for the benefit of Mr Chaudhry that a chief justice is not the ultimate saviour of the people nor should his court be the institution of first remedy. If he could be one, or both, it is when a citizen is persecuted or even murdered for his religious belief. And that no chief justice has ever been — not even Chaudhry. n
kunwaridris@hotmail.com
