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Perils of Populism

by Syed Ali Zafar
Photo illustration by Minhaj Ahmed Rafi

Photo illustration by Minhaj Ahmed Rafi

Iftikhar Chaudhry started us on a journey for Pakistan’s judicial independence six years ago. We’re still some way from our destination.

[dropcap]J[/dropcap]ustice Iftikhar Chaudhry was once the man who could do no wrong. By the time that he was unceremoniously sacked (again) by then-president Pervez Musharraf, on Nov. 3, 2007, Chaudhry had become a mythical figure, celebrated by lawyers and laymen alike as the exalted personification of Pakistan’s search for a truly independent judiciary. Lawyers, citizens, political parties, and the media all gravitated to the cause of righting Musharraf’s wrong by demanding, fiercely, the reinstatement of some 60-plus judges. This popular struggle, the lawyers’ movement, led finally to Chaudhry’s return as the country’s chief justice on March 22, 2009. But by the time Chaudhry retired this Dec. 11, it was clear the shine had worn off. Bar associations, once his staunchest stalwarts, broke with tradition and refused to honor him with farewells. Citizens, political parties, and the media were similarly disenchanted. What gives?

It is indisputable that Chaudhry’s popularity and celebrity gave him power beyond his office. The Chaudhry years, the era of the suo moto, delivered historic judgments which gave meaning and substance to some fundamental rights guaranteed by the Constitution. Chaudhry used his pulpit to assist the marginalized, rouse the indifferent, and chasten the powerful. But the Chaudhry court or rather the bench led by Chaudhry also soon lapsed irretrievably into wanton populism, conducting proceedings through prejudgment and media trials, in violation of the fair-trial provisions enshrined in the Constitution.

No one can reasonably deny, undervalue or take away Chaudhry’s contributions.

His greatest success was in inspiring confidence in his court, and stamping out the independence of the once-supine judiciary. The Chaudhry court’s activism was initially hailed as a necessary course correction, to guard against and ward off arbitrary government actions, and to honor the court’s position as a guardian of democracy, justice, and human rights. Chaudhry set out with much promise: he ensured the enforcement of the rights of Pakistan’s transgendered community, demanded accurate and updated voter lists ahead of the May 11 elections, and dispatched development threats to the environment.

At the same time, the cult of Chaudhry’s personality inspired an exacting and damaging overconfidence in the courts, which became clogged with frivolous and sometimes illegitimate cases. Under pressure from Pakistan’s rambunctious, freewheeling media, the Chaudhry court came to heavily rely on its suo moto powers—which allow the hearing of cases even in the absence of any petitioner. And so, the court weighed in on policy matters, foreign-policy issues, and commercial contracts under the garb of protecting and preserving “human rights.” This led to howling accusations of judicial overreach, excess, “adventurism,” and subversion of both Parliament and the executive.

Unfortunately, there is credence to such accusations. To begin with, through the pragmatic, innovative, and purposive interpretation of various articles of the Constitution, Pakistan’s judiciary over the decades not only adopted but expanded the concept of due process, affirming that the “right to have a fair and proper trial and an impartial court or tribunal” is a well-recognized inviolable right. The International Covenant on Civil and Political Rights, which Pakistan is a signatory to, demands the same; as does specifically Article 10A of the Constitution. The foremost complication with the Chaudhry court’s unstructured use of power was that its proceedings, and findings, violated well-established fair-trial principles. This is hardly something any lawyer can accept.

There is good reason that sub judice matters—cases being heard by a court—are not allowed, at least on paper, to be discussed on TV talk shows or in newspapers. There’s also good reason that public authorities are asked to refrain from prejudging an accused or poisoning perceptions in an unholy bid to build pressure in support of their favored outcome. If such good reasons are not heeded, the trial becomes an unfair formality. The Chaudhry court and the Pakistani media fell short on this score, repeatedly. Chaudhry’s often angry observations found a permanent home on TV news tickers and newspaper front-pages. This gave others permission to tar and feather the accused—deemed guilty until proven innocent, and not the other way around—with reckless abandon. The systematic poisoning of public perceptions in several cases became institutionalized as the “truth” and relieved the prosecution of honest labor. A media trial is the grossest violation of fair-trial principles. What fairness is left in a real trial when the media circus has already rendered judgment?

In fact, Chaudhry’s relationship with the media was deeply symbiotic. Reports alleging—mostly without evidence—“scams” or “scandals” of “billions” found resonance with Chaudhry’s court, which would promptly move in and start proceedings on the basis of such reports. (For reporters, notice by Chaudhry became an honor, a Pakistani Pulitzer.) Taking note of “evils” and trying to correct them because the media demands it is pandering to public opinion. The U.S. Supreme Court was right in declaring that “social evils in society must be corrected by the people and their representatives and not by the court.” It is time now for Pakistan’s courts to unshackle themselves from fickle lynch-mob expectations articulated by a fundamentally flawed media.

What fairness is left in a real trial when the media circus has already rendered judgment?

Using the Supreme Court as the court of first instance also violates fair-trial principles. Without the recording of evidence, cross-examination of witnesses, and the right of appeal, such proceedings went against all principles of due process known to Pakistani jurisprudence. In fact, Chaudhry’s taking suo moto cognizance of any matter became in itself an indictment, making the outcome expressly predictable from the outset. Chaudhry’s observations from the bench, often verbalized angrily, forestalled any possibility of a fair trial in several cases. These damning “prima facie” observations would be taken as directives by trial courts, if the case was knocked down to them, and investigators, who could not dare present findings other than those that Chaudhry himself appeared convinced of. No trial court, even one ordered by Chaudhry to “proceed in accordance with law,” could then carry out an impartial and independent trial to arrive at a conclusion or acquittal contrary to Chaudhry’s “observations.”

It is not the Supreme Court’s remit to examine documents and act as a trial court. It is also not the Supreme Court’s mandate to micromanage independent investigating agencies. During the court’s process of scrutinizing what is and what is not the truth, the well-known and well-entrenched doctrine of leaving investigations to the independent agencies established under law was turned on its head. Several times, reports commissioned by the court from investigating agencies were cast aside and rejected with observations—these observations then dictated the direction in which the investigations were to be concluded. Such preemption and prevention of fair inquiries pollutes due process and perverts justice. It hardly makes for a fair trial.

Will Chief Justice Tassaduq Hussain Jillani’s court be different? All indications are that it will be. The new chief justice has barred coverage of court proceedings through breaking news and TV tickers. He’s also offered clarity on fair-trial principles and on the court’s suo moto powers—which should be exercised in less headline-making but nonetheless critical matters, for example, against the virtual enslavement of brick-kiln workers across Pakistan or for the protection of heritage sites and the environment.

The Jillani court is expected to be cautious and more deliberate. He recently said that “the court has to guard against frivolous petitions” and quoted with approval the statement that “public-interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest, and/or publicity-seeking is not lurking.”

This new direction has been welcomed by lawyers and by the business community, which was hit hardest by the uncertainty caused by the Chaudhry court after it voided one commercial deal after another and directed that criminal cases also be filed against investors. Pakistan’s judges made history through our shared struggle for free courts. They can do so again by demonstrating restraint, by protecting the constitutional role prescribed to other state organs and institutions, and by improving justice in lower-level courts. Only then will the journey we all embarked on in 2007 reach its culmination.

Zafar is a senior advocate at the Supreme Court. From our Jan. 11, 2014, issue.

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Lubna December 27, 2013 - 4:24 pm

Beautiful n apt!

Agnikul December 28, 2013 - 12:33 am

The biggest opportunity missed by Iftikhar Ch. was reform of trial courts to provide Pakistanis with universal, affordable, speedy justice.
Admittedly, to accomplish this he would have needed the co-operation of General Musharraf or Mr Zardari or Mian sahib who were all equally as reluctant as the CJ to have done unto them as they did to others.
Messrs Sharif Ltd appear equally unenthusiastic over the difficult journey to provide unbiased justice. Dare we hope that the new CJ believes in non partisan rule of Law and is willing to endure hardship to convince Government to aid him in providing it?

wahtever December 28, 2013 - 6:22 am

Harvard should take its award back from this jerk

syed tarique hussain January 10, 2014 - 11:59 am

In the shortest possible terms he lacked wisdom.His small time background and eegomania proved to be lethal.
Well done Ali


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