From Tanqeed, a mixed assessment of the legacy of now-retired Supreme Court chief justice Iftikhar Chaudhry, who faced down the Pakistan’s last military dictator, Pervez Musharraf. Removed and arrested by Musharraf, a movement of protest by lawyers in support of Chaudhry helped bring down the military regime. After Chaudhry’s restoral, he fought corruption across the political spectrum and intervened in many important issues, but never fashioned a political coalition that would truly democratize the country, writes Umar Farooq.
After Musharraf’s fall and Chaudhry’s reinstatement, the coalition of lawyers and human rights activists who had restored him fizzled; the lawyers were more interested in preserving an independent judiciary than protecting the human rights of Pakistanis at large. Moreover, Chaudhry’s subsequent pursuit of corruption alienated partisans of the Pakistan People’s Party, and his enthusiastic use of contempt of court citations against politicians from the Prime Minister on down began to appear more dictatorial than democratic, Farooq suggests. In the end, Chaudhry’s court had lost much of its moral and political force, and even its ability to command obedience.
The night Chief Justice Iftikhar Muhammad Chaudhry was set to retire on December 11th 2013, I visited a sit-in being organized by relatives of missing persons in the capitol. The families of hundreds of men thought to be in the custody of Pakistan’s security agencies sat at the end of Jinnah Avenue, huddled together to keep warm. A few hundred yards and two layers of shipping containers separated them from the Parliament building. An eternity seemed to separate them from the lawmakers inside it.
A giant banner strung between light poles depicted Nawaz Sharif meeting with protesters at a similar camp four years ago. Those were heady times, when an alliance of politicians, lawyers, and rights activists worked to topple Musharraf, and poems by Faiz Ahmed Faiz, the socialist Pakistani poet of the early 20th century, were back in vogue. The movement had begun in 2007 when then dictator General Pervez Musharraf had unconstitutionally sacked several justices, including principally, Iftikhar Chaudhry. Led by black-coated lawyers, the protests, which came to be known as the lawyers’ movement, culminated in the ouster of Musharraf and the restoration of the judiciary-with Iftikhar Chaudhry presiding as the chief justice of the Supreme Court-in 2009.
Back then, Chaudhry had seemed like the charismatic, independent judge that Pakistan needed. His near mythic status, as a result of the movement, swelled the Supreme Court to legendary proportions in the eyes of many Pakistanis. What the politicians did not seem to be able to do, Chaudhry did. He pursued corruption. He forced senior military and intelligence officials before the court including General Ashfaq Pervez Kayani and Lt. General Shuja Pasha. He thundered down from his bench, and anything seemed possible: Chaudhry seemed like the Man Who Could.
Now, a week before his retirement, dozens of satellite trucks outside a packed courtroom broadcast the failure of two successive civilian governments to ensure the most basic of human rights. For more than a week, the defense minister appeared before Chaudhry’s bench, offering excuses for being unable to find 35 men the military had taken from a civilian prison in Lakki Marwat in 2011. In concurrent hearings, Chaudhry was trying to bring some closure to the missing persons cases out of Balochistan, where earlier findings had shown the Frontier Corps was responsible. But the paramilitary force’s chief refused to appear in court, eventually drawing a contempt charge, a first for such a high ranking military official in Pakistan.
“Is this a joke, or is this a court?” Chaudhry asked the defense minister in annoyance one afternoon. Every day, hundreds of people would crowd court room number 1 and watch as Chaudhry handed the defense minister-ostensibly the civilian in charge of the armed forces-one unmet deadline after another to account for the missing men.
Just beside the defense minister stood Mohabbat Shah, the father of Yasin Shah, one of the 35 missing men. Day after day, Shah stood silently before the bench, hands clasped behind his back, patiently listening to the latest excuse for why his son could not be found. “I am happy with what the chief justice is doing,” Shah told me one day. Yet, by the expression on his face, I could tell he thought this was all a waste of time.
“The court can only give orders,” Shah’s lawyer, Khanzada Khan, told me one afternoon. “It does not have batons or guns to force anyone to do anything.” Khan’s comment perfectly captured the mood in the closing days of Chaudhry’s reign as chief justice. It was a far remove from the dizzying heights of the lawyers’ movement.
The chief justice had expended tremendous social capital, available only to him, in trying to force the military and intelligence agencies to come clean on enforced disappearances. At times, he had to micromanage investigations into corruption and human rights abuses. For his supporters, the public humiliation Chaudhry meted out to ineffectual and often brazenly corrupt officials-dictators and elected officials alike-was long overdue, even if it did not fit neatly into the model of a tripartite system of government Pakistan’s elite had imagined for it.
But, as his retirement approached, criticism that his court had been dangerous and destabilizing for the country’s fragile democracy grew to a fever pitch, until it seemed like there could not have been any supporters of the judge left. The diatribes usually began with a grudging acknowledgment of the death blow Chaudhry had dealt to military rule, and quickly moved on to how the chief justice had muzzled his critics and threatened the very democracy he helped usher in. For a chief justice who had once been admired by a mass of Pakistanis, it is a troubling ending. His mixed legacy set precedents-not all of them good-and provide a scaffolding for what will come next.
It began with missing people-or more accurately-the forcibly disappeared. The Lakki Marwat cases were just the latest set to be seized upon by the media; thousands of older missing persons cases had been pending in the courts for years. Many of them were being handled by Defense of Human Rights, an advocacy group founded by Amina Janjua, whose own husband, Masood Janjua, has been in the custody of intelligence agencies since July 2005. The group had organized the sit-in on Jinnah Avenue, hoping to harness the attention being given to Chaudhry’s retirement.
Amina Janjua has no legal training, and says she has been forced to take the lead in thousands of missing persons cases because Pakistan’s high-profile human rights lawyers don’t seem bothered. When her husband had gone missing, Janjua began organizing protests before Parliament, the Supreme Court, and the military’s headquarters in Rawalpindi, where Musharraf’s police meted out a brutal beating to her supporters in front of journalists. Soon, Chief Justice Chaudhry opened hearings into the issue. “The pressure in the street forced the judiciary to take notice,” Janjua said.
Missing persons-people who are not really missing, but being held, somewhere, without charge by the Pakistani intelligence agencies-became Chaudhry’s defining cause. Hundreds of cases like Janjua’s prompted Musharraf to sack Chaudhry and the country’s superior judiciary in 2007. The judges, Musharraf explained at the time, had been giving “humiliating treatment” to government officials and had “demoralized the civil bureaucracy and senior government functionaries,” leaving them unable to work. That led to a massive “lawyers movement” to restore the judiciary. “We kept going with our protests [after the sacking],” Janjua recalled, “and were joined by the lawyers. For them, it was getting back their livelihood. It was an even bigger struggle for us… the judiciary we were hopeful for was now gone.”
The Pakistan People’s Party (PPP), voted into power in 2008, did not immediately restore Chaudhry and the other judges, fearing they would open some 8,000 pending corruption against their top leaders. Only in March 2009, with the impending arrival of hundreds of thousands of angry protesters at his doorstep, did President Asif Ali Zardari agree to restore the Chaudhry court. Rather than stand with the families of the disappeared, many of the country’s top lawyers retreated to their various political camps after Chaudhry’s restitution. For them, it had been about the sanctity of the judiciary-not the cases of missing persons that had led to Chaudhry’s sacking. “After 2009, the lawyers stopped showing up to help us,” Janjua said. “We met with Aitzaz Ahsan, Ali Ahmad Kurd, and Sardar Asmatullahbefore the restoration, and they said they would help, but they did not help us out.” The legal movement’s most prominent figures no longer seemed interested in cases like Janjua’s.
Of more than 1,450 missing cases Janjua has advocated for, she credits Chaudhry’s pressure for the resolution of around 650. She lists more than 40 cases where individuals from the armed forces have been named in court filings for being involved in disappearances. In her husband’s case, Chaudhry’s court ordered three generals, one brigadier, and two colonels to testify and be cross-examined. They have yet to appear.
Chaudhry, who is from Balochistan himself, opened two separate inquisitorial hearings into alleged human rights abuses there. “The court seems to be convinced that the intelligence agencies and the Frontier Corps are involved in disappearances,” Malik Siraj Akbar, the editor of The Baloch Hal told me. Frustrated with an uncooperative political setup, the chief justice simply declared the provincial government dissolved in October, 2012, saying it had failed to protect the lives of its citizens. The action was obviously outside the court’s jurisdiction, says Akbar, but it underscored the apathetic attitude of the government, something the Baloch had already realized. “Despite failing to recover the missing persons,” he told me, “the Supreme Court, people believe, at least made a sincere and consistent attempt to do so.”
“[Chaudhry] openly showed the world the agencies were a bunch of thugs,” Dr. Ismael Buledi, a former senator from Balochistan, told me. “He tried hard, but the system was against him.” If in the end Chaudhry failed to assert the judiciary’s control over Pakistan’s security state, part of the blame rests with the country’s civilian leadership, which was not interested in the details of how its military fought insurgents.
Amina Masood holding photograph of her husband Masood Janjua, disappeared since Sept 2006.Photo Ammesty International.
After the restoration of the judiciary, the court became a site for politics, its glamor increased through the recent success of the lawyers’ movement which upheld the court against a dictator as well as the subsequent democratic PPP-led government that tried to quash it. The court began to take on a series of issues with renewed vigor while running through a gauntlet of corruption cases in various segments of the government.
The most ineffective part of Pakistan’s justice system has traditionally been the police, which often refuse to even open an investigation, and the lower courts, which are subject to endemic corruption. As in neighbouring India, Pakistan’s constitution gives the chief justice power to open cases suo moto- without waiting for a petition to be filed. The measure is meant to allow cases that would be too controversial or time-consuming to be brought through the lower courts to be heard by the Supreme Court right away. The Supreme Court, if it finds it necessary, can then order law enforcement agencies to look into the case.
Under Chaudhry, a special human rights cell at the Supreme Court processed nearly 250 letters a day from people asking for suo moto relief. Between March 2009 and March 2013, those letters generated more than 161,000 petitions for the court, including hundreds involving alleged “honor killings”, acid attacks, kidnappings, and murder, often by powerful landowners or politicians that operated with impunity. In 2010, the first full year after Chaudhry’s reinstatement, the cell received six times as many complaints as 2009, a testament to the public’s expectations from the chief justice. The case load meant Chaudhry failed to reduce the backlog of existing petitions at the Supreme Court, leaving around twenty thousand pending at the end of 2013, roughly the same number in the years preceding him. Nevertheless, the court was able to secure important reforms.
Beginning in 2009, Chaudhry’s court issued a series of orders to end discrimination against people who are transgender, ordering agencies to uphold their right to inheritance and employment and allow the listing of “male transgender”, “female transgender”, and “khunsa-e-mushkil” on national identity cards, in addition to the usual categories of “male” and “female”.
That same year, the Supreme Court upheld a 12-year sentence for the man who attacked Naila Farhat with acid, and prompted Parliament to pass a minimum 14-year sentence for attackers and better regulations of the sale of acid.
In 2012, after media reports highlighted deplorable conditions in Pakistan’s prisons, Chaudhry took suo moto notice, ordering trial judges to visit jails every two weeks and hold court there. According to the Human Rights Commission of Pakistan, almost every jail in Pakistan holds twice the number of people it is meant to, and most of those people are held without ever being convicted. Thousands are held simply because they are unable to pay court fines.
When a jirga announced an out of court settlement in the gang-rape of a 13-year-old girl in 2012, Chaudhry ordered the case’s reopening, and the arrests of the police who allowed the jirga. As part of the order, Chaudhry reaffirmed the admissibility of DNA, and asked the government to mandate collection of the evidence in every alleged rape. Punjab police now collect DNA in every rape case, and last June, Sindh passed legislation mandating the same.
“You heard the trees. You heard the people,” the late environmental activist Ardeshir Cowasjee wrote to Chaudhry, after he heard thousands of trees along Lahore’s Canal Road had been spared the ax by a suo moto notice. Under Chaudhry, Pakistan’s courts continued to interpret the constitutional right to “life” to include the right to a clean environment, hearing a number of cases challenging development on public land, and the flouting of sustainability regulations. In 2012, Chaudhry setup special “green” benches at the country’s high courts to streamline the hearing of cases of environmental abuse.
Yet despite the gains, Chaudhry had a “mixed record” on some issues, especially regarding religious minorities, according to Peter Jacob, director of the National Commission for Justice and Peace. At times he pushed hard on the issue of forced conversion in mixed faith marriages; at other times he left families of Hindu women in the lurch. Jacob praises Chaudhry for ensuring local police took violence against minorities seriously-incidents like a Muslim mob’s attack on Christian homes in Lahore last year drew suo moto hearings-but points out that the court failed to look at the larger issue of blasphemy laws, which continue to trigger violence against minorities.
Kanwar Idrees fought a three-year battle to have Ahmadis listed in the same voter lists as everyone else. He got some empathy from the bench, but little action. “I am sorry to observe this, but the judges were as cautious of public reaction as everyone else,” Idrees told me. He finally put his case on hold last year.
If Chaudhry had taken suo moto notice of the murder of Punjab Governor Salman Taseer in 2011, it might have helped spark a larger debate about the blasphemy laws. Then again, Taseer’s killer enjoyed a bewildering level of support, even among lawyers, hundreds of whom showered him with rose petals at court hearings. Some issues, like stricter punishments for acid attackers and rapists, proved to be more popular, and more realistic, than attempting to reform deeply entrenched beliefs about the supremacy of a particular faith.
In bypassing the lower courts, Chaudhry was able to address many of the daily outrages Pakistanis learned about from a newly vibrant news media. Abuses by government agencies like the shooting of an unarmed man by paramilitary troops in Karachi, caught on video, could no longer be buried easily in Pakistan.
But to his critics, every time Chaudhry took up such a case, he bolstered the narrative that Pakistan’s lower courts and police were not to be trusted. “Suo moto has brought tremendous good to this country, and has a lot of potential to do further good in this country,” Saad Rasool, a constitutional lawyer that argues at the Lahore High Court told me. “But problems need to get fixed through elections and democracy. You can’t just short circuit the system if it’s broken.”
“You cannot have a legal system that operates like a lottery,” Saroop Ijaz, a Lahore-based lawyer who took part in the lawyers’ movement but later became skeptical of the chief justice, told me. Under Chaudhry, an incessant stream of corruption scandals and human rights abuses by government officials gave rise to hundreds of suo moto hearings, until it seemed like everything that happened in Pakistan was at some point discussed in the Supreme Court.
To others though, repairing the democratic system was simply too time-consuming. Pakistan needed quick fixes, and Chaudhry’s court was the only venue capable of delivering them. Inquiries into corruption or official misconduct by government agencies were used to highlight public grievances.
In fact, it sometimes seemed that the Supreme Court was often the only place the issues were being seriously discussed. During Chaudhry’s term, Pakistan’s economy underwent massive inflation, and the Supreme Court was usually the only entity questioning how government agencies were setting the like the high price of natural gas, or sugar. Chaudhry’s interest in the economy, along with his efforts to check privatization and the sale of mineral resources to foreign companies, put him at odds with Pakistan’s free-market-oriented economists.
One of the first major confrontations Chaudhry took up was in 2006, when he ruled that Musharraf’s government had illegally privatized Pakistan Steel Mills, declaring the $362 million deal null and void. The decision was a blow to Musharraf and his Prime Minister Shaukat Aziz, who had embarked on an ambitious privatization campaign. Acting on petitions filed by labor groups and the Mills’ workers, Chaudhry found the venture was being sold to a consortium of a Russian, Saudi, and Pakistani companies at a fraction of its worth, estimated around $5 billion. Musharraf’s government had handed the Mills to the investors-some of whom were already under investigations for corruption in Pakistan-without consulting an advisory body, as was required by law. “No one thought along these lines,” says Ahmad Noorani, an investigative journalist with The News.
Until the Steel Mills case, courts rarely bothered to check what was going on under the hood of the government’s machinery. Under Chaudhry, especially after his reinstatement in 2009, the Supreme Court and the high courts under it began looking into allegations of corruption uncovered by journalists like Noorani at a break-neck pace. A similar finding of undervaluation was used by Chaudhry’s court to scrap a deal handing the Reko Diq mine in Balochistan-one of the largest gold and copper deposits in the world- to a consortium of Australian, Chilean, and Canadian companies.
“From suo moto, people can now get relief in the matters that no one ever thought would ever be heard in the Supreme Court,” he told me late one night at his office in Islamabad. The Supreme Court’s inquiries into how the price of fuel was being set in Pakistan, for example, were prompted by the work of journalists like Noorani.
In 2009, two members of Parliament asked the Supreme Court to investigate why $220 million had been spent on nine power plants that were producing a fraction of the electricity they were supposed to. The plants were part of a program hatched under Musharraf in 2006: international firms were paid to build and operate small power plants, but it turned out there was little vetting done of their proposals, and government officials were suspected of taking kick backs. In 2012, the Supreme Court shut down the plants, ordered the foreign investors to pay back their fees, and asked investigators to look into allegations of corruption against the country’ top leaders, including then Prime Minister Raza Pervaiz Ashraf.
For anti-corruption crusaders, Chaudhry’s court was fast becoming a beacon against the messiness and corruption of corporations and politicians alike, but as the court pursued its agenda with zeal, it began to threaten a destabilize newly elected democratic government-raising questions about whether it was working in the interests of Pakistanis or on behalf of the country’s powerful security establishment.
Muhammad Azhar Siddique’s phone seems to ring constantly, and his small, dimly lit office off Mall Road, a major artery in the heart of Lahore, is crowded with people waiting to see him, making it difficult to get in a word edgewise. One government employee complains he has been unfairly denied a promotion. A woman complains private medical colleges are charging too much tuition.
In the bookshelves covering his office walls, Siddique has built an impressive library of modern Indian legal jurisprudence. He opens a copy of Morality in Law, a book penned by a former justice of the Allahabad High Court, thumbing to a chapter that begins with, “India in these crisis hours requires new principles.” Like Chaudhry himself, Siddique is inspired by India’s judiciary, which has historically interpreted its role in enforcing fundamental rights very broadly and often struck down constitutional amendments that seem to violate existing provisions in the constitution.
Cases like the power plants saga have sparked a wave of public interest litigation from lawyers like Siddique. He has gone to the judiciary for a whole range of issues, from the government’s inability to stem dengue and measles outbreaks, to the high price of sugar and petroleum.
When they had a common enemy, Siddique was a close friend of lawyers like Aitzaz Ahsan, working as the spokesman for the movement to restore Chaudhry. That solidarity fell apart as the Supreme Court pursued corruption cases against top elected officials from Ahsan’s party, the PPP.
In December 2009, while the PPP was in power, Chaudhry’s court asked the National Accountability Board (NAB) to re-open cases against the nearly 8,000 politicians and bureaucrats that had been granted amnesty by a Musharraf-era law. A number of serving ministers were implicated, but the court chose instead to focus on President Asif Ali Zardari, who stood accused of siphoning $60 million to Swiss accounts while his wife was prime minister in the nineties.
“Witch-hunts, rather than the impartial administration of justice, will keep the public amused,” wrote Asma Jahangir, one of the country’s most respected human rights activists. To some in Pakistan, the judiciary was wasting its time on the wrong issues, and threatening to bring the entire democratic government down with Zardari. After a dictatorship that had lasted almost a decade, many were not eager to see the court pursue cases against the newly elected government.
The final judgment dismissing the Musharraf-era amnesty was a sprawling 291-page document that went well beyond legal arguments to justify its conclusion, reaching back through Mughal and early Islamic history to make a moral argument as well. “It was a sign of things to come,” says Ijaz, the lawyer from Lahore, “of a court that thought of itself as a moral guardian.”
The stance against Chaudhry taken by Jahangir, Aitzaz Ahsan, and other figures from the restoration movement galvanized a growing number of lawyers that worried that the court was situating itself as a moral guardian with a public mandate, instead of an impartial body that was meant to interpret existing law.
Events came to a head in late 2011 when a memo, allegedly drafted by Husain Haqqani, then Pakistan’s ambassador to the US, at the request of President Zardari requesting the Obama administration’s help in thwarting another suspected coup, was leaked. Known as “Memogate”, the incident led to the resignation of the ambassador as well as an inquiry by the court into the affair. Jahangir, who was once a leading light of the movement to restore Chaudhry, told the press that the court was acting “under the influence of the (security) establishment.” Indeed, for critics like Jahangir, the court was overstepping its bounds and openly siding with the military-which was suspected of organizing another coup-against the elected government.
But, for Siddique and others, the allegations against the PPP, if true, amounted to treason. “The Haqqani case was an extremely important issue,” Siddique told me. “As a patriot of this country, I think it needed to be pursued. [Haqqani] was allowing the CIA to come here,” he said, referring to the case of Raymond Davis, an American contractor that gunned down two Pakistanis in Lahore. A coup might be bad, but working with the United States to bring covert CIA agents was anathema.
Following Haqqani’s resignation the controversy died down, but the Chaudhry court was not done with the government. By January 2012, the court was demanding that Prime Minister Yousaf Raza Gilani request the Swiss government to reopen their corruption investigations against President Zardari. When the prime minister declined saying that the sitting president enjoyed immunity under the constitution, the court held Gilani in contempt and disqualified him from the prime minister’s office.
It was Siddique who provided the final nail in Gilani’s coffin. When the PPP-dominated assembly ignored the disqualification, Siddique filed a petition with Chaudhry’s court about the matter, drawing an order that removed the prime minister from office. Siddique views it as a victory. “My name is recorded in the history books,” he proudly told me. “In order to save a President, they [the PPP government]dismissed a Prime Minister.”
While it was frequently alleged that Chaudhry pursued cases against Zardari and the PPP out of a personal vendetta, or at the behest of the Pakistani military, to Siddique it was a simple matter of enforcing the rule of law. If the PPP was serious about democracy, of ushering in a new era in Pakistan where the law applied equally to all, it would have not hesitated to give its own leadership up for trial. To Siddique, the PPP sacrificed its prime minister, a man who was elected into office by a direct vote, for Zardari, a man who had earned the title of Mr Ten Percent and was despised at home and abroad.
In an attempt to save Gilani’s successor, Raja Pervez Ashraf, from the same fate, legislators passed a bill restricting what could be called contempt and exempting public officials-only to have it struck down by the Supreme Court in weeks. While the legislation was obviously an attempt to salvage the PPP government, it would have brought about reforms to the Supreme Court’s powers that some felt were long overdue. Under Chaudhry, the court charged a total of three prime ministers with contempt. Additionally, two federal ministers as well as the top leadership from several political parties-PPP, the PML-Q, MQM, and the PTI-were also held in contempt, as have several journalists. All but a handful eventually apologized to the court.
“Pakistan’s contempt law needs to be rewritten. It should be used as a shield, not as a sword,” says Rasool, an advocate at the Lahore High Court. Rasool says the court was justified in removing Prime Minister Gilani because he was obstructing justice, but the liberal use of contempt proceedings against journalists and politicians who criticized the court without effecting pending cases set a dangerous precedent.
In asserting the independence of the judiciary and its anti-corruption agenda, the court had veered into dictatorial territory.
Part of the prominence of the court-and perhaps also its dictatorial tendencies-stems from the fact that it often has to step in when other segments of the government aren’t working properly. Parliament has failed to instill confidence in the public when it comes to its commitment to cleaning house. “They have not tackled the issue of corruption at all,” Ahmed Bilal Mehboob, who heads the Pakistan Institute of Legislative Development and Transparency told me. Dozens of specialized parliamentary committees, he points out, have the authority to issue subpoenas, demand information from government agencies, and make recommendations for policy changes based on public petitions, but they have almost never been approached with such a request. “People want to approach someone who can actually help them in redressing their complaints,” he said, “so they go to the Supreme Court. When someone receives a show cause letter from the Supreme Court, they take notice, and try to resolve the issue. Otherwise they know they will face a real public humiliation.”
Instead of enacting long agreed-upon reforms to investigation protocols, the PPP government usually went about trying to thwart inquiries. The National Accountability Bureau (NAB), Pakistan’s powerful anti-corruption body, for example, has been criticized by both the PML-N and the PPP since it was first setup by Musharraf. The agency’s chairman has complete discretion when it comes to deciding which corruption cases are investigated and how, so governments make sure they appoint someone who will work in their favor. The late Benazir Bhutto and Nawaz Sharif had vowed to overhaul the agency as soon as their parties came into office. But the PPP did nothing until shortly before its government ended, proposing a law that would be even more problematic, inserting a 10-year statute of limitations on corruption cases, and handing the appointment of the commission’s director to a committee that would be dominated by the party in power. In four years, the NAB went through three chairmen, as Chaudhry’s court rightly interpreted the meaning of “consultation” as consensus, sacking appointees that faced objections from the opposition. In some cases, the government reassigned investigators over and over again, managing to delay probes until the investigator simply retired.
Critics accused Chaudhry of overstepping his court’s jurisdiction, and tainting investigations that should have been carried out by others, but observers like Mehboob say the court’s actions were a welcome development. He points out that investigators in key cases against lawmakers were routinely dismissed or reassigned in an attempt to stymie investigations. “Under normal circumstances, the court should not be intervening,” he said, “but when political parties do things quite clearly with the intention of interfering with ongoing investigations, the court is justified.”
“More than half [of parliamentarians]are tax defaulters, loan defaulters,” Siddique told me, “how are they going to [for example]reform tax collection or figure out how to raise revenue?” The PPP government’s hypocrisy in tackling corruption within its own ranks earned it the scorn of many, ultimately helping deliver the party a defeat in national elections last year.
Left to themselves, Pakistan’s leaders-whether they were tasked with ending corruption, prosecuting the powerful for violent crimes, or giving suspected militants a fair trial-failed at their task. Like a stagecoach driver, Chaudhry saw them through investigations that stretched for several years, underscoring the need for a systemic overhaul of Pakistan’s justice system, a cultural shift that can impart the importance of the rule of law down to the police officer sitting in rural Sindh. That kind of reform takes decades. In the meantime, with the lower courts and police in shambles, a suo moto notice continues to be the golden ticket many hope for.
“I have no confidence in the lower courts at all,” Tabassum Adnan, a women’s rights activist in Mingora, told me last November. “So we are trying to go to the chief justice, asking him to take suo moto notice.”
Adnan is hoping to get relief in the case of 16-year-old Tahira, a local woman who was allegedly murdered by her husband. He threw acid on her, burning her flesh to the bone, then kept her locked in his home for twenty days. Tahira’s brother finally took her to a hospital, and just before she died, recorded a video where she recounts the attack. He also taped the local police refusing to register his case. It took years to convince the police to open an investigation, and when the case finally went to trial the court never considered the documentary evidence against the husband, exonerating him. It’s that kind of frustration which leads many to peg their hopes on a suo moto notice. But, it also highlights how the court doesn’t work.
“Of course Chaudhry didn’t really do his job,” Adnan said when I asked her what she thought of the criticism against the chief justice. “If the system worked, we wouldn’t need suo moto.”
Chaudhry’s two successors will not serve long before retiring themselves. The new chief justice, Tassaduq Hussain Jillani, will reach his age of retirement in July 2014. Justice Nasir-ul-Mulk, the next most senior judge on the bench, will retire in August 2015. They will be the last Supreme Court justices that took part in the lawyers’ movement. Even Chaudhry himself has acknowledged the failure of the judiciary to reform the lower courts, the institution most Pakistanis must first approach, and which continues to be plagued by corruption. That’s why practices like suo moto are not likely to go away anytime soon. Since being appointed as chief justice, Jillani has taken suo moto notice of a number of human rights cases, including the discovery of mass graves in Balochistan and the alleged gang-rape of a woman in Muzaffargarh.
But, unlike Chaudhry, he is not expected to pursue cases against other branches of the government. A relative of the current ambassador to the United States and the dismissed former prime minister, Yousaf Raza Gillani, the new chief justice has previously been at loggerheads with Chaudhry. As acting chief election commissioner last year, Jillani fought with Chaudhry, who attempted to push through long overdue local elections despite logistical and security concerns. On the issue of government corruption, Jillani’s court has already declined to hear several cases. For instance, objections by opposition parties over the latest chairman of the NAB, Qamar Zaman Chaudhry, have gone largely unheard.
And it’s unclear what lessons Parliament has learned from the missing persons issue. Instead of making reforms to curb the missing persons issue, Nawaz Sharif’s government has moved in the opposite direction, promulgating the Protection of Pakistan Ordinance last October, allowing detention of suspects for 90 days at a time without charge, expanding the set of offenses that could be prosecuted in special anti-terrorism courts to include potentially political protest, and lowering the threshold of evidence that could be used to convict.
Without Chaudhry’s public mandate, it’s difficult to see the Supreme Court maintaining its level of activism. Under Chaudhry, the judiciary broke tradition and questioned the country’s intelligence agencies, holding unprecedented inquiries into the issue of missing persons, resolving more than 600 cases. It may seem like a small figure – thousands are thought to be in extrajudicial custody – but it symbolizes that for a moment at least, it was not the country’s powerful establishment, but the judiciary that was in charge. But, much of that may have had to do with just one man. “Chaudhry’s act of defiance [against Musharraf]earned him huge popular respect,” Mehboob said. “This support exists to a lesser extent for the rest of the judiciary.”
Some hope that may be what’s needed to turn the court away from being led by a single charismatic leader and towards structural reforms that instill democracy rather than one-man rule. But, whether reforms can happen without such a leader-if they did not happen with one-remains to be seen.
17 Mar 2014