Sat Nov 30, 2013 by Anil Kalhan
ARTICLE: Courting Power, Herald (Pakistan), Nov. 2013
(Published by Herald (Pakistan), November 2013)
In November 2008, several months after being released from house arrest by the newly-elected civilian government, Chief Justice Iftikhar Muhammad Chaudhry delivered a major speech at the Harvard Law School, which had awarded him its Medal of Freedom. At the time, Pakistan remained in a state of constitutional limbo — caught between a lingering Provisional Constitutional Order (PCO), which General (retd) Pervez Musharraf imposed upon declaring his extra-constitutional state of ‘emergency’ in November 2007, and the new coalition government’s pledge to restore the pre-emergency constitution and reinstate the dozens of Supreme Court and High Court judges, including Justice Chaudhry, whom Musharraf had forcibly removed from office.
While freed from confinement, Justice Chaudhry and the other ousted judges remained sidelined, as the new government proved sluggish in making good on its constitutional pledges. Many more months would pass before the government, led by the Pakistan Peoples Party (PPP) — faced with mounting pressure by the Lawyers’ Movement, opposition politicians and, eventually, the chief of army staff – finally agreed to the full reinstatement of judges ousted by Musharraf, including Justice Chaudhry. In the meantime, having received numerous expressions of support and speaking invitations from lawyers and bar associations in the US during his period of detention, Justice Chaudhry’s Harvard visit afforded him an opportunity not only to thank these overseas supporters of the Lawyers’ Movement for their solidarity, but also to make a case for the restoration of the pre-emergency constitution and judiciary.
In his speech, Justice Chaudhry recounted the chequered history of Pakistan’s Supreme Court – what he described as a “61-year long judicial nightmare” — and the recent efforts by Pakistani lawyers and judges to fashion a different kind of judicial role. He invoked storied figures such as Sir Edward Coke, recounted landmark events in legal history such as the English Act of Settlement, and called upon Pakistan to replace the “rule of man” with the “rule of law”. Above all else, Justice Chaudhry celebrated the value of “judicial independence” in helping to ensure good governance, combating public disorder, and promoting economic prosperity.
In emphasising the importance of judicial independence and the rule of law, Justice Chaudhry spoke as judges around the world often do. But especially in retrospect, one aspect of his speech is particularly striking. Over six decades, he argued, “both civilian as well as uniformed autocrats” had acted to undermine judicial decision-making in Pakistan. And in the present moment, he lamented, Pakistan’s “autocrats” — “military as well as democratic” – were continuing to “turn the wheels of history in the wrong direction” by inhibiting the judiciary’s autonomy.
At no point, in his speech, did Justice Chaudhry draw any distinction between challenges to judicial autonomy under military regimes as opposed to civilian democratic regimes, or explain the particular forms that “judicial independence” should take in one context versus the other. To the contrary, he characterised the infringements upon judicial autonomy by military and civilian regimes as comparable, if not equivalent. Given the particular moment in which he spoke, that omission might be understandable. But, as he now prepares to retire, this subtle detail in his Harvard speech, which escaped notice at the time, offers potential insights in helping to explain his legacy as Pakistan’s longest-serving and, arguably, most influential chief justice — one who has forcefully asserted the Supreme Court’s autonomy not just vis-à-vis Pakistan’s military regimes, but also vis-à-vis its civilian representative institutions.