During his tenure, Pakistan judiciary became an independent institution, impartially protecting the Constitution
Iftikhar Muhammad Chaudhry, whose tenure as the Chief Justice of Pakistan’s Supreme Court ends on Wednesday, leaves behind an abiding legacy of judicial independence and accountability that his successor Tassaduq Gillani will find challenging to emulate.
Under him, the Supreme Court has repeatedly called the government and security forces to account for missing persons, particularly in Balochistan. Last week, the government was compelled to produce some missing persons from the tribal areas, who were identified in a closed court. On Monday, while hearing a case of missing persons, Justice Chaudhry warned that he had 60 hours before he retired and for him it could mean 60 years.
Justice Chaudhry’s sacking first in March 2007 and later in November that year sparked off a groundswell of protests by lawyers and civil society that eventually led to the former President, General (retd.) Pervez Musharraf’s resignation in 2008. The Supreme Court ,in the past, was not known for questioning military dictators on violation of the Constitution. His reinstatement by the Pakistan People’s Party government in 2009 paved the way for more judicial interventions. The apex court took cognisance of corruption in the privatisation of Pakistan Steel Mills, the Reko Diq mines in Balochistan, where it ruled that local laws were applicable to foreign investors, and continues to demand accountability from security agencies on missing persons.
Justice Chaudhry, who was born in Quetta, became an advocate in the Supreme Court in 1985, after which he was appointed advocate general of Balochistan. His relentless pursuit of justice earned him worldwide recognition and awards. However, a new and timely report by the International Commission of Jurists (ICJ) titled ‘Authority without Accountability — The Search for Justice in Pakistan’ which, while appreciating his contribution, raises some concerns on the Supreme Court’s performance under him.
While the country witnessed an extraordinary chapter in the history of the Court, it points out issues with the exercise of its original jurisdiction under Article 184(3). It says that at times the Supreme Court has exercised its original jurisdiction, particularly its suo motu powers, in a manner that has not always been coherent or consistent with its own jurisprudence or with international human rights law. In other instances, it says, the court has not responded to urgent human rights issues.
It cannot be denied that during his eight year tenure Justice Chaudhry gave a powerful impetus to the judiciary as an independent institution capable of protecting the Constitution in an impartial manner and which also acted as a powerful check on other institutions of the state. But, the ICJ says, one of the Supreme Court’s main tools in this regard has been the rare authority to exercise its ‘original jurisdiction’ to hear important matters relating to human rights, suo motu jurisdiction, as granted under Article 184(3) of the Constitution.
The ICJ’s analysis of Chief Justice Chaudhry’s tenure shows that in some instances, the court has been able to improve awareness of human rights violations and has strengthened the right of victims to achieve remedy and reparations. The court also tried to provide some accountability for corruption and human rights violations by the civilian government and taken a firm stance against the military usurping power unconstitutionally. In doing so, it brought Pakistan closer to fulfilling some of its obligations under international human rights law, which in itself is a major achievement.
The Supreme Court took note of a variety of matters, including allegations of human rights violations, abuse of power and corruption. The number of petitions under Article 184(3) also rose exponentially. According to media reports, compared to 450 petitions in 2004, the Supreme Court received more than 90,000 petitions between April 2010 and December 2011. The Supreme Court’s own records state that it continues to receive approximately 250 applications daily under Article 184(3).
While the court acted swiftly in criminal cases, women’s rights and the rights of transsexuals, according to the ICJ, it has been reluctant to provide accountability for the country’s ongoing crisis of enforced disappearances, resolving the conditions of more than 7,000 people on death row and ending the ability of security forces to detain suspects arbitrarily and with impunity.