A People's Judge

کالم نگار  |  Khwaja Ahmad Hosain

Justice Iftikhar Chaudhry is the symbol of a movement that was rooted in the rule of law.
Pakistan's most famous Judge retired on December 11, 2013. One of his colleagues remarked that the Pakistan judiciary had lost its Tendulkar. A leading TV channel ran a prime-time campaign highlighting his achievements and congratulating him on having played a good innings. The reaction of the legal community was mixed. Bar associations defied tradition and failed to honour his departure. The Lahore High Court Bar Association had already filed a reference against him for exceeding his authority.
What is his legacy?
In November 2007, I was arrested in Lahore with 54 other individuals. We were attending a discussion arranged by the Human Rights Commission of Pakistan to consider the emergency that had been imposed by Musharraf. Even though no crime had been committed, the participants were incarcerated for more than 50 hours in various jails and sub-jails. The sessions judge who heard our initial bail application had been instructed by the government to refuse bail. In accordance with the inglorious tradition of the Pakistan judiciary, he complied with these instructions. We were only released on bail two days later when the government decided that a proper message had been sent to all those thinking of speaking against the emergency.
The 2007 emergency was different from past emergencies in two important respects. First, it was targeted primarily at the judiciary and did not remove the government. The problem Musharraf and his political government was facing was that of an independent bench taking decisions against the government. Second, 60 judges of the superior judiciary, including Chief Justice Iftikhar Chaudhry, either refused to take oath or were not invited to take oath under the new 'extra-constitutional' dispensation. This resulted in a judicial purge which removed a large number of able and independent judges. The battle to restore them came to be known as the lawyers' movement.
The image used to illustrate Justice Chaudhry's principled defiance is a picture of him seated next to a uniformed Musharraf at the Army House in March 2007. He had been summoned by the general with regard to a reference that had been sent by the prime minister alleging misconduct. The reference contained various allegations, including allegations relating to undue favors extended to his son, the prodigal Arsalan Iftikhar, and the misuse of official facilities. The aim was to intimidate the judge and to get him to resign. He refused and was suspended. The rest, as they say, is history.
The reference against him was quashed by his fellow judges in June 2007 on the basis that it was in bad faith. There was never any adjudication by the Supreme Judicial Council, the relevant constitutional body. The Supreme Court through its order effectively bypassed the prescribed constitutional mechanism for deciding allegations against judges. The order was welcomed at the time. The unpopularity of Musharraf and his government was increasing and the composition of the Supreme Judicial Council was such that Justice Chaudhry was unlikely to get a fair hearing before this body.
The initial refusal to resign in the face of a general in March 2007 was a personal decision taken by the judge in his own interest. The heroic defiance that changed the course of history was the stand taken by him and 60 other judges in November 2007. They refused to violate the oath that they had sworn to and refused to swear allegiance to Musharraf's new legal order.