Pakistan Judiciary Change Signals Shift in Power

Dec. 11, 2013 1:18 p.m. ET

Retiring Chief Justice Iftikhar Chaudhry, center, at a 2008.rally. Associated Press

ISLAMABAD, Pakistan—The balance of power in Pakistan is set to shift on Thursday as the assertive chief justice who ousted an elected prime minister retires after a stormy eight-year tenure.
The change in the judiciary is likely to bolster the elected government’s authority over its two often more powerful rivals: the military and the courts. The move comes weeks after Prime Minister Nawaz Sharif replaced the army chief with a surprise appointee.
“The judiciary was interfering too much in executive affairs, and the feeling is that, with the new chief justice, it will not be as hostile,” says political analyst Hasan Askari Rizvi.
Supreme Court chiefs are nominated by seniority, and the incoming chief justice, Tassaduq Hussain Jillani, must retire when he turns 65 in July. The next in line after him, Nasir-ul-Mulk, like Mr. Jillani, has the reputation of a moderate, and will reach retirement age a year later.

Stormy Tenure
1999 As Supreme Court judge, Iftikhar Chaudhry legitimizes coup by Gen. Pervez Musharraf.
2005 Mr. Chaudhry becomes chief justice.
2007 Rules against Pakistan Steel Mills privatization, is suspended by Gen. Musharraf, reinstated by court, placed under house arrest after Gen. Musharraf declares state of emergency.
2008 Lawyers’ movement formed to protest Mr. Chaudhry’s detention ushers in democracy. Prime Minister Yousuf Raza Gilani orders Mr. Chaudhry freed.
2009 Following lawyers’ protests, Mr. Gilani reinstates Mr. Chaudhry as chief justice. Mr. Chaudhry annuls National Reconciliation Ordinance that granted amnesty to leading politicians.
2011 Mr. Chaudhry removes heads of Rangers paramilitary police in Sindh province for extrajudicial killing of a man in Karachi.
2012 He orders Mr. Gilani removed as prime minister.
2013 Orders security agencies to produce in court dissidents and suspected insurgents who “disappeared.”

By contrast, outgoing Chief Justice Iftikhar Chaudhry stamped his personal authority on the courts during a lengthy and controversial tenure. Adopting the so-called suo motu doctrine, in which a court takes up any matter it deems important without being petitioned, Mr. Chaudhry ran what often appeared to be a parallel government, quashing privatization plans and price increases, overruling officials’ appointments, and forcing far-reaching reforms through rulings that often perplexed lawyers with their scope.
Annum Haider, an attorney who clerked with the incoming chief justice, said Mr. Jillani would seek to strike a balance with the other branches of government, but would remain a strong check on the executive.
“There is a difference of demeanor,” she said, “but elements of the government that think that Justice Jillani will be easier on them are misinterpreting the difference.”
There is also a difference in stature between the two men.
Mr. Chaudhry became the symbol of Pakistan’s desire to shake off military rule when he defied dictator Pervez Musharraf in 2007.
Mr. Musharraf’s decision to place Mr. Chaudhry under house arrest galvanized the lawyers’ protest movement that led to the restoration of democracy the following year, turning the chief justice into a national hero.
“He had a personal legitimacy that no one can claim. He was the one whom the people of Pakistan had carried on their shoulders to power,” says prominent Supreme Court lawyer Feisal Naqvi. “His successor does not automatically inherit all the charisma that he had, which is not necessarily a bad thing.”
In fact, in recent years Mr. Chaudhry’s activism and abrasive style alienated many supporters—including the leaders of the lawyers’ movement that had rallied behind him during the Musharraf regime.
Athar Minallah, a Supreme Court attorney who was Mr. Chaudhry’s spokesman during the 2007 protests, says it is time for a change.
“The court should move to the phase of looking back and correcting the mistakes…and showing restraint in areas that make the judiciary controversial, such as economic and political issues,” he says.
Mr. Chaudhry has defended his record by saying that his court had a responsibility to the public to make up for the shortcomings of government.
The Supreme Court’s wide and inconsistent use of “suo motu” power has been controversial.
Mr. Chaudhry in 2011 invoked it against an actress caught in an airport with two bottles of wine. The following year, he used “suo motu” to bring before the Supreme Court allegations of corruption that had been raised against his son, precluding other inquiries. The case was later quashed. Also in 2012, Mr. Chaudhry ordered the removal of Prime Minister Yousuf Raza Gilani, ruling that he didn’t comply with court decisions related to corruption allegations against then-president Asif Ali Zardari.
“His use of power—especially the ‘suo motu’—was arbitrary and unfair. Instead of institutionalizing the power he got, he personalized that power,” says Chaudhry Fawad Hussain, an attorney who served as the legal adviser to then-Prime Minister Gilani.
“The legacy that he left behind must not be followed, and hopefully will not be followed,” Mr. Hussain said.
In his last weeks as chief justice, Mr. Chaudhry spearheaded an effort to investigate the fate of the so-called missing persons—many of them suspected militants and dissidents “disappeared” by Pakistan’s powerful intelligence services. Activists say that the number of such missing persons in Pakistan may be as high as 6,000. Some 830 cases of disappearances are pending in the courts.
In early December, Mr. Chaudhry issued his first contempt of court notice in a missing-persons case to the inspector general of the Frontier Corps, a paramilitary force operating in the Baluchistan province, which faces a separatist insurgency.
Just four days before his retirement, Mr. Chaudhry also successfully pressed the Defense Ministry to produce six missing persons in a case brought by the families of 35 missing men. The men appeared in court on Sunday, but have not been released from jail.
Despite his reputation for mildness, the new chief justice, Mr. Jillani, will pursue the missing-persons cases with equal vigor, says his former clerk, Ms. Haider. “Just because he’s polite doesn’t mean that he’s weak,” she said. “His delivery might not be as impassioned but his judgments are just as aggressive.

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