I have never had the privilege of meeting Justice Nasir-ul-Mulk in person. But each time his name is mentioned, I think back to a story from some years back: in the heat of the lawyers movement, a friend of mine – an esteemed lawyer –clandestinely met with the then deposed Chief Justice Iftikhar Chaudhry, to ‘coordinate’ a few things, and ‘convey a few messages’ to other (deposed) brethren judges. The account of this meeting, as narrated by my friend, describes that the then honorable Chief Justice asked my friend to meet with several other Supreme Court judges, except Justice Nasir-ul-Mulk. Reason? Justice Nasir-ul-Mulk does not entertain visitors, or socialize with too many people; a special time had to be sought, after providing a cogent reason, before he would ‘permit’ a guest to visit him. “Woh gora-type judge hai. Harr bandey se nahi milta.”

And this, ladies and gentlemen, for all intents and purposes, is how a judge should be!!

With cautious aspirations and jaded hopes, it must be stated that Justice Nasir-ul-Mulk’s elevation, in a few days, to the office of the Chief Justice of Supreme Court, is a welcomed transition at the apex seat of justice. Justice Nasir-ul-Mulk, similar to Chief Justice Jillani before him, has a reputation of a scholarly judge, whose approach to the idea of justice is measured and purposeful. He has frequently been regarded as a voice of reason on the otherwise (sometimes) belligerent court. His conduct, independence, integrity, and intellect, throughout his judicial careers, has always been irreproachable. In fact, during the Iftikhar Chaudhary’s reign at the Supreme Court, when voices of dissent were all but extinguished from the seat of justice, Justice Nasir-ul-Mulk, to his credit, authored one of the very few judgments of (partial) dissent in the Mukhtara Mai case.

But integrity and intellect alone, which were sufficient to distinguish Justice Nasir-ul-Mulk as a judge, may not be enough for him to make his mark as the Chief Justice. The task of assuming the reigns of the honorable Supreme Court, at this critical juncture in our judicial history, is as daunting as it is estimable. The challenges faced by the honorable Court are manifold, and a new ‘pater familia’ will have to walk a tight robe between a society clamoring for populist justice on the one hand, and the silent dictates of constitutionality on the other.

Justice Nasir-ul-Mulk, while being cognizant of the gaze of history, will have to continue the painstaking work, already initiated by Chief Justice Jillani, of extricating the honorable Supreme Court from the clasps of Iftikhar Chaudhary’s legacy, a frenzied media, and a vigilante society. But, truth be told, Justice Nasir-ul-Mulk’s tenure as the Chief Justice is too short to undo, in its entirety, the wrongs committed by the jurisprudence of the Chaudhary court. As a result, Justice Nasir-ul-Mulk will have to pick a few areas to focus his efforts on.

In this regard, perhaps the most important of all, requiring immediate and purposeful attention of the new Chief Justice, is the issue of judicial accountability.

Hangover of the lawyer’s movement, and the battle-cry of ‘Chief teray jaanisar’, has given birth to an unjustifiable ideology that judges – in their professional duties as well as personal conduct – are not prone to any error or mistake; that criticizing their conduct or judgments is somehow a statement of infidelity to the Constitution itself. This ideology, conveniently couched in the banner of ‘judicial independence’, has been used to oppose all measures of material and intellectual judicial accountability, during the Iftikhar Chaudhry years. On the material side, this has entailed a refusal, by the Court, to have its expenditures audited by other democratic institutions, or allowing the Registrar of the Court to appear before members of the Public Accounts Committee, or even disclosure of how many residential plots have been awarded to retired judges of the apex Court. On the intellectual side, criticism of the Court, or its judgments, has been silenced through the threat of contempt: be it political leaders disagreeing with palpably partisan verdicts, or individual columnists critiquing the arc of our jurisprudence, or media groups airing views that displease the Court. Fundamental right to speech, or a desire to infuse transparency in judicial conduct, has been extinguished at the altar of a new supra-Class within our society: judges and court officials. This secrecy, and an abhorrence of dissent, has bred resentment and contempt against the honorable Court. And in the process, it has tarnished the project of justice.

Similarly, under the same ideology, the court has refrained from all efforts to infuse transparency in the process of appointment and removal of judges. Once again, stemming from a belief that judges (molded in the example of Hazrat Umar (R.A.)) cannot be wrong (even in judging their own conduct), the honorable Court has removed all powers of the Parliamentary Committee to advise in the judicial appointment process and, perhaps most importantly, made the Supreme Judicial Council (responsible for reviewing the conduct of judges, and recommending possible removal) an irrelevant and defunct constitutional body. As a result, thousands of applications and petitions against alleged (mis)conduct of judges are still pending before the Supreme Judicial Council, without any hope of a dispassionate hearing.

Perhaps the greatest challenge awaiting Chief Justice designate Nasir-ul-Mulk, in the months to come, is having the determination and courage to infuse a sense of intellectual and moral accountability – external accountability, even – in our judicial culture that, during the Iftikhar Chaudhry years, submitted itself to the seduction of hero-worship.

It is only through establishing transparent processes of judicial accountability, and lending a sense of humility to the seats of power, that the faith of the public, and those of the partisan players, will be restored in sanctity of our jurisprudence.

And, as a lawyer, as a citizen, I pray that this becomes the cornerstone of (soon to be) Chief Justice Nasir-ul-Mulk’s legacy.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.

saad@post.harvard.edu

@Ch_SaadRasool