The more Chief Justice Iftikhar Mohammad Chaudhry asserts that there will be no change in the judiciary’s working -- by which he probably means the scale of judicial activism after his retirement -- the more does he convey his concern that things might change.

The conduct of institutions like judiciary is largely determined by their body weight, by the collective wisdom of the judges, and the degree of freedom to open new paths provided by socio-political trends in the country.

Still, there is room for strong leaders of the judiciary to make innovations, which eventually define the dominant characteristics of their regimes. Since no two chief justices are alike in all respects, the inclination of the judges cannot be fixed for all times, and the environment in which courts operate is subject to laws of change, the possibility of a change in the judiciary’s priorities cannot be ruled out.

Among several distinctive features of the Iftikhar Chaudhry court has been its somewhat unorthodox relations with the media. Will this relationship survive?

Traditionally, the judges tended to keep media persons at a safe distance as they did not want their views on matters pending before them to be influenced by persons whose main purpose was deemed to be moulding of public opinion. They avoided reading newspaper reports on cases pending, or likely to come up, before them.

Further, media reports were not accepted as true versions of events or facts. Text of laws, notifications, and orders published in newspapers were not accepted by courts, original gazette notifications/certified copies of documents were demanded. Also, the media’s capacity to accurately report court proceedings was generally not accepted; they could be told to publish only the version approved by the court.

This was part of a convention that required the judges to function in isolation from society. They lived in hermetically sealed enclaves or viewed the people around them from their ivory towers without aligning themselves with any individuals or groups. They chose to speak through their judgments and avoided commenting on matters outside their domain.

Much of this changed over the past six years.

The process of change began on March 9, 2007 when Chief Justice Iftikhar Muhammad Chaudhry defied the military ruler, Gen Pervez Musharraf, in a manner that had no precedent in the country’s history.

There had been occasions when judges had refused to carry out the establishment’s commands/wishes. Even Justice Munir, who condoned Ghulam Muhammad’s sacking of the constituent assembly (and later on justified the Mirza-Ayub coup as a revolution) did not allow him to impose a constitution without getting a new constituent assembly elected.

Justice Cornelius strongly defended the court’s power of judicial review during Ayub Khan’s martial law. Justice Tufail Ali Abdul Rahman’s refusal to carry out Z.A. Bhutto’s wishes has often been cited as an example of judges’ uprightness. Justices Dorab Patel and Fakhruddin G. Ebrahim chose to resign instead of taking oath under Ziaul Haq’s PCO of 1981, and Chief Justice Saeeduzzaman’s decision to do the same compelled Musharraf to detain him and his senior colleagues. Justice Sajjad Ali Shah defied the Benazir Bhutto government but fell while resisting the Rafiq Tarrar- Nawaz Sharif combine.

While the public, including the media, applauded theses judges for following the call of their conscience, their hopes of the judges challenging the establishment were not realised. The image of the judiciary as a legitimiser of anti-democratic, anti-people regimes survived. Judgments that justified the extra-constitutional acts of Ghulam Mohammad and Generals Ayub Khan, Ziaul Haq, and Musharraf -- in which the dictators were given relief they had not asked for, including the grant of power to amend the constitution -- persuaded the people to look on the judiciary as an ally of the establishment in its designs to mock at constitutionalism and suppress the people’s rights.

When Chief Justice Iftikhar Muhammad Chaudhry challenged Gen. Musharraf’s bid to oust him from his office the people smelled a split in the judiciary-establishment phalanx that they considered the main barrier to the country’s progress towards its democratic ideals. They were convinced that Musharraf had attacked the judiciary because it could foil his unconstitutional bid to grab a fresh term in the presidency.

The people decided to ignore the charge-sheet against Justice Chaudhry before the Supreme Court, perhaps contrary to prudence, chose to do so. When leaders of the bar decided to launch a public campaign for the restoration of the judges the people saw this as an opportunity of playing a decisive role in the matter of separation of powers among the state organs, a power they have always sought.

The success of this campaign gave a heady feeling to the participants. The lack of clarity about the objectives of the various parties to the campaign -- the judges, the lawyers, the public, the media, the PML-N leader and the army chief -- eventually caused frustration to no less a person than Ali Ahmed Kurd, who had directed the final act of the drama literally by the sweep of the thick growth on his crown. But that is not the issue at the moment.

The media relished its role as a major promoter of the judiciary’s independence and learnt to enjoy the freedom from repression the popular movement afforded it. When the senior judges were restored to their offices, the media imperceptibly slipped into the role of judiciary’s ally in whatever cause the latter chose to adopt.

This new judiciary-media relationship facilitated the judiciary’s use of the media in its attempts to enlarge the meanings of its independence and freed the media of constraints to comment on court proceedings. Both were helped by a delinquent political authority that offered a weak, legalistic defence against public impression of its waywardness and wrongdoing and lost its cases before courts of law and the media’s inquisitorial forums.

A parallel development was the judiciary’s abandonment of the concept of isolation from society. The judges accepted the fact, rightly up to an extent, that they could not ignore their social milieu and the aspirations of their people in any area of human endeavour, from working of the administration to market fluctuations and education to maintenance of prisons. Within a short time, judicial authorities’ pronouncements in court chambers and outside, began to overshadow politicians’ and parliamentarians’ proclamations.

The media played along because it could attract public interest by serving it with non-traditional and often sensational headlines. It is doubtful if judicial activism could have soared so high as it did without the media’s unquestioning support.

The judiciary did not take exception to media’s tendency to conduct media trials of its quarries because this widened the populist appeal of judicial activism. A classic example was the media’s dismissal of a government counsel’s plea before the court had disposed it. The judiciary completed its transformation from a protector of the constitution to being its sole enforcer in a short jump, much to the media’s satisfaction. The media was also quick to rise to the judiciary’s defence if any voice questioned the abandonment of limits to judicial activism and its encroachment on the legitimate authority of the executive and legislative organs of the state.

Many people thought the judiciary was overlooking the difference between making state institutions work properly and supplanting them, and that the media chose not to point out such matters. These misgiving could have been misplaced or groundless. But then judges, like Caesar’s wife, are expected to be above suspicion.

One does not have to wait for the observations of the Special Rapporteur on Independence of the judiciary to realise that judicial activism of the kind witnessed over the past few year has created an imbalance among the pillars of the state, an imbalance that could threaten its democratic functioning.

The media has now to decide whether it will continue to support the doctrine of the judiciary’s superiority to all other state institutions that goes much beyond its responsibility to interpret the constitution and the law. The concept that the judiciary has a right to intervene if any state institution is neglecting its duty or functioning improperly looks like a new law of necessity that has a wider sweep than its earlier version conceived by the Anwarul Haq court. Eventually, it is a matter of choice between the media’s role as the ally of a particular state organ (that could be the executive in the present situation), or as a defender of the people’s rights and their collective good.