A healing justice

Published in The Express Tribune

Long before the general’s last summer, King James I was shaking with rage. The king, it turned out, had been made to understand the supremacy of law. As with most royals, he didn’t like what he heard.

Ever since Guy Fawkes tried blowing him up, James had used sympathy for the crown to ride roughshod over both the judges and parliament, smirking that his right to rule was God-given. But sooner than later, the king was on a collision course with Edward Coke, the greatest (and vainest) jurist of his time.

Chief Justice Coke had slapped down the king saying, ‘His majesty is not learned in the laws of his realm. They are not to be decided by natural reason but by the […] judgment of law.’

King James exploded, ‘This means I shall be under the law, which it is treason to affirm.’ Coke didn’t care. ‘The king is under no man,’ said Coke, ‘yet he is under God and the law.’ Coke knelt before the king in submission, but the damage was done. Time and tide would eventually wrest the courts away from the crown.

And when the same tide hit our shores in 2007, our former Chief Justice, the honourable Tassaduq Hussain Jillani, was a judge of the Supreme Court (he would refer to the Coke incident a year later, addressing the American Bar Association in absentia). It is fortunate that he was.

We most associate those days with Iftikhar Chaudhry, the lightning rod for all the passion and panic that followed. But Justice Jillani also knew a democracy’s DNA – the rule of law and the sanctity of the constitution – must come with hard guarantees.

‘Be you never so high, the law is above you,’ said Thomas Fuller, and Justice Jillani became part of the Class of ’07 that both bucked General Musharraf’s PCO and survived Emergency. Yet it was only after the larger-than-life Iftikhar Chaudhry, that the virtues of Tassaduq Hussain were thrown in sharp relief.

For once, the press characterised it correctly: this new Chief Justice was a ‘gentleman judge’ fond of the arts, a man that had penned the Justice for All judicial anthem. They saw him as a humanitarian in a place fast losing its humanity, asking after the injured when suicide bombers ripped through Islamabad’s district courts in March.

But the press missed the forest for the trees. It was the CJ’s contributions to our jurisprudence, rather than the manner in which he made them, that merited coverage. Because that’s where Tassaduq Hussain Jillani’s justice — a brief, humane justice — shines.

His Lordship was Chief Justice for 206 days — as compared to Mr. Chaudhry’s 2,451 (or for that matter A. R. Cornelius’s 2,848), and made an impression in a tenth of the time. Inheriting the bench from a man that polarised the polarised, the new Chief Justice understood it was a time to heal.

Over the next several months, Justice Jillani walked a tightrope — between the activism people had come to expect, and the conservatism people predicted as reaction. He proved both wrong.

Overreach — and acres and acres of paper in backlog — made activism unattractive. And contrary to public opinion, our soaring suo motus hurt the judiciary’s effectiveness more than they helped. Getting down to the business of adjudication, it was Justice Jillani that kickstarted the cases’ disposal rate: according to the Supreme Court, of 3,862 cases between April and June, 3,533 have been decided.

And as to the latest tug of war between the executive and the judges — between King and Coke — the CJ’s approach was nothing but nuanced. In Dossani Travels vs. Travels Shop, Justice Jillani set aside the High Court’s intervening in Hajj quota policy. He instead made a comprehensive case for another fundamental: the separation of powers.

Emphasising the ‘competing concerns of vigilance and restraint,’ the CJ wrote ‘we may remind ourselves the judiciary has neither sword nor purse […] the legitimacy of its judgments does not arise from the beauty of its language or the use of populist rhetoric.

‘Rather it radiates from the dynamism reflected in interpreting the Constitution and in particular its Fundamental Rights provisions, in judicial restraint displayed in deference to the principle of trichotomy of powers, and in an impersonal and impartial application of law.’ Wisdom we’d forgotten.

But if activism was unattractive, the CJ’s own track record made conservatism as unlikely. In a land obsessed with the literal, Justice Jillani called the constitution ‘a living organism’, dynamic and ever-evolving (local Scalias take note).

Which leads us to the legacy that burns brightest: Tassaduq Hussain Jillani and the protection of Pakistan’s minorities.

The CJ understood the centrality of minorities to the idea of Pakistan: that without the white, the green would eventually eat itself. He was alarmed by the threats made to Chitral’s Kalash tribes, the massacring of our Hazaras, and the attacks on our churches and temples — alarm that went unmatched by the hyenas in parliament.

What followed was a landmark judgment: SMC 1 of 2014, a suo motu for when it actually counted. In a beautiful example of adjudication, beginning with the Prophet Muhammad’s (PBUH) final sermon, Justice Jillani lamented a society riven by sectarian evil, and the importance of Article 20 in overcoming it.

In a 32-page primer, the CJ quoted from Shakespeare, from Voltaire, from John Stuart Mill (though it may be remiss here not to mention the latter two gents as antagonists toward brown civilisations: Voltaire’s nauseating prejudices, and Mill’s love letters to empire). He held that the right to religious conscience was a fundamental right, and that the same right made no distinction between Muslim and non-Muslim.

His directives were as clear: a federal task force to encourage tolerance, a special police force for minorities’ places of worship, reform in curriculum, the enforcement of quotas and the punishment for hate speech.

To heed them is vital. But appreciating the essential goodness of Tassaduq Hussain Jillani, of course, wouldn’t hurt either.

The Chief Justice stepped down last week, a day before turning 65. In his farewell address, he recited,

Maana ke iss jahan ko gullistan na ker sakay,
Kaantay tau kuch hata diye guzray thay hum jahan se

Even in the end, Jillani sahib understated his case.

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