Herald cover story – photo by Massimo Berruti
There’s a story about a poor young barrister, with not a single brief in hand, wandering Bombay High Court. It’s the turn of the century, and the Raj is inescapable: even in India’s most frenzied courtrooms, the British dominate the proceedings.
Further saturating the scene in Britannia, there’s an angry Scot: James MacDonald, boss of the Bombay Municipal Corporation, is front and centre of the court. A Very Important Man (we are told), MacDonald is throwing his weight around by sitting on a seat reserved for lawyers.
Enter our hero, still an unknown quantity. The court is packed, so the barrister strides up to MacDonald and asks him to move. The big man refuses, so our hero tells the court clerk to unseat him. The court clerk freezes – a drop in the tide of empire – but our hero threatens the judge will be brought in. The clerk complies and MacDonald gives up his chair, so the story goes, to the conquering youth. Muhammad Ali Jinnah is 27 years old.
Hector Bolitho, the most controversial biographer of Mr. Jinnah’s controversial biographers, writes a tale in tune with the legal life: complex, adversarial, and very, very hard. Far removed from the Jinnah who refuses to repeat his silk ties, who speaks of the sanctity of the Constitution, who inhabits sunlit offices with oak paneling, Bolitho’s Jinnah is all too human.
While still the steely-eyed statesman of later years, Mr. Jinnah also emerges from the picture as unwavering, unpurchasable, and not a little brokenhearted. We learn that Jinnah’s Pakistan is not the Muslim Babylon our rightwing would have us believe, nor is it a communal Frankenstein the left would take apart.
It is the dying wish of a man let down by all else; in a land where Mr. Jinnah made his fortune as a legal logician, the ideal he clung to was hopelessly romantic: Hindu-Muslim unity.
A dream that shattered against the rocks of realities personal and political: against the religious symbolism of the Mahatma (a barrister), the ugly majoritarianism of the Congress machine (led by another barrister), and the weak chins of Punjab’s Unionist leaders (whose grandchildren are now forced to take up the bar). For Muhammad Ali Jinnah, it seems, there was no other way.
Yes, law is fused in Pakistan’s genesis, and the country’s birth consumed Mr. Jinnah’s autumn; he died weighing all of 70 pounds. Today his portrait hangs not far from Thomas More’s in Lincoln’s Inn, another lawyer-saint whose life was lost on the crossroads of church and state.
But whereas England buried More along with the Catholic Church, Pakistan remains a living tribute to the advocate that pleaded his case for it, and the Quaid’s portrait hangs in courtrooms across the land. Laughed Jinnah archivist (and antithesis) Sharifuddin Pirzada, ‘Pakistan was, after all, a legal decision.’ How Mr. Jinnah wished to shape the verdict remains an open question.
A question that has been answered by generals in sashes, by feudal lords in Mao caps, and – most recently – by judges in black and gold. But as any jaunt down Lahore’s district courts today makes clear, much that has happened has been for the worse.
The district courts sit in the heart of Lahore, which in turn beats blood to Punjab; an equation that implies the rest of the province’s district courts will boast far less resources. If such is the case – that Lahore’s district courts are the gold standard of local adjudication – then the bigger picture is bleak.
Via signboard, the lower courts proclaim themselves the Aiwan-i-Adal – the citadel of justice – in boldface. A stream of depressed humanity trails in and out the gates, some quite literally wringing their hands. It’s a beautiful spring day, bathed in human panic.
Far removed from popular imagination, the courts roar with human commerce. Surly men sit on cement benches, chain-smoking. Technicians jabs screwdrivers in a communal photocopier. Policemen eye lady litigants a fraction of a second too long, and are rightly chastised by the ladies. The policemen are made to stare at the floor, shamefaced.
Yes, this is the heart of justice, but justice is far from being discussed. Election season is in full swing, and lawyers are busy campaigning for bar council glory. They stand at the entrance in French columns, pinning badges on visitors with their candidate’s names across the front. Up ahead, an opposing candidate is carried on the shoulders of his black-coated brethren, tossing visiting cards into the adoring crowd. With well-practiced ease, his supporters reach up and feed him chamcham with their bare hands.
Though it’s only mid-morning, court activity is already at its sweaty peak: despite being the province’s hub of litigation, judges rise to retire by 3:30 p.m., and litigants shuffle back to far-flung locales, with little progress made.
On a good day at least: the energy is in sharp contrast to the winter prior, when the courts were deserted. A text message had been sent out en masse to the bar rolls in advance,
Insultive [sic] remarks passed by Justice Kazim Raza Shamsi about the Advocates Published in the Daily Newspapers have injured the feelings of the legal fraternity at large. Great Resentment is prevailing amongst the advocates. The advocates across the Punjab will observe full day Strike.
Thus the Great Resentment was observed, with the lower courts coming to a standstill that day. Post-Lawyers’ Movement, the legal fraternity is quick to unionize, and as quick to parry any attacks on their professional pride.
But whereas the verbal slings of High Court judges are borne and buried, dissatisfaction with the lower judiciary is a fact of life, equally voiced by worn-out litigants, cynical lawyers, tut-tutting superior justices and, on occasion, sheepish sessions judges themselves.
That is, perhaps, a symptom of the plague: kilometres from the air-conditioned courtrooms of the Lahore High Court – and a world away from the splendour of the Supreme Court in Islamabad – the majority of cases are decided in the courts of first instance: the civil and sessions courts. By extension, the majority of litigants are poor, and the majority of those poor pursue land disputes.
Hence the Catch-22 situation: most litigants are uncomprehending of the English (or archaic Urdu) in which their cases are prosecuted, and overwhelmed by the law. They are vulnerable to the police, prone to the predations of ‘court-fixers’, and exhausted by case delay. They are, in short, a walking indictment of the district courts.
Not that the judiciary disagrees. A recently retired sessions judge shakes his head sadly, ‘This is less an Aiwan-i-Adal than it is an Aiwan-i-Daldal.’ In one case, the judge had made the mistake of deciding a land-grabbing case that had dragged on for twelve years, courtesy the defendant’s connections with a political party. ‘The order sheet fell all the way to my feet. The case had been transferred from judge to judge, with date after date after date – it was a case study in why people throw sticks and stones at us qazis. So I put my foot down, and fixed the case for final arguments.’
The judge says he had a sinking feeling in his stomach when dictating the order. By the time court wound down, he says, ‘My phone was ringing from noon till night. I was “approached” by senior judges I can’t name; they asked whether I liked living in Lahore, and they were only half-joking. I lied to them, saying I wished they’d told me earlier, because I’d already decided the case.’
The judge took a nap that afternoon, and dreamt he was visiting a broken church and weeping among the pews. Following this weird interlude, he woke up with the urge to barricade his gate that night, and was glad he did: ‘Well into the evening, I heard a bunch of scoundrels pounding on it louder and louder. How could they? This was my home.’
The judge strode into his courtroom the next morning with rage in his heart, evicting the alleged-land-grabber from the premises (he says he gave all a fair hearing), and closing the file. The defendant walked in at the end, and began physically tearing his hair out.
‘He had to be restrained,’ says the judge. His voice is flat. Like the qazis of yore, there is a palpable burden of pain on his shoulders, and the afternoon is oppressive again.
Even for honest subordinate judges, pressure comes with the territory, in a system that leaves them underpaid, unprotected and ultimately, unpromoted. These are the men that decide the majority of Pakistan’s cases, but the dividing line between them and the superior courts has never been clearer.
It’s well-known that some of the judiciary’s brightest stars have emerged from the courts of first instance. Justice Fazal Karim, a gentleman of unflinching honesty, started his career from Jhelum’s district courts before going on to the apex court. Taken together, his writings are the most magisterial body of work ever composed by a Pakistani judge.
The blunt, brave Justice Rana Bhagwandas too started from the ground floor; as acting Chief Justice, he would become the first Hindu chief of the highest court in the land and, like Justice Karim, a point of pride for Pakistan’s judiciary.
Yet these are diamonds in the rough: the majority has never been brought into the fold, with competent lawyers appointed directly to the High Court instead. This poisons the well in more ways than one: the superior courts’ Brahmins turn their noses up at the lower judiciary – ‘uncouth, dirty types’ were the words of an Advocate of the Supreme Court (and likely judicial aspirant). ‘Yeh ek ganda naala hai,’ he said.
For their part, the lower judiciary, and the bar especially, mock their more privileged peers as test-tube babies, far removed from the blood and guts of trial law. It is that impasse that needs breaching, and subordinate judges that require nurturing into High Court justices. Left to their own devices, the lower courts will remain the same old snake pit.
But improving the quality (and upward mobility) of the lower judiciary receives short shrift, especially when there aren’t enough judges in the first place: at any given time, Pakistan’s court system has less than 2,300 judges working in total, with a shortfall of judges against sanctioned posts in all four provinces.
In An Alien Justice, a pathbreaking analysis of the formal legal system, one scholar used the most conservative statistics to estimate the numbers. His findings were staggering: according to 2007 demographics, the Punjab has 1.5 judges per 100,000 residents; Khyber Pakhtunkhwa, 1.75 judges; Balochistan, 1.5 judges; and Sindh, one judge.
But to test the earlier assumption – that Lahore’s lower courts are in better shape than the rest – it was thought best to pay a visit to Gujranwala as well, over the course of several months.
If Lahore’s lower courts have long been left to fend for themselves, then Gujranwala, with its own acknowledged rules of behaviour, is a world apart. Just upon entering its sweltering sessions courts, one feels the chasm between the law on the shelves, and law in real life, yawn wide open.
One that hits heartbreaking proportions: many of the lawyers wandering through the corridors were accosted by a skinny gent called Goga, who was feeding everyone laddus glistening with grease. When asked what the occasion was, Goga smiled and raised his eyes heavenward.
It so happened that the police had been tipped off about a truck carrying contraband. During the ‘interception’, an Additional Sub-Inspector got involved, and dispensed two slaps to Goga, the truck driver. Upon hearing this, Goga’s boss (the owner of the truck) flew into a fury. He hired a lawyer to teach the ASI a lesson. Goga was a Syed, his boss explained. ‘What sort of animal, even in this day and age, smacks a Syed?’
Goga’s new lawyer agreed, and filed a private complaint against the ASI in court. The judge hearing the case, for obvious reasons, feared what needed to be done.
At this point in the story, Goga led the way to the judge in question: in our first sighting, the gentleman was digging his ears with his car keys. The image did not inspire confidence in the man’s justice, but Goga carried on with his tale: at each and every hearing, the ASI would absent himself via increasingly bizarre written excuses; he had a First Information Report (FIR) to pursue in Mandi Bahauddin, a widow was missing a kidney, or a first cousin’s femur had just broken. ‘We think he was involved in black magic,’ Goga said.
The ASI’s powers were certainly supernatural: the case crawled on for another 14 hearings over two-and-a-half years – the ASI refused to turn up once, and the judge refused to summon him anyway. But at the last hearing, Goga’s own lawyer didn’t turn up either, the first and only time. That was all the bench needed: seizing the opportunity, the judge dismissed the case for non-prosecution.
Hence Goga’s joy. ‘Main baizzat bari ho gya, baoji, (I’ve been acquitted!)’ he said, and offered us more laddus. Over an insufferable two years, Goga the complainant had transitioned to Goga the defendant in his mind, and no one had had the heart to explain to him otherwise, including us.
The disconnect between the system and its supplicants is a given, but one wonders whether ignorance isn’t truly bliss: cutting against Goga’s joie de vivre were those who knew, with sickening clarity, the exact places the system was broken.
Like the Nazia family – in a criminal hearing that same day, a trial was drawing to a close, and the facts were ridiculous: a police raid team had caught Nazia, Nazia’s husband Sadruddin, and Nazia’s brother Billa in a gali in Bhagwanpur, each with a kilo of heroin. At least, that’s what their FIRs said.
In jarring contradiction, the accused claimed they had been asked for bhatta by the police, picked up from their home for refusing them, and thrown into the thana, around when the Bhagwanpur arrests were dreamed up by the police themselves.
The police went one better: on paper, Nazia, Sadruddin, and Billa (names have been changed) were ‘arrested’ from Bhagwanpur on three separate occasions that day, as filed in three separate FIRs. But the prosecution conveniently neglected to mention that they had been arrested at 30-minute intervals, by the same police raid team, at the exact same spot, via the same informant, for the same offence. As far as separate stories went, the police were struggling to come up with distinct plotlines.
A point that was hammered home by the family’s lawyer, Barrister Waqas Farooq, a rising star fond of Twinkle Khanna movies. As all three were pleading their case separately, Barrister Waqas cross-examined the very same policemen on three distinct occasions.
In the Nazia hearing, he asked, ‘Did you arrest anyone else that day?’ The policemen said they had not, eyes glassy.
In the Sadruddin hearing, he again asked the same gentlemen, ‘Did you arrest anyone else that day?’ The policemen said they had not, thus contradicting their previous testimony that they had, indeed, arrested Nazia that afternoon.
Finally during the Billa hearing that morning, the good barrister re-repeats, ‘Did you arrest anyone else that day?’ Their consciences deadened by one drug sting too many, the policemen once again lie they have not – laying waste all previous testimony where the same men said they had arrested both Nazia and Sadruddin.
This is surely a breakthrough in the trial: Barrister Waqas looks at the judge. Billa looks at the judge. The reader looks at the judge. The judge stares at the ceiling. He has ice water in his veins.
A Christian minister once said that even Helen Keller, who was born deaf and blind, could sense God’s presence. The sessions judge, blessed with both sight and hearing, neither sees God in the proceedings, nor hears the cries of the damned.
The judge knows, of course, that the police are lying. The police know the judge knows they’re lying. And the judge knows they know he knows they’re lying. But it matters for nothing.
None of it does, though Barrister Waqas has a laundry list: he argues, firstly, that not a single witness besides the police has been produced. Second, that the police testimony itself is completely contradictory. Third, that none of the investigation procedures as required by the law were carried out. Fourth, that possession of heroin was never proven. Fifth, that the accused could have easily escaped from the charging police contingent. Sixth, that the supposed heroin sample had been sent to the forensics laboratory far too long after the point of seizure, in open contravention of the Control of Narcotics Substances Rules (CNSA).
In keeping with the lower judiciary’s proud tradition of disregarding all procedural law for substantive (not that many grasp the latter either), the sessions judge is having none of it. When it came to the police’s flouting the law, the judge would decide in his order,
Failure to follow the Rules would not render the search, seizure and arrest under CNSA an absolute nullity, and make the prosecution case doubtful. In directory provisions, the substantial compliance is sufficient, and even where there is no compliance at all, the act is not invalidated by such non-compliance.
And when it came to the fact that there were no other witnesses but the police, the judge would write a snappy one-liner, ‘Police officials are as good witnesses as any other witness.’
He sentences Nazia to 4 years’ rigorous imprisonment, with 6 each for Sadruddin and Billa. Unlike in India where the freshly convicted are heard again prior to sentencing, the accused in Pakistan are convicted and sentenced on the same day. This leaves them vulnerable to custodial sentences arbitrarily thrown together, with little to no consideration of mitigating circumstances.
Then again, the judge was hardly the sort to lose sleep at night. ‘I have no hesitation to hold that the prosecution has successfully brought home the guilt of the accused, beyond a shadow of reasonable doubt,’ he wrote. And everyone went to prison.
In Heaven on Earth, his brilliant book on sharia law, British legal historian Sadakat Kadri tells us about the Caliph al-Mansur’s own battles with the judiciary back in the eighth century. ‘Islam simply lacked any settled traditions about how to judge according to the sharia…Many members of the ulama were not only reluctant to pronounce on a co-religionist’s sinfulness; they were manifestly terrified of doing so.’
Mr. Kadri drove this across with ‘the story of a North African scholar who was instructed to decide a case according to the sharia by the governor of the Maghrib. He had to be escorted under armed guard to the mosque, and agreed to hear the litigants only after the governor’s guards tied him up, took him to the roof and threatened to throw him off. Even then, he cried so much that the parties decided it would be better for all concerned if they took their quarrel elsewhere.’
Mr. Kadri’s conclusions are convincing: a generation of jurists, having seen father kill son in Islam’s civil wars, reacted by outsourcing as much judgment as they could to the Resurrection. They had predicted, some thirteen centuries in advance, the complacency of the Gujranwala sessions judge.
It was said of Ardeshir Cowasjee that the trees whispered to him. Armed with only a newspaper column, Karachi’s Grand Old Man took on the rich and influential every Sunday: from construction lobbies to the land mafia. And by the autumn of his life, Cowasjee the columnist had ripened into an Olympian wisdom, pictured often with his pet cockatoo (and his poisonous pen).
But Cowasjee the activist was still thundering away at the rostrum, seeking stays on illegal construction, the razing of trees, and right until he passed away, an amenity plot case – the Karachi Building Control Authority (KBCA) was attempting to build an office right on a University Road park plot.
Over a lifetime of fighting, Cowasjee may have filed over a hundred court cases; he understood, long before the rise of Iftikhar Chaudhry, the beauty of public interest litigation. In a time when such litigation was considered an experiment at best (and a frivolity at worst), Cowasjee’s sheer will seems all the more remarkable.
And it helped throw open the floodgates for the rest of the public: in what came to be called the Costa Levina Case of ‘99, the KBCA had approved the construction of a hideous high-rise in Bagh-e-Ibn-e-Qasim; one of the planned monstrosities was a ‘revolving restaurant’. The movers behind the plot were Asif Zardari and his major-domo, the then-absconding (and now-estranged) Dr. Zulfiqar Mirza.
Cowasjee was enraged, and pressed the courts’ writ jurisdiction under the Constitution’s Article 199(1). In Cowasjee’s corner was Barrister Naimur Rahman, but the builders had a heavyweight: Farooq H. Naek, already coming to be known as Zardari’s guardian angel (as with O. J. Simpson’s defenders, the highest praise for any lawyer).
The case went all the way to the Supreme Court, where the wily Mr. Naek challenged Cowasjee’s locus standi, i.e. that Cowasjee lacked sufficient stake in the case. Justice Ajmal Mian considered the contention and disagreed: locus standi was to be given broad interpretation in such cases, and Costa Levina was decided in Cowasjee’s favour. Suddenly, public interest litigation seemed worlds more accessible.
Ardeshir Cowasjee v. KBCA demonstrated, if not for the first time, that the appellate courts could be approached by the common citizen when their right to life stood infringed – indeed, that the Constitution guaranteed as much. That the good guys could win.
Fitting then, that the debate has come full circle 16 years later: on 17th April, the same week as Cowasjee’s 89th birthday, the Lahore High Court scrapped one of the Pakistan Muslim League-Nawaz’s (PML-N) wildest dreams for Lahore – a 7-kilometer signal free corridor along Jail Road, from Qartaba Chowk to Liberty Chowk.
Of course, much has happened between 1999 and 2015: the movement for the restoration of the judiciary changed the conversation on public interest litigation at home – a trend that had been felt across the world long ago, in India and Australia and South Africa. Pursuing the public interest has never been more popular than it is today, and the bench is receptive. As Hamilton put it, ‘The judiciary must be treated not simply as a branch of government, but as agents of the people.’
How that agency is demonstrated varies with each Chief Justice post-restoration: in Iftikhar Chaudhry’s hands, it was a bully pulpit; in Tassaduq Hussain Jillani’s, a healing salve. But neither man would disagree with Hamilton.
Nor, it seems, would the Lahore High Court. The Jail Road writ petition had been moved by the august human rights fighter I. A. Rehman among others, and was heard daily. Up against the might of the Lahore Development Authority (LDA), the petitioners made their case: that the project ruined the environment, that it made no provision for pedestrians and the disabled, and that the LDA was circumventing the local government system itself. The bench agreed.
Jurisprudence at it should be: the court’s decision wasn’t premised on policy; on Nawaz League spending 1.5 billion rupees on vanity projects for the teeny elite. That was, after all, the state’s prerogative: the Punjab government was free to splurge as much as it may on motorways and Metro Buses.
Instead, the decision was a victory for devolution, the very DNA of our democracy. Inserted via the 18th Amendment, Article 140-A of the Constitution is plain, ‘Each Province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments.’
Affirming that local governments had been recognized as a third pillar by the Constitution, the court ruled, ‘Till such time that the Local Government elections are held…LDA will only attend to its existing on-going projects…[it] shall not embark upon any new project which encroaches upon the powers of an elected Local Government System.’
An order delivered by Justice Syed Mansoor Ali Shah (a judge Cowasjee had spotted as ‘forward-thinking’ in one of the last columns he ever wrote). Justice Shah is an example of what the post-restoration judiciary can be: independent, conscientious and – to not a few observers – reformist.
Not least, his written opinions bring clarity to the questions of law considered. After wave after wave of opinions muddying the waters, this is refreshing; unlike other common law jurisdictions, the Pakistani precedent is too often intellectually lazy, unhelpfully sourced, and badly reasoned besides. Some disregard precedent outright: it is possible to find an odd High Court judgment shredding well-settled law, to be overturned by an incredulous apex court.
Not that it was always like this – in the 1950s and ‘60s, the superior judiciary’s opinions were clearer, relatively concise and, most important, noisily arrived at: bucking today’s trend of junior justices accompanying their seniors in silence.
With debate and disagreement, there came an extra intellectual dimension to the country’s jurisprudence. American Justice Cardozo once compared the dissenter to ‘the gladiator making a last stand against the lions’ – it is the passionate dissent, after all, that may become hard law tomorrow. Bereft of that, the superior judiciary’s decisions too often read like an echo chamber.
Then there’s the language barrier, but errors in grammar and spelling are forgivable in a country long tormented by the British. That is, when such errors don’t pile up throughout: in Muhammad Riaz Sheikh v. The State (2005 YLR 1782), a case involving alleged copyright infringement by a bubblegum manufacturer, Justice Khawaja Muhammad Sharif wrote (in one of his more coherent judgments),
To satisfy conscience [sic] of this Court and to reach at [sic] a just decision of the case, I have personally examined the packets of bubbles [sic] i.e. one belongs to the complainant party and the other to the petitioners. After careful perusal of both the packets, I have reached to [sic] the conclusion that there is so similarity [sic] that anyone can easily be deceived while purchasing the said item because there is no major change in the size of the packet, colour, pieces therein and apparent looking of the packets [sic]. The only difference in the packet of the petitioners is…against the word of ‘Ding Dong’ the word ‘Ding Dung’ is written.
For the unholy sin of his Ding Dung packaging, Justice Sharif did away with the petitioner’s bail. But the former justice’s opinion-writing skills are the least of our problems – instead, Justice Sharif, appointed by Prime Minister Sharif in 1998, represents the dark side of Pakistan’s experience with the law: ad hoc, toxic, and politically compromised. That a Justice (and later Chief Justice) of the Lahore High Court is appointed for the very reasons that merit his supersession, is distressing.
Then again, it is also testament to how far the judiciary has come from the ‘90s, when the bench would be ‘packed’ with party men by Benazir Bhutto (a la Frankie Roosevelt), some with not a single reported judgment to their name. After yet another attempt by her widower to pack the bench in 2009, the process of appointments was overhauled by the 18th and 19th Amendments, and brought under the aegis of a judicial commission under Article 175-A of the Constitution. Since the commission is made up mostly of judges, our Lordships now appoint themselves.
Leaving gents like Khawaja Sharif where they should be – as relics from the ‘90s. It was, after all, 1998 when Prime Minister Sharif’s tussle with the judges over appointments led to his goons ransacking the Supreme Court. despondent Cowasjee ended up posting a recording of the footage to the Supreme Court, but it was too late. The judges had been cowed.
By the time today’s federal ministers stopped breaking things, the Quaid’s portrait lay in pieces on the floor. The symbolism was lost on no one.
At the Supreme Court, a court correspondent whispers, ‘Thand pai gayi ai. It’s just not been the same since he left.’
‘He’ can only be Iftikhar Muhammad Chaudhry, testament to the legal system Pakistan’s 20th Chief Justice both inherited and left behind. The Supreme Court has always seemed an aloof place; a court of marble that sulks in the middle of Constitution Avenue. Now deprived of Iftikhar Chaudhry’s shadow, the Adalat-i-Uzma is more glacial than ever.
‘Now? Now we just go to Jawwad S. Khawaja’s,’ the correspondent says.
Taking oath as Chief Justice ten years ago, a somber, mustachioed gentleman said, ‘Let there be candid admission that the man in the street is dismayed and disillusioned with the judiciary’s role. Proper justice has become elusive in our society.’
In his inaugural speech, the hallmarks of Iftikhar Muhammad Chaudhry were announced to the world: the clipped tones, the self-awareness, and, above all else, the low populism.
Back then though, Justice Chaudhry was part of the problem; he had already taken oath under General Musharraf’s Provisional Constitutional Order in 2000, rubber-stamped a military coup in Zafar Ali Shah, approved the general’s amendments to the Constitution in Watan Party, and then allowed the president to carry on as army chief in Pakistan Lawyers’ Forum. In the early days, Justice Chaudhry seemed less Dorab than Dogar.
Which begged the question – why not?
For the longest time, the story of the superior judiciary was a sorry one. It was Pakistan’s second Chief Justice, Muhammad Munir, whom breathed life into Bracton’s maxim, ‘That which is not lawful is made lawful by necessity.’ And it was Munir that approved the dissolution of parliament – at the behest of a governor-general best known for fits of mania.
So it came to pass in 1954, that the body that was to draft the country’s most sacred document, the Constituent Assembly, was blown away by the constitution’s own guardians. Munir set the tone for our unhappy history: the judges kowtowed to the king, and the king carried on, oblivious to the needs of a free democracy.
Until that spring day Iftikhar Chaudhry stood up to General Pervez Musharraf, this trend more or less held. One in which lawyers were all too complicit: when 18-year-old Asma Jahangir petitioned the courts against Yahya’s martial law, it was ingenious advocate Sharifuddin Pirzada that argued for the supremacy of the constitution in Asma Jilani. Not five years later in Nusrat Bhutto, Mr. Pirzada argued the exact opposite as General Zia’s attorney-general. He would win both cases.
And when General Zia sacked his own assembly in 1988, he was reminded of the law mandating elections be held in 90 days. The general wasn’t worried. ‘Pirzada ke paas kuch masala hai,’ he smiled.
Mr. Pirzada now spends his time pleading on behalf of General Musharraf, in yet another Pakistan-altering trial he seems destined to win.
But even unhappy histories have their heroes. Among the Munirs taking us deeper into the darkness, there have been beacons of light always: there was Sindh High Court Chief Justice George Constantine in the ‘50s, whom fended off the governor-general’s henchmen from hurting Maulvi Tamizuddin – he would go on to declare the assembly sovereign in his famous Irish accent.
And when Munir overturned Constantine’s decision in Tamizuddin, it was A.R. Cornelius that dissented. ‘The Catholic chief justice of a Muslim state’ – according to his biographer – Justice Cornelius is now considered one of its greatest-ever.
Then there was Dorab Patel in the ‘80s, who refused to accept the Provisional Constitutional Order, an improvised oath of loyalty to the army chief. He would walk away from 7 long years as Chief Justice. ‘How can I take such an oath?’ he asked.
For the most part however, these men were the exception to the rule.
But from 9 March 2007 on, a brave new world emerged: it was the first time Pakistan’s Chief Justice was suspended, and the first time a movement calling for the rule of law was successful.
It also took everything out of its supporters: after the shock of 9 March, Pakistan witnessed the horror of 12 May in Karachi, when activism was met with state terror: dozens of pro-Chaudhry supporters belonging to the Pakistan People’s Party (PPP) and Awami National Party were gunned down in broad daylight, by shooters linked to the Musharraf-allied MQM. Chaos ensued, as Karachi began collapsing in on itself.
With its utility to Washington on the wane, the Musharraf regime had gone past the pale at home. The general had long hawked a Mubarak-esque brand to his Western backers: support me, or watch the barbarians breach the gates. But firing into crowds of unarmed political workers was barbarism in high-definition. As for local audiences, it was arguably 12 May – even more than Chaudhry’s initial dismissal in March – that turned the protests into an unprecedented mass mission.
Nothing, it seemed, could stand in way of the Lawyers’ Movement: not emergency rule, not General Musharraf, and certainly not Asif Zardari – the incoming president feared Chaudhry would reopen corruption cases against him, and did his best to block the man’s return via Law Minister Naek. Though their obstruction failed, Zardari and Naek’s apprehensions proved correct. Riding to glory in one of the largest popular movements the country had seen, Justice Chaudhry was restored in 2009, and things were never quite the same again.
In many ways though, the story of Iftikhar Chaudhry is a Greek tragedy. If Calamandrei once called the courts ‘grey hospitals of human corruption,’ Justice Chaudhry saw his jurisprudence as the cure. The term suo motu, a piece of Latin legalese (wherein judges take cognizance of a case of their own motion) entered the national conversation, as the Chaudhry Court weighed in on matters of economics, infrastructure, and moral purpose.
But besides adding to an already-overflowing docket, the Chaudhry Court’s suo motu actions seldom developed the law. In an enlightening entry in The Politics and Jurisprudence of the Chaudhry Court, Asher A. Qazi drew his conclusions from the data at hand: of Justice Chaudhry’s 123 suo motu actions (as opposed to his predecessor Justice Nazim H. Siddiqui’s 2 suo motus), there were reported opinions in just 37 – or 30%. Of the survey Mr. Qazi took, only ‘8 reported opinions for actions initiated by Justice Chaudhry were considered to have contributed in any manner to the development of law.’
It follows that the theme remained the same: humbling the king. In a survey of most the Chief Justice’s suo motu actions, Mr. Qazi found 34% to do with executive abuse of power, 38% to do with executive inefficiency, and 11% to do with corruption (with 17% dealing with other variables, such as the allegation that pig meat was being used in poultry feed).
‘Joo-ris-proo-dance?’ repeats a youngish Supreme Court clerk, when asked about Iftikhar Chaudhry’s judicial philosophy, in a far more casual survey of our own. ‘He made it up as he went along.’ The gentleman proceeds to tap a newspaper for effect. ‘Surkhi, surkhi, surkhi,’ he says, before dancing off into the sun.
That may be unkind. For while Iftikhar Chaudhry was busy interfering in kite-flying and petrol prices, he did hang on to a core tenet: safeguarding the democratic process. Sindh High Court Bar Association is one such bombshell: a judgment that slams the door on future Napoleons. It held that all legal theories, including the necessity doctrine, had to be tested at the touchstone of the Constitution, and that all institutions had to act within the limits so set by it (words even the court could have heeded better).
In most ways, however, Iftikhar Chaudhry’s modus operandi was self-defeating. Much was made about forcing the then-ruling PPP to reopen its chairman’s corruption cases. But while Prime Minister Yusuf Raza Gilani was sent home, President Zardari still made it to the finish line – having trampled the separation of powers, the Chief Justice walked away with a weaker democracy.
Much was also made about taking on the army’s shadow world in Balochistan, but the Missing Persons case remains undecided; even Justice Chaudhry knew where to draw the line.
Incumbency too took its toll: it was only so long that the Chaudhry Court could keep drawing checks on the movement’s capital. By 2013, the judge’s popularity had mutated, to borrow an expression from the Bar, into a Great Resentment. And the quest for constitutional supremacy, in the eyes of many, had degenerated into a turf war, with the apex court in no mood to take prisoners.
Hurting his case further was a sea of contempt notices, as the Chief Justice began hauling in anything and everything that dared criticize Their Fair Lordships. Lawyer Saroop Ijaz darkly cited the British case of McLeod vs. St. Aubyn from a century ago, where the court observed,
Committals for contempt of court by scandalising the court itself have become obsolete in this country […] But it must be considered that in small colonies, consisting principally of coloured populations […] contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity of and respect for the court.
The court’s prescription for its own coloured population was sadly the same.
As with all top-down directives, there were also issues structural. While Justice Chaudhry beheaded many a public body for corruption, there were only minimal changes that filtered down to the rest of the organization. Countless hours of court time were consumed chasing and sacking these bosses, only to be replaced by the government with flunkies less qualified.
And the courts’ caseload soared, as poor petitioners waited for the Chief Justice to decide the next day’s headlines instead. As high-profile cases concerning the most rarefied constitutional questions (or the most coveted appointments) took centre-stage, the ordinary litigant was pushed aside.
But the end was nigh, and on his 65th birthday, Iftikhar Chaudhry laid down his robe on his own terms, no small achievement for a Chief Justice twice deposed. Yet it was a sobering exit: by the time the judge left, the bar had become untouchable, the judges had grown weary, and all politics had become a mega-court case. Not least, Justice Chaudhry’s dissolute son, a running theme in the lives of so many judges, had become mixed up with Bahria Town, the notorious real estate octopus. One of the reasons behind his father’s original removal, the younger Chaudhry’s second act hurt his father’s reputation even more.
For a man that had returned to the Supreme Court with petals strewn in his path, Justice Chaudhry left in relative silence. With him went much of the court’s manic methods, which cut against the new Chief Justice’s style of doing things.
Addressing Justice Chaudhry’s full-court reference, the new Chief Justice-designate, a bonafide progressive named Tassaduq Hussain Jillani, said that the Supreme Court ‘may be called upon to fill in the gaps between the law and social dynamics, but while doing so, the Court has to defer to an equally important constitutional value of trichotomy of powers…’
A deference that seemed unimaginable seconds prior. The line in the sand had been drawn, and the Chaudhry era came to a close.
Like Shakespeare’s Lear, Justice Chaudhry has fought his fading away into the sunset, with press statements and libel suits galore. But the press and public no longer care to point to the highs and lows of the Chaudhry Court – the state of the rule of law in the country, sadly, is evidence enough.
Which brings us to the Chaudhry Court’s fatal flaw: the vast majority of litigants went unaffected by suo motus and Swiss letters. They were and remain caught in a vicious cycle of delay, police corruption, judicial incompetence, and complex law in a foreign language. But failure to reform the jugular vein of our justice system – the lower judiciary – was not a failure of the imagination: it was a failure of willpower. Treating lawyers and subordinate judges as its base, the Chaudhry Court thought it best not to offend its constituents. Leaving us a legacy laced with irony: even as it cast around for its next target, the Chaudhry Court could not once bring itself to look within.
‘I am a man more sinned against than sinning,’ says Lear. Justice Chaudhry’s tragedy is not dissimilar.
Today, under the grand ceiling of the Supreme Court, the portraits of Pakistan’s 21 chief justices watch over the proceedings. Unsurprising is the absence of Abdul Rasheed Dogar, the judicial Judas that took oath under emergency.
‘Dogar’ is a slur among the bar and bench today, synonymous with a kangaroo court that did its best to indemnify the last sighs of the Musharraf regime (and later, the equally ugly birth of the Zardari presidency). In the same way an errant priest is defrocked, so Dogar was stripped of his robe; his decisions voided by the restored Chief Justice.
Justice Nasir-ul-Mulk now presides over the apex court: a cerebral Inner Templar, Justice Mulk hews to judicial restraint, a far cry from the activism of the Chaudhry years. But his 13-month-long tenure has coincided with Pakistan’s stepping over to the dark side in its terror wars, and the casualties are institutions – not since the emergency has the judiciary been so challenged.
Because on 16 December 2014, the world changed: Pakistan’s children were mass-murdered by animals in Peshawar’s Army Public School. 12-year-old survivors, some that once wished to be artists, now said they would join the army. The sentiment spread: wracked with grief, Pakistanis looked for leadership.
General Raheel Sharif vowed to crush the murderers of children. Prime Minister Sharif couldn’t bring himself to say the word ‘Taliban’.
Rage shifted towards the executive – so the executive channeled it toward the judiciary. ‘Military courts,’ an obvious oxymoron, started making the rounds. Tearing a page out of the Rumsfeld playbook, the interior minister cited military trials in the U.S. as justification (because Dick Cheney-era failures are what all democracies aspire to imitate).
This was an old Muslim League trick: when sectarian slaughter spiraled out of control in the late ‘90s, the PML-N brought in the Anti-Terror Act, and special Anti-Terror Courts. When the PML-N returned in 2013, it rolled out the Pakistan Protection Act, and yet more special courts. Now, with the Peshawar massacre, it introduced the 21st Amendment to the Constitution, and brought in military courts. There are now three sets of special courts to do away with terror ‘expeditiously’ (but parallel courts of justice is Pakistan’s way of sinking ever-deeper into quicksand, with accountability courts, banking courts, and Shariat courts galore).
‘The independence of the judiciary is essential,’ said the Prime Minister, whose men had tried thrashing Chief Justice Sajjad Ali Shah for displaying that sort of independence 17 years ago. ‘But equally important is the performance of the judiciary.’ How that performance would improve by outsourcing it elsewhere was an open question; rather than reform the civilian judiciary, the state is content to see it rot.
Even as Iftikhar Chaudhry cried out against the military courts, a bitter ex-king across the sea, his successor kept his counsel. That is, until those courts swung into action last April, sentencing six men to death, and a seventh to life imprisonment.
But the Chief Justice stayed the executions, on the strength of a petition pressing the Constitution’s Articles 10, 10A, 12, 13 and 14, i.e. ensuring safeguards in arrest and detention, fair trial, protection against retrospective punishment, protection against double punishment, and inviolability of dignity of persons. Military courts, as everyone knows, aren’t quite the stickler for constitutional guarantees.
The stay’s reasoning is clear: until the Supreme Court full bench decides the fate of the 21st Amendment, the convicts cannot be executed. This puts the Supreme Court in a bind: not for the first time, it will have to mop up the mess parliament has made – between the compulsions of these hideous terror wars, and the merits of due process.
Which also brings with it an explosive constitutional question: what of basic structure?
Long before General Musharraf, it was Indira Gandhi that imposed emergency in India after a showdown with the courts. It was thus Indira that went head-to-head with India’s ‘basic structure’ theory: that certain parts of the Constitution form the building blocks of the document, and cannot be altered by parliament.
Pakistan has, rightly, never affirmed the basic structure theory: despite a brief flirtation in the infamous Zafar Ali Shah judgment, all parts of the Constitution continue to bear equal weight, and must be read together in harmony. Left to itself, there is virtually no recourse by which the Supreme Court may strike down a Constitutional provision passed by the requisite parliamentary majority.
But during a challenge to the 18th Amendment’s appointment of superior court judges, basic structure reared its head: are parts of the Constitution not inviolable to the whims of parliament?
A question that rang out again with the 21st Amendment: was the Constitution not sacred from sanctioning military justice? Thus basic structure returned to the conversation, a red button that just might save us from the spectre of military courts.
The 18th Amendment case has been pending before the court for the past four years; Chief Justice Mulk has now clubbed it together with the 21st Amendment challenge as well – it seems the question of Pakistan’s basic structure will be decided once and for all, by a full bench of 17 judges.
To the cynic, it’s a lose-lose situation: military courts on one hand, and basic structure on the other. But there might just be a third way out: taking up the plea of Article 245, and arguing that the 21st Amendment does not provide military courts adequate protection.
Military courts have been struck down by the courts plenty of times in the past (twice by the seldom impressed, staid Ajmal Mian), but never under the umbrella of a constitutional amendment. The PML-N’s legal eagles knew what they were doing: as it stands, the 21st Amendment already shields military courts from the constitution’s fundamental rights provisions under Article 8, as well as Article 175 – the progressive separation of powers. But the 21st Amendment, of itself, does not establish military courts.
And despite protecting itself from Articles 8 and 175, the Amendment is silent on the go-to provision for Army powers: Article 245, which reads, ‘The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so.’
Clearly, gruesome acts of terror by insurgent groups are neither ‘external aggression’, nor ‘threats of war’. That leaves military courts afforded to us ‘in aid of civil power’. While it is true that said courts were introduced unanimously via parliament, it would bear telling that ‘in aid of’ does not amount to ‘in displacement of’.
To further explain: back in the late ‘90s, Sindh’s great and good governor, Hakim Syed, was assassinated. Reeling from the violence, Prime Minister Sharif wanted military courts to sort out Karachi (read: Altaf Hussain’s MQM). But it was held by Chief Justice Ajmal Mian in Liaquat Hussain v. Federation, that ‘The Armed Forces cannot abrogate, abridge or displace civil power of which Judiciary is an important and integral part. In other words, the Armed Forces cannot displace the Civil/Criminal Courts while acting in aid of civil power…The scope of the above power…can only be enlarged by amending Article 245 of the Constitution.’
Leaving Article 245 untouched, with a judgment in field, the current Constitutional order still does not provide for military courts – that is, until the ambit of the provision is widened. The Supreme Court could, if by a winding path, stop short of striking down the amendment, while holding that military courts remain invalid as currently envisaged by the Constitution.
Which is what makes the current, regressive challenge to the 21st Amendment so dangerous. For the judiciary to raise the flag of basic structure (as all indications affirm) is to chart waters unknown. And it allows the judges to import their own values into the Constitution with even greater ease than they do now, defining what parts to lend sanctity to forevermore. It would be best, perhaps, to leave the basic structure theory in India, from whence it came.
‘I hold them very close to my heart,’ the 21st Chief Justice of Pakistan once said of minorities, and for the longest while, the press was disturbed. In a country that had systematically pushed its minorities over the edge, the highest jurist in the land had gone violently off-course.
April is the cruelest month, and few attending the Pakistan Institute of Labour and Education Research’s (PILER) recent human rights conference in Lahore would disagree with T. S. Eliot.
The guest of honour is former Chief Justice Tassaduq Hussain Jillani, and the focus of discussion is his landmark judgment of 14 July – Suo Motu Case 1 of 2014 – Pakistan’s answer to Brown vs. Board of Education, which did away with segregation.
Yes, the ugliness of Jim Crow America may be a sickness separate from the miserable state of minorities in Pakistan. But just as Brown disinfected the darkness of race and slavery, Suo Motu Case 1 too was catharsis: the beginning of a march towards a free republic, and a better life for its most vulnerable children.
To most observers, the judgment came as a surprise. But, as all those aware of Justice Jillani’s career-long expansion of fundamental rights knew, something similar had always been in the offing.
And unlike his louder, angrier predecessor, the 21st Chief Justice’s cause had long been coherent. At the height of the Lawyers’ Movement in 2007 – minutes before the deposed Justice Chaudhry arrived to address the Islamabad Bar Association – a bomb went off, killing eight. In a hasty meeting, another judge asked Justice Jillani whether it would be best to adjourn the upcoming court case. ‘Absolutely not,’ he said. ‘Let them blast the court. We will announce the judgment on the street, on Constitution Avenue.’
But when the Tehreek-e-Taliban Pakistan ripped through All Saints Church in Peshawar in a twin suicide attack during Mass – Pakistan’s deadliest-ever attack on the Christian community – it was Justice Jillani that led the pushback.
So it was that the man many had thought would embody judicial restraint with the same constancy Justice Chaudhry embodied judicial activism, delivered the broadest interpretation of freedom of religious expression in the country’s history. In a land where Christian couples are immolated, where Hindu girls are abducted and converted, and where Shias are massacred in buses, the Chief Justice played what could have been a losing hand with skill and courage.
In his farewell address, Justice Jillani recited, ‘Maana ke iss jahan ko gullistan na ker sekay, kaantay tau kuch hata diye guzray thay hum jahan se.’
Suo Motu Case 1 of 2014 finally clarifies the Great Unclarifiable: Article 20 of the Constitution – the freedom to profess, practice, and propagate religion. It establishes that religion cannot be defined in rigid terms, and construes the term liberally to include freedom of conscience, thought, expression, belief and faith.
And it states unequivocally, ‘The very genesis of our country is grounded in the protection of religious rights for all, especially those of minorities.’ While it is hard to undo a half-century of Muhammad bin Qasim warrior lore in a single judgment’s obiter, it seems one judgment, and one man, can go a long way.
In his farewell address, Justice Jillani recited, ‘Maana ke iss jahan ko gullistan na ker sekay, kaantay tau kuch hata diye guzray thay hum jahan se.’ In one of the shortest tenures for any Chief Justice, Tassaduq Hussain Jillani cemented his place among Pakistan’s greatest.
Suo Motu Case 1 also issued directives the federation required ten years ago: a federal task force to encourage tolerance, a special police force for minorities’ places of worship, curricula reform, a national council for minorities’ rights, the punishment for hate speech, and the enforcement of quotas for minorities.
Now a year later, at the PILER conference, with not a single directive having been implemented, the state is in the crosshairs. And representing that great bastion of pluralism, the ruling PML-N, is Barrister Zafarullah Khan, the special assistant tot the prime minister. After an effective address on how the state was doing its best, the barrister pauses. What follows is poetry in motion.
‘Minorities’ is not an expression he prefers, explains Barrister Zafarullah, as Islam ensures the composite oneness of the community. Barrister Zafarullah also urges consensus with gents skewing more to the right: he is bemused, he says, that his suggestion to sit down with Maulana Sherani – boss of the Council of Islamic Ideology, on loan from the far-right JUI-F – was scoffed at by civil society types.
The attendees look on aghast. As everyone knows, Maulana Sherani is a wonder of science: one of the original cavemen that froze in suspended animation. Best known for his take on child marriage (legal) and DNA evidence in rape cases (inadmissible), the proposition is tantalizing: meeting Maulana Sherani halfway – i.e. advancing from the Stone Age to the medieval era – just might be doable.
But the note the gentleman barrister concludes on is ominous. ‘Samaj ki reactionary quwatton ko uchalna koi munasib baat nahin hai (inciting society’s reactionary forces isn’t the appropriate thing),’ he says softly, and ends his address. He is very right – yet this would also mean that those fighting for change would do best to roll over and die.
He is supported on the podium by the PML-N’s Ramesh Kumar Vankwani, who similarly pooh-poohs the phraseology of ‘minorities’. As a Hindu partisan in Nawaz Sharif’s Muslim League, one can sympathise with Mr. Vankwani and his thankless situation. But his worldview may be part of the problem: the white in Pakistan’s flag was never meant to represent minorities, he says, but peace itself.
The state’s words at once bring to bear America’s Clarence Thomas, perhaps the least-qualified Supreme Court justice serving today. Justice Thomas was the proverbial unicorn – a black Republican – and thus handpicked by the elder Bush to sit on the bench. Thomas’s judgments proceeded to shock the world as some of the most conservative Supreme Court opinions since the 1930s.
Among them was Thomas’s pet take on race: that the constitution was colour-blind, and to draw attention to black rights was to defeat the purpose of an equal society. His judgments thus took a slow hatchet to race quotas and affirmative action. For a man who sits on the highest court in the country by the grace of a Yale degree for the underprivileged, this was breathtaking.
Messrs Zafarullah and Vankwani would no doubt agree with Justice Thomas’s philosophy, singing songs about their ideal society with notes so high, no non-Muslim could ever dare reach it. Which brings us to the millstones around the judiciary’s neck: from Justice Cornelius in Tamizuddin to Justice Mulk and military courts – the executive can only be pushed so far. President Andrew Jackson is rumoured to have screamed of one of Justice John Marshall’s judicial decisions, ‘Marshall has made his decision. Now let him enforce it!’ So too are the judiciary’s most ambitious intentions at the mercy of the state.
Thus the need, perhaps, to also make a case to the people. The floor is given to Justice Jillani, whom quotes Justice Learned Hand: ‘Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.’
Justice Jillani’s judgment did much to plead with liberty, and forgive us for the sins of the past. But with cruel and conscious neglect at the hands of the state, liberty may yet die in the hearts of men and women, if it hasn’t already.
A man considered the opposite of Clarence Thomas once said, ‘The arc of the moral universe is long, but it bends towards justice.’
Pakistan too will get there, one judgment at a time.
Asad Rahim Khan 