Days of Rage

Published in Herald – cover photo by Arif Ali

‘The Sufi sheikhs,’ a Sufi saint once said, ‘are physicians of men’s souls.’ For those touched by Data Ganj Baksh’s teachings, this is a familiar pearl. Yet one wonders what the beloved sage would say ten centuries later.

For while the sheikhs remain physicians, there are judges that may be sheikhs. History records that Hafez held no hammer, that Saadi invoked no suo motus (despite need of them against his Crusader captors).

Yet that strange summer of 2015, the two poles – mystic and magistrate – came together. For 23 days, the 23rd Chief Justice of Pakistan held court. And for 23 days, the state stood on the verge of a nervous breakdown: bureaucrats went underground, politicians trembled in fear, and lawyers fled the country.

The saints inspired devotion. Jawwad S. Khawaja inspired dread. If indeed he could see into men’s souls, he saw only the plague.

‘Judicial activism’ sounds a cliché to the ears now. But by the time the judge stepped down, scores of sacred cows had been thumped: real estate barons, Arab princes, elected prime ministers, the security establishment, the bar associations, even the old ghosts of the Raj.

Rage rained from the skies. To the critics, it was a mission to civilize – a throwback to the days of the mad king, Iftikhar Chaudhry, making the law as he went along, hunting in pairs with Jawwad S. Khawaja. To the fans, it was a bold new era: the fear of Lady Justice returning to the rich and powerful, the law smiting the lawless.

Not that it was ever meant to be this way. On the eve of his appointment as Chief Justice, the Dawn report read, ‘Justice Khawaja is unlikely to have much of a legacy because…his tenure will last merely 23 days.’

Other reasons ran subtler; by the time he took over, the soldiers of judicial activism were in retreat: Iftikhar Chaudhry’s name had taken a clobbering, the military was riding high again, and Nawaz Sharif 3.0 aroused little of the wrath the People’s Party once had.

Not that it mattered. ‘In him, we have an ascetic thinker of vision,’ said outgoing Chief Justice Nasir-ul-Mulk, though his own vision – judicial restraint – was worlds away from ‘the new human order’ Justice Khawaja had planned. And had Nasir-ul-Mulk been born a month later, Jawwad Khawaja may never have been Chief Justice at all – such be the vagaries of the seniority principle.

Indeed, far from having ‘little appreciable impact’, as the press’s English-medium gurus no doubt wished, it soon became apparent that some legacies ran deeper than they appeared.

But the judge had known that all along. ‘Most of the jurisprudential developments made by the Supreme Court during the tenure of Chief Justice Chaudhry are here to stay,’ Justice Khawaja had written, a year before taking up the same office, and carrying on the same project:

As Hafez (the peerless sage of Shiraz) says, having glimpsed, however fleetingly, the reflection of the Face, it is not possible to regress into a previous state of unseeingness:

ما در پیالہ عکس یار دیدہ ایم
اے بےخبر ز لزت شرپ مرام ما

In this cup I have seen the reflection of His face,
Little do you know about the pleasure of my wine

For Justice Khawaja, at first they were blind, but now they could see.

9 September marked the last day of the last Chief Justice, and it served as more than a metaphor. All Islamabad was at war: the full-court reference in his honour was boycotted by the Supreme Court Bar Association and the Pakistan Bar Council.

But even when it was all over, the judge refused to hold fire. In the harshest farewell address in memory, His Lordship first scorned what went with such ceremony, ‘Jis mein kuch tareefi kalmaat kahay jaatay hain, aur nizam-i-adl ki behtari ke liye kuch tajaweez ki jatay hain. Main inn anmol ghariyon ko rasmi kalmaat ki nazr nahin karna chahta. (In which some praise is showered on the justice system and some suggestions are made for improving it. I do not want these priceless moments to go waste in mere ceremony.)’

Justice was neither inexpensive nor speedy, he declared. Not even the Adalat-e-Uzma was spared: with the help of his staff, he had determined the average case, from registration to ultimate Supreme Court disposal, took a whopping 25 years.

And it was fear – base, judicial fear – that was one of the speech’s major themes. ‘Baaz auqaat main ne adal ke aiwaanon mein khauf ke ka’ee roop dekhay (at times I saw fear stalk the halls of justice),’ he said, as his brethren on the bench stared at the ceiling. It was khauf – the tremor that ran through the judges’ hearts – that kept them from the light of justice.

His Lordship carried on in the purest Urdu, yet another cause célèbre of the Khawaja Court. Ending with one last Sufi couplet, Jawwad S. Khawaja was gone from the scene as rapidly as he had appeared.

Or at least, the bench today would certainly like to think so. In sunny contrast, current Chief Justice Anwar Zaheer Jamali remarked last month that the ‘time-tested judicial system has no defects’ (with 20,000 cases pending before him).

And as Justice Khawaja’s successors begin reversing his decisions left, right and centre – with the sort of speed rarely ever in evidence at the Supreme Court – the shadow of the 23rd Chief Justice of Pakistan seems only to lengthen. But the more stubborn the shadow, the harder it is to understand.

Jawwad Sajjad Khawaja was born in Wazirabad in 1950, and it’s only fitting the story be surreal from the start: Laaldin, a family servant, would call him ‘Judge Sahib’ even as a child.

‘I still don’t know why Laal would call me what he did,’ the judge says when this publication sat down with him. He’s back at his old sanctuary, Lahore University of Management Sciences, as scholar-in-residence (it was LUMS he took solace in after resigning in 2007, and to LUMS he returned after retirement). His Lordship is infamously averse to the press – the only other interview he granted was to Suhail Warraich a decade ago. But the press certainly isn’t averse to covering him.

Attending Berkeley in the ‘70s – the campus ablaze from Vietnam and Watergate – he returned to Lahore and entered practice. Forty years and three oaths of office later, not a smidge of evidence of that life – plaque or prize – can be found in his office.

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A.R. Cornelius with Jawwad S. Khawaja

The lone photograph is of A.R. Cornelius, gazing down benevolently at his protégé, partner, and eventual executor of his will.

The association runs deep; fellow Chief Justices, 45 years and nineteen incumbents apart. A quarter-century after Cornelius’s passing, the judge’s voice still wavers, ‘He was a genuinely humble individual, with immense moral and intellectual integrity. As time went on, I realised one of the reasons I felt I could act independently and decide cases “without fear or favour” – which is in the judge’s oath – is that Cornelius sahib embodied this quality; I think some of that had to have rubbed off on me. He lived in a very humble room in Faletti’s Hotel, and was amongst the most contented persons I have come across in my life.’

It’s an odd pairing, both caricatured in their day as the gentle Catholic and severe Sufi. But raging against the rich is a common thread: as Cornelius once put it, ‘For our people, affluence is poison.’

His pupil’s ambitions, too, seldom scaled the financial: ‘If I were to define today’s world…that value system which is not drilled into you, but is imbibed, forms the basis of your nature and your thinking,’ he says.

‘At home there was an emphasis on consideration for others, rich or poor, relatives or strangers – but now just too many things revolve around money and self-interest…wherever you go, it’s not the same, it’s career-oriented: you do law, medicine, or an MBA, you get on a trajectory, you get a good job and you acquire instead of education, the ability to make money. That whole orientation – the element of values and humanness is mostly sidelined.’

Ronald Reagan’s biographer was said to have had a meltdown, so elusive was his subject. The easiest thing, perhaps, would be to deem His Lordship unknowable and move on. As he told Mr. Warraich in 2007, ‘We get so caught up in material life that we take it to be the only aspect of existence. There is another dimension to our lives as well, but I wouldn’t use any term for it because it’s impossible to describe it in words.’

Indeed, the closest anyone’s come to capturing the judge’s soul is Adalat-e-Aliya Ke Qasid Ki Kahani: an ageless qasid of the Lahore High Court, Ali Rehman’s memoirs are rich and readable (more, perhaps, than the literary attempts of many of our ex-judges).

But unlike the endearing Ali, the picture he paints of his boss is otherworldly: the judge is no less than the saints that show up in his writings. ‘Even before writing about his personality,’ writes Ali Rehman, ‘my hands start shaking that I not desecrate him.’

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Kali Mai’s temple in Thar

The judge, we are told, takes no days off in years. He attends few social events, and turns up to weddings at eight – for Lahore, indeed sainted behavior. He refuses the plots of land allotted him (this was corroborated at both High Court and Supreme Court levels). He hefts only homeopathic pills, even when burning with fever. He seeks out the shrines of the saints. He observes budding flowers with tajassus. On mandatory holidays, he walks across mountains, valleys, and deserts.

Real-life mechanics don’t apply either. In one instance, the judge strides into court in the morning, when the staff learns his house has caught fire. Such is His Lordship’s terror, they debate whether to tell him at all.

Ziada se ziada jhaar par jaie gi,’ Ali Rehman reasons. ‘Yoon bhi jhaar maan-taihat ke liye aizaaz ka darja rakhti hai. (The most that can happen is a dressing-down. That in itself is an honour.)’

And so the trembling qasid scribbles a note, and places it in front of His Lordship mid-proceedings. To everyone’s shock, the judge flicks it aside. ‘Now we were in for it,’ Ali Rehman writes.

While the staff runs in circles, the phone rings again: the fire has been brought under control; a table is the sole casualty. Nonetheless, Ali Rehman’s heart races. When the judge does retire to his chambers, he asks about the house.

Our hero tells him the truth: the fire has been doused with water and dirt. What the judge then speaks imprints itself on his qasid’s heart. ‘All the water of the Ravi and all the sand of Cholistan would not be able to tame the flames,’ Justice Khawaja says. ‘Oye Ali Rehman, it is God that set the fire and God that put it out. And we have neither the nerve nor the courage to snap a twig without His consent.’

Such is his unearthly charisma, Ali Rehman weeps when the judge resigns. 19 March becomes the darkest day of his life, ‘Hum sab ko be yaar o madadgaar aur beganon ki taranh [judge sahib] chor ker chalay gaye (he left us all, friendless and helpless).’

19 March came on the heels of 9 March 2007 – terrible PR even for Pervez Musharraf: the general had sacked the Chief Justice of Pakistan. To summon the country’s supreme adjudicator to the Army House, quiz him in khakis, and suspend him outright, was outrageous. And it was all that was needed: Iftikhar Chaudhry had become myth, martyr, and Mazzini in a single afternoon.

The next week, Jawwad S. Khawaja had begun his day per routine, but he could neither work nor focus. 9 March had ‘shattered this belief of mine’ that no one dare interfere with the performance of his constitutional duties. ‘What did I matter when the Chief Justice could be treated in such a way?’

According to Ali Rehman, His Lordship spent the morning studying the Constitution (and the Divan-e-Hafez) in depressed silence. According to the judge, he postponed the day’s hearings, returned home, and told his wife he couldn’t work anymore. After collective revolt found no takers at the Lahore High Court, he struck out alone; Pakistan’s only judge to have resigned. He had never met Iftikhar Chaudhry.

Justice Khawaja’s exit was the beginning of the end – the Lawyers’ Movement exploded around the same time. Over the next two years, the general would fly out and the judges would Long March in. Justice Khawaja, far from the madding crowd, would be leapfrogged to the Supreme Court.

Yet all that came later. For qasid Ali Rehman in 2007, there was no reason to live; his ‘whole world had been snatched’ from him. ‘Just recounting that accursed day [when he resigned] makes my heart and eyes weep tears of blood.’

But the clouds lifted when he realized there was a spiritual connection between him and the departed justice.

 Only then, he writes, did his tears dry.

After taking a second wife, the applicant was asked for maintenance from his first. He not only divorced her, he also applied for a DNA test, to refute the paternity of his children from the first marriage.

The case made it to the highest bench in the land. Ruled the Court, ‘It is worth taking time to reflect on the belief in our tradition that on the Day of Judgment, the children of Adam will be called out by their mother’s name.’ The Divine Being had ‘taken care to ensure that even on a day when all personal secrets shall be laid bare, the secrets about paternity shall not be delved into or divulged.’

Thus Jawwad S. Khawaja rejected the application for DNA testing. The law, he held, protected children from ‘unscrupulous fathers’.

But who would protect fathers from their unscrupulous sons? And if indeed Iftikhar Chaudhry had brought the rest of them out of the ‘state of unseeingness’, had he been so blinded by his own child?

2012 was Chaudhry’s annus horribilis. In the dead heat of summer, people switched on the same television that had once catapulted the 20th Chief Justice to glory, and watched his legacy turn to ash.

Malik Riaz Hussain, real estate tycoon and self-admitted wheel-greaser, was on air. His story was sensational: he had plied Arsalan Iftikhar, the CJ’s son, gifts worth millions of rupees. In return, Arsalan had promised to influence his father’s rulings.

Riaz was his folksy self, ‘You’re saying I buy [people]? No one’s going after the guy who put the whole store on sale.’

As leaked clips later demonstrated, his interviewers were planted – the press, it seemed, was as compromised by the Baron of Bahria Town as Arsalan was.

When the story of dissolute sons is written, Arsalan Iftikhar Chaudhry, the doctor-cum-FIA-trainee-cum-police-officer-cum-telecom-mogul, may not warrant the coverage of an Uday Hussein or a Randolph Churchill. But he bookends the story of his father’s fall, rise, and fall (or rather, suspension, restoration, and retirement): part of the reason General Musharraf sacked the Chief Justice was the younger Chaudhry. Much of the reason the Chief Justice fell out of favour five years later was, again, the younger Chaudhry.

After the Riaz interview aired, the CJ chaired a special session of the full court, with all seventeen judges. Yet between the alleged sins of Arsalan and the admitted sins of Riaz, the CJ thought to shoot the messenger instead.

As video cameras roll, the Chief Justice is at his mad king worst: hauling up the Pemra chairman. It becomes evident, as Justice Tassaduq Hussain Jillani balefully looks on, that Lear’s vanity is wounded.

So this means you don’t watch what’s going on, on the television? […] Then why not you have taken action [sic]? Day in and day out, when the judiciary is being ridiculed, toh for what you people are sitting there [sic]? [The registrar said] this is all whatever the conspiracy was being hatched against the judiciary, it is now being unfolded [sic].

Yet the truth lay somewhere in the middle: far from a conspiracy of Masonic proportions, the Chief Justice’s son was on the take. He had handed his father’s many enemies – including Bahria Town’s political patrons – a sword, and they were twisting it in.

It could only end one way: Chaudhry now took suo motu notice of his son’s adventures, and summoned the principal law officer of the land.

Enter Irfan Qadir, Attorney General. After a thirty-year thrashing at the hands of the judiciary, the PPP government had gone for the biggest bruiser it could find. As AG, Mr. Qadir proved the state’s weapon of choice: a battering ram that refused to be cowed – by a Chief Justice whose restoration he called ‘the biggest bad luck’.

The history between Mr. Qadir and the Chaudhry Court – especially one Jawwad S. Khawaja – is a high-octane Mahabharata. He was removed as a PCO judge via the Court’s landmark ruling in Sindh High Court Bar Association. ‘Around a hundred judges are condemned unheard, when murderers are afforded that right,’ he says. ‘The law of necessity too in overdrive – that judgment, to me, is legal nonsense!’

He was then removed as Prosecutor General, NAB, when the Court ruled his second-time appointment fell under the ‘non-extendable’ restriction for such an office. Having served after a break of four years, Mr. Qadir countered it was a fresh appointment. ‘Through thickets of confused jumbles of fact, rotating the law hither and thither, they turn day to night and night to day. In what way was this an extension?’

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Irfan Qadir, 29th Attorney General

Having tangoed with the Chaudhry Court twice over, he pulled no punches the third round. The AG appeared the next morning before Justices Chaudhry, Khawaja and Khilji Arif Hussain. ‘How on earth could this man be on the bench, hearing his own son’s case?’ asks Mr. Qadir. ‘At the time, I was a lonely soul – all the press, the judges, the politicians were over on his side!’

‘Now Iftikhar Chaudhry tells me, “You must have heard about all this, and I’m sure you are as concerned about your country’s judiciary as we are. It’s not a question of individuals, but of institutions.”

‘So I nod along, but my feelings inside are totally neutral – here I am watching this drama, yet I stand respectfully. On the spur of the moment, I said, “Sir, the case is against a person who perchance happens to be a son of the Chief Justice – he is a son of the soil, not a son of the judiciary.”’

Mr. Qadir cited the Judges’ Code of Conduct – ‘which they’d drawn up themselves’ – that a judge decline cases of close relatives. ‘And sir, can there be a closer relative than one’s own son?’

It took two more days for the CJ to come around, i.e. that this was indeed a hideous conflict of interest, and recusing himself.

In the ultimate opinion, Justice Khawaja held it was not their scope to rule ‘on the guilt or innocence of those involved.’

Mr. Qadir’s smile is triumphant. ‘I was implying all along this isn’t a suo motu – public interest litigation is not a matter between individuals. But that’s exactly what they held in the end: that this is a matter between individuals. So how did you find the jurisdiction to take a suo motu in the first place?’

For His Lordship, the ruling’s critics have invariably not read the actual judgment: the only reason for the suo motu was that ‘the judiciary was being undermined by a whispering campaign, innuendo, and unsubstantiated rumour […] Now, those who are detractors of the Chief Justice, they would want to hang both him and his son. But the decision makes transparent that, on one hand, there’s this man, 28 or 29 years old, who happens to be the son of the Chief Justice. That he may be highly ambitious and prone to temptation and a flashy lifestyle may, for the sake of this conversation, be assumed. Now if you have lived in Pakistan and have a relative who holds an influential public office, you may be swamped by sycophants or “money-bags”. There will be many in our society who will want your friendship, and many temptations in different forms may also be offered to you. If you’re tempted, either in innocence or knowingly, you may fall in with such people. We proceed on that premise for the present purpose.

‘Then on other hand, there’s this 62-year-old businessman who has made a lot of money in a short span of time. For the present, we can ignore an inquiry into the manner in which the fortune has been acquired. There is however a strangeness to his actions and his dealings with the son of the Chief Justice, which may suggest a method explaining his riches. He is not coy about making the claim that he attempted to bribe the Chief Justice through his son. However, in the statement submitted by him in Court he acknowledges he did not receive any benefit, although for 3 long years.’

When the Court gave him a chance to clarify, Riaz repeated himself: the bribe had flopped.

The judge is sardonic about it, ‘It may well be that in his business model he may not have encountered failure previously […] As far as I’m concerned, the whole purpose of the suo motu action was complete there and then.’

Ruled the Court,

It is our expectation that [the Attorney General] will set the machinery of the State in motion so that all those who may have committed any illegal acts, including Malik Riaz Hussain, Dr. Arsalan, [and Riaz’s son-in-law] etc. are pursued and brought to book with the full force of the law.

So Mr. Qadir sent off a letter to NAB, and that was that. But what the judge called a ‘dark and sordid affair’ was far from over: it emerged, when hearing Arsalan’s review petition, that the AG had represented Bahria Town in the past. Mr. Qadir thus wound up with a show cause notice.

 ‘The whole brunt of the matter now shifts from Arsalan to Irfan Qadir,’ the ex-AG says. In reply, Mr. Qadir wrote he made no statement in favour of Riaz; that Iftikhar Chaudhry’s delayed recusal had tainted everything; and that it was never the Attorney General’s function to set the ‘machinery of the state in motion’ in the first place.

He did it anyway, Mr. Qadir shot back; de minimis non curat lex: the law does not concern itself with trifles.

Bahriagate opened as it ended, in fog and fury. But while the judge and the AG would go all twelve rounds later, another line in the sand had been drawn.

The term ‘nemesis’ comes from the Greek goddess of vengeance – meaning either an archenemy, or an ‘inescapable agent’ of one’s downfall. In the epic clash between Jawwad S. Khawaja and Malik Riaz, nemesis denoted all three.

No two were less alike: Jawwad Khawaja, the ascetic born wealthy; Malik Riaz, the poor boy that struck it rich. Jawwad Khawaja, who plumbed the depths of Sufi lore; Malik Riaz, whose monuments to cultural illiteracy (desi Nelson’s Columns) grazed the skies.

Between the two gentlemen, there could only be more casualties.

Taking oath

It’s a weird thing, the houbara bustard; tame and terrified-looking. That the fate of these poor birds – the size of small turkeys – would become a burning judicial question, was unlikely. Less likely, still, was that they’d fall prey to visiting Arab princes: according to an old desert whisper, houbara flesh is good for virility. How one’s manhood benefits from blasting birds out of the sky is another question.

The state took a rosier view – that the royals brought roads and riyals with them, to aid their debauched ways. But barely three days after taking office, the new Chief Justice banned houbara hunts. The laws of Pakistan, the Court held, are ‘not saleable commodities’, to be bought by mangy poachers from the Gulf.

It was the first salvo in a volley of indiscriminate firing. ‘[The government] isn’t about to appear before Jawwad Khawaja, any of them,’ veteran malcontent Shaikh Rasheed told a TV anchor. ‘They’ll be running for the hills, or going on vacation.’

For once, Sheeda was right. Thinking it best to sit the summer out, state functionaries hightailed it out of the country (some with return tickets for 9 September, the day the judge stepped down).

Part of it was packaging: the judge’s legendary volatility on the bench. For Mr. Qadir, ‘Justice Jawwad has always been in the habit of sermonising, haranguing and ridiculing the institutions of the State, its officers and the litigant public.’

Asher A. Qazi, a lawyer who clerked for the judge from 2010 to 2011, then again when the latter was Chief Justice in 2015, sees it differently. Since contempt proceedings proved ineffective in ensuring compliance, the Court took the gloves off, ‘Keeping a case pending, calling for reports and making senior executive functionaries continuously appear before them till compliance is achieved.

‘The idea was simple,’ he says. ‘Beizzati kertay hain logon ki (give people a drubbing), and if they do it in open court, shayad ghairat jag jaie (perhaps others would take action for self-respect’s sake).’

It seems strange to remember now – the Supreme Court having since sunk back into colourlessness – the hysteria that greeted this man’s elevation: the ponytailed qazi of this conservative republic, making one last stand.

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Jawed Iqbal for Jang, 20 August 2015

The Urdu press swooned over the judge taking oath in Urdu; cartoons depicted him spurning a litany of plots and privileges (which he did, to his great credit); middle-class sentiment embraced his refusal of bulletproof cars  – if redolent of a Tassaduq Jillani than an Iftikhar Chaudhry.

Meanwhile, this publication satirized the judge as a diarist given to sanctimony (‘I don’t want to use a bulletproof car; it is my experience that bulletproof cars only tend to attract heavier ordnance, like bombs’). Bloggers cried anarchy, while op-ed columnists, too, shook their heads over the judge’s ‘irrepressible inner calling’: a ‘belief that subjective morality, divinely inspired, can trump the menial constraints of man-made law.’ The as-irrepressible Irfan Qadir sahib was on national television, calling his term a ‘judicial nightmare’.

But as far as nightmares went, it certainly cancelled out other nightmares.

Because Jawwad S. Khawaja went charging where angels feared to tread. ‘[His] finest moments came when he heard the cases of missing persons,’ a former deputy attorney general said. ‘He was the epitome of justice,’ resulting in the defence minister registering FIRs against serving military personnel.

For others, it was when the judge struck down military courts in the 21st Amendment Case. Others, still, hold up Makro-Habib, where he ruled against the Army Welfare Trust swallowing up a public playground in Karachi. Though these boys were straight out of Kafka, His Lordship was unmoved by the establishment.

Or anyone else – his derision for NAB a case in point. ‘Dou saal se takrein maar rehay hain (you’ve been running into a wall for two years),’ the judge said of the OGRA inquiry, before ordering another against the corruption watchdog’s own ex-chairman (for corruption).

By the time he declared he’d review the ever-expansive DHA Ordinance, all tin gods had come crashing down. ‘Five overs ke power-play khelnay aaye hain,’ tweeted one citizen (he is out to play a five-over power play). But it was an innings the other team dodged, ducked, and dove for cover.

Especially Bahria Town. For the press, the new Chief Justice had unfinished business with the Bahria bunch. Accused of swiping over a thousand kanals of forest land from Rawalpindi, Bahria’s legal team called the whole thing a witch-hunt – and Courtroom Number One again saw scenes of fire and brimstone.

Despite reserving judgment, the bench did not award a final verdict. His Lordship does not consider this a loose end: though Bahria’s legal team left ‘no stone unturned to get the case adjourned,’ the bench took steps, including a criminal case being lodged ten years after a complaint by the Forest Department. ‘No wonder cases are not decided expeditiously,’ the judge says, ‘and a perception is created that the lawyers, police and courts are complicit with criminal elements and mafias with deep pockets.’

There was no such question of loose ends when it came to another pitched battle: Justice Khawaja and Irfan Qadir went pound-for-pound to the end, sending TV tickers in a frenzy.

Had Arsalan Iftikhar been the only sticking point, perhaps there might have been an Irish peace – instead there were constant skirmishes: on a petition that the PPP government was not acting against General Musharraf’s treason charge, Justice Khawaja had asked Mr. Qadir’s opinion – had the general committed high treason?

‘By this Hon’ble Court’s reasoning,’ the then-AG said, ‘let’s assume General Musharraf has committed high treason, and that removing thirty judges in violation of Article 209 constitutes high treason. Then sir, all those judges who are now on the bench of this Hon’ble Court, have removed over a hundred judges in violation of Article 209, and that is aggravated high treason! If law is to be applied equal, those judges should be tried for treason before General Musharraf!’

It could only have escalated.

By 2015, the Unstoppable Force again met the Immovable Object, with Mr. Qadir defending the Sindh police’s contract with the Serbs for 16 armored personnel carriers. With mercury rising, Mr. Qadir sought the judge’s recusal – the judge suspended his license, in a 4,000-word order covering four years of ‘persistent objectionable behaviour’ (the contract was also struck down).

To court reporters long witness to this tug of war, Justice Khawaja had at last concluded the Mahabharata. But it was Mr. Qadir that wrote the epilogue: towards the end of the Chief Justice’s term, Mr. Qadir requested the president take action – in a letter listing everything from ‘eccentric behaviour’ to suspending lawyers’ licenses over ‘personal vendetta’.

Vendetta or no, the judge’s rage was undiscerning – whether it be the ever-doddering NAB or the ever-present establishment.

When asked about the fear that goes hand-in-hand with such cases, the judge’s answer is typical, ‘Fear of what? […] I have received life threats against my family and myself. I feel blessed I have not been intimidated or deterred in the performance of my duties. […] There was no pressure, though there was a feeling of disgust at the moral and ethical decay which appears to have permeated society. If someone is going to fear a banner or a television show, one should quit office. I consider myself very fortunate that my wife and children also think the same way. There is a Bigger Power, and when this Omnipotent Power puts faith in your heart, there’s no one else out there who can take it from you.’

Justice Khawaja again quotes Hafez, an old favourite, ‘Once you are shackled in the yoke of the Beloved, you are freed from all other chains of enslavement.’

No doubt this kind of conviction is dangerous. For the rest of us mortals, the ‘chains of enslavement’ are real: that’s why they invented the recusal. But His Lordship doth not recuse himself: not when he heard Arsalan Iftikhar; not when he heard petitions against his own relative, Geo’s Mir Shakil-ur-Rehman; not when he suspended Mr. Qadir’s license; not even when Bahria Town’s legal eagles begged Justice Mulk recuse him.

Why? As the judge rebutted his accusers during Musharraf’s treason case, ‘Only those stand scarred who are not with the truth. We cannot be fearful of anything.’

An idea itself scarring – to deny feelings of weakness and prejudice and inadequacy, is to deny the human condition.

Asher sees it otherwise. Confronting him over not stepping down from the Geo case, Asher was told, ‘If I recused myself, I would be doing so out of fear of social consequences and not owing to my conscience.’

As when anti-Khawaja banners ‘popped up’ across Constitution Avenue, the judge dove in after the shadow world they came from.  ‘He is someone who has lived his life with a belief in destiny,’ Asher says. ‘When you live your life that way, you become fearless. That doesn’t mean that he’d jump off a plane without a parachute – it simply means that in living his life he has ignored or not given much importance to issues which concern most of us.’

But issues that concern most of us include one of Justice Khawaja’s profoundest legacies: the constant expansion of original jurisdiction; the storm of suo motus that rocked the country.

For while this generation of jurists rose up against martial law, exorcising the ghosts of Munir and Musharraf, they also sent elected prime ministers home, botched mass-scale privatizations, and bulldozed their way into matters of pure policy – this, while the lower courts remain as dysfunctional as ever.

Justice Jawwad S. Khawaja
Supreme Court portrait of the 23rd Chief Justice

Even Jawwad S. Khawaja had been a lukewarm believer once, ‘more in line with the thinking of an understated judge not overly enthusiastic about the original jurisdiction being exercised by the Chaudhry Court.’

His eureka moment came upon elevation to the highest court in the land: ‘This view, I confess, underwent a drastic change when I was able to actually hear and adjudicate cases brought before the Supreme Court [under Article 184 (3)].’

A change so drastic that, for His Lordship, judicial restraint may well be an abdication of responsibility now. ‘A person may argue for ‘restraint’, and watch the katchi abaadi being demolished,’ he says, ‘particularly when there are many influential persons who have occupied state land with impunity and without fear of demolition of their homes or eviction. Nor is restraint an option where the houbara bustard – an endangered species – can get exterminated as a result.’

To the critique that the bench ventures into unknown territory, guided more by manmaani than the rules, he remarks, ‘A lawyer in eighteenth-century England cynically commented that the principles of equity in England varied as did the size of each Lord Chancellor’s foot. Through precedent spanning 300 years, there is now a degree of certainty in English equity jurisdiction.

‘The point is humein jooma jooma aath din huay hain Article 184(3) ko dekhtay (it is only very recently that we have started looking into the suo motu power), and already the contours of this jurisdiction are reasonably well defined.’ There are many decisions, he points out, that lay down a set of parameters ‘as to where and how this jurisdiction should be invoked: that it’s not as if it’s whimsical.’

Regardless, ‘this is an invalid, uninformed criticism based on a lack of understanding, due diligence, knowledge, and empirical research by commentators.’

But what of the criticism, both valid and informed, that it derails the Court from regular matters?

‘These kids (my former law clerks) told me another story,’ the judge says. ‘Only one or two benches from many more were hearing such cases, and less than 1 percent of cases – yes, that’s right, less than 150 cases out of over 20,000 instituted in the Supreme Court each year – are taken up by the Court under Article 184(3); and of these not more than 30 in any year are suo motu cases.’ Even of that one percent, ‘most were being heard after regular Court hours.’

His Lordship contrasts the hard data with hot air in the press, ‘The space taken by [a column] or by news coverage of a case has no relation to the time spent on it by the Court. Judging the use of court time on this basis is in my opinion, quite mindless and silly.’

Feisal H. Naqvi, advocate of the Supreme Court, raises another ground, ‘The issue isn’t the amount of time spent on hearing suo motu cases and whether the Supreme Court could have been deciding X or Y instead,’ he says. ‘The issue is the expansion of original jurisdiction as a routine event because once the Supreme Court takes notice of something in its original jurisdiction, it’s already committed to a certain view of the matter. It’s something that they teach salesmen: once a customer signs on to anything, then selling them options is easy because they’ve already committed.’

And the judge is certainly committed – he takes no prisoners affirming his suo-moto­-ism: the consequential good, he says, is limitless. ‘This is a people-friendly jurisdiction and its use has had immense benefits for the large number of people who are underprivileged and don’t have the means of accessing the prevalent judicial system which is both expensive and prone to unacceptable delays.’

Here’s where the critics of judicial activism – this publication included – give in to resignation: more often than not, there is, to paraphrase Justice Khalil-ur-Rehman Ramday, ‘a stinking rat’ in the workings of the state, which then acts as moral rocket fuel for the judges to do as they like.

‘Thus if such persons who may be in lakhs can be assured their rights through one suo motu action,’ Justice Khawaja says, ‘without much delay or expense, the exercise of such jurisdiction is fully justified.’

His Lordship’s eyes drift to the window. ‘A sensitive person will see this immediately.’

Jhok Sharif - Sufi Inayat Shaheed Tomb - Flikr - 2011 - 01.jpg
Shah Inayat Shaheed’s tomb, Jhok Sharif

Back in 1710, Sindh was simmering under Aurangzeb’s great-grandson – the feckless Farrukhsiyar. Local landlords jostled for turf, maulanas spread hatred, and the masses knew nothing but poverty (alas poor Sindh, beholden to idiot dynasts and vicious waderas three hundred years later).

The man of the hour was Shah Inayat Shaheed. A Makhdoom from Multan, Shah Inayat left his family’s wealth and became a wanderer, falling in with a saint in Bijapur. He returned to Sindh a changed man, giving away all his land to the tillers (over a century before Marx wrote Das Kapital).

Shah Inayat Shaheed is the Ho Chi Minh of the Sufis: a guerrilla poet against the Mughals and their minions. Finding a land riven by greed and superstition, he revolted against everyone – leading the peasantry against the feudals, the mullahs, and all the king’s men.

And it was with Shah Inayat Shaheed – not Denning or Dicey – that His Lordship closed his farewell address, and his sixteen years as a justice of the superior courts, in the end.

‘Some persons have been critical of my use of Farsi or Punjabi verse in my judgments,’ the judge says. ‘I suppose this is on account of their personal choice – it seems they would be quite happy if I were to quote Shakespeare.’

This is a running theme; the ‘need to wean ourselves off the colonial bosom’. Justice Khawaja has little use for Pakistan’s Anglo-Saxon inheritance: he finds it a colonial construct driven by Lord Macaulay and the fellow travelers of Bentham, John Stuart Mill and his father James Mill.

For the judge, the Constitution of 1973 makes a break with the Raj for good. Thus theories alien to Pakistan – be it India’s basic structure or Bracton’s doctrine of necessity – are bad ‘organ transplants’. It is time that we bear in mind our ‘zamaan, makaan aur ikhwan’ (time, place and people) instead, he says.

Which is what the Chief Justice took up on his last day: in a final kidney punch to the state, the judge directed Islamabad and the provinces to adopt Urdu in place of ‘a colonial language which cannot be understood by the public at large’.

But to turn to the legal sphere, would undoing – or translating – a century of hyper-technical precedent in English, cribbed via common law, be at all manageable?

‘Manageable or not manageable,’ Justice Khawaja says, ‘I consider myself to be a constitutionalist, having taken an oath to preserve, protect, and defend the constitution. Our constitution says, this is how it shall be, and so it shall; it’s that simple. It’s not about whether we like it or not.

‘In fact, being myself a product of educational institutions like Aitchison and FC College, it would be easier for me to write my judgments in English, but my own comfort can never be a reason for disobeying a constitutional command.’

Thus the judge took to writing his opinions in Urdu, citing yet another Multani saint, ‘A bibi brings her child to Baba Farid, says he eats too much shakar (sugar). Baba Farid tells her to bring him back in a week. So she brings him back and Baba Farid says, you should not eat so much shakar. The mother says, you could have told him as much a week back. And so Baba sahib says he could not have done so because at that time he was himself eating shakar.’

Clerking for the judge at the time he announced his Urdu decision, Asher is clear-eyed, ‘In a sense, the decision, if implemented, may put me out of job in the long run. But if you put your own situation aside, and think about the issue sincerely, about the guy in the street – if you want that his children ever have a chance, then which way would you decide?’

Quite the opposite, if the current bench had its way. In the six months since the Chief Justice stepped down, the Supreme Court has run in the opposite direction – going on a spree of reversals of its own precedent laid down mere months ago.

The manner, too, is inelegant: rather than allowing the review petitions to be heard before the original bench that made the decision – as per usual – the SC has instead formed larger benches where the original judges are in a minority.

As one barrister put it,

A message is sent to all governments and litigants that SC decisions and enunciations of law are not final per se — but only final till the arrival of a more propitious time and a review bench with more amenable judges.

In a breathtaking about-turn, the Court even undid the ban on houbara hunts. Whereas Justices Khawaja, Qazi Faez Isa, and Dost Muhammad Khan had authored the earlier ruling, it followed that the latter two would hear the review after Justice Khawaja’s departure. Instead, a five-member review bench was constituted, and Justice Dost Muhammad excluded entirely.

‘The majority view in the review, in my opinion, represents a negation of the common law principle,’ says Justice Khawaja, ‘and the reason is that some judges in the Supreme Court appear not to be aware that Pakistan is a common law jurisdiction. […] So many binding precedents and legitimate questions raised in Justice Faez Isa’s dissent and his earlier interlocutory order, have not even been adverted to, let alone addressed by the majority opinion.’

The decision was not approved for reporting.

And though it’s been seven months since the Chief Justice stepped down, the past is another country: today, trained falcons soar across the sands of Sindh, slamming houbaras to the ground; General Musharraf rides off into the sunset via Emirates, a free man; military courts continue working in the darkest night; and the official language – like that of this publication – remains the Queen’s English.

To be clear, this is not Jawwad S. Khawaja’s Supreme Court. In a sense, it was never his; even as Chief Justice. Why else might a man recite Inayat Shah Shaheed as dusk approaches?

‘I’ve made a vow, to Babar [Mirza] – my student, present here – that we will go to Jhok Sharif in District Sajawal,’ the judge says. ‘That’s where Shah Inayat Shaheed’s dargah is. He was the quintessential humanitarian, and the champion of the oppressed.’

Reads the last verse of his farewell address,

سر بر قدم یار فدا شد چہ بجا شد
این بار گراں بود ادا شد چہ بجا شد

‘The couplet which I have quoted from Shah Inayat Shaheed shows absolute fearlessness, indeed ecstasy in the face of his beheading, which he had predicted,’ Justice Khawaja says.

And for a fleeting moment – when the judge translates the doomed Inayat Shah’s verse – the mist parts. For the length of a breath, His Lordship is knowable.

‘If my head is sacrificed at the feet of the beloved (the Divine) – how wonderful,’ he says. ‘It was a heavy burden; now that it has been removed – how wonderful.’

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