“The Sufi sheikhs,” a saint once said, “are physicians of men’s souls.” For those touched by Data Ganj Bakhsh’s teachings, this is one of his most familiar pearls of wisdom. Yet one wonders what the beloved sage would say 10 centuries later. For while the sheikhs remain physicians, there are judges who may be sheikhs. History records that Hafez held no hammer, Saadi invoked no suo motu (despite needing them against his Crusader captors).
Yet during the strange summer of 2015, these two poles – the mystic and the 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. Chief Justice Jawwad S Khawaja inspired dread. If indeed he could see into men’s souls, he would see only the plagues in them.
Judicial activism sounds like a cliché now, but by the time Justice Khawaja stepped down as the chief justice, 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.
To the critics, it was a mission to civilise — a throwback to the days of the mad king, Iftikhar Muhammad Chaudhry, who seemed to make up the law as he went along adjudging, often hunting in pairs with Justice Khawaja. To the fans, it was a bold new era: the fear of Lady Justice returning to the hearts of the rich and the powerful, the law smiting the lawless.
Not that it was ever meant to be this way. On the eve of his appointment as the chief justice, a Dawn report read, “Justice Khawaja is unlikely to have much of a legacy because… his tenure will last merely 23 days.” Other reasons were subtler. By the time he took over, the soldiers of judicial activism were in retreat: Justice Chaudhry’s name had taken a clobbering, the military was riding high again, and Nawaz Sharif 3.0 aroused little of the righteous wrath the Pakistan Peoples Party (PPP) once had.
Not that it mattered. “In him, we have an ascetic thinker of vision,” said outgoing Chief Justice Nasir-ul-Mulk whose own vision – judicial restraint – was worlds away from “the new human order” Justice Khawaja had planned.
It soon became apparent that some legacies run deeper than they appear. Justice Khawaja knew that all along. “Most of the jurisprudential developments made by the Supreme Court during the tenure of Chief Justice Chaudhry are here to stay,” reads his contribution to The Politics and Jurisprudence of the Chaudhry Court, a collection of essays put together by Moeen H Cheema and Ijaz S Gilani. This was a year before he took up the same exalted office and carried on the same project. He wrote on: “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:
(In this cup, I have seen the pleasures of his face, Little do you know about the pleasure of my wine)."
For Justice Khawaja, people were blind to the possibilities of the court under Justice Chaudhry at first, but eventually saw its achievements.
September 9, 2015, marked his last day as the chief justice, and it served as more than a metaphor. Lawyers were at war with the bench: the full-court reference in his honour was boycotted by the Supreme Court Bar Association and the Pakistan Bar Council. But even though his tenure was already over, the judge refused to hold back fire. In the harshest farewell address in memory, His Lordship first scorned the ceremony for the sake of ceremony “jis mein kuch tareefi kalmaat kahay jaatay hain aur nizam-i-adl ki behtari ke liye kuchh 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 then some suggestions are made for its improvement. I do not want these priceless moments to go to waste in mere ceremony”).
Justice is neither inexpensive nor speedy, he declared and did not even spare the apex court: a case takes a whopping 25 years on average from registration to ultimate disposal by the Supreme Court — he said he had determined this with the help of his staff. And it was fear – base, sweaty, judicial fear – that was one of the speech’s major themes. “Ba’az auqaat mein ne adal ke aiwaanon main khauf ke ka’ee roop dekhay” (“Sometimes I saw the many faces of fear in the institutions of justice”), he said, as his brethren on the bench stared at the ceiling. It was fear – the tremor that ran through the judges’ hearts – that kept them from seeing – and showing – the light of justice.
Justice Khawaja carried on in the purest Urdu, yet another cause célèbre of the court under him. Citing one last Sufi couplet, he was gone from the highest bench as rapidly as he had appeared on it. Or at least, the bench today would like to think so. In sunny contrast, current Chief Justice Anwar Zaheer Jamali remarked in February 2016 that the country’s “time-tested judicial system has no defects” — a statement as defect-free as the 20,000 cases pending before him.
And as Justice Khawaja’s successors have started reversing his decisions left, right and centre – with the sort of speed rarely in evidence at the Supreme Court – his shadow seems only to be lengthening. But the more stubborn the shadow, the harder it is to understand.
Jawwad Sajjad Khawaja was born into a Kashmiri family, in 1950, in Wazirabad — a small town midway between Gujranwala and Gujrat in central Punjab. Laal Din, 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,” says Justice Khawaja in an interview with the Herald. He is back at his old sanctuary, the Lahore University of Management Sciences (LUMS), as scholar-in-residence (It was LUMS he took solace in after resigning in 2007, and to LUMS he returned after retirement.) He is infamously averse to the press — the only other interview he has granted was to daily Jang’s Sohail Warraich a decade ago. The press however is not averse to covering him.
Justice Khawaja attended the University of California, Berkeley, in the 1970s before returning to Lahore and entering law practice. Forty years and three oaths of office later, not a smidge of evidence of his judicial life – a plaque or a prize – can be found in his office. The lone photograph is of former Chief Justice of Pakistan Justice A R Cornelius, gazing down benevolently at his protégé, partner and eventual executor of his will.
They held the highest judicial office in the country 45 years and 18 chief justices apart. A quarter-century after Cornelius’s death, Justice Khawaja’s voice is still tinged with sadness while mentioning his mentor. “He was a genuinely humble individual, with immense moral and intellectual integrity … One of the reasons I felt I could act independently and decide cases ‘without fear or favour’ – which is in the judges’ oath – is that Cornelius Sahib embodied this quality. I think some of that must have rubbed off on me.” Cornelius lived in a very humble room in Faletti’s Hotel and, as Justice Khawaja says, “was amongst the most contented persons I have come across in my life”. It is an odd association – one was caricatured in his day as a gentle Catholic, the other as a severe Sufi. But raging against the rich is a common thread: as Cornelius once put it, “Affluence is poison for our people.”
His pupil’s ambitions, too, seldom concern the financial. “At home there was an emphasis on consideration for others, rich or poor, relatives or strangers,” he says. “But now just too many things revolve around money and self-interest … instead of education, you acquire the ability to make money. Values and humanness are mostly sidelined,” he laments.
This chimes with what he told 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.”
Ronald Reagan’s biographer was said to have had a meltdown, so elusive was his subject. Wouldn’t it be the easiest thing to deem Justice Khawaja unknowable as well?
The closest anyone has come to capturing his soul is the writer of Adalat-e-Aliya Ke Qasid Ki Kahani (The Story of a High Court’s Tipstaff): the memoirs of Ali Rehman, an ageless qasid (tipstaff) of the Lahore High Court (LHC). The book is richer and more readable than the literary attempts of many of our ex-judges. The picture Ali paints of Justice Khawaja is other-worldly: the judge is no less saintly than the saints that show up in a peon’s writings. “Even before writing about his personality,” wrote Rehman, “my hands started shaking so that I do not desecrate him.”
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.
The judge, we are told, took no days off in years. He attended few social events, and turned up at weddings at 8 pm sharp — for Lahoris who habitually arrive late at such gatherings, this, indeed, is saintly behaviour. He refused the plots of land allotted to him. He consumed only homeopathic medicine even when burning with fever. He sought out the shrines of saints and observed budding flowers with curiosity. On mandatory holidays, he trekked across mountains, valleys and deserts.
Real-life concerns did not seem to matter either. In one instance, his staff learnt that his house had caught fire soon after the judge strode into the court that morning. Such was his terror that the staff debated among themselves whether to tell him at all. “Ziada se ziada jhaar par jaie gi” (“The most that will happen is that I’ll be scolded”) is how Rehman reasoned with himself. So the trembling qasid scribbled a note and placed it in front of His Lordship mid-proceedings. To everyone’s shock, the judge flicked it aside. “Now we were in for it,” Rehman wrote.
While the staff ran in circles, the phone rang again. The fire had been brought under control; a table was the sole casualty. Rehman’s heart raced nonetheless. When the judge did retire to his chambers, he asked about the fire. After Rehman told him that the fire had been doused, Justice Khawaja said something that imprinted itself on the qasid’s heart. “All the water of the Ravi and all the sand of Cholistan would not be able to tame the flames,” he is quoted to have said. “O Ali Rehman, it was God who set the fire and God who put it out. And we have neither the nerve nor the courage to snap a twig without His consent.”
Such is Justice Khawaja’s unearthly charisma that Rehman wept bitterly when the judge resigned from the LHC. That day came on the heels of March 9, 2007, when Pervez Musharraf, then both the president and the army chief, summoned the country’s supreme adjudicator to the Army House, quizzed him in khakis, and suspended him outright. It was all that was needed: Iftikhar Muhammad Chaudhry became myth, martyr,and revolutionary in a single afternoon.
The next day, Justice Khawaja began his work as per routine but he could neither work nor focus. The events of the previous day had “shattered this belief” of his 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?” Rehman wrote that Justice Khawaja spent the morning studying the Constitution (and Divan-e-Hafez) in depressed silence. According to the judge himself, he postponed the day’s hearings, returned home, and told his wife he could not work anymore. After collective revolt by the judges found no takers at the LHC, he struck out alone on March 19, 2007, becoming Pakistan’s only judge to have resigned. He had not even met Justice Chaudhry — ever.
Justice Khawaja’s exit was the beginning of the end — the Lawyers’ Movement exploded into a political storm immediately afterwards. Over the next two years, the general would fly out of the country and all the sacked judges would long-march back into the courtrooms. Justice Khawaja would be parachuted into the Supreme Court.
All that came later. For qasid Rehman, there was no reason to live after Justice Khawaja’s resignation. “The whole world was snatched [from me]. Just recounting that accursed day makes my heart and eyes weep tears of blood,” he wrote in his memoirs. Only after he realised that there was a spiritual connection between him and the judge that the clouds of his grief lifted. Only then did his tears dry.
After taking another wife, the applicant had divorced his first. He then applied for a DNA test in order to deny paternity of the children from his first wife. The case made it to the highest bench in the land. The court ruled: “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.” God has “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.” Justice Khawaja, thus, 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 Justice Chaudhry brought the rest of us out of a “state of unseeingness,” was he blinded by his own child?
The year 2012 was Chief Justice Chaudhry’s annus horribilis. In the dead heat of summer, people switched on the same television news channels 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 corrupter of the administrative system, was on air. His story was sensational: he had given Arsalan Iftikhar, the chief justice’s son, gifts worth millions of rupees. In return, Arsalan Iftikhar had promised to influence his father’s rulings in Hussain’s favour. “You’re saying I buy [people]? No one is going after the guy who put the whole store on sale,” he said in his folksy style.
As leaked clips later demonstrated, his interviewer was planted. The news media, it seemed, was as compromised by the Baron of Bahria Town as Arsalan Iftikhar was. Ultimately Justice Chaudhry took suo motu notice of his son’s adventures and summoned the principal law officer of the land.
Enter Irfan Qadir, the then Attorney General of Pakistan. After a thirty-year thrashing at the hands of the judiciary, the PPP government went for the biggest bruiser it could find. Qadir was the government’s weapon of choice: a battering ram that refused to be cowed by a chief justice whose restoration he had called “the biggest bad luck”.
Qadir and the Chaudhry Court have a bloody history and Justice Khawaja features prominently in it. Qadir was removed as a judge via the Supreme Court’s landmark July 31, 2009 ruling against the judges who had taken oath under Musharraf’s 2007 Provisional Constitutional Order (PCO). The court then removed him as the Prosecutor General of the National Accountability Bureau (NAB).
Having tangoed with the Chaudhry Court twice, Qadir pulled no punches the third time round. When he appeared before Justices Chaudhry, Khawaja and Khilji Arif Hussain in the Arsalan Iftikhar case, he yelled: “How on earth could this man be on the bench, hearing his own son’s case?” Qadir says he was “a lonely soul” at the time. “All the press, the judges, the politicians were on [Justice Chaudhry’s] side.”
The Chief Justice began, “You must have heard about all this … It is not a question of individuals, but of institutions.” Qadir nodded along and then, on the spur of a moment, he 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.” He then cited an article from the Judges’ Code of Conduct which says a judge must decline sitting on judgment in cases of close relatives. “And sir, can there be a closer relative than one’s own son?”
It still took two more days for Justice Chaudhry to understand that this was indeed a hideous conflict of interest. The chief justice recused himself.
In the verdict in the case, Justice Khawaja held that it was not the court’s mandate under a suo motu hearing to rule “on the guilt or innocence of those involved”. Qadir’s smile was triumphant. “I was implying all along this isn’t a suo motu — public interest litigation is not a matter between individuals. That is exactly what they held in the end: that this is a matter between individuals. So how did they find [it justified] to take a suo motu in the first place?”
For Justice Khawaja, the ruling’s critics have invariably not read the actual judgment: the only reason for the suo motu, he says, was that “the judiciary was being undermined by a whispering campaign, innuendo and unsubstantiated rumour.”
And when the court gave Hussain the chance to clarify, he acknowledged he had received no actual benefit. 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.
The term “nemesis” comes from the Greek goddess of vengeance and means either an archenemy or an inescapable agent of one’s downfall. In the epic clash between Justice Khawaja and Bahria Town’s Hussain, “nemesis” denoted all three. No two people in the same situation have been less alike: Khawaja, the ascetic born wealthy; Hussain, the poor boy who struck it rich. Justice Khawaja plumbs the depths of Sufi lore; Hussain’s monuments to cultural illiteracy – desi Eiffel Towers and Nelson’s Columns – graze the skies.
Between the two gentlemen, there could only be more casualties.
The Houbara bustard is an odd bird, tame and terrified looking. And with good reason. It falls prey to visiting Arab princes with regularity: 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 moot. But the state took a rosier view: the royal hunters brought roads and riyals with them.
Barely three days after taking the office, Chief Justice Khawaja banned houbara hunts. The laws of Pakistan that ban the hunting of the bird, the court held, are “not saleable commodities” to be bought by 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,” veteran politician-cum-pundit Sheikh Rasheed told a TV anchor. “[People in the government] will be running for the hills or going on vacation.”
For once, he was right. Thinking it best to sit the summer out, the government functionaries hightailed it out of the country (some with return tickets for September 9, 2015, the day the judge was to step down). Part of it was because of Justice Khawaja’s legendary volatility on the bench. “Justice Khawaja has always been in the habit of sermonising, haranguing and ridiculing the institutions of the state, its officers and the litigant public,” says Qadir.
Asher A Qazi, a lawyer who clerked for the judge from 2010 to 2011, and then again when he was chief justice in 2015, sees it differently. Since contempt proceedings prove ineffective in ensuring compliance, the court takes the gloves off. “Keeping a case pending, calling for reports and making senior executive functionaries continuously appear before the court until compliance is achieved,” is how he explains the court’s method. “The idea was simple,” he says, “beizzati kertay hain logon ki (we’ll dress down the people) and if it is done in open court then shayad ghairat jag jaie (perhaps they take action for the sake of self-respect).”
With the Supreme Court having since sunk back into colourlessness, it seems strange to remember the hysteria that greeted Justice Khawaja’s elevation: the ponytailed qazi of this conservative republic, making one last stand. The Urdu press swooned over the judge taking oath in Urdu; cartoons depicted him spurning a whole lot of plots and privileges which the record confirms; middle-class righteousness embraced his refusal of bulletproof cars.
Meanwhile, the Herald 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,” we wrote). Bloggers cried anarchy while op-ed columnists shook their heads over his “irrepressible inner calling” which one of them interpreted as a “belief that subjective morality, divinely inspired, can trump the menial constraints of man-made law.” The equally irrepressible Qadir was on national television, calling his term a “judicial nightmare”.
But as far as nightmares went, there was no trepidation in Justice Khawaja’s own mind as he went charging where angels feared to tread. “[His] finest moments came when he heard the cases of missing persons,” a former deputy attorney general says. “He was the epitome of justice” as he ordered the registration of cases against serving military personnel.
The judge was also among the six judges who deemed the 21st Amendment through which military courts for the trial of terrorists were to be set up as unconstitutional. Others hold up the case involving Makro-Habib, a superstore in Karachi, in which he ruled against the Army Welfare Trust having swallowed up a playground. No doubt, Justice Khawaja was unmoved by the establishment.
And by everyone else. A case in point: his derision for the NAB. “Dou saal se takrein maar rehay hain” (you have been making aimless strikes for two years), he said to the NAB officials in a corruption case involving the senior officials of the Oil and Gas Regulatory Authority (Ogra). Elsewhere, he ended up ordering a corruption case against the NAB’s own ex-chairman.
By the time Justice Khawaja declared he would review the ever-expansive Defence Housing Authority Ordinance, all tin gods had come crashing down. “Five overs ka power play khelnay aaye hain” (he is out to play a five-over power play), tweeted one citizen, commenting on Justice Khawaja’s stint as the chief justice. But it was a power play the other team only dodged and ducked.
Most especially those who represented Hussain’s Bahria Town. For the media, the new chief justice had unfinished business with the Bahria bunch, and not just over the Arsalan Iftikhar case. Accused of swiping over a thousand kanals of forest land in Rawalpindi, Bahria Town called the whole thing a witch-hunt and Courtroom Number One again saw scenes of fire and brimstone.
Thus, if such persons who may be in hundreds of thousands can be assured their rights through one suo motu action without much delay or expense, the exercise of such jurisdiction is fully justified.
Despite reserving judgment, the bench did not award a final verdict. Justice Khawaja does not consider this a loose end: the bench took many steps, ordering, for instance, the registration of a criminal case against Bahria Town ten years after a complaint had been lodged by the Sindh Forest Department, he says. He, however, remains perturbed by such time lags in the judicial system and terms them the reason why “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 Qadir went pound-for-pound to the end, sending TV tickers in a frenzy — the Unstoppable Force had met the Immovable Object. Had the Arsalan Iftikhar case been the only sticking point, there might have been an Irish peace. Instead, there were constant skirmishes.
For instance, while hearing a petition back in the PPP’s government, the judge sought Qadir’s opinion on whether Musharraf had committed high treason. “By this Honourable Court’s reasoning,” the then Attorney General 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 Honourable 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 after that.
By early 2015, the future chief justice and the former attorney general were again in the trenches. Qadir was defending Sindh police’s contract for procuring 16 armoured personnel carriers from Serbia. With mercury rising in the court, he demanded Justice Khawaja recuse himself from the case. The judge instead suspended his licence in a 4,000-word order covering four years of “persistent objectionable behaviour”. The contract was also struck down.
For court reporters who have been witnessing this tug of war, Justice Khawaja had at last concluded the epic battle with this decision. Qadir, however, still managed to write the epilogue: towards the end of Justice Khawaja’s term, he wrote a letter to the President of Pakistan, citing everything from “eccentric behaviour” to the suspension of lawyers’ licences over personal vendetta, and sought action against the judge.
Vendetta or no, Justice Khawaja’s rage certainly did not differentiate – whether it was the NAB or the ever-present establishment at the receiving end. When asked about the fears and pressures that govern such territory, his answer is typical: “Fear of what? … I have received threats against my family and myself. I feel blessed I have not been intimidated or deterred in the performance of my duties.” He says he never felt any pressure “although there was a feeling of disgust at the moral and ethical decay which appears to have permeated society.”
Then he waxes mystical. “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.” He quotes Hafez again: “Once you are shackled in the yoke of the Beloved, you are freed from all other chains of enslavement.”
This kind of conviction can be dangerous. For ordinary mortals, the “chains of enslavement” – such as life, career and family – are real. That is why they invented the recusal. But His Lordship doth not recuse himself: not when he heard the Arsalan Iftikhar case; not when he heard petitions against his own relative, Mir Shakil-ur-Rehman of Geo Television Network; not when he suspended Qadir’s licence; not even when Bahria Town’s legal eagles begged Justice Nasir-ul-Mulk recuse the judge from the bench.
Why? “Only those stand scarred who are not with the truth. We cannot be fearful of anything,” is how he once answered the question, rebutting his critics during Musharraf’s treason case. This in itself is a scarring idea: to deny the feelings of weakness, prejudice and inadequacy is to deny the human condition. Asher Qazi says he confronted Justice Khawaja over not recusing himself from the Geo case. He 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 the Constitution Avenue in the federal capital in May 2014, he dived in after the shadow world they came from. “He has lived his life with a belief in destiny,” Asher Qazi says. “When you live your life that way, you become fearless. That doesn’t mean that he would jump off a plane without a parachute. It simply means that he has ignored or not given much importance to issues which concern most of us.”
Issues that concern most of us, however, constitute one of Justice Khawaja’s profoundest legacies: the constant expansion of the Supreme Court’s “original jurisdiction” – to enforce the fundamental constitutional rights – through a storm of suo motus that rocked the country. While his generation of jurists rose up against martial laws and exorcised the ghosts of Justice Munir’s ‘doctrine of necessity’ and General Musharraf’s emergency, they also sent elected prime ministers home, botched mass scale privatisations and bulldozed their way into matters of pure policy. All this was happening while the lower courts still remained as dysfunctional as ever.
Even Justice Khawaja was once a lukewarm believer in the power of suo motu. He says he was “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.”
A change so drastic that Justice Khawaja has little issue with judicial restraint today. “A person may argue for ‘restraint’ and watch the katchi abaadi being demolished particularly when there are many influential persons who have occupied state land with impunity and without fear of demolition of their homes or eviction,” he says. “Nor is restraint an option when the houbara bustard – an endangered species – can get exterminated as a result,” he argues.
To the critique that the bench ventures into unknown territory when it is guided more by whim than by the rules, he remarks: “A lawyer in 18th 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 suo motu power 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”.
He does not agree that suo motus are taken up on whim. “This is an invalid, uninformed criticism based on a lack of understanding, due diligence, knowledge and empirical research by commentators,” he says.
What of the criticism that suo motus distracted the court under him and Justice Chaudhry from regular matters. “Only one or two benches from among many were hearing such cases, and less than one percent of cases – yes, that’s right, less than 150 cases out of over 20,000 instituted in the Supreme Court each year – were taken up by the court [under its original jurisdiction]. Out of these, not more than 30 in any year were suo motu cases,” he explains. Even those cases were mostly “being heard after regular court hours”.
He contrasts hard data with hot air. “The space … taken 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, in my opinion, is quite mindless and silly.”
Feisal H Naqvi, a Supreme Court lawyer based in Lahore, raises another question. “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. 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.”
Justice Khawaja is nothing if not committed. His suo moto approach takes no prisoners: the consequential good, he says, is limitless. “This is a people-friendly jurisdiction and its use has had immense benefits for 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 is where the critics of judicial activism give in to resignation: more often than not, to paraphrase Justice Khalilur Rehman Ramday, there is “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 hundreds of thousands can be assured their rights through one suo motu action without much delay or expense,” Justice Khawaja says, “the exercise of such jurisdiction is fully justified.” His Lordship’s eyes drift to the window as he talks about the subject. “A sensitive person will see this immediately,” he adds.
Back in 1710, Sindh was simmering under Aurangzeb’s great-grandson — the feckless Farrukhsiyar. Local landlords jostled for turf, the mullahs spread hatred and the masses knew nothing but poverty. The man of the hour was Shah Inayat Shaheed. Originally from Multan, he forsook his family’s wealth and became a wanderer, falling in love with a saint in Bijapur, in southern India. He came to Sindh a changed man, giving away all his land to the tillers over a century before Karl Marx wrote Das Kapital.
Shah Inayat Shaheed is the Ho Chi Minh of the Sufis: a guerrilla poet who fought against the Mughals and their minions. Finding a land riddled with 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 that the judge closed his farewell address – and his 16 years as a justice of the superior courts – rather than with luminaries of the judicial profession.
“Some persons have been critical of my use of Farsi or Punjabi verse in my judgments,” Justice Khawaja says. “I suppose this is on account of their personal choice. It seems they would be quite happy if I were to quote Shakespeare.”
The language and legacies of the Raj, indeed, have been running themes in his career — the “need to wean ourselves off the colonial bosom”. Justice Khawaja has little patience for Pakistan’s Anglo-Saxon inheritance: he finds it is a colonial construct driven by the likes of Lord Macaulay. For him, the 1973 Constitution makes a break with the Raj for good. Thus, theories alien to Pakistan – be it India’s basic constitutional structure or Bracton’s doctrine of necessity – are bad “organ transplants” for him. It is time, he says, that we bear in mind our “zamaan, makaan aur ikhwan” (time, space and brotherhood) instead.
Which is what he took up on his last day as the chief justice: in a final kidney punch to the state, he directed the federal and the provincial governments to adopt Urdu in place of “a colonial language which cannot be understood by the public at large.”
To turn to the legal sphere, will undoing – or translating – a century of hyper-technical precedent in English, cribbed via common law, be at all manageable? “Manageable or not, 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,” Justice Khawaja says. Being a product of educational institutions like Aitchison College and the Forman Christian College (both in Lahore), he says, “it would be easier for me to write my judgements in English, but my own comfort can never be a reason for disobeying a constitutional command.”
Thus, he took to writing his opinions in Urdu. He cites another saint to explain why. “An old woman brought her child to Baba Fariduddin Ganjshakar and said the child ate too much shakar (sugar). Baba Farid told her to bring him back in a week. So she brought him back and Baba Farid said to the child, you should not eat so much shakar. The mother said, you could have told him as much a week back. To this Baba Sahib said, I could not have done so because at that time I myself was eating shakar.”
Having clerked for Justice Khawaja at the time he announced his Urdu verdict, Asher Qazi is clear-eyed. “If implemented, the decision may put me out of a job in the long run but if you put your own situation aside and think 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 reverse, if the current bench has its way. In the six months since Chief Justice Khawaja stepped down, the Supreme Court has run in the opposite direction, going on a spree of reversals of its own precedent laid down only months ago. The manner of the reversal is inelegant: rather than allowing the review petitions to be heard by the same bench that made the original decision – as per usual – the Supreme Court has formed larger benches where the judges on original benches are in a minority. As one barrister puts it, “a message is sent to all governments and litigants that the Supreme Court’s 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 has undone the ban on houbara hunts. Whereas Justices Khawaja, Qazi Faez Isa, and Dost Muhammad Khan had authored the earlier ruling, a five-member bench that heard the review petition included only Justice Isa from the original bench. “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 Isa’s dissent and his earlier interlocutory order have not even been adverted to, let alone addressed by the majority opinion.”
The decision has not been approved for reporting.
And though it has been only seven months since Justice Khawaja stepped down as the chief justice, the past already seems another country: today, trained falcons soar across the sands of Sindh, slamming houbaras to the ground; Musharraf flies off into the sunset via Emirates, a free man; military courts continue working in the darkest night; and the official language – like that of the Herald – remains the Queen’s English. To be clear, this is not Justice Khawaja’s Supreme Court. In a sense, it never was his Supreme Court, even as the chief justice. Why else might a man recite Shah Inayat Shaheed as dusk approached?
Shah Inayat Shaheed was betrayed to Farrukhsiyar’s governor and was executed on January 7, 1718. Legend has it that it was his mourners who blinded Farrukhsiyar though, more likely, it was a palace coup. “I’ve made a vow, to Babar [Mirza] – my student – that we will go to Jhok Sharif in District Sujawal,” the judge says. “That is where Shah Inayat Shaheed’s dargah is. He was the quintessential humanitarian and the champion of the oppressed.”
Justice Khawaja then recites a couplet by Shah Inayat Shaheed which, according to him, “shows absolute fearlessness, indeed ecstasy in the face of his beheading”: For a fleeting moment – as His Lordship translates the verse – the mist parts. For the length of a few short breaths, Justice Khawaja is knowable: “If my head is sacrificed at the feet of the Beloved — how wonderful,” he says. “It was a heavy burden; now that it has been removed — how wonderful.”
This was originally published in Herald's April 2016 issue. To read more subscribe to the magazine in print.