There is a story about a young barrister – poor, cold, and lonely – with not a single brief in hand, wandering the halls of Bombay High Court. It is 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 is an angry Scot: James MacDonald, head of the Bombay Municipal Corporation, is front and centre at the court. A Very Important Man (we are told), MacDonald is sitting on a seat reserved for lawyers.
Enter our hero, still an unknown entity. 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 clerk – a drop in the tide of Empire – freezes but our hero threatens the judge will be brought into the matter. The clerk complies and MacDonald gives up his chair, so the story goes, to the conquering youth, Muhammad Ali Jinnah, some 27 years old.
Hector Bolitho, the most controversial of Jinnah’s biographers, writes this tale in tune with 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 panelling, Bolitho’s Jinnah is all too human.
And in a land where Jinnah made his fortune as a legal logician, the ideal he clung to was hopelessly romantic: Hindu-Muslim unity. It was the kind of unity that jarred against the religious symbolism of Gandhi (also a barrister), the ugly majoritarianism of the Congress machine (led by Nehru, another barrister) and the loyalty to the British Crown among Punjab’s unionist leaders (whose grandchildren are now forced to take up the bar). For Jinnah, Pakistan was the answer.
Law is fused into Pakistan’s genesis and the country’s birth consumed 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 who pleaded his case for it; and Jinnah’s portrait adorns in courtrooms across the land. “Pakistan was, after all, a legal decision,” Sharifuddin Pirzada, the country’s most controversial legal wizard once said, only half in jest. How Jinnah wished to shape that decision remains an open question.
Generals in sashes, feudal lords in Mao caps and – most recently – judges in black and gold robes have answered the question, each in their own way. 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 that the rest of the province’s district courts will have 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.
The districts courts proclaim themselves as the Aiwan-e-Adal – the house of justice – in boldface on a signboard where The Mall starts, next to the Punjab Civil Secretariat. A stream of depressed humanity trails in and out the gates, some quite literally wringing their hands. It is a beautiful spring day, bathed in human panic.
Far removed from the reserve of popular imagination, the courts roar with human commerce. Surly men sit on cement benches, chain-smoking. Technicians jab screwdrivers in a communal photocopier. Policemen eye lady litigants a fraction of a second too long, and are rightly chastised by the ladies.
When it comes to Pakistan’s judicial system: the majority of litigants do not comprehend English (or archaic Urdu) in which their cases are prosecuted, and they are overawed and overwhelmed by the law and the lawyers.
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 building’s entrance in rows, pinning badges on visitors with their candidates’ names printed 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-practised ease, his supporters reach up and feed him cham cham with their hands.
Though it is 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 pm, and litigants shuffle back to far-flung areas, with little progress made.
On a good day at least, the energy is in sharp contrast with the one in previous winter, 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 (a High Court Justice) 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.”
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Thus the Great Resentment was observed, with the district courts coming to a standstill that day. Post-Lawyers’ Movement, the legal fraternity is quick to unionise, and as quick to parry any attacks on its 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. Worn-down litigants, cynical lawyers, tut-tutting superior justices and, on occasion, sheepish sessions judges themselves, all acknowledge as much.
That, perhaps, is a symptom of the plague: just a few kilometres from the air-conditioned courtrooms of the Lahore High Court – and a world away from the marble splendour of the Supreme Court in Islamabad – the majority of cases are decided in the courts of first instance: the civil and sessions courts exemplified by the Aiwan-e-Adal. The majority of litigants here are poor, and the majority of those poor litigants pursue land disputes.
Herein lies the catch-22 situation when it comes to Pakistan’s judicial system: the majority of litigants do not comprehend English (or archaic Urdu) in which their cases are prosecuted, and they are overawed and overwhelmed by the law and the lawyers. They are prone to the predations of police, vulnerable to the greed of court ‘fixers’, and exhausted by case delays. 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, saying, “This is less an Aiwan-e-Adal and more an Aiwan-e-Daldal” — the quicksand that sucks you in and never lets you out.
In one case, the judge made the mistake of deciding a land-grabbing case that had dragged on for 12 years, courtesy the defendant’s connections with a political party. “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, the judges. So I put my foot down, and fixed the case for final arguments,” he tells me.
The judge says he had a sinking feeling in his stomach when signing the order. By the time the court wound down for the day, “my phone [started] ringing. 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 had told me earlier, because I had already decided the case.”
That afternoon, the judge took a nap and dreamt he was visiting a broken church and weeping among the pews. He woke up with the urge to barricade the entrance to his house that night, and was glad he did. “Well into the evening, I heard a bunch of scoundrels pounding on it loud. 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 in question (he says he gave everyone a fair hearing), and closing the file. The defendant began tearing his hair out physically. “He had to be restrained,” says the judge.
His voice is flat and there is a near-palpable burden on his shoulders. The afternoon turns oppressive.
Even for honest subordinate judges, pressure comes with the territory. In a system that leaves them underpaid, unprotected and ultimately, un-promoted, these are the men who decide thousands of cases each year. Yet, the dividing line between them and the superior courts has never been thicker and clearer.
It is 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 Supreme Court. Taken together, his writings are the most magisterial body of work ever composed by a Pakistani judge to date.
The judge is 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 writes.
The blunt, brave Justice Rana Bhagwandas, too, started from the ground floor. As acting Chief Justice of Pakistan, he would become the first Hindu head 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. Most judges in what is called the lower courts never graduate out of the courts of first instance. Many lawyers, on the other hand, get direct appointments as high court judges. This poisons the well in more ways than one: the superior courts’ Brahmins turn their noses up at the lower judiciary — they are “uncouth, dirty types” as a Supreme Court lawyer (and likely judicial aspirant) says. “This is a dirty sewer,” he says contemptuously of the lower courts.
For their part, judges of the lower courts – and especially the bar therein – 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 that requires the subordinate judges to be nurtured into high court justices. Left to their own devices, the lower courts will remain the same old snake pit.
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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, with a shortfall against sanctioned posts in all four provinces. In An Alien Justice, a path-breaking analysis of the legal system, Osama Siddique, who previously taught law at the Lahore University of Management Sciences (LUMS), uses the most conservative statistics to estimate the numbers. His findings are staggering: according to 2007 data, Punjab has 1.5 judges per 100,000 residents; Khyber Pakhtunkhwa, 1.75; Balochistan, 1.5; and Sindh, one judge per 100,000 residents.
But to test the earlier assumption – that Lahore’s lower courts are in better shape than those in the rest of the province – I visited Gujranwala over the course of several months. With its own acknowledged rules of behaviour, the city is a world apart from the nearby provincial capital. 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 on a recent day.
Lawyers milling through the corridors are accosted by a skinny gent called Goga, who is feeding everyone yellow laddus. When asked what the occasion is, he smiles and raises his eyes heavenward.
It so happened that the police were tipped off about a truck carrying smuggled goods. When they intercepted the vehicle, an assistant sub-inspector dispensed two slaps to Goga, the truck driver. Upon hearing this, the owner of the truck flew into a fury and he hired a lawyer to teach the police official a lesson. Goga is a Syed, his boss would explain. “What sort of animal – even in this day and age – smacks a Syed?” The lawyer agreed, and filed a private complaint against the official. The judge hearing the case would stall.
At this point while telling his story, Goga starts walking to the judge in question: the gentleman is digging his ears with his car keys. The image does not inspire confidence in his brand of justice. Goga carries on with his tale. At each hearing, the police official absented himself, furnishing increasingly bizarre written excuses: he had a case to pursue in Mandi Bahauddin, a widow was missing a kidney, and a first cousin’s femur had just broken. “I think he was involved in black magic,” Goga says.
The police official’s powers were certainly supernatural: the case crawled on for another 14 hearings over two-and-a-half years — not that the judge would summon him, anyway. At the last hearing, Goga’s own lawyer didn’t turn up, the first and only time. That was all the judge needed: seizing the opportunity, he dismissed the case for non-prosecution.
Goga was overjoyed. “Mein ba izzat bari ho gaya, baooji!” (sir, I have been acquitted of all charges!), says Goga, and offers me more laddus. Over an insufferable thirty months, Goga the complainant had transitioned to Goga the defendant in his mind, and no one has the heart to explain to him otherwise, including me.
The disconnect between the system and the supplicants who invoke it to have their grievances redressed is known to all. Yet, one wonders whether ignorance isn’t truly a bliss. Contrasting with Goga’s joie de vivre are those who know – with sickening clarity – the exact places the system is broken.
Consider the story of Nazia and her family. At a hearing the same day Goga celebrates his ‘acquittal’, a trial in a criminal case draws to a close. Its facts are ridiculous: a police raid team caught Nazia, her husband Sadruddin, and her brother Billa in a street in Gujranwala’s Baghbanpura neighbourhood, each with a kilo of heroin. At least, that is what the First Information Report (FIR) said.
In loud contradiction, the accused claim the police sought bribes from them and picked them up when they refused to oblige. They were thrown in the lock-up of a police station before the police dreamed up the arrest story.
The police went one better: on paper, Nazia, Sadruddin, and Billa (names have been changed to protect identities) were ‘arrested’ from Baghbanpura on three separate occasions the same day. The prosecution, however, conveniently neglected to mention that they had been arrested 30 minutes apart from each other, by the same police team, at the exact same spot, for the same offence. The police had clearly struggled to come up with different plot lines for each FIR.
Armed with only a newspaper column, Karachi’s Grand Old Man took on the rich and the influential every Sunday: from construction lobbies to the land mafia.
A point hammered home by the family’s lawyer, Barrister Waqas Farooq, a rising star on the local bar. As all three are pleading their cases separately, Barrister Farooq cross-examines the very same policemen on three different occasions.
In the Nazia hearing, he asks, “Did you arrest anyone else that day?” The policemen say they did not, eyes glassy.
In the Sadruddin hearing, the lawyers again asks the same gentlemen, “Did you arrest anyone else that day?” They say they did not, thus contradicting the previous testimony that they had, indeed, arrested Nazia that same afternoon.
Finally during the Billa hearing, the good barrister re-repeats, “Did you arrest anyone else that day?” The policemen once again say they did not — laying waste their earlier testimonies in which they had acknowledged arresting Nazia and Sadruddin.
This is surely a breakthrough in the trial: Barrister Farooq 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, does not seem to.
The judge knows, of course, that the police are lying. The police know the judge knows they are lying. And the judge knows they know that he knows they are lying. But it matters little.
Nothing does, though Barrister Farooq has a laundry list: he argues, firstly, that not a single witness besides the police was produced. Secondly, the police testimony itself was completely contradictory. Thirdly, none of the investigation procedures as required by the law were carried out. Fourthly, possession of heroin was never proven. Fifthly, the accused could have easily escaped before the charging police contingent had arrested them. Sixthly, the supposed heroin sample was sent to the forensics laboratory too late after its seizure, in contravention of the Control of Narcotics Substances Act (CNSA).
In keeping with the lower judiciary’s proud tradition of disregarding all procedural law for substantive law (not that many grasp the latter either), the sessions judge is having none of it. When it comes to the police’s failure to follow the law, the judge decides, “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.”
When it comes to the fact that there were no other witnesses but the police, the judge writes a snappy one-liner: “Police officials are as good witnesses as any other witness.”
He sentences Nazia to four years of rigorous imprisonment, while Sadruddin and Billa get six years each behind the bars. 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 sentences arbitrarily thrown at them, with little to no consideration of mitigating circumstances.
The judge is 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 writes. And everyone goes to prison.
In his brilliant book on sharia law, British legal scholar 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 ulema were not only reluctant to pronounce on a co-religionist’s sinfulness; they were manifestly terrified of doing so.”
Kadri drives 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.”
Kadri’s conclusions are convincing: a generation of jurists, having seen father kill son in Islam’s civil wars, reacted by outsourcing as much adjudication as they could to the Day of Judgement. Some 13 centuries later, the Gujranwala sessions judge is an unworthy inheritor of that tradition.
It was said of Ardeshir Cowasjee that trees whispered to him. Armed with only a newspaper column, Karachi’s Grand Old Man took on the rich and the influential every Sunday: from construction lobbies to the land mafia. And by the autumn of his life, Cowasjee the columnist had ripened into a man of 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, tree-felling, and – right until he passed away – fighting the case for a parking plot on which the Karachi Building Control Authority (KBCA) was attempting to build an office on University Road.
Over a lifetime of fighting, Cowasjee may have filed over a hundred court cases. He understood – long before the rise of Justice 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 seemed 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 Livina Case of 1999, the KBCA had approved the construction of a high-rise in Bagh-e-Ibn-Qasim, a park along the Karachi beach; one of the planned facilities was a revolving restaurant.
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The movers behind the plot were alleged to be Asif Ali Zardari and his majordomo, the then absconding (and now estranged) Dr Zulfiqar Mirza. Cowasjee was enraged, and invoked the high court’s writ jurisdiction under the Constitution’s Article 199 (1). In Cowasjee’s corner was Barrister Naimur Rahman, but the builders had a heavyweight of their own: Farooq H Naek — already coming to be known as Zardari’s guardian angel. The case went all the way to the Supreme Court, where Naek challenged Cowasjee’s locus standi: Cowasjee lacked sufficient stake in the case, he said. Justice Ajmal Mian, the then chief justice of Pakistan, considered the contention and disagreed: locus standi was to be given broad interpretation in such cases, and Costa Livina was decided in Cowasjee’s favour. Suddenly, public interest litigation seemed more accessible than ever.
Ardeshir Cowasjee versus KBCA demonstrated – if not for the first time – that the appellate courts could be directly approached by common citizens when their fundamental rights stood infringed, and that the good guys could win. The debate has come full circle 16 years later: on April 17, 2015, the same week as Cowasjee’s 89th birthday, the Lahore High Court scrapped a seven-kilometre-long signal-free traffic corridor along Jail Road, meant to connect Qartaba Chowk with Liberty Chowk in Lahore.
Over a lifetime of fighting, Cowasjee may have filed over a hundred court cases. He understood – long before the rise of Justice Iftikhar Chaudhry – the beauty of public interest litigation.
Of course, much has happened between 1999 and 2015: the movement for the restoration of the judiciary has changed the conversation on public interest litigation at home — a trend present in other parts of the world, such as India, Australia and South Africa, since long. Pursuing the public interest has never been more popular than it is today, and the bench is receptive. As Alexander Hamilton, one of the founding fathers of the United States, 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 has varied with each chief justice since the restoration of Iftikhar Chaudhry in 2009 as the chief justice of Pakistan: in Chaudhry’s hands, it was a bully pulpit; in Tassaduq Hussain Jillani’s, a healing salve. But neither of the two would disagree with Hamilton’s maxim.
Nor, it seems, would the Lahore High Court. The signal-free corridor writ petition was moved by writer, journalist and human rights activist 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 – in a lightning bolt of an argument raised by amicus curiae Waqqas Mir – that the LDA was circumventing the local government system itself. The bench agreed.
Jurisprudence as it should be: the court’s decision wasn’t premised on policy. Spending money on road construction projects is, after all, the government’s prerogative: the Punjab government was free to splurge as much as it may on motorways and the Metrobus. Instead, the decision was a victory for the devolution of power, the very warp and waft of our democracy. Inserted via the 18th Amendment, Article 140-A of the Constitution puts it plainly: “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 have been recognised as a third tier by the Constitution, the court ruled: “Till such time that the local government elections are held…LDA will only attend to its existing ongoing projects…[it] shall not embark upon any new project which encroaches upon the powers of an elected local government system.”
The order was delivered by Justice Syed Mansoor Ali Shah (a judge Cowasjee had spotted as “forward-thinking” in one of the last columns he wrote). Justice Shah is an example of what the post-restoration judiciary can be: independent, conscientious and reformist.
His written opinions bring clarity to the questions of law considered. With wave after wave of judicial 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. Some disregard precedent outright: it is possible to find the odd Sindh High Court judgement shredding well-settled law, to be overturned by an incredulous Supreme Court.
Not that it was always like this: in the 1950s and 1960s, the superior judiciary’s opinions were clearer, relatively concise and, most importantly, noisily arrived at — bucking today’s trend of junior justices following their seniors in silence.
With debate and disagreement, there came an extra intellectual dimension to the country’s jurisprudence. American judge Benjamin N 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 is the language barrier, though errors in grammar and spelling are forgivable in a country long tormented by the British — that is, when such errors do not scale the absurd. In Muhammad Riaz Sheikh versus 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 judgements):
“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 the conclusion [sic] 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 passing Ding Dung off as Ding Dong, Khawaja Sharif revoked the petitioner’s bail. But the former justice’s opinion-writing skills are only a minor part of the problem. Appointed by Prime Minister Nawaz Sharif in 1998, Khawaja Sharif represents an ad hoc and politically-compromised brand of justice reminiscent of the past. That a justice (and later chief justice) of the Lahore High Court is appointed for the very reasons that merit suppressing his elevation through the bench is distressing.
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Then again, it is also a testament to how far the judiciary has come from the 1990s, when the bench would be ‘packed’ with party men by Benazir Bhutto (a la Franklin Roosevelt). After yet another attempt by her widower, Zardari, 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 set up by Article 175-A of the Constitution.
Leaving judges like Khawaja Sharif where they should be: a relic from the 1990s, a time the judiciary was too often under siege. It was, after all, in 1998 when Nawaz Sharif’s tussle with the judges over appointments in the superior judiciary led to goons ransacking the Supreme Court. By the time the Pakistan Muslim League-Nawaz’s (PMLN’s) finest stopped breaking things, Jinnah’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” (everything has been put on ice). It has just not been the same since he left.
“He” can only be Iftikhar Chaudhry, the personification of the legal system that Pakistan’s 20th chief justice both inherited and left behind. The Supreme Court has always seemed an aloof place, always sulking in its marble coldness in the middle of the Constitution Avenue. Now deprived of Chaudhry’s shadow, the apex court is more glacial than ever.
Taking oath as the chief justice of Pakistan 10 years ago, a sombre, moustachioed Chaudhry 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.”
That inaugural speech announced to the world all the hallmarks of the Supreme Court under Chaudhry: the clipped tones, the heightened self-awareness and, above all else, the low populism.
But, notwithstanding his own diagnosis, Chaudhry was part of the problem back then: he had already taken oath under General (retd) Pervez Musharraf’s Provisional Constitutional Order (PCO) in 2000, rubber-stamped a coup in the judicial challenge to Musharraf’s overthrow of Nawaz Sharif’s government in what is known as the Zafar Ali Shah case, approved a military dictator’s amendments to the Constitution in the Watan Party case, and then allowed a president in uniform to carry on as army chief in the Pakistan Lawyers’ Forum case. In those early days, Chaudhry seemed less like Dorab than Dogar.
While Chaudhry beheaded many a public body for corruption, there were only minimal changes that filtered down to the rest of the organisation.
Which begged the question: why not? For the longest time, the story of the superior judiciary has been a sorry one. It was Pakistan’s second chief justice, Muhammad Munir, who breathed life into British jurist Henry Bracton’s maxim, “That which is not lawful is made lawful by necessity.” And it was Munir who approved the dissolution of Parliament in 1954 – at the behest of a non-elected governor general.
Munir set the tone for our unhappy history: the judges kowtowed to the king, and the king carried on, oblivious to the needs of democracy.
Until that spring day in 2007 when Chaudhry stood up to Musharraf, this trend held — one in which lawyers were all too complicit. When 18-year-old Asma Jahangir petitioned the court against General Yahya Khan’s martial law in 1971, it was Sharifuddin Pirzada who, as amicus curie, or friend of the court, argued for the supremacy of the Constitution. In 1977, Pirzada – as Attorney General – argued the exact opposite when Nusrat Bhutto filed a petition against the imposition of martial law by General Ziaul Haq. He would win both cases. And when Zia sacked the government of his hand-picked Prime Minister Muhammed Khan Junejo and dissolved Parliament in 1988, he was reminded of the law which mandates elections must be held in 90 days after the dissolution of the legislature. The general wasn’t worried. “Pirzada ke paas kuch masala hai” (Pirzada has a recipe to fix that), he is reported to have said, smilingly.
But even unhappy histories have their heroes. Among the Munirs taking us deeper into the darkness, there have always been beacons of light: there was Sindh High Court Chief Justice George Constantine in the 1950s. He fended off the governor general’s henchmen from hurting Maulvi Tamizuddin, the then speaker of the constituent assembly. In his famous Irish accent, he went on to declare the assembly as sovereign. And when Munir overturned Constantine’s decision in the historic Maulvi Tamizuddin case, it was A R Cornelius who dissented. “The Catholic chief justice of a Muslim state” – according to his biographer – Cornelius is now considered one of Pakistan’s greatest-ever adjudicators.
Then there was Dorab Patel in the 1980s. He refused to accept Zia’s PCO, an improvised oath of loyalty to the military dictator. Patel essentially walked away from becoming the chief justice for seven long years. “How can I take such an oath?” he is reported to have asked.
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And there was also Nasir Aslam Zahid in the 1990s, a compassionate man who only listened to his heart, providing relief to all and sundry, whatever the consequences. Benazir Bhutto banished him to the Federal Shariat Court. He was also as unimpressed by Musharraf’s PCO, preferring to go home instead.
These men, however, have been the exception to the rule.
But from March 9, 2007 onwards, a brave new world emerged. For the first time, the Chief Justice of Pakistan had been suspended. For the first time, a movement calling for the rule of law was to be successful in bringing him back to the top of the bench. Nothing, it seemed, could stand in the way of the Lawyers’ Movement: not emergency rule, not Musharraf, and certainly not Zardari. Riding to glory in one of the largest popular movements the country has seen, Chaudhry was restored in 2009, and things were never quite the same again.
In many ways though, the story of Chaudhry is a Greek tragedy. If Italian jurist Piero Calamandrei once called the courts “hospitals of human corruption,” 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 accord) entered the national conversation, as the Supreme Court under Chaudhry weighed in on matters of economics, infrastructure, and moral purpose.
A deference that seemed unimaginable only minutes earlier. The line in the sand was drawn, and the Chaudhry era came to a close.
But, besides adding to an already overflowing docket, Chaudhry’s suo motu actions seldom developed the law. Asher Qazi, in an enlightening essay in The Politics and Jurisprudence of the Chaudhry Court – edited by Moeen H Cheema and Ijaz Shafi Gilani – draws his conclusions from the data at hand: of Chaudhry’s 123 suo motu actions (as opposed to his predecessor Justice Nazim H Siddiqui’s two suo motus), detailed written judgements were delivered in just 37 – or 30 per cent. Only eight of these judgements “were considered to have contributed in any manner to the development of law”.
The theme remained the same: humbling the king. In a survey of most of Chaudhry’s suo motu actions, Qazi found 34 per cent to do with executive abuse of power, 38 per cent to do with executive inefficiency, and 11 per cent to do with corruption (with 17 per cent 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 official, when asked about Chaudhry’s judicial philosophy. “He made it up as he went along.” The official proceeds to tap a newspaper for effect. “Surkhi, surkhi, surkhi” (headline, headline, headline), he says, before dancing off into the sun.
That may be unkind. For while Chaudhry was busy interfering in kite-flying and petrol prices, he did hang on to a core tenet: safeguarding the democratic process. His verdict in the Sindh High Court Bar Association’s petition is one such bombshell: a judgement thought to have slammed the door on future military rulers. 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 set by it (words even his court may have heeded better).
In most ways, however, Chaudhry’s modus operandi was self-defeating. Much was made about forcing the government of the Pakistan Peoples Party (PPP) to reopen its chairman’s corruption cases. But while Prime Minister Yousuf Raza Gillani was sent home, President Zardari still made it to the finish line. Having trampled the separation of powers, Chaudhry 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 Chaudhry knew where to draw the line.
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Hurting his case further was a sea of contempt notices, as Chaudhry began hauling in anything and everything that dared criticise Their Fair Lordships. In one of his newspaper columns, Lahore-based lawyer Saroop Ijaz cited the British case of McLeod versus St Aubyn from a century ago in which the court had 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 under Chaudhry for its own coloured population was sadly the same.
As with all top-down directives, there were also structural problems with such an approach. While Chaudhry beheaded many a public body for corruption, there were only minimal changes that filtered down to the rest of the organisation. Countless hours of court time were consumed chasing and sacking the bosses of government institutions, only to see them replaced by the government with flunkies even less qualified.
As the court’s caseload soared, poor petitioners waited for Chaudhry who would be busy deciding 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.
In December 2013, Chaudhry laid down his robe on his own terms, no small achievement for a chief justice twice deposed. Yet it was a sobering exit: for a man who had returned to the Supreme Court with petals strewn in his path, he left in relative silence.
With him went much of the court’s audaciousness.
As early as the farewell reference for Chaudhry, the then Chief Justice-designate Tassaduq Hussain Jillani said in his address 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 only minutes earlier. The line in the sand was drawn, and the Chaudhry era came to a close.
Like Shakespeare’s King Lear, Chaudhry is fighting 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 his tenure — 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. They were, and remain, caught in a vicious cycle of delays in court hearings, police corruption, judicial incompetence, and statutes in languages they do not understand. But the failure to reform the jugular vein of the justice system – the lower judiciary – is not a failure of imagination; it is a failure of willpower. Treating lawyers and subordinate judges as the base of his popular support, Chaudhry thought it best not to offend his constituents.
He left us a legacy laced with irony: even as he cast around for his next target, Chaudhry could not once bring himself to look within. “I am a man more sinned against than sinning,” says Lear. 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 proceedings. Unsurprising is the absence of Abdul Hameed Dogar, the judicial Judas who took oath of allegiance to Musharraf-imposed emergency rule in 2007. Dogar is a slur among the bar and the bench today, synonymous with a kangaroo court that did its best to indemnify the last sighs of the Musharraf regime (and later, the birth of the Zardari presidency). In the same way an errant priest is defrocked, so Dogar was stripped of his robe, and his verdicts were voided by the restored chief justice.
Justice Nasir-ul-Mulk now presides over the apex court: a cerebral Inner Templar, he leans towards judicial restraint, a far cry from the activism of the Chaudhry years. His 13-month-long tenure has coincided with Pakistan’s stepping over to the dark side in its war against terrorism, and the casualties are institutions — not since the 2007 emergency has the judiciary been so challenged.
Because on December 16, 2014, the world changed: children were mass-murdered in Peshawar’s Army Public School by the Taliban. Some of the 12-year-old survivors, who once wished to be artists, now said they would join the army. The sentiment spread: wracked with grief, Pakistanis looked for leadership.
Chief of Army Staff General Raheel Sharif vowed to crush the murderers of children. Prime Minister Nawaz Sharif couldn’t bring himself to say the word ‘Taliban’. Rage shifted towards the executive – so the executive channelled it toward the judiciary. ‘Military courts’ – an obvious oxymoron – started making the rounds. Tearing a page out of former American Secretary of Defense Donald Rumsfeld’s playbook, Interior Minister Chaudhry Nisar Ali Khan cited military trials in the United States as justification (because Bush-era failures are what all democracies must aspire to imitate).
An old PMLN trick: when sectarian slaughter spiralled out of control in the late 1990s, the party brought in the Anti-Terrorism Act, and special Anti-Terrorism Courts. When the PMLN returned to power in 2013, it rolled out the Protection of Pakistan Act, and yet more special courts. Now, with the Peshawar massacre, it introduced the 21st Amendment to the Constitution, and brought in military courts. It would have been humorous if it weren’t so tragic: there are now three sets of special courts in Pakistan to get rid of terrorism ‘expeditiously’ (parallel courts of justice, indeed, is the country’s way of sinking ever-deeper into judicial quicksand, with accountability courts, banking courts, and shariat courts galore).
“The independence of the judiciary is essential,” said Prime Minister Sharif, whose party 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 will improve by outsourcing it elsewhere is puzzling if not surprising. Rather than reforming the civilian judiciary, the state is content to see it rot.
Even as Chaudhry cried out against the military courts – a bitter, old king across the sea – his successor kept his counsel. That is, until those courts swung into action last month, sentencing six men to death, and a seventh to life imprisonment. Chief Justice Nasir-ul-Mulk stayed the executions on a petition invoking the Constitution’s Articles 10, 10A, 12, 13 and 14, which, together, provide safeguards against arbitrary arrests and detentions, and guarantee fair trial, protection against retrospective and double punishment, and uphold the inviolability of the dignity of person. Military courts, as everyone knows, are not quite the stickler for such constitutional guarantees.
The stay’s reasoning is clear: until the Supreme Court’s full bench decides the fate of the 21st Amendment, the convicts cannot be executed. This puts the Supreme Court in a bind: caught between the compulsions of the war against terrorism and the merits of due process of law, the court will have to mop up the mess Parliament has made — and not for the first time.
There are indications that the court may bring in the debate over the basic structure of the Constitution to bear on what becomes of the 21st Amendment. During a full-court hearing on April 27, 2015, Justice Ejaz Afzal is reported to have observed, “The very recourse to the 1973 Constitution shows a structure which may be called a basic structure.” This structure, he is reported to have said, is inviolable and should be protected and kept intact.
In one of the shortest tenures for any chief justice in Pakistan, Jillani cemented his place among the country’s greatest.
A day later, another judge was also grappling with the basic structure question. “Can one parliament (by holding that the Constitution has a basic structure which cannot be touched) bind all future parliaments, asked Justice [Asif Saeed] Khosa,” according to daily Dawn.
To the cynic, it is a lose-lose situation: the country will either have military courts or the judges will say that the Constitution has a basic structure set in stone. But there might just be a third way out: the 21st Amendment does not provide military courts the same constitutional protection from judicial review and oversight as Article 245 does for the military’s actions “against external aggression or threat of war” and the measures the armed forces take “in aid of civil power”.
Military courts have been struck down by the courts plenty of times in the past (twice by a sardonic Ajmal Mian). Back in the late 1990s, when scholar and former governor Hakim Said was murdered in Karachi, Prime Minister Sharif wanted military courts to sort out the city. Mian, in Liaquat Hussain versus Federation, held:
“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.” The Supreme Court could, if by a winding path, stop short of striking down the amendment, while holding that the military courts remain invalid as currently envisaged by the Constitution.
This is what makes the current, regressive challenge to the 21st Amendment so dangerous. For the judiciary to raise the flag of basic structure 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, picking and choosing what parts of the Constitution to lend sanctity. It would be best, perhaps, to leave the basic structure theory in India, where it came from.
I hold them very close to my heart,” the 21st Chief Justice of Pakistan, Tassaduq Hussain Jillani, once said of minorities, and for the longest while, the press was disturbed. In a country which has systematically pushed its minorities over the edge, the highest jurist in the land was moving violently off course.
In Lahore, early last month, he is the guest of honour at a public forum. The focus of discussion is his landmark judgement in Suo Motu Case 1 of 2014: Pakistan’s answer to Brown versus Board of Education which did away with segregation. Just as Brown versus Board of Education disinfected the darkness of race and slavery, Suo Motu Case 1 too was a catharsis: the beginning of a march towards a genuine republic, and a better life for its most vulnerable children.
To most observers, the judgement came as a surprise. But, as all those aware of Jillani’s career-long expansion of fundamental rights knew, something similar had always been in the offing.
For Jillani, the 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 17. In a hasty meeting, another judge asked 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 judgement on the street, on Constitution Avenue.”
But when the Taliban 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 Jillani who led the pushback.
So it was that the man many had thought would embody judicial restraint with the same consistency as 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 lynched and immolated, and where Hindu girls are abducted and converted, Jillani played what could have been a losing hand with skill and courage. Suo Motu Case 1 of 2014 finally clarifies the Great Unclarifiable: Article 20 of the Constitution — the freedom to profess, practise, and propagate religion. The verdict 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 anti-infidel warrior lore in a single judgement’s obiter, it seems one judgement – and one man – can go a long way.
In his farewell address, Jillani recited, “Maana ke is jahan ko gulistan na ker sakay/Kaantay toh kuch hata diye guzray thay hum jahan se” (I admittedly could not turn this world into a rose garden/Yet I have removed some thorns out of the paths I traversed).” In one of the shortest tenures for any chief justice in Pakistan, Jillani cemented his place among the country’s greatest.
Suo Motu Case 1 of 2014 also issued directives the federation required 10 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 job quotas for minorities.
Now a year later, at the Lahore forum, with not a single directive having been implemented, the state is in the cross hairs. And representing the ruling PMLN is Special Assistant to the Prime Minister, Barrister Zafarullah Khan. After an effective address on how the state was doing its best, the respected barrister pauses. What follows has been well-considered.
‘Minorities’ is not an expression he prefers, explains Khan, as Islam ensures the composite oneness of the community. He also urges consensus: he is bemused, he says, that his suggestion to sit down with Maulana Muhammad Khan Sherani – head of the Council of Islamic Ideology – was scoffed at by the civil society types. The attendees stare at one another aghast. The maulana the barrister refers to is best known for his take on child marriage (anti-prohibition) and DNA evidence in rape cases (not permissible). So the proposition is tantalising: meeting Sherani halfway – that is, advancing from the Stone Age to the medieval era – might just be doable.
But the note the barrister concludes on is ominous. “Samaaj ki reactionary quwatton ko uchhaalna koi munasib baat nahin hai” (It is not reasonable to upset the reactionary powers of society), he says softly, and ends his address. He is very right — yet this will also mean that those fighting for change will do best to roll over and die.
He is supported on the podium by the PMLN’s Ramesh Kumar Vankwani, who similarly pooh-poohs the phraseology of ‘minorities’. As a Hindu member of the Muslim League, one can sympathise with 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 mind America’s Clarence Thomas, perhaps the least-qualified Supreme Court justice serving today. The proverbial unicorn – a black Republican – Thomas was handpicked by George Bush Senior to sit on the bench. Thomas’s judgements proceeded to shock the world as some of the most conservative Supreme Court opinions since the 1930s.
Among them is his pet take on race: that the Constitution is colour-blind, and to draw attention to black rights is to defeat the purpose of an equal society. His judgements 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 has been breathtaking.
Khan and Vankwani will no doubt agree with Thomas’ 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 A R Cornelius in the Maulvi Tamizuddin case to Nasir-ul-Mulk and military courts — the executive can only be pushed so far. American president Andrew Jackson is (falsely) said to have screamed after 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 make a case to the people. The floor is given to Jillani, who 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.”
Jillani’s judgement did much to plead with liberty 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 antithesis of Clarence Thomas once said, “The arc of the moral universe is long, but it bends towards justice.” Pakistan too will get there, one judgement at a time.
This was originally published in the Herald's May 2015 issue. To read more subscribe to the Herald in print.
The writer is a barrister who studied law at the London School of Economics.