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History

=Chief justices over the ages:Pakistan

Deception to every rule

By Anjum Niaz

Dawn

Anjum niaz

Uneasy must lie the head wearing the crown while a non-functioning chief justice has taken a shine to the people’s court.

Chief Justice Iftikhar Chaudhry’s road show drew bumper crowds but in Karachi in company of Aitzaz Ahsan, currently closeting up as his attorney, chauffer, bodyguard, minder and spokesman. Forget the recent bloody brawls between MQM and the rest of the political parties. The disfranchised dictator, porous parliamentarians, politically-charged militants on a rampage, and corrupt bureaucracy speak with forked tongues. They lie to us with brazen faces. They hold rallies with our money and have the temerity to tell us how popular they are.

In their time, had honourable chief justices Muhammad Munir, A R Cornelius, Hamoodur Rehman, Yaqub Ali, Anwarul Haq outlawed martial law and tried the generals who abrogated the Constitution, General Musharraf today would be addressing the GHQ instead of rented rallies posing as a populist. Justice Kayani was different. He was a principled dissolute – unrestrained by convention: “Field Marshal, when you imposed martial law first there was silence, then we started to hear whispers and sir, when many people whisper it can turn into a whispering campaign,” M. Rustam Kayani had blurted out to Ayub Khan at the CSP Academy in Lahore 49 years ago. The latter’s face had turned red.

“Judges are a part of society in which they live and they cannot but be influenced by the pressures of public opinion,” Justice Kayani would argue. His conscience was swayed by popular sentiment and not the presidency. No wonder he never made it to the Supreme Court. Justice Dorab Patel too spurned the frills of the Supreme Court opting to resign in 1981 rather than taking the oath of allegiance to Ziaul Haq.

Justice Patel died leaving behind a deeply felt book Testament of a Liberal. In it, some brother judges are shown as “more political than legal.” He quotes C J Munir’s (1954-60) dictum which the CJ himself had violated: “When politics enters the portal of the Palace of Justice, democracy, its cherished inmate, walks out by the backdoor.”

Justice Munir validated not only the 1958 coup but “all future coups, provided they are successful”. Many years after his retirement, Justice Munir revealed that he was summoned by General Ayub Khan a day before the coup and shown a draft of “The Laws (Continuance of Force) Order which cancelled out the 1956 Constitution and the Fundamental Rights. Instead of dismissing it outright, the honourable judge became a party to it.

Cases questioning martial law and its critics were tried and convicted by a jirga under the Frontier Crimes Regulation. The Supreme Court lumped all such decisions under State v. Dosso and others (PLD 1958 SC 533). Justice Cornelius wrote a “lengthy hymn of praise of jirga trials…With respect, this was a function more appropriate for a politician than a Judge,” writes Justice Patel. Cornelius’s judgment in Dosso’s case was a “disaster for human rights of millions of people.”

Governments and public authorities are the worst enemies of rights of all types, continues Justice Patel, giving another example of Chief Justice Cornelius (1960-68) accepting Ayub Khan as the “Supreme Authority.” In Malik Ghulam Jilani v the Province of West Pakistan case, the appellants were held under the Defence of Pakistan Rules for criticising Ayub’s government. The CJ in his judgment wrote: “[the plea of the appellants] appears indeed to be a justification for politicians to play with fire in the hope that they will eventually be able to subdue the conflagration they cause. To bring about political changes by Constitutional means alone is legitimate.”

Kowtowing to the rulers, the judiciary in the past abhorred criticism. The Supreme Court didn’t even spare law secretary Sir Edward Snelson for his criticism of judges. Under contempt of court, a bench comprising Justice Shabbir Ahmed, Justice Yakub Ali and Justice Ortcheson fined Snelson Rs2,000 -- the maximum fine permissible under the Contempt of Courts Act, 1926. Ironically, Justice Shabbir Ahmed after retirement practised law and was convicted in a similar contempt of court case when he commented on a case under review by the SC in a newspaper interview.

Chief Justice Hamoodur Rehman(1968-75) followed his predecessors’ practice of not ruffling the rulers. Justice Patel says that the CJ set aside Government of West Pakistan v Begum Kashmiri case only after he noticed that “times were changing… it seemed that the tide had turned against Ayub.”

Chief Justice Yaqub Ali (1975-77) was no different. He dissented with his brother judges on providing relief to Ch Zahoor Elahi and his family whom Bhutto had victimised repeatedly. The CJ also caved in to Bhutto in Wali Khan’s case. Later his party, National Awami Party was dissolved for working against the “interests of the state.” Bhutto warned the judges that the “responsibility of the consequence will be of the Supreme Court” should they reject his reference against NAP. Rushing to Bhutto’s defence was the CJ: “The PM did not intend to show any disrespect to this court and to influence its decision in any way,” said the CJ. Such gratuitousness, writes Patel, “had a disastrous effect on the image of the judiciary.”

Thus ends the tale of opportunities missed or mis-chosen by our chief justices in the past.

“The path to criticism is a public way; justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respect, even though outspoken, of ordinary men,” remarked a British jurist Atkins on the law of contempt. As citizens we have every right to be interested in the verdict the CJ gets. Speculate on what will be a just verdict we should not but expect a just verdict we should.

Chief justices past & present Pakistan

By Kunwar Idris

Dawn

Chief justices

THERE were times when Pakistan took pride in the independence of its judges as much as in that of its tribesmen. Now a question mark hangs over both.

In addition, the tribal elders were loyal and the judges learned. The question mark hanging over these virtues, if at all, is bigger. Though their place in society and role in governance are poles apart, the judiciary and the tribes now stand at the centre of the storm of national discontent. While the courts are faltering in administering the law the tribes are conniving in militant terror, if not actually fomenting it.

There was a time when the chief justice of Pakistan wouldn’t agree to dine with the prime minister lest the people think he was in any way beholden to him. Sir Abdur Rashid may have been unduly circumspect in declining Liaquat Ali Khan’s invitation to dinner but later all kinds of doctrines came into existence to justify deviations from the constitutional course.

His successor, Justice Munir, was a regular diner with Governor-General Ghulam Mohammad. The precedent that he set has since held sway despite Cornelius’s powerfully reasoned dissent. More benches and judges have followed the example of Munir rather than that of Rashid.

The tribes straddling Durand Line once kept vigil over the country’s un-demarcated northwest frontier to keep undesirable intruders out. Now some among them allegedly shelter, train and arm foreign terrorists. The answers to judicial and tribal problems are similar. Both should be left to work under the law or following their respective traditions without interference by the government or the military.

Terrorism now can be compared to a cyclone with Pakistan as its eye. The worldwide indignation the Mumbai carnage has aroused no longer leaves the government here free to deal with terrorism as it has been doing in the past or would now like to do. Almost certainly it would feel compelled to follow the strategy the world and regional powers evolve. This subject could rest at that till the investigators finally get a clue.

Pakistan, however, is free to put its judicial house in order, and that it should be doing straightaway if the people’s vanishing confidence in the impartiality and competence of the courts is to be restored. The essential steps towards this goal would be to determine how to select the judges of the superior courts and enable them to act freely under the law.

The appointment of judges in most countries is in the hands of the chief executive of the country. In Pakistan’s constitution, as amended by Gen Musharraf, they are appointed by the president at his discretion, though the chief executive is the prime minister. So it seems it will remain as President Zardari has shown little inclination to undo Musharraf’s amendment.

There is thus no getting away from this position although, in a cynical vein, such judges cannot but be the creatures of the party in power. The remedy, however, lies in laying down some elaborate and binding eligibility criteria rather than involving more people who would surely bring to bear their own preferences and prejudices on the selection process.

Equally critical is the selection of the chief justice which is also the privilege of the president. The judicial advice has been to go by the seniority of the judges which surely precludes discretion but, more dangerously, also merit. It has given the country chief justices who would never have made it on merit. Yet it is a safe rule. Ignoring seniority carries the hazard of a judge becoming a chief justice who is neither senior nor competent. Such a move is said to be in the making at this very moment.

This risk, however, must be viewed against an eventuality like the one reported by a journalist from America on the appearance of deposed Chief Justice Iftikhar Chaudhry at the Harvard Law School and Georgetown University. “The listeners,” the journalist wrote, “sat squirming and heaved a sigh of relief” as Chaudhry read his incoherent, interminable speech and “hardly a sentence from his off-the-cuff remarks was mistake-free.” Mr Chaudhry, as we all observed, had brought about almost a revolution by defying enormous pressure to resign. But then the chief justice of a country must also be able to communicate with the audience of an institution which had heard Nelson Mandela on receiving the same medal of honour as was awarded to Iftikhar Chaudhry.

Another, and more painful, hazard of the seniority rule is currently being reported in the press in great detail concerning the conduct of the successor to Mr Chaudhry. It has been noted by some commentators that the incumbent chief justice should have stepped down before the matter of his daughter’s marks’ enhancement assumed the proportions of a scandal.

Incidentally, the charges that advocate Naeem Bokhari had made against Justice Chaudhry (he still lays claims to the office) should also be investigated for they were equally degrading. If found baseless, at least Mr Bokhari should be punished for the perjury even if the chief justice, who raised a storm which swept away Gen Musharraf, is not to be indicted.

Lawyers and lawmakers need to sit together and suggest a method for choosing a chief justice who is not just the most senior but also able, articulate and unapproachable and whose integrity is beyond reproach. Surely we have judges combining all these virtues in their persons.

While it is for the president and parliament to lay down a procedure for the appointment of judges which is transparent and fair, it is equally incumbent on the judges not to trespass on the jurisdiction of other organs of the state. They must enforce the law but not create one. If a law is defective, as Justice Katju of India recently observed, “it is for the people to correct the defects by exercising their franchise properly or by other lawful methods e.g. peaceful demonstrations”.

Judges must not act like legislators or administrators. Too late though it might be, it must be said expressly for the benefit of Mr Chaudhry that a chief justice is not the ultimate saviour of the people nor should his court be the institution of first remedy. If he could be one, or both, it is when a citizen is persecuted or even murdered for his religious belief. And that no chief justice has ever been — not even Chaudhry. n

kunwaridris@hotmail.com