Books: Highs and lows of the law

A straight forward appraisal of the judiciary

The titles of 18 chapters summarise the writer’s view about the quality of the court under discussion. While Hamid Khan generally evaluates each court somewhat dispassionately, the chapter dealing with the Cornelius Court is altogether laudatory, creating a perception of partiality

This is a critical study of the judiciary in Pakistan from the inception of the country in August 1947 to March 2009. Among other things the book explains why the history of judiciary in Pakistan is less than glorious.

Divided into 19 chapters, each one except the first, which is introductory, dealing with a particular period under a Chief Justice of the Supreme Court, the book provides comments on major judgments delivered by each court and assesses whether these helped develop or retard the judicial system. There are also comments on the way the High Courts functioned in each period. The book also takes into account the policy of governments towards judiciary and how it affected the courts.

The titles of 18 chapters summarise the writer’s view about the quality of the court under discussion. While Hamid Khan generally evaluates each court somewhat dispassionately, the chapter dealing with the Cornelius Court is altogether laudatory, creating a perception of partiality.

The conclusion that emerges after reading the book is that an independent judiciary has been unacceptable to Pakistan’s ruling elite comprising bureaucrats, politicians and generals. Every government therefore took measures to curb the freedom of the institution. The measures included appointing blue-eyed boys to key judicial posts, withholding the promotion of independent judges, introducing constitutional amendment to extend the tenure of a favourite and, in the case of military rulers, requiring administration of a new oath to judges that bound them to carry out the orders of the military ruler. Another measure was to appoint judges known for corruption as they were seen to be amenable to government pressure.

The defiance by CJ Iftikhar Chaudhry of Pervez Musharraf who was both COAS and president was the first of its kind in Pakistan’s history. This infused a new spirit in the legal community all over the country and roused the civil society. This led to highly emotional scenes at Chaudhry’s appearance during the Lawyers Movement

Justice Muhammad Munir, who authored two controversial judgments that were to haunt the country for decades, was appointed Chief Justice of Pakistan out of turn through intricate maneuvering by Governor General Ghulam Muhammad.

Ayub Khan took measures to ensure that justice MR Kayani, who was critical of the military rule, was not elevated to the Supreme Court. Ayub also resorted to a judicial fiat to stop Justice Shabbir Ahmad, another independent and bold judge, from assuming the post of the CJ West Pakistan High Court.

Ayub politicised the appointment of judges. This is how Hamid Khan puts it:

“He (Ayub Khan) appointed High Court judges at his whims and fancies. The Deputy Speaker of the National Assembly, Muhammad Afzal Cheema, was appointed a judge of West Pakistan High Court in 1965 in return for a favour he had done for Ayub. Cheema had made no appearance at the High Court as an advocate, and his appointment was purely political, Yousaf Khattak, a prominent politician from NWFP, supported Ayub at the Presidential election of 1965; naturally Ayub wanted to repay the debt. `Yousaf Khattak, when asked what favour could be done to him, requested that his brother, Abdul Ghani Khan Khattak who had no appearance at the High Court to his credit, be appointed a judge. Ayub complied and his appointment came as big surprise to the people and lawyers of Pakistan. A lawyer without brief, Shamim Hussain Qadri, was appointed a judge of the West Pakistan High Court in 1966 because Ayub’s Pir (of Dewal Sharif) recommended him”.

The judges were required to appear for an interview before Ayub at President’s House. During such interviews he was assisted by the central law minister. “The recommended candidates for judgeship would sit in the waiting room and called one by one for the interview which would last between five and ten minutes. The time taken was certainly not enough to judge anyone’s legal acumen and competence. The decision in most cases had been made earlier on political or personal considerations; the interviews were only a formality. But the message went out loud and clear — that judicial appointments were being made by the executive head of state and that those appointed should remain beholden to him.

ZA Bhutto introduced Sixth Amendment in the Constitution to extend the term of his favorite CJ Yaqub Ali. He also appointed Aslam Riaz Hussain who was junior to seven judges as CJ Lahore High Court.

Benazir Bhutto promoted Justice Sajjad Ali Shah instead of Justice Saad Saood Jan who was the senior most and highly respected judge as CJP. Justice Jan was bypassed because being an independent judge he was considered unreliable by the PPP.

Both the father and the daughter found to their dismay that their protégés did not return the favours when needed.

ZAB did not have to wait for long to learn that. When he imposed martial law in Lahore, Karachi and Hyderabad under Article 245 of the Constitution, it failed to control protests. Taking into account the mood of GHQ a full bench of the Lahore High Court presided over by CJ Aslam Riaz Hussain declared the martial law unconstitutional.

Benazir Bhutto believed that the judiciary had always sided with the PML-N. During her second tenure she decided to pack the courts with PPP loyalists. She promoted the CJs of the Lahore and Sindh High Courts to the Federal Shariat Court as she did not trust them. Instead of filling the vacancies with permanent CJs she appointed ad hoc Chief Justices in their place as they were supposed to be more amenable to the executive’s pressure. Nine party loyalists were then appointed judges in Sindh High Court and twenty in Lahore High Court.

The SC under CJ Sajjad Ali Shah accepted the appeal against the appointments. In the famous Judges’ Judgment, the apex court ordered the government to appoint permanent Chief Justices in the High Courts within thirty days. These in turn were to review the recent appointments. Those regarded unfit were to be dropped.

Judges too have been responsible for damaging the image of the judiciary. At times it suited Chief Justices of High Courts to refuse to accept their promotion to the Supreme Court. The Lahore High Court with hundreds of judges at various levels provided more authority, power and privileges to the CJ. Chief Justices in several cases therefore let juniors be promoted as Supreme Court judges. Among those who indulged in the practice were Justice Munir, Justice Sardar Muhamad Iqbal and Justice Maulvi Mushtaq Hussain.

The judges had a fair share of black sheep among them. The writer names a Supreme Court CJ who was known for taking bribes in return for favours. The judge suited Pervez Musharraf. Another judge during Musharraf’s tenure would willingly carry out whatever directives were given by the military ruler. After retirement he was appointed Chief Election Commissioner and conducted the notorious referendum which was supposed to provide political legitimacy to Musharraf.

There is an interesting comment in the book on how the judiciary reacted to military coups which indicates its weaknesses.

“There has been a tendency on the part of the judges whenever the military takes over power, for making accommodation with the military regime in order to save the judiciary from disruption and thus ensure its continuity. In the case of Zia martial law in 1977, the judiciary was completely on board with him. The Chief Justices of the High Courts accepted the offices of acting Governor in their respective provinces. They thus became collaborators of the Zia regime. In the case of the takeover by Ayub in October 1958, except for the Dosso case upholding martial law there was apparently little interaction between the judiciary and the Ayub regime. There was some resistance from certain independent judges, like Kayani and Shabbir, although it was insufficient to throttle the regime. The judiciary looked the other way as Yahya imposed martial law in March 1969. The situation in 1999 was no different. The judiciary, particularly in the first week or so, had the opportunity to strike against Musharraf’s regime, but the judges let the opportunity pass”

The defiance by CJ Iftikhar Chaudhry of Pervez Musharraf who was both COAS and president was the first of its kind in Pakistan’s history. This infused a new spirit in the legal community all over the country and roused the civil society. This led to highly emotional scenes at Chaudhry’s appearance during the Lawyers Movement. These were soon to be replaced by a bitter sense of betrayal when Chaudhry was seen to be helping his son become a big businessman through questionable means.

 A History of Judiciary in Pakistan by Hamid Khan,
OUP,
Pp 562,
Price Rs 1595