Free Judiciary: A Dream Gone Sour
By Dr Asif Javed
Williamsport, PA

Justice Jamali, the recently retired Chief Justice (CJ) of Pakistan seems confident that Courts are free. Really? Let us go through the history of Pakistan’s Judiciary.
A convenient starting point is 1954. Many are familiar with Tamizuddin’s petition in the Sind Chief Court. As president of Pakistan’s Constitutional Assembly, he had challenged the Governor General’s decision to dissolve it. A unanimous verdict was given against the Governor General. What followed, however, was the beginning of a long and unfortunate tradition of meek subservience by the judiciary to the executive.
The Federal Court headed by Justice Munir reversed the Sind Chief Court’s decision, citing the infamous Kelsen’s doctrine of necessity, effectively giving a free reign to Ghulam Mohammad. (Decades later, Justice Ajmal Mian was to describe this doctrine obsolete, based on falsehood that has encouraged and supported illegal military takeovers).
There was one dissenting voice: that of Justice Cornelius. In Shahabnama, Qudratullah Shahab confirms the secret communication between Ghulam Mohammad and Justice Munir. Here is what Justice Samdani writes about this:
The judiciary misled the nation. Instead of giving its verdict on proper legal and constitutional rules, it favored Martial Law govt., having relied on a highly questionable technicality….Federal Court’s decision has had devastating consequences for our nation and created an unfortunate precedent for the judiciary. On multiple occasions since, the courts have favored defacto over dejure govt.
About the state of the nation in general and judiciary in particular, this is what he writes:
Wherever one looks, one sees problems. And to make it worse, there is no realization that there is a problem…we lack vision and maturity. Despite the constitution asking for clear separation of executive and judiciary, we have not allowed it. As a matter of fact, our thinking is flawed…the rot started from the educational institutions and has now spread to the judiciary. Our immaturity has done a lot of damage. Hardly any institution has been spared.
Harsh words indeed! But readers are reminded that this scribe is only reporting what Justice Samdani has written. A dejected Samdani then quotes a verse:
Waayee nakamee mataye karwan jataa raha
Karwan ke dil say ahsase ziyan jata raha
Some may not remember Justice Samdani. But he was one of the few who defied Zia and accepted Bhutto’s bail application on merit. He was also one of the few men of conscience who refused new oath of office that was enforced by the military government. Samdani accepted premature retirement and so ended the career of one of the brightest Judges, an upright man who had Rs 300 in his bank account at the time. Samdani has criticized the behavior of some Judges who do not keep an open mind about the case, consider their opinion final, talk more than the lawyers, are not eager to learn, and do not always understand and practice the AdversarialSystem.He also notes that many lawyers are more interested in politics and gossip than learning the Art of Advocacy that seems to have died.
And then there is rampant greed. Back in the 80’s in Zia’s time, some high court judges were appointed acting governors of the four provinces. As law secretary, Samdani was asked whether the acting governors were allowed to import Mercedes Benz, without import duty. Samdani said no because acting governors were still judges and therefore not exempt from the obligations and restrictions imposed by their profession. The Martial Law authorities wanted to oblige the judiciary and referred the question to the CJ who gave his prompt approval. All four judges imported the expensive cars. A decent man to the core, Samdani does not name the beneficiaries of this flagrant conflict of interest. Samdani does criticize ZA Bhutto for his resentment of Judiciary’s independence but has reserved the harshest criticism for Zia who “did more damage to the institutions than anyone before him. As for the judiciary, it was not only a silent spectator for eleven years but, in some ways, actively supported and advised the military regime.” So much for independence!
Justice Shamim Qadri has also made scathing remarks about Justice Munir’s decision in the Tamizuddin case calling it “a decision influenced by political considerations.” In his book Judges andPolitics, he narrates multiple cases of intimidation of the Judiciary. Here are a few examples:
Gen. Bukhtiar Rana was stopped from arresting Justice Rustam Kyani by Ayub Khan’s personal interference only. The Gen. was upset at outspoken Kyani who might have rubbed him the wrong way. On another occasion, two judges of Punjab High Court received notices from Gen. Mitha who wanted them to appear before him in Multan. He had to be restrained by Gen Attiq-ur Rehman. Back in ZA Bhutto’s time (Shamim Afridi vs Punjab 1973), the presiding judges were subjected to all kinds of insults and intimidations by Gen. Tikka Khan. In yet another case, Rao Rashid, one of Bhutto’s advisors and Governor of Punjab (presumably Khar) threatened to burn Justice Qadri’s house and to eliminate his family.
There have been many other instances of executive’s interference in the Judiciary. A most unfortunate decision by ZA Bhutto’s government was to make the 5thamendment to the 1973 constitution. This led to the premature retirement of highly respected and popular Chief Justice of Punjab, Justice Sardar Iqbal, while at the same time giving an undeserved extension to Justice Yaqoob in the Supreme Court. Bhutto’s short-sightedness was to cost him dearly for it was the compliant and meek Justice Yaqoob who later advised Zia to suspend the 1973 constitution, and bring in Sharifuddin Pirzada as legal advisor. It was Pirzada who advised Zia to bring Justice Mushtaq back from abroad. Wily and treacherous Pirzada was aware of Justice Mushtaq’s animosity towards Bhutto. The rest is history.
Justice Javed Iqbal has written of an incident when Justice Afzal Zulla was scared to death of scary faces that would appear in his house, protruding through the windows and sometimes through the gutters. Zulla was convinced that this harassment was being carried out by police at the orders of Governor Khar. Justice Jamali may have forgotten but back in 1997, one of his predecessors, Justice Sajjad Ali Shah had to run for his life when the Supreme Court was attacked by the goons of Nawaz League. Some of them sit in the National Assembly these days.
Some of the blame for our checkered history does fall on the lawyers. It is ironic that the country that was first dreamed of by a lawyer – Iqbal-and then made a reality also by a lawyer – Jinnah, a man of impeccable integrity-has had the misfortune of producing sycophants like S. Pirzada and AK Brohi who have played a most deplorable role in supporting most military regimes. Pirzada, in particular, simply refuses to go away; he was around as recently as Musharraf’s time. The Jadoogar of Jaddah, as late Ardsher Kawasjee used to describe him, has played havoc with the constitution of Pakistan with his dubious and self-serving advice that has always been available to military dictators, for a price, of course.
There have been compliant judges who have been scared of giving a verdict against the government. Justice Javed Iqbal has had the courage to name one such judge: Karam Elahi Chuhan; he once gave Javed Iqbal some tricks of the trade. Among those was his habit of keeping two opposite verdicts in a sensitive case involving the government. Based on the need of the hour, the esteemed Justice would produce one—or the other—verdict out of his pocket. So much for integrity!
I have recently been dreaming of a Judicial Hall of Fame in Pakistan, next to a Hall of Shame. I already have a few names for the former: A. Rashid, Cornelius, Hamoodur Rehman, Rustam Kyani, Shabbir Ahmad, Durrab Patel, Samdani, Safdar Shah and the like. For the latter, I have some candidates too: Munir, Anwarul Huq, Mushtaq Hussain, Yaqoob, Malik Qayum, Iftikhar Chaudhry, Irshad Hasan and Halim, among others. I am unsure of Justice Jamali’s place as yet.
As for the Supreme Court bench about to take up the Panama Case against the Prime Minister, I am holding my breath. We are told that Justice Asif Khosa, who was my senior at Govt. College, Lahore, is going to head the bench that is going to hear what may turn out to be a landmark case in the history of Pakistan. Justice Khosa probably still remembers the Govt. College emblem-courage to know. Perhaps this old Ravian and his fellow judges will have the courage to deliver when so much is at stake. Iqbal and Jinnah’s Pakistan expects and surely deserves it.
(The writer is a physician based in Williamsport, PA and may be reached at asifjaved@comcast.net)
Books cited: Shahabnama by Qudratullah Shahab
Jaiza by Justice (R) Mohammad Samdani
Judge aur Siasat by Justice (R) Shamim Hussain Qadri
Apna Gareban Chak by Justice (R) Javed Iqbal