Shakers and shapers of Pakistani law

Published September 18, 2016
The Supreme Court premises in Islamabad. — Reuters
The Supreme Court premises in Islamabad. — Reuters

In his latest book, Hamid Khan seeks to narrate the judicial history of Pakistan. One approach to such an exercise treats judges as a collective whole. Their judgments are then analysed collectively to identify an underlying institutional philosophy and the emergence or recession of jurisprudential trends. Similarly, the effect of political or historical events upon judicial decision-making are analysed on an institutional plane. Even where divisions within the judicial institution are acknowledged, the actors are defined merely as proponents or opponents of a particular jurisprudential trend within the institution.

Khan shuns this de-individualised approach to history. For him, the judiciary comprises men who happen to be judges. Among judges, Chief Justices (at least in Pakistan) wield the most influence. Thus, to understand the decisions of the Pakistani judiciary, one must understand its Chief Justices and their passions, prejudices, capabilities and motivations.

Khan also argues that many of our important Supreme Court judgements were the result not of any consistent juristic philosophy, but of pragmatic considerations. He feels it is difficult to identify judges as “liberal interpreters, strict constructionists, judicial activists or proponents of judicial restraint” since they “change their views according to exigencies”. Thus, he prefers to focus on the unspoken motives and the discussions and negotiations between judges inter-se and with the government or the army which, he argues, were the proximate cause behind many famous (or notorious) judgements.

The difficulty with Khan’s approach is that it requires lifting the veil judges wrap around themselves and their work. In the past, outsiders have shied away from lifting the veil due to the ever-looming sword of contempt. On the other hand, judges who have published memoirs after retirement have either been too steeped in the habit of judicial discretion (rendering their accounts anodyne) or too blatantly self-serving (rendering their accounts unreliable).

Hamid Khan’s ambitious volume that chronicles the judicial history of Pakistan is not without its shortcomings, yet makes a significant contribution to the judicial literature available

Khan, however, is uniquely placed to lift the judicial veil. Having practised law for 45 years, he has personally witnessed many defining events of our judicial history. His immersion in bar politics has also helped; at one point or another, every little bird fluttering in the Aiwan-i-Adl has whispered in his ear. Moreover, on an individual level, he has enjoyed personal relations with Chief Justices as far apart as A.R. Cornelius (1960-1968) and Jawwad Khawaja (2014).

Thus, Khan divides his history into chapters according to the eras of the various Chief Justices of the Supreme Court. After mentioning the other notable judges of that era, he analyses the important judgements and judicial events of that period. Each chapter ends with a brutally honest assessment of the particular Chief Justice under discussion — as a man and as a judge.

The book’s fearless characterisations of different Chief Justices are illuminating. They are also unprecedented. Some of Khan’s verdicts, therefore, are worth summarising: Mian Sir Abdul Rashid — fair, honest and a gentleman; Muhammad Munir — extremely competent but lacking in commitment and character; Cornelius — a liberal, progressive and erudite jurist; Hamoodur Rahman — a man of great learning and integrity; Yaqub Ali — a good judge but unable to resist the temptations of self-advancement laid in his path by Bhutto; Anwar ul Haq — honest and competent but willing to be used as a tool by Gen Ziaul Haq; Muhammad Haleem — honest, progressive, liberal but intimidated by Gen Zia; Afzal Zullah — financially clean but legally confused and disliked for his rudeness and zealotry; Naseem Hassan Shah — competent, liberal but morally suspect; Sajjad Ali Shah — financially clean but biased, opinionated and vindictive; Ajmal Mian — honest, upright and diligent but prone to long-winded and inarticulate judgments, Saeeduzzaman Siddiqui — intelligent and lucid but hesitant to confront military might; Irshad Hasan Khan — intelligent but a rank opportunist and intriguer; Shaikh Riaz — corrupt and incompetent; Nazim Hussain Siddiqui — honest but spineless and mediocre.

The book is similarly compelling where it recounts historical anecdotes that bare the motivations and machinations of Chief Justices and judges and their discussions and negotiations that led up to some of our most famous judgements.

Khan starts with the first Chief Justice of the Federal Court (predecessor to our Supreme Court) — Sir Abdul Rashid. At that time, Muhammad Munir was the Chief Justice of the Lahore High Court. Munir had clung to that post by refusing elevation and having junior judges, including Cornelius, sent in his place to the Federal Court. Thus, when Sir Abdul Rashid retired, the next senior Federal Court judge A.S.M. Akram (a Bengali) expected to be appointed Chief Justice. He did not reckon on Munir’s ambition or Governor-General Ghulam Muhammad’s wiliness or the underlying prejudice of the West Pakistani establishment. Ghulam Muhammad informed Akram that he intended to replace Rashid with a British Law Lord. Just three years after Independence, this was intended to arouse Akram’s patriotic instincts who predictably replied that even if, for some reason, he was unsuitable, any Pakistani Chief Justice would be preferable to a British import. That was enough for Ghulam Muhammad to vault Munir over four sitting Federal Court judges and appoint him their Chief Justice.

Munir was, thus, in debt to Ghulam Muhammad who duly called in that debt in 1954 when he dissolved the Constituent Assembly. Munir paid his dues through the Maulvi Tamizuddin judgement refusing to restore the dissolved Assembly, but only at an enormous cost to the nation and the development of its constitutional jurisprudence.

Khan also relates how Munir manipulated the constitution of the bench in the Maulvi Tamizuddin case to bring about Ghulam Muhammad’s desired outcome. Apparently, Munir foresaw Cornelius’s minority dissent and apprehended that Shahabuddin or Akram might join him. That would turn Munir’s majority into a minority. To forestall this possibility, Munir asked Ghulam Muhammad to remove Shahabuddin from the bench by appointing him governor of East Pakistan and fill the vacancy with a more pliable ad-hoc judge. Ghulam Muhammad obliged and Munir successfully cobbled together a 4-1 majority judgement.

The book also reproduces Cornelius’s insights into the workings of Munir’s mind. Apparently, Munir would boast of his ability to write two judgements in a criminal case — one for conviction and one for acquittal— both equally convincing and legally correct. He also termed the law as an instrument to be used by the judge to reach his desired result. Hardly surprising, then, that this fertile and flexible mind was responsible for introducing the “doctrine of necessity” and the “doctrine of legitimacy of a successful revolution” in the legal lexicon of Pakistan. These treacherous weeds took firm hold in the minds of weak judges over the next 60 years and were used again and again to justify military coups.

Cornelius and Hamoodur Rahman, however, attracted high praise from Khan who regarded them as Pakistan’s finest Chief Justices. He points out, nevertheless, that until the appointment of Rahman (a Bengali) in 1968, the three Chief Justices from West Pakistan — Abdul Rashid, Munir and Cornelius — enjoyed a cumulative tenure of 18 and a half years while the Chief Justices from East Pakistan — Shahabuddin and Fazle Akbar — only had a cumulative tenure of six months. Regardless of the cause, this disparity created resentments. By the time Rahman was appointed, it was too little too late.

Surprisingly, Khan’s trove of insider stories diminishes with the passage of time. Thus, the tenures of the 21st century Chief Justices are covered primarily with a factual narration of the important cases decided in that period. Indeed, the tenure of Iftikhar Muhammad Chaudhry — surely amongst the most important Chief Justices in Pakistani history — is only partially covered (up to 2009) and, that too, in superficial depth.

Yaqub Ali’s tenure as Chief Justice marked, according to Khan, the steep decline of the Pakistani judiciary. During this period, Bhutto sought to bring the judiciary to heel through the Fifth and Sixth Amendments to the Constitution — both dealing with the tenure of Chief Justices. The Fifth allowed Bhutto to replace Sardar Iqbal as Chief Justice of the Lahore High Court with Aslam Riaz Hussain — a friend of Zulfikar Ali Bhutto’s Attorney General Yahya Bakhtiar. In the process, the senior judge Maulvi Mushtaq was superseded and left embittered. The Sixth Amendment, on other hand, extended the tenure of Ali (who was close to Bhutto) as Chief Justice and roused the ire of the senior judge, Anwar ul Haq.

Bhutto paid a heavy price for these Amendments. When Gen Zia took over, he annulled both amendments. Resultantly, Maulvi Mushtaq and Anwar ul Haq became Chief Justices of the Lahore High Court and the Supreme Court respectively. Mushtaq presided over Bhutto’s trial for murder and — refusing all pleas to recuse himself — sentenced Bhutto to death. Haq presided over Bhutto’s appeal to the Supreme Court and upheld the sentence.

Khan also quotes Nasim Hassan Shah’s account of the behind-the-scenes judicial discussions about the verdict in Bhutto’s case. Apparently, Chief Justice Anwar ul Haq and other pro-conviction judges, including Shah, were anxious to secure a unanimous verdict. Thus, Shah was dispatched to the house of Dorab Patel — the most senior of the pro-acquittal judges — to ask whether they would change their verdict to guilty if Bhutto’s sentence was converted to life imprisonment. Patel refused to compromise. Khan, however, doubts Shah’s account and argues that even if such an exchange did happen, it was meaningless since the decision to hang Bhutto had been taken — with the acquiescence of Haq — even before the trial.

Bhutto’s introduction of the Fifth and Sixth Amendments had another unintended effect. According to Khan, in Nusrat Bhutto’s case, the Haq court validated Gen Zia’s takeover but did not allow him the power to amend the Constitution. When Gen Zia’s legal advisor, A.K. Brohi, learnt of this he confronted Haq directly. Upon Haq’s confirmation, Brohi asked him to delay the judgement for a few hours so the government could fly Yaqub Ali back to resume the Chief Justice’s office. Brohi explained that if Gen Zia did not have the power to amend the Constitution, he could not have annulled the Sixth Amendment and, in such a case, Ali was entitled to continue as Chief Justice. Haq got the message and hastily inserted in the judgement — in his own handwriting — an amending note allowing Gen Zia the power to amend the Constitution.

Nevertheless, after getting Anwar ul Haq and Maulvi Mushtaq to do his dirty work, Gen Zia decided to cut them down to size. He ordered all Superior Court judges to take a fresh oath under the Provisional Constitutional Order (PCO) if they wished to continue in service. Dorab Patel and Fakhruddin G. Ebrahim flatly refused. Others, like Haq and Mushtaq (now in the Supreme Court), argued in favour of taking the proffered oath. Eventually all the Supreme Court judges except for Patel and Ebrahim agreed to take an oath under the PCO. At this point, however, Gen Zia told Haq that he would not administer a fresh oath to Maulvi Mushtaq. Since Haq felt a personal loyalty to Maulvi Mushtaq, he tried reminding Gen Zia of Mushtaq’s services to the military regime. Gen Zia refused to budge. Eventually, Haq threatened that if Maulvi Mushtaq was not administered an oath, he would not take the oath either. Gen Zia remained unmoved and thus Haq was cornered into refusing the oath and stood unceremoniously retired.

After describing the Supreme Court’s gradual resurgence following Gen Zia’s death under the stewardship of Chief Justices Haleem, Zullah and Naseem Hassan Shah, Khan moves to the most controversial period in Pakistani judicial history: the era of Sajjad Ali Shah. This period witnessed not only the storming of the Supreme Court, but also the bizarre spectacle of parallel benches passing restraining orders against each other. Khan quotes senior PPP lawyer Aitzaz Ahsan to explain how Shah vaulted over three senior judges to become Chief Justice. Apparently, after Naseem Hassan Shah’s retirement, Benazir was ready to appoint the next most senior judge, Saad Saood Jan, as Chief Justice but became incensed at his refusal to induct PPP nominees directly into the Supreme Court. Thus, she sent Ahsan and Asif Zardari to assess Shah at the Supreme Court rest-house in Lahore. When they arrived, Shah was waiting in the car porch to greet them and leapt forward to open Zardari’s door personally. Once inside, he touched Zardari’s knees and assured his loyal obedience to the PPP if he was appointed Chief Justice. Given Shah’s evident lack of restraint and dignity, the sorry mess he left of the Supreme Court was perhaps inevitable.

Surprisingly, Khan’s trove of insider stories diminishes with the passage of time. Thus, the tenures of the 21st century Chief Justices are covered primarily with a factual narration of the important cases decided in that period. Indeed, the tenure of Iftikhar Muhammad Chaudhry — surely amongst the most important Chief Justices in Pakistani history — is only partially covered (up to 2009) and, that too, in superficial depth. Moreover, since the book ends with Chaudhry’s restoration in 2009, we are deprived of Khan’s character assessments of more recent Chief Justices, including Chaudhry himself. This is all the more surprising when one considers Khan’s intimate knowledge of most judicial events and developments in the last decade or so and his personal familiarity with recent Chief Justices. Perhaps he considers it too early to raise the veil on them, but one hopes this shortcoming will soon be removed.

The weakest aspect of the book, however, is its inordinate length. The obvious scapegoat is the detailed synopsis, included in every chapter, of all important cases decided during each Chief Justice’s tenure. These range from judgements on commercial arbitration to the rights of appeal under the Civil Procedure Code and are of no interest to the general reader. It is as if Khan, the constitutional historian, was unable to prevent Khan, the legal practitioner, from bringing along his case-law digest.

Nevertheless, this book marks a significant contribution to the judicial literature in Pakistan. First and foremost, Khan reminds all sitting judges that they, too, shall eventually be subjected to the inescapable verdict of history. At the same time, he opens a new field of academic discussion by raising the curtain upon, and demystifying, the workings of the hitherto sacrosanct and inscrutable judicial institution. One wonders how long it will take to initiate a discussion on the history and workings of an even more sacrosanct and inscrutable institution: the armed forces.

The writer is a barrister who practises constitutional and civil law. He also heads the Sindh Bar Council.

A History of the Judiciary in Pakistan
By Hamid Khan
Oxford University Press
ISBN: 978-0199068609

Published in Dawn, Books & Authors, September 18th, 2016



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