IN MEMORIAM: THE JUDGE WHO WITHDREW CONSENT

22 Nov 2020

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Governor of Khyber Pakhtunkhwa Iqbal Zafar Jhagra administering oath to Chief Justice Waqar Ahmad Seth in June 2018
Governor of Khyber Pakhtunkhwa Iqbal Zafar Jhagra administering oath to Chief Justice Waqar Ahmad Seth in June 2018

The recent debate on judicial appointments in the United States has spotlighted different types of judges, whether Democrats or Republicans. Around the world, there are similar classifications of judges — liberal or conservative judges, right-wing or left-wing judges and so on. In Pakistan, we also have two categories of judges: courageous judges and those that we politely and simply call judges. Justice Waqar Ahmad Seth was a courageous judge.  

Bertolt Brecht’s quote about the unhappiness of the land that needs a hero has become stale by mindless and ceaseless overuse. However, it is beyond question that the land that needs judges to be brave is indeed sad. The courageous judge is sadder still, in a club whose membership across the country is a handful in the best of times; and these are not the best of times. 

Judicial courage is generally considered to be giving decisions in conflict with popular sentiments or against powerful entities. Courageous decisions in most jurisdictions open the judge to robust criticism and challenge. Judicial courage, like almost all courage, is more elemental in Pakistan. Courage in Paksitan means a macabre contemplation of mortality, bulletproof cars and being prepared to have your life — and that of your family — being subjected to fantastic slander over WhatsApp groups, doctored pictures and “exposés” by those immune to exposure.

Less dramatically, judicial courage in Pakistan also means that well-meaning friends hesitate to be photographed with you, debate inviting you to weddings, disown or attack you in public and send private messages “in solidarity” and to “keep up the good fight.” They express self-pity and wish they were “as courageous as you are.” 

To be a judge is to be lonely. To be a courageous judge is also to be unreasonably stoic about it, particularly at being labelled “biased”. 

Justice Waqar Seth had prepared himself for being courageous, stoic and “biased” as a member of the Peoples Students Federation (PSF) in the dictatorship of Gen Ziaul Haq. His was an ascetic form of courage, quiet but unshakeable. As a Marxist, he understood that the fight is a marathon and not a sprint. Even before he read criminal law, he saw the court verdict in Zulfikar Ali Bhutto’s case for what it was — a murder. He recognised that there are no two sides to a dictatorship. There is no middle-of-the-road view on a midnight knock and an abduction.

Oppression and tyranny require our consent. Justice Waqar Ahmad Seth, who passed away November 12, exemplified courage and resistance in the face of adversity

As part of the labour movement, representing workers and trade unionists, often pro-bono, he was “biased” in favour of the worker against, ironically, the seth. He had photographs of Marx and Trotsky on the walls of his law chambers to put his political affiliation at literally the top of the shelf. This is in sharp contrast to how a significant number of people at present feel, that directly expressing political ideology and preference is uncouth and a mark of a simple mind. The term ‘partisan’ is without exception used as a pejorative one.  

He continued to be “biased” once elevated to the bench. He could not see the “balanced” view on people being picked up and kept in internment centres. He failed to see the “nuance” in people being tried in secret, summary trials and being denied fair trial and due process. 

His contributions as a lawyer, as a judge of the Peshawar High Court and as the Chief Justice of the Peshawar High Court are far too many to be listed here, and those who had the privilege of appearing before him more frequently can speak on them with greater authority. Similarly, his friends were many, whose lives he touched, and personal reminiscences are best left to them. 

‘Passionate’ is a term of passive-aggressive (sometimes just aggressive) insult and an accusation in Pakistan. In brief, it means that one doesn’t have the maturity and sobriety to obfuscate the blindingly obvious. Yet, Justice Waqar Seth passionately (some might even call it “over-zealously”) believed in civil liberties and constitutional supremacy.  Many of his contemporaries were less morally encumbered and preferred a milder adherence to constitutionalism, human rights on a ‘dheemi aanch’ [low flame] and ‘halka phulka’ [moderately] fair trials. It seems the entire point of being an ‘intellectual’ (and, for many, of being a judge) is to not call things by their name. 

Hannah Arendt, in 1945, in a remarkable and chilling essay “Organised Guilt and Universal Responsibility”, wrote that the totalitarian takeover of Nazi Germany was so complete, the dissidents so muted or resigned, that it was no longer easy to clearly tell the heroes and villains apart. She said, “The only way in which we can identify an anti-Nazi is when the Nazis have hanged him. There is no other reliable token.” This is a hyperbolic analogy with no present parallel. It does, however, articulate the problem of identifying the courageous and the upright, in a time where all of us speak in euphemisms, where all that the good ones can offer is to change the subject, where all that the smart ones can manage is to sneak in a subversive phrase. 

The test remains of victimisation and persecution, though certainly not as extreme as Arendt’s. WhatsApp and Twitter warriors oscillated between calling Justice Seth a ‘liberal anarchist’ and ‘Taliban sympathiser’, depending on the day. More significantly, Justice Seth was not elevated to the Supreme Court. The other ongoing example of victimisation, in this context, is Justice Qazi Faez Isa, and the similarities in the attack are too strenuous and obvious (I do not exempt myself from what I rant against: euphemism, implication and hints — so much for this).  

In 2013, the Chilean Judges Association asked for forgiveness from Chilean society in general, and particularly from the victims of General Augusto Pinochet’s dictatorship. The apology and the plea for forgiveness was for the failure to protect the basic rights of Chilean citizens under Pinochet’s rule from 1973-1990. Our moment of complete apology has not arrived. However, the trial of Gen Musharraf for abrogating the Constitution was an attempt at some atonement. 

Implicit in holding Gen Musharraf accountable was the admission of failures of the past. Justice Seth went unacceptably too far. The death penalty is cruel and inhumane in all instances and to suggest making it a public spectacle was also unconstitutional. That part of his judgment was rightly not part of the majority judgment and had no legal force. 

Justice Seth’s remarks were justifiably criticised and opposed by those who oppose the death penalty and of public displays of brutality. However, in addition, they were joined, in large numbers, by loud voices who, shortly before being outraged by this, were demanding various criminals to be hanged from traffic lights and who went back to those demands soon after. It is a broad coalition.

Apart from the usual unabashed apologist, it includes the nameless, faceless, often soulless, troll with an oversized magnifying glass and red pen, trawling through commas and footnotes to discredit the principal argument, have his ‘gotcha’ moment, be outraged into a haemorrhage and demand the ‘cancelling’ of a person. In this case, for an inexcusable paragraph cancelling Justice Seth’s more than three decades of unimpeachable public life in service of democracy and human rights. Also, in a different way, cancelling nine years of Gen Musharraf’s dictatorship, the crimes and the victims.  

The ‘moderate’ comes not shrieking but shaking his head: the paragraph (to repeat, inexcusable and without legal force) has ruined everything and discredited the majority judgement and now there is no getting back from this “strategic blunder”. The first instinct of the moderate in witnessing a lynching is to minutely focus on if the victim maintained his dignity in being lynched, used a wrong adjective, or otherwise ruined his case by “over-reaction”.

There are many others, some more decent than others, for example those who practise the courtesy of silence till the conversation is over and then make a comeback on another issue with renewed vigour, to erase the memory of their earlier absence. 

On the flipside, the binary that we are forced to live in makes some elide over the mistakes, so that our heroes come neatly packaged and are memorialised in hagiographies alone. Justice Seth does not need that protection. Full stock can be taken, and he will still come out as our best and the bravest. 

Justice Seth’s death is a tragedy. Estienne de La Boétie, a French judge and philosopher from the 16th century, in an essay “Discourse on Voluntary Servitude”, proposed a radical idea — that oppression and tyranny require our consent, and that consent can be non-violently withdrawn. Justice Seth withdrew his consent. He refused to live the lies. In a Latin phrase which James Joyce made his own, Justice Seth said “Non-serviam” (I will not serve).

We watched Justice Seth with awe, and sometimes resentment, because his defiance stripped us of the excuse that it was not possible. We simply choose not to defy. We choose not to withdraw consent. We can take some comfort in and make an excuse for our failings by pointing out that Justice Seth was truly unique. The revolutionary, labour rights activist Seth. The comrade lordship.  

Salute comrade. Rest in peace, Your Lordship.

 The writer is a lawyer.

The views expressed are his own.

Published in Dawn, EOS, November 22nd, 2020