Courage to do justice

Published April 3, 2022
The writer is a lawyer.
The writer is a lawyer.

ON a humid day in June 2013, nine people were killed and 15 injured as the banned TTP attacked a convoy carrying the senior puisne judge of the Sindh High Court, Justice Maqbool Baqar. Miraculously, Justice Baqar survived the attack, spending the next year recuperating after multiple surgeries. Over the next eight years, he would go on to become the chief justice of the Sindh High Court and now prepares to retire as the third senior-most judge in the country. His recovery and his courage in the face of continued threatstell a criminally bare story.

Protection of fundamental rights: Justice Baqar’s tenure at the apex court was contemporaneous with rising authoritarianism and the violent suppression of dissent. Writing for these pages, Faisal Siddiqui had highlighted the paradox between judges who produced brilliant judgements but legitimised dictatorial regimes, and judges whose verdicts may have been devoid of judicial reasoning but who still showed tremendous courage in preserving civil liberties and human rights. However, Justice Baqar has been the torchbearer of the ‘intellectual renaissance’ that has characterised the court’s recent jurisprudence alongside his commitment to the protection of fundamental rights.

Resultantly, in a judgement rendered in 2020, Justice Baqar wrote a scathing critique of the government, abusing the accountability regime as a tool for political engineering and stifling legitimate political movements. Quoting J.S. Mill, he argued that a “state which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes, will find that with small men no great thing can really be accomplished”.

Departing from jurisprudence that vests the state with unbridled powers to arrest individuals on spurious charges, he argued that the deprivation of liberty before conviction is only tenable under exceptional circumstances. Justice Baqar, thus, remained an indefatigable defender of the rule of law even as some colleagues remained more invested in urban planning and water preservation albeit with little success.

Justice Baqar preserved the flickering light of justice.

The power of dissent: Justice Douglas of the US supreme court had once remarked that “the right to dissent is the only thing that makes life tolerable for a judge of an appellate court”. Notwithstanding the importance of dissenting opinions, they remain infrequent in Pakistan, given myopic notions of seniority and judicial amity. Nonetheless, Justice Baqar frequently dissented with his colleagues on the bench. In his dissent in the case concerning the Orange Line Metro Train, he spoke in favour of protecting the right to culture against wanton and unplanned development.

In another dissent concerning provincial autonomy, he dissected the majority’s willingness to vest the federation with uninhibited powers at the altar of provincial autonomy, warning that “disregarding the mandatory provisions of the Constitution as regards provincial autonomy would encourage and embolden those averse to the rule of law and those who have scant regard for the supremacy of the Constitution”. Inevitably perhaps, he was excluded from the hearing of politically consequential cases for the majority of his tenure.

Upholding the court’s dignity: In a recent speech, he reminded judges how repressive regimes often target the judiciary by playing on the public’s dissatisfaction with elite institutions. Judges, he argued, could not be “blind residents of elite institutions”. Such exhortations, however, were not merely confined to speeches. As chief justice of the Sindh High Court, he was mainly responsible for the largest distribution of compensation in Pakistan’s legal history to the victims of Karachi’s Baldia factory fire. More importantly perhaps, in contrast to some others in the legal profession, Justice Baqar highlighted the importance of evolving an objective criterion, thus, bringing an end to the opacity that currently shrouds judicial appointments.

Judicial independence: Critical to the survival of the authoritarian regime that has dominated our polity in recent times have been attempts to emasculate the judiciary. The reference against Justice Isa was, therefore, symptomatic of a larger problem where judges not susceptible to the executive’s diktats were targeted and vilified. Justice Baqar led the court’s response to these malicious references. In holding that while judges ought to be accountable, they were also entitled to the equal protection of the law, Justice Baqar not only gave Justice Isa a fresh lease of life but preserved the flickering light of justice, thus, saving judicial independence from eternal darkness.

As Justice Baqar prepares to doff his judicial robes, he leaves an indelible imprint on our jurisprudence. His real contribution, however, lies in always having his heart in the right place. For that, and all else, this nation shall forever be in his debt.

The writer is a lawyer.
Twitter: @MoizBaig26

Published in Dawn, April 3rd, 2022

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