Judiciary in Pakistan - 10

Judiciary, Judges and Lawyers as well are responsible for this mess.

Even senior judges of supreme court clash with each other about petty protocol matters. On June 5, 1994, Benazir appointed Sajjad A. Shah as chief justice by superceding three judges senior to him (Sad Saud Jan, Abdul Qadeer Chaudry and Ajmal Mian). This started the rift between senior judges of the highest court of the land. Five judges of supreme court were in Karachi at that time (Ajmal Mian, Saedduzaman Siddiqi, Wali Muhammad, Abdul Qadeer and Saleem Akhtar). Government sent a special plane to get Sajjad A. Shah for oath taking ceremony in Islamabad. Government asked that any judge who wanted to attend the ceremony could accompany Shah but none of the judges decided to join their newly appointed chief justice for the oath taking ceremony. [Quoted in Mian. A Judge Speaks Out, p. 158]

When chief justice Sajjad A. Shah was booted out by his own brother judges, the new court decided to clear up some contentious issues. All cases involving government and Prime Minister were dealt with judgments favorable to the government’s position. In March 1998, a seven member bench dismissed the petition challenging the 13th Constitutional Amendment. Interestingly, the petitioner was now not enthusiastic about perusing the case which suggests that the petition was part of the tussle between then chief justice (Sajjad A. Shah) and Prime Minister (Nawaz Sharif) and after the ouster of chief justice no one was interested in it. In May 1999, the court acquitted all who were charged with contempt of court including prime minister and several members of parliament. After the dismissal of Nawaz Sharif’s government an appeal was field against acquittal in September 2000. A five member bench of supreme court heard the appeal and convicted seven accused of contempt of court sentencing them to one month imprisonment and 5000 rupees fine. [Mian. A Judge Speaks Out, p. 281-83]

Justcie Irshad Hasan Khan served as federal law secretary during the Martial Law of General Zia. He later rose to become chief justice of the Supreme Court (January 26, 2000 - January 06, 2002). High court justice Ghaus Ali Shah joined Muslim League of Nawaz Sharif and served as Sharif’s confidant for long time. Supreme Court justice Afzal Lone was sitting on the bench which restored Nawaz Sharif government in 1993. Later he headed the Lone Commission which absolved Nawaz Sharif of any wrongdoing in the cooperative scandal. Later, Sharif paid Lone back by nominating him to become senator. Supreme court justice Muhammad Rafiq Tarar after his retirement served Sharif’s business interests and was later elected senator on Nawaz Sharif’s Muslim League ticket. He was duly rewarded by appointing him president for his loyal services. Tarar paid back by retaining his post when he agreed to general Mussharraf’s request to stay on as president when the later had booted out Nawaz Sharif and assemblies. Mussharraf in turn returned the compliment by unceremoniously sending Tarar home in June 2001. Tarar was booted out of the presidency by putting him in a private car and sent home in the most humiliating way. Mussharraff needed to act in this way not for a great national cause but he needed to get the lofty title of president to get the correct protocol during his upcoming visit to India.

If one takes into account the relationship of various judges with their political patrons and their judgments on crucial cases, then some questions arise about the motive of their judgments. Justcie Tarar saw everything wrong with Nawaz Sharif dismissal by president in 1993 and was as one of the justice of the Supreme Court bench which decided to restore Sharif government. Justcie Sajjad A. Shah saw everything wrong with Benazir’s dismissal in 1990. He was one of the two dissenting judges (the other one was Justcie Abdul Shakurul Salam) in a 1991 decision who did not approve of president’s decision to dismiss Benazir. He wrote that president had exercised his power with ‘malafide intention’.[Shah.Law Courts, p. 163]

In 1993, Shah saw everything right with Sharif’s dismissal and was the lone dissenter in a ten to one decision of Supreme Court which restored Sharif government. In 1997, when his relations had gone sour with Benazir, he viewed dismissal of Benazir kosher and even called president’s discretion of sacking prime minister as a balance of powers and ‘a safety valve to prevent imposition of martial law in the country’. [Shah.Law Courts, p. 344]

When president dismissed Benazir government in 1990, the dismissal was challenged in courts. Peshawar high court bench dismissed the petition by majority but justice Qazi M. Jamil was the dissenting judge. Jamil was also on the bench which restored provincial assembly. For these ‘crimes’, he was not confirmed by the president. Benazir duly rewarded Qazi M. Jamil by appointing him attorney general during her second term.

Chief justice Nasim H. Shah’s favorable tilt towards Muslim League and his antipathy towards Pakistan Peoples Party were well known. He had exchanged harsh words with chief justice Muhammad A. Zullah when later received Benazir at a function when she was opposition leader. He headed the bench which restored Sharif government in 1993. He had been humiliated earlier during Benazir government when Benazir refused to sit on the same table with him. The reason was that Nasim H. Shah was one of the justices who had upheld the death sentence of Benazir’s father Zulfiqar Ali Bhutto in 1979 (Nasim H. Shah was one of the majority justices on the bench which had given a four to three verdict of rejection of appeal of death sentence).

When Sajjad A. Shah was appointed chief justice, the three senior judges though bitter neither challenged the legality of the appointment nor offered to resign. They decided to take their revenge from inside and clashed with Shah on various matters. This was most obvious during the deliberations about ‘Judges case’. Sajjad A. Shah knowing that his own appointment was made by superceding three judges senior to him deliberated on all aspects of the matters pertaining to appointment of justices but ducked the crucial question of his own appointment. When he discussed his own draft of the judgment with judges, justice Ajmal Mian remarked that ‘it would be the first time in judicial history that a Chief Justcie of the highest court in the land constituted a bench of his choice, presided over it and decided constitutionally about his own appointment’. [Mian. A Judge Speaks Out, p. 181]

The senior most judge was justice Sad Saud Jan who was expecting to be chief justice but after the elevation of Sajjad A. Shah he did not intend to work with the new chief justice. In 1996, after ‘judges case’ decision, several acting and ad hoc judges were affected and were not assigned judicial work. This created an embarrassing situation where affected judges actually moved their own courts. One of the affected justice K. A. Chaudry of Lahore high court filed a petition in his own court against his own chief justice demanding that he was a functioning justice and judicial cases should be assigned to him. Another affected judged justice Mohammadi ridiculed supreme court decision during a hearing of bail application. Supreme court issued a notice of contempt of court against this judge who later resigned. [Shah. Law Courts, p. 272-73]

In 1997, when country’s prime minister and chief justice were at loggerheads, the real decay of institutions became quite visible. All kind of emissaries were shuttling between the two stubborn personalities who were settling their personal scores hiding behind lofty positions and high offices. Sharif was using ethnic Sindhis (Ghaus Ali Shah, Ilahi Baksh Soomro and Liaqat Jatoi) and former chief of intelligence Lt. General ® Hamid Gul to send his messages to chief justice. Army chief General Jehangir Karamat and Director General of Inter Services Intelligence (DG ISI) Lt. General Nasim Rana were also mediating. Chief justice of the country was frequently meeting and corresponding with country’s intelligence chief about his grievances with the executive. On the morning of December 02, when Sajjad A. Shah was going to remove the constitutional amendment to clear the way for president to dissolve assembly, an ISI Colonel came to Supreme Court and met the chief justice in his chamber. [Mian.A Judge Speaks Out, p. 249]

Sometimes people occupying high offices act in a childish manner embarrassing not only the high office but also the country. In August 1997, chief justice recommended elevation of five judges to supreme court without consulting with government. Government in return issued an order duly signed by the president reducing the strength of the supreme court from seventeen to twelve. Few days later chief justice presiding a three member bench suspended the notification and a couple of days later government withdrew the notification. Supreme Court justices rather than brainstorming about legal issues clashed with each other about the color of the Supreme Court flag. One chief justice arranged for the inauguration of the incomplete building of the new Supreme Court because he wanted to be in the limelight before his retirement. A number of justices opposed this ridiculous idea and they were not invited for the ceremony. When chief justice Muhammad Afzal Zullah received opposition leader Benazir Bhutto in a ceremony, several of his brother judges were furious and harsh words were exchanged between Zullah and justice Nasim Hasan Shah.

In 1997, when rebellious judges confronted chief justice Sajjad A. Shah in a meeting, there was plenty of name calling. Shah accused justice Shaikh Riaz for working on behest of the government as he was friendly with Shahbaz Sharif. Riaz retorted that when he was serving as chief justice of Lahore high court, Shah had asked him to arrange for a meeting with Nawaz Sharif’s father Mian Muhammad Sharif (he used the words ‘qadam bosi’ (kissing the feet) of Sharif’s father) and Riaz had arranged for that meeting. [Mian. A Judge Speaks Out, p. 245]

In his petition challenging president’s reference against him, chief justice Iftikhar M. Chaudry has spilled some more judicial beans and few more skeletons have seen the daylight. Chaudry accused several justices of the SJC as biased because he had initiated inquiries against their misconduct. He objected on inclusion of three justices: Javed Iqbal, Iftikhar Hussain Chaudry and Abdul Hameed Dogar. He maintained that justice Iqbal will benefit from his removal and may have a shot at chief justice post in three years. [Daily Times, April 19, 2007]

He also accused justice Iqbal of securing admission for two of his daughters to medical college on special quota when they did not qualify on merit. He stated that he had sent a reference to SJC against justice Abdul Hameed Dogar for mismanagement of funds of Shah Abdul Latif Bhitai University. He also disclosed that another member of SJC, chief justice of Lahore high court Iftikhar Hussain Chaudry was not on talking terms with him since he had opposed his elevation to supreme court. [Daily Times, April 21, 2007]

The cats which Chaudry has let loose are going to cause a lot of problems. He should expect some backlash from people he is accusing. Date of birth can be very important especially when one’s promotion and retirement depends on it. The clash of dates of birth of two chief justices is elaborated in detail in their autobiographies. [Mian.A Judge Speaks Out, pp. 263-273]

Sajjad A. Shah was scheduled to retire on February 16, 1998 on attaining the age of 65 which was the age of retirement for supreme court justice. In a totally bizarre move, he sent an application to the president of Pakistan stating that the date of birth recorded on all his records was wrong. He stated that he had found his correct date of birth just few years ago. He requested that his date of birth should be changed from 16 February 1993 to 10 May 1934 and on the basis of this new information he should be retired on 10 May 1999 instead of February 16, 1998. [Mian. A Judge Speaks Out, p. 195]

Justice Mian was more smarter and quite early in his career he had fast forwarded his date of birth and secured appropriate documents. Such petty things when come to limelight further erodes the respect for judiciary and institution suffers badly from these acts of omission and commission.