Shakers and shapers of Pakistani law
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.