A few days after Quaid-i-Azam took over as the first Governor General of Pakistan senior judges of the Federal Court called on him and sought his advice on the conduct and deportment of judges. The Quaid instead of a lengthy talk briefed them about the practice prevalent in Bombay (Mumbai). He said that a lawyer, who enjoys life of his own, when elevated, lives the life of a recluse. There is no other better and convincing example then the life and quotes of a Lahore High Court judge, Mr. Justice Agha Haider Ali, who was brought on the bench from Allahabad High Court by Sir Douglas Young. After his retirement he told his guests that, “when he was on the bench he went only to three places i.e. the High Court, Badshahi Mosque and Allama Iqbal’s mazar. I am retired now. Now is the time to see where Lahore is located”.Those were the days when the judges represented the state and not the government, and above all the judges were answerable to their own conscience hence always limited their aspirations. Those were the golden days when maxim prevailed; a judge never speaks only his judgment speaks but intellectually as well as judicially their judgments were masterpieces that fully reflected a judge’s command over both, the law as well as the English language and his in-depth knowledge. Brevity wise those judgments were par excellence.Similarly in the bygone days the procedure to select a judge required that the Chief Justice of the High Court would always keep a watch on lawyers of outstanding calibre and repute. Now in case of vacancy the Chief Justice would consult his two colleagues (Seniority wise next to him) regarding the best of the lot he had in his mind. Unfortunately, after the death of the Quaid the criteria of judges’ appointment, law, constitution as well as morality were put aside by the trio, namely Ghulam Mohammad, Major General (Retd) Sikandar Mirza and Major General Ayub Khan. As the word goes this trio had already started conspiring to grab power even during Quaid’s days. They met every night, sipped whisky and discussed ways how to gain power. Later on they were named as “glass follows”. General Ayub gained the first fruit of his maneuvers when he became the defence minister in 1953. This very appointment proved fatal for Pakistan’s future. This trio showed no consideration or respect for law, justice and civility and this can be measured by two instances. Upon arrival while approaching towards the car Ayub Khan paced a step ahead of the Quaid. The Quaid immediately told him in a scolding voice to get back. Later, the power hungry Ayub Khan imposed Martial Law in 1958, a new Constitution was framed and enforced under which he himself assumed power to appoint the judges of the High Courts.This is how he played havoc with the judicial system. It is interesting and thought provoking to note two specific instances: First, President Ayub in a totally unprecedented move, appointed a Lahore-based lawyer Mr. Manzoor Qadir direct as the Chief Justice of the Lahore High Court to replace the retiring CJ. Mr. Justice M.R. Kiyani. In yet another example President Ayub wanted to appoint another Lahore-based lawyer as the High Court judge. The then Chief Justice of the High Court was asked to recommend his name, who accordingly sent the recommendation to the Chief Justice of the Supreme Court. The later instead of stamping the approval is reported to have written on the file thus, “My conscience does not permit me to recommend such a personality”.This fact cannot be denied that the lawyer professionally was very outstanding but he had the disadvantage of two criminal petitions that were pending against him in a lower court in those days. Despite the pending of these petitions he was elevated by President Ayub himself. The actual background to this appointment was described thus; widespread rumours were that Governor General Ghulam Muhammad had dismissed Maulvi Tamiz-ud-din Khan’s Assembly. Maulvi Tamiz as Speaker Constituent Assembly had won the case from the Sindh High Court but the Federal Court (then Supreme Court) reversed the judgment by gaining shelter under the law of necessity.All this had been cooked and baked at the behest of Sikandar Mirza and Ayub Khan, the latter been mainly responsible. A message was reported to be conveyed to the then Chief Justice of the Federal Court, Muhammad Munir that the army will not accept the verdict in case it puts the seal of approval on the Sindh High Court order. A British law wizard of that time who was also serving as advisor to the Governor General, Sir Jennings, who was privy to the conspiracy had himself coined the law of necessity and conveyed it to the Federal Court to use it as shelter. Another point that is needed to be kept in mind is that both Ghulam Muhammad and Justice Muhammad Munir were Kakezais. Now as regard the appointment of the judge in question, he was elevated on the sole ground that his wife was a niece of Justice Munir.Things got from bad to worst during Zia era, who said once that the constitution is only a 12-page book. I can tear it up any moment I like. The worst and hitherto discussed horrible example to reflect this era’s servile judiciary is Z.A. Bhutto’s execution and close to two years later the PCO oath for the judiciary under which the High Courts as well as the Supreme Court were disallowed from hearing petitions pertaining to Martial Law and henceforth emerged some judges who even abhorred to write their judgments. To name one, there were lots of stories where Justice Abdul Qadir Sheikh (Supreme Court) failed to write and deliver the judgments. This scribe also underwent a bitter experience and despite all odds, followed the judge, once in Lahore, twice in Karachi and twice in Islamabad but to no avail. Due to such reasons friends like Ahmad Yar advocate (late) used to lament thus, “Judges, judges everywhere but justice nowhere”. Now exactly in line with the quotation that history repeats itself but every time it repeats itself with vengeance and a more barbaric way.Now General Pervez Musharraf steps in, he started very patiently but gradually mustering political support. As the period to doff off his uniform approached he started committing mistakes at every step and finally got hysterical and ousted the Supreme Court Chief Justice. Justice Iftikhar is a human and to err is also human. He might have fumbled for things he sought but on becoming the Chief Justice he was totally a changed man. He embraced applause by applying judicial activism. He was keen to remove cancerous part of society through a major surgery. Since he was bent upon leaving lasting imprints he acted as a super human and this is how he won the hearts of the general public. Unfortunately, this suited neither the rulers nor the bureaucracy.If Justice Iftikhar is reinstated it does not mean that the fountain of justice shall start reflowing, common man would feel secure, oppressors would be punished and the corrupt would be eliminated. Justice and corruption are the national issues which have nothing to do with only one man. Had he been at the helm of affairs today the corrupt practices that have surfaced recently would not have crept up and at least he would not have ignored them all together. So hats off to Justice Iftikhar.
By Zia-ul-Haque
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