Rape of the law

By Zuhair Siddiqui

geust-contThe sweep of events during the past half year has been dramatic and fast, and the Bhutto and Indira regimes already seem to belong to a distant past; but as their leaders desperately try to pull themselves out of the meshes of the law, one is struck by the contrast between their past contempt for “Anglo-Saxon jurisprudence” and their present determination to exploit its mechanisms to the full.

“Certainly no man can over estimate the importance, of the mechanisms of justice. There have been greater avenues to freedom than that beaten out by the writ of habeas corpus…

“What seem, on the surface, insignificantly procedural changes — as when a man becomes entitled to a copy of the indictment upon which he is charged, or is able, in the witness-box, to testify upon his own behalf, or may appeal from the verdict of a jury and the sentence of a judge to a body of legal experts beyond them — these, for all their forbiddingly technical character, are more nearly related to freedom than the splendid sentences in which Rousseau depicts the conditions of their attainment.

“Obviously, therefore, the men who are to make justice in the courts, the way in which they are to perform their function, the methods by which they are to be chosen, the terms upon which they shall hold power — these, and their related problems, lie at the heart of political philosophy.

“When we know how a nation-state dispenses justice, we know with some exactness, the moral character to which it can pretend.”

These are the words, not of a conservative devotee of Anglo-Saxon jurisprudence, but of the eminent socialist intellectual, Harold Laski, written in the prime of his career, over half a century ago. They come to mind with peculiar force as one reflects upon the turn in the fortunes of the powerful men and women who held sway in India and Pakistan, and whose word was law for their respective peoples, until the spring of last year.

The sweep of events during the past half-year has been dramatic and fast, and the Bhutto and Indira regimes already seem to belong to a distant past but as their leaders desperately try to pull themselves out of the meshes of the law, one is struck by the contrast between their past contempt for “Anglo-Saxon jurisprudence” and their present determination to exploit its mechanisms to the full.

When, a few weeks after his deposition, Mr. Bhutto threatened to provoke a “crisis of jurisprudence”, one apprehended a “revolutionary” onslaught upon the very foundations of our “bourgeois” judicial system as it is, he and his friends are showing a refreshing though rather belated, appreciation of the finer points of Anglo-Saxon jurisprudence. The same is true, more or less, of the Indira Gandhi caboodle, some of whom are now raising squeamish objections to the procedure adopted by the commission inquiring into the emergency excesses.

Only a cynic could derive some vicarious pleasure from the somersaults of Mr. Bhutto and his friends since their fall from power; indeed they should have received little notice if the Bhutto cult had been eradicated. As it is, their histrionics, sloppy rhetoric and political gimmicks have not yet lost all their appeal for people with short memories. Various aspects of the grim records of the Bhutto regime must therefore continue to be brought into focus.

A reminder of its savage treatment of the norms of civilized justice has recently come by way of the Sind High Court’s acceptance of the appeal filed by Mr. Mairaj Mohammad Khan against his conviction by a special tribunal on a charge of sedition nearly three years ago.

Mairaj Mohammad Khan, once amongst Bhutto’s foremost political associates, and a minister in the Federal Government for nearly two years, was arrested in the summer of 1974 following the registration of three cases against him in quick succession. (He is a committed socialist and an uncompromising opponent of the vested interests). The gravamen of the charge against him was a ‘”seditious” speech at a May-day rally. After the commencement of the trial in a magisterial court, the case was transferred to a special tribunal constituted under the Defence of Pakistan Ordinance. Special Government sanction was obtained for the holding of the trial in the Karachi Central Jail instead of in open court. After four prosecution witnesses had been examined, an application by the accused to allow his friends and relatives to watch the proceedings was disallowed. The Special Prosecutor then moved an application requesting that the trial be held in camera and only the wife of the accused be allowed to attend. This was granted.

On January 7, 1975, the case was fixed for further proceedings on the 9th. As the accused had walked out of the court on the 7th, in protest against the treatment meted out to him as an under-trial prisoner, he was notified on the 8th that the case had been fixed “for further trial’ on the 9th. According to the diary sheet, however, the Tribunal met on

Jan. 8, without any notice to the accused, and its three members signed an order fixing Jan 9 as the date for the decision of the case. On the latter date, in the presence of the accused and his counsel, the Tribunal announced the judgment, convicting him under the Defence of Pakistan Rules and awarding a sentence of four years’ rigorous imprisonment.

According to the High Court’s judgment in appeal, setting aside the conviction, “there is nothing on record to show… that the appellant boycotted the proceedings on 9th January, on which date the Tribunal was already armed with a judgment which it proceeded to announce.

“The unhappy impression created is that while the appellant’s counsel were seeking instructions on the evidence to be led in defence, the Tribunal, without waiting for a reply, pronounced the judgment. It is obvious that the irregularities in procedure referred to above resulted in substantial and grave injustice to the appellant.”

The court has also observed that Mr. Mairaj Mohammad’s “incarceration has resulted in the loss of vision of his left eye, and according to the report of the renowned neurosurgeon, Dr. Jooma, be continues to suffer headache, occasional vomiting, giddiness and disturbed sleep.”

Strictly on merits too, the High Court found the conviction unjustified and the sentence harsh:

“In the speech there is no invitation to violence, nor is there a call to dislodge the Government by force or show of force, which is a necessary ingredient of the offense of sedition….. the appellant received an unusually harsh sentence when there was no room for his conviction.”

If this was the fate of one who had for years, been one of the leading political associates of Mr. Bhutto, and been a member of his Government for nearly two years, it should not be hard to imagine the lot of the many lesser men who fell foul of that despotic regime or flouted the writ of its “great, supreme, undisputed leader.” (These were the appellations with which nearly all the newspapers in the land greeted him almost exactly a year ago, on his “uncontested election” to the National Assembly).

Things unprecedented in the judicial history of this sub-continent, and reminiscent of conditions in the backwaters of civilisation, began to happen. A district and sessions judge was arrested and had to seek bail from a High Court. Judges of the Superior Courts began to be bullied more or less directly.

Some of the other cases in which Mr. Bhutto’s contempt for the “fictions” of Anglo-Saxon jurisprudence found lurid expression were brought into focus during his regime by Amnesty International. Its report, based on the findings of a mission to Pakistan in the summer of 1976, and subsequent research covering the period up to the end of January 1977, appeared while Mr. Bhutto was still in power. But the publicists of the regime, taking their cue from earlier statements and hints by the supreme leader and his lesser colleagues, denounced Amnesty as a clever agent of Western imperialism.

The facts on which the report was based were not entirely unknown in the country even then; since the fall of the Bhutto regime, they have been brought into the full light of day in the course of proceedings in our own law courts and through various other authentic disclosures. Indeed, the real picture that has now emerged — of gross infractions of the rule of law, of unlawful arrests and detentions, of abductions and wrongful confinement, of the harassment and ghastly torture of political détenus, of political murders — is several shades darker than appeared in the pages of the Amnesty report.

It was to prepare the ground and propitiate the atmosphere for such dark proceedings that Mr. Bhutto started, early in the day, to denigrate juristic principles which he chose to lump together as “Anglo-Saxon jurisprudence” but which in fact lie at the heart of all systems of civilised justice. And it was to secure a free hand for these proceedings that he set out to hamstring the judiciary, bully and humiliate the judges of the superior courts and pack them with pliant stuff wherever possible.

It is true that, even before the advent of the Bhutto regime, the judiciary had not always been properly treated. Organised attempts to undermine the powers and prestige of the superior courts may easily be traced back to the first martial law regime (in which, incidentally, Mr. Z. A. Bhutto was a key figure).

Sir Edward Snelson’s notorious remarks about the use of the writ jurisdiction by the higher courts were only an indiscreet expression of feelings harboured by the leaders of the regime. Later, in Col. Yusuf’s case, an attempt to “put the judiciary in its place” was frustrated by the courage and independence of the late Justice Shabbir Ahmed. And the late Justice Kayani fought, throughout the four years of Ayub’s Martial Law, a running battle with the executive for the preservation of the powers and honour of the superior courts. But even the darkest instances of the maltreatment of the judiciary during those years pale into insignificance beside the savage handling that it experienced later under the regime of a master in jurisprudence from one of the greatest seats of learning in the Anglo-Saxon world.

During the first four months of his regime, Mr. Bhutto ran the affairs of the state by personal writ and arbitrary authority, squelching the time-honoured processes of the law. Growing popular opposition and judicial resistance forced him to give up the weapon of martial law, but he was determined to pursue his ends by other means, and during the five years that followed he wreaked vengeance upon the judiciary as well as upon his political opponents and critics.

Things unprecedented in the judicial history of this sub-continent, and reminiscent of conditions in the backwaters of civilisation, began to happen. A district and sessions judge was arrested and had to seek bail from a High Court. Judges of the Superior Courts began to be bullied more or less directly. To quote from some recent observations of the Chief Justice of the Supreme Court, “frequent and uncalled for amendments in the Constitution, coupled with an aggressive attitude on the part of the Executive, had the effect not only of curtailing the powers and jurisdiction of the superior courts to the detriment of private citizens but also of creating an unhealthy sense of insecurity in the minds of judges, thus impairing their ability to do justice without fear or favour…. Judges were abused in Parliament. A judge on the present bench sitting on a review board was threatened.”

Someday, perhaps, we shall all come to know what exactly the threat was, and who delivered it to whom; perhaps, more than one instance of the kind will come to light. However, the Bhutto regime’s implacable hostility to an independent judiciary is on record in the reports of parliamentary proceedings. For instance:

“If there is any attempt on the part of any agency, including the judiciary, to assume to itself or to arrogate to itself any power which the Constitution or the law does not contemplate for that agency or authority, including the judiciary, whether it is a judiciary or any other authority, that action will be tantamount to subversion of the Constitution and high treason as is mentioned in the Constitution.”

That was one of the leading lights of the Bhutto regime speaking, a little over a year ago, in the parliamentary debate on the constitutional amendment bill seeking to curtail some of the time honoured prerogatives of the superior courts, particularly their power to grant bail in cases of a political nature. The diatribe was an exceptionally crude expression of Mr. Bhutto’s own weird “political philosophy” and his supreme contempt for the rule of law and the norms of civilised justice.

The underlying charge that the courts had tried to usurp any jurisdiction in contravention of the country’s fundamental law was manifestly false. Equally baseless was the presumption that the courts were often inclined to grant bail in political cases irresponsibly, without due regard to considerations of state security.

There is no evidence in our judicial annals to support these wild charges. It should indeed be easy for anyone who cares to go through the record that our judges have generally been more than cautious in dealing with cases involving state security and public order. And during the Bhutto regime, the pressures and constraints upon the judiciary were not always without effect upon the “imaginative consciousness of the judicial mind” which, according to the late Justice Kayani, determines in the final analysis the scope of the writ jurisdiction.

In fact, Mr. Bhutto’s real grouse against the judges was that all of them were not ever ready to identify the Government with the State and treat the political interests of the regime as synonymous with the security of the State. Mr. Bhutto sought to pulverise this resistance partly through the curtailment of the courts’ jurisdiction, partly by threats to judges and partly through attempts to “pack” the courts. The most outrageous instance of the last expedient was the elevation to the Bench of a former minister while an election petition involving charges of grave malpractices was pending against him.

In the course of the sedulous campaign against the rule of law throughout the five years of the Bhutto regime, it was often suggested, overtly or covertly, that the superior courts tended to act as a barrier to radical socio-economic change and to look askance at constitutional provisions or amendments directed against the vested interests. There is nothing in our recent judicial history to support the charge.

The judiciary, including the highest courts in the land, derive their power and jurisdiction from the fundamental and organic laws in force, whether a legislative or executive act is, or is not, directed against the vested interests, the courts can interfere with it only within strictly defined limits. An act of parliament can be struck down only if it is manifestly in conflict with the constitution or fundamental law of the country. An executive decision or act can be quashed only if it contravenes a constitutional provision or a statute, or both, or is clearly mala fide or repugnant to the rules of natural justice.

The power of parliament to make laws subject to the constitution, and to amend the constitution in accordance with the prescribed procedure, is practically absolute. It is, of course, a moot point whether the legislature can by amendment destroy the very fundamentals of the constitution, and the Indian Supreme Court has held that it cannot. But the question has not arisen in Pakistan so far and the courts have never challenged the power of the legislature to amend the constitution.

Mr. Bhutto claimed no end of credit for the ‘revolutionary’ policies of his Government and never got tired of proclaiming that he had shaken the old socio-economic order to its roots. Claims and proclamations apart, it is true that the Bhutto Government acquired, by legislation, vast powers to abolish or control private ownership and enterprise. And it is equally true that none of these measures was struck down by the courts.

Some of the initial economic reforms were of course introduced under the cover of martial law, but all subsequent nationalisation was brought about by acts of Parliament. And there is little doubt that even the earlier measures would have stood the test of judicial review if they had been introduced by acts of a competent legislature functioning under a proper constitution. In fact, Mr. Bhutto needed the cover of law not for measures of economic reform but for such perverse actions as the arbitrary dismissal of public servants and the prosecution of old friends like Mukhtar Rana in a military court.

What of the future? When the present interim administration ends, and constitutional rule is re-established, our first concern should be to ensure the supremacy of the law and the absolute independence of the judiciary, and establish sound and secure mechanisms of justice – ends which, according to Laski, lie at the heart of political philosophy.

The process must begin with the total elimination of executive discretion in respect of judicial appointments. Under the Bhutto regime, the Government’s power to appoint judges of the superior courts and to select chief justices was exploited to the full and treated as a part of state patronage; but even the earlier governments were not always fair in the selection of judges. During the later years of the Ayub regime, aspirants for a seat on the bench used to be interviewed by a board comprising the President, the Law Minister and the Governor of the Province. Some clearly questionable appointments were made. Two of the judges appointed during those years were later arraigned before the supreme judicial council; one of them resigned nd the other had to be dismissed.

Judges of the superior courts should be appointed by the President on the recommendation of the supreme judicial council. Before a person is appointed, he should be required to submit a complete record of his material assets and liabilities. His conduct as an income tax payee must be carefully examined; a lawyer who is not scrupulous in the payment of his taxes, and thus cheats the national exchequer, does not deserve a pedestal in the temple of justice, no matter how great his mastery of the law, or how sharp his eye for a flaw in a deed. His general reputation in the matter of professional ethics should also be taken into account.

These measures should serve to raise the standards and enhance the prestige of the judiciary, and strengthen its independence. They should also help to improve the tone of the legal profession. Some more direct action would be needed to raise the level of professional ethics among the lawyers, for instance, strict insistence upon the issue of formal receipts for professional fees.

An independent and strong judiciary must be helped through suitable provisions in the law to play a more effective role in the defence of the individual against arbitrary authority. For instance, in cases of prolonged detention without lawful authority, the judge must be empowered to grant compensation and damages as part of his judgment. In cases such as that of Mairaj Mohammad Khan, where the trial court is found to have convicted a person not merely wrongly but also wrongfully, in grave violation of the elementary laws of procedure, where the conviction is manifestly mala fide and has caused grievous harm to the accused, he should be entitled to some instant compensation — without having to [go] through protracted civil litigation. And in any event, when those who are charged with the dispensation of justice reduce it to a cruel mockery, they must not be let off lightly; they must be punished severely, through legal as well as disciplinary action. In the case under reference, no move to bring the members of the Tribunal to book has been reported yet.

The highest judiciary has, by and large, played a remarkable and at times heroic role in the battle for the preservation of civil liberties and fundamental rights in Pakistan. Its task has often been very difficult, and its position was particularly unenviable during the five years of the Bhutto regime. Never before in our history of a generation had we witnessed such a sinister, organised and sustained effort to hamstring and degrade the judiciary as we did during that benighted regime.

Most of the judges stood up to the challenge with courage and fortitude; some had to pay for their integrity. It may, however be observed, with respect, that their resistance would have been far more effective and their subsequent experience much less trying, if they had resisted the assault on the judiciary in concert from the very beginning.

 

It is true that the kind of effort required to bring about such concert does not accord with the judicial temper, and would perhaps not be quite in keeping with the dignity of high judicial office. But Mr. Bhutto had made it pretty clear rather early in the day that he was determined to create a desperate situation for the judiciary; some desperate remedial action by the other side was, therefore, not only permissible but desirable.

Mr. Bhutto’s hold on the instruments of power was not yet very firm when he began to humiliate the judiciary and undermine its position. He was not strong enough to break any concerted resistance when say, some of his minions had a District Judge arrested, or some others, obviously under his own directive, intimidated a judge of a superior court. Within a couple of years or three the hold of the regime had grown into a stranglehold, and the kind of resistance that might have succeeded in 1972 seemed almost impossible.

As one looks back, the most painful thought is that the process of the humiliation of the judiciary was climaxed not by Bhutto himself, or by any of his minions in the political executive, but by one who then held the highest judicial office in the land. Speaking at a dinner on the occasion of the Third Pakistan Jurists’ Conference, in December 1976, (soon after judges had been abused in Parliament) Mr. Justice Yaqub Ali paid “glowing tributes” to Mr. Bhutto: “I can say from personal knowledge that the Prime Minister, by conviction, has great respect for the judiciary, from the lowest to the highest rung.”

At that time, Mr. Bhutto indeed seemed supreme and invincible. Later in the month, he had the Constitution amended to enable the then Chief Justice to continue in office for another three years or so.

Within a few months, however, the inevitable “reflux in the tide of human things” had begun and by the end of the year it had brought home to us the eternal truth, so manifest and so awesome, but so often forgotten by the rulers of men:

— These days (of affliction) we turn amongst men.” (The Quran, 3:139).Source: Herald, January 1978