Pakistan’s judges: A brief history

In Pakistan’s history -- and one goes back to the pre-1971 days -- tales of judges in various modes of behaviour are aplenty

Syed Badrul AhsanSyed Badrul Ahsan
Published : 12 May 2023, 10:38 PM
Updated : 12 May 2023, 10:38 PM

The decision by a Pakistan Supreme Court bench headed by Chief Justice Umar Ata Bandial to free Pakistan Tehrik-e-Insaf Chairman Imran Khan should without question be regarded as a brave move, a sign of the independence of the judiciary in a state mired in political problems.

There are of course many in Pakistan, especially the current government led by Prime Minister Shehbaz Sharif, who feel Bandial has been too quick in reaching judgment on Khan when the PTI chief has scores of cases lodged against him. Moreover, the CJ’s statement on seeing Imran Khan arrive in court, ‘Happy to see you (aap ko dekh kar khushi hui)’ has not gone down well with many. Bandial, it is said, failed to be professional here.

Be that as it may, the Supreme Court judgment, while allowing for the fact that Pakistan’s former prime minister must go through the legal process vis-à-vis the charges against him, was a strong message to the government and the army that when Khan was arrested in the premises of the Islamabad High Court by personnel of the Punjab Rangers, it was a process which lacked legality.

It calls to mind the courage demonstrated by an earlier chief justice, Iftekhar Muhammad Chaudhry, in defying General Pervez Musharraf when the military ruler tried to have him submit to his diktat. Chaudhry was dismissed, but then circumstances had him return to office and Musharraf went out of power.

In Pakistan’s history -- and one goes back to the pre-1971 days -- tales of judges in various modes of behaviour are aplenty. One of the more infamous of judges was Justice Muhammad Munir, whose sanction of Ayub Khan’s martial law in 1958 on the basis of what he called a Doctrine of Necessity was a frontal assault on democracy and a clear instance of kowtowing before the military. Of course, decades later, Munir acknowledged that his judgment had been wrong, but it was too late in the day. Justice Munir had stabbed Pakistan in the back.

But at the same time as Munir gave questionable legal sanction to Ayub, there were such bold judges as Justice MR Kayani who did not flinch from informing Pakistan’s first military dictator that the seizure of power by the army had been a blow against democracy. Kayani was punished, by not being able to rise to a higher position in the judiciary.

And then there was the Bengali Justice Mohammad Ibrahim. A distinguished adherent of the rule of law, Ibrahim linked up with the Ayub regime in the expectation that the new constitution being planned by the dictator would sketch the road to a restoration of democratic governance in Pakistan.

Justice Ibrahim was law minister in the regime. Soon to be disillusioned with President Ayub Khan, he resigned from the cabinet before the new constitution went into effect in 1962. His reluctance to hang on to office impressed many in erstwhile East Pakistan. Offers were made to him to join the Awami League, which offers Ibrahim politely declined. But he did engage with the Awami League leadership on the formulation of a plan for regional autonomy for East Pakistan.

The respect Justice Ibrahim earned in his career, both before and after his experience in the Ayub regime, has endured. His son-in-law, Barrister Syed Ishtiaq Ahmed, is an esteemed personality in the history of Bangladesh’s legal system. And his grandson, Justice Syed Refaat Ahmed, with a rich background in law through his studies at reputed institutions abroad, is noted for his brilliant contributions to the judicial system in the country.

One will certainly not forget the independence of mind demonstrated by Justice Syed Mahbub Murshed when as Chief Justice of the East Pakistan High Court he played a leading role in the centenary celebrations of Rabindranath Tagore in 1961. Pakistan was under military rule and opposition to Ayub Khan was beyond imagination. But when Justice Murshed went for an upholding of the Tagore heritage in East Pakistan, he was reminding the state of Pakistan that Bengali cultural traditions mattered.

Justice Murshed did not genuflect before the executive, indeed before dictatorship, in his career. In 1968, as popular discontent began to build up against President Ayub Khan, he made an entry into politics at about the same time as retired Air Marshal Asghar Khan joined the political arena in West Pakistan.

With demands for the release of Sheikh Mujibur Rahman (yet to be Bangabandhu) and the withdrawal of the Agartala Conspiracy Case growing in East Pakistan, the regime began to totter. At one point, reports appeared in newspapers about the possibility of Justice Murshed succeeding Ayub Khan and presiding over a transition to democracy in Pakistan.

At the height of the non-cooperation movement launched by Bangabandhu Sheikh Mujibur Rahman in March 1971, Justice BA Siddiky, Chief Justice of the East Pakistan High Court, refused to swear in Lt. Gen. Tikka Khan as Governor of East Pakistan when the latter arrived in Dhaka as successor to Vice Admiral S.M. Ahsan. Of course, with a change in circumstances brought on by the genocide unleashed by the Pakistan army on Mar 25, Justice Siddiky was compelled to administer the gubernatorial oath of office to Tikka Khan.

In independent Bangladesh (and this was in the post-1975 period), Justice Siddiky headed the Muslim League before being appointed by President Hussein Muhammad Ershad as Bangladesh’s Permanent Representative to the United Nations.

In early 1968, with the announcement by the Pakistan government of what it called the unearthing of a conspiracy by a group of Bengali civil and military personnel to bring about the secession of East Pakistan from the rest of the country -- the Ayub regime named Sheikh Mujibur Rahman as accused number one -- it was decided to try the accused in a special tribunal.

The chief of the three-man tribunal was Justice S.A. Rahman, a West Pakistani. The two others on the tribunal were both Bengalis -- Justice Mujibur Rahman Khan and Justice Maksumul Hakim. The tribunal disintegrated in the face of a mass upsurge by Bengalis in February 1969. In independent Bangladesh, Justice Hakim served as an ambassador in Europe.

With the transfer of power from President Ayub Khan to General Agha Mohammad Yahya Khan, the commander-in-chief of the Pakistan army, in March 1969, a new political phase began in the country. Yahya Khan promised elections on the basis of adult franchise and to that end appointed Justice Abdus Sattar, a Bengali, as Chief Election Commissioner. Sattar was successful in having the Election Commission organise a credible, Pakistan’s first, general election in December 1970.

In sovereign Bangladesh, Justice Sattar served as the country’s Vice President under President Ziaur Rahman. On Zia’s assassination in May 1981, he took over as Acting President and was elected President in his own right in November of the year. President Sattar was overthrown in a coup led by General Ershad, the army chief of staff, in March 1982.

A moment of unmitigated ignominy for Pakistan’s judiciary came through its manipulation by the regime of General Ziaul Haq in the latter 1970s. Determined to prevent a return to power by ousted Prime Minister Zulfikar Ali Bhutto, his benefactor, Zia made sure the judiciary complied with his wishes.

Judges who might dismiss the charges of murder against Bhutto were carefully weeded out. Justice Maulvi Mushtaq Hussain, staunchly anti-Bhutto, publicly humiliated the fallen leader in court. Along with other judges, he sentenced Bhutto to death, a sentence that was carried out in April 1979. To this day, the judgment delivered against Bhutto remains controversial. His execution is properly referred to as a judicial murder.

And, yes, there is the story of Justice Hamoodur Rahman. Appointed as head of a commission to inquire into the causes of Pakistan’s military disaster in Bangladesh in 1971 by President Zulfikar Ali Bhutto, Rahman called in military officers, politicians, former presidents Ayub Khan and Yahya Khan and others to answer to the many queries of the commission. The commission eventually prepared an exhaustive report, which was submitted to Bhutto but which was swiftly pushed under the rug by the government.

Not until years later, when an Indian journal came across segments of the report did people get an idea of the nature of the investigations and findings by the commission. But in these fifty-plus years, the full report has not seen the light of day. Evidently, successive Pakistani administrations from Bhutto’s government onward have been careful in preventing the report from emerging in the public domain.

Justice Bandial and his colleagues have given Imran Khan a breather in an act of boldness. But that is hardly any suggestion that Pakistan’s judiciary will in future display a similar pattern of behaviour when it comes up against critical issues in the future. Besides, the move to free Imran Khan has already been censured by elements who believe the PTI chief did not need such soft treatment by the Supreme Court.