Ali Malik: Theocratic Judiciary

by Ali Malik

There is so much to write about the absurdities apparent in the NRO decision, on the issue of appointment of judges, and overall anti-democratic and anti-system posture of a JI/Deoband inspired judiciary that one post might not be enough for it all. However, I will try to tackle all of them one by one here.

First and foremost of course is NRO issue. I would not delve into the apparent political bias in the judgment or lacuna in it as is pointed out by eminent lawyers like Asma Jahangir and Ali Ahmad Kurd and many others. I would not even talk about the timing of release of detailed judgment late into the night in retaliation to the news that the President using his discretion has stalled the appointment of Justice Ramthey’s appointment as an ad hoc judge of the apex court.

My concern is much bigger and overlooked in the heated political discourse around the judgment and the concern stems from continuous reference to the era of Aurangzeb and other such strictly Deobandi/ JI references in the judgment when it was not necessary at all. It seems as if the judiciary was under the influence of the likes of Shabir Usmani and Mododi and popular among sections of migrant Punjabi community to hijack the democratic republic of Pakistan and return it to some theocratic autocracy inspired by the likes of Aurangzeb.

There literally are many jewels of wisdom spread all across the detailed judgment which are enough to raise alarm bells for majority of Pakistanis who believe in a modern, democratic, republic of Pakistan and are not obsessed with return to any Utopian system that we are made to believe ever existed. These jewels were not relevant to the case at all and we all would have been better of if they were avoided.

Here are a few sample pearls of wisdom.

“During the period of the Muslim rule, sub continent was rich in all spheres of life. It is interesting to note that rate of literacy was very high above 90 percent as highlighted by Frishta while writing history of the sub continent…Subcontinent was almost surrounded by mountains and large open area due to which according to the western countries this area is known as “Soonay ke Chiria”. The kingdom of Britain and France had entered in sub continent for the purpose of business.” p.257

What the judgment failed to add was – “aur sari duniya hamare hi masale khati thi”.

“After death of Aurangzeb the system of justice, established by the Muslims, was totally dis-regarded and Muslims were fighting with each other for securing power.” p.257

Rebuttal: Aurangzeb is glorified by Deoband school of thought and propagators of theocracy. It is worth having a look at his record. First and foremost, it was right after his rule that the Moghal empire collapsed in India. This was more like collapse of Iraq post Saddam Husain or decay of Pakistan post-Zia. Regressive policies usually outlive their perpetrators before the signs of decay starts emerging. Aurangzeb in a rational political analysis was the worst thing to have happened to Subcontinent in ages for following reasons:

1. Just when the Moghals were notorious for a lack of system of succession, Aurangzeb took it to another level by killing 3 brothers and making the ailing father (Shahjahan) hostage to grab throne which was not his.

2. In a mutli-sectarian society of Subcontinent, he took measures which made majority Hindus feel as second grade citizens, waged wars against Sikhs in Punjab, and even suppressed Shia Muslims badly during his rule. This, in any rational analysis of subcontinental history, was the biggest reason for the collapse of delicate social and political fabric of Indian subcontinent which led to a chaos only to be calmed a century later by complete dominance of Brits.

The role of Aurangzeb to India was not different from the role of Saddam for Iraq and glorifying him serves no purpose for social good except for extending the JI/Deoband doctrine of theocracy and autocracy.

“This judgment cannot be completed without having a glimpse of Islamic Legal System. Mr. Vijay Kumar Dewan in his Book Prosecuting System in India (Practice and Procedure) discussed the legal system of Islam in the following terms:– “As like the Hindu law the concept of Muslim Law also held that the king derived his authority from Qura’n and the ruler was subordinate to law the main source of Islamic law of Muslim Law i.e. Shar in Qura’n and Sunnah or Hadis….” p.262

“Muslims had launched freedom movement in 1857 but could not succeed due to their internal contradictions and on account of non cooperation of the Hindu community with the Muslims.” p.264

Rebuttal: I am still at loss with what it had to do with the case except for spreading hatred against Hindus (who by the way are 4% of our population). Is it a mere coincidence that SC is issuing such comments when the Deoband inspired media persons and pseudo intellectuals are spreading the war rhetoric around another vaguely crafted ideology of Ghazva-e-Hind.

“The best example in the recent history of human society is of China when this nation with its birth two years after Pakistan, has attained a position of super power (an economic joint and a permanent member of the security council).” pp.265-266

Rebuttal: China for those who have experience of working in China is among the most corrupt public systems in the world. It seems that the commentary is driven by cliches and not by intensive fact checks (Even an unreliable Corruption Perception Index puts it @ 72nd spot far from perfect in terms of transparent nations).

“The word “Ameen” difined in the following books which is to the following effect:
1 The Concise Encyclopedia of Islam at page 41:
“al-Amin. A name of the Prophet, given to him by the Quraysh before the revelation of Islam, meaning the ‘Trustworthy One’. The word is used as a title for an organization official in a position of trust, such as the treasurer of a charitable organization, a guild, and so forth”.

2. Urdu Daera-e-Maharafil Islamia at page 279-80?

3. The Encyclopaedia of Islam (New Edition) Vol.1 at 436-37

“Amin, ‘safe’, ‘secure’; in this and the more frequent from amin (rarely ammin, rejected by grammarians) it is used like amen and (Syriac) amin with Jews and Christians as a confirmation or corroboration of prayers, in the meaning ‘answer Thou’ or ‘so be it’ see examples in al-Mubarrad, al Kamil, 577 note 6; Ibn al-Diazari, al-Nashr, ii, Cairo 1345, 442 f., 447. Its efficacy is enhanced at especially pious prayers, e.g. those said at the Ka’ba or those said for the welfare of other Muslims, when also the angels are said to say amin.” pp.266-268

“Morality” The word “morality” is not used in any narrow sense, but in a general sense, such as the law of conscience, the aggregate of those rules and principles of ethics which relate to upright behavior and right conduct of elected representatives and prescribe the standards to which their action and in particular those who are Muslims, who are guided by the Holy Qur’an and Sunnah should conform, in their dealings with each other or with institutions or the State”. M. Saifullah Khan Vs. M. Afzal. PLD1982 Lah.77.” p.269

Rebuttal: That just makes me ask one simple question, before trying beneficiaries of NRO, will it not be better for SC to go through the merits of allegations against the sitting Chief Justice. The July 20, 2007 verdict of SC knocks down the reference against him on technical grounds and not on the grounds of merits of the allegations. Worst still, the judgment did not provide with any avenue for accountability of the Chief Justice. Will it not be better to decide once and for all the merit of allegations against the sitting CJP to ensure that the first tweet gets cast by the one he who hath not sinned.

And now to the appointment of judges. Here again we have two issues, first appointment of
Justice Ramthey as ad hoc judge of the SC. Here we have two issues again. First is the principle that SC itself set in the new judicial policy which stops any judge from seeking any govt office after his retirement. As was rightly cited as a reason for this, this stops judges from giving judgments in favor of government in the hope of getting a lucrative post post-retirement. Now, by setting the precedence of appointment a retired judge as an ad hoc judge, his Lordship himself is violating the principle he set himself. For, if the precedence is set, it will make it very difficult for judges to go against the Chief Justice in hope of a lucrative judicial post post-retirement.

Second, under article 182 of the constitution, the appointment of an ad hoc judge is discretion of the President. More so, the President has taken a position that if Supreme Court needs more judges, the number of permanent judges in SC can be increased. That takes away any need for appointment of an ad hoc judge. In this case, as well as in the case of Kh. Sharif, it is said time and again that the government has a vested interest in doing things certain way. And I ask, govt. comprises politicians and politicians always try to manipulate things for political gains as part of their job. However, both these issues, the one to appoint an ad hoc judge as well as an out of turn promotion for a High Court judge as a judge of Supreme Court are initiated by the Chief Justice himself and the pertinent question is what is the interest of Chief Justice in it? Or is it obvious?

As far as the issue of appointment of Justice Saqib Nisar goes, it is against the norms set by the SC itself in Al Jehad Trust case (given at the end of this piece). But that is not my point. My point pertains to the obvious political dimensions of the decision. Justice Sharif, in speeches and in writings, has time and again displayed his open admiration for Shahbaz and Nawaz Sharif. He was appointed to LHC by Sharifs. He owes his entire career to Sharifs. And under him LHC granted many a decisions that favored Sharifs of Jeddah politically. And he seems indispensable for Sharif’s mismanaged Raj in Punjab.

Last note is on Al Jehad trust case itself. In contrast to the clear wording of constitution on appointment of judges, the Supreme Court has given Chief Justice the sole authority to appoint judges. Now this authority is against the letter and spirit of constitution and is against the prevalent norms of any modern democratic system where the elected representatives are the final authority in appointing judges. It is about time that the parliament corrects this and the method is given in Charter of Democracy. For the sake of survival of this country, the parliament must act fast to ensure that the clauses related to judiciary in CoD are implemented immediately. Else it might be too late to resist the theocratic onslaught.

Key Points of Al Jehad Trust Case

1. The opinion of the chief justice of Pakistan and the chief justice of the high court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the president/executive.

2. Permanent vacancies occurring in the offices of the chief justice and judges should be filled within 30 days except for unforeseen situations when the period may be extended to 90 days.

3. No ad hoc judge can be appointed to the Supreme Court while permanent vacancies exist.

4. The most senior judge of a high court is entitled to be appointed as chief justice except where concrete and valid reasons are recorded by the president/executive.

5. Additional judges of the high courts are entitled to be confirmed, if vacancies exist and if they are recommended by the chief justice of the high court concerned and the chief justice of Pakistan.

6. The political affiliation of a candidate for judgeship may not be a disqualification provided the candidate meets the eligibility test and is appropriately recommended.

7. Any appointment/confirmation of a judge without the mandatory consultation with the consultees identified in the constitution would be invalid.

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