Islamabad, Pakistan: Former judge of the Lahore High Court Barrister Malik Saeed Hassan who resigned as a judge during Gen Ziaul Haq era and joined the legal team defending late Zulfiqar Ali Bhutto in the trial is still considered a legend among judges of the country who is still known for his uprightness and command over jurisprudence. When he was asked to comment why he resigned though he was one of the youngest and most promising judges of Lahore High Court and everybody could imagine that he would someday be the Chief Justice of the Supreme Court of Pakistan. He said:
The foremost quality of a Judge is—He should be a Gentle Man— The second most important quality is that He should be a Gentle Man and the third quality is that He should be a Gentleman. When I saw that Justice Moolvi Mushtaq had grudges against Bhutto and he (Justice Mushtaq) wanted me to be part of the bench against Bhutto, I had two options — to succumb to the desire of Justice Mushtaq and give a decision against Bhutto or to resign and go home because I want to remain a Gentleman.  Â
Malik Saeed Hassan was not the only Gentlemen our judiciary has several such names including Justice Durab Patel, Justice Dilawar Bokhari, etc who decided to resign when they felt that they could not accept the circumstances around them. Do we have such Gentlemen available in our judiciary today?
Justice Yahya Afridi, the new Chief Justice of the Supreme Court of Pakistan was nominated by the Parliamentary Committee after the 26th Constitutional Amendment and sworn in today as the 30th Chief Justice of Pakistan.
The attitude of the senior judges of the Supreme Court on the occasion of the retirement of former Chief Justice Qazi Faiz Isa has once again proved the country is lacking Gentlemen in our judiciary. Moreover, the last 100 hours confirmed that the higher judiciary of the country is divided politically beyond imagination and beyond repair. Actually, the whole system is a rotten egg now and the immediate victim of the Supreme Judiciary itself. The role that should have been played by Justice Mansoor Ali Shah, the senior judge of Pakistan, was unfortunately not played. His letter writing shows his rage towards everybody who changed the rules of the game and the players in the arena also. His conduct is in no way adorn the judges holding high positions in the judiciary. He is not the one rather every judge that did not attend full court reference for Justice (retd now) Qazi Faez did not set a decent example for the upcoming young judges. Justice Mansoor Ali Shah and Justice Muneeb Akhtar are both senior and respected judges of the Judiciary, both of them have spent time in the Supreme Court and served the judiciary, if they disagree with the 26th Constitution Amendment, they should take their retirement by maintaining the traditions and moral values, but if they keep the same attitude, i.e. sometimes writing to the registrar and sometimes criticizing the Chief Justice, it will harm their reputation as Gentlemen.
Legal experts also say that one of the major benefits of an honorable retirement on the part of both of them is that it will give younger judges who trust in the 26th Constitution Amendment a chance to come up and serve the judiciary, and secondly, doing so would honor both of them as well. The 26th constitutional amendment has been fully implemented, the same system will be implemented every time, the parliamentary committee will select three judges from among the names. This procedure is also in practice in other government institutions, such as the same system in the Pakistan Army. So if Justice Mansoor Ali Shah and Justice Muneeb Akhtar are not happy, they have an opportunity to go home as seniors do in the military if they are superseded. If they will stay while not accepting the 26th Amendment, honorable judges possibly continue to express their lack of respect for the 26th Amendment of the Constitution and surely harm the judicial system.
The conduct of some judges before, during, and even after the introduction of the 26th Amendment shows that two legal teams are operating against each other, one is headed by Federal Minister Law comprising the Parliament, and Advocate General, and the second is the PTI team comprising of some of judges who rejected the 26th Amendment as PTI rejected inside the Parliament. This divide will harm proceedings in higher courts and conspiratorial theories will not die down.
The letter written by Justice Mansoor against Justice Qazi is full of derogatory remarks and rather exhibits the taunting behavior of Justice Mansoor Ali Shah. Justice (retd) Qazi will always be remembered for his conduct of defending the Constitution, law, parliament, and parliamentary democracy. Two days before his retirement, he had written in the last dissenting note that 8 judges had established their own court apart from 13 judges, but they had changed the constitution itself. It should be noted that judges cannot change the Constitution, they can only take one path and that is the path of following the Constitution. From 1955 till today, if the Supreme Court is seen as an institution, most of its decisions have not been of any special service to democracy and Parliament. The truth is that all these decisions had negative effects on the republic, the justice system, the country, and the society.
Courts sided with every dictator as cited by late Justice Saeed Hassan. Some important examples of this are Maulvi Tamizuddin case, Nusrat Bhutto case, Zulfikar Ali Bhutto case, Asad Ali case, Zafar Ali Shah case, Iqbal Tikka case, Yusuf Raza Gilani and Nawaz Sharif’s disqualification cases. There are several Supreme Court judgments given in favor of the overthrowing authority of the Constitution, which have seriously affected the country’s system.
Therefore, the argument is effective and strong that if the Supreme Court of Pakistan had made some good decisions in favor of democracy instead of rubbing shoulders with the powerful, perhaps today our system would not be like a laboratory. Ray of hope is on the horizon but morning can only appear when the higher judiciary is clean from judges who show vendetta (as Moolvi Justice Mushtaq showed against Bhutto), who is taunting, show arrogance, and make decisions by using their ‘will and mind’ instead of using jurisprudence and law books.
A review of qualities possessed by a Gentleman includes someone who does not do what he wants to do, but what he should do, courtesy is as much a mark of a gentleman as courage; a person who can disagree without being disagreeable.
In simple words, a gentleman is a man of integrity who does the right thing even when no one is watching. He is a man of his word and is not swayed by peer pressure or popular opinion. Â Unfortunately, our judiciary is a slave of popular opinion.
