TLTP REPORT –
While discussing different subjects of general public interest during an informal conversation at Lahore the other day former top judge of the country Jawwad S.Khawaja expressed that history never forgive those judges who display weakness in their decisions.
This informal conversation took place between former Chief Justice Pakistan Justice Jawwad S. Khawaja and his student Umer Gilani. Since a few of the subjects discussed are of general public interest, therefore the discussion has been reduced to writing and is being shared with the reading public. This is an English translation of the interview which took place in Urdu.
Q: You held the office of judge in Pakistan for seventeen years. What does it feel like to be a judge?
Ans: Being a judge is a trying and testing experience. Each and every moment in office is a trial (imtihan).
Q: There is popular perception that for a wily or clever judge, the law is malleable like molding wax. At the end, the judge gives whatever decision he feels like giving. Is this perception correct?
Ans: This question has evoked some memories and incidents from the days of my youth. I had the good fortune of spending a considerable amount of time with Justice A. R. Cornelius, the well-reputed judge who served as Chief Justice of Pakistan for about eight years. He had two sons who live outside the country even now; yet, he chose to designate me as the executor of his will.
One day, he said something to me. In those days, our office was in the Nawa-e-Waqt Building on Queen’s Road Lahore. He would come over to the office for 3 or 4 hours every morning. Normally, I would also be present there at that time. When it was time for him to take a cup of tea, he would invite me to join him. Those precious moments are an asset of my life. One day Cornelius Sahib narrated to me an incident involving Justice Munir, who had been Chief Justice before his tenure. Chief Justice Munir said that he had the ability to decide any case either way: where in favor a petitioner or against him. I distinctly remember Cornelius Sahib touching both his ears and then remarking, “My dear Jawwad, only a conjurer or juggler (shobdabaz) can do this. For a judge it is impossible.
A judge can only reach one conclusion in a legal controversy. He can weigh in his mind various arguments but once his mind has arrived at a decision, his conclusion is final and is according to his conscience. After that, it is not possible for him to write anything different.” Cornelius Sahib told me this with great clarity. When God gave me an opportunity to hold judicial office, I fully realized that once I reach a conclusion regarding the legal outcome of a case, I cannot change even one word of the decision, because I am neither a juggler nor a conjurer performing at melas and displaying sleight of hand; I am a judge. Therefore, what a judge goes through while deciding a case is truly a trial. God has declared this in his holy book where he commmands: “Hold fast on to justice!”
Q: Perhaps the most important case in today’s Pakistan is Justice Qazi Faez Isa’s case. What sort of a decision do you expect in it?
Ans: I am certain that whatever decision is eventually rendered will to be in accordance with law, the Constitution and the conscience of the judges and this is how it should be [as per the oath of the judges]. I expect that the honourable judges will decide in accordance with the law and the Constitution. If we want to improve the country and establish constitutional supremacy, then decisions would have to be taken fearlessly, independently and in accordance with law.
However, I wish to reiterate at this point that if any one believes that the people can be deceived through legal jugglery, they are deluded. People are fully aware. No matter how wily the author judge may be and regardless of what legal niceties he may employ, if there is dishonesty in a decision, people will find out.
In this regard, the most instructive judgment in our history is the case of Moulvi Tameez ud Din. In that case, there were five judges. Justice Munir was heading the bench and Justice Cornelius was also the member of the bench. When the decision came out, Justice Cornelius authored a dissent which was against the government of the day. Justice Munir and three other judges held in favor of the government. Justice Cornelius was in a minority at the time.
However, now after 60 years, I can say with confidence that all the legal minds of Pakistan agree that the decision authored by Justice Cornelius was the correct one. This decision has become part of our constitutional and national history.
The respect that Justice Cornelius enjoys today is unparalleled. If I put the decisions of Justice Munir and Justice Cornelius side by side, no constitutional expert today is going to say that Justice Cornelius’s decision was wrong.
Q: Our judiciary has certainly produced a few illustrious figures like Justice Cornelius. But how do you see the overall role of the judiciary in the national history of Pakistan?
Ans: Unfortunately, the overall role of our judiciary has not been as shining or illustrious as it ought to be. I do not want to discuss at length the reasons behind its shortcomings or weaknesses. The point is that if there is this perception among the people, it is not unfounded. There are, in my opinion, valid reasons for it. Perhaps we need to recognize that the judiciary does have some serious shortcomings. Notice the coincidence that that there were five judges back then [in Tamizudddin’s case] and today there are again five judges [hearing Justice Isa’ case].
I am sure that the honourable judges, who are familiar with constitutional history, know fully well that the verdict of history is unabmigious and unsparing. Whoever chooses to ignore this lesson is bound to suffer ignominy in the annals of history.
While we are at it, let me also mentioned a similar case from the other side of the border. When Indian PM Indira Gandhi imposed Emergency, her decision was challenged in the Supreme Court. There too, the matter was decided by a five-member bench. Out of these five, three judges and the Chief Justice legitimized the Emergency while one Judge Justice Sharma held that the Emergency was unconstitutional.
If you visit the Indian Supreme Court today, you would observe a life-size portrait of Justice Sharma prominently displayed there. Who were the other four judges? No one knows. History has obliterated them. There should be some soul-searching about why our judicial history is not as illustrious or inspiring as it ought to be. Anyway, history takes its own unerring course. The stream of history always takes the correct path. History does not forgive those judges who display weakness in their decisions.
Q: Does every judge face pressure?
Ans: Let me share my personal experience. I served as a judge for 17 years, except for the two years after my resignation from the Lahore High Court. During these 17 years, no person or institution ever came to me to tell me about the manner in which I should decide the cases before me. Judges may, however, face societal pressures. For example, I felt that a few contemptuous programs were aired on the media targeting me.
I am not against honest and constructive criticism of judges. The people have a right to such criticism. But a judge should not have to put up with mala fide criticism and undue influences. This was my personal experience. But you also asked me to tell about the experience of other judges. To this, I would say only this: Every judge is the keeper of his own conscience and is obliged to show fidelity to his oath of office.
Q: How do we tell whether a judge has reached a decision based on his conscience or in bad faith and after being swayed by extraneous influences?
A: Mala fides and bona fides are, in essence, states of mind and only God knows what is going on inside a person’s mind. However, we can draw some inferences about the state of mind from a person’s observable conduct. As lawyers and judges, we are trained to draw inferences regarding mala fides and bona fides from facts and circumstances which are observable.
The outward manifestations of mala fides are well-known. In my farewell speech as Chief Justice of Pakistan on 9th September 2015, I said, “I have seen fear in many guises lurking in the judiciary.” Now about this fear I will narrate to you the acknowledgment made by former Chief Justice Naseem Hassan Shah. He admitted that in Zulfiqar Ali Bhutto’s case, there was pressure on him. I have seen the video clip in which he admits that he yielded to the pressure and changed his decision.
This is one example which shows that pressure is sometimes brought to bear upon judges and some judges do yield to it. In my opinion, if a person yields to pressure and issues a decision accordingly, he is simply not fit for holding judicial office.
I agree with you that if a judge is not a man of faith and does not decide in accordance with his oath and conscience, then it is not just one case which is discredited because of such people; the entire institution of the judiciary gets discredited.
Q: I would like to revert back to my previous question: what sort of a decision do you expect in Justice Faez Isa’s case?
Ans: I do not know what the decision will be nor am I fully aware of the facts on the basis of which this reference was filed nor do I have knowledge of the stance taken by the judges. In our previous meeting with each other on the last Eid, I said that for the judiciary and for judges, credibility is the most important asset.
“It is imperative for transparent accountability that the people should know what their judges are doing”.
Judicial credibility demands that facts are made public. In an additional note I had written while deciding the Memogate case, I emphasized the need for transparency in all matters of state. It is imperative for transparent accountability that the people should know what their judges are doing. Article 19A of the Constitution mandates that the people should know what the charges are, what defense has been mounted by the judge and what evidence has been presented by both the sides.
Q: The government has accused Justice Qazi Faez of “misconduct” and asserts that he is not suitable to hold the office of a judge. Justice Isa was your colleague for several years. You also decided many case together. Obviously, you must have formed some view about his conduct. What is your view?
Ans: You have asked this question earlier as well. I agree that testimony of one’s colleagues is considered a relatively important factor. So I will repeat my view: I have not known or met a more upright judge than Qazi Faez Isa. He is a man of faith and character.
Q: The Supreme Judicial Council has decided to proceed against Justice Faez Isa in two references while several prior-in-time references are still pending against other judges. Does this manner of proceeding raise question marks about the impartiality of the Council?
Ans: That’s correct. I have said it earlier as well that there are many judges who violate their oaths and keep violating it. No one asks these judges. No notice is issued to them. I have spoken in more detail about this point in my last interview with you. I have explained in detail how non-transparency can adversely affect the credibility of judiciary and the Supreme Judicial Council. If the people perceive that there is a lack of transparency in this matter, in my opinion, they would have justification for this view.
Q: Does Justice Isa consult you regarding the reference?
Ans: No, I have not discussed the reference with Justice Faez Isa nor do I want to. Ever since the start of this issue about two and half months, I have not talked to him. I would just like to say this. I consider him an upright man of faith and character. This is my opinion. But history will be the ultimate judge. Truth, falsehood, and deceit will inevitably come out. This is the law of nature. The examples of Justice Sharma, Justice Munir, Justice Cornelius and Justice Naseem Hassan Shah, which are furnished by the annals of history should serve as guiding lights for all members of the judiciary.
