Pakistan Early Schisms In The Judicature

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Early Schisms In The Judicature​

The Government of India Act 1935 established the Federal Court of India and provided it jurisdiction to hear appeals from the High Courts across India. At the time of Partition, there was no seat of the Federal Court within the territories of Pakistan thus under Section 9 of the Indian Independence Act 1947, the Governor General of Pakistan promulgated the Federal Court of Pakistan Order on 23rd February 1948, which came to be established in May 1949. The then Chief Justice of the Lahore High Court, Sir Mian Abdul Rashid, was elevated as the Chief Justice of the Federal Court with Justice Munir taking the mantle of Chief Justice Lahore High Court. The Honorable Chief Justice observed the following upon his appointment,

“…In carrying their function, they might come into conflict with the executive, powerful business or political interests. The judges may incur even disfavour or resentment….. The independence, integrity and impartiality of the judiciary are their greatest assets and these assets must be preserved, however great the sacrifice. If a judge allows his judgment to be influenced by extraneous considerations then he is not fit to hold his post…” (PLD 1949 Journal 13/14)

This sound advice was carried into the professional work of Justice Rashid and was the slogan of the nascent Judiciary of Pakistan. One of his first steps was to advocate the absolute abolition of the jurisdiction of the Privy Council concerning all appeals and this was heeded with the promulgation of the Enlargement of Jurisdiction Act 1949 and the subsequent Abolition of Jurisdiction Act 1950.

As the nascent judiciary began to function, the Honourable Chief Justice decided to put as much of his integrity and learning into the judicature as possible. He made it a policy to not attend any government event and discouraged other judges from doing the same. He argued that the most frequent litigant was the government, whether the plaintiff or the respondent, and as such attending these events would give the impression that the Government is the favoured party before the Judiciary.

The Courts under him followed his vision and were oriented towards the protection of the rights of the common citizen. This was witnessed with the first challenge that this nascent judicature faced when the Government of Pakistan started to suppress Fundamental Rights and this was seen in the case of “Abdullah Malik vs Crown” wherein the daily newspaper, “Naya Zamana” was asked to pay a heavy security deposit. Justice Cornelius of the Lahore High Court set it aside and held that to criticize a law as dictatorial or draconian is not the same as being contemptuous or treasonous to the state which was reaffirmed in PLD 1949 Lah 282 and PLD 1950 Lah 511. The Federal court acted no different in protecting the Fundamental rights of Citizens as seen in PLD 1952 FC 29.

Other courts of Pakistan continued to implement the judicial policy and ideals of Chief Justice Rashid as can be seen in PLD 1953 Sindh 37 where the Sindh High Court ordered the release of Hassan Nasir, a prominent Communist politician, on the grounds that merely being a member of the communist party is not enough grounds for detention. It was clear that the Judicature was slowly being morphed under the principles of the Honourable Chief Justice, an act that did not go unnoticed by the Executive or the legislative.

A perusal of the record and judgments of the time shows us that an internal ideological coup was taking place with new principles that were in complete contrast to the principles of Chief Justice Rashid and these principles were the legal understanding of Justice Munir who felt that the Judiciary should have an understanding with the Executive in a form of Partnership which would morph in his tenure to outright protection of establishment interests. This new ideological thinking originated from the Lahore High Court and this can be seen in judgments where Justice Munir was presiding as a judge. PLD 1950 Lah 234 where an order against the booklet by Allama Mashriqi was upheld as seditious. PLD 1952 Lah 573 and PLD 1952 Lah 222 also indicate this diverging trend where in the former the Court held that calling the Government of Pakistan irreligious was seditious and in the latter, the court set aside an acquittal of a person publishing three news sheets without permission and sentenced him.

Another evidence of this slow judicial favor by Justice Munir to the executive can be perused from the case PLD 1953 Lah 172. An externment order was passed for Syed Zaheer ul Hassan Jilani to leave the province in 36 hours. He defied and was arrested and sentenced to imprisonment for one year. The case came before Justice Cornelius who took the view of the Bombay High Court and held that the burden of proof lies on the authority that passed the order however in regards to the importance of the case, he referred the case to a larger bench. The said bench not only differed from the views of Justice Cornelius but held that the burden of proof lies on the individual and no evidence was to be led by the prosecution.

Chief Justice Rashid’s tenure ended in 1954 and was succeeded by Justice Munir who was appointed by Ghulam Muhammad, ignoring 4 other Federal Court Justices.

This shocking case showed that by 1953 the mindset of the Lahore High Court was favoring the establishment with the exception of Justice Cornelius. This aspect can also be seen in the case of PLD 1954 Lah 1 (Abul Khan Maududi vs Government of the Punjab) wherein the publications by Jamat-e-Islami criticizing police officials led to severe action despite the criticism being legitimate however the full bench under Justice Munir declared the action by the Government as just and the publication as contemptuous and filled with hate. The Courts that upheld freedom of speech just a couple of years ago now stood with the government on its suppression. It was clear that the Lahore High Court had a different judicial policy under Justice Munir than the Federal Court under Justice Rashid.

In 1951, a vacancy occurred in the Federal Court in 1951 and this vacancy was to be filled by selecting a judge from the Lahore High Court. It was clear that Justice Munir was the obvious choice but he refused, wanting to continue as the Chief Justice of Lahore High Court, which in his view, was a more powerful and prestigious office and that he still had much to do. (Statement of Justice Cornelius recorded by Hamid Khan in his work, “History of Judiciary of Pakistan”).

Chief Justice Rashid’s tenure ended in 1954 and was succeeded by Justice Munir who was appointed by Ghulam Muhammad, ignoring 4 other Federal Court Justices. There is no doubt that the judiciary under his influence enjoyed a level of trust and reputation for integrity that was not to be witnessed again. His policies and ideals were exactly what Pakistan needed but unfortunately due to vested interests, his policies were not allowed to be grown. The judiciary went from the protector of the people to the guardian of the establishment, starting a dark chapter that haunts it and influences it, to this day. I have often stated that we do not live in Jinnah’s Pakistan but Ayub’s as the country was morphed into the image he held for it. Similarly, the judicature of the country is not the Judicature of Rashid, but the Judicature of Munir.

Early Schisms In The Judicature

When Chief Justice Rashid was succeeded by Justice Munir, the judiciary went from the protector of the people to the guardian of the establishment, starting a

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My article on the early judiciary of Pakistan under our first Chief Justice Abdul Rashid and how the early schism impacted the judicial evolution of the judicature.