A judge with a heart

Maqbool Baqar retired as judge of the Supreme Court on Monday, April 4. His last few years on the bench have been examples of the greatest courage shown by a jurist in Pakistan, in the face of unprecedented opposition. Unprecedented because it came from where pressure conventionally comes from, but it also came from within the court itself.

Until he was elevated to the Supreme Court, he was famous for giving young lawyers a chance in his court, being courteous to everyone and making sure he did the right thing.

He was also known as the jurist who was friendly with every judge right before that judge got to the right place. Chaudhry Iftikhar and Baqar J had a great relationship, until Chaudhry Iftikhar became an all-powerful chief and started suo-motu interference. Baqar J distanced himself from Iftikhar as soon as he reached the zenith of his power. Nisar had cordial terms with Baqar, until he became relevant as chief. Gulzar was supposed to be Baqar’s fast friend according to senior lawyers. The moment Gulzar became CJ with three long years ahead of him, Baqar moved away from him and his building control Karachi bench.

What Baqar brought to the bench, beyond his razor-sharp mind and his unimpeachable honesty, was heart. Baqar cared even where he did not want to. Friends of his would vouch for his dislike of majoritarian politics in Pakistan, and how it had exposed minority Muslims to violence. Baqar himself was the victim of a bomb attack en route to court, having had repeated threats from terrorists yet having not been supplied the bulletproof vehicle available to the high court at the time, the car having been given to another judge. The attack left him with permanent limitations on movement and had the added effect of taking away the little fear which might have lived within him.

When one of the most publicly followed applications of bail of a PML-N leader, that of Khawaja Saad Rafique finally came before his bench at the Supreme Court, the hybrid push was at its height. This was a man with few friends in the judiciary. Rafique had antagonized the court, saying that he was made of steel and wasn’t easily chewable. Baqar started that judgment, which allowed Rafique bail, with a quote from John Stewart Mill: “A state which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes, will find that with small men no great thing can really be accomplished.”

He then went on to explain: “Unfortunately, however, even after 72 years since the creation of our country, and despite 47 years since the adoption of the constitution, we have not been able to realize the spirit and essence of the ideals set out therein. To the contrary, we have even failed to adhere to some of its most basic commands and prescriptions. The people of this country are frequently denied their constitutionally guaranteed rights. Principles of equality, fairness, tolerance and respect for democratic norms are flouted with impunity. Dogmatism, intolerance, nepotism, cronyism, incompetence, regression, deception, false pretence, self-projection, misplaced sense of superiority, different biases and prejudices, and corruption have seeped into our society and have now inundated it.

“Efforts, whenever made for the supremacy of the constitution, and the rule of law have been thwarted with full force. The principle of trichotomy of power and the concept of devolution have been trampled with contempt. Arrogance, self-righteousness and apathy are ruling the roost. We have come to this unfortunate pass, in most part, because of the repeated direct unconstitutional interventions and manipulations by undemocratic forces. Lust of power, desire to capture and rule and pursuit of self-aggrandization have resulted in violation of prescribed jurisdictional limits and ceding of political space in governance. Aggravating this is the denial of grassroot[s] representation of the people in the local government, which again is against our constitutional ethos, and violates the true essence and spirit of democracy. Public welfare and poverty alleviation are at the lowest rung of our priorities. The wide spread suppression of dissent is another anathema to our democracy. An egalitarian order remains a distant dream.” [Ab talak to dekh na paye, dekhna hum jo chahtay thay]

Then came the reference against Isa J; where Baqar J led the minority to expose the reference against supposed judicial misconduct by way of asset misdeclaration for the malicious conspiracy that it was. In a scorching dissent, he detailed every malicious act of the government in its handling of the Justice Isa reference, which the majority had either chosen to ignore or conveniently glossed over as irrelevant to the accusations made. When Qazi Faez Isa argued his review himself, it was Baqar who drummed up support amongst judges and changed the minority view into a majority. It was his short order which recalled the majority judgment directing a de novo tax inquiry and quashed all proceedings which emanated from it. When finally writing the detailed judgment for the majority, Baqar was the epitome of humility: he didn’t detail any of the shortcomings of the other side and focused only on the error floating on the face of the record; about how Serena Isa and her family were in effect being condemned unheard to a process of tax inquiry which the law itself did not envision or allow for.

Casino operators during the shady mob era of Vegas used to have a way to distinguish the old guard from the new: you were OG if you had shaken Sinatra’s hand. In Pakistan, chiefs of the Supreme Court over the past decade can claim the same: you were never really chief unless you fell afoul of Justice Baqar. He leaves a critical and liberal void on the bench. Those wanting to carry on in his stead would do well to follow Jalib as quoted by Baqar J himself: “Zulm rahe aur aman bhi ho/ Kia mumkin hai tum hi kaho”.

The writer is a lawyer.

He tweets @jaferii