Burdens, reversals, and the Kayani Court

During the first martial law in 1961 (if we don’t count the riots in 1953), a student was arrested during a Government College strike in Lahore. He was put up in a police cell in Anarkali, where he was soon recognised by the Deputy Commissioner (DC).

After realising whose son he was, the DC rang the chief justice of the West Pakistan High Court. The conversation went as follows:

“Sir, your son Haroon is in police custody. What should we do?”

“Has he committed murder?”

“No, sir.”

“Rape or robbery?”

“No, sir.”

“Some accident or fight?”

“No, sir.”

“Some other sort of violation of law?”

“In a way, yes sir, you would be aware that he is a student leader. He played a prominent role and was arrested, and when I tried to release him he refused to come out saying that others should also be let out. I believe, sir, he has inherited your qualities.”

“For heaven’s sake”, said the judge, “what inheritance are you talking about? I was never in police custody, and I assure you that in this respect my son has gone a step ahead of me.”

“No, sir, I am sorry sir”, the DC said, “I mean that he is too outspoken.”

“Well, well”, the judge said, “if that is a disqualification then I must say that I have some good qualities as well for him to inherit. However, if this is his crime and he has decided to avail of police hospitality for some time, then I have nothing to say. Probably the food at home causes him indigestion.”

And that was that.

Consider this conversation 55 years later; half a century’s worth of presidents and prime ministers, army chiefs and chief justices with a weakness for their kin. To put it charitably.

Yet this should come as little surprise: Malik Rustum Kayani was a rather radical judge, whatever the cost – and the cost was high. Honest, subtle, and sardonic, the judge was the most sought after speaker in his day: his speeches were reported verbatim in the press, not only as masterpieces of innuendo, but as biting satire of the regime.

Assailed by fossils in the bureaucracy, condemned by religious parties in Punjab, and sidelined by a field marshal unused to criticism, the judge carried on in his melancholy way, an army of one.

One with notable success: at a time when the bureaucracy reigned supreme, the writ jurisdiction was seen as a ray of light, where the citizen begged the court’s protection from the whims of the machine. In Justice Kayani, such discretion found its champion. It was a battle the bureaucrats lost.

And earlier on, when rioters took to the streets on the call of Messrs Maududi and Abdus Sattar Niazi in 1953, murdering Ahmadis, it was Justice Kayani who co-authored the Munir Report. “(…) Provided you can persuade the masses to believe that something they are asked to do is religiously right or enjoined by religion”, the report notes, “you can set them to any course of action, regardless of all considerations of discipline, loyalty, decency, morality or civic sense.” The report remains the clearest and bravest indictment of religious ‘subversives’ plaguing our country so many years later.

But unlike Munir, Justice Kayani was as averse to those that knocked the constitution aside. In one wrenching address, the judge recalled being told martial law had been imposed in 1958, and repairing to his garden in shock: ‘”f you have travelled by these airlines where the plane suddenly drops a thousand feet in an air pocket, you will know how I felt.”

Yet after his hilarious, caustic speeches became a part of the culture, the judge from Kohat had stepped on toes too many. In 1962, with martial law at its peak, he was retired without being elevated to the Supreme Court.

As to his relations with the apex court, the judge found an unlikely ally in A R Cornelius a bench above, and the SC seldom disagreed with him. Even in the rare event a decision was overturned, Justice Kayani was little affected. “Sometimes we deliberately make mistakes in order that the Supreme Court may correct them”, he joked, “and out of the hundreds of cases that we have disposed of, the number of lapses can be counted only on our fingers.”

Which brings us to the present; an inversion of the past: not only is the Supreme Court overturning well-settled high court decisions, it’s gone on a spree of reversals of its own precedents laid down mere months ago, Houbara bustard hunting the most known case in point.

Yet rather than allowing the review petitions to be heard before the original bench that made the decision – as per usual – the SC has instead formed larger benches where the original judges are in a minority. As Barrister Salahuddin Ahmed cogently put in another paper, “Just because a later bench disagrees with the analysis of facts or interpretation of law in the original decision is not grounds to reverse it”, and “…A message is sent to all governments and litigants that SC decisions and enunciations of law are not final per se – but only final till the arrival of a more propitious time and a review bench with more amenable judges.”

Given the rapid pace with which the Supreme Court is changing its mind, the good barrister’s suggestions should be taken onboard: replacing the chief justice’s discretion to assign cases with a system where cases are allocated at random, and to constitute larger benches (note: not more judges on multiple smaller benches) which will likely cover more angles and be less susceptible to influence. Should the SC speak consistently, the lower courts may take a clearer cue and decide faster.

During Justice Kayani’s last address to the High Court Bar Association, he said, “The principal thing, however, is that I have no desire to live these thirty-five years of service over again, so full of struggle they have been, so painful in retrospect.” He passed away a month later.

The dispensation of justice is a crushing burden. The Supreme Court, more than any other institution, should be aware of as much.

The writer is a barrister and columnist.

He tweets @AsadRahim.