Daily Times

The Supreme Court, in an unprecedented move a few days ago, passed a full court reference of the Supreme Court proposing an extension in service for Justice Khalilur Rehman Ramday as an ad hoc judge for another year. The resolution also proposed the appointment of Justice (retired) Rehmat Husain Jafferi as an ad hoc judge, who had reached superannuation on November 22 last year. The symbolism of the passing of the resolution is far more significant than the actual outcome of the proposed extension.

The legal argument justifying the extension is that according to article 182 of the constitution as amended in the 19th Amendment, if an ad hoc judge is appointed within three years of his retirement, there would be no need to take any approval from the parliamentary committee. For such ad hoc appointments, the chief justice would have to send the proposal to the president with binding effect after consulting the judicial commission only. The legal argument for the proposed extension, at best is that the action of the Supreme Court is not unconstitutional. Even assuming this to be true, the problems manifested by this act go deeper than formal legal arguments.

The Supreme Court has not given express reasons for the proposed extension. However, the ostensible reason seems to be the absence of any substitutes to the Honourable Justice Ramday. This represents an expression of Justice Ramday as a paragon of justice possessing unparalleled legal acumen and virtue, incapable of being replaced, in short the indispensability of the honourable justice. In the alternate, it is indicative of the fairly dim view of the judges of the five high courts of the country, as none is deemed capable of replacing Justice Ramday. Propriety demands that we refrain from commenting on the Justice specifically; however, the principle being laid down by the Supreme Court should be a cause for grave concern.

Delusions of a Dictator is an absorbing account chronicling the 3-year period from the start of Philippines’ president Ferdinand Marcos’ second term in 1969 to his declaration of martial law in 1972. The account is based on Marco’s diary, which “offers illusion as fact, paranoia as genuine menace, personal ambition as the will of God”. The personal diary highlights Marcos’ gigantic ego. He sincerely viewed himself as a combination of Caesar and Napoleon, which led to his fears of betrayal and his refusal to deal realistically with the escalating opposition to his rule. It is a fascinating account of Marcos’ transformation from being a democratically elected president into a despot. Interestingly, Marcos, according to his diary, never viewed himself as being an oppressive authoritarian clinging to power, but rather as the great leader destined to lead the Philippines into an era of prosperity.

Urho Kaleva Kekkonen was the longest-serving president of Finland and was notorious for beginning his speeches with “If I die” (note the ‘if’ rather than ‘when’). He was convinced of his permanence. Hosni Mubarak’s apparently diabolical speeches in the last few days of his reign explained his reluctance to step down, as he feared for the fate of Egypt after his departure. The delusions of Mubarak had reached such epic proportions that he considered the fate of Egypt as being inextricably linked to his own. Ayub Khan, Zia and Pervez Musharraf, amongst others, were equally utterly convinced of their indispensability. Ayub Khan on multiple occasions compared himself with Charles De Gaulle, Zia self-proclaimed himself as Mard-e-Momin and Pervez Musharraf earnestly believed that he was the arm waving, straight talking, cigar smoking commando that will lead Pakistan into an era of unprecedented growth. A commonality between Marcos, Zia, Mubarak and the like was their genuine and unflinching belief in their respective indispensability. De Gaulle once famously remarked, “The graveyards are full of indispensable men.”

The legal arguments are insignificant compared to the message sent to the nation by the proposed extension. This is even more significant at a time when the Supreme Court has asked for lists of all contract employees in government departments to be submitted as part of a larger crusade against ad hoc employees. The Supreme Court by the resolution has conveyed in unambiguous terms that it does not feel bound by the regulations governing ordinary mortals. Merely being legally permissible is not good enough. Most tyrannical rulers of history have always been convinced of their abilities, purpose and indispensability. Despotism is rarely a product of individual malice; rather it is often self-righteousness that leads to the most extreme injustices.

In January 2010, the Delhi High Court, in a landmark judgment held that the chief justice of India could not, in the name of the independence of the judiciary or protecting confidentiality, refuse to make public the declaration of assets made to him by fellow judges. The high court said that the chief justice of India is a “public authority” who comes under the ambit of the Right to Information Act. The primary purpose of the judgment was not to implicate individual judges, but rather reassuring the public that the judges are held to the same standard of transparency and accountability, if not higher than the executive and the legislature. The tyranny of any branch of government is equally reprehensible, be it the army or hypothetically the apex court.

My argument should not be interpreted as an insinuation regarding the character, legal acumen and integrity of any of the honourable members of the Supreme Court. I merely contend that the Supreme Court should realise that the emphasis on individuals rather than institutions has been a major cause of our societal failure. The proposed extension, even if arguably legally permissible, is not befitting for an institution whose core duty is to ensure a government of laws, not men. The oft-quoted maxim of natural law is instructive, “Not only must justice be done; it must also be seen to be done.”

Habib Jalib remarking on Yahya Khan taking over from Ayub Khan said, “Jo shakhs tum se pehle yahan takht nasheen tha/ Usko bhi Khuda hone pe itna hi yaqeen tha” (the person occupying the throne before you was equally convinced of his divinity).

The writer is a lawyer based at Lahore and can be reached at saroop_hotmail.com