Daily Times

The seemingly easy task of a judge in interpreting the law has gradually become extremely complex, troublesome and even something of a torture, especially for those with a conscience in our national context. When I was born, Pakistan had only two provinces – one of them is gone. However, we still have four provinces and that makes me wonder how I passed my first-grade mathematics.

Well, Pakistan was initially created with four provinces: East Bengal, Sindh, West Punjab, and a province without a name called NWFP. Balochistan wasn’t part of the list yet. In 1955, we created two more provinces: West Pakistan and East Pakistan, ostensibly as a means to create parity between the two and remove the absolute majority of the Eastern wing. Now, there wasn’t a single province with a name. Anyways, the two wings each had a capital, a provincial assembly, a high court, a PIDC and a WAPDA. The Sindh Chief Court was wound up and never to be heard of again. Towards the end of his tenure, Ayub Khan was desperately asking about ways to get rid of the eastern wing. A committee of two civil servants was assigned the task to see if the West would be better off without the East. Before the judgment could come, Ayub’s time was up. Entered Yahya Khan who wanted to do things his way and pit one wing against the other. But wait, the first thing he did was undo the One unit plan a year into his new job on July 1st, 1970, restoring Sindh/ NWFP (the added icing on the cake) and establishing Balochistan as a province. West Punjab simply became Punjab while East Bengal remained East Pakistan. That was a glorious time when we had five provinces and four High Courts.

To return to the judges and courts, they first came under pressure when our titular head, the Governor General, took advantage of the anti-Ahmadi protests and dismissed his predecessor as well as Prime Minister hailing from East Bengal. A new Prime Minister from East Bengal was transferred from Washington and asked to assume office, but after the assembly stripped the Governor General of some of his powers, he retaliated by dismissing the assembly itself. It is mentioned authoritatively that the Governor General who proceeded on sick leave within a year of these actions, could not have done so unless he had the support of the Army Chief, enabling these semi-coups. This belief gets confirmation when we hear of the Army Chief telling his Western friends that these dismissals constituted a God-sent opportunity for Pakistan.

The Speaker/President of the Legislative/Constituent Assembly appealed to the Sindh Chief Court. The Registrar of the Chief Court, Roshan Ali Shah, brought the speaker in a burqa to file the petition against the Governor General for reasons that are obvious. Four and a half decades later, the Supreme Court headed by Roshan Ali Shah’s son would be stoned by political workers. But still, the Sindh Chief Court ruled against the Governor General terming his action illegal. The court was headed by a British-Indian Civil Service officer of the 1923 batch and later Governor of Sindh, Justice Sir George Baxandall Constantine. The matter now went to the Federal Court and things began to get a little awry. The Governor General offered to appoint the Chief Justice to a newly created position of Deputy Governor General – a promise he never kept. Muhammad Munir who kept his part of the promise wept at this betrayal a little more when he realized the enormity of his injustice. The Federal Court ruled 4-1 in favor of the Governor General. The only dissenting judgment came from Alvin Robert Cornelius, another ICS officer (though not British) of the 1926 batch. Judges Akram, Sharif and Rehman supported their boss.

In a country under Martial Law, especially when an act has been condoned by the Supreme Court itself, there is considerable abridgment in the power of courts to do justice. Notwithstanding this, Malik Rustom Kayani came to symbolise the conscience of the judiciary through his speeches at all major events

But the worst was yet to come. In an unconnected development, the Sindh Chief Court was wound up for good and made the Karachi Bench of the West Pakistan High Court within a few months of the Federal Court’s April 1955 judgment. Curiously, some judges who wrote the landmark judgment against the Governor General had cases of sodomy registered against them to send the right message across the judiciary. Well, talking of sick minds.

In 1958, the first martial law was imposed on the country and working at that time was certainly not good for any just or independent minded judge of the superior courts, which brings me to the very topic of this writeup. Justice Malik Muhammad Rustom Kayani was born in 1902 in Kohat, selected to the 1927 batch of the ICS and became a judge of the Lahore High Court in 1949. This enabled him to see the turmoil in the early days of Pakistan from an extremely close distance. He was appointed Chief Justice of the West Pakistan High Court from 1958-62 and was a judge in the British tradition of Anglo-Saxon justice like all of his predecessors and unlike many of his politically oriented successors.

In a country under Martial Law, especially when an act has been condoned by the Supreme Court itself, there is considerable abridgment in the power of courts to do justice. Notwithstanding this, Malik Rustom Kayani came to symbolise the conscience of the judiciary through his speeches at all major events. In the early 50s, he had been elected President of the ICS/CSP Association and although one of his service colleagues three years junior to him was Secretary General and Deputy Administrator of Martial Law, Kayani retained his judicious mindset and spoke his mind across the country.

Kayani would speak extempore, what he said could make more than four very witty books. His attacks on the government of the day were softened with inbuilt humour and his unforgiving nature. For instance, when Islamabad was announced as the new capital of Pakistan, he was quick to announce that it sounded like ‘Islam Bibi’. He suggested the hilarious name of ‘Tando Maulvi Gulsher Khan Kolo’ – Tando for Sindh, Maulvi for Balochistan, Gulsher for Punjab, Khan for NWFP and Kolo for East Pakistan. He hastened to add that Kolo meant a banana in Bengali. He was not serious, but the point was made – Islam should not be politicised. Sitting with Munir on the Commission, probing the Anti-Ahmadi riots of 1953, he had certainly learnt his share of lessons. And thus, his criticism of the public policies of the day continued.

An uncle of mine in the Ministry of Law at that time told me that Ayub Khan sought his view on Kayani’s arrest under Martial Law regulations. My uncle wrote that such a move was completely unnecessary as it would only bring international condemnation and earn a bad name for the country

He was equally witty when it came to writing the foreword/preface to his collections of speeches. In one of these, he noted that he wanted to title his book, “The Whole Truth,” but after the President of Pakistan’s message had been added to it he decided to call it, “Not the Whole Truth”. The unfortunate fact is that Ayub Khan’s patience was almost at an end. An uncle of mine, A. R. Kazi, whose son headed the Sindh High Court in the 90s and who was Joint Secretary in the Ministry of Law at that time told me that the President sought their view on Kayani’s arrest under Martial Law regulations. My uncle wrote that such a move was completely unnecessary as it would only bring international condemnation and earn a bad name for Pakistan. It was better that he be called and given a piece of the President’s mind instead. Law Secretary Sir Edward Snelson concurred with my uncle and the suggested step was taken. A great national embarrassment was thus saved. Thereafter, Ayub Khan took the additional safeguard of interviewing judges before their appointment – a tradition carried out previously by Yahya Khan as well. Ayub Khan patiently waited for Kayani to attain his age of superannuation in October 1962. Understandably, he did not elevate him to the Supreme Court and thereby prolong his tenure. On his retirement, Foreign Minister Manzur Qadir was appointed Chief Justice of the Lahore High Court and the relief of the administration then can be understood.

It should not be assumed, however, that Kayani spoke only against the government. He had a lively mind – made to entertain. Once he spoke of his fall from grace with his superiors and his posting as District and Sessions Judge Dera Ghazi Khan. Upon reaching there, he found himself amongst all the exiles in the other departments as well.

The medical community was not spared either. His daughter was a friend of the daughter of Dr. Shujaat Ali, renowned Medical Superintendent of Sir Ganga Ram Hospital, Lahore. He attended the Fatimah Jinnah Medical College and hospital’s annual function as the chief guest and mentioned that the previous night he dreamt that he had died and gone to Heaven. There the angels asked him what he was doing on earth. He replied that he was a judge, so the angels ordered that he be taken to hell. Once he reached the gates of Hell, an angel asked him his name, and when he replied with his name the angel ordered him to be sent back to Heaven as his name was not on his list and he might be a good judge. Back in Heaven, he had a similar experience and was referred to Hell once again. He was asked his full name and told again that his name was not there. He created a scene and said that if you guys don’t know where to place me, why have I been brought here? Just then, a high entity – either Saint Peter or the Archangel Gabriel seemed to be passing by and asked him the reason for the commotion. He told him the whole story. The high entity asked him the name of the last place on earth. “Sir Ganga Ram Hospital Lahore,” Kayani replied. “Now I understand,” said the high entity. “The Medical Superintendent sends people here before time, this creates administrative difficulties for us. We are waiting for him to come here!” By this time, the entire audience was laughing uncontrollably.

Kayani suggested the hilarious name of ‘Tando Maulvi Gulsher Khan Kolo’ — Tando for Sindh, Maulvi for Balochistan, Gulsher for Punjab, Khan for NWFP and Kolo for East Pakistan. He hastened to add that Kolo meant a banana in Bengali. He was not serious, but the point was made — Islam should not be politicised

Hardly a month after his retirement while visiting East Pakistan, Kayani died of a heart attack in the Chittagong Circuit House. Amongst his few belongings left in the room were 29 Rupees, amounting to around $10 at that time. A paper with a few talking points for his address to the High Court Bar Association that night was also found with his Shepherd pen. The transition to authoritative rule had killed him. Of course, he was spared witnessing a lot of bad things that were yet to come.

Yahya Khan was generally courteous with the judiciary and even retained Justice Cornelius as his Law Adviser after retirement, similar to how Ayub Khan had appointed Justice Munir as his Law Minister. The judiciary returned the favor by declaring him a usurper after he had been deposed in 1972. When President Bhutto met Justice Hamoodur Rahman after the judgment, he told him that the next time his court will probably declare the British annexation of India as illegal. During Bhutto’s own tenure, a District Judge was arrested from his court by the police, this evoked a powerful protest from Justice Tufail Ali Abdul Rehman, the hardworking and brilliant Chief Justice of Sindh who was appointed after the Sindh High Court came into being in 1970.

After Ziaul Haq took over, his policy towards the judiciary was clear – are you with us or against us? Furthermore, the Bhutto trial and execution brought the entire judicial system under sharp focus and scrutiny around the world. Certain British jurists noted that while Pakistan continued with the English style of dress and other practices and etiquettes, grave injustices were being meted out. Something curious happened after that. In November 1980, the dress of the Superior Court judges was dictated through an official order. Under this order, judges were to wear Jinnah caps, black sherwanis and gowns. Gone were the wigs, the butterfly collars and bands marking the fanfare with which the then Chief Justice had been brought to take oath. Furthermore, judges could not be addressed as “My Lord” and “Your Lordship” but as “Sir”, “Janab-e-Wala” or “Janab-e-Ali”. The courts had been effectively ‘nationalized’ under the garb of the new Hijra centenary. The PCO the next year, perhaps, put the last nail in the coffin of an independent judiciary. An acting Supreme Court Judge and former Chief Justice of the Lahore High Court who had worked passionately for the regime, was not even called to take oath. Those were the very judges who shot Pakistan’s judiciary in the foot. On the other hand, luminaries like Justice Malik Rustom Kayani will always be remembered for their structured resistance against any encroachment on the rights of the judiciary.

The writer is a senior Public Health Professional of Pakistan, currently in the USA. He can be reached at gnkaziumkc@gmail.com

Published in Daily Times, December 8^th 2017.