April Issue 2009

“I see a revival of the pristine values that gave birth to Pakistan” — Justice Nasira Iqbal

An ace graduate from Kinnaird College, Justice (retd) Nasira Iqbal entered the legal profession by default. A classic case of the committed housewife returning to academics after having done her duty, she went to law college only after she had seen her sons through high school. She later went to Harvard, but upon her return, legal propriety held her back from working in the courts — her husband was a sitting judge — till a quirk of fate catapulted her into the limelight as one of the first five Pakistani women lawyers making it to a High Court as judge. Working her way up to that prestigious position through sheer dint of intelligence and commitment, Justice Nasira Iqbal has taken everything in stride — from bearing the brunt of uncalled-for controversy surrounding her judicial elevation to fighting for the cause of women, who have been unjustifiably subjected to gender discrimination in the judicial profession, despite tremendous pressures on her.

Very conscious of the iconic status of her married name — she is Allama Iqbal’s daughter-in-law — she also carries the emblem of her maiden identity as Trustee of the Ferozesons Trust and the Fatima Memorial System, a 500-bed non-profit general hospital. Currently, an active member of the CCP (Concerned Citizens of Pakistan), she spends her time studying the socio-political landscape and working towards the establishment of a fair and free judiciary, the rule of law and the grant of civil rights. In this wide-ranging interview, Justice Nasira Iqbal, who retired from the LHC in 2002, takes Newsline through her memorable journey in the corridors of law.

Q: You were among the first five women to make it to the coveted post of Lahore High Court Judge (LHC) in an atmosphere of considerable in fighting between the judiciary and the executive. What was the journey like?

A: When Benazir appointed 40 judges in 1994, I was one of 20 elevated to the LHC because of a favourable track record. It came as a total surprise. We were at dinner and along comes this announcement on television! I was blissfully unaware, but apparently a controversy had been brewing about my appointment. First, Benazir had been averse to my appointment since my husband was a sitting senator of the opposition party. However, my name was included when the governor said that my disqualification would also affect the other two women whose names had been suggested.

Ironically, controversy also arose in the Nawaz Sharif camp that my husband had not taken him into confidence over the issue. Additionally, there was a general hue and cry that the move favoured PPP jiyalas but the LHC gave a ruling against this, saying that the appointment of the judges was in keeping with the law since they had been recommended by the chief justice of Pakistan who had the prerogative to do so. The case went to the Supreme Court where, by this time, the sitting CJ, Sajjad Ali Shah, had fallen out with Benazir after giving a judgment contrary to her wishes. The resultant acrimony led to his digging up the judges appointment case from cold storage and appointing a seven-member bench. The verdict was that these appointments had been made taking into consideration political exigencies and, hence, were null and void. Among other conditions put forward was the one saying that elevation to the High Court required 10 years of work experience in the courts. This, in spite of the fact that earlier on there were precedents of judges being appointed without fulfilling the above conditions.

The CJ’s ruling affected a lot of the newly appointed judges, including me. I stopped going to the courts because of the de-notification. I was upset because I believed that out of the 20 appointees to the LHC, I was among the best. Meanwhile, a strong case was put up in my favour that as soon as the 10-year condition was fulfilled, I should be elevated as a judge of the LHC. I had my law degrees but had refrained from practicing in court on grounds of propriety because my husband was a judge of the LHC. By the time I got my Harvard degree, he was the CJ and I believed that my working in the courts could raise insinuations. Though later, it became the norm for wives and sons of CJs to continue working, which of course made them one among equals. By the time I fulfilled the 10-year condition Nawaz Sharif had come into power and, as a consequence of his earlier ire, I did not go to court during his stint. It was only after his government was removed that I went back to the court as a judge of the LHC, for two years.

Q: You have a track record of fighting against gender discrimination in the judiciary …

A: There is no place for gender discrimination in the judiciary, because Pakistan is a CEDAW signatory which means that there should be 33% women judges in the higher judiciary.

Q: Which also means that women could make it to the top slot. And yet they never have …

A: Yes, indeed. There have been women who were eligible for top judicial slots but were bypassed. In Peshawar, we had the case of Khalida Rashid, who worked her way up the judicial services to the Peshawar High Court (PHC) at a very young age. She qualified for the post of CJ of the PHC. However, to get her out of the way she was nominated to the International Criminal Court. That was considered to be a prize posting but Khalida, realising that she was being sidelined from taking up the position of CJ of the PHC protested to the law minister. His answer was a ‘take it or leave it’ stance. So, finally, Khalida had to accept. When I rang up to ask her the reason, she said she had been given no choice.

In the Punjab, Justice Fakhrunnisa was eligible to become the CJ of the LHC, when Justice Falak Sher retired in 2001. But she was passed over and Chaudhry Iftikhar (he has retired since), who later turned the courts to zilch, was elevated instead. In a classic case of the carrot-and-stick policy, Fakhrunnisa was nominated without her consent to the Environment Tribunal. She refused to go because under the constitution no judge can be forced to accept any other post. She filed a petition in the Supreme Court and Justice Munir A. Sheikh ruled that she had the right to refuse. Fakhrunnisa returned to the LHC as number two under Chaudhry Iftikhar, who would not talk to her. She was assigned hardly any cases. She would go to court, sit there and go back home. We did agitate, but to no avail.

Q: What do you see as the biggest hurdle in the standardisation of the justice system in Pakistan? Is it the politicisation of the judiciary?

A: No, not politicisation. It has been the subordination of the judiciary to the executive. The rot started with the imposition of the first martial law and the subordination of the judiciary to the executive. That is the greater bane of the system. I hold the military directly responsible. In Pakistan’s history of 62 years, we have had military rule for 50, with the judiciary being ruthlessly trampled upon each time. It started earlier with Ghulam Muhammad, who pressurised the court to uphold the dissolution of the assembly under the pretext of the doctrine of necessity, just as it was framing the constitution. Then came Ayub Khan, who got himself validated by the courts, followed by Yahya Khan. Zia-ul-Haq completed the rot when Justice Anwar-ul-Haq gave a judgment in his favour. Then, there was Musharraf. Each dictator would come in and give a fresh oath to the judges, thus overruling the civil rights of the people of Pakistan.

Q: What were the reasons behind the success of the lawyers’ movement? And now, with the restoration of the deposed chief justice, how can the independence of the judiciary be maintained for all times to come?

A: A lot of forces came together to nullify the carrot-and-stick tactics and thus stabilise the rule of law and strengthen the judiciary. One reason has been that the media has played a major role in creating awareness. The television images of the CJ saying “No” to a dictator and, subsequently, his walking on foot and refusing a ride in the police vehicle to face the Supreme Judicial Council was a rallying point that infuriated the lawyers’ community and that made him into an instant hero. Then, whatever the case, we are in a democratic era and, in spite of all the marches and unrest, there was no way the people could be gunned down. Bugti was gunned down under a pseudo-democracy situation, so there had been little repercussion. They could not follow suit.

This was a democratic movement with elected representatives in the driving seat. The reason for the phenomenal success has been that the CJ had the rule of law on his side. He was removed because he had fallen out with Musharraf, because he had taken up the case of missing persons, because he gave rulings against the New Murree and Pakistan Steel Mills cases. He is a hero because he did not buckle under pressure. Only if the executive stops interfering with, and intimidating the judiciary can we hope that the current positive situation will persist.

Q: Swat, an integral part of sovereign Pakistan, has been allowed to introduce the Nizam-e-Adl. Does this not indicate a failure of the state’s writ?

A: No, it stands for a capitulation of the Pakistan Army. It was plain surrender when they released Sufi Mohammad, a convict. Two army divisions are in the area and they have not been able to do anything. Why have they not been able to contain the movement? After all, they take up 90% of the budget. If need be, they should have gone in for hand-to-hand combat. When Sufi Mohammad first appeared with his gangsters in 1996, it had taken only an SOS from the local commissioner to the Frontier Constabulary to end the insurgency within 72 hours. Now, we have full-scale military operations, a wily-nilly pattern of bombings and army checkposts facing Taliban posts and still no real peace.

It is on record that the local population is being harassed for raising the level of their trousers and for the length of their beards under the direct gaze of the army personnel, standing just a few feet away. Do you know that out of a population of 17 lacs, 10 lacs had to flee from their homes? All this while the army stands guard. How has this happened? When and how does it become possible for somebody to walk onto my property if I have posted security personnel on the borders? There must have been connivance somewhere at some stage.

Q: There is a viewpoint that the Shariah law is supported by Swat’s local population …

A: What Shariah? As a judge, I know how much detail goes into giving decisions. I have sat in judgment on cases of child custody and divorce, where I have had to make my own assessment in conflicting situations, like when one parent is a Shia and the other is Sunni. So which Shariah are you going to enforce? They have an FM radio issuing edicts and terrorising the people in Swat. That is certainly not Shariah. Nor is it the desire of the genuine population of Swat.

The enforcers of the so-called Shariah are rabble-rousers, supported by Fazlullah, who came in when a generally chaotic situation developed with the arrival of the US forces in Afghanistan, post 9/11. Yes, the locals were not too happy with the way things were being handled ever since the Wali’s own system of justice had been replaced by the federal system, in the aftermath of Swat being made an integral part of Pakistan in 1969. They were generally peaceful people accepting the area’s traditional justice system, which was not the Shariah, with its quick and easy dispensation. The new federal system was, in turn, cumbersome and lengthy, requiring access to the Peshawar High Court and was riddled with corruption at the subordinate level. Even now, do we really know the feelings of the people of Swat? They are asking us whether we consider them a part of Pakistan or not? They are saying that Swat’s alienation from the rest of the country is not going to let us all rest in peace. What is happening there can filter down to Islamabad.

Q: What is your prognosis for the country’s future, post the lawyers movement?

A: Very positive, as against the negativity of the recent past. I see a revival of the pristine values that gave birth to Pakistan. This is a rebirth, a defining moment. One incident may not bring miracles overnight, but I would call it epoch-making because I can see the development of a pattern of behaviour, socially and morally, that will change the course of national thought.

Q: How do you explain Pakistan’s descent into chaos?

A: It started the day Zia-ul-Haq agreed to become party to the great game of Soviet disintegration, in collusion with the US and its allies. That was just because he needed to legitimise his rule. Well and good, because we eventually succeeded in driving them away. But, as a consequence, the country became a breeding ground for the Taliban. Once that Frankenstein’s monster had been created, it would not let go of us. So now we are held hostage to a way of life which impinges on our basic rights. I am sitting in court and if a third party tells me to cover my head, I will not do it, though I may do so voluntarily. That is my personal prerogative and the state has no locus standi to enforce it.

Before 1980, Pakistan was a perfectly peaceful place and no outsider decided whether I was to cover my head, or send my girl child to school, or wear a beard. Tauheed, risalat, namaz, Hajj, roza and zakat, the basic tenets of Islam, are obligations between God and man, and each individual is answerable for his own actions. In mundane matters, rulings are being given by the Taliban; it is the realm of the legislature to legislate and no aggressive group can arbitrarily enforce their notions of the Shariah. The Meesaq-i-Medina stood for an Ummat-i-Wahida. Thus, the ideal Muslim state is responsible for upholding the rights of one and all. That was the Pakistan envisaged by the founding fathers from Sir Syed to Iqbal to the Quaid.

Q: You helped prepare the draft of the bill against domestic violence last year. Do you, in all honesty, believe that legislation can rid this highly patriarchal society of the malaise?

A: Drafting a law is part of the strategy. There will always be deviants, but that is what the laws are made for — to act as a deterrent so that offenders can be punished. And yes, people are now coming to realise that violence against women and children is not going to get them anywhere because the media has created wide-scale awareness about the issue. However, we need still greater coverage of the issue — and with the electronic media around, that should not be impossible.

Q: You married into an iconic family. How pressurising was the impact on your own individuality or the way you raised your children?

A: I’d like to believe that I am recognised as a person in my own right, but there has always been the realisation that my profile carries the iconic connection. However, that consideration has never made me feel fettered. I have made a conscious effort to pass on certain moral values and standards to my children. I have conveyed to them that we may not be role models but because their grandfather’s name carries effect, they cannot afford to be lax on their standards of behavior. They are not to ever cast a shadow on the family name by any act or omission. This is not to say that my attitude would have been different had I married elsewhere. I married at the age of 23, when my moral choices had already been made.

However, I must say that the experience of living at Javaid Manzil was unique — they were the happiest and the best years of my life. But, frankly, I have not read enough of Iqbal, not even the Reconstruction of Religious Thought in Islam. So I have been myself all along.