April issue 2017

On meeting her, one can’t but help marvel at Justice (Retd.) Nasira Iqbal’s youthful appearance and boundless energy that belie her 76 years. Not only does she not look her age, she does not speak her age either. A spirited participant at the Karachi Literature Festival, she made it clear to the audience at one of her sessions, that she does not have a monopoly over Allama Iqbal — her distinguished father-in-law — like mullahs have over Islam.

Married to the son of the poet-philosopher Dr. Allama Muhammad Iqbal, Justice (R) Dr. Javid Iqbal (Sr.), the former Chief Justice of the Lahore High Court and a retired judge of the Supreme Court of Pakistan, Nasira did not let his stellar background eclipse her own career as a distinguished jurist, that was to follow. Motherhood and home occupied her early married life but after both her sons reached high school she chose to study law. In fact, while her sons were abroad for higher studies, she graduated from the Harvard Law School in 1986 with honours.

When her husband was the sitting LHC judge, she refrained from practicing to avoid any legal impropriety. But fate destined otherwise, and later she was one of the first five female lawyers to be elevated as High Court Judges. However, her appointment became a matter of contention, due to political reasons and differences among the judiciary.

Hers has been an unconventional career graph, encompassing, among other things teaching, social work and activism for women’s rights and human rights, and for the rule of law — she was a significant member of the Lawyers’ Movement (2007-2009). She also taught at the Punjab University for 20 years and is currently associated with the Quaid-e-Azam Law College. To add to her list of commitments she is also presently immersed in a leadership training programme that she initiated as a step towards addressing the total lack of leadership and good governance in the country. In this interview with Newsline, she speaks candidly about the position of women in the legal system, the Lawyer’s Movement and the state of the judiciary.  

What are your views on the Alternate Dispute Resolution Bill 2016, that was passed by the National Assembly in February?

It is shameful. There was no debate in the National Assembly. Panchayats and jirgas have been the bane of women’s lives in the subcontinent — be it India, Pakistan or Bangladesh. Do you really think it is a forum for passing judgment? It actually amounts to chaudrion ki chaudrahat aur jagirdaron ki jagirdari — it is not really justice, especially when women become the subjects of dispute settlements as in wani and swara. We have the infamous case of Mukhtaran Mai, originally settled by a panchayat, which they seem to have forgotten.

And who do you think are the Neutrals? If the panel of Neutrals are defined as retired judges, lawyers, mullahs, retired civil servants, technocrats and anyone they [government] want nominated [at the District level], then that’s crazy. For an inexpensive and speedy form of justice, lawyers and judges should not be involved. It has to be structured at the grassroot level, with the coordination of the local government.

Democratic governments seem to be averse to local governments. The Supreme Court had to threaten and cajole them to pass the law on Local Government, which the ruling parties sat on for the last eight years. But the Local Government law has been so badly framed that I don’t know what they had in mind. Ruling governments, be it the PPP or whoever, want all the power concentrated in their hands, and they are all in collusion ever since they signed on the Charter of Democracy — or the so-called misaq-e-jamhuriat in London. It is really misaq-e-chori and corruption. You scratch my back and I’ll scratch yours — that’s what it is.

Consent does not confer jurisdiction.

To begin with there was no quorum — only 23 people passing a Bill in a House that is 342 parliamentarians strong. But even if they had the necessary quorum, the fact that the Supreme Court had ruled already against jirgas, does not make them valid.

Would it not be struck down in the Senate? There is a list of 23 types of criminal and civil nature disputes, including companies and banking matters, that the panchayats and jirgas can take decisions on.

It’s not a question of being struck down. The Senate is not likely to pass it.

The list that you mention is called the schedule i.e. the disputes on which they can decide — ranging from intellectual property disputes to water and drainage disputes, revenue issues, family disputes and insurance, etc. If that be the case then why have the courts at all? They are actually intruding into the domain of the judiciary, without even consulting them. For this kind of law to be passed, the Law and Justice Commission, whose responsibility it is to propose suitable legislation, should have been consulted. I have been on this commission. It comprises the Chief Justices of all the courts and lawyers from each province. Given the manner in which it has been framed, there is no question that this Bill would ever have been approved by them.

Also, when you pass a new law, you at least consult the stakeholders and publish it in the press to solicit public opinion. Half our population comprises women. This Bill is supposed to give them access to justice — but it actually doesn’t. So what was its objective?

Some say the legalising of jirgas and panchayats has proved to be successful in some other countries. It makes them more answerable to the law.

The jirga and panchayat have been declared illegal by the Supreme Court itself, but still they continue to operate on the sly. Why does a new institution set up for speedy justice have to be called jirga or a panchayat? Why not name it something else? The connotation of these two words is so negative. Besides, women have never had access to the jirgas and panchayats anyway.

How do you view the parallel justice systems operating in the country? Most recently there was a major debate on whether the military courts should be given an extension or not.

The British had adopted the panchayat and the jirga system because it suited them to retain the status quo of the power elite to boost their own power base. Being accustomed to it, we adopted the Common Law system, which is the judicial system. Then our friend Zia-ul-Haq came along and plugged in the Shariah law, without any debate and without getting it passed by parliament, thereby creating two parallel legal systems. Later, with the introduction of military courts, there were three parallel legal systems, which cannot co-exist.

For the military courts, there was a sunset clause, which has now come into effect. [In public policy, a sunset provision or clause is a measure within a statute, regulation or other law that provides that the law shall cease to have effect after a specific date, unless further legislative action is taken to extend the law]. Initially, when the military courts were being set up, there was much debate over it and Senate Chairman Raza Rabbani was moved to tears when the Senate passed it anyway. Hamid Khan, the well known senior advocate of the Supreme Court, had mentioned how he had argued against military courts for several days in front of the full bench of the Supreme Court, but they dismissed his petition. And the review that he had filed later was not even looked at. A review means the case would have to be presented before the same bench, and by the same lawyer, but must have some new element of law or fact that was not discovered earlier.

At the Karachi Literature Festival, addressing Raza Rabbani, I had said that the reinstatement of military courts would be a test of Hamid Khan Sahib’s skills as an exceptional lawyer. Previously there was no right of appeal in the Supreme Court but the Panama Leaks case in the Supreme Court caused a panic among the ruling elite. In case the bench moved against them, they would not be able to appeal. Thereafter, the right of filing an appeal in the jurisdiction of the Supreme Court was passed by the Assembly. Anyone can invoke the jurisdiction of the Supreme Court by filing a constitutional petition under Article 184 (3) of the Constitution. I told Hamid Khan that if he could not convince them in his first set of arguments, he could go in for the appeal, and take more lawyers with him in the second round and see what happens.

But in a city like Karachi where terrorism is rife, the city courts were like a revolving door for the terrorists who were easily released on bail.

The executive branch of the government can ask for assistance to implement its decisions, which are not military courts but the Rangers. When Raza Rabbani was heading the Constitutional Reforms Committee of the Parliament which was tasked with drafting the famous 18th Amendment, I had written to the committee not to make piecemeal changes. Instead, I suggested the scrapping of all the amendments to the Constitution that were made subsequent to 1973 — a blanket revocation to which nobody can take offence. When you revert the Constitution to its pristine form, you can bring about whatever amendment you find suitable.

The military courts have been tested for two years, and now the ordinary courts should be able to pull it off. Anti-terrorist courts hold summary trials, which amounts to a speedy processing of cases. Why can’t regular courts do the same? The military courts were given a constitutional cover with a sunset clause of two years from the date of enactment, which ended early January this year. Now there is an insistence for them to be extended because they say the ‘invisible state’ wants it.

The government is run by the three pillars — the executive, the legislature and the judiciary — but here, what the legislature has passed, the executive doesn’t put it into effect. When lawyers, representing various associations, challenged the extension of military courts in front of a full court bench of 17 judges, six had the courage to say military courts were unconstitutional — but the rest felt it was the need of the hour. I think it’s sheer madness that a government cannot implement the National Action Plan but wants to reinstate the military courts.

Do you think there are a substanstive number of women in the legal system? Additionally, do you believe that if there were, cases involving women would be dealt more fairly in the courts?

Well, there has been a sea change since five female judges were appointed as High Court judges in 1994. I also used to teach law then and I noticed that very few girls came to study law. But now, since I’ve resumed teaching law after my retirement, I find many more girls — I wouldn’t say half the class, but at least 40 per cent are girls, who can then join the judiciary.

But it is a male-dominated profession worldwide. Now, in Pakistan, we have a new expression called wukalla-gardi. When female judges sit on the chair in court, they get bullied by men. Many of my female students are known to have quit [because of it]. I entered the judiciary at the High Court level, so I was not confronted with such problems. Besides, when I was appointed, I was almost 50 and a senior age-wise — 45 is the minimum age for appointment to the High Court. I was not harassed also because the lawyers are more careful of judges at that level.

It is proving to be very difficult for women, but they are entering the legal profession anyway. The Family Courts Act says that in every district there should be at least two female judges in the family courts. Punjab has 36 districts, which means there should be 72 women judges. The increasing number of women entering the legal profession could be because now they see opportunities of upward mobility, such as becoming High Court judges.

But sometimes when women step into that position, they feel they should not appear partial [to women]. I have seen several of them give decisions they need not have given just because it would appear that they were being biased. The Family Court stresses on the need to have a standing of five years or more to mature into the profession, but the trend is to make them judges as soon as they are out of law schools. So there is a problem in this area as well. However, having female judges and lawyers certainly makes a difference. Male lawyers do not give the same kind of priority to women’s cases.

Why has no woman made it as a Supreme Court Justice? As a matter of fact, there are not enough women in the High Courts.

Simply because the men don’t think that women are good enough — but now I think there is a fair chance. Earlier, there was a female Lahore High Court Judge who qualified, but the government bypassed her and instead chose someone who turned out to be a terrible chief justice. Then there was Khalida Rashid Khan of the Peshawar High Court, who was an exceptional judge and a qualified contender for the post of Chief Justice of the Peshawar High Court. She was instead nominated for the UNHCR’S International Criminal Tribunal for Rwanda (ICTR). Initially she didn’t want to go and informed the Law Ministry. The Law Minister made it clear to her that despite being the senior-most judge, there was no possibility of her ever becoming a Chief Justice or of being sent to the Supreme Court bench. When I called to congratulate her, she said that she was told the ICTR position was the only option open to her, otherwise she would remain in her current post. She opted to become the permanent judge on the ICTR, where interestingly, she has done exceedingly well.

Fortunately, the environment and the circumstances are changing. The aggressive electronic media is bringing civil society matters to the forefront. There is a stronger chance now for a woman to become a Supreme Court Justice if she qualifies.

Does the prevailing chauvinism in the judicial system disturb you?

This is a man’s world. Although there was a 20 per cent representation of women in the National Assembly and the Senate, did you know there was not a single woman on the Constitutional Reforms Committee of parliamentarians during the drafting of the 18th Amendment? I pointed it out to Raza Rabbani when he was heading the committee — but he never replied. The minorities were not represented either.

When you are bringing about changes that affect the entire country, I would assume it includes women and minorities — the white part of the flag represents the minority and half of the green part is for the women. Only one or two female parliamentarians acted as stand-ins when the male ones were absent — so, in effect, there was no representation of women or minorities.

What do you make of the Council of Islamic Ideology (CII)’s objections to the Women’s Protection Bill and other pro-women bills?

The CII should have been wound up a long time ago. The chapter on Islamic ideology in the constitution says that after seven years of commencement of the constitution (I think), the CII will present its final report. When you present your final report — you become Functus Officio, which means you cease to exist. But people don’t seem to understand this. Zia-ul-Haq catapulted these mullahs centrestage — they were never there before. When they began creating a ruckus, the governments started to adopt them as their constituency.

The previous Chairman of the CII, Dr. Khalid Masood, was a very progressive man, and at times his decisions didn’t appeal to the mullahs. He was replaced by Maulana Muhammad Khan Sherani, who doesn’t have any knowledge of jurisprudence or law. All he wants is to see himself on TV and to oblige his party, the Jamiat Ulema-e-Islam (F). He is not qualified for the post according to the requirements stipulated in the constitution. And the rest of the people on the council are under his influence. They are given to making some weird statements about women on their assorted appearances on TV.

The CII was initiated as a constitutional body, with only advisory powers. They do not have any authority whatsoever to intervene in legislation, which they have done. They are only intended as an advisory body and the parliament, and the President or Prime Minister or the legislature can seek their advice on religious issues.

Are the laws that have been introduced in the last few years satisfactory, or do they still have loopholes?

It’s a step forward but we could certainly do with better. If you make radical changes overnight, it makes it more difficult for it to be acceptable. When Musharraf declared emergency for the second time, with the advice of the present law minister mind you, he was charged with treason. He gave a statement that women like Mukhtaran Mai get raped to get foreign aid and help in moving abroad. He was quoted around the world.

He wanted to remain the President forever, but for that he had to first contest the elections.He thought, how do I backtrack? It was then that he introduced some legislation on women and called it ‘enlightened moderation.’ What the heck is `enlightened moderation?’ We got rid of him through the lawyers’ movement. At least we managed that — and restored democracy and the rule of law and hopefully, the independence of the judiciary.

Then came Zardari’s government and after five years of doing nothing, at the end of their term, when they knew they were going to need votes, with great speed they introduced a lot of pro-women legislation. This was a way to secure the votes of the other half of the population, who are otherwise ignored. A lot of things got done this way. But then PPP didn’t get the vote in the subsequent elections because of bad governance and PPP was down to zero in Punjab. However, they still have a hold in Sindh.

What impact did the lawyers’ movement to reinstate Justice Iftikhar Mohammad Chaudhry have on the judicial system? The emerging trend of misbehaviour and rowdiness by lawyers when judgments are not in their favour, with some judges of the lower courts being locked up in their rooms, is attributed to the lawyers’ movement. Do you agree?

The lawyers’ movement was so successful and peaceful that the American Bar Association invited me twice to speak at their international legal conferences about how we managed to pull it off. Aitzaz Ahsan and the then Chief Election Commissioner, Fakhruddin G.Ebrahim, were also invited. Legal organisations the world over were very impressed by the movement.

But when the lawyers saw how successful they were, their attitudes changed. At times, I have had to reproach my students. One student had Attorney-at-Law written on his car number plate, while another had Advocate High Court written on it. Whom were they trying to impress? Or was it to intimidate the police if they were caught breaking a red light? Unfortunately, such incidents are taking place. I’ve requested the Quaid-e-Azam law college, where I teach, to allow me to conduct classes on legal ethics. Meanwhile, during the subjects I do teach, I spend 10 minutes in a 50-minute period to speak on legal ethics.

No doubt the situation is dire, but in the prevailing circumstances we will have to overcome it with friendly persuasion. I have to keep reminding them that they are in the same profession as the Quaid — Mohammad Ali Jinnah — so they ought to remember how heavy the burden of responsibility is.

How free is the judiciary? To what extent are its judgments influenced by the government or the powers that be, or even the religious lobbly?

We have to thank Zia-ul-Haq for the prevalent extremism. It set us back by several centuries. What is presently on some of the judges’ minds is the next post they would like to hold, so they feel the need to be on the right side of the executive. The lawyers’ movement demonstrated that if you are just, then nobody can touch you. We got 60 of the judges released this way — but they seem to have forgotten the motivation behind it.

In the Panama case, the Chief Justice went on a 15-day leave and came to attend the 150th anniversary of the Lahore High Court (LHC). I asked him, “What made you put the case on hold for two months and then take off for another 15 days?” Did he not realise that the whole nation was watching him. This is a case of ‘justice delayed is justice denied.’ He should at least have taken a decision.

Whatever the decision, if there was any kind of pressure, all he had to do was give a call to the bar, and to civil society. We have already demonstrated what we can do, and that we will not leave their side. Judges should make their decisions independently and honestly — I wish they had given us a call. Don’t the judges remember what the lawyers had to go through to get them freed?

The judges’ reputation has taken a hit because of their indecision. Had they taken a stand, they would have been appreciated and praised. But they are more concerned about their next position.

Has their position been compromised as a consequence?

Judges don’t descend from Mars — nobody does. There are the good judges and there are those who are afraid — and then there are judges who desire something else. It’s human nature. Someone mentioned that what I had articulated at the 150th LHC anniversary was in their hearts, but no one had the courage to speak out as both the lawyers and members of the apex court were present. They were referring to the bench that had disappeared without taking a decision on the Panama Case.