Profiles in courage

By Ayesha Tammy Haq, a corporate lawyer, host of a weekly talk show on satellite television and a freelance columnist.
Email: ayeshatammy @gmail.com

On November 3, an emergency was declared by the chief of army staff and along with the constitution we lost our judiciary. While some judges were persuaded to take oath under a Provisional Constitutional Order, the vast majority refused to do so, heralding in, what many called, the start of democracy. For never before had so many judges of the Supreme Court and the high courts refused to take oath — remarkably 12 out of 17 judges of the Supreme Court did not take oath under the PCO. And while reviling those who have taken oath and celebrating those who have not it is important to understand what it means to be a superior court judge. What do judges give up to become judges? What toll does it take on their family life? And given that there appears to be no security of tenure how does it benefit them?

Having practised law for some 23 years one has had interaction with many lawyers who have gone on to become judges. What is it that makes a judge? It’s many things. Many do so out of a sense of duty and commitment to the country, I see the sceptics rolling their eyes, but it is true. Sometimes you get a calling. There is something bigger than the high court number plate and flag on the car and guard outside the house. Some do so because while they may be well acquainted with the law they are not particularly brilliant on their feet. A mediocre lawyer may be a solidly sound judge. And there is no denying it there are those who do it for the flag and car.

Most lawyers who take the bar exams and are admitted to practise work hard at building their practice and moving up the financial ladder. Unlike those who begin their careers in banking or a multinational corporation, lawyers undergo several years of financial struggle before they start commanding serious fees. And once they reach the point where they command those fees accepting a judicial appointment is a tough call. The sacrifice in financial terms is significant as lawyers usually leave lucrative practices at the bar to sit on the bench. So what is it that makes a lawyer whose career is advancing to agree to take a serious financial hit and become a judge? Is it an element of prestige or are they motivated by altruism or both.

So what benefit is there in becoming a judge? Other than being in a position to do the right and more difficult thing, judges of the high court don’t make huge amounts of money. They get paid a monthly amount of Rs195,000 which comprises their salary, house rent and judicial allowance. In addition, they are entitled to salaries for two full-time domestic staff and a sweeper, Rs1,100 for newspapers, 400 litres of petrol, all utilities and house taxes, house maintenance and medical expenses. Comfortable but nothing to write home about if you are a highflying, multi-million-rupee fee earner. In fact, you may think twice about it if you have to put your kids through university in the US or the UK and don’t have a nest egg or family money to fall back on. So if it’s not such a big deal then what’s the big deal?

In the Sindh High Court, 16 judges have not taken oath under the new PCO. Of these, nine judges have served five years or more on the bench and should therefore, under the rules, be entitled to all benefits, including pensions. However, there appears to be some apprehension as the attorney general has said they are not entitled to benefits. Three judges, though they are permanent, have not completed five years so they are not entitled to benefits and at the same time, because they are permanent judges of the high court, they are not entitled to practise in the Sindh High Court.

Taking the oath of confirmation means giving up a lot and a confirmed judge expects to remain in office until he retires at the age of 62. This situation would not have arisen had they had security of tenure which in turn is one way of guaranteeing an independent judiciary. The remaining four judges were elevated to the Sindh High Court almost two months ago. Two of these were district judges and elevation to the high court was both a huge career move and advancement in financial terms. As ad hoc judges of the high court they are being reverted to their old jobs taking a 70 per cent cut in salary and loss of other perquisites. Years of hard work have amounted to nothing, no house, no savings, no financial safety net, no nothing — they have children, obligations and responsibilities yet they have refused to bow to pressure and take oath under the PCO.

Being a judge can also be lonely. Judges are seen as the bastions of propriety and as a result tend to isolate themselves from regular society, keeping themselves aloof and distant so as not to attract any scandal. Most cut themselves off, do not go out, are not seen at public places and avoid mixing with lawyers. This is not required but seems to be the norm in Pakistan. Falling in the protocol trap they lose friends, are unable to pursue interests and hobbies and find it hard to balance a judicial appointment with personal life.

Despite all this hardship, morale appears to be high among the judges who have refused to take oath. Their families, friends and the general public have been extremely supportive. International support has been tremendous — bar associations around the world have shown solidarity with dismissed judges and imprisoned lawyers. The judges have said while they are extremely grateful for this support, what they have done is according to their own consciences and not in search of praise.

Some may argue that there is no great achievement just being a hugely successful lawyer; success in winning cases alone is not enough. It does not necessarily come with a sense of achievement. When faced with pursuing a lucrative career or one on the bench, many of my friends have chosen the bench thinking that perhaps this is the opportunity to do something significant, to take decisions and do acts that can change lives, destiny and the judicial history.

An important case that has changed lives in no insignificant way is one concerning habeas corpus cases; here compensation was awarded in the case of unlawful detention. In Pakistan it is common for people to be arrested and not be produced in court immediately. To deal with these cases judges of the Sindh High Court in a case where the police detained a man and failed to produce him before a court for three days decided that this was a case of unlawful detention and that compensation was payable.

While the detainee could file a suit for damages for the loss suffered as a result of the unlawful detention he was also entitled to be compensated for deprivation of liberty and dignity. One man’s dignity, the court held, was as good as another’s so as the police were acting under state power and the state had not taken any action it was a ratification by the state of the police action hence the state was liable to compensate the detainee. This was upheld by the Supreme Court and as a result in all illegal detention cases compensation is payable.

As a judge friend said with satisfaction “as a judge you can do your bit to make this a better, more just society”. Even the lower judiciary is trained to check police excesses. It is therefore ironic that the PCO says that the superior judiciary has demoralised the police. What does this mean? Send the judges home to cheer up the police? Is this arbitrariness at every level? Is this what is being called the SHO syndrome? A case of “I don’t care about you”, or “what you have to do I only care about myself”.

November 3 was indeed a unique day. The judiciary bolstered by support from the bar showed that a new judiciary had emerged in Pakistan and that things had changed. It was no longer the ‘B’ team of the military.

The News November 18, 2007

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