- How recent and past events shaped the debate around role of judges
The Supreme Judicial Council has held a preliminary hearing in the references against Justice Qazi Faez Isa of the Supreme Court and Justice K.K. Agha of the Sindh High Court, and though the SJC has not even proceeded to issue the impugned judges even show-cause notices, the lawyers’ community has made it clear, in the form of protests, that it is not indifferent to the matters. This is mainly because of Justice Isa, who had authored the judgement in the Faizabad dharna case, which had caused enough embarrassment that it provoked a number of review petitions.
The issue provides a reminder of the careers of Francis Bacon and Edward Coke, the two English jurists whose legal and personal differences encapsulated the question of the role of judges. Bacon is more famous today as an essayist, whose work is still taught at the postgraduate level, and as the man who developed the scientific method, but he was also a jurist of very high calibre, who rose to head the British judiciary as Lord Chancellor. Coke was basically a jurist, who served as Solicitor General and as Speaker of the Commons.
The two men held similar offices, with Coke serving first as Chief Justice of the Common Pleas, and then of the King’s Bench, posts that Bacon also held. However, though both flourished under James I, they held diametrically opposed views on the role of judges. Coke held that the judges were supposed to apply the law, and that even the King was subject to it. Bacon held that judges were supposed to act as ‘lions under the throne’.
It should be remembered that both worked under James I, who was first James VI of Scotland, and thus used to a system where kings had much more discretion. When he first came to England to be crowned after the death of Queen Elizabeth I in 603, a highway robber was brought before him. James heard the case and had him hanged, as he was used to doing to malefactors in Scotland. However, in England, there was uproar, because the executed criminal had not gotten an opportunity for due process.
Obviously, James I liked Bacon better than Coke. ‘Lions under the throne’ is what he wanted the judges to be. In fact, that is what all governments want them to be. James’ son Charles I had to fight a civil war with people who were like-minded with Coke, and ultimately lost his head. Coke was already dead, but he had played a crucial role in the passage of the Petition of Right that had led to this.
The judiciary is among the first targets of any revolution, because one of the key aspects of any system of government is the law under which it exists, and which it implements
Judges are a crucial part of the establishment. The judiciary is among the first targets of any revolution, because one of the key aspects of any system of government is the law under which it exists, and which it implements. The Meesaq-i-Madina, which set up the Riasat-e-Madina, was about legal relationships. Similarly, each time Martial Law has been imposed, the very first thing that is issued is the Laws (Continuance in Force) Order, which provides that all laws shall continue to remain in force. It may be mentioned that in the famous Dosso case, in which the Supreme Court enunciated the infamous Doctrine of necessity, the issue was whether the 1956 Constitution, under which the Sind High Court had dismissed that Dosso’s conviction for murder, was valid after the imposition of Martial Law. The Constitution was declared repealed, as a successful revolution had taken place.
Bacon was as useful to James I as Chief Justice Munir was first to Governor-General Ghulam Muhammad, and then to President Ayub Khan. However, it is interesting that Coke, and then Bacon, were thrown out of office and disgraced, in the name of accountability. In that era, there existed a custom of litigants making valuable ‘gifts’ to the judges hearing their cases. Bacon thus found himself accused of receiving bribes. Coke was sacked for refusing to change his judgement to suit James, as Coke had found that the King too was supposed to obey the law. He was also accused of having an unexplained £12,000 in his possession. These days, that would be a tax offence, a little like Justice Isa.
In that era, there was no media spotlight, no SJC, no NAB. Getting rid of reluctant judges was easy. However, there was one thing which survives, and that was lawyerly rivalry. Coke and Bacon belonged to rival groups. Lawyers’ groups compete with each other over such things as judicial appointments, and assignments to various cases. For example, the late Sharifuddin Pirzada, who was counsel in the Dosso case as well as Zafar Ali Shah case which validated the Musharraf martial law, always supported military rule, but was never unemployed under civilian rule. Justice Isa, before his elevation a prominent lawyer, must have taken part in bar politics, which is now the primary vehicle for overall lawyers’ politics. Coke had married a lady Bacon he was wooing, but that is taking rivalry to its extreme. It is a strange coincidence that Justice Isa’s wife too is involved, being the owner of one of the properties supposedly undeclared.
It seems another coincidence that judges elevated from the Balochistan High Court have placed themselves firmly against Bacon. In the Pakistani context, lions under the throne have validated military takeovers. Twice, though, the Supreme Court has ruled that they were usurpations, both times after the martial law was lifted. However, in the latest occasion, the military ruler was sent to trial for high reason, but escaped justice abroad, and the PTI government is not very interested in prosecuting the case. It has shown more interest in the case against Justice Isa.
There is no record of anyone arguing that Coke be let off because he was against the King. ‘Against’ is a relative term; merely saying that he was under the law was to be against him. In the same way, it seems that saying that a particular organisation is as bound by the law as anyone seems to be enough to be called treasonous.
In this context the example being set for the other judges is also very vigorous. Fair warning is being served!