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Interview with Justice (Retd) Nasira Javed Iqbal

This interview was conducted by: Mr. Naeem Amjad, Mr. Ali Javed Bajwa, Ms. Farah Bajwa, Ms. Momina Mir, Mr. Maroof Mitha and Ms. Fatima Bokhari. As a person, Justice (Retd) Nasira Javaid Iqbal is soft spoken, humble and possesses a graceful personality. She is an erudite and a scholastic legend who belongs to a family of literary giants. She has served as Judge Lahore High Court and has had the honour of being the Member of Pakistan's Delegation Human Rights Commission, Geneva, Member Supreme Court Bar Association, Member Law and Justice Commission of Pakistan. Q: Madam, you have been a lawyer, a judge and a teacher. How do you see the role of judiciary in Pakistan since 1947?

Ans: Well, the judiciary has of course a very important role because it is one of the three pillars of State and it has always been known to be the least dangerous branch, because it does not take any thing away. It is the one that is supposed to redress the grievances of the citizens, and it gives them some kind of succor if they intoxicate. Now why it is the least dangerous branch? Actually it is because in our region all this happens when there is participatory government, so when there is no participatory government then the roles get all mixed up. And judiciary is subjected to same kind of pressure as the other two branches of the government. So it does not perform its role in the optimum manner in which it is expected too. You can't really blame them by the threats that if the judiciary has become very dreadful, then are rest of them better? Q: Madam, Judiciary had to take the first step when in 1958 the first Marshal Law was enforced. At that time if Justice Munir hasn't introduced the doctrine of necessity then could the Pakistans judiciary or Pakistans politics be at a better track?

Ans: It might be possible, but you cannot blame everything on one individual. I am not trying to defend Justice Munir. That's why I think he was one of those who started this whole downhill path. Well, it all started, when Maulvi Tamizuddin's case took place, prior to Governor General's reference it was in 1952 and was earlier then 1958. But as we know that might is right and the thing is that, whenever such a situation may rise where there is a usurpation of power, the Judiciary is supposed to stop them. Judiciary has no force at its disposal. Supreme Court has no force at all. High Court and subordinate Courts have the enforcement mechanism. Even Civil Judge cum Magistrate can send a Bailiff. Supreme Court doesn't even have a Bailiff. It can only direct the other authorities to perform certain tasks and it entirely depends on them whether they do it effectively or not. And once it is directly confronted with an Armed force,

tanks and tenants, what do you expect? Its human reality but supposingly even they had taken a stand, all would have shut down, worse people would have come. You know that Imam Abu Hanifa was very upright person, a very learned jurist. He was the founder of the school of jurist even in Baghdad. Once the Caliph Mansoor called him and said I want you to be Qazi-ul-Quzat (Chief Justice). Imam said, I am sorry, I don't think I am competent. So the caliph said to him that you are telling lie because you are generally known as the most competent person in the realm. He said, you have said that I am lying; if I am a liar this is my biggest disqualification that I am not eligible for Qazi-ul-Quzat. And the Caliph got very angry and throwed him into the prison and infact Abu Hanifa died in prison. Now the situation was so that some body had to be made. He called Imam Yousaf. Imam Yousaf was the disciple of Abu Hanifa. He did'nt known what to do so he went to Abu Hanifa, Abu Hanifa was in prison and he said what am I going to do? The caliph is asking me to be the Qazi. Imam Abu Hanifa replied to him that if all upright people refuse then rascals will become Qazis and dispensation of justice will cease to exist therefore if he is asking you, you should accept. So you see you can compare who selected the path of Imam Abu Hanifa and who selected the path of Imam Yousaf, pragmatism was present in both the Imams. So this was the situation that if Imam Yousaf had also refused then what would have happened? Q: Madam, do you agree with the point of view that the judiciary among the three organs of a government has been the most successful one? Because on and off we have seen that other organs of the government have come across certain crises but judiciary in whatever situation either dictatorship or democracy, it has successfully come to this stage.

Ans: Yes, I think you have to give credit to them for that to the extent the dispensation of justice is always available to the citizens. You can't say that there was a time when the courts didn't function. And there is the historic saying of Churchill when he asked that whether the courts are functioning or not, and was told that yes the courts are working, and Churchill replied, 'that means every thing is ok'. So the same is the situation and it depends on how one looks into it. Q: Madam if we see the 'Judges case' we see that, there is criticism from one section of society, that if the principle of seniority is followed then a judge who is not as much competent is appointed as judge. So do you think this affects professionalism?

Ans: See, it's very unfortunate; The 'Judges Case' judgment was handed down in a particular scenario; rather I will say it was meant for a particular person. And in fact it has been confined to the dustbin of history and its biggest reason was that many principles were enunciated in it and the main principle was principle of seniority. So the presiding judge who was heading the whole bench didn't apply it to his own self. When he considered them out of that whole thing or exempted from the

application of the judgment, then the judgment was fraud the day it was handed down. It was only applied to those who are available, as whatever subjects or victim, whatever you like to call them. The result is that, his own nemesis was I think not immediate, it took a little while but it was directly a result of what he did. In the first stage he accepted an out of turn force and if he had not done it I think, the situation of the judiciary had been different. Once he has handed out that judgment that if he wanted to be remembered in the 'Guinness Book of World Record' or the encyclopedia of justice in the world, as being a great jurist, he should have stepped down and said, it applies squarely on me too. But he didn't do it. And that way the third weakness of the judgment was right there in it's initial implementation. Thus, the principle of seniority faded right after that. And the matter which they struck-down there, he was party responsible to that whole thing. Do you know the appointment of judges how began. He was the one who actually approved the appointment of all those judges; his signatures were on those appointments. The summary which was forwarded, he had recommended that. Then to turn round and say; 'it's a mistake'. So why didn't he do it at that time. If all this would have happened, I guess you are in a way right, that the principle of seniority cannot be considered at every stage because there are some position in which this could not be applicable. But again you see if everyone knows that their turn will come, may be you will have not that much mediocrity. People will work hard. Many a time we see that, bulk of incumbent judges are promoted to the Supreme Court by ignoring the principle of seniority. Now the very threat that this thing happen means all is not safe, all is not sound. Why should there be the need to hold one person in the seat, impass all the others over. That's the normal thing. And I have known them all, they have been my juniors, they have been colleagues, they have been my superiors, so when this type of situation occurs, it creates a very poor impression of the judiciary. So we have to actually try and avoid such thing because it also reflects very poorly on the administration. Why preference should be given to one person over the other when most of them are as clever. Q: How do you perceive Dr. Javed Iqbal's concept of Ijtehad through parliament?

Ans: I found out that Dr. Javed Iqbal shared that view with his father and whatever it was. Because it is an academic view which you or I or any of us can examine and follow without having any vicarious relationship with any person who has followed it otherwise. I think that is the only way we can do it today. Because you see it's the essential part of participated government that whatever legislation is made it will be through the elected representatives of parliament. So the parliamentarian have to be competent, they have to know. There can be a group of professional people as technocrats so they are the most competent people, and they can have an advisory group if for some problem they need it. As they have constituted the Council of Islamic Ideology and they should listen to what they say. Q: Madam, are you satisfied with the performance of Council of Islamic Ideology?

Ans: Actually your question is that who become its member? He comes on merit or not? At which stage they are brought to it? Then either their recommendations are considered or not? This is solely the duty of the executive branch of government to see what they are doing. Q: Madam, how do you see this Council historically?

Ans: I think they have not been allowed to give an independent and diverged opinion and it has not been followed. Even Sayed Afzal Haider has pointed out this thing at his book launching ceremony and he has expressed his dissatisfaction on many occasions that the opinion of this Council is not considered. Q: Madam, where do you find the concept of Muslim Ummah of Iqbal. Is it pragmatic or practical?

Ans: Muslim Ummah is the concept of Holly Prophet (PBUH) and just follow him because you see that there was a tribal society when Islam was introduced. And He (PBUH) moved the whole concept of the community from 'the tribe to the family as the focus and the mother as the centre' that is what Muslim Ummah means and now you are a group in which 'the focus is a family and then extended family and then a larger family' there is no concept of tribe. So it's not a concept which Iqbal introduced, this is a concept which we have from the inception of Islam. The shifting of the focus of community from the 'tribe to the family' and from 'the family to the larger family' which is the community of Muslims, 'the family of Muslims' which include Arab, Ajam and all of us. Q: Is it practical Madam?

Ans: Why not, if it is followed. You see we don't have courage to put all these things into a set and we don't think about them. People have stopped thinking, that is what I think is the main problem. Students don't think. I go to the University and I am so disappointed that they don't apply their minds. God gave us eyes, ears and mind to examine every thing and to see how the world has been made by God and what we can do, we are participatory in the same form as participatory government. We are participating with God in continuing the world forward so we have to do it by applying our abilities and not by just shifting and sitting and saying: Mujhay Fiqr-e-Jahan Kyun ho (In urdu) Jahan tera hai ya mera Q: Madam are you satisfied with the syllabus of legal education?

Ans: Actually you see, I was in the Law and Justice Commission and the Chief Justice of Pakistan constituted a committee in February 2006 to scrutinize the existing syllabi and come up with positive sort of program research report as to what we should do. It had six members from all the provinces. I was the woman member in that. I had

been writing to the secretary of law commission, A year is going to pass and a meeting has not even been convened. If they can't convene the meeting they should have circulated letters amongst the members to give their proposals. But they reply that we are busy so haven't got time. If we don't have time for such an important matter, then what do we have time for? This is a very important and an essential sort of issue which needs to be focused on. So I think that human rights and legal ethics must be added in the curriculum. That I think is very important to be developed and also the method. Q: Madam, Your opinion about the women protection bill.

Ans: Women Protection Bill, you know has come in a very fragmented manner. It was amended many a times. I have seen five or six different proposals. Previously that was much more forward looking, then it was diluted, then it went to committee and further diluted. Later they called it outside Ullemah's Committee which completely more or less scrapped the concept of original Bill. Now it has been passed and come into existence as an Act. From one aspect I think it is one step forward; that from twenty seven years we are striving to get a breakthrough. At least someone said that it is not 'God-made Law'. It can be amended but we wanted it to be repealed. If a law did not go through regular law making procedure then it's better to repeal it. And have a law which has been first drafted properly, notified to the public, discussions have been made and it has been taken to the parliament and then all the possible problems which are to arise on the loopholes are examined at that place. The vital part is that the victim of rape does not need four witnesses it can be proved in the normal course of evidence. And the second thing is that if she has to complain for Zina Bil Jabr she will have to go to the court and file a private complaint. Earlier she couldnt go to the court directly because police was the machinery of pressure and women had to face a lot of problems in it. I will say that it will have some positive results. Q: Madam, in the whole professional life where did you feel yourself most comfortable, as a lawyer, judge or teacher?

Ans: Well, in the beginning when I joined the legal profession, and I enjoyed arguing in courts and when you are a judge you really learn and you watch other people arguing the case. When I became a judge I enjoyed that very much and I must say I found that much more positive because I think I was in a position to dispense justice where I thought it should be dispensed and of course it could be wrong. But I was also very happy with the fact that there was one forum in the world above me who could rectify my errors. When you are in the Apex Court, then you are answerable to God. And there is nobody between the citizen and justice except you and after that God in the hereinafter. So I think their decisions are most difficult. But otherwise I think when you are in a position when you think you can dispense justice, you try your best. I found it very satisfying.

Q:

Madam, did it ever happened in your carrier that government instructed you?

Ans: No, this never happened. In start I passed few judgments against government. The government put behind the bars some people alleging that they have done this and that. The prosecution had a weak case, so I started releasing them on bail one by one. And the principle of bail is that the bail comes before the same judge. So if one is released on bail then on that precedent each one of the people were to be released on bail and there were around 200 people behind the bars. Then they alleged that they have fired and the case will go to anti-terrorist court. Next time the case came and they said that sorry this case has been withdrawn now and moved to the antiterrorist court. So then somebody had to come and to say that how it moved and why it is forwarded to the anti-terrorist court? You can't do this in suo moto jurisdiction. So that was the end of it. Otherwise nobody every instructed or pressurised. The cases which are marked are already decided by them because they know that which judge will do what type of case. So I don't think that anybody would have marked a case to me in which such a situation could have arisen. Q: Madam, to be a judge is a blessing or responsibility?

Ans: Both. Q: Your message to the young lawyers

Ans: They should be hard working and committed towards their profession as educated and knowledgeable persons. They can employ all that they have done only for their own personal growth and welfare.