Justice Sabih’s legacy

Karachi, April 28:

Justice Sabih: Upholder of human rights

Justice Sabih: Upholder of human rights

The newspapers on the PIA flight back from New Delhi on April 20 reported the shocking news about Justice Sabihuddin Ahmed’s death. Various thoughts jostled with sadness at his untimely departure. I remembered him as a lawyer, one of the Human Rights Commission of Pakistan’s founder members in 1986 and HRCP’s first Vice Chairperson for Sindh. My first term on the HRCP Council coincided with his last as he resigned in 1997, after being appointed as a judge of the Sindh High Court to the jubilation of human rights activists. Colleagues, activists and professionals revered him as a lawyer and later as a brilliant judge for his consistently compassionate and principled stands.

Twenty years ago, as a lawyer, he drafted a groundbreaking legislation regarding organ donations. His colleague and fellow advocate Syed Iqbal Haider twice presented the draft law as a private members’ bill before the Senate. The powerful vested interests of the commercial transplantation lobby kept getting it shelved. Eventually, years of hard work and lobbying by dedicated visionaries like Dr Adeebul Hasan Rizvi and his colleagues got the bill through as a presidential ordinance in October 2007. The commercial transplantation lobby appealed against it on the grounds that it was against Islam. On April 18, 2009, after extensive deliberations, the Federal Shariat Court ruled that organ donations are compatible with Islam, and outlawed commercial transplantations. That was also the day that Justice Sabih breathed his last.

His judgments strengthened human rights principles and gave relief to the aggrieved. His ruling of 1997 ordering the payment of monetary compensation to a detenu in a habeas corpus petition made judicial history in Pakistan. As chief justice of the Sindh High Court he encouraged out-of-the-box thinking, like allowing a judge of the Sindh High Court to take up appeals in interior Sindh as an experiment in 2007. Sitting at the Sukkur High Court, the judge (Justice Rehmat Shah Jafri) found that people had been in prison for 25-30 years on average. Refusing adjournments, he dealt with 300 appeals and disposed of 70 per cent of the murder cases in two months.

Women’s rights organisations always found Justice Sabih sympathetic. In one instance, he got the hearings of two rape cases transferred to Karachi from interior Sindh where the rape survivors felt threatened by the accused.

He was among the judges who refused to take oath under Musharraf’s PCO following the Emergency declaration of Nov 3, 2007. His steadfastness was an example to his brother judges. At one of the judge’s homes in Karachi, where civil society activists presented flowers to the dissenting judges, Justice Sabihuddin succinctly explained why they should be supported even if they had taken oath under an earlier PCO.

The military twice displaced civil power after the promulgation of the 1973 Constitution and took extra-constitutional judicial action through a PCO that required judges to take fresh oath: 1981 (under General Zia) and 2000 (under General Musharraf). After Musharraf seized power (Oct 1999) several judges refused to take oath under the PCO of 2000. The Supreme Court gave the military regime de facto recognition on condition that the judicial organ of the state remained uninterrupted. It also declared that independence of the judiciary was part of the basic structure of the Constitution, which the parliament could not amend. The self-styled chief executive was given power to amend, but not alter, the basic features of the Constitution. Also, extra-constitutional measures would be permissible only when the Constitution did not provide a remedy and the action taken was proportionate to the emergency situation.

In November 2007, an unprecedented 59 out of nearly 94 judges in the higher judiciary refused to take oath under the PCO. They stuck to their guns until after the elections. Over the past year, most ‘deposed’ judges returned to the courts, some like Justice Sabih in elevated positions. Many among civil society who had been active in the movement for the restoration of Chief Justice Iftikhar Mohammed Chaudhry saw this as a great betrayal.

One of them was on the PIA flight from New Delhi with me, anguished at Justice Sabih’s death. We talked about the lawyers’ movement and the divergent strands within civil society.

An early division within ‘civil society’ was over the general elections. Dominant opinion in discussions over the Internet and on television talk shows advocated boycotting forthcoming polls, with no answer to the question ‘and then what?’ (One Islamabad-based activist told me that his organisation planned to stop people from voting, and he himself planned to pour ink into ballot boxes on election day. If he wanted to boycott the polls that was his right, I responded, but he had no right to spoil other people’s votes.)

Another dominant civil society stand was that the new government should straightaway restore the judges through executive order. The government’s waffling on the issue notwithstanding, those who thought that the judges’ restoration should not be the be-all and end-all of the movement and that it should be debated and decided in parliament were dismissed as government apologists.

When many judges went back into the fold, this dominant civil society opinion saw it as a betrayal of the cause for the restoration of the chief justice, even terming them as ‘PCO judges’. Given the track records of people like Justice Sabihuddin an attempt to understand their move would have been in order, even if people disagreed.

So great was the divide that some virtually ostracised them socially. “I last met him at the Boat Club some months ago,” said my grieving activist friend on the flight, who had known the late judge for over forty years. “He asked me to come and see him but I was too angry. He asked me a couple of times again through someone to see him … I didn’t. I will always regret that.”

When he finally did go, it was too late. Justice Sabihuddin was unconscious in an intensive care unit. I could feel his pain at not having made his peace in time. Many also felt similar ‘too late’ anguish when Benazir Bhutto was assassinated, having pilloried and castigated her for making a ‘deal’ with a military dictator and then contesting elections.

“I have learnt a lesson from this. I will never take such a rigid position again,” he added.

Maybe somewhere, somehow, Justice Sabihuddin understands. Certainly he would forgive. This can be but of small comfort to those who wish they had given him a hearing, as he gave so many others.

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