The Chief Justice of Pakistan, Umar Ata Bandial, retired yesterday, 16th September, 2023. What is his legacy ? How will he be remembered ?
No Judge is perfect. Some are short tempered and rude in court, some are dim witted and often cannot understand the lawyer’s argument, some know little law, some talk too much in court ( in violation of Bacon’s dictum ” A much talking judge is like an ill tuned cymbal ), some cannot get along with their colleagues, some go off to sleep even when the lawyer is arguing, etc
All these can be forgiven. But what cannot be forgiven is a Judge’s refusal to abide by his solemn oath to protect the rights of citizens under the Constitution. Let me explain.
In feudal times the King was supreme, and the people had no rights.
However, in his ‘Second Treatise on Civil Government’, written in 1690, the British political philosopher John Locke propounded the idea that the people had certain ‘natural rights’ ( e.g. life and liberty ) which even the King could not violate.
These were later incorporated in the Bill of Rights in the US Constitution of 1791, the Rights of Man proclaimed in 1789 by the French National Assembly, the Fundamental Rights in the Indian and Pakistan Constitution, etc.
What was the purpose of having these rights in the Constitution ? That was because it was felt that Parliament, though elected by the people, may sometimes turn autocratic and anti-people. Hence the people had to be protected not only against autocratic behaviour of the executive, but also the autocratic behaviour of the legislature.
When a Judge assumes office, he has to take an oath to uphold the Constitution, and since the Constitution incorporates certain fundamental rights of the people, that oath includes his undertaking to protect those rights.
Did Justice Bandial abide by his oath ? Not at all.
After the events of 9th May a reign of terror was unleashed in Pakistan, over 10,000 people arrested, beaten, tortured, jailed, killed or simply ‘disappeared’ in Pakistan, but Justice Bandial turned a Nelson’s eye to these atrocities and horrors, probably because all he had in mind was his salary, perks and pension.
He seemed to show courage by ordering Punjab Assembly elections on 14th May, but when it came to enforcing that order ( by taking contempt of court proceedings ) he beat a hasty retreat, thus making it clear to the Pakistan Establishment that the judiciary is only a paper tiger, that judges talk a lot but are not to be taken seriously.
When the Pakistan Govt said that they would not obey the Supreme Court’s orders, Bandial should have closed down all courts in Pakistan until the govt announced that it agreed to abide by court orders, but evidently he had no backbone, gumption or spunk to take such a bold, but necessary, step.
To sum up, Bandial’s legacy is of a weak, spineless, and cowardly judge, who betrayed his oath, and let his country and his institution down, causing misery to countless number of people.
One can tell him, as Cromwell told the Rump British Parliament on 20 April 1653 :
” You have sat too long for any good you have been doing lately In the name of God, go ! ”