DAWN - Cowasjee Corner; 17 May, 1998
'Are the courts functioning?'
By Ardeshir Cowasjee
LUCK and circumstance did not afford me the honour of knowing that great statesman, that master of English prose, Sir Winston Leonard Spencer Churchill. But I did have the pleasure of knowing two of his friends and associates who were close to him during the perilous days of World War 2.
The first was Viscount Frederick James Leathers (1883-1965), adviser to the ministry of shipping on ports during World War 1, known to my grandfather Fakirjee Cowasjee in the 1920s as Fred Leathers, Chairman of William Cory and Sons Limited, merchants of the City of London, shipping associates of Inchcape's P&O group and others. Our firm bought shiploads of "Best Welsh" and "Durban Blue" coal from Cory's for bunkering ships of the Royal Navy, merchantmen, boilers of the Dumlotee water works, and boilers of the machinery used to build the Sukkur Barrage.
By the time I met Leathers, he was Baron Leathers of Purfleet 'a man of power and influence in the shipping world,' who had been chairman, managing director, or a director of some fifty companies related to the shipping industry and ports.
His friendship with Churchill dated from the 'Wilderness' years, when they sat together on several Boards. When Churchill became prime minister, he appointed Leathers as his adviser on ports and shipping, and in 1941 as minister for war transport. In 1943, Churchill took him to the Casablanca, Washington, Quebec and Cairo Conferences convened to fix and coordinate Allied strategy which had to be correlated with shipping availability.
Of his friend, Churchill (seldom complimentary) wrote in his History of the Second World War: "Leathers was an immense help to me in the conduct of the War. It was very rarely that he was unable to accomplish the hard tasks I set. Several times, when all staff and departmental processes had failed to solve the problems of moving an extra division or transshipping it from British to American ships, or of meeting some other need, I made a personal appeal to him, and the difficulties seemed to disappear as if by magic."
The second was Sir Thomas Leslie Rowan (1908-1972). His father, the Reverend Thomas Rowan, was the headmaster of the Panchgani School for Boys in India. From there young Leslie won scholarships to Tonbridge and Queen's College, Cambridge. Gaining 'Firsts' in academics, he captained Cambridge in hockey in 1929-30 and England in 1937-38, and again in 1947. A civil servant, in 1941 he transferred from the Treasury to the Private Office of Prime Minister Churchill, as private secretary later becoming the principal private secretary.
After the War he went into industry, rising to be chairman of Vickers in 1967. I first met him in 1969 whilst in England looking at yards to build our ship, the Ohrmazd, the finest ever to have flown the Pakistan flag.
Both men had many anecdotes to tell of Churchill and his emphasis on the rule of law, on the vital necessity of law and order. Both recounted the story of how at the first War Cabinet meeting Churchill held after becoming prime minister on May 10, 1940, he heard each man in turn and after hearing their sagas of woe, and how on the home front bombs were falling, fires were burning, people were homeless and hungry and lawlessness was feared, the first question he asked was "Are the courts functioning?" He was told they were working normally, as they always had. "Then all is well," was his comment.
Seven years and three months later another great statesman, Mohammad Ali Jinnah, when making his first speech to the Constituent Assembly of Pakistan stressed the law and order factor. "The first observation that I would like to make," he said, "is that the first duty of a government is to maintain law and order so that the life, property and religious beliefs of its subjects are fully protected by the State." For law and order it is necessary to have a strong judiciary, fully independent, comprising honourable men appointed for their integrity, loyalty and learning, free of all pressures from the legislature or the administration.
Little did Jinnah realize that after his death no succeeding government of Pakistan would be honest or secure enough to bear with the truth and be capable of surviving, or living with, a strong independent judiciary, the only organ of state that can ensure that law and order is enforced.
With a few honourable exceptions, the judges of this country have shown a remarkable aptitude to bend with the wind, and, as with time the bending has become more and more pliable so have moral standards in the country decreased to the point where they now are - moribund. Corrupt immoral governments have had their way.
The ruling party of the day, the members of which are well aware of their guilt and crimes, fearing disqualification under their own laws, in November 1997, subverted the judiciary by manipulating an internal revolt amongst the judges of our Supreme Court.
Of this revolt, former CJP Sajjad Ali Shah on November 28, 1997 wrote to the then President: "This divide amongst the Judges of the Supreme Court has been deliberately created by interested quarters. I do not want to make any comments on the conduct and attitude motivating such actions, which smack of defiance and rebellion and amount to misconduct, calling for action by the Supreme Judicial Council for which necessary steps are to be taken."
If the former CJP did do wrong in the eye of the law, necessitating his removal, it should have been constitutionally effected through the Supreme Judicial Council. Two wrongs can never make one right, and Sajjad Ali Shah's wrong, if indeed there was one, was surely the lesser.
After Sajjad Ali Shah's successful removal, the strength of the Court now is: CJP Ajmal Mian, retires 30/6/99; Saeeduzzaman Siddiqui, J-1, retires 30/11/2002; Irshad Hassan Khan, J-2, retires 6/1/2002; Raja Afrasiab Khan, J-3, retires 17/9/2000; Mohammed Bashir Khan Jehangiri, J-4, retires 31/1/2002; Nasir Aslam Zahid, J-5, retires 2/3/2000; Munawar Ahmad Mirza, J-6, retires 17/8/2007; Khalilur Rahman Khan, J-7, retires 24/4/2001; Shaikh Ejaz Nisar, J-8, retires 14/6/2000; Mamoon Kazi, J-9, retires 29/12/2000; Abdur Rahman Khan, J-10, retires 5/6/2001; Shaikh Riaz Ahmad, J-11, retires 8/3/2003; Mohammad Arif, J-12, retires 9/1/2002; Munir A Shaikh, J-13, retires 1/7/2003; Wajihuddin Ahmad, J-14, retires 30/11/ 2003.
J-2, J-5 and J-7 delivered the Quetta judgment of November 28, 1997 against their Chief Justice, Sajjad Ali Shah. J-1 and the since retired Justice Fazal Ellahi Khan delivered the Peshawar judgment of November 28, 1997 against their Chief Justice Sajjad Ali Shah. J-14 as CJ of the Sindh High Court on November 28, 1997, asked his superior, the CJP to convene a full court meeting to resolve their problems.
On December 2, 1997, ten honourable Judges of the Supreme Court of the Islamic Republic of Pakistan, J-1, the since retired Fazal Ellahi Khan, J-2, J-3, J-4, J-5, J-6, J-7, J-8, J-10, J-11, all passed the final order dismissing their Chief Justice. J-9 wrote a dissenting judgment on November 29, 1997 agreeing with the Quetta Bench but saying that the matter should have been referred to a full Bench of the Supreme Court comprising "all its learned judges."
Apparently uninvolved in the November 1997 'rebellion', 'revolt' or what-have-you , are J-12, and J-13, the honourable Judges Mohammad Arif and Munir A Shaikh.
If Justice Nasir Aslam Zahid's Pandora's Box, which he does not wish to be opened, remains shut, and if no such order as the PCO intervenes, CJP Ajmal Mian will be succeeded by J-1 Justice Saeeduzzaman Siddiqui who will in 2002 be succeeded by J-6 Justice Munawar Ahmad Mirza, a worthy Leo, who will remain as Chief Justice of the Islamic Republic of Pakistan until 17/8/2007.
The November happenings brought to the fore of the nautical mind the Mutiny on the HMS Bounty. In 1789, forty-five mutineers, led by Captain William Bligh's protege, Master's Mate Lieutenant Fletcher Christian, cast adrift their Captain and his 18 men and took over the good ship Bounty. Bligh's severity as a commanding officer was cited as the cause of the mutiny, but this is disputed. Master Mariner Bligh, braving typhoonic winds and seas, made a remarkable 3600 mile open boat voyage, reaching Timor from where he set sail for England. An Admiralty Court acquitted Bligh, and in 1814 he rose to the rank of Vice Admiral of the Blue. The mutineers remained in the South Sea islands, never daring to return to England.