Thursday, February 04, 2016

After the Raj: British Judges in Pakistan

Guest post by Douglas McDonald

As I have previously written, not all British judges left India after Independence; a small number of these judges ‘stayed on’, even remaining in service into the 1970s. Several British judges also remained in service in Pakistan after 1947. This blog post looks at the careers of several of these judges, and remarks briefly upon what their lives demonstrate about state formation in Pakistan.

After 1947, George Constantine and Dennis O’Sullivan continued to serve on the Sindh Chief Court (later the Sindh High Court). While O’Sullivan retired relatively soon after Independence (around 1949), Constantine, a former ICS officer, eventually rose to the post of Chief Justice. As Chief Justice, Constantine served briefly as Acting Governor of Sindh Province (from May to August 1953). Another judge, John Ortcheson (who had previously served as Legal Remembrancer to the Government of Punjab Province), was appointed to the Lahore High Court after Pakistan achieved independence.

During his tenure as Chief Justice of the Sindh High Court, Constantine played a significant role in the seminal case of Tamizuddin Khan v Federation of Pakistan.[1] Constantine (at first instance) ruled against Governor-General Ghulam Muhammad’s unilateral dissolution of Pakistan’s Constituent Assembly, a decision later overturned by the Federal Court of Pakistan. The rejection of Constantine’s decision in Tamizuddin Khan by the Federal Court is now remembered as an early capitulation by the judiciary to unbridled executive power in Pakistan, with Constantine praised as a dissenting supporter of democracy (even given that the then-Constituent Assembly had been selected by provincial assemblies elected nearly a decade before).

Following the establishment of West Pakistan in 1955, Constantine continued to serve on that province’s High Court, as did Ortcheson. Constantine retired in 1962, while Ortcheson retired in 1965 (as Senior Judge of the West Pakistan High Court).

Thomas Hobart Ellis, a former ICS officer and British judge in ‘East Pakistan’ (now Bangladesh), similarly held prominent legal and executive responsibilities. Prior to 1947, Ellis had been an acting judge of the Calcutta High Court; after independence, he ‘opted for Pakistan’ and became a judge of the High Court of East Bengal (also then known as the Dacca High Court). Another British judge, Eric Charles Ormond, also served on that Court until at least 1950.

As Chief Justice of the East Bengal High Court, Ellis led a notorious inquiry into police violence against civilians protesting against non-recognition of the Bengali language in 1952 (as part of the “Language Movement”); Ellis’s inquiry exonerated the actions of the police. The following year, Ellis was appointed as Chief Justice of the East Bengal High Court and briefly served (from September to December 1954) as Acting Governor of that province. Ellis retired from the bench in 1954.

Constantine, Ellis and Ortcheson’s continued service was mirrored by the surprising longevity of several British officials (often members of the former ICS) in independent Pakistan – and, indeed, by the remarkable continuity before and after 1947 in several administrative respects.[2] As Ralph Braibanti has written, ‘[i]n the early years of Pakistan the government legal establishment was not unaccustomed to having non-Muslims in its highest ranks’, with British officers serving in the nation’s courts as judges, registrars and legal remembrancers.[3] Sir Edward Snelson, a former ICS officer and district and sessions judge under the Raj, served as Secretary of Pakistan’s Ministry of Law until 1961 (when he was tried and convicted for contempt of court for criticising serving judges).

Snelson’s prominence may have been exceptional amongst British lawyers in Pakistan, but reflected the range of prominent roles held by British officials in Pakistani bureaucracy until the 1960s. 36 British officers of the Indian Civil Service ‘opted for Pakistan’ after Independence,[4] with ‘[t]he whole civil service structure [in Pakistan]… controlled from 1947 to 1961 by non-Muslim establishment secretaries’ (including several British officers from the former ICS).[5] (British governors also served in Punjab, the North-West Frontier Province and Balochistan until 1949; this eventually prompted significant controversy in Punjab, leading to the forced resignation of Sir Francis Mudie.) The fact that both Constantine and Ellis, British officials of the former ICS, served (briefly) as provincial governors in Pakistan in the 1950s is hence remarkable only because it occurred at such a late date.

The continued pre-eminence of many British officers and judges during the 1950s coincided with a period in which Pakistan was ‘ruled by a cabal of senior civil servants’. Bureaucrats retained a substantial role in governance (as ‘the military’s willing junior partner’) into the 1960s, with the Civil Service of Pakistan (CSP) in particular retaining some of the elitism and exclusivity of the former Indian Civil Service during this period, having ‘fully imbibed the ICS ethos’. Indeed, in 1958 Khalid B. Sayeed observed that Pakistan’s civil servants ‘often play an even more powerful role than that of their imperial predecessors’. The extent of this institutional continuity, symbolised both by the continued presence of British officials (and judges) and by the high posts to which they rose, carried with it both considerable political power and contempt for others (including politicians) who would seek to challenge this bureaucratic dominance. Despite perceptions in the 1970s that the ‘enormous power and exceptional privilege’ of the civil service might be eroded through the reforms of Zulfikar Ali Bhutto (including the abolition of the CSP),[6] the authority of the civil service ‘[i]f anything… actually increased’ the authority of the bureaucracy (through the increase in state power brought about by nationalisation of industries). The power, professionalism and independence of the bureaucracy were, however, substantially diminished under the successive regimes of Zia, Bhutto, Sharif and Musharraf – even as traditions of unaccountability and the untrammeled exercise of power remained current in Pakistani governance.

This preservation of bureaucratic authority (and the traditions of imperial rule) in Pakistan (as compared to the greater subordination of civil servants to elected governments in India) has cast a long shadow. While the early preeminence of the Pakistani bureaucracy was in part the product of ineptitude and division among Pakistan’s politicians, this dominance ensured that the Pakistani state maintained in many respects a colonial relationship with its citizens (including the colonial state’s keenness to preserve and protect established interests within society, particularly those of landowners). Constantine, Ortcheson and Ellis (in their judicial and executive guises) ensured that not only were laws interpreted and enforced in much the same manner as they were under the British, but that many of the same officials (of the former colonial power) remained responsible for this. That is, the Pakistani state not only retained colonial practices and mindsets, but in many cases was administered and judged by nationals of the former colonial power.

As Constantine’s important example proves, the fact that these men came to Pakistan as imperial officials (and retained their British citizenship) does not mean that they were, in practice, blinkered opponents of democracy or supporters of the privileges of the state; they must not be, and are not, automatically condemned by virtue of their origins. However, the extent to which Pakistan inherited British officials from the former regime may have played an important role in ensuring that a colonial regime transitioned into a nominally-independent government that functioned, in many respects, like a colonial regime. The unbroken legacy of autocratic rule, detached from popular accountability or constraint and unduly driven by the protection of the state’s own power and privileges, has had a detrimental effect on citizen-state relations even in contemporary Pakistan – even during Pakistan’s periods of democratic rule.

(Douglas McDonald previously worked as a solicitor with Craddock Murray Neumann Lawyers, Sydney.)

[1] Maulvi Tamizuddin Khan v Federation of Pakistan and ors 1954 SHC 81.
[2] See e.g. Yaqoob Khan Bangash, ‘Constructing the state: Constitutional integration of the princely states of Pakistan’ in Long et al, State and Nation-Building in Pakistan (2015) 96-97; Akbar S. Ahmed, Journey into America (2010) 467-468.
[3] Ralph Braibanti, ‘Cornelius of Pakistan: Catholic Chief Justice of a Muslim state’ (1999) 10 Islam and Christian-Muslim Relations 117, 119.
[4] Ibid.
[5] Ibid.
[6] See e.g. Ziring and LaPorte, ‘The Pakistan Bureaucracy: Two Views’ (1974) 14(2) Asian Survey 1086.
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