End of an era

Justice Waqar Ahmed Seth delivered several landmark judgments

Justice Waqar Ahmed Seth, who passed away on November 12 of Covid-19 complications, was the author of several landmark judgments. The one that made international headlines was the death sentence handed to Gen Pervez Musharraf (retired) in the high treason case. This was the first time that a military dictator in Pakistan was convicted under Article 6 of the Constitution.

The 59-year old judge earned both popularity and some notoriety after delivering the verdict as head of a three-member special court. He was one of the two judges who convicted Musharraf and sentenced him to death. Paragraph 66 of the judgment was criticised and described as extra-judicial. In this opinionated note meant to hand out an exemplary punishment, Justice Seth ordered that law-enforcement agencies of Pakistan must arrest Musharraf and he should be hanged till death. If somehow Musharraf was able to evade arrest and died before the sentence could be carried out, his body should be hanged for three days in Islamabad’s D-Chowk (in front of the Parliament building).

The reasons he gave for this unusual sentence were Musharraf’s persistent and stubborn tactics to avoid facing the court and ultimately the punishment. The judge also directed that all those who had helped Musharraf flee from the country should also be arrested and prosecuted. It was obvious that he made many enemies by writing this judgment as it was people in high places who had enabled the former president to leave Pakistan.

Once it became clear that Musharraf wasn’t going to return to Pakistan and appear before the court, Justice Seth was in a hurry to decide the case. He was inducted into the special court hearing the case in October 2019 and by December 17 the bench had issued a short order sentencing Musharraf to death. Two days later, 169-page detailed judgment was made public. Justice Seth was aware the judgment was being eagerly awaited and was already being criticized. The sooner the reasons for awarding the death sentence to the former military ruler were explained, he believed, the better it was.

As was to be expected, many were upset by the verdict. The Inter-Services Public Relations Director General Asif Ghafoor famously said that “there was pain and anguish among the rank and file of the military” following the sentencing. He also said that Musharraf could not be a traitor since he had served his country for 40 years and fought wars in its defence. The government, too, criticised the judgment. It even considered filing a reference against him in the Supreme Judicial Council and asking for his sacking. The reference was never filed apparently due to the weak grounds on which it was proposed to be based. Three federal ministers and Attorney General Anwar Mansoor Khan were in the forefront of those criticising him. Firdous Ashiq Awan alleged that Justice Seth was working for the “enemy” and call the judgment a part of a plot against Pakistan and its armed forces. Farogh Naseem questioned the judge’s mental fitness. Shehzad Akbar opined that “whosoever wrote Para 66 cannot be a friend of the nation.”

He enrolled as an advocate in lower courts in December, 1985 to start his professional career. In August 2011, he was elevated to the Peshawar High Court as an additional judge. Seven years later, he was appointed as the 24th chief justice of the court.

This verdict was unusual in the context of Pakistan where military rulers have routinely pressured the judiciary to prolong their rule and sought indemnity for their unconstitutional actions. It required courage to come up with such a decision. It also needed a willingness to sacrifice personal interest. Justice Waqar Seth was not elevated to the Supreme Court of Pakistan, becoming the first chief justice of Peshawar High Court in many years to be denied the honour.

He fought a legal battle, challenging the elevation of three judges of the Lahore High Court to the SC, in violation of the principle of seniority. Two days before his death, his lawyer, Hamid Khan, filed a fresh application on his behalf to challenge the promotion of judges to the SC even though they were junior to him. By this time Justice Seth was fighting for his life at a hospital in Islamabad after being put on a ventilator. He had contracted Covid-19 on October 22 and was under treatment at a hospital in Peshawar before being taken to Islamabad. The Khyber Pakhtunkhwa Bar Council boycotted the courts to express solidarity with Justice Waqar Seth when he wasn’t elevated to the SC.

The Dera Ismail Khan-born Justice Waqar Seth belonged to a family of businessmen, but chose a law career. He studied from school to university in his native Khyber Pakhtunkhwa and then enrolled as an advocate in lower courts in December 1985 to start his professional career. In August 2011, he was elevated to Peshawar High Court as an additional judge. Seven years later, he was appointed as the 24th chief justice of the provincial court.

Another important judgment Justice Seth gave as head of a two-member Peshawar High Court bench in November 2018 also upset the government, particularly the military. Citing lack of evidence, the bench reversed the military courts’ verdicts against 74 convicts, including 50 who had been awarded the death sentence. The verdict established that decisions by military courts can be reviewed, even struck down by Pakistan’s superior judiciary.

Justice Waqar Seth’s death has been widely mourned and condoled by lawyers, political activists and members of the civil society. Heartfelt condolences came from those who had known him. The ruling elite, from Prime Minister Imran Khan and Army Chief Gen Qamar Javed Bajwa to National Assembly Speaker Asad Qaiser and Chief Minister Mahmood Khan issued statements condoling his death, but made no reference to his contribution as a jurist or to any of his judgements. Maryam Nawaz, the daughter of three-time prime minister Nawaz Sharif and vice-president of Pakistan Muslim League-Nawaz (PML-N), was effusive in her praise for Justice Waqar Seth. “You will live in history and be remembered as a hero,” she said.

The writer is resident editor of The News in Peshawar. He can be reached at [email protected]

Justice Waqar Ahmed Seth: End of an era