Mr. Justice Tassaduq Hussain Jillani, designated Chief Justice and my Brethren Judges;
Attorney General for Pakistan;
Vice Chairman, Pakistan Bar Council;
President, Supreme Court Bar Association;
Members of the Bar;
Ladies and Gentlemen!
Assalam o Alikum!
It is a great honour for me to address all of you today. At the outset, I pray to Allah Almighty to shower His blessings on the system of administration of justice, including judges and court staff. May Allah grant us the foresight and fortitude to overcome the many problems that afflict our nation. May the judiciary of the coming years seek to further expand the scope of and enforce the fundamental rights guaranteed in the Constitution and dispense justice freely, fairly and expeditiously to litigants.
Now I am about to lay the robes of office after over two decades as a member of the superior judiciary, including more than 13 years as a Judge of the Supreme Court and 8 and a half year as Chief Justice.
We must always be mindful of the fact that Quaid-e-Azam Muhammad Ali Jinnah envisioned Pakistan as a democratic State. As an indomitable lawyer and parliamentarian, he was dedicated to democratic ideals. He was a great supporter of constitutionalism and rule of law. Regrettably, we failed to live up to the vision of Quiad-e-Azam. It does not bear repeating how usurpers have replaced the democratic order of this country, replacing it with the ignominious concept of martial law; and how the Courts of the past validated such actions. However, the public conscience took a turn for the better on 9th March, 2007. You, the judges and lawyers, civil society activists, political workers and students stood up to preserve constitutionalism, the rule of law and independence of the judiciary.
I cannot find words to praise the courage shown by my brother Judges who were deposed following the actions of 3rd November, 2007. The judges of the Supreme Court and High Court who refused to bow before a dictator deserve all the commendation in the world for their role in preserving the constitutionalism, rule of law and independence of the judiciary. We must remember that this was not just the struggle of the Judges. The independent judiciary of today is a result of the untiring efforts of the entire legal community. During the time of the lawyer’s movement, it was not just the deposed Judges who suffered. Thousands of lawyers joined the struggle. Many refused to go and appear before courts for months on end. They were sacrificing their livelihood and their future for a higher ideal; a higher ideal which most people either did not understand or did not care to understand. But they knew the importance of an independent judiciary; they knew that this was the chance for them to be a part of something bigger than themselves, a chance to make a positive difference to this country. The very public character of the legal arena gives lawyers and judges the important opportunity to reshape the way that people understand the existing social order and their place within it. The dauntless stance of the Judges in the time of the lawyers’ movement would have come to naught were it not had the support of the Bar. The invaluable contribution of the lawyers’ movement has been recognised in the canons of the Constitution itself. The preamble to the Eighteenth Amendment to Constitution credits the restoration of democracy to
the lawyers’ movement. The impartial and objective reporting of the media must also be lauded. They were put under immense pressure during the lawyers’ movement but they refused to budge from their principled stance.
After the restoration of the judiciary, it was incumbent upon my brother Judges and I to ensure that, never again would a usurper be allowed to unconstitutionally impose his will on the people of Pakistan. The Supreme Court decision in Sindh High Court Bar Association’s case1 ruled that assumption of power by any authority not mentioned in the Constitution will be countenanced as a patently illegal act. Such a heinous act will not be recognised by any Court; and any Judge who plays a role in any such action shall be guilty of misconduct and dealt with under Article 209 of the Constitution. In this regard, the role of Parliament must also be appreciated for not endorsing the extra-Constitutional actions of the dictator.
This judgment ensured that the country must be ruled strictly under the Constitution. Now, no State functionary can dare to support or provide protection to the unconstitutional actions of a dictator in future.
The judgment has strengthened the democratic process as well as rule of law in the country. A consistent theme which we have tried to adhere to is the enforcement of the fundamental rights guaranteed under the Constitution. No right is more sacred and more universally recognised than the right to life, which has been masterfully explained by Justice Saleem Akhtar in Shehla Zia’s case. We have endeavoured to uphold this dictum and widen the scope of the right to life to ensure that no-one is deprived of life or liberty, save in accordance with law. In particular, we took notice of the worsening law and order situation in Karachi, where target killings, mafias and drugs have been threatening the peace, lives and security of the residents of the city2. The Supreme Court must continue to take notice of pressing issues where fundamental rights, particularly the right to life, are being threatened on a daily basis. Similarly, Court also passed certain directions in the matter of rising militancy in the province of Balochistan. Unfortunately, the Court orders were not implemented in letter and spirit. The cases of missing person also deserve mention. The Court has issued repeated notices in many cases involving missing persons, but the executive functionaries often remain non-compliant. I urge my brother Judges not to let this deter them in their pursuit of justice. In order to restore peace and normalcy in the country, every single individual, including the Judges, lawyers, law officers, investigating and prosecuting agencies and litigants, are bound to play their role. Without peace, there cannot be economic development and progress.
The first and foremost duty of the executive is to ensure adherence to rule of law in the country. If the Executive fails to fulfill its duty and due to lapses on its part the fundamental rights are threatened, the judiciary has a duty to act. It is oft-stated that the judiciary must enforce the Constitution. It is mandated to protect the public against the violation of their fundamental rights, abuse of power and arbitrariness. In ensuring the over the past few years, the judiciary has been trying to improve the system of administration of justice to meet the new challenges, faced by it. In cases which have been raised on grounds of public interest, we have often been criticized for adjudicating on policy matters which fall in the domain of the Executive. What we have in fact endeavoured to do is to ensure that the fundamental rights of citizens are not violated by policies that are made without taking into account overriding principles such as fairness and transparency. The public administration of our country is far from perfect. An unfortunate truth about our country is that we are replete with regulation with little emphasis on implementation. A large number of voluminous rules and regulations exist to protect the life, liberty and property of the people of Pakistan. It seems, however, that there is apathy with regards to implementation of these regulations. The State is mandated to ensure that these laws, rules and regulations are enforced.
Instead, it seems that the divide between the haves and have nots is increasing day by day, with the executive being unable to curb this growing disparity. Until we can tackle the ever-growing cancer of corruption, the rich will keep getting richer and the poor will keep getting poorer.
The Supreme Court has recently been working to embed the principles of transparency, accountability and anti-corruption in the national framework. The Court has actively pursued the public interest in a number of cases including the Steel Mills case in 2006. The actions of the Court in preserving public places of recreation are also worthy of note in Moulvi Iqbal Haider’s case4 and in taking action against the CDA for allowing a multinational food chain to set up shop in a public park5. The latter case was a suo motu case. In order to ensure the fundamental rights of the people, the Court has not shied away from exercising suo motu jurisdiction where the people affected are too weak and indigent or the perpetrators are to powerful and no other agency can lay hands on them. In this regard I must once again appreciate the role of the media in bringing such instances to the attention of the Court.
The Court’s focus on white collar crime must continue. White collar crime is a particularly malevolent species of crime. Its effects are wide-ranging and affect the public at large because of the billions that are sapped from the national exchequer. We have adjudicated on enormous banking scams6, the Hajj corruption scandal7, the LNG case8 and most recently, the NICL case9 to attempt to give back the looted billions of the public. We recently held in the NICL case, and I quote, “The elite class has seen fit to devour the meagre resources of our poverty-stricken country to meet their own ends; to live in callous decadence while the vast majority of the population remains in a condition of indigence and squalor… Governments come and go, but corruption is the one constant that not only remains but increases in magnitude. The majority of our population call themselves Muslims and proudly claim to be denizens of the Islamic Republic of Pakistan. Some even go as far to claim that Pakistan is the ‘citadel of Islam’, but we fail to follow the most basic of the religion’s moral tenets. Allah has commanded in the Holy Quran, “And eat not up your property among yourselves in vanity, nor seek by it to gain the hearing of judges [and rulers] that ye may knowingly devour a portion of the property of others.” It seems that the Executive is helpless in the face of the cancer of corruption. I only hope that things change for the better in the future.
Democracy is impossible without free and fair elections all the way from the local government to the national level. The Court has adjudicated on a number of cases relating to the fair conduct of elections in ensuring that fake ballots and the like are not utilized10, and electioneering practices11 are free and fair.
Most recently, the Court has taken up the issue of local government elections to ensure that the constitutional command of Article 140-A is followed and the Federal and Provincial Governments hold local government elections12. The Court has also revolutionized the concept of what it means to be qualified to contest elections under Article 62 of the Constitution. It is no longer possible for those who lie about their educational qualifications or assets to represent the people of Pakistan13. I am confident and hopeful that the judiciary will continue to support democracy in this vein.
The Human Rights Cell has provided the common man of the country with unprecedented access to the highest echelon of justice in the land. The Human Rights Cell has, in fact, processed thousands of complaints and the Court also took many suo motu cases. Not all of these cases have been high-profile, but these cases have ensured that the man on the street is also within the reach of justice. I have every confidence that the Supreme Court under the leadership of Mr. Tassadaq Hussain Jillani and future Chief Justices will continue to support and enhance the work and functionality of the Human Rights Cell.
It is a matter of great satisfaction that the judiciary has realized its duty to ensure the enforcement of the Constitution and the rule of law in the country. Through its judgments, the judiciary, after 62 years of independence has succeeded in making the general public to believe that their welfare exists in the rule of law and constitutionalism.
I would be impolite if I do not thank my wife and children for their strong and consistent support and fortitude, particularly in the days when we were all placed under house arrest. They proved a source of strength and solace for me during our crisis. Thank you for always standing right by my side and making the struggle easier for me.
I would also thank the staff of this Court who worked out of their skins to achieve the goals set up by us for ourselves. I also thank the lawyer’s community, segments of civil society and media for playing their role for the supremacy of Constitution, rule of law and independence of judiciary.
In the end I thank you all for your support and cooperation extended to me throughout my tenure as Chief Justice of Pakistan, without which this institution would not have achieved all that it did. Now it is your responsibility to continue to strive for the rule of law and independence of judiciary. You are required to continue good things done in the previous years and move ahead in such a way to take this institution to new dimensions – a position where people pay more respect to the judiciary and have more faith in the system of administration of justice.
Thank you very much!
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY
CHIEF JUSTICE OF PAKISTAN
FULL COURT REFERENCE
THE EVE OF HIS RETIREMENT
11TH DECEMBER, 2013