His judge-ship ran the gamut from constitution to commodities


Out-going Chief Justice Iftikhar Muhammad Chaudhry on Wednesday expressed the hope that the Supreme Court under the leadership of Tassaduq Hussain Jillani and future Chief Justices will continue to support and enhance the efforts and functionality of Human Rights Cell.

Justice Iftikhar Muhammad Chaudhry while laying down the robes of his office on the eve of his retirement during his address to the Full Court Reference held here in the Supreme Court said that the Human Rights Cell of the apex court had provided the common man of the country with unprecedented access to the highest echelon of justice.

He said the Human Rights Cell had, 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 Justice Tassaduq Hussain Jillani and future Chief Justices will continue to support and enhance the work and functionality of the Human Rights Cell,” Justice Chaudhry said.

The out-going Chief Justice said the public conscience took a turn for the better on 9th March, 2007. The judges and lawyers, civil society activists, political workers and students stood up to preserve constitutionalism, the rule of law and independence of judiciary.

“I cannot find words to praise the courage shown by my brother Judges who were deposed following the actions of November 3, 2007,” Justice Chaudhry said, adding that 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 constitutionalism, rule of law and independence of judiciary.

After the restoration of judiciary, it was necessary for my brother Judges “and me to ensure that, never again would a usurper be allowed to unconstitutionally impose his will on the people of Pakistan,” he said.

The former Chief Justice said the Supreme Court decision in Sindh High Court Bar Association’s case [1] ruled that assumption of power by any authority not mentioned in the Constitution will be countenanced as a patently illegal act.

He expressed the hope that 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.

The outgoing Chief Justice also appreciated the role of Parliament for not endorsing the extra-Constitutional actions of a dictator. The former Chief Justice said that this judgement 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, adding that the judgement has strengthened the democratic process as well as rule of law.”

He said 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, he said that Court also passed certain directions in the matter of rising militancy in province Balochistan but unfortunately, the Court’s orders were not implemented in letter and spirit.

He further said the cases of missing persons also deserve mention, adding that the Court has issued repeated notices in many cases involving missing persons, but the executive functionaries often remain non-compliant.

He urged the Judges not to let this deter them in their pursuit of justice. In order to restore peace and normalcy in the country, he said every single individual, including Judges, lawyers, law officers, investigating and prosecuting agencies and litigants, are bound to play their role as he said without peace, there cannot be economic development and progress.

The former Chief Justice said the first and foremost duty of the executive is to ensure adherence to rule of law in the country. “If the Executive fails to fulfil its duty and due to lapses on its part the fundamental rights are threatened, the judiciary has a duty to act,” he said, adding that it is oft-stated that the judiciary must enforce the Constitution.

He further said it is mandated to protect the public against the violation of their fundamental rights, abuse of power and arbitrariness.

“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,” Justice Chaudhry maintained.

He said “Until we can tackle the ever-growing cancer of corruption, the rich will keep getting richer and the poor will keep getting poorer”.

He further said to ensure the fundamental rights of people, the Court has not shied away from exercising suo motu jurisdiction where the people affected are so weak and indigent or the perpetrators are to powerful and no other agency can lay hands on them. In this regard, he again appreciated the role of the media in bringing such instances to the attention of the Court.

He further said the Court’s focus on white-collar crime must continue as he said white collar crime is a particularly malevolent species of crime. He said its effects are wide-ranging and affect the public at large because of the billions that are sapped from the national exchequer.

He recalled that they have adjudicated on enormous banking scams[2], the Hajj corruption scandal[3], the LNG case[4] and most recently, the NICL case[5] to attempt to give back the looted billions of the public.

Earlier, Justice Tassaduq Hussain Jilani, the Chief Justice designate while paying rich tribute to outgoing Chief Justice Iftikhar Muhammad Chaudhry said that his role as Chief Justice of the apex court has been a defining moment in the judicial and political history of the country. He said that during his tenure, this Court captured the public imagination both nationally and internationally and as a consequence, the Court was placed at the center of public debates and social reform.

He said that even before the historic events of the post-2007 period, he started to make his jurisprudential mark in several cases. Some of those are “Moulvi Iqbal Haider’s” case (PLD 2000 SC 394), stopping the conversion of public park into a commercial project; in the steel mills privatisation case (PLD 2006 SC 697), and the kite flying case (PLD 2006 SC 1). He said that Justice Chaudhry’s desire to explore and expand the scope of judicial powers was even obvious in the early years of his tenure as Chief Justice but in the post-2007 and post-March, 2009, eras he made several landmark judgements.

The Chief Justice-designate Justice Tassaduq Hussain Jillani divided the contributions of Justice Chaudhry into five jurisprudential areas, including Democracy, judicial independence and unconstitutional military interference, Fundamental right to life and liberty under Article 9 of the Constitution, breakdown of law and order and terrorism, Eradicating corruption and ensuring good governance and The Supreme Court for the People of Pakistan.

He said that whether it is “Missing Persons case” or the Sindh High Court Bar Association’s case or the President Balochistan High Court Bar Association case or the Karachi Law and Order case, what these cases have in common is the judicial courage of the Chief Justice and of this Court to deal with difficult and complicated State and societal issues.

“In short, judicial courage has been converted by the Chief Justice from a mere human personality characteristic into a key judicio-constitutional value, Justice Jillani said.

He has forced us to rethink and re-evaluate the fundamental questions regarding constitutionalism, law and the judicial role and its relationship with State, society and individuals. He has obligated us to rethink the relationship between law and justice, especially law’s relationship with societal justice. In short, he has made us rethink and re-evaluate our roles as judges and what it means to be a good or great judge.

The Chief Justice-designate, however, while sharing his two concerns said that there is a perception shared by many that the thin-line of distinction between the requirements of Article 199 and 184(3) is being blurred. There is need to consider / determine the limits and contours of jurisdiction under Article 184(3) of the Constitution with a view to discouraging frivolous petitions and to prevent the misuse of jurisdiction by vested interests. Second, he said he believed good governance and the rule of law have a symbiotic relationship.

He said that good governance is not possible without the enforcement of rule of law in which every organ and institution of the State including the Court has a role to play within the parameters of its authority spelt out in the Constitution and the Law.

The Chief Justice-designate said that the apex court on account of its mandate under Article 184(3) and 187 of the Constitution may be called upon to fill the gaps between the law and the social dynamics but while doing so the Court has to defer to an equally important constitutional value of the tricotomy of powers as also the canons of fair trial particularly in view of Article 10A of the Constitution.

“Because what we observe and hold has a consequence and attains finality. We are mortals,” Justice Jillani said and quoted remarks from the U.S. Supreme Court (Justice Robert H. Jackson) “we are not final because we are infallible but we are infallible only because we are final.”

The full court reference was also addressed by Attorney General for Pakistan (AGP) Munir A Malik, President Supreme Court Bar Association (SCBA) Kamran Murtaza and Syed Kalbe Hassan, Vice Chairman Pakistan Bar Council (PCB), paid rich tributes to Justice Iftikhar Muhammad Chaudhry.

Author: Khudayar Mohla

Source: Recorder Report

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