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SPEECH ON THE EVE OF FULL COURT REFERENCE

Dated: 11-December-2013

Hon’ble Chief Justice of Pakistan,
Hon’ble Judges of this Court,
Mr. Munir A. Malik
Learned Attorney General for Pakistan,

President Supreme Court Bar Association and Office Bearers,
Vice Chairman Pakistan Bar Council,
Vice Chairman Sindh Bar Council,
Distinguished Members of the Bar,
Ladies and Gentlemen:

Assalam o Alaikum,

We have assembled here to pay homage to an icon, a catalyst, and a phenomenon who with his courage changed the course of constitutional jurisprudence, who put an end to the painful saga of constitutional deviations, who expanded the social role of the rule of law, who created greater awareness among the people of the values of democracy and the meaning of the Fundamental Rights provisions of the Constitution which I believe should be one of the seminal functions of the Supreme Court in a democracy.
2. A glance at his professional life would show that Mr. Justice Iftikhar Muhammad Chaudhry has had a distinguished career as an Advocate; has been President of the Balochistan Bar Association; a Member of the Bar Council; Advocate General Balochistan; a Judge and Chief Justice of the Balochistan High Court and a Judge of this Court. These in themselves are formidable achievements but it is the judicial life and his role as the Chief Justice of this Court which has been a defining moment in the judicial and political history of this country. 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.
3. The last over eight years of judicial history of Pakistan under his stint as Chief Justice clearly shows his impact on the jurisprudence of this Court, his overarching vision determining the direction of legal and judicial change and the impact of his judgments on the direction and nature of constitutional and societal transformation in this country. 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 mils privatization case (PLD 2006 SC 697), and in the kite flying case (PLD 2006 SC 1), seeking to regulate the adverse impact of kite flying on human lives and society. His 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, he rendered several landmark judgments. His key contributions can be divided into five jurisprudential areas:-
(a) Democracy, judicial independence and unconstitutional military interference: The short order dated 3.11.2007 restraining the unconstitutional actions of General Musharraf; the Sindh High Court Bar Association case (PLD 2009 SC 879) declaring the actions of Mushafraf as unconstitutional; the Asghar Khan case (PLD 2013 SC 1) declaring as unconstitutional the interference of military officials in the democratic election process all symbolize the Chief Justice’s desire and commitment to democracy, a non-compromising attitude towards judicial independence and putting an end to the sad chapter of constitutional deviations.
(b) Fundamental right to life and liberty under Article 9 of the Constitution: An examination of his lordship’s judgments clearly indicate that if there is one fundamental right which is repeatedly and consistently invoked, it is the fundamental right to life and liberty as without this right other fundamental rights become meaningless. The fundamental importance of this right is captured by the cases of enforced disappearances pending before the Supreme Court. Though a Bench of this Court headed by the Hon’ble Chief Justice has recently rendered two judgments in these cases (Rohaifa’s Case dated 10.12.2013 (Const. Petition No. 1/2012) and Mohabbat Shah’s case dated 10.12.2013 (H.R. Case No. 29388-K of 2013), yet the Court interventions have led to the recovery of large number of persons and also keeping a hope for their continuing recovery, initiation of criminal prosecutions, creation of Commissions of inquiry on enforced disappearances and Federal Task Force on missing persons.
(c) Breakdown of law and order and terrorism: The Karachi law and order case (PLD 2011 SC 997) and President Balochistan High Court Bar Association case (2012 SCMR 1958), two cases regarding the large scale violations of human rights in Karachi and Balochistan, symbolize the epic legal endeavour to entrench a regime of constitutional liberty with vigorous judicial protection of human rights in a very large, very poor and very diverse society and de-moralized state structure.
(d) Eradicating corruption and ensuring good governance: The NRO case (PLD 2010 SC 265) regarding the illegal immunity conferred in corruption and criminal cases; NICL case (judgment dated 22.11.2013 in Suo Moto case No. 18/2010) regarding violation of Public Procurement Rules, 2004 by Insurance Corporation Limited; corruption in Hajj arrangement (PLD 2011 SC 963) and Khawaja Muhammad Asif’s case (2013 SCMR 1205) regarding illegal appointments in public office and direction to create an independent commission for public appointments, all point towards a central role of the Chief Justice and the Court against the menace of corruption spreading like cancer in our society.
(e) The Supreme Court for the People of Pakistan: The new Murree Project case (2010 SCMR 361) regarding environmental hazard of proposed New Murree Project; CP 38/2012 (2013 SCMR 203) regarding women’s legal rights in rape cases; Suo Moto case No. 22/2009 (2012 SCMR 1147) regarding non-issuance of CNIC cards to Hindu married ladies; Muhammad Aslam Khaki’s case (2013 SCMR 187) regarding violation and humiliation of eunuchs; CP 37/2012 (judgment dated 22.11.2013) regarding miserable conditions of schools and Shah Hussain’s case (PLD 2009 SC 460) regarding the grant of remissions during the under trial period have transformed the Supreme Court of Pakistan from a formal constitutional court to a Supreme Court with a Human Rights face, in which the essence of constitutional interpretation is people oriented leading to a reconstruction of judicial power and process. This transformation, I may add, is the essence of judicial anthem of this Court “Justice for All” which I had the honor to create. The legacy of the Chief Justice consists of rethinking and reworking the foundational pillars of judicial power and its exercise. In my humble view, the following five aspects of this rethinking can be identified:
First, the events of 9th March 2007 and November 3rd 2007 led to the bitter realization that mere constitutional legitimacy based on constitutional textual protections and moral legitimacy cannot protect judicial independence and power. Therefore, the Supreme Court under the Chief Justice came to the realization that a much grounded basis of judicial independence and power is the one based on public legitimacy. Second, the grounding of judicial independence and power on public legitimacy has led to an unprecedented exercise and assertion of judicial independence viz a viz other state institutions and societal forces. Therefore, the weakness of the Courts having neither the power of the purse or sword has been compensated by strength of public legitimacy leading to unprecedented judicial independence. Third, in the words of Ran Hirschl “anything and everything is justiceable” captures the massive expansion of judicial review under the Chief Justice. It has been a process of judicialization of state and societal issues in which there has been “re-incarnation of judicial power as a form of extended social conversation on the denial of human rights by state and civil society”. Fourth, the role of this Court during his tenure has been to root in constitutional democracy and rule out military rule. Constitutional conflict between institutions is unavoidable as it is the engine of constitutional growth because the judicial institution has been conferred the constitutional duty to check legal and constitutional abuses of other organs of the State but the remarkable feature of the tenure of the Chief Justice lies in the fact that none of these constitutional conflicts resulted in constitutional breakdown. This is proved by the fact that his tenure as Chief Justice began with serving military General in the Presidency and ends with a second democratically elected government starting its five years tenure and a smooth transition in the said Presidency. Fifth, whether it is “Missing Persons case” or the Sindh High Court Bar Association 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.
4. Qualities of judicial greatness are historically contingent and may vary from society to society. On this complex topic, Allan C. Huthinson in his book “Laughing at the Gods” explores the criterion for determining Great Judges by noting that “great judges succeed most when they are praised not so much for the legal soundness of their work, but for the sit-up-and-take-notice boldness of their interventions…………………the test of great judging is not only doing it well but doing it in a way that obliges other to rethink what is involved in judging well”. This to me is the lasting contribution of the Chief Justice. He has forced us to rethink and reevaluate 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 good or great judge.
5. What would happen after December 12th when the Hon’ble Chief Justice lays down his robe? That’s a question being asked. A small episode of the days when he was made dysfunctional as Chief Justice and I was Member of the Bench hearing the petition filed by him challenging the Reference filed by the then President of Pakistan General Musharraf may be relevant in the context of the days to come. On 17th July, 2007 the deposed Chief Justice was to address a function at the Islamabad Bar Association and just a few minutes before his arrival there was a big bomb blast causing death of eight persons and injuries to many. The city was tense and so was the Court. Around midnight a senior Member of the Bench which was hearing the case walked to my suite in the Judges Enclave and asked me that since the situation was tense would it not be advisable to adjourn the case for a few days till the things settled down. Perhaps he wanted to test my morale. I said “Absolutely not. Let them blast the Court. We will announce the judgment on the street, on the Constitution Avenue.” But I added that this may be my view, let’s have a second opinion from another Member of the Bench i.e. Justice Nasir-ul-Mulk and we went to his suite and his answer was the same. At stake in the petition filed by the Hon’ble Chief Justice were the seminal values of democracy and judicial independence. Three days after the episode i.e. on July 20th, we announced the judgment and restored the Chief Justice. I fondly recall those days. The Court was infused with a strong determination to abide by the mandate of its oath to “preserve, protect and defend the Constitution”. The restoration of the Hon’ble Chief Justice by the Court was not glorification or reinstatement of an individual but rather a vindication of Judges’ sacred oath of office. This spirit, this resolve and determination to abide by the terms of the oath, would continue to inspire us for the times to come and shall survive the retirement of the Hon’ble Chief Justice.
6. In certain situations, the exercise of suo moto jurisdiction becomes imperative when institutions are dysfunctional and Fundamental Rights are at stake. In the process of re-thinking and re-evaluation of our role as Judges I may like to share two concerns. First, 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 discourage frivolous petitions and to prevent the misuse of jurisdiction by vested interests. Second, I believe, good governance and the rule of law have a symbiotic relationship. 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 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. As aptly remarked by a fellow colleague 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.”
7. Hon’ble Chief Justice, we Judges of this Court thank you for your lasting and inspirational contribution. As the next Chief Justice of Pakistan I hope that the judicial system would further learn, develop and re-evaluate the distinct jurisprudence and vision reflected in your judicial legacy.
 
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