INTERNATIONAL JUDICIAL CONFERENCE 2014
INAUGURAL SESSION 18th APRIL 2014
MR. JUSTICE TASADDUQ HUSSAIN JILLANI
HONOURABLE CHIEF JUSTICE OF PAKISTAN
My brother Judges of the Supreme Court of Pakistan,
Hon’ble Chief Justice Supreme Court of Azad Jammu & Kashmir,
Hon’ble Chief Justices and Judges of the Federal Shariat Court, High Courts of
Pakistan and the High Court of Azad Jammu & Kashmir,
Hon’ble Chief Judge Supreme Appellate Court Gilgit-Baltistan and Chief Judge,
Learned members of the District Judiciary,
Attorney General for Pakistan and Advocate Generals of Balochistan, Khyber
Pakhtunkwa, Punjab and Sindh,
Vice Chairman and Office Bearers of Pakistan Bar Council and the Provincial Bar
President and office bearers of the Supreme Court Bar Association,
Presidents and office bearers of the High Court and District Courts Bar Associations,
Eminent International delegates,
Ladies and Gentlemen:
On behalf of the Judiciary, it gives me great pleasure to welcome you all to the inaugural ceremony of the International Judicial Conference 2014. It is an honor for me to address this gathering of distinguished legal minds from both within the country and abroad. I am particularly honored to have in our midst a number of distinguished foreign delegates who have taken time out of their busy schedules and have traveled considerable distances solely in order to enrich us with their knowledge and their presence.
In August, 2006, when the Supreme Court organized first International Judicial Conference to mark the 50th Anniversary of this Court. About 100 delegates from all over the globe participated. To mark the occasion, we erected a monument which you would find right in front of the Supreme Court Building and on it we inscribed a pledge, a vision and a resolve. We said, “Completing fifty years is not merely a moment to rejoice. It is a moment to reflect and a moment to re-dedicate. On this momentous occasion, as we assemble, we reaffirm our faith and resolve, to protect and preserve the Constitution----its abiding principles, its cherished goals and the civilizing institutions that it mandates to establish.” History of this Court ever since then is a testimony to the fact that we have stood by the words, the pledge and the resolve.
Ladies and Gentlemen!
The International Judicial Conference, which now has become almost a regular feature primarily serves three key purposes, which are crucial to the proper administration of justice in the country: It provides an invaluable platform to lawyers and judges for the sharing of ideas across different aspects of the law; it promotes communication and understanding between the bench and the bar and indeed throughout the legal community in a comfortable and collegial environment away from the adversarial norm of our courts, and finally, it allows for the generation of new ideas and approaches to tackle the myriad legal issues that face not only our country today but are also relevant to nations throughout the world.
The Supreme Court is proud to spearhead and support this initiative with the support of the Law and Justice Commission of Pakistan, and we hope that each one of you will participate fully to take advantage of the tremendous and manifold opportunities that an event such as this has on offer. An important feature of this conference is to share with you the matters and issues that have occupied the attention of the Supreme Court in the last year as also its vision for the future of administration of justice in the country. As you are all aware, the preceding year witnessed an important transition in judicial history when the responsibility of leading this apex body was transferred to me from my predecessor the former Chief Justice of Pakistan Hon’ble Mr. Justice Iftikhar Mohammad Chaudhry who after completing a momentous period of his career attained the age of superannuation. The challenges faced by the judiciary during the last few years have recharged the judiciary as an active and respected pillar of State which marked the beginning of a new era of constitutional jurisprudence. It was during this period that the judiciary finally put an end to constitutional deviations, expanded the social role of the rule of law and, most importantly, created greater awareness amongst the people of the values of democracy and the true meaning of fundamental rights guaranteed under the Constitution.
I would also like to take this opportunity to underscore the fact that it was the collective determination and effort of the superior judiciary in the post 2007 period that transformed this Court from a formal constitutional court to a Supreme Court with a Human Rights face.
In this avatar, the Supreme Court has time and again affirmed that the essence of constitutional interpretation is, and has to be, the betterment of the people whilst still remaining within the bounds of the law. This resolve of the Supreme Court is also reflected in our official court anthem, “Justice for All” which I had the honor of penning on eve of the first International Judicial Conference held in 2006 and which was presented before you by the chorus of young children a short while earlier.
The insight and greater wisdom gained by the judiciary in the post-2007 period, which continues to inform its actions and decisions to date, has five distinct facets: First, that mere formal constitutional legitimacy based on constitutional textual protections cannot protect judicial independence and power. It is, in fact legitimacy of the Supreme Court in the eyes of the public as the guardian of the values of justice that guarantees its true independence and sustained prestige.
Second, that the Supreme Court is not merely mandated by the Constitution, but in fact bound by the spirit of its office, to exercise its independence in order to provide a much necessary check on the actions of the legislature and the executive. In the words of the renowned Constitutional scholar, Brian Tamanaha, ‘The judiciary is the point of most direct confrontation between the government, law and the individual and it can therefore serve as the best barrier against lawless governmental actions’. We are proud to state that the Supreme Court is now fulfilling this role with an appropriate zeal and enthusiasm but not without regard to the importance of upholding and respecting the independence of the other pillars of the State. Third, that the authority of the Supreme Court, especially under its judicial review jurisdiction may be usefully extended to a number of areas from which the Supreme Court had historically maintained a distance. In accordance with this realization the Supreme Court has increasingly exercised its power of judicial review of administrative actions to safeguard the rights of individuals against excesses of the executive rather than to bow down to the will of the executive. Fourth, that the Supreme Court may exert its Constitutional authority to bolster and sustain constitutional democracy and to guard against subversion of constitutional values still avoiding not only constitutional breakdown but even an unseemly clash between institutions. Fifth that it is not sufficient for a Supreme Court of a complex country such as Pakistan merely to implement the law. It is, in fact, important for the Court to display initiative and courage in the face of challenges to constitutional values from fluctuating majorities or passions of the day. The Court has conceptualized those values to enhance democracy and prevent the opposite trend. It was done because our Constitution visualizes substantive democracy and unless the Court plays its role, it can turn into a formal democracy where individual rights are a casualty.
The role of judiciary is assuming greater importance with every passing day as citizens are reposing greater confidence in this institution for redressal of their grievance. This is exacerbated by the lack of governance on the part of the Executive and in turn the burden of such deficiencies is shifted towards the judiciary. Sociopolitical and economic dynamics have confronted the Courts with new issues and challenges. Some of those issues are:-
(i) There has been a judicialization of political issues.
(ii) On account of erosion or malfunctioning of other institutions, increasingly the Courts have been called upon to decide issues which ordinarily may not fall in their domain.
(iii) There has been a tendency for a parliamentary majority to bring in legislation which may violate fundamental rights guaranteed under the Constitution.
(iv) There could be gaps between the law and socio-economic demands as also perception of role of courts in the advancement of constitutional goals. The law may not keep pace with social dynamics. The Courts fill the gap.
As the Supreme Court comes to grips with the new challenges, it needs to be mindful of two distinct yet related factors. It needs to be mindful, first of all, between maintaining and respecting the boundaries between Article 199 of the Constitution, which confers an original writ jurisdiction on the High Courts of Pakistan and 184(3) which allows the Supreme Court to directly take notice of matters of public importance emanating from a violation of any of the fundamental rights guaranteed under the Constitution. Particularly, the Supreme Court needs to ensure that in its zeal to do good it does not neglect to define appropriate limits for the exercise of its jurisdiction under Article 184(3). Anything short of that would be tantamount to encouraging frivolous and motivated petitions, and subverting the purpose of Article 199, which would in turn negate the underlying intention and rationale of Article 184(3). Second, the Supreme Court needs to be mindful of the symbiotic relationship between good governance and the rule of law. It must remember at all times that good governance is only possible when every organ and institution of the State, including the courts, function within and in accordance with their constitutional mandate. Whilst it is entirely appropriate that the apex court may, under Article 184(3) and 187 of the Constitution, be called upon to fill the gaps between the law and social needs, it is important that it does so in a way that not only preserves but also bolsters the trichotomy of powers.
In recent months the Supreme Court has taken up a number of cases, which have underscored the relevance, sensitivity and poignancy of these concerns. The cases relating to the law and order situation in Quetta and more recently in Karachi particularly come to mind in this regard. In both cases, the judiciary has directly dealt with the actions and omissions of the executive. It has done so, however, only after the executive had allowed the situation to reach a point where it could no longer be ignored. In both cases the efforts of the Supreme Court are geared towards understanding the situation and the root causes of the breakdown in law and order and then to assign the appropriate responsibility rather than in assuming the responsibilities of the executive itself. Both cases are still sub judice and whilst the Supreme Court is making all efforts to ensure that the executive discharges its duty in accordance with the law, it is making a conscious effort to ensure that it does so without in any way blurring the lines that distinguish the executive and the judicial organs of State. The determination of the Supreme Court to tackle the actions of the executive in areas where it felt that these had exceeded the limits of the law is also evident in its decision regarding the Haj Corruption case, passed in December last year in terms of which it mandated the Federal Investigation Authority to take appropriate action against those politicians and government officials who had violated the law. You will have an opportunity during the course of this conference, particularly in Group 1, to deliberate on this very important issue of the scope of judicial review of administrative actions and to put forward your recommendations in this regard.
Also in the preceding year, the powers of the judiciary have been tested in respect of human rights within the country. Whilst, we as members of the judiciary are motivated by the same desire to do good that any sensitive human being would be, we are also cognizant that it is important that in exercising its charitable instinct the Supreme Court submits to constitutional limits and adheres to all relevant norms of due process. In taking suo moto notice of the gruesome discoveries of mass graves in Khuzdar earlier this year, the Supreme Court has curbed its outrage in an attempt to strike precisely such a balance because the High Court and the Chief Executive had taken notice of that. The Supreme Court has also articulated its views in this regard in the Missing Persons case. It has stated that whilst it is fully cognizant of and sympathetic to the plight of the families of the missing persons, it must resist the urge to step beyond its constitutional limits. I commend this restraint because it is my firm conviction that even in the direst of human rights cases, the Supreme Court must remain conscious that its actions are not limited to a single time and space but become a source of jurisprudence for years to come. Even a seemingly small move outside the bounds of law has the potential of opening up wide cracks in the edifice of certainty and reliability of justice which in turn may be detrimental to the very foundations of rule of law in coming years. In Group 2 of this conference, we invite you to share your ideas with us regarding the appropriate role of the Supreme Court in human rights cases and help in defining the point at which the desire to help may surrender to the higher desire to uphold the law.
Another area of particular consideration for the judiciary is the need to provide access to justice to those individuals or groups that are otherwise removed from the mainstream, which you will have a chance to consider in Group 3 of this conference. As you are aware, the Supreme Court has considerable powers under Article 184(3) of the Constitution to exercise original jurisdiction in matters of public importance regarding the enforcement of fundamental rights guaranteed for the citizens of Pakistan irrespective of their economic status, race, color, caste or creed. It is this Article, which allows the Court to take notice of matters without the aggrieved filing a formal petition before it. The Supreme Court may, therefore, take notice of its own accord, or suo moto notice, or in response to a complaint or information received. We at the Supreme Court believe that whilst it is imperative that the Supreme Court exercises this power to reach out to those who for social and cultural reasons may feel handicapped in reaching out to the Supreme Court, we are also cognizant that this power has to be exercised fairly, equitably and judiciously so that the integrity of the mainstream system is not compromised. One such matter that came before the Supreme Court earlier this year was with respect to the threats received by the ancient tribe of Kalash which lives nested in the mountains near Chitral. The Kalash are a gentle people that have led a peaceful existence. Whilst they have protected and maintained their culture and traditions they have in no way posed any threat to the values and security of Pakistan. The problem is that their unique geographical and cultural placement has rendered them somewhat isolated from the rest of the country and unable to easily invoke the mainstream legal system of the country to come to their aid when faced with threats from militant groups. Had the Supreme Court turned a blind eye to the predicament of the Kalash, these
people who are an asset to Pakistan’s cultural diversity, would have been left without any support and over time would have become alienated from the country. It goes without saying that such an outcome would impoverish the country’s rich history, traditions and beauty. We hope that you will examine these and other related issues in the course of this conference and share with us your valuable views on the appropriate scope and limits of the exercise by the Supreme Court of its powers under Article 184(3) particularly as these relate to increasing the access to justice of socially disadvantaged groups. This brings me to the next related and indeed an important point for consideration for the judiciary in today’s Pakistan, and this is, its role in promoting a culture of tolerance. Protection of minorities is not only amongst the Principles of Policy expressed in our Constitution and, therefore a legal duty for us as Pakistanis, but is also a universal value and, more importantly, an integral pillar of Islam. The UNESCO principles on tolerance adopted by the member States, including Pakistan in 1995, state inter alia that: ‘Consistent with respect for human rights, the practice of tolerance does not mean toleration of social injustice or abandonment or weakening of one’s convictions. It means that one is free to adhere to one’s own convictions and accepts that others adhere to theirs. It means accepting the fact that human beings, naturally diverse in their appearance, situation, speech, behavior and values, have the right to live in peace and to be as they are. It also means that one’s views are not to be imposed on others.’ These principles are not merely constructs of a modern world but in fact echo the values enshrined in the Holy Quran, which speaks of the basic dignity of all human beings and emphasizes particularly, in Surah Baqarah that ‘there is no compulsion in religion’. These principles also re-affirm the time-honored traditions of our Prophet Hazrat Muhammad PBUH who not only spoke of but also practiced the equality of all human beings, regardless of their race, color, language or ethnic background. It is in the spirit of upholding these principles and values that in recent months, the Supreme Court has taken suo moto notice of a bomb attack on a church in Peshawar and other issues of minorities’ rights. These matters are highly sensitive, not only because these speak of our commitment to protecting minorities residing within the country but also because these are likely to define the parameters of the future of Pakistan as a tolerant and inclusive State. We hope that you, in your capacity as jurists and citizens of this world will, in the deliberations in Group IV of this conference share your views regarding the importance of creating a tolerant society and the role that the judiciary may play in this regard.
Ladies and Gentlemen, whatever the challenges may be of the administration of justice in the country, the Supreme Court is ready and determined to lead the way. We, as members of the judiciary are committed to the universally acknowledged judicial values of judicial independence, which we recognize is a prerequisite to the rule of law and a fundamental guarantee of a fair trial; impartiality applied both to the decision itself and the process by which the decision is made; integrity which entails that justice must not merely be done but must also be seen to be done; propriety which means that we accept that we are subject of constant public scrutiny and, therefore, must act within certain personal boundaries which are at all times consistent with the dignity of our office; equality which entails ensuring equality of treatment to all before the courts irrespective of race, color, religion, national origin, caste, disability, age, marital status, social and economic status and other similar factors and finally, but most importantly, competence and diligence which we shall strive to enhance through all means and opportunities available to us.
Any efforts that the judiciary may make in the administration of justice, however, are likely to remain inconclusive without the active and meaningful support of the lawyers. It is the dynamic between the bench and the bar within the courtroom that makes for a vibrant culture of justice. Our lawyers have displayed their commitment to the independence of judiciary and the values of justice by taking to the streets in 2007 when the judicial institution faced a threat from without. It is now time for the lawyers to convert this energy and enthusiasm to fighting battles within the courtroom, through the weapons of law available to them lest the profession and indeed the very cause of justice may become a victim of threats from within.
Ladies and Gentlemen!
Pakistan like other transitional democracies has had its share of societal conflicts reflecting sectarian, racial, ethnic and political divide. These societal conflicts have led to violence. The judiciary has a role to play by effective enforcement of law because we believe that it is the law that liberates an individual, a society or a nation. The judiciary through its verdicts can also promote the values of trust, of tolerance, of protecting minorities and the weaker sections of the society. The judiciary thereby affects the behavior patterns, because:
“Morality cannot be legislated but behavior can be regulated. Judicial decrees may not change the heart but they can restrain the heartless.”
(Martin Luther King-I)