REFERENCE IN HONOUR OF
MR. JUSTICE CH. IJAZ AHMED,
JUDGE SUPREME COURT OF PAKISTAN
ON HIS RETIREMENT

By:
QAZI MUHAMMAD ANWAR
President
Supreme Court Bar Association of Pakistan

Hon'able Chief Justice and the Judges of the Supreme Court, Attorney General, Abual Inam, Vice-Chairman Pakistan Bar Council, A.Gs., Ladies & Gentlemen!

1. This full Court reference is being held in Honour of
Mr. Justice Ch. Ijaz Ahmad who is retiring today as Judge of the Supreme Court of Pakistan.

2. It shall not be possible to bring on record his achievements in the profession of law and also the general behaviour and conduct as a man, as' a practicing lawyer, as law officer, Judge of Lahore High Court and then Supreme Court of Pakistan. He has throughout demonstrated his nobleness, humbleness and at the same times his command on the subject of law. It is stated that he belongs to a feudal family of Sargodha but his humbleness, his affection and love for the poor stands witness that in his genes feudalism could not travel. The updated bio-data of my Lord Mr. Justice Ch. Ijaz Ahmad supplied by the Supreme Court office speaks about his social and academic activities before becoming the Judge of the High Court and then Supreme Court and also his love for literature. He is author of 4-books namely:--

(i) Separation and independence of Judiciary

(ii) Fikr-o-Nazar

(iii) Manual of Election Laws

(iv) Supreme Court References

3. Except Fikr-o-Nazar the other three books are related to legal profession. I have benefited from his books, Manual of Election Laws and Supreme Court References in preparing cases either in election matters or general matters. While his book Fikr-o-Nazar introduces to us Ch. Ijaz Ahmad, who by face appears smiling but whose inner cries and weeps with the poor, who have neither bread nor shelter nor honour and who are eighteen crore awam of Mumlikat-e-Kuda-Dad-e-Pakistan. This book also reveals that the balance Judge in the Court room is infact highly sensitive. He notices the injustices around him in our society and he protests against the highhandedness of mighty against the weak. While his other three books on the subject of law speak not only of his hard work but high degree of research on the subjects on which he has written books.

4. Some people are introduced by their faces and these are people who at times introduce themselves through face. Mr. Justice Ch. Ijaz Ahmad is one, whose face introduces a God fearing man. He is Ashiq-e-Rasool and true Muslim.

5. Before becoming Judge of the High Court he actively participated and assisted different societies engaged in the well being of fellowmen, he also participated in the bar activities. He was elected General Secretary Lahore High Court Bar Association in 1985, of which he had been Member of the Executive Committee in the year 1979 and 1987. He struggled for separation of judiciary from executive which took 21 years till the judgment of the Supreme Court on the subject in 1994 and then for independence of judiciary, fortunately with his active and effective contribution, we have succeeded in establishing an independent judiciary at the superior level, Supreme Court and High Courts which we are now preserving their independence and which are being attacked by the forces, who cannot afford an independent judiciary and who would always prefer a manageable and administered judiciary.

6. Mr. Justice Ch. Ijaz Ahmad was elevated as Judge of the Lahore Court on 28th May 1997 and he became Judge of the Supreme Court on 14^th September 2005 but the courageous, bold, God fearing, upright Mr. Justice Ch. Ijaz Ahmad became known to the common people of Pakistan during the historic struggle of legal fraternity, media and the civil society starting from 9^th March of 2007. This is the date when big "No" by Justice Iftikhar Muhammad Chaudhry the Chief Justice of Pakistan to then dictator General Pervez Musharaf and his puppet Generals changed the direction of events in this county and showed us right path for our genuine struggle of an independent and fair judiciary, rule of law and above all supremacy of Constitution.

7. My Lord Mr. Justice Ch. Ijaz Ahmad was the Member of the Bench of 13 Hon'able Judges of the Supreme Court headed by Mr. Justice Khalil-ur-Rehman Ramday who heard the petition of Mr. Justice Iftikhar Muhammad Chaudhry against the Chief of Army Staff and others, wherein the Chief Justice of the Pakistan had sought justice from his own Court against dictatorial orders of General Pervez Musharaf and the manner in which proceedings were conducted against him by the Supreme Judicial Council. Daily proceedings of this bench became common talk of the common men in the streets. These proceedings ended on 20th July 2007. It was Friday, before Juma payers, when the bench was rising for reassembling to announce the judgment, Mr. Justice Khalil-ur-Rehman Ramday in pin drop silence said (I quote) "Juma prayer time has come, we are going for the prayers you all go down for juma prayer with extra nawafils, we do not know what would be the judgment but we all shall accept it with grace and discipline." We went down, offered juma payers and also nawafil and came back to Court Room No. 1 at about 2.30 p.m. We waited till 8.00 p.m. and it is after Maghrib close to Isha time, when the Hon'able Judges included Mr. Justice Ch. Ijaz Ahmad resumed their chairs, and Mr. Justice Khalil-ur-Rehman Ramday broke the silence firstly stating questions which were under adjudication before the full bench and then the bench held that reference was improper, incompetent, mala fide, illegal and of legal effect. It was disclosed that the judgement was by majority of 10 against 3 and then announced the answers to the questions. Each Member of that bench who had held Reference and proceedings against the Chief Justice as illegal, improper, incompetent and mala fide won praises and prayers of the common people, as judgement was celebrated in the streets.

8. Here started journey of Supreme Court of People of Pakistan headed by Justice Iftikhar Muhammad Chaudhry as Chief Justice. I have used words "Supreme Court of People of Pakistan emerging from 20th July 2007, for the reason that this name was described by my predecessor Mr. Munir A. Malik, the then President of the Supreme Court Bar Association in his address on 1st October 2007, on the occasion of start of judicial year 2007. The Imtihan and Azmaish were not over. The establishment and the then dictator were bent upon to divide judiciary and to break victory of people of Pakistan and so came 3rd November 2007, when seven Judges of the Supreme Court of Pakistan headed by Chief Justice Iflikhar Muhammad Chaudhry passed the orders that imposition of emergency and PCO will be an attempt to abrogate the Constitution and therefore, directed that no Judge of the Supreme Court and the High Courts would take oath under PCO. The same evening Chief Justice Iftikhar Muhammad Chaudhry alongwith 11 Judges of the Supreme Court were placed under house arrest and dummy Chief Justice was installed and same exercise was carried in the provinces and this way for the first time in the history of Pakistan 72 judges refused to take oath under PCO on 3rd of November. It was declared by the dictator that those who have not taken oath under PCO are gone and they are no more Judges. Mr. Justice Ch. ljaz Ahmad was one of the noble Judges who withstood throughout with Sabr and Shukr. He passed the test, because he had the faith and belief that final victory is of Haq and Batil has to diminish, no matter, how strong it be.

9. Today is not the time that I should narrate the events starting from 3^rd November 2007. The second phase of our struggle, except that in the final round Allah Almighty granted success to the forces struggling for independence of judiciary namely legal fraternity, the media, the political workers and above all the people of Pakistan and the sun rise of 16th March saw the victory of democratic forces and defeat of establishment and conspirators.

10. Mr. Justice Ch. Ijaz Ahmad is the name which shall be remembered for ever as the one who stood with Hon'able Chief Justice throughout testing times. Neither threats nor inducements could break him. I, Salute Mr. Justice Ch. Ijaz Ahmad on behalf of legal fraternity, the media and the people of Pakistan. You have won our heats and you will live in our heats for ever.

11. We all have struggled for independence of judiciary and we want to preserve independence of judiciary therefore, it is the time that we should examine the para-meters of independence of judiciary.

12. Mr. Justice Ajmal Mian when he was Chief Justice of High Court of Sindh, wrote an Article, on independence of judiciary; reported PLD 1990 Journal Page 8 "Justice is part of our faith" Allah Almighty in Sura Aal-e-Imran commands that:--

"Oh ye who believe: stand out firmly for justice, as witnesses to Allah, even if it be against yourselves, or your parents, or your kin and whether it be against rich or poor, for Allah can best protect you. Follow not the lusts of your heart, lest ye swerve and if ye distort justice or decline to do justice, verily Allah is well acquainted with all that ye do."

Again in Surah Maida commands:--

"Oh ye who believe stand out firmly for Allah, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to do wrong and depart from justice. Be just, that is next to Piety: and fear Allah, for Allah well acquainted with all that ye do."

And then in Surah Nisa:--

"Allah doth command you to render back your trusts to those to whom they are due, and when ye judge between man and man, that ye judge with justice: verily now excellent is the teaching which he gives you: For Allah is He who hears and sees every thing."

Justice would cease to be justice, if it were bartered away for any consideration whatsoever. If justice and righteousness perish, human life would no longer have any value in the world.

Islam postulates two essential features of justice, namely that it is to be done not only in accordance with law but also in such way that results in complete fairness, secondly, that doing of justice is not the concern of the judge alone but the collective responsibility of the community as a whole. Every member of the community is involved in the process of dispensing justice. If an injustice is being committed to a person's knowledge, he cannot stand apart as a silent spectator even if he is not personally affected. Holy Prophet (peace be upon him) and the four Caliphs by their acts and deeds demonstrated that how justice was to be administered independently and impartially. A few instances will suffice.

(i) The Holy Prophet (Peace be upon him) appeared himself personally in several cases brought against him to establish that no one was above the law. He permitted a complainant to nudge him, when he stated that Holy Prophet (P.B.U.H.) did the same to him on one occasion.

(ii) Jablah Bin Al-Ajham was the ruler of a State in Syria. He embraced Islam. Once he was performing Hajj, a part of his gown was trampled over by a poor Arab (Beduin), Jablah gave him a slap. The Beduin retorted with a slap. The infuriated Jabblah went to Caliph Umer to complain about it, but was told that he had already received justice. Thereupon, Jablah said the Beduin would have been hanged if he would had been in his country. The Caliph's reply was that a pauper and a prince were equal in Islam and that the Beduin did not do anything wrong.

(iii) Once Hazrat Umer second Caliph appeared in person as a defendant in compliance of a summon from a Court and insisted that two litigants should be given equal place and position before Qazi. So also Hazrat Ali, the fourth Caliph refused to accept better place then a jew defendant. He lost the case before the Court as he was relying upon evidence of an interested witness.

The term "Judiciary" connoted a branch of Government invested with the judicial power, the system of Courts in a country, the body of judge; the Bench and the Bar. Judiciary cannot be said to be independent unless it operates/functions as a separate self sufficient and autonomous organ of a State. For a layman by independence of judiciary, it meant that there shall be no interference in the judicial functions of the judges by the Government or the executive authorities under it and the judges should be free to arrive a their decision regardless of State administrative policies or political philosophy of the party in power. Independence of judiciary is not confined to independence from the executive pressure or influence, but it means independence from all other pressure, considerations and prejudices. In the civilized world, always there is strong public opinion in support of independence of judiciary, and therefore in civilized world it is easy for the judiciary to discharge its functions without any let or hindrance but in a country where democratic process is not fully entrenched and has been interrupted regularly by imposition of Martial Laws or by other political turmoil's the work of judiciary becomes very difficult, particularly when the required public opinion for its support is lacking.

13. Therefore, for independence of judiciary the Judge discharging functions of administration of justice has to be a man of integrity and competence and his appointment be not influenced by political pressure. I am refraining my comments on the appointment of Judges because the matter is subjudice before the Supreme Court in Constitutional Petition 14/2010 "Supreme Court Bar Association of Pakistan Versus Federation of Pakistan." where I am signatory of the resolution on the basis of which petition has been filed but I cannot avoid commenting that these days unfortunately certain forces are all out to draw a picture as if war has started between Judiciary and Parliament and some have gone to the extent that Parliament being representative of 18 crore people of Pakistan has the right to make any law right or wrong, amend Constitution the manner they like and none can question it and none can examine it. Some people even go to the extent that question is put that if it comes between parliament and judiciary, which side you stand. Some have started to propagate that Parliament is superior and the Judiciary is subordinate. I do not know where from they speak, who prompts them to speak such language, I only know that Constitution is supreme document of the state and the Judiciary is to defend and preserve it and to see that none can d-shape or change its basic features.

14. My Lord Justice Ch. Ijaz Ahmad was also the member of the fourteen judges' bench which decided the constitutional petition. Sindh High Court Bar Association versus The Federation of Pakistan on 31^st July 2009. The judgment was authored by Chief Justice Iftikhar Muhammad Choudhary. This is a historical judgment of the Supreme Court wherein the emergency dated 03 November 2007 and the PCO were declared violative of the Constitution and this is the judgment through which the pus from the body of the judiciary in the shape of PCO judges was removed. The judiciary was purified. Intriguers and conspirators were identified and removed. The fact is that this judgment has established an independent judiciary at Supreme Court and High Court levels and it is now for the honorable members of judiciary to preserve their freedom and independence in administering justice. May I, at this stage, caution my community and people of Pakistan that Executive Authority of Federation is trying to reinject the dirty puss in the body of judicially. Men may come, men may go; their deeds good or bad make the history. You are retiring today having written your name in the history amongst those who shall be remembered for their courageous and bold judgments.

15. Mr. Justice Ch. Ijaz Ahmad shall also be remembered for authoring judgment in Human Rights Cases. Petitions No. 8340, 9504-G, 13936-G 13635-P, 14306-G to 14309-G of 2009 "Tariq Aziz-ud-Din & others Versus Establishment Division and others" announced on 28.04.2010 wherein promotion granted by the Prime Minister to the higher bureaucracy in Grade 22 on pick and choose basis was set aside and the principles of seniority cum merit were reaffirmed as guiding principles of promotion in Grade 22. This judgment disapproves favouritism, nepotism coupled with Safarish and for the first tune at the higher level merit and transparency have been laid down as basic principles.

16. Mr. Justice Ch. Ijaz Ahmad shall also be remembered for/contribution in Constitutional Petition No.76 to 80 of 2007 & 59/2009, HRC cases 14328-P to 14331-P & 15082-P of 2009 and Civil Appeal No.1094 of 2009, commonly known as NRO case. The 17 members full Court judgment announced on 16th of December 2009 where while agreeing with the judgment recorded by Mr. Justice Iftikhar Muhammad Chaudhry, my Lord Mr. Justice Ch. Ijaz Ahmad has added his own reasonings from Pages 261 to 281 and in Para 31 my Lord has reproduced a verse from the poetry of poet Sagar Siddiqui:--

May with your permission I add another verse to the same effect:--

Allah Hafiz, My Lord, Justice Ijaz Ahmad