REFERENCE ON THE RETIREMENT OF HONOURABLE MR. JUSTICE RAHMAT HUSSAIN JAFFERI

By
ASMA JAHANGIR
President of the Supreme Court Bar Association of Pakistan.
22 November, 2010.

Your lordship Honourable Chief Justice of Pakistan, Honourable Judges of the Supreme Court of Pakistan and Honourable Justice Rahmat Hussain Jafferi; distinguished members of the Supreme Court Bar Association, members of the legal fraternity, ladies and gentlemen:

Let me first express, on behalf the SCBA, appreciation for Honourable Justice Rahmat Hussain Jafferi for his gracious and delicate approach towards the members of the legal fraternity. Although his lordship Jafferi enjoyed only a short spell at the apex Court (from September 2009), he was recognized by the bar as a judge who
held those appearing before him in respect. His knowledge of the criminal law and justice system inspired confidence amongst the members of the bar.

Honourable Justice Rahmat Hussain Jafferi has had a diverse experience. His lordship practiced as an advocate, joined the Sindh judiciary as Civil Judge First Class Magistrate in 1972. As a judicial officer he was posted to several towns in the interior of Sindh. He has served as a Registrar of the High Court of Sindh. In August 2002, his lordship was appointed as an Ad-hoc judge and subsequently confirmed as a permanent judge a year later. On 3rd November 2007, his lordship Justice Jafferi declined to take an oath under another notorious Provincial Constitutional Order. As such he has had diverse experiences in the legal system and fully acquainted with its strengths and drawbacks. We hope that in his retirement he is able to render valuable public service to the cause of justice and legal reform on a voluntary basis.

My lords, The Chief Justice and Honourable Judges, the bar supports the formal declaration in the National Judicial Policy that sets high goals in presenting a clean and positive image of the judiciary. Indeed, your goals do not end with the termination of your office. The National Judicial Policy (NJP) goes beyond it. In upholding the true spirit of the Independence of the Judiciary, the NJP calls upon retired judges of the superior Courts to decline any appointment which is lower to their last-held status. In the past this was not always followed and therefore it had an indirect impact on the independence of judges who were nearer to retirement.

My lords, we have entered a new phase where both lawyers and judges are expected to attain higher standards in the conduct of their profession. Woefully the legal fraternity has also fallen short of it. There are embarrassing reports of lawyers man-handling judges of subordinate Courts and as President of the Supreme Court Bar I find this behaviour unacceptable. Equally scandalous is the incident where lawyers were reportedly beaten up by the police in Lahore at the behest of a member of the judiciary. Since the matter is subjudice we expect a firm decision on it as the act is unprecedented.

The independence of the bench, my lordships, is to a large extent dependent on the independence of the bar. The bar must and intends to uphold the dignity of the bench. The history of our struggles, and indeed the laudable recent lawyers' movement are testimonies of our desire to ensure dignity and independence of the judiciary. Similarly the bar has expectations of reciprocity which, my lordships I humbly submit is ever so often overlooked.

The bar appreciates that your lordships and the Honourable Chief Justice of Pakistan have devoted yourselves in the disposal of litigation. However, there are concerns regarding the prioritization in fixation of cases. The very short notice given to lawyers while fixing hearings and a lack of consistent practice in taking up supplementary lists over regular lists has added innumerable hardships to litigants and the legal profession. Similarly, of late we have seen a new phenomenon where unconnected lawyers have been encouraged to interfere in matters being heard in which such legal practitioners are neither engaged nor are a party to the case being heard. My lords, it has been our desire to be treated with respect while performing our professional obligations and such interference by third parties not only adds confusion to the matter being heard but also sends a false signal to litigants who begin to lose faith in the very counsels they choose to engage. My lords, I am not taking up this opportunity to present a list of complaints but to offer full co-operation in crossing these hurdles we face jointly, so that the litigant, who is the ultimate consumer of justice has greater faith in the system.

My lords, we are fully aware of your commitment to grant utmost relief to those suffering injustice. It is therefore the duty of the bar to assist you vigorously in achieving this noble objective. My colleagues across the country are equally keen to provide quality service in the cause of justice. It is in this spirit that they have expressed fatigue when more often the roaster is not exhausted. Lawyers continue to wait for a hearing till the tail end of the day and naturally are discouraged when cases are left-over as a routine. We numbly request the Honourable Chief Justice to instruct the office to display a provisional list on a monthly basis and a final list with a two weeks' notice. Naturally, this has to be flexible for matters that are urgent or complex. There is a need for reform in the fixation of cases and greater transparency from the time of institution of a case to the delivery of the final judgment.

We are acutely aware that there is a backlog of litigation and that your lordships are doing your utmost to deal with this chronic problem faced by most judiciaries. The National Judicial Policy also needs to be revised in the face of concerns expressed by the lawyer community across the country. Justice cannot be compromised in our zeal to see disposal alone.

We recognize that the volume of work is disproportionate to the number of judges at the bench and that resources do not compare to the output required by the system. In this context, my lords, I would most humbly submit that all the sitting judges need to take collective responsibility for initiating efficient case management and at the very least must actively perform their judicial functions.

Judges of superior Courts enjoy a guaranteed tenure. This is at the heart of the independence that they enjoy. In the celebrated judgment of the Honourable Chief Justice himself, his lordship justice Khalil-ur-Rehman Ramday so clearly held:

"Having thus surveyed the Constitutional Scheme of our country vis-a-vis the removal of Judges of Supreme Court or of any of the High Courts, the conclusion is irresistible that our Constitution does not allow any restraint on the exercise of judicial powers by a Judge or any restraint on him to act as a Judge during the pendency of the proceedings envisaged by Article 209 of the Constitution nor has our Constitution authorized any sub-ordinate legislation for the said purpose. It may be added that even a temporary disability cast on a Judge in the matter of discharging his constitutional and official obligations as such amounted to "REMOVAL" from office and was not permitted by our Constitution."

My lords, with remorse and with utmost regard, most humbly, I would like to point out that this very principle has ostensibly not been applied to seven judges of the superior Courts who await justice. It is the expectation of the Bar that this serious and lingering matter will be taken up on priority and attended to forthwith in accordance with the mandate of the referred judgment and these judges will be allowed to perform their functions in accordance with law and the Constitution.

We have reached a novel point in history where like never before, the eyes and hopes of the marginalized and underprivileged in our society are fixed upon us. This is the moment where we have to act thoughtfully and with mutual respect to deliver justice according to the expectations of those vulnerable people who have been continuously and systemically denied justice and dignity. These being pauper prisoners, children who are exploited, women who face discrimination, minorities who are persecuted and bonded labour whose generations remain virtual slaves. In addition, great hopes are attached to this Honourable Court in checking the excesses of the Executive. The bar admires your lordships' independence in the delivery of justice, where the Executive has used discretionary powers to promote nepotism or indulged in illegal acts.

Honourable Chief Justice of Pakistan and Honourable Judges of the Supreme Court of Pakistan let me also compliment you for the independence you displayed in the case of the missing persons from Adiayala jail. Protection of human rights is pivotal in upholding the rule of law. The bar applauds the decision of the Honourable Chief Justice and judges of the Supreme Court in summoning the heads of the intelligence agencies in order to facilitate the production of prisoners who disappeared after being formally released from jail. This gives a clear message that no one is above the law.

As of late Courts have been flooded with large number of public interest litigations and superior Courts, including the High Courts, are taking up an extravagant number of suo moto notices. It is understandable that people will address their grievances to the honourable Courts when the Executive and the legislature remain unable to fulfill their obligations. My lords, public interest litigation is universally recognized as a useful instrument in ending systemic injustices within society. It can only be supported but naturally like all legal procedures it must also follow certain criteria. In my humble opinion, the Courts while taking up issues of Public Interest should also practice extreme caution and set for themselves certain and specific guidelines when weeding out genuine cases and redressing public grievances. This will not only save valuable judicial time but will ensure that the Courts do not encroach upon the sphere reserved by the Constitution for the Executive and the legislature.

Barring the procedural relaxation of locus standi, public interest litigation must be contained within the well-settled parameters of judicial review and must at all times remain mindful of the separation of powers drawn by the Constitution.

My Lords, let me share some of the guidelines given by the Supreme Court of India in the cases of Gurpal Singh vs the State of Gujrat (2005 (5) SCC 136) with my colleagues present here.

“When dealing with public interest litigation, the Court has to be satisfied about (a) the credentials of the applicants; (b) the prima facie correctness of information (c) the nature of the information and (d) that the information given is not vague and indefinite. The information should show gravity and seriousness involved. Where official documents are attached to a petition, there must be a credible explanation of how such documents were obtained. In such cases the Court has to strike a balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of mischievous petitions seeking to attack, for oblique motives, justifiable executive actions. The Court must act ruthlessly when dealing with imposters and busy bodies or meddlesome interlopers impersonating as public-spirited holy men.”

Let me finally, bid a fond farewell to his lordship Justice Rehmat Hussain Jaffari and wish him fruitful days ahead.