SPEECH ON THE EVE OF FULL COURT REFERENCE IN THE HONOR
OF MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, HON'BLE CHIEF JUSTICE OF PAKISTAN
By:
MR. JUSTICE TASSADUQ HUSSAIN JILLANI
Hon'ble
Chief Justice Designate
Hon’ble Chief
Justice of
Hon'ble Judges
of this Court,
Attorney General
for
Vice Chairman
Pakistan 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 Musharraf
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 demoralized 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 justice able"
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
6. 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 you.