FULL COURT REFERENCE
FAREWELL ADDRESS
By
THE HONORABLE MR. JUSTICE TASSADUQ HUSSAIN JILLANI CHIEF JUSTICE OF
On 22.7.2014
The Hon'ble
Chief Justice (Designate)
My Brother Judges of the
Supreme Court,
Mr. Kamran
Murtaza, President of the Supreme Court Bar Association
Mr. Ramzan
Chaudhry, Vice-Chairman of the
Mr. Salman
Aslam Butt, Attorney General for
Ladies & Gentlemen!
I am most
grateful to you all for having assembled here this morning to bid me farewell.
It has been a long time that I served as a Judge i.e. ten years as a Judge of
High Court and for a similar period as Judge of the Supreme Court and as Chief
Justice of Pakistan.
2. Parting may
be an anxious moment but it is as natural as appointment itself, it is part of
life. It marks the beginning of a new chapter in one's life and provides an
opportunity to put one's experiences to some meaningful cause.
3. The generous
manner in which the members of the Bar and the Hon'ble
Chief Justice (Designate) have expressed their views about me has been
gratifying and source of immense satisfaction. I am grateful to each one of
them for having found me worthy of the high office which Allah Almighty has
been gracious to bestow. Let me however add that this Court and my colleagues
equally share this credit and appreciation for deciding cases, settling
disputes and expanding the scope of the fundamental values enshrined in the
Constitution. It has been my privilege and honour to
be a member of this Court, each member of which has to his credit the unique
distinction of being a thoughtful person of immense intellectual depth and vision.
4. My term as
Judge of this Court has been challenging and beset with dramatic
socio-political upheavals and events which included an assault on judicial
independence. While these events sparked of a popular movement spearheaded by
the lawyers, civil society and media, it vindicated judiciary's strong resolve
to courageously live by the terms of its Oath to defend and protect the
Constitution, the Rule of Law and judicial independence.
5. The
Constitution of a country is a living organism which constantly grows and
evolves to meet the new challenges and social dynamics. It is the function of
the Court to interpret the document in a manner which sustains its relevance
and takes the nation forward on its march towards progress and development.
Good governance and constitutional rule can be maintained and strengthened only
when there is respect for the rule of law and the legal institutions are strong
and functioning well.
6. During my
short stint as the Chief Justice of Pakistan, there were certain matters which
I considered, required judicial indulgence. Whether it was the case of the
challenge thrown to the 31st of July 2009 judgment[1] in
review jurisdiction or the anomaly of not providing timeline within which the
Governor was bound by the advice of the Chief Minister[2] or
the case where the Court directed to revamp legal education to improve the
quality of justice[3] or the
concern expressed about the quality of medical education[4] or
the case where the Court gave judicial recognition to the concept of
sustainable development[5],
the Court has been resolute in protecting constitutional values, responding to
social dynamics, expanding the scope of judicial review and thereby acting as a
catalyst of social change.
7. In the domain
of Human Rights Jurisdiction, the Court took notice of the issue of Overseas
Pakistanis. The law permits a Pakistani citizen to have dual nationality,
though he may not be qualified to contest for a representative office in view
of Article 63(l)(c) of the Constitution. There are
more than 5.9 million overseas Pakistanis most of whom have acquired dual
nationality who are significantly contributing to the economic and
socio-political uplift of the country. They send billions of foreign exchange
every year. According to an estimate they send $ 14.3 billion in 2012-13. They
are as patriotic as anyone else living within the country. However,
notwithstanding the mandate of Article 25 of the Constitution which provides
for equality of rights and equal protection of law, these expatriates felt
alienated and their rights to access to justice have sometimes been thwarted by
various bureaucratic and procedural impediments. One of the first things
that I did after assumption of office was to open Overseas Cell in the Human
Rights Directorate of the Supreme Court which promptly attends to their
complaints with a view to provide speedy justice. The Cell has facilitated the
exercise of fundamental right of access to justice by the expatriates and they
view it as window of hope and relief.
8. The
Constitution of
9. In a recent
judgment, the Court took up the issue of violence against and denial of
minority rights. Notwithstanding the vision of the Founder of
the Nation, that "You are free; you
are free to go to your temples.
You are free to go to your mosques or to any other place of worship in this
State of
"It needs to be reiterated that under the
Constitution minorities have a special status. This constitutional status has a
historical background. It would be counter intuitive if the right to freedom of
religion enshrined in Article 20 is interpreted in the manner which has the
effect of encroaching upon religious freedoms of minority religions in
10. The Court
further observed :--
"The spirit of pluralism reflected in the Holy
Quran constantly points out that Muhammad (PBUH) had not come to cancel the
older religions, to contradict their Prophets or to start a new faith. To the
contrary, His message is the same as that of Abraham, Moses, David, Solomon or
Jesus. The cherished goal of creating a more pluralistic society where
fundamental rights are respected would continue to elude us unless we realize
that we are living in a world of globalized interdependence, a world inter
connectivity, of cyber space, of shrunken distances, of across border
migration, and a world of rapidly changing cultural identities. We are all
members of one race of humans with common challenges, and we cannot confront
these challenges without forging a common alliance. This paradigm shift in the
world around us an be achieved at the international
and domestic levels only by discouraging sectarian, racial and ethnic biases
which are violative of shared values and fundamental
rights, and by the promotion of and strict compliance with these value and
rights.[9]"
11. Our
Constitution envisions the
12. The constitutional
pledges and values which I consider to be "conscience of the Court"
would have remained hollow promises signifying nothing to the people if the
Court had not made those provisions relevant for the socio-economic development
of the people.
13. This
expansion of Fundamental Rights jurisprudence has transformed the Supreme Court
from a formal constitutional Court to a Court with a human rights face in which
the essence of constitutional interpretation is people oriented leading to a reconstruction
of judicial power. There are some who describe it as judicial activism. But
this new people oriented profile of judicial power that has begun to emerge is
not unique to our Court. There has been a global trend in most of the
democracies where judiciary has adopted a more people oriented approach and
thereby expanded the frontiers of its judicial authority. Tom Ginsburg[10]
while describing this phenomenon said:--
"We are in the midst of a "global expansion
of judicial power," and the most visible and important power of judges is
that of judicial review."
14. Guarnieri and Pderzoli express
similar views about European countries:--
“The social and political significance of the
judiciary has become a common trait of contemporary democracies: a phenomenon
described as the 'judicialization of politics' ……. Judges
have therefore become almost daily participants in the political process: from
the elaboration of public policies as a result of the interpretation of laws
and the review of their constitutionality, to their implementation by means of
the judiciary's overview of administrative agencies."
15. The
challenges faced by the judiciary during the last few years has
recharged the judiciary and it has emerged as an active pillar of the State. It
marked the beginning of a new constitutional jurisprudence. It has put an end
to constitutional deviations, social role of the rule of law which led to
greater awareness amongst the people of their fundamental rights and the values
of democracy. This change has six distinct facets: first, that mere formal
constitutional legitimacy based on constitutional textual protections cannot
protect judicial independence and power. It is, in fact the 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'. The Supreme Court is 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 in
keeping with the principle of trichotomy of powers.
Third the law may not keep pace with the changing times and may not cater for
every situation. The Court has to bridge the gap between the law and social
dynamics. Fourth, that the Supreme Court may exert its Constitutional authority
to bolster and sustain constitutional democracy and to guard against subversion
of constitutional values while avoiding not only a constitutional breakdown but
also an unseemly clash between institutions. Fifth that it is not sufficient
for a Supreme Court of a complex country such as
its judgments. No democracy can endure if such constitutional
pledges and values do not bring about a positive change in the lives of the
people and a constitutional culture is not nurtured. Such enforcement of laws
and verdicts can promote values of trust and tolerance and thereby affect the
human behavior patterns. As aptly remarked by Martin Luther King Jr.:
"Morality cannot be legislated but behavior can
be regulated. Judicial decrees may not change the heart, but they can restrain
the heartless."
خواتین و
حضرات سپریم
کورٹ کی وہ jurisdiction
ہے جس کی تعیمر
اور نشونما کا
میں حصہ رہا
ہوں۔ آج جب میں
اپنا مقدس
فریضہ مکمل
کرنے کے بعد
اس عدالت سے
رخصت ہو رہا
ہوں تو میرے
جذبات اور
خیالت بہ زبان
شاعر کچھ یوں
ہیں۔
مانا کہ اس جہاں کو
گلستان نہ کر سکے
کانٹے
تو کچھ ہٹا
دیے گزرے تھے
ہم جہاں سے
16. Before parting I may add that I would be remiss if I do not
place on record my appreciation for the Hon'ble Chief
Justice (Designate) Mr. Justice Nasir-ul-Mulk for his
competence, balanced approach and profound knowledge of law. I trust he along
with other worthy colleagues would continue to uphold the mandate of their Oath
with equal courage, zeal and determination.
17. The Court is much more than its
Judges. Without the assistance of our Court Staff, tip staves, Registrar, administrative
staff and Court officers, we Judges would be quite incapable of administering
justice. I wish to record my deep appreciation for their work and assistance.
They have done so much to help me particularly in the final months. I thank my
Registrar Tahir Shahbaz,
Secretary Muhammad Hamid Ali who have been with me
though for a short stint but would always value their hard work and
conscientious assistance. I also thank my Private Secretaries, Khurram Anees and Khurram Shahzad who have worked
with me the longest than any other member of my staff. I commend their
integrity, dedication and commitment to their job.
18. My family is the most important thing in my life. My wife,
my children Muhammad Saqib Jillani,
Muhammad Adil Jillani, Muhammad
Ali Jillani, my daughter and my son in law Zibber Mohyuddin gave me great
satisfaction. I saw my children maturing, coming of age and making their contribution
in the respective fields. I would particularly thank my wife for her warmth and
for enabling me to attend to my professional duties unhindered, sometimes at
her expense, for her deep sense of compassion and concern for others.
Thank you again.
Long live
[1]. General
(R) Pervez Musharraf v. Nadeem Ahmed Advocate (2014 SCMR 665).
[2]. 2012 SCMR 6.
[3]. PLD 2007 SC 394.
[4]. PLD 2007 SC 323.
[5]. Cutting of Trees for
Canal Widening Project 2011 SCMR 1743.
[6]. Civil Appeals No. 38 to 45 of 2014.
[7]. Presidential Address of Quaid-i-Azam Muhammad Ali Jinnah to the Constituent
Assembly of
[8]. S.M.C. No. 1 of 2014 (Suo moto actions regarding suicide bomb
attack of 22.9.2013 on the Church in Peshawar and regarding threats being given
to Kalash tribe and Ismailies
in Chitral).
[9]. Ibid 1.
[10]. Tom Ginsburg, Judicial Review in New
Democracies: Constitutional Courts in Asian Cases,