Islamabad, December 01, 2012 (PPI-OT):
My brother Judges of the Supreme Court of Pakistan;
Hon’ble Chief Justice and Judges of High Court of Sindh;
Learned Members of the Bar;
Ladies and Gentlemen:
It gives me immense pleasure to be here to mark the launching of a book, compiled and published in the memory of Mr. Justice Sabihuddin Ahmed, an eminent scholar, jurist and humanist. The book titled:
“Law in a World of Change
Selected essays in the memory of Justice Sabihuddin Ahmed” is a timely and befitting tribute to an icon of the bench–bar community. Let me acknowledge and laud the hard work done by the editors of the book namely Barrister Kazim Hassan, Barrister Nausheen Ahmed, Ms Sanaa Ahmed and Barrister Salahuddin Ahmed in bringing out the edition. This volume of essays has been contributed by eminent scholars ranging from the judges of the Supreme Court of Pakistan to practicing lawyers, academicians and human rights activists, both from Pakistan and aboard.
This volume seeks not only to pay tribute to Justice Sabihuddin Ahmed about how he had influenced Pakistani jurisprudence but also advanced the march for much needed legal academic discussions and debates in Pakistan, covering issues like independence of judiciary, doctrine of basic structure under Constitution of Pakistan, post-2007 transformation and future course of the Supreme Court of Pakistan, dawn of constitutionalism in Pakistan, reformatory concept of punishment in the administration of justice and judicial activism and restraint. I would like to express my gratitude to the contributors namely Mr. Justice Tassaduq Hussain Jillani, Mr. Justice Asif Saeed Khan Khosa, Mr. Justice ® Rahmat Hussain Jafferi, Mr. I.A. Rehman, Mr. Khalid Jawed Khan, Mr. Babar Ayaz, Mr. Babar Sattar, Mr. Zain Shaikh, Mr. Hamid Khan, Mr. Khalid Anwer, Mr. Martin Lau, Mr. Abrar Hasan and Mr. Basil Fernando.
Wisdom and intellect oozed out of the thoughts and experiences of Mr. Justice Sabihuddin Ahmed. He was indeed a born intellectual. His grandfather Salahuddin Ahmed is one of the revered names in the history of Urdu literature. Under the tutelage of his learned grandfather he soaked himself in literature in his early years. He started his legal career under one of the leading lawyers; his maternal uncle Khalid Ishaq. It is one of the reasons that at very tender age he comprehended the applicability of law in the social change.
This relation of application of law later fully permeates his writings and judgments. The book in hand titled “Law in a World of Change” itself envisages the philosophy of Justice Sabihuddin, who endeavoured to explain and interpret the law in keeping with requirements of ever-changing world. To him law should be an instrument for empowering marginalized and downtrodden sections of society which he had consistently advocated through his judgments. Justice Sabihuddin prior to joining the bench was a human rights champion and remained associated with human rights bodies. He argued for a new dimension of rule of law and articulated that rule of law and justice are not only the attributes of civilized society but more importantly they are inalienable rights of the people.
Ladies and Gentlemen:
Before dilating upon the contribution of other authors in this volume, I would like to allude to one of the masterpieces: a legal essay of Mr. Justice Sabihuddin titled “Equality Amongst Unequal: the Power of Pakistani Courts to Enforce Fundamental rights” which is published in this volume. Justice Sabihuddin with compelling logic articulated the extension of human rights when he wrote: “Constitutionally guaranteed fundamental rights, as contained in our constitution, are not mere limitations on state power but contain positive commitments which have to be made real and meaningful to the people by the agencies required to enforce them”.
Similarly, he urged upon the courts for the enforcement of fundamental rights in following words: affirmative action for improving the conditions of women and other disadvantaged sections of society is not the sole responsibility of the legislature. The Courts under their jurisdiction to enforce fundamental rights also have a duty not merely to strike down laws and orders repugnant to these rights but also to issue directives of a quasi-legislative nature for making such rights effective and meaningful.”
Justice Sabihuddin Ahmad eloquently elucidated in this essay the power of the Supreme Courts of United States and Pakistan in enforcement of fundamental rights under their respective constitutions. He expressed that the enforcement of fundamental rights under US Constitution positively vests with the Congress.
The Supreme Court can strike down the laws and declare them repugnant to the Constitution through the exercise of its power of judicial review. Thus the Supreme Court is only concerned with the negative or prohibitory aspect of the fundamental rights. The power to positively enforce fundamental rights has been conferred by the Constitution of Pakistan upon the Supreme Court and High Courts under Articles 184(3) and 199 of the Constitution.
The finest characteristics and best qualities of Justice Sabihuddin Ahmed are well illustrated by certain writers of the book. Mr. Khalid Jawed Khan in his essay “Messiah for the distressed” fortifies the philosophy of Mr. Justice Sabihuddin Ahmed in a more lucid manner. I would like to read some of his comments: “There were certain principles of morality and law which were deeply ingrained in the heart and mind of Sabihuddin Ahmed, the jurist and the human being. ….He had an instinct for fairness, or more accurately a distaste for unfairness. While other men divide their lives between work and pleasure, for him law provided both….
This was the result of a life nurtured and lived well. His words and deeds were always at par, the latter invariably reflecting the former. He was incapable of being unjust or iniquitous. He never nurtured any spite or grudge against anyone even when amply warranted. This is the way the Almighty had created him and he never defied or deviated from his creator’s design. His unflinching commitment to the rule of law left no room for capricious or whimsical decision-making by the repositories of public power. Thus, he profoundly abhorred arbitrariness in the exercise of public power. Nothing could annoy or disturb him more than the abuse or misuse of public power which he always equated with sacred trust…..While Justice Sabih was bold and liberal by instinct, it was not the boldness of an ideologue with all sail end and no anchor. He possessed a highly complex mind and a sharp intellect which did not permit strait-jacketing of his jurisprudence. While extremely liberal where human rights and human dignity were at stake, he was essentially a conservative in fiscal matters…His equity was always anchored in settled principles of law.
He had profound regard and respect for the democratic process and legislative enactments as well as binding judicial precedents. Indeed, to invite his lordship to strike down a statutory provision or to ignore some binding judicial precedent always met stiff resistance, if not a rebuke. Yet his sharp and fertile mind would not let the wrong go remediless nor allow the dead hand of past to block progress. Where he would not strike down the law, the objective was achieved by reading it down. His razor-sharp intellect enabled him to glide through the thicket of anachronistic precedents without manifest disobedience to those precedents.”
Similarly, Baber Ayaz in his essay Justice Sabihuddin Ahmed : A Sage Judge expresses the legal acumen and the vision of Sabihuddin in the following way:
“His habit of thoroughly analyzing each proposition made him one of the fine legal brains of the country. Most senior lawyers and judges of the superior courts accepted him as a leading authority on the constitution of Pakistan…He was always concerned about the rights of the have-nots. But he was not prone to any grandiose visions about the role of the judiciary nor to any delusions of self importance. He said to me, with his customary humility, “I think of I can – in a whole day – grant bail or some relief to even one poor man held without any charges, I have done my job and made a small contribution in providing justice to people who have nowhere to go”. It was perhaps his humility and love for humanity that made him so loveable.”
Undoubtedly being a part of Judiciary is a great honour but at the same time it carries huge responsibility to adjudicate cases fairly and justly. It is a sacred obligation. The Holy Quran and Sunnah have greatly emphasized the performance of this obligation. Justice Sabihuddin Ahmed had positively followed this divine order. Mr. Justice Sabihuddin Ahmed in his entire judicial career demonstrated the four attributes of judge stipulated by Socrates i.e. “to hear courteously, to answer wisely, to consider soberly and to decide impartially”. Being a member of the bench, Mr. Justice Sabihuddin Ahmed had produced some significant judgments reported in various law journals which are ever lasting tribute to his learning and acumen. His contributions to the cause of justice will serve as guideline for those who are associated with administration of justice. I would like to refer to some of his judgments:
In the case of Human Rights Commission of Pakistan vs. Government of Pakistan1, one of the agriculturists had moved the Court alleging that a large number of people having obtained loans from zamindars and having contracted to render services being otherwise bound to do so under Sindh Tenancy Act, 1950 were misusing the provisions of section 491, CRPC to avoid repayment of the loans or to render services in accordance with the Tenancy Act and the contracts voluntarily entered by them.
On the other side several individuals alleged to be unlawfully detained by different land owners and subject to forced labour in violation of the fundamental rights guaranteed to them and the law included in the Bonded labour System (Abolition) Act, 1992. The Court through Justice Sabihuddin Ahmed in this landmark judgment held:-
“(i) that the Bonded Labour System (Abolition) Act, 1992 not merely ensures that no fetters on the workers rights guaranteed under Articles 11, 15 and 23 are placed, even through voluntary agreements but also wipes out any financial liability that the worker might have incurred on the basis whereof such fetters have been imposed;
(ii) That the provisions of the aforesaid Act are also applicable to all persons employed in agriculture other than those enjoying rights as tenants under the Sindh Tenancy Act;
(iii) That the above however does not mean that no credit could be advanced by an employer to his employee but only that a condition making the employee subject to the Bonded Labour System cannot be imposed. In cases of debts not accompanied by any condition which makes an employee a bonded worker under the Act, may be enforceable through ordinary legal channels;
(iv) That even the Sindh Tenancy Act does not empower a landlord to require a tenant to work on his lands against the latter’s will. The only consequence provided for a refusal on the part of the tenant is forfeiture of his tenancy rights on grounds of abandonment etc. and through mechanism provided for in section 23 of the Act;
(v) That even an undertaking by a tenant to work without remuneration or for remuneration less than the amount stipulated in section 22(2) would be unenforceable;
(vi) Section 25 of the Sindh Tenancy Act stipulates a mechanism for appropriation of a debt from a tenant to his landlord. Subsection (4) only stipulates that upon termination of a tenancy the entire outstanding amount of the debt would be recoverable notwithstanding the provisions relating to appropriation through the normal legal channels;
(vii) That in cases where wrongful detention or forced labour is complained of the onus to prove that the person detained was a tenant would lie on the landlord. The person detained would nevertheless invariably be entitled to restoration of his liberty and the freedom of his movement and the only difference would be that in the event of proof of his tenancy, the landlord would be entitled to recover the debt through normal legal channels;
(viii) that in a petition under Article 199(1)(b)(i) of the Constitution or section 491, Cr.P.C. it is the duty of the court to satisfy itself that a person allegedly deprived of his liberty is detained under some authority of law;
(ix) that there is no requirement of law that stricter scrutiny of, a petition regarding detention in private custody is to be made before issuing appropriate directions. Nevertheless in cases where the right to keep a person in private custody is claimed’ on the basis of some authority in law, the court may require that such right be adjudicated upon in properly held proceedings before the appropriate forum before issuing directions under section 491, Cr.PC.; and (x) the Jurisdiction of superior courts to enforce fundamental rights under Article 199(1)(c) of the Constitution is not merely exercisable against persons performing functions in connection with the affairs of the Federation or Province :or a local authority but against any person or authority including a Government. Some of the fundamental rights by their very nature may be impaired by private persons and there is no embargo on the powers of the High Court to issue such direction as may be appropriate for enforcement of such rights.”
In the case of Mehmoodul Hassan khan vs. Dow University of Health Sciences2 he beautifully interpreted certain provisions of the Citizenship Act and drew a fine distinction between ‘domicile’ and ‘permanent residence’ for enabling the petitioner to seek admission in a medical institution. He had no leniency for the holders of public offices whenever the matter involved negligence and irresponsibility on their part.
The case of Salman Adil Siddique vs. Province of Sindh3 is a classic example wherein he directed the concerned public authority to issue appointment letters to various lecturers who had been waiting since long due to laxity of public functionaries. His judgment in Dr. Inayatullah Khilji vs. 1st Additional District and Sessions Judge4 comprehensibly defines the role of a Justice of Peace under the criminal justice system.
As an ardent campaigner for fundamental freedoms, he argued many cases before the High Court in defence of civil liberties. In 1989, the Chief Justice of the Sindh High Court invited him to assist the Court as amicus curiae in a landmark case popularly known as the ‘bar-fetters case’ wherein the court decided inter alia, the scope of its suo moto jurisdiction; the rights of prisoners under trial; the reservation of juvenile inmates to specifically designated juvenile detention centres; and the unconstitutionality of certain provisions of the Prisons Act and Rules contra the Right to Dignity guaranteed by the Constitution under Article 14. Consequentially, broad based reforms were directed to be made in all prisons across the province for the safeguard of the fundamental rights of prisoners.
After being elevated as judge of the High Court, he seized every opportunity to recognise the inherent inequality of individuals in society and develop the interpretation of the law in order to ensure egalitarianism. While his jurisprudence was result-oriented, it always produced results according to the spirit of the law in its entirety. His high regard for democratic norms and judicial precedents proved that it was never easy to convince him to overturn a statue or precedent. However, he would not let the dead past stop the achievement or progress or turn away a wronged victim remediless. His legally astute mind would always find a way to deliver justice in light of the law. Where he did not strike down a law, he would read it down.
As a renowned and time-tested jurist he set a great example to follow for activists, lawyers and judges in the future to make the law a bastion of human rights and freedoms in any society. Reference to his jurisprudence will always prove that the rule of law and Constitution are sufficient support for the achievement of an egalitarian order in our socio-economic, political and human spheres of life.
Justice Sabihuddin regarded his judicial service as a sacred trust of the people and for the people. His anthropological perception led him to deal with cases not in the formal manner but as a human being who joined service for a cause; and that cause was to fight for the betterment of his fellow human beings through the force of his pen. Where he could not find direct legislation for the solution of a legal controversy he used to extend the principles of natural justice. His aim was not to earn applause from the legal fraternity and civil society but to do complete justice.
He built his constituency of justice within the constitutional framework; where he remained true to the faith and trust reposed by the public in him. The words of Jesse L. Jackson, former US Shadow Senator are perhaps equally true for Justice Sabihuddin Ahmed, “My constituency is the desperate, the damned, the disinherited, the disrespected, and the despised. They are restless and seek relief…
They have invested faith, hope and trust that they have in us.”
Ladies and Gentlemen:
He left a profound impact on the jurisprudence of this country. His presence will always be longed for but his compassion and the commitment to his noble cause shall live on in our hearts. The early departure of Mr. Justice Sabihuddin Ahmed from this world is yet a reminder to us that the stay in this world is temporary. Human beings are here in this world for very limited period of time and sooner or later we all shall depart from this world. May Allah rest his soul in Heaven in peace. At the end I would like to congratulate and express my gratitude to all the contributors and my special thanks once again to the editors for their devoted stewardship of this remarkable effort and dedicated this book to Late Justice Sabihuddin Ahmed.
For more information, contact:
Shahid Hussain Kamboyo
Public Relations Officer
Supreme Court of Pakistan
Tel: +9251 920 4184
Fax: +9251 920 1001