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Supreme Court of Pakistan issues Press Note

Islamabad:
My brother Judges of the Supreme Court;

Honourable Chief Justice, Supreme Court of Azad Jammu and Kashmir

Honourable Chief Justices and Judges of the Federal Shariat Court, High Courts of Provinces, Islamabad High Court, and High Court Azad Jammu and Kashmir

Honourable Chief Judge Supreme Appellate Court Gilgit-Baltistan and Chief Judge Gilgit Baltistan Chief Court

Worthy Vice Chairmen and Office Bearers of Pakistan Bar Council and Provincial Bar Councils;

Learned President and office bearers of the Supreme Court Bar Association;

Learned Members of the District Judiciary;

Learned Attorney General for Pakistan and Learned Advocates General of the Province;

Presidents and office bearers of the High Court and District Courts Bar Associations;

Eminent Delegates from foreign countries,

Learned Advocates of Supreme Court and High Courts;

Distinguished guests;

Ladies and Gentlemen!

Assalam-o-Alaikum!

It is an honour and privilege to address such a dignified gathering of distinguished luminaries of the justice sector from within Pakistan and abroad. I am pleased to welcome the participants from all walks of life, and in particular the international delegates, who have taken the trouble of undergoing the hassle of long journeys and adding varied colours to the blooming spring of Islamabad, the capital of Pakistan.

Before proceeding further, I may draw your attention to a recent tragedy suffered by our nation in Siachen Glacier, the border line between Pakistan and India. The altitude of this glacier is between 6000 to 7000 metres above sea level, which remains under constant snowfall. Unfortunately, during the last week Pakistan Troops, about 139 in number, were trapped in the avalanche, whose whereabouts and well being are not known so far. Our forces are diligently carrying out the rescue operation. I request the audience to join with me in praying to Allah Almighty for the safety and early recovery of those soldiers. Ameen!

Undoubtedly, the world has changed. It has turned into a global village and most of the countries have joined hands to cooperate with each other in various fields to their mutual advantage. There is room for the stakeholders of the justice sector as well, to sit together and explore the possibilities of benefiting from the knowledge and experiences of each other. I am confident that this Conference will provide a platform to all stakeholders of the justice sector to review, debate and resolve issues being faced in the administration of justice in the light of their rich knowledge and experiences.

Pakistan is a democratic country but unfortunately our history is stained with unconstitutional mishaps. Since 1953 till the 3rd November, 2007, time and again the constitution was abrogated in the name of Martial Law or proclamation of emergency. Except in 1972, in Asma Jillani’s case 1], the Courts generally validated the unconstitutional actions of usurper on technical grounds or point of facts. However, the judiciary, on 3rd November, 2007 has ensured the enforcement of the Constitution and the rule of law in the country by delivering a fourteen-member Bench judgment on 31st July, 2009 in Sindh High Court Bar Association’s case 2]. On the said date, General Pervez Musharraf, the then President of Pakistan and also the Chief of Army Staff promulgated the Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007. By Proclamation of Emergency, General (R) Pervez Musharraf imposed emergency throughout Pakistan and held inabeyance the Constitution of 1973.

The Chief Justice of Pakistan constituted a Bench of available seven Judges of the Supreme Court, which passed a restraint order in Wajihuddin Ahmed’s case against the above instruments and measures and directed, inter alia, the Judges of Supreme Court and High Courts not to make oath under PCO or any other extra-constitutional instrument. However, certain Judges of the Supreme Court including Chief Justice of Pakistan were put under house arrests. Immediately thereafter, General Pervez Musharraf purportedly made the appointment of Justice Abdul Hameed Dogar, J, as the Chief Justice of Pakistan. Some of the Judges of superior Courts, despite the restraint order took oath under the new dispensation.

The events triggered by the 3rd November, 2007 action of a military dictator, the resistance of the Hon’ble Judges, the historic movement of learned lawyers’ community, watchful media, informed civil society, marked a watershed in the political and the constitutional annals of Pakistan. As a result of heroic efforts of the lawyers’ community well supported by the other segments of society, the judiciary was restored and the judges, who were made dysfunctional, were allowed to continue to work. After the restoration of judiciary, the people of this country were looking towards the judiciary to take such steps which will close the door for any intruder to step in and abrogate the Constitution.

In the meantime, the vires of proclamation of Emergency, PCO and Judges Oath Order 2007 were challenged before the Supreme Court examined and found to be contrary to the provisions of the Constitution, were challenged. The Court not only declared all such extra-constitutional instruments to be unconstitutional, illegal and ultra vires of the Constitution and consequently of no legal effect also declared General (R) Parvez Musharaf to be a usurper and appropriate action against him is likely to take place.

Besides, the role of Parliament was not only appreciated for not endorsing the extra-Constitutional actions of the former dictator but had also itself looked towards the Parliament to establish its authority by legislation in respect of the Ordinances/instruments which were issued or protected during the extra-Constitutional period. It was observed that it is, however, quite heartening that, for the first time, in the history of our beloved country, the chosen representative of people, who took their offices as a result of election taking place on 18th February, 2008 have, commendably, stayed their hands off and have not sanctified the unconstitutional acts, ….

This judgment has not only imposed restriction on the dictators but the members of the judiciary have also been restrained from providing protection to the unconstitutional acts of the usurpers by taking oath under any unconstitutional instrument. The Judges, who violated the order of 3rd November, 2007 were dealt with and it was observed that the Judges who were sitting Judges of the High Courts violated the order dated 3rd November, 2007 paged by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, which was enforceable and binding upon them under Articles 187, 189 and 190 of the Constitution, particularly after it had come to their notice through the electronic and print media, or through the respective Registrars, and thus rendered themselves liable to action under and in accordance with the Constitution. Similarly, all the appointments of Judges of the Supreme Court and High Courts made in consultation with him during the period from 3rd November, 2007 to 21st March, 2009 were declared to be unconstitutional, illegal, void ab initio and of no legal effect. The decision naturally had far sighted implications. The Court decided to add a new provision to the Code of Conduct for Judges of the Superior Courts, preventing them from taking oath under any unconstitutional instrument.

In persuation of said order the proceedings for contempt of court were initiated against Judges, who violated the order of 3rd November, 2009. Most of the Judges resigned from their offices and tendered unconditional apology as such the proceedings for contempt of Court were dropped against them, however, those who opted to contest the case are still facing the trial.

Ladies and Gentlemen!

The free, fair and impartial dispensation of Justice is a key principle of Islamic system of governance. It is not merely a theory but covers all the practical aspects and dimensions of day to day life. It is a divine duty, which requires devotion and sincerity to meet the ends of justice in accordance with dictates of the Supreme Lawgiver. The ultimate object of justice is to ensure equanimity, peace, tolerance and contributing to the welfare of human beings. The Holy Quran says:

“O you who believe! Stand out firmly for Allah as just witnesses; and let not the enmity of others make you avoid justice. Be just: that is nearer to piety; and fear Allah. Verily Allah is Well Acquainted with what you do.” 3]

The teachings of the Holy Quran and Sunnah of the Prophet (P.B.U.H) are duly incorporated in the laws and Constitution of the Islamic Republic of Pakistan. The onus of expeditious and inexpensive justice lies on the State and its organs, although, judiciary is pivotal institution, which has to play its part, but it needs the proactive support and cooperation of other State institutions.

We strongly believe that Judiciary must be characterized by equality, fairness and integrity in its objective of dispensing justice, as the work of judiciary is a critical element in the good governance of a state. Expeditious and inexpensive dispensation of justice is the mandate of the Constitution. It is the first priority of judiciary and that’s why efforts are being made to improve the performance of justice sector institutions. Nevertheless, every system has potential for reforms and improvement to keep pace with the changing times and emerging realities.

This is done partly through the process of exchanging views, sharing ideas and learning from each other’s experiences. We are mindful of this process and for this reason; all the stakeholders of justice sector are regularly taken on board either through Judicial Conferences or by taking up their suggestions in the meetings of National Judicial (Policymaking) Committee to further improve the process of administration of justice.

It may be of interest to the audience to know that the last year’s Judicial Conference proved highly productive and useful event, due to the active participation of all the stakeholders of the justice sector including academia, scholars, jurists, lawyers, and others. It was unique in the sense that media persons, litigants and prisoners were also invited to attend the Conference and share their experiences to develop a workable mechanism to further improve the performance of administration of justice.

I take pride in sharing with you that the Judicial Policy largely incorporated the letter and substance of recommendations of the working groups in the Conference and improvements were made in the trial procedure including non-submission of challan, defective investigations, non-production of undertrial prisoners and other issues having direct bearing on the administration of criminal justice system. Stringent steps were adopted to curb the menace of corruption which included the following:-

1. Judges/Judicial officers be required to declare their assets and that of their dependants at the time of their induction and thereafter on annual basis.

2. To curb the malpractices and corruption of courts staff, Munshi/clerks of the lawyers and touts, a “Committee” headed by the District and Sessions Judge and President District Bar Association should be formed to entertain complaints against corrupt officials for taking action against them under the Law.

3. Only authentic complaints duly supported by substantive evidence should be considered for action and in case of false accusation the complainant should be taken to task for maligning the judiciary.

4. Installation of CCTVs in the court premises to enhance the surveillance mechanism for curbing corruption.

These measures were added to the National Judicial Policy and enforced. As a result, disciplinary proceedings were initiated and punishments administered to scores of judicial officers and court staff.

Amicable resolution of disputes is a desirable objective of the administration of justice, permissible by law and strongly recommended by the injunction of Islam. The delay in the delivery of justice not only causes agony and suffering to litigants but also adversely affects the socio-economic activities in the country. The alternate to the formal system of administration of justice is system of Alternate Dispute Resolution. It provides justice in less formal yet efficient manner. This system of dispute resolution has earned great recognition all over the world. Keeping in view the potential in delivering inexpensive and expeditious justice, the system of ADR has been introduced in Pakistan in a codified form. Although this is passing through an evolutionary process, yet the results are encouraging. Our predominant adversarial culture, demands for the introduction of new ways and means to create public awareness, acceptability and confidence for promotion of ADR mechanism. Judges should also be educated regarding this newly emerging mechanism. Conscious of the role of ADR in expeditious justice, the Presiding Officers were directed to strive at every material stage of the proceeding to induce, in a very non-intrusive manner and subject to the consent of the parties to settle their disputes through ADR without wasting time and money on protracted and contested litigation. The Courts are encouraged to apply the Small Claims and Minor Offences Ordinance 2002 and other enabling provisions in law. To be effective, the Bar members need to extend helping hand in the process by bringing about awareness and encouraging their clients to avail the option.

In the light of recommendations of the Conference, the NJPMC took serious note of the pitiable conditions of jails and the prisoners. The concerned authorities were directed to focus on improving the living conditions of the prisoners and also extending them moral and spiritual guidance and making efforts for debriefing of prisoners, especially those involved in terrorist activities, sectarian killings, etc. by availing the services of religious scholars and spiritual leaders and by providing books and other recreational and instructional material for the prisoners.

The jail authorities were directed to carry out the exercise of screening of HIV Aids and Hepatitis cases so that the infected prisoners could be segregated from others and proper medical treatment may be provided to them. Let me share with you; the results were highly encouraging, the authorities were asked to immediately provide medical treatment to the infected prisoners and it was further resolved that henceforth no blood should be provided to blood banks or to any organization without complete screening. It was further resolved that before distributing blood the Medical Officer of the jail should issue a certificate to the official that the donated blood is free from all kinds of diseases and the officials found violating the instructions should be taken to task.

Ladies and gentlemen!

This year we have moved a step farther by making the National Judicial Conference an international event. I am confident that valuable contribution by our distinguished international guests will greatly help in formulating and adopting an effective Judicial Policy for administration of justice because we firmly believe that in determining a nation’s rank in a political organisation, no test is considered more decisive than its administration of justice, for it has been conceived as one of the firmest pillars of any government. A state may not be called a state in its true sense, if it has failed to discharge its functions concerning the administration of justice. Life would be meaningless in a society which does not preserve the rights of men or which does not prevent or undo injustice.

The law and order within the state is maintained through the administration of justice and the citizens are made to realize the existence and the importance of the state. The administration of justice in reaching its present form has passed through various stages. The traditional concept of administration of justice has gone a radical change. It includes a positive content. Social justice is becoming an integral part of administration of justice.

The concept of social justice is the yardstick of the justice administration system or the legal justice. The greatest virtue of law is in its adaptability and flexibility and thus it would be otherwise an obligation for the law courts also to apply the law depending upon the situation since the law is made for society and whatever is beneficial for the society.

The people of Pakistan believe in the rule of law, that they stand for guaranteeing and safeguarding fundamental human rights of all men and women, wherever they may be. The instant International Judicial Conference being held in Islamabad is aimed at spreading the above message to the international community and to advance the cause of peace, progress and prosperity of mankind by sharing knowledge and expertise with the other stakeholders from across the globe for our mutual benefit so as to lead the humanity to a culture of tolerance and harmonious co-existence.

Unfortunately, the people of Pakistan have been victim of terrorism for the last many years. Be that as it may be, all the institutions of Pakistan have risen to this challenge and taken steps in the form of legislative and other measures to combat the menace of terrorism. In this behalf, Speedy Courts for expeditious trial for criminals involved in terrorism were established where such cases are decided on fast track basis.

Ladies and gentlemen!

The theme of the International Judicial Conference, 2012 is “THERE IS BUT ONE LAW FOR ALL” and I am sure if this principle is adopted and applied in true letter and spirit, we can achieve the goals of good governance, democracy, social justice and the rule of law. Article 25 of the Constitution of Pakistan enunciates that “all citizens are equal before law and are entitled to equal protection of law”.

The concept of rule of law is deeply linked to the principle of justice, involving an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs; independence of the judiciary and the role of judicial process as fundamental characteristics of the rule of law. In the words of Justice Felix Frankfurter:-

“There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”

An independent judiciary is essential to maintaining the rule of law. Judges should not be pressured by a political party, a private interest, or a popular opinion when they are called upon to determine what the law requires. Keeping the judiciary independent of these influences ensures that everyone has a fair chance to make their case in court and that judges will be impartial in making their decisions. Judges also must explain their decisions in public written opinions, and their decisions can be appealed to a higher court for review. Let me quote here Lord Bryce who has explained the object of administration of justice in the following words:-

“There is no better test of the excellence of a Government than the efficiency of a judicial system; for nothing more clearly touches the welfare and security of the average citizen than the feeling that he can rely on a certain and prompt administration of justice.”

The administration of inexpensive, unbiased and fair justice leads the society to a civilized form of governance. Equality, impartiality and integrity in dispensation of justice are vital elements for the good governance of a state. Good governance leads to the maintenance of peace, tranquility and nitty gritty of socio-economic activities. The law has assigned a very important but delicate responsibility to the judiciary to maintain rule of law and constitutionalism, which is the corner stone of good governance.

Judicial education among the judges contributes towards improved delivery of justice and strengthened legal system. In-depth understanding of law is one of the traits of a competent judge. A judge well versed in theoretical and practical knowledge of law has the capacity to decide cases pending adjudication before him more prudently, fairly and orderly. The quality of a judgment is directly influenced by the legal acumen, caliber and the understanding and application of law of the presiding judicial officer.

When we talk of improving quality of dispensation of justice by inculcating competency and professionalism in the members of the judiciary, be they Judges or the courts staff, it is necessary that the problems faced by them in their daily life be also taken into consideration and an effort made to address the same, so that they are relieved of the difficulties faced by them and enabled to concentrate upon their work with greater devotion and commitment.

It may be of interest to the audience that in Pakistan various steps were taken from time to time to enhance the remuneration/emoluments of the Judges and the members of the staff of both the superior courts as well as the District Courts. In the year 1995, the then Chief Justice of Pakistan and the then Chief Justices of the Federal Shariat Court and the four Provincial High Courts agreed to create a welfare organization under the name and style of “Al-Mizan Foundation”, which was got registered under the Societies Registration Act, 1860.

The object of the Foundation is the welfare of the beneficiaries, and to establish, run and set up organizations, institutions and projects for the said purposes. The beneficiaries of the Foundation are such citizens of Pakistan who have served in the superior judiciary of Pakistan or who have served or are serving in the District Judiciary in the country or in the establishments of the Supreme Court, Federal Shariat Court, High Courts or the District Courts and shall also include dependents of aforesaid persons and dependents of all deceased beneficiaries.

The Foundation is administered and managed by a Committee, which consists of six members, each nominated by the Chief Justice of Pakistan, Chief Justice of Federal Shariat Court and Chief Justices of the High Courts. A Welfare fund has been established and maintained by the Foundation, out of which lump sum grants or interest-free loans returnable in easy installments are granted to the needy employees.

Today’s globalized world is undergoing a transition due to advancement in information technology and resulting faster growth of knowledge. So, the judges have to be expert in diverse fields, including international and national laws, cyber crimes, information technology, etc. The dynamism of law allows it to change its course with the flow of time. This dynamism also renders the laws outdated and opens up gates for innovation and alterations.

The orientation programmes, courses, seminars and conferences are effective tools for creating awareness among the judges. Keeping this very important aspect in view, judicial academies have been established at the Federal level and provincial headquarters to impart legal and judicial education to the judges.

The role of the Federal Judicial Academy, being an axis of Judicial Education and a nursery of inter-provincial harmony in Pakistan, has been revamped. It would be working as a podium for interaction among the Provincial Judicial Academies and extending its linkages with the state-of-the-art training institutions at the regional and international level.

To achieve the aims and objectives of its creation, phase–II expansion of the Academy has been launched to shape and convert it into a Center of Excellence that apart from regular training and education for justice sector will also provide teaching for awarding L.L.M and Ph.D. degrees in the field of law, justice, court administration, etc. The modern and complex issues of diverse nature can only be solved by competent and well educated judicial officers.

The increasing international interactions are not restricted to the field of economic cooperation and business activities. The issue of child custody and parental child abduction also pose a challenge. The abduction at times is across borders. Especially, the parental child abduction cases is a growing tendency.

These serious and complex issues of private international law require immediate attention to safeguard the family life of the citizen and welfare of the minor as well. Being conscious of this situation, the international community established processes and procedures for mutual legal assistance in restoring the custody of children to the deserving parent or party. There also exits a protocol between Pakistan and UK regarding return of abducted children.

Environment is a trust and legacy of the inhabitants of the universe. We have to evolve a universal mechanism for making the environmental laws more efficient and practicable at national and international level. This crucial issue can adversely affect flora and fauna and the ecosystem. The universally accepted right to life is directly related with the preservation of clean environment. The courts all over the world are conscious of this fundamental right of existence.

Whenever such issues of public importance come before our courts, we are liberal in interpretation of such rights e.g Supreme Court of Pakistan in Shehla Zia’s case held that the word ‘life’ used in the Article 9 of the Constitution of Pakistan, 1973 did not mean, nor could it be restricted to the vegetative or animal life or mere existence from conception to death, rather life should be given a wide meaning covering all facets and aspects of human existence. 4] This was followed by many other verdicts wherein the scope of right to life was further expanded.

As we know that all the fundamental rights are equally available to all citizens irrespective of any consideration of colour, culture, creed or gender. Both the genders mutually form the fabric of the society. Reportedly, women across the world are facing violence and oppression even belonging to the most developed countries.

The Constitution of Islamic Republic of Pakistan 1973 also guarantees the equality of women and manifestly mentions in Article 25 that “there shall be no discrimination on the basis of sex”. It also mandates the State to take positive measures for the protection of women. Various legislative measures have been taken from time to time to address the issue of gender bias and women protection; however, we see that social evils of domestic violence, honor killings, forced marriages, sexual harassment, biased jirga decisions, acid and oil burning, etc., are still rampant.

The role of judiciary in protecting and enforcing the basic rights and equality of status of women is no doubt commendable. However, judicial empathy and awareness about the gender issues needs further analysis through critical examination of prevalent laws and regulations, thus setting guidelines and precedents for future legislative amendments.

The legal and judicial system is constantly exposed to new complex and multidimensional challenges. I hope that you will have purposeful and productive discussions and deliberation during the coming two days and come out with viable and practical recommendations for reform of law and modernization of the judicial system. The outcome of this conference certainly will help us to meet those challenges.

In the end, while I congratulate the organizing Committee comprising Mr. Justice Mian Shakirullah Jan, Mr. Justice Tassaduq Hussain Jillani, Mr. Justice Nasir-ul-Mulk and Mr. Justice Jawwad S. Khawaja; Dr. Faqir Hussain, Registrar Supreme Court of Pakistan with members of Supreme Court Staff, Sheikh Habib-ur-Rehman, Secretary, Law and Justice Commission of Pakistan and his staff members, and Mr. Muhammad Ali Gardezi and his team members, for congregating all components of the judicial tiers, including judges, scholars, academia, members of bars, representatives of civil society organization and others, and making this international event a success. I once again thank the participants for attending the Conference.

THANK YOU!

For more information, contact:
Shahid Hussain Kamboyo
Public Relations Officer
Supreme Court of Pakistan
Tel: +9251 920 4184
Fax: +9251 920 1001
Email: pro_scp@yahoo.com

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