Chief Justice Iftikhar Muhammad Chaudhry has said that if the institutions work within their limits, it would bring stability to the country.
Addressing to the audience of National Defence University on Saturday
Chief Justice (CJ) Iftikhar Muhammad Chaudhry said that the court
cannot endorse the unconstitutional rights of any institution.
Therefore, any step taken by the armed forces without the federation’s orders would be considered unconstitutional.
Therefore, any step taken by the armed forces without the federation’s orders would be considered unconstitutional.
Chief Justice Iftikhar Muhammad Chaudhry further said that any
unconstitutional action by the armed forces is considered a revolt and
Article 6 is valid for any such institution that violates the
constitution.
He said that in future no judge will be sworn in under the PCO and that amendments have been done in the judges’ code of conduct
CJ said that it gives me immense pleasure to address such a
distinguished community of officers, civil and military, who having been
successful in their careers, are now set to take up more important
positions.
CJ said that it is also gratifying to note that the under-training
officers not only represent the three armed forces and the various
occupational groups of the Civil Service in Pakistan but many Officers
from other countries are also undergoing the combined training.
I am sure, this opportunity of interacting with people from different
backgrounds, cultures and nationalities will enable you to diversify
your knowledge and broaden your vision, thereby equipping you to
performing functions in a more coherent and successful manner, CJ said.
He said that Supreme Court is a creation of the Constitution. Prior
to its present name it was called the Federal Court established under
the Government of India Act, 1935. The 1956 Constitution renamed it as
the Supreme Court of Pakistan. It is the apex Court of the land, the
ultimate Court of appeal and the final arbiter to interpret the
Constitution and the law.
The Constitution of any country is a supreme document which defines
the composition and powers of different organs of the State and
harmonizes the relations between them. The Constitution provides basic
framework for governance of a country and its fundamental values.
Various Constitutions of the world provide different schemes for
distribution of powers between the organs of the State. It is important
for State functionaries to be aware of the principles of the
Constitution and the law.
CJ said that as you move on to occupy high positions and assume
greater responsibilities, you need to be familiar with the fundamental
law and the legal structure within which state functionaries have to
operate.
The Constitution of Pakistan provides for the federal system of
government with dual system of governance at the Federal and Provincial
levels, he said.
CJ said that the Constitution further provides for a system of
separation of powers between the three organs i.e. Legislature,
Executive and Judiciary. Each organ is required to perform its
functions to the fullest extent and avoid intervention
in the domain of the other, he added.
in the domain of the other, he added.
This is how the business of State can be conducted in an organized
and coherent manner and peace and security can be maintained in the
country. Such a healthy environment would have direct and significant
bearing on flourishing economic activities and usher in political
stability, CJ said.
CJ said that the Constitution of Pakistan provides that it is the
responsibility of the State to ensure the inexpensive and expeditious
justice to its citizens and to provide and ensure justice, the
Constitution has established the Supreme Court, the High Courts, the
Federal Shariat Court, Tribunals and other courts, established under the
law.
He said that there is a separate part of the Constitution dealing
with the composition and jurisdiction of Judicature of the country.
However, under the scheme of Constitution, judiciary has not been
defined as a part of the State.
The Supreme Court is the apex Court in the judicial hierarchy while
High Courts are established in each province and Islamabad Capital
Territory. District Courts, established under the law, are supervised
and controlled by the concerned High Court. Administrative Tribunals
and Special Courts have been established both at provincial and federal
level. Federal Shariat Court has been established to decide appeals in
the Hudood cases and determine as to whether or not a certain provision
of law is repugnant to the injunctions of Islam. Appeals against its
verdicts lie in the Shariat Appellate Bench of the Supreme Court.
The Constitution provides elaborate provisions for the composition,
jurisdiction, powers and functions of the Supreme Court. The
qualifications and the mode of appointment of judges, the age of their
superannuation, the grounds and procedure for removal from office and
terms and conditions of service of judges are also specified in the
Constitution.
The Constitution also conferred on Supreme Court original, appellate,
review and advisory jurisdictions. It exercises original jurisdiction,
with respect to the enforcement of fundamental rights, if the case
involves a question of public importance. Under its original
jurisdiction, the Supreme Court is exclusively empowered to resolve
disputes between the governments, Federal and Provincial.
Under appellate jurisdiction, the Court entertains appeals against
orders and decisions of High Courts and other special tribunals and
Courts. While in review jurisdiction the Supreme Court is empowered to
review its previous decisions. The Court also exercises advisory
jurisdiction where the president of the Country may obtain opinion on a
question of law.
Apart from this principle seat of Supreme Court at Islamabad four
other Branch Registries at the provincial headquarters have been
established to facilitate the litigant public at their door step.
For the appointment of judges in the superior judiciary a new
mechanism in Article 175A has been institutionalized under the 18th and
19th Amendment of the Constitution, which provides for the Constitution
of Judicial Commission of Pakistan, for the appointment of Judges of
Superior Courts headed by the Chief Justice of Pakistan and a
Parliamentary Committee consisting of eight members from Senate and the
National Assembly.
The Commission, by majority of its total membership, may recommend
and forward the name of a person to be appointed as a judge, to the
Parliamentary Committee, who may confirm the nominee by majority of its
total membership. Then it forwards the name to the President for
appointment through Prime Minister.
The process of accountability and removal of judges is vested with a
body called Supreme Judicial Council, comprising of Chief Justice of
Pakistan, two senior most judges of the Supreme Court and two senior
most Chief Justices of High Courts. The Council has prescribed a Code of
Conduct for the judges. The Council may inquire into the matter of
conduct of a judge either on its own motion or on a reference received
from the President. On the report of the Council, the President may
remove the Judge from office.
The Constitution of Pakistan provides the system of checks and
balances between the organs of the State. The Judiciary has been given
the power of Judicial Review of executive and legislative actions. The
Constitution has guaranteed the protection of Fundamental Rights
including Right to life, safeguard as to arrest and detention,
protection of property, right to information, right to education and
guarantee of freedom of movement, association, speech, trade, business
or profession, etc.
CJ said that the said object of the Constitution can only be achieved
through an independent judiciary. The Constitution guarantees that the
independence of judiciary shall be fully secured and for this purpose it
must be separated from the executive.
CJ said that the Article 184 (3) of the Constitution empowers the
Supreme Court to protect the fundamental rights. The Supreme Court has
tried its level best to protect the fundamental rights of the citizen
and to prevent the abuse of power. It has always sought to check the
arbitrary exercise of authority for self-enrichment, nepotism,
favoritism or squander of public money or assets, he added.
For this purpose, the Supreme Court took many actions to protect the
rights of the citizen. Concept of taking action on instances of human
rights violation is not new as previously this Court has taken notices
of violation of the human rights. Till now many suo motu actions have
been taken. A Human Right Cell to serve this purpose is working under
direct supervision of the Chief Justice CJ informed.
The Cell receives direct complaints from the public and if necessary
reports are called from the concerned quarters. If it appears that
violation of any of the fundamental rights as enshrined in the
Constitution is involved, then a petition under Article 184 (3) of the
Constitution is registered for regular hearing.
Due to the interference of this Court under public interest
litigation, many cases involving corruption, illegal or arbitrary
exercise of authority, safeguarding national assets and protection of
the environment were decided.
The Constitution of Pakistan 1973 provides for a very elaborate
system of conducting election, forming governments and managing the
state institutions together with mechanism for accountability,
transparency and achievement of a prominent goal of the Constitution
namely supreme welfare of the people.
Keeping in view the importance of Armed Forces a complete chapter was
introduced in the Constitution which contains provisions for the
command, oath and functions of the Armed Forces.
The Constitution under Article 245 envisages functions and role of
the Armed Forces that firstly, the Armed Forces of Pakistan, under the
directions of the Federal Government, shall defend Pakistan against
external aggression or threat of war, and secondly, subject to law, act
in aid of civil power when called upon to do so. Quite obviously these
functions are to be performed under the directions of the Federal
Government.
CJ said that it would not be out of place to mention here that the
responsibility to interpret the Constitution has been assigned to the
Supreme Court of Pakistan. In exercise of its jurisdiction the Supreme
Court in successive judgments has underlined the need for strictly
observing the Constitution and the law.
CJ said that in a recent verdict in the famous case of Sindh High
Court Bar Association V. Federation of Pakistan. while interpreting
certain Constitutional provisions, it again elaborated the functions of
Armed Forces as prescribed in the basic document and observed that any
action of the armed forces taken without a direction by the Federal
Government would be unconstitutional, illegal, void ab initio and
consequently of no legal effect.
He said that this judgment further invited attention to the
requirement of Article 6 and its wide and varied application to all and
sundry who abrogate or attempt to abrogate or subvert the Constitution.
In the same judgment, the Court also added a new provision to the Code
of Conduct prescribed for judges of the superior Courts, prohibiting
them from taking fresh oath on any instrument not in consonance with the
Constitution, he added.
It was further laid down that the assumption of power by an authority
not mentioned in the Constitution would be unconstitutional, illegal
and void ab initio and not liable to be recognized by any court,
including Supreme Court CJ said.
CJ said that it is beyond the capacity and power of an individual or
an institution to chart the destiny of a nation. It is rather the
synergy of all national institutions which in a combined move can steer
the ship of State to the promised-land. I am sure that until all the
institutions work in tendon and harmony we can realize such dreams of
national salvation and development. SANA
