Chief Justice Iftikhar Muhammad Chaudhry has said apex court will continue
using its powers in the best interest of nation and within well defined
parameters set by the Constitution, adding that no obstructions towards
independence of judiciary and rule of law would be tolerated in
performing the sacred duty of administration of justice.
Addressing to the full court reference in honour of retiring Judge of
SC Justice Sair Ali Chief Justice said that it is also the fundamental
responsibility of the Court to ensure that no damage is caused to the
solidarity, integrity and sovereignty of the state of Pakistan.
Chief Justice said that we claim to live in a civilized society. The
principle of rule of law has been considered to be the foundation of a
civilized society. It ensures application of laws without any
discrimination, adding that the concept of rule of law was also embodied
in the Constitution of Madinah which was given by the Prophet Muhammad
(PBUH).
CJ said that the constitution in its Article 15 and 17 expressed that
freedom; justice and equality were based on humanity itself. In Islamic
jurisprudence, based on Sharia, the principle of rule of law was
formulated before the twelfth century, as such, no official, not even
the caliph, could claim to be above the law. Thus, the essential
characteristic of the rule of law are the supremacy of law; justice;
equality before the law; restriction on use of arbitrary powers; civil
liberties and the independent judiciary.
He said that 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, followed by the landmark judgment of Sindh High Court Bar
Association v. Federation of Pakistan pronounced on 31st July, 2009,
declaring the action as ultra vires, indeed marked a watershed in the
political and the constitutional annals of Pakistan. For the first time
in the chequered history of this nation, the superior judiciary got
confident enough to exercise its jurisdiction, call a spade a spade and
follow the command of the Constitution and enforce it in letter and
spirit.
It was somewhat a clean break from the past. Thus, the present day
superior judiciary has emerged as a true custodian of the fundamental
rights of the people and the guarantor of the constitutional
dispensation in the country, CJ said.
CJ said that it has been noted with concern that constitutionally
ordained obligations of the Court to exercise its jurisdiction and take
notice regarding infringement of fundamental rights are being projected
in a negative light by some individuals.
He said Various Articles of the Constitution like 184, 187, 190 and
so on and the well-developed case law fully empower the apex Court to
take cognizance in a variety of situations to enforce fundamental rights
and do substantive justice. In Benazir Bhutto case, the amendments in
the Political Parties Act, 1962 regarding compulsory registration of
political parties, were challenged on the touchstone of fundamental
rights, CJ said.
Iftikhar Muhammad Chaudhry said that Supreme Court has declared
certain provisions of law void being inconsistent with the fundamental
rights and held that the Article 184(3) provided abundant scope to the
Supreme Court for the enforcement of the fundamental rights where the
question of public importance was involved. Furthermore, it would be for
the Supreme Court to lay down the contours generally in order to
regulate the proceedings, he added.
Chief Justice said that this Court has constitutional authority in
resolving the disputes or issues among Federating Units, adding that it
also gives opinion when so solicited through Presidential Reference on
question of law.
He said that in the Presidential Reference No. 1 of 1988 when there
were issues of Budget due to dissolution of the National and Provincial
Assemblies, the financial and economic activities as well as the
administrative, judicial and security functions of the State were
seriously jeopardized.
This Court answered the Reference to resolve the crucial situation
and opined that the Federal and Provincial governments could authorize
incurring of expenditure out of Federal and Provincial Consolidated
Funds upto one month after the declaration of the results of the general
elections, CJ said.
Chief Justice said that there are also precedents when the apex court
was approached to adjudicate purely political matters. In Special
Reference No. 1 of 1973 by the president of Pakistan a political
question regarding resolution for formal recognition of Bangladesh, by
the National Assembly, was put before this Court.
The Court expressed that there was no legal bar in considering or
adopting such resolution. However, no opinion was expressed as to the
constitutionality or the validity of the measures, legislative or
executive, that may have to be taken before according such formal
recognition, he said.
CJ said that the political parties have also limitations and as per
Article 17 (2) of the Constitution of Pakistan, if any political party
has been formed or is operating in a manner prejudicial to the
sovereignty or integrity of Pakistan then the matter can be referred to
the Supreme Court of Pakistan for its final decision.
In the same way, under Article 63 A of the Constitution, the Supreme
Court gives final verdict in the matters of defection of members of
parliamentary political parties, CJ said.
Chief Justice said that various Articles of the constitution envisage
the enforcement of fundamental rights coupled with such case law as the
famous Shehla Zia case wherein the Court significantly extended the
scope of Article 9 of the Constitution and held that no person could be
deprived of his life or liberty save in accordance with law.
CJ said that although word “life” had not been defined yet, it does
not mean nor could be restricted only to the vegetarian or animal life
or mere existence from conception to death. Life includes all such
amenities and facilities which a person born in a free country is
entitled to enjoy with dignity, legally and constitutionally.
The right to life and security entail protection against any threat
emanating from internal or external aggression. It is also the
fundamental responsibility of the Court to ensure that no damage is
caused to the solidarity, integrity and sovereignty of the state of
Pakistan, CJ said.
Chief Justice said it is the singular duty of the apex court not only
to enforce the freedom of life of people but also to ensure that
complete quality of life is provided to the citizens of Pakistan. On
numerous occasions, the apex court has held that the state should
provide an enabling environment wherein the citizens are provided with
appropriate wages to enjoy good health and to be able to live a
comfortable life, he said.
CJP said that the fundamental Rights have so much importance that
under Article 8 even laws made inconsistent with or in derogation of
Fundamental Rights can be declared as void, adding that this is what
empowers the superior courts to exercise the power of judicial review in
legislative and administrative enactments and actions. Thus, any law or
action contrary to the Constitution is declared as null and void.
Cj said that the role of apex Court is further highlighted when under
Article 146 (3), 152 and 159 (4) of the Constitution the Chief Justice
of Pakistan is entrusted with the power to appoint the arbitrator in
cases of Administrative relations between Federation and the Provinces
and issues of broadcasting.
The instances of such powers and confidence reposed in the judiciary
can only be discharged if it is free and independent and the decisions
are made in the constitutional spirit without any fear, favour or
ill-will though heaven may fall, CJ said.
CJP said that we know it very well that the concept of sovereignty in
Islam is that the Sovereignty over the entire universe belongs to
Almighty Allah and any authority exercised by the people of Pakistan is a
scared trust which must be within the limits prescribed by Him.
CJP said that loyalty to the State and obedience to the constitution
and the law is a basic duty. By adhering to the dictates of the
Constitution, can our nation achieve political stability, economic
development and attain rightful and honoured place amongst the nations
of the world.
CJP further said that whether it is the Parliament, Executive or
Judiciary, the Constitution has set limitations for every institution.
The armed forces too are bound to perform functions as entrusted to them
by the law and the Constitution, adding that Under Article 245 they
have to defend Pakistan against external aggression or threat of war
under the directions of the Federal Government. They are also under
obligation to act in aid of civil power when called upon to do so. The
armed forces of Pakistan perform very noble function of defending the
country.
Thus, it is incumbent upon the judiciary to respond to cases of
violation of fundamental rights and give authoritative opinion on issues
and question of law and public importance, CJ said.
Chief Justice said that the apex Court will continue using its powers
in the best interest of nation and within well defined parameters set
by the Constitution. No obstructions towards independence of judiciary
and rule of law would be tolerated in performing the sacred duty of
administration of justice.
He said that we are aware that after the historic judgment of 31st
July, 2009 many consequences have flown including the removal of judges
from the superior courts. Many incumbent judges of the superior
judiciary were made to leave, while in case of Balochistan, the entire
High Court stood vacant. But this is the price one has to pay for
establishing the rule of law and supremacy of the Constitution.
CJ said that since the restoration of the present judiciary, all the
Hon’ble Judges of the Supreme Court and High Courts have been performing
their duties to the best of their ability and with great alacrity and
legal acumen.
He said that despite the challenges faced in view of high pendency
and backlog of cases, present judges stretched themselves hard to
achieve remarkable object of disposal of cases and have authored many
landmark judgments on important constitutional and other judicial
matters. I look forward to the continued persistence and cooperation of
my brother judges for dispensing our constitutional duties in a most
appropriate manner.
Justice Sair Ali who is retiring today, I must say that he has a keen
insight on religion. He has great love and affiliation with the Prophet
(P.B.U.H.) and His family members; therefore, his heart is full of
grief for the supreme sacrifice of Hazrat Imam Hussain (A.S.) and his
companions.
CJ said to the surprise of many, I must mention here that Justice
Sair Ali does write poetry to express his inner voice about things he
cherishes in life. Despite his hectic schedule and full commitment as
accomplished lawyer and a distinguished judge, he has been able to focus
on his passion for poetry. He translated seminal work of Christopher
Codwell’s book “Birth of Poetry” and got it published under the title
“Nai Tanqeed”. SANA
