President SCBAP Mr. Rasheed A Razvi Speech in Full Court Reference on the eve of retirement of Mr. Justice Amir Hani Muslim

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FULL COURT REFERENCE ON THE RETIREMENT OF JUSTICE AMIR HANI MUSLIM, JUDGE, SUPREME COURT OF PAKISTAN

HELD ON 30.03.2017 AT ISLAMABAD.

Presented by
Mr. Rasheed A. Razvi
Sr. ASC.
President, Supreme Court Bar Association.

 

Mr. Justice Mian Saqib Nisar,
Hon’ble Chief Justice of Pakistan;

Mr. Justice Asif Saeed Khan Khosa,
Hon’ble Senior Puisne Judge;

Hon’ble Judges of Supreme Court of Pakistan;

Mr. Ashtar Ausaf Ali,
Attorney General for Pakistan;

Mr. Muhammad Ahsan Bhoon,
Vice Chairman, Pakistan Bar Council;

Distinguished members of the Bar Councils and office bearers of the different Bar Associations of Pakistan;

Learned members of the Bar;

Ladies and Gentlemen.

Today, we have gathered here to recognize services of Justice Amir Hani Muslim, learned Judge, Supreme Court of Pakistan who will be laying down his robes on 31.03.2017. After joining the legal profession in the year 1981 your lordship joined one of the then leading Law Firm namely “Khalid Ishaque & Co.”. In 1994 your Lordship was appointed by the Province of Sindh as Additional Advocate General. On 12.01.2002 you assumed the office of Deputy Attorney General and on 27.08.2002, his Lordship was elevated as Judge of the Sindh High Court. On 14th February 2011 your lordship was elevated to the Supreme Court of Pakistan. In the language of the game of cricket that your Lordship is fond of and has been a part of the team that has won the Lawyers Cricket World Cup, as your Lordship nears the end of his innings, I say: Well played! For nearly 15 years your lordship remained part of the Superior Judiciary witnesses in first hand history being made and written. Your lordship was one of those conscientious Judges who declined to take oath on P.C.O. promulgated by General Pervez Musharraf in the year 2007.

Justice Amir Hani Muslim played on the front foot. His enduring legacy will rest on delivering some very bold judgments creating a new jurisprudence. Firstly, it is the case of Contempt Proceedings against the Chief Secretary, Sindh (2013 SCMR 1752) wherein it was held “……that the legislature cannot destroy, annul, set aside, vacate, reverse, modify or impair a final judgment of a court of competent jurisdiction, nor fundamental rights guaranteed under the Constitution can be abridged by the legislature….” (para-172). In another case a long outstanding issue regarding application of the Code of Civil Procedure, 1908 in the jurisdiction of companies Judge was settled and the principle that the Court should avoid multiplicity of the proceedings was impliedly upheld. It was held in the case of Mian Javed Amir (2016 SCMR 213) “……that the term summary procedure does not debar the Company Judge from receiving evidence in cases where factual controversy is involved and that there is no legal bar on the Company Judge to enter into factual inquiry, framing of issues and recording of oral evidence for reaching just conclusion…..”

In the case of Khalid Iqbal (PLD 2015 SC 50 rel. 58) your Lordship while speaking for a Larger Bench of this Hon’ble Court ruled that there is no restriction or bar on the jurisdiction of this Hon’ble Court to revisit its earlier decision or even to depart from them and that the enforcement of fundamental rights or the interest of public good will not come in the way of revisiting the earlier decisions of the Supreme Court. The provision of Section 25(a) of National Accountability Bureau Ordinance, 1999, was considered in the case of Hanif Hyder (2016 SCMR 2013), when your Lordship suggested for  initiating Suo Moto proceedings under Article 184 (3) of the Constitution , 1973, by observing that such provision is in conflict with the provisions of the Constitution of Pakistan, 1973.

Another legal issue settled by Justice Amir Hani Muslim was regarding the interpretation of term “person” used in Article 199 (5) of the Constitution in the famous case of Ch. Muhammad Akram (PLD 2016 S.C. 961). It was held that a writ would lie against an administrative/consultative/ executive order passed by the Chief Justice or the Administration Committee involving any violation of the rules framed under Article 208 ; causing infringement of the fundamental rights of the citizens and that Article 199 (5) would bar the writ against the High Court only if the issue is relatable to judicial order or judgment of the Court. For the first time the writ was issued striking down the unlawful orders of the Administration Committee of the Islamabad High Court. Even otherwise, if clause (5) of the Article 199 of the Constitution is scrutinized it will be seen that the exception extended after the phrase “other than” to the Supreme Court, High Court or the Armed Forces of Pakistan relates to the Courts and Tribunal established under the Laws and not to the administrative functioning of all these three Institutions. The supremacy of Constitution requires that all organs of the State should work within the legal framework and that it is the judiciary which works as an arbiter whenever any organ transgresses its jurisdiction. As a result of this Judgment a very respectable and learned judge of this Hon’ble Court resigned. But my lord, the Members of the Bar are still waiting for its full implementation.

Justice Amir Hani Muslim even during the last month of his tenure never seen tired and delivered a historical decision in the case of Shahab Usto (Constitution petition No. 38/2016). In this case a Commission was formed headed by a Judge of Sindh High Court who extensively visited every major city of Sindh province and gave a detailed Report regarding supply of sustainable water, sewerage and solid waste services. The Report of learned Commissioner is an eye opener for all the conscious citizens of the Country. I would humbly suggest the Hon’ble Chief Justice of Pakistan to form identical Commissions in all Provinces to look into such matter, since it involves the enforcement of Article 9 of the Constitution of Pakistan, 1973.

Nearly 96 years ago, on 9th November 1923, Chief Justice of King’s Bench Lord Hewart ruled that it was the fundamental importance that justice should not only be done but that which should also be manifestly seen to have been done. (Rex Vs. Sussex Justices (1923) All E.R. 233). This golden principle is followed by all the Courts throughout the world which had made reasoning the integral part of orders and decisions delivered by the judiciary at all levels. Professor Amartya Sen, a Nobel Prize winner in Economics (1998) in his book “The Idea of Justice”(Penguin Book U.K. 2009) wrote that “…If a judgment inspires confidence and general endorsement, then very likely it can be more easily implemented….”.Thus, he emphasized that justice must be seen to be done. With most respect and humility, I venture to submit that there has been considerable criticism of your judgments in the cases of removal of Bill Boards in Karachi and Shahid Pervaiz (2017 SCMR 206).It is not that in these cases justice was not done but that justice was not seen to have been done perhaps because no adequate reasoning was recorded and no proper opportunity of hearing was extended in those judgments.

My Lords, it is with regret that we note that two years of Military Courts have not proved enough. On the much maligned doctrine of state necessity, military courts are being given a new lease of life on the pretext of countering terrorism. The amendments in the Constitution and likewise amendments in the Pakistan Army Act, 1952 have been approved. Again, this is another so-called step taken by the present civilian government to counter terrorism by imposing the stringent Laws in Pakistan. It is not for the first time that a parallel judicial forum has been introduced. The Suppression of Terrorist Activities Act, 1975 (Special Court) was promulgated on the same pattern as the Indian law namely Terrorist and Disruptive Activities (Prevention) Act, 1987 (popularly known as TADA). Subsequently, in the year 1991 through Constitution 12th Amendment Act, 1991, Article 212-B was introduced which was to remain in force for a period of three years only. Through this amendment, the Federal Government was authorized to constitute Special Courts in case of offences which are gruesome, brutal and sensational in character or shocking to public morality. Accordingly, Appellate Court was also established through these amendments. A Judge of the High Court was appointed as Judge of the Special Court while the Judge of this Hon’ble Court was appointed to be the Chairman of the Supreme Appellate Court. No satisfactory results were obtained by defacing the Constitution and depriving the general people from their right of access to justice by introducing Article 212 (B) in the Constitution, 1973.

Again in the year 1997, another Law was promulgated by the present Government namely Anti-Terrorism Act, 1997 which is still on the statute books. In the year 2015, the present Government again on the same pattern as was adopted in1991 introduced 21stAmendment in the Constitution and at the same time amended the Pakistan Army Act, 1952 and established Military Courts for the trial of cases pertaining to terrorism. This law again contained a sunset provision for two years. Now, through the 28th amendment in the Constitution and while amending the Pakistan Army Act and establishing Military Courts, the present Government has deviated from the well established principle of the due process of law which is the basis of Article 4 of our Constitution and now categorically incorporated as Article 10-A i.e. right to fair trial. The establishment of parallel judiciary was never approved by any Court in a civilized country. This Hon’ble Court in the case of Azizullah Memon (PLD 1993 S.C. 341) held as follows:-

“……Separation of judiciary is the corner – stone of independence of judiciary and unless judiciary is independent, the fundamental right of access to justice cannot be guaranteed. One of the modes for blocking the road of free access to justice is to appoint or hand over the adjudication of rights and trial of offences in the hands of the executive officers. This is merely a semblance of establishing the courts which are authorized to decide cases and adjudicate rights, but in fact such courts are manned and run by executive authorities without being under the control and supervision of the judiciary can hardly meet the demands of the Constitution….” (rel. page 369).

It is the collective view of the Bar that the judiciary of Pakistan neither in the past nor in the present, have ever failed to perform in accordance with Law and Constitution. It is failure on the part of Civilian and Military Governments that the institution of judiciary was always neglected and ignored. The most appropriate and effective way to counter the terrorism is to enhance the strength of judiciary and para legal staff; to improve and make effective the working of Intelligence and Investigating agencies and to make the prosecution department more efficient. It is only through a vibrant civilian justice system that enjoys credibility with the masses can we bring terrorists to book. Military justice is justice denied and military courts have never been nor will be an answer to defeat terrorism. May I recall a famous legal maxim “summum ius summa iniuria” which means extreme law, extreme in justice.

My lord, economic development and peace are not possible in a society without rule of law. Our past experience has proved that summary trials without lesser opportunity to the defence cannot effectively counter terrorism. For a progressive and prosperous Pakistan can only be built when the rule of law reigns supreme.

Justice Amir Hani Muslim along with other colleague Judges of this Honorable Court have fought a long battle against corrupts practices and nepotism in the government rank and file. His judgments and orders pointed out several irregularities in the government department and directed for rectification of the same. Tireless efforts were made that high offices of the government and statutory bodies should not be encroached upon by the non-cadre officers; merits were always appreciated and out of turn promotions were also disallowed. I believe that after his retirement this battle will continue by this Hon’ble Court.

In the end, I on my behalf as well as on behalf of my Bar Association, wish you a happy and healthy long life after retirement. We also expect, keeping

in view your Lordship vast experience, that the same will be incorporated in the form of books and research papers.

Thank you Hon’ble Judges, ladies and gentleman.