ADDRESS

ADDRESS <!--[if gte mso 10]> ADDRESS By Mr. Muhammad Ali Sayeed, President, Sindh High Court Bar Association [5-11-1997] We have gathered here again today to felicitate your Lordship on your appointment as Chief Justice of the High Court of Sindh. It is noteworthy that within a span of 30 years the father and the son have both been Chief Justices of the High Court. And each one, in his own right, an outstanding Judge. My Lord, I had the proud privilege of working with your father in a few of his cases. In fact, there was a third lawyer for whom both of us worked. He was Mr. Siraj Hussain from Lucknow who later migrated to Pakistan and soon became the Advocate-General of Sindh. It was at the feet of these two great legal luminaries that I learnt my first lesson in civil and mercantile law while being in the Chambers of Mr. A. K. Brohi. My Lord you have been with us in the profession and then as a Judge of this Court for quite a while and your brilliant educational career, your performance as a law officer, the representative offices held by you, often securing a record number of votes, are all known to my Bar. Many honours were secured by you at a very early age and you left your indelible mark on all the offices and positions assumed by you. Your brilliance was finally crowned by a judgeship of this Court in the year 1988 and all of us are witnesses to the poise, the dignity and the excellence which marked your performance as a Judge, not least of all the power and the strength of your pen. My Lord, you have taken on the capacity of this Court at a very crucial stage in the development of the role of the judiciary. The developing concept is "Judicial Activism". It has been slow in reaching our Courts and has yet to fully fire the imagination of our Judges. Even so it is seen to be steadily gaining ground. While dwelling on this subject I cannot do better than repeating the thoughts I had expressed in the recent Saarclaw Seminar on Judicial Activism. Amongst the several references I had there drawn attention needs to be drawn to the dictum of Lord Wilberforce in Nimo v. Abrander wherein the great Judge threw away his jurisdictional constraints by observing: "If I thought that Parliament's intention could not be carried out, or even would be less effectively implemented unless one particular (even though unnatural) construction were placed on the words it has used, I would endeavour to adopt that construction." And we find Lord Denning thinking on similar terms when he observed in Nothman v. Barnet: "It is no longer necessary for Judges to wring their hands and say 'there is nothing we can do about it'. Whenever the strict interpretation of a statute gives rise to art absurd or even an un-justification, the Judges should rise their good sense to remedy it--by reading words if necessary so as to do what Parliament would have done had they the situation in mind." Lawless laws and executive excesses must be halted by Judge power lest the Constitution be subverted by branches deriving credentials from the Constitution. This was the keynote of the Indian Supreme Court in Maneka Gandhi's case. My Lord I could take a good part of the day in quoting chapter and verse from several judgments of similar tenor from all over the world in pressing my view that the superior Court in our country should constantly endeavour, nay should constantly strive to extend their jurisdiction in their attempt to combat the rampant injustice. Law has never been allowed to grow in the right direction. In such a situation Courts cannot or should not wring their hands and say that there is nothing they can do. In this respect I crave leave to refer to an anomalous situation created in reference to Constitutional petitions brought to challenge orders or judgments passed by Special Banking Courts. It has been observed by the Supreme Court as well as our own High Court that since the right of appeal has consciously been taken away by the law-makers, the entertainment of a writ petition would tantamount to a deflection of their will. Would this mean that wherever a statute or other sub-constitutional legislation takes away the right of appeal the right to move the High Court in its Constitutional Jurisdiction is also taken away. I grew up in the profession learning that the writ jurisdiction of the High Court is most sacrosanct of all Jurisdictions and may not be even abridged by any sub-Constitutional legislation. That learning was based on a plethora of decisions. My Lord the present Chief Justice's own view was in support of the Constitutional Jurisdiction in such situations. But I, have my apprehensions. My Lord, law is but a handmaid of justice. I belong to the school of thought which maintains that it is a law less law which is contrary to the norms of morality and to the dictates of justice. Where the law is on one side and justice is on the other end, the law shall have to be dragged by its ear to the end where justice lies. My Lord, under your able captaincy I have no doubt that justice will prevail and a law which comes in the way of justice being done will be struck down. I am certain that you will not wring your hands and say that there is nothing you can do. This nation is sunk in the quagmire of injustice. Do rescue it and rescue it also from the despotism of the law-makers. You are lucky to have an excellent team of Judges, each one of whom outshines their worthy compress elsewhere. We want our Judges to set a bold trend in their judgments and use their judicial power to clean the nation of the executive tyrannies. My Lord, there are several of your own judgments which stand out for their clarity, depth and incisive interpretation. I would mention only two of them, My favourite judgment authored by your Lordship is in the case of U.B.L. v. Mohbali, PLD 1994 Kar. 274, Many issues have in that judgment been decided. But the best part of it is where you say to the effect that rules framed by Government in order to be valid, have to be tested on the touchstone of reasonableness and should also be free from oppression. My Lord your Judgment in New Electronic v. Collector of Customs wherein an Ordinance, repromulgated on expiry, was held to be ultra vires was not upheld by the Supreme Court on grounds of State necessity. There was a dissenting note by one of the learned Judges. With respect I would submit that I have my reservations as to the correctness of the majority judgment. My Lord, there are several spheres in which procedures relating to the administration of justice in our Court needs to be reviewed and streamlined in order to import smoothness to the processing of cases and expedite disposal. My Association is in the process of gathering thoughts on the subject and we shall be reverting to your Lordship no sooner we have organised our thoughts on the subject. For the present all that I would say is that there are amongst us lawyers of merit and also some who, by force of circumstances and other handicaps are below the mark. They need sympathy and a little encouragement, and given this, their mettle is usually drawn. Even so I must admit that neither have I witnessed nor have there been any complaints of lavishness on the part of our Judges. My Lord, there is lot more I would like to say I am sure my worthy colleagues would add to my thoughts. While wishing God speed and hoping to see an era of Wajihuddin's Court (like Warren's Court of U.S.A.) I am sure that the immaculate stream of justice will not be allowed to flow through muddy channels and defile itself. ***