COMMENCEMENT OF JUDICIAL YEAR, 2004-2005

LIST OF NOTIFICATIONS REPRODUCED IN THE <!--[if gte mso 9]> COMMENCEMENT OF JUDICIAL YEAR, 2004‑2005 Address by Mr. Justice Nazim Hussain Siddiqui, Chief Justice of Pakistan [6th September, 2004] Mr. Justice Iftikhar Muhammad Chaudhry, Senior Puisne Judge; Brother Judges; Mr. Rashid A. Rizvi, Vice‑Chairman, Pakistan Bar Council; Mr. Tariq Mahmood, President, Supreme Court Bar Association; Members of the Bar! Ladies and Gentlemen: I, on my own behalf and on behalf of my colleagues, welcome all of you in this function, which is in the interest of bench and the bar and above all in the interest of the people of Pakistan: For the first time this ceremony was organized in 1979. It continued for two years. Then it was held in 1987 and continued for two years. Thereafter it was held in 1999 and then now (i.e. 2004). Though we say that it is a tradition, but I say, it is not a tradition. Tradition means a thing, which is done seriously and regularly, but it was never so done. It was only an attempt to establish a tradition. Now I hope it will continue because it is in the interest of the institution. In the last 8 or 9 months since I assumed the office, we have got very cordial relations between the bench and the bar. Prior to that, there were strained relations, but I will not go into the reasons as to who was responsible for that. One thing I say with certainty is that it is in the interest of the bench and the bar to maintain good relations. I feel honoured that this has been done after I assumed this office. The idea of celebrating this day came from the office bearers of the Supreme Court Bar Association, which I readily accepted. The real aim of this function is not that we sit together and chitchat, but it is to do something concrete, something serious. It is not just for rejoicing. Some other purposes are attached to it. I strongly believe that the purposes of celebrating the judicial year are self‑appraisal, re‑examination, re dedication looking into the history particularly in the last year what we did and what should hive done and what should not have been done. This should be the exercise. We should see whether every event was dealt with correctly. We should mention what we have done, that is to say, the good things and bad things, the mistakes, mistakes and the blunders we committed. For all these things, this is the forum to point out, as two of the speakers have pointed out certain things. I assure you that we will do our best to see that they are not repeated. The object of this gathering is not praising each other. Praise should please none. It does not please us. We know what we have done, we know what we wanted to do. We have taken oath to do justice, to protect the Constitution (system). I now give a resume ‑of some of the events, which happened in the last year:‑‑ ‑‑‑ On 8th September, 2003, we had 19862 cases. From 8th September 2003 to 12th June, 2004, 11936 new cases were instituted, the total coming to 31798. During the period, the Court disposed of 8750 cases. The balance today is 25138 cases, which is alarming. ‑‑‑ During summer vacation, most of the Judges worked for six weeks and some of the Judges worked even for 11 weeks. The Benches were available at Lahore and Islamabad continuously. -- Work in the Supreme Court is done on all days except Sundays and the gazetted holidays. Of course some of the Judges were permitted to go for one, two or three weeks. All the urgent work was attended urgently. ‑‑‑ In the last speech I laid great emphasis on this aspect that something should be done to control the increase of cases. When I say that, I do not mean that justice should not be done. I mean that justice should be done under all circumstances. Justice is done in other countries, but they have evolved methods to control litigation. When we learn in other fields, when we follow those who have done better than us, why we cannot do this in the field of law. If we do not do this in 2‑3 years, the total will rise to 40/50 thousand cases. The litigants and the lawyers make complaints that their cases are not being heard. Simultaneously they also say the cases should proceed according to their seniority. How this can be reconciled? This is Supreme Court. We are to hear, to consider, to ponder, to weigh the strength of arguments and then decide because whatever the Supreme Court says, it is the law of the country. So kindly consider ways and methods to control pendency. -- Last year, 4 senior colleagues, namely, Mr. Justice Sh. Riaz Ahmad, Mr. Justice Munir A. Sheikh, Mr. Justice Qazi Muhammad Farooq and Mr. Justice Karamat Nazir Bhandari, because of the 17th Amendment retired. On 16th January 2004, Mr. Justice Tanvir Ahmed Khan retired and on 13th August 2004 Mr. Justice Mian Muhammad Ajmal retired. -- On 31st July 2004, three new Judges, namely, Mr. Justice Mian Shakirullh Jan, Mr. Justice M. Javed Buttar and Mr. Justice Tassaduq Hussain Jillani, joined us. I welcome them to this Court. We knew them earlier, but now they are our colleagues. -- Last year on the invitation of Supreme Court, a delegation of English Judges visited Pakistan. The topic for discussion was welfare of the minors. It was the result of realization of the difficulties faced by the minor children and their parents residing in Pakistan and the United Kingdom. It was noticed that after losing case in one country, 'the child was removed to the other country. We discussed all these matters and signed a protocol to overcome these difficulties on administrative side. It is noteworthy that we did not change the law. We sat together and suggested ways and means to overcome the problems within the framework of the existing laws. Its result is very encouraging and the protocol is being implemented in Pakistan as well as U. K. -- The holding of the Seventh Conference of the Chief Justices of SAARC countries on 21st February 2004 at Karachi was an achievement. It was an honour for me and also for the country. In the conference we discussed various issues. I term it achievement, because for the first time a joint declaration was issued after discussions and deliberations on the issues and challenges confronting the judiciaries of the region. The declaration as drafted by me was adopted with minor alterations having no bearing on its import. -- Rule of law is the most, important thing. Howsoever high the legal and moral principles may be, they are of no effect if there is no rule of law. -- During the year so many cases were decided by this Court. I cannot refer to all of them. They were more than 8000. -- I would like to mention few cases where something new has been done strictly in accordance with our Constitution and the principles of Islamic law:‑‑ * Hafiz Abdul Waheed v. Mrs. Asma Jahangir PLD 2004 SC 219. In this judgment, it was held that consent of a Wali is not required and the girl being sui juris can enter into marriage of her own free will. It is enough to change the trend. This is strictly in accordance with the Holy Qur'an and Sunnah. When a girl is major, it is for her to decide to whom she wants to marry. * Jamil Ahmad Malik v. Pakistan Ordnance Factories Board 2004 SCMR 164. In this particular case, it was held that in order to maintain proper discipline in public service, it was necessary to place certain restrictions on the freedom of speech of the Government servants. They are not as free as other citizens in this respect otherwise there will be anarchy. * Sh. Amjad Aziz v. Haroon Akhtar Khan 2004 SCMR 1484. It was an election matter. We had noticed that view taken in Punjab and Sindh was different. In some cases it was thought that if the man who had secured the highest number of votes was disqualified, the person‑ securing the next highest votes was automatically elected. We examined the principle of "throw away votes". This rule was for the first time laid down in 1868, i.e. more than 100 years ago: After review of case law of Britain, all cases of Pakistan and 15/16 cases of India, it was laid down that the principle of "throw away votes" was not automatic and the will of the people is to be seen. * Then in the last, in Mian Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583) Article 15 of the Constitution was interpreted and it was held that every citizen, who is out of a Pakistan, has the right to come back. Restrictions can be placed on a person on his going out but vice versa is not permissible. I know Mr. Rashid A. Rizvi for the last many years. We worked in the same High Court. He has referred to a news item and the principle of legitimate expectancy in the recent appointments. We have got 17 Judges in the Supreme Court and the President of the' country is competent to appoint them from anywhere. He can appoint these 17 Judges from one place, one town. We are following parliamentary system. We have got federal system. In federal system every federating unit has got a right that its representation must be very clear No unit is to be deprived of its representation. It is being followed at the same time, I had recommended for appointment of four Judges, three from Lahore and the reason was that at that time there were only three Judges from Lahore. See the system is, of course it is not written, that 8 Judges are from Punjab, 5 from Sindh, 2 from N.‑W.F.P. and one from Balochistan, The Chief Justice can be from anywhere. At that time, there were only 3 from Punjab instead of 8, therefore, I had recommended 3 senior most Judges for Supreme Court. Two of them have come and one has not. However, I will not say anything about the Judge who has not come because a petition has been filed in this Court challenging his stay there lest it may prejudice the case of either party. We are a democratic country. We have got the Constitution of 1973. The Constitution is supreme and the Constitution has made the parliament supreme. The supremacy of the Parliament cannot be challenged except in accordance with the Constitution, It is said that English Parliament cannot do two things otherwise it can do all things‑it cannot change the sex and it cannot bind the coming Parliament, i.e. you don't have any right to dictate to the next coming Parliament. On other matters referred to by Mr. Rizvi, all I say is that it is important to educate the masses. It is only the public opinion, which can change the views of the Parliament. No other institution can do this. Ladies and Gentlemen: I want to assure you and all sections of society that my only aim is to work for strengthening the rule of law in this country and to ensure that all citizens enjoy fundamental rights guaranteed under the Constitution. In order to achieve this object I hope and trust that I will have support of the bar. I will try my best to maintain cordial relations so that we can dispense justice for the people. I pray to God Almighty to give us patience, courage and wisdom to do justice according to the Holy Qur'an and Sunnah. Thank you very much.