Full Court Reference on the Eve of Retirement of Mr. Justice Rahmat Hussain Jafferi, Judge, Supreme Court of Pakistan

305 FULL COURT REFERENCE ON THE EVE OF RETIREMENT OF MR. JUSTICE RAHMAT HUSSAIN JAFFERI, JUDGE, SUPREME COURT OF PAKISTAN Address by Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan [22-11-2010] Published in: All Pakistan Legal Decisions Year of Publication: 2011 Suggested Citation: 2011 PLD Journal Section p.1 Mr. Justice Rahmat Hussain Jafferi, My brother Judges, Mr. Attorney General for Pakistan, Vice-Chairman, Pakistan Bar Council, President, Supreme Court Bar Association, Members of the Bar, Ladies and Gentlemen! We have assembled here today to bid farewell to a distinguished Judge of this Court Mr. Justice Rahmat Hussain Jafferi, who laid the robes of his office on attaining the age of superannuation. According to William Shakespeare, All the world's a stage, and all the men and women merely players: they have their exits and their entrances; and one man in his time plays many parts, his acts being seven ages . So Justice Jafferi has successfully played an important role of his life. He had earned the respect of his colleagues and legal fraternity due to his professional competence and unassuming and affable personality. He is an embodiment of judicial institutions of the country as he has evolved into a Judge of the apex Court after wading through the judicial hierarchy of the country starting as Civil Judge and then moving on to higher positions as District and Sessions Judge, Judge of the High Court and subsequently elevated to the Supreme Court. (Cit. p.2) Justice Jafferi not only brought rich experience of judicial administration but also contributed much in the use of Information Technology and automation in the field of judicial administration. Despite his enormous judicial work, he has been active in strengthening the official website of Supreme Court and providing his vision and guidance to make it user friendly and updating its contents from time to time. He has recently attended 4th Meeting of the Asia Pacific Judicial Reforms held on 25th to 28th October, 2010 at Beijing and also presented paper on the topic "Use of Information Technology in Courts" wherein he gave suggestions regarding use of technology to promote performance and bring about transparency and accountability in judicial administration. The President of the Supreme People's Court of China awarded him Gold Medal in recognition of his outstanding performance, which undoubtedly is an honour and distinction for our country. Justice Jafferi was born in a well-known Jafferi family of Larkana, Sindh on 22nd November, 1945. On completion of his education he was enrolled as advocate of Larkana Bar Association where he worked under the guidance of his father Mr. Fakir Muhammad Jafferi, who was District Public Prosecutor, Larkana from pre-partition days to 1965. In the year, 1972 he joined the judicial service as Civil Judge. Mr. Justice Rahmat Hussain Jafferi married the daughter of late Mr. Justice Z.A. Channa, who in his own right was known as honest, upright, intelligent and hardworking Judge. Mr. Jafferi inherited judicial experience both from his father and father-in-law. As a Judge of High Court as well as this Court, he proved his legal acumen and maintained independence and impartiality. He conducted important cases of high profile, besides delivering judgments interpreting the Constitution as well as the Law. He, by his indepth understanding of law, experience, dedication and commitment decided tricky and complex cases. Along with his colleagues, he adorned larger benches including the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), wherein the vires of National Reconciliation Ordinance, 2007 was challenged and the case challenging the constitutional validity of Eighteenth Amendment titled as Nadeem Ahmed, Advocate v. Federation of Pakistan (PLD 2010 SC 1165), which is sub judice before the Court. Delay in disposal of criminal cases often occurs, therefore, to address the issue he delivered a landmark judgment in the case of Muhammad Ramzan v. Rahib (PLD 2010 SC 585) wherein non-adherence to the procedural provisions of the law in the criminal administration of justice were highlighted with direction to the District Courts to apply such laws for achieving the object of expeditious disposal of criminal cases. Indeed compliance of the said directions would result in reducing the delay in disposal of cases remarkably. (Cit. p.3) To be a member of the Judicial Service of a country is a great honour but it also carries greater responsibility to decide the case fairly and justly. To discharge the duties as Judge is not an easy task. It is an onerous duty and sacred obligation. Here I would like to quote Verses from the Holy Quran. The Qur an says: O you who believe, be maintainers of justice, bearers of witness for Allah, even though it be against your own selves or (your) parents or near relatives whether he be rich or poor... And if you distort or turn away (from truth), surely Allah is ever Aware of what you do." (4:135) O you who believe, be upright for Allah, bearers of witness with justice; and not let hatred of a people incite you not to act equitably. Be just ; that is nearer to observance of duty. And keep your duty to Allah. Surely Allah is aware of what you do (5:8). The Prophet Muhammad (peace be upon him) said, whoso is appointed a Judge among men has indeed been slaughtered without a knife . Justice Jafferi has certainly followed the path revealed through the Holy Quran and the Sunnah. Socrates rightly pointed out over 2000 years ago that Four things belong to a Judge: to hear courteously, to answer wisely, to consider soberly and to decide impartially . The entire career of Justice Jafferi reflects all these characteristics in his personality. This country has produced illustrious Judges who have struggled for independence of the judiciary during the period when they adorned the Superior Courts. Name of Rahmat Hussain Jafferi would be an addition in the said list. When we talk of independence of judiciary, we should not loose sight of the fact that it is not possible to have such a judiciary in the country, unless Judges are fiercely independent. Ordinarily every Judge is supposed to be an independent Judge, capable to decide the cases, brought before him, without any fear or favour or making any distinction between State and the subject. In the past, during the period of constitutional deviation, the judiciary also came under pressure, thereby affecting its march to attain necessary freedom and independence to administer justice freely, fairly and impartially. It is a universally recognized principle that an independent judiciary guarantees the stability of political and constitutional system in vogue in the country. Mr. Andrew Jackson the 7th President of United States said and I quote, All the rights secured to the citizens under the Constitution are worth nothing and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary . Similarly, Sandra Day O Connor an American Jurist who was the first female Judge of the Supreme Court of United States also emphasized on the independence of judiciary by saying, The framers of the Constitution were so clear in the federalist papers and elsewhere that they felt an independent judiciary was critical to the success of the nation . Our Constitution in its preamble also emphasizes that independence of judiciary shall be fully secured. This aspect of our Constitution is sufficient to guarantee that there should be independent judiciary to dispense justice to all manner of people without any distinction (Cit. p.4) or discrimination. There are number of other Articles in the Constitution, a perusal whereof would indicate that impartial and independent judiciary is the hallmark of our Constitution. As per Global Corruption Report, 2007 corruption is prevalent in the justice sector, thereby undermining its credibility and performance. In our country, corruption in judicial system is mostly on account of the age-old practice of bribery. It is more pronounced in the lower courts called Kachery. When courts are perceived to be tolerant of corruption, litigant parties and people loose hope in the justice system. It is a dangerous symptom as it is the beginning of the breakdown of peace and security in society and leads to increased crime and lawlessness. Thus, the litigant parties lose hope and trust in judiciary because they have to pay bribe for getting even their legitimate rights. Therefore, accountability in the judiciary is necessary to eradicate corruption and the culture of bribery. The judiciary is doing its utmost to provide a clean and fair administration of justice. The High Courts have taken stringent measures and removed many corrupt and ill-reputed judicial officers. Now it is high time that one should not compromise by tolerating any such incidence of bribery because ultimately it is one of the causes to hinder the independent judiciary. Administering justice is not only the job of the judiciary but all the three organs of the State. As far as Executive and Legislative are concerned they also share equal responsibility to achieve the object of the independence of judiciary. If such an environment is created, where all the three organs perform their functions while remaining within their prescribed spheres, it would provide a stable and predictable environment, facilitating the judiciary to enforce the fundamental rights of the citizens, guaranteed under the Constitution. These three institutions can independently lay down parameters for the systematic working for strengthening the democratic institutions as per the requirement of the Constitution. It is a need of the hour that the Legislative and Executive work in a manner to strengthen the judiciary as it will ensure the survival of other organs in case some extra-constitutional forces strike the political dispensation. It is an unfortunate fact of our constitutional history that whenever such forces struck in the past, the legislature and executive suffered, but the judiciary also came under pressure, with adverse effects on principles of judicial independence and impartiality. But now after the landmark judgment of 31st July, 2009 in the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879) the Supreme Court has clearly done away with this past practice and declared that no Judge of the superior judiciary will ever accept any unlawful and unconstitutional order of any authority under any circumstance. Now it is incumbent upon all institutions to work in unison with each other which will (Cit. p.5) ensure their independence and prime them up for performing their assigned constitutional duties. A most essential role of the Constitution is to interlink the State structures and gear it towards realizing the high ideals of democratic and social welfare State for the people of Pakistan. The Constitution is also an agreement between various regions and nationalities to form one cohesive nation. Thus, the Constitution is an instrument of empowerment of the people by bestowing upon them the fundamental rights including the economic, social, political, civil and cultural rights. Therefore, adherence to the principles and rules of the Constitution is tantamount to strengthening the bonds of nationhood and moving in the direction of progress and raising the quality of life. It has been noted that for execution of such lofty ideals, the Constitution envisages the creation of a strong healthy and competitive Executive organ, which is ably managed by the bureaucracy. Bureaucracy used to be referred to as the steel-frame around which the whole British Empire was made. This steel-frame comprised of civil servants duly recruited on merit and well trained continued to play its assigned duties under the Constitution and the law to provide uninterrupted and continued governance in various fields. The time has arrived to strengthen all the institutions of the country and everybody needs to follow the principles of rule of law, transparency, merit and fairness in the discharge of his duties. If the government machinery of the country transforms itself into efficient and public-service oriented structure, the people can lead a comfortable and predictable life. If these institutions strictly work under the rules providing level playing field to all the citizens, the country can achieve stability, success and recognition as a civilized democratic State because it is in the interest of all of us and our future generation to support the Constitution and democracy in the country. As Sir Winston Churchill once said and I quote:-- It has been said that democracy is the worst form of government except all those other forms that have been tried from time to time. Thus, our salvation lies in upholding the Constitution and democratic governance. In the end, on my own behalf and on behalf of my brother Judges, I would like to express our sentiments that we will miss the company of Mr. Justice Rahmat Hussain Jafferi. We would cherish fond memories of his pleasant demeanour and love and affection, he extended to us. We pray that he may have a long, happy and productive life and keep the pleasure of company of his lady wife and children. ----------