Vice-Chairman, Pakistan Bar Council

ADDRESS ADDRESS By Dr. Muhammad Farogh Naseem, Vice-Chairman, Pakistan Bar Council The Hon'ble Chief Justice of Pakistan Mr. Justice Anwar Zaheer Jamali, the Hon'ble Senior Puisne Judge of the Supreme Court, Mr. Justice Mian Saqib Nisar, the Hon'ble Judges of the Supreme Court, Mr. Ashtar Ausaf Ali, Attorney General for Pakistan, Mr. Syed Ali Zalar, President Supreme Court Bar Association, learned Advocates General, distinguished Members of the Bar Councils and Bar Associations, fellow lawyers, ladies and gentlemen, Assalam-o-Alaikum. 2. Quintessentially, today is the day of stock-taking of the past and a day of resolution for the future. 3. However, that shall not detain me any further, since the most vital event in the immediate past has been the most tragic happening on the 8th of August 2016 in which lawyers at Quetta were brutally massacred and which has virtually bled the nation, in particular the legal community. After the fall of Dahaka in 1972, the Quetta tragedy is by far the most lamentable in the annals of Pakistan's history. It takes more than 3 decades for any person to be educated and then trained as an advocate. The cowardly act of terrorism in Quetta took away the lives of nearly 70 lawyers and left many critically wounded. A whole community of court-going regular lawyers was virtually effaced. Indeed, the Pakistan Bar Council protested and very reluctantly requested the . Hon'ble Supreme Court to observe a strike, which was affirmatively responded by the Hon'ble Chief Justice and his worthy companion Judges, confirming that in the sad moment, the. Bar and the entire judiciary of Pakistan including the learned Judges of the Supreme Court stood alongside. The bench and the bar, in Pakistan, the two wheels of the same chariot abundantly exhibited unity. 4. But it was only some 24 days later i.e. on the 2nd September 2016 that the terrorists struck back again. This time it was Mardan where again 14 were martyred and several injured. 5. Also in the past we have seen courts and their presiding officers and lawyers having been targeted throughout Pakistan, so much so that even the worthy members of the superior judiciary have not been spared. 6. It is rather manifest that Pakistan is passing through hard times and atleast one organ of the state i.e. the judiciary, which includes the entire system of administration of justice, is under a direct attack. 7. The Pakistan Bar Council requested the Hon'ble Chief Justice to take suo motu action. We are indeed grateful to the Hon'ble Chief Justice of Pakistan for taking a suo motu notice of the Quetta killing and the matter is now fixed on the 20th of September 2016, which is tomorrow, in which we would most respectfully entreaty that such suo . motu proceedings may not only be confined to the Quetta killing but its frontiers be widened so that the jurisdiction of the Court is extended to the entire Pakistan so that:- (a) appropriate directions are issued by the Hon'ble Supreme Court of Pakistan to the respective Federal and Provincial Governments so also the Law Enforcement and Security Agencies in order to devise effective SOPs, ensuring effective security plans for the courts, lawyers, judges and their families; (b) a methodology is devised, once again with the appropriate directions to the Federal and Provincial Governments, to adequately and swiftly compensate the families of the martyred and those who are injured, declaring compulsory timelines for the purpose; (c) also a holistic plan is carved out for the appropriate treatment and rehabilitation of the injured; (d) a fund or insurance plan is created for the above. 8. I do not have the crystal ball and cannot point out with certainty as to who are behind these barbaric attacks, but through the process of analytical deduction one cannot escape the conclusion that those behind these attacks wish to push Pakistan into the stone age. If I may add that the attack is not just on the lawyers, but on other professionals such as doctors, engineers and architects. In essence the attack is on Pakistan's scant educated class. 9. There has been a lot of debate on the role of the "least dangerous" branch of the state i.e. the judiciary. The traditional view is that judges can only interpret the law and the task of legislation is to be left to the legislature. This orthodox view further propounds that the judges while interpreting the law cannot transgress into the realm of law making [see Lord Scarman in Duport Steels Ltd (1980) 1 All ER 529 =(1980) 1 WLR 142]. 10. To my mind the principle that a judge cannot rewrite laws is salutary, however, there are now settled exceptions to this principle which have carved out new fields of jurisprudence. An illustration of this is Manor and St.Mellons RDC v. Newport Corpn (1950) 2 All ER 1226 wherein Lord Denning (at p.1236) referred to an "ill-drawn Act" and that the judiciary should "fill up gaps and make sense of the enactment". Our own Supreme Court has approved the doctrines of avoidance of absurdity, reading down and severance in a number of judgments including Jamat-e-Islami Pakistan v. FOP PLD 2000 SC 111, Ellahi Cotton v. FOP PLD 1997 SC 582 and NBP v. Saf Textiles PLD 2014 SC 283. These judgments carve out clear exceptions to the classical rule that Judges should not legislate. 11. The hard times which the country is passing through could well be due to an international intrigue or because of the archaic system of status quo, which has been prevalent since the country's advent in 1947 and which can no longer be sustained. In this setting, the law has a calling. Indeed, justice is the goal of law. Justice is a standard for evaluating the law. Aharon Barak in his book "The Judge in a Democracy" at pp 66-67 has stated that "1 am convinced that many judges, once they have exhausted the different values they must balance yet still have not reached a single exclusive solution, aspire to reach the solution they find to be just. Indeed, justice is one of the central values of a legal system. The assumption is that the general purpose of every statute is the realization of justice." 12. Truly, judicial independence is a central component of democracy: Activism and self-restraint are two extremes of a continuum. We can speak of degrees of activism and degrees of self-restraint. There is no one criterion for defining activism and self-restraint. A judicial decision, a judge, or a court may embody different aspects of activism or self-restraint, measured along different axes. Indeed, we should not assume that judges can be divided according to those who are always activists and those who always exercise self-restraint. This absolute approach is inconsistent with a judge's need to act within the framework of his zone of discretion, which at various times will demand more or less activism and more or less self- restraint. 13. The balancing approach, tending neither toward activism nor toward self-restraint, is not only the best approach to bridging the gap between law and society, it also applies to protecting the constitution and its values. Protecting the constitution requires balancing the different values internal to a particular society. It requires balancing between the principle of majority rule and values that even the majority may not undermine between the needs of the collective and individual rights, between the rights of one individual and those of another. A judge must protect and maintain this delicate balance, something that requires some measure of activism and some measure of self-restraint. 14. This middle ground, so appropriate for bridging the gap between law and society and protecting the constitution and its values, is also the right approach to preparing the judicial means with which a court will exercise its discretion. In the important area, tendencies toward complete activism or complete self-restraint are out of place. The use of each mean should be done with an eye toward all the means available. It may sometimes be appropriate to exercise more self-restraint in using a particular mean (such as the proper system of interpretation), while the use of other means may justify more activism (expanding access to the courts through a broad view of standing and a restrictive view of non-justiciability). Balance is required to develop a theory of balancing. This theory does not suit every situation, and it should be applied carefully. Such is the case in using comparative law; it should be done with the appropriate caution, and when the judge formulates the decision, he should do so with an awareness of the consequences of the rhetoric employed. The judge should balance the various considerations. 15. Terrorism plagues many countries. The judges in modern democracies, are responsible for protecting democracies both from terrorism and from the means the state wants to use to fight terrorism. In both times of peace and conflict, matters of daily life constantly test judge's ability to protect democracy, but judges meet their supreme test in situation of terrorism. 16. It is hard to be a judge. Even harder to be a good and worthy judge. And manifold harder to be a good and worthy judge in a democracy under terror. 17. In fact these challenges explain the recent judgment of the Supreme Court of Pakistan in which by a majority the Constitution (21st Amendment) Act, 2015 constitutionally providing for military Courts to decide trials of terrorist acts was upheld (see District Bar Association v. FOP PLD 2015 SC 401). One cannot lose sight of the fact that judges do not live in a vacuum. Judicial law making has to bridge the gap between the law and the society. And this bridge must be consistent not only with the society's basic value but also with the society's fundamental perception of the role of the judiciary. 18. According to the Lord Woolf in his book "The Pursuits of Justice' at page 193, "the landscape in which the judges have to perform their craft has been transformed. New responsibilities have been imposed on the judiciary and those responsibilities have created new challenges." I fully agree when Lord Woolf states (in his said Book at page 193) that "Just as the common law has evolved to meet the changing requirements of society, so should the role of the common law judge. Unless the judicial role evolves in this way, the judiciary will be unable to fulfil the expectations of the public whom they serve. Whether it does so will depend on the calibre, commitment, organization and training of the judiciary. It will also depend upon the executive and legislature providing the judiciary with the support they require." 19. I fully subscribe with the classical view that the Bar Councils are enjoined with the duty to act as sentinels of professional conduct and must ensure that dignity and purity of profession are in no way undermined. It is the job of the Bar Councils to uphold the standards of professional conduct and etiquette [see Indian Councils of Legal Aid v. Bar Council of India (1991) I SCC 732 at para 3]. Also it is a truism that the Bar is not a private guild but by a bold contrast it is a public institution committed to public justice [see Karishna Iyer J in Bar Council of Maharashtra v. M.V. Dabholkar (1975) 2 SCC 702 at para 52]. 20. Judges have to dispense not technical but qualitative justice. Both the Bench and the Bar will have to contribute to evolve jurisprudence, which is the "eye of the law" giving an expression or insight into the environment of the society, Jurisprudence "relates the law to the spirit of the time and makes it richer" [see Consumer Education v. U01 (1995) 3 SCC 42, para 18]. The roots of jurisprudence lie in the soil of society's urges [Basti Sugar Mills v. State of UP (1979) 2 SC 88, at para 6].The Bench and the Bar need to explore new vistas of legal theory and normative jurisprudence. 21. The relationship of the Bench and the Bar are sometimes become very delicate. The Lawyers' Movement was a defining episode in the political, socio and legal history of the nation. While judicial independence, which was earlier only an illusion, peaked at its zenith, the judges, lawyers and the media acquired the much cherished freedom of expression and action. But here was a paradox. Adverse side-effects in good actions (such as the Lawyers' Movement) can sometimes loom large, which requires a separate strategy, both short and long term. 22. Judicial activism in the shape of suo motu actions, the language employed by anchor-persons and participants in the media against the Court and judges, so also the expression of certain members of the bar against judges crossed permissible limits. But there was the other side of the coin. if the members of the bar lost discipline in the Court room that was because the Presiding Officers, especially in the subordinate Courts, humiliated them, or did not give them an adequate opportunity of presenting their cases. 23. In a recent meeting with the Lahore High Court's Hon'ble Chief Justice Mansoor Ali Shah, the Pakistan Bar Council made it clear that though any flippancy from the members of the Bar will not be tolerated, but if the indiscipline occasions due to a humiliating attitude of the Presiding Officer, or his inability to afford a proper hearing beyond known legal procedures and ethics, the Bar Council would not intervene. And a solution to this pervading problem would be to video-record court hearings, with which the valiant and erudite Chief Justice Mansoor Ali Shah has agreed. 24. My Lord the Chief Justice of Pakistan, we request you to adopt measures so that hearings in courts are video recorded and monitored so that none can subsequently pitch a case beyond actual facts. And copies of such video recordings be made accessible to lawyers upon request and payment of cost. 25. In Pakistan we have a set of defamation laws but the same are hardly effective. Anyone can say anything and get away with it absolutely scotfree. Defamation matters, both civil and criminal, languish in Courts with, no determination at all. The concept of freedom of expression requires to be understood in its correct context. The fundamental right of freedom of expression even in terms of Article 19 of the Constitution cannot be permitted to abuse decency or morality so also to propagate false information. No expression can be permitted so as to ridicule or bring under disrepute any member of the judiciary or the bar or in fact any citizen of Pakistan. 26. This calls for issuing practice directions so that the courts of law in the Country expedite civil and criminal cases of defamation on merit. It is needless to say that in the event of recurring recalcitrant utterances the possibility of issuance of injunctions is also required to be endorsed, since the award of damages sometimes is not a solution to the problem. 27. Lord Neuberger MR is reported to have said in the Daily Telegraph newspaper of 17th March 2012 that the rule of law cannot survive, let alone thrive, if the judiciary, the judicial decision making process or decisions themselves are undermined. And by the same token we must ensure that the decision maker is impartial, so that his personal predilections or prejudices may not pervert his judgments. At this juncture I am reminded of what A.M. Ahmadi J observed in Advocate -on-Record Assn. v. Union of India (1993) SCC 441, para 273, which was:- '...the need for an independent and impartial judiciary manned by persons of sterling quality and character, undaunting courage and determination and resolute impartiality and independence who would dispense justice without fear or favour, ill will or affection. Justice without fear or favour, ill will or affection, is the cardinal creed of our Constitution and solemn assurance of every Judge to the people of this great country." 28. Justice should not only be done but it must also be seen to be done. Therefore, if a previous conduct of a Judge is tainted no matter how impartial he would act in the future his judgments would be perceived as suspect with bias. In this regard I may quote here an observation from H.L. Dattu J in Narinder Singh Arora v. State (Govt of NCT of Delhi), (2012) 1 SCC 561, para 6, wherein it was observed as follows:- "A person who tries a cause should be able to deal with the matter placed before him objectively, fairly and impartially. No one can act in a judicial capacity if his previous conduct gives ground for believing that he cannot act with an open mind or impartially." 29. At this juncture I would place on record the positive performance and active role of the Pakistan Bar Council (PBC) since I have taken over as its Vice-Chairman in January, 2016. Full appreciation is also liable to be accorded to the various PBC Committees and its Members. In particular great appreciation is to be afforded to the Enrolment Committee of the PBC and its worthy Chairman, the Hon'ble Mr. Justice Mian Saqib Nisar and two of its valiant and upright Members i.e. M/s Muhammad Shoaib Shaheen and Malik Ghulam Mustafa Kandwal. The Enrolment Committee travelled throughout Pakistan and interviewed over 900 candidates and cleared the entire back log of five years only within six months. The respective Appeal Committees of the PBC also deserves a note of commendation as they have almost disposed of all the Appeals, whether old or new. Special congratulations deserve to be extended to the Legal Education Committee of the PBC and all of its worthy Members so also its Chairman, who very incisively put a break on the mashroom growth of law colleges throughout the Country. The entire process adopted by the Legal Education Committee was participatory in nature as it invited the Vice-Chancellors, Registrars, Principals and all the stake holders for discussion and debate before proposing the new amendments to the Rules. It is needless to add that many tried to influence the worthy Members and respective Committees of the PBC but I am very happy to bring on record that each and every matter was tackled purely on merit and merit alone. If the principle of merit followed by the PBC since January, 2016 till date is adopted by the PBC (in the future), other Bar Councils, Bar Associations and governmental departments, historic milestones can be achieved. 30. In the end may I sum up by saying that the task of a judge can become very difficult if there is little assistance from the members of the Bar. I am convinced that the bench and the bar will have to support each other, as two wheels of the same chariot, in order to maintain judicial independence that has been achieved institutionally. A very heavy responsibility rests on our shoulders. But even in these hard times, we must remain true to ourselves and to our nation. We are part of the Pakistani society. We know its problems and we live its history. We cannot live in an Ivory Tower, but have to live the life of this country. We are aware of its harsh realities. Our respective roles, as judges and lawyers, is to render public service and not extract power.