President Supreme Court Bar Association

ADDRESS ADDRESS by Syed Ali Zafar, President Supreme Court Bar Association Your lordship, Mr. Justice Anwar Zaheer Jamali Chief Justice of Pakistan Honourable judges of the Supreme Court Learned Attorney General for Pakistan Vice-Chairman Pakistan Bar Council Designated members of the Bar Councils, Office Bearers of Bar Associations Learned members of the Bar Ladies and Gentlemen Dear Colleagues Beginning of a judicial year is a great tradition, which has always brought the bar and bench closer together. It is an opportunity to reflect on the glories and mistakes of the past years, to see where we have failed and what we have gained for the preservation and improvement of the cherished values of justice, fairness and rule of law, and to set out what we see as the challenges for the coming years. This is, at the same time, a day of reckoning and admiration, and an occasion for accountability and understanding between bench and bar. My Lords, as I speak, Pakistan faces a most serious crisis. Hundreds and thousands of our citizens are suffering in the throes of violence at the hands of criminals and terrorists, who have banded together to strike at our very foundations and beliefs, and damage our beautiful country which our forefathers made to enable us to live and breathe as freemen. Lawyers, who are the intellectual frontline of the country's civil society, are now the main target of attack. The three attacks on lawyers and judiciary in Islamabad, Quetta and Mardan, in which more than 100 lawyers have been martyred has not diminished the legal community's commitment to face this danger with courage and foresight. I reiterate that an attack on the lawyers of Pakistan is an attack on justice and therefore an attack on the basis of Pakistan which was created also by one of the eminent lawyers, Quaid-e-Azam Muhammad Ali Jinnah. I believe we are in the cusp of history and in this adversity I see an opportunity for a coordinated effort by all, the Bench and the Bar, political parties, Government, and last but not the least, the public supporting each other to clam this menace and intolerance and banish them from Pakistan. No doubt, the surest and best way forward is to strengthen democratic norms and values, and build independent and empowered institutions. An example of how democracies need to function through exercise of collective wisdom of Parliament, open debate including criticism in public arena and harmony between different organs of the State, was more than aptly demonstrated when the Constitutional Amendment allowing Military Courts to deal with cases of terrorism was passed. A petition was filed challenging the amendment, but the Supreme Court, in the same national interest, while upholding the principle of supremacy of Parliament, as enshrined in the Constitution and acting strictly in accordance with law, rejected the notion of basic structure of the Constitution and dismissed the petition. As consequence the media and the public too took ownership of the decision. In a democracy, indeed acceptance of such decisions taken through use of collective wisdom should be the norm. But by democracy I do not mean democracy of numbers but a substantive democracy where opposition is respected, human dignities upheld and a citizen can walk in the country and abroad with a pride saying - I am a Pakistani. This no doubt is a very difficult task, but not impossible to achieve. In it, the role of the courts, besides that of the civil society is very important. Indeed Pakistan is a federal democracy and our Constitution envisages democracy as the raison d'etre of Pakistan. This is why, therefore, I shall call the Courts of Pakistan as the Courts of Democracy, Justice and Fair play. The creation of military courts alone will not be sufficient to deal with the challenges. I am a believer that the ongoing war on terror cannot be won on the battlefields only. Military action and guns provide the civil society only a respite. But at the same time a heavy responsibility lies on the Government to improve good governance, implement social justice and eradicate social evils, all as provided for in the Constitution. It is only when people have a stake in the system that success will be guaranteed. One such issue is education. The 18th Amendment did a great service to education when it made a fundamental right that every citizen of Pakistan within the age of 5 to 15 shall be educated compulsorily and freely at the cost of the State. Unfortunately this fundamental right has not so far been utilized by society, the legal community and even under the suo motu jurisdiction of the Court. An uneducated electorate cannot create a democracy of merit. This is an area in which lawyers have to take a lead. We are grateful to our parents and to the State that we have been able to wear black robe of profession of law and now this is our duty to see that the members of our society are similarly educated so that they join the soldiers of tolerance instead of becoming a slave of intolerance. Let us also not forget the IDPs (Internally Displaced Persons) who had to leave their homes and hearts. It is also the Government's duty to get the IDPs properly rehabilitated with all the civil and legal rights of the citizens of Pakistan. In this endeavor, the Courts and lawyers also need to concentrate on making the legal system more efficient, accessible and just, so that the grievances of the common man, ' who is the real beneficiary, may be adequately addressed. When it comes to enforcement of fundamental and human rights and their violation, there has to be no compromise. The army and the civil society too have to be on the same page, and I repeat, precisely on the same page, discharging their respective responsibilities in this crucial hour. No speech at the beginning of a legal year is complete unless it sheds light on the relationship between bar and bench, which is the most important barometer to judge the performance of the legal system. Traditionally in Pakistan the Bar and the Bench have recognized themselves to be the two wheels of the same chariot. But unfortunately this relationship had an up and down trajectory. When I took over as President of SCBAP, this beautiful relationship had reached its lowest ebb as the Bar boycotted the reference of an outgoing Chief Justice and refused to give him a farewell dinner. After the restoration of the judiciary it seems that the trend had, at that time, moved towards public popularity and, while seeking the same, even the lawyers were denied their basic right of presenting their cases without fear or favour before the Judge. Mr. Abdul Hafeez Pirzada, one of our most eminent and senior lawyers, who died with his boots on, was even denied the right of hearing when he was on his deathbed. When a Hon'ble Judge leaves this earthly aboard, the legal community is not behind in giving respect to the departed soul. I am sanguine in saying that lawyers expect the same from the judiciary. However all that has changed and this year we have seen remarkable achievement. The Chief Justice of Pakistan has opened the doors of communication. The honourable senior puisne judge next to him is known as a "Lawyer's Judge" and has ensured that the problems of the bar are addressed and its needs, accommodated. We therefore look forward to an era of co-ordination and mutual respect. All that the lawyers ask is a proper hearing and less of cross-examination by the Judge hearing the case. This brings me to the matter of "Suo motu" jurisdiction, which is and always has been a double edged sword, and the wrong use of which in the past has been a matter of much criticism as reflected in the various speeches of my illustrious predecessors. Let me say that the proper and structured use of this power of the court, even if termed as judicial activism, is no doubt essential for the independence of judiciary and for creating confidence in the public mind. Hence treating the issue of "missing children" as a case of human rights is such proper use. But we have seen in the past, this jurisdiction is also capable of becoming a tool of injustice and judicial adventurism, or violation of due process or principles of fair trial, unless it is exercised with 'the utmost caution and circumspection" and in accordance with the principles of "judicial restraint". Judges are not required to undertake social reform or impose social sense of justice, or interfere in Governmental or policy matters through this jurisdiction nor make statements on social issues except through judgments, which are based on some legal axiom. The fact that a 'Judge speaks through a judgment" is the golden rule which great Judges have always followed. The impression is that these oral observations, which do not form a part of the judgments and are mostly related to social evil of the country, have been the cause of clash of different organs leading to the erosion of the principle of trichotomy of powers. Looking forward, the legal community hopes to work towards structuring and removing arbitrariness in the exercise of this jurisdiction. By providing .a right of appeal against an order under this jurisdiction to another bench of the Supreme Court will go a long way in removing possibility of errors. I may next deal with some of the problems in the administration of justice, which I had identified when I became President. First the Supplementary List was causing havoc with the professional lives of lawyers. I am glad that this has been done away with. Second there was a tendency to fix a large number of cases which never came up for hearing leading to great loss of lawyer's time and litigant's money and leading to frustration to all. We are grateful that now only those cases are fixed which can actually reasonably get done on the day. Third the Court has been accommodating in granting adjournments on genuine reasons. We also are now putting into place SOPS to ensure that adjournments are not sought unless necessary and that the consent of the other lawyers is obtained, where possible. When it comes to challenges ahead, I cannot but help notice that mushroom of law colleges are coming up in the country some of whom are unable to maintain the standards that a lawyer should be equipped with before he comes into the field. It is for the Bar Councils under the Bar Council Act to deal with this growth as well as on the universities, which give affiliation to such so-called institutions of learning. The profession is already overcrowded which sometimes leads to non-ethical practices. Bar Councils are required to improve the institution in which it operates. I am sure the senior advocates who after elections adorn the Bar Councils will take notice of this situation. I have spoken about democracy, and the need for implementing and accepting the principles of collective wisdom. The Pakistan Bar Council Act also provides for collective wisdom to be exercised through a mechanism for dealing with the misconduct of a lawyer. Taking over this jurisdiction under a Rule of the Supreme Court is, in my view, contrary to the Bar Council Act and the independence of the Bar, and I hope that in the coming year this shall be done away with. This brings me to the final issue. They say that the train of justice is always late. Part of the reason for the rising tide of backlog of cases in Pakistani courts is the lack of legal reform urgently needed for over hauling of Pakistan's legal system and non-use of latest technology for case management. As the President of SCBAP, I am happy to announce that we have got together 1300 members of our best legal brains, perhaps one of the largest think tanks in the world, to carry out a massive exercise of suggesting legal reforms in 23 different fields of law. The Attorney General has consented to hold a final conference on this in October and we shall then be publishing our suggestions in the form of a green book. I may also mention that the answer to the issue of "justice delayed is justice denied" is not in increasing the number of Judges (the Bar is against ad hoc appointments and we still hold the same)', but in providing a vibrant and viable system of Alternate Dispute Resolution through mediation, negotiation and arbitration. Many progressive countries have given this system a trial and succeeded in taking the load off the judges and thereby ensuring speedy justice. Arbitration is the future arm of civil justice and needs the active support of the courts and the legal community, without which, we cannot hope to achieve any progress in its acceptability. Let us all work together to see that the justice train arrives in time. In the end may I pray that to achieve peace, brotherhood, equality, fraternity and liberty of men, triumph over fear, get rid of ignorance and have courage, and above all, establish rule of law, let us play our role in making the legal system of the country stronger, more just, independent, effective, robust and better for the future. Thank You