HON’BLE MR. JUSTICE MAQBOOL BAQAR
FULL COURT REFERENCE
HELD ON 04.04.2022
ON THE EVE OF HIS RETIREMENT
Mr. Justice Umar Atta Bandial
Honourable Chief Justice
Hon’ble Judges of Supreme Court of Pakistan
Mr. Khalid Javaid Khan
Attorney General for Pakistan
Mr. Hafeez-ur-Rehman Chaudhry
Vice Chairman, Pakistan Bar Council
Ch. Muhammad Ahsan Bhoon
President, Supreme Court Bar Association
Members of the bar and press
Ladies & Gentlemen
Good morning and Assalam-o-Alaikum
I vividly recall the day I was offered to be nominated as a judge of the Sindh High Court. When I returned home that day, my mother was on the prayer mat praying for our safety and well-being. After consulting her and the rest of my family, I agreed to accept the nomination despite my initial reluctance. Like many other colleagues, I believed that despite the many burdens concomitant with holding judicial office, this opportunity would enable me to play my role in upholding the Constitution and dispensing justice.
2.During my judicial career, I have often thought about Lord Brougham’s speech on Law Reform in the House of Commons in 1828. He said:
“It was the boast of Augustus that he found Rome of brick and left it of marble. But how much nobler will be the sovereign’s boast when he shall have it to say that he found law dear, and left it cheap; found it in a sealed book, left it a living letter, found it in the patrimony of the rich, left it in the inheritance of the poor; found it the two-edged sword of craft and oppression, left it the staff of honesty and the shield of innocence.”
3.Today, as I prepare to lay my judicial robes as the clock strikes midnight, I sit before you to appraise my two decades as a judge of the superior courts. I hope that I too have played a humble role in making justice more accessible and in alleviating the agony of the most vulnerable. Nonetheless, I would be remiss to let these precious moments go to waste and not share some thoughts on the state of justice in our country.
4.During my time on the bench, I have been a witness to a number of consequential events. One such event occurred in March 2007 when the then Chief Justice was capriciously removed from office. In an unprecedented move, lawyers and members of the civil society from across the country came out in protest. As the regime’s repression and attempts to emasculate the judiciary became more severe, so did the resolve of those struggling for the rule of law and supremacy of the Constitution. It was through this revolutionary movement, which supported, not the restoration of an individual but a return to a democratic dispensation that the deposed judges were reinstated and the independence of the judiciary secured. Today, more than a decade since that movement, it is worth asking whether we, the judiciary, delivered all that we promised, for without sincere and candid introspection, we would be adrift. This question is perhaps particularly pertinent given that the country finds itself in the midst of another constitutional crisis and is looking towards the judiciary to once again preserve our democratic order from crumbling into tyranny and despotism.
5.I believe that despite our efforts, we have fallen short of expectations. Delays and pendency remain at an all time high across all courts in the country. The reality ought to be disconcerting for all stakeholders. It is, therefore, imperative that we remove encroachments in the path of expeditious and inexpensive justice and build dams against unnecessary delays in adjudication with sincerity of commitment and a single minded focus on fulfilling our constitutional role.
6.This brings me to the issue of separation of powers. The famous Constitutional scholar Lord Dicey had said that in the field of constitutional law, the delicate balance between the various institutions is similar to the work of bees when constructing a honeycomb. Balance is maintained to a large degree by the mutual respect which each institution has for the other. In nascent democracies like ours, courts are often called to second guess policies which fall within the purview of the executive. While it may be tempting to intervene, such intervention arrests the evolution of political institutions and therefore results in the backsliding of the democratic process. We must remain conscious of the mandate of the Constitution and must not substitute our moral and political beliefs for the express command of the Constitution. Unbridled judicial activism spells the death of the rule of law.
7.Speaking of the rule of law and particularly the independence of the judiciary; critical to our independence is transparency in both: judicial appointments and removals. Given that dictatorial as well as democratic regimes have attempted to subjugate the judiciary, our proclivity to jealously guard our freedom is understandable. Nonetheless, independence may not degenerate into judicial dictatorship. We must not become prisoners of our past and inward looking in our approach. Opacity erodes the public’s trust and confidence in the judiciary. The judiciary would, therefore, do well to hold itself to the same standards of transparency, objectivity, and meritocracy that it holds every other institution to.
8.I think it may also be time to discuss the elephant in the room: there is an increased perception that judicial appointments and disciplinary proceedings are influenced by extraneous considerations. Notwithstanding the merits of such claims, the gravity of this perception cannot be overstated. Resultantly, we must evolve an objective criterion for appointments and also make proceedings before the Supreme Judicial Council more transparent. Needless to say, it would be devastating if the tenure of office of a judge is in reality made dependent on the acceptability of his judgments by those wielding power, and the prospects of further elevation of a judge are jeopardized on account of his judgments not being well received by certain quarters. Justice Holmes of the US Supreme Court suggested that the “life of the law has not been logic, it has been experience.” Experience suggests that unbridled discretion, particularly when vested in nonelected institutions results in rewarding loyalists and those amenable to the dictates of powerful quarters, at the altar of meritocracy and fairness, thus, stunting the development of democratic institutions.
9.Another vital aspect which, even though it pertains to the internal dynamics of the judiciary, but has a very serious bearing on its independence, impartiality, and integrity is the issue of assignment of cases. The United Nations Special Repertoire on the independence of judges has urged for a fair and objective criterion for the assignment of cases which would protect judges from undue interference. Exclusion of certain judges from the hearing of sensitive cases on account of their independent and impartial views has an adverse effect on the impartiality of judges while also tarnishing the public’s perception about the independence and integrity of the judiciary. This practice also tends to affect the morale of judges who are consigned to less significant benches and fosters feelings of estrangement amongst members of the bench. While speaking about alienation, let us also address an issue that has created fissures amongst members of the bench. As someone has frequently dissented with my brother Judges. I have been in agreement with Chief Justice Hughes of the US Supreme Court when he said “A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”
10.Nonetheless, an enviable practice of our judicial tradition was that judges in the majority or in dissent would refer to those they disagreed with as their ‘learned brother’, thus, implying that notwithstanding their disagreement on the interpretation of certain legal provisions, the other judges’ views too were learned and thus deserved respect and reverence. Nonetheless, the manner in which we have referred to each other while differing with each other’s views in the recent past should cause immense discomfort to all of us. Can this country expect us to be temperate, balanced, and respectful when we are incapable of displaying the most common of civility and courtesy to our own colleagues?
11.I see members of the media in attendance. Who can forget their historical role in the reinstatement of the judiciary in 2009 and the return to democracy in 2008? Nonetheless, journalists today are more vulnerable than they ever were. The attack on and abduction of journalists, including of two journalists who mostly cover Supreme Court proceedings, and the Court’s abdication of responsibilities emboldened those who trample fundamental rights and the right to free speech and expression. It also hurt the public’s confidence in the Court’s ability to dispense justice without fear or favour, affection or ill-will. In a democracy governed by the rule of law under a written Constitution, the judiciary is entrusted to safeguard fundamental rights and poise evenly, the scales of justice between the citizens and the State. Let us also remember that as the Supreme Court, we neither control the sword nor the purse. Our power rather lies in our legitimacy. “The Court’s concern with legitimacy is not for the sake of the Court itself but for the sake of the nation to which it is responsible.” The judiciary must, therefore, resist such flagrant abuse of rights with full force. To quote Justice Learned Hand “The right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many, this is, and will always be, folly but we have staked upon it our all.”
12.While speaking about a multitude of tongues, the world we live in is very different to the one we inherited. The phenomenal rise of social media, while causing issues such as the proliferation of fake news, something which judges too have been a victim of, has also facilitated the right to democratic expression by improving access to platforms where information may be shared and received. Recent attempts to control these platforms and use laws such as the archaic sedition law to muzzle voices including of students may be a harbinger for times to come. The Courts ought to jealously safeguard fundamental rights. Archaic laws and practices which were used by colonial rulers to rule over and control an indigenous population have no place in a modern, democratic state.
13.As the Apex Court, we are the public’s last hope. They come here from across the country in the hope that they will be heard. As such, we must be empathetic, kind, and afford them a patient hearing. Hubris, aggression, and justice rushed are all recipes for justice crushed. It is about time we develop a people-oriented approach to adjudication. Judges particularly in our part of the world need to be cognizant of the severe disparities and volatility that underpin our society. We should rather be sensitive to the struggle of the common man and should be attuned to humans that we are applying the law to. The more mechanized or high handed the judiciary, the further it moves from the application of justice. An empathetic and people-oriented approach to adjudication is also critical to the judiciary’s own independence. Leaders and Presidents in Latin American states, for instance, have targeted the judiciary by playing on the public’s dissatisfaction with elite institutions. We must, therefore, remember that our job is not to shatter dreams and hopes but to preserve them. We must not capriciously bulldoze hopes and homes but do all we can to save them.
14.People may think that this is a rather pessimistic tale but in the words of Gramsci, “pessimism of the intellect, and optimism of will.” Or in the words of Faiz:
“Yun hee hamesha ulajhti rahi hai zulm se khalq,
Na un ki rasm nai hai, na apni reet nai,
Yunhi hamesha khilaye hain hum ne aag mein phool,
Na un ki haar nai hai, na apni jeet nai;
Isi sabab falak ka gila nahin karte,
Tere firaq mein hum dil bura nahin karte
Gar aaj tujh se juda hain tu kal baaham hungay,
Yeh raat bhar ki judai tu koi baat nahin,
Gar aaj auj pe hai talaae raqeeb tu kya,
Yeh 4 din ki khudayi tu koi baat nahin”
15.In the end, I want to thank all those who have made this journey so memorable. My gratitude to my colleagues and my staff including my senior Private Secretary, Mr. Aamir Sheikh, my Private Secretary, Mr. Rizwan Ashraf, my Senior Court Associate, Abdul Jamil, my Law Clerks, Syed Shahrooz Bukhtiyar, Mirza Moiz Baig, Junaid Alam, my security Incharge, Mohin Abbas, my Qasid, Gul Nawaz, my Driver, Fahad Sajjad and my domestic staff. I cannot miss remembering my driver Saleem, my gunman Khalid and other security staff who laid their lives in the line of their duties in a Bomb attack in 2013.
16.I would also like to thank my mother, Anwar Fatima, my wife, Fehmida, my children, Ali, Hassan and Hussain, my brothers, Mashood, Mahmood and Abbas, and my sister, Talat Zehra and their spouses. They stood by me during the most testing of times and often suffered the consequences of my choices. May Allah bless My father, Syed Ali Ashar’s soul who played a major role in making me into what I am.
17.As a judge I have heard and decided many cases. Today, I leave to the Court of public opinion to pass judgment to acquit or condemn me and unsparing historians to record my fleeting life.
18.In conclusion, I thank the Almighty and the people for bestowing this great honour and privilege on me for which I shall ever remain grateful. May God bless you all.