FULL COURT REFERENCE UPON THE APPOINTMENT OF JUSTICE MUSHIR ALAM AS THE CHIEF JUSTICE OF THE SINDH HIGH COURT

Address by
MUHAMMAD AQIL,
President, Karachi Bar Association

[17.02.2011]

• My lord, the Chief Justice of the Sindh High Court, Mr. Justice Mushir Alam

• My lord, the Senior Puisne Judge, Mr. Justice Gulzar Ahmed

• My lords, the Companion Judges of the Sindh High Court

• Mr. Anwar Mansoor Khan, the President, Sindh High Court Bar Association, Karachi

• Mr. Asadullah Memon , the General Secretary , Malir Bar Association

• Mr. Ali Rahim the President Income Tax Bar Association

• Mr. Iftikhar Javed Qazi, Vice Chairman, Sindh Bar Council

• Mr. Abdul Fatah Malik, Advocate General, Sindh

• Mr. Shahadat Awan, Prosecutor General, Sindh

• Mr. Nazar Akber, Deputy Attorney General for Pakistan

• Hon'ble former Judges of the High Court

• Former Presidents and Secretaries of the Sindh High Court Bar Association and the Karachi Bar Association

• Members of the Pakistan Bar Council and the Sindh Bar Council

• Members of the Bar

• Ladies and Gentlemen.

2. Today we have gathered in this Full Court Reference to welcome his lordship Mr. Justice Mushir Alam on his assumption of the exalted office of the Chief Justice of the Sindh High Court.

3. Indeed, my lords it is a matter of great pride and immense satisfaction for every member of all the Bar Associations, in particular the Karachi Bar Association, and my personal self, that my lord Justice Mushir Alam, for who we have the highest respects and admiration, has become the Chief Justice of the Sindh High Court. My lord's appointment as the Chief Justice of the Sindh High Court has been confirmed after careful deliberation and consideration by the Judicial Commission in accordance with the procedure prescribed by the 18th and 19th Amendments to the Constitution; and such an appointment has come as no surprise to the members of the Bar considering his lordship's integrity and competence, which speak for themselves.

4. His lordship was born to a lawyers' family on 18.8.1956. His grandfather, Moulvi Abdul Rauf, served as a counsel for the Maharaja of the Gawaliar State. His late father, Muhammad Akram was a leading senior lawyer of his time. His late uncle, Manzar Alam, a veteran worker of the Pakistan Movement, also served the legal profession as an outstanding lawyer. His lordship is the third generation in the legal field. My lord completed LLB from the S.M. Law College, Karachi. He joined the Karachi Bar in 1981; and was enrolled as an Advocate of the High Courts in 1983. He played an active role in the bar activities. He held the offices of the Honorary Joint Secretary and then the General Secretary of the High Court Bar Association, Karachi. He was elected as a Member of the Sindh Bar Council, and later he was appointed as a Standing Counsel for the Government of Pakistan in 1998; and the last two positions he held till his elevation on the Bench on 20th April, 1999.

5. His lordship worked for the all Pakistan Trade Union Congress, an affiliate of the Brotherhood of Asian Trade Union (BATU) and the Worker Confederation of Labour (WCL). He was nominated as the link person in Pakistan, for the implementation of International Labour Standards or ILO norms in Pakistan. He attended a large number of regional and international conferences and workshops under the auspices of the APTUC, BATU, WCL and ILO. He was also the Chairman of the Development Committee of the High Court, and the focal person for the brotherhood of Trade Union, Manila.

6. Needless to say, a man with so much legal knowledge, experience and aptitude had to be at some point considered and chosen to be appointed as a Judge of the High Court, which came about in 1999. As a humble and patriotic person, hoping to contribute towards the development of Pakistan and to benefit its people at a greater level, my lord Justice Mushir Alam accepted the difficult and highly responsible position, hearing and deciding cases in all the areas of law. As a Judge my lord has become known for his equitable approach, while maintaining sagacity between legal precedents and statutes, ensuring certainty and complete justice.

7. My lord's approach in providing relief to those who deserve it, while hearing any matter, in the interest of justice has earned him a spot as one of the greatest Judges in the long history of our superior judiciary. My lord's vast knowledge of law with respect to all the areas and his elephantine memory are just a few of his qualities, which deserve a rich applause. If one were to only glance at the numerous judgments contributed by Justice Mushir Alam, that one would actually comprehend his role in the improvement of law. The precision and accuracy of my lord's judgments are outstandingly commendable.

8. My lord Justice Mushir Alam is a prolific reader; and his acumen to use the Information Technology is second to none. On top of this he has a resounding command over the English language, which is the language of law in the sub-continent. Apart from this, my lord is well-focused and very quick on the uptake. With these skills and an uncompromisable integrity, Justice Mushir Alam's judgments contain detailed but relevant and accurate facts, a summary of rival contentions of both facts and law, an incisive sifting and analysis of both the facts and law and finally an unassailable verdict. He has indeed made the act of 'judgment writing' more meaningful.

9. My lord has always been keen to hear cases. While he has been most respectful to all the lawyers, Justice Mushir Alam has always been encouraging to the younger lawyers, who have appreciated his guidance. Till date I have yet to hear a single lawyer complaining that he may have been ridiculed by my lord. I would venture to the extent of saying that the patience and Courtesy extended by Justice Mushir Alam, while hearing cases, is exemplary and all the other learned Judges of all the other Courts may well perceive it as a trend and example to follow, so as to make the adversarial and painful environment of litigating, both healthy and conducive. Another aspect of my lord's disposition that stands out of his numerous qualities is his continuous commitment and strive to combat rampant injustices by hampering laws which contradict the fundamental norms of morality. In so doing, my lord has liberalized the pre-requisites of writ jurisdiction, in order to dispense complete justice and mould relief.

10. Justice Mushir Alam verily believes the law to be an instrument of social change. His judgments amply bear such a theme. In Muhammad Yousaf v. Dr. Madad Ali PLD 2002 Karachi 328 the impact of the newly inserted Section 22-A in the Cr.P.C vis-a-vis the availability of writ jurisdiction was brought to surface by our worthy Chief Justice. In M. Wahidullah Ansari v. Zubeda Sharief PLD 2002 Karachi 414 the ouster clause available under the Cooperative Societies Act, 1925 was closely scrutinized. Again in Mst. Aqila Begum v. Pakistan Employees Coop. Housing Society Ltd. PLD 2004 Karachi 1 our worthy Chief Justice has further elaborated on ouster clause under the 1925 statute of Cooperative laws. Ittehad Cargo Services, National Hotel, Lahore v. Rana Rafaqat Ali PLD 2002 Karachi 420 is a very important judgment in the field of arbitration and territorial jurisdiction. In Shafi-ur-Rehman v. Fateh Muhammad PLD 2002 Karachi 511 the ambit of section 8 of the Specific Relief Act was redefined so as to include the claims for damages and mense profits alongwith possession. Ms. Lilian Sen v. Mrs. Phyllis Merlin Xavier PLD 2003 Karachi 270 is a path-breaking judgment on the aspects of succession laws wherein the Islamic Law, Christian Law and Canon Law have been analyzed. The commitment of Justice Mushir Alam to protect the environment from de-gradation and upholding the right of life, envisaged in the Constitution, can be gauged from Clifton Centre Association v. CDGK PLD 2003 Karachi 477, wherein underscoring the requirements of good governance and transparency, Justice Mushir Alam was pleased to declare public hoardings to be an invasion of the right of life. The judgment reported as FOP v. Muhammad Harris Hasan PLD 2004 Karachi 119 is a notable critique on extradition laws, while in the case of Dr. Prof. Haroon Ahmed v. M/s. British Airways PLD 2004 Karachi 439 the frontiers of the International Convention on Carriage by Air have been revisited, so much so that the judgment appears in International Law Journals and is the subject matter of debate and discussion in seminars on International Law, transnationally. Ghulam Abbas v. The State PLD 2005 Karachi 255 reflects the rendezvous of Justice Mushir Alam with criminal law in which he has re-prescribed the parametres of the grant of bail. Syed Mehmood Ali v. Network Television Marketing (Pvt) Ltd. PLD 2005 Karachi 399 is another master piece of Justice Mushir Alam; but this time it is on the law of torts and defamation. In Muhammad Raheel Sarwar v. University of Sindh Jamshoro PLD 2006 Karachi 82 we have seen Justice Mushir Alam's commitment to protect the rights of students, while in Muhammad Hanif Khan v. Province of Sindh PLD 2006 Karachi 531 he has shown his determination to protect the right of property, entrenched in the Constitution. In the case of Quaid-e-Azam's Mazar, Management Board Karachi v. Province of Sindh PLD 2006 Karachi 536 it has been held that after 4.4.2005, no building within the prescribed radius of the Qauid's Mazar could exceed the height set out in the building regulations. In Muhammad Qasim v. Province of Sindh PLD 2007 Karachi 85 Justice Mushir Alam was pleased to annul the grant of land under the Land Grant Policy on grounds that the Courts would not allow the retention of ill gotten gains. Tacitly, he has been pleased to apply the contours of "unjust enrichment" to the facts of the case. The judgment in Madina Electric Market v. CDGK PLD 2009 Karachi 309 is very close to my heart because in this case Justice Mushir Alam was pleased to direct the local government and police authorities, operating under the Sindh Local Government Ordinance, 2001, and the Police Orders, 2002, to remove all obstructions and encroachments from public streets and footpaths. The case of Mst. Ummatullah v. Province of Sindh PLD 2010 Karachi 236, unequivocally confirms the profound legal acumen of Justice Mushir Alam. In this case, my lord was pleased to cancel the permission granted to a CNG station on a converted residential plot. This judgment is rich in jurisprudence and renders an in-depth analysis of diversified legal precedents. Very recently, my lord has been pleased to extend the principle of equality to encompass in the newly inserted Article 10A of the Constitution in Zainab Garments (Pvt) Ltd. v. FOP PLD 2010 Karachi 374, while in Farooq Saleh Chohan v. Govt. of Pakistan 2010 Karachi 394 the placement of the Petitioner's name on the ECL was found to be ultra vires as the issuance memos. were neither reasoned nor speaking and the non-provision of the copies were found to be in violation of Articles 4, 10A and 15 of the Constitution. The law journals are replete with my lord's wisdom and the above were just a few illustrations.

11. In the last six decades, since the advent of Pakistan, we have seen our superior judiciary in travail. In the Moulvi Tamizuddin Khan case (PLD 1955 FC 240) the Federal Court overturned the correct pronouncement of the Sindh Chief Court, indirectly permitting the Governor General to dissolve the popular assembly. In the Usif Patel case (PLD 1955 FC 387) the Federal Court refused to invoke the doctrine of necessity on grounds that certain laws would become void in view of the lack of consent of the Governor General, however, such judgment was seen to be short lived and in the Governor General's Reference No.l of 1955, PLD 1955 FC 435, the Federal Court for the first time in the contemporary history of the civilized world invoked the doctrine of state necessity. In State v. Dossa PLD 1958 SC (Pak) 533 the Supreme Court was pleased to fortuitously approve Kelsen's theory of revolutionary legality, while indirectly endorsing the overthrow of the government and abrogation of the 1956 Constitution. In the case of Asma Jilani (PLD 1972 SC 139) the Court found General Yahyah Khan to be a usurper and held that martial law can never be imposed by a military dictator, which at best could only be imposed by a civilian President. This constitutional victory was momentary as in the Begum Nusrat Bhutto case (PLD 1977 SC 657) the Supreme Court of Pakistan validated General Zia-ul-Haq's martial law. Indeed, in the Haji Saifullah case (PLD 1989 SC 166) the Supreme Court of Pakistan was pleased to find the dissolution of the Junejo government to be unlawful, but no relief was granted in view of the imminent elections. In Nawaz Sharif v. FOP PLD 1993 SC 473, the Supreme Court restored the Nawaz Sharif government, however, the real victory came through Al-Jehad v. FOP (PLD 1996 SC 324), popularly know as the Judges' case, in which the Supreme Court iterated a new discipline in judicial appointments. In the case of Liaquat Hussain (PLD 1999 SC 504) the Supreme Court was pleased to declare the establishment of Military Courts to be ultra vires and in particular Justice Irshad Hassan Khan was pleased to reject the Attorney General's request to invoke the doctrine of state necessity on grounds that such doctrine has been permanently buried by the Supreme Court of Pakistan. However, the same Justice Irshad Hassan Khan, on subsequently becoming the Chief Justice, resurrected the doctrine of state necessity condoning another martial law in Zafar Ali Shah v. FOP (PLD 2000 SC 869). 26th January, 2000 was a black day for the legal fraternity when the PCO was prescribed. Except for six valiant judges of the Supreme Court, all others in the superior judiciary took oath under the PCO, except for the ones who were not offered the PCO oath. From 2000 till the mid of 2006 the superior judiciary accepted all dictations from the ever powerful executive. It was only towards the end of 2006 that the Apex Court annulled the privatization of the Pakistan Steel Mills (PLD 2006 SC 697) and took up the case of missing persons. The fateful day of 9th March, 2007 was a catalyst. It altered the course of judicial history of Pakistan. The executive had activated the malafide proceedings of the Supreme Judicial Council against our valiant Chief Justice of Pakistan, Justice Iftikhar Muhammad Chaudhry, who despite all odds and pressures plainly refused to budge an inch or become a party to any illegal or unlawful action. Hence the first phase of the Lawyers' Movement commenced. The Full Bench headed by Justice Khalilur Rehman Ramday restored the Hon'ble Chief Justice in July 2007 (see PLD 2010 SC 61). However, the final assault upon the superior judiciary was afflicted through the so-called Emergency of 3rd November, 2007, which was followed by an illegal PCO, slapped upon the members of the superior judiciary. Our valiant Judges refused to take oath under the PCO, whereafter the second phase of the Lawyers' Movement commenced and continued with all its fervour and exuberance. The Hon'ble Chief Justice, Justice Iftikhar Muhammad Chaudhry was restored, and the ill-fated judgment of Iqbal Tikka (PLD 2008 SC 178) whereby the illegal Emergency and PCO of 2007 were upheld, was reviewed and set aside by a larger bench of the Supreme Court in Sindh High Court Bar Association v. FOP PLD 2009 SC 879. Also our worthy Supreme Court annulled the National Reconciliation Ordinance, 2007 in the Dr. Mubashir Hassan case (PLD 2010 SC 265).

12. Perhaps and seemingly all has become well. Lest we may not forget our heroes of the Lawyers' Movement and the person who singularly stand out in the forefront is none other than our present Chief Justice, Justice Mushir Alam. At all material times he was given the lucrative offers to resume office, become the Chief Justice of this Court or the Islamabad High Court or to be elevated to the Supreme Court. He shunned all such enticements and even refused to take a second oath of office, thus attaining the ever-new heights of integrity and discipline. Sir You have set an unrivaled example and shown to all others the correct part towards uprightness and rectitude. If what Justice Mushir Alam has done recently, had been done by his predecessors, Pakistan would not have been where it is now!

13. Justice Mushir Alam is an icon of the precise strength and perseverance required to be a pillar of our legal system. His consistent efforts to the cause of justice shine as a beacon of hope for the people afflicted by constant injustice in our country.

14. In the end I, on behalf of all the members of the Karachi Bar Association and on my behalf, sincerely pray that may Allah bestow upon you the courage and fortitude so that you may discharge your duties with honour and dignity.

Ameen! Pakistan Zindabad!