FULL COURT REFERENCE ON THE EVE
OF RETIREMENT OF
MR. JUSTICE MUHAMMAD SAIR ALI,
JUDGE, SUPREME COURT OF
HELD ON
Speech By:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY,
Chief Justice of
Mr. Justice Sair
Ali;
Brethren Judges;
Attorney General for Pakistan;
Vice Chairman, Pakistan Bar Council;
President, Supreme Court Bar Association;
Members of the Bar;
Ladies and Gentlemen!
Assalam o Alaikum!
We have assembled here to bid farewell to our
colleague Mr. Justice Muhammad Sair Ali, who is
laying the robes of his office after rendering meritorious services spanning
over a whole decade as a distinguished member of the Superior Judiciary,
including a period of more than 2 and half years as a Judge of the Supreme Court
of Pakistan.
Justice Sair Ali is
a fine embodiment of gradual rise and outstanding pinnacle of a youngman with a solid interest in law, philosophy, poetry
and religion. After attending the prestigious
Justice Sair Ali
has a deep interest in preservation of our national environment in all its
manifestation. He translated the United Nations Environmental Programme Dossier on "climate change". For this
singular service, he was given an International Award.
Justice Sair Ali is
unpretentious, humble, modest and soft-spoken. As a Judge he has displayed
exemplary qualities of patience and understanding of human affairs. He has
colossal understanding of law and full grasp of all judicial principles. His
opinions are balanced and his devotion to duty was remarkable. He has possessed
sterling qualities of head and heart, which he always utilized for deciding
cases according to law.
Clarence Seward Darrow an American lawyer and
leading member of the American Civil Liberties Union says, "Working people
have a lot of bad habits, but the worst of these is work". I must admit
here that Justice Sair Ali duly possesses this
quality. He is dedicated to his work and has always felt satisfied in spending
long time in work and has never felt tired after continuous long work.
In the words of Sir Winston Churchill,
"We make a living by what we get, we make a life
by what we give". Justice Sair Ali has
"given" a lot towards the rule of law, supremacy of Constitution and
the welfare of the society. He has rendered many instructive judgments in
various fields of law. He has added new dimensions and meanings to various
provisions of law and the constitution through interpretive process. I have
always found him eager to do substantial justice in the case before him.
Throughout his judicial career, his main thrust has always been on justice and
equity, without allowing the technicalities to defeat the ends of justice. He
has always utilized his abilities for doing justice between the parties.
Besides delivering various valuable judgments, he also remained a member of the
Bench which heard and decided the cases of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC
879), Justice Khurshid
Anwar Bhinder v. Federation of Pakistan (PLD 2010
SC 483), Dr. Mubashir
Hassan v. Federation of Pakistan (PLD 2010 SC 265) and Dr. Mubashir Hassan v. Federation of Pakistan
(Civil Review Petition No. 129 of 2010).
We claim to live in a civilized society. The
principle of rule of law has been considered to be the foundation of a
civilized society. It ensures application of laws without any discrimination.
Plato, an Ancient Greek philosopher, has written that "where the law is
subject to some other authority and has none of its own, the collapse of the state,
is not far off; but if law is the master of the government and the government
is its slave, then the situation is full of promise and men enjoy all the
blessings that the gods shower on a state". Aristotle endorsed this view
by saying that "law should govern, and those in power
should be servants of the laws".
The concept of rule of law was also embodied
in the Constitution of Madinah which was given by the
Prophet Muhammad (PBUH). The Constitution in its Articles 15 and 17 expressed
that freedom; justice and equality were based on humanity itself. In Islamic
jurisprudence, based on Sharia, the principle of rule
of law was formulated before the twelfth century, as such, no official, not
even the caliph, could claim to be above the law. Thus, the essential characteristic
of the rule of law are the supremacy of law; justice; equality before the law;
restriction on use of arbitrary powers; civil liberties and the independent
judiciary. In modern times, A.V. Dicey is regarded as a great proponent of rule
of law. He, in his book "Introduction to the Study of Law of the
Constitution" has written that "the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary power, and
excludes the existence of discretionary authority on the part of the government
... every man, whatever be his rank or condition, is subject to the ordinary
law of the realm and amenable to the jurisdiction of the ordinary tribunals.
... the general principles of the constitution are
with us the result of judicial decisions determining the rights of private
persons in particular cases brought before the Courts ...." Almost all the
nations of the world, have adopted the Universal Declaration of Human Rights,
which in its preamble has declared that "it is essential, if a man is not
to be compelled to have recourse, as a last resort, to rebellion against
tyranny and oppression, that human rights should be protected by the rule of
law". The growth of a society would be impossible without the rule of law.
It was precisely for this reason that on 3rd
November, 2007 a seven-member Bench of Supreme Court in Wajihuddin
Ahmed's case, passed an order restraining the Government of Pakistan, i.e.
President and Prime Minister of Pakistan from undertaking any action, which was
contrary to Independence of Judiciary. Simultaneously, the Judges of the
Supreme Court and the High Courts were required not to make oath under PCO or
any other extra-constitutional instrument; and Chief of Army Staff, Corps
Commanders, Staff Officers and all the concerned Civil and Military Authorities
were restrained from acting on PCO and from administering fresh oath to the
Judges of the Superior Courts. This order was aimed at stressing the need for
judicial independence, full compliance with the dictates of the Constitution
and preservation of rule of law. Justice Sair Ali was
one of the Judges who declined to take oath under the Provisional Constitution
Order, 2007 and the Oath of Office (Judges) Order 2007, as such,
unconstitutionally he was not allowed to continue functioning. As a result of
the lawyers' movement, supported by civil society, general public and media,
eventually on the midnight of 15th March, 2009 government had to restore all
the Judges of the superior Judiciary which were unconstitutionally removed by
the then Army Chief on 3rd November, 2007. I have no hesitation in saying that
all that was the result of firm belief and heroic struggle of the lawyers'
community.
The events triggered by the 3rd November,
2007 action of a military dictator, the resistance of the Hon'ble
Judges, the historic movement of learned lawyers' community, watchful media,
informed civil society, followed by the landmark judgment of Sindh High Court Bar Association v. Federation of
Pakistan[1]
pronounced on 31st July, 2009, declaring the action as ultra vires, indeed marked a watershed in
the political and the constitutional annals of Pakistan. For the first time in
the chequered history of this nation, the superior
judiciary got confident enough to exercise its jurisdiction, call a spade a
spade and follow the command of the Constitution and enforce it in letter and
spirit. It was somewhat a clean break from the past. Thus, the present day
superior judiciary has emerged as a true custodian of the fundamental rights of
the people and the guarantor of the constitutional dispensation in the country.
It has been noted with concern that
constitutionally ordained obligations of the Court to exercise its jurisdiction
and take notice regarding infringement of fundamental rights are being
projected in a negative light by some individuals. Various Articles of the
Constitution like 184, 187, 190 and so on and the well-developed case law fully
empower the apex Court to take cognizance in a variety of situations to enforce
fundamental rights and do substantive justice. In Benazir Bhutto case[2],
the amendments in the Political Parties Act, 1962 regarding compulsory
registration of political parties, were challenged on the touchstone of
fundamental rights. Supreme Court declared certain provisions of law void being
inconsistent with the fundamental rights and held that the Article 184(3)
provided abundant scope to the Supreme Court for the enforcement of the
fundamental rights where the question of public importance was involved.
Furthermore, it would be for the Supreme Court to lay down the contours
generally in order to regulate the proceedings.
This Court has Constitutional authority in
resolving the disputes or issues among Federating Units. It also gives opinion
when so solicited through Presidential Reference on question of law. In the
Presidential Reference No. 1 of 1988[3]
when there were issues of Budget due to dissolution of the National and
Provincial Assemblies, the financial and economic activities as well as the
administrative, judicial and security functions of the State were seriously
jeopardized. This Court answered the Reference to resolve the crucial situation
and opined that the Federal and Provincial governments could authorize
incurring of expenditure out of Federal and Provincial Consolidated Funds upto one month after the declaration of the results of the
general elections.
There are also precedents when the apex Court
was approached to adjudicate purely political matters. In Special Reference No.
1 of 1973[4] by
the president of
Various Articles of the Constitution envisage
the enforcement of fundamental rights coupled with such case law as the famous Shehla Zia case[5]
wherein the Court significantly extended the scope of Article 9 of the
Constitution and held that no person could be deprived of his life or liberty
save in accordance with law. Although word "life" had not been defined
yet, it does not mean nor could be restricted only to the vegetarian or animal
life or mere existence from conception to death. Life includes all such
amenities and facilities which a person born in a free country is entitled to
enjoy with dignity, legally and constitutionally. The right to life and
security entail protection against any threat emanating from internal or
external aggression. It is also the fundamental responsibility of the Court to
ensure that no damage is caused to the solidarity, integrity and sovereignty of
the state of
Thus, it is the singular duty of the apex Court
not only to enforce the freedom of life of people but also to ensure that
complete quality of life is provided to the citizens of
The role of apex Court is further highlighted
when under Article 146 (3), 152 and 159 (4) of the Constitution the Chief
Justice of Pakistan is entrusted with the power to appoint the arbitrator in
cases of Administrative relations between Federation and the Provinces and
issues of broadcasting. The instances of such powers and confidence reposed in
the judiciary can only be discharged if it is free and independent and the
decisions are made in the constitutional spirit without any fear, favour or ill-will though heaven may fall.
We know it very well that the concept of
sovereignty in Islam is that the Sovereignty over the entire universe belongs
to Almighty Allah and any authority exercised by the people of
Thus, it is incumbent upon the judiciary to
respond to cases of violation of fundamental rights and give authoritative opinion
on issues and question of law and public importance. The apex Court will
continue using its powers in the best interest of nation and within well
defined parameters set by the Constitution. No obstructions towards
independence of judiciary and rule of law would be tolerated in performing the
sacred duty of administration of justice.
We are aware that after the historic judgment
of 31st July, 2009 many consequences have flown including the removal of judges
from the superior Courts. Many incumbent judges of the superior judiciary were
made to leave, while in case of Balochistan, the
entire High Court stood vacant. But this is the price one has to pay for
establishing the rule of law and supremacy of the Constitution.
However, since the restoration of the present
judiciary, all the Hon'ble Judges of the Supreme Court
and High Courts have been performing their duties to the best of their ability
and with great alacrity and legal acumen. Despite the challenges faced in view
of high pendency and backlog of cases, present judges stretched themselves hard
to achieve remarkable object of disposal of cases and have authored many
landmark judgments on important constitutional and other judicial matters. I
look forward to the continued persistence and cooperation of my brother judges
for dispensing our constitutional duties in a most appropriate manner.
Now coming back to our brother Justice Sair Ali who is retiring today, I must say that he has a
keen insight on religion. He has great love and affiliation with the Prophet
(P.B.U.H.) and His family members, therefore, his
heart is full of grief for the supreme sacrifice of Hazrat
Imam Hussain (A.S.) and his companions.
To the surprise of many, I must mention here
that Justice Sair Ali does write poetry to express his
inner voice about things he Cherishes in life. Despite
his hectic schedule and full commitment as accomplished lawyer and a
distinguished judge, he has been able to focus on his passion for poetry. He
translated seminal work of Christopher Codwell's book
"Birth of Poetry" and got it published under the title "Nai Tanqeed".
At the end I would like to quote Catherine Pulsifer, an artist who said, "Retirement, a time to do what you want to do, when you want to do
it". After a long judicial carrier as a Judge and a lawyer, now he may be
able to relax and find time to spend with his family and also dabble in his
pursuit for poetry and propagation of his passion for providing purer
environment for his people. I wish a very happy, long and prosperous retired life
for Mr. Justice Sair Ali.
Thank
you very much