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Military must act under govt direction: CJ Iftikhar

10 December, 2011

ISLAMABAD: Chief Justice Iftikhar Muhammad Chaudhry on Friday said no obstructions in the independence of the judiciary and rule of law would be tolerated.

He was addressing a full court reference held at the Supreme Court building on the eve of the retirement of Justice Muhammad Sair Ali. The chief justice said it was incumbent upon the judiciary to respond to cases of violation of fundamental rights and give authoritative opinion on issues and questions of law and public importance.

"The apex court will continue using its powers in the best interest of the nation and the within well-defined parameters set by the Constitution," he said.

Justice Iftikhar said the court was aware that after the historic judgment of July 31, 2009, many consequential events happened, including the removal of judges from the superior courts. Many incumbent judges of the superior judiciary were made to leave, while in the 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," the chief justice said.

Since the restoration of the present judiciary, all the 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, the CJ noted.

Despite the challenges faced in view of high pendency and backlog of cases, the present judges have stretched themselves hard to achieve the 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 the most appropriate manner," the CJ said.

He said that events triggered by the November 3, 2007 action of a military dictator, the resistance of judges, the historic movement of the lawyers' community, a watchful media, informed civil society, followed by the landmark judgment of the Sindh High Court Bar Association v. Federation of Pakistan pronounced on July 31, 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," he said.

He said that the present day superior judiciary had emerged as a true custodian of the fundamental rights of the people and a guarantor of the constitutional dispensation in the country.

However, the chief justice said that it had 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.

He said various Articles of the Constitution like 184, 187, 190 and so on and well-developed case law fully empower the apex court to take cognisance in a variety of situations to enforce fundamental rights and do substantive justice. The CJ said the Supreme Court had constitutional authority in resolving the disputes or issues among the federating units. It also gives opinion when solicited through a presidential reference on questions of law.

The role of the 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 the federation and provinces and issues of broadcasting, the CJ said, adding that instances of such powers and confidence reposed in the judiciary can only be discharged if it is free and independent and decisions are made in the constitutional spirit without any fear, favour or ill-will.

The chief justice said that whether it is Parliament, Executive or Judiciary, the Constitution has set limitations for every institution. He said that the armed forces too are bound to perform functions as entrusted to them by the law and Constitution.

"Under Article 245, they have to defend Pakistan against external aggression or threat of war under the directions of the federal government," the CJ said, adding that they are also under obligation to act in aid of civil power when called upon to do so.

The CJ said the armed forces of Pakistan perform the very noble function of defending the country.

Paying rich tributes to Justice Muhammad Sair Ali, the chief justice said that Justice Sair Ali has a deep interest in the preservation of our national environment in all its manifestations. He said that Justice Sair Ali is unpretentious, humble, modest and soft-spoken. As a judge, the chief justice said, Justice Sair Ali has displayed exemplary qualities of patience and understanding of human affairs. He further said that Justice Sair has colossal understanding of law and full grasp of all judicial principles.

Justice Iftikhar said that Justice Sair's opinions are balanced and his devotion to duty was remarkable. "He possesses sterling qualities of head and heart, which he always utilised for deciding cases according to law," the CJ said.

The chief justice recalled that besides delivering various valuable judgments, Justice Sair Ali 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).


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