He stated that the state and its institutions should command respect and loyalty of its people for their survival and exist to serve the people and preserve their rights and interests. He was addressing the opening day of a two-day conference ñ “Testing Times: reflections on Present and Future” ñ organized by the Institute of Chartered Accountants for Pakistan (ICAP) on its golden jubilee here at a local hotel.
ICAP president Rashid Rahman Mir, Clive Parritt-FCA, president Institute of Chartered Accountants in England and Wales, Hafiz Mohammad Yousaf and a large number of ICAP students and its ex-representatives were also present. The golden jubilee celebrations will continue on Saturday (today).
The LHC chief justice said one pillar of the state had realized its true role but the other organs of the state were finding it difficult to keep up. Perhaps, he added, they were not prepared to give up their privileges and shed old habits.
He said the mess we saw was the dust raised by the winds of change and what we all had to do was to be on the right side of the history. The CJ said the most significant feature of the moment was that people of Pakistan had realized that the state and systems existed for their benefit and the people were now asserting the right of ownership on them.
After decades of passive fatalistic acceptance of institutionalized injustice, he said, the people of Pakistan were threatening to challenge all the entrenched norms both inside the courts and upon the streets, terming it ferocious to cloud the issues through meaningless rhetoric and resurrection of non-issues ferocious.
He said that every effort was being made by vested interest to avoid answering the question raised, terming the times Pakistan was passing through testing, he added.
He said that the present day judicial system was transplanted in South Asia from across the seas by the British and while it catered for an effective and efficient resolution of disputes between the natives it did not offer much protection to citizens against the legislative and executive powers of the state, as the inhabitants, in fact, were not citizens but subjects. He said that the power to strike down legislative instruments or set aside executive action in violation of fundamental rights was kept at its barest minimum. He termed it unfortunate that, even after independence, the mindsets of the judiciary had not changed and decision after decision were handed out validating illegitimate actions at the expense of the people of Pakistan.
The LHC CJ said the sorry state of affairs continued for almost six decades at a very high cost. He said that judiciary had found itself unable or unwilling to protect the rights of the people again and again. However, slowly, through constant soul searching and generational shift, the realization set in that all organs of the state, especially the judiciary, existed for the benefit of the people who were the true and the real owners of the legal system, he said. The system, he added, was there to protect the people against excesses and highhandedness.
Encouraged by the assertion of independence by judiciary for the benefit of the citizens, a small spark of hope was kindled but when an attempt was made to reverse the gains, this small spark had turned into a prairie fire in 2007-08.
The chief justice said not just how a government came to power is important but it was also equally significant what it did thereafter ñ more particularly how it governed its people. He said if we were to compare Hitler’s Germany, Churchill’s England, or for that matter Mussolini’s Italy and Roosevelt’s America in the 1940s, the most obvious difference was the absence of a free press and an independent judiciary in the former. He said that a country where the press was muzzled and the judiciary enslaved, the system was fascist, not democratic. In such countries, he maintained, inhabitants were deluded of human liberty and dignity and deprived of basic fundamental rights.
He said if the legislature enacted a law which deprived a citizen of his right to life or property, the recourse was through the judicial review of challenging such statute in the courts. He said that the judicial review of legislative power was both recognized and ancient. He said that the power of judicial review was recognized in all civilized countries, including Pakistan, in the Constitution.
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