Islamabad April 15, 2012.
My brother Judges of the Supreme Court;
Honorable Chief Justice, Supreme Court of Azad Jammu & Kashmir
Honorable Chief Justices and Judges of the Federal Shariat Court, High Courts of Provinces, Islamabad High Court, and High Court Azad Jammu & Kashmir
Honorable Chief Judge Supreme Appellate Court Gilgit-Baltistan and Chief Judge Gilgit Baltistan Chief Court
Worthy Vice Chairmen and Office Bearers of Pakistan Bar Council and Provincial Bar Councils;
Learned President and office bearers of the Supreme Court Bar Association;
Learned Members of the District Judiciary;
Learned Federal and Provincial Law Officers;
Presidents and office bearers of the High Courts and District Courts Bar Associations;
Eminent Delegates, Judges and Jurists from foreign countries,
Learned Advocates of Supreme Court, High Courts and District Courts;
Distinguished guests;
Ladies and Gentlemen!
Aslam-o-Aliakum
I begin with a passage from the speech of the first Caliph of Islam, Abu Bakar (RA), which he made immediately after being elected to succeed the Holy Prophet Muhammad (Peace be upon Him): -
“I have been given authority over you although I am not the best of you. If I do well, help me; and if I do wrong, set me right. Loyalty is to tell the truth to a leader; treason is to hide it. The weak among you will be powerful in my eyes until I secure his rights, if Allah so wills. The strong among you shall be weak in my eyes until I get the right from him. If people do not follow in the way of Allah, He will disgrace them. Obey me as long as I obey Allah and his Prophet, and if I disobey them, you owe me no obedience.
This gives us, in sum and substance, the role of the governance system in any society governed, not by men, but by laws. If every person in authority in any branch of government follows this model in letter and spirit, most of the grievances now forming subject matter of protracted litigations in our courts would not be coming into existence at all and the people would be enabled to avail their rights and entitlements in the ordinary course, and not having to undergo the ordeal of seeking redressal of their problems and difficulties.
I am pleased to declare that with the conclusion of the final session today, the formal proceedings of the International Judicial Conference, 2012 would be coming to an end. I, therefore, on behalf of the Supreme Court of Pakistan and Law & Justice Commission of Pakistan would like to thank all the participants, especially, the eminent delegates from foreign countries, who have attended the Conference, having taken time out of their busy schedules, as also the trouble of long journeys. We have with us –
· Hon’ble Mr. Justice Abdul Salam Azimi, Chief Justice of Afghanistan;
· Hon’ble Mr. Justice Altamas Kabir, Senior Puisne Judge, Supreme Court of India;
· Hon’ble Mr. Justice Z.M Yacoob, Acting Deputy Chief Justice, South Africa;
· Mr. Hajjatoleslam Val Muslemin Syed Ebrahim Raisi, Hon’ble First Deputy to the Head of Judiciary of Islamic Republic of Iran;
· Dr. Alparslan ALTAN, Vice President, Turkish Constitutional Court;
· Dr. Selami, Judge Rapporteur, Turkish Constitutional Court;
· Dr. Livia Holden, Associate Professor, LUMS; Ms. Anne-Marie Hutchinson OBE, UK;
· Hon’ble Judge Morrison C. England, Jr, United States District Court, USA;
· Hon’ble Judge Delissa A. Ridgway, US Court of International Trade, USA;
· Mr. Jeffrey A. Apperson, President, International Association for Court Administration, USA;
· Ms. Hannah Tuempel, Manager of the International Centre for ADR, France;
· Dr. Livingston Armystage, Director of the Centre for Judicial Studies, Australia;
· Hon’ble Ellen Gracie Northfleet, The World Justice Project, USA;
· Barrister Katja Lilian Hamilton Samuel, UK;
· Professor Dr. Martin W. Lau, School of Oriental and African Studies, UK;
· Sir Peter Singer, Family Dispute Resolution Facilitator, England; and
· Dr. Tahir Mahmood, Chairman Institute of Advanced Legal Studies, India;
My special appreciation and thanks are due to those who have spoken at the Conference, taking pains in preparing and delivering papers, particularly, the chairs, co-chairs, panelists, facilitators and rapporteurs of the thematic groups for their excellent contribution in the working sessions. Credit also goes to the distinguished members of legal fraternity, who actively participated in the sessions of the Conference. Having observed the fervour and enthusiasm of the participants in attending the Conference and participating in its deliberations, I am inclined to conclude that we had a very successful event.
We have the honor to have organized, in the past, many such events of national and international importance with a view to widening the range of co-operation in matters of common interest and mutual benefit. In the year 2006, by organizing a similar conference, we had the occasion to commemorate the 50th Anniversary of the Supreme Court of Pakistan, which provided to the participants of that conference a unique opportunity to benefit from the insight of tremendous teeming brains of the legal fraternity from across the world, which greatly contributed in broadening our vision and shaping our efforts to meet the emerging challenges in the administration of justice. I must say that the sagacious involvement of stake holders helped us in shaping the contours of our judicial system, especially in formulating and designing the National Judicial Policy, 2009 in lines with the modern requirements and challenges. Surely, the present event will also provide us the inspiration and guiding thoughts for further reform and improvements.
As you are aware, the purpose of this International event was to discuss with the stakeholders the issues and challenges confronting the justice system and to deliberate over the options in relation to those issues and problems. In a sense, it was a consultative process. Indeed, the participants remained engaged in constructive deliberations and made positive contribution in this three-day International Judicial Conference, especially, those who presented the thought-provoking papers in different working groups. It was really an honor for our country in general, and for the Supreme Court of Pakistan and the Law & Justice Commission in particular, and for me personally, being the head of the two institutions to organize the Conference and receive and welcome our guests, particularly, the international delegates from different parts of the world. I would like to appreciate the members of the staff of the Supreme Court and the Law & Justice Commission, and other institutional stakeholders without whose active support and cooperation, this international event would not have seen the light of the day. Here, I recall George Crabbe, when he said, and I quote:
“Be there a will, and wisdom finds a way.”
No doubt, the justice delivery system not only in Pakistan, but the entire world over is confronted with the issues of pendency of cases and backlogs, and consequential delays in dispensation of justice. This Conference has provided a wonderful platform and a unique opportunity to the prudent and judicious minds of the judicial and legal fraternities to sit together and come up with suggestions and solutions, which should be something close to panacea for all ills and difficulties afflicting the system of administration of justice. I am sure the well-considered and substantive input provided by the delegates would go a long way in charting out our future plans of action to meet the challenges facing the system of administration of justice.
The role of judiciary like other organs of the State is crucial in achieving the dream of a peaceful and prosperous life on this planet. Role of the lawyers in any society is very prominent. It is no exaggeration to say that the lawyers have been at the forefront in every democratic, legal and constitutional movement. Indeed, no movement can achieve its objectives without the support, confidence and aspirations of the masses. In the recent past, when a military dictator attempted to subvert the Constitution and made the Judges of the Superior Courts dysfunctional and put them under house arrests along with their family members, the lawyers’ community came forward and launched a historic movement for the maintenance of rule of law, independence of judiciary and the restoration of the Constitution. Their movement, in collaboration with an active media and an informed civil society, played a pivotal role in the restoration of the Judges and the Constitution. I salute the lawyers, the media personnel and the members of the civil society for their heroic struggle and the sacrifices made by them in preserving and protecting the Constitution and upholding the rule of law. It proved how effective and meaningful a joint and a collaborative effort is?
Of course, the lawyers’ movement has increased the honour, dignity and prestige of the profession of law, which is apparent from the fact how people are idealizing the black coats’ profession. It is pertinent to mention here that this success has brought the system of administration of justice under an increased pressure to deliver to the litigant public and the masses. This added burden is to be shouldered primarily by the Bench and the Bar, which are the two proverbial wheels of the chariot of justice. Undoubtedly, the judiciary can administer justice with the cooperation and support of the members of the bar. The Bench and the Bar have to endeavour individually and collectively to achieve the common objective of expeditious and inexpensive dispensation of justice.
I may inform the august audience that after restoration, we gave serious thought to the problems faced by the judicial administration of the country. In order to ensure inexpensive, expeditious justice and to improve the working of judicial sector the National Judicial Policy was formulated by National Judicial (Policymaking) Committee in consultation with the judges, lawyers and professionals of other related agencies. The main features of the National Judicial Policy included the independence of Judiciary, eradication of corruption, reduction of the backlog at all levels of the judicial hierarchy. The lawyers enthusiastically responded to the initiatives taken by the judiciary to expedite the trial proceedings. The Policy was reviewed and reformed from time to time and the members of the bar were always consulted and their point of view reflected in this document. In future, further improvements will be brought, taking into account their valuable views and suggestions.
It gives me immense satisfaction to share with all of you that the National Judicial Policy has started showing results. The disposal rate of cases both at the superior Courts and in the district judiciary has seen a marked improvement. The High Courts, despite shortage of Judges, made efforts to decide maximum number of cases. The District Courts, however, did very well and gave excellent results and decided record number of cases. They have given this performance despite the fact that their strength has been inadequate. Though the cause lists should not be more than 20 – 25 cases per day, but it is usually seen something in excess of 60 to 70 cases per day, and in many cases more than 100 cases per day. There is an urgent need to create additional posts, which should be promptly filled. The strength of the appellate courts also needs to be increased.
I would like to point out that under clause (4A) of Article 199 of the Constitution, an interim order passed by a High Court in a case relating to assessment or collection of public revenues ceases to have effect on the expiration of a period of six months and the High Court is required to finally decide such matters within the said period of six months from the date on which the interim order is made. However, it is observed that despite the aforesaid constitutional clog, such matters continue to linger on for longer periods of time on one pretext or the other without any extension having been granted by the competent court. As a matter of fact, in view of the above constitutional provision, no extension at all can be granted by any Court. Since the interim order ceases to have effect on expiration of a period of six months from the date of passing of the order, the concerned authorities are well within their right to seek enforcement of the judgment/order, against which any such interim order is passed after the expiry of the aforesaid period of six months. To streamline the expeditious disposal of cases pertaining to assessment or collection of public revenues, it is desirable that sufficient courts are established. To completely thrash out the issue, we will be further examining it in the next meeting of the National Judicial (Policymaking) Committee.
In the modern times, while dispensing justice, the judges are called upon to deal with complex issues. It is, therefore, necessary that they should be fully equipped with sound knowledge, practical experience and training to meet the new and emerging challenges. Here, I would like to mention that the themes of the instant Conference were selected keeping in view the emerging challenges and their importance both at the national and international level. It is our belief and endeavour that the fruits of the goals of good governance, transparency and an egalitarian society must reach their beneficiaries, i.e. the masses and they are enabled to lead a peaceful and productive life in a healthy environment.
Ladies and Gentlemen:
Our objective in calling this Conference was threefold. First, to identify the problems/challenges facing our justice system; second, to stimulate future research dialogue and discussion in order to explore in detail the needs that we have identified at this Conference; and third, we hoped that this Conference would be generating new ideas and further initiatives to promote the accessibility, efficiency and effectiveness of our courts. I think that the discussions and deliberations in the conference successfully achieved all the three objectives.
The working groups of the Conference, having held valuable discussions and deliberations on their respective themes have drawn detailed conclusions and recommendations. The speakers before me have enumerated and highlighted the salient points of such recommendations.
The delegates of this International Judicial Conference 2012, re-affirm their resolve to adhere to the time-honoured adage that “There is one law for all, namely, the law which governs all laws, the law of our Creator, the law of humanity, justice, equity---the law of nature and of nations.”* Keeping this in mind, the further declarations of this Conference are as follows:
In respect of the Role of the Judiciary in the Promotion of a Culture of Tolerance it is declared that all stakeholders work together towards instilling the principles of the Rule of Law in Pakistan. It is recognized that Pakistan requires an objective mechanism to measure its adherence to the rule of law and it is declared that the World Justice Project’s Rule of Law Index and the Framework for Court Excellence be utilized in this regard. Given that the Judiciary must operate free from actual or perceived influence it is declared that no other branch of government should be allowed to exercise either direct or indirect control over critical inputs of the Courts. It is declared that the effective management of the court system by court administrators will allow judges to focus on their adjudicatory duties rather than administrative responsibilities. Courts must continue to decide cases on merits in accordance with the law expeditiously, and ensure the execution and enforcement of decrees and orders effectively. It is fundamental that honest and dedicated persons who share a strong commitment to the dispensation of justice be appointed as judges. It is further recommended that all authorities act in support of the Supreme Court in accordance with Article 190 of the Constitution. It is imperative to enforce the fundamental rights of the people of Pakistan as encapsulated in Articles 9 to 28 of the Constitution, in particular light of Articles 37 and 38 which provide guidelines for the promotion of social justice, eradication of social evils, and social and economic well-being of the people.
On the subject of Terrorism and Money Laundering, it is hereby declared that both Terrorism and Money Laundering constitute grave threat to civilized nations throughout the world. Pakistani laws dealing with these issues may be brought in conformity with international standards as well as Pakistan’s commitments under various international legal obligations. It is further declared that all relevant bodies such as law enforcement agencies, prosecutors and presiding officers of the trial courts etc., be provided the necessary training and capacity building in dealing with these offences. And that, hawala/hundi transactions to be discouraged including over-invoicing and under-invoicing through effective mechanisms of regulating with surveillance. It is also emphasized that Pakistan should seek to strengthen its Mutual Legal Assistance arrangements with various countries to ensure better coordination, information-sharing, timely and effective provision of support from the relevant law enforcement agencies operating in different countries.
in the subject of the Role of the Judiciary in Good Governance, it is hereby declared that: Given that good governance in advanced societies depends on strong and well entrenched institutions, it is recommended that the judiciary being a fundamental organ of the state governs itself more effectively and efficiently. It is recommended that the judiciary recognizes that its primary duty lies in interpreting and implementing laws and not in the governance of society which may come about only as an ancillary effect of its decisions. It is further recommended that the superior courts articulate a consistent and clearly defined doctrine of judicial review so that depending on the nature and context of the rights involved, relevant standards of review may be applied. It is also important that the judiciary exercises judicial restraint so that it may not be perceived as excessively encroaching upon the roles and functions of the coordinate branches of the government. It is also proposed that a Code of Conduct may be devised for judicial officers and also be strictly enforced. In dealing with complex commercial issues it is suggested that the judiciary relies on and utilizes expert knowledge and opinion so that a more informed verdict may be reached. Finally, it is recommended that the judiciary recognizes the role of quasi judicial bodies in the administration of justice and actively promotes and facilitates their functioning.
On the subject of Alternate Dispute Resolution it is hereby declared that the Bar should encourage advocates to participate in the mediation process and should recognize that ADR is not a threat to lawyers’ incomes but in fact an opportunity to expand their businesses. It was further recommended that ADR provisions of Section 89A of Code of Civil Procedure 1908, which are only optional at present, may be made mandatory in all civil proceedings. It was also proposed that to encourage parties to opt for mediation, effective cost sanctions be imposed at all stages in litigation proceedings and the cost ceilings presently in force by the High Court rules be removed. With respect to establishment of ADR centres, it was suggested that as a first step an MOU may be entered into between the Federal Judicial Academy and Karachi Centre for Dispute Resolution so that the FJA may avail of the services of KCDR’s faculty to train judicial officers in Mediation. To study the progress of ADR and to further devise policies for its promotion as a viable alternative to litigation, it is proposed that data regarding ADR cases may be tracked and analyzed pertinently cases decided by court mediation. It is finally recommended that ADR be introduced as an academic subject not only in law schools but also in institutions imparting business studies.
On the subject of International Arbitration it is hereby declared that the recent enactment of New York Convention 1958 and the ICSID Convention 1966 in Pakistan is a welcome step, which would help attract more foreign investment in to the country. It is highly recommended that these international treaty obligations be fully respected and implemented by the courts, both as a matter of rule of law but also to avoid adverse and unintended consequences under the relevant international law regimes.
in the subject of Judicial Education, it is hereby declared that Judicial Education should be re-focused on its most important objective which is sensitizing judges and other associated professionals to the pain of the litigants and instilling in them respect for popular wisdom. For the furtherance of this purpose, it is recommended that Judicial Academies impart to the judges not only knowledge of substantive law but also the skills most necessary and commonly used in their judicial work. It is further suggested that the time allotted for training in judicial academies also be increased, while the training itself be based on formal national standards of judicial education. It is also recommended that these Academies offer periodic refresher courses to enhance the capacity of judges and support staff. Finally, it is emphasized that the National Judicial Policy 2009 may not be interpreted as barring serving judges from getting posted in the Judicial Academies as teaching faculty.
On the subject of Parental Child Abduction and Transnational Jurisdiction it is hereby declared that cogent steps be taken to improve the efficiency of the UK-Pakistan Judicial Protocol on Children Abduction signed in 2003. More importantly, it is recommended that the Pakistani Government may strongly consider entering into treaties with countries to give effect to judgments in foreign jurisdictions. To ensure effective dispensation it is imperative to establish dedicated special benches at Provincial levels, along with inter-agency steering committees, focused primarily on issues of parental child abduction. Another possible mode may be to encourage the establishment of centers of help or NGOs which specialize in the particular needs of both parents and children threatened by the prospect or suffering from the reality of child abduction in any of its forms. Finally it is recommended that dispute resolution mechanisms, such as mediation, be employed in resolving cases of child abduction.
on the subject of Environmental Law & Public Interest Litigation it is hereby declared that the Bhurban Environmental Declaration-2012 is fully endorsed and it is agreed that information on environmental challenges and legal issues, and best practices be disseminated. It is further recommended that specialised environmental tribunals be strengthened and environmental training be provided. It is also important to ensure that judicial decisions on environmental cases be made available publically and promptly implemented while law schools should be encouraged to include environmental law in their curriculum and furthermore environmental law training be provided to judges and lawyers. It is also declared that a system to recognise exceptional contribution by judges and environmentalists be established and green benches with strong infrastructure of technical expertise be established and strengthened. Finally it is declared that in environmental and PIL cases the delinquent officers be penalized or burdened with costs in addition to the main relief.
On the subject of Gender Bias and Judicial Empathy it is hereby declared that a Judicial Commission on Gender Equality and Judicial Empathy be established. Judges, court staff and counsel be required to undergo training and capacity building through judicial academies on issues of gender bias and judicial empathy. A code of conduct on gender sensitivities be devised for all who are associated with the judicial system. In order to create wider awareness subjects relating to gender sensitivities and judicial empathy be included in the curriculum of law schools.
The detailed recommendations of each of the eight working groups of this Conference shall be made part of the final Conference Report which will be shared with all stakeholders for their information and pursuit as may be.
Ladies and Gentlemen:
I am sure that the conference has served the purpose, which was sought to be achieved through it. The well discussed and calculated deliberations will be swiftly adapted to enhance the efficacy of the judicial system and ensure rule of law and supremacy of the Constitution. The other ancillary benefits of such events include the support to joint and collaborative measures aimed at promoting international peace and security, fostering goodwill and friendly relations among all nations and encouraging settlement of international disputes by peaceful means.
Before parting, I thank you once again for the meaningful participation in the International Judicial Conference, 2012. I also applaud the national as well as international electronic and print media for the adequate coverage of this marvelous event by remaining associated with the proceedings of the Conference. I must appreciate the dedication and devotion of the Hon’ble Judges, organizers, rapporteurs, volunteers and all those who worked day and night to make this event a success. I extend my heartiest congratulations to all of them.
I wish all of you a safe and pleasant journey back home and sweet memories of your visit to, and stay in, the capital of Pakistan.
PRESS RELEASE
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