Judiciary won’t allow anyone to misuse authority: CJP

Says implementation on court verdicts should be made essential; asks Pakistan and India to break the ice and discuss water dispute; speaks in the 25th SAARC’s Law anniversary programme; Mehmood Mandviwalla highlights success of SAARC Law

KARACHI: The Chief Justice of Pakistan, Mian Saqib Nisar, on Saturday said it is becoming increasingly important to assert the supremacy of rule of law without which nobody can build and cement the foundations of the state.

Addressing a seminar on Arbitration and Justice Nasim Hasan Shah Memorial Lecture on the eve of the 25 SAARC Law anniversary, the chief justice said that through fostering a system where all are equal and there was impunity for none, the “social inequalities could be redressed and a system of accountability and transparency fostered”.

The chief justice said the judiciary will not allow anyone to misuse its authority. He said that implementation on court decisions should be made essential. He asked Pakistan and India to break the ice and discuss the water dispute.

He said that it is only through these innovative concepts that challenges emerging from poverty and delayed justice can be overcome but for doing so, the SAARC states must have meaningful contact with one another and work together in the spirit of good faith, cooperation, compassion and with foresight.

The chief justice said that SAARC presents an ideal forum in which regional states can come together and not only envision but implement a stronger and stable future for our region. He said that arbitration was just important as an integral part of the justice system but also the mobilizing force for commerce, business, investment and trade as well as technology exchanges and can contribute enormously to the development of the nation.

He said that there was no denying that the legal system was under threat in the country as we had lost members of bar to senseless violence over the years and the Quetta attack last year from Balochistan took an entire generation of its legal fraternity. He said that the bench and the bar must play a positive role in ensuring that institutions in our region are not only strengthened but also made powerful and independent, so that the principles of merit can flourish and accountability and transparency are strengthened.

The chief justice said that Pakistan’s system of governance was based on trichotomy of power but the beauty of the system was that there are checks and balances provided, which preclude any organ of state from encroaching on another. He observed that the judiciary was provided ample powers to review the administrative actions of the executive on the touchstone of fairness or misuse of authority or vires enactments of the legislature on the touchstone of the Constitution, along with matters of public importance and in aid of enforcement of fundamental rights.

However, he observed that power to do these things does not automatically solve the  problems faced by us as a nation.

Referring to the suo moto case of torture of 10-year-old girl in Islamabad, the chief justice said that our problems arising from poverty go beyond those few individual cases highlighted by the media adding that it is our collective duty to ensure social justice through our decision whatever possible. He said that after taking oath as the chief justice, it was his utmost desire to help build a judicial system that affords access to justice for all in a meaningful manner. “Affordable and expeditious justice, this is my priority,” he observed adding that costs of obtaining justice rise in line with the amount of time it takes matters to be decided.

He said that only gurantee for good governance and security is justice and for this forum he would like to take up the cause of transnational justice. He said that the judiciary in Pakistan stands against arbitrariness and unreasonableness in government decisions and has adopted and applied the seven principles of structuring of discretion. Besides, the judiciary has also promoted the principle of cabinet’s collective responsibility as enshrined in the Constitution to ensure the protection of people's basic and fundamental right.

The chief justice said that common problems faced by our countries and cause of grave concern for judges and members of the bar alike is the problem of disenchantment of the general public, which stems from denied justice and it is the need to collectively carve out a vision of our shared regional future.

The chief justice said that countries in the Saarc region face immense challenges, not the least of which was the crises emerging from our inability to tackle poverty and our collective failure to fulfill the dream of securing a society where social justice is achieved. However, he said that in spite of many challenges, the fact remains that SAARC member states are age-old civilizations with vibrant traditions and rich cultures and it is from our diversity as well as our commonalities that we can learn from one another.

“There is an intrinsic link, after all, between law, culture and progress and those states which recognize this linkage benefit greatly from interdisciplinary approaches for the purposes of securing a more prosperous society,” he observed. He referred to the example of Bhutan to assess the attainment of social justice where gross national happiness operates adding that it is measured against four key pillars including good governance, sustainable socio-economic development, preservation and promotion of culture and environmental conservation.

He also lauded the services of Justice Naseem Hasan Shah who played a tremendous part in shaping our law and the country into what it is today by rendering numerous landmark judgments for which he will always be remembered.

The Chief Justice of Sri Lanka, Justice K. Sripavan, said that people of the Saarc region have much expectation from the legal system and it is the duty of judges, lawyers to endeavor collectively to ensure dispensation of justice to the poor people and make efforts for social justice. He said that the legal fraternity of the Saarc region has identical and common goals and that is to dispense justice to the people and ensure that no person may be deprived of his fundamental rights due to weak administration or system.

He also lauded the services of the late Justice (retd) Nasim Hasan Shah as a lawyer and judge of the superior courts.

Senior advocate of Indian Supreme Court K.K Venugopal presented his paper on poverty as a challenge to human rights and said that the government would be violating human rights if it were not to take positive concrete steps for the purpose of rescuing that section of population suffering grievous poverty from its tentacles. He said that all basic fundamental rights are meaningless to the population suffering from utter deprivation and poverty and it is the misfortune of disadvantaged sections of the society that states have miserably failed in carrying out these obligations cast on them.  

President of SAARC Law Mehmood Mandviwalla highlighted the success of SAARC Law mentioning how the legal fraternity of the region have cooperated with each other for over a period of 25 years under the umbrella of SAARC Law. He further added that critics of the SAARC usually say that SAARC Summits are only a talk shop and usually blame India and Pakistan’s bickering for the impasse.

Supreme Court’s senior judge Justice Asif Saeed Khosa elaborated on the brilliant legal carrier of Justice Shah as a lawyer and a judge of the superior courts and said that he was a jurist of great eminence.

On the topic of arbitration-success and failures in the SAARC region, senior advocates Rakesh Munjal, Purna Man Shakya, Syed Ali Zafar and J.M Swaminathan presented their papers. They said that arbitration was an alternative dispute resolution, however, it could not become a successful mode for resolving disputes in the region due to complex procedures for enforcement of the award issued by the arbitrator.

Former president of Supreme Court Bar Association Syed Ali Zafar said that arbitration could help resolve commercial disputes and emphasized the need of domestic arbitration to compete at international level as well as necessary amendments in law for changing the decade-long arbitration law. He also suggested that an arbitration council could be set up at the SAARC level, which could effectively compete with the arbitration center at Dubai, Singapore and Malaysia as centers of arbitration.

On concluding the arbitration session, Chief Justice Saqib Nisar observed that arbitration in Pakistan, India and Sri Lanka is an effective tool to resolve disputes as usually from ancient times the issues used to be resolved through Panchayat in the Subcontinent region. He observed that arbitration is less expensive and necessary amendments should be made in the law for effective enforcement of the award issued by the arbitrators.

The chief justice of Sri Lanka, in his concluding remarks on arbitration session, observed that SAARC should make efforts for using the SAARC Law platform for international council of arbitration. Judges of Supreme Court, high courts and bar representatives also attended the conference.