Dec 10: The lawyers’ struggle against the arbitrary dismissal of judges is, in fact, a struggle for the enforcement of the fundamental right of access to justice and other basic human rights, deposed Sindh High Court chief justice Sabihuddin Ahmed told a seminar in the bar room of the Sindh High Court on Monday.
Justice Ahmed was warmly welcomed and profusely garlanded when he arrived at the SHC Bar Association premises to address the seminar entitled ‘Role of Lawyers for Enforcement of Human Rights in Pakistan’ in commemoration of the 59th anniversary of the Universal Declaration of Human Rights.
SHCBA President Rasheed A. Razvi also read out a paper reiterating the Bar’s resolve “to face any consequence in seeking the restoration of the pre-November 3 judiciary”.
Justice Ahmed refused to comment on the Provisional Constitution Order in reply to reporters’ questions after the seminar, saying that they might be misconstrued as a judicial pronouncement because he was still the chief justice of the high court. The seminar was attended by a large number of lawyers, including bar representatives. Pakistan Bar Council member Hafiz Abdur Rehman Ansari came from Lahore to express solidarity with the Karachi lawyers.
Recounting the history of justifiable rights and liberties in Pakistan, Justice Ahmed said fundamental human rights were made enforceable under the 1962 constitution following a campaign launched by lawyers. Representative rule is also a basic right and the bar associations employed their collective strength to protest against the perversion of this right in the 1964 presidential election and the 1977 parliamentary polls.
By far the most effective campaign launched by the legal fraternity, he added, was the one following the filing of a reference against the chief justice of Pakistan on March 9. The principle that a judge suspected of misconduct should be proceeded against before the Supreme Judicial Council has never been doubted. It was the suspension of the CJ through the non-existent inherent powers, the maltreatment meted out to him and the informal detention imposed on him that aroused the indignation of lawyers and the public at large.
These actions were perceived as an attack on the very basic right of access to justice. The independence of judges is co-related to the security of their tenure and no judge can be fearlessly independent unless he is assured that he cannot be removed until and unless specific allegations against him are proved before a tribunal of his peers. No judge, he said, can give fair and impartial decisions if he thinks that wrong decisions will land him in detention.
About the role of the judiciary, he recalled that the 1969 Supreme Court judgment in Shorish Kashmiri’s case declared that the burden to prove legality of detention without trial was invariably upon the detaining authority. Subjective satisfaction of the authority was insufficient and adequate objective grounds had to be shown. Under Article 199, Justice Ahmed said, it is the duty of high courts to interfere when a government functionary is refusing to carry out his lawful duty.
In the 1988 Benazir Bhutto case, he further recalled, the Supreme Court gave meaning and content to the directive principles of policy, which embody socio-economic rights enunciated by the universal declaration of 1949. The rights and liberties, the SC held, should guarantee freedom not merely from arbitrary restraint but also freedom from want, from poverty and destitution and from illiteracy and ignorance. The judgment commenced the SC’s suo motu human rights jurisdiction.
Those who were not prepared to accord economic, social or cultural rights the status of human rights, Justice Ahmed said, could not reconcile to the newly-defined role of the judiciary. They thought these matters reside exclusively in the domain of executive policy. The courts could no longer confine their inquiry to the legality of the exercise of authority; they were, as a matter of duty, required to see that the public power was exercised fairly and honestly, he said.
SHCBA President Rasheed Razvi said for the first time a large number of judges have shown their resolve or an independent judiciary by not taking an oath under the PCO. A heavy responsibility has fallen on the lawyers’ shoulders to fight for the rule of law and independence of the judiciary. The current ‘martial law regime’, he said, has also struck hard on the press and electronic media and the lawyers were determined to fight for the cause of freedom of expression also.
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