ISLAMABAD - A day before taking oath of office of Chief Justice of Pakistan, Justice Tassaduq Hussain Jillani shared his thoughts as to how he wants to see the Supreme Court function during his tenure.
Addressing a Full Court Reference held in the honour of outgoing Chief Justice Iftikhar Muhammad Chaudhry, Justice Jillani said that many people have shared with him a perception that the thin-line of distinction between the requirements of Article 199 and 184(3) is being blurred.
“There is need to consider and determine the limits and contours of jurisdiction under Article 184(3) of the constitution with a view to discourage frivolous petitions and prevent the misuse of jurisdiction by vested interests.”
The chief justice designate believed that good governance and the rule of law have a symbiotic relationship. “Good governance is not possible without the enforcement of rule of law in which every organ and institution of the state including the (apex) court has a role to play within the parameters of its authority spelt out in the constitution and the law,” he said.
Justice Jillani maintained that the Supreme Court on account of its mandate under Article 184(3) and 187 of the constitution may be called upon to fill the gaps between the law and the social dynamics, but while doing so the court has to defer to an equally important constitutional value of the tricotomy of powers as also the canons of fair trial, particularly in view of Article 10A of the constitution.
“Because what we observe and hold has a consequence and attains finality,” he further said. Quoting US Supreme Court’s Justice Robert H Jackson remarks, “We are not final because we are infallible but we are infallible only because we are final,” he said, “We are mortals.”
Lauding the role of the outgoing chief justice for the independence of judiciary, he said; “Justice Chaudhry has transformed the Supreme Court of Pakistan from a formal constitutional court to a Supreme Court with a Human Rights face, in which the essence of constitutional interpretation is people oriented (and the one) leading to a reconstruction of judicial power and process.” He said during the tenure of Justice Chaudhry the apex court has been to root in constitutional democracy and root out military rule.
Saying that the people wanted to know what would happen after December 12 when Chief Justice Iftikhar lays down his robe, Justice Jillani told about the days when Justice Chaudhry was made dysfunctional as chief justice and he was member of the bench that heard the petition filed by him, challenging the Reference filed by the then President-General Musharraf. He said on July 17, 2007 the deposed CJP was to address a function at the Islamabad Bar Association, but just a few minutes before his arrival there was a big bomb blast causing death of eight persons and injuries to many. The city was tense and so was the court.
“Around midnight a senior member of the bench, which was hearing the case, walked to my suite in the Judges Enclave and asked me that since the situation was tense, would it not be advisable to adjourn the case for a few days till the things settled down. Perhaps he wanted to test my morale. I said, ‘Absolutely not. Let them blast the court. We will announce the judgment on the street, on the Constitution Avenue.’ But I added that this may be my view, let’s have a second opinion from another member of the bench i.e. Justice Nasirul Mulk and we went to his suite and his answer was the same.”
At stake in the petition filed by the chief justice were the seminal values of democracy and judicial independence, said Justice Jillani. “Three days after the episode i.e. on July 20, we announced the judgment and restored the chief justice. I fondly recall those days. The court was infused with a strong determination to abide by the mandate of its oath to preserve, protect and defend the constitution.”
He stated that the restoration Justice Chaudhry by the court was not glorification or reinstatement of an individual but a vindication of judges’ sacred oath of office. “This spirit, this resolve and determination to abide by the terms of the oath, would continue to inspire us for the times to come and shall survive the retirement of the Chief Justice (Iftikhar Chaudhry).”