CJ stresses need to ensure rights of accused

ISLAMABAD: As military courts set up under the 21st Amendment try militants behind closed doors, Chief Justice of Pakistan Justice Nasir-ul-Mulk emphasised the obligations of a judge – as the guardian of the text and spirit of the Constitution – to ensure that the rights of the accused were not violated in the process of criminal adjudication.

“The modern criminal justice system is broadly tasked with meting out retributive justice while simultaneously protecting the rights of the accused,” the CJP observed on Thursday while speaking at a full-court reference to honour the late Justice Mamnoon Kazi, a former judge of the Supreme Court.

Legal experts are attaching a great deal of significance to the CJP’s speech in the wake of the April 16 decision to stay the execution of militants sentenced by the military courts on an application filed by rights activist Asma Jahangir on behalf of the Supreme Court Bar Association.

The chief justice reminded lawyers and judges that the judiciary was the guardian of the constitutionally protected vestiges of the French Revolution, namely life, liberty and property of the people.

“It is incumbent upon every judge to check the excesses of the administration and to protect people’s freedom,” he observed.

He cited a 1995 verdict by Justice Kazi in the case of Mohammad Abbas versus Sagheer in which the late judge had laid down the principles of overturning the acquittal of a person by an appellate forum.

A true form of democracy, the chief justice observed, would only manifest itself when the judiciary, as the guardian of the Constitution, would actively ensure the executive’s compliance with the dictates of the Constitution.

This liberal philosophy of tolerance and protection of constitutional democracy permeated Justice Kazi’s jurisprudence, who always maintained fidelity to the constitutionality sanctioned equality of all before law, the chief justice said and also asked the judges and lawyers to make a promise to become an incarnation of the philosophy of liberal egalitarianism Justice Kazi lived by.

JUDGES’ APPOINTMENT: Advocate Hamid Khan, representing the Sanghar Bar Association which had challenged the 18th Amendment, argued before a 17-judge full court on Thursday that he had serious reservations about some of the recent appointments made on the recommendations of the Judicial Commission under the new procedure laid down in the aftermath of the 18th Amendment.

“But I cannot withstand the idea or even thought of such appointments made by politicians because they have not matured enough to even conceptualise the enormity of the task of appointing judges,” he argued.

The counsel reminded the court that the 1996 Al-Jihad Trust case, which had set the procedure of appointment of judges, was a reaction to the wanton and reckless manner in which judges were appointed by the political government (of the late Benazir Bhutto).

“Nations that do not learn from history are destined to repeat the same mistakes,” he emphasised.

Chief Justice Nasir-ul-Mulk asked the counsel if he was proposing a modification in Article 175-A of the Constitution, which deals with the new appointment procedure of judges, because that would require legislation.

Justice Jawwad S. Khawaja said it was a bit problematic since it was not courts’ job to bring amendments to the Constitution.

But Hamid Khan maintained that it would be an easy job if the Supreme Court held that the concept of the Parliamentary Committee under Article 175-A was alien to the Constitution.

Published in Dawn, May 8th, 2015

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