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Complete text of Chairman PPP’s address to Lahore High Court Bar Association

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Peer Masood Chishti Sahab,
President Lahore High Court Bar Association
Honorable Members of the Presidium
Distinguished Members of the Bar
Leaders of Public Opinion​
Ladies and Gentlemen
Assalam-o-Alaikum

Thanks

I would like to thank you for inviting me to speak here today…
It is a pleasure and privilege to be here…
I realize this is a very busy time for all of you…
Next month you will continue the fine democratic tradition of electing new leaders of the Bar…
The bar elections are a great model of democracy. You have never cried foul…
Never have you staged protests.
You have never held dharnas protesting dhandli…
You accept election results with great grace…
I appreciate when bar members accept the democratic mandate of their opponents …
We the politicians would do well to learn respecting the mandate of the people……

The Lahore High Court Bar has a rich tradition…
It is the oldest bar in South Asia…
At one time the Lahore High Court Bar held sway from Peshawar to Delhi…
These halloed halls have borne witness to the ebb and flow of history
This shrine of justice has shaped much of our past and will continue to mould our future
You, its members, have made history in the struggle for democracy, constitutionalism and rule of law…
The Lahore High Court Bar has been the vanguard of our nation’s democratic struggle…
It has a rich history…
The nation admires your struggle for constitutionalism…
We admire your struggle against dictatorship…
Whether it be against the dictatorship of the 1960’s…
Or whether it be against the dictatorship in 2007…
You have held the banner of democracy high…
History bears witness to the fact that when the Lahore High Court Bar rises, dictatorships fall.

The Founding Father of Pakistan Quaid e Azam Muhammad Ali Jinnah was a distinguished lawyer…
My grandfather Shaheed Zulfikar Ali Bhutto, the first elected Prime Minister of the country was also a distinguished lawyer…
I am proud of the Quaid, the Founder of our Nation…
I am proud of my grandfather, ShaeedZulfikar Ali Bhutto; The leader who gave this country a unanimous Constitution…
That is why I am really delighted to be in such august company…

Ladies and Gentlemen’

When I decided to accept the Bar’s invitation I was wondering what I would talk about…

There is so much to be said…
There are so many issues that I am tempted to talk about……
I shall share with you some of my thoughts on where we stand today in terms of democracy, constitutionalism and rule of law…
There is no better forum than this to talk about such issues…

The survival of our country depends on the continuation of democracy…
It is the duty of every individual and every institution to play its part in strengthening democracy…
This is a task in which the legislature, the judiciary, the executive, the bar, the media and the people all have a role to play…
As far as the people are concerned, we must acknowledge that the ethos of our people is democratic…
No matter how repressive the regime, dictatorship, has not been able to take root in our country…
Democratic political workers embraced martyrdom, endured exile, and suffered through imprisonment to further the cause of democracy…

They were lashed and brutally tortured…
I am proud to lead a Party that has made innumerable sacrifices in the course of our country’s struggle for democracy …

I am proud of the sacrifices of the heroes and heroines of democracy…
I am proud of the sacrifices of democratic political workers and the workers of the Pakistan People’s Party…
They have borne the scars of torture on their bodies like badges of honour.
But let us not dwell in the Past…

Ladies and Gentlemen

Collectively we all are responsible for our national failures…
We all are responsible…
The politicians made mistakes…
The establishment has made mistakes…
The judiciary also has made huge mistakes…

I will therefore not talk about the misfortunes that befell us. The ‘doctrine of necessity’ or the theory that ‘a successful revolution creates its own justification’… are just a few examples.
I will also not talk about the judicial murder of an elected Prime Minister…
I will also not speak about the vastly different, indeed opposing judicial verdicts in cases involving a prime minister from Larkana and a prime minister from Lahore…

This is part of our history…

But let us not talk about these things…

Let us move on…

Not long ago, in 2007, a military dictator imposed emergency and sacked over sixty honorable judges of the superior courts…
As we all know this led to a mass movement…
The public uprising eventually culminated in the restoration of the judiciary…
The restoration of the judges brought with it a wave of euphoria…
Some liked to believe that a new era of an independent and assertive judiciary had dawned…
A narrative was built that the courage of a few individual judges had paved the way for a truly independent judiciary…
Others however were not so optimistic…

It would be worthwhile to revisit the narrative that judges appointing judges guarantees independence of the judiciary…
Why is the mode of appointing judges so important?

It is the glory of the judiciary that the Bench has honorable men and women with divergent world views on issues in jurisprudence…
Pakistan Peoples Party believes in the empowerment and equal participation of women.
It was during my mother’s government that women were appointed to the Bench. It is a shame that now in the 21st Century we have still not had a women Supreme Court Judge.
It is not the ultimate glory of the judiciary if the Bench is seen as a monolithic bloc or a command regiment…
That is why the Parliament called for a broad based selection process for judges…
It introduced a Judicial Commission (JC) for the appointment of judges…
To disperse the powers of selection it also gave a modest role to the elected representatives of the people…
The bi-partisan Parliamentary Committee (PC) was given a limited role in the appointment of judges…

The Parliamentary Committee (PC) had equal representation of both government and opposition members of the National Assembly and the Senate…
It had limited powers to oversee judicial appointments…
However, the Supreme Court expressed reservations…
The Parliament, responding to the reservations, revisited the Constitution…
Through an amendment it placed restrictions on the Parliamentary Committee…
The Supreme Court however was still not satisfied…
It ruled that the decisions of the Parliamentary Committee were subject to judicial review…

Ladies and Gentlemen
From 2010-2013 the Judicial Commission (JC) made 126 nominations of judges in the Supreme Court and the five high courts…
Out of these 126, the Parliamentary Committee (PC) disagreed with only 8 cases…
However, the Court overturned all the decisions of the Parliamentary Committee…
It virtually meant vesting the powers of appointment of judges in the Judicial Commission…
President Asif Ali Zardari then filed a Constitutional Reference before the Supreme Court…
The President sought an opinion on the proper role of the Judicial Commission, the Parliamentary Committee and the President in the appointment of the judges…
He also asked whether any member of the Judicial Committee can also initiate names for the appointment of judges…

The Supreme Court ruled, (Quote):
“The role of the Prime Minister and the President in the appointment of Judges of the superior courts is nothing but ministerial, and after receiving the nomination from the Committee the Prime Minister and the President have no discretion but to forward /appoint the nominees” (Un-Quote)…

It clearly meant that the offices of the President and the Prime Minister were no more than mere post offices…

About the question of initiating nominations in the Judicial Commission the learned court merely quoted its rules…
The rules, it said, provided for nominations to be initiated by the Chief Justice of Pakistan or the Chief Justices of the High Courts and the Federal Shariat Court…
The substantive question of law remained unanswered…
All members of the Judicial Commission are judges except the Law Minister, the Attorney General and a senior advocate of the Supreme Court…
Thus the Chief Justice alone had been initiating nominations…
The Judicial Commission also made its own rules…
It decided to conduct its business in secrecy and not make public its proceedings…
As it is the honorable Chief Justice alone who initiates nominations…
These nominations are then endorsed by the Commission that has majority of members who are judges…
The proceedings are secret…
Neither the President nor the Prime Minister nor the elected representatives of the people have any role in the appointment of judges…
The honorable judges alone making the nominations and then selecting judges, deprives the bench of divergent world views on issues in jurisprudence…
It is not a question of integrity or competence of judges…
It is the issue of diversity of judicial minds that must adorn the bench…
I have heard some people describing it as appointment of judges by the judges, for the judges…
This may be an unfair comment but such comments have been made.
I urge you to think whether this mode of appointment of judges advances the cause of an independent judiciary…

I urge you to think whether the independence of the judiciary is guaranteed by vesting the power to appoint judges solely to the judiciary itself.

Or is it best served when the power to appoint judges is diffused between the Parliament, the President, the Prime Minister and the Bar Council?

Ladies and Gentlemen

When we talk of constitutionalism we should not forget that our Constitution has clearly defined the roles of government…
According to our Constitution, lawmaking is the responsibility of the Parliament, the judiciary interprets the laws and the Executive implements the laws…
The Constitution places special emphasis on this role of the Parliament.

Article 239 (5) States:
“No amendment of the Constitution shall be called in question in any court on any ground whatsoever”…

And 239 (6) states: “For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution”…
I am therefor surprised when I hear discordant voices about the powers of the Parliament to amend the Constitution…
I am surprised when it is said that the Honorable Chief Justice be consulted in the process of selection of Chairman NAB when the law does not provide for this consultation…
I am also surprised when it is said that the honorable Chief Justice be consulted in the appointment of Chairman and Members of the Federal Service Tribunal even when the laws made by the elected representatives of the people do not provide for this…
The honorable judges have taken oath to preserve and protect the Constitution…
But they alone have not taken this oath…
The President, the Prime Minster and indeed all members of the Parliament are also under oath to protect and preserve the Constitution…

In May 2006 my Mother Shaheed Mohtarma Benazir Bhutto and Mian Muhammad Nawaz Sharif signed a Charter of Democracy on behalf of their parties…
It envisaged the setting up of a Constitutional Court with equal representation of all federating units to decide constitutional issues…
I do not know why it was not incorporated in the Constitution at the time of the 18th Amendment…
The Constitution is a living document that regulates the relationship between the federating units…
It makes great sense to have a Constitutional Court with equal representation of all provinces to address constitutional issues…

When we talk of constitutionalism and rule of law I am reminded of the anguish of my Mother over the validation in October 1985 of every evil act of the dictatorship not only from March 1977 to that time but even beyond till December 1985…
Addressing the foundation stone laying ceremony of the new building of the Sindh High Court Bench Sukkur on March 2, 1989 she said;

Quote: “How can those who believe in the rule of law, those who believe in rational justice say that we will validate acts which have not been committed? How can we then stand up and say, on the one hand, we believe in constitutional rule and, on the other hand, say that we believe in a dictator who dictated the Eighth amendment consolidating everything”? Unquote
Can you say that all acts in the past are legal and all acts that will be made in the future are also legal?

Admittedly the Court alone has power to decide Constitutional issues…
It is an Awesome power…
But it is in the nature of power to crave more power, and honorable judges as human beings cannot be exempt from this human frailty…
Also, this awesome power, if not exercised with great care and humility can undermine the democratic process itself and easily become what many call a judicial tyranny…

Ladies and Gentlemen

There is also the issue of use of suo moto powers…
Legal experts, lawyers and professional bodies have expressed reservations about the manner suo moto powers have been used in the past…
The International Commission of Jurists (ICJ) after visiting Pakistan in September 2011 declared that the Supreme Court was exceeding the limits of a reasonable” use of suomoto powers…
This, the ICJ said,led to a corrosion of the rule of law and a blurring of the constitutional separation of powers…
The Commission asked that rules be adopted setting out the criteria for the use of suomotu procedures and for the allocation of cases to benches…
It will be interesting to make a comparative study of how many suomoto notices were taken during the last PPP government, and how many in the history of Pakistan.
It is for you to find out why unusual suomoto notices were taken during the PPP government and whether there is a need to regulate suomoto powers…
I am happy to note that a few days back the Senate Committee as a Whole has made similar recommendations…

Ladies and Gentlemen

A word about corruption…
No doubt corruption is a serious issue…
Unfortunately however we have witnessed too often how it has been used as a brush to paint black only one section of society..
We must challenge the double standard in pursuing corruption cases…
We cannot win the fight against corruption unless we do away with sacred cows syndrome…
There cannot be sacred cows; there must not be sacred cows in the fight against corruption…
Corruption is a deep seated national malaise…
It is a poor argument that some institutions are less corrupt than others…
It is wrong to have one set of laws for one section of society and another set of law for another section of the society…
We should also address issues in intellectual corruption and constitutional subversion…
The Provisional Constitution Orders (PCOs) promulgated by military dictators in the past have corroded our social and political foundations…
Those who upheld constitutional deviations, validated military take overs and dismantled democratic structures also have to answer many questions about honesty and impartiality…
Article 6 (2) of the Constitution states that any person aiding or abetting in the abrogation or suspension of the Constitution by use of force or show of force is also guilty of high treason…
I ask you to give serious thought to whether we should not vigorously pursue those who have subverted the Constitution or validated constitutional subversion through PCOs and court verdicts…

In the final analysis, law must serve the vast majority of the people:
the poor, the downtrodden, the homeless ones, those without shelter, the labour, the peasant, the middle classes, the ‘suffaid poash’.
Every one, that is, for whom the process of obtaining rights guaranteed in the books of law is an in-affordable pipe dream.
They are indeed the ones who are actually oppressed by the law.
And it is far too expensive for them.
The Pakistan Peoples’ Party is the party of Pakistan’s poor and Pakistan’s middle class.
The rich can afford to work their way through the expensive processes of the law.
The poor, as well as the middle class, remain deprived of the protection of the law.
In our system of courts, the broadest interface of the citizens with the law occurs in the subordinate courts.
Scant or no attention is paid to the improvement of the process of the civil courts and magisterial forums where these mills grind slow and inflict maximum pain.
The subordinate judiciary needs resources.
The Bar Associations need facilities.
The people need remedies.
Ours will be a mission to introduce reform, competence, transparency, efficiency, expedition and integrity to the legal processes in the subordinate courts of Pakistan.
We must have a poor-friendly judicial system. And we will have it.

Ladies and Gentlemen

I also wish to draw your attention to the growing misuse of the blasphemy law against minorities and other vulnerable groups, including a large number of muslims.
The PPP has always and will continue to stand by the marginalized, the vulnerable and the minorities…
We are deeply concerned and condemn the growing misuse of laws for silencing dissent and for oppressing minorities…
We welcome the recent Supreme Court verdict and its call for looking into this issue…
We hope that the Parliament will take note of the Supreme Court verdict and make appropriate legislation to prevent the misuse of the blasphemy law…
I urge you all to give serious thought to ending the misuse of this law…

Ladies and gentlemen

Finally let me say a few words about fighting terrorism and extremism and the National Action Plan…
Less than a month ago we observed the first anniversary of the martyrs of Army Public School (APS) Peshawar…
On that occasion there was a lot of talk about fighting terrorism but have we actually been implementing a nationwide action plan?

I salute the martyrs of APS…

Their blood illuminated the path for our nation to finally wake up to the scourge of militancy…
Before the APS massacre our nation was not united…
Many asked whether the war against militancy was our war or someone else’s war…
The Punjab Chief Minister went so far as to ask the Taliban to spare his province because he shared their world view…
Some demanded that the Talban be allowed to open offices in Peshawar…
The massacre of innocence changed that.
The martyrs of APS are our heroes… We salute them…

It was in the wake of their martyrdom that the National Action Plan (NAP) was adopted by an All Parties Conference (APC) over one year ago…

What happened to the NAP?…
Ever since the moratorium on the death penalty was lifted more than three hundred executions have been carried out…
May I ask how many of those executed were jet black terrorists, and how many were ordinary criminals?
May I ask whether we also hanged juveniles and mentally challenged people? under the guise of the NAP? And why?
May I ask what measures have been taken to fight terrorism and extremism?
I call it the Noon League Action Plan because there has been no action in critical areas for fighting extremism…
Banned organizations continue to function under other names
According to a reply to a parliamentary question last month, 61 militant organizations have been banned in the country…
The government also admitted that it does not know how many of them were working under new names…
The government also admitted that it does not know whether any action has been taken against the resurrected organizations…
That is why we call it the Noon League Action Plan…
In March 2013 during the PPP government a law was passed…
Under it a banned organization was not allowed to reappear under a different name…
The present government is not even aware of this law.
As under the Noon League Action Plan no action has been taken against extremist organizations in Punjab, religious seminaries have not been registered let alone reformed…
The National Action Plan called for reforming FATA…
But under the Noon League Action Plan no reforms have been introduced in FATA,
The former President Asif Ali Zardari wrote a personal letter to the Prime Minister urging him to expeditiously adopt the Bill passed by the Senate.
The Prime Minister has not even bothered to respond to the letter…
How can one believe that the government is serious in implementing the National Action Plan?
Different state institutions shift responsibility for the lack of implementation of NAP…
The interior minister says that he did not want to coordinate the activities under NAP…
He said that he accepted the job unwillingly because the Prime Minister had said so…
Under the law the NACTA Board of Governors is headed by the Prime Minister…
The law states that it must meet once in three months…
For the past one year it has not met even once…
This is the status of the Noon League Action Plan…

After the Soviet withdrew from Afghanistan, the west disowned militant outfits but we owned them as “assets”…
When we were forced to accept reality we coined words such as “good” and “bad” Taliban…
This was done to justify state patronage of some militant outfits…
The Defence Minister recently said that the government will talk to Afghan Taliban for security of the TAPI gas pipeline…
Are we out-sourcing security of strategic economic projects to non-state actors?
Is this still the state policy?

I recall my Mother warning almost a decade ago against the policy of running with the hare and hunting with the hound…
It seems we have still not abandoned that policy and are still running with the hare and hunting with the hound…
Can we expect the word to believe the pious noises that we are making?
It is not my intention to deliver a long speech…
But being before this distinguished Bar, that has a history of fighting for rule of law and constitutionalism, I suppose it is the right forum to talk about the rule of law and constitutionalism the Pakistan Peoples Party believes that freedom and democracy hold the key to furthering our civilization.
My Mother often said that the greatness of our civilization was a testimony of the greatness of our forefathers…

So let me conclude by quoting what she said:

Quote: “I believe and the Pakistan Peoples’ Party believes with me that greatness lies within our grasp and a dream lies within our grasp, a dream that can best be nurtured in freedom, in law, in respect and in dignity”…

Thank you Ladies and Gentlemen

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