Full court reference for outgoing Justice Khilji Arif Hussain


ISLAMABAD: Pakistan Bar Council (PBC) Vice-Chairman Muhammad Ramzan Chaudhry said on Friday the removal of more than hundred judges of the superior judiciary by their brethren, fourteen judges, without invoking Article 209 of the Constitution was a dark chapter of judicial history of the country. 
Addressing the Full Court Reference here on Friday in the honour of Justice Khilji Arif Hussain, who is going to retire on April 12 as judge of the Supreme Court, the PBC vice-chairman said that during the period Justice Khilji Arif Hussain remained on the bench, the superior judiciary had to face several political upheavals in the country. 
“These events caused our courts to resort to extra-constitutionalism while invariably invoking law of necessity in one form or the other in providing legal cover to such constitutional deviations through judicial pronouncements,” he said. 
After all these decisions, the judiciary was held accountable by the people of Pakistan and media, but in retrospect. As a result, the judiciary had to face a lot of criticism, he remarked. 
Chaudhry said this was the state of affairs prior to July 31, 2009, and the constitutional history was replete with instances of removal of judges by non-political forces. 
“Sadly on July 31, 2009, for the first time in our judicial history, a few judges removed a large number of their own brethren,” he remarked. 
In other words, 14 judges of the superior courts sacked over 100 judges without hearing them disregarding Article 209 of the Constitution. 
Unfortunately, he said, this led to a divide between the bench and the bar. He further said that at the moment, there was immense need for reuniting the legal fraternity, ie, the bench and the bar. 
Realising this need, the Supreme Court Bar Association (SCBA) as well as PBC adopted a unanimous resolution on December 27, 2012, taking exception to the judgment of July 31, 2009. 
It was hoped that this divide in the legal fraternity would be brought to an end, he added. 
He demanded revisiting of all disputed judgments passed by the Supreme Court, and said, “I, therefore, take this opportunity on the retirement of Justice Khilji to bring it into the notice of the chief justice of Pakistan (CJP) and his fellow judges of the Supreme Court to seriously consider revisiting all such judgments, including the judgment of July 31, 2009, so as to bring the country’s legal order in consonance with the law and the Constitution while upholding the rule of law.” 
He said he felt privileged to represent the Pakistan Bar Council, the apex regulatory body of lawyers, to address this reference held to bid farewell to Justice Khilji Arif Hussain. 
Lauding the services of Justice Khilji, he said he (Khilji) joined the legal profession on November 15, 1976 and had been in active practice and was one of the busiest lawyers of Karachi. 
“I am saying this at a time when our superior judiciary is exercising complete independence which has no parallel in the past. However, notwithstanding the attainment of this goal, the judiciary should also be seen to be impartial”, he said.
The PBC vice-chairman also drew the kind attention of the CJP to the very important issue of appointment of judges of the superior courts. He said the legal fraternity had reservations about the procedure of appointment which some time lacked the due consultative process of all the stakeholders, and thus the important aspect of transparency and merit orientation, at times, was undermined. 
Pointing out out-of-turn appointment of judges in the superior judiciary, he said that “members of the bar, by and large, have been expressing their dissatisfaction on appointments so far made by the judicial commission”. 
“The consultative process, specially with representatives of the bar within and outside the judicial commission is all the more very necessary because as per present composition of the commission the voice of representatives of the bar is too little to prevail upon the worthy judges who are in majority and so can take decision even without accommodating the viewpoint of representatives of the bar in the commission.” 
He said the longstanding demand of the Pakistan Bar Council for bringing about amendments to the Judicial Commission of Pakistan Rules, 2010, for ensuring meaningful consultation of the bar in the process of appointment of judges of the superior courts should be implemented.

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