Speech of Honourable Mr. Justice Ejaz Afzal Khan on the Eve of his Retirement
Islamabad, May 07, 2018 (PPI-OT): My lord the Chief Justice Mian Saqib Nisar, My lords Mr. Attorney General of Pakistan, learned Advocates General, President of the Supreme Court Bar Association, Members of the Cabinet, Vice Chairman and Members of the Pakistan Bar Council, Members of the Supreme Court Bar, Ladies and Gentlemen.
2. We welcome one, farewell another till the time we ourselves are fared well. This is a natural process of replacement and substitution. This is how life goes on. Men come and go. Some add to the glamour of their person and some add to the glamour of the Institution. A poor slob like me may not have added to the glamour of the Institution but I can say on my word of honour that I tried my utmost. How far have I been successful is for you to decide. But, do not forget I am not an angel, an oracle or an apostle. I am a human being. As such I may have fallen, I may have slipped, I may have strayed, I may have tripped.
3. It is really saddening to part with my fraternity but it is gladdening to note that the Institution is in safe hands. My elevation to the Bench dates back to September 7, 2000. Mr. Justice (Retd.) Sardar Muhammad Raza Khan, the then Chief Justice of the Peshawar High Court and now the Chief Election Commissioner honoured me by recommending my name for elevation to the bench. I was appointed as a Judge of the Peshawar High Court where I served as a Judge and a Chief Justice till 16th November, 2011. I was elevated to the Supreme Court on 17th November, 2011. Well, if I have done something good on the bench by the grace of God credit goes to Mr. Justice (Retd.) Sardar Muhammad Raza Khan. If I have done something otherwise I am ready for being damned and blamed for that.
4. Chaos all around, corruption in every department of life and insecurity in every hut and house are the predominant features of today. What is this, due to, who is responsible therefor and what is the antidote of this poison which is taking the nation to the shambles of death, are the questions which nag every thinking mind and pulsating heart. Answers to these questions lie in our hearts and not in the books of philosophy or jurisprudence.
Every now and then we find ourselves in an arena, where our personal interest is pitched against the national interest. The dictate of our self-seeking ego is that none is dearer than thou, grab whatever you can. The dictate of our conscience is that national interest is preferable to personal interest. But we, more often than not, prefer our personal interest. The moment, we prefer our personal interest to the national interest, we disseminate the seeds of discord and dissension. This happens every where in every department of life. We know, our kith and kin are not apt to hold the job, yet we prefer them to others who deserve by all means.
Here lies the tragedy which lands us in trouble and turmoil at every step and stage. The strangest part of the story is that we suffer because of our own doings, yet we attribute our plight to the Heaven or those who are at the helm of affairs. We do not want to realize that all this is on account of our own acts of omission and commission. We stridently condemn others for doing certain things what we do ourselves with impunity. These, if analysed psychologically, are the characteristics of a psychopath who is always driven by his personal motives and whose goals are wholly satisfactory to himself. The Holy Quran cherishes the memories of those, who prefer others to themselves, though poverty be their own lot. (59:9)
5. We condemn the culture of corruption but when we find ourselves in the sticky mud, we use it as a rope to climb out of it. Not only that, we use it as a ladder to attain positions, we do not deserve otherwise. All these ills and ailments can be treated if we prefer national interest to our personal interest and learn not to like for others, what we do not like for ourselves. These lessons are hard to learn and hard to act upon and teaching them, is all the more, harder, especially when the person teaching them is required to act upon them first.
We do not find any person around who could do this by transcending his personal interest, be he a politician, a religious scholar or a professor of ethics, notwithstanding it was and is still within his reach. In this bleak scenario, it was the class of lawyers, which transcended its personal interest in March, 2007. It preferred national interest to personal interest. It starved, suffered; faced professional set backs braced bombs and bullets and even sacrificed lives. The result is before all of us. It, in the first instance, shook and woke up a slumbering nation, inspired it with higher ideals, launched a nationwide movement and made the restoration of the Judiciary which could see face to face with the dictator an achievable objective which was hitherto impossible, unachievable and even unthinkable.
This historic, epochal and epoch-making achievement has raised the expectations of people. They once again look towards you for being led and achieving something far greater than you did in the past by transcending your personal interest. It would be in line with your dazzling past, if you advise your clients and assist the Court fairly and justly, even if, it brings you loss in terms of money. If you could do that, I am sure and sanguine; you would again emerge as national heroes. Even otherwise, it is my firm and considered view that lawyers are the natural leaders of thought and action in the society.
6. Injustice anywhere, said Martin Luther King Junior, is a threat to justice everywhere. Unjust treatment in any form at any level has a far reaching effect which tends to envelop the entire society in its fold. We may divide the society in different domains and deal therewith in terms of economics, politics, sociology and law etc. But each of them being inter-related has a bearing on one another. None of them can be treated like a water tight compartment. It may, however, be noted that inequality at socio-economic level tends to create inequality in politics and even in the Courts of law.
Affluence in a class of people may give rise to exploitation of those who are just hand to mouth. Affluence in a class of criminals may defeat detection of the crimes they commit. It may be used to hush up the crimes even if detected. It may be used to win over a witness whose evidence is absolutely necessary to warrant their conviction. Such inequality in the domain of politics may facilitate the entry of the privileged in the Parliament and keep those away who are committed to ease the back-breaking burden of the toiling millions.
Such inequality may also influence the course of legislation which is recognized as one of the peaceful means to bring about a change in the society and thereby vitiate the very spirit of democracy. Equality before law tends to become a myth amidst such inequalities. Rule of law with all its effectiveness becomes helpless in such a state of things. An effort to patch a tear on one side of the social fabric causes many on the other. Even a constant patch work fails to repair and revamp such wear and tear.
7. What is justice, how could it be dispensed with, what is parity, what is propriety and what is proportionality are the questions posed to the bench and the bar every now and then. If we answer these questions by attending to their philosophical and jurisprudential implications, we may not be able to sum them up even in a hundred of treatises. But if we want to understand their practical and pragmatic implications they cannot be better summed up in words other than those of the first speech of the first Caliph of Islam Hazrat Abu Bakkar Siddique (R.A.) which reads as under:-
“O people, I have been put in charge of your affairs though I am not the best among you. So if I do good assist me. If I go wrong resist and rectify me. Standing by truth is a trust and sliding toward falsehood is a breach of trust.
The weak among you is strong in my estimation until I restore to him his due and the strong among you is weak in my sight until I retrieve by the will of Allah what he usurped.
No community abandons jihad in the cause of Allah without being visited upon by humiliation as a Divine Retribution; and if obscenity prevails among some people, then they are enveloped by Allah in an all-pervasive adversity.
Follow me so long as I obey Allah and His Prophet. If I disobey Allah and His Prophet, then you are absolved of your obligation to follow me.”
8. How a Judge should behave has been summed up by Hazrat Ali (k.w) in one of his letters addressed to the Governor of Egypt. The relevant part of the letter reads as under:
“He should be honest and upright, open to conviction and amenable to logic and argument; who never gets unnerved amidst the multitude of problems, who never gets weary by listening to the mass of details; who leaves nothing unturned in discovering the truth; who is never restrained by fear of loss of face to admit his mistake if and when it becomes manifest; and who having homed in at the truth pronounces judgment without any fear and favour.”
What stands out in the letter reproduced above is a patient hearing, a passionate endeavour to discover the truth and a keen effort to deliver a dispassionate judgment. Patient hearing is the right of the litigant and the lawyer presenting his case before the Court. He is an applicant before the Judge. He thus deserves due respect as a human being and due consideration as an applicant. Don’t chide the applicant says the Holy Quran 93:18. This is very important because whatever a litigant says to his lawyer is a trust to be communicated to the Judge.
The Judge hearing the case should, therefore, create such an atmosphere in the Court which is conducive for the safe communication of the trust to him. Failure of the lawyer due to lack of proper preparation or any other handicap or failure of the Judge due to anger or uncalled for interference, to ensure safe communication of the trust would in any event end up in a condemnation without due consideration. We are living in a society where 80% people cannot think of having access to the Court of law for want of means. We, therefore, have to evolve a system where they can have access to the Court of law and a fair opportunity to voice their grievance without engaging an Advocate.
We should make our laws straight and simple so that even the layman may know what they are about. We should encourage the litigants to present their cases if they do not have means to engage a counsel. There is no harm if we take extra pains to comprehend their cases if they are not represented by any counsel. We should hasten our march to an era where a man in tatters and women in distress would approach the Court with the hope and confidence that his or her poverty would not impede her way to get justice. While a man with riches and resources would approached the Court with the fear and awe that his riches and resources would do little to thwart the process of justice.
9. Change in the society comes through education because it is education which enlightens and empowers the citizens. So long as the citizens are not educated, enlightened and empowered, they remain apathetic to their duties and responsibilities and even rights and privileges. This state of thing is dangerous and even devastating. That’s why Barron De Montesquieu (1689-1755) a French Philosopher said in the mid of 18th Century I quote: “The tyranny of a Prince in an oligarchy is not so dangerous to the public welfare as the apathy of a citizen in a democracy”.
In no part of the country people get clean water to drink and pure food to eat. They cannot afford two meals a day. They do not have basic health facilities. There are basic health units in the far flung rural areas but without medical staff and medicines. If and when a poor person falls ill, he has to come from a far off area to the city for treatment. A person who cannot afford two meals a day worsens his plight by borrowing from someone for his treatment. He first goes to the Basic Health Unit (BHU) where he is advised to go to the Tehsil Headquarter Hospital.
He goes to the Tehsil Headquarter Hospital where he is advised to go to District Headquarter Hospital. When he goes to the District Headquarter Hospital he is again referred to the Shifa International Hospital—a hospital where he cannot afford to get treatment even in the wildest of his dreams. All the elites whether they are politicians, bureaucrats or otherwise well off don’t stay at such far off areas nor do they get their treatment from BHU, Tehsil Headquarter or District Headquarter Hospitals. Many hospitals are well equipped with the latest machineries, but they are either out of order or lying packed because the doctors posted in the hospitals have their own clinics and laboratories.
Patients are referred to the private laboratories for medical analysis and examination which practically squeeze the patients and leave little with them for buying medicines. Government Schools situated in the far flung areas are housed in haunted buildings which are also exposed to the vagaries of the weather where a drop of rain on the roof goes down straight to the floor. Since the children of the elites don’t study in such schools their upkeep or betterment is none of their concerns.
Poor people just vote. The votes they cast are sought to be respected but not the persons who vote. Elections, change of government or yearly budgets don’t improve their lot. This simple and plain truth is not appreciated by the leaders of the nation whose vision and wisdom work for their own enrichment and not for the empowerment of the poor. Poor thus gets poorer and rich thus gets richer. The steps taken by the honourable Chief Justice of Pakistan on this front are highly commendable for the reason that someone has an eye on all this.
10. Merit, which includes ability, efficiency, honesty, integrity and hard work, is a virtue that leads a people or a nation to a height or a place where they earn and acquire respect, renown and recognition. It gets frustrated when denuded of intercessional props and pillars. Nothing can be honourable in a society where justice is absent. Merit is one of the greatest victims in a society of that type. Honest and dishonest, efficient and inefficient, hard-working and work-avoiding, are treated alike. The latter category of people in each case are rather better placed, if they are linked with and liked by those who wield influence in the chambers of power.
Placed and positioned as such, it is all the more easy for them to force their way ahead and succeed in getting important and even strategic slots for themselves. The people with such attributes and antecedents, quite obviously, cannot transmit to the society anything better than what they have. The result is that those who deserve honours do not have them and those who do not deserve, have them in abundance. Deterioration is a natural corollary of such a state of affairs. But that is not the end of the matter. Merit if frustrated dies down. If not, it is apt to work underground. It gives rise to disappointment. Disappointment gives rise to desperation.
Desperation gives rise to aggression and aggression gives rise to transgression. The greater the number of frustrations, the greater the number of transgressions. Once a person enters the realm of desperation and then transgression he recognizes no norms, either of justice, ethics or society. If these aspect of the society are heeded and attended to, crime, unrest and many other abnormalities could be checked. Many of our problems taking evil turn can be nipped in the bud if we focus on their causes.
11. At the end I would pray for my parents who took pains in grooming and enabling me to serve the greatest institution of the country. I am also thankful to my wife and children who often sacrificed their comforts to enable me to perform my duties according to its requirements. I am also thankful to my private secretary Mr. Muhammad Azhar Malik and Mr. Zubair Ahmed, who worked with me till late in the night. Now let me bid you farewell and wish you all long happy and prosperous life.
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