KARACHI: Justice Qazi Faez Isa of the Supreme Court has said it is the judiciary that has the authority to stop an individual or institution if they transgress the fundamental rights on their whims.

He gave these remarks in his keynote address to the inaugural session of a conference titled ‘Law, Judicial Interventions and Social Change, with a special focus on Labour Law’ on Saturday. The two-day conference has been organised by the Rasheed Razvi Centre for Constitutional and Human Rights in collaboration with the Pakistan Institute of Labour Education and Research at the Institute of Business Administration.

The top court judge said the country gained independence 72 years ago not by fighting any war or through the use of military force, but through an ideology and the followers of that ideology convinced others, thus what appeared to be impossible turned possible. “We should call it a miracle,” he said, adding that for the safeguard of this miracle the people of this country devised a mechanism called Constitution.

Says judiciary has the power to stop transgression of fundamental rights

Justice Isa said that the preamble of the Constitution quoted the nation’s founder Mohammad Ali Jinnah clearly stating that Pakistan was a democratic country and that saving the democracy was duty of everyone.

“This assures us that the people will remain safe from injustice,” he said while addressing a packed audience of senior trade unionists, lawyers and rights activists.

“If we would keep following these principles of democracy, our national solemnity would remain intact,” the judge further quoted the preamble.

Justice Isa, who has been facing a presidential reference filed against him by the government, said that the independence of the judiciary was particularly mentioned in the Constitution’s preface that was passed as “Objectives Resolution” in 1949 before the unanimous Constitution was adopted in 1973.

He was of the opinion that the SC before invoking its suo motu powers under Article 184(3) should see that the basic rights being enforced by it (in the case in hand) were related to “public interest at large” or not.

The apex court judge asserted that the judiciary had the power to stop any individual or institution from transgressing the fundamental rights. He said the Constitution was based on three pillars; the first is the parliament that does legislation and second is the executive that implements that laws and the third is the judiciary that interprets the Constitution and the laws and ensures that every person and institution should act/function within their domain.

He said history reflected that whenever the institutions overstepped their domain not only were the basic rights of the people violated, but the country also weakened and could

disintegrate it.

Justice Isa said when the country came into being it primarily comprised the East and West provinces, but half of the country was lost when the government of one person was imposed on the country through martial law and the democratic behaviour was ignored. He explained that when the narrative of one person suppressed the voice of the masses, the enemies also benefited from it, as it happened in 1971 when thousands of military personnel and officers could do nothing to save the country.

That was why the Objectives Resolution had emphasised on democracy two centuries ago, he said before asking if any lesson had been learnt from the history.

Justice Isa mentioned that the then prime minister Zulfikar Ali Bhutto had constituted a judicial commission headed by the then chief justice of Pakistan Hamoodur Rehman to probe into the reasons due to which half of the country was lost. But the complete report of Hamoodur Rehman commission had not been released even after 47 years, keeping the nation in dark as to what had led to such an incident, he regretted.

The individuals or institutions that run away from their mistakes or try to hush up facts neither learn any lessons nor strengthen themselves, he said.

Having said that he observed the judiciary also should ensure that it did not overstep its domain, reiterating that the institutions and the countries became stronger when they learnt lessons from their mistakes and did not repeat the same mistakes.

The top court judge said instead of pointing finger at any other institution, he would talk about his own institution and mentioned the case related to the imposition of the additional income taxes on the cellular services.

He said that while initiating suo motu proceedings on an unknown written complaint under Article 184(3), the apex court suspended the imposition of six different taxes, but when the case was finally decided it was noted that there was no justification for granting a stay order because the collection of taxes had not been included in the basic rights, thus the SC could not consider the matter under the given article. He mentioned that the national exchequer had suffered losses of up to Rs100 billion during the period the stay order remained in force.

Media curbs

The SC judge said there was hardly any doubt in anyone’s mind that there was a restriction on journalists and the media on airing or publishing news. He asked whether anyone had a right to ban the opinion of others through censorship.

Under Article 19 of the Constitution, every citizen enjoyed the right of freedom of expression, except commenting on a few matters, he said. But it did not mean that a narrative that might not be liked by someone could not be aired or published, he added.

The judge explained that if someone did not like any of his decisions and criticised him for it, it was not binding upon him not to face such criticism just because Article 19 gave protection against such criticism. Rather he said he should abstain from repeating a mistake if he had committed one and if the criticism was constructive.

He added that no institution could issue orders for publicising or not publicising the news on its whims nor any TV channel or newspaper could be restricted from hiring or firing anyone. “Even the government does not have the authority to give advertisements to the television channels and newspapers on its whims, subject them to economic exploitation and force them to not subject the government or any institution or individuals from criticism or fire any journalist or ban any particular TV programme or restrict editorials,” he said.

He said all these tactics were not only illegal, but were also unconstitutional. “When, there is so much fear that the people do not approach the courts for the enforcement of their basic rights, it would not be justifiable to say that the basic rights are being fully enforced,” he added. RCCHR founding member retired Justice Rasheed A. Razvi, Advocate Faisal Siddiqi, Karamat Ali of Piler, Dr Dr Azeem from LUMHS, Advocate Raheel Kamran Sheikh, Miriam Neale, head of the Signatory Engagement of the Bangladesh Accord also spoke while trade unionist Colin Gonsalves from India spoke through Skype.

Published in Dawn, September 22nd, 2019