Justice Saeed uz Zaman Siddiqui

(if anyone can make this interview into an article, I'll appreciate it. long live Justice and long live Pakistan).

Interview with KalPoint.com

KalPoint.com (KPDC): Please share some words AbOUT your life, your education, brought up and how did you come to this career?

Justice Saeed-uz-Zamaan Siddiqui (SS): I was born in 1937 in Calcutta in UP-state of India. In 1942, during World War when Calcutta was bombed we migrated to Lucknow. From 1942-1949, I received my school education in Lucknow. In 1949 we migrated to Dhaka; I completed my school education there and my college education partly. In 1956, I migrated from Dhaka to Karachi. I joined Islamia College, and obtained my BA degree in economics from Karachi University. I joined SM Law College and got my law degree. I was enrolled as advocate of the High court of Sindh, the then High Court of West Pakistan, in 1963. In Supreme Court I was enrolled in 1969. I was elevated to the bench of the High Court in March, 1980. I became the Chief justice of Sindh High Court in 1990. Afterward, I was elevated to the Supreme Court of Pakistan in May, 1992. I became Chief Justice of the Supreme Court on July 1st, 1999. But on account of the military take-over, I didn’t take oath and came back to Karachi.

KPDC: How do you see the verdict given by the 13-member full bench of the Supreme Court? Is this really a historic verdict? What long-lasting effects do you see of this decision on our judiciary and our system?

SS: If you have a close look at our judicial history, you’ll find that it doesn’t have a very good track record. In 1954, the Samiuddin case brought bad name to the judiciary. Since then the public trust and confidence declined in judiciary. We have had four Marshall Laws in this country: in 1958, 1969, 1977 and then in 1999 which is still on. Every time military takes over this country, the court legitimizes it and that is how democratic process is interrupted and instability is brought in this country. During the last 2 years, when Justice Iftikhar became the Chief Justice of Pakistan, he took up some very important cases like privatization of the Steel Mill, and missing people’s case. These cases created have much confidence in the judiciary. Government was not very comfortable, with that process and we know that this is a very important year; we are going to have elections this year most probably. That’s why, they filed a reference against CJ, which I think, was very much misconceived and mismanaged. No doubt, judges including the CJ are accountable, but the procedure that was followed was not correct. Over stepping has been done. For instance, if you want to send a reference against the judge of a superior court, you send it to the Supreme Judicial Council (SJC). You don’t call that judge. No body has the right to call the judges of the superior court and question them. The procedure is simple the SJC consists of 3 senior most judges of the Supreme Court including the Chief Justice, and 2 most senior judges of the high courts of the provinces. These five persons constitute the SJC. After making their recommendations, they send it to the president and it is for the president to either accept the recommendation or decline it. But in this case, Chaudhary Iftikhar was called by Mr. President before the reference filed. Chaudhary Iftikhar said he was asked to resign, and when he resisted, the reference was filed. One strange thing happened that he was already suspended by the president before the filing of the reference. He doesn’t have any such power, all the protocol was taken back from CJ. The point is, when a reference is made against a CJ, he continues to remain in that position till such time the reference is sent back with recommendations by the SJC and the president accepts it. the position of a judge or a CJ is not affected merely because of sending a reference. That was the basic mistake made by the President in this case that he filed the reference and at the same time he suspended the CJ. The quorum for SJC was completed in hassle and acting chief justice sworn in, that too is not permissible. The power of suspension was not available either to the president or SJC. Secondly, the acting Chief Justice could not have been appointed because Ch. Iftikhar was still acting. Thirdly, the president subsequently after sending the reference, he sent CJ on forced leave, which is also not permissible, and fourth point is that 10 out of 13 judges said that the reference was malafide, which means that the reference was made on reasons which was not shown, whereas remaining 3 judges didn’t agree this. I think the bench has given the right verdict.

KPDC: Do you think this verdict has brought an end to the row between the executives and the judiciary in our country?

SS: I don’t think there is any row between judiciary and the executives. The reference was made in the light of those judgments which have been given by SC in the Steel Mill, and the missing persons cases. The establishment, including ISI and other intelligences, is very strong in our country and has a big role in administration of the country, so they were uncomfortable with these decisions. This is the background under which the reference was filed. In fact, there is no conflict as such between the executives and judiciary. Judiciary is functioning within the constitution, and other institutions are also working according to their parameter. There is one additional job of the judiciary which is to maintain balance among all the departments and institutions and make sure that they are working within their parameters of the constitution. Unfortunately, no government, democratic or military, wanted judiciary to work independently, because an independent judiciary is considered to be a challenge for the executives. But in fact it is not, because an independence judiciary provides protection and a type of check for the different institutions of the country. When anyone commits a mistake it is corrected by the judiciary.

KPDC: Are you satisfied with the parameters set by the constitution in our country for the different institutions including judiciary?

SS: At the moment, the balance is in the favor of executives. Because, 58-2(B), which was originally added in the constitution by Zia ul Haq, provides extra power to the president to dissolve the assemblies. This type of provision in the constitution is not acceptable. Because, it means that if the president thinks that the assemblies are not functioning properly, he can dissolve it immediately. In this division of power, court is the institution which keeps a watch on the executives and legislators that they do not cross their limits. Therefore, all the supplementary amendments including the 17th amendment must go away because constitution is a type of social contract between the parties to live within a particular bond and in a particular way. You can only change it with the mandate of people; no individual can make amendments on his or her own. Because of all this, there has not been stability in the Pakistan’s political scenario. I believe that all these amendments must be thrown out to bring out the actual constitution of 1973 which was completely agreed upon by all the parties.

KPDC: It is said that this is the victory for General Parvez Musharraf because he has sent a message that judiciary in Pakistan is free and there is no dictatorship exists in this country? Do you agree with it?

SS: I think there is no doubt that the statement made by President Musharraf about accepting the judgment graciously, will give a very positive message to the outside world. However, I think, there was no other option left for him other than accepting it. Because there is a system and according to that system everybody in Pakistan has to obey the judgment given by the Supreme Court of Pakistan. Nevertheless, this is a good beginning and it will create a good impression and goodwill for President in the outside world.

KPDC: What is the status of laws about the cyber crimes and intellectual property? Has any thing been done in this area?

SS: So far no certain legislation has been passed in Pakistan as far as the cyber crimes are concerned, but we are following the same laws which are being followed in other countries. As far as the intellectual property is concerned, Government of Pakistan is under great pressure to implement the intellectual property laws to prevent piracies and other such crimes. Now, we have the Intellectual property act, and it has been implemented. But still a lot of such things are happening. In fact, there are 2 countries which are accused of piracy mainly: Pakistan and China. People are not prepared to invest in Pakistan, because there are a lot of problems regarding the security of intellectual property. So, government needs to take more solid step to overcome this issue.

KPDC: Which government system do you think is the best for Pakistan: Parliamentary or Presidential?

SS: Pakistan is a federation with different nationalities and cultures, for such a country it’s not possible to have a unitary type of government system. The rules for running a federation are that the federation units must have a sense of participation in the government policies and affairs. The best examples of federation type of government are Canada and Australia. In a unitary form of government you will find dissatisfaction among the federation units. A federation can only run if you give the federation units their rights. Therefore, the presidential system of government can not run in our country. Because there will always be lack of sense of participation among the units. We have a senate in which we have equal representation, i.e., 14 members from each the provinces, unlike the National Assembly. And the senate is given an overriding affect over the National Assembly because in the National Assembly no body can beat Punjab since they have the largest number of MNAs. That’s why it is said that we must strengthen the senate in order to strengthen the federation because it gives people of small provinces equal opportunity to participate. Parliamentary system is the only system which can run in our country. Another thing is that, this system was implemented under 1973 constitution which was passed with complete consensus. Therefore, if someone wants to change the system, he or she must approach the people. No individual has right to change the constitution.

KPDC: Any message for the youth of Pakistan?

SS: My message is that rule of law must be established in the country. The only way to keep the country intact is to promote the rule of law, and let the people feel that the justice is done with them. In the world war, when English Prime Minister was asked what do you think, are you going to win the war. He said: “Are our courts functioning and delivering justice to the people, if it is so, then we will win the war.” The court system: the system of delivery of justice is vital for the survival and success of a country.

Questions by Netizens

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Question: It seems that the verdict about reinstating Mr. Iftikhar Chaudhary will create more problems for President Musharraf? Do you agree? ( Arsalan Ahmed, Lahore )

SS: I think the initial reaction from the government was very positive. The Prime Minister came up saying that he open-heartedly accepts the decision. Same was the statement from the president. The point is that it’s the court of your own country; you have created it under your own constitution. If the court makes a judgment, you have to accept it. This is the very court which legitimized Mr. Musharraf’s government, and gave approval to the amendments introduced by him. Now, if the court says that the legitimacy was for a particular period and he could not extend his government beyond it, why doesn’t he accept it? We have a system of judiciary in this country, whatever judgment given by the superior court, everyone ought to accept it no matter if the judgment is in his or her favor or not.

Question: How would you comment on the way CJ Iftikhar M. Chaudhry and his legal counsels ran their campaign? Didn’t it take a political shape?( ZulfiqarKhan, Abu Dhabi)

SS: Yes, this campaign did take a political shape. But this could not have been stopped. This campaign was started by advocates and the legal community. But you can’t stop people to join in. it is said that it has become political. In fact, every act which we do has political consequences. Every decision the court gives has a political follow up. The constitution itself is a political document, since politicians have prepared it. Although it is necessary that judiciary should always be kept separated form politics but a campaign for the independence of judiciary is itself a political issue. Every citizen of Pakistan is interested in having an independence judiciary. No one can stop people coming in support for such movement. I have seen the campaign, beside political parties there are a large number of people who did not belong to any party. In fact, the political parties were trying to bring people onto the streets for last many years, but they did not succeed. But, when the question of independence of judiciary arises, people came onto the street voluntarily. Therefore, to say that it has become political, yes it has, but you cant’ prevent it from being political in such a situation.

Question: It is said and believed that ‘Justice delayed is the Justice denied’. However, our courts take extra ordinarily long time in settling most of the cases, isn’t our judicial system contradictory to it? ( Majid Karim, Karachi )

SS: It’s true that delaying the justice is equal to denying the justice. However, there is a misconception about our judicial system. Our judicial system is facing a number of problems which have not been addressed properly in the past. When Pakistan was created, Karachi, for example, at that time had a population of 23 Lacs. Now the population of Karachi has jumped to 1 Crore, 60 Lacs but the number of courts have not been increased in proportion to the increase in population. Secondly, at the time of partition, people were not so much conscious about their rights; the litigation was less in courts. Now, people are becoming more right-conscious. There is a massive increase in the number of cases in all courts. In the City Court, for instance, before every judge there are about 30 to 40 cases which they hear everyday which is humanly impossible for a judge. The courts have been telling the executives that they should increase the number of courts and judges to bring improvement in the system. The other thing is that, the process of recruitment is also defective. We don’t get good people to induct in judiciary, because the service structure is very poor. For instance, a civil judge is being paid 20,000 rupees, which is unrealistic for a judge who deals with the cases of Crores of rupees. We have suggested that government should improve the service structures of the subordinate court judges. The superior court judges are receiving a lot of facilities including car, telephone, gas etc. are free and their salaries are also very good. But the fact is that the majority of cases about 97-96% go to lower courts where the working conditions are very poor. Now the government has obtained a loan of $330 Million from the Asian Development Band. And they are applying it to improve the infrastructure of the court and to make more judges available. But it depends upon how government is going to see these problems. Moreover, solid steps should be taken to improve the system of criminal justice. These are the main difficulties which need to be addressed by the executives, and the provincial government. Only then, we can reduce the grievance of the people, if not eliminate it totally.

KPDC: Thank you so much for being here and enlightening us with your thoughts. C U on Net.

SS: I also enjoyed being here. C U On Net 2.