Acceptance remarks by Justice Tassaduq Hussain Jillani at the ceremony for presentation of International Justice excellence award to him.

Venue: Peace Palace The Hague

March, 28th 2019

  1. Honorable Abdul Qawi Ahmad Yusuf, President International Court of Justice, Chairman of the Institute of Justice Excellence, honorable Judges, jurists, ladies and gentlemen – Thank you for being here. Your presence, Mr. President, is an inspiration to us all, and I am touched by feelings of immense pleasure and gratitude. And thank you, Mr. Jeffrey Apperson, for your very kind introduction.
  2. I am honored and humbled to have been conferred the International Justice Excellence Award. However, I do not consider this award to my person. In fact, this award in the real sense is symbolic of the values and principles that define a judge’s odyssey for dispensation of justice. It’s an acknowledgement and a reminder that the values which make justice excellence possible, are shared across the globe by all those who are engaged in the delivery of justice and the enforcement of the rule of law. It is also a testimony to some of the challenges confronted by judges in their pursuit of this sacred mission.
  3. In a democracy, besides resolving disputes between citizens, the judiciary has two major functions to perform:
    1. To keep the three organs of the State within the parameters of their powers, as spelt out in law and in the constitution.
    2. To enforce the rule of law and fundamental rights in socio-political culture marked by ethnic, racial, religious or sectarian polarization.
  4. Enforcement of rights becomes problematic when religion enters the public domain and some claim monopoly of truth and consider the other as inferior. Historically, such biases, intolerance and racism have always existed in varying degrees down the ages. These are not country or region specific either. Minorities have mainly faced the brunt of such human aberrations. The Native Americans and the African Americans in the US, the Jews in Europe, the Aboriginal in Australia, the Muslims in the Indian Subcontinent, Palestinians in Israel, Islamophobia and the recent Massacre at the Christchurch Mosque are all different facets of extremism. Liberal democracies like United Kingdom have also witnessed such prejudices at play. This month, an important member of British Labour Party David Hirch resigned as he felt “humiliated by anti-Semitism”.
  5. “A recent survey by the European Union Agency for fundamental rights found that three quarter of Jews believes that anti-Semitism rose up from half in 2012. There has been rise in recorded incidents which range from graffiti to physical violence.” Social media has become a mass vehicle for hateful statements towards minorities in Europe.
  6. Paradoxically, in democracies, minorities are more vulnerable unless the State and particularly the judiciary plays a dynamic role in enforcing the rule of law and fundamental rights. In Pakistan, the genesis of religious freedom and minority rights lies in the freedom movement and the creation of the country in 1947, when the Indian subcontinent was divided into two states on the basis of Hindu majority and Muslim majority areas. In the wake of the religious frenzy and euphoria at the time of partition, both Hindus and Muslims intended to migrate to the country of their religious identity. However, a sizeable number of Muslims stayed back in India and similarly a large number of non-Muslims remained in Pakistan after independence. The sentiments unleashed by a religion-based partition led to large scale riots. To ally the fear and apprehensions of minorities in Pakistan, the founder of Pakistan Quaid e Azam Muhammad Ali Jinnah in his first address to the constituent assembly in 1947 declared that Pakistan would not be a theocratic State, while assuring minorities the equal rights:
  7. “You are free; you are free to go to your temples; you are free to go to your mosques or to any other places of worship in this State of Pakistan. You may belong to any religion, caste or creed – that has nothing to do with the business of the State.”
  8. Although Islam is a State religion in Pakistan, but it is provided in the very preamble of the Constitution of Pakistan, 1973, that Pakistan would be a State “wherein the principles of democracy, freedom, equality and social justice as enunciated in Islam shall be fully ensured.”
  9. There is a full chapter on fundamental rights which inter alia includes: Right to life, Right to safeguard against detention, Right to fair trial, Right to profess religion and protection of religious institutions, and equality of citizens before law.
  10. The fundamental right of religious freedom is of particular significance in our country because there are believers of religions other than Islam and there are sects within Islam. However, despite the vision of the founder of the country and the textual guarantees in the Constitution, the minorities have been at time subjected to discrimination and violence. There have been instances of killings on sectarian grounds, the places of worship of opposite sects have been under attack. When a case having a religious or sectarian overtone is taken up by a Court, there is a deliberate attempt to create an atmosphere of fear to influence and overawe the court.
  11. Religion and orthodoxy have been one of the biggest threats to the independence of judiciary. In such socio-political milieu, Courts have to play a more proactive role in the enforcement of fundamental rights and the rule of law. It was this perception and belief which persuaded me as the Chief Justice of Pakistan to take the suo moto notice of Peshawar Church Attack in which 81 people were killed. Along with that, I took up the complaints of Kailash community who alleged that they were facing death threats unless they do not convert to a different sect. The complaints of Hindus against alleged forcible conversions were also taken up. After hearing all concerned including the Federal and Provincial governments, I was called upon to author the judgment. While speaking for the Court, I was conscious of three things:
    1. That the Court has to dislodge the misrepresentation of religious right and present an enlightened counter narrative.
    2. That the Court has to dilate upon the the importance and extent of fundamental right of religious freedom as laid down in the Constitution.
    3. That the State functionaries have to be reminded and sensitized about the fundamental rights and their duties with regard to the enforcement of such rights.
  12. With the view to bring home the point that the Muslims are not superior to others just because of their faith, the Court referred to one of the most inspirational quotes from Prophet Muhammad (PBUH):
  13. “O’ people, all mankind is from Adam and Eve. An Arab has no superiority over a non- Arab, nor a non- Arab has any superiority over an Arab. Also, a white has no superiority over a black nor a black has any superiority over a white except by piety and good action. Do not do injustice to yourselves.”
  14. The Court gave a liberal interpretation of Article 20 that grants religious freedom and the right to manage religious institutions.
  15. While interpreting this provision, the Court held that the right of religious freedom is available to all, whether Muslims or non-Muslims.
  16. The Court observed that religion cannot be defined in rigid terms. Freedom of religion is a comprehensive term which includes freedom of conscience, freedom of thought, freedom of expression and freedom of belief and faith.
  17. Making a comparative analysis of how judiciaries in different jurisdictions have dealt with the rights of minorities, ethnic or religious, the Supreme Court said:
  18. “In 1954 the U.S. Supreme Court in the case reported as Brown v. Board of Education of Topeka abolished segregation in schools and ensured implementation of its judgment by directing the dispatch of federal troops to the concerned State. In the said judgment, the U.S. Supreme Court came a long way from its earlier judgment in Dred Scott V. Stanford where a colored man was refused a status of a citizen.”
  19. The court also issued 7 directions to the State, which included: changing the school curriculum to make it more inclusive and liberal, banning hate speech on media and social media, creation of a special force to protect the places of worship of minorities and the creation of a National Council on Minority Affairs. To ensure implementation of this judgement in letter and spirit, I directed that a three-member bench of the supreme court, headed by the Chief Justice would ensure its implementation. It was a kind of permanent mandamus and the implementation bench still functions.
  20. The anthem of the Supreme Court of Pakistan which was created by me, titled as “Justice For All”, was made part of the judgment for two reasons; firstly, because it is a poignant reminder of the vision of the founder of the country and the ideals which reverberated the movement for the creation of Pakistan. Secondly, the anthem cautions the nation that if the values which went into the making of the country are not lived by, the nation would bear a heavy cost. This anthem is perched along with its mosaic rendering on the full wall besides the entrance gate of the Supreme Court.
  21. The judgement is partly adjudicative, partly declaratory and partly educative. It is so, because the court was conscious that the education deficit, religious illiteracy lack of tolerance and empathy and communal or sectarian baggage breed illiberal values. The apex court in a democracy has to play a pedagogical role. This is essential to sustain democracy because as Learned Hand rightly said, “Liberty lies in the hearts of men and women; when it dies, no constitution, no law, and no court can save it.”

    The anthem reads as follows:
    Judicial Anthem
    “The Toil, the sweat, the tears and the blood,
    Make up the labour for the land begot.
    The freedom is won, but the chains are clung,
    There are miles to cover,
    The voyage is tough and the weather is rough,
    The odyssey begins; The Founder declares his vision
    Of Democracy, Faith, Tolerance and Compassion.
    Discriminate the State shall not
    Thou may belong to any religion, creed or caste.
    Oh! The vision is distorted, the march is thwarted,
    Castle in the sand, babes in the woods,
    Recipes of fall abound in the books.
    The nation is cut, the land is bled
    When the message is lost, a die is cast,
    The wages are loud, Beware of the clouds.
    Long live the message, the Lamp and the rays
    That glow The Temple, which holds the scales,
    Pinning the dreams, the hopes and the oath
    Of Justice for All.”