Justice Rana Bhagwandas, Supreme Court of Pakistan
“A century ago, pain had still to be taken for granted. It was regarded as inevitable even in the most advanced societies. Only a few optimists thought that humanity might eventually turn the corner to a painless future.” (J. M. Roberts)
It is observed that we are living a life in the time of challenge, tumult and change. Social and political events are unfolding at such a rapid pace that the present appears to have little connection to the past.
Philosophers have given their theories of the beginning of the state of nature. Rousseau said “Man is born free but is every where in chains”. Hobbes said “The life of man is nasty, brutish and short”. While Locke has something else to say “The state of nature has law of nature to govern it….Being all equal and independent, no one ought to harm another in his life, health, liberty or passions. Thus the law of nature stands as an eternal rule to all men, legislators as well as others”.
These are different views on the state of nature and the origin of the social contract. These can be reconciled by returning power to the people over their own lives. There can be no progress without freedom; no freedom without virtue; and no virtue without citizens. If we create good citizens the state of Pakistan will have every thing they need.
There is a powerful relationship between rights and democracy. Rights entail the equality. Without democracy rights have no meaning more so in despotic Governments. Rights promote empowerment and emancipation of the people. Rights properly understood constitute a delicate balance between the individual and state. Judicial review by an independent judiciary is the key to retaining the balance of power between the citizen and state.
Power teaches responsibility and responsibility limits power. Pakistan , today, needs not only lessons in the rights of private persons but also their responsibility as public citizens. The country needs a new view of the Constitution as the democratic source of the balance of power between the rights and duties of the individual and the state; between the legislative, judicial and executive organs of the sate and between the Federation, Provinces and Local Government.
All this ought to lead to an environment where people would enjoy liberties. The
State would ensure the security of the citizens and basic economic rights of every man, woman and child to food, clothing, shelter, education, health and employment opportunity.
The Constitution of Pakistan should be premised on the principle that the people are the real rulers and that certain rights are inalienable such as liberty of thought and expression, freedom from Government’s invasion of privacy, freedom from arbitrary confiscation of property, freedom from arrest without warrant, freedom of association and assembly etc. In short these rights would give rise to society with free press, wherein every person’s home is respected and trials are fair and where all the citizens enjoy their equal rights.
To achieve this we have to have a basic document in which these aims, aspirations, objectives and goals are written down along with an institutional structure. The Constitution, thus, is the fundamental law which has the superiority over all the institutions it creates, be it Legislature, Executive or Judiciary. The institutions or organs can not go beyond the powers vested in them by the Constitution.
In a Federation, the role of judiciary, as guardian of the Constitution becomes a matter of central importance. It is on this view of federalism, that doctrine of separation of powers is defined.
Judicial power is derived from the system of the division of powers and in exercising this power, the judiciary claims no supremacy over other organs of the Government but acts as the interpreter of the powers vested by the Constitution in the entire institutional edifice of the State. The judiciary, of course, has the power to hear and determine any matter or controversy which is brought before it. The superior judiciary is Judge of its own jurisdiction in all the civilized countries. If Constitutionalism and Constitutional Government are to survive, the judiciary should never leave it to the Government of the day to determine how much judicial control it will or will not tolerate. This is their Constitutional duty and it is best performed by adhering to the ancient saying that it is the part of the good Judge to appropriately perceive his jurisdiction.
The time has proved that the public opinion is for exerting and extending the jurisdiction of the superior courts. It is for judiciary to do its duty to defend the Constitution and not to allow the Government to degenerate into a police state. A State of Emergency, which is more contrived than real, can hardly provide an excuse for the destruction of Fundamental Rights and judicial powers.
The crude attempts like dissolution of the Constituent Assembly in 1954, the delay in holding elections under 1956 Constitution, the coup de-ta’t of 1958 followed by authoritarian rule, Martial Laws of General Yahya Khan, General Ziaul Haq and hypocritical suspension of Constitution by General Pervez Musharraf resulting in the perpetuation of his power hungry Government, were aimed at thwarting the way for a popularly elected Government and the administration of a democratic Constitution. An ambitious Government servant had the audacity to dismiss an elected Prime Minister and remove Judges of superior Courts at will and get away with his own statement that his action was extra Constitutional. Irony doesn’t end here, the hand picked judges not only let him off but certified that he was not at fault for his wrong action; it was the activism of the Supreme Court that compelled him to take such action and therefore the action was validated.
How much can one lament, the judiciary is guardian of legality, it means rule following reduction of arbitrariness on the part f officials. In the words of Bacon “Judges ought to be more learned than witty, more revered then plausible and more advised than confident. Above all things, integrity is their portion and proper virtue.”
What is justice after all? It is product of a Judge’s spirit and not merely intellect. Lord Denning says “the nearest we can get to defining justice is to say that it is what the right-minded members of the judges community, those who have the right spirit within them, believe o be fair.
Before I embark upon the subject of independence of judiciary, I must point out that under a written Constitution like that of Pakistan every citizen enjoys certain fundamental rights guaranteed by the Constitution and enforceable through the superior courts. The question that arises in a country where the majority of the people are living in rural areas in condition of poverty, ignorance and oppression, is how many are really aware of their rights and how many of them have the means and the capacity to approach the superior courts for enforcement of their rights. There is no state sponsored legal assistance system in Pakistan and access to Counsel for advice on constitutionally guaranteed rights and representations before superior courts might be affordable by a very few. Against this back ground when the courts themselves started taking notice on matters of public importance relating to the rights of the people their gesture was unfortunately branded as unwarranted judicial activism.
An independent judiciary, ladies and gentlemen, is an essential pre-requisite for the survival of democracy itself, like a representative Legislature and an accountable Executive. In this day and age a representative democracy does not mean that people simply choose their rulers for a given term and abdicate complete authority to them to govern them the way they feel like. The elected representatives are merely the trustees of the people and all authority conferred is to be exercised for the benefit of the people. The Legislature must make laws within the limits set out in the Constitution, the Executive Government formed by the majority group of the Legislature must act within the framework of the law and the Constitution and all power has to be exercised for the welfare of the people. An independent judiciary is required to ensure that the Legislature has acted within the framework of the Constitution and not invaded the fundamental rights guaranteed to the individuals protected by the Constitution. It must also see that the Executive has not merely acted within the framework of the law made by the Legislature but it has acted honestly, fairly and justly and in the public interest in the exercise of its powers. The courts do not assume the powers of the Executive. Nevertheless, they keep a very strict vigilance over the exercise of such powers.
The concept of judicial review has expanded a great deal in recent times. It was necessary because a greater measure of accountability of democratically elected representatives was needed. Obviously it is not feasible to go to the electorate every year for seeking a fresh mandate and perhaps the only way to sustain a truly represented democracy responsive to the interest of the people is by ensuring more effective checks through the instrument of judicial accountability, transparency, of public affairs, a vigilant press and public opinion. Independence of judiciary therefore bears a direct nexus with representative democracy.
The Constitutional order in Pakistan which does provide for an independent judiciary has been disrupted many a times through military intervention entailing promulgation of Provisional Constitutional Orders (PCO) requiring judges to take fresh oath of office etc. However, since mostly the entire State machinery had acquiesced to the act of usurpation barring a few judges refusing to take new oath and the people did not seriously protest, the dictators were able to get away with their actions. The remaining Judges in this predicament found ways to confer limited validity upon de-facto rulers to ensure continuity by describing them as extra-Constitutiona l deviations premised on the doctrine of State necessity. They nevertheless, asserted that the courts would continue to have the power to determine whether a particular action legitimately fell within the four corners of the limits of necessity.
The November 3rd, 2007 PCO however, was fundamentally different. The sole target of the Proclamation of Emergency and the PCO was the judiciary itself. The high-handed action was taken due to the presumed apprehensions of the dictator about his eligibility to remain in power or not. He was fearful that his glory and splendour might come to an end. His misconceived hallucination was so awesome that he indulged in such an uncivilized action which resulted in destruction and demolition of entire judicial edifice of the country.
All rights and liberties would look like ornamental pieces if these are not enforced in the true spirit by the courts. A new thinking, new values, new projections and a positivistic out-look with a determined action are essential to build up a solid foundation of independent judiciary.
The discussion would be incomplete if do not speak a few words about Rule of law. Though, so far, we have covered the society, state, Government, citizen’s rights, obligations and usurpation etc. but this needs to be brought within the parameters of the Rule of law.
Rule of law is an aspect of the British Constitution that has been emphasized by A. V. Dicey and it, therefore, can be considered an important part of British political thought. The critical feature is that individual liberties depend on it. Its success depends on the role of trial by courts and impartiality of Judges. The rights of individuals are determined by rules and not the arbitrary behaviour of the authorities. Every one, regardless of his position in the society is subject to law.
Supporters of written Constitution believe that as Society has had its liberties, more and more encroached upon by the Government, the Rule of law is more important than ever. Constitution ensures the principle of Rule of law and states that the Government authority is to be legitimately exercised only in accordance with established procedure. The hallmarks to the adherence of the Rule of law commonly include a clear separation of powers, legal certainty, the principle of legitimate expectation and equality of all before law. This principle is also mentioned in Aristotle’s ‘Politics’, where the rule of law implies both obedience to positive law and formal checks and balances on rulers and Judges.
Thomas Aquinas defined valid law as being one that:
– is in keeping with reason,
– was established by proper authority,
– is for the purpose of achieving good,
-and was properly communicated to all
To sum up one can quote Montesquieu who said, “Law should be like death which spares nobody”.
The concept of Rule of law per se says nothing of the “justness” of the laws themselves, but simply how the legal system upholds the law. As a consequence of this a very undemocratic Government one without respect for human rights can exist with or without a rule of law, a situation which has been applicable in our own country in the past, intermittently, for several years. However, the Rule of law is considered a prerequisite for democracy, and as such, has served as a common basis for human rights.
I will conclude with a maxim as it states “It is not the severity of punishment that deters the crime. It is surety of the enforcement of law that deters the crime”.
All individuals must be given the same rights without distinction to their social status, religion, political opinions, etc.