ISLAMABAD/LAHOR: Chief Justice of Pakistan (CJP) Iftikhar Muhammad
Chaudhry has said constitution has defined the role and power of every
organ of the State and none of the organ can transgress the limits of
the other and has to work within its jurisdictional domain.
He said this while addresing International Conference arranged by Supreme Court B ar Association at Lahore.
He
observed the Constitution of Pakistan being the supreme law of the
land, in its very Preamble provides that the principles of democracy,
freedom, equality, tolerance and social justice, as enunciated by
Islam, shall be fully observed and the State shall guarantee
fundamental rights, including equality of status and opportunity,
equality before law, social, economic and political justice, and
freedom of thought, expression, belief, faith, worship and association,
subject to law and public morality. It’s the duty of the State under
the Constitution to establish peace and security for its people and to
rebuild justice institutions for the development of economic growth and
public confidence, he urged. . He held that the constitutional scheme
of separation of powers is aimed at, inter alia, to secure the rule of
law. Indeed, the rule of law is directly linked with the principle of
trichotomy of powers. The trichotomy of powers is a constitutional
principle designed to ensure diffusion rather than the concentration of
power within the State. Rule of law checks the unbridled exercise of
powers by State institutions. The prime objective of the trichotomy of
powers is to avoid the abuse of power and thereby to protect the rights
and liberties of citizens. Accountability and transparency on the part
of State institutions to ensure the establishment of a vibrant civil
society having a free and fair political system, protected human rights
and a strong legal system.
He underlined it’s the prime duty of
the Government to take proper legislative measures for the enforcement
of human and fundamental rights in order to bring peace and social
tranquility. Judiciary no doubt is the ultimate protector of the rights
of citizens, yet it’s the work of the legislature to repeal outdated
laws and formulate proper legislation to cope with the problem of human
rights abuses. The relation of the judiciary to human rights is
fundamental. The Constitution has made the judiciary the guardian of
the constitutional rights of the people. He went on to say Supreme
Court of Pakistan being cognizant of its role and duty as assigned to
it by the Constitution, has always come to the aid of suppressed
segments of the society. Suo Moto action taken by the Supreme Court in
the missing person’s case has resulted in the recovery of many
disappeared persons. However, it is still unfortunate that there is no
proper legislation to this effect. Every day the number of enforced
disappearances is increasing particularly in Balochistan and there are
allegations of extra-judicial killings and mutilation of bodies.
Religious intolerance, sectarian tensions and riots between various
religious and ethnic groups are rising day by day.
He said
historically, the professional classes and especially the lawyers have
played significant role in various walks of life including governance,
policy formulation and administration of justice. In the case of
Sub-continent, the role of lawyers has assumed added significance in
terms of their contribution to the very creation of sovereign and
independent states. Lawyers were mostly in the fore front of freedom
movement. The leading role for creation of Pakistan was played by
outstanding lawyers like Quaid-e-Azam Mohammad Ali Jinnah. This
tradition has permeated our national politics, as the lawyers and
jurists continue to play an admirable role in advancing the cause of
enforcement of fundamental rights, rule of law, good governance and
national development in their respective countries. Since the
historical lawyers’ movement of 2007, the political discourse in
Pakistan has seen an unprecedented change. Now from ordinary people to
the highest decision makers in the country, the common desire is to
have constitutional dispensation, democratic system of governance and
rule of law. This is the most enduring contribution of the lawyers’
movement.
He held the organizers of this Seminar have asked
him to speak on the topic “People’s Security and Rule of Law”. This is
indeed a contemporary issue of our region, encompassing the entire
spectrum of our national life. Nearly all the nations of the region are
facing the dilemma of having to secure public safety and national
security by strictly adhering to the safeguard of rule of law, however,
I should restrict my discourse to the situation in Pakistan.
He
said traditionally, security has been defined as a degree of protection
against internal or external threat, danger, damage or loss. The
Indo-Pakistan Sub-continent has had its post-independence history of
armed conflicts, tensed relations and periodic proclamations of
emergency, mostly due to external threats or aggression but also due to
internal exigencies. Consequently, Defence Regulations were promulgated
and National Security Acts passed, all in the name of bolstering
national defence/security and maintaining public safety. This perceived
sense of threat to national integrity and insecurity engendered a mad
rush for joining regional and international groups for seeking
protection from every possible source. This state of affairs resulted
into Pakistan ’s getting into regional defence arrangements like CEATO,
CENTO and also diverting its scarce resources to the building up of its
defensive capability. This state of affairs transformed our polity into
a national security state instead of social security state as
envisioned by the Founding Fathers. The armed conflicts within the
Sub-continent and surrounding regions including Sri Lanka , Afghanistan
, Middle East and involvement of foreign states including the erstwhile
two Super Powers never led to the lowering of guards. The region
further has been infested by few persistent and some sporadic violent
upheavals.
He said both India and Pakistan adopted preventive
detention statutes and passed defence regulations for the preservation
of national defence and protection of national security, public safety,
etc. Even though these preventive detention laws were primarily for
bolstering national defence/security against alien enemy during period
of foreign aggression, armed conflict or national emergency, however
the successive governments also abused/misused the law against
political opponents. This, at times, resulted in the arrest and
detention of hundreds and thousands of opposition leaders or political
opponents during national political crises. The courts were therefore
confronted with the problem of having to strike a balance between the
compelling need of defending national security and protecting
individual liberty/freedom. Here I would like to compliment the
superior judiciary of Pakistan, as from the very beginning, it rejected
th precedents set by British courts in similar situations, as
exemplified in the House of Lords judgments in Rex v Halliday[1] and
Liversidge v Anderson[2].
He went on to say the Indian Supreme
Court, following the House of Lords precedent of Liversidge and
accepted the principle of “subjective satisfaction” as per its famous
judgment in Gopalan v State of Madras[3]. This way, wide discretion of
arrest and detention was accorded to Executive, which was often abused
and misused. Subsequently, the Court having introduced some procedural
changes to alleviate the suffering of detenus, narrowed down the scope
of the principle; and later towards late 1980s, the Court deviated from
its principle and adopted the principle of “objective satisfaction”.
He stated as compared to the stance of Indian judiciary, the Courts in
Pakistan from the very beginning were inclined to adopt the principle
of “objective satisfaction”. This is apparent from observations of the
courts during the 1950’s. They did not concede the demand of the
Executive to withhold privileged document/material and insisted on full
disclosure of all relevant incriminigating material to satisfy the
Court that the detention order is valid. Thus, the Supreme Court in the
case of Malik Ghulam Jilani v The Govt of West Pakistan[4] as well as
Government of West Pakistan v Begum Agha Shorish Kashmiri,[5] affirmed
the principle of “objective satisfaction”. Since then the courts,
notwithstanding the intervening episodes of constitutional breakdown
and imposition of martial law, have not deviated from this principle.
This way, from the very beginning, the superior courts sought to uphold
and protect the individual’s right to personal liberty and freedom, not
only during the time of armed conflicts but also proclamation of
emergency due to internal disturbances. However, thanks God, that with
the end of armed conflicts, resort to using preventive detention
legislation against political opponents minimized. The judiciary in
Pakistan maintained throughout a clear stance of not letting the abuse
of emergency legislation of preventive detection law for personal or
political ends and thereby safeguarding the individual’s right to
personal liberty and freedom, as guaranteed by the Constitution.
He
said now times have changed and we need to redefine our national
security not only in terms of defence against external aggression but
also in terms of security of the people of Pakistan ensuring their
physical safety and security as well as social, political and economic
rights. A strong defensive mechanism can provide a sense of national
integrity and security to some extent. But beyond a certain point, it
is the social, political and economic well being of a people which
ensure their existence as a civilized and a proud nation. It is a
matter of record that once the ex-Soviet Union started disintegrating
no amount of defence security could keep it united. In fact as per one
information, at the time of its disintegration the erstwhile Soviet
Union had more than twenty thousand tactical nuclear warheads in a
ready state. However, all these weapons and millions of soldiers could
not keep the country united. Thus, it is very important that people’s
security should be broadly envisioned and alongwith the defence
imperatives, other, factors directly affecting the rights of the
citizenry should also be accounted for.
He remarked the one
linchpin which ensures the security for the people of any country is
the application of conjoined twin principles of supremacy of
constitution and rule of law. Undiluted adherence to the norms and
principles of the constitution and practice of rule of law are the
keystone for all other requisites of democracy. Sustainability of
economic and social development depends on democratic governance, well
rooted in the rule of law. A society respecting and implementing
constitutional norms generally and rule of law particularly ensures
protection of human rights, free and fair political system, public
confidence in the law enforcement agencies and the courts and a
strengthened socio-economic set up. The amplification of rule of law
ceases with the breakdown of public order and insecurity of citizens.
Equal protection of law, procedural fairness, safeguard of civil
liberties and fundamental rights and access to justice are some of the
traits of a civilized and egalitarian society. Online
