Restoration of judicial responsibility to people repairing damage done to national character During period of subjection

RESTORATION OF JUDICIAL RESPONSIBILITY TO PEOPLE RESTORATION OF JUDICIAL RESPONSIBILITY TO PEOPLE REPAIRING DAMAGE DONE TO NATIONAL CHARACTER DURING PERIOD OF SUBJECTION Address delivered by Mr. Justice A. R. Cornelius, Chief Justice of Pakistan at a gathering of Army Officers at G. H. Q. Rawalpindi A primary task for a newly‑established independent national government is that of repairing the damage done to the national character in the years of subjection. A first requisite for this purpose is a search for the true roots of the nation's being, and following immediately after, there must be restoration of local liberties and powers, as nearly as possible on traditional lines, so that the national character may be rebuilt, in an atmosphere of freedom, under the age‑old incentives and controls. Not all the maxims upon which British legal concepts are based are universally true. A good many are opposed to basic concepts in vogue for twenty centuries and more in the countries of the Middle East, to which we in this country are, by religion and culture, most closely allied. To ensure that the maximum good to the national character is produced, it is necessary to pay full attention to "the eternal source of all legality", so that in a real sense "the law may grow out of the society." The process of restoring judicial responsibility to the people should follow immediately upon their acquisition of full political responsibility, as a first step towards rebuilding of the national character which is, in the last analysis, the true foundation of a nation's strength and independence. The concept of justice, and of its due processes, is an essential part of the concept of independence, both individual as well as national. It is a vast and profound concept, and to rise to the full vigour of independence, a people must have a true comprehension, to the point of actual assimilation, of what is the length, the breadth, the height and the depth of the divine principle of justice which pervades the Universe, and which animates as well as regulates their individual and collective lives. The following is the full text of the Address delivered by Mr. Justice A. R. Cornelius, Chief Justice of Pakistan, at a gathering of Military Officers at G. H. Q. Rawalpindi on 11th July 1962:‑ I would like to assure you that it is with genuine pleasure that I accepted the invitation to appear before this group today. To any one who has a serious matter to present or expound, it is always a satisfaction to know that he is doing it before persons who are taking a real and responsible interest in what he is saying. I do not mean that any of you is in any way responsible to me in my office. The responsibility I speak of is the wide general responsibility of the citizenry of a country the maintenance of whose integrity and existence is the source of constant and pressing activity. The recent history of Pakistan shows that among the responsible sections of the community in Pakistan, the Armed Forces are entitled to a very distinguished position. The subject which I have chosen for this address is one belonging to the large field of political responsibility or political obligation within an independent country, in aspects which are of direct interest to members of the Armed Forces. The Forces have their own system of domestic justice under Courts Martial. The system is operated with full formality whenever possible, that is to say everywhere outside the field of actual operations, and is highly regarded in all legal circles as a mode of securing right and proper justice according to the requirements of the occasion. By "occasion" I do not mean only the particular offence. according to the formulated defini?tion. I take it to include also the surrounding circumstances, such as the welfare of the unit concerned, as well as the Armed Forces generally. If therefore, I invite you to apply your minds to the matter, as one of national concern, I do so in the confident belief that all of you already possess a fairly clear idea of the requirements of justice in a limited sphere. FUNCTION OF JUSTICE IN ITS PROPER PLACE I am proposing to speak of the importance to the national character of leaving the function of justice in its right and proper place. It has a strong bearing upon the capacity of a nation to stand independently on its own feet against all the perils of its international situation. Every human being is born with a well‑developed sense of what is right and what is wrong. Unless blinded by personal considerations, hardly a man is found to be incapable of giving a clear opinion as to what is the requirement of justice in a particular case. In the ancient communities, the judicial function was always reserved to the community, that is to the heads of the various sections into which the community was divided. Through the ages, there had developed a sense of due process in these matters, namely, that a chance should be given to the person alleged to be in the wrong to explain his position, apart from which there were settled notions of the methods by which rights and the consequent liabilities were to be ascertained, and what was to be deemed to be a wrong. Different communities had also fairly clear ideas of the appropriate modes of correction in each case, supported by communal and religious sanctions. EQUALITARIAN SYSTEM OF ISLAM It is in this respect that a firm foundation in one's religion and the principles which it inculcates is of the utmost importance to the establishment of uniform standards of justice among people. Where the religion preaches and practices equality, this is all the more prominent, and it is only when abuses have developed through use of power and other forms of tyranny that the population is faced with the calamity of having to accept any degree of inequality in rights. To take a small example, in the period of British rule down to very recent times, the Codes of Criminal Justice carried provisions which gave unequal privileges to European British subjects as against the people of the country. Those privileges were laid upon the law from the very earliest days of British rule, and were a source of constant irritation until they were finally removed some 35 years ago. The State religion of Pakistan, namely, Islam is strictly equalitarian, and provides a fully developed system of laws and procedures. Both the first as well as the present Constitution provide in detail for the assertion of equality over the whole range of State activity. There are people in all sections of the community in Pakistan, who wonder why there is so much outcry for introduction and application of Islamic principles in all the laws in force. They criticise the outry on two main grounds, viz. firstly, that since the laws left behind by the British have been in existence for a great many years, and have by legislative processes been largely moulded to suit the require?ments of the people, it will be dangerous to interfere with them, and secondly, they say that the British system of justice is applauded all over the world as one of the best and is by now well understood by the people. They therefore ask‑why make a change? SYSTEM OF LAW TO SUIT WITH SENTIMENT OF PEOPLE These are superficial answers to the problem at the best. They often come from persons who are beneficiaries of the system, namely, the Judge and lawyers who can be relied upon to make something of a fight to maintain their livelihood. The mere fact that cases are decided does not necessarily mean, that the system followed is fully adapted to the understanding and sentiment of the people. We all know of civil cases where after getting a decision from the final Court, the parties have to go home and make 'a compromise so as to produce a practical result more in consonance with what they know to be the natural justice of the matter. As for criminal cases it is probably correct to say that under the present system every decision has the quality of breeding more cases of the same kind. The Courts now rely upon evidence given in open Court under an oath whose value is precisely nil, and they follow a strict technique of exclusion of evidence, some of which would be most valuable for the ascertainment of the truth. The result is that cases in which guilty persons are acquitted probably form the majority. On the other hand, there are a number of cases in which innocent persons are convicted on the basis of oral evidence and even suffer death. In both these eventualities, the seeds of revenge have been well sown. REMARKABLE FEATURE One feature of our country, under the British system of justice, which I always found to be remarkable was that the conviction of an innocent person, even when the fact of innocence was established was generally accepted so quietly by the public. Quite frequently in England, discoveries of this kind are made and usually create a public sensation. A more familiar feature is, of course, the general attitude towards the acquittal of persons who, to all appearances, were guilty of the most violent crimes. Presumably, this is tolerated on the theory, underlying the British system, that the benefit of all presumptions should go to an accused person and the whole burden of proof by evidence, which is received under highly technical rules, is upon the prosecution. Cases are common enough where, 10 or 15 persons have jointly slaughtered 3 or 4 of their enemies, and carried their heads in triumph aloft on spears through the village. Ore supposes that when they are acquitted, as they often are, the village lives in a sate of terror from these persons when they return and the whole balance of life is upset once again, as it was when the murder took place and during the ensuing Police investiga?tion. By the inscrutable workings of the judicial system, a situation has been created, to which under the necessities of life the people have to adapt themselves and, at the cost of a part of their true character, they do so. Unfortunately, what is damaged in this process is that part of their character, which is the distinguishing feature of the strong and noble human being. Belief in truth diminishes. Denial of the strength of evil becomes impossible. So also when an innocent person has been hanged ‑on the basis of evidence which the village knows to be false, I imagine that the relatives accept it as a stroke of fate and the rest of the village, as an incident of the judicial system from which at least one party has gained some advantage. But in this case as well, there is definitely a diminution in the public character in those respects which make for strength and stability. BRITISH LEGACY One is tempted to ask‑would not such results be avoided, if the function of doing justice were placed in the hands of the people themselves? How far can justice be allowed to travel away from the truth? Can such a state of affairs be allowed to continue indefinitely, without basically endangering the body politics? How does it happen that this condition has been developed in so many countries? It derives from the system and cannot be attributed solely to the character of the people. For there are no men on earth, who if involved in a Court case, would not use all means in their power to manipulate it to their advantage. The development is a matter of history. It is clearly an artificial condition, and it is worthwhile enquiring how it came into existence. Our legal system is a legacy left behind by the British. The British system of law first began to take shape under the Normans who conquered England in the year 1066. They found a local system of justice operated by communal and local courts, as well as by certain "franchise" courts, namely, the courts of landowners who had judicial powers by right of possession of certain land. The communal courts are still referred to in the books of English legal history as the "national courts". Much study has gone into the subject of how step by step the Normans and in particular, their great King, namely, Henry‑II (1154‑1189) introduced a series of variations by which all jurisdictions were finally brought under the control of the King's Court. It is true that previously there was great diversity in the laws that were being applied. There were also abuses, so that the action of Norman kings could be applauded for bringing uniformity to the processes of justice. Moreover, the pre‑Norman methods of settling disputes were mostly primitive. There was trial by battle as a test of the rightness of a man's cause, and this was also tested by ordeal namely, such as by being thrown into water or putting one's hand into live coals, etc. Another primitive method was by "compurga?tion", a relic of which lingers on even in our Courts. Under compurgation, a litigant was required to support his case by the oaths of a number of respectable persons usually his kinsmen, swearing that his case was true. The test of truth was that the witness was word‑perfect. In our Courts too, each party produces a number of relatives as witnesses, and the effort to be word‑perfect is only too plain, but unhappily, for them, such witnesses are usually ignored. However, to go back to British legal history, it is clear that the Norman kings and particularly Henry‑II, attracted the people to the Royal Courts by a system of justice which excluded battle, the ordeal and compurgation, and instead put the decision upon evidence, and the opinion of a jury of their fellow‑citizens. They had other and more subtle methods as well. For instance, the king with the aid of the ablest lawyers in the kingdom invented forms of writ which had the effect of withdrawing cases from the jurisdiction of all the local Courts. Thus for instance, in a criminal case, the lawy: rs invented a form of words amounting to this that the offence constituted an infraction of the King's peace, and whether this was truthfully said or not, the case at once came before the King's Court. Another device of this kind was utilized in civil cases. In the plaint, a clause would be inserted to the effect that the Lord who had jurisdiction had remitted the case to the King's Court, and whether this was true or not, it was sufficient to give the King's Court jurisdiction to the exclusion of the local Courts. A precept could be issued to the local Court to report a case to the King's Court, and this effectively withdrew the case from the local Court. Great increase of work? and of legal revenue to the King and the lawyers of his Court‑resulted and so a further reform was introduced. The King established the system of itinerant justices. You can see at once how the new law began to feed its own creators. The King gained revenue, but more important still, he gained a direct control over the people, in their everyday lives, brushing aside all intermediate feudal and communal authority and jurisdiction. The best lawyers of the period remained in the vicinity of the King's Court and all the additional work which their formulae effectively brought to the King's Court was for them meat and drink in one form or another. Profes?sional judges became the fount of justice, and the dispensation of justice in communal form came to an end. The presence of a jury was, of course, a safeguard against arbitrary justice, in the interests of statecraft. But that was only a small part of the matter, in the view‑point of the total assumption of the function of justice by an establishment of professional judge, aided by professional lawyers, operating a highly formalized system in a foreign language (first Latin and later Norman French) among a subject people. The birth of the system, moreover, lay in a deliberate plan to withdraw the agencies of justice from the people, and to replace them by instruments of Royal creation. FORMALISM OF BRITISH SYSTEM The further development of the English legal system is a long process to which I need not refer here, beyond saying that as time has gone on, it has not become any simpler, nor has the subject been afforded any relief against continuous intensification of formalism in all laws and procedures. It is a matter of history that by about 1200 A. D. in about a century and a half the plan behind the laws and administrative orders of King Henry‑II had been fully achieved. A direct result was that, except where the Royal interest was specially concerned, the courts begin to treat of cases in a narrow fashion, that is, as if nothing mattered except that the requirements of the definition of an offence should be satisfied, and that the punishment should be fully punitive, retributive and deterrent. That is a condition which is present today, and my concern is to argue that while it may 'fully meet the demands of a foreign ruler, the outlook is not sufficiently broad or beneficial in an independent community. ESSENTIALS v. TECHNICALITIES What I mean is this. Every case before a Court is founded on a dis?turbance in the harmony of the communal life, through action of a nature which failed to take into account the rights and responsibilities as well of the actor as of the person affected adversely bar the action. This is true equally of those matters which are civil wrongs and of those which are counted as crimes. It is of course possible that the degree of violence attending a particular crime in a community may be so great that the full strength of the community may not be able to cope with it, and the support of the State or of some larger unit in the society would be needed to contain the violence of the explosion and to set the matter once again to rights. It is possible also that a civil dispute may involve interests or questions altogether too large or too intricate for a local Court to cope with. But if you take it from the communal point of view, the main business is to set things to rights so that life within the community can go on peacefully and harmoni?ously as before. It is in this sense that one understands the frequent punishment of outlawry which primitive communities used to impose upon incorrigible persons. They were placed outside the pale of the law, for incurable non‑conformity. Short of this, the idea was always to retain the offender within the community after suitable correction. The communal Court would incline to regard essentials and ignore technicalities, in as?certaining the fault. Restoration of local peace, reformation of the delinquent's character, and relief to the injured party would be the para?mount considerations by which their decision in the case would be determined. If they acted soberly and justly, they would avoid exaggerating the matter. HIGHLY TECHNICAL A case of which I read in a recent issue of the London Times furnishes a good example of the extent to which the pursuit of legal formalism can draw a Law Court away from essentials which would be obvious to a Communal Court of the kind I have been discussing. The case is of a matrimonial nature, and as you know, such matters have been assigned recently in Pakistan to Communal Courts under the Family Laws Ordinance. this particular case was before the English Divorce Court. It started in 1957, when the wife sued for divorce on the ground of cruelty, and the husband cross‑petitioned for divorce on the ground that she had been cruel to him. Cruelty is a matrimonial offence justifying dissolution, but it is narrowly defined, and so it resulted that in the 1957 cases the Courts held that neither party had established cruelty, and both failed. That is to say, they stayed married, though the fact was that the wife had driven the hus?band out of the matrimonial home, and there was no prospect of reconcilia?tion. The situation was plainly impossible. Another effort to get free was inevit?able. In 1961 the husband sued again for divorce on the ground of desertion namely, that his wife had turned him out of the matrimonial home. There?upon the wife counter‑petitioned for divorce on the ground that he had deserted her, pleading that her own conduct was justified by his prior misconduct. In the English Law, that amounts to constructive desertion, and you can easily see as what a wide field is thereby opened out for the aggressive spouse to manipulate the weaker partner into a matrimonial offence. It is merely a matter of evidence. The case reported in Times was however on a very highly technical point, namely, whether in attempting to establish constructive desertion, the wife could rely on acts of cruelty which had taken place before she filed her suit in 1957. The Judge decided the point by applying the well‑known principle of constructive res judicata, holding that because she could have pleaded the particular acts in the previous case, and had not done so, she was estopped or prevented from pleading them in the later case. The main case has yet to be decided. The costs to the parties of this interim order would be several hundred of pounds, and as it is appealable, further income to the lawyers, and the Court is 1n prospect. How, anyone would say that the institution of marriage which is basic to community life is one to be safeguarded to the utmost extent of reason. But when the fact is established that the spouses cannot live together as husband and wife, the solution lies in allowing a separation under conditions which are consistent with the general interest of the community. Care should be taken that there is the minimum damage to the personal character of the spouses, that the children are looked after and that the finances of the couple should not be depleted in the process. The question of the impos?sibility of their living together as spouses is capable of being resolved without any great expenditure. The Scriptures indicate the minimum requirements fairly clearly. English jurisdiction in the case I have cited does not appear to take any of these considerations into account. It was clear enough that the spouses could not possibly hit it off as a married couple. if the matter were before a Communal Court, I feel no doubt that that con?clusion would have been reached at an early stage and dissolution would have been awarded without the great outpouring of money into the pockets of lawyers and on court‑fees and other expenses, that has been clearly incurred in the case. Justice has been exercised in such a way that the real purposes, namely, the welfare of the community, the good of the family, and other considerations such as I have mentioned all go by the board. A detached Judge and disinterested lawyers are operating a technical and elaborate system which exposes the matrimonial vagaries of the couple to the maximum extent, and reduces the matrimonial store rapidly to the point of exhaustion. Only the Court and the lawyers flourish as a result. PROCESS OF TRANSFERENCE IN INDIA Under the personal law prevalent in Pakistan and the new Family Laws Statute, an abuse of this kind is probably not possible. But family laws are only a small part of the laws under which we live. The greater part of these laws is operated by the ordinary Courts of British creation. I should like to trace for you quite briefly the methods by which the function of justice was taken away from the people after the advent o' British rule, and was transferred to the rulers. In India also at the time when the British came, there was the same diversity among the indigenous Courts as to the laws they applied. There were communal Courts in the villages which had full powers, and it appears that these extended even to cases of a capital nature, except that in such cases, the sentence had to be referred to the ruler for confirmation. The Hindu rulers are said to have maintained a gradation of Courts, though as in Britain in pre‑Norman times, there was no regular system of appeals. Under the Mughals also, there were graded Courts of the same kind, and they had also a landowner's jurisdiction similar to that of the lord's Court in Britain. Under this system, the Zamindar of a locality would have certain criminal and civil jurisdiction over his territory, subject to confirmation of the higher punish?ments by the suzerain. When the company acquired the Zamindari of a certain number of villages around their first settlement at Howrah, their English factors undertook the judicial duties of the Zamindari with one difference namely, that capital cases were referred to the Governor‑in-?Council at the main settlement for their confirmation, and not to the Nawabs at Murshidabad. Over their own people of course they exercised exclusive jurisdiction, that is to say, to the exclusion of the native Courts, and as their power increased, and their employees who were also adminis?trators spread over the country, conditions developed in which while the English subject could sue a native in any local Court, no English person could be sued except at the cost of great delay, inconvenience and expense, at Calcutta. In the course of tune some of these inequalities were erased, and notable efforts were made, in Madras, and Bombay, in particular, to create borough Courts after the pattern then in vogue in England. At first, a few Indians were appointed to these Courts, and were described as "black Justices", but later, all appointments were reserved for Europeans and as the power of the East India Company spread over the country, a thorough‑going judicial administration was evolved. By a Parliamentary Act of 1761, all posts of Assistant Magistrate, District Magistrate and District and Sessions Judge were reserved for the Indian Civil Service, which was exclusively British. It should be said to the credit of these officers that many of them did not hesitate to record their view that this reservation was unsatisfactory, as they themselves understood very little of the needs, customs and laws of the Indians, and on the other hand there were plenty of nationals who were capable of performing this work. It was not until half a century had passed that Indians began to be employed in fairly large number to deal with the least important civil and criminal cases. As we all know, it was only in the last 25 years of British rule that there was any considerable change in the condition that the principal Magistrate and the principal Judge of a district were always British and in the High Courts, the Indian Judges were always in a minority. I point this out in order to show the importance that was attached by the new rulers from the very `commencement of their rule to gaining direct control over the judicial system, and to making laws which would result in the withdrawal of all jurisdiction from the local communal Courts. VALUABLE WORK OF BRITISH LAW COMMISSIONS That is not to say that the communal Courts were at all well‑organised when the British came. They probably worked in highly irregular fashion and with no great conception of the laws which they administered. It was indeed a major work of great value which the British undertook when they codified the various laws of the country. There were in fact four Law Commissions appointed, with purely British personnel between 1834 and 1879. The bulk of the statute book is made up of laws carefully formulated by these successive Commissions. Nor is it possible to minimise the value of the work done by the Magistrates and Judges of the British period, who worked in compliance with the law. They did great work in establishing a complete system of Courts and judiciary, and furnishing an example to the people, over about 200 years of how such a system can be run. F.C.R. : LAW SHOULD BE A PROJECTION OF THE COMMON PERSONALITY But the other aspect remained, namely, that they were operating a system of justice which was imposed upon the people and did not derive from the life of the people themselves. To lend point to this aspect, I refer to the receipt increase of interest in one of the indigenous systems of justice, namely, the Jirga system. I would like to read to you a short passage from Sir Olaf Caroe's book entitled "The Pathans" on the subject of trial by Jirga under the Frontier Crimes Regulation, which was enacted by the British in 1872. The intention was, as Sir Olaf Caroe says, to introduce customary methods into the settlement of "quarrels arising out of the blood‑feud, of disputes about women, and questions generally affecting Pathan honour". A group of elders acceptable to both parties was designated by the executive Magistrate, as the Jirga and this group was charged with the duty of giving a finding as to the guilt or innocence of the accused in a criminal case, or on the points at issue in a civil dispute. The Jirga was not bound by the strict law of evidence. It was expected to visit the scene of the crime or dispute and by its own methods of enquiry to ascertain the facts and to furnish a solution. Professional lawyers were excluded. This system was used, in its best days, for cases which the executive authorities thought to be such that if the technicalities of the ordinary law of evidence and procedure were applied, it was unlikely that the facts of the case would be properly ascertained. Sir Olaf Caroe was of the view that in trials by Jirga the chance of a person who is innocent being convicted was "so rare as to be negligible". He was obliged to admit that later the reference to Jirga began to be used as "merely an easy means of punishing crime as from the State, without being a recognition of the Pathan idea". This was in the old North‑West Frontier Province, and I might say that the strength of the opposition which one sees to the introduction of this system lies mainly in this abuse, which appears to be practised with little or no attempt at concealment. Sir Olaf Caroe points out that the same complaint is not found in Baluchistan, where the Frontier Crimes Regulation is employed as the sole procedural code and not to procure convictions where the evidence is weak, and the ordinary Courts would be bound to acquit. Sir Olaf Caroe concludes his consideration of the Jirga system with the following observation:‑ ??????????? "The point to realise is this Pathan custom requires the satisfaction of the aggrieved rather than the punishment of the aggressor. The law as we understand it concentrates against the aggressor, and compensation for the aggrieved hardly enters the picture. The Pathan in fact treats crime as a kind of tort. ??????????????????????? How and when, and in what degree, it may become desirable to shift the emphasis in a Pathan society from law to custom, or from custom to law, is a matter more likely to be resolved by Pakistan than it ever was by ourselves. It is an obvious principle that the law should in some sense grow out of the society; it should be a projection of the common personality. The law of one civilization cannot be applied to a society with utterly different standards without the most dire results." ??????????? Sir Olaf Caroe touches in this passage upon a matter of fundamental nature affecting the dispensation of justice among communities at different stages of civilization. A passage from a book by A. T. Carter on the History of the English Courts furnishes a close analysis of the problem and comes to a conclusion which is surprisingly similar to that of Sir Olaf Caroe even in point of language. Mr. Carter says:‑ "One of the first problems that meet a political society in its early days is how to persuade the plaintiff‑for it cannot compel him‑‑?to come into Court and deny himself the pleasure of private revenge. The next task is to put pressure on the defendant to come in . . . . It is possible that the offer of trial by battle was another way of inducing the plaintiff to come in. The defendant was forced in by distraint on his property and outlawry. The second stage is that the plaintiff must come and get the judgment of the Court; he is then allowed to go and execute the judgment with his own hands. The Central Government is not yet sufficiently organised to execute its judgment itself. The third and last stage is when the State is strong enough not only to hear the complaint, and give judgment, but to insist on executing its judgment. When this happens, then over a considerable field the conception of Crime and Punishment supersedes that of 'Tort and Compensation." A crime, you should know, is an offence against the State, and punishment is imposed by the State. A tort is a private wrong, and the relief is by way of compensation. The essence of the problem is very clearly put in the last sentence. To a community, a wrong by one of its members of a nature which disturbs its peace would always appear in a limited light, namely, in those lights which derive from considerations of the common welfare of the community. They would not be inclined to exaggerate the offence, but always to minimise it and keep it at a proper level. Thus for instance, any breach o: the peace can be regarded either as a breach of the local peace or bread; of the king's peace. The community would tend to keep it at the former level, but the laws are devised so, that the State steps in to deal with al; except the most trivial breaches, and the matter assumes an extra‑communal aspect by the intervention of Police and Magistrates in many cases where such intervention might have been avoided. I remember myself in my own days as a Magistrate being greatly surprised when a British Deputy Commissioner under whom I was serving as a Sub‑Divisional Magistrate took strong exception to my having sanctioned a compromise between a complainant and an accused person in a case where an arm had been broken with a single lathi blow. I had questioned the parties and was satisfied that they wished to live at peace for the future, so without referring the matter to the Police, I sanctioned the compromise and acquitted the accused person. But a grievous hurt being a cognisable offence, attracted the direct interest of the Police, and I presume that the; thought that the case rated as one of breach of the king's peace, and fell they had been ignored. That case furnishes an index of the general attitude which in the centuries of British rule had been developed by the administration towards the people. I would myself be inclined to allow a local Court to deal with a case of that kind. It usually takes about six hearings before a Magistrate in die district town, causing a great deal of disturbance to the life of the people, and much expense. A village Court would dispose of it in a day, at no expense at all. If they were men of good and strong character, following in the way of religious precept and tradition, they would devise a solution which would not be purely punitive or deterrent. It would provide for compensation, and it would be designed to restore the pre‑existing peace. The need for imprisonment would arise only in cases of a serious nature, or where the miscreant was a public danger JUDICIAL SYSTEM IMPOSED 13Y FOREIGN CONQUEROR The Martial Law regime took a first step towards this end, by conferring judicial functions upon the Basic Democracies. Its importance does not lie only in the effect upon individual cases, such as I have been discussing: There is a much larger aspect of the matter, on which I have just touched, namely, the discovery and the encouragement of good and strong character among the people, sufficient to render them capable of being judges in their community over all maters within their proper compass. It is not a mere chance that the total seizure of judicial power is the first aim of a foreign conqueror. Apart from the direct control which it provides over the lives of the subject people, it has also a most weakening influence upon the character of the people generally and in particular, that of their leaders. Their position as integrating factors within their respective communities, is reduced to that of quislings, with consequent loss of confidence on both sides, and increasing dependence for everything, including the simple function of maintaining the peace among themselves, upon their rulers. It is interesting to study the historical progress of the conquered peoples, from the loss of their political independence to the restoration of political responsibility to them. As you are aware, the present century's most remarkable feature is the rapidity with which conquered territories are being delivered over, by the conquerors, to the people, to become independent international units. There is a pathology of the subject countries as well as a pathology of the conquering countries, find the labours and anxieties of the political doctors who make it their business to attend to the teething troubles of infant States, just restored to independence, are wonderful to see. Taking first the case of Britain, which lost its independence to the Normans in 1066, we find the conquerors gaining complete control over the judicial system by 1200 A. D., after just about a century and a half. The first Parliament of England, was not summoned until 1265, just two centuries after the conquest, and thereafter, the rule of England passed into the hands of an indigenous dynasty, the Norman conquerors having become absorbed in the nation. By this time, also, the process by which judicial responsibility was partly restored to the people by the general application of the Jury system, was well under way. The jury are representative of the people, and to them is entrusted the duty of deciding on facts. That system is still in operation in England, but at the same time, justice has not become a responsibility of the people, for it has become heavily encrusted with the minutise of law. It is firmly under the control on the legal side of professional lawyers, from among whom all the Magistrates and Judges are chosen. BASIC DEMOCRACIES‑ATTEMPT AT ASSOCIATING PEOPLE WITH ADMINISTRATION OF JUSTICE In India, loss of political responsibility commenced in 1765 and continued by stages until by 1850 the whole country had been brought under the rule of the East India Company, which was assumed by the Crown shortly after. Side by side, the new rulers took over complete judicial responsibility, not by stages as in England, but immediately. It was not until the Reforms of 1919 that the first really representative Parlia?ments were summoned under British rule, just about a century and a half after its true commencement, and it took another 28 years before complete political responsibility was restored to the people. But the jury system was never whole‑heartedly attempted in India, and such trial as it received, under unfavourable conditions, only resulted in its discredit. The result is that in Pakistan today, the agencies of justice are wholly in the hands of lawyers and official Judges and Magistrates. The people are as yet not associated with the administration of justice, except to the extent recently introduced under the system of Basic Democracies. NEW INDEPENDENCE AND FOREIGN MODES The subject will probably be studied in due course, in relation to the large category of newly‑liberated countries, as an aspect of political reconstruction. For everywhere, the discovery is being made that independence, even under the safeguards of mutual security among the nations, cannot be sustained on a mere paper Constitution. The machinery of popular representation, the technique of law‑making, all the familiar activities of politicians have come to be understood as mere motions in a foreign mode. The more vigorously they are pursued, the nearer the infant State is brought to the point of dissolution. There is a need for intensely careful examination of the causes of this disease. One of its features is that it appears most strongly among vigorous peoples who have a strong faith in their own traditional institutions. Their natural tendency to exploit every freedom to the maximum imposes an immediate strain upon the system by which their lives are governed. DEMAND FOR RESTORATION OF ISLAMIC INSTITUTIONS It is also among such a people that you will find the strongest demand for restoration of their original institutions. There is nothing superficial about this desire. It is nothing more or less than a grouping for the true roots of their being, as individuals and as a nation. Their years of subjection are but a small part of their history. Foreign rule may have brought in new mechanisms. But the attempt to cut the people away from their roots has been proved through many centuries of conquest‑now happily ended, one may hope‑to be vain. Alien controls, exercised by foreign hands, and the usual incidents of foreign rule, which derives its strength from the growing weakness of the people, saps the national character, but where that is strong, it can never be wholly destroyed, or even radically changed. It is in this sense that the demand often heard in Pakistan, for restoration of traditional Islamic institutions should be understood. It is the natural cry of a strong organism to be connected once again with its original and proper roots. The matter lies in the field of political therapeutics. PRIMARY TASK FOR NEWLY‑ESTABLISHED INDEPENDENT GOVERNMENT The restoration of a people to their original roots is no light task. In the circumstances we have been considering, it is made no easier by its falling, always with some degree of suddenness, upon national leaders whose position the foreign rulers have done their best to undermine. The people are usually divided among themselves, uncertain which lights to follow, an easy prey to false guidance from within and without. But these very difficulties eventually point the way to the true solution. They must be rebuilt on a basis which, as a Part of their being, they accept as the true foundation of their existence as a nation. The point is put very clearly by a notable French woman writer, Simone Weil, in a book entitled The Need for Roots, written during the years 1940‑45 when France lay under German occupation. The theme of the book is the re‑integration of the French people, with the object of offering united resistance to the conquerors. This is what she has to say "Seeing that we have, in fact, recently experienced a break in historical continuity, constitutional legality can no longer be regarded as having an historical basis; it must be made to derive from the eternal source of all legality. The men who offer their service to the country to govern it will have to publicly recognise certain obligations corresponding to essential aspirations of the people eternally inscribed in the depths of popular feeling; the people must have confidence in the word and in the capacity of these men, and be provided with means of expressing the fact; they must also be made to feel that, in accepting these men, they give an undertaking to obey them." The overtones in this passage are outside the subject of this talk. My purpose is to point out that a primary task for a newly‑established independent National Government is that of repairing the damage done to the national character in the years of subjection. A first requisite for this purpose is a search for the true roots of the nation's being, and following immediately after, there must be restoration of local liberties and powers, as nearly as possible on traditional lines, so that the national character may be rebuilt, in an atmosphere of freedom, under the age‑old incentives and controls. RESTORATION OF JUDICIAL RESPONSIBILITY TO PEOPLE The most important of these powers, in my opinion, is the judicial power. A community which is capable of exercising judicial responsibility within its compass, is a community of persons, who have trust and confidence in their own Judges, and these Judges are men with understanding and honesty, deeply imbued with the thought of community welfare, who have the strength of mind and character to reach and pronounce decisions on points of dispute, however unpalatable they may be to a section of the community or even to themselves. There you have all the ingredients of integration of the community, at local level. It is necessary only to re‑devise for them the basic principles and procedures of the laws they administer. This is a matter of fundamental importance. Not all the maxims upon which British legal concepts are based are universally true. A good many are opposed to basic concepts in vogue for twenty centuries and more in the countries of the Middle East, to which we in this country are, by religion and culture, most closely allied. To ensure that the maximum good to the national character is produced, it is necessary to pay full attention to "the eternal source of all legality", so that in a real sense "the law may grow out of the society." It is my belief that the process of restoring judicial responsibility to the people should follow immediately upon their acquisition of full political responsibility, as a first step towards rebuilding of the national character which is, in the last analysis, the true foundation of a nation's strength and independence. Considerations of difficulties in making the change, or of the people being used to certain foreign techniques which have proved successful elsewhere are merely symptomatic of the inertia which afflicts human affairs. Being myself a creature of the judicial system set up by the late rulers, I nevertheless feel that, while upholding the standard of justice as a principle, it is right that I too should attempt to see our system of justice in the light of the true necessities of the nation. For the concept of justice, and of its due processes, is an essential part of the concept of independence, both individual as well as national. It is a vast and profound concept, and to rise to the full vigour of independence, a people must have a true comprehension, to the point of actual assimilation, of what is the length, the breadth, the height and the depth of the divine principle of justice which pervades the Universe, and which animates as well as regulates their individual and collective lives. Mere acquaintance with its processes leads to unscrupulous exploitation by the parties, and super?-exploitation by the professionals. That must always happen where a system is a thing of mere intellectual apprehension, and not of integral of integral comprehension and assimilation. Seen in a real light, the p justice is the true road by which a people may attain that fullness of nobility which was designated by the Creator for human beings and for human society.