INAUGURATION OF BUILDING OF MULTAN BENCH OF LAHORE HIGH COURT, MULTAN

INAUGURATION OF BUILDING OF MULTAN BENCH OF LAHORE HIGH COURT, MULTAN <!--[if gte mso 10]> INAUGURATION OF BUILDING OF MULTAN BENCH OF LAHORE HIGH COURT, MULTAN Inaugural Address By Mr. Justice Muhammad Haleem, Chief Justice of Pakistan [26-11-1988] Esteemed Governor of Punjab Makhdoom Muhammad Sajjad Hussain Qureshi; Mr. Wasim Sajjad, Minister for Justice and Parliamentary Affairs; Mr. Aziz A. Munshi, Attorney-General for Pakistan; Distinguished Brethren; Distinguished Chief Justice of the Supreme Court of Azad Jammu and Kashmir; Distinguished Chief Justice Federal Shariat Court; Mr. Justice Abdul Shakurul Salam, Chief Justice, Lahore High Court; Distinguished Chief Justices of High Courts of Sind and Baluchistan, and Distinguished Judges of the High Courts of Lahore, Sind, Peshawar and Baluchistan; Mr. Muhammad Akram Sheikh, President of the High Court Bar Association, Multan; Members of the High Court Bar Association, Multan; Ladies and Gentlemen! It is with great pride and pleasure that I accepted the invitation of the Chief Justice of the Lahore High Court to inaugurate the Court House at Multan which is to house the permanent Bench of the Lahore High Court. It is a great stride towards bringing home justice to the people inhabiting the city of Multan and a vast area around it. It is a historical city where lived great many Muslim Saints and Mystics. It provided a thoroughfare to the travellers and the conquerors proceeding from North to Delhi and elsewhere and itself became a centre of great religious and political eminence. The city reported to have existed during the days of Hiuen Tsang, a Budhdhist tourist, who passed through the city in 741 A. D. He called it Mu-lo-san-pu-lu. Alberuni as far back as in the 11th Century called the city as Mula-tana in one of his travel accounts. Muhammad Bin Qasim, the Muslim conqueror, came to Multan within 70 years of the visit of the Budhdhist traveller. In the A'in-e-Akbari, the city was stated to be the headquarter of one of the Subas or Provinces of the Mughal Kingdom, which comprised in those days of three divisions, namely, Multan, Dipalpur, and Bhakkar. During the British rule and before the establishment of the permanent Bench of the Lahore High Court, the principal Civil and Criminal Court of the District was that of the District and Sessions Judge. 2. Here are the shrines of Hazrat Shams Tabrez (Rahmat-ul-Alah) Hazrat Shaikh Bahauddin Zakriya (Rahmat-ul-Alah) and his grandson Hazrat Shah Rukan-i-Alam (Rahmat-ul-Alah). There are also other shrines of Shah Alam, Shaikh Muhammad Yousaf Gardezi, Musa Pak Shaheed and many others and all these have bestowed upon Multan, a unique reputation of being a holy city in Pakistan. 3. The architectural grandeur of the buildings, mausoleums and mosques speak eloquently of the expanding Islamic civilization and culture which has blended the experience of the past with the present. 4. It was in the year 1866 that the Chief Court of Punjab, the predecessor of the Lahore High Court, was established. It was the final Court of Appeal from the decisions of the Subordinate Courts. As history tells us it was after strenuous efforts that under the Letters Patent of 1919, the Chief Court of Punjab was given the status of a High Court, which continued to exercise its several jurisdictions until Partition and thereafter till 1955 when it became the Seat of the High Court of West Pakistan under the Establishment of West Pakistan Act, 1955, and on the dismemberment of One Unit, this Court again assumed its original shape as the Lahore High Court. The several permanent Benches were thereafter established under the provisions of the 1973 Constitution as amended by the President of Pakistan during the continuance of Martial Law. 5. This Court has continued to grow with all its noble traditions eversince its establishment and its rich heritage is a matter of pride for all of us. If I may say so, it is the most adorable institution of the Province which caters for the largest number of litigants in the whole of Pakistan. 6. My fondness for constitutionalism has often motivated me to speak on the rule of law without which the basic freedoms of the people cannot foster and be realized. It is the rule of law which gives meaning and content to the fundamental freedoms. It is the rule of law which is a base for a democratic polity. The concept of life, liberty, right to property, and equality, was first enunciated by Islam which was subsequently adopted in the constitutions of the Western countries. The United Nations Declaration of Human Rights of 1948 to which Pakistan is also a signatory, internationalized these rights in a broad sphere to give content and meaning to the notion of human dignity. Under the Declaration, every human beings has the right to a standard of living adequate for the health and well-being of his family, including food, clothing, housing, and medical care, necessary social services and the right to security in the event of unemployment. It also specifies the relationship of an individual towards community or the State. One such duty is that "All human beings are endowed with reason and conscience and should act towards one another in a spirit of brotherhood". In dealing with the exercise of human rights one of the Articles of the Declaration states: "In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society". The limitations do not authorise any or all suppressions of fundamental freedoms. Besides, the Declaration provides for the individual's right to life, liberty and personal security, the right to leave his country, the right to return to one's country, the right to a nationality, the right to property, the right to freedom of political association, freedom of thought and expression and many others. 7. The history of constitutional legislation in our country shows that it was for the first time that in the 1956 Constitution some of the human rights were guaranteed and redress for their violations was provided through the medium of judicial review by the Superior Courts with the power to issue appropriate writs. This Constitution remained in force for a period of two and a half years, when it was abrogated in 1958. During this short period, there was hardly any realization of the significance of the human rights by the people of Pakistan, and their impact on their lives and well-being. Again, the 1962 Constitution was enacted without the Chapter on Human Rights. However, as a result of the struggle of the people of Pakistan, it was incorporated in the 1962 Constitution which too was abrogated in 1969. This era was also short-lived, and there were not many occasions for the Superior Courts to juridically define the human rights, and thus develop the law for the people to achieve their realization. The Interim Constitution of 1972 restored the human rights which were re-enacted in the 1973 Constitution. 8. During all this period there was political instability in the system of Government giving rise to emergencies and frequent denials of human rights with the result that the people of Pakistan were deprived of their enjoyment. This was so because the functioning of the Superior Judiciary was curbed and it could not ensure the enjoyment of these rights. It thus led to an interruption in the enforcement of constitutionalism and a consequent denial of the superiority of the rule of law which is so vital for the survival of democratic institutions. 9. It appears that human rights declarations from 18th to 20th century expressed a particular conception of the good society, and of the ideal relationships between the state and its citizens. The rights are no longer treated as pious wishes, but they are now considered as positive law or, at a minimum, as principles of positive law. The concept of human rights is aimed at improving conditions of the world society. 10. From a comprehensive perspective, human rights are best understood by reference to the empirical facts of human interaction in the shaping and sharing of values. The concept of values indicates the preferences of the people as to what is it that they cherish. It has now been universally accepted, that the peoples of the world, whatever their differences in cultural traditions and sectarian practices, are increasingly demanding participation in the shaping and sharing of all basic values. They demand respect, power, enlightenment, well-being, wealth, skill, affection, and rectitude. In relation to respect, they demand a fundamental freedom of choice for participation in different value processes, for equality in both the positive and the negative sense, and for a large domain of personal autonomy. In relation to power, they demand full participation as persons in the process of authoritative decision making. In relation to enlightenment, they seek freedom to acquire, use, and communicate information and knowledge. In relation to well-being, they seek health, safety, and comfort. In relation to skill, they demand the freedom to discover, to mature and to exercise their latent talents. In relation to affection, they seek establishment and enjoyment of congenial personal relationships. And in relation to rectitude, they demand freedom to form, maintain and express norms of responsible conduct. Thus, by reference to human rights a reference is made to the degree to which these demands are met and to the equality of participation and enjoyment in each of the different value processes. 11. It may be of interest of find that a dominant principle pertaining to human societies and human organization of the last quarter of the 20th century is that of human dignity. Even though the concept of human rights has 'existed in the world from medieval ages onwards, several different philosophies and differing viewpoints having a direct bearing on the concept were projected in the past. A struggle, therefore, ensued to locate common threads in this idea and to arrive at a consensus. It took about a thousand years for the philosophers and the jurists to attain their goal. Ultimately, during the post World War II period, after the establishment of the United Nations Organization, it was felt that the concept of human dignity constituted the link that united the perspectives emerging in different parts of the world. Now this principle has been accepted, with varying degrees of completeness and precision, by the international, the national and the regional settings all over the world, and it has found a place in the constitutional and legislative codes of many national communities. The values associated with the concept of human dignity have now been widely diffused and it appears to be a universal phenomenon now: The concept of human dignity, as it has emerged recently, has several important components. One such component indicates that there should be a basic share of participation for all persons in the decision-making processes of Governments concerned. Another such component operates against discrimination based on caste, colour, creed, sect, and sex. And yet another component requires that the system of rewards and awards in every country should have direct relevance to the capabilities and accomplishments of its citizens. 12. It is a well-known fact that human rights liberate man from restrictions and inhibitions which hinder his full development as a human being. They are in fact the powers of man to achieve self-realization. Carl J. Fridrich, a well-known Harvard University Professor, has quoted in one of his Papers on "Rights, Liberties and Freedoms", the maxim that "freedom is never voluntarily given by the oppressor unless it is demanded by the oppressed". The present trends indicate that the fuller implementation of recognized human rights depends upon the power the individuals can marshal through organization, whether by means of effective pleading before Courts, or by making a move for needed legislation, or by securing remedial action in the administrative field. I do entertain the hope that gradually human rights will have universal recognition and application and the ultimate condition of human freedom, i.e., the freedom from fear, will prevail. 13. The notion of fundamental human rights also incorporates the idea of civil liberties which is grounded in the conviction that freedom requires both social and political organization which can overcome both natural and man-made obstacles to the realization of human freedom. Modern democracies are based on the assumption that the surest way to consolidate democracy is to have all citizens participate in shaping the conditions of such freedom. 14. It is said that the failure of men to appreciate the rights which they possess, or indeed to know about them, creates great obstacles to their enforcement. For unless a complaint is made and insisted upon, the law-enforcing authorities are not likely to pay any attention to it. So far, it has also been said, that an individual has less and less recourse to any corrective remedy against those who are in positions of power and authority. It is obvious that serious injustice may develop and continue to prevail because of the ignorance, the indifference or the weaknesses of the under-privileged. The Courts' leadership in establishing the goals to achieve in the sphere of human rights are now commanding widespread public acceptance. The Courts in many parts of the civilized world are expanding and revitalizing the human rights clauses via the constitutional adjudication. 15. Human rights can be enforced in settings where the rule of law prevails. The effective protection of the Fundamental Human Rights of the individual is an indispensable basis for achievement of a sound legal order based on peace and justice. The important point is that the peoples of the world now have an established institutionalized process through which they can freely and unambiguously express their expectations about policy, authority and control in relation to human rights. The recognition and protection of human rights have now assumed the complexion of legal rights of individuals and of legal obligations of states. 16. The time has come when the concept of human rights is crossing national borders: the violation of these rights concerns the international community. Societies have become conscious of social and political rights aimed at creating social awareness pertaining to the benefits of education and improved socio-political conditions. The people all over the world now appear to be inclined to induce the states concerned to translate certain socio-economic claims of the lower classes in the obligations of the state. Thus, the doctrine of social rights is acquiring greater acceptance than heretofore, even in some of the more affluent countries. 17. But while every effort is being made to reshape the constitutionally guaranteed rights in accordance with a wider and more adequate conception of human freedom, the problem remains of how to combine the civil rights and liberties into a balanced and harmonious whole. This problem cannot be solved by arranging these rights and liberties into a rank list of simple priorities; the problem is multi-dimensional and dynamic. It can only be solved in approximation and through a strong and vigorous rule of law in response to specific situations and particular circumstances. The concept seeks to ensure a balance between the individual's rights and freedoms on the one hand and the collective needs of state security and national development on the other. An important safeguard that the rule of law requires to be embodied in a constitution is a guarantee that the essential basic and fundamental human rights shall be preserved and respected. The strengthening of the rule of law is crucial to the viability of human rights and fundamental freedoms. The rule of law operates to protect these freedoms and is recognized as a source for the diffusion of attitudes, ideas and norms which have a modernizing and innovative impact on the preservation and enforcement of these rights. It is, therefore, considered essential that agencies concerned with the enforcement of the rule of law assume responsibility of infusing governmental action with the spirit and substance of the basic human rights. The centrality of the rule of law to human rights development is now suggested as an essential ingredient of a democratic polity. In scientific legal terms, it can be said that human rights development is in quintessence the ordering of the liberties of man into a polity infused with qualities of freedom ennobling the puny lives of those who have formed the state. Thus the concept of human rights denotes within the framework of a rule of law a series of ultimate progressions from ascription to personal achievement, from alienation and withdrawal to enlightening participation in collective social life, from arrogance and coercion to refinement and respect for merit, and from contraction to expansion of free choice. These are the attributes of earthly existence which have become meaningful largely by encompassing them within the context of rule of law and its consequent institutions. It may not be possible to conceive of fundamental human rights and civil liberties outside the ambit of the rule of law. In Aristotelian terms, human society exists for the sake of noble actions, and not for mere companionship. The purpose of statecraft is consistently to adjust behaviour of men to legal norms which reflect the state's noble ends. The rule of law derives its augustness and its power from its mission to lift human beings to its own nobility. If the term "majesty of the rule of law" has any significance, it is that. An overarching purpose of the rule of law is that it gives form, cohesion, and direction to all public action within a nation state. 18. Thus the rule of law has the potential of maintaining national integration through orderly and just accommodation of human rights norms. The ideological cohesion of the social order depends on the proper enforcement of human rights through the rule of law. The comprehension of social order in such a setting depends on an examination of the dynamics of adjustment between human rights norms and the rule of law. Thus it is essential to identify the basic assumptions underlying the constitutional system pertaining to human rights and after it is taken care of they can be identified, elucidated, and woven into a cohesive doctrine. It may then be necessary to strengthen the role of Courts as diffusers and mediators of human rights norms. 19. The interpretation given by the Courts in human rights cases may entail the definition, elaboration and enforcement of values beyond those constitutionalized by the framers. The function of human rights cases, in my view, is to juridically define, elaborate and enforce their values beyond those constitutionalized by the framers. It seems to me that if a democratic society adopts a Constitution and incorporates in that Constitution safeguards for individual liberties, these safeguards do indeed take on a generalized moral rightness or goodness. The intensifying demands of people for these values may be fortified by an increasing recognition that the most fundamental principles underlying all constitutional law are those which today are described as of human rights. In a world in which peoples enjoy ever increasing enlightenment about the conditions affecting their common interests, a concern for human rights is not treated as utopian, but is taken as a definite reality. The important fact is that the peoples of the world, whatever their differences in outlook and styles of living, are today increasingly demanding the enhanced protection of all those basic rights commonly characterized in empirical reference as those of human dignity. 20. Here I cannot help quoting Prof. Carl J. Fridrich: "What, then, may we hope? The fact that rights are ever more universally recognized, even by those who seem least inclined to make them a reality, is the great distinguishing characteristic of our time. It justifies us in the hope that human rights will become more broadly descriptive of the actual behaviour of men and Governments; that even the right to an effective international and supranational order will gradually come within man's grasp". 21. Let the rule of law serve the humanity in Pakistan and elsewhere for a better world, where human beings can live in peace, honour, and with dignity. This is the purpose which the international community today is striving to attain. This is how I will end my discourse. With great pleasure, I would now inaugurate the Court House of the Multan Bench of the Lahore High Court. ***