ADDRESS

ADDRESS <!--[if gte mso 10]> ADDRESS By Mr. Yahya Bakhtiar Attorney-General for Pakistan [7th October, 1989] With the grace of God the new Judicial year 1989-90 is beginning after democracy has returned to the country in the wake of the November 1988 General Elections. The National Assembly and the Provincial Assemblies elected on political party basis under the Constitution are functioning. Fundamental rights are in force and there is no political prisoner in the country. There is complete freedom of the Press. This has been possible because of the struggle and great sacrifices made by the people of .Pakistan for over a decade and the considerable contribution made by this Hon'ble Court in its Judgments in the two petitions filed by Mohtarma Benazir Bhutto with regard to the registration of Political Parties and Elections on party basis. 2. Despite all this, formidable problems are still to be tackled. The legacy of the decade of Martial Law and totalitarian rule remains even today as a challenge to democracy and democratic institutions Perceptions about democratic values have been blurred and contaminated. The rule of one man and his few henchmen has taken a heavy toll from the rule of law and the law itself. 3. The existing legal and constitutional apparatus was conceived and born during the continuance of Martial Law. In the process the true face of the- institutions has been gravely mutilated and it 'would require an uphill task to restore them to their true shape. This Hon'ble Court could do much in this matter. 4. When the last judicial year commenced the country was in the grip of uncertainty arising .out of not holding the general elections within 90 days after the illegal dissolution of "National and Provincial Assemblies". The safeguard provided in the Constitution from a situation that no expenditure could be incurred for more than 120 days except on an authorization by the Parliament was, therefore, put to test. In these circumstances the Supreme Court was asked to pronounce its opinion in the situation arising out of a lack of authorization in the absence of Parliament. 5. The Court opined that Federal and Provincial Governments could authorise incurring of expenditure out of Federal and Provincial consolidated funds upto one month after the declaration of the results of the General Elections. This was done under the infamous doctrine of necessity, the same doctrine under which authority was yielded to Military General to spend money, to recover taxes and amend the Constitution. 6. Our Courts are open Courts. While law prohibits an affront to the dignity of the Court and seeks to maintain the same at the high level, there is, however, no prohibition on bona fide discussion, analysis and criticism of the Court's judgments and decisions without imputing any motive to the Court or the, judges. This is the well-settled rule in all the democratic countries where the rule of law prevails. The authority and right to decide is of the Superior Courts but the citizen has the right to say that the Court has decided a case erroneously if he honestly thinks so for like all human beings Judges are also likely to make mistakes and errors in interpreting the law or appreciating evidence. 7. The Hon'ble Court in the course of last year has handed down some historic judgments which have, if I may say so with respect, considerably rehabilitated its rather tarnished image and enhanced its prestige and gave a new hope to the common man who had been overawed and demoralised by the Military rule, Courts and the P.C.O. This was particularly so as already submitted because of the judgments in Benazir Bhutto's cases[1] against registration of political parties and against General Zia's insistence to hold General Elections on non-party basis in spite of the fact that he had retained the Political' Parties Act on the Statute Book after getting it duly amended according to his scheme and plans about the elections which of course were upset by the Court's judgment with regard to the registration of the- Political Parties. The other important cases were Ghulam Mustafa Khar's case[2] and Haji Saifullah Khan's case[3]. The judgments facilitated in the restoration of democracy and led to a great extent to give people their political and civil rights which were being denied to them for a decade or so. [1] PLD 1988 SC 416; PLD 1989 SC 66; 1988 SCMR 1986; 1988 SCMR 351. [2] 1988 SCMR 185; PLD 1989 SC 26. [3] 1989 SCMR 22; PLD 1989 SC 166; 1988 SCMR 1996. 8. The Court upholding the laudable judgment of the Lahore High Court by its judgment in Haji Saifullah Khan's case declared the dissolution of the 'Assemblies to be illegal and laid down that under the Constitution the discretion of the President in this respect was . not absolute or uncontrolled but was qualified by limitations stated in the judgment. The Court also held that the office of the Prime Minister was necessary at all times for running the affairs of the country and the absence of the Prime Minister from a Caretaker Cabinet alters for the relevant period under discussion the very character of the Constitution from a Parliamentary Democracy to a Presidential System of the Government. "The Court can neither countenance nor condone all this at this stage and in these proceedings. Such violations and breaches concern the very essential features of the Constitution." 9. However, the "clarification proceedings" that followed almost reversed the real purport of the Court's judgment and in the words of one of the dissenting Judges gave "an absolutely different meaning than what, according to it, the plain language in the Judgment clearly indicated". 10. The four Judges' order of the Court in Civil Miscellaneous No.68-R of 1989[1] in Civil Appeals stated that "the findings on all the matters in controversy were recorded to remove all doubts and ambiguities with regard to distribution of functions and powers under the Constitution for guidance in future". 11. Basu in his commentary on the Constitution of India, Vol. 'E' page 150 has referred to Field J. in Sinking Fund Cases (1978) 99 U.S.700 which states that "the distinction between the judicial and a legislative act is well-defined. The one determines what the law is, and what rights the parties have with reference to transactions already had; the other prescribes what the law shall be in future cases arising under it". 12. Basu in the same Volume (p.150) has also referred to Prentis v. Atlantic Coast Co., (1908) 211 U.S.210 which states that "A judicial enquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future, and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power". 13. In Dash v. Van 'Cleeck (1811) 7 Johns 498 as reported in Basu Vol. 'E' page 150 - it has been stated that "To declare, what the law is or has been is a judicial power; to declare what the law shall be is legislative". 14. Referring to Judicial Function Basu in Vol. 'E', at page 148, has observed that "the Courts have no general power to interpret the laws passed by the-Legislature; they can only decide cases properly brought before them, and in the determination of those particular cases, they can interpret the will of the Legislature according to established canons of interpretation". 15. It is, therefore, respectfully submitted that the observation that "the findings on all matters in controversy were recorded to remove all doubts and ambiguities with regard to distribution of functions and powers under the Constitution for guidance in future", may have to be reconsidered by this Hon'ble Court one day as no Presidential Reference was made to the Court for seeking its opinion for future guidance in the matter and it is well-settled - that the future-is the sole concern of the legislature and the Courts decide cases on the basis of admitted and proved (past) facts. 16. In the case of Federation of Pakistan v. Aitzaz Ahsan[2] the Court by majority opinion, four days before the General Elections suspended an order of the Lahore High Court without pronouncing its decision on the appeal. The High Court had rejected the production of the Identity Card as sole mode of proof of the identity of an elector whose qualifications are contained in the Constitution and which do not contain such a condition for the elector. As a consequence those poor and illiterate electors could not cast their vote in the absence of an identity card, who otherwise very much wanted to vote. [1] PLD 1989 SC 229. [2] PLD 1989 SC 61. 17. By making the above submissions no criticism of this Hon'ble Court as such is intended which I hold in high esteem as I am well aware of the strains and stress under which the Court has been discharging its onerous functions during the past one decade or so. 18. Again I will not be fair and honest if I do not give this Hon'ble Court the credit for their firm direction in unambiguous terms that General Elections must be held on 16th and 19th November, 1988 as per schedule irrespective of all the technical objections, some of which were rather of formidable nature. This singular service in the supreme national interest and in the cause of trying to re-establish democracy in the country will be long remembered. It was because of such forthright directive that the political parties which were not sure, confidently participated in the general elections. 19. The Hon'ble Court has given many other momentous decisions in the course of the past year but in this brief address I cannot go into the details of those cases. 20. Three Hon'ble Judges, Mr. Justice S.A.Nusrat, Mr. Justice Aslam Riaz Hussain and Mr. Justice Javid Iqbal retired during the past year. Considering the heavy load of work and the accumulation of thousands of pending petitions and appeals, I am confident that more Judges as already recommended by the Chief Justice and advised by the Prime Minister would be appointed by the President soon so that disposal of more cases with greater speed takes place at the highest level to set an example for High Courts and the subordinate judiciary. 21. The Democratic Government has taken steps that the construction of the. Supreme Court Building symbolising the great status and dignity of the highest Court of the land may be started and completed which had been held in abeyance for about 12 years. 22. In conclusion we hope and pray that the ensuing year will further enhance the prestige of the Court, by the pronouncements that it would make to strengthen democracy and rule of law in the country and in upholding the human rights of the people of Pakistan. ***