The Role Of Lawyers And Judges In Upholding The Rule Of Law

THE ROLE OF LAWYERS AND JUDGES IN UPHOLDING THE RULE OF LAW THE ROLE OF LAWYERS AND JUDGES IN UPHOLDING THE RULE OF LAW [Paper presented m a seminar 'Role of Lawyers and Judges' held at Karachi on 26th August, 1919 under the Chairmanship of Mr. Justice Nasir Aslam Zahid, Judge, Supreme Court of Pakistan, organised by Legal Aid Centre (LHRLA). Karachi.] By Mr. Justice Rasheed A. Razvi, Judge, High Court of Sindh It is always manifold task for the Bar and the Bench to uphold the Rule of Law, particularly in a country like Pakistan, where the period of Constitutional deviations is larger than the period when people of this country have enjoyed their Constitutional and other rights. The history of lawyers struggle and judiciary's resistance to submit itself to arbitrariness and absolutism of the rulers of Pakistan is full of landmark events. There may he few exceptions amongst the legal fraternity where few lawyers had indeed defended a situation contrary to the Rule of Law, which may have created a bad name for them within their community, but, over all, the Bar has always stood for and has upheld the rule of law. Likewise, in the judiciary. there may be few decisions for which one may perhaps argue and label them to be an obstacle in the way towards supremacy of law; but, the superior Courts in Pakistan have, to a great extent, always resolved in favour of the rule of law. In the words of former Chief Justice of Pakistan, Dr. Nasim Hasan Shah, J. (as his lordship then was), " ... ...It can be said that throughout the 50 years of Pakistan's existence as a sovereign State, the highest Courts in the land have, despite being confronted with one crisis after another, succeeded in finding legal solutions for the delicate problems coming up before them. They have also succeeded in keeping the ship of State on an even keel, bringing the assurance to troubled minds that they were under a rule of law and not under arbitrary governance. This task, the Judiciary is continuing to discharge with steadfastness and resolution. Indeed the outlook for Pakistan to be governed by the Rule of Law today appears to be brighter than it has ever looked before." (Role of the Judiciary in Maintaining Rule of Law in Pakistan, PLD 1997 Journal 92). 2. In this presentation, I would like to highlight the joint efforts of the Lawyers made under the banners of the Bar Associations and Bar Councils and the role of Judges in the capacity of judiciary as a whole. Although from the topic of this Seminar it looks that the emphasis has been laid on the individual role of lawyers and Judges in upholding the rule of law, my endeavour would be to look into their acts, deeds and efforts as a body and not as an individual. While referring to the term "Rule of Law". I would like to confine myself to the definition given by a Full Bench of Sindh Court in Sharaf Faridi's case (PLD 1989 Kar. 404); in which the Rule of Law has been defined as the "universal obligation of every civilised country. It means supremacy of Law as opposed to the arbitrary authority of the Government . ... ...This supremacy guarantees three concepts, (i) absence of arbitrary power, (ii) equality before law and (iii) rights of citizens." In that case, reference was made to Surah‑e‑Nisa, Verse 135, Surah‑e‑Rehman, Verses 7, 8 and 9 and Surah‑e‑Maidah, Verse 9 of the Holy Qur'an. While anticipating the question its to what is law, I would refer to the observation of another former Chief Justice of Pakistan Hamoodur Rehman, J. (as his lordship then was) in the case of Asma Jilani IV. Government of Punjab and another (PLD 1972 SC 139 at 159) where it was said: "So far as a Judge is concerned, if a definition is necessary all that he has to see is that the law which he is called upon to administer is made by a person or authority legally competent to make laws and the law is capable of being enforced by the legal machinery. This, in my view, brings in the notion both of legitimacy and efficacy." With all this in mind I will venture, in brief, about these two important institutions. 3. Reverting to the question of the struggle of the Bar Associations, 1 may say without any fear of contradiction that these Bar Associations were always found very vocal, valiant and heroic, even during the struggle against the British imperialism. One such instance is reflected in the case "in re: Hurbuxrai and another (AIR .1931 Sindh 33) where the Karachi Bar Association and the Larkana Bar Association came forward to defend two lawyers from Sindh against whom proceedings for misconduct under section 16 of the Sindh Civil Courts Acts were initiated. The charge against them was that they proposed and seconded a resolution in a special meeting of the Larkana Bar Association expressing sympathy with the call of Satyagraha. It was observed by a Division Bench that "one cardinal principle a practising pleader wishing to remain on the roll has to remember is that those who live by the law, should keep the law and not encourage others in its breach by publicly extolling and glorifying persons sentenced and by showing hearty sympathy towards a seditious and disloyal movement." However, this stringent view was never followed by the superior Courts after independence. Naturally, in pre‑Partition days, the act of voicing sympathy with freedom movement was treated as seditious; still, our history is full of such instances when the Bar Associations rose to the full expectations of the masses. I would leave this discussion here and would like to revert back to the role of lawyers after emergence of Pakistan. 4. As I have already observed above, the people of this country were kept deprived of their rights for quite it long period. Our country has witnessed imposition of three Martial Laws and the abrogation of two Constitution. The Constitution of 1972 was kept in abeyance for more than 8 years. During all this period, the role of lawyers in their capacity as members of their respective Bar Associations is highly laudable. During the movements for restoration of democracy and Constitution, the Bar Associations always resolved in favour of Rule of Law. These Bar Associations also extended full legal support to the political workers who were victims of the authoritative rule. Their cases were "conducted gratis by the members of the Bar. One such instance could be found in the case of Mir Abdul Baqi Baloch v. Government of Pakistan and. others (PLD 1968 SC 313). In recent times. it has become the recognised practice of the Supreme Court of Pakistan and High Courts to invite members of the legal fraternity and institutions like Pakistan Bar COui,6l, Provincial Bar Councils and Supreme Court Bar Association to render assistance in matters touching independence of judiciary and other questions of public importance. One such instance is the famous case of Al‑Jehad Trust (PLD 1996 SC 324). In the short time available to me, it is very difficult to highlight the role of Karachi Bar Association, Sindh High Court Bar Association, Lahore High Court Bar Association, Balochistan and Peshawar High Court Bar Associations and other Associations as well as all the five Bar Councils of Pakistan who all had stood for the Rule of Law despite all odds. 5. In so far as the role of Judges with reference to the Rule of Law is concerned, their real test commenced when, on 27‑10‑1954, the Legislative Assembly was dissolved. It was challenged by the then Speaker, Moulvi Tamizuddin Khan, before the Chief Court of Sindh (now the High Court). Accordingly, writs of mandamus and quo warranto were issued through which the petitioner's office was restored as Chairman of the Constituent Assembly [see Moulvi Tamizuddin Khan v. Federation of Pakistan and others (PLD 1955 Sindh 96)]. An appeal was filed by the Federation of Pakistan before the Federal Court against the said judgment of the Sindh Chief Court which was unfortunately allowed and the judgment was set aside. Consequently, the writs of mandamus and quo warranto were recalled by the Federal Court on the technical ground that since section 223‑A of the Government of India Act, 1935 did not receive the assent of the Governor- General, it was not a law and the Chief Court of Sindh had no jurisdiction to issue the writs. (see Federation of Pakistan and others v. Moulvi Tamizuddin Khan (PLD 1955 FC 240)). Thereafter, the Constitutional history of Pakistan is full of turbulences. The first Constitution of Pakistan that came into force in the year 1956 lived a very short life of only two years. In October, 1958, the first Martial Law was imposed and thereby the first Constitution of 1956 was abrogated. The Martial Law was accepted by the Courts on the basis of the infamous theory pf law of necessity propounded by Hans Kelson. The cases of Dosso PLD 1958 SC 533 and Mehdi Ali Khan PLD 1959 SC 387 upheld the concept of law of necessity. In the first case. it was held, that "Even Courts lose their existing jurisdiction and can function only to the extent and in the manner determined by the new Constitution." The writ of Habeas Corpus issued by the Balochistan High Court was recalled. (See Dosso and another v. The State and others (PLD 1957 Quetta 91). In the second case, i.e., Mehdi Ali Khan, the Laws (Continuance in Force) Order, 1958 was accepted as a valid piece of legislation. The petition filed to seek enforcement of fundamental rights was declared to have abated on promulgation of the Order, 1958‑The view laid down in the case of Dosso was followed by the Supreme Court in the case of Mian Iftikharuddin and another v. Muhammad Sarfaraz and another (PLD 1961 SC 585). It was held that the Martial Law Regulation No.72 had excluded jurisdiction of the Courts with respect to the functions of the Central Government under the Security of Pakistan Act, 1952. 6. After promulgation of the new Constitution in the year 1962 by General Muhammad Ayub Khan, the writ jurisdiction of the High Courts was restored to a limited extent. It was a Constitution enacted not to extend rights to the people or to extend authority to the legislators but to limit the same. On 12‑6‑1962, the Removal of Difficulties (Appointment of Ministers) Order, 34 of 1962 was promulgated by the President, which came up for consideration in the writ jurisdiction before a Full Bench of the erstwhile Dacca High Court. The Order 34 of 1962 was held void and inoperative in toto. (Muhammad Abdul Haq v. Fazl‑ul‑Quader Chowdhry and others (PLD 1963 Dacca 669). The appeal filed against the decision of the Dacca High Court was dismissed by the Supreme Court of Pakistan and the decision of the Dacca High Court was upheld on all points (see Fazl‑ul‑Quader Chowdhry and others v. Muhammad Abdul Haq (PLD 1963 SC 486). It was observed by the then Chief Justice of Pakistan, A.R. Cornelius, J. (as his lordship then was): "If the Constitution is altered on a desire to extend to wishes of certain person and that in a substantial manner, would clearly be an erosion, a wittling away of its provision, which it would be the duty of the superior Courts to resist in defence of the Constitution." This was a decision through which the superior Courts exercised their authority under the writ jurisdiction to consider the legality and vires of an enactment or a piece of legislation. . Another precedent is that of a Full Bench decision, again of Dacca High Court, in Sirajul Haq Patwari v. S.D.O., Chandpur and others (PLD 1966 Dacca 331), where section 57 of the Electoral College Act, 1964, was declared ultra vires. 7. The superior Courts started upholding fundamental rights even in the matter of political parties, In the case of Saiyyed Abul A'ala Maudoodi and others v. The Government of West Pakistan and others PLD 1964 SC 673, the Notification declaring Jamaat‑e‑Islami an unlawful association was held to be illegal and violative of the Fundamental Right of freedom of association guaranteed under the Constitution of 1962. The reasoning given in the case of Saiyyed Abul A'ala Maudoodi was again reiterated by the majority in the case of Mrs. Rowshan Bijaya Shoukat Ali Khan (PLD 1966 SC 286) and the writ of habeas corpus issued by the Dacca High Court was upheld. The Judges felt the need to draw distinction between the rights of 3t individual with those cases where the use of public authority was involved. The Superior Courts were found more sensitive to the individual rights, particularly in the cases of illegal and unauthorised detention. One such precedent is the case of Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14). In that case, it was held that the initial onus is on the detaining authority to justify the legality of detention, thus upholding the right of liberty of it citizen as guaranteed by the Constitution. This view was reiterated‑by another Full Bench of the Hon'ble Supreme Court in the case of Muhammad Azam Malik (PLD 1989 SC 266). 8. There are numerous judgments, which one can quote to support the proposition that the Judiciary had played very significant role in upholding the Rule of Law. Earlier, I. have referred to the Law of Necessity, and, therefore, it is inescapable to cite the case of Asma Jilani PLD 1972 SC 139 where the Supreme Court did not approve the principle of the Law of Necessity, which was held to be a principle of condonation and not legitimization (see page 2(17). It was observed by Yaqub Ali, J. (as his lordship then wits) that "a person who destroys the national legal order in an illegitimate manner cannot he regarded as a valid source of law‑making. May he, that oat account of his holding the coercive apparatus of the State, the people and the Courts are silenced temporarily, but let it be laid down firstly that the order which the usurper imposes will remain illegal and Courts will not recognize his rule and act upon them as DE JURE." (See page 243). But only after a lapse of 5 years, this view wits dissented from in the case of Begum Nusrat Bhutto v. 'The Chief of Army Staff PLD 1977 SC 657, and the Martial Law was again validated on the Doctrine of Necessity. However, the powers of Judicial Review, as provided tinder Article 199 of the Constitution of 1973, were kept intact. One of the reasons for validating the Doctrine of Necessity, as noted by the then Chief Justice of Pakistan was that "the Court would like to state in the clear terms that it has found it possible to validate the extra‑Constitutional action of the Chief Martial Law Administrator not only for the reason that he stepped in to save the country at a time 'of grave national crisis and Constitutional break‑down, but also because of the solemn pledge given by him that the period of Constitutional deviation shall be of as short a duration as possible, and that during this period all his energies shall be directed towards creating conditions conducive to the holding of free and fair elections, leading to the restoration of democratic rule in accordance with the dictates of the Constitution. The Court, therefore, expects the Chief Martial Law Administrator to redeem his pledge, which must be construed in the nature of a mandate from the people of Pakistan, who have, by and large, willingly accepted his administration as the interim Government of Pakistan." 9. Recently, in the case of Shaikh Liaquat Hussain PLD 1999 SC 504, it was observed by the former Chief Justice of Pakistan, Ajmal Mian, J., that "Acceptance of the Doctrine of Necessity......turned out to be detrimental to the evolution and establishment of a democratic system in the country" and that the Military Courts was held violative of the Constitution, IP73. It was further observed that "the present Constitution of the Islamic Republic of Pakistan, 1973, does not admit the imposition of Martial Law in any form." (See paragraphs 25 and 26 of the said judgment). The view of the Full Bench of the Sindh High Court in the case of Sharaf Faridi PLD 1989 Karachi 404, was upheld by the Supreme Court of Pakistan in the case of Al‑Jehad Trust case PLD 1996 SC 324 and reiterated in the case of Sh. Liaquat Hussian that "the right of ' access to impartial and independent Court/Tribunal is a fundamental right of every citizen. The existence of this right is dependent on the independence of judiciary." (See also Azizullah Memon's case PLD 1998 SC 161). These judgments have given a new scope to the right to life and liberty as enshrined in Article 9 of the Constitution, 1973,.which now includes right to fair and public trial under an independent judiciary. This obviously includes right to innocence and fair opportunity to defend. It will not be out of place to refer here to another decision of the Supreme Court of Pakistan, namely Sardar Farooq Ahtxted Leghari's case PLD 1999 SC 57 through which suspension of fundamental rights as a result of imposition of emergency in the country was held to be ultra vires of the Constitution. 10. During the period 1977 to 19$5, Pakistan remained under the rigid and oppressive laws of the third Martial Law, imposed by Gen. Muhammad Zia‑ul‑Haque. In 1981, a new Constitutional set up was introduced through the Provisional Constitution Order, 1981 (P.C.O.), which was meant to strengthen the anti‑Constitutional rule. After the promulgation of the Laws (Continuance in Force) Order, 1977, the Constitution of 1973; which had been held in abeyance since 1977, was, for all practical purposes, abrogated. Despite these deviations from the Constitution, the superior Courts continued giving relief to individuals. I may refer here to few decisions of the High Courts pertaining to that period, namely:‑ (i) Asfandyar Wali v. The State PLD 1978 Peshawar 38; (li) Mumtaz Ali Bhutto and others v. Deputy Martial Law Administrator, Sector 1, Karachi and 2 others PLD 1979 Karachi 574; (iii) Syed Essa Noori v. Deputy Commissioner, Turbat and 2 others PLD 1979 Quetta 188; (iv) Satar Gul and another v. Martial Law Administrator, Zone "B" N.‑W. F. P. Peshawar and 2 others PLD 1979 Peshawar 119; (v) Saleh Muhammad v. Presiding Officer, Summary Military Court, Karachi and 2 others PLD 1980 Karachi 26; (vi) Israr Ahmad v. President, Summary Military Court, Sanghar and 6 others PLD 1981 Karachi 47; and (vii) Mst. Akhtar Nasim v. Martial Law Administrator, Zone 'C" Karachi and others PLD 1982 Karachi 130. 11. Another major contribution of the judiciary in Pakistan for the rule of law was to promote and encourage public interest litigation. The earlier concept of aggrieved person or party was modified to a great extent thereby shifting the importance of a person to that of cause. "After all the law is not a closed shop", was observed by Muhammad Haleem, J. (former Chief Justice of the Supreme Court) in the case of Ms. Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416. In the same decision, it was further observed that if the adversary procedure is rigidly followed, then the enforcement of Fundamental Rights would become self‑defeating as it will not then be available to provide access to justice to all. This concept was further developed by the Supreme Court of Pakistan in the case of Darshan Masih alias Rehmate and others v. The State PLD 1990 SC 513. This has made access to justice more possible and convenient as any person could come to the Court to seek enforcement of Fundamental Rights of others. This practice has led to the decisions in the cases of Al‑Jehad Trust (supra) and Malik Asad Ali PLD 1998 SC 161 and Shehla Zia PLD 1994 SC 693. It has now established the concept of Probono Publico in Pakistan. 12. Today's topic has a very wide scope and it could not be concluded in one sitting. There are cases, which require lengthy discussion, and, therefore, it is absolutely difficult to survey all of them in this brief session. I am mindful of the time limit and the fact that other speakers have to follow me. All of you must be eagerly awaiting the speeches of today's Chief Guest, Mr. Klaus Bohloff, President International Bar Association and Hon'ble Mr. Justice Nasir Aslam Zahid, Judge of the Supreme Court of Pakistan, who not only has vast knowledge and experience in respect of the topic but is also a great contributory towards the restoration of Fundamental Rights and Rule of Law. I have discussed the role of the two institutions giving emphasis to the period ending f985 when the Constitution of 1973 was restored but after material changes in it by virtue of introduction of the 8th Amendment. The struggle of the Bar and Bench continued there after and gave new perspective to the meaning and scope of the term "Rule of Law". A need was felt that the rule of law could only sustain when there is an independent judiciary. It was so pronounced in a land mark judgment of a Full Bench of Sindh High Court in Sharaf Faridi's case (supra). Few other decisions which need mention and which I'm not able to discuss for constraint of time are: * Haji Saifullah PLD 1989 SC 163; * Mehram Ali PLD 1998 SC 1445; * Ghulam Mustafa Khar PLD 1989 SC 26; * Wukala Mahaz PLD 1998 SG 1263; * Azim Malik's case PLD 1989 SC 266; * Raeesa Farooqui 1994 SCMR 1283; * Benazir Bhutto's case PLD 1988 SC 416; * Syed Qaim Ali Shah 1992 SCMR 2192; * Mian Nawaz Sharif PLD 1993 SC 473 * Al‑Jehad Trust (commonly known as the Judges' case) and many more. I wish I could have more time to discuss few of these cases which have established the foundation of independence of the judiciary in Pakistan, without which one cannot dream for the rule of law. I may add here that without an independent and a strong Bar, continuance of the rule of law could not be guaranteed. Likewise, easy access to justice to all is also the most important ingredient of the rule of law. 13. To end my submissions, I would like to point out how people from abroad look at our superior Courts. I would like to quote here a couple of passages from the book "Judging the State" (Cambridge University Press -South Asian Studies) by Puaula. R. New Berg who observed: "The judiciary has faced difficult jurisdictional problems as it has medicated conflicts among institutions that derive their authority from diverse and some times incompatible soures. Equally difficult the Courts have decided that the conflicts between citizens and the State when the Government is not empowered by the citizenry, when neither rights nor obligations are clear or fully known and when punitive sanction precede reasoned Government judgment and actions. When Courts have helped to create conditions for democracy by acting as bulwarks for the citizenry against the State, the idea of democracy has taken on anti State character‑‑a form that the Courts, themselves state institutions, find discomfitting". She goes on to say, "The Courts have given the polity a vocabulary with which to speak when political has been neither accurate nor reliable. When concepts of rights, autonomy and sovereignty are unclear‑‑when the polity has sound its leaders incapable of articulating palatable and workable vision‑‑the judiciary has, if only temporarily and expediently, helped to define a context for political debate". Once again I would like to express my sincere thanks to the organizers for extending this opportunity. Thank you for your greater patience and forbearance. MR. JUSTICE ALI NAWAZ CHOWHAN, JUDGE, LAHORE HIGH COURT, LAHROE Mr. Justice Ali Nawaz Chowhan has served as District and Sessions Judge in different important Districts; Secretary, Government of the Punjab, Law and Parliamentary Affairs Department; Chairman, Punjab Service Tribunal; and Joint Secretary/D.G. Federal Ombudsman Secretariat, Islamabad. He did his LL.B. from Punjab University. He got the Diploma in Shari' ah and Law from Institute of Shari'ah; International Islamic University; Islamabad; International Islamic University Madina Munawara, Jamia Ummal Qura Makka and Diploma in Criminal Justice. He got Diploma in Criminal Justice and Narcotics Control from Department of Technical and Economic Cooperation Bangkok and Japan International Cooperation Agency. He had training in Administrative Law from Columbia University New York, U.S.A.; Judicial College, Reno Nevada, U.S.A.; National Institution of Public Administration, Lahore; Federal Judicial Academy Islamabad and Pakistan Cabinet Division. Mr. Justice Chowhan has visited as a Scholar/Thomas Jefferson Fellow/taught and accepted assignments etc. at various Universities and Organizations in United States, Sweeden, East Africa, England and Canada. Mr. Justice Chowhan was member of the Government's Committee on 'Inexpensive and Speedy Justice'. He was invited by the Ombudsman of Sweden as Scholar. He was Member of the International Bar Association, U.K.; Rawalpindi Bar Association; Lahore High Court Bar Association and Islamabad Bar Association. He was Director Human Rights in the area where he acted as a District Judge and was Vice‑President of the Society/Mission for Leprosy in Pakistan at Rawalpindi. He has been frequently invited to speak on electronic media and otherwise on legal topics inter alia in the area of Criminal Justice, Narcotics Control, Police Laws, Constitution etc. Mr. Justice Chowhan has authored Articles on American Constitution; Inexpensive and Speedy Justice; Procedural Reforms; Justice; Role of Islamic Law in Pakistani Judicial System; Police and Citizens; Federal Shariat Court; Islamic Law and Human Rights Judicature in Tracheotomy of Power.