ROLE OF SUPREME COURT IN CONTEMPORARY AGE

SYED ALI ZAFAR “Law des not stand still. It moves continually. Once this is recognized, then the task of the Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time:” (Lord Denning).

INTRODUCTION

With the establishment of modern nation states came the basis for the

formation of formal judicial institutions and the concept of an apex court

of ultimate jurisdiction.

When the framers of US Constitution were defining the power of the

legislature and the executive, the argument was that there must be a

body which would have the right to declare what the constitution means.

This right was given (somewhat reluctantly) to the U.S Supreme Court

and what persuaded the framers to give this jurisdiction to the Court was

the argument that the Supreme Court was a weak branch of government

which had neither power over the “purse or the sword”. In political,

parlance the superior Judiciary could neither show the carrot nor wave

the stick, which is still the case. Initially, this appeared to be true. In

1793, the U.S Supreme Court in the case of Chilsom vs. Georgia tried to

strike down State laws but the reaction of the various States was swift

and ferocious. Congress was besieged and the state of Georgia even

passed a bill that the federal officials who attempt to enforce the Chilsom

judgment would be “guilty of felony and shall suffer death”. Congress

was forced to adopt the 11th amendment, in March 1794. Faced with all

this the Supreme Court promptly retreated and there was a time

thereafter that President Washington found it difficult to find anyone to

fill the post of the US Supreme Court Chief Justice! The Supreme Court

of U.S.A ended its first decade, anything but supreme in public

estimation. All this, however, was soon to change and the institution

which was perceived to be powerless, asserted itself thereafter to play a

most crucial role in its country’s history. The first step in this regard was

the establishment of its rights of judicial review in the celebrated case of

Marbury vs. Madison, and since that time the U.S Supreme Court has

traveled far and would today not feel at all hesitant in annulling state

actions which contravene its understanding of the Constitution.

The function of the Supreme Court in today’s world has become complex,

multidimensional and indeed crucial. Societies, all over the world today,

and more so perhaps in Pakistan, expect the final constitutional court

now to perform multiple tasks, not only of resolving conflicts and

disputes, be they amongst governments (Federal/provincial), or between

the government and individuals, or individuals inter se, but also of acting

as a custodian and upholder of the rights, liberties and freedoms of the

citizens. It is also expected now to play the political role of unifying and

integrating the nation, its regions, institutions and communities and to

maintain harmony and balance between the three pillars of the State

(legislature, executive and judiciary) while ensuring that the state organs

perform their respective functions within the stipulated limits and

constraints. As guardian of the Constitution, the Court is required to

“preserve, protect and defend” this document. Power corrupts, and

absolute power corrupts absolutely, and hence, with the expansion of its

powers, in this 21st century, it is also now expected of the Supreme Court

to be equally equipped with the capacities of self restraint and self

control.

In the context of Pakistan, given its geo-political, social and religious

background and history, the Supreme Court will have to continue to play

what I call ‘traditional’ and ‘non-traditional’ roles, but with changed

emphasis and focus and an increased sense of responsibility to its own

checks and balances. To me, the tasks to be performed by the Supreme

Court of Pakistan certainly extend beyond the jurisdiction that the House

of Lords would ever consider within its powers, and would be more than

what the US Supreme Court would ever be required to perform.

TRADITIONAL ROLE AS MAINTAINER OF RULE OF LAW

The most fundamentally important ‘traditional’ and also non-

controversial role that the Pakistani Supreme Court, and indeed any

apex court would be required to perform would be to apply the law (in its

simple form, i.e, statutes and past judicial decisions), consistently,

independently, without fear and favor, and to reach a decision on the

dispute, accordingly. This role obviously shall continue to be a most

crucial function of the Supreme Court.

In the current world scenario, where globalization is the norm and

economics is the barometer to judge a nation’s progress, the first

function of the judge (that is the proper and just application of the law) is

the key to a nation’s survival. It is said that to judge a country’s potential

one needs only to look at the performance of its courts in applying the

rule of law to all. In the context of economic welfare and foreign and local

investment also, this aspect, other than security within the country, is

the paramount consideration. Indeed, the principles of uniform

application of the rule of law have, in the context of the world, been

enshrined since the twelfth century in the charter of the ‘Magna Carta’

and in the particular religious context of Pakistan, equally well

established in the Quran in which mankind has been repeatedly called

upon to be “maintainers of justice” (4:185) and to “judge between men

justly” (38:26). The Judiciary’s importance is even greater in modern

nation states and it is a common view that a country can survive any

adversity so long as the rule of law prevails in a judicial system. This is

often illustrated by a recent historical fact. At the time when the German

army under Hitler were on a rampage and appeared to be winning World

War II, the assembled press asked Churchill whether there were any

chances of the Allies being victorious. Churchill’s immediate response

was to ask whether ‘Her Majesty’s Courts’ were functioning. When he

was told by the slightly puzzled audience that indeed the courts were

working, Churchill was making the point that a nation can survive any

hurdle as long as the laws are being enforced properly by the Courts.

In order to apply the law independently, without fear and favour, judges

must obviously be honest and armed with the strength necessary to do

justice. If the Government in power does a wrong, and the person’s

liberty is curtailed illegally or economic sanctions imposed upon him

unlawfully then the courts should be able to immediately apply the law

and set aside the wrong committed by the Government. Similarly, if the

powerful try and subjugate the weak, the courts should be in a position

to forcefully redress the wrong. Howsoever just the judge may be, the

Constitution and the law of the land must give basic protection from

arbitrary removal from service. In Pakistan, the bulk of the judiciary

comes from the fraternity of lawyers, who by profession, training and

nature, are fierce exponents and protectors of the law, and therefore,

there is no dearth of capable, freedom-loving judges in our courts. The

Constitution of 1973 also gives ample protection to the judges of the

Superior Courts who cannot be removed arbitrarily. The Supreme Court

in Pakistan is therefore generally quite capable of performing this

traditional role (and indeed has been admirably doing so, barring a few

exceptions, which given the chequered constitutional history of our

country and the apex courts of other countries, is explainable).

RIGHT TO DECIDE A MATTER FINALLY IS NOT A PRIVILEGE BUT

AN OBLIGATION TO DECIDE CORRECTLY

Simply to be capable, independent, fair and impartial is not enough

because an integral part of applying the rule of law is to apply it

consistently, and this is an aspect which the Supreme Court needs to be

conscious of, not only by itself following it but also by ensuring that

courts all over Pakistan do the same. For our society to function in an

orderly manner, the Government which governs the country, the

executive which applies the law and the people who live as a nation,

must all know what the law is and how it will be applied by the courts. It

is for this purpose that in legal jurisprudence the principle of judicial

precedent or stare decisis has been so well established. Under this

system, a judgment given on a point of law is binding on all courts and

becomes the law of the land. In Pakistan, this means that a decision by

the Supreme Court on a point of law is binding on all the courts of the

country and is also to be followed by the Supreme Court subsequently,

unless if for very cogent and considered reasons the Supreme Court

expressly decides that the past decisions are not good law and overrules

them. The purpose of having binding judicial precedents is to avoid cases

being decided by judges on the basis of whims and fancies as any such

system is bound to lead to mayhem and anarchy. Another reason for

adhering to the concept of judicial precedent is that when the Supreme

Court has given a decision and such decision has been followed for some

time, it then becomes a part of the legal system and people regulate their

lives, commerce, business, sale and purchase of their properties,

formation of their contracts and any other general conduct of their

affairs, accordingly. If the apex court does not itself follow precedents,

society will be unable to conduct its affairs with any certainty, and all

aspects of life, including business and commerce would suffer and

ultimately the entire system would collapse. The Supreme Court has

jurisdiction to decide finally what the law is. Indeed there is no higher

court to which an appeal can be filed against a decision of the Supreme

Court. This power to be the final arbitrator and to lay down the law of

Pakistan on all points can be intoxicating and therefore capable of giving

rise to a sense of infallibility. We have seen this happen to our leaders.

That is why a famous judge once said that we are fallible because we are

final and not final because we are infallible. The correct and mature

approach is therefore to recognize and accept that while being an

extremely powerful tool, this power to finally decide a matter is not a

privilege, but a duty and an obligation to decide correctly. We must

remember therefore that in this modern society, with the younger

generation equipped with more knowledge and intellectual power,

inconsistency in applying the law will be interpreted as discrimination

and will indeed eventually lead to disrespect for the courts and ultimately

to a refusal to obey its decisions.

NON-TRADITIONAL ROLES

At different times, in various countries, the apex courts have been called

upon to perform roles which are not formally perceived to be the

functions of judges in society. This is especially true for Pakistan, where

in addition to its traditional roles, the Supreme Court will have to

continue to act as a ‘Platonic Guardian of Democracy’ and as an

‘Enforcer of Values’. The functions performed by the courts outside the

traditional roles have given rise to a great deal of debate and controversy

over the past decades, but in the modern times, and given the political

and social setups of different countries, there are certain roles,

‘abnormal’ though they may seem, which have to be performed by the

apex courts, to varying degrees of course. In the context of Pakistan, my

analysis is that the Supreme Court has through its power of judicial

review and interpretation of the constitution and statutes, a substantial

‘political role’ to play, which includes the protection of the constitution of

the country, and its democracy. Equally, though less controversially, the

Supreme Court has to play an increasing role as a protector of

Fundamental rights, Human rights including the right to life, and an

enforcer of laws for the protection of the environment. Lastly (and again

though not universally accepted as a role that an apex court should

perform), the Supreme Court sometimes has to act as an upholder, and

even as a changer of social norms. Since society is advancing at break-

neck speed, with this comes the responsibility to bridge the gap between

the law and society by changing the law, with stability.

The ‘political’ role is the first non-traditional role which in reality the

Supreme Court has had to, and shall continue to have to perform. In the

modern world, in my view, a Supreme Court in any country will need to

engage in the political process. This role of course is extremely difficult

because the Supreme Court is primarily a judicial institution, a court of

law, and thus subject to the rules and norms of judicial behavior, and by

nature not a political animal.

Although most judges deny that they have any role in the political life of

a country, the fact is that judge-made law now plays a much larger part

in the governance of the people than is generally perceived. According to

de Tocqueville (more than a century and a half ago) ‘scarcely any political

question arises in the United States that is not resolved, sooner or later,

into a judicial question’. This statement is even truer in the case of

Pakistan. As expressed earlier, in this process, the judges are like

‘Platonic Guardians of Democracy’ except that unlike the real platonic

guardians who took actual substantive control of the government, the

Supreme Court has to continue to sit largely apart from the physical

political process, and primarily to safeguard the constitution, the

democracy, and what is sometimes referred to as ‘fundamental’ or ‘basic’

law. In a way, the Supreme Courts have become a national forum for

achieving consensus.

How did this institution which has neither a hand over the purse or the

sword acquire this status and authority in the working of the state? One

simple answer is that what the judiciary possesses, no other pillar of the

state has or is trained to use. The tool in the hand of the judiciary is its

intellectual power and proficiency by which it can innovate and expand

the scope of judicial review and give meaning to the otherwise static and

cold words of the law, making them come alive.

Impact of Judicial Review

In countries with a written Constitution, including Pakistan, the

supreme courts have construed this jurisdiction of judicial review

adroitly and have developed the concept as well as the parameters of

judicial review. The power of judicial review is now the most awesome,

and potentially the most effective, power in the hands of the judiciary, in

general, and the Supreme Court, in particular. It may be defined as the

ultimate power of any court to declare unconstitutional and hence

unenforceable; (i) any law that it deems to be in conflict with the

Constitution and, (ii) any official action which contravenes the law.

Often, laws or actions are declared illegal because they are obviously

contrary to the Constitution or the action is clearly ultra vires of the law

under which it was taken. This exercise of power of judicial review is

simple and non-controversial. However sometimes laws and actions are

struck down in situations where there is no express constitutional or

statutory provision, on the ground that the laws or actions are contrary

to the judge’s perception of some kind of ‘fundamental laws’ or ‘rights

that are basic to society’ or ‘values which are part of the community’.

This may be done consciously or subconsciously, but it is through this

power that the courts enter the political arena. Courts in every

democratic country hold clearly that they do not legislate, but in the

same breath will also admit that they ‘enforce values’ and may overturn

laws passed by a democratically elected legislature, if the laws are

opposed to those ‘values’. Courts will say, ‘No it is not any values which I

may personally have but these are values I have discovered somewhere

outside myself, in history, or perhaps in the true hearts and minds of my

fellow countrymen’. The truth is that there is no natural law, and it is

basically a feeling of right and wrong, a general consensus within society

on an issue which the judges need to pick and choose and apply as the

value of the society.

The extension of the scope of judicial review through this process to

strike down laws or actions has given rise to considerable controversy.

There is a strong argument that judicial review is antidemocratic. It is

questioned why less than 15 men, who have not been democratically

elected by the people, but selected through a secret process, and who

have no exposure of dealing with the masses, should be able to declare a

law passed by the Parliament as being illegal. It may be appropriate to

deal shortly with this aspect.

The debate is evenly balanced. The ultimate argument in favour of the

right of the Supreme Court to use their power of judicial review seems to

be that in a country with a written constitution there must be some

arbiter of what the limits are within which the Parliament can pass laws,

or the elected representatives can govern, and therefore if that arbiter

has to be the courts, so be it. In the context of the Pakistani

Constitution, there are additional reasons also.

First and foremost, Pakistan has a written constitution which is the

supreme law of the land and establishes precisely what a government

can do and what it is to be prevented from doing. As with any

constitution, our Constitution also does not speak with one voice and

there is a compromise between the philosophical and political beliefs of

the various varying interests of those who framed the Constitution. In

addition, there are in-built sources of conflict between the rights of an

individual and the powers of the elected government. The Supreme Court

of Pakistan has had to, and shall continue to step into the void and

adjudicate between the rival claims, as well as to pronounce upon and

interpret the Constitution. In this context the Supreme Court cannot

avoid entering the political arena.

The fact that the Constitution is a compromise has led inevitably to

certain confusions in those areas where agreement was hardest to reach.

Discovering what the Constitution means is a central part of the

Supreme Court’s work and it is not straightforward except in special

cases. This is true of most written Constitutions. In 1942, the U.S.

Supreme Court maintained that the right to hire a lawyer was not a

right. In 1962 however, this changed and Hugo Black in the case of

Gideon vs Wainwright wrote that the right to a lawyer of one charged

with a crime, is a fundamental and essential right to face trial. Here, a

new Constitutional principle was articulated. This power to give meaning

to the Constitution is a fundamental role in a contemporary age, which

the Supreme Court of Pakistan, and the apex court of any country is

required to fulfill. It is well understood that the Constitution is what the

court decides it is.

Also, in my view the Constitution of Pakistan establishes only a limited

republic, not a direct or pure democracy. Popular sentiments are filtered

through a system of representation. The majority vote is limited by

various restrictions in the Constitution. For example, candidates must be

of a certain age, the President must be a Muslim, regardless of what the

people want. The Senate which represents the minority sentiment can

delay the passing of bills and provide checks and balances. Fundamental

rights also inhibit the passing of law by the majority. The democratic and

constitutional setup of Pakistan is hence such that the Supreme Court,

acting under the Constitution and on behalf of the people as their

delegate, has to decide constitutional issues which affect the political,

social and economic thinking of the national as a whole.

How then do you ensure that the final arbiter itself does not get

corrupted by this power of judicial review and starts overruling laws on

the personal notions of what the fundamental law or value of the society

is? All jurists, and judges alike, whether they oppose or support the

power of the courts to legislate in this manner, agree that the power

must be harnessed by the judiciary itself. In order to perform its function

as the final arbiter of the Constitution the Superior Courts have

developed a basic philosophy of judicial restraint and in the

contemporary age when the Supreme Court needs to keep extending its

jurisdiction, it must also continue to exercise this self imposed restraint.

Under this philosophy, the courts have denied themselves access to

certain areas which they have prudently left to the public opinion or the

parliamentarians to deal with. It is only when an issue of social,

economic or political nature is raised and formulated in legal or

constitutional terms that the courts decide the same. They avoid deciding

political, economic and social issues directly, and only do so when they

arise in a legal form. This enables the polity to comprehend and adjust to

the new concept and allows time to the parliamentarians to assess and

decide if they would like to take the issue back to the Parliament or go

along with the trend set by the judgment. Ultimately, the answer is really

that one has to trust the intellectual integrity of the Supreme Court, and

in the case of Pakistani Supreme Court it has done little to cause grave

concern in this regard.

Role of Dynamic Interpretation

The second, more obvious role apart from judicial review, by which the

Supreme Court may and does advance the political process is through

interpretation, and here too in the modern day the Supreme Court has to

advance into the era of the dynamic approach to interpretation.

There was a time when it was being argued and accepted in the courts

that all judges can do is to discover the original intent of the law-giver.

This was an attempt at putting a restraint upon the judges from

expanding the jurisdiction which had irritated the executives. For a

while, the judges gave in to the executive’s plea as in the case of the US

Supreme Court which denied black Americans fundamental rights, on

the grounds that the intention of the founding fathers was to confer the

fundamental rights only on white Americans. Then however, came a

turning point and this started a new phase which was not to revert to the

original intent but to consider the Constitution not only as an inheritor of

the past but harbinger of the future. It opened the gateway to what is

known as dynamic interpretation. We are today living in the era of

dynamic interpretation of the law. Briefly, it means that the law should

be seen not only from the point of view of the law-giver but also from the

point of view of the interpreter when it comes for interpretation. Thus,

judges should not only know the law but have knowledge about history,

philosophy and other social sciences and must be fully aware of the

social trends and conventions prevalent in a country when he is applying

his interpretational skills on the constitutional documents. He knows

that the constitution cannot be easily amended when it goes through the

legislative process which is a time consuming and a difficult path.

Judges have come to supplement the need of the society and they do it

through their intellectual endeavor, by keeping the law in the forefront

but at the same time not being unmindful of contemporaries.

In this context, the role of the judiciary becomes political. However we

must remember at all times that in Pakistan there are not more than 17

men constituting the Supreme Court and they are not magicians, able to

conjure order out of confusion or harmony out of deep divisions.

Ultimately, it is up to politicians to fulfill their due role in upholding the

values of society, principles of law and the fundamentals of democracy,

and for the society to ensure that they follow those principles.

Constitutional cum Political Cases

The courts have thus provided both a forum for constitutional dialogues

and the rules to conduct the dialogue (i.e. the judicial restraint). In

Pakistan too there have been many political issues which have presented

themselves for dialogue and adjudication before the Supreme Court.

Interesting and learned constitutional dialogue was conducted in the

form of arguments under the adversary system. Let us see some of the

cases where the constitutional dialogue was successfully carried on

within the parameters of judicial review.

The Supreme Court has been embroiled in politics since its inception.

The first disruption which overwhelmed the country was on October 24,

1954 when the Governor-General declared a state of Emergency and

dissolved the Constituent Assembly and dismissed the Prime Minister

along with his Council of Ministers. The President of the Constituent

Assembly Moulvi Tamizuzddin Khan, instituted proceedings by filing a

writ petition which was accepted. The Federal Government challenged

this decision in the Federal Court and the Federal Court found that the

challenge to the action taken by the Governor-General was made through

a petition which was instituted under a law (section 223-A of the

Government of India Act) which itself was not a competent piece of

legislation, inasmuch as the said section 223-A was introduced by

amending the Government of India Act, 1935 (as adopted to Pakistan

and the functioning country’s interim Constitution) without the assent of

the Governor-General, and therefore, could not be deemed to have

become a valid part of the Constitution and hence no action could validly

be taken in pursuance of the petition filed under its provisions. [Maulvi

Tamizuddin Case--PLD 1955 FC 240]. By this decision, the question

whether the Governor-General was authorized and could legally have

dissolved the Constituent Assembly was postponed to a more propitious

time. However, when the Governor-General thereafter promulgated an

Ordinance purporting to validate certain laws, the Court found that the

Governor-General was not competent to promulgate the validity

Ordinance, it being beyond his competence. [Yousaf Patel case PLD 1955

FC 387]. This decision resulted in the Governor-General making a

Reference to the Federal Court seeking its advice as to how the crises

regarding the setting up of the new Constituent Assembly to replace the

Constituent Assembly which had earlier been dissolved, could be

resolved.

The Court in answering this Reference, went on to lay down the

principles for setting up of the new Constituent Assembly, in that it

should be established consistent with the provisions of the Indian

Independence Act, 1947. In so doing, the Federal Court succeeded in

resolving the rule of law in a situation where the executive fiat appeared

all-evasive, and made possible the revival of the Constituent Assembly

[PLD 1955 FC 435]. Indeed the framing of the first Constitution of

Pakistan, namely the Constitution of the Islamic Republic of Pakistan,

1956 was the handiwork of this Constituent Assembly.

The Supreme Court again had to participate in the political process when

on October 7, 1958, the Constitution was abrogated, all representative

institutions were abolished and the whole country was placed under

Martial Law to be administered by the Chief Marital Law Administrator.

There was potential fear of a state of lawlessness. The Supreme Court

had two options; to accept the state of anarchy or to act to ensure some

sort of rule of law. In a widely criticized decision, the Supreme Court

decided that the new dispensation ushered in by the Martial Law

Government, which it described as the Revolutionary Government, was

legal, on the principle that the new legal order created by a victorious

revolution was itself a law creating fact. Although the correctness of this

doctrine is doubtful, yet it brought the martial law under a “legal norm” if

not a constitutional norm, thereby ensuring governance in accordance

with law, rather than on the fancies of a Military Commander.

As it shown by the subsequent cases of Mehdi Ali Khan Panni and

Khuhro, the Supreme Court then tried to ensure that during the entire

period of Martial Law the country continued to be governed under a legal

instrument, in accordance with rules and not by the whims of the

Military Commanders.

In Khuro’s case, after having found that it has the jurisdiction to

examine the matter, the Supreme Court then decided that it had the

power of judicial review to set aside an the order passed by a Special

Judge trying a case under a Martial Law Regulation.

After lifting of the Martial Law of 1958, and the promulgation of the new

Constitution of 1962 the Court had to examine the legality of a

Presidential Order titled “Removal of Difficulties (Appointment of

Ministers) Order, 1962”. By this Order, the essential principles on which

the said Constitution of 1962 was based were sought to be altered. The

Supreme Court felt no hesitation in finding that the Removal of

Difficulties Order issued by the President was without lawful authority

and observed that it (the Court) was under a duty and obligation to

protect, uphold and defend the Constitution and to see that it was not

tampered with by any authority, howsoever high. In finding that the

Order allowing Ministers to retain their seats in the National Assembly

after accepting the Office of Minister, was not within the powers of the

President, it declared the said Order to be bad in law. This ruling was

given in the case of Fazlul Quader Chaudhary [Fazlul Quader Chaudhary

PLD 1963 SC 486].

Reference may usefully be made to the cases of Maulana Maudoodi

[Maulana Maudoodi Case -- PLD 1964 SC 473], in which the “opinion” of

the executive which formed the basis for taking the action of declaring

the Jamaat-I-Islami an unlawful association was found to be untenable

on any objective criteria. Accordingly, the aforesaid action taken by the

Government, pursuant to the opinion formed on subjective

considerations was quashed.

The Court’s anxiety to safeguard the liberty of the citizens was again

demonstrated in the case of Ghulam Jilani v. The Government of West

Pakistan [Ghulam Jilani case PLD 1967 SC 373]. Here, the question was

whether the assertion made by the detaining authorities that it was

“satisfied” in terms of Rule 32 of the Defense of Pakistan Rules that the

detention of Ghulam Jilani was expedient in the public interest, was

subject to judicial review? The Supreme Court opined that the word

“satisfaction” must be a state of mind that had been induced by the

existence of “reasonable grounds” for such satisfaction. It accordingly

held that “power for an authority acting under Rule 32 is, therefore, no

more immune to judicial review”. This finding was a significant

breakthrough by the judiciary in cases involving detention of citizens, as

the Pakistan Supreme Court was making a clear departure from the view

earlier expressed by the House of Lords in Liversidge’s case (LR 72 1A

241) and followed by Courts in India and Pakistan, namely that the

“satisfaction” of detaining authorities being a subjective matter could not

be scrutinized on the touchstone of objective considerations.

The height of the Supreme Court’s exercise of power of course is

demonstrated by the famous case of Asma Jilani where the court

examined the validity of the 2nd Martial Law imposed in March 1969. The

Supreme Court dissenting from the earlier view expressed by it in the

case of Dosso, held that the Martial Law imposed by General Yahya Khan

was illegal and that Gen. Yahya Khan was a ‘usurper’ in that he had, by

illegally proclaiming Martial Law, usurped the powers of Government.

Martial Law Regulation No. 78 issued by him in pursuance of the

aforesaid proclamation of Martial Law was, therefore, void and of no legal

effect. As a result of this judgment, all punitive and repressive actions

taken during the Martial Law period, whose effects were still continuing,

came to an end and ceased to have effect. The court, through this

pronouncement, also tried to deter future Army Chiefs from proclaiming

Martial Laws on the assumption that they could escape the

consequences of abrogating the Constitution and on the plea that the

success of their action (revolution) created its own legality and would

make them the new law givers. Under the ruling in Asma Jilani’s case,

they were to be treated not as law-givers but as usurpers. [Asma Jillani

case --- PLD 1972 SC 139]

This enabled the High Court to punish for contempt, a senior army

officer for disobedience of its orders on the principle that no one is above

the law. [Hashmat Ali vs. Col. Muhammad Shafi Durrani – Writ Petition

No.87/1969 decided on 07/03/1972]

A third Martial Law was proclaimed on July 5, 1977, and the

Constitution of 1973 was abrogated. Begum Nusrat Bhutto, the wife of

Mr. Zulfiqar Ali Bhutto, feeling aggrieved by the detention of her

husband, inter alia, challenged the imposition of the Martial Law.

According to her Gen. Zia-ul-Haq, the Chief of Army Staff who had

proclaimed Martial Law had no authority to do so under the 1973

Constitution. Accordingly, the proclamation of Martial Law was liable to

be quashed. In this connection she relied upon the decision of the

Supreme Court in Asma Jilani’s case [Asma Jillani case – PLD 1972 SC

139]. The Government countered this plea by relying on Dosso’ case.

The Supreme Court declined to reverse the view taken by it in Asma

Jilani’s case and also did not revert to the view taken in the earlier case

of Dosso. Instead the Supreme Court took a purely political decision and

accepted the legality of Zia’s Martial Law. According to the Court,

widespread rigging took place on March 7, 1977, sparking off an

agitation which spread from Karachi to Khyber rendering the situation

beyond the control of the civilian administration. The disturbances

accompanying this agitation resulted in heavy loss of life and property

throughout the country. Educational, social and economic activities had

come to a standstill and the entry of the army in specified cities, called in

aid to civil power, was not able to control the agitation. The country was

on the brink of civil war and in such grave condition Martial Law could

justifiably be proclaimed. Accordingly, the impugned declaration of

Martial Law was held to be justified on the principle of State necessity.

[Begum Nusrat Bhutto case –PLD 1977 SC 639].

The Supreme Court on this occasion exercised a legitimizing function but

while doing so it did try to place some restraints on the unbridled

exercise of power by the Martial Law Authorities, by allowing the Courts

to exercise the power of judicial review during the period of Martial Law.

In justification of this legitimizing act the Court also took into

consideration the circumstance that Martial Law was to remain in force

for a limited period according to the assurance given by Gen. Zia at the

time of promulgating the Martial Law. Unfortunately however, the Court

by also conferring upon the Chief Martial Law Administrator the power to

amend the Constitution (to carry out the purposes of Martial Law)

enabled him to make major amendments in the Constitution. This

authority was exercised, inter alia, to oust the jurisdiction of Courts to

review orders of Martial Law Authorities, to extend the period of Martial

Law and make other amendments in the Constitution, and even

drastically amend some of its existing provisions. These amendments

later caused manifold problems for Courts.

In the Benazir Bhutto Case [PLD 1989 SC 66] certain amendments made

during the Martial Law period in the Representation of the People Act,

1976, especially the provision which put a clog in the way of allocation of

a common election symbol to candidates of a political party contesting a

general election as its party candidates, were struck down, and

Fundamental Right 17 guaranteeing the right to “form a political party”

was so interpreted as to allow the allocation of a common symbol to all

candidates who were contesting elections as candidates of the same

political party.

The Supreme Court was involved in the political arena in the Haji

Saifullah case (PLD 1989 SC 166), where the dissolution of the National

Assembly of Pakistan ordered by General Zia-ul-Haq on May 29, 1988, in

exercise of the enhanced powers conferred on the President as the price

for lifting Martial Law and reviving the Constitution namely, under the

newly-added clause (b) of Article 58(2) was challenged. The Supreme

Court decided that the discretion conferred on the President to dissolve

the National Assembly was justiciable and also agreed with the High

Court that the said discretion had not been exercised legally, in that no

sufficient nexus existed between the grounds on which the dissolution

was ordered and the ground stated in clause (b) of Article-58(2) on which

the dissolution of the Assembly could validly be ordered.

The Supreme Court also decided the case of “Mustafa Khar” [Mustafa

Khar Case – PLD 1989 SC 26], which significantly diluted the immunity

granted by Article 270-A of the Constitution to the convictions recorded

by the Military Courts during the period of Zia-ul-Haq’s Martial Law. The

Court, while doing so observed:-

“[O]n Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power; a malafide order is a fraud on the statute. Apart from that, in view of the assurance given to the proceedings which suffered from the lack or excess of jurisdiction or were malafide or were coram non judice could not conceivable be regarded as done, taken or held in connection with the previous operation of a Martial Law Regulation or Martial Law order.”

The President of Pakistan dissolved the National assembly on three

occasions, twice during the time when Benazir Bhutto was the prime

minister and once during the time that Nawaz Sharif was the Prime

Minister. In each of these cases the Supreme Court held that the power

to dissolve though discretionary, is to be exercised sparingly,

independently, honestly, fairly and reasonably without any bias and ill-

will. If the exercise of the above power is tainted with personal likes or

dislikes, the same shall stand vitiated.

Once again, the Supreme Court was called upon to deal with a military

intervention when on October 12, 1998, General Pervaiz Musharaf took

over as Chief Executive, declared an emergency and dismissed the civil

government while dissolving the Parliament and the Provincial

Assemblies.

This time the Supreme Court fixed a time for return to civil government

and restoration of the constitution i.e. (3 years), which was adhered to

and the constitution was restored on November 15, 2002. However, the

Supreme Court is criticized for having given power to the Chief Executive

to amend the constitution, on the ground that as the Supreme Court did

not possess any power to amend the constitution it could not give such

power to the Chief Executive. I believe that criticism is valid.

CONCLUSION ON POLITICAL ROLE

The Constitution of a country is meant to cater to the needs of the

society for all times to come. Approach to it must be dynamic, providing

adequate answers to questions arising due to the changes in the society.

Cultural changes and awareness of the society must be noted, whether

by the Parliament or appropriately by the judiciary through a

constitutional dialogue within the parameters of judicial review. One

must remember that the parliamentary agenda is over-congested, the

parliamentarians are many times involved in their personal scrabbles

and that laws are often framed in the absence of opposition. The

parliamentary history of Pakistan shows that Parliamentary Committees

are not effective and most of the times even the quorum is not present

when the bills are passed. In these circumstances, it is necessary that

the judiciary fills in the gap and attends to eminent problems on the

social, constitutional-cum-political issues.

One of the recent and appropriate examples of the Supreme Court

providing for a remedy which may not have come through legislative

process is that of the appointment of judges to the High Court, the status

of the acting Chief Justice, and position of ad-hoc judges in the Supreme

Court. In marathon constitutional dialogues these issues have been

settled and in what may soon be referred to as the consultation doctrine,

will gradually become a part of our cultural milieu. The consultation

doctrine may be summed-up as follows:-

“When the constitution makes someone a consultee, the process of consultation must be meaningful and purposive, thus achieving the objective of consultation” (In this case to assure that man of merits and integrity adorn the benches).

Now it is for the jurists, opinion-makers, journalists, lawyers and others

to help assimilate the consultation doctrine into our constitutional

culture.

We cannot end here and have to maintain the national dialogue. The

political confrontation must be replaced by learned and considered

discussions within the parameters of judicial review. Other topics which

would require to be tackled with immediacy are the issues of

accountability, punishment to the plunderers, defection, and cheaper

elections. If the Parliament fails to attend to these problems, the

Supreme Court shall have to fill-in the empty shoes of the opposition and

maintain the dialogue.

SUPREME COURT AS PROTECTOR OF RIGHTS

An important and indispensable function of the courts today is to protect

fundamental rights, human rights and the right to life. This is the least

controversial, but not the easiest of functions which the Supreme Court

is now required to perform. The Constitution of 1973 provides for certain

fundamental rights (like the freedom of speech and assembly, right to be

treated equally and without discrimination and the right to be treated in

accordance with law only). The Supreme Court has a constitutional duty

to protect those rights. In the ever-changing world, living of course within

the parameters of the Constitution, the Supreme Court is constantly

obliged to see that the concepts and words of these rights do not become

static but continue to develop. In this context, the Supreme Court has in

the past not been lagging behind. It is a positive trend in issues of

fundamental rights that the superior courts in recent years have been

increasingly widening the definition and scope of fundamental rights as

well as accepting fewer and fewer restrictions as necessary.

I need not discuss the role that the Supreme Court has to play as an

enforcer of these rights in detail. The Supreme Court has already made a

number of inroads into this and established the principles that have to

be followed by the courts. In respect of the enforcement and protection of

rights, the Supreme Court has already decided that even individual

cases, raising serious questions of violation of law or enforcement of

fundamental rights which may likely have a bearing on the community,

are issues of public importance, and may be entertained directly by the

Supreme Court. The incumbent Chief Justice has made it simpler and

easier. In the past the Court has intervened to correct malpractices in

our educational system; (ii) to afford protection to women of any origin

(Pakistan or Foreign) subject to any sex-related offence and to stop the

menace of obnoxious calls to them; (iii) to protect the property rights of

female heirs/owners by issuance of directions to the attorney general to

take steps to amend the relevant existing law or to cause fresh legislation

to be initiated for securing their rights; (iv) to suspend all restrictions

imposed against nurses working in military hospitals and air hostesses

of Pakistan International Airlines regarding getting married while in

service; (v) to stay public hangings as being contrary to the constitutional

provisions guaranteeing the dignity of man; (vi) to issue guidelines for

controlling the traffic muddle in Karachi; (vii) to check the practice of

extortion of money by railway staff from the passengers traveling in the

Samjotha Express (train running between Pakistan and India) with a

commission of advocates and human rights activists appointed to

monitor the situation; (viii) to direct the Federal and Provincial

Governments to stop making appointments against the retirement rules,

a practice which was violative of the fundamental right of equal

opportunity for all citizens to enter a profession; and (ix) to issue

guidelines to be observed by the authorities to check environmental

pollution caused by fumes of motor vehicles, deforestation, open

sewerages, dumping of nuclear waste etc;

In the case of Darshan Masih (PLD 1990 SC 661) it was decided that the

fundamental constitutional right to equality allows the State of Pakistan

to make special provisions for the protection of women and children. The

Court found that this imposed on the State a positive obligation on all

State organs to take active measures to safeguard the interests of women

and children. In 1991 SCMR 2114 it was decided that the Islamic

concept of justice is that “paramount human right that is inviolable and

inalienable” and therefore every citizen has the right to obtain justice.

In the case of Shahla Zia & othes vs. Wapda PLD 1994 SC 693 a group

of residents approached the Court seeking to halt the construction of an

electricity grid station by the Water and Power Development Authority in

their neighborhood. The residents cited the health hazards of electro-

magnetic transmissions. The Court held that the petitioner’s claim was

based on the rights to life (Art 9) and dignity (Art 14), which include the

right to live in a clean environment. The Court applied the ‘precautionary

principle’ set out in the 1992 Rio Declaration, which states that lack of

scientific certainty shall not be used as a reason for postponing cost

effective measures to prevent environment degradation. Although not

‘binding’, the Court stated that the principle was of “persuasive value

and commands respect” and held that while the court did not have the

expertise to adjudicate on the different scientific and policy arguments, it

ordered the WAPDA to introduce a public consultation procedure for all

projects involving grid stations and power-lines. It also ordered the

establishment of a commission of scientists to examine the health risks.

The Court also held that constitutional rights are higher than the rights

conferred by other laws, i.e., municipal law, common law. Therefore, a

conscientious citizen, aware of the rights vested under the Constitution

and alive to the possibility of danger, could invoke Art. 184 on behalf of a

large number of citizens who cannot make such representations due to

poverty, ignorance or any such disability.

In the case of General Secretary West Pakistan Salt Miners Labour Union

(CBA) Khewra, Khelu Vs the Director Industries and Mineral

Development Punjab Lahore 1996 SCMR 2061 a petition was filed in the

Supreme Court under Article 184(3) of the Constitution against the

pollution of water supply source to the residents and mine workers of

Khewra. It was held that persons exposed to such danger were entitled to

claim that their fundamental right to life, guaranteed to them under the

constitution, has been violated and that this is a case for enforcement of

fundamental rights by giving directions or passing orders to restrain the

parties and authorities from committing such violation or to perform

their duties.

Quoting Art 184(3) of the Constitution, the Court observed that

‘it is well settled that in human rights cases/public interest litigation under Art 184(3), the procedural trappings and restrictions, pre condition of being an aggrieved person and the similar technical objections cannot bar the jurisdiction of the Court. This court has vast power under Art. 184(3) to investigate in to questions of fact as well, independently, by recording evidence or appointing commissions or any other reasonable and legal manner to ascertain the correct position. Art. 184(3) provides that this Court has power to make order of the nature mentioned in Art. 199, the fact that the order or direction should be in the nature mentioned in

Art. 199 enlarges the scope of granting relief and the relief so granted by this Court can be molded according to the facts and circumstances of each case”.

In another land mark decision which legally settles the issue of a woman

contracting marriage of her own volition as being valid, a full bench of

the Supreme Court of Pakistan declared that Muslim girls can marry

without their wali’s consent and an admission by the couple is sufficient

proof of marriage. This verdict puts to rest, at least technically, a long-

drawn out controversy which was given a fillip by a September 1996

verdict of a single bench of the Lahore High Court, declaring all

marriages contracted without a Wali’s consent as void. The Supreme

Court bench has also ruled that the High Court and all subordinate

courts are bound to follow the judgment.

A news item titled “N-Waste to be dumped in Balochistan” was published

in Dawn, a daily newspaper in its issue dated July 3, 1992. In the report,

concern was expressed that certain businessmen were making attempts

to purchase coastal areas of Balochistan or any area within the territorial

waters of Pakistan for this purpose.

It was held in this case that Government functionaries, particularly the

authorities which are charged with the duty to allot the land in coastal

areas should insert a condition in the allotment letter/license/lease that

the allottee/tenant shall not use the land for dumping, treating, burying

or destroying, by any device, waste of any nature, including industrial or

nuclear waste, in any form. The Balochistan Development Authority was

also directed to further obtain similar undertakings from all those to

whom allotments have been made for ship-breaking, agriculture or any

other purpose.

Suo motu action under Art 184(3) of the Constitution originated from an

article appearing in a weekly sent by a citizen, with the request that on

having gone through the said article, restriction be imposed on kite flying

as it was causing loss of billions of rupees of property as well as loss of

valuable human life. The Supreme Court, in view of the situation created

by kite flying issued certain directions which included directions such as

i) the owners/occupants of the houses, shops, hospitals, buildings etc.

shall not allow kite flying activity on their rooftops, failing which they

would also be liable for action of contempt of court; (ii) the kite flying

associations and the Provincial Government shall jointly examine ways

and means to protect the citizens from loss of life and property in future.

The Supreme Court of Pakistan has time and again made it abundantly

clear that no technical or procedural difficulties should prevent a court

from deciding cases which involve human rights violations. Recently,

under the direct interest of the incumbent Chief Justice, the Mukhtaran

Mai case, Sonia Naz Case, New Murree City Project, Kite Flying and ban

of lavish meals served on marriage parties are few examples in which the

Honourable Supreme Court has taken suo motu action, and in many

cases proceedings are pending. The public at large has warmly

appreciated the parental jurisdiction of the Supreme Court on taking suo

motu actions on various issues of public importance.

This is however the age where the Supreme Court will continue to be

active in the fields of protection of the basic rights of people.

AS ENFORCER OF VALUES

A controversial role which in the context of Pakistan is something that

may be required of the Supreme Court is as an enforcer of society’s

values. The judges impose universally and naturally accepted values

through their judgments, which however must relate to fundamental

rights, policies of the state, social injustices etc. Of course, primarily it is

for the Parliament to undertake reforms, yet judges do have a sense of

responsibility towards the Constitution and therefore, also towards the

people who are the givers and final protectors of the Constitution.

I must register my caveat that this responsibility must be discharged by

the judiciary with great restraint and in a manner that advances both the

respect for the judiciary and reinforcement of the values and the rights.

CONCLUSION

In the present contemporary world in which value-added knowledge is

the currency, the task of a superior court is both difficult and exciting.

The court’ function appropriately and productively when other

institutions in the country are similarly performing their respective

functions and duties. It is in that atmosphere of a vibrant Parliament,

free media and press, proactive consumer-related organizations and an

aware citizenry that the judges through their knowledge of history,

philosophy and constitutional norms advance the quality of life and

ensure the rule of law. Where other organs are faulty or dysfunctional

the burden on the superior courts correspondingly increases.

To sum up, the Supreme Court has powerful tools in the shape of

judicial review, their jurisdiction to interpret the law and the

Constitution, which if exercised with judicial restraint can certainly

benefit the nation.

Syed Ali Zafar