CHAUDHRY HASAN NAWAZ
With reference to the dismissal of Mian Nawaz Sharif’s Government, it has been said that “this perhaps is the most curious system in which the Government falls; the head of the Government the President- is infallible. He dismisses his subordinates and gets himself a new team. His new team is in fact is the same old team. There is not a Captain in the world who would not fall in love with this system”.
2. As the Dictionary would have it, the word “system” amongst other things, means a method of organization; a set of co-related principles; a connected and regularly arranged scheme of the whole of some subject or a society seen as a soulless and monolithic organization thwarting individual efforts.
3. In its political manifestation, system of Government is the expression of the collective will of a group of people, forming a homogeneous whole on account of similarity of conduct, having its roots in long practiced traditions and formed as a result of consistent, uniform behaviour extending over a period of time. It is suggestive of an aptitude or a habit which sits deep in the mind and controls the actions and behaviour of a body politic under given circumstances, so as to produce a particular result and no other, thus involving a total denial of individualism. By virtue of these considerations, no Dictator, howsoever benevolent and benign, the only purpose of whose governance is the perpetuation of autocratic rule and self aggrandizement, can give the people a system. If this be the sense it conveys, the question is whether we ever had a system at all which could be described as “curious”.
4. Attempts to provide the country with a viable system of Government resulted first in the enforcement of the Constitution of 1956 and then that of 1973. However, they could not stand the test of time and perished; in all probability because they did not fall in line with the prevalent socio-political environment of the country. What followed their demise was, in either case, not a system but only situations, periodical in character and essence, and meant to serve and promote the vested interests of those who were thrown up into positions of prominence by sheer force of circumstances.
5. What happened to the Constitution of 1956, though remote in point of time, is nevertheless relevant because of this situation syndrome. It was done to death by the Martial Law of 1959 which brought in its wake Martial Law Regulations and Orders, all amounting to situations, meant to serve the exigencies of a particular time. Thereafter, the interim Constitution of 1962 also brought about a situation and there was hardly any thing which could, even by a stretch of imagination, be given the name of a system.
6. The Constitution of 1973 which sought to enforce a Parliamentary form of government on the basis of adult franchise also met the same fate. It was not made to work even though it was the result of a consensus. The Elections of 1977 resulted in a massive agitation and people rose to the challenge of what was intended to be brought in vogue by dint of an unfair contrivance. The country was again in the grip of yet another Martial Law and we had to go through the same kind of tribulations afresh which gave rise to innumerable situations during the years to follow with no sign of a system.
7. There being no system worth the name, sound or otherwise, exposed to the peril of a premature demise, all we have been left with are day-to-day situations. We might therefore spare ourselves of the anguish of lamenting on its being ‘curious’ or bewailing the death of something which in actual fact has never existed in so far as we are concerned.
8. Had they been allowed to remain in commission, the Constitutions of 1956 and 1973 would have given us a system, though different in character and salient features in each case. The Constitution of 1956 envisaged a Presidential form of Government whereas the one enforced in 1973 spelled out a parliamentary democracy. Anyway, in both the cases, the country would have remained a Republic, where the people set up at the helm got their mandate from adult franchise. However, both failed primarily because they were not allowed to function by those who had been put in charge of the affairs of the Federation. Conditions were created resulting in utter chaos where the politicos fell at one another, hammer and tongs; thus paving the way for the promulgation of another Martial Law. To me it seems that one main reason for their collapse was lack of viability; which had various factors as its cause. They may be examined with a view to avoid the same kind of situation.
9. In both the Constitutions, the country was declared a Federal Republic in acknowledgement of the fact that sovereignty over the entire universe belongs to Almighty Allah alone and that the Authority to be exercised by the people was a sacred trust, which they had to discharge by managing the affairs of the country through their elected representatives. The enforcement of these Constitutions was, therefore, an expression of the will of the people to establish an order ensuring, amongst other things, full observance of the principles of democracy. Evidently, the basic idea was the enforcement of an efficacious system which could have guaranteed the people’s association with the management of country’s affairs. On paper, this declaration was obviously very attractive and there was nothing ostensibly wrong with the system sought to be put in practice. It pre-supposed the existence of a political environment where people could make free and proper exercise of the franchise. If viewed in the context of these considerations, successful working of the system could not be possible, in the first place primarily for want of mass literacy; which has not only impaired the quality and spirit of democracy visualized by the Constitution, but has also resulted in an abuse, even though unintentional, of the aforementioned sacred trust.
10. Secondly, the method of choosing representatives leaves so much to be desired. One of the defects is that people are made to vote for individuals and not for principles. The edifice of parliamentary democracy is based on party system, which explains the introduction of Article 17 guaranteeing the right to form association, along with the provisions that every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party. As we have it from the Political Parties Act 1962, “political party” interalia, signifies a group or combination of persons which are operating for the purpose of propagating any political opinion or indulging in any other political activity. Then, the fact of holding a political opinion should be demonstrated by the publication of a formal manifesto, that is to say the Party’s foundation document or constitution giving its aims and objects and providing for periodical election of its office bearer.
11. Judging from these standards, we hardy have a political party in the true sense of the expression. We do have political parties with manifestos on paper, but they are mostly in name alone. In most of the cases they do not have any distinct aims or objects differentiating them from one another. Much less are they recognized with reference to any such aims. Furthermore, there may be provisions in their constitutions for periodical elections of the office bearers, but in so far as my knowledge goes, they have seldom been held. So there are hardly any grass roots; and in the rural areas in particular, they are recognized not as much with reference to their manifestos as by their own names or by those of the leading personalities at the top. Out of two principal political parties, the Muslim League is known as a party of the yore with the reputation of having created a separate homeland for the Muslims, whereas the Peoples Party is now recognized more by the name of its Founder, late Zulfiqar Ali Bhutto. This being so in reality, they are just conglomeration of persons sans political consciousness and for the matter of that, without any political opinion for propagation. The emphasis being on the individuals and not on principles, this is a situation which may with impunity be called a country-wide factionalism.
12. The result of these apolitical conditions is that, by and large, people are obliged to vote for individuals and not for political parties. They owe allegiance to personalities rather than principles, which they do with the sole purpose of safeguarding and promoting their self interests. Then, more unfortunate is the fact that they have got their own standards for assessing the suitability or otherwise of a candidate. What they do take care about is that which of them can be better disposed to promote their cause; its unfairness notwithstanding. This attitude, has given rise to local politics of ‘Thana’ and Tehsil. Further, nothing can be more tragic than the fact that those who are eventually elected in turn, try to contrive the assumption of as much power and effectiveness as possible, to be able to serve and advance the interests of their supporters. They achieve this end on the strength of the prevalent position that the Prime Minister or the Chief Ministers, as the case may be, are in need of their support to stay at the helm. As the things go, he is obviously interested in making them effective, with teeth to cut, so that they may successfully manage their return to the Assembly in the next general elections. It might as well be incidentally mentioned as a relevant circumstance that only a few years ago, it could not possibly be conceived that a MPA or MNA will be that powerful as to be indispensable in the day-to-day running of the administration of a District. The factors pointed out before have brought about a culture where, for flourishing, things have to be vile, ugly and sordid as of necessity.
13. The electoral alliances are also in point on account of having a bearing on the viability of a democratic system. A few parties get together on a common platform and set up candidates for election to the Assembly. One obvious purpose is the survival of those parties which may not be otherwise possible. The second is to defeat the other party at the hustings by collective efforts. They hardly have anything in common in respect of their aims and objects. Even if some of them be common, the fact remains that they are separate parties with different manifestos. And why should they set up separate shops if they have got nothing different to be offered for sale to the voters, is another important question for a separate discussion. Anyway, the damage done by these alliances to the process is the encouragement of a negative vote, for they ask the people not to vote for a particular party but against another whose defeat is the primary object. It should be realized that in the event of such alliances, canvassing for a positive vote cannot indeed be possible and they do not address the voters with reference to their manifestos. Its obvious result is that the people, with few exceptions, only go against a party and not in favour of another. The defect inherent, as I see, is that there is no clear mandate in favour of any particular programme. In this view of the matter, people are denied the opportunity of making a positive choice of their representatives for exercise of authority and the alliances thus involve an open abuse of the electoral process. Incidentally, the people’s dedication to the preservations of democracy also goes by the board.
14. Another contributory factor becomes available from certain amendments which changed the character of the Constitution. Merits of what was brought about by those amendments apart, they had two important features. One that their import was with the purpose of promotion of vested interests. They were not placed on the Book because they were in the interests of the country or that the people wanted them to be there. They were not an expression of popular will, but evidently the result of caprice and autarchy of those atop, and by virtue of that circumstance alone, they were unjust, arbitrary, unacceptable and unworthy of the nation in search of a system. The second is that they took away the element of continuity and consistency, necessary for its maturity into a system. It hardly need be emphasized that uniform practice over a period of time is required for formulation of traditions to be handed down to the posterity. It must be confessed, and not without sadness, that the Constitution had been deprived of this opportunity.
15. As for merits or otherwise of the amendments, we may take notice of only one in respect of the judiciary to serve as an illustration of the point sought to be brought home. Article 200(1) empowered the President to transfer a Judge of a High Court to another High Court, but a limitation on the exercise of this power was that no Judge could be transferred except with his consent and after consultation with the Chief Justice of Pakistan and Chief Justices of both High Courts. Subsequently, however, a proviso was added to this clause by the Constitution (Fifth Amendment) Act 1976 which laid down that such consent or consultation with the Chief Justices of the High Courts shall not be necessary, if such transfer is for a period, not exceeding one year at a time. During the Martial Law regime, late President Zia-ul-Haq probably thought that this was not enough. He made an amendment in the proviso by President’s Order No, 14 of 1985, thereby substituting the words ‘two years’ instead of ‘one year’. The result was that no consent of the Judge concerned or consultation with the Chief Justices of the High Courts was necessary if the transfer was for a period of two years. As if even this too was insufficient to serve the purpose, clause (4) was added by the late President by Constitution (Third Amendment) Order 1985. It inter-alia provided that a Judge of a High Court who does not accept transfer to another High Court under clause (1), shall be deemed to have retired from his office. The obvious purpose of these amendments was to keep the Judges under subjugation. It hardly requires a stress that they offended against the people’s will to establish an order wherein the independence of the judiciary was to be fully secured. It caused a serious damage to the promised independence, which is undoubtedly an ingredient of an independent democratic State based on the principles of social and political justice.
16. Finally, there is the question of manner of elections, which by far is the most important in a Republic with a parliamentary democracy. It goes without saying that we can never survive as a nation with a system unless elections are free and fair in the true sense of words. The suspension of Constitution in 1977 with imposition of Martial Law and the recent crisis of 1990 may safely be put to unfairness of elections and rigging. It has all along been the root cause of all other ills and misfortunes in the problem ridden history of our country. In a Republic where the people are given the right to run and manage the affairs of the State through chosen representatives, nothing can be more tragic than the use of unfair means in elections, which reduces them to a nonentity by making them say the things which they do not say in actual fact. Manipulated and engineered results are not only a curse, but also an outrage on the constitutional right of vote and a fraud against masses, which, if perpetuated, will force them to rise in revolt.
17. In the backdrops of these considerations, I venture to make a few proposals. First of all is that we must devise a fool-proof method of ensuring free and fair elections by making amendments in the Constitution, leaving absolutely no room for a complaint from any quarter. Second, the election alliances may be completely barred by making provisions in the relevant laws to get the nation rid of mushroom growth of groups which go in the name of political parties. Third, by modifications in the Political Parties Act 1962, floor-crossing must be made an impossibility, to spare the Prime Minister and the Chief Ministers of the funk that they will lose majority and that they have to do things to keep the members with them to avoid a resolution of no-confidence. Fourth, arbitrary and random amendments in the Constitution for promotion of vested interests must be avoided to allow its smooth and continuous functioning, so that it may have some time to mature into a binding system. Fifth, amendments be made in the Constitution to remove anomalies and avoid a basic change in the system visualized by it. Sixth, modifications may also be made in the election Laws for a change in the mode of elections, either by introduction of the method of proportionate representation or otherwise, in order that the emphasis is shifted from the individuals to the Parties, where people will be forced to vote for principles. This is essential to bring about a complete change in the nature and scope of elected representatives’ responsibility to their electorate, where they will be able to tell their voters that they had voted for the party and not for them.
CHAUDHRY HASAN NAWAZ
In the Nation’s Issue of 10.1.1994, a report which ran into the eyes was that millions of rupees have been ‘bungled’ by two Officers of Agricultural Development Bank of Pakistan. Another such report was that “angered Taj Company Depositors stoned the Management of the Company when they started disbursement of the cheques to the Affectees after deduction of profits”.
2. According to another story, certain officials of the Government of Sindh including Mr. Imtiaz Sheikh Secretary of the former Chief Minister are alleged to have embezzled millions of rupees from Government funds. It further goes to say that “the Investigation Teams have so far unearthed a number of immovable properties worth several billions of rupees, that the ex-Secretary had allegedly bought with the Government funds”. Detailed description of the properties given in the papers can safely be discarded as irrelevant.
3. A special report of the same issue is also worth its while. It says that “the pollution, proliferation and urbanization in the country caused (during the year 1993) increase in all the forms of pollution-air, water, noise, buildings etc. etc; a direct result of increasing number of motor-vehicles (mostly smoke emitting), industrial units, (hardly equipped with instruments controlling pollution) with discharge of more and more effluent and waste water” and that “all this has jolted the environment balance in Pakistan”. For another case in point, we may make a mention of money matters column of the Issue of 16.8.1993, which dealt with the subject of corruption’s share of G.D.P. It dealt with the quantum of black economy worked out on the basis of 1992-93’s GDP.
4. There is, however, nothing unusual about them and many such harrowing reports have already seen the light, either in the National Press or otherwise in different forms. Much though in frequency, they still retain the extent and gravity of their far reaching effects on our social environment. Firstly, because they are subject-wise important in their own right, as they deal with very sensitive aspects of our public life. Their sinistrality makes us aware of what is precipitating us down the hill, head over heels. Secondly for the reason that they provide us with a context for considerations, highly sensitive in nature and material in terms of ramifications.
5. As we see, these reports are replete with grave allegations of corruption, knavery, favoritism, criminal misappropriation, perdition and lawlessness, causing total deterioration in all spheres of public life. Given the fact that rampant corruption can easily be noticed even by the application of just a naked eye, in its palpable manifestation in the shape of environment pollution with shabby and poor public services, the truth remains that they are mere allegations and that they will continue to remain the same in character so long as they are not established and the persons involved are brought to book. Nothing can be more outrageous against accepted norms of criminal jurisprudence than a mere presumption of guilt and we always do require evidence for a punitive action. Therefore, it is primarily in the public interest as also in that of the persons involved that these allegations must be put to the test of trial.
6. Of real concern is the fact that we seldom hear about the fate of these matters. We never know whether the allegations were duly proved resulting in retribution. Nor, for that matter, it ever comes to our notice that the accused was exonerated of the charge for want of evidence and that the author of baseless allegations was taken to task. No such matter is carried to its end, at least in so far as the print media are concerned. This, I should say, is absolutely necessary, for the people must learn from the same source as to what happened to the case, to be able to form an opinion on such vital issues of national bearing, which is essential for reformation and development of the body politic.
7. We are not short of cases where, regardless of such allegations, the persons involved continue to enjoy the same social status. They hardly lose in popularity and still remain in the centre of things and occupation of positions of prominence in public functions. Another aspect of the matter also deserves a side light. We do not have to go any distance in search of instances, where we now say the most sordid things about a person and then just the next moment we would greet him with both hands and lead him to the stage to be accommodated in a place of distinction. This is for the obvious reason that there is no retributive justice. Neither the guilty nor the malinger is taken to the task. Unfortunately we do not have a theory of reward and punishment.
8. The results of this state of affairs are very distressing. A special class of hypocrites, sycophants and parasites has come to stay and is growing by leaps and bounds. What they are, with what mission to accomplish and the extent of damage being done by them to the national character are left to your imagination. Then, with the passage of each day, our minds are becoming rank and these reports of corrupt practices and malfeasances, are loosing the alarm they used to raise in the past. The element of shock stirred by such stories is fast vanishing and we have now started taking them as matters of course.
9. We are falling into a vicious vortex. It is no longer possible to fix the responsibility of this massive deterioration on any one person. If you accuse the fruit-seller of charging much more than the previous year, his explanation would lie in telling you that he has been forced to do so because the same is being done by the mutton-seller. On approach you will find the latter ready with an excuse that he had to do it for the Milkman had raised the price of milk. Considering that here at last was the real culprit, you would gleefully turn towards the Milk-Vendor with a noose in hand for his neck. He in turn will promptly get out of it with impunity by telling you that all others too had raised the prices of their custom and he had no alternative but to follow suit. All of them will go with the complacency, and rightly so, that nothing is wrong so long as there is an explanation.
10. Further, there is almost nothing about which you might say that it is not the done thing in our society. Your performance is judged in juxtaposition with what is done by others of the same class who are always prepared to go to any extent. In their dictionary there is no such word as impossible, immoral, bad or beyond competence. The result is that those who expect you to do something for them, go with the feeling that something due was intentionally denied or withheld. Rare would be the realization that they have been misled to this belief by those who are without scruples.
11. The worst to come about is that the word offence is undergoing a conceptual change. Our malady, now with the passage of time, is not corruption, inefficiency and want of integrity, but the fact that these things have ceased to be offensive and are no longer regarded as disqualifications. We are hardly averse to those with such base mental propensities and aptitude. Such is the extent of decline that our social environment is not any longer viable for honest people; and why one should try to be so when nothing distinctive is left about it. There is no contrition, no ruth and, for that matter, there is no compunction. If the present shape of things is allowed to have its course, nothing is likely to remain offensive.
12. As if its assault was not enough on other spheres of life, corruption has not spared even the field of culture. We are now-a-days in the midst of marriage fever. It seems as if the whole nation has nothing else to do for its occupation. Hardly a day passes without extravagant marriages festivities. There are functions of ‘dholaks’ ubtans, tail mehndis, mayuns, nikah and walima; to say nothing of the main function. Some of us indulge in this wasteful display of opulence, in a bid to acquire counterfeit respectability. Others do it only to avoid an adverse criticism. The other day I told a friend that I was invited to a function to taste the food, the kind of which was to be served on different warm up functions before the main ceremony. He in turn told me that his wife was invited by that of a neighbour to a “scissors application ceremony” which was to serve as a prelude for preparation of the bride’s paraphernalia.
13. Then there are marriage parties. Hours are spent in waiting for their arrival, what with the competition in inviting VIP guests. The time before the arrival of the marriage parties is of course not allowed to go waste. We discuss the merits and demerits of the meals served and arrangements made on different functions of the previous marriage ceremonies. The hosts are heartily condemned for poor arrangements and meals. All we are concerned with is the quality of food and its abundance. The hosts and the marriage ceremony be damned.
14. God! What is happening to us. Where are we going? If at all, when is the turning point to come. Influenced by the fact that all efforts for ultimate disintegration are ascribed to RAW agents, it seems to me as if an whole army of them has been let loose by our enemies to distort and smear the face of our culture and make it as ugly as possible. Is there anybody in this country to go on the pulpit and say no more of this nonsense. The least which can be proposed is the formation of a society, in the fashion of societies for prevention of cruelty to animals, to wage a holy war against these ribald, stupid and extravagant practices. If you come to think of it, this would amount only to hitting Dracula with sunshine. What we require in addition is a drastic legislation providing for exemplary punishments for eradication of these evil practices; resulting in colossal loss of time and resources. Whatever be the method, they must be destroyed, leaf, branch, root and seed, which requires an intrepid approach and application by those at the helm.
15. The purpose of what is being said is certainly not only to play the spook, but to point out certain realities so that, before the chips are down, we may summon whatever Islamic has been left in us, to rise to the challenge of these maladies, so sordid and lethal in character. The need of the hour is to go the whole hog for extermination of these evil practices instead of making the pathetic best of things.
16. As things are, this is not the promised land which was won by so many sacrifices to be able to conduct our lives in accordance with the injunctions of Islam. Freedom is no doubt there but this is certainly not the one we had in our dreams. I do not bewail that the desired land has not been found. My anguish is for the fact that sense of loss is gone. The tragedy of our existence is that we appear to have lost the way.
PRAY WHAT IS A SOCIAL CONTRACT
CHAUDHRY HASAN NAWAZ
Eversince the time of its introduction as part of her election manifesto by Mrs. Benazir Bhutto, the idea of a “New Social Contract" has engaged the attention of some celebrated Authors who have made meticulous attempts to explain what exactly was intended to be conveyed by this expression. Irrespective of their erudite interpretations, however, the matter is as obscure and as much in need of an elucidation as it was in its inception. There is not the least intention of derogating anything from the efficacy of their competent discourses and I must confess, in all fairness, that it may be due largely to my own limitations. I have a feeling that more have been the efforts to get at its connotation; the more complex has it become. So an attempt is being made here against, to explain, as far as possible what exactly is meant by the phrase "New Social Contract".
2. In his article "Towards understanding the understandable", Mr. S. K. Mahmood who happens to be the Chairman of Prime Minister's Inspection Team and a Member of the Task Force, expressed himself as follows:
"The term 'Social Contract' has caused confusion as it lends itself to a number of interpretations. Political scientists of course immediately rush to Hobbes, Locke and Rousseau to understand the implications of this expression in relation to the obtaining realities in Pakistan. Others argue that she is advocating the case for drafting a new Constitution for the country. There is hardly any substance in these expositions. Intellectual evolution since the days of the 'Contractualists' has progressed and democratic principles have become the basis on which governments rest. In fact, the current debate in the Western industrialized democracies is whether they are operating an elitist or pluralist democracy; the dominant view of course favours the latter. It is, therefore, ridiculous to think that Ms. Bhutto is taking us back to the Contractualists' era, whereas we are living in a post cold war global setting wherein human rights, free market economies, democracy etc are the values or catch words”.
3. Those who, according to learned Author, think we are being taken back to the contractualists era, might have escaped my notice and I am obviously not in a position to say anything about the soundness or otherwise of their opinion. Anyway it seems to me that reference to thinkers like Hobbes, Locke and Rousseau, has been made only to take in the implications of the expression. They are not relevant for explanation of what is going to be the promised 'New Social Contract'. As for instance, in his article "New Social Contract", Mr. Rashid Rahman of Daily Nation, appears to have had recourse to the exponents of this political theory for discovering the origin of contractual situations. He said that they insisted "that human society originated in a contract impact, or agreement explicit of implied, to which each individual consented and so removed himself from “a state of nature", which helped set in motion a regime of government under laws, of impartially administered justice and of civil morality.
4. Philosophical approach aside, the expression signifies three concepts. But the bottom line is provided by the word "Contract". It is qualified in reverse order by the words 'Social' and 'New', which of course arrest the scope of its generality and impart special connotation to it. Although the term 'Social Contract' gives us a different conceptual situation, in essence and basically it remains a contract. The pre-fixation of the word 'New' signifies that the Social Contract in contemplation is going to be different from the one in vogue.
5. As the Statute would have us understand, a contract is an agreement enforceable by law. An agreement requires the involvement of at least two persons. One of them signifies to the other, his willingness to do or abstain from doing anything with a view to obtaining assent of that other to such act or abstinence. In legal parlance, this act of signifying is called a proposal. The acceptance of this proposal by the other person gives it the status and character of a promise to do or abstain from doing of that particular thing. The person making the proposal is called the promisor whereas the one who accepts it, goes by the designation of a promisee.
6. There can possibly be no such promise without a consideration. When, at the desire of the promisor, the promisee or any other person, has either done or abstained from doing, or does or abstains from doing or even promises to do or abstains from doing something, such act or abstinence or promise is called a consideration for the promise. Every promise and every set of promises forming consideration for each other, is an agreement.
7. The law provides that all agreements are contracts, if they are made by the free consent of the parties, competent to contract. But it is subject to three conditions: First, the consideration has to be lawful. Second, the object to be achieved by the agreement must also be lawful. The third is that any such agreement has not been declared as void or illegal. As for competence to contract, the person intending to be a party must be of sound mind and of the age of majority in accordance with the law to which he is subject and not under any disqualification from contracting by any law of the land.
8. As we have seen, a contract would thus require the involvement of at least two competent persons, who of their free will mutually come to an agreement for doing or abstaining from doing something. Element of mutuality and reciprocity is the essence of a contract. When complete, it obliges the contracting parties to a particular course of conduct and then governs their relationship with regard to a particular matter or transaction. These contracts are enforceable by the courts. The only proviso is that they do not offend against those who are not parties to them. In other words, they do not militate against any law for the time being in force.
9. In the context of these considerations, Social Contract is an agreement, pertaining not only to two persons, but to a society or community as a whole, and is arrived at by its competent members in exercise of their free will and consent. It determines the nature, extent and character of their relationship with one another in respect of matters of mutual concern and then controls that relationship. It regulates their conduct in daily life and inter-alia serves as legal charter on how they have to run their affairs. In this view of the matter, all laws concerning primary education, basic health, nutrition, population planning, rural water supply, sanitation, agriculture, commerce, industry, production, social welfare etal, are the results of a Social Contract. You might say that they are themselves social contracts. By the same token, the Constitution which gives a system of government is also a social contract.
10. Like it is there in a legal contract between two persons, the element of coincidence of minds, reciprocity and free consent is also the ground norm of asocial contract. By lending such consent, they create certain rights and corresponding obligations for themselves. They give up a part of their inherent freedom, with the imposition of certain restrictions on their behaviour. This surrender of certain imperatives of the 'state of nature', created the rule of civil morality. Reference to Hobbes, Locke and Rousseu is in point to underpin the claim that relationship of human beings is basically contractual even in the absence of a formal agreement. They are relevant to the extent of tracing the origin of human behaviour.
11. Therefore, in the light of what exactly is conveyed by the phrase 'social contract', it is not difficult to understand what Ms. Benazir Bhutto held out when she spoke of a 'New Social Contract' in her election speeches. It implied a promise to bring about new laws in certain important areas and certain structural changes in the system of government for amelioration, welfare, and general health of the masses. The bonafides of what she intended to carry out, if put in power, should not be viewed with scepticism. She has constituted a Task Force to deliberate and formulate recommendations on the subject. Although the report of the Task Force has already seen the light, the merits and demerits of the promised 'New Social Contract' will be scrutinized after it is carried into effect.
CHAUDHRY HASAN NAWAZ
1. During India’s Independence Day Celebrations, two things caught the sight:
The first was that the India’s Prime Minister came to the Red Fort to preside over the Flag hoisting ceremony in a small and ugly looking indigenous car, and that others of lesser consequence in company, were in occupation of similar cars.
2. The egality in the matter of cars, inter alia, signified that the emphasis was not on form but substance. Everybody came to the function in the same type of car, but the Prime Minister distinguished himself by hoisting the national flag and then making that address to the nation. He became prominent and was identified with reference to his functions as Prime Minister and not the car he came by along with others of lower station; and it can be anybody’s guess that he must have put his heart and soul in his speech to demonstrate his efficiency and eloquence, in an attempt to neutralize the effect of coming in an ordinary car. Given the same kind of facility and put into a similar situation, everybody will produce his best to be more efficacious than others similarly placed, to show his excellence. This is the avowed dictate of human nature. It conveyed a lesson to the nation that the emphasis is on competency and efficiency, whatever the outward appearance.
3. Further, the use of that car was clearly indicative of the fact that the Prime Minister is not suffering from any complex. It was suggestive of a consciousness that he is known by the office he is holding and that quality of the car in his use is altogether an immaterial circumstance. There was a visible nonchalance to this aspect of the matter.
4. Then, it was demonstrative of the fact that because of financial stringency they could not deliver themselves up to the luxury of big imported cars. It involved a tacit acknowledgment of the reality that their economy is too fragile and unsound to allow the wastage of foreign exchange on the import of big and glamorous cars at public expense. Incidentally, it implied a message to the nation that it is the demand of stringent circumstances that they must live within their means and save money and foreign exchange to be diverted to productive purposes.
5. What with the fact that the use of these cars by the Prime Minister and others manifested a pride in the home made cars. It not only encouraged but positively invited others to use these cars; which is bound to augment and flourish the local industry, resulting amongst other things, in availability of more jobs and prosperity. It involved an implicit exponence of a difference of attitude, outlook, values and priority.
6. On the other hand, we here in Pakistan are suffering from Toyota culture for the last so many years. The emphasis is on ostentatious living. The substance has been relegated to the secondary position and so much importance is being attached to outward appearance. The Bureaucrats and others concerned, exceptions aside, are clamouring for bigger cars and still bigger furnished houses, all at public expense.
7. Values have undergone a radical change. Hard work, integrity, dedication, ingenuity, and efficiency are no longer symbolic of the worth and importance of a public servant. His status is known by the car he possesses and the house he occupies. Its obvious result is that he makes no attempt to be efficacious, or for that matter, honest, industrious, dedicated—qualities which are so badly needed to put the country on the road to progress and prosperity. In the wake of this Toyota culture have come all the ills, like extravagance, hypocrisy, indolence and incompetency, which our neighbours at least appear to have been striving to avoid by the use of simple home made cars.
8. It is not possible to comprehend why the use of a big car at public expense is indispensable. Can’t we survive by using smaller cars with lesser consumption of fuel, so as to save our resources to be diverted to the construction of schools, roads and hospitals, which are direly needed for our enlightenment and welfare. To say nothing of the considerations, such as complex of inferiority; of development of local car manufacturing industry resulting in availability of more jobs; of candid admission of the reality that our financial circumstances are too stringent to allow us the luxury of big imported cars and of the fact that we would be sparing ourselves of the ordeal of a mad, purposeless and frivolous race in getting the better of others in a false and prodigal living.
9. In Juneju’s time, it was decided to replace bigger cars of 1600 cc and 1300 cc by smaller 1000 cc imported and 800 cc Suzuki Cars. The ceiling of petrol consumption in their cars by the Additional Secretaries entitled to free use of official transport and that of Secretaries was also accordingly revised and brought down to a considerable extent. The avowed purpose to be served was economy in expenditure of public funds and control in the use of government transport.
10. But this policy decision suffered from certain intrinsic defects. About the Federal Ministers it was decided that they will be provided with 1300 cc cars. An allowance for the use of such cars by the Ministers was probably not as much with reference to their status, as on account of the nature of their duties and functions. Whether the use of bigger cars of 1300 cc in their case was justified, is debatable. However, the fact remains that an exception was made, if it be conceded that even the Ministers could do with smaller cars. Then, this decision was not made to apply to the Judges of the superior courts, even though the excuse regarding nature of duties was not available in their cases. The details of what weighed with the government in making this exception are irrelevant. What, however, is mentionable, was the fact that the honourable Judges remained in use of 1600 cc and 1300 cc imported cars.
11. Now if the main goal to be achieved was economy in expenditure, as people were given to understand, there was absolutely no reason whatever why the decision should not have been made to apply to everybody concerned. We were knee deep in the midst of a financial crisis which even justified a declaration of emergency, in so far as the adoption of economy measures was concerned. The situation being what it was, the use of 1000 cc cars by all concerned would not have made the heavens fall, more so when it would still have been possible to recognize them by the functions they performed and the powers they exercised.
12. This aspect of the matter apart, this could, under the circumstances, be hardly called a policy decision, for the simple reason that such decisions do not admit an exception. In addition, in so far as my humble opinion goes, no provision can earn the nomenclature ‘rule’ or ‘law’ unless it is uniform in its application. It has to be all embracing to be entitled to go by this name.
13. At least during the last twenty years, those at the helm of affairs, have been crying themselves hoarse, in an attempt to make the nation believe that our economy is in the doldrums; that we are in the quagmire of a financial crisis of the worst order and that foreign loans are so enormous that our meager resources cannot sustain even the payment of interest. They have all along been telling us that we have got to be as frugal as possible and that extravagance may lead us even to a holocaust. If this is the case, as it certainly is, then why in the name of God we cannot make a start for economy drive as to avoid unnecessary expenditure of public money and so precious foreign exchange on import of big cars, on redundant and self promoting lunches, ‘Asranas’ and dinners and on frivolous unnecessary official tours within and without the country; which is being incurred almost eversince the inception of Pakistan and which amounts to corruption against masses.
14. If survival is sincerely intended, why can’t we get rid of this post budget lunches and dinners syndrome. Try as you might, it is not possible to appreciate why the passage of a budget has to be celebrated at public expense by those who are committed to do it in the performance of their functions as members of the Assemblies. Nor, for that matter, it is possible to understand why the passage of a budget should justify a festivity and that too after so much pain having been taken during the budget session to convince the public that our resources are not enough to sustain the burden of our commitments.
15. The other thing which attracted notice during the course of ceremony was that few of the chairs meant for the guests were empty and that the Television camera taking in the ceremony did not make an exception in the case of those chairs, so that they were exposed to public view, as much as the other spectacle. This was equally a significant situation. Those in charge must not have bothered to get those seats occupied by others before the arrival of the Prime Minister, to cause an impression that the attendance was full.
16. The sight was impressive in that it reflected the truth, a situation which obtained in reality. There was no concealment and the people were made to see the things as they existed. No misrepresentation was made and there was no hypocrisy. If it be taken to have amounted to something amiss, the obvious advantage was that no misconception was caused and those concerned were enabled to make their own assessment.
17. The lesson is that it is our moral duty to reveal the correct situation and the true shape of things to those who have been entrusted with the job of running the country; those who have to make assessments on the basis of facts and the situations presented to them. The importance of true representation lies in the fact that those assessments in turn have to constitute a basis for policy decisions, so vital for statecraft. Therefore, it hardly requires an emphasis that misrepresentation or concealment of facts can lead to disastrous results.
18. I remember an instance of a press conference having been ‘arranged’ by the district administration on the occasion of a visit of the head of State, during a martial law regime. The questions with easy answers were allocated to different persons who were then made to sit at different places in the congregation to cause an impression as if it was a genuine affair. By this contrivance, the guest of honour was made to go with the euphoria of a successful press conference. It is difficult to understand why he should not have been made to face questions freely asked by the pressmen. Even if an embarrassment would have been caused in the bargain, it could stand in good stead by enabling him to prepare for the next occasion. There is no reason why he should have been kept in the dark.
19. Although it is certainly not so in every case, this kind of thing may some times come about, when those in charge are not there in their own right. The result is that they do things which they are ordinarily not supposed to do, in a bid to earn the pleasure of their superiors. They are sycophants who are not conversant with the requirements of their own job. They know the things, which are alien to their duties and the positions they hold. Their ostensible success obliges others to attain the same qualities for a successful career. In this manner, the whole system is being subjected to perversion.
20. Those at the helm of affairs are equally responsible for exposing the correct state of affairs to public view, for misrepresentation in this case amounts to fraud on the nation. Almost ever since the time of its birth, the malady of our country is that people are being made to live on hallucinations. They are made to believe a thing which does not exist; and something which in fact is there, is not shown. The result is that the areas requiring their attention for a critical appraisal are camouflaged, leaving no chance for building up the public opinion on correct lines, so essential and vital for development of healthy democratic system of Government and ultimate amelioration. Therefore, bad is becoming worse and worse is fast turning into worst and the chances of getting out of this mess are becoming remote and obscure with the passage of each day.
21. The Great Decade of Late President Muhammad Ayub Khan’s era may be mentioned as a case in point. The 28th of October 1967 saw the beginning of tenth year of his regime. It was decided to celebrate it as a Great Decade of Development and Reforms. The period of rejoicing was to continue till October 1968. In his book “From Crisis to Crisis” Herbert Feldman described the affair in the following words:
“While all this trumpeting was in progress, other less agreeable things were in train. I have referred elsewhere to the impact of steadily rising prices upon the life of the people. This process continued during 1968 when the Great Decade campaign was promoting the claim that Pakistan had made great economic progress. It had long been apparent that the steady advance in the cost of ordinary consumer goods, particularly foods, was bearing with ever-increasing weight on the ordinary man’s budget and was a source of much discontent. Nor was there the least indication that this inexorably rising graph would ever change direction.”
“Thus, whatever the quality of the Great Decade campaign, whatever the objective truth on which it relied, there was plenty to diminish its impact. There were long nurtured discontents springing from genuine public grievance born of the conduct of a Bureaucracy, intoxicated with the exercise of more power than it had ever known; from the growing sense, especially among the educated classes, of political exclusion; and from the brazen parade of relations and favourites who made money and flouted the law. None of these could be dispelled by the sorcery of an advertising campaign which had rather unimaginatively declaimed the virtues and achievements of President Ayub Khan.”……………………………….
“The Great Decade ended with a widely felt sense of optimism among Ayub Khan’s supporters, but for careful observers there were other portents not quite so satisfactory. Two days before the Great Decade came to its close, it was announced that on 15th November, statutory sugar rationing would be introduced throughout West Pakistan”
22. An agitation was set afoot in the wake of these celebrations. It was evidently the result of subreption and feigning a situation of all well, which in reality was not there. The President was forced to realize that he could no longer withstand the pressure of popular upsurge and that he would have to come to terms with the people, now openly in revolt against his system and method of Government. Eventually , on the 25th of March 1969, he abdicated and gave up the reins of the Government to General Yahya Khan in a letter which said: “I am left with no option but to step aside and leave it to the Defence Forces of Pakistan, which today represent the only effective and legal instrument to take over full control of the affairs of the country.” In consequence, Martial Law was declared on the evening of that day.
23. Let us learn from our mistakes made in the past. We are in dire need to bring about a total, fundamental change in our outlook and attitudes. Let us re-arrange them and put our house in order. Let us address ourselves, with all earnestness, to the ailments arising out of pretentious and extravagant living, which are eroding the very foundations of the State, before it is too late in the day and people raise their arms in supplication to God, which is a euphemism for revolution.
SEPARATE AND INDEPENDENT JUDICIARY
CHAUDHRY HASAN NAWAZ
Quite a few things deserve our attention in the context of talk about going into the next century as a civilized and progressive society, to be able to play our part effectively in the comity of nations. Our foremost requirement is the proper fixation of our priorities which are now in shambles. Apart from education, which word is meant to be understood in its wider sense as to include elementary, adult and all kinds of education, our next priority should be fair and speedy administration of justice, without which it would not be possible to infuse the kind of health into an otherwise ailing body politic, necessary for a claim to the status of a fully developed nation.
2. This goal of fair and speedy administration of justice cannot possibly be achieved without an independent and separate judiciary. The essence of independence is that in the discharge of his functions, a judge should reach conclusions on the basis of analytical examination of the record before him, which he will accomplish by virtue of his understanding, knowledge of law, training and appreciation of values, and that he is not led to his decisions by any ulterior consideration. This independence is demonstrated in his refusal to yield to any external pressure for conclusions, different from those justified by the material before him and evaluation of the law.
3. Our system of administration of criminal justice is mainly provided by the Code of Criminal Procedure, under which we have two kinds of Courts to deal with criminal cases. In the first category are the court of Sessions. Each province of the country consists of various Sessions Divisions and for each such Division a Court of Sessions is established by the Provincial Government with the appointment of a Session Judge for the Court. The Provincial Government is also authorized to appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more of such courts. These courts are subordinate to the High Court of a province and they deal with all such cases of heinous nature where the punishment is either death or imprisonment of life. This will suggest that the courts of sessions is the highest court of criminal jurisdiction in a district. In exercise of their original jurisdiction, the judges of these courts deal primarily with cases of culpable homicide.
4. I should say that the judges of these courts are independent in every respect, because of their subordination to the High Court, which is the highest judicial authority in a province. As the scheme goes, they drive the authority to deal with the cases from the Code and they are not amenable to pressure of any kind from the executive authority.
5. But even here, there are a few things which can have a tendency to impair the independence of these judges. One of those is the inadequacy of salaries paid to them. The take home pay of a judge is seldom commensurate with his status, as would enable him to ensure comfortable maintenance of his family. Vast majority of these judges are without essential facility of a private library. They are compelled to live and work under the constant pressure of their overdrafts and spiral inflation, Mr. Warran Burger, the Chief Justice of United States of America once observed that unless the sa1aries of judges are made inflation proof, the constraints against alteration to their disadvantage may well be without meaning. The stock answer of the executive as to non-availability of funds is manifestly untenable and ignores the realities of situation. Another answer is the tendency to compare judicial salaries with those attached to the senior posts of the Government. The danger here lies in a purported comparison between incomparable. A Judiciary Act is required to be passed, which may ask the judges to fix their own salaries and allowances. The preliminary objective of trying to arrive at proper level of remuneration is to remove any ground for suspicion that the guardians of our liberties are dependent upon the government.
6. Another area in which the independence of judiciary has been threatened is where the judges are called upon to resolve problems, dealing with the fundamental rights and freedoms provided in the Constitution, which gives rise to a conflict between the judiciary and the executive. The matter can be settled if the judiciary are vested under the Constitution with the final responsibility of determining the propriety of executive and legislative actions.
7. Yet another area for damage to judicial independence is where the judges, at the government request, conduct inquiries into matters highly charged with political issues and considerations. This practice is justified on the ground of necessity to impart an air of impartiality and objectivity to the enquiry. But its consequences are not sometimes conducive to the functioning of an independent judicial system. Apart from wastage of time, the judges are made to involve themselves in issues having no rapport with the administration of justice and mostly such as are so controversial as to invite public criticism.
8. Another important aspect is provided by over-emphasis in the selection of judges from the bar. On paper, the requirement is that lawyers of exceptional capability should decorate the chair. It is usually maintained in support of this practice, that it is required to attract talent to the higher judicial forums. I feel that the Executive's prerogative to recruit judges at all levels can have its contribution in impairing the independence of judiciary. There is no reason why people should not be brought to the Bench by means of a competitive examination held by independent Public Services Commissions. In addition, it goes without saying that selection of judges from the bar deprives the aspiring young graduates from seeking recruitment to responsible judicial posts by competitive examination. The argument with regard to attraction of talent is evidently fallacious and unsound, for talented law graduates can also be available by means of competitive examination, especially if it be made known that there will be no selection from the bar. This apart, the prevalent practice of direct recruitment from the Bar, is likely to be abused in encouragement of favouritism, which is in addition to the fact that it negates the principle of equal opportunity for selection.
9. In the second category we have the courts of Magistrates in the Districts which, under the scheme of things, perform executive as well as judicial functions and are under the control of the Provincial Governments through Districts Magistrates. This amalgamation of executive as also judicial functions in one person is the root cause of many ills in our system of administration of criminal justice. Apart from the fact that their engagement with executive duties leaves very little time to them for performance of judicial functions, their independence in dealing with the judicial cases is also adversely affected on account of their subordination to the executive authorities. Further, I would say that the nature of both the duties is so self-contradictory that they cannot go in one person. The performance of judicial functions requires a mental aptitude, which can by no means be possible in the case of a person at the same time entrusted with the performance of executive duties. The consciousness that they are subordinate to the executive authority creates a state of mind which cannot be viable for a judicial aptitude. It hardly requires an emphasis that the priorities of an executive magistrate are basically different from those of a person wedded with judicial functions. Therefore, fair dispensation of criminal justice can never be possible unless the judiciary is separated from the executive, which may hopefully come about in the very near future in view of the Supreme Court’s judgment, directing the Government to fulfill its constitutional obligation in that regard.
ONE WHO CAN BE APPOINTED AS GOVERNOR
CHAUDHRY HASAN NAWAZ
Yesternoon during the course of a discussion on who can be appointed as Governor of a Province, a question arose whether a person after once having been appointed as such, is eligible for reappointment in the same capacity for another term. One view was that he stands disqualified for such appointment, on account of having served in that capacity within a period of two years. Since the exponents of this view were seriously in contention and adamant to take the opposite view, examination of the question will be worth its while.
2. Reliance in support was placed by them on Article 101 (2) of the Constitution which provides that a person shall not be appointed a Governor unless he is qualified to be elected as a member of the National Assembly and is not less than thirty five years of age.
3. Reference was then made to Article 63(1) (k) which lays down that a person shall be disqualified from being elected or chosen as, and from being, a member of the Parliament if he has been in the Service of Pakistan or of any Statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest unless a period of two years has elapsed since he ceased to be in such service.
4. From their point of view, the provisions of Article 260 are also in point, in so far as it defines the expression "Service of Pakistan". It means any Service, post or office in connection with the affairs of the Federation or of a Province, and includes an All Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis-i-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Attorney General, Advocate General, Parliamentary Secretary or Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister or member of a House or a Provincial Assembly.
5. In the context of these provisions, while pointing out that service as Governor being a Service of Pakistan within the constitutional definition of this expression, the argument was that after once having served as Governor within two years, a person became disqualified under Article 63(1)(k) of the Constitution from being elected or chosen as, and from being a member of the Parliament and that this disability being 'au fond', the provisions of Article 101 (2) constitute a bar, square and substantial, in the way of his fresh appointment as Governor, evidently because he was no longer qualified to be elected as a member of the National Assembly.
6. I am in respectful disagreement. The opposite view, namely that he is not so disqualified, is sound, even though it may seemingly be paradoxical. For a correct exposition of the Legislature's intention, the provisions of Articles 63(1)(k) and 101 (2) have to be juxtaposed with those of Article 62 of the Constitution, which speak of the qualifications for membership of the Parliament. On the basis of a closer application, what I maintain is that Article 101 (2) has got reference to the provisions of Article 62 which deals with qualifications and not to those of Article 63 of the Constitution which are in respect of disqualifications.
7. Article 101(2) says that a person shall not be appointed a Governor unless he is qualified to be elected as a member of the National assembly. These qualifications find place in Article 62 which lays down as to what a person has to be or should possess, for being eligible to be elected or chosen as a member of the Parliament. The difference between Article 62 and 63 is that one is in respect of positive qualifications whereas the other pertains to disqualifications of a person from being elected or chosen as a member of the National Assembly. Distinction between these articles is quite clear and tangible. They were placed on the Statute Book to convey different messages and serve different purposes. The expression "a person shall not be qualified to be elected or chosen as a member of the Parliament unless" used in Article 62 in synonymous with and would serve the same purpose as "a person shall be qualified to be elected or chosen as a member of the Parliament only if" he is in possession of the qualifications mentioned there. There is palpable distinction between "shall not be qualified" of Article 62 and "shall be disqualified" of Article 63 of the Constitution. One is in respect of positive qualification whereas the other involves negation and is prohibitory in character.
8. And there should absolutely be no doubt about the proposition that, to be eligible for appointment as a Governor, all what is required by a person in terms of article 101 (2) is that he should be qualified to be member of the National Assembly. For a search of those qualifications, we will have to have recourse not to the provisions of Article 63 but to those of Article 62 which inter alia speaks of his being a citizen of Pakistan and of good character, sagacious, righteous, non-prolifigate, honest and amin.
9. We might as well examine the matter from another aspect. If the argument in respect of the other view be taken as sound, the result will be rather strange. A person who was qualified, to start with, under Article 101 (2) to be appointed as Governor on the strength of being qualified to be elected or chosen as a member of the Parliament, incurred a disqualification for being so elected or chosen under Article 63(1)(k) on account of having remained in Service of Pakistan as Governor. The result, if the argument is accepted as sound, would be that he can neither be elected or chosen as a member, nor he can be appointed as Governor. If it is taken still further to its logical conclusion, he cannot be elected as a member because he has once been a Governor and he cannot be appointed as Governor because of having already once been so within two years. This can certainly not be the Legislature's intention. Provisions of Article 63(1)(k) can by no means be allowed to cut both ways. If a person incurs a disqualification from being a member by reason of having been a Governor, there is no reason why this disqualification should be allowed to stand in the way of his reappointment in the same capacity.
10. Yet another aspect is worth notice. As already pointed out before, Articles 62 and 63 have different import, connotation and were embodied in the Constitution to serve different purposes; which, amongst other things, is evident from the fact that they have been enacted separately. It suggests that a person can be qualified to be elected as member of the Parliament under Article 62 and disqualified from being so elected or chosen within the meaning of Article 63, all at the same time. If this had not been the Legislature's intention, the draftsman could have put all the things of these two articles in one article and also have had the advantage of avoiding an adverse criticism that enactment of two separate articles was the result of his neurotic fuss. I can explain my point by giving an illustration of how the provisions of Article 63(1 )(k) could be incorporated into those of Article 62 of the Constitution.
11. This amalgamation would have given us the following reading of Article 62: A person shall be qualified to be elected or chosen as a member of parliament only if, (a) he is a citizen of Pakistan; and (b) he has not been in the Service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, within two years of the time at which he files his nomination papers for election as member of the Parliament.
12. What with Articles 62 and 63, the Legislature's intention can be gathered from the provisions of Article 101 (2) itself. It says that "a person shall not be appointed a Governor unless he is qualified to be elected as a member of the National Assembly. If it was meant to have nexus with both Articles 62 and 63, it would have been made to say that a person shall not be appointed a Governor, unless he is qualified under Article 62 and not disqualified under Article 63 to be elected as member of the National Assembly.
13. In this view of the matter, the correct constitutional position is that provisions of Article 63(1)(k) are irrelevant in so far as the appointment of a Governor is concerned and a person, though disqualified from being elected or chosen as a member of the Parliament under this clause, will nonetheless be qualified for appointment as Governor even within two years of the conclusion of his previous service as such, without involving either any contradiction in terms or offence against those provisions. The argument in support of the opposite view appears to be rather fallacious and its exponents are reading something in the relevant provisions of the Constitution which in fact is not there.
THE ROLE OF CRIME INVESTIGATION IN SECURING EFFECTIVE, EFFICIENT AND FAIR ADMINISTRATION OF CRIMINAL JUSTICE
CHAUDHRY HASAN NAWAZ
The address of this article is to the current problems in securing effective, efficient and fair administration of criminal justice; which, amongst other things, is in direct acknowledgement of the consideration that the solution of those problems is necessary to bring about such healthy social conditions, as would be conducive to the achievement of multi directional progress, relevant for the spiritual elevation of mankind. We must contrive a system of criminal administration of justice, as would ensure a speedy relief from such cases to people, so that they may be able to play their role in other constructive fields as healthy members of the society. I regard it a matter of great significance and importance that those involved in such cases as parties, should be saved from wasting time and energy and enabled to utilize them in pursuance of their avocations, bound to result in overall national prosperity.
2. This is also in acknowledgement of the fact that the nature of crime has undergone a radical change on account of socio-economic development, especially in the wake of rapid industrialization and consequentional urbanization, such has been exerting a greater strain on our system of criminal justice. The crime situation is deteriorating both in terms of quantum and the forms and dimensions in which it is manifesting. Without derogating any thing from the importance of other measures to improve the situation, it must be admitted that improvement in the quality of services for the administration of criminal justice, will play a vital role in ameliorating the situation.
3. Administration of criminal justice involves three stages which are investigation, prosecution and judgment. I have had the advantage of presiding over subordinate criminal courts as a Magistrate and then appellate criminal courts as a Sessions Judge for a number of years. My experience is that the basic malady giving rise to all kinds of problems including growth in the commission of crime, is caused by delay in the disposal of criminal cases. Therefore, we must strive for ensuring such measures as would result in speedy dispensation of criminal justice. This can be possible only if substantial improvements are made in the methods of investigation and trial.
4. Investigation in our country belongs exclusively to the police department which was set up long before independence by the erstwhile rulers of the country, mainly for executive administration, with a special emphasis on law and order situation. In addition, their main duty is to prevent the commission of offences, which we call under the Code of our Criminal Procedure as the preventive police jurisdiction. In exercise of this jurisdiction, the police department are mainly responsible to prevent the commission of crime by having recourse to detention and other such measures. Even a perfunctory application to the relevant provisions of the Code would justify a surmise that wide powers have been given to them for putting the preventive measures into effect.
5. This apart, the police department assists the Magistrates in exercise of their magisterial preventive jurisdiction under the Code. In their capacity as executive Magistrates they deal with the security cases, unlawful assemblies, public nuisances and disputes with regard to immovable property. It is through the police agency that they exercise their executive powers to ensure maintenance of law and order within the local limits of their jurisdiction. In addition, it is also the business of the police agency to serve processes on the witnesses issued by the courts in criminal cases. Execution of warrants of search and arrest is also one of their duties.
6. But this is not all. In addition to their multifarious duties emanating from the Code, those responsible for investigation of cases, are frequently called upon to perform functions in connection with the offences under numerous local laws. We have a Penal Code, but there are various other enactments, under which certain omissions and commissions have been declared by the legislature as offences. No separate machinery having been devised for those offences, the police department have been entrusted with the task of dealing with them, which occupies much of their time.
7. The same department is responsible for investigation under different provisions of the Code of Criminal Procedure after the commission of offences; whence it necessarily follows that amongst other more important responsibilities, they just happen to be the investigators; which is more so because of radical change in the priorities of those who are in-charge of the dispensation of executive authority. Therefore, I would venture to record the undesirable accumulation of responsibilities requiring different qualities, methods and approach, in one person as our main and basic problem. Evidently, I do not consider it necessary to emphasize that performance of these different functions requires absolutely different qualities and mental aptitudes; to say nothing of the fact that engagement of police officers with law and order situation and the exercise of preventive jurisdiction, leaves very little time for devotion to the investigation of cases. Vast majority of police stations are under-staffed and the occupation of police officers in connection with law and order situation and various other connected duties adversely affects the investigation of crime business, which directly results in mal-functioning of the agency, entrusted with the most important business of tracing and apprehending an accused and then collecting satisfactory evidence in support of his guilt, before that case is taken to a dispensary of justice.
8. Investigation is an art which requires the employment of a highly trained and educated agency, such as would have the element of intuition or felicity of inspiration in the choice of methods to be applied to the treatment of a case. If it be regarded, even though by fiction, a complete science with general principles and special theorems, the investigator will have to operate in harmony with certain rules for the solution of a case. It is necessary for the success of an investigation that the police officer engaged in this business should be well versed in this art, which can hardly be possible if he is called upon to perform other duties like maintenance of law and order and the prevention of crime.
9. The main function of an Investigation Officer is the collection of facts, to identify and locate the offenders and to procure evidence in sup