OF SYSTEMS AND SITUATIONS

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.

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.

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.

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 28^th 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 15^th 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 25^th 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.

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.

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

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 support of their guilt. He can achieve the desired results by employing the methods of information, interrogation and instrumentation, for which a great deal of perseverance is required. He must also have the ability and intelligence to acquire information easily to use it to his advantage. A closer study of native human behaviour can be of lot of help to him in arriving at the correct conclusion, by thinking and perceiving through situations, all the more necessary in view of the ingenuity of recent offender. He must know what prompts people to act as they do in a particular way in a given situation.

10 Further, there is hardly any substitute for an honest mind in the sense of personal integrity and incorruptibility. During the course of investigation, an Investigator is allured to all kinds of temptations which may be physical, emotional and natural. In the present day social atmosphere, where he is called upon to function as an Investigator, it is extremely difficult to avoid a temptation for service of his own interests; considering that he is in a position to show favour to the parties concerned in the performance of his duties; in certain situations by merely failing to do a particular thing, which is to say the least. The main feature of this integrity is a sincere desire to arrive at a correct conclusion.

11. In a system such as ours, where a investigator is charged with multifarious duties of different natures, it is extremely difficult to make him the repository of aforesaid qualifications necessary for the success of an investigation. An investigator requires a propensity of mind, which is impossible to achieve in the case of a police officer who is called upon to perform duties in connection with the maintenance of law and order and prevention of crime. It exposes him to weaknesses which are fatal for effective and successful practice of the art of investigation. Therefore, in so far as we are concerned, the system of investigation requires a total reformation for substantial contribution towards the administration of criminal justice.

12. We require a segregation of the investigating agency from all other agencies connected with various other tasks; which we can accomplish by ensuring different methods of recruitment and by providing the members of this agency with training facilities in recognized and efficient institutions. We must also see that the members of investigating agency are well paid, so that the possibilities of temptation to monetary gains may be possibly minimized. It is also necessary to ensure for them a proper place in our social structure, so that they shear themselves off the complex of inferiority, which is frequently the main cause of incompetency, lack of integrity, obtuseness and mal-practices.

13. This was the problem within the investigating agency, but there are other numerous problems, which are without. They come about on account of those whom the investigator is called upon to deal with during the performance of his functions. The nature of these difficulties depends largely upon and is necessarily wedded with the nature of different offences. It is not infrequent that the investigator would come across people who are interested in misleading him to wrong and perverse conclusions and for the achievement of this end, they do not hesitate to apply every available method, including offers of illegal gratification. Further, there are offences against human body as also property where attempts are made, sometimes successfully, to destroy all possible evidence leading towards the identification and arrest of the criminals. In such situations, the job of an investigator becomes all the more difficult and he cannot successfully exonerate himself of his responsibility without the employment of a special skill.

14. Further, under the prevalent social conditions, it has become extremely difficult to collect evidence in support of the commission of a crime, as can stand the test of a trial. The problem is that nobody is prepared to offer himself as a witness, which is partly because of fear from the accused and partly because of either the system of trial or the typical conditions which prolong a litigation, entailing wastage of time, a witness can ill afford under the present circumstances of all embracing socio-economic progress. Fear of the accused mostly comes from the valid apprehension that the case will fail and the culprit will go free to be able to deal with the witnesses. I realize that it is not possible for every case to succeed in a court of law because of various circumstances. Whatever be its reasons, the acquittals nevertheless do have intimidating effect. Therefore, what we do require is some change in the system of administration of criminal justice, which will guarantee speedy and fair disposal of criminal cases. I am conscious of the fact that it may not be possible to achieve all the desired results, but what is important is to achieve as much as possible, and as far as I am concerned, even serious consideration and genuine efforts for amelioration will be quite enough under the circumstances, for this will establish not only an awareness of the worsening conditions, but also demonstrate the will to rise to the occasion and strive for improvements.

15. There are certain other problems for an investigator in our country which are caused by certain provisions of the Evidence Act. Amongst other things it provides that statements made to a police officer during investigation are not admissible in evidence; unless they lead to a recovery. The result of this provision is that most of the investigators try to provide the cases with recoveries even where it is not possible. They procure false evidence by planting recoveries, thereby imparting a colour of falsehood to the entire case which may otherwise be sound.

16. There are cases where direct evidence is not available and an investigator has to rely upon circumstantial evidence in support of the prosecution. Here he will be justified in insisting that the recoveries should be effected. As for instance, in a case of culpable homicide he will have to rely upon circumstantial evidence like recovery of weapon used in the commission of the crime and other circumstantial evidence in corroboration. He has no other alternative, but be content on such evidence and then depend upon proper and successful presentation of the case before the court. But most of the investigators have a tendency for going in search of circumstantial evidence even in those cases where direct evidence is available. As a trial judge, I have had the occasion to see that by procuring circumstantial evidence in such cases, where none is actual fact is available, they spoil the entire case; for I have no doubt in my mind that a case with direct evidence available, will float on the surface or sink down to the bottom with the success or failure of the direct evidence, and the one available from circumstances would not make any difference. This, of course can be avoided by modification in the relevant rules governing the essentials of a successful investigation.

17. In our legal system, the First Information Report plays a very important role in the out come of a criminal case, not necessarily because of its evidentiary value, but because of the fact that it is first version of how the crime was committed. It fixes a direction for the course of investigation. It is a very basic document, especially in cases of culpable homicide. It frequently happens that these reports are without the support of logic. Some of the reports are so unsound that they are themselves judgments of acquittal. Therefore, it requires a special skill in the investigator to be able to record a plausible report of the commission of crime.

18. It seems rather odd that I should say so, because the First Information Report has to be a religious account of what is stated by the informant. But it must be admitted, though not without a feeling of contrition, that it is not possible in some cases. A closer and meticulous study of the local state of affairs, is quite essential in deciding how should the first report be recorded. It is extremely difficult to lose sight of the fact that those who in fact witness the commission of a crime, are usually unwilling to offer themselves as witnesses and the investigator cannot force them to testify at the trial, without inviting the risk of spoiling his case. What happens in some cases is that the genuine witnesses are interested in favour of the accused and the investigator has to rely upon the statements of others to bring home the guilt of an accused. I am afraid I should not be misunderstood and taken to advocate the propriety of padding and procuring of false evidence by the investigator. I have only pointed out an inevitable situation which requires thoughtful consideration. Whatever the merits of this assessment, it must be listed as one of the problems usually faced by the investigator.

19. Then, in cases involving offenses against human body, the usual tendency to rope in even the innocent persons, presents another serious problem, which requires vigilance and circumspection of a fairly high degree on the part of an investigator. The First Information Report in such cases, is only a collection of gross falsehood. False evidence is then offered to support a false story. If accepted, the edifice of the prosecution case is built on flimsy and infirm evidence, and falls to the ground at the trial, thereby sometimes resulting in the acquittal of even those who were the real perpetrators of crime. It is, therefore, the foremost duty of the investigator to see that no innocent person is made to face the trial.

20. There is always a motive in cases of culpable homicide amounting to murder, which is because it is always the result of a concerted attack. But sometimes it is difficult to discover that motive. In a situation like that, an inexperienced and untrained investigator often spoils the case by providing it with false motive. It should be left alone, for proof of motive is not always necessary for a conviction.

21. In cases of culpable homicide not amounting to murder, an inefficient investigator sometimes provides them with motive, where non infact existed, in his eagerness to make it a case of deliberate murder, to procure capital punishment for the defendant. But by doing so, he makes it inherently unsound, so that it cannot stand the test of a trial. It must, therefore, be avoided in the interests of justice.

22. Yet another problem for an investigator arises out of the fact that after having traced and apprehended the accused and collected necessary evidence in support, he has got nothing to do with the prosecution of the case before the court; which job is entrusted in our country to the members of prosecution agency, which is quite apart from that charged with the responsibility of investigation. What frequently happens is that a prosecutor has got his own eccentricities for evaluating the evidence collected in support of a case. This apart, he has his own way of presenting a case before the court, which also sometimes results in unsuccessful trial of the defendant. It can be avoided by devising a system of closer co-ordination between prosecutor and the investigating officer during the investigation of a case; which I am obliged to say because in view of the present system of trial in most of the Asian countries, it is not probably possible to do away with the services of a skillful prosecutor. In the absence of a highly trained and competent investigation agency, the prosecutor should have unfettered powers to check the police file at any stage of the investigation and he too should make himself available for consultation to the investigator.

23. Last, but by no means the least, it must be emphasized that a proper investigation is closely linked with the ethics of the people expected to be conscious of the civil rights and the rule of law. So long as this standard is not achieved, the ultimate burden shall remain with the judiciary to find out the truth from a heap of exaggerations.

(a) We should have a agency exclusively concerned with the job of investigation. The investigating officers should not be called upon to perform other duties, which require a different mental aptitude and qualities.

(b) Efforts should be made to set up institutions for specialized training of investigation officers. We must procure persons of special skill and integrity to deal with the investigation.

(c) Their salaries should be such as would be sufficient to sustain the expenditure required for a comfortable and honourable life, keeping in view the present day inflation, it is of great importance to ensure that they are not exposed to temptations for personal monetary gains.

(d) They should be provided with reasonable accommodation for the members of the families.

Article 51 of the 1956 Constitution provided that there shall be atleast two sessions of the National Assembly every year, and six months shall not intervene between the last sitting of the Assembly in one session and its first sitting in the next session. It was almost on the pattern of Article 85 of the Indian Constitution, which says that the President shall, from time to time, summon each House of the Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.

2. Article 54(2) of the 1973 Constitution made an improvement by providing that there shall be at least two sessions of the National Assembly every year and not more than one hundred and twenty days shall intervene between the last sitting of the Assembly in one session and the date appointed for its first sitting in the next session. The addition of a proviso made it still better, in that it placed the Assembly under a constitutional obligation to meet at least for one hundred and thirty working days each year.

3. These provisions were further amended by the late General Muhammad Zia-ul-Haq with the promulgation of “The Revival of the Constitution of 1973 Order 1985”. It laid down that there shall be three, instead of two, sessions of the National Assembly every year and that it shall meet, for not less than one hundred and sixty working days, instead of one hundred and thirty working days, in each year. This period was again reduced to one hundred and thirty working days by section 2 of the Constitution (Tenth Amendment) Act of 1987.

4. However, what we are now concerned with is the “explanation” added to Article 54(2) by the Constitution (Fourth Amendment) Act 1975. It says that “in this clause, ‘working days’ includes any day on which there is a joint sitting and any period, not exceeding two days, for which the National Assembly is adjourned”.

5. No excogitation is required to realize what has been conceded to the Assembly by these provisions. It has now the Constitutional allowance to meet on the first day of a particular month and adjourn its proceedings to the Fourth day of that month and then go on doing like this all through the period during which it is bound to remain in session in one calendar year. In this manner it will meet in actual fact only for forty-four days in a year, but constitutionally be taken to have so met for one hundred and thirty days. The requirement of Article 54(2) will be adequately satisfied in each year even if the Assembly remains practically in session only for forty-four days.

6. What usually happens is that they remain in session for five days in a week from Sunday to Thursday and then adjourn their proceedings to the next Sunday with a gap of two days, which falls on Friday and Saturday. These five days in a week are thus counted as seven working days, with the result that the constitutional requirement of remaining in session for one hundred and thirty days is fully satisfied even if the total number of working days does not exceed ninety-four days in a year.

7. It may also be mentioned as a relevant fact that under section 4 of the Members of the Parliament (Salaries and Allowances) Act 1974 (as amended from time to time by Act XII of 1985, Act III of 1988 and Act III of 1993 which received the President’s assent on 18.3.1993) the Members are entitled to receive daily allowance at the rate of Rs.300/- and Conveyance Allowance at the rate of Rs.200/- even for the aforementioned two intervening days during which they are not actually in working session, for they too are taken as period of residence on duty within the meaning of this section.

8. This so called “explanation”, the result of ingeniousness par excellence, is nothing more than humbug. In the first place, one wonders where was the need of an explanation, considering that the provisions of clause (2) are quite explicit. It says that the National Assembly shall meet for not less than one hundred and thirty working days in each year. It can easily be understood by all and sundry that the phrase one hundred and thirty working days means one hundred and thirty working days and nothing less or more. There was hardly any ambiguity about the expression ‘working days’, so as to necessitate the rendering of an explanation, like it has been done in this case.

9. There is another aspect. A working day means a day during which one actually works, whatever be the nature of that work. And the most important thing about it is that it is so taken by those who have the franchise to send people to the National Assembly. If it be so taken, as I do take, even the most frantic effort on the part of the National Assembly may not have been sufficient to justify the attribution of a different import to the expression. A working day has to be a working day, as it is being taken by the people through the ages, and I have serious reservations about whether it was within the legislative competence of the Parliament to give such a meaning to it, as would force the people to take a non-working or leisure day as a day during which a particular work was performed or business was transacted.

10. Further more, the so-called explanation brings about a paradox, in that it involves an offence against what has been said in the proviso to clause (2) of the Article. As noticed before, it says that the National Assembly shall meet at least for one hundred and thirty days in a year, But the manner in which the Draftsman has chosen to express himself was loud and clear in conveying a constitutional direction to the Assembly that the duration of its meeting must in no case be less than one hundred and thirty working days in each year. More crucial is the fact that it conveyed a constitutional prohibition to put such an interpretation on the expression “working days”, as to curtail their duration. Therefore, the result of this explanation is that the provisions of Article 54 (2) have become self-contradictory.

11. If you come to think of it, the provisions of the “explanation” give a clear lie to those of the proviso to clause (2) of the Article to an extent that they virtually have been reduced to a misrepresentation of facts. So because after actually working only for ninety four days in a year the Assembly is taken to have worked for one hundred and thirty days by the constitutional fiction of this explanation. The Assembly is presumed to have fulfilled the constitutional requirement of remaining in session for the full period of one hundred and thirty days, by actually remaining so only for ninety four or even lesser number of days in a particular year. What it comes to is that since the Parliament can never misrepresent, the provisions of explanation are ultra vires of its legislative competency.

12. That is not to say that the honourable Members of the Assembly must work for no less than one hundred and thirty days in each year. Nor is there any intention to suggest that they must remain in session continuously all through the week, or that they should not attend to the problems of their constituencies back home. The purpose is only to point out that working day is not synonymous with a ‘non-working day’ and that an off day should not be called a ‘working day’ and that too in the constitution itself.

13. We are rather constrained to concede that it may not be possible for the members to work for six successive days in a week and that there must be a recess of two days, not only because of the onerous and cumbersome nature of their functions, but also because they should make themselves available to the people. Be it as it may, this consideration alone is not enough to provide the explanation with a rationale, for the point is why one working day should be counted as three working days. We are not concerned with whether or not it is possible for the Honourable Members to remain in session for one hundred and thirty days in a year. What we do care about is that if it is not so possible, it should then be specifically laid down in the Constitution that the Assembly shall meet and work only for a period of ninety days or whatever during each year. The element of factual incorrectness should be scoured from the Statute Book, for it is a slur on its otherwise fair name.

14. We believe that the Constitution was framed by our chosen representatives with the consciousness that Sovereignty over the entire Universe belongs to Allah Almighty alone and the authority to be exercised by the people of Pakistan is a sacred trust which is to be discharged within the limits prescribed by him. We also believe that they were aware of the fact that they had been entrusted with the task of giving us a Constitution which would enable us to order our lives in the individual and collective spheres in accordance with the teachings and requirements of Islam, as set out in the Holy Quran and Sunnah. If viewed in the light of these considerations, pray let us know what is Islamic about the provisions, which sanction a constitutional humbug to legalize an attempt to represent and constrain the people to believe something which is not there in actual fact. It rather puts paid to the claim that the constitutional provisions are in accordance with the dictates of Holy Quran and Sunnah. In this view of the matter, the provisions of explanation to Article 54 (2) are ultra vires of the Objectives Resolution, which is everything to go by, and undoubtedly a basic document to sustain the edifice of our Constitution.

15. I do hope and go with the optimism that the Honourable Members of the present August Assembly will waste no time in taking this matter into consideration and efface this ham-handed hoax from the Book without ado, in acknowledgement of the magnitude and sanctity of the trust which allows them to legislate even in respect of their own privileges.

It is not a matter of dispute that the Constitution of 1973 either in its original form or with the subsequent amendments including the one called as ‘Eighth Amendment’, is in need of modifications to be viable in the present socio-political environment of the country. A Committee has been constituted by the Cabinet to consider the provisions of ‘Eighth Amendment’ with reference to their implications and overall impact on the Constitution and the political culture. An apposition of certain provisions of the Constitution will, therefore, be worth its while, before the Committee submits a report to the Cabinet for consideration.

2. Article 48(6) of the Constitution, as it now stands after the ‘Eighth Amendment’ provides that “if, at anytime, the President, in his discretion, or on the advice of the Prime Minister, considers that it is desirable that any matter of national importance should be referred to a referendum, the President may cause the matter to be referred to a referendum in the form of a question that is capable of being answered either by “Yes” or “No”.

3. One wonders as to whether there can be a question which does not admit ‘Yes’ or ‘No’ as answer and what in fact was the necessity of making these provisions. It would have been sufficient to provide that the President may cause the matter to be referred to a referendum in the form of a question. That such a question should be capable of being answered either by ‘Yes’ or ‘No’ seems to be rather redundant, considering that every question is bound to have ‘Yes’ or ‘No’ as answer.

4. This aspect of the matter apart, it seems to me that the provisions in respect of capability of the question being answered by ‘Yes” or ‘No’, bear a special significance. It is not difficult to understand that their object was to put a constitutional limit on the discretion of those who are supposed to answer the question referred to referendum, in that it will extend only to the saying of ‘Yes’ or ‘No’ to the question and nothing more. They will have no right to raise any objection either against its form or substance.

5. Yet another aspect is presented by the aforementioned considerations. Since the scope of public competency has been limited only to the saying of ‘Yes’ or ‘No’, the form of question to be referred to referendum assumes a considerable importance. It is worth notice that there is no limitation on what can possibly be the form. The question may be simple, complicated or complex. It may be leading or misleading. It must always be borne in mind that no complex, leading or misleading question can, in all fairness, have ‘Yes’ or “No’ as answer; which is much more so if any such question is to put to the people, majority of whom is not in a position to understand its implications.

6. Leading question can be put to a witness under the law by a party against whom he goes into the witness box. But this concession to unfairness is allowed under entirely different circumstances, with promotion of the ends of justice as the ultimate goal. In a referendum, the question cannot be allowed even to be leading; what with its being complex or misleading. If any such question is made the subject of referendum, the opinion expressed will be far from being that of the public; which will be so, for the obvious reason that those who will answer the question by saying ‘Yes’ or ‘No’, are ignorant of what is being asked. Further, in that situation, they are necessarily led or misled to say ’Yes’ or ‘No’, which cannot deserve the name or title of an ‘answer’ in any ethics including that of Islam.

7. We might look at the matter from another point. Leading or misleading questions seldom allow an opportunity for expression of opinion, particularly when they are put to the public with a limitation on the form of its answer. They lead them to answers they never intend to make. The result is that things are attributed to them, which they never say. This being so, the provisions of Article 48(6) of the Constitution imposing restrictions on the scope and form of answer, involve a violation of Article 19 of the Constitution which, inter-alia, lays down that every citizen shall have the right to freedom of speech and expression subject to reasonable restrictions imposed by law. By virtue of this circumstance, they are void under Article 8 of the Constitution being inconsistent with and in derogation of the fundamental rights of freedom of expression.

8. For a background of how they found place in the Book, reference may be made to the Referendum of 19^th December 1984 held in pursuance of the Referendum Order 1984, enforced on the 1^st of December 1984. The question referred to referendum under Para-4 of the Order was to the following effect: “Whether the people of Pakistan endorse the process initiated by General Muhammad Zia-ul-Haq, the President of Pakistan, for bringing the laws of Pakistan in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (Peace be upon him) and for the preservation of the Ideology of Pakistan, for the continuation and consolidation of that process and for the smooth and orderly transfer of power to the elected representative of the people”. Para-5 of the Order said that it shall be answered either by ‘Yes’ or ‘No’.

9. The question framed in Para-4 incidentally provides us with an illustration of what kind of question can possibly be put in exercise of discretionary power conferred by Article 48(6) of the Constitution. The people of Pakistan were asked by this question whether (a) they endorse the process initiated by the President, (i) for bringing the laws of Pakistan in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (Peace Be Upon Him), and (ii) for the preservation of the ideology of Pakistan; (b) they endorse the steps being taken (i) for continuation and consolidation of the process and (ii) for the smooth and orderly transfer of power to the elected representatives of the people.

10. It was evidently a multi-featured complex question. The most pertinent feature is that the draftsman appears to have taken pains to make a specific mention of name of General Muhammad Zia-ul-Haq as “the President of Pakistan”. Then it says that the President has initiated some process and that this process is of Islamisation of Laws and for preservation of the Ideology of Pakistan. It speaks of the steps being taken for consolidation of that process. It also indicates that the process includes the smooth and orderly transfer of power. This is not all. It further suggests that this transfer of power will be in favour of the elected representatives of the people.

11. Complexity aspect aside, it is worth notice that it is based on the presumption that the President had in fact initiated a process of Islamisation of Laws and for preservation of the Ideology of Pakistan. Another presumption was that steps were being taken by him for continuation and consolidation of that process. Yet another is that orderly transfer of power was intended in favour of the elected representatives of the people.

12. There was no justification for all these presumptions. There might have been quite a few who were of the opinion that the President had no intention of Islamising the Laws and that in any case, the process initiated by him will not achieve the desired result. Obviously so because one could have had his own concept of what is in conformity with the Islamic injunctions as laid down in the Holy Quran and Sunnah. Then, there might have been others of the opinion that the process initiated by him will not result in the preservation of the Ideology of Pakistan. Further, there might as well have been those who were of the opinion that no election could be held without restoration of 1973 Constitution in its original form and that those returned to the Assemblies under any other law will not be the representatives of the people.

13. It hardly requires an under scoring that besides being ambiguous, the question was hypothetical in nature, with a misleading tendency. The purpose in view can be spelled out of Para-7 of the Order which makes an interesting reading. Amongst other things it says that if a majority of the votes cast in the referendum is in favour of the answer ’Yes’, the people of Pakistan shall be deemed to have endorsed the aforementioned steps presumed to have been taken by the President of Pakistan regarding Islamisation of laws, the preservation of the Ideology of Pakistan, the continuation and consolidation of that process and for the smooth and orderly transfer of power to the elected representatives of the people.

14. The question being clearly hypothetical, the deeming provisions were absolutely out of place. This in spite, however, you might say one could still put up with them. But what follows is atrocious. The paragraph proceeds to say that in the event of ‘Yes’ answer by majority of the votes cast in the referendum, General Muhammad Zia-ul-Haq shall be deemed to have been duly elected President of Pakistan, and that too for a term of five years from the day of the first meeting of the Houses of Parliament in joint sitting.

15. These provisions do not deserve even a comment or criticism. Anyway, we may assume it was a valid question with majority of the votes cast in favour of ‘Yes’ as answer. How then, in God’s name, could the people of Pakistan be deemed to have elected him as President of Pakistan and that too for a period of five years from a particular day?. The fact of election as President had no nexus whatsoever with the substance of the question which did not even remotely convey the suggestion that the people were being asked by it to elect any person as President for a period of five years. No amount of strain on jurisprudence could justify these provisions, so enormous in their rankness and absurdity that even the word illegal will be shy of its application to them.

16. Yet another aspect worth notice is that the preamble left no room for any doubt what was to follow in the Order. It provided that the President had decided to ascertain the views of the people of Pakistan, by means of a referendum, because for continuation and consolidation of the aforesaid process for Islamisation and revival of Democracy, it is considered necessary that General Muhammad Zia-ul-Haq

17. continues to hold the Office of President of Pakistan for a further period of five years from the date of first meeting of the Houses of Parliament in joint sitting.

18. By whom all this was considered ‘necessary’ was obviously left to the imagination of the people. Anyway, the point is that the preamble left no doubt that the President was bound to stay in office even though hell should bar the way. The Referendum Order was only an instrument of manipulation and the consequential referendum was a sham affair and without any legally binding force. The deeming provisions of Para-7 of the Order regarding election of General Muhammad Zia-ul-Haq as President of Pakistan for a term of five years, were never brought to the notice of the people and they had no idea whatsoever of what will be the result of saying ‘Yes’ to the question and the referendum was nothing more than a palpable fraud against them. No such law, if at all it can be so called, was even witnessed by the legislative history of the world.

19. What kind of Islam was going to be the result of referendum where a misleading and perverse question was put to the people for an answer. I wish somebody in position would have had the courage to apprise the President that this is not the done thing and that misleading questions are ignoble, immoral and thus against the Quranic Injunctions. The ‘Yes’ or ‘No’ provisions and those in respect of the form of the question are in abuse of the Constitution. So long as they are allowed to remain a part of the Book, there is no guarantee that similar questions will not be repeated in future to mislead the people to wrong and incorrect answers. The Committee concerned will, therefore, do well to recommend their expunction.

Although the expression “independence of Judiciary” has become rather hackneyed, the importance of the concept it conjures up, can never be over emphasized. It is commonly understood with reference to separation of judiciary from the executive. However, voices have been raised against the mode of selection of Judges by eminent writers and members of the bar at conferences and seminars held in the recent past. It was asserted, and rightly so, that it is one of the factors which adversely affects the Independence of Judiciary, which is ‘sin qua non’ of a just and civilized social order.

2. In his article on “Appointment of Judges of Supreme Courts”, published in the Nation of 15^th of September, 1992, the learned Author has observed that “administration of impartial justice, however, does not depend just on the selection procedure, but also on the integrity and moral character of the Judges”. With all the respect I have for his views, I must say that it is a paradox. True that administration of fair justice is not dependent merely on the mode of selection and that various other factors are also relevant. But the “Integrity and moral character” of the Judges is, inter alia, necessarily connected with the selection procedure. It has been the subject of virulent criticism, ‘Sans Dubio’ because this too has its contribution in the creation of such Judges. In the background of these considerations, we proceed to examine the Mode of Selection of Judges at various levels. At the lowest rung of the ladder, Civil Judges are appointed on the recommendations of Punjab Public Service Commission based on the result of Competitive Examination. Further up in the hierarchy, in accordance with Service Rules of September 1977, two third of the Additional District and Sessions Judges were to be appointed by promotion from amongst the Civil Judges with minimum service of five years, and not more than one third by initial recruitment on the recommendations of Lahore High Court from Law Graduates of ten years practice as an Advocate.

3. As for District and Sessions Judges, not less than fifty percent posts were filled by promotion on the basis of seniority-cum-fitness, from amongst Additional District and Sessions Judges with minimum service of ten years. Out of the remaining fifty percent, not more than one fourth posts were to be provided by initial recruitment on the recommendation of the High court from amongst Law Graduates, with twelve years practice as an Advocate and not more than one fourth by transfer from APUG (DMG) Officers.

4. In April 1980, the Service Rules Committee brought about a slight change in the method, in agreement with the recommendations of the High Court. Since that time, therefore, fifty percent of the posts of Additional District and Sessions Judges are fed by promotion from amongst Civil Judges with ten years service as Judicial Officers, and fifty percent by initial recruitment from amongst practicing advocates with ten years standing; whereas all the posts of District and Sessions Judges are provided by promotion from amongst the Additional District and Sessions Judges on the basis of seniority-cum-fitness.

5. Still further at the level of High Court, one third of the Judges are chosen from amongst the serving District and Sessions Judges and remaining two third from the members of the Bar. The result is that in the High Court not more than one sixth of the Judges are from those Civil Judges who get into the service after having passed the P.C.S. (Judicial) Examination. The remaining five sixth of the Judges come from members of the Bar having entered into the service through initial recruitment, either as Additional District and Sessions Judges or appointed directly as Judges of the High Court.

6. The Mode of Appointment of Judges of the High Court has been laid down in Article-193(1) of the Constitution which provides as follows:

“193(1) A Judge of the High Court shall be appointed by the President after consultation:

7. The purpose of this study is to highlight certain important inherent defects in this procedure for a serious thought on whether it has got some bearing on the Independence of Judiciary and if any change would be worthwhile to achieve the desired results.

8. In compliance with the requirements of Article 193(1) of the Constitution, in the event of vacancies a case for appointment of Judges is initiated by the Chief Justice and sent to the Governor through the Chief Minister who becomes relevant because under Article 105(1), the Governor acts on his advice in the performance of his functions. After due process, the matter is then preferred to the Ministry of Law and Justice, whence it goes for comments to the Chief Justice of Pakistan. On receipt of those comments, a summary is submitted by the Secretary Law and Justice Division to the President, through the Prime Minister who is concerned because under Article 48(1), the President acts on his advice in the exercise of his functions.

9. The first defect involved in this procedure is that the Chief Justices apart, others ultimately concerned with the selection and appointment of judges know nothing about the candidate, for the obvious reason that they seldom come across them in the performance of their functions. The result is that for assessment of their merits, they rely upon their own sources of information which are as boundless as the caprice of anyone of them can permit. The officers entrusted with the task of making investigations in each case have got their own sources and methods of procuring information on whether a candidate is worthy enough to be made a Judge. There is nothing to restrain them from making random secret inquiries from whomsoever comes their way, for a report on those candidates, to be relied upon in the process of selection, without an idea of who is concerned with the task of collecting material regarding their suitability to hold the post. Then, it is not known whether the scope of their investigation is confined only to the integrity and competency of the candidates or it extends as well to other spheres.

10. This apart, since the names of the recommendees are within the knowledge of everybody, there is usually an influx of anonymous letters and complaints against them, evidently from persons interested; which also influences the judgment of those concerned with the selections.

11. Another disadvantage is that in the event of an adverse report in respect of a candidate, he is never called upon to explain his position, before the Competent Authority allows itself to be carried away by it. Whatever be the basis of such report, he must in all fairness, before any decision is made, apprise the candidate of what he holds against him. It is then of course his prerogative to reject his explanation as unsound but there is hardly any justification for an unheard final condemnation of a candidate, whatever be the merits of the complaint against him, more so when he has got no forum to have recourse to, for the redress of his grievance. This power of sitting in exparte judgment in palpably unjust, which is to say the least.

12. Another aspect is also worth consideration. On paper, appointment of Judges is not within the discretion of the President and it is made in consultation with the Chief Justice of the High Court, Governor and the Chief Justice of Pakistan. However, we do not get any indication either from Article 193(1) or any other provision of the Constitution, as to whether the recommendations or views of the Chief Justices are binding on the President, as in the case of Prime Minister’s advice under Article 48(1). Given the fact that the President can disregard their views, the matter of appointment of Judges will practically be deemed to have gone into his discretionary powers and the orders passed by him can tend to be arbitrary. It follows that the chances of favouritism are inherent in the procedure itself. If the Members of the Bar are serious about their grievance regarding nepotism, they will have to strive for a change in the mode of selection. If discretionary power has to be conceded, it is well nigh difficult to rule out the possibility of its abuse.

13. Yet another serious drawback of the procedure is inordinate delay. In the first place, despite vacancies, considerably long time is taken in the initiation of the case. There must be some reasons for this judicial inertia. But frankly speaking, I am not aware of them. When after all it is set in motion, a period of about one to two years is taken in the decision. Except when the case goes to the Chief Justice of Pakistan, delay comes about at every stage, mainly because the Chief Minister, Governor and the Prime Minister have got their own priorities. The damage involved can hardly be over estimated. Because of the shortage of Judges, cases lie rotting for a number of years. Demands of speedy justice, made as if by rote, are in vain; and it is probably administered only in dream.

14. But the real injury resulting from this cumbersome and long procedure is the implied impression that the persons concerned are being selected for appointment, not in their own right but only as a measure of favour. Therefore, at least in some of the cases, either because the efforts involved or tension on account of sheer waiting for such a long time, they become utterly exhausted and listless, before elevation to that august dispensary of justice, whose requirements are so well known.

15. Finally, in view of the intended proposals, something about the civil judges appointed by initial recruitment on the recommendation of the Public Service Commission. They justify this recommendation on the strength of having passed the P.C.S. (Judicial) Examination and there is nothing basically wrong with them. Their competency and talent is thus never a matter of doubt. That they eventually look clumsy, awkward, diffident, obtuse and slipshod, of course with exceptions, is obviously due to indifferent conditions of service. It is the rankness of system which kills them. If you come to think of it, nothing can be more preposterous and ridiculous than the fact that we ourselves create a class of officers by devising an infirm system and then run it down by finding faults. The complaint is that lawyers not even known as advocates are sometimes selected for elevation. Even if it so happens, still no difference will be made in their case, for after appointment they would start feeling that they are the CSP’s of Judicial Service as compared to those taken from the subordinate judiciary. It is this consciousness and feeling of superiority which makes all the difference.

16. In the background of these observations, I venture to make the following proposals to be seriously considered by those at the helm of affairs: (A) A judicial service of Pakistan should be constituted. (B) Recruitment may be made to the service every year on the recommendation of the F.P.S.C., on the basis of an efficiently organized competitive examination. (C) All law graduates uptill the age of thirty years may be made eligible to take the examination. (D) It may be laid down in the service conditions that they would be appointed to serve in the province of their domicile. (E) There should be no direct recruitment to the service at any stage and those taken by initial recruitment at the lowest rung may be promoted on the basis of seniority-cum-fitness to the Superior Courts. Mere awareness that only they are going to make it to the Supreme Court, will make them confident and grow in status with the passage of time. (F) We do need the introduction of a system of talented carriers Judges, with better facilities to make them independent. (G) It will ensure equal opportunity to become Judges, for all the young lawyers without discrimination, in fulfilment of the constitutional requirement.

17. Lastly, a few words more before leave of the matter is taken. In case these proposals do not find favour with those at the helm of affairs and direct recruitment of Judges is unavoidable. I would make an appeal, with all earnestness, that initial recruitment through competitive examination may be altogether abolished, for the introduction of a uniform system, to rid the judicial service of the class distinction.

THE CRIMINAL JUSTICE SYSTEM IN PAKISTAN: CONTEMPORARY PROBLEMS IN SECURING EFFICIENT ADMINISTRATION OF CRIMINAL JUSTICE

INTRODUCTION

The effective, efficient and fair administration of criminal justice is indispensable to the achievement of a healthy social environment, which in turn is conducive to achieving progress in national development on many fronts. The well-being of the citizenry also mandates that, as far as possible, they be protected from high levels of criminal activity and that offenders be punished and returned to society as productive members. Revived public confidence in the criminal justice system requires that criminal investigations and trials be conducted speedily and efficiently so that witnesses, victims and parties may be spared as much loss in time and financial resources as possible.

2. The author’s years of experience as a trial judge have led him to believe strongly that delay in the disposition of criminal charges is a basic malady which generates a wide array of problems including increased crime rates. Consequently, every effort must be made to improve methods of criminal investigation and trial. Because most of the developing countries of Asia are still struggling to shake themselves free from the vestiges of colonial legal systems, which have produced problems common to many of them, common solutions may be feasible as well, which should encourage an integrated approach to resolving such shared problems.

3. Some of the needed changes will have to be accomplished through amendment to revision of substantive penal and criminal procedure codes. There may be less of a common approach of these matters, however, particularly concerning substantive criminal code revision, because legislation usually reflects a given society’s history, traditions, culture and mores which may not be shared by other countries. Those responsible for such amendatory programs, therefore, must be careful not to depart so far from traditional national values that the resulting criminal justice system functions out of touch with society and thus generates more problems than have been resolved through revision of old laws.

4. Criminal investigation in Pakistan is the exclusive responsibility of the police. The organization of the police in Pakistan is covered by special legislation apart from the Code of Criminal Procedure, which is concerned exclusively with the conduct of criminal investigations. The principal administrative unit within a province is a district which further is subdivided into police stations. Each district is under the command of a superintendent of police, while police stations are in the charge of inspectors or sub-inspectors under the superintendent’s control and supervision.

5. All offences under the Penal Code and special laws are divided into cognizable and non-cognizable offences, a categorization which affects criminal investigation as well as other phases of criminal proceedings. Police officers may arrest for cognizable offences without a warrant, but may not do so for non-cognizable offences.

6. The process of investigation begins with receipt of information about commission of a cognizable offence. The officer in charge of a police station to which such information has been submitted proceeds immediately to identify, locate and arrest the believed offender and to collect evidence of guilt. The chief methods relied on are interrogation, scientific forensic investigation and search. The Code of Criminal Procedure contains adequate authorization for arrest and search. Criminal investigations may also be commenced on the basis of reason to suspect the commission of a cognizable offence. Investigations should be completed as speedily as possible. After criminal investigation has been completed, an officer in charge submits a final report to a magistrate having jurisdiction to try the matter.

7. Intelligent and competent criminal investigations are obviously of the greatest importance to efficient administration of criminal justice. Those who conduct them should be highly educated and trained, and possessed of a high degree of imagination and flexibility in selecting methods of investigation best suited to particular cases. Without such abilities and talents, police officers are handicapped in conducting adequate investigations. Such talents are all the more needed in the light of increasing ingenuity displayed by present day offenders. Officer also must know much about human psychology and the values held by those in the society, within which offenders violate the law and the police carry on their professional activities. Finally, perhaps the most important attribute police officers must have is personal integrity and honesty, manifested by a sincere desire to conclude criminal investigations solely on the basis of ascertained facts.

8. Unfortunately, Pakistan today has no specialized agency responsible for conducting criminal investigations, which seriously handicaps the administration of justice. The present police structure is a heritage from the times before independence when the police were organized for administrative convenience, particularly with a view to maintaining security and order in the troubled political and social environment of the time. In effect, police forces were structured as instruments of political oppression and control. This can be illustrated by the code provisions allowing police officers to detain anyone under certain circumstances without either an arrest warrant or an authorizing order from a magistrate. Moreover, the code goes beyond this to allow police to arrest without a warrant or magisterial order if they know of a design to commit a cognizable offence and in their judgment the commission of the offence can be forestalled only through immediate arrest. The significant dimension of this statutory authorization is that no means is prescribed to assess the genuineness of the claimed knowledge that a criminal design has been formed on the part of those arrested.

9. Pakistani police also participate in a system of preventive detention and other measures intended to prevent the commission of certain crimes. They have independent powers to detain those believed to be on the verge of committing offences, but also assist executive magistrates in the utilization of magisterial preventive jurisdiction in security cases, unlawful assemblies, public nuisances and disputes over immovable property giving rise to an apprehension that there will be a breach of the peace. Magistrates thus rely on the police to enforce their powers to maintain law and order within the limits of their local jurisdiction. Police also are responsible to serve processes requiring witnesses to appear in criminal courts and in certain cases before courts established under special laws.

10. The principal difficulty generated by this mix of police duties is that police officers require different abilities and aptitudes to conduct criminal investigations they need for crime prevention and control, including exercise of preventive jurisdiction. It is difficult for officers to perform both classes of functions with equal skill. Moreover, the heavy time burden imposed by preventive actions reduces almost to vanishing point, the time available to conduct criminal investigations. This difficulty is encountered in most of the developing nations; the functional infirmities and abuses which it brings about, corrode the very foundations of criminal justice in all of them. The only effective solution to the problem lies in the separation of these two functions through the creation of special agencies who do nothing apart from the conduct of criminal investigations, leaving maintenance of public security and order and crime prevention to the regular police.

11. It is somewhat incongruous that under the system of procedure inherited from the British, with its broad powers of police arrest, detention and seizure, police were forbidden to rely on interrogation. For the Code prohibits the use of any statement made in the course of a criminal investigation by anyone to a police officer, at the inquiry or trial of any offence under investigation when the statement was given. The only exception is impeaching use against a witness who has testified at the trial. Provisions in the Evidence Act also forbid the use, at the trial, of a confession made to a police officer or during detention, other than a portion which can lead to a recovery. This is not so in certain other Asian Countries. Whatever the validity of the assumption underlying the code provisions concerning the reliability of confessions, the statutory disability on this form of criminal investigation has adversely affected the administration of criminal justice in Pakistan. In particular, the exclusionary rule has resulted in large number of acquittals in criminal prosecutions. If a separate criminal investigatory agency can be created, staffed with well qualified and adequately compensated officers trained to be protective of human rights, the statutory disability on use of interrogation as a criminal investigative device, can be eliminated without courting abuse of such powers.

12. In contrast to the Japanese system, Pakistan has no centralized apparatus of public prosecutors. In all courts below that of general trial competence, i.e., the court of sessions, prosecution is conducted by police officers holding inspector or sub-inspector rank, designated as prosecuting inspectors and sub-inspectors. These are under the direct supervision and control of a prosecuting deputy superintendent who heads the prosecution agency in a district. The latter, like others of equivalent rank in the field police, is subordinate to the superintendent of police who in turn derives his authority from and is under the general control of the provincial government through the provincial inspector-general of police. However, magistrates before whom trial of a criminal case will be conducted may permit prosecution to be handled by any person other than a police officer below a certain rank prescribed by the provincial government.

13. Criminal cases tried in courts of sessions must be prosecuted by a prosecuting official if they have been initiated through a police report. Prosecuting officials are appointed by the provincial government for a local area to appear either in all or specified classes of cases. They function under the control of provincial government through the secretary in charge of the provincial law department. In the absence of a prosecuting official, or if none has been appointed, a district magistrate representating provincial government in a district may appoint any other person, although preferably a police officer of specified rank, to present the prosecution evidence in a particular case.

14. In cases before a high court, the provincial government is represented by the advocate general or an assistant advocate general. At that level it is clear that the police have no role and that litigation is the sole responsibility of provincial government.

15. It may be of interest that the Code allows a prosecuting official to withdraw a prosecution, with consent of the court, before pronouncement of final judgment. In that event, a defendant is either discharged or acquitted, depending on the stage of the proceedings reached when prosecution is withdrawn. A police officer conducting a prosecution in magistrate’s court has similar powers of withdrawal. It may incidentally be noted that under the Pakistani system no police officer who has participated in any way in the investigation of a criminal matter before trial can conduct the prosecution of that case.

16. It must be acknowledged that the prosecution system in our country leaves much to be desired and is only marginally conductive to an efficient and fair administration of criminal justice. Because the processes of investigation and prosecution are exclusively under the control of executive authorities, they can be improperly influenced by officials who, properly speaking should play no role in criminal justice matters. Political interference, coupled with inefficiencies in collecting criminal evidence, causes a low rate of convictions, because those responsible for preliminary evaluation of criminal investigations lack legal and practical knowledge and thus cannot truly weigh the strengths and weaknesses of cases to be tried in court.

17. It is the author’s belief that the Japanese system of public prosecution has abundant merit and is excellently adapted to a fair and efficient administration of criminal justice. Other nations in the Afro-Asian region might do well to enact an equivalent to the Public Prosecutor’s Office Law, modified to reflect local conditions and environments. The aspects of the Japanese system which in particular deserve consideration are:

(1) Public prosecutors, like judges and attorneys, should be members of the legal profession and have passed a national bar examination.

(2) They should be under the administrative control of a supreme public prosecutor.

(3) They should be authorized in their own discretion to institute prosecutions, urge the proper application of law by courts, and supervise execution of judgments.

(4) They should have authority to conduct their own investigation of criminal cases, should they believe it appropriate to adopt such a course of action.

18. Nevertheless, some reservation may be expressed about the vesting of exclusive discretion in public prosecutors, as in the Japanese system, to determine whether prosecution will be instituted. This concern is heightened because a single executive authority, namely Ministry of Law, controls both the evaluation of criminal cases and the conduct of public prosecution functions. The system clearly works well in Japan, but one should not assume without further deliberation that it will work as well if translated to another nation and social environment. Thus, it may be that some sort of final authority to approve both institution and non-institution of prosecution, should be lodged in a court system as an ultimate guarantee that human rights will be respected in the course of decisions bearing on institution of prosecution.

19. To compare our system with that of Japanese, under the Pakistan system a lower court can take cognizance of an offence either upon receipt of a complaint summarizing the facts constituting an offence, a written police report recounting such facts, or information received from any person other than a police officer, or on the basis of a magistrate’s personal knowledge or suspicion that an offence has been committed. Cases also can be commenced in a court of sessions on the basis of a complaint. This procedure not only causes confusion, but also increases judicial work loads because complaints at times are false or biased. Provision should be made for initiation of prosecutions only on the basis of a submission by a prosecuting official and not complaints by police officials or private citizens, although perhaps with an ultimate judicial review to safeguard against abuse. In any event, such a system can work only if there is an independent and professionally competent public prosecutor’s department.

20. The lowest level courts in the Pakistani judicial hierarchy are magistrate’s courts of the first, second and third classes. Magistrates are appointed by the provincial government which also defines the local limits of their jurisdiction. Special magistrates also may be appointed to try particular classes of cases within a delineated area. All magistrates are subordinate to a district magistrate appointed by the provincial government, who defines the local jurisdictional areas for them and issues rules or special orders, compatible with the Code of Criminal Procedure, governing distribution of caseloads among them.

21. Magistrates are empowered by the Code to pass sentences of imprisonment not exceeding three years. Consequently, they are competent to try all Penal Code and special law offences punishable by a maximum term of imprisonment not exceeding that limitation. They also may impose fines not exceeding 5,000 rupees and may imprison upon default of payment. It should be noted that certain magistrates have been specially invested with powers to try all non-capital offences, and some have been authorized to conduct summary trial of petty matters.

22. Courts of sessions are the next highest courts in the judicial system. Each of the nation’s four provinces is divided into a specified number of sessions divisions corresponding to police districts. A provincial government establishes a court of sessions by appointing one or more judges for that court. Additional and Assistant Sessions Judges may be appointed for any court. Sessions judges or Additional Sessions Judge may assess any sentence authorized by law, but sentences of death must be confirmed by a High Court. Assistant Sessions Judges are competent to assess sentences of imprisonment not exceeding seven years. Thus, Sessions and Additional Sessions Judges conduct original trial of all serious cases, e.g., culpable homicides. They also hear appeals against orders of conviction entered by magistrates.

23. The High Court is at the apex of each province’s judicial hierarchy. It may impose any sentence authorized by law in any case in which it has original jurisdiction. It also possesses broad revisional powers, because it has appellate jurisdiction over all judgments entered by courts of sessions. The Supreme Court of Pakistan is the court of ultimate jurisdiction, and hears, in addition to the performance of other functions under the Constitution, appeals and revision petitions against the judgments and orders declared by the latter to embody a subject matter fit for Supreme Court’s review.

24. Magistrates perform executive as well as judicial functions. In particular, in their capacity as executive magistrates they exercise what is called magisterial preventive jurisdiction. This, as already mentioned, covers cases of public security, public nuisances, unlawful assemblies and immovable property disputes which may engender breaches of peace. In addition, they frequently are called upon to perform other duties of an executive nature. But the most significant aspect of their position is that they are under direct control by executive authorities through the district magistrate who represents the provincial government at the district level.

25. Of course, as noted, their judicial functions are significant, for they punish offenders who have been adjudicated guilty of crimes. High courts assert some control over these functions through exercise of their appellate jurisdiction, as do courts of sessions exercising their revisional authority. In an effort to separate executive from judicial functions, magistrates in some districts have been assigned to perform only judicial duties, but a complete separation of judicial from executive functions, mandated by the Constitution, is yet to come

26. This amalgamation of judicial and executive functions underlies many of the ills in our administration of criminal justice. For one thing, time devoted to performance of executive responsibilities is unavailable for the discharge of judicial functions and delays the latter significantly. More importantly, magisterial independence in the performance of judicial duties is substantially imperilled because of the subordination of magistrates to executive authorities. Fundamentally, the basic natures of the two responsibilities are so at odds that they cannot be lodged in a single class of officials without jeopardizing the rule of law and a balanced, independent exercise of judicial discretion. The exercise of judicial powers requires a balanced, impartial frame of mind which is difficult or impossible for one engaged in executive activities to maintain. The awareness of a status, subordinate to higher executive authorities cannot help but adversely affect the performance of judicial functions. In short, the attitudes and priorities of those acting as executive magistrates are basically different from those charged exclusively with judicial responsibilities.

27. The Japanese judicial system appears attractive in comparison. However, the greatest care must be given to the selection of judges, so that only qualified persons are chosen and that no improper factors of caste or creed enter into the selection process. This is not an observable difficulty in Japan, but it might be so in certain other nations if special attention is not devoted to delineation of objective criteria for appointment and promotion and the establishment of appointing machinery invulnerable to discriminatory administration.

28. The author’s belief is that in certain nations there is excessive emphasis on the selection of all ranks of judges from the bar, ostensibly designed to ensure adequate professional competence, particularly in high judicial forums. Whatever the merits of limiting appointments in higher courts to persons with extensive trial experience, there is much to be said for a system which would open the lower grades of judicial service to those who have law degrees and who pass a competitive national examination for entry into judicial service, even though they may not have been admitted as practicing barristers or attorneys and thus lack experience in trying cases. Promotion then could be based on seniority and proven professional competence. This is a variant on the Japanese system of judicial selection which might well be appropriate for adoption in Pakistan and other nations. It is important, however, that if such a system of entry-level judicial selection is adopted, there must be a national judicial training and research institute to provide for a uniform entry level and in service education for judges.

29. Legal experts in Pakistan have been concerned since the time of independence with significant changes in procedural and substantive laws, necessary for a better administration of criminal justice. Although some of the delay in prompt disposal of criminal cases, can be attributed to an inadequate number of judges facing heavy caseloads in inadequately accommodated courts, much of it is the consequence of lengthy, intricate and cumbersome procedures required by inherited codes. A special case in point is the evidence law in Pakistan, with its complicated provisions governing proof of documents and its limitations on relevancy and admissibility of evidence.

30. Certain procedural amendments have been made in response to these needs. A new procedure has replaced the older distinction between trials on summons and warrants in lower courts, and commitment inquiry proceedings have been abolished in serious cases triable in courts of sessions. Sessions cases are now tried in accordance with new procedures which, coupled with other changes affecting a number of minor matters, have promoted speedier disposition of criminal matters.

31. However, a candid evaluation of these changes is that they have been made too slowly and on too limited a basis to achieve the desired results. This seems to be explainable because of the reluctance of people to accept unfamiliar notions. The failure of the amended system to speed up disposal of criminal cases also highlights the fact that many of the causes for procedural delay lie outside the ambit of formal procedural law, and are not cured by changes in the latter. Moreover, changes made to control official abuses and safeguard individual rights are likely to slow down rather than accelerate trial processes, even though they are essential to avoid arbitrary exercise and abuse of power. The ultimate goal of procedural reform must be an elimination, or at least a significant reduction, of miscarriages of justice; the greater the possibility of dishonest or improper official activities, the greater the need for appropriate procedural safeguards.

32. A major step toward judicial independence is embodied in a draft ordinance now under consideration by the Federal Council, which would establish new courts, a Qazi court, within the provinces. These Qazi courts for the various districts would work a virtual separation of the judicial from the executive functions, because they would be under the superintendence and control of the provincial high court.

33. Five ordinances promulgated in February 1979amended the Penal Code in respect of certain offences affecting movable property and the social order, to bring the criminal law into closer conformity to the Quranic injunctions on those matters. Consequently, the Islamic provisions of Hadood replaced the earlier law relating to offences of theft, robbery, decoity, adultery, false accusations of adultery, and drinking of intoxicants.

34. In addition, a draft ordinance in respect of the law of Qisas and Diyat, prepared by the Council of Islamic Ideology, is under examination by the Federal Council. If it should be adopted, a guardian of a deceased person might compound an offence of murder at any time before execution of sentence by accepting certain things in consideration. All offences against the person, including murder, also would be subject to a waiver of prosecution by an adult male guardian of the person killed or injured, even though no compensation has been paid. Offenders who have not been sentenced to the extreme punishment, or against whom for any reason that punishment is not to be enforced, may be exonerated upon payment of compensation to a victim’s heirs. If the ordinance is promulgated, certain conforming amendments in the Evidence Act probably will be necessary.

35. Such changes in our penal laws should guarantee the sort of social justice needed for our country, as well as promote a quicker dispatch of criminal justice. Their objective is the creation of a climate of social thought and action in which the maximum benefits can be ensured for the largest number of people. This is attested by the fact that they are in conformity with the Quranic injunctions.

36. It might also be worthwhile to examine the possibility of creating forums within local councils to dispose of cases involving petty offences. Many of these sorts of matters can be resolved much more effectively and speedily through local councils than through judicial trial processes. This is so because members of local councils, on the basis of their social status, are well able to discover the truth and arrive at an appropriate conclusion. The people involved also are usually disposed to accept the determinations of local councils. Hence, such a system can not only relieve the overburdened court system to a significant extent, but also promote a sense of participation among local people in the settlement of disputes. This approach is particularly attractive for countries hard pressed financially to underwrite the appointment of more judges to dispose of accumulated dockets.

37. What with specification of obstacles to the fair and speedy dispensation of criminal justice, the most glaring cause appears to be a want of necessary education and the absence of honest minds on the part of those who administer the system. No criminal justice system is better than the people who are responsible to see that it functions. Therefore, at whatever cost, society’s energies must be marshalled to combat the monstrous triumvirate of ignorance, illiteracy and dishonesty. The creation of an educated society is one effective answer to the problem of delay in disposing of cases. No criminal justice system can be viable to operate in a climate of illiteracy within a backward society.

38. Budgetary priorities must be reordered to give greater emphasis to criminal justice. Defence budget devour large segments of the available resources of many developing nations. Prompt settlements of legal matters bring health and prosperity in their wake because time, energy and funds spent on protracted litigation are diverted from other uses which will bring much greater benefits to society, such as the construction of dams and water conduits. The inherent difficulty in this approach, of course, is that money spent for better administration of criminal justice does not appear to produce the palpable results of defence expenditures or public works. Nevertheless, a properly staffed judicial system capable of coping with current caseloads, can produce revenue in the form of fines and costs which offsets all or most of the cost of operating them or, in some instances, even more. But even without that financial advantage, fair and speedy justice for all citizens is vital as a means of avoiding lawlessness and a deep-seated frustration which may find its expression only through an appeal to God, which is a euphemism for revolution.

39. What is required in the context of socio-economic development is a fundamental changes in the values governing human behaviour and the approach to problem solving. There was a time when honesty, integrity, efficiency and hard work were virtues encouraged through tangible rewards. Regrettably, it is a malady of our times that those qualities no longer are symbolic of the importance and effectiveness of judges. Steps must be devised and taken to change the ordering of society, so that judges once again feel and are made to feel that they are in a respected position within society, an indispensable factor for the effective administration of justice.

40. This chapter perforce is but a feeble effort to identify specific areas which demand immediate attention if the goal of fair, swift administration of criminal justice is to be achieved. Each developing nation should establish independent, effective agencies to investigate and prosecute criminal matters. These independent agencies must, however, coordinate their activities so as to ensure a unity of functions and results. The nation’s judiciary must be independent. The number of courts and judges must be enlarged sufficiently to dispose of current caseloads. Attention must be devoted to the nation as a whole in such matters, for eradication of illiteracy and the promotion of valid traditional social values. Appropriate changes must be made in substantive penal laws and procedural codes. Budgetary priorities must reflect these concerns. Only through a resolution of these pressing matters we can achieve an effective, efficient and fair administration of criminal justice.

Although so much has been said about the so called eighth amendment ever since the time of its inception, it has not yet assumed the character of a cliche; and it is not going to lose its relevancy so long as it stays on the Statute Book. It is obviously because of its impact in terms of consequences on our unenviable political and constitutional history. Regardless of all said and done, the subject has not exhausted itself and it still presents certain aspects to our view.

2. In his article published in The Nation on 15-1-1994, Mr. Fazal Qureshi observed that “If we are all agreed over Pakistan as a Parliamentary democracy, it should not be difficult to review the lengthy list of 59 clauses of eighth amendment to see where it deviates from the path of democracy. The sole guiding criterion of such an exercise should be merit, a fair assessment on the basis of which a particular clause should be retained, modified or totally scrapped.” He further said that the “eighth amendment was adopted on the argument of removing lacuna in the 1973 Constitution, specially to create a balance in the powers of the President and Prime Minister, then heavily tilted in favour of the Prime Minister”.

3. From the point of view of pertinence, two observations deserve notice. First that it is not difficult to review where it deviates from path of democracy. The second is that it was adopted on the argument of removing lacuna in 1973 Constitution. With all the respect due, the question regarding deviation from the path of democracy and the purpose of its adoption are, in my humble opinion, only secondary in nature. The foremost is whether it can, by any means whatever, be called or described as amendment. I would rather go to the extent of saying that its import and implications can become relevant only if it deserves the name and status of an amendment, in the sense this word is commonly understood.

4. For an answer, recourse will have to be made to the events, in the back drop of which this ‘amendment’ was placed on the Book. First of all it must always be borne in mind that Late President General Muhammad Zia-ul-Haq was the Chief Martial Law Administrator at the relevant time, who ruled the roost on the strength of the proclamation of Martial Law of 5^th July 1977 whereby the constitution of 1973 was held in abeyance and the Assemblies were dissolved. The field was held by the Laws (Continuance in Force) Order 1977 and the Provisional Constitution Order 1981, enforced by him in pursuance of that Proclamation and which was known as a black law. Of all importance was the fact that the country was under the yoke of a Dictator, the source of whose power was the Proclamation of 5^th July 1977 and not the will of the people and who, by virtue of that circumstance, had no authority whatsoever to effect any change in the Constitution of 1973 put in vogue by the chosen representatives of the people with a mandate. Furthermore, it may also be mentioned with advantage that whatever he did, had only one purpose in view and it was the prolongation of his autocratic rule as far as possible.

5. This was about the Author of the amendment. A few words about those to whom the adoption of this amendment is attributed. Section 11 of the Representation of the Peoples Act 1976 provides that as soon as the President makes an announcement of the date or dates on which the polls shall be taken, the Election Commission shall, by Notification in the official gazette, call upon a constituency to elect a representative or representatives. The requisite announcement having been made by the President, the General Elections were held on the 25^th of February, 1985, as a result of Notification dated 14.1.1985 issued by the Election Commission in pursuance of the President’s announcement.

6. Since the provisions of 1973 Constitution regarding fundamental rights were in abeyance, there was no freedom of association, no political party and no right to form or be a member of any such party. So the elections were held on non-party basis, evidently against the spirit of the Constitution which had the parliamentary form of democracy as its foundation. The least said is that these elections did not have the support of a Constitution framed by the people and were for that reason absolutely meaningless, bogus and a farce. Even if they be assumed to have had any substance, it was taken away by the abstinence of some major political parties. The result was that those who were returned to the Assemblies were without any commitment to the system of Government envisaged by the 1973 Constitution, which incidentally was the dictate of so much toil, sweat, anxious moments and the result of a consensus – an achievement of no mean proportions.

7. After the General Elections had thus been contrived and the National Assembly was ready to be commissioned, the late President rewrote the Constitution Book from one end to the other and came out with the Revival of the Constitution of 1973 Order 1985, which inter-alia provided that the Constitution of the Islamic Republic of Pakistan 1973 is hereby amended to the extent and in the manner specified. Para-4 of the Order laid down that the provisions of the Constitution, as amended by this Order, shall stand revived on such day as the President may, by Notification in the Official Gazette, appoint and different days may be so appointed in respect of different provisions. This was followed by the Notification of Enforcement of Constitution Order whereby the President was pleased to enforce the re-drafted Constitution with effect from 10^th March 1985. It would appear that though ostensibly revived, in actual fact the Constitution of 1973 was done to death for all intents and purposes.

8. It may here be mentioned as material fact that a peculiar feature of the Enforcement Order was that it made an exception in the case of the provisions of Articles 6,8 to 28 (both inclusive) Clauses (2) and (2)a of Article 101, Articles 199, 213 to 216 (both inclusive) and 270-A of the erstwhile Constitution. The purpose was never in doubt. Their enforcement was withheld to remain in a bargaining position. The sword of Martial Law was kept hanging over-head, closer to the necks of the Members thus elected, to be used to meet any eventuality which, though remote, could not be completely ruled out as impossible.

9. It was in the background of these facts that the re-drafted Constitution was placed before the Members of the National Assembly for ratification with their heads on the blocks. After a lot of wheeling dealing and lengthy sessions, the Constitution (Eighth Amendment) Act 1985 was passed. Section 1(2) of the Act provided that it shall come into force at once, except Section 19 which was to come into force on the day of revocation of the Proclamation of 5^th July, 1977. The merits or otherwise of this Act are not relevant to the subject matter and they will be dealt with on some other occasion. What we are now concerned with is that the Constitution re-drafted by the late President was ratified and adopted by the National Assembly with certain modifications. The point is that the purpose in view was achieved to the President’s satisfaction.

10. On 29.12.1985, a Notification regarding enforcement of the aforementioned remaining provisions of the Constitution was issued by the Ministry of Justice. It said that in exercise of the powers conferred by Article 4 of the Revival of the Constitution of 1973, Order 1985, the President is pleased to appoint the day on which the Proclamation of 5^th July, 1977 is revoked, to be the day on which those provisions of the Constitution shall come into force. In its wake came the Proclamation of withdrawal of Martial Law on 30.12.1985. It revoked the Proclamation of 5^th July 1977. The Laws (Continuance in Force) Order 1977 and the Provisional Constitution Order 1981 were repealed. The Offices of the Chief Martial Law Administrator, the Martial Law Administrators and all other Martial Law Authorities and Military Courts appointed in pursuance of the Proclamation of 5^th of July 1977 were abolished. It was further proclaimed that the powers of the Chief Martial Law Administrator to issue Martial Law Regulations, Martial Law Orders and Constitution Orders stood lapsed and with that went also the power of any Martial Law Authority subordinate to the Chief Martial Law Administrator to issue any order or take any action.

11. If considered in the background of these facts, what was done by the National Assembly of 1985, can hardly be given the name of an Amendment. My first reason in support of this view is that the Chief Martial Law Administrator had no authority whatsoever to effect any change in the Constitution. As already noticed before, he had a new draft prepared, not only under his supervision but with positive association, no matter how arduous in nature was the task, and his mind was there in almost every provision. The purpose of this contraption was to bring about a radical change in the complexion of the parliamentary system. Ordinarily, amendments in the prevalent laws originate in the Legislature. In the present case, however, we experienced a novel procedure, in that a new draft was placed before the Assembly and they were asked to endorse it under threat of the continuation of Martial Law.

12. Secondly, the Assembly managed by the General Elections of 1985, did not have the Constitutional sanction. This aside, it did not enjoy a truly representative character on account of the non-participation of some major political parties. By virtue of this circumstance alone, it was without any mandate, message or authorization to ratify and adopt the draft Constitution laid on its table.

13. Finally, we must keep our minds alive to the consideration that the word amendment’ conveys the sense of a positive and voluntary act. As we have seen, the Members were forced to deliver what they would not have normally done. They had come to the Assembly after so much expense and industry and they could ill-afford to lose their seats, which could have happened in case of an insurgency. They made no bones of the apprehension that there was imminent probability of the continuation of Martial Law in the eventuality of refusal to adopt the amendment, which amounted to a rapine of the Constitution. By no stretch of imagination could the Assembly’s adoption be regarded as the result of volition.

14. Therefore, as I look at the whole thing, the expression ‘eighth amendment’ is a misnomer and it might have had any effect, but that of modifying the 1973 Constitution. In the context of what has been said afore, it was, as they say at the bar, void ab-initio and of no legal effect whatsoever. By the same token, it is not susceptible of any review, and it is immaterial that it was adopted on the ground of removing any lacuna in the 1973 Constitution, or for that matter on any other ground. Any such argument, if at all there, was without factual foundation and fallacious.

15. I may not be taken to have suggested that the 1973 Constitution was or is a paragon and that it does not require any amendment. All I maintain is that the provisions commonly known by the name of ‘eighth amendment’ cannot possibly be supported on any legal terrain and that they should be struck down and effaced from the Constitution Book in sheer acknowledgement of their illegal character. Thereafter, it will be for the parliament to effect any change in the Constitution, it considers appropriate to suit the exigencies of socio-political conditions now obtaining in the country.

Before a critical approach to the proposed bill, it will be worth its while to examine what has already been provided in the Constitution and whether those at the helm since the inception of this State, have ever been sincere in the establishment of an Islamic Order, visualized by the Constitution.

2. The preamble of 1973 Constitution, inter alia, provides that whereas the sovereignty over the entire Universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust, and whereas it is the will of the people to establish an order wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah.

3. Article (2) of the Constitution says that Islam shall be the State religion of Pakistan. Then in Article (31) of Chapter 2 with regard to Principles of Policy it has been provided that steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be able to understand the meaning of life according to the Holy Quran and Sunnah. Clause (2) of this Article is to the effect that the State shall endeavour, as respects the Muslims of Pakistan:

a. to make the teaching of the Holy Quran and Islamiat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Quran;

Article 37 is also in place whereby the State has taken upon itself the Constitutional obligation of ensuring inexpensive and expeditious justice.

4. Article 29 of the chapter makes it the responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or authority of the State, to act in accordance with these Principles, in so far as they relate to the functions of the organ or authority. In clause (3) of this article, the President in relation to the affairs of the Federation, and the Governor of each Province in relation to the affairs of his Province, shall cause to be prepared and laid before the National Assembly or as the case may be, the Provincial Assembly, a report on the observance and implementation of the Principles of Policy, for discussion.

5. The provisions of article 203 D are also in point. Under clause (1) of this article, it is the primary function of the Federal Shariat Court to examine and decide the question whether any law or provision of law is repugnant to the injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet. Clause (3) of the article provides that if any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam, the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law, so as to bring such law or provision into conformity with the Injunctions of Islam; and such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the court takes effect.

6. Reference may also be made to article 227 which provides that all existing laws shall be brought in conformity with the Injunctions of Islam, as laid down in the Holy Quran and Sunnah and no law shall be enacted which is repugnant to such Injunctions. An explanation was added to this article by President's Order No.14 of 1980, which clarified that in the application of this clause to the personal law of any Muslim sect, the expression "Quran and Sunnah" shall mean the Quran and Sunnah as interpreted by that sect. By virtue of clause (3) of the article, nothing provided in relation to the Quran and Sunnah shall affect the personal laws of the non-Muslim citizens or their status as citizens.

7. In spite of the aforementioned provisions being there in the Book, P.O. No.14 of 1985 inserted Article 2-A, providing that the principles and provisions set out in the Objectives Resolution are hereby made a substantive part of the Constitution and shall have effect accordingly.

8. As for the principles and provisions set out in the Resolution, these are more or less the same as had already been enunciated in the 1973 Constitution. The change is that the expression “and that authority to be exercised by the People of Pakistan" in paragraph (1) of the preamble, has been replaced in para 1 of the Objectives Resolution with the expression "and the authority which he has delegated to the State of Pakistan, through its people for being exercised". The other change in the phraseology is that the statement "whereas it is the will of the people of Pakistan to establish an order" has been substituted in the Objectives Resolution by the statement that "this Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan".

9. It may be mentioned as important that in the preamble as also in the Objectives Resolution we find the provision that the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed.

10. This detailed address has been considered necessary to point out that those who were in charge of the framing of the Constitution wanted to underscore the fact, in unequivocal terms, that the State is bound, in exercise of the power delegated to it by Allah Almighty through the people of Pakistan, to establish an order, where the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed and where the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah.

11. These provisions speak for themselves and nothing can be more clear to establish, without an iota of doubt, that these are sufficient to achieve the required purpose, that is to say the establishment of an Islamic Order. Despite this, it is common knowledge that this goal has not only remained a dream so far, no serious attempt seems to have ever been made by those who have been in charge of the affairs of this Country for the last about forty years; which makes us feel that the provisions with regard to Islamization were meant only to adorn the Constitution. They betray a sub-consciousness that failure on their part to cause a particular impression regarding Islamization, is bound to invite an adverse criticism from the people. One feels obliged to think that the real purpose in the background has always been the promotion of self interest and self preservation and that the Republic is described as Islamic only in name.

12. And in the wake of very clear provisions to that effect in the Constitution, comes the present amendment bill now introduced in the National Assembly. Its preamble is a literal reproduction of what has already been stated and provided in the preamble of the Constitution and the Objectives Resolution. It inter alia says that "whereas Islam enjoins the establishment of a social order based on Islamic values, of prescribing what is right and forbidding what is wrong (amar bill Ma'roof wa nahi anil-munkar); and whereas in order to achieve the aforesaid objective, it is expedient further to amend the Constitution of the Islamic Republic of Pakistan, now therefore, it is hereby enacted as, follows:

13. The expression "Amr-Bill Ma'roof' has been translated by most of the scholars as "to enjoin what is right". In the preamble and then in clause (2) of article 2-B of the bill it has, however, been rendered as "to prescribe what is right". The word 'prescribe' goes with various meaning and connotations, but its popular definition is "to lay down a commandment, law or a rule". If taken and understood in this sense, the word 'prescribe' does not appear to be a correct translation of the word 'Amar', for what is right (Ma'roof) has already been clearly laid down in the Holy Book and nothing left to the 'prescription' of any person, much less to that of the Federal Government, as it appears to have been conveyed by these provisions. What is left to us or class of persons from amongst us is only "enjoin what is right". (Sura AI-i-Imran-verses 104 and 114 of the Text).

14. It is however, suggested that on account of the nature of the subject, as also because the expression "to provide what is right" is capable of conveying different messages, it would be proper and expedient to have recourse to the Ulema and Scholars of the languages concerned, for a consultation as to the exact import of the expression "Amr-Bill Ma'roof' used at various places in the Holy Book and which in the present case is the subject of discussion.

15. There is another aspect of the matter. It may be assumed that "prescribing what is right" is synonymous with "enjoining what is right". But then it is not possible to perceive that this goal can be achieved only by further amending the Constitution, and that too in the manner proposed in the amendment bill. As already elucidated, this object can be attained by having recourse to the relevant provisions mentioned above, already their in the Book and no further amendment is either appropriate or in any way required. The existing provisions are not only sufficient to get the needful done, they rather enjoin and positively demand the establishment of such a social order by the State.

16. Seen in the context of these considerations, the proposed amendment in the Constitution becomes only a redundant affair. In that case, it would lead us to the surmise that the purpose is not the actual Islamization of laws or the establishment of a social order based on Islamic values, but the imposition of an absolute and autocratic rule in the name of Islam as is supported by what is intended to be enacted by clauses (3) and (5) of article-2 B and the provisions of article 3-A of the bill. This clearly amounts to an attempt to mislead the masses and the perpetration of a brazen faced fraud on the constitution.

17. Clause (2) of article 2-B of the bill provides that Federal Government shall be under an obligation to take steps to enforce Shariah, to establish Salaat, to administer zakat, to promote Amar Bill Ma’roof and Nahi Anul Munkar (to prescribe what is right and forbid what is wrong), to eradicate corruption at all levels and to provide substantial socio-economic justice in accordance with the principles of Islam as laid down in the Holy Quran and Sunnah. As seen, the Federal Government is already under an obligation, in consequences of the provisions of article 31, to take steps to enable the Muslims, individually and collectively to order their lives in accordance with the fundamental principles and basic concept of Islam, to promote unity and the observance of Islamic moral standards and to secure the proper organization of Zakat, Ushr, Auqaf and mosques. Likewise, under the objectives Resolution and the preamble of the Constitution, it is already the duty of the State to ensure the observance of the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam. This being so, there is no need for further amendment in the Constitution, especially when under article 227 (1) of the Constitution, the Federal Government is already constitutionally bound to bring all existing laws in conformity with the injunctions of Islam. The only difference made by clause (2) of the proposed bill is to provide "substantial socio-economic justice" in place of equality and social justice. Considering that 'justice' includes "substantial justice" the use of word 'substantial' was not necessary. Even if no motive is attributed to this avoidable addition, the interpretation of the word having been left to conjecture, there is room for a genuine apprehension that it may, at any time, be used as a license, by whosoever is at the helm, to do whatever he likes, in the name of 'substantial justice'.

18. These considerations apart, one wonders what is there in the existing Constitution or elsewhere to obstruct the enforcement of Shariah, to establish Salat, to administer Zakat, to ordain right and forbid wrong, to eradicate corruption at all levels and to provide such socio economic justice in accordance with the principles of Islam. These are in fact subjects for substantive law which can always be made by the legislature on the basis of existing provisions of the Constitution.

19. The statement of objects and reasons is still more superfluous than the provisions of the preamble of the proposed act. It says that in view of the fact that the Objectives Resolution is now substantive part of the Constitution, it is necessary that Quran and Sunnah are declared to be the supreme law of Pakistan, and the Government is empowered to take necessary steps, to enforce Shariah. One would say that these powers are already there in abundance under the Constitution; and as for the supremacy of Quran and Sunnah, it hardly is in need of a declaration by the Government. Quran and Sunnah constitute Supreme law as already declared in the Quran itself and by the Holy Prophet on numerous occasions. Even if such formal declaration was at all required, it can easily be spelled out from the existing provisions.

20. Incidentally, this statement of objects and reasons reminds us of the question referred to referendum under para 4 of the Referendum Order of 1984, to the following effect: Whether the people of Pakistan endorse the process initiated by Gen. Muhammad Zia-Ul.-Haq, the President of Pakistan, for bringing the laws of Pakistan in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (peace be upon him) and for the preservation of the ideology of Pakistan, for the continuation and consolidation of that process and for the smooth and orderly transfer of power to the elected representatives of the People. "Para 5 of the Order said that it shall be answered either by 'yes' or 'no'. What followed in para 7 of the Order was atrocious. It enjoined that in the event of 'yes' answer by a majority of the votes cast in the Referendum, Gen. Muhammad Zia-ul-Haq shall be deemed to have been duly elected President of Pakistan and that too for a term of five years from the day of the first meeting of the Houses of the Parliament in joint sitting. This incident in the history of our Constitution and Country, is beyond the scope of any comment, by whosoever dare take up this exercise.

21. The mischief intended by the amendment comes to light in clauses (3) which cuts too close to the bones. It provides that the Federal Government may issue directives for the implementation of the provisions set out in clause (2) and may take necessary action against any State functionary for non compliance of the said directives. It is pertinent that the proposed amendment does not say that the Federal Government may by law ensure the implementation of these provisions. As it now goes, the draft has rendered the Parliament absolutely irrelevant and superfluous, evidently because the directives sought to be issued by the Federal Government will neither be the result of, nor in pursuance of any law passed by the Legislature. The powers sought by Federal Government under this clause are limit less and beyond the imagination of those concerned with the making of laws.

22. The apprehension that this amounts to the introduction of a despotic rule, would certainly not be without substance, which finds further support from what follows in clause (5) of the Article. It says that "provisions of this article shall have effect, not withstanding any thing contained in the Constitution, any law or judgment of any Court". It overrides everything to the extent of repugnancy and renders, all in one go, the higher judiciary and legislature as absolutely irrelevant and redundant; which is clearly suggestive of the fact that, in case the proposed amendment is carried, whatever of the democratic dispensation is still there in actual practice, is bound to go by the board.

23. The gravity of the situation becomes all the more serious when seen in the background of the fact that there is absolutely nothing in the bill to suggest the establishment of any institution or body to determine what is Shariah and what exactly is the scope of "Amr Bill Ma'roof and Nahi Anil Munker'. All this has been left to the discretion of those responsible for managing the affairs of the State under the Prime Minister. Another question relevant to the subject is as to who is entitled to enjoin what is right and to forbid what is wrong, and whether any such enjoining can validly and legally be within the Competency of the Federal Government, considering that only that person can order the doing of right and forbidding of wrong who is himself fully conversant with the subject. Then, the category of ‘Ma’roof’ covers and refers only to those acts which are conclusively established and known as good things. These considerations in view, there can be no effective legislation on the subject without the association of those who are conversant with the Quranic Injunctions. Since there is no provision with regard to any such association, clauses (3) and (5) of the bill are arbitrary and absolutely unjustified.

24. These apprehensions are further strengthened with a closer application to the provisions of article 3-A of the bill which altogether changes the procedure laid down for amendment of the constitution, now possible under Art. 239, only if the bill is passed by the votes of not less than two thirds of the total membership of both the Houses. If the present bill is passed, it will be possible to amend the Constitution by a simple majority of the Members present, if the amendment is sought in the Constitution to provide "for the removal of any impediment in the enforcement of any matter relating to Shariah and the implementation of the Injunctions of Islam". Here the question arises as to who is going to determine whether a particular bill to amend the Constitution is going to provide for the removal of any impediment in the enforcement of any matter relating to Shariah and the implementation of the Injunctions of Islam. There being no definition of the word 'impediment', what is to be understood by the provisions of future amendment bills, has also been left entirely to the discretion of the Federal Government. For these reasons, you might reasonably feel that the amendment bill amounts to a declaration of the supremacy of the Federal Government under the Prime Minister, rather

that of the Quran and Sunnah of the Holy Prophet (Peace be upon him); more so, when the President will be constitutionally bound to fulfill the formality of assent to the amendment bill within seven days of its presentation. This assent is obviously less than even a formality and one wonders whether the word 'assent' can be reasonably ascribed to what the President is bound to do within seven days.

25. The provisions of the Bill leave almost everything to the imagination and discretion of the Federal Government and it is not possible to foresee, much less comprehend, the extent and scope of directives to be issued to the state functionaries. Nor is there anything to show what exactly is the import of the expression "State Functionaries" and to whom will the directives be addressed. These considerations in view, the bill is highly speculative, and one cannot help saying, without intending any thing derogatory of the Legislature, that they would not be knowing as to what exactly are they going to lay down by the passage of this blind package and what would be its repercussions. Because of certain ambiguities inherent in its provisions, its passage will not be the result of democratic process and the association of the people. It is one of those many situations we have come across during the last fifty years, rather than the introduction of a system.

26. The bill seems to have left everything to be desired and it is by no means reflective of the strenuous efforts, 'extensive consultations' and 'thorough considerations' of six months, as the Minister for Religious Affairs is reported (The Nation of 1st September) to have claimed, during a briefing he hosted in his ministry for the representatives of certain religious parties. This self serving style of drafting appears to have gone awry and given the game away. In spite of padded shoulders, the slips are clearly showing; and the Prime Minister will be well advised to allow this piece to wither on the vine, instead of rail roading it, if not for any other reason, simply because it is too controversial and being considered a media hype.

27. While supporting the amendment, the Prime Minister is reported to have said in the PML parliamentary party meeting on 03-09-1998 (The nation of 04-09-1998) that the "people need socio economic justice" and that "law and order can be restored through Islamic justice". What cannot possibly be understood is that if they are really interested in producing these results, why don't they take steps in the Islamic way to recover billions of rupees in criminal default, which is the mother of all ills. In God's name why don't they set out, sword in hand in the manner of Hazarat Abu-Bakar Siddique, and crack down on those who owe huge amounts of public money to the Banks, Wapda, PTC and other financial institutions. Why, in the name of this dear land, they do not disclose the names of those who had their loans written off and who have taken millions of dollars out to the foreign banks during the period after 11-05-1998. Why don't they speak of taking steps to retrieve that money to bring down the rate of dollar and to stabilize the sinking ship of Pakistan's economy.

28. Under the crunch period we are passing through, there is no greater offence against Islam than fraud and the criminal misappropriation of public money and forcing, in direct consequence, the poor and bourgeois to near starvation. This recovery of billions in the interest of the masses, will by far be the greatest act of "substantial socio economic” justice, in accordance with Injunctions of Islam. Let us endeavour to save and keep in tact the country to remain available for Islamizaition, by restoring the confidence of the people in its viability. Pray take steps to do it Mr. Prime Minister please.

Welcome Address by Chaudhry Hasan Nawaz, Director General, Federal Judicial Academy at the Inaugural Session of a Workshop on Citizen-Court Liaison Plan - Bridging the Divide held on 20.9.2003

In the context of Access to Justice Programme, this is the inaugural ceremony of a workshop to workout a strategy for the preparation of Citizen-Court Liaison Plan. The proposal is to create Citizen-Court Liaison Committees at each district headquarter in the country as a means of establishing an institutionalized interface between citizens and the formal judicial system. An institutional mechanism is required to be designed to facilitate the public in accessing the judicial system in a friendly and service-oriented environment. The interaction in contemplation between the citizens and the judicial system is a logical extension of the current reforms initiatives.

2. As I understand, one of the conditionalities for the release of incentive tranche of the access to justice loan is that the High Courts should formulate and approve a time bound and costed Citizen-Court Liaison Plan for implementation during the financial year of 2002 - 2003. The plan should include, amongst other things, the establishment of information centres and launching of public information campaign.

3. The theme reminds me of the directive given by Caliph Hazrat Ali to the then Governor of Egypt. It ordained:

"Maintain justice in administration and impose it on your own self and seek the consent of the people. It is the common man who is strength of the State and of Religion. So live in close contact with the masses and be mindful of their welfare".

4. In the background of what I have said, I wish to raise a few points for serious application:

• The Caliph's directive was in the spirit of Quranic injunctions and an authoritative pronouncement of the fact that people are the real strength of the state. By virtue of that circumstances, we are therefore religiously bound to remain in close contact with the masses and be mindful of their welfare.

• The establishment or designing of a mechanism to facilitate the people's access to the former judicial system is for us an indispensible religious obligation for fair and effective administration of justice.

• Reference to the Caliph's directive purports to give the plan in contemplation a pristine look and highlight the fact that this workshop has been organized for the formulation of a Citizen-Court Liaison Plan, in renewal our pledge to the people and continuance of the legacy of Islam.

• In accomplishing this task, we have to act in a manner as would clearly convey a definite message that this plan is being put in place, not necessarily to get the incentive instalment, but for an improvement in our judicial system and that the fulfillment of sponsors conditionality is only incidental.

• We need to launch a comprehensive plan oriented to our problems with defined objectives and set out a detailed strategy to be adopted at each face of the plan to see us through. We have to ensure that it is intensive in range and ambitious in scope, embracing whole series of new measures for easy and economical access to justice.

• The success of any such plan depends upon the ability of those who are entrusted with the task of its execution. We should, therefore, make sincere endeavours to ensure that efficient, honest and responsible people with commitment are taken on the Committees.

• Top priority should be given to human source development. Under the conditions now obtaining we are in dire need of reformation of self and this might as well be taken as the workshop's mission statement.

• The above mentioned objectives cannot possibly be achieved without commitment and dedication. I have no doubt in my mind that perfunctory and casual approach to the problem is bound to end in fiasco.

• We have to evolve a system and institution rather than just a situation; which I say because situations never stand the test of times.

• We need to set a bench mark for attitude, determination and approach to the reform process.

• Any plan made without commitment and due application of mind would be seriously lacking in originality. It will be nothing more than a mere lip service. I want to point out that the things which last, are only those that are original.

• We have to press our resources to workout a strategy for an effective plan, as a big event in bridging the gap between the people and the justice system. We have serious problems and challenges in making the system amenable to the demands of the people and to make it responsive to evergrowing criticism. The plan in contemplation can be a big event only it has the capacity for a deep and positive impact, to undercut the rigour of those challenges.

• The High Courts should assume leadership role for the evolution, development and successful implementation of this plan - a leadership which conveys the sense of a character that inspires confidence and that of a capacity to rally all concerned to a common purpose.

• We must discard the status quo and our unwillingness for a change in the system of judicial dispensation. But this change should emanate from and be dictated by the local conditions and environment.

• We will have to direct our efforts towards the development of a new landscape with value based judicial ethos, essentially wedded with piety, which pulverises the evil and sordid spirit of vested interests.

• The last point, which I mention with a sense of pride is that this workshop is being held at the Academy's forum, obviously in acknowledgement of the fact that it is the fulcrum of the judicial and legal reform project.

5. I am conscious of the fact that this was supposed to be a welcome address. In spite of this awareness, however, I have said a few things to provide the idea of this Plan with a philosophical perspective and take it out of the shadows of traditional, run of the mill addresses. But it is a welcome address nevertheless. With these words, I welcome the Hon'ble chief guest, worthy guest speakers and the distinguished guests and participants to this inaugural ceremony and the eventual workshop on behalf of the Judicial Academy and the Programme Management Unit of the Ministry of Law, Justice and Human Rights.