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Supreme Court Of Pakistan Needs To Do More To Restore
Coverage by Parwaiz Imam (Editor Community Events English Section)

Riyadh, Saudi Arabia, April 30, 2001 – Much more is required to done by the Supreme Court (SC) of Pakistan to restore the image and confidence of the people in the judiciary as an institution strong and independent enough to safeguard their rights and provide redress against the government excesses. The concept of good governance is likely to remain a dream and an illusion unless judiciary is transformed into a strong and independent institution capable of safe guarding the rights of the citizens and providing them quick redress against excesses of the government in power, said justice Saeeduzzaman Siddiqui, the former chief justice of Pakistan who refused to take oath under the PCO of the present Chief Executive General Pervez Musharraf and had no option but to retire.
He was addressing a large gathering of Pakistanis on the occasion of their National Day held at the Hyatt Regency by Pakistan Cultural Group (PCG). The group with its secretary general Abdul Hameed Abu Farooq has also invited a distinguished writer and poet Dr. Inamul Haque Javed of Allama Iqbal Open University, Islamabad to be one of the speakers to celebrate the Pakistan National Day.
Besides Siddiqui and Dr. Inamul Haque, Pakistan’s ambassador Muhammed Asad Durrani also graced the occasion, which was attended by diplomats, eminent writers, poets and businessmen from cross section of the community. While praising the sincere efforts of overseas Pakistanis, especially those residing in the Kingdom in supporting their country and bringing good name for their nation, he said, "it is a unique opportunity for me to address a gathering of this kind in a foreign land. I considered it a unique for two reasons. Firstly, as a judge of the superior court of Pakistan, I used to speak only through my judgments and avoided public appearances that kept me away from public gaze for almost twenty years. Secondly, at the time I entered the office of the judge of superior court, I signed the Code of Conduct issued by the Supreme Judicial Council that required every judge of the superior court to shun publicity and keep away from the thicket of politics and public controversies."
These are the normal constraints of the office of the SC judge in Pakistan. Having relinquished my office as Chief Justice, more than a year ago, these constraints are no more in my way. I therefore, consider it my duty now to speak to my countrymen and share my experiences of life with them on issues of public and national importance and it is in this spirit that I address you in Riyadh.
Muslim throughout the world traditionally regards Saudi Arabia as the fortress of Islam. Pakistan too considers Saudis as its natural and trusted ally. Like Saudi Arabia, Pakistan also remained in the forefront in dealing with issues relating to Muslim Ummah. Both the countries have identical views on majority of important international issues. This identity of approach on issues of common interest promoted close brotherly relation between the Government of Pakistan and Saudi Arabia. It is not the bond of religion alone that binds our two countries that inspired respect and love for the Saudi Government and its people in the heart of every Pakistani. It is the concern and the principled stand always taken by the Saudi Government on maters concerning Muslim Ummah throughout the world in general and Pakistan and its people in particular that led the Government and people of Pakistan regard Saudi Arabia as dependable ally and a friend in need. Furthermore, the presence of strong Pakistani community here bears testimony to the love and respect that they have for their counterpart. The people of Pakistan value greatly the political, moral and economic support extended by the Saudi government to Pakistan on every critical juncture of its 53 yeas of existence.
We are celebrating Pakistan Day at a time when the country is once again off the democratic rails and facing political isolation and an extremely difficult economic situation. There is tremendous pressure by the International community in general and donor countries in particular for restoration of democratic institutions and good governance in the country. Pakistan, as we all know, was created as a result of constitutional and democratic struggle launched by the Muslims of sub-continent under the able guidance and leadership of Qauid-e-Azam Muhammed Ali Jinnah. He perceived Pakistan as a modern, democratic Islamic state, where all its citizens irrespective of their religious, social and political status enjoyed equal opportunities and protection of law.
Unfortunately, we failed to realize this dream till today and are still wandering in political wilderness to discover our identity. Though we achieved independence in August 1947, we failed to evolve a Constitution based on national consensus for almost nine long years, which proved a great set back in the process of nation building. When we finally succeeded in framing a Constitution based on national consensus in 1956, it proved a short-lived document, as a Military Dictator abrogated it in October 1958. This proved to be the first seed of discord sowed in the national politics. The Constitution of 1962 given by the Military Dictator could not promote national integration and cohesion. This document too was not followed in its letter and spirit by the rulers and was ultimately abrogated by another Military Dictator in 1969, placing the country once again under the totalitarian military rule.
The absence of Constitutional rule and our consistent failure to follow the democratic norms led to the tragic events of 1971 and we not only lost half of our country but suffered unprecedented humiliation in the erstwhile East Pakistan when our ninety thousand troops surrendered before the invading Indian Army.
In the aftermath of the event of 1971, we framed another Constitution in 1973 through consensus of the remaining four federating units of the then West Pakistan. However, it appears that we were not prepared to draw any lesion from the events of the past as the country was placed under Martial Law for the third time in July 1977 by another Military Dictator holding the Constitution of 1973 in abeyance. Between the periods from 1985 to 1997 the country went through the process of five general elections under the Constitution of 1973 but none of the elected governments were able to complete their constitutional term of five years, leading to a political instability in the country. We are once again under the Army Rule and the Constitution of the countr7y stands suspended. We have been messing our affairs too long. We are known for our extravagance world over. We have been living beyond our means. We indiscreetly obtained loan from International Agencies and grossly mismanaged our economy.
He pointed out that today, politically and economically battered Pakistan, is once again standing on the cross road looking forward to its allies and friends for a stronger and more sustained support in its battle for economic and political survival as a self respecting, dignified and sovereign State in the comity of Nations.
The concept of freedom and independence in today’s world is closely linked with the economic independence. For an economically dependent and debt ridden country, the concept of independence and sovereignty is illusive. A country groaning under heavy debts is under constant threat and pressure by the donor states to make concession on issue of domestic and international impotence to the liking of its donors thus opening the door for inroads in its independence and sovereignty. The International donors, sometimes being unaware of the ground realities force the indebted country to take decision contrary to its national interest to safeguard the interest of donor countries that add to the miseries of the already over burdened population of the indebted country. This is the situation we are facing now. To this date, we have not been able to evolve a strategy to get out of the debt trap. The present policy followed by the Government to obtain more loans from International donors to meet its debt commitment is unlikely to produce any positive result. Quaid-e-Azam Muhammed Ali Jinnah, the Father of the Nation, in his speech at the opening ceremony of the State Bank of Pakistan, on July 1, 1948 made the following comments on the banking and economic system:
"I shall watch with keenness the work of you research Organization in evolving banking practices compatible with Islamic ideals of social and economic life. The economic system of the West has created almost insoluble problems for humanity and to many of us it appears that only a miracle can save it from disaster that is now facing the world. It has failed to do justice between man and man and to eradicate friction from the international field.
On the contrary, it was largely responsible for the two world wars in the half century. The Western world, in spite of its advantages of mechanization and industrial efficiency is today in a worse mess than ever before in history. The adoption of Western economic theory and practice will not help us in achieving our goal of creating a happy and contended people.
We must work our destiny in our own way and present to the world an economic system based on true Islamic concept of equality of manhood and social justice. We will thereby be fulfilling our mission as Muslims and giving the humanity the message of peace which alone can save it and secure the welfare, happiness and prosperity of mankind."
This quoted observations of the Father of the Nation on the economic system of Pakistan through made more than half a century ago still hold good and call for serious consideration by our economic managers while laying down the parameters of our economic policies.
I am not a politician. I also do not claim to be a reformer or a philosopher either, said former chief justice. I spent twenty years of my life as a judge of the Superior courts struggling for the supremacy of rule of law and independence of judiciary. Even before joining the superior judiciary, I was associated with this august institution for about twenty years as a practicing lawyer at Karachi. My long association of about forty years with the institution of judiciary has oriented my approach to all problems in life based on objectivity without being influenced by extraneous matters. The economic and political situation prevailing today is by means enviable. Our economic mismanagement has shaken the roots of the Federation. Lack of employment opportunities for educated youths and absence of creative activities in the economic field has sent the law and order situation in the country crumbling down.
The escalation of conflict in occupied Kashmir continues to prove a burden on the meager economic resources of Pakistan. The society is polarized in the absence of political process. The nation stands divided on ethnic and sectarian lines. Despondency prevails in every walk of life. Absence of commitment and faith in the future of country has encouraged drain of talent and economic resources out of country. We cannot survive in this situation for long. Serious efforts are needed to arrest the prevailing despondency in the society. Efforts are required to restore the public confidence in the institutions of the state. An early return to democratic process may help restore the image of Pakistan as a moderate civilized state in the international community. Our foremost problem today is lack of good governance and a viable economic base.
Pakistanis living abroad have always shown more concern and rational approach to the developments back home as compared to those living in the country. I am sure their reaction to the prevailing situation will not be different this time also. They should come forward to support all genuine and legitimate efforts for restoration of economic activities in the country and in building a better image in the outside world. For good governance the institution of judiciary is to be strengthen and its independence as contemplated in the Constitution is to be secured.
The chief justice went on to say that all of you invited me in this function and must be anxious to hear my views on the role of judiciary in national affairs and specially its performance in the recent past. You justifiably expect me to tell about the functioning of judiciary in the country as until recently I held the office of Chief Justice.
Judiciary is regarded as a vital institution in maintaining harmony, promoting national cohesion and good governance. The primary function of judiciary is to enforce "rule of law" and maintain balance in the society. Law regulates conduct in a manner that each and every one is given his due and no one suffers wrong or injury without remedy. The administration of justice is regarded, world wide, as a great instrument of civilization. The growth of civilization has always had a nexus with the way and manner the administration of justice function. The system of administration of justice, indeed, expounds the triumph of reason and common sense over the use of crude force. It conveys the sense of justice, fairness and equity amongst citizens. This I why both under the injunction of Islam and the modern norms of international law, judiciary is given a central place and the position of an arbiter between the state and the citizens.
The civility of a society, therefore, is judged by the system of administration of justice-practiced by it and the adherence and respect its rulers and people show for the rule of law. The more a society is civilized the greater degree of respect and adherence its people and rulers show to the rule of law. "Rule of Law’ has always been a preferred option as compared to "rule of men" in civilized societies. Great civilizations and successful nations owe their existence and sustenance to their adherence to the rule of law. Human history is replete with examples that great civilizations were wiped out of the surface of earth when the rule of law disappeared from those societies. Law emerged with the creation of man. With the birth of Adam, came the command: "thou shall not…" and for disobedience punishment followed. Islam lays much emphasis on the rule of law in every aspect of life. The rulers and rules are placed on the same pedestal in matters of application of law under the Islamic system of governance. There has been a long running conflict between "law" and "order".
Plato addressed the issue some 2000 years ago by asking: " Is it more advantageous to be subject to the best men or the best law". The answer was more or less uniform. Aristotle responded that the rule of law is the preferred option. Thomas Jefferson, the US president, echoed the same preference by proclaiming that "we want to be ruled by law rather then men". Consequently, in our contemporary world, there are no two opinions as to the universal consensus on "rule of law".
Judiciary in Pakistan is assigned the role of a neutral umpire in conflict and dispute amongst citizens or between government and citizens. To be able to discharge this mandate effectively and efficiently, the Constitution confers upon the judiciary a unique prerogative of being free, impartial and independent. The success of judiciary as a free, impartial and independent institution however, largely depends on the faith and confidence reposed in its working by the common man. Without strong public support judiciary cannot be transformed into a strong and independent institution. The people consider judiciary as the custodian of their rights. They look towards the judiciary for enforcement of their fundamental rights guaranteed under the Constitution. They expect judiciary to intervene and do it promptly, against the excesses of the government in power. These are the legitimate expectations of the people and judiciary must live up to them.
Unfortunately, our rulers without any distinction whether they were from civil or military cadre, did not cherish the independence of judiciary. They all considered the institution of judiciary as a threat or a challenge to their rule. This unrealistic and misconceived approach of the rulers adversely affected the growth of judiciary as an independent and strong institution capable of safe guarding the rights of citizen and promoting good governance.
Judiciary too unfortunately failed to assert when occasion arose leaving its record of performance not very enviable. The pronouncements of Supreme Court in Moulvi Tamizuddin, Dosso and Begum Nusrat Bhutto’s cases did not inspire public confidence and are considered outcome of compromised approach by the court on issues of vital national and constitutional importance. The Supreme Court did assert its independence in Asma Jillani’s case by declaring the seizure of power by the Military Dictator as an act of usurpation but the decision was of little practical value as the Military Dictator had departed from the scene by the time the decision came from the highest court.
The judgments of the SC in Mian Nawaz Sharif’s case restoring the dissolved assemblies and striking down the order of a sitting President of Pakistan, declaring he constitution of Military Courts by the civilian government of Sharif in Sh. Liquat Hussain’s case as unconstitutional and ruling in Sardar Farooq Leghari’s case that despite promulgation of Emergency by the President, the fundamental rights guaranteed under the Constitution continue to be operative are the silver linings for the judiciary.
He pointed out in the end that we are no doubt passing through a critical phase of our national life but despite these difficulties, there is no reason to allow despondency overtakes us. Allah has blessed us in its infinite mercy with plenty of natural resources. Its people are industrious and hard working. They faced difficult times in course o their national existence in the past as well but came out successful.
They always offered great sacrifices in men and material to preserve the national honor, solidarity and integrity. With the divine guidance, we will be able to see off the present difficult time as well, very soon. Let us pray to Allah and hope to see a better and prosperous Pakistan when we meet next year to celebrate the Pakistan Day.
He thanked the PCG for giving him this great chance to share his views with the distinguished guests.
It may be mentioned that PCG was formed eighteen years back in Riyadh. Besides holding two grand functions per year, it also provides financial assistance to the poor and sick persons in the community. Furthermore, during the emergency back home, it also arranges much needed financial aid as was done for the drought victims.
Assisting Farooq in this get together were Dr. Riaz Javed Khawaja, Khursheed Ahmed, Dr. Tahir Paul, Dr. Rao Ishtiaq Khan, Tariq Soomro and eminent economist Tariq Javed.

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