The following is one of the papers read by Justice Haleem  in the FOURTH INTERNATIONAL CONFERENCE OF APPELLATE JUDGES, AT KUALA LUMPUR, MALAYSIA APRIL 20-24, 1987

COURT AS THE GUARDIAN OF THE CONSTITUTION

I begin with the words: –

“I will preserve, protect, and defend the constitution of the Islamic Republic of Pakistan.”

This is one of the Articles of the Oath of office in my country, and is a Constitutional Obligation of all those Judges who take Oath of office as Judges of the Superior Courts.

The words: “preserve, protect, and defend” are inter-changeable and equate squarely with

the meaning of the word “Guardian” in the topic under discussion. They connote the pious duty and a sacred trust to uphold the constitution, meaning thereby the total realization of its manifold contents. The constitution generally embodies the fundamental principles upon which the government of the country should be established and conducted. Any country can have its own pattern or form of constitution according to its needs. It may take a variety of forms, but whatever form it takes, it is the Judges who say what the Constitution is. Let me here repeat the admirable words of Chief Justice Hughes of the Supreme Court of the United States of America: –

“We are under a Constitution, but the Constitution is what the Judges say it is.”

This has reference to the formidable weapon which the Judges Possess to interpret the Constitution. This right the Superior Courts have always claimed not de honors the constitution, but by reason of the fact that it is the constitution itself which has set up the superior courts. It is not necessary for this purpose to invoke any divine or Supernatural right, but this power is inherent in the court itself . It exists so long as the Superior court exists and cannot be taken away by any legal device. Conceptually, therefore, the constitutions and the courts cannot be separated; together they form one institution: and it is the court which is the living voice of the constitution. The Constitution is the Supreme Law of the Land.1 It is the highest authority.2 No person, no branch of government has the right to set the constitution aside; its words and its rules are Laws. 3 But it is the province of the courts to say what the provisions of the constitution mean.

The power to interpret the constitution under the American System is controlled by different school of thought like the Ultra-Conservative School and the Conservative School. The former owes its origin to the principle that the constitution is a rigid, inflexible, written instrument, whose meaning was fixed when it was adopted, and is not subject to any interpretation at a subsequent time which would change such meaning.

1- Lawrence M. Friedman: American Law, W.W.Norton and Company, New York, 1984,p.180

2- Ibid

3- Ibid

It cannot receive any construction not warranted by the intentions of its founders. It is not subject to the influence of public opinion.1

In support of this view, Judge Coolay said: – “a Constitution is not to be made to mean one thing at one time and another at some subsequent time when new circumstances may have so changed as perhaps to make a different rule seem desirable.”2 If new circumstances require changes, these must be made by amendment by the people themselves.3

The Conservative School, however, regards the Constitution, although written, as a flexible instrument. By interpretation, it must be given the flexibility necessary to bring it in full accord with what the courts believe to be in the public interest. The flexibility does not apply to the meaning of the constitutional provisions, but to the application of the principles of the constitution to new facts and conditions.

Justice Mckenna in Merrick v. N.W.Halsey & Co. said: – 4

“It is the peculiar value of a written constitution that it places in unchanging form limitations upon legislative action. This, however, does not mean that the form is so rigid as to make government inadequate to the changing conditions of life, preventing its exertion except by amendments to the organic law.”

1- State V. Showalter, 159 Wash. 519, 293 Pac.1000

2- Cooley, Constitutional Limitations, 54-55; Rammussen V. Baker, 7 Wyo. 117, 50 Pac.819, 38 L.R.A.733

3- State V. Showalter, 159 Wash. 519, 293 Pac. 1000

4- 242 U.S. 568.

These philosophies are in sharp conflict, and in many judgments invite confusions and contradictions. Marshal, anticipating the political will of the future, expressed in McCulloch v. Maryland and Martin v. Hunter (1) in these words: –

“The Constitution … was not intended to provide merely for the exigencies of a few years but was intended to endure through a long lapse of ages, the events of which were looked up in the inscrutable purposes of Providence.”

These schools in the American systems still exist and are recognized as strict and liberal constructionalists. The school of liberal construction has also two divisions, the one treats the constitution as in the nature of the living organism or dynamic process, and is composed of the liberal leaders in national affairs. The other consists largely of historians, economists, teachers and others whose reasoning is not bound by legal precedent. In order to distinguish these two branches, the first has been referred to as the liberal school and the second as the pedagogical school. But in recent years there have been refinements in interpretation. The liberal school envisages the Marshallian philosophy. This is best expressed in Justice Reed’s words: – (2)

“The disagreements as to the meaning of great clauses of the constitution forming the basis of social and economic legislation, is the surest evidence of their flexibility. It will be an unfortunate duty if there is ever general agreement that the nation’s exercise of federal power has reached its limit; that no further changes however desirable or needed cannot be accomplished without the uncertainties, delays, and difficulties of fundamental constitutional amendments.”

1- Beveridge, Life of John Marshall, p. 531

2- Reed, the Constitution of the United States (September, 1936) 22 am. Bar Assn Jour. 601 Missouri v. Holland, 252 U.S. 416, 64 L.ed.641, 11 A.L.R.984; Rupert v. Caffey, 251 U.S.264, 64 L.ed. 261.

According to Justice Holmes, the constitution is a living institution whose provisions do not constitute mathematical formulas having their essence in their form. Rather they are organic living institutions transplanted from English soil.1

Considering their significance as vital; he felt that it could be determined by having a look into their origin and into the line of their growth. When, therefore, their constituent words are required to be dealt with, it should be kept in mind that the words have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.2

Justice Frankfurter, while Professor at Harvard University, said: –

“Every legal system for a living society, even when embodied in a written constitution, must itself be alive. It is not merely the imprisonment of the past; it is also the unfolding of the future. Of all the means for ordering the political life of a nation, a federal system is the most complicated and subtle; it demands the most flexible and imaginative adjustments for harmonizing national and local interests. The Constitution of the United States is not a printed finality but a dynamic process; its application to the actualities of government is not a mechanical exercise but a function of statecraft. From generation to generation, fresh vind-

1- Gompers V. United States, 23 U.S. 6004, 58 L.

2- Ibid

-ication is given to the prophetic wisdom of the framers of the Constitution in casting it in terms so broad that it has adaptable vitality for the drastic changes in our society which they know to be inevitable, even though they could not foresee them. The Constitution cannot be applied in disregard of the external circumstances in which men live and move and have their being.”

In America, the drift has been apparent from the fact that the Supreme Court has virtually discarded the notion that constitutional interpretation is simply a by-product of the vindication of private rights and has come to see itself as having a special function to expound on the meaning of the constitution and, more generally, to give coherent development to the entire corpus of the national law. Not surprisingly, the doctrinal barriers previously limiting Supreme Court jurisdiction (standing, moot ness, ripeness, and the political question doctrine), have substantially eroded; and the court has begun to erect new barriers to protect its new role.2

1- Martin V. Struthers, 319 U.S. 141, 87 L. ed 1313

2- See Henry P. Monaghan’s review of book authored by Paul M. Botor, Paul J. Mish kin, David L. Shapiro & Herbert Wechsler on “Hart and Wechsler’s The Federal Courts and the Federal Systems” (New York), in Harvard Law Review, Volume 87, 1973-74, p. 894.

The rule of Stare Decisis is not applicable to constitutional interpretations in Pakistan. The Supreme Court can, at any time, alter its earlier view. The essence of constitutional interpretation is spelled out by Chief Justice Hamoodur Rahman in the case of State V. Ziaur Rahman in the following words: –

“The written constitution is the source from which all governmental powers emanate and it defines its scope and ambit so that each functionary should act within his respective sphere. The judges of the Superior Courts are under a solemn oath to preserve, protect, & defend the Constitution and in the performance of this onerous duty they may be constrained to pass upon the actions of other authorities of the states within the limits set down in the constitution, not because they arrogate to themselves any claim of infallibility, but because the constitution itself charges them with this necessary function in the interest of collective security and stability.1”

He goes on to say that: –

“The Supreme Court has never claimed to be above the constitution, nor to have the right to strike down any provision of the constitution. It has accepted the position that it is the creature of the Constitution, that it derives its power and jurisdiction from the Constitution and that it will even confine itself within the limits set by the Constitution which it has taken oath to preserve, protect, and defend —– but it does claim to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court. In a system where there is a trichotomy of powers, then ex necessitate rei from the very nature of things the judicial power must be vested in the Judiciary. The superior court claims no supremacy over other organs of the government, but acts only as the administrator of the public will.”2

1- PLD 1973 SC 49

2- 2- Ibid

The Chief Justice carried forward his enunciation further by his remarks that even when the Supreme Court of Pakistan had declared a Legislative measure unconstitutional and void, it was not because the judicial power was superior in degree or dignity to the legislative power but simply because the Constitution had vested it with the power to declare what the law was.1 Since it was the duty of the Supreme Court to see that the Constitution prevailed, the court enforced the Constitution as a paramount law whenever a legislative enactment came into conflict with it.2 Hence, whenever the legislative failed to keep within its own Constitutional limits, the Judiciary stepped into enforce compliance with the Constitution3

With the growth of civilization the notions of individual freedom or individual liberty are seen by Chief Justice Hamoodur Rahman as converging more and more towards the concept of controlled freedoms. Since the progress of human society depends upon social solidarity, the range of personal volition need be limited by law in the interest of liberty itself. The need for the control of freedoms and for striking a balance becomes obvious for the promotion of human rights.4

1- Ibid

2- Ibid

3- Ibid

4- Hamoodur Rahman “My Concept of the Rule of Law” in PLD 1974 Supreme Court Journal 84. Liberal conversation provides a communal process that deepens each person’s claim to autonomy at the same time he recognizes others

5- As no less worthy of self-respect. The Liberal dialogue is for ever pointing citizens beyond itself, inviting them to make the sense they can of their place in the universe. See Bruce A Ackerman: Social Justice In The Liberal State, New Heavens, Yale University Press, 1980, pp 347-348.

The Holy Quran itself proclaims that “the believers, men and women, are protectors of one another.”

Indeed, as pointed out by Chief Justice Hamoodur Rahman, the quintessence of the concept of social solidarity, within the framework of Islam, is that the whole human race is a fold and each one should so conduct him as if he is sphered into the other.

Liberty consists in the power to do anything that does not injure others. The Pakistan Constitution is fully cognizant of this phenomenon wherein elaborate provisions exist to bring some kind of balance between individual freedom and social solidarity.1

The Chief Justice Hamoodur Rahman had emphasized that there must be mutuality even in liberty. The attainment of maximum opportunities for the orderly pursuit of happiness as a goal of progress itself was, in his opinion, linked with the availability of restraints on individual liberty.2 He did not consider it a mere obsession for the assertion of the community’s welfare.3 In order to establish his thesis, he quoted the American Chief Justice Charles Evans Hughes who is reported to have said: –

“Liberty is today a broader conception than even before, for it increasingly demands protection, it demands protection against infection, against the spread of disease, it requires preventive measures and the segregation of those afflicted. It demands protection on the public highways against those frequent abusers of liberty who has subjected the peripatetic philosophers of our day and other simple minded pedestrians to perils which in frequency and deadlines are a sort formerly known only to soldiers in a battle-field.”4

1- Ibid

2- Ibid

3- Quoted by Hamoodur Rahman in his article cited ibid

4- Ibid

Chief Justice Hamoodur Rahman did not consider it an idle boast if it were said that the Muslims had inspired the later Revolutionaries of Europe and America with the principles of fraternity, equality, and liberty. He was, therefore, inclined to quote a renowned European scholar, Professor Briffault, who said in his book on “The Making of Humanity”.

The ideals of freedom for all human beings, of human brotherhood, of the equality of all men before the law, of democratic government, of consultation and universal suffrage, the ideals that inspired the French Revolution and the Declaration of Rights that guided the framing of the American Constitution and inflamed the struggle for independence in the Latin American countries were not inventions of the West. They find their ultimate inspiration and source in the Holy Quran. They are the quintessence of what the intelligentsia of Mediaeval Europe acquired from Islam over a period of centuries through the various channels of Muslim Spain, Sicely, the Crusaders, and of the ideals propagated by the various societies that developed in Europe in the wake of the Crusades in limitation of the brotherhood associations of Islam.1

1- Quoted by Hamoodur Rahman in his article, referred to above.

The Constitution of Pakistan has provided auto-limitations or in-built restrains on the fundamental rights guaranteed in its Chapter I, Part II. These auto-limitations or in-built restraints not only provide protection to the right themselves, but also further the interest of social solidarity sought to be achieved by the makers of the Constitution. The Constitution itself provides machinery for the enforcement of these rights under Articles 184 and 199. Therefore, our system postulates an effective guarantee that basic human rights are assured to the citizens of Pakistan which is also signatory to the Universal declaration of Human Rights adopted by the General Assembly of the United Nations on the 10^th of December, 1948.

The rule of law in developing countries should mean more than only civil and political rights. This was the view of the Jurists in the Rule of Law Conference held in New Delhi in 1959 and reaffirmed in Lagos in 1961 in the following words: –

Adequate levels of living are essential for full enjoyment of individual’s freedom and rights. What is the use of freedom of speech to under-nourished people or of the freedom of press to an illiterate population? The rule of law must make for the establishing of social, economic, and cultural conditions which promote men to live in dignity and to live with aspirations.

Very recently, during the decades of 1970s and 1980s, the free word has started according recognition to the importance of human self-respect as an inseparable element and as a basic component of human dignity. With the advancement of science and technology, successful efforts have been made to attend meaningfully to basic human needs of food, clothing, and shelter which no longer pose a serious threat to the social solidarity of the countries concerned. But the grave problem, with which the humanity is confronted and which has given rise to wide spread unrest and inter-group conflict, is the outcome of deprivations of self-respect. The psychiatrists and the psychologists agree that once a conscious effort is directed at promoting the self-respect, it can bring the desired result of developing harmony and reconciliation among the rulers and the ruled. The higher Judiciary, on its part, can be very effective in upholding the case of self-respect as the FIFTH FREEDOM for which the people of the world aspire like anything. The concept of self-respect, once forcefully projected by the Chinese philosopher Confucius, is attracting the attention of the United Nations and several International Covenants and Conventions are incorporating it in their charters. The time has come when the idea of self-respect will receive priority in recognition and emphasis in enforcement on the part of those who wish to promote peace at the national and international levels. In this context, it may be of interest to mention that Article 14 of the Pakistan Constitution has declared human dignity as inviolable which, of course, makes the notion of self-respect meaningful.

The then Chief Justice of the Supreme Court of India, Mr. P.N.Bhagwati, in his interesting article, expressed his leanings against narrow textual interpretation because, according to him, it was likely to defeat the basic values and principles entrenched in the Constitution.1 He deliberately used the phrase “state lawlessness” to describe a state where there was abuse or misuse or excessive use of power by state functionaries and the rule of law was thereby violated.2 These acts were termed state acts outside the Constitution and the Law.3 Whenever patterns of “state lawlessness” became visible from the actions of the police and the other officers of the state, the Judiciary, in his thinking, had responsibility to control such exercise of power.4 A state of affairs like that was considered the essence of the rule of law and it constituted, according to him, the foundation of constitutionalism.5 He found it interesting to narrate the very presence, in the Indian Constitution, of Article 21 which guaranteed the right to life and personal liberties under the phrase “no one shall be deprived of his life and personal liberty except by procedure established by law” enabled the Supreme Court of India initially to interpret, in one of the cases, that the expression: “procedure established by law” meant “any procedure with no kind of Judicial evaluation about the nature of procedure”. Realizing that the interpretation was too textual, the Court over-ruled it, after a lapse of about 27 years, and held that the procedure prescribed by law

1- P.N.Bhagwati, “Not Enough to Check State Lawlessness”, in The Times of India, September 22^nd, 1986

2- Ibid

3- Ibid

4- Ibid

5- Ibid

must be reasonable, fair, and just. Bhagwati Chief Justice, therefore, indicated that the Judges of the Supreme Court of India thus derived a more incisive evaluation of constitutional reasonableness as part of a general reassessment of the judicial role.1 Under the impact of this reasoning and having being inspired by the argument that the Constitution, being an organic instrument defining and regulating the power structure, embodying the hopes and aspirations of the people, projecting certain basic values and laying down certain objectives and goals, could not be interpreted like any other statue, Chief Justice Bhagwati pleaded the cause of a creative and imaginative interpretation of the Constitution.2 He suggested that it was necessary to do this for the purpose of advancing the constitutional values and for spelling out and strengthening the basic human rights of the people.3

1- Ibid

2- P.N.Bhagwati, “Case for Creative Interpretation”, in The Times of India, September 22^nd, 1986.

3- Ibid

The Court cannot divorce its thinking from the fundamental conceptions of justice, liberty, and morality. Neither can it be unmindful of the traditions of freedom, respect for the rule of law, and distrust of arbitrary power.

The fact that rights are ever more universally recognized even by those who seem least inclined to make them a reality by providing adequate remedies in the distinguishing characteristic of present times.1 Human rights will become more broadly descriptive of the actual behavior of men and governments.2 The Supreme Courts’ bold insistence in most countries that the time has come to make the constitution and its amendments mean what they say may further enhance the impact of the idea of judicialism as an integral part of effective constitutionalism.3

1- Carl J. Friedrich: The Impact of American Constitutionalism Abroad, Boston, Boston University Press, 1967, p 96

2- Ibid

3- Ibid

The principle of constitution is very important, because it has a direct bearing on the structure and frame work of the constitution. In situations where there is trichotomy of powers, the constitution defines the functions of each sovereign organ or each branch of an organ. Limitations are, therefore, inherent under such a system so that one organ or sub-organ may not encroach upon the legitimate field of the other. To observe and to respect this division is implicit under the duty of loyalty to the Constitution which rests upon all citizens particularly upon those who are entrusted with the duty of interpreting and implementing the Constitution.

It is through the exertion of judicial power that equilibrium is maintained which is an important function of the court towards harmonizing the functions of different organs of the state. It is this equilibrium inter se which is the only guarantee of the freedom and the well-being of the country. This duty the Judges of The Supreme Court perform in accordance with the solemn oath to preserve, protect, and defend the Constitution. In the American Constitution this is achieved on the principle of non-interference.

William O. Douglas says: –

“The practical bounds of legitimate inquiry are determined not so much by legal rules but by thee respect that one department has for the other. The American political creed rests on the sovereignty of goodwill. The departments by and large operate with high respect for the other’s functions.”1

1-Fauji Foundation V. Shamimur Rahman PLD 1983 S.C. 457

Again power is expressly given to the Superior Courts to probe into the exercise of public power by executive authorities, how-highsoever, to determine whether they have acted with lawful authority. It is for this reason that Supreme Court of Pakistan indicated in Malik Ghulam Jilani vs. Government of West Pakistan (1) that the authority exercising the public power must always be ready to satisfy the court of law that the power was exercised in accordance with law and on reasonable grounds.

Cornelius C.J._ went so far as to say that: –

“The judicial power is reduced to a nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final judges of their own “satisfaction” for imposing restraints on the enjoyment of the fundamental rights of citizens.”

(1) PLD 1967 SC 373

In this case the Supreme Court of Pakistan has disapproved the view of the Privy Council in Sibnath Banerji (1) and that of the House of Lords in the case of Liversidge V. Anderson (2) as to the finality of the subjective satisfaction of the detaining authority. The onus now lies on the authorities detaining a person to satisfy the court as to whether reasonable grounds exist for the detention of an individual. It is an aspect of the enforcement of the rule of law by interpreting the relevant provisions of the Constitution relating to the exercise of the judicial power, and is a step-forward towards guaranteeing the liberty of the citizens which was at the whim of the executive.

In the Constitution of Pakistan, unlike other Constitutions, there is Article 4 which reads: –

“4. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

(2) In particular –

(a) no action detrimental to the life, liberty, body, reputation, or property of any person shall be taken except in accordance with law;

(b) no person shall be prevented from or hindered in doing that which is not prohibited by law; and

(c) no person shall be compelled to do that which the law does not require him to do.”

(1) L.R. 72 I.A. 241

(2) 1941 (3) All E.R. p 338

It guarantees the rule of law as no action detrimental to the citizens can be taken in an arbitrary or capricious manner except in accordance with law. Simultaneously an obligation is placed on the citizens under Article 5(2) or the Constitution, that is, “Obedience to the Constitution and the law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being in Pakistan.”

Read with the other provision, this article equally ordains a citizen to mould his life in accordance with the laws of the land. It is also in this situation that there can be a true display of the rule of law by the inter-action of these provisions. A state lawlessness, that is, any executive act not sanctioned either by the Constitution or by the law of the land can be struck down by the court as a violation of Article 4. Liberty and rule of law are coupled together in a way that they are inseparable and in the absence of the rule of law, liberty is illusory. It is the rule of law which gives meaning and content of liberty. Therefore, the base of rule of law has to co-exist with liberty.

The word “law” in Article 4 is distinctly used as opposed to the words “due process of law” appearing in the Fifth and Fourteenth Amendments of the American Constitution. Nonetheless, the procedural aspect of the “due process of law” clause which guarantees rule

1- PLD 1983 S.C. 457

of law under the American system has been absorbed in the word “law” through the process of interpretation in Article 4 of the Constitution of Pakistan.

In Fauji Foundation V. Shamimur Rahman (1) it was held that the procedural aspect of “due process” clause is assimilated as an element of natural justice, in Article 2 (now Article 4) of the Constitution, and, therefore, this Article has been described as to have been enacted in a new garb, as no such provision existed in any earlier Constitution. However, the substantive connotation of the “due process” clause was held not to be applicable as it was a limitation on the legislative power about which there was consensus of opinion of this court that the purport of Article 4 was not to test the validity of law, but only to affirm the right of every citizen and every person in Pakistan to be treated in accordance with law and only in accordance with law.

(1) PLD 1983 S.C. 457

A proper exposition of this principle appears in the opinion of Chief justice Hamoodur Rahman who elaborated that the written Constitutions usually have the mechanism for the enforcement of the rule of law which necessarily implies the presence of judicial institutions having constitutional authority to review the legality of executive and legislative actions.1 The Chief Justice clarified that the rule of law provides a guarantee of accountability before a competent tribunal.2 it requires the functionaries to observe the principles of fair play and the rules of natural justice. He had discovered that the essence of “due process” was inherent in the concept of the rule of law. His opinion reflects the view that the rule of law secures the authority of law as the expression of the righteousness which exalted the nation.3 It also implies the absence of discrimination.4 An over-view of the Pakistan Constitution reveals that these ingredients of the rule of law are very much in prominence in that document which provides for the judicial scrutiny of executive and legislative discretion.

1- State V. Ziaur Rahman, PLD 1973 S.C. 49

2- Ibid

3- Ibid

4- Ibid

As against the substantive part of the “due process” clause, provision exists in the constitution of our country whereby the superior courts are under a duty to enforce the fundamental rights and so far as the fundamental rights are concerned, the Constitution itself has declared that all laws inconsistent with those rights would be void to the extent of inconsistency and that no legislation will be enacted to abridge or take away the fundamental rights. This puts a limitation on the power of the legislature. The substantive purpose of the “due process” clause is achieved by the existence of the provisions in the Constitution itself.

In Smt. Indira Nehru Gandhi V. Raj Narain (1) the basic structure theory was reaffirmed to mean the supremacy of the constitution, democratic republic form of government, secular character of the constitution, separation of powers among the legislative, the executive and the judiciary and rule of law. Accordingly, the Supreme Court of India, held that clause (b) of Article 329-A was a legislative judgment and this eminently destroyed the basic structure of the Constitution.

(1) AIR 1975 Supreme Court 2299

The Court followed the earlier view expressed in Kessavanada Bharti V. State of Kerala (1) which over ruled Golak Nath’s case (2). In these cases the Supreme Court of India has high-lighted the principle that the basic structure of the Constitution is based on certain values which are a part of the constitutional faith and could not be dispensed with by the Parliament.

About this controversy, V.G. Ramachandran in his Prefatory note to the “Supplement to V.G.Ramachandran’s Fundamental Rights and Constitutional Remedies”, vols. I & II, Second Ed., 1982, says: –

“The Minerva Mills case (3) and Waman Rao case (4) affirmed Kesavananda’s (5) doctrine of immunity from legislation as to basic features of the Constitution. The 44^th Amendment 1978 only eased the rigours of the 42^nd Amendment as to the demotion of the judicial writ power while deleting the right to property from part IV and making it only a mere constitutional right under Article 300-A. This, of course, solved in good measure the tussle between the Parliament and the Judiciary as to the property rights and compensation for compulsorily acquired properties. But Parliament now manned by an outstanding majority Ruling Party, contemplates radical changes and very soon we may witness a tough battle on “Basic Structure” doctrine and supremacy of Parliament between the two wings of our polity. How far the latter concept will be healthy for the growth of our Welfare State is a different matter.”

(1) AIR 1973 SC 1461

(2) AIR 1965 SC 845

(3) 1980 3 SSC 625

(4) 1981 2 SSC 362

(5) 1973 4 SSC 225

In Pakistan, this doctrine has not been accepted by the Supreme Court, but it has voiced emphatically that the Constitution cannot be annulled or abrogated.

In Miss Asma Jilani V. Government of Punjab (1) this Court over-ruled the majority opinion in Dosso’s Case (2) which affirmatively approved Hans Kelsen’s doctrine and held that there was no authority in Pakistan to annul or abrogate the Constitution.

In State V. Ziaur Rahman (3) the Supreme Court held that the constitutionality of Interim Constitution was inviolable as it was enacted by the elected representatives of the people under the mandate given to them by the President’s Order No.2 of interest to mention that the argument against the constitutionality was raised on the premise that the decision in Asma Jilani’s case resurrected the 1962 Constitution which, in fact, was not so, as held by the Supreme Court.

(1) PLD 1972 SC 139

(2) PLD 1958 SC 533

(3) PLD 1973 SC 49

In Begum Nusrat Bhutto V. Chief of Army Staff (1) the Supreme Court maintained that despite the fact that the other two limbs of the Government were not effective, still the judicial power was available as it was not eroded.

The judgments in these cases were rendered during critical times and are a mile-stone in the constitutional history of Pakistan. Therein the Supreme Court has endeavored to standby the oath which the Judges had taken to preserve, protect, and defend the Constitution.

Cornelius C.J., in State V. Dosso (2) has held that a number of fundamental rights enumerated in the Constitution do not derive their entire validity from the fact of having been formulated in words and enacted in the Constitution. These are essential human rights which inherently belong to every citizen of a country governed in a civilized mode and any argument which implies that the fundamental rights have been withdrawn involves a danger of denial of these elementary rights. This expression of opinion represents the latest thinking about human rights as something more valuable than their mere safeguard in the Constitution as they are too fundamental and predate the Constitution. They cannot be regarded as deriving their validity alone from the Constitution itself, as inherently they belong to every human being.

(1) PLD 1977 SC 657

(2) PLD 1958 SC 533

In the case of Zahur Ilahi (1), the High Court went by the finality clause in the special Defence Laws and denied bail to him. The Supreme Court in exercise of its appellate power, after reviewing the provision, held that this clause could not come in the way of granting bail to Zahur Ilahi under the provisions of section 498 of the code of Criminal Procedure holding also that there was mala fide exercise of power. It was thus that the High Court had failed to exercise its Jurisdiction. This case reaffirmed the constitutional guarantee of Article 4 in regard to the rule of law, that is, no action detrimental to liberty shall be taken except in accordance with law.

In State V. Ziaur Rahman (2) the Supreme Court departed from the textual interpretation of Article 281 of the Interim Constitution which gave whole-sale validity to the acts done or purported to have been done under the repealed legislative measures and held that the validity could only be given to acts which were “duly done” or things “suffered under the law”, but not those which were either mala fide or corum non judice or taken without jurisdiction on the well-known principle that no Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power and that the Legislature could not be imputed the intention of perpetuating or perpetrating an injustice. This is the essence of the rule of law.

(1) PLD 1977 SC 273

(2) PLD 1973 SC 49

It would be of interest to project the modern thinking on enlarging the ambit of interpretation so as to encompass considerations of socio-economic justice. I have, therefore, endeavored to bring that too in my paper. Some important questions which are engaging the attention of the jurists and Judges are issues of human rights and fundamental freedoms, as embodied in the various constitutions, including equality before the law and equality of opportunity. They provide constant assurance that the rule of law will be maintained and observed at all time and, indeed, what in Third World legal thinking may be called, the maintenance of the social equilibrium of the community (1). The Brandt Commission summed up in 1981 its perspectives for the future as follows: –

“We are looking forward for a world based less on power and status, more on justice and contract, less discretionary, more governed by fair and open rules.” (2)

(1) T.O.Elias, “Foreword”, in M.L. Marasinghe and William E. Conklin (Eds) Essays on Third World Perspectives in Jurisprudence, Malayan Law Journal private Ltd 1984 p. iii.

(2) Message to the Ninth Lawasia Conference from Sir Shridath S. Ramphal Q.C. Secretary General, Commonwealth Secretariat, London, p4

If I may say so, when Chief Justice Bhagwati talked of freedom, he did not mean merely emancipation from arbitrary restraint of authority, but freedom from want and dependence, freedom from poverty and destitution, freedom from ignorance and illiteracy, so that each one, irrespective of accident of birth, irrespective of possession of wealth, irrespective of caste, creed, or religion, may have equal opportunity for advancement, equal opportunity for economic gain, equal opportunity for intellectual striving, and there may be no exploitation of the weak by the strong, of the poor by the rich, of the meek by the powerful. It is this freedom which is now demanded by millions of people all over the world and the judges in interpreting the Constitution cannot remain aloof and alienated from the issues of social justice. He arrived at this conclusion because of his feeling that law and politics cannot, adapt a higher level, must not be kept separated.1

P.N.Bhagwati, “Implement Spirit of the Constitution “, The Times of India, September 22^nd, 1986.

In the modern period, in the cases involving issues of freedom of intimate association as well as in those involving issues of freedom of expression and of equal protection, non-interpretative review has functioned, on balance, as an instrument of deepening moral insight and of moral growth. And there is no reason to think that in the modern period, non-interpretative review has functioned differently, in the main, in human rights cases involving other matters – for example, freedom of religion or administration of the Criminal Process.1

The Chief Protector of the Liberty is the Will of the People to be Free. The Court can encourage and strengthen that will. The Court is the greatest institutional safeguard that the people possess.2 Without Court’s vigilance, the liberties would scarcely survive. Few have sounded this call more eloquently than did Mr. Justice Black in his memorable opinion for the Court: –

“Under the Constitutional System Courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement. No higher duty, no more solemn responsibility, rests upon the Court, than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to Constitution”.3

(1) Michael J. Perry quotes Alexander Bickel in his book on The Constitution, The Courts, and Human Rights, New Delhi, Wiley Eastern Ltd, 1986, p 118

(2) Introduction by Joseph O. Meara in Osmond K. Fraenkel: – The Supreme Court and Civil Liberties, New York, Ocean Publications, 1963, p iv

(3) See the opinion of Mr. Justice Black in Chambers versus Florida, 309 U.S. 227 (1940) p 241

The rational liberty theory does require that liberty be the ultimate standard for economic as well as all other liberal institutions. If the government created by the Constitution aims to promote rational liberty for all, it must be vitally concerned with both national economic welfare and the resources of each individual.1

The rational liberty theory in principle supports judicial recognition of constitutional rights to welfare assistance and meaningful words.2

Laws which work to anyone’s economic disadvantages are nowadays frequently challenged as deprivations of liberty or property.3 The fundamental maxims of a free government seem to require, that the rights of personal liberty and private property should be held sacred. The people ought not to be presumed to part with rights so vital to their security and well being.4 The question arises whether judicial protection of the property right is similarly important and appropriate for contemporary society.5

1- Rogers Smith: Liberalism and American Constitutional Law, Cambridge, Harvard University Press, 1985, p 25

2- Ibid, page 254

3- Robert L. Hale, “Some Basic Constitutional Rights of Economic Significance”, in Columbia Law Review, Vol.51, 1951, page 278

4- Bernard H. Siegan: Economic Liberties an the Constitution, Chicago, University of Chicago Press, 1980, pp 38-39

5- Bernard H. Siegan, ibid, page 83

A free society cannot exist unless government is prohibited from confiscating private property.1 The just compensation requirement is laid down by jurists as a principle of universal law.2

The present generation is rightly concerned and concerned far more deeply than its immediate forebears ever were, in the ending or mending of the monstrous economic and social inequalities and inequities which permit and even foster the distress that is seen in the midst of plenty.3 Siegan quotes political scientist Robert McCloskey contending that the legal distinction between economic and civil rights is tenuous because most people probably feel that an economic right is at least as important to them as the right to speak their minds.4 Entrepreneurial and occupational freedom is not less indispensable than are civil rights to the openness of society, and individuals denied economic opportunity, such as access to an occupation, require judicial protection.5

The judicial process enables judges to suggest affirmative solutions to social problems.6 Judicial endeavors to direct legislative and administrative spending are another manifestation of affirmative jurisprudence.7

1- Bernard H. Siegan, ibid, p 83

2- Ibid, pp83-84

3- C. H. McIlwain: Constitutionalism and the Changing World, Cambridge, at the University Press, 1969, p 283

Former President of the International Court of Justice T.O.Elias described the tasks that should be set for law in a developing society. Briefly stated, these are: –

(a) The promotion of the economic growth and social well-being of the citizens of the country as a whole;

(b) The elevation of man’s moral nature amidst the process of social change;

(c) The unification of the several ethnic communities within the country into a society; and

(d) The conscious evolution of a common law for a country within the existing bodies of law, statutory as well as customary. See T.O.Elias, “Foreword”, in M.L.Marasinghe and William E. Conklin (Eds): Essays on Third World Perspectives in Jurisprudence, op cit, p 111.

4- Siegan, op cit, p 251

5- Ibid

6- Ibid, p 305

7- Ibid

The province of judiciary is not to undertake wealth redistribution or to make some people wealthier than others. The Court has a role in progress, equality, and redistribution, but it is one that is tied to individual achievement, initiative, and creativity.1 As the protector of individual liberties, the Court assures society that private people, as the major source of progress, will continue, individually or in concert with others, to apply themselves to undertakings of their own choices.2 Because much welfare and regulatory legislation has proved economically harmful, judicial review of such legislation serves the pragmatic interests of society.3

Modern legal optimism in several parts of the world is based on a strong belief in judicial activism.4 This belief indicates that the vitality of the appellate process is firmly tied to the judicial exercise of intelligent creativity and discretion.5 Since the judges are regarded as impartial arbiters, they can be entrusted to evaluate the most delicate of non-judicial issues.6 Now that the era of substantive formalism is over, judges are being called upon to guide the direction of the law.7

1- Bernard H. Siegan, ibid, p 315

2- Siegan, ibid

3- Ibid, p.320

4- Leonard B. Boudin’s review of Robert Stevens’ book titled as “Law and Politics: The House of Lords as a Judicial Body”, Chapel Hill, University of North Carolina Press, 1978, pp.xviii+701, in Harvard Law Review, Volume 93, 1979-80, p.445

5- Leonard B. Boudin’s review, ibid, p.455

6- Ibid, p.456

7- Ibid, p.461

Law does not operate in a vacuum. It is intended to have a social purpose and an economic mission and a truly great judge must always, while interpreting the law, keep constantly in mind the hopes and aspirations of the people and the needs ad requirements of a society.1

The Judge has to be in tune with the constitutional values. The social philosophy of the Constitution must inspire his decision-making process and he must adopt a broad activist goal-oriented approach directed towards advancing the constitutional objectives when he is interpreting the Constituton.2

The judges in High Courts today regularly intervene to set public policy to far greater degree than ever before by discovering new fundamental values in the Constuitution.3 Greater power is vested in the judiciary to resolve basic social conflicts by reference to the Constitution.4 These new norms actually enhance the legitimacy of the judiciary’s recently acquired prerogatives.5

Judicial activism in the defense of economic privilege is receiving great attention these days.6 Courts’ task, like that of other agencies of government, is to facilitate rather tan block achievement of the great objectives to the constitution.7

1- P.N.Bhagwati, “Implement Spirit of the Constitution”, The Times of India, September 2^nd, 1986

2- Ibid

3- Mark B. Kotenberg’s review of the book on “Politics, Personality, and Judging” in Columbia Law Review, Vol. 83, 1983, p 1871

4- Ibid

5- Ibid

6- Alpheus Thomas Mason’s review of the book authored by Archibald Cox on The Warren Court: Constitutional Decision as an Instrument of Reform, Harvard University Press, 1968, pp 144, in Harvard Law Review, Vol. 82, 1968-69, p. 715

7- Ibid, p. 717

There is in democratic societies a profound reliance on the Courts as the ultimate guardian of the Constitution.1 The Courts are the acknowledged architects and guarantors of the integrity of the legal system.2 Applying standards drawn from the words of the Constitution, the Supreme Court is the ultimate guardian of individual privilege and governmental prerogative alike.3 The Courts, specially the Supreme Court, have become the balance wheel of the political system.4

The Court has the authority to create a sub-order of quasi constitutional law – - of a remedial, substantive, and procedural character – - to vindicate the Constitutional Liberties.5 The presence of the restraining power of the judiciary, “aloof in the background, but nonetheless always in reserve, tends to stabilize, and rationalize the (administrative) judgment, to infuse it with the glow of principle, and keep the faith”.6

1- Lousia L. Jaffe, “The Right to Judicial Review”, in Harvard Law Review, Vol. 71, 1957-58, p 403

2- Ibid, p 409

3- Howard Ball, op cit, p 9 In Morgan D. Dowd’s review of book authored by James T. McClellan on “Joseph Story and the American Constitution”, (Norman University of Oklahoma Press, pp413, 1971, in Columbia Law Review, Vol. 72, 1972, p 995)
Howard quotes McClellan reminding that American Supreme Court Justice Joseph Story believed that he was destined to be the guardian of the Law and the Constitution. Justice Joseph was primarily concerned with the enlargement of judicial authority for he was convinced that only the federal Courts could, preserve the constitutional structure. Justice Stone’s observations on the role of Courts as guardians of the Constitutions appear to be significant. He pointed out: The great constitutional guarantees and immunities of personal liberty and of property, which give rise to the most perplexing questions of standards to be applied by Courts according to the circumstances and conditions which call for their application. See Harlan F. Stone, “The Common Law in the United States”, in Harvard Law Review, Vol. 50, 1936, pp 23-24

4- Howard ball, op cit, p 9

5- Henry P. Monaghan, “Foreword – - The Supreme Court 1974 Term – - Constitutional Common Law”, in Harvard Law Review, Vol. 89, 1975, pp 1-45

6- Benjamin N. Cardozo, The Nature of the Judicial Process, New Heaven Yale University Press, 1921, p 93

The statistics bear out that there is an increasing resort to the Courts to solve problems which twenty years ago would never have been thought amenable to judicial decision. The very success of the Courts is dependent upon their high prestige. Personal integrity, lack of institutional self-dealing, and high-quality personnel also explain only part of the phenomenon. Judges as a class are probably the best trained group in government. The judicial branch, relative to its size, has greater access to personnel familiar with advanced concept in science, economics, sociology, philosophy, and history than do other policymaking agencies of government.1 The Courts have therefore made basic decisions in the areas of agriculture, banking, commerce, communications, criminal justice, education, fiscal policy, industry, labour, manufacturing, mining, national defence, natural resources, public health, social welfare, taxation, and transportation. 2

Constitutional decisions by the Courts are often only a step in a continuous dialogue by the Court with other decision-makers in the constitutional political system.3 To be sure, independent judgment is reserved to the Court but its decision as to meaning often reflects the input of other units of government.4 Constitutional law is the fundamental, superior or paramount law.

1- Richard Neely: How Courts Govern America, New Heaven, Yale University Press, 1981, p 147

2- Harold J. Spaeth: Supreme Court Policy Making, San Francisco, W.H. Freeman & Co., 1979, p 7

3- Henry P. Monaghan, “Murbury and the Administrative State”, in Columbia Law Review, Vol. 83, 1983, p 34

4- Ibid

Its authority and sanction are higher than those of ordinary laws. The Legislature in a federal constitution is a sub-ordinate law-making body whose laws are in the nature of bye-laws within the authority conferred by the constitution.1

The Courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.2 It is the constitution and not the constituent power which is supreme in the sense that the constitution cannot be called in question before the Court, but the exercise of the constituent power can be.3 The Court has to judge the validity of exercise of constituent power by testing it on the anvil of constitutional provisions.4

The Courts venerate the past, but their focus is on the problems of the day an of the future as far as they can foresee it.5 The Courts serve only the public interest as they see it, guided only by, the Constitution and their own conscience.6 The Justices seem to consider themselves as movers of the country’s destiny rather than as impersonal spokesmen of the law.7 Woodrow Wilson said that the country looked for “statesmanship” in its judges, because the Constitution was not a “mere lawyers’ document” but rather, the vehicle of a nation’s life.8 Mr. Justice Earl Warren pointed out in 1955 that the prime concern for the law was that it must adopt to changing circumstances by keeping its rule in harmony with the enlightened common sense of the nation.9

1- See the opinion of Justice Chandrachur in the case of Kesavananda Bharati Sripadagalvaru versus State of Kerala, AIR 1973 SC 1461 at p. 1473

2- “The Federalist No: 78 by Alexander Hamilton, May 28, 1788”, in Jacob E. Cooke (ed) The Federalist, Middletown, Connecticut, Wesleyan University Press, 1961, p.526

3- See the opinion of Justice Beg in Srimati Indira Nehru Gandhi versus Raj Narain, AIR 1975 SC 2299, p. 2302

4- Ibid

5- See the observations of former Chief Justice Earl Warren of the United States of America in Leonard W. Levy: Constitutional Opinions, New York, Oxford University Press, 1986, p. 229

6- Ibid

7- Ibid, p. 230

8- Woodrow Wilson: Constitutional Government in the United States, New York, 1908, p. 157

9- Quoted by Leonard Levy in his book titled as Constitutional Opinions, op cit, p. 230. The fundamental law is an instrument of society existing not as art does for art’s sake out as a means for the sake of society’s ends. See Leonard Levy, ibid, p. 242

The view meant to him that the Supreme Court faced “a single continuous problem: how to apply to ever changing conditions the never changing principles of freedom”. Warren continued, “Freedom, like Justice, required constant vigilance”. Warren’s statement recognized implicitly that the Supreme Court had a crucial responsibility, one that could not be evaded, to helping to regenerate and fulfill the noblest aspirations of the nation.1 The Courts have continued to build a synaptic network connecting the judicial system with the total constitutional order.2

The Court’s opinion in effect reconstitutes constitutional law.3 The positive law of the Constitution has largely been created and applied in cases in which the citizen seeks to invoke a constitutional guarantee as a shield to ward off action undertaken by the government.4

1- Quoted by Leonard Levy in Constitutional Opinions, Ibid, p. 230

2- What counts is not what the Constitution says, because it says so very little; what counts rather, is what the Court has said about the Constitution. See Leonard Levy, ibid, p. 232. See also Louis Fisher: Constitutional Conflicts between Congress and the President, Princeton, New Jersey, Princeton University Press, 1955, p. 372

3- Patrice O. Gudridge reviewing book titled as “False Peace and Constitutional Tradition” by Philip Bobbitt, New York, Oxford university Press, 1982, pp xvv+285 in Harvard Law Review, Vol. 96, 1982-83, p. 1970

4- Walter Dellinger, “Of Rights and Remedies: The Constitution as a Sword”, in Harvard Law Review, Vol. 85, 1971-72, p. 1532

The problem of justifying judicial decisions in particularly acute in hard cases, those cases in which the result is not clearly dictated by statute or precedent.1 Judges, therefore, make new law. That is the ideal, but for different reasons it cannot be realized fully in practice. Statutes and common law rules are often vague and must be interpreted before they can be applied to novel cases. Some cases, moreover, raise issues so novel that they cannot be decided even by stretching or reinterpreting existing rules.2

In Olmstead versus United States,

Justice Brandeis emphasized that the judiciary has at least two affirmative tasks to perform. One is the duty to scrutinize sympathetically the empirical realities that might justify the legislative judgments coming before the Court for review. The other is the protection of certain fundamental rights, primarily civil liberties. Though judges and scholars would later develop a two-tiered standard of judicial review to rationalize these two judicial tasks, Brandies saw them as entirely consistent with one another, both emerging from a single realist conception of the constitution. He had consistently held that judicial self-restraint must be abandoned when fundamental values were threatened.3 An inference can be drawn that using judicial power as a means for discovering basic constitutional norms is reasonable.

1- Ronald Dworkin, “Hard Cases”, in Harvard Law Review, Vol. 88, 1974-75, p. 1057

2- Ibid, p. 1058

3- See Justice Louis D. Brandies’ opinion in Olmstead versus United States, 277 U.S. 438 at p. 472 (1928)

The essential mission of the Courts in bringing the operational systems into alignment involves supplying balance.1 Furthermore, the balance has to do with the structural defects of other institutions.2 Obviously there are certain values which are projected by the Courts, but they are generally the shared values of the society.3

Exercise of judgment, including some balancing of underlying values and interests, pervades all constitutional interpretation.4 Balancing may be pointedly implied in applying particular constitutional limitations.5 The Court invokes a principle of constitutional construction when conflicting constitutional claims need be balanced.6 Balancing also flourishes as a principle of constitutional interpretation.7 Balancing is one possible aid to constitutional interpretation supplementing, but not replacing, other guides to meaning. It is particularly plausible in resolving conflicts between constitutional rights or prescriptions where text does not provide an answer.8

1- Richard Neely, op cit, p. 113

2- Ibid p. 114

3- Ibid

4- Louis Henkin, “Infallibility Under Law”, in Columbia Law Review, Vol. 78, 1978, p. 1024

5- Ibid

6- Ibid, p. 1027

7- Ibid, p. 1033

8- Ibid, p. 1037

The Supreme Courts in several parts of the world are now broadening and deepening the constitutional significance of the concept of equality. The concept of the rule of law which the Courts uphold implies equality before the law or equal subjection of all classes to the ordinary law.1 Equality of status as well as equality of opportunity is a fundamental right. It also means equality before law and equal protection of the laws.2

Today, the legal theory which acknowledges the duty of government to provide jobs, social security, medical care, and housing, extends to the field of human rights and imposes an obligation to promote liberty, equality, and dignity. For a decade and a half, recognition of this duty has been the most creative force in constitutional law.3 The legal traditions committed to constitutional law maintain that ultimately to the Supreme Court would devolve the chief responsibility for individual human rights.4

1- See the opinion of Mathew Judge in Srimati Indira Nehru Gandhi versus Raj Narain, op cit, p. 2300

2- See the opinion of Chief Justice Ray in the case of Srimati Indira Nehru Gandhi, ibid p. 2319

3- Archibald Cox’s Foreword on “Constitutional Adjudication and the Promotion of Human Rights: The Supreme Court 1965 Term”, in Harvard Law Review, Vol. 80, 1966, p. 93

4- Archibald Cox’s Foreword, ibid, p. 94

In general, Courts actively seek to vindicate the public interest.1 Former Chief Justice Warren E. Burger of the United States Supreme Court pointed out that “we serve only the public interest as we see it, guided only by the constitution and our own conscience”.2 The emphasis now is on the Court’s function as protector of public interest in the enforcement of constitutional limitations.3

The function traditionally exercised by the judiciary in protecting public interest has taken a significant turn in contemporary times. Instead of exercising a negative check on the other branches and limiting the power and size of government … and therefore the imposition upon ownership and enterprise – - the judiciary has become another producer of laws and expander of government.4 Professor Nagel describes the development as follows: –

In recent years, both popular and academic attention on the innovative and

expansive remedies that federal Courts have utilized with increasing frequency.

Courts have utilized with increasing frequency. Courts have exercised traditionally

executive functions by appointing executive and quasi-executive officers

responsible to the judiciary and by determining administrative processes in

elaborately detailed decrees; they have exercised legislative functions by setting

policy standards for the operation of state and federal programs, including the

setting of budgetary requirements.5

1- Richard Neely, op cit, p. 50

2- Published in the New York Times dated June 24^th 1969, p. 24, and quoted by Henry J. Abraham in his book: on the Judicial Process, New York, Oxford University Press, 1980, p. 399

3- Archibald Cox: The Warren Court, Harvard University Press, 1968, p. 19

4- Bernard H. Siegan, op cit, p. 83

5- Robert F. Nagel, “Separation of Powers and the Scope of Federal Equitable Remedies”, Stanford Law Review, Vol. 30, 1978, pp 661-62

Reliance on Courts through the mechanism of the writ in Pakistan to attain justice is related to the image of the judiciary as a symbol of compassionate justice and independence.1 The significance of this symbol extends beyond the bureaucracy itself to all grievances involving citizen and government.2 The writ jurisdiction has led to the enlargement of the responsibility of the Courts to protect the constitutional rights of citizens.3

The scope of judicial review is confined to the enforcement of the Constitution as Supreme Law. Aside from the inherent prerogative to interpret the Constitution, as is evident from various rulings of the Supreme Court of Pakistan and elsewhere, its purpose is corrective or directory.4

1- Ralph Braibanti, “Punjab Bureaucracy and Judiciary in Pakistan”, in S.M. Haider (ed): Public Administration and Police in Pakistan, Peshawar, Pakistan Academy for Rural Development, 1968, p. 99

2- Ibid

3- A.R. Cornelius, “Writ Jurisdiction”, in S.M. Haider (ed): Law and Judiciary in Pakistan, Lahore Law Times Publication, 1981, p. 301

4- Fauji Foundation V. Shamimur Rahman, op it, at p. 546

Judicial review of affirmative administrative action is well adopted in many parts of the world.1 In addition to that, judicial review of inaction that results in the non-implementation of statutes has now become feasible in the context of current legal doctrines.2 This dimension has been added because non-implementation causes both direct harm to a specific group and indirect harm to the general public.3 Peter Lehner asserts that the judiciary is not only capable of controlling non-implementation but must play a significant role in this task.4 The pragmatic and constitutional reasons that may once have justified a judicial reluctance to review non-implementation cases are no longer persuasive in the light of developments in the role of Courts.5

The present is a time of intellectual as well as economic and political upheaval. While the physical scientists are rewriting Newton’s laws and the social scientists changing the understanding of many – - while the actual condition of man is being revolutionized – - judges will inevitably be stimulated too reexamine the law’s own presuppositions.6

1- Peter H.A. Lehner, “Notes on Judicial Review of Administrative Inaction”, in Columbia Law Review, Vol. 83, 1983, p. 633

2- Ibid, p. 628

3- Ibid, p. 630

4- Ibid, p. 628

5- Ibid, p. 638

6- Archibald Cox: The Warren Court, op cit, p. 12

Technological and scientific development which has opened new horizons for mankind has created innumerable problems for government and for meaningful democratic processes and accountability in relation to decision making.1 The higher judiciary is therefore now being called upon to act as agent of social change.

In developing countries, the position can be accepted that the goal of social and economic development can in some cases be reached more quickly through legal development by the judiciary than through legislation.2 Conceptually, development through judicial process is not only feasible but has, in some cases, been found to be effective.3 The judiciaries of developing countries have considered it their duty to foster social and economic development through adjudication.4

In a developing country the problem remains as to how to maintain a stable government and a stable economy. The Directive Principles of State Policy both in Pakistan and India assert that their purpose is to fix certain social and economic goals for immediate attainment. Through such a social change, the Constitution seeks to fulfill the basic needs of the common man. Without faithfully implementing the Directive Principles, it is not possible to achieve the welfare state contemplated by the Constitution.

1- Mark Cooray, “Exportability of the Representative Democracy to the Third World”, in M.L. Marasinghe & William E. Conklin (eds): Essays on Third World Perspectives in Jurisprudence, op cit, p. 300

2- T.A. Aguda, “The Judiciary in a Developing Country”, in M.L. Marasinghe & W.E. Conklin (eds): Essays on Third World Perspectives in Jurisprudence, ibid, p. 139

3- Ibid

4- Ibid

These principles are also meant to provide by implication some guides to the interpretation of constitutions by the judiciary.

In course of time, the Indian Supreme Court began to stress the central position accorded to the Directive Principles.1 The real outcome of this constitutional dialogue has been the triumph of teleological objectives over open texture normative structure.2 These two significant developments, namely: –

The new status accorded to the Directive Principles of State Policy, and

The basic structural doctrine, – - have enabled the Supreme Court to reassess the old constitutionalism.3

They reinforce the view that the Constitution is not confined to just allocating power between various institutions and authorities but it goes, much further and it embodies certain basic values on which the entire edifice of the Constitution depends. One of the most basic values is the realization of social justice.4 It leads the judges, the politicians, and the bureaucrats to ask more meaningful questions about the kind of society that the Constitution is intended to create. The questions have a bearing on the relationships between man and man, between the rich and the poor, and between the powerful and the powerless.5

1- See P.N. Bhagwati, “The Imperative of Social Justice” The Times of India, September 22^nd, 1986

2- Ibid

3- Ibid

4- Ibid

5- Ibid

The challenge of social justice approach lies in according priority to the objectives of socio-economic redistribution and purpose of social or distributive justice.1 This challenge is an important one, not just because judges owe a duty to do justice with a view to creating and molding a just society, but because a modern judiciary can no longer obtain social and political legitimacy without making a substantial contribution to issues of social justice.2

The Principles cited in this paper provide a broad framework for the protection of constitutional rights through the institution of higher judiciary. The constitutions supply a general structure for the judiciary, assign specific functions and responsibilities. Equipped with powers of self-defense, the Courts interact with various patterns of co-operation at the governmental level. How the guardianship of the Court operates in practice is a question decided by experimentation, precedents, and constant adaptation and accommodation.

1- See P.N. Bhagwati, “The Imperative of Social Justice”, The Times of India, September 22^nd, 1986

2- Ibid

Prosecutorial services are generally governed by sections 492 to 495 of the Code of Criminal Procedure (CrPC), dating back well over a century, with necessary amendments from time to time. In criminal jurisdiction, the prosecution service is also regulated by the Sindh Law Officers (Conditions of Service) Rules 1940 and the Rules for the Conduct of the Legal Affairs of the Government. These rules superseded the rules made earlier in 1923. The change was necessitated on the separation of the Province of Sindh from the Bombay Presidency in 1937. From time to time indispensable amendments have been introduced into these rules.

The two provisions of the Sindh Law Officers Rules pertaining to conduct of the Legal Affairs of the Government i.e. Rules 9 and 10, are important, and exhibit the independence of the prosecutor in the conduct of criminal proceedings. The former rule provides for discretionary power to be vested in the law officers in conducting cases. However, the latter section retains the power of the government to issue any orders or directions to the concerned law officer, who is bound to act on such an order or directions. Rule 10 overrides any other section of the rules, including Rule 9.

The prosecution service throughout had remained under the home department, and had been regulated by the police, from which the public prosecutors and deputy public prosecutors were drawn from the ranks of deputy superintendents of police and inspectors. Under no condition was any officer below the rank of sub-inspector authorized to act as a prosecutor in any case.

In 1985, for the first time the prosecution agency was transferred from the administrative control of the police department and placed under the law department. This exercise took place in two phases: Karachi Division was placed under the law department immediately, whereas the rest of the divisions came under the law department from 1 July 1986. The designations of prosecutors working as public prosecutors and deputy public prosecutors were changed to district attorneys and deputy district attorneys on the recommendation of the Sindh Civil Service Commission and were inducted into the Provincial Civil Service. Their terms and conditions were then to be governed accordingly by the Sindh Civil Servants Act 1973, and the rules framed there under.

On 2 April 1994, interestingly, the prosecution service was by another notification transferred back to the administrative control of the police, removing it from the solicitor’s department in the law department. No cogent reason was given for the reversal of this policy. The district attorney and other designated law officers were transferred back to the Police Department at the same level as deputy superintendents of police, inspectors and sub inspectors.

Finally, on 4 September 2001 restructuring of the Police Department began, and with it work on a separate prosecution service also commenced. In 2002 the Police Order was promulgated which repealed the Police Act 1861. Prior to the coming into force of the Police Order 2002, the prosecution service was again taken out of the administrative control of the police department and placed under the provincial law department, by notification of 31 December 2001.

In 2006, exercising powers under section 492 of the CrPC, the provincial government placed the services of all district attorneys and other law officers, such as public prosecutors and deputy public prosecutors, to work as prosecutors in accordance with the Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Ordinance 2006. The Rules governing the Appointment and Conditions of Service of the Prosecutors were also notified in 2006. This ordinance has been re-promulgated and kept on the statute book.
This ordinance can be termed as the first-ever positive turning point in the political development of the prosecution services in Pakistan.

The newly-introduced prosecution service is still in its nascent stage of stabilizing as an institution. However, to substantively qualify as an independent institution, the office will have to comply with the international standards of professional responsibility and the essential duties and rights of prosecutors. The Independent Standards of Prosecution place the following responsibilities on prosecutors.

Prosecutors shall: at all times maintain the honour and dignity of their profession; always conduct themselves professionally, in accordance with the law and the rules and ethics of their profession; at all times exercise the highest standards of integrity and care; keep themselves well-informed and abreast of relevant legal developments; strive to be, and to be seen to be, consistent, independent and impartial; always protect an accused person’s right to a fair trial, and in particular ensure that evidence favourable to the accused is disclosed in accordance with the law or the requirements of a fair trial; always serve and protect the public interest; respect, protect and uphold the universal concept of human dignity and human rights.

The status of the prosecution service in Sindh was described in the DAWN daily of 21 January 2008:

The fate of over 66,000 criminal cases pending in different courts across the province hangs in the balance since the Sindh Criminal Prosecution Service (SCPS) still awaits the appointment of the Sindh Prosecutor-General after the post was vacated when the first Prosecutor-General, Rana Shamim, was appointed as a Sindh High Court judge in the post-Nov 3, 2007, situation. Appointments to other essential posts including additional prosecutors-general, deputy prosecutors-general and assistant prosecutors-general, are also awaited.

The SCPS was constituted by the Sindh Governor on May 13, 2007, with the promulgation of the Sindh Criminal Prosecution Services (constitution, functions and powers) Ordinance 2007. The department was to supervise police and other divisions?investigations into criminal cases in order to ensure the independent prosecution of cases where justice was doubted, the speedy disposal of cases that had been pending for many years and independent and efficient service for the prosecution of criminal cases. In this manner, it was thought, the justice system in the province could be improved.

Mr. Shamim was appointed as the first prosecutor-general but was later elevated as a Sindh High Court judge after the imposition of a state of emergency on Nov 3, 2007, since when the post has been lying vacant. Meanwhile, no inductions were ever made for the posts of additional prosecutors-general, deputy prosecutors-general and assistant prosecutors-general.

Ishaq Lashari, the SCPS secretary, told Dawn that the induction to these posts, as well as to the posts of district prosecutor, were in progress. “A commission, which is headed by the provincial chief secretary, will appoint the Sindh prosecutor-general and has called applicants in this regard,?he said. “Meanwhile, a requisition has been sent to the Public Service Commission for the appointment of nine additional, 27 deputies and nine assistant prosecutors-general to deal with criminal cases in the Sindh High Court, the Federal Shariat Court and the Supreme Court of Pakistan.?lt;/P>

According to Mr. Lashari, 27 district public prosecutors would be appointed to prosecute cases before the province’s district and session’s courts, while 93 deputy district prosecutors would be appointed for assistant and additional session’s courts. As many as 214 assistant district prosecutors would be appointed for the courts of the judicial magistrates.

He told Dawn that 63 deputy district prosecutors had already been appointed while inductions for the remaining deputy district prosecutors, assistant district prosecutors and district public prosecutors were in progress. Mr. Lashari added that district public prosecutors would be appointed for prosecution in the 18 special courts in the province, including anti-terrorism courts, anti-corruption courts and anti-drugs/narcotics courts.

‘Low conviction rates?lt;/P>

The SCPS secretary pointed out that the country’s conviction rate was very low, 11.66 per cent in Pakistan and 2 to 5 per cent in Sindh, because of inefficient investigations conducted by incompetent policemen and unskilled prosecutors. The conviction rate in other countries was much higher: 37.4 per cent in India, 39 per cent in South Africa, 90 per cent in the UK crown courts and 98 per cent in the lower courts, 85 per cent in Australia, 85 per cent in US federal courts and 87 per cent in state courts, and 99.9 per cent in Japan.

Saying that the SCPS was currently lacking personnel in key posts, Mr. Lashari predicted that its performance would take off once the process of making appointments was completed.

The office of the Criminal Prosecution Service Department is housed in a portion of the old KDA building, Sindh Secretariat No.3, but the space available does not fulfill the requirements. According to the additional secretary of the SCPS, Iqbal Zaidi, offices have been acquired in the old State Bank Building, Sindh Secretariat No.6, and the renovation work being carried out there will soon be completed.

According to Dawn’s sources, it is mandatory for the police and other investigation wings to send the Sindh prosecutor-general a copy of an FIR within 48 hours of it being registered. The SCPS is authorized to recommend strict departmental action against officials found responsible for registering defective or fabricated cases, and the department may also withdraw such cases.

The most recent figure available regarding jail inmates in the Province of Sindh as of 21 October 2008 (courtesy of the Legal Aid Office) are that the total number of detained is 18,162. Out of these, male convicts are 2266 and under-trial male prisoners are 15,634. There are 43 female convicts, and 133 under-trial female prisoners. There are 38 babies suffering incarceration along with their mothers. The jail population also includes 228 condemned prisoners, including one female; 32 male and one female detenues, and three male civil prisoners.

The problem of people snatched by the criminal justice system (victims as well as accused) does not end with investigations; another ordeal in waiting is the prosecutorial phase in the courts. The interconnections between officials further aggravate injustice. Due to elitist political growth, more and more reliance was placed on the police in the past so as to consolidate power. This further corrupted the police and in the process destroyed the very foundations of investigation and prosecution. The police reputation has declined to a point where even well connected and respected citizens are wary of dealings with them. They perceive police not as an instrument of the rule of law, but as a corrupt, militaristic, insensitive and a highly politicized force, operating mainly to guard the interests of the powerful.

An Asian Development Bank soft loan to Pakistan is de facto primarily responsible for the Access to Justice Program, in which the state is engaged “in improving justice delivery, strengthening public oversight over the police, and establishing specialized and independent prosecution services? In this we see the Police Act 1861 being replaced by the Police Order 2002 and new laws to constitute and provide for the functions of independent prosecution services in Pakistan, thus, divorcing prosecution from the investigative arm of the police. Arguably, more valid grounds can be cited for the creation of an independent prosecution service in Pakistan, being article 175(3) of the constitution, which mandates that “the judiciary shall be separated progressively from the executive within three years from the commencing day? Thereafter, there was the appeal decided in Govt. of Sindh v. Sharaf Faridi (PLD 1994 SC 105), and finally, article 37(i), which notes that: “The state shall decentralize government administration so as to facilitate expeditious disposal of its business to meet the convenience and requirements of the public.?lt;/P>

At this crucial juncture with the introduction of a comprehensively new and progressive prosecution system, what needs to be underscored is the difference in lawmaking and the law’s implementation. Legislation per se does not solve problems; it is implementation which is the litmus test of good government, for it is in the implementation that the purpose and the objective of the legislation on the one hand, and transparency and accountability of the administration in the law’s application on the other come under scrutiny. How far the new prosecutorial services are able to balance the rights of the accused vis-?vis the victim will determine the elements of good government in the scheme’s application.

Article 37(d) of the Pakistani constitution requires the state to ensure inexpensive and expeditious justice. The term “access to justice?in relation to crimes is generally correlated only to rights of the accused. But looking at the extremely low conviction rate in Pakistan, which hovers around 10 per cent (and in Sindh is less than five per cent), one is compelled to ask whether complainants and victims have “access to justice? is the judicial system fair to those against whom crimes are committed?

If in a specified period in any given area a thousand rapes are committed, it can be safely presumed that a very large number of them are not even reported to the police; perhaps a hundred will reach the formal judicial system, and with the conviction rate at less than five per cent, the total number of perpetrators found guilty of their crimes may be no more than five in that thousand. In reality, it has been reported that during the last four to five years not a single gang rape case has ended in conviction in Sindh. Similarly, no more than five per cent of victims and complainants in cases of murder, armed robbery and other heinous crimes that take place all over the province get justice on account of the ridiculously low rate of conviction. There is something radically wrong with our judicial system that is responsible for this pathetic state of affairs! And while the judiciary has to take some blame for this failure, it is not the only player in the system. Apart from the judiciary, the other main components are the police, (as the only investigation agency), the prosecution (which until recently was the police), and the prisons. Unless all these components work smoothly the results will always be disappointing.

It may be remarked that generally it is the poor, children, women, the have-nots, and vulnerable sections of our countries that don’t get justice. Justice may seem to be open to all, but only in the same way as Harrods or Selfridges is “open to all? the doors are poised to welcome only those with the requisite financial stature. The black hole of such “unmet legal need?exists not just with reference to a lack of access to formal courts, but embraces interaction with police, the prosecutors and the prison authorities. Lack of judicial access is compounded by profuse ignorance of legal rights. And scarce judicial resources are concentrated in urban areas to the alienation of the masses in rural sectors.

Access to justice needs to be given the same priority that is given to nuclear power development or the military budget in India and Pakistan. As noted earlier, the Asian Development Bank provided Pakistan with a loan of USD 350 million under an access to justice development initiative. As a result of this scheme, there has been considerable additional work on court buildings, furnishings and library stocks, but there has been no change in the quantity and quality of justice being dispensed. The prosecution has not been a beneficiary, nor have personnel numbers. The United Kingdom with a population of around 60 million has some 30,000 lay magistrates alone, whereas 165 million Pakistanis are served by barely 900 magistrates. The magistrates handle and look after around 75 per cent of the total criminal cases that enter the formal criminal justice system and even this small number is not supported by an acceptable prosecution service. Furthermore, the pool of candidates from whom the magistrates and judges emerge is also shallow. In Pakistan, legal education remains in the doldrums and the questionable quality of law graduates is passed onto the bench.

Contrary to popular belief, formal courts are not the ones primarily responsible for the lack of access to criminal justice. The real cronies are the seemingly behind-the-scene players with whom an aggrieved person (including the complainant or the victim) will first interact. After all, the dispensers of justice depend on the facilities of justice. In this context, it is the police (as the investigation as well as the prosecution agency) that work as the main filter mechanism between individuals (i.e. complainant/victim and the accused). The more cumbersome or troubling it is to file First Information Reports and the more police harassment and bribery that exists, the more cynicism is associated with the processes to follow.

Article 2 of the International Covenant for Civil and Political Rights requires the prosecution service in any criminal jurisdiction to be viewed and assessed through the kaleidoscope of human rights. Whether the prosecution service fulfils the requirements of article 2 depends on its capacity to protect the fundamental rights of the main parties, i.e. the complainant/victim, the accused, and also the witnesses. The Sindh enactment of 2006 creating the Sindh Criminal Prosecution Service should be welcomed as a major step in the right direction. The new law inter alia visualizes the creation of an independent prosecution service that will be free from executive control and capable of protecting the rights of both the complainant/victim and the accused. As observed earlier, only time will tell whether or not this law will be implemented, but obviously vested lobbies and obscurantist forces will employ all their powers and tactics to make it extremely difficult to enforce.

Mohtarma Bhutto pays tributes to late Justice Haleem

Islamabad August 16, 2006: Former Prime Minister and Chairperson of the Pakistan Peoples Party Mohtarma Benazir Bhutto has paid rich tributes to the former Chief Justice of Pakistan Justice Mohammad Haleem who died in Karachi on Friday last at the age of 81.

In a condolence message the former Prime Minister said that she was grieved to learn about the death of ‘a great judge who had illumined the path for generations to traverse’.

She said that the late Justice Mohammad Haleem had a very distinguished career in the judiciary and will be remembered for his honesty, integrity and legal acumen for a long time to come.

Justice Haleem became a judge of the Supreme Court in 1977, assumed the office of chief justice of Pakistan in March 1981 and continued in this position till retirement in December 1989.

The former Prime Minister recalled one of his landmark judgments in the petition against amendments in the Political Parties Act in 1988. Admitting the petition, the late Justice Haleem had said that Article 183 (4) of the Constitution, which empowered the Supreme Court to entertain public interest litigation in its original jurisdiction, was open-ended and wide in scope. She said that it was a remarkable judgement that opened new vistas.

Striking down the impugned provisions of the Political Parties Act he declared that the interpretative approach must receive inspiration from those provisions that saturate and invigorate the entire Constitution so as to achieve democracy, tolerance, equality and social justice.

As a judge of the Supreme Court, Justice Haleem acquitted Zulfikar Ali Bhutto on all counts in the Nawab Mohammad Ahmed Khan murder case in appeal. Directing in his dissenting judgment that the appellant be set at liberty, he said an approver’s evidence could not sustain conviction.

Mohtarma Bhutto said that Justice Haleem was a firm believer in the judicial code of ethics and conduct during his tenure and like a true and great judge preferred to fade away in retirement after laying down judicial robes. Judges like Justice Haleem are truly a national asset, she said.

Mohtarma Bhutto also prayed for a high place in Heaven for Justice Haleem and patience to the members of the bereaved family to bear the great loss with fortitude.

Dali Bagh the residence of Mr. Mohammad Nasim Adv0cate, was purchased by him for Rs. 5000/- in a court auction sometime in late 1890′s. The expanse of Dali Bagh was some 21 acres and its structure still stands out in what is today known as Dali Bagh Colony, Lucknow.

more on this later…

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Voice of America in its coverage on Political Crisis, Inflation, Power Crisis Hurt Pakistan Economy [1] on 9^th January 2008 broadcasted an unbiased non-partisan report on the economic crisis in Pakistan. Faisal Bari, a professor of economics at Lahore’s University of Management Sciences, says some of those issues should have been dealt with earlier.

“I think these years that we’ve had, we’ll have to pay for some of the things that we did over the years or didn’t do, as in we didn’t do the reforms that were required in areas like power, in areas like judiciary, and other areas, property rights, etc.,” said Bari.

For the past several years, Pakistan’s economy has shown robust growth of around seven percent annually. Economists say it was fueled by aid from Washington to help fight terrorism, remittances from Pakistanis working overseas and foreign investment in the country.

Economist Qaisar Bengali says the strong performance was not sustainable, partly because on the consumer side of things, it was the result of easier bank credit. That made it possible for more people to borrow to buy big items such as cars. Bengali says when consumer financing is removed, bank profits decline, automobile sector growth declines, and gross domestic product growth declines.

“And this pattern of consumer-financed growth led to very sharp rise in imports,” said Bengali. “Our trade deficit is completely out of control now. It has also created a very high inflation rate. So growth cannot be managed in a way that you have very good numbers for three, four, five years and then those numbers turn into a liability.”

The trade deficit, which economists say runs above $10 billion, contributes to higher interest rates, as the nation borrows to cover the deficit.

Bengali says the government’s fiscal deficit, expected to be above the earlier forecast of four percent, also adds to the problems.

“The government’s current expenditure is running very high, it’s a major contributor to inflation,” said Bengali. “The government constantly borrows more money from the central bank than it has budgeted for. In the first five months of this fiscal year, they borrowed the entire amount that they were supposed to borrow for the whole year, and they’ve continued to borrow since then.”

Energy problems factor into the economic woes. Bari says the government has not reformed the energy sector to increase private investment in new electricity plants. As a result, many parts of the country are without power six hours each day.

“The harder reforms that we were supposed to do when going was good were not done and I think the incoming government is going to pay for that in this year and probably the next one,” said Bari.

Islamabad has steadily raised development spending in recent years, including a 52% real increase in the budget allocation for development in FY07, a necessary step toward reversing the broad underdevelopment of its social sector. The fiscal deficit – the result of chronically low tax collection and increased spending, is fast becoming unmanageable.

Inflation remains the biggest threat to the economy, jumping to more than 9% in 2005 before easing to 7.9% in 2006. In 2008, following the surge in global petrol prices inflation in Pakistan has reached as high as 25.0%. The central bank is pursuing tighter monetary policy while trying to preserve growth. Foreign exchange reserves are bolstered by steady worker remittances, but a growing current account deficit – driven by a widening trade gap as import growth outstrips export expansion – could draw down reserves and dampen GDP growth in the medium term.^[7]

Since the beginning of 2008, Pakistan’s economic outlook has taken stagnation. Security concerns stemming from the nation’s role in the War on Terror have created great instability and led to a decline in FDI from a height of approximately $8 bn to $3.5bn for the current fiscal year. Concurrently, the insurgency has forced massive capital flight from Pakistan.

Public Policy universally is the indisputable amalgam of Legislative Public Policy, Judicial Public Policy and Administrative Public Policy, while Political Economy is correlates to economics, law, and political science in explaining how political institutions, the political environment, and the economic system each influence the other. When narrowly construed, it refers to applied topics in economics implicating public policy.

The comments of Mr. Qaisar Bengali, a renowned economist and Mr. Faisal Bari Professor of Economics at Lahore’s University of Management Sciences reflect lack of Public Policy and an unrealistic approach to Political Economy which could never be conceived in the governance mechanism of Pakistan. This apart from creating other problems compounded the growing dilemma in the area of Social Justice. Economists and political scientists often associate the term with approaches using rational choice assumptions, in explaining phenomena beyond economics’ standard remit, in which context the term “positive political economy” is common.

If we attempt a serious study of Pakistan’s predicaments which it has faced since generations, one factor which prominently stands out is an ideologically defined educational system which refuses to allow rationale and critical thought to develop in the students, the aspiring future leaders. The failure of disciplines as Philosophy, Sociology, Psychology, Political Science, History and Economics, to name a few which provide evidence for the collapse of a once stable and educated society into a lawless community. A fractured economic and financial system, and rhetoric based political system, cannot provide any help in ameliorating the problems of a common person.

From 2000 to 2007 Higher Education Commission an alternate to University Grants Commission was receiving the highest percentage of chunk of revenues ever reserved for education. The achievements are best forgotten. Not a single step was taken to revive the necessary fundamentals of education. University cities were planned but only for those disciplines which provide immediate utility to specific fields of interest to the establishment. Even such universities are catching dust in their blueprints

In this scenario Pakistan is decades behind in social sciences and physical sciences when compared to other developing countries.

On June 5, 2008, the Carnegie Endowment for International Peace hosted a discussion on Pakistan’s economic and social challenges and prospects.  Featured speakers included Jan Vandemoortele, Senior Advisor on Policy at UNICEF and former UN Resident Representative in Pakistan for humanitarian issues; Ambassador Teresita Schaffer, Director of the South Asia Program at the Center for Strategic and International Studies; and Frederic Grare, visiting scholar in the South Asia Program at the Carnegie Endowment.  Sandra Polaski, Director of the Trade, Equity, and Development Project at the Carnegie Endowment, moderated the event.^[2]

Jan Vandemoortele opened the discussion with an overview of Pakistan’s uneven performance in achieving human development goals. The country has made some limited progress on poverty and health indicators, yet its education outcomes remain well below those of other countries at similar levels of development.  Mr. Vandemoortele attributed these poor results to a lack of investment: the country spends only about 2.5% of GDP on health and education, whereas most countries that have grown on a sustained basis have spent at least 7%.  He stated that Pakistan’s recent economic success has produced “growth without development,” as there had been little structural change in the economy and only a narrow distribution of its benefits.  He estimated that those in the bottom half of the income distribution had seen no gains.

Today Pakistani society is extremely polarized – along gender, economic, geographic, religious, and ethnic lines – preventing the social cohesion necessary for broad-based, inclusive growth, he continued.  Mr. Vandemoortele concluded by noting that, while Pakistan is in need of reform, it is imperative that the international community grant it the policy space necessary to develop local solutions for its specific problems; too much foreign involvement would likely be counterproductive, fueling the causes of extremists and undermining moderates.

Teresita Schaffer broadly agreed with Mr. Vandemoortele’s assessment.  She asserted that Pakistan has failed to sufficiently invest in its people; this is a shortcoming not only of the current government, but has been a constant problem under a succession of governments. Such underinvestment is directly responsible for the poor social and economic statistics Vandemoortele presented.  Schaffer also stressed Vandemoortele’s final point on policy space, stating that given the current political climate in Pakistan any new policies which appear to be at the behest of Washington will fail.

Frederic Grare concurred with the problems which Mr. Vandemoortele and Ms. Schaffer had outlined, but maintained that there was reason for greater optimism than the previous speakers had found.  He asserted that though there was significant social polarization in Pakistan, the country did in fact have a history of national cohesiveness, and that effective policies could further unify the people.  Mr. Grare noted that the military/civilian divide which had grown in recent years is now being reversed, another positive development.  He concluded by stating that while the current outlook for Pakistan certainly wasn’t great, the country would continue to muddle through, and noted that as a younger generation came into government outcomes would likely begin to improve.

During the question and answer session following the presentations, Kenneth Dillon of Scientia Press asked how significant Pakistan’s environmental problems were, and whether they were likely to have an impact on economic growth.  Mr. Vandemoortele replied that the government is becoming conscious of Pakistan’s serious and growing environmental problems, but he was unsure whether or not it would succeed in addressing them.  As yet there has been little impact on the economy, but if land erosion and high levels of water salinity continue to spread throughout the country, agricultural production will suffer tremendously.

David Orden of the International Food Policy Research Institute asked the panel what role trade with India could play in Pakistan’s economic development.  Mr. Vandemoortele responded that economic diplomacy between Pakistan and India is growing, as today many Indian information technology companies have begun subcontracting some of their work to lower-wage Pakistani firms.  He stated that the politicians and bureaucrats need to catch up to the business community by further easing trade restrictions between the two countries.  Ms. Schaffer stated that while the potential for trade with India was huge, actual trade has so far remained modest.  She agreed that the politicians have been an obstacle to greater trade, as they are protecting domestic sectors that are afraid of import competition.  Mr. Grare added that with respect to the Indian economy, some Pakistani sectors are defensive, because they fear they can’t match its dynamism.

In response to other questions, the panelists stated that improved security and stability were essential to maintain foreign confidence in Pakistan’s economy and increase foreign investment; that land reform could produce great gains for the economy, but is unlikely to happen anytime soon due to the political clout of large land owners; that, with respect to health and education, the government needs to both spend more money and spend more effectively; and that the military continues to control a significant portion of the economy, which has both positive and negative impacts.

A society shod of education, poverty ridden, how can it be expected to shed its woes easily. A system taught and trained to exist in hate for 62 years, how can it now be reined in to bring tolerance, harmony and piece within, unless it is ready to accept the reality of partition, and willingly longs to co-exist with India. Not much can be expected in any sphere of its life specially its socio-economic issues.

Could social engineering be a possible solution? Is a paisa worth question, provided the policy makers are willing to invest that paisa, which is hard to come by in Pakistan.

Karl Popper referring to social engineering in political science made an a material comment in his book The Open Society and Its Enemies, volume I, The Spell of Plato, Karl Popper examined the application of the critical and rational methods of science to the problems of the open society. In this respect, he made a crucial distinction between the principles of democratic social reconstruction (called ‘piecemeal social engineering’) and ‘Utopian social engineering’

Popper wrote:[3]

“the piecemeal engineer will adopt the method of searching for, and fighting against, the greatest and most urgent evil of society, rather than searching for, and fighting for, its greatest ultimate good.”

According to Popper, the difference between ‘piecemeal social engineering’ and ‘Utopian social engineering’ is

“the difference between a reasonable method of improving the lot of man, and a method which, if really tried, may easily lead to an intolerable increase in human suffering. It is the difference between a method which can be applied at any moment, and a method whose advocacy may easily become a means of continually postponing action until a later date, when conditions are more favorable. And it is also the difference between the only method of improving matters which has so far been really successful, at any time, and in any place, and a method which, wherever it has been tried, has led only to the use of violence in place of reason, and if not to its own abandonment, at any rate to that of its original blueprint.”

While this is true for Political Science, Sociology provides yet another equally potent vehicle for good governance. Sociological practice is intervention using sociological knowledge whether it is in a clinical or applied setting. It is different from pure academic sociology in which sociologists work in an academic setting such as a university with a teaching and pure research orientation. Although there are some common origins, sociological practice is entirely distinct from social work.[4]

More and more universities are trying to make the curriculum more geared towards sociological practice.

While such programs are increasing emphasis on practical skills, they still incorporate pure knowledge. Pure academic researchers are also useful to applied sociologists in that their theories and research may be used by an applied sociologist or clinical sociologist in research or in sociological practice.

Some degrees may only be focused on applied or clinical sociology. Applied sociology is generally meso-level or macro-level intervention. It would include grant writing, program evaluation, human resources, work in public policy, community development, and many other jobs within social service agencies, non-profits, and businesses. There are many other opportunities for someone with applied sociological training.

Clinical sociology courses give students the skills to be able to work effectively with clients, teach basic counseling skills, give knowledge that is useful for careers such as victims assisting and drug rehabilitation, and teach the student how to integrate sociological knowledge with other fields they may go into such as marriage and family therapy, and clinical social work.

Social engineering is something which we don’t hear of, in the din of resounding statistics and claims of achievements. In the present spate of consumerism, disparity between the rich and the poor shows a sharp rise. The middle class continues to fragment financially leading to the vicious cycle of corruption, nepotism, discrimination, etc. Today it is a sad fact that all these are now well entrenched in the society and accepted as social norms.

The recent examples of poverty related incidents, stock market crashes, hoarding of sugar, wheat and other necessary food items, energy crisis leading to hours of daily load shedding in rural and urban center alike well illustrate inept governance.

The necessary prerequisite is to move towards the system of governance which provides democracy essential foundations of political, economic and social justice.

UNDP[5] defines governance as “the exercise of economic, political, and administrative authority to manage a country’s affairs at all levels and the means by which states promote social cohesion and integration, and ensure the well-being of their populations. It embraces all methods used to distribute power and manage public resources, and the organizations that shape government and the execution of policy. It encompasses the mechanisms, processes and institutions, through which citizens and groups articulate their interests, exercise their legal rights, meet their obligations and resolve their differences.”

According to this definition, “good governance therefore depends on public participation to ensure that political, social and economic priorities are based on a broad societal consensus and that the poorest and most vulnerable populations can directly influence political decision making, particularly with respect to the allocation of development resources. Good governance is also effective and equitable, and promotes the rule of law and the transparency of institutions, officials, and transactions” (UNDP, no date).

In brief, good governance refers to a high quality of processes by which decisions affecting public affairs are reached and implemented. Good governance ensures that all, including the poor and other disadvantaged groups, are included and have the means (a) to influence the direction of development in particular as far as it affects their lives, (b) to make contributions to development and have these recognized, and (c) to share in the benefits of development and improve their lives and livelihoods. Good governance helps to ensure that all people have adequate access to basic services.

The quality of governance may be measured according to a set of principles which can be defined as follows:

• Inclusiveness and equity: the principle that no one can be excluded from the process of development on the basis of gender, race, religion etc.
• Participation: the opportunity for people affected by the decision to influence the process of decision-making directly or indirectly.
• Transparency: the degree to which the rules, standards and procedures for decision-making are open, clear, verifiable and predictable.
• Efficiency: a measure of how economically resources are used to produce the intended results
• Subsidiarity: the principle that decision-making takes place at the level most appropriate for the issue (usually the lowest level possible).
• Adherence to the rule of law: the principle that every member of a society, even a ruler, must follow the law.
• Accountability: the responsibility of a decision-maker to explain and justify the decisions it made and implemented, and the results these produced
• Sustainability: The likelihood that the positive effects of an intervention will persist for an extended period after the intervention as such ends.

Pakistan’s successive leaderships in this context have not adhered to any one of the standards.

In the face of this intransigence, Pakistan today faces the following problems:

• Terrorism
• Religious Extremism
• Religious Intolerance
• Breakdown of Law and Order
• Poor Justice System
• Maladministration
• Corruption
• Poor and Educational System
• Politico-Religion based Curriculum
• Illiteracy
• Child Labour
• Feudalism
• High Defence Budget

In the list of Pakistan’s socio-economic woes is the monstrous debt.  Without monetary resources with which to fight the numerous problems of the nation, Pakistan remains overpopulated and poor.  The debt accrued by Pakistan has come from several sources. Primarily this debt has accumulated due to the continuing conflict with India over the Kashmir region. Kashmir is a predominantly Muslim state within India. As such, the possession of this region has been a source of contention between mostly Hindu India and mostly Muslim Pakistan. This border conflict has been raging on and off for the last half of the twentieth century. Due to these hostilities, the Pakistani government spends roughly one fifth of its budget on its military, further limiting potential spending on social improvements and programs.

Another factor in the large debt is Pakistan’s dependence on foreign oil and other imported fossil fuels. As a nation, Pakistan uses 350,000 barrels of oil per day. Of this, 293,000 barrels per day are imported. Also, 1.1 million short tons of coal are imported each year. The combination of these two alone make up a huge part of the over one billion dollar trade deficit. These resources are used primarily for the generation of power.

Due to all of these sources of debt, half of government expenditures are dedicated to fulfilling debt repayment obligations.  In order to finance these payments, additional grants and loans are required each year totaling approximately 25% of revenues.  This prevents Pakistan from devoting significant resources to economic development and/or social improvements.

The primary economic policy issue for Pakistan is reduction of its debt burden, which constrains economic growth, and the Government’s capacity to fund poverty reduction and social sector expenditures. This in turn requires that the fiscal deficit be reduced to a sustainable level. The Government has been able to increase tax revenues in the last two years, but as a proportion of GDP they are well below the average ratio for the 1990s. The burden of adjustment in the 1990s has been largely borne by development expenditure, which as a proportion of the GDP is now at the lowest level ever (i.e., at 3.0 percent of GDP). Given Pakistan’s high and rising levels of poverty and its low level of human development, there is a need to increase development spending. Therefore, the Government needs to focus more on reforms to improve revenue collection by broadening the tax base and strengthening tax administration.

In addition, it must improve public expenditure management, and stop the massive hemorrhaging of public resources to loss-making state-owned enterprises. The Government has announced an ambitious privatization program; if implemented it will help to reduce the fiscal burden of the loss-making enterprises, and generate resources for debt retirement and poverty reduction.

Another important economic policy issue is restructuring the economy to enhance the efficiency and outward orientation of the agriculture and manufacturing sectors. This is necessary for Pakistan to improve its external balance, service its huge external debt, and meet the challenges of globalization.

However without planning a long term strategy involving reform in education, policy planning, setting up think tanks centers, and moving away from individualistic to institutional politics, Pakistan will continue to present bleak picture to the world.

[2] http://www.carnegieendowment.org/events/index.cfm?fa=eventDetail&id=1140&prog=zgp&proj=zsa,zted

[3] http://en.wikipedia.org/wiki/Social_engineering_%28political_science%29#Karl_Popper

[4] http://en.wikipedia.org/wiki/Sociological_practice

[5] http://www.unescap.org/pdd/prs/ProjectActivities/Ongoing/gg/access-to-basic-services.asp

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The main objectives of the criminal justice system can be categorized as follows:
Prevent the occurrence of crime.
Punish the transgressors and the criminals.
Rehabilitate the transgressors and the criminals.
Compensate the victims as far as possible.
Maintain law and order in the society.
Deter the offenders from committing any criminal act in the future.

Of late, the relevance of our criminal justice system- both substantive and procedural is under cloud and open to grave skepticism. The system is unquestionably founded in laws that are arbitrary and operate to the disadvantages of the vulnerable and the poor. They have always come across as law for the poor rather than law of the poor. It operates on the weaker sections of the community, notwithstanding any constitutional guarantee to the contrary.

Even after six decades of independence, no serious effort has been made to redraft penal norms, radicalize punitive processes, humanize prison houses and make anti-social and anti-national criminals etc. incapable of escaping the legal coils.

Even though Pakistan is flooded with statutory laws pertaining to criminal justice system, most of these were legislated during the earlier British colonial period; that being between 1860 and 1910. The Penal Code defining the penal offences and the their punishments was enacted in 1860, while the Criminal Procedure Code dates back to 1898, Prisons Act, Prisoners Act, and The Reformatory Schools Act have been in force since 1894, 1900, and 1897 respectively. Given the nineteenth century influences on the ideas of crime and punishment, the principles revolving on deterrence rather than a reformatory view, coupled with the expected sensitivity of a colonial rule was dominant in the minds of the legislators, should be no surprise to any critic. Some of these laws enacted fell squarely within the natural scheme of the desired coercive legislation.

The protection of society as an objective of punishment has been universally accepted and this can be achieved through reformation and the rehabilitation of offenders. While taking due note of the need to keep out of circulation for a longer time harmful, habitual, dangerous recidivist prisoners, a progressive prison system has to operate keeping in view the protection aspect as much as correctional and rehabilitation aspects.

Any study on criminal justice system must address these two basic issues. And it is in the context of these same two basic issues that various aspects of human rights have also to be examined.

Unless there is comprehensive reforms of the criminal justice system in it’s entirely, there is unlikely to be decisive change. Various commissions and committees have examined problems relating to different elements of the criminal justice system. But what is required is a detailed look at the system as a whole. Such an effort is long overdue and would be an essential and urgent step towards reform of vital spheres of public administration affecting human rights and human dignity. There are problems concerning such issues right from the stage of recording the FIR, during investigation (which often involves search, seizure, arrest, detention and interrogation), prosecution, trial, sentencing, jail life, parole, review, remission and rehabilitation, not to mention recidivism and relapse. Unless the government agencies dealing with specific aspects of these processes and matters work in co-ordination and their efforts are complementary to each other, there cannot be harmonious and purposeful results. In the current processes severe damage is caused to basic humanitarian considerations, the rule of law and public confidence in the credibility of the entire system has been shaken. The results can be and in fact are very disturbing the Society is losing faith in the system of justice. Sensitivities in regard to human sufferings and the inescapable disregard of law have been dulled. It can with all conviction be said that failure of criminal justice system is one of the players due to which people have lost faith in the administration of justice, and the rule of law has seriously eroded.

The obvious and immediate impediments facing the litigants, specially the under trial prisoners can be narrowed to three categories:

1. The need for measures to lessen the population of the prisons through reforms in the jail administration and restorative justice programmes
2. Delay at the investigation levels
3. Delay in the trial proceedings

Each of these requires independent enquiry to ascertain and point out the problem areas, and the possible solutions by which each category responsible for the decay of prison and judicial system may be attended to.

Categories ii and iii both overlap and inter sync in what is termed as Delay in Proceedings.

An interesting observation comes from Michael Anderson^[1] in his paper on Access to Justice in the First Judicial Colloquium on Access to Justice, which is reproduced to emphasize the issue under discussion:

“Justice in its current form is part of the problem. Second, the poor see the institutions of justice (especially the police, but also court officials and others) not as a source of protection, but as entities to be avoided. Where justice institutions are seen not as the solution but as part of the problem, it is hardly surprising that access to them is not especially attractive. Poor people rarely mention a lack of legal aid as their critical justice problem; partly this is because they see lawyers and courts as part of the problem to be avoided rather than the solution to their difficulties. In this context justice institutions might take a page from the medical profession, where the primary rule is “First, do no harm” — in other words, make certain that the medical intervention is not going to make the patient worse off. Improved access to courts will be of little use if it means greater access to delay, harassment, bribe-taking, and unresponsive systems. In this context, the question for judges becomes: how to ensure that justice institutions are not themselves sources of injustice before offering them as weapons against the injustice of others?”

Delay in criminal justice negates several fundamental rights including the right to freedom of movement and dignity of man. The problems of delays are neither new nor unique in the context of Pakistan only, even most advanced countries lament of heavy arrears. It is an old and chronic problem of global dimension caused partly by cumbersome and technical provisions of procedure and partly because of non-observance of provisions. It was observed:

“Delay haunts the administration of justice. It postpones the rectification of wrong and the vindication of the unjustly accused. It crowds the dockets of the courts, increasing the costs for all litigants, pressuring judges to take short cuts, interfering with the prompt and deliberate disposition of those cases in which all parties are diligent and prepared for trial, and overhanging the entire process with the pall of disorganization and insolubility. But even these are not the worst of what delay does. The most erratic gear in the justice machinery is at the place of fact finding and possibilities for error multiply rapidly as time elapses between the original fact and its judicial determination. If the facts are not fully and accurately determined, then the wisest judge cannot distinguish between merits and demerits. If we do not get the facts right, there is little chance for the judgment to be right^[2].”

Ever since the creation of Pakistan, the need to reform the administration of justice always remained on top of agenda of the successive Governments. There was constantly search for new and alternative ways and means to overcome the problem of delays and to remove hurdles and obstacles in way of speedy and fair dispensation of justice. Soon after independence, these problems attracted the attention of the Government of Pakistan and a Law Reform Commission, headed by Mr Justice S. A. Rahman, then a Judge of the Supreme Court of Pakistan, was constituted in the year 1958, to examine the causes of delay in the disposal of cases by the courts and to suggest remedies for the better and more speedy disposal of both civil and criminal cases. This Commission made several recommendations out of which only a few were accepted. Thereafter, another Law Reform Commission was established in 1967, under the Chairmanship of Justice Hamoodur Rehman, the then Chief Justice of Pakistan, to ascertain the causes of delay and to recommend efficacious remedies for the removal of such causes and suggest measures to simplify the court proceedings. The Commission submitted an exhaustive report in 1970, recommending legislative as well as administrative reforms to eradicate inordinate delays in disposal of cases.[3]

Again, in 1978, a Committee was set up under the Chairmanship of the Chief Justice of Pakistan, with the Attorney General, the Chief Justices of High Courts as members. The Committee submitted its report suggesting appropriate measures in the light of recommendations already made by the preceding law reform commissions. Its recommendations requiring legislative action were accepted and implemented through an Ordinance in 1980.

In the year 1993, a special Commission on Reform of Civil Law was constituted, headed by the Chief Justice of Pakistan and the Chief Justices of the provincial High Courts as its members.[4]

The efforts of all previous law reforms were mainly focused on civil law reforms and the field of criminal justice system was however, not given due attention. There was a dire need to give special attention to reform the criminal justice system. Consequently, in 1997, the Law and Justice Commission on its own motion took an exhaustive study to propose reforms in the criminal justice system. The report prepared by the Secretariat was placed before the Commission in its meeting held in 1997. The Commission after thorough discussion and deliberations unanimously approved the proposals, recommending inter alia:

(1) strengthening the judicial system;

(2) increases in number of judicial officers;

(3) provision of court rooms and allied facilities;

(4) restructuring the service condition of judicial officers;

(5) timely submission of challans;

(6) taking effective measures to ensure attendance of witnesses;

(7) liberalizing the provisions of bail;

(8) to check and control frequent adjournments;

(9) separation of the functions of civil and criminal courts; and

(10) strict supervision on court management.

These recommendations were not given due effect and were generally ignored. The Supreme Court in Liaquat Hussain’s[5] case took serious note of it and observed that the system of administration of justice in the country is confronted with caseload, at all levels of judicial hierarchy. The Court further observed that unless the requisite legal/judicial remedial measures are timely adopted, the situation will further deteriorate. The Court went on to mention certain reports of the Pakistan Law Commission, namely, Report on Criminal Justice System, and Report on Reform of Juvenile Justice System, and bemoaned their non-implementation.[6]

The causes and factors responsible for the delays in trial of criminal cases may briefly be identified. These include lack of proper supervision of courts, unsatisfactory service of processes, lack of proper working conditions in the court, lack of transport facility for process serving staff, lack of court/residential accommodation for judicial staff, lack of libraries, lack of record rooms in the courts, shortage of ministerial staff and necessary equipments in the courts, non-observance of the provisions of procedural laws, shortage of judicial officers, shortage of stationery and furniture, delay on the part of investigating agencies, non-attendance of witnesses, delay in writing and delivering judgments, frequent adjournments, dilatory tactics by the lawyers and the parties, frequent transfer of judicial officers and transfer of cases from one court to another, interlocutory orders and stay of proceedings and un-attractive service conditions of subordinate judicial officers, etc.[7]

Courts have to follow procedural laws i.e. the Code of Criminal Procedure, 1898 and Cr.P.C is more than hundred years old and time-tested, yet need to be reformed to meet the present-day requirements. It may also be pertinent to mention that our neighbouring country (India) has exhaustively revised both these laws. The time is ripe to thoroughly revise our procedural laws in order to bring them in conformity with modern needs. This exercise though time consuming will produce positive and far-reaching results in eradicating courts delays, both in civil and criminal justice system. There is also a need to improve judicial system through administrative measures for eliminating defects that exist in the system.

It is therefore proposed that the process of law reforms be carried through:

(i) introducing legislative reforms through amendments;

(ii) administrative reforms; and

(iii) introducing means of alternate dispute resolution.

In view of the importance of the subject matter, it is proposed to explain in brief some of the important areas of the criminal justice system that have attracted the attention of the courts in the sub-continent in recent years. These are:

1. Bail
2. Prison justice.
3. Compensation to the victims.
4. Legal aid and legal services.

Bail is a generic term used to mean judicial release from custodia legis. The right to bail- the right to be released from jail in a criminal case, after furnishing sufficient security and bond- has been recognized in every civilized society as a fundamental aspect of human rights. This is based on the principle that the object of a criminal proceeding is to secure the presence of the accused charged of a crime at the time of the inquiry, trial and investigation before the court, and to ensure the availability of the accused to serve the sentence, if convicted. It would be unjust and unfair to deprive a person of his freedom and liberty and keep him in confinement, if his presence in the court, whenever required for trial, is assured.

Justice delayed is justice denied. This is more so in criminal cases where the liberty of an individual is at stake and in jeopardy. The irony of fate is that in all such cases, it is the poor and the week who are the victims of the criminal justice system, and not the rich who are able to get away.

The plight of under trial prisoners for the first time came to the notice of the Supreme Court of India in the landmark case of Hussainara Khatoon v. State of Bihar[8] in 1979, wherein it was disclosed that thousands of under trial prisoners were languishing in various jails in the State of Bihar for periods longer than the maximum term for which they could have been sentenced, if convicted. While granting a character of freedom for under trials that had virtually spent their period of sentences, the court said their detention was clearly illegal and was in violation of their fundamental rights guaranteed under Art.21 of the Constitution of India. The court further said that speedy trial is a constitutional mandate and the State can’t avoid its constitutional mandate and its constitutional obligation by pleading financial or administrative inability.

In Sanjay Suri v Deli Administration, DELHI & ANR.[9], a trainee newspaper reporter initiated public interest litigation by moving a writ petition in the Supreme Court of India to gather information about seven juvenile prisoners locked up in Tihar Jail, Delhi, whose conditions were reported miserable. The Court, after getting a thorough investigation conducted of the matter, came to know that the prisoners were living in pathetic conditions in prison and there was overcrowding in jail. The court accordingly issued a number of directions to the jail administration under the provisions of the Indian Prison Act, 1884 to undertake corrective measures, so that the prisoner could be provided with facilities available under the law and were not put to harassment and inhuman torture.

There is however, hardly any change in the condition of the jails and the attitude of the jail administration, and in spite of constitutional mandate for speedy trial, there are over two lakh prisoners, convicts and undertrials who are endlessly awaiting an early hearing of their cases.

It may be noted that the liberal remissions and grant of frequent paroles to the prisoners to spend time with their families would help to inculcate self confidence in prisoners and reduce the intensity of some of the prison vices.

As Kuldeep Singh and B.L. Hansaria, JJ said:
Unless there is introspection on the part of all concerned with the criminal justice system, issues relating to jail reforms, improvement in the prisoner’s condition, and better administration of justice will continue to remain on paper. It is possible to reduce the backlog of criminal cases if the judiciary and lawyers together resolve to refrain from unnecessary and repeated adjournment.

Criminal law, which reflects the social ambitions and norms of the society, is designed to punish as well as to reform the criminals, but it hardly takes any notice of byproduct of crime- i.e. its victim.

The poor victims of crime are entirely overlooked in misplaced sympathy for the criminal. The guilty man is lodged, fed, clothed, warmed, lighted, and entertained in a model cell at the expense of the state, from the taxes that the victim pays to the treasury. And, the victim, instead of being looked after, is contributing towards the care of prisoners during his stay in the prison. In fact, it is a weakness of our criminal jurisprudence that the victims of crime don’t attract due attention.

The (amended) Indian Code of Criminal Procedure, 1973, sec. 357 and Probation of Offenders Act, 1958, sec.5; empowers the court to provide compensation to the victims of crime. However it is noted with regret that the courts seldom resort to exercising their powers liberally. Perhaps taking note of the indifferent attitude of the subordinate courts, the apex court the case of Hari Krishan directed the attention of all courts to exercise the provisions under sec. 57 of the Cr.P.C. liberally and award adequate compensation to the victim, particularly when an accused is released on admonition, probation or when the parties enter into a compromise.
Criminal Justice System in Pakistan requires a strong second look.
The criminal investigation system needs higher standards of professionalism and it should be provided adequate logistic and technological support. Serious offences should be classified for purpose of specialized investigation by specially selected, trained and experienced investigators. They should not be burdened with other duties like security, maintenance of law and order etc., and should be entrusted exclusively with investigation of serious offences.

The number of Forensic Science Institutions with modern technologies such as DNA fingerprinting technology should be enhanced. The system of plea-bargaining (as recommended by the Law Commission of India in its Report) should be introduced as part of the process of decriminalization.

The greatest asset of the police in investigation of crimes and maintenance of law and order is the confidence of the people. Today, such public confidence is at the lowest ebb. The police are increasingly losing the benefit of this asset of public confidence. Hard intelligence in investigations comes from public cooperation. If police are seen as violators of law themselves or if they abuse their powers for intimidation and extortion, public develop an attitude of revulsion and the onerous duties and responsibilities that the police shoulder become more onerous and difficult.

In order that citizen’s confidence in the police administration is enhanced, the police administration in the districts should periodically review the statistics of all the arrests made by the police in the district and see as to in how many of the cases in which arrests were made culminated in the filing of charge-sheets in the court and how many of the arrests were ultimately turned out to be unnecessary. This review will check the tendency of unnecessary arrests.

On 14^th January 2005, Secretary Law, Justice and Human Rights, Islamabad made a reference to the Chief Justice of Pakistan forwarding therewith a Bill, namely, the Law Reform Bill 2005, seeking comments and suggestions thereon. The Chief Justice of Pakistan convened a meeting of the Law and Justice Commission of Pakistan on 12-2-2005 to consider the proposed Bill.[10] The recommendations were to be formally encapsulated as a law reforms act, through legislation. Unfortunately the same never came to light, and remain only as deliberations.

The recommendations made by different law reforms committees during their tenure are important, and provide a definite and focused guidance which have not only guiding principles, but persuasive value.

To conclude, the arbiters of Criminal Justice system must reorient the thought that severity of sentence is a deterrent; in fact it is the certainty of conviction which co-relates with the degree of crime. Unless the latter is focused upon the failure of the criminal Justice System cannot be reversed. To show how the correlation works, the following comparative chart is produced below. The table below compares the effectiveness of prosecution in Pakistan against other countries:-[11][12]

www.humanrightsinitiative.org/jc/papers/jc_2002/background_papers/anderson.pdf

[2] Providing Speedy and Inexpensive Justice by Mr. Justice ® Mian Mehboob Ahmed, Chief Justice, Lahore High Court.

[3] http://www.asianlii.org/pk/other/PKLJC/reports

[4] http://www.asianlii.org/pk/other/PKLJC/reports

[5] PLD 1999 SC 504

[6] http://www.commonlii.org/pk/other/PKLJC/reports/60.html#fn6

[7] http://www.commonlii.org/pk/other/PKLJC/reports

[8] http://www.judis.nic.in/supremecourt/qrydisp.aspx?filename=4792 1980 SCC (1) 115

[9] http://www.judis.nic.in/supremecourt/qrydisp.aspx?filename=8486 1988 SCC Supl. 160

[10] http://www.asianlii.org/pk/other/PKLJC/reports/69.html#Heading1157

[11] http://www.sindhcpsd.gov.pk/prosecution.htm

INTRODUCTION

I am delighted to be with you this morning to benefit from your views in regard to certain current issues about the development of deep sea resources that are attracting the attention of international lawyers all over the world. My observations and references to this important phenomenon appear to be the outcome of diversity, complexity, and uncertainty of the law of the sea as it has been developing over the last decade. The subject itself has been expansive like its referent, the deep sea resources; but it has grown much vaster as the ranges of claims to the oceans have increased. The value of an exercise like this depends upon whether a consensus among the nations of the world would be forthcoming about the exploration and exploration of ocean resources. A clear idea about what future path will be taken by the law of the sea in this sphere makes it easier to put the present situation into perspective. A balanced view of the law of the sea can help in promoting an understanding that development of marine resources must focus on several related concerns at international level. My examination of a topic like this may convince that there are many possible approaches to the solution of this problem. Consequently, I thought it desirable to exchange perspectives. One may appreciate that the conditions of interdependence can work towards the better securing and clarification of common interest in deep sea resources. Hoping that the future order of the oceans would open up new dimensions of cooperation and enlightenment, this analysis of the development of deep sea resources may add a viewpoint, among others, to probe further into the dynamics of international relations pertaining to oceans.

With the growing importance of deep sea resources, there has been a virtual stampede to the ocean in search of oil, gas, hydro-carbons, fish and manganese nodules. The major issues in the development of these resources are concerned with territorial and jurisdictional claims, fisheries management, shipping and navigational regimes, international straits regimes, oil and gas exploitation, harnessing of thermal energy, environmental pollution, seabed mining scientific research, transfer of technology, and settlement of international disputes. The pattern of inter-state relations requires that states cooperate in the exploration and exploitation of deep sea-bed resources. The requisite cooperation can be attained through bilateral treaties.

Four issues have commanded the attention of experts. First, relates to the financing of the proposed mining operation. The second key issue is that of access to the deep sea-bed for mining operations. The third issue has to do with voting arrangements within the international sea-bed authority and the Enterprise. The fourth issue is concerned with revenue sharing from sea-bed exploitation.

Two opposing viewpoints emerged in a concrete shape in an attempt to develop a new regime with respect to oceans at the third United Nations conference on the
Law of the sea. (UNCLOS I I I). The developed areas sought to establish a legal regime that would enable them to explore and recover the mineral deposits within a free market system. This view was shared by the United States of America and 15 other developed nationals which maintained that there existed a right under international law to engage in deep sea-bed mining as a freedom of the high seas. The other view was projected by 130 nationals including the 119 nations of the third world. It was meant to establish that the manganese nodules of the sea-bed were the common heritage of mankind and that the wealth from their exploitation should be distributed equitably among all the nations of the world. The developing countries argued that their objectives could be met be met by using developing country nationals on the managerial, research and technical staffs and by the promotion of programmes for the transfer of technology. The developing countries had expressed the need to reduce the economic gap between the developed and the developing countries. Developing country governments sought implementation of the new international Economic Order through the medium of United Nations involvement in ocean mining.

Among the developed countries, the United States, in particular, expressed its concern that it would be asked to finance ( in proportion to its large contribution to the UN budget ) the activities of a supra-national mining company called the Enterprise that would compete with American mining interests and that could eventually monopolize production of sea-bed minerals; that United States companies would be obliged to sell their technology to the Enterprise, possibly a security threat in some cases; that the convention insulates land-based producers from competition with sea-bed mining; that the authority could discriminate against United States applicants in the selection of contractors; that in the council of the authority the soviet Union and its allies have three guaranteed seats, but the United States must compete with its allies for any representation; and that the convention imposes revenue sharing obligations on sea-bed mining corporations which would significantly increase the costs of sea-bed mining. On behalf of the United States, it was further maintained that initiatives taken by a country beyond the limits of the national jurisdiction could be limited only by provisions of international law. With regard to sea-bed mining, there did not exist, according to the U.S. Government, any restraints other than those which applied generally to the freedom of the high seas, including the provisions of claims of sovereignty, the exclusive jurisdiction of States over their vessels and their nationals, and the duty to have reasonable regard for other users of the high seas. If States were to subscribe to a convention establishing an international authority entrusted with overseeing the sea-bed mining, they would then be subject to additional restraints, since they would have voluntarily accepted the alteration of their freedoms in the interest of establishing a stable legal regime to regulate the exploitation of ocean resources. The United States did not, however, accept the suggestion that, without its consent, other States would be able, by resolutions or statements, to deny or alter its right under inter-national law.

The general assembly declared that the sea-bed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction as well as the resources of the area, were the common heritage of mankind. The assembly asserted that the Area would not be subject to appropriation by any means by States or persons, natural or juridical, and no state would claim or exercise sovereignty or sovereign rights over any part thereof. It was further declared that no state or person, natural or juridical, would, claim, exercise or acquire rights with respect to the area or its resources incompatible with the international regime to be established. The principles envisaged that all activities regarding the exploration and exploitation of the resources of the area and other related activities would be governed by the international regime to be established. It was agreed that the area would be open to use exclusively for peaceful purposes by all states whether coastal or land-locked, without discrimination.

On the basis of the principles enunciated by the general assembly in the declaration, an international regime applying to the area its resources would be established by an international treaty of a universal character. The regime would, inter provide for the orderly and safe development and rational management of the area and its resources and for expanding opportunities in the use thereof and ensure the equitable sharing by states in the benefits derived, there from, taking into particular consideration the interests and needs of the developing countries. In order to attain this end, the states were advised to promote international cooperation in scientific research exclusively for peaceful purposes. With respect to activities in the area, states were exposed to the suggestion to take appropriate measures for implementation of international rules, and procedures for prevention of pollution and contamination, and other hazards to the marine environment, and for protection and conservation of the natural resources of the area and prevention of damage to the flora and fauna of the marine environment.

The developing countries took the position that the General Principles Resolution (of December 15, 1970) whereby the sea-bed beyond the limits of the national jurisdiction was declared the common heritage of mankind, was binding on all those who voted for it. The United States, however, took the stand that the terms of Resolution made no change in existing law unless and until a governing treaty came into force.

Dissatisfaction with the regime for the deep sea-bed led the United States, which continues to support an international sea-bed regime in principle, to vote against the adoption of the 1982 convention and to declare that it will not become a signatory. The United States suggested that a mini-treaty regarding deep sea-bed mining omitting the controversial provisions of the convention be made. After nearly seventeen years of negotiations the world community has arrived, at the Third United Nations Conference on the law of the Sea (UNCLOS 111), near consensus on the following issues: (1) that an international sea-bed authority be created, (11) that it should be composed of an Assembly (for general policy supervision) and a council as an executive arm for management as well as a secretariat and an Enterprise as the business organ of the authority with adequate autonomy and personality of its own. It was also suggested that a law of the sea tribunal be created to take a special place in the category of international courts to be surpassed by none except the international court of justice.

Keeping in view the progress made so far in this sphere, further improvements will have to be made if the development of deep-sea resources is to be placed on sound footing. The present draft regime should be improved, and some way need be found to continue negotiations towards that end. Cooperative regional arrangements capable of serving the needs of several states may be initiated. A balanced ocean development is essential to respond to the problems produced by scientific and technological growth. Interdependence and shared human resources are pointing the way to organized procedures of international management. Most forms of pollution affecting the ocean environment are transnational in scope and must be treated within a modern system of international law. It would be desirable to consider the drafting of treaties on the protection of the marine environment. A justification exists for the application of global sharing. Moreover, it is essential that the restrictive practices of multi-nationals be curtailed, technological capability be encouraged and provision of appropriate technology be made.

It is essential to reach an agreement on the system of exploitation of the area. Agreement is desirable on the type of basic terms and conditions of exploration and exploitation. An agreement is equally desirable concerning the degree of control which the international sea-bed authority can be permitted to have over all activities in the area.

It may be said that national planning in the direction of increasing man’s dependence on the sea requires enquiry into the social sciences. The protection of common interests calls for continued appraisal and study of the process of interaction, claim, and decision involving the ocean. The creation of a global ocean management organization (GLOMO) might serve as a model for system verifying multi-lateral disarmament agreements and the monitoring of crises. The GLOMO would coordinate the management and purchase of information from existing ocean surveillance networks.

The extensions of maritime jurisdiction can cross-cut ecological boundaries. The addition of small states may result in the law of the sea being negotiated and developed in a more realistic context. Law of the sea issues need be given a high priority in national decision making. The development of a parallel system whereby the exploitation of the mineral resources of the ocean-bed beyond national jurisdiction can be carried out simultaneously by the industrial states and companies on the one hand and by the sea-bed enterprise on behalf of the developing countries on the other hand, is the need of the hour. The transitional obligation of mutual restraint should be forthcoming even as the over-lapping claims emerge. The prohibition of unilateral actions may be intrinsically connected with the duty to negotiate in good faith with regard to provisional arrangements. There appears to be a need for ruling by the international court of justice whether the unilateral licensing of deep sea mining is permissible under international law. Some king of accommodation between U.S.A. and developing countries will have to be developed.

THE DOMESTIC APPLICATION OF INTERNATIONAL HUMAN RIGHTS NORMS:

Significance of Human Rights:

The quest for human rights and human dignity is a phenomenon of contemporary life of universal dimensions and immense significance. The Concept of Human rights is a concept of world order. It is a determination for so structuring the world that every individual’s human worth is realized, and every individual’s human dignity is protected.

Human Rights are based on international consensus. They include the right not to be subjected to torture, to cruel, inhuman or degrading treatment or punishment, or to arbitrary arrest, imprisonment or execution. Human Rights also include the right not to have one’s home invaded and the right to fair, prompt and public trial.

A State is considered to violate international law if it practices. Encourages or condones:

(a) Genocide,
(b) Slavery or Slave Trade,
(c) The murder or causing the disappearance of individual’s,
(d) Torture or other cruel, inhuman or degrading treatment or punishment,
(e) Prolonged arbitrary detention,
(f) Systematic racial discrimination, or
(g) Consistent Patterns of gross violations of Internationally recognized human rights.

Human rights are of broad application. They apply not only to countries that have recognized these rights in their legal institutions, but to virtually all countries.

Human rights are not controversial in the sence that other political and econimic issues are. These are recognized in the constitution of many countries whose political principles are otherwise quite divergent.

Human rights express universal requirements of social justice. The International commitment to implement human rights is a commitment ot encourage the development of just institutions in every society.
Read at judicial colloquim, held under the auspices of the common wealth Secretariat,
London, at Bangalore (India) from 24th to 26th february, 1988.
__________________________________________________________________________

These rights are inalienable in the sence that a person who has them cannot voluntarily and irrevocably divest himself of them by gift sale or transfer to another person.

The history of mankind can be described as the history of the long struggle assert and then to protect human rights. The concept has made a remarkably sudden enter into the International vocabulary. These has become a very live issue in the conduct of world affairs, and the world as a whole is now seized with the issue of the human rights.

EQUATION OF HUMAN RIGHTS AND RULE OF LAW:
Human rights can be enforced in settings where the rule of law prevails. The American conference on world peace through the rule of law, held at san jose, costa rica in june 1961 agreed that the effective protection of the fundamental human rights of the individual is the indispensable basis for achievement of a sound legal order based on peace and justice. Similar conferences of continental scope held in Nigeria, India, Thailand, ceylon, Japan, Brazil and italy yielded identical conclusions and they were given universal expression in the “ Declaration of General Principles for a world rule od law”, adopted at the first world conference on “World Peace through the rule of law” held in july 1963, at athens in greece. A consensus emerged that all state and persons must accept rule of law in the world community. It was suggested that in International matters, the individuals, the juridical person the states and the international organization must all be subject to the international law, deriving rights and incurring obligations thereunder. And the conference concluded that international law and legal institutions must be based on fundamental concepts of fairness jusitce and human dignity.

In 1949, the international law commission in Article 14 of its Drafts Articles on rights and duties of States”Formulated the basic principle of the state system as follows:

Every state has the duty to conduct its relation with other states in accordance with the principle that the sovereignty of each state is subject to the supremacy of international law.
The Important point is that the peoples of the world now have an established institutionalized process through which they can freely and unambiguously expect their expections about policy, authority and control in relation to human rights.

The General principle establishing international accountability and the right to censure is now regarded as a settled law. Any state may pursue international remedies against any other state for a violation of the customary international law of human rights. The International court of justice gave currency to this adea in the barcelona traction case by suggesting in a dictum that “basic rights of the human person” create obligations erga omnes. Since the judgement of the P C I G in the barcelona traction case, there was been a growing acceptence in contemporary international law of the principle that all states have a legitimate interest in and the right to protest against human rights violations wherever they may occur, regardless of the nationality of the victims.

The recognition of inalienable human rights and the recognition of the individual as a subject of international law are synonymous. To that extent they both signify the recognition of a higher fundamental law not only a part of states but also, through International Law, on the part of the organized international community itslef. Such Fundamental law constitutes legal order. The recognition and protection of human rights have now assumed the comlexion of legal rights of individuals and of legal obligations of state and of the united nation as a whole. Members of the united nations are under a legal obligation to act in accordance with these purposes. It is their legal duty to resoect and observe Fundamental human rights .

INTERNATIONALIZATION OF HUMAN RIGHTS:

The adoption of the UN charter ushered in a process leading to the gradual internationalization of human rights through the rule of law. The UN Declaration clearly envisages the important role that the rule of law plays for the realization of the goal of respect universal human rights. The Declaration mentions: “its is essential, man is not to be compelled to have recourse, as a last resort rebellion against tyranny and opression, that human rights should be protected by the rule of law”.

The very objective of the maintenance of international peace and security being directly linked to the assurance of respect for human rights can be attained only through the process of internationalization. Former secetary general of the united nations, u thant in his human rights day message on December 10, 1965, Pointed out that “ We need constantly to remind ourselvesthat the united nations is firmly committed to the proposition that the eventual objective of all its function and activities is the well-being of individual men and women and also the freedom and opportunity to find their worth as human beings, whatever their race, language, religion or political belief.”

The UN charter introduced a significant change in the pre-existing legal conceptions by requiring the member states to pledge themselves to take joint and separate action in cooperation with the organization in order to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. These provisions impose legally binding obligations on the member states. To the extent that the charter create these obligations no UN member states can claim that human rights as such are a matter within its domestic jurisdiction. The UN law-making practise indicates that the obligation to these rights will be deemed to be violated if a state systematically pursues governmental polices denying the enjoyment of these rights on a large scale, particularly rights that are more basic. This internationalization of human rights has greatly reduced, if not made practically insignificant, the domestic jurisdiction defence that was available to states under the international law of the pre-world was 2 era.

THE UN CHARTER:

The united nations charter, after reaffirming, in the preamble, faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women, pronounces in article 1(3) that one of its purposes is to promote and encourage respect for human rights and for fundamental freedoms for all without distinction on account of sex or other ground. Of particular significance is article 8 which reads:

The United Nations shall placed no restriction on the eligibility of men and women to participate in any capacity and under conditions of equality in its principle and subsidiary organs.

The founding of the united nation in 1945 with the signing of the UN charter marked the first agreement among nation to promote and observe human rights and fundamental freedoms for all. The first defination of what actually was meant by human rights was not delineated until 1948 in the UN universal declaration of human rights. Since then the declaration was come to be regarded as basic international law, augmented later by the Interntional covenant on civil and political rights and the International covenant on economic, Social and Cultural rights. In addition, agreements on a regional basis have been established by the organization of the American states as well as by the european comvention for the protection of human rights and fundamental freedoms.

The General Assembly, or the Economic and Social council, or any other competent organ of the United Nations, are authorised to issues a situation arising from any alleged non-observence by a states or a number of states of their obligation to respect human rights and freedoms. The object of such discussion may be the initiation of a study of the problem under the aegis of the united nations; it may be recommendation of a general nature addressed to the concerned state and drawing its attention to the propriety of the drawing of bringing about a situation in conformity with the obligation of the charter thus the pressure of the public openion of the world as expressed through these channels is made to bear upon the recalcitrant state.

A dispute or situation ceases to be essentially within the domestic jurisdiction of a state of its nature or repercussions are such as to constitute a direct or potential threat to international peace and security. The correlation between peace and observance of Fundamental human rights is now a generally recognized fact. The United Nations, as the guardian of peace, is qualified of intervene whenever those rights are threatened.

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS:

One of the accomplishments of the United Nations has been to consolidate the principle that human rights are a matter of international concern and that the International community is entitled to discuss and to protect human rights. As a part of the UN mission. The UN charter of human rights was adopted on december 10, 1948. The UN charter of human rights contains 30 articles, the first 21 are generally identified as civil and political ranging from prohibition of torture and arbitrary arrest to the freedoms of speech, assembly, religion and emigration and the right to vote by secret ballot. The remaining articles include the so-called economic, Social and Cultural rights, such as the right to work, education and adequate standard of living, Social security, any vocations with pay.

The UN charter of human rights envisages that all human beings are born free and equal in dignity and rights and everyone has the right to life liberty and the security of person. It also declares that no one shall be held in slavery or servitude and no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. It asserts that everyone has the right to recognition everywhere as a person before the law and that no one shall be subjected to arbitrary arrest, detention or exile.

When the Universal Declaration was adopted unanimously is December 1948 by the General Assembly, the stated expectation was that it mirrored merely a common standard of achievement, devoid of legal authority and enforceability. In the early three decades subsequent to its adoption, however, the Universal Declaration been affirmed by numerous resolution of United Nation’s entities and related agencies; invoked and reinvoked by a broad range of decision makers, National and and transnationaljudicial and others; and Incorporated in many international agreementsand national constitutions. The result is that the universal declaration is now widely acclaimed as a magna carta of mind, to be compiled with by all actors in the world arena. What began as more common aspiration is now hailed both as an authoritative interpretation of the human rights provisions of the Un charter and as established customary law, having the attributes of jus cogens and constituting the heart of a global bill of rights.

THE UN COMMISSION ON HUMAN RIGHTS:

The UN commission on human rights has demonstrated considerable ingenuity in fashioning remedies which combine diplomatic contacts with the Government conciliation, fact finding and embarrasment to the state involved in the violation of the human rights. The United Nations has begun to experiment with two approaches which require further exploration: add to the victims and technical assistance to governments.

The Secretary General, javier perez de cuellar noted in his address of Feburary 15, 1983 to the UN commission on human rights.

“It is a source of encouragement that in the human rights programme of the United Nations in recent years, attention has been given not only to dealing with violations, but to providing assistance to Governments, at their request, in strengthening their laws and institutions for restoring respects for human rights, as well as providing assistance to victims of violations of Human Rights”.

HUMAN RIGHTS TREATIES AND CONVENTIONS:

Respect for Human Rights is a proper subject for discussion bilaterally and multilaterally for a through exchange for views on their implementation. Widely ratified international conventions establishing effective organs for enforcement are the method through which the International community aspires to protect human rights. In the history of International relations this is a very recent goal and the international community has only begun to implement it.

Like other international law human rights law is made by bilateral and multilateral treaties and by conventions for the protection of Human Rights. There is also customary human rights law made by national practise with a developed sense of legal obligations. Treaty law overrides contrary provisions of domestic legislation. A human rights treaty protects all persons within the jurisdiction of the signatory states.

Modern Human Rights treaties are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting states. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the state of their nationality and all other contracting states. In concluding these Human rights treaties, the state can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other states, but also individuals within their jurisdiction.

The UN charter and the two convenants are by no means the only multilateral effort at promoting human rights. There are over 20 treaties now and they include, inter alia, (a) the convention on the prevention and Punishment of the crime of genocide, (b) the international convention on the elimination of all forms of racial discrimination, (c) the convention concerning the abolition of forced labour, (d) the American convention or Human Rights, (e) the convention relating to the status of the refugees, (f) the convention on the reduction of statelessness, (g) the convention on the political rights of women, (h) the convention on the nationality of married women and (i) the convention on on the elimination of all forms of discrimination Against women.

These Convention create binding legal obligations on the parties to them.

The adoption by the General Assembly of the Convenant on Economic, Social and Cultural rights. The convenant on political and civil rights, and the optional protocol to the convenant on political and Civil Rights. Marks the beginning of a long process of investiture of a great idea with the substance of power capable of producing effective change in all realms of personal, National and international life. These International treaties are binding commitments of states towards their own citizens, towards one another and towards the community of nations to ensure, observe and safeguard human rights. By transforming International concern with human rights into legally binding international obligations, the covenants have laid the groundwork for the erection of International institutions and procedures which are meant to give concrete expression to these obligations.

It is not only on the global level that efforts to promote Human rights take place; by and large, some of the most innovative attempts have occurred on regional levels. Indeed, it appears that regional arrangements have most rapidly advanced the commitment of nations to human rights.

THE EUROPEAN SYSTEM:

Perhaps a prominent regional achievement is the European convention for the protection of Human Rights and Fundamental freedoms. The European convention established a commission and a court for handling both state and individual complaints.

The some instances individuals are able to assert their human rights in court or other appropriate forums. For example, the European convention on human rights and the optional protocol to the covenant on civil and political rights establish specific procedures for the bringing to complaints by private individuals where the Nation concerned has agreed to such a procedure.

In the law of Human Rights, it has long been apparent that the mere creation of international standards may be meaningless if it is unaccompained by appropriate institutional enforcement mechanisms at the transnational level. The european commission and the court of Human Rights, and the council of europe, are generally considered to be the most effective existing enforcement institutions, in spite of their geographical scope.

The European convention on Human Rights represents more than a common standard of achievement. It imposes upon the contracting state parties a certain body of legal principle which they are obliged to to conform to. In specific cases compliance with this law is ensured by the use of the convention’s enforcement machinery. The convention forms an integral part of the domestic law of many of the contracting state parties. The Convention’s provisions are deemed to maintain great validity whether or not a prior legislation on the subject exist at the domestic levels. The basic function of this machinery consists primarily of examining and determining whether domestic law as it stands complies with the provisions of the convention. Although constructed upon tenets of traditional treaty law, the convention law transcends the traditional boundaries drawn between international and domestic law.

THE AFRICAN SYSTEM:

The International Human Rights movement reflects, to a large extent, the liberal, Individualist tradition of civil and political liberties. There is something very new in the present attempt by the Organization of african unity to embody a list of collective or proples’s rights in the human righrs convention that provides for the enforcement of those rights. With the drafting in 1981 the african charter on Human Rights and people’s rights, meaningful steps are being taken in that direction.

THE INTER-AMERICAN SYSTEM:

The American convention on Human Rights entered into force in 1978. The Convention establishes two supervisory organs, the Inter-American commission on Human Rights and the Inter-American Courts of Human Rights. The court is a judicial institution of the Organization of the American States (OAS) in matters relating to Human rights. It has the power to decide disputes relating to the interpretation and application of the convention to states which have accepted the court’s contentious jurisdiction. The decisions of the court in these cases are final and binding for the parties to the disputes. The role of the court as a judicial judicial institution of the OAS is grounded in its advisory jurisdiction. These openions are important also for the contributions they make to the development of International Humans Rights Law.

IMPLEMENTATION OF HUMAN RIGHTS NORMS:

Since treaties cannot be made by the states for the violation of Human Rights. Even the absence of treaties for the protection of Human Rights cannot create a vacum. The scholars tend to agree with the elementary proposition that publi polices do not allow states to violate severally such norms as they are prohibited from violating jointly with other states. Judge mosler of the ICG, who deserves credit for coining the phrase “public order of the international community”, characterized such order as consisting of principles and rules the enforcement of which is of such vital importance to the international community as a whole that any unilateral action or any agreement which contravenes these principles can have no legal force. The reason for this follows simply from logic; the law cannot recognized any act either of one member or of several members in concert, as being legally valid if it is directed against the very foundation of law.

There are three main approaches to the international implementation of Human Rights. The first approach is on the Government-to-Government level. This may be through bilateral diplomacy or resort by a government to multilateral machinery. The difficulty with this approach is that Governments are often reluctant to complicate diplomatic relations by bringing human rights complaints against other government. The approach is to give individuals direct access to aninternational commission or tribunal. Such a right is available to an individual to petition the european commission and the european court of human rights and he can also invoke the optional protocol of the convention on racial Discrimination. This approach is feasible between countries which share a substantial degree of consensus on Human Rights standards. The Third approach is through an international executive who can influence Government action through fact finding. Publicity and persuasion.

HUMAN RIGHTS JUS COGENS:

The notion of peremptory norms of International law (jus cogens)is ‘a norm accepted and recognized by the International community of states as a whole as a norm from which no derogation is permitted. The Principle of jus cogens restricts the freedoms of state to make agreements at variance with these peremptory norms. Its moral and deterrent effect is is of perticular importance in the present context of internal and international violance. The rules of customary International law that require the states to abstain from the violation of human rights constitute jus cogens and all agreements made in contravention of these rules are considered illegal. Judge mosler of the ICJ took account of the dignity of the human person and declared that obligations to protect human rights faal in the domain of jus cogens. Third state have the right and duty to question the illegal act, and to refrain from recognizing it or giving it legal effect.

Many of the polices about Human Rights would appear to be so intensely demanded that they are acquiring not merely the status of International concern, but also that of jus congens and of a global bill of rights. The nations suggest that the great bulk of the contemporary human rights principles are identifiable as jus cogens. The view finds support in the statement of judge tanaka of ICJ that the law concerning the protection of human rights may be considered to belong to the jus cogens. Thus all rule of general international law created for a humanitarian purpose constitute jus cogens.

THE RELATION BETWEEN INTERNATIONAL HUMAN RIGHTS NORMS AND DOMESTIC LAW:
The relation between international law and municipal law is a question of determining what are the most appropriate juridical means of achieving, in state legal syatems, the aims and intentions lying behind the rules established by international law. The obligations imposed on a state by international law with a view to ensuring the implementation, in municipal law, of the terms of an international treaty to which the said state in a party, are the means of guaranteeing harmony and material agreement between the two legal orders. A state has an obligation to make its municiple law conform to its undertakings under treaties to which it is a party. With regarded to interpretation, however, its is a principle generally recognized in national legal syatems that, in the event of doubt, the national rule is to be interpreted in accordance with the state’s international obligations.

A matter is essentially within the domestic jurisdiction of the state only if it is not regulated by international law or of it is not capable of regulation by international law. In the modern age of economic and political interdependence, most questions which, on the face of it, appear to be essentially domestic are, in fact, essentially international.

A valid domestic jurisdiction defence can no longer be found on the proposition that the manner in which a state treats its own nationals is ipso facto a matter within its domestic jurisdiction. A Government’s human rights policy is no longer prima facie a domestic matter. A state engaging in gross violations of human rights is considered to be violating the united nations charter obligations and consequently is not protected by the domestic jurisdiction clause of the charter. It is, therefore, apparent that under international law the subject of human rights is not deemed to be inherently domestic in nature.

So far, a major deficiency in the development of Human Rights law is one of enforcement. The implementation of human rights law largely depends on the consent of nations. However, even if that consent is forthcoming, an adverse judgement against consenting nations may or may not be effectively enforced. Currently, the implementation and enforcement of human rights law are largely depended on voluntary compliance, moral pressures, and other forms of influence.

The questions arise as to why do Governments adhere to numerous human rights treaties? Why do they repeat and vote for formulas that produce resolutions and declarations, and establish bodies designed to promote the implementation of the legal norms proclaimed in these instruments? The answer no doubt is that they find it difficult to vote against what is deemed to be good, what a vast majority of people of the world want, and what consequently makes good political sense for Governments to be for, if only to give lip service to. The vast body of international human rights law as is available today is testomony to the fact that Governments know that the appeal, the yearning, and the demand for human rights is universal. It has been brought on by the universality of mankind’s suffering and the world wide awareness produced by the speed with which news travels in world. Today, unlike in the past, what happens in any part of the world is flashed instantaneously to all parts of the world, provoking sympathy, protests, and empathy. (See the remarks of the judge of the Inter-American court of Human Rights, professor thomas buergenthal, in the Proceedings of the 75th Anniversary Convocation of the American Society of International Law, (Washington D.C. April 1998)

The time has come for world citizens to stop thinking of human rights and human needs as internal affairs. Human needs are coming to be regarded as a first charge on the world’s resources. And human rights are becoming a first charge on the public conscience of people anywhere. The issue of human rights, in the very recent past, has penetrated the international dialouge. It has become an active ingredient in in interstate relations and has burst the sacred bounds of national sovereignty. No nation can any longer claim not to know what human rights are; nor can any nation now assert that the manner in which it treats its ownnationals is free from international scrutiny.

In the present context of world society, a principle is recognized that the jurisdiction of a state to entertain claims of human rights is determined by the position that the state has acquired in the comity of nations at a particular time. In its Tunis and Morocco Nationality decress opinion, the PCIG (Series B No.4 at p.24, 1923) declared that the question whether a certain matter is or is not solely within the jurisdiction of a state is an essentially relative question; it depends upon the development of international relations. The Court’s analysis indicate that the phrase “the development of international relations” has reference to the legal obligations assumed by states with regard to a specific subject.

In its advisory opinion on Namibia, the ICJ declared the extension continuation of apartheid in nimibia to be a violation of the purposes and principles of the charter. In 1967, by an overwhelming vote, the Economic and Social Council (ECOSOC) extended the interpretation of the UN charter to reach beyond racial discrimination, authorizing the commission on human rights to study situations which reveal a consistent pattern of violations of human rights, as exemplified by the policy of apartheld.

An inspiring recommendation of experts in respect of the protection of human rights is that the various provisions of international agreements can be interpreted by domestic courts. It would be worthwhile for the domestic courts to declare any variance with the peremptory norms of human rights as void and the courts may find it appropriate to terminate any existing agreement which is in conflict with that norm. the openion merits consideration that General Assembly resolutions in respect of human rights should be given legal effect by domestic courts as indicative of a general consensus of customary international law. such resolutions can give an important impetus to the emergence of new rules needed for the promotion of Human Rights.

It is important for the protection of human rights and for the realization of the rule of law that domestic courts be allowed to review the acts of foreign states when such enquiry is necessary to determine the nature of human rights violations. This practise does not violate the recognized principles of sovereign immunity. The domestic courts can have an obligation to determine whether foregin acts of states comply with the requirements of international law. Where the foreign acts violates a generally accepted principle of international law in the domain of human rights, the domestic courts fulfil their role by refusing to accept the policy of the foreign legal system.

Article 27 of the international law commission’s”Draft Articles on states responsibilities”provides that an aid or assistance given by a state to another state for the commission of an internationally wrongful act, wherever such incidents are reported, in itself constitutes an internatioanlly wrongful act. The domestic courts can entertain claim arising out of an alleged violation of human rights and these claims cannot be defeated by the act of state defence since the international law of human rights contemplates external scrutiny of such acts. The balancing of the function of the domestic courts and those of international tribunals requires the domestic courts to entertain the petition of those whose human rights have been violated.

If international protection of human rights is to respond concretely to the inperatives of the age, it must be institutionalized and if human rights are to be protected internationally, they must be juridically defined and be made contractully binding. The domestic courts can become the most effective means by which international conventions could be implemented and become effective.

Effective enforcement of remedies requires that they be articulated as effectively as possible, that they get along with judges obviously are the people who can be most effective in this articulation. Private non-governmental organization, in compiling information on the human rights practices of the various countries can undertake an examination of the independence of lawyers and judges and of the entent to which judges are subjected to political pressure in various countries.

A task that the domestic courts often face in the area of international human rights norms is that of determining adequacy of procedural alternatives. Here the doctrine of selective incorporation assumes special significance. Under this doctrine, the specifics of the international human rights norms can be progressively applied to all those states which constitute the comity of nations. The states should be able to afford flexibility in the implementation of domestic constitutional values.

The domestic application of human rights norms is now regarded as basis for implementing constitutional values beyond the minimum requirments of the constitution. The international human rights norms are in fact part of the constitutional expression of the liberties guaranteed at the national levels. The domestic Courts can assume the task of expanding these liberties. The exercise of judicial power to create an order of liberties on a level higher than the respective constitutions is now considered to be an ingredient of judicial activism. The present thinking at the international level supports an expanded role of norms. The reappraisal enables the domestic Courts to extend to citizens, via state constitutions, greater protection of internationally recognized human rights. This type of Court actvisim is commanding appreciation over the world.

A consciousness is now emerging that in the sphere of human rights the citizen of a particular state is no less a citizen of all other states and that each citizen is entitled to due process of law and the equal proctection of laws from all the state Governments. This legal revolution which has brought human rights law to the fore does not inhibit the independent protective forse of domestic law, for without it, the full realization of liberties cannot be guaranteed. The principle stated by Mr.bradly of the United States Supreme Court in 1886 in the case of boyd versus United States (116 US 616) has started attraction great attention, after the lapse of a hundred years, at the international level. The principle states that constitutional provisions for the security of persons and property should be liberally construed and it is the duty of the (domestic) courts of law to be watchfull for the constitution rights of the citizens”.

It is now being felt that the protection of international humans rights can ensure the maintenance of constitutional structures of Governments at the national level. Obviously, the genius of the written constitutions of national states resides not in any static meaning, but in the adaptability of the great principle of the constitution to cope with the problems of human rights. The universal approach maintains that every such principle must be of wider application than the circumstances giving rise to it at the domestic level. National constitutions are not short-lived documents designed to meet passing occasion. The demands of international peace and security have assumed responsibility for their care, and therefor, in their application, the domestic contemplation is enlarged to incorporate international contemplation. This is surely an important and a high significant development of constitutional jurisprudence. Adopting the premise that domestic Courts can be trusted to safeguard international human rights, it well can be appreciated that domestic Courts can provide a double forse of protection for the rights of citizens, thus the domestic courts can thrust themselves into a position of prominence in the struggle to protect the people arbitratry intrusions of their freedoms.

The attention of national states of international human rights norms in resulting in the birth of a transnational legal science and of a system whose basic postulates can survive without challenge, in this last phase of the 20th century and the ensuing 21st century. An argument is now being forcefully made that the newly developing formal aspects of international human rights norms, alongwith their logic, their style of reasoning, their levels of generalization, and their techniques of interrelating liberties and universals, cases and concepts, are indeed superb. The new legal methodology of human rights point to the recognition of the structural unity of the total human society. The emrgence of human rights law is much more than an intellectual achievements and it is much more than a method of reasoning or a method of organizing thought. The substantiation of international human rights norms is part of a larger process of attempting to reconcile law and equity, justice and mercy, equity and freedom. It is now being viewed as the equation of Allah Almighty and the mankind. It is a new vision of the ultimate destiny of man which the courts of law can upgrade and enhance for the welfare of the humanity as a whole.

Dmoestic legislative Protection Of International Human Rights Norms:
It is now considered important for the states concerned to be able to have the first opportunity for providing remedies would require specific legislation for domestic incorporation. Some would like to see this idea expressed in more forcefull terms to lay a legal obligation upon states either to incorporate it in the treaties or to have essentially identical terms in corporated in written constitution by their amendments. This suggestion emphasizes the need of convincing the national Governments of incorporating legislation on human rights in such a way in that national courts might in fact utilize of human rights norms. The domestic courts can take cognizance of a human rights violation more easily in a shorter time than an international Courts.

It is of cardinal importance of domestic legislation of human rights that violation by every country be treated with equal attention, with the same due process, and with severity proportional to the offence. The states can be persuaded to accept the interpretations of courts of law based on domestic legislation of fellow states. The courts of law can also examine, on the petition of affected persons, whether the states concerned have complied with their human rights obligations.

Direct Application Of International Law By Domestic Courts:
I think the enforcement machinery that exists domestically to protect human rights should resemble the enforcement machinery that exists internationally. The domestic courts can be successfully enlisted in the process of enforcement. It is the prestige of domestic courts that can persuade the executive and the legislative branches of government to comply with the decisions taken by the domestic courts in the sphere of human rights. The domestic courts can, however, look to the respective national constitutions as the best protections of human rights. An illustrious example of this observation in provided by the US Supreme Court in its decision in the case of Brown versus Board of Education (347 US 483-1954). It appears that international norms played a large part in bringing about the Supreme Court`s decision in this case. The prestige of the court itself was enhanced because the decision solved an international problem of human rights pertaining of segregation in schools and in that fashion brought the United States Of America into confirmity with international law.

The domestic Court can find it useful to consistently interpret and apply international law of human rights. Since there are few international tribunals and their jurisdiction is very limited, domestic Courts can play a major role in the interpretation and development of international law in this sphere. The international organizations, in their turn, can accord substantial weight to judgments of domestic Courts.

The problem of bringing about actual remedies in domestic jurisdiction in analogous to problem of bringing about remedies internationally. The domesti Courts now face the challenge to root their decisions as solidly an as effectivly as possible in international human rights legal norms. The greater degree to which international legal norms become know to domestic courts, the better the chance or justice despensation in this field.

It appears to me that national Courts may be used as a forum for enforsement for international human rights. If we cannot harness those courts, the prospects of private initiation and effective enforsement of human rights are bleak. But securing a long-term extention of national jurisdiction in matters such as these will require more than simply persuading the judiciary on a case by case basis. Terms such as”act of state”, “political Question”, “separtion of powers”, etc., even though they are still relevent in the domain of international law., have acquired a different status in the context of human rights. The new perspective enables the courts of law to accord greater weight to the concept of human rights whenever it competes with the “act of state” defence. The concern should therefore be addressed systematically by according predominance to the concept of human rights over the “act of state” defence.

Human rights are so important as to deserve simultaneous attack at the domestic level by legislation, governmental administration and non-governmental functioning.

A UN Human Rights Tribunal:
A desirable long range solution would be to establish, through a special protocol, a UN Human Rights Tribunal which would be empowered to apply not only the international Bill of Human Rights, but the entire corpus juris of international human rights adopted under the aegis of the United Nations. The UN Human Rights Tribunal Could be given authority to give advisory opinions, or to decide, on the basis of reciprocity, disputes between states pertaining to the interpretation or application of particular human rights instruments. It can also entertain complaints from individuals, or various groups, or organizations, against the states concerned. The human rights tribunal can maintain effective coordination and meaningful equation with domestic Courts in the united nations member countries.

Incorpporation Of International Human Rights Norms In National Constitutions:
The pakistan constitution has the distinctive privilege of incorporation in its Chapter I abouttwo-third of the 30 fundamental human rights enumerated in the UN Charter of Human Rights. These rights are incorporated in provisions ranging from Article 8 to Article 28. the constitutions declares that “any law, or any usage having the forse of law, in so far as it is inconsistence with the rights conferred by that chapter (of the constitution), shall, to the extent of such consistency, be void”. The pakistan constitution has accorded recognition to rights pertaining to the security of persons, dignity of man, freedom of movement, assembly, association, speech, religion and protection of property. The constitution provides safeguards against arrest and detention, against discrimination in services and against taxation for puposes of any particular religion. The constitution also guarantees equality before law and equal protection of law. In addition, the constitution sets out the principles of policy in Articles 31 to 40 and makes each organand authority of the state responsible to act in accordance with these principles. The principles are concerned with the promotions of local Government institutions, participation of women in national life, protection of minorities and faimlies, social justice, economic and social well being of people and the promotion of international peace. These principles are indentical in nature and scope to civil and political rights forming part of the international level. Even though the principles of policy are not justicable, yet the mere fact that the national courts have been called upon, in collaboration with all other organs of state, to promote international peace, goodwill and friendly relation , among all nations, impliedly authorizes domestic Courts to interpret constitutional provisions in consonace with the sprit of the international law of human rights.

The Supreme Court of the United States of America has often employed human rights precepts are legally relevant standards if juridicaids to incorporate constitutional and statutory norms. This is what judges are most comfortable with, and it is worth pursuing this as a strategy. Indeed, use by the domestic Courts can be made with express or implicit expectation that fundamental constitutional rights constitute legal principles. History demonstrates that there is a humanrights purpose behinds most amendments to the US Constitution. This precept can be emulated in other national settings. Human rights can be incorporated directory by the judiciary as the basis for its decisions. The international law of human rights does recognize the capacity of private plaintiffs to litigate its rules in domestic Courts. The national courts can serve as an effective mechanism for the protection and extension of civil liberties and they can operate with great forse for the coordinated international role.

In my view, courts should be viewed not in isolation but as a coordinate sourse of governmental power, as an integral part of the larger political system. In the present context of world society the legitimacy of the domestic Courts and the power judges exercise in human rights litigation are founded on the on the unique competence of the judiciary to perform a distinctive social funtion which is to give concrete meaning in application to the public values embodied any authoritative legal text such as the chapters on fundamental human rights in the national constitution. The capacity of judges to give meaning to public values inherent in the concept of fundamental human rights turns not on some personal moral of expertise, but on the method by which a public molarity at the domestic level must be construed. One feature of that process that signifies the role of domestic courts in the implementation of international human rights norms in the dialogue that judges usually conduct. They listen to all grievances, hear a wide range of interests, speak back, and assume judicial responsibility for what they say. The foremost task of the judges of domestic Courts at it has assumedpromienence in the domain of human rights is to weighttheir fundamental commitment to individual rights and group rights against the competing sentiments of nationality, the prejudices of race, the intrests of ethnic groups, the demands of justice, cultivation of virtue, the impulse of compassion, the higher callings of truth and salvation, and the allure of prosperity.

Conclusion:
Even some success in the international human rights field, however small, will make this world a little better place to live in. And that, after all, is what law is all about.

Lucknow

On my way Lucknow I thought of Sarojini Naidu, when over she spoke or city, she shook her head, and exclaimed Ah, Begum of Lucknow, the Begums of Lucknow.”
“What are they like, Sarojini?”
“Haven’t you seen any?”
I had. One was Professor Mujib’s wife. A young person in her early twenties, but grave enough to be fifty. Handsome, stately, taciturn, with a face in perpetual repose were the Begums of Lucknow like her?

Then there was my little friend Shakira, Professor Mujib’s sister. One called her little, not because of her diminutive nature, but because of a way she had with her. A tiny brunette with eyes of fire, sparkling wit, and a joyousness which was contagious. Yet one knew that she had in extremely sensitive nature, and a capacity for suffering. However, to everyone the seemed always gay, and intensely alive to whatever was going on round her. Nothing used to happen in Delhi from palace to but which she did not know, and which he could not describe vividly, if one could call what she described gossip, one must also admit that she conferred elegance and style on it. And she had a laugh! Unlike any have ever heard, both in sound and quality, it was a warm and husky sound which same from her heart. The moment rang in one’s cars one laughed, whether one understood that she was saying or not, were the Begums of Lucknow like her? Whatever the looked like, their city I thought of a centre of fair Begums and artist; for Lucknow is the place of Mogul painting and art. Didn’t Sarojini Naidu say “In Lucknow and in Hyderabad you have Muslim culture in its essence.

The house where I was going to stay was called “Dalli-Bagh” (Dolly’s Garden), and was named after some far English woman of bygone days; and it belonged to Mujib’s brother, so he was coming with me. I started in a happy mood, and Mujib’s companionship was both valuable and enjoyable. I owe a great deal of my understanding (such as it is) of India to him. Further, he looks very much like one of my sons, so I have adopted him as my spiritual Indian son. But he was not enthusiastic about his city. “Ah! it is a sleepy old place,” he used to say; from which remark one could deduce that Lucknow was immune from the fever of the new life which throbs so disturbingly in every other Indian city.

Houses have the composite soul of their inhabitance. Show me the home of person and I will tell you the kind of person he is. That is why the houses where I have stayed seem to me like so many clues to Indian character: that is why I describe them at some length for my readers.

Dali-Bagh is built on spacious grounds. On one side is a typical English lawn, beautifully mown, and green, on the other side is a rose garden, an orchard; and, I believe, a vegetable garden behind the buildings. The house is built on the eastern side, opposite the rose garden. The entrance is under an arch, and stone steps lead up to the door. One enters a hall, which is both large and comfortably furnished. It is divided from the dining-room by a screen. One gets a sense of a numerous family of all ages living amicably and happily together. While it is not disorderly, one knows that it is a place where the inmates live freely, and can move furniture about to suit their own convenience. At the sides of this hall there are apartments opening on to verandahs.

From the left side of the hall a winding staircase. Something like that of a minaret, leads up to the third storey, which is the top storey as well. The suite of rooms I occupied was there. They opened on to a roof-garden, and to a verandah overlooking the rose garden. My favorite place was the roof-garden, where I could it and gaze at Lucknow. It is not only the city of winsome and fetching Begums, but also of lovely gardens and orchards, which girds the city like a luscious green belt.

As one goes round the house and gets acquainted with its inmates. One says “The west must have entered this house long, long ago. What it has left is no longer a borrowed habit, or a piece of meaningless furniture, but is blended with the East and has become a part of the whole.”

Some fifty people live in that house, people of three generations. The master or the house is Mr. Wasim, Mujib’s eldest brother. He has a great deal in common with his sister, Shakira. The same vital and human interest in people round him, the same ability to be amused and to amuse. He also has the same ringing , contagious laugh. Though an excellent lawyer and extremely able to business man, he is as simple and as affectionate as a child, in private life. One gets that from his manner and the tone of his vice; also in the way the youngsters treat him, lovingly and as if he were of the same age.

He has a father who lives in the same house. The old gentleman belongs to the oldest generation; but Mr. Wasim is the master, because his father has abrogated his right as the head of the family. When I say Mr.Wasim is the master, it is only to show, his official rank in the hierarchy of the family, which is numerous enough to be called a clan. Otherwise the master mistress of the house and of him as well, is Begum Wasim.

I knew of the father through Mujib, who was extremely devoted to him and spoke of him often. I knew that the old gentleman was keenly interested in young India, which he loved as passionately as any young patriot, and he believed in its future. He had read Catherine Mayo’s book on India; and, though it had shocked him, it had also made him see the necessity for change more fully.

Though he rarely left his room and did not appear in company often, he honored me by coming down and being photographed in a family group. He had the composure, the quiet dignity of the educated high-class Turk of forty years ago, a fragile person impeccable dressed in a European suit and a red fez. Neat, elegant and with the courtesy and gravity which mark the gentleman whether East or West. What struck me most in him was the way in which he had followed the march of time , and without bitterness accepted some of its verdicts, and with a sense of proportion which did not make the change look like cheep imitation, or a weakness for fashion. There was no doubt about the high respect in which he was held ; not only because of his age , which in itself is enough to command respect in the East, but because of his man was the only person whom Mr. Wasim did not dare to embrace in public, though he looked as if he would have liked to.

Begum Wasim’s mother was the old gentleman’s sister; everyone is everyone’s cousin, niece. Sister, aunt, uncle, etc, in that family. She is also of his generation, but not of his age; for she was, and will be to the end of her life, never older than fifteen. A slim willowy figure, as swift in movement as gay and quick in repartee as any of her grand-daughter. She used to wear loose white trousers and white chemises, and her head was enveloped in a white veil from under which wisps of grey hair flew about. Her face was small, with as wide forehead and the most delicate chin. Though her face was wrinkled all over, the youthful leanness of the contours of chin and cheeks made her look like a little girl who wrinkles her nose in order to looks funny, she had bright but-brown eyes, and was always on the go, skipping along from one side of the house to the other ; such a flitting vision of vitality and cheerfulness that young and old ran after her, embraced her, or at least smiled at her as one would to a winsome child.

“Mother.” Said her son-in-law, squeezing the little old face whenever he could catch her, and kissing her hands, “where is the Kavali today?” Kavali is religious Muslim music played and sung by a band of musicians. She loved it passionately, Music seemed to be in her blood; one could see it from the quick of her walk, and the rhythm of her whole slim person. She never missed a musical gathering, I was told

The next generation, consisting of the progeny of these tow attractive old people included Begum Wasim, her husband, and his brother and sister, But Begum Wasim besides her very marked personality, had brothers who must be introduced also; for the youthful old lady conferred either personality or a marked talent on everyone of them.

First Begum Wasim;
She and her father-in-law seemed to me the only grown-ups in that happy family, she was the motive power and the responsible director of all the affairs in that vast house hold. Though delicate in health, she continued doing her domestic as well as her social duties. She had immense love for everyone in the house and I often saw her smile at them indulgently and with secret amusement. She ran that house admirably, for I know that the more servants there are the harder it is to organize. Meals were regular, service excellent, and every one was looked after. Yet there seemed to be artistry as well as ability in Begum Wasim’s housekeeping, for one never sensed any deliberate effort about it all for one never sensed any deliberate effort about it all.

In person she was extremely good to look at, Tall, slender with a refined and slightly humorous face; and always in beautiful clothes. An excellent mother of six children, mostly boys, she did not need to train them beyond being an example and inspiration a deep affection and admiration in them all. Besides her own children, there were nephews, nieces, and their friends; quite a crowd of young people who were under her care, and lived most of their time in her house. In the East I have rarely seen this combination of camaraderie as well respect between mother and children.

As a hostess she was perfect. Her drawing-room was full in the afternoons, and every evening there were quite a number of guests of high society. She spoke perfect English and the grace with which she handled her guests or led the conversation made one wonder how a woman who was in Purdah so long could do it so naturally.

One of her brothers is a well-known painter of the classic Mogul school. He lives in a charming, old-fashioned house outside the city, but he is often Begum Wasim’s guest. He never talked, but from the samples of his work I have seen I could not doubt of his talent. His masterpiece, which he had not yet completed, was a “Kavali” gathering of Musicians and singers in a group. No wonder; it is what his mother loves best, and it dominates her son’s fertile imagination.

Another brother is Khaliq uz Zaman. I knew him in his extreme youth. When he came to Turkey as a young member of the Indian Red Crescent, after the Balkan War. He played important parts in both the Khilafat and the Nationalist movements. He stillness to me a man with a political future. He has both the mind and the character necessary for such a career.

Then there is the youngest brother, Dr. Salim uz Zaman. Shakira’s husband, who lives at Delhi. He is a first-rate chemist, I am told. But what interests me most is that he is an original and talented painter of the New School. Each time I visited his house at Delhi the sketches and the paintings on the walls of his bungalow fascinated me. They are utterly different from those of his brother. But he himself is being a fair representative of his contemporaries, filled with restlessness and discontent. One felt from his work the painful consciousness of confusion and contradictory problem which besets the world. The heads of his women had crooked mouths, distorted with the suffering and despair which take hold of people in a transitional age. The age was a blind beggar among them. The expression of the closed eyes with their sightless

The sketch was inspired by Rainer Marian Rilk’s Das Lied des Blinden:

I am blind: ye outside, it is a curse,
An abomination, a contradiction,
Something heavy, day after day
I put my hand on my woman’s arm,
My grayish hand on her grayish grey
And she leads me trough an endless empty way,

Anguish, the movement of his cane in search of direction, seemed to me a true symbol of the young generation. But his masterpiece was the portrait of his mother. It stood above the harassing symbols of the son’s confused time as a symbol of the wholesome and the natural which light the lives of the young.

The third generation consists of daughters, nieces, and little sons of Begum Wasim. They often came to my room: sometimes to ask me if I needed their help, some times to talk for a few minutes. They wear bright-colored trousers and blouses, their young heads always covered with some flimsy, hand-embroidered veil, their braids of long hair and the ends of the veil flying about as they came in and went out with the suddenness and swiftness which characterizes their graceful and youthful granny.

That is the family I am staying with. Besides the Begums of Lucknow represented in that household I have seen others, as guests or at meetings.

From larger groups one got still a better sense of their particular grace.

There was a big garden party on Begum Wasim’s clock-mown lawn. A few hundred of them moving about or sipping their tea. And another garden party of the clubs, where they sat and watched young girls dancing on a platform. And there was the meeting where I had to speak to women. It was in an old palace. A huge hall batched in light, and they sat, row upon row, in their hundred-cloured

You move and make way and think, you alone
Do not sound like stone on stone,
But you are wrong: I, only I
Live and lament and suffer.
In me there is an endless cry
And I do not know, is it my
Heart crying or my intestine.

Draperies all embroidered in gold or silver. A girl in black and white sat on a floor-cushion and played the sitar. Then there was my visit to the mother of the Rajah of Mahmudabad. He was among the friends of Mr. Wasim, and he had asked me after a dinner in his palace whether I would go and visit his mother who never left her residence. I did so with Begum Wasim; and in another big and beautiful palace lived the old lady of the oldest, almost extinct age. Her daughter-in-law and her waiting-women moved about under splendid chandeliers in their dazzling draperies, and brought in tea and refreshments; but they retired the moment their husbands waited until they had left the room before entering the old lady’s presence. It was the custom that no son could appear before his mother together with his wife. Going from Begum Wasim’s house to that strange palace gave one a curious confused sense of East and West, mingled according to the mentality of the inmates of each place. Yes. Lucknow was a city of fair Begums and the East of fairy stories still lingered. Yes that was not the only side of it.

There was the women’s college and the girls school. There was that assembly of professional women to whom I had to talk. I remember them as they sat ,Begum and Shrimati ( Hindu Mrs.and Miss ), simple and business-like, brows contracted with thought, all ready to go to some office after the talk. My association with that side of women’s life was through Shrimati, Lakshmi Menon , a youthful Hindu woman with the usual red mark on her bronzed forehead. Though she was in the turmoil of an active modern life, with its social service and professional activities, still she had her own feminine. Charm and character, not at all inferior to the fascinating, fairy-like Begums. And behind the façade of women’s assemblies and of men’s assemblies, too, at the Municipality Hall, I could see that Mujib was wrong in calling Lucknow a sleepy place. The feverish beat of new life with all its complications was throbbing there as disturbingly as it does elsewhere in India.

Introduction:

The purpose of this paper is to focus on the convoluted definitions of terrorism, and to touch on various areas of concern in sociological context, which have direct effect on terrorism. The mechanical suctioning of human rights in counter-terrorism actions by states and state actors in the present counter terrorism mechanism is a natural reaction in confronting yet undefined and therefore parametrically unspecified acts which are termed contextually terrorism.

To have reservations on the State’s rightful and vital cause to put in place measures to eliminate terrorism, is unacceptable. Terrorism, in any form does not only destroy human life as a physical fact, but equally grave are the inroads it makes in the civil societies casting dangerous shadows on the democratic institutions. The main victims remain human rights, the human rights laws and democracy, eventually, the rule of law dissipates. Indisputably terrorism in its dichotomous manifestations destabilises legitimate governments and undermines civil societies. Governments therefore have not only the right, but also the responsibility, to protect their citizens and other ‘persons’ against terrorist attacks, and to employ sequentially the justice system for this protection, against the perpetrators of terrorism. It is the approach and the method in which counter-terrorism efforts are conducted, which bring into question the latter’s sweeping effect on the respect for human rights.

Law as established does provide frameworks in international and domestic jurisdictions through which terrorism can be effectively countered; problems arise when human rights become embroiled in deployment of law for securing those very institutions and rights which themselves begin to destabilize, through the processes adopted by different legal systems.

Understanding terrorism in different arrays:

Concern about human rights in the context of terrorism did not receive much attention in the United Nations until the 1993 Vienna World Conference on Human Rights. That same year the General Assembly began to adopt resolutions on “human rights and terrorism” while continuing its annual resolutions on “measures to eliminate international terrorism”. Beginning in 1994, the Commission on Human Rights also began to adopt resolutions on “human rights and terrorism”, and requested the Sub-Commission on the Promotion and Protection of Human Rights to undertake a study on the issue of terrorism and human rights in the context of its procedures. That year, following suit to the urging of the Commission, the Sub-Commission, in its resolution 1994/18, requested one of its members to prepare a working paper on this topic. In 1996 a paper had still not been submitted, the Sub-Commission, in its resolution 1996/20. In 1997, following submission of her working paper (E/CN.4/Sub.2/1997/28), the Sub-Commission appointed Kalliopi K. Koufa as Special Rapporteur to conduct a comprehensive study on terrorism and human rights. In the course of this mandate, the Special Rapporteur submitted a preliminary report (E/CN.4/Sub.2/1999/27), a progress report (E/CN.4/Sub.2/2001/31), a second progress report (E/CN.4/Sub.2/2002/35), an additional progress report with two addenda (E/CN.4/Sub.2/2003/WP. 1 and Add. 1 and 2), a final report by Kalliopi K. Koufa was presented[i].

Nirupam Sen, in his paper “Nonstate threats and the principled reform of the UN.” has taken up an important question relating to counter terrorism action which distinguish as legal and legitimate. According to his view, there is a distinction between actions that are legal (as Security Council actions are) and those that are legitimate (which require wider political acceptance). Similarly, there is an important distinction between legitimacy and moral authority (an elected government may be legitimate but may lose its moral authority over time as a result of many misguided policies). It is natural that an organization decays and some within it end up defending their privileges rather than the ideas that the organization was created to serve. The United Nations has done much (often little noticed and praised even less) in conflict prevention, restoration of peace, human rights, development, disarmament, and counterterrorism. It can do even more in the future because it is in the process of reforming and renewing itself…[ii].

It was 9/11 which became the turning point in the war against terrorism, and with the tragic fallout, priorities also underwent a change. Given the backdrop, the grim reality, and the disastrous economic, social, and political implications, which brought terrorism to the forefront, and re-prioritization of international and domestic policies began to take place. It’s quite surprising to note that (terrorism, the word on everyone’s lips, is easier to talk about than to define. As one commentator, Nissan Horowitz, put it in the mainstream Israeli newspaper Ha’aretz[iii], “Terrorism — it’s all in the eyes of the beholder. Why is the attack on the Twin Towers called terrorism, while the bombing of a hospital in Kabul is not?” Indeed, international lawyers have struggled to define terrorism for nearly a century, largely without success.

The terrorist acts out of a professed sense of injustice perceived by the group to which he belongs, hence he is a hero to the entire group, which may be as small as an anarchist cell or as large as an entire tribe, nation, religion, class or other societal grouping. In the period following the end of World War II, the anti-colonial struggle in Africa and Asia and later the anti-oligarchic struggle in Latin America often relied on tactics condemned as terrorist by those unsympathetic to the aims of the struggle and applauded by those in solidarity with the struggle, whether directly engaged in it or cheering it on from the sidelines. The controversy raging around the film The Battle of Algiers, with its scenes of bombs exploding in crowded cafes, is emblematic of that era.

With the end of colonialism — albeit not neo-colonialism — and of “wars of liberation” — albeit without bringing a full measure of freedom to those who waged them — terrorism has lost much of its luster and now elicits virtually universal condemnation, at least in legal terms. Yet, a comprehensive definition still eludes the world community.

In his post-September 11 speech to the General Assembly, Sir Jeremy Greenstock, the British Ambassador to the United Nations, said “What looks, smells and kills like terrorism is terrorism.” As this is not exactly a legally serviceable definition, diplomats and international lawyers have until recently solved the definitional problem by writing conventions outlawing terrorist acts without ever mentioning the word “terrorism”. The official website entitled “UN Conventions on Terrorism”[iv] lists eight United Nations conventions and two protocols enacted between 1963 and 1991, (and increasing), dealing with such diverse offences as hijacking, attacks on diplomatic agents and other internationally protected persons, hostage taking, theft of nuclear material and unlawful acts against maritime navigation and fixed platforms located on the continental shelf. It requires no complex process of reasoning to realize that any of these prohibited acts can occur within or without the context of terrorism. The taking of a hostage for the purpose of obtaining the liberation of a political prisoner fits the definition of a terrorist act. The same crime committed solely for the payment of ransom does not. The hijacking of the four planes on September 11 was a mega-terrorist act.

In his book “Inside Terrorism” Bruce Hoffman wrote in Chapter One: Defining Terrorism that

“

On one point, at least, everyone agrees: terrorism is a pejorative term. It is a word with intrinsically negative connotations that is generally applied to one’s enemies and opponents, or to those with whom one disagrees and would otherwise prefer to ignore. ‘What is called terrorism,’ Brian Jenkins has written, `’thus seems to depend on one’s point of view. Use of the term implies a moral judgment; and if one party can successfully attach the label terrorist to its opponent, then it has indirectly persuaded others to adopt its moral viewpoint.’ Hence the decision to call someone or label some organization `terrorist’ becomes almost unavoidably subjective, depending largely on whether one sympathizes with or opposes the person/group/cause concerned. If one identifies with the victim of the violence, for example, then the act is terrorism. If, however, one identifies with the perpetrator, the violent act is regarded in a more sympathetic, if not positive (or, at the worst, an ambivalent) light; and it is not terrorism.[v] There are continuing institutional attempts at arriving through consensus at an internationally agreeable definition of terrorism. Incontrovertibly, terrorism has two principal characteristics: 1) It is intended to inflict death or seriously bodily harm upon civilians or other persons (presumably military personnel) not taking part in hostilities and (2) its purpose is to intimidate a population or persuade a government or international organization to adopt a certain policy. The second of these two conditions is well stated, but the first is clearly inadequate. A plane can be hijacked or a hostage taken without necessarily intending to kill or seriously injure anyone, as can blacking out an electricity grid or a cyber network, yet such acts can be the work of terrorists[vi]. Official definitions determine counter-terrorism policy and are often developed to serve it. Most government definitions outline the following key criteria: target, objective, motive, perpetrator, and legitimacy or legality of the act. Terrorism is also often recognizable by a following statement from the perpetrators. Violence – According to Walter Laqueur of the Center for Strategic and International Studies, “the only general characteristic [of terrorism] generally agreed upon is that terrorism involves violence and the threat of violence”. However, the criterion of violence alone does not produce a useful definition, as it includes many acts not usually considered terrorism: war, riot, organized crime, or even a simple assault. Property destruction that does not endanger life is not usually considered a violent crime. Psychological impact and fear – The attack was carried out in such a way as to maximize the severity and length of the psychological impact. Each act of terrorism is a “performance,” a product of internal logic, devised to have an impact on many large audiences. Terrorists also attack national symbols to show their power and to shake the foundation of the country or society they are opposed to. This may negatively affect a government’s legitimacy, while increasing the legitimacy of the given terrorist organization and/or ideology behind a terrorist act[vii]. Perpetrated for a Political Goal – Something all terrorist attacks have in common is their perpetration for a political purpose. Terrorism is a political tactic, not unlike letter writing or protesting, that is used by activists when they believe no other means will effect the kind of change they desire. The change is desired so badly that failure is seen as a worse outcome than the deaths of civilians. This is often where the interrelationship between terrorism and religion occurs. When a political struggle is integrated into the framework of a religious or “cosmic”[viii] struggle, such as over the control of an ancestral homeland or holy site such as Israel and Jerusalem, failing in the political goal (nationalism) becomes equated with spiritual failure, which, for the highly committed, is worse than their own death or the deaths of innocent civilians. Deliberate targeting of non-combatants – It is commonly held that the distinctive nature of terrorism lies in its intentional and specific selection of civilians as direct targets. Much of the time, the victims of terrorism are targeted not because they are threats, but because they are specific “symbols, tools, animals or corrupt beings” that tie into a specific view of the world that the terrorist possess. Their suffering accomplishes the terrorists’ goals of instilling fear, getting a message out to an audience, or otherwise accomplishing their political end[ix]. Unlawfulness or illegitimacy – Some official (notably government) definitions of terrorism add a criterion of illegitimacy or unlawfulness[x] to distinguish between actions authorized by a “legitimate” government (and thus “lawful”) and those of other actors, including individuals and small groups. Using this criterion, actions that would otherwise qualify as terrorism would not be considered terrorism if they were government sanctioned. For example, firebombing a city, which is designed to affect civilian support for a cause, would not be considered terrorism if it were authorized by a “legitimate” government. This criterion is inherently problematic and is not universally accepted, because: it denies the existence of state terrorism; the same act may or may not be classed as terrorism depending on whether its sponsorship is traced to a “legitimate” government; “legitimacy” and “lawfulness” are subjective, depending on the perspective of one government or another; and it diverges from the historically accepted meaning and origin of the term. For these reasons this criterion is not universally accepted. Most dictionary definitions of the term do not include this criterion. Charles Tilly, In his paper titled “Terror as strategy and relational process.” And published in the International Journal of Comparative Sociology points out a very interesting difficulty facing any working definition of terror, to him “any working definition excludes some candidate actions and events. Politically speaking, it usually helps your cause to use the term ‘terror’ for actions of which you disapprove, and to exempt actions of which you approve. Definitions begin to matter, however, when you shift from description or evaluation to explanation. At exactly that point two implicit claims come into play First, in explanations a concept such as terror lays a claim to identify a causally coherent phenomenon rather than a convenient miscellany Second, the same concept points to similarities and differences: instance X resembles instance Y, but differs in kind from instance Z”[xi]. The place holders of counter terrorism are often found intruding the area of human rights by putting unpredictable and inconsistent anchors in the latter’s orb, the focus of United Nations in the strengthening and reforms in the mechanism within, notwithstanding, since the crucial link for determination and employment of law, through legislation, adjudication, or counter terrorism action remains flawed, in that the definitional anomalies do not allow for a proper divider to be placed between counter terrorism mechanism and that fluid base of human rights which may play the centre point role in regulating counter terrorism actions from incursions in the sphere of human rights and human rights law. It seems to be clear that the overall political motive or purpose is viewed as one of the main characteristics of terrorism in these definitions, and those other more specific motives such as religion, would then complement the political motive. Wilkinson[xii], for instance, refers to ‘religio-political’ terrorists, apparently to distinguish this from a ‘purely’ religious phenomenon, and states that what at first sight seems to be such a phenomenon, is in fact largely about political control and socio-economic demands. The above view is reinforced by Duyvesteyn who states that while religion has played a role in terrorist targeting, these represent clear political positions and political targets. The so-called ‘new terrorism’ is therefore both political and religious, and aims and motivations overlap.   This overlap is identifiable in sociological co-ordinates encompassing social processes. Charles Tilly in his reply to Harvard social science lecturer Jessica Stern, expositions in her book Terror in the Name of God, has vividly brought out the stated indicators on which terrorism resides.   Crudely speaking, general descriptions and explanations of social processes divide into three categories: systemic, relational, and dispositional. Systemic accounts posit a coherent, self-sustaining entity such as a society, a world economy, a community, an organization, a household, or, at the limit, a person, explaining events inside that entity by their location within the entity as a whole. Some systemic accounts of terror, for example, treat it as a worldwide effect of globalization and rapid social change that disrupt previously existing constraints on extremism. Systemic descriptions and explanations have the advantage of taking seriously a knotty problem for social scientists: how to connect small-scale and large-scale social processes. They have two vexing disadvantages: the enormous difficulty of identifying and bounding relevant systems, and persistent confusion about cause and effect within such systems.   Relational accounts take interactions among social sites as their starting points, treating both events at those sites and durable characteristics of those sites as outcomes of interactions. Relational accounts of terrorism stress changes in connections among persons and groups, for example altered ties among exiles, international criminal networks, and domestic power-seekers. Relational descriptions and explanations have the advantage of placing communication, including the use of language, at the heart of social life. They have the disadvantage of contradicting common sense accounts of social behaviour, and thus of articulating poorly with conventional moral reasoning in which entities take responsibility for dispositions and their consequences.     Like systemic descriptions and explanations, dispositional accounts posit coherent entities–in this case more often individuals than any others–but explain the actions of those entities by means of their orientations just before the point of action. Across the social sciences, dispositional accounts come in several competing varieties.   Terror as a strategy asymmetrical deployment of threats and violence against enemies does have a crude logic of its own. It differs from such competing strategies as accommodation, negotiation, subversion, infiltration, propaganda, and open warfare. In addition to whatever harm it inflicts directly, it sends signals–signals that the target is vulnerable, that the perpetrators exist, that the perpetrators have the capacity to strike again. The signals typically reach three different audiences: the targets themselves, potential allies of the perpetrators, and third parties that might cooperate with one or the other. Although some users of terror (for example, a minority of 19th-century anarchists) operate on the theory that destruction of evil objects is a good in itself, most terror supports demands for recognition, redress, autonomy, or transfers of power. Considered as a strategy, terror works best when it alters or inhibits the target’s disapproved behavior, fortifies the perpetrators’ standing with potential allies, and moves third parties toward greater cooperation with the perpetrators’ organization and announced program.   Multiple uses of terror from ‘mafiosi’ to ruthless governments, people who operate protection rackets intermittently deploy terror against enemies and uncertain clients (Gambetta, 1993; Stanley, 1996; Varese, 2001; Volkov, 2000, 2002). Whether or not they operate large-scale protection rackets, repressive governments frequently apply terror to threatening minorities. Weak, beleaguered governments commonly adopt the strategy of exemplary punishment: inflicting terrible public retaliation on those few enemies they manage to seize, with the announced threat of visiting similar punishments on others who dare to challenge them. But dissidents seeking autonomy, striking at their rivals, or trying to bring down governments likewise sometimes engage in asymmetrical deployment of threats and violence against enemies by means that fall outside the forms of political struggle routinely operating within the current regime.   During the past few decades, religious and ethnic activists have been by far the most frequent nongovernmental strategists of terror (see e.g. Beissinger, 2001; Derluguian, 1999; Gurr, 2000; Horowitz, 2001; Kakar, 1996). Sometimes they have demanded autonomy, sometimes they have sought control of existing governments, but often enough they have struck directly at their religious and ethnic rivals. The terrible Rwandan genocide of 1994 pivoted ultimately on ethnic control of the Rwandan state, and, despite the slaughter of Tutsis by the hundreds of thousands, ended with the seizure of state power by Tutsi-dominated military forces. The genocide itself activated all these different uses of terror (Des Forges et al., 1999; Mamdani, 2001; Pillay, 2001; Prunier, 1995, 2001; Taylor, 1999; Uvin, 2001).   As these varied examples suggest, the strategy of terror appears across a wide variety of political circumstances, in the company of very different sorts of political struggle. Attacks of Irish Protestant and Catholic activists on each other and on governmental targets, for instance, frequently follow the strategy of terror, but they generally intersect with other forms of negotiation at international, national, and local levels (Farrell, 2000: Hart, 1998; Jarman, 1997; Keogh, 2001). In many parts of the world, specialized military forces–governmental, nongovernmental, and anti governmental–frequently engage in kidnapping, murder, and mutilation in addition to their occasional pitched battles with other armed forces.   Because armed forces depend on arms, equipment, food, and pay even when they are living off the land, such terror-wielding armies thrive especially where they can seize control of income-generating resources such as drugs, timber, diamonds, and other minerals. Often they then adopt terror to maintain control of the crucial resources rather than concentrating on the seizure of state power. Extensive connections with emigrant diasporas magnify those effects, most likely because the exiles both provide external support for rebels and offer conduits for contraband into and out of rebel territory (Collier and Hoeffer 2004).   The prominence of organized armed forces in certain types of terror lends itself to analytic confusion. It is all too easy to conflate terror-deploying governments, armies, militias, paramilitaries, and rebels with conspiratorial zealots. We actually need a twofold distinction: first between violent specialists and others, then between actors who deploy terror within their own operating territories and those who direct it elsewhere.   Autonomists stand for all those politically active groups whose members sometimes launch terror attacks on authorities, symbolic objects, rivals, or stigmatized populations on their own territories without becoming durably organized specialists in coercion. Zealots maintain similar connections with each other, but commit their violent acts outside of their own base territories; they include long-term exiles who return home to attack their enemies. Governmental, nongovernmental, and anti governmental militias maintain enduring organizations of coercive specialists and exercise terror within their base territories. Conspirators organize specialized striking forces for operations away from base. (Terror-inflicting armies that operate abroad also fit into this corner of the diagram, but they strike even more rarely than do mobile organizations of conspirators.) Finally, ordinary militants often spend time organizing and demonstrating, but now and then engage in armed attacks either near home or against the enemy far away.   As compared with the full range of collective violence, the use of terror ranks relatively high in the coordination among violent actors and the salience of short-run damage; in that regard it resembles what I call violent rituals and coordinated destruction while differing from broken negotiations, scattered attacks, opportunism, brawls, and individual aggression (Tilly, 2003: 15). But the kinds of individuals and organizations that employ terror vary dramatically from one setting to another. The same individuals and organizations, furthermore, commonly alternate between terror and other forms of politics. The diagram as a whole states a major element of my argument: a remarkable array of actors sometimes adopt terror as a strategy, and therefore no single set of cause-effect propositions can explain terrorism as a whole.   The processes that move people into one location or another within the locus-specialization space are fundamentally relational; they become militias, autonomists, zealots, conspirators, or ordinary militants–and sometimes switch among those forms of interaction–through shifting social relations. Second, despite their essentialist labels, the five types consist not of deeply different dispositions but of varying relations both a) among activists and b) between activists and targets of their terror.   International flows of weapons likewise facilitate terrorism. Bad neighborhoods, failed states, refugee camps, criminal enterprises, and expatriates who contribute income, information, weapons, or connections to the cause all favor recruitment and support of terrorists. The failure of governments to provide basic services, protect human rights, or maintain monopolies of violence increases the prevalence of terror. High proportions of young, single males in a population make more potential terrorists available. Poverty may also promote terror, especially when educated young men remain unemployed.   Religiously based educational and welfare institutions, Stern continues, often serve as terrorist recruiting grounds. And humiliation itself–whether individual or categorical–results from well-defined social processes. The Muslim world currently produces more than its share of terrorists not because Islam condones terror, but because almost all of these favorable processes currently occur more widely in Muslim countries (Stern, 2003: 283-8).   The Muslim world is today fraught with dissentions within. At one end are those sections of Muslims who subscribe to the re-interpreted normative statements, and by misinterpretations converted statements of facts; on the other are those who prefer to understand Islam in its normativity as a religion of peace to which Stern also refers to. Conclusion: Until such time an effective mechanism does not find place in the war against terror, replacing conventions which broadly and generally address terrorism, and on such basis, design counter terrorism mechanism, the problem inherent in the threat to human rights will continue unabated. The underpinning of an undefined enemy will continue to haunt the global community. However, the impediments in the exercise can also never be understated. In these circumstances, attempt to draw a broad based but within specified parameters may be an alternative arrangement, in that the designed law must take into consideration social, economic, and educational institutes as key factors. Given the immediate threat and the on going counter terrorism RAND publication provides vital information in “Generating alternatives to radical Islam: moderate Islam is key to thwarting terror threats.(Government)”[xiii] Angela Rabasa, RAND senior policy analyst has analyzed and proposed the following recommendations which if taken up by the stake holders, in encouraging and convincing the Muslim societies to dispassionately take up these recommendations. This then does not only form the crux of modern day problem faced by Muslim States, but provides good moorings for an effective counter terrorism setting. * Promote international networks for liberal and moderate Muslims. Radical Muslims have successfully created extensive networks spanning the Muslim world. A network for moderates would provide a platform to amplify their message and provide some protection from radicals. * Disrupt the networks of radicals. Breaking radical Muslim networks will empower Muslim moderates to take over the transmission belts that sustain the network. * Foster reforms in schools and mosques. Concerned countries and international institutions should support the reform of Islamic boarding schools (madrassas), one of the main sources of personnel for radical movements and terrorist groups. The report suggests encouraging madrassas to stress broad, modern education and marketable skills. Governments and moderate Muslim organizations should also ensure that mosques and the social services affiliated with them serve their communities rather than provide platforms for radical ideologies. * Expand economic opportunities for young people. Population growth in many Muslim countries will create educational, economic, and social needs that are not being met by radical Islamic groups. Funding for programs run by secular or moderate organizations should be a priority. Creating jobs and social services would also give young people an alternative to radical Islamic organizations. Democratic change may be destabilizing in the short term, but it is necessary to produce a more-stable political environment in the long term, the study argues. Coordination among governments and nongovernmental organizations, foreign-aid groups, secular organizations, and moderate Muslim groups can create a legitimate base for civil society. Researchers identified three main causes for the spread of Islamic radicalism over the past several decades. 1. The widespread failure of political and economic models has caused instability and disenfranchisement of segments of the Muslim population, fueling anger toward the West. 2. The resurgence of fundamentalism in Islam in the Middle East, along with the spread of Middle Eastern funding and ideology throughout the world, has fueled support for fundamentalism and radicalism. 3. Major events (the Iranian revolution, the Soviet Union’s invasion of Afghanistan, the 1991 Gulf War, the Iraqi war, and the attacks of September 11, 2001) have polarized and radicalized the Muslim world. 4. Healing the cleavage between the Arab and the non-Arab worlds and improving Western understanding of tribal politics will also be essential to reducing radical Islam threats… The recommendations made are not only vital for bring the contemporary Muslim societies, in the mainstream global world, which if taken up and seriously pursued will provide a sustainable ground for improving the criteria in counter terrorism, and provide immediate relief to human rights at least in the religio-poliical stream.

[i]SPECIFIC HUMAN RIGHTS ISSUES: NEW PRIORITIES, IN PARTICULAR
TERRORISM AND COUNTER-TERRORISM

Terrorism and human rights
Final report of the Special Rapporteur, Kalliopi K. Koufa* presented to the COMMISSION ON HUMAN RIGHTS, Sub Commission on the promotion and protection of Human Rights, 56^th Session; Item 6 (c) of the Provisional Agenda; United Nations, Economic and Social Council.

[ii] Sen, Nirupam. “Nonstate threats and the principled reform of the UN.” Ethics & International Affairs 20.2 (June 2006): 229(6). USSD. Thomson Gale. State Department Custom Journal. <http://find.galegroup.com/itx/infomark.do?&contentSet=IAC-Documents&type=retrieve&tabID=T002&prodId=SPJ.SP00&docId=A150366717&source=gale&srcprod=SP00&userGroupName=ussd&version=1.0>

[iii] Ha’aretz, November 18, 2001

[iv] http://untreaty.un.org/English/Terrorism.asp. The site contains the text, the status and a summary of each document

iv.Hoffman, Bruce, “Inside Terrorism“, Columbia University Press 1998 ISBN 0-231-11468-0 Page: 32. See review in The New York Times “Inside Terrorism”

[vi] Weiss, Peter Ulrich. “Terrorism, counterterrorism and international law.” Arab Studies Quarterly (ASQ) (Spring-Summer 2002): 11(14). USSD. Thomson Gale. State Department Custom Journal. <http://find.galegroup.com/itx/infomark.do?&contentSet=IAC-Documents&type=retrieve&tabID=T002&prodId=SPJ.SP00&docId=A95571885&source=gale&srcprod=SP00&userGroupName=ussd&version=1.0>

[vii] Juergensmeyer, Mark. 2000. Terror in the Mind of God. University of California Press. Ch. 7 pp. 125-135

[viii] Juergensmeyer, Mark. 2000. Terror in the Mind of God. University of California Press. Ch 8-10.

[ix] Juergensmeyer, Mark. 2000. Terror in the Mind of God. University of California Press. Ch. 7 pp. 127-128

[x] FBI, “Terrorism in the United States 1999″

[xi] 46.1-2 (Feb-April 2005): 11(22). USSD. Thomson Gale. State Department Custom Journal. <http://find.galegroup.com/itx/infomark.do?&contentSet=IAC-Documents&type=retrieve&tabID=T002&prodId=SPJ.SP00&docId=A134680680&source=gale&srcprod=SP00&userGroupName=ussd&version=1.0>

[xii] Hough, Michael. “New terrorism or new perceptions? Some observations regarding changing views on terror.” Strategic Review for Southern Africa 27.2 (Nov 2005): 1(11). USSD. Thomson Gale. State Department Custom Journal.
<http://find.galegroup.com/itx/infomark.do?&contentSet=IAC-Documents&type=retrieve&tabID=T002&prodId=SPJ.SP00&docId=A142298389&source=gale&srcprod=SP00&userGroupName=ussd&version=1.0>

[xiii] Coles, Clifton. “Generating alternatives to radical Islam: moderate Islam is key to thwarting terror threats.(Government).” The Futurist 39.3 (May-June 2005): 17(1). USSD. Thomson Gale. State Department Custom Journal
<http://find.galegroup.com/itx/infomark.do?&contentSet=IAC-Documents&type=retrieve&tabID=T002&prodId=SPJ.SP00&docId=A131858883&source=gale&srcprod=SP00&userGroupName=ussd&version=1.0>

Education as a topic for discussion may be quite a sought after theme today. As a fact, it remains bland as ever and traipses about as it has for the last 60 odd years of our existence. Just as legislature, executive, and judiciary are tagged as the organs of the state, and the press has so by right infused itself in the system, and come to be called the fourth estate. The role press defined for itself, perhaps in all civil societies, acts as the indicator for the institutions of the countries, tempering the governance, through realism and forging public opinion on states policy. Education on the same premise, has since time immemorial, been considered the first institution of a society. Had it not been so, literary works such as Sophocles’ Oedipus, in today’s ‘moral issues’, and his Antigene distinguishing the laws of God from the laws of man, would not be the areas of study for the scholars, and prescribed in courses covering different fields of study in educational curricula 2000 years hence. Shakespeare, for that matter would never become outdated in English literature. The value is not just literary. For students of law studying his plays get a breathtaking perspective of the evolving English society reflected in his works. The judgment on Shylock’s claim on the ‘pound of flesh’. Yes, but not a drop of blood, in Merchant of Venice, resonates the developing equitable principles through the Chancellor’s Courts of Equity in the sixteenth century. A lesson to learn here is that societies which subscribed to debates on the ought-is dichotomy, and did not shun neo-Platonism as mere irrelevancy, ultimately laid the foundations of those very states which determine and define the future of our world today, however we may hate or loathe the state of affairs, and find solace in obscurantism. If we may learn something from history, that is whenever the state decides to mould the society within, the former fails and the latter ends up in anarchy. One of the critical areas where such engineering takes place is education. Unless those at the helm of affairs decide on some inward reflections, the results are already arriving and witnessed in our every day life. The rule of law has decided to fly out of our window to find better pastures and the writ of the government so far as the life, liberty, property and dignity of the ordinary citizen is concerned lies in tatters

It is not that we as a nation and as a society are any different from so many other states and societies equally passing through transitional phases. What irks is the issue why have we become so numb, insensitive, and unresponsive to own social ailments even at personal levels?

The answers may vary, but the role of the absence of “obligations” and development of corresponding “rights” vis-à-vis the state, the society, and the citizen, as a dominant factor in the present malaise cannot be downplayed. In early 1980s with arrival of neo-islamists, the first victim was law, and with it education. One subject in elementary education which caught the eye of the ruling elite was civics. It was conveniently substituted by a newly invented subject amalgamating history, islamiat, and some topics generally covering the Constitution of Pakistan and given the name Pakistan Studies. The damage caused is quite visible 25 years later. Civics as a subject provides the entrance of a young student, in the making, with the awareness of the citizenship rights, duties and obligations within a family, within the society, and takes up rights and duties as a major topic for the individual and collective endurance vis-à-vis the citizen and the state. Two generations which have completed their elementary schooling simply would have no answer to drawing distinctions between rights, obligations, and duties much less inculcate the latter two elements in their character, and learn to assert the former in it appropriate perspective. Should any blame be placed at their doorstep? How can a person be rationally expected to behave or act in a certain way, when that particular way is unknown to the individual. It thus becomes an unjust requirement. How many of our students at the graduate level are aware of or have been taught the causes of the separation of East Pakistan. Have they any particular knowledge about and would be able to distinguish Ayub Khan’s Basic Democracy, and the distinct significance of today’s local government system; perhaps 2% plus or minus another 2%. Beyond accusing the judgment in Moulvi Tamizudin’s Case and holding it responsible for all our problems, what do private and public parleys generate. Hardly any constructive conclusions are arrived at, certainly none ever seen in the media except for isolated voices such as Mr. Ardeshir Cowasjee, and Mr. Irfan Husain. The issues directly affecting our society cannot per se be assumed to be the exclusive responsibility of judges, and advocates alone to resolve, but require every educated Pakistani to be alive to and address them through participation in public debates.

Where the present day social order remains, no short cuts, no patchwork and certainly no adhocism can suffice to rejuvenate the people and make the administration responsive and responsible towards the citizens.

The first requisite is the search for possible solutions; a dispassionate reappraisal of the problems facing us is a necessary must. The first issue to be addressed is prevailing standards in the sphere of general and professional education in Pakistan and which require redefinition and reprioritization. In the first instance, education must be taken out of the casket of the compartmentalized, short term utility it has been assigned. Disciplines as Liberal Arts, Pure Sciences, and Economics must be reinstated, and re-allocated the status they had in yester years, when Pakistan was socially happier, economically stable, and culturally rich.

Law as a discipline even then did not find a place for itself anywhere and thus continues as an orphan even in the wasted educational system. A simple example here is sufficient to show how the legal education is perceived even today. Pakistan Bar Council Legal Education Rules, 1978 were notified through notification S.R.O 1319 (1) 78- – (Gaz., Ext., Pt.11 19.41.78) Sec. 1 sub-section 2 (c) defines University as …” “a” University established by law in Pakistan and having a faculty of law”. Section 7 of the same rules determines the qualifications of the “staff”. Sub section 1 reads “Part time teachers should possess the following qualifications…” Sub section 2 refers to the governance of the terms and conditions of the teachers by the respective universities. No mention is made anywhere of a permanent faculty and the requisite qualifications therefore, to be maintained by the universities falling within the purview of these rules. One interpretation may be that the determination of the permanent faculty teacher would fall within the jurisdiction of the concerned universities; another may be that the permanent faculty is not mentioned on account of an error, which cannot be keeping in view the principles of the interpretation of statutes; yet another and possibly the most plausible interpretation is that the rules plainly do not conceive of any permanent faculty to be maintained by the universities, because law as a a branch of professional education has always been a part time discipline of study. If this is the case by what definition and on what criteria do the rules envisage a “faculty”? In 90s and 2000 full time faculties were inducted in a few universities, and legal education was offered as full time courses. All this happened in the face of a statute which simply does not acknowledge such a situation. No effort till date has been made to rectify the problem. A few questions for all in the Pakistan Bar Council and Higher Education Commission are posted here; are “ghost faculties” running law institutions in the Public Sector as Peshawar University, and in Private Sector Lahore University of Management Sciences (Lahore) Hamdard University (Karachi) and Punjab Collage of Law (Lahore)? These are the only institutions in Pakistan offering full time LL.B courses. How does HEC of course by statistics defend or justify the current structure of legal education being offered to 160 million people? What average percentiles have we to show the world how we look at law and the priority attached to it. How the Bar Council does absolves itself from a patent abdication of its regulatory role, by failing to address the issue in the face of the prevailing incongruity between the stated law and the de facto position?

These questions attain gravity when the entire system of legal education is viewed at different tiers, such as the status and the requisites of the heads of the law faculty, the ‘station’ of permanent faculties, the priority of legal education on the agenda of PBC and HEC, availability of resources (which includes teachers who have the requisite academic qualifications, and advocates who are either teaching part time or full time courses, monetary allocations, facilities for the teachers and students as aid to teaching and conducting research), teaching methodology, availability of libraries and the actual access available to these libraries, etc.,

In all modern universities Law as a discipline is offered as a full time study course which entitles the potential aspirants to enter the legal profession. Law as a part time study is also offered, but leaving south Asia, nowhere does a a law degree based on part time study alone, entitles the degree holder to take up law as a profession. All these are prescribed by the Pakistan Bar Council. An LL.B degree in Pakistan necessarily means a study of some 45 or 46 subjects covering three years. On the average generally all the teaching institutions affiliated with public or private universities hold classes between 4:00 P.M to 7-8 P.M (leaving aside the law faculties mentioned earlier in this article). One period roughly covers 45 minutes to 1 hour. The total lectures are then 3 or 4 in a day. The lecturers involved in these institutions are advocates who are wholly involved in their legal practice. What amount of time would be available for the preparation of lectures or conducting any research in their own field of study? This statement by no means should be taken as affront, but only points out the humanly impossible task expected from the teachers in the given scenario. The handicaps of the law students in this situation can neither lie with the teaching staff nor the students. The teaching methodology consequentially remains as archaic, as the syllabus. The “deans” of these institutions are equally involved in legal practice, and attend their respective colleges only between the schedules of classes on “part time basis”. Does a “faculty” and the “method” as universally understood and recognized, admit of such teaching practices validated by another primitive piece of legislation for entrance to a profession? Would the Higher Education Commission allow such latitude and complacency in choice areas of education, which provide immediate economic and financial benefits? But then the HEC is not the only regulatory body of education. It can only oversee the functioning of the Universities in completing the pre-requisites. The Bar Council is that body which is responsible for monitoring regulating and upgrading that facet of law, which falls entirely in its purview.

The anomalies, the incongruities in legal educational system are far too serious to be ignored any further, and unless addressed and resolved at the earliest, the system may soon become altogether dysfunctional. In its present state it is in no condition to cope with the fast changing kaleidoscope of the modern 21st century world we are so keen to join, well, it just cannot happen by our own choices, but only what the world requires from us; for one, upgrading the education, and within that especially the legal education on the top of the agenda, if only we could read between the lines. Law may not provide any immediate economic benefit, and therefore may not be a financially viable “investment”, it certainly is a value subject, for it deals with “life” in all its dimensions. Lets not keep proving Oscar Wilde correct time and again, by adhering to his comment “they know the price of everything, value of none”. Today on account so many errors, a new entrant in legal practice continues to remain as distant from the actualities of the legal practice, as is a layperson. The real orientation into the latter field is primarily based on “apprenticeship”, something which the law can no longer allow, if it is to play a positive and constructive role in modern Pakistan. In contemporary legal world the students have to mill it through so many different areas before they can take upon themselves the responsibility of life, liberty, property and dignity. One of these can be cites as the development of analytical mind, the other moot courts, seminars etc.

A lot needs to be done if law is to re-attain its role in the reformation of our society, and the development of the state. Rule of law is unachievable by legislations, or judgments, alone. Rule of law is what sociology terms as civilized behaviour, and civilized behaviour is learnt not dictated. So could we start putting our own house in order before embarking on re-importing the rule of law? As a first step those who matter can start with re-visiting law and legal education, taking serious decisions and making the compliance of such decisions mandatory.

In south Asia the Indian judiciary utilized PIL extensively to develop new jurisprudence for protection of various human rights connected with social justice. Contextually, PIL has been renamed as the Social Action Litigation (SAL) in India as it focused on social justice and time and again came to the help of the discriminated or marginalized sections of the society. PIL was not created by the traditional norms of constitutional or legislative process but created by judicial activism on the basis of practical expediency in those countries and an important aspect of this process was the relaxation of the traditional rule of locus standi.

The constitution of Pakistan is unique so far it expressly removes from legal sight the dogmas of procedures and provides for substantive justice through PIL. Article 184 (3) of the Constitution of the Constitution provides original jurisdiction to the Supreme Court to take up and determine any matter concerning the enforcement of fundamental rights which is of public importance.

The Constitution of Pakistan through the Principles of Policy ensures that social, economic and political justice shall remain the foundation of the state. The Constitution establishes an independent judiciary equipped with the power of judicial review in order to realize social, political and economic justice. The rule of law is the foundation of the Constitution and it guarantees fundamental freedoms and rights of citizens and individuals under Part II Chapter I. Chapter II deals with the directive principles of state. Article 184 (3) in Part VII Chapter II of the Constitution confers power to the Supreme Court to resolve public interest litigations in which questions of public importance involving fundamental rights guaranteed by the Constitution are at stake. Under the Article, any citizen may file a case of PIL to the court for decision and directions. The Supreme Court has powers to issue orders or decrees if the fundamental rights and freedoms enshrined in the Constitution are found to have been violated or remain unenforced.

When incorporating Article 184 (3) into the Constitution, it seems that the framers of the constitution were conscious of the socio economic situation in Pakistan. They designed it to be a tool of socio- economic justice and it can therefore be used effectively to root out exploitation and injustice. It can the called the signature tune of the Constitution. Public Interest Litigation was invoked in 1988 in the case of Benazir Bhutto vs. The Federation of Pakistan and others.(PLD 1988 SC 416) .Since then, the Supreme Court has entertained various PIL cases and issued different kinds of orders in various areas, most notably in environmental, gender, juvenile and social justice. The case of Shehla Zia vs. WAPDA (PLD 1994 SC 693) wherein for the first time an apt definition given to “life”, in keeping with the universal acceptance of the term “life” remains a hall mark of public interest litigation in Pakistan. For some time even the High Courts embarked upon this exercise, but due to the constraints of Article 199, and the formalistic approach did not allow public interest litigation to develop well at that level.

However, it is the execution of court orders in PIL which are quite discouraging.In private litigation, the parties of the case take initiatives to enforce the judgment. Conversely it may be argued that in PIL, judgments are not executed properly because there is no one to follow up the proper execution. Unless the government itself decides to implement a judgment, most remain unexecuted. The case of Shehla Zia itself present an un-encouraging result. The vast expanse of “life” remains in tatters, when we see expendibility of life itself becoming cheaper by the day. The public functionaries and governmental departments remain as unconcerned confining themselves to the procedural cobweb of law. Matters relating to the fast eroding environment and the judgments of the Supreme Court especially in recent years must not considered in isolation, but given due weightage by the Government which is not seen.

The Supreme Court has been delivering important judgments concerning public interest protection. It still has a long way to go however before redressing the grievances of poor and vulnerable people. PIL in Pakistan seems to be in the process of development. It will take years to mature. The credibility of other institutions having been lost since long, it is the judiciary which continues to restore faith of the ordinary citizen, in the state; and in this the role of PIL is crucial.

If the disturbing trend of non-enforcement of court orders in PIL continues, the whole endeavour of PIL will be rendered meaningless. It would inevitably mean the demise of the rule of law and social justice. Unless the state recognizes and accepts the vehicle of PIL not as an intrusion of judiciary in the state’s domain, but more as an aid, the latter it will never be able to serve its purpose, that of an effective tool of unspoken non-revolutionary struggle against exploitation, domination and abuse of power.

In Pakistan, governmental failure to comply with the law is widespread and infectious. It results in injustice in particular instances and disillusionment with government on a broader scale. A healthy democracy requires a government that rules by law, not by arbitrary authority. Public interest litigation is an effective tool to compel officials of the government to follow the law. The Supreme Court has not hesitated to rely on Article 184 (3) in asserting its public interest jurisdiction. Article 184 (3), sets the stage for public interest litigation, to play a vital role in nurturing the rule of law, and democracy.

Working with the judiciary, public interest litigation raises government accountability to its own laws in two ways. First, it demands government compliance with the rules in particular instances. Second, it helps in creating a climate of compliance; if public interest advocates be particularly vigilant, officials are more likely to follow the law. This vigilance occurs only if public interest practice is institutionalized and sustains.

The strategy of the PIL is to carefully research issues appropriate to its mission, notify government agencies of legal transgressions, negotiate resolution of disputes when possible, and litigate when necessary.

Some representative topics of PIL in Pakistan include: availability of potable drinking water, fast eroding health conditions, protection of open space and forests, setting pollution standards, dumping of industrial and commercial waste, installation of sewerage treatment plants, control of municipal and hospital wastes, the vagaries of stone crushing industry on the environment, misuse of government vehicles, beneficial bail provisions for those accused of corruption, consumer rights, protection of and compensation of rape victims, domestic violence, maternity leave discrimination, formal and informal infringements of the right of woman and child, and identity of women as independent citizens.

The Supreme Court is taking increasing responsibility to use its judicial power in the public interest. The Court since 1988 continues to described its public interest role in striking terms:

Public interest litigation serves three critical purposes:

· It gives voice in the governmental process to those with little political power – women, children, the poor and those by tradition excluded from meaningful participation in society.
· It provides a forum for the defence of public interests that too often lack adequate representation – clean air and water, biodiversity, forests and open space, cultural heritage.
· It helps establish the rule of law by holding government officials accountable to abide by the Constitution and laws of Pakistan.

By ruling in favour of these interests that are usually neglected in Pakistan’s political climate, the courts enhance their judicial independence and authority. A strong, independent judiciary is essential to a healthy democracy.

The Supreme Court has ruled on dozens of public interest cases. In virtually every case, the question remains, who will monitor compliance with the Court’s order? Who will take action to enforce the order? This is the weakest link in the public interest litigation chain.

In private litigation, parties usually have economic or other private incentives to monitor and enforce judicial orders. By contrast, lawyers and activists or bringing public interest cases often do not have the resources or incentives to do the challenging job. Therefore effective follow-up is needed to ensure the fruits of their efforts. Almost invariably, competing demands divert their attention once the battle is won. Of course, the battle is not really won unless the order is followed. That often requires time consuming monitoring and sometimes determined enforcement action.

If judicial orders are ignored, the courts loose prestige, authority and independence. The court’s ability to intervene on behalf of the politically disenfranchised and to protect public interests that lack private advocates is impaired. If the judiciary is seriously muted, the rule of law has little chance to survive. Therefore, the Supreme Court may ought to examine the launching of a project regarding monitoring and evaluating the implementation of the orders of the judiciary regarding PIL. Perhaps Pakistan may become the first country launching such an important project at the apex level with the help of the estate machinery, of course.

The judiciary neither uses power like government nor imposes its will like parliament. It settles disputes within its jurisdiction in accordance with the constitution, law and recognised principles of justice. Even decisions of the courts are implemented by the help of the executive. Therefore courts are entrusted with the power to interpret the constitution. Courts are an essential check against any usurpation of power by the government. The superior judiciary in Pakistan, particularly the Supreme Court, has both ordinary and extra-ordinary jurisdiction. Generally, ordinary jurisdiction is used to hear civil and criminal cases between individual and individual, or between individual and the state. Extra-ordinary jurisdiction is used where public bodies or authorities are alleged to be the main wrongdoers. How the judicial power can be used actively and dynamically is a matter of great importance. These may be summarized as follows:

(a) Giving constructive meaning to the constitution and law
Every legislation has some weaknesses and loopholes in the form of faulty language, ambiguities, inconsistencies and even contradictions, expressions which may have more than one meaning even if it is skilfully drafted. It is the function of courts, to give a harmonious interpretation to the legislation, consistent with its intention, and to save it from being reduced to an unworkable law. For this the court may require to supply words and expression, modify the language, impose inarticulate presumption, and which at time amounts to redrafting of the legislation, to bring it in conformity with the original intention of the legislature. This is an essential part of the judicial function. It is implicit in the judicial function of interpreting and applying the law to the facts of the individual case, that the court treats the law as an ever active dynamic and applies it to all situations which it is intended to cover.

In addition to this, in disputably no legislation can take into account all present and future situations. The law is and has to be based on certain common presumptions which may not hold well on all situations. No state can make law to meet every situation. The judiciary, entrusted with the task of applying the law, is expected to extend the law to all situations, ordinary or extra-ordinary, contemplated or not contemplated at the time of making the law. It has to enforce the intention behind the law and uphold its mandate. The judiciary has a duty to uphold the rule of law. Such extension and application of the law is a functional obligation of the judiciary. It fills the gap that existed in the prevailing law.

Besides the “gap-filling” and the “extension” operations, the supreme court has to undertake a different kind of exercise, when it is confronted by disputes where the issues involved are not wholly or even partly covered by the statutory law. The judiciary in such cases resort either to existing recognised principles of justice, or evolve new principles, or use their inherent powers to do justice between the parties. The judiciary does not and cannot remain silent in the absence of statuary law. It has to resolve the disputes, coming before it and ordinarily cannot refuse to entertain them or throw their hands up on the specious plea of the absence of the law. The judges are called upon, in such circumstances, to bring to bear upon the issues, their learning, their wisdom and perspicacity and to evolve just, proper and durable guidelines to resolve such and similar issues. In this process they are undoubtedly guided by the existing norms and values and practical considerations. The jurisprudence of every legal system is the product of such evolutionary process, which in turn aids and assists the developments of law, including the statute law. The just, equitable and normative principles are as much necessary for administering the law as for making it.

(b) Upholding a constitutional mandate
The Constitution is the fundamental law. The provisions of the Constitution are binding on all individuals and institutions. It is the duty of all to further its provisions. All laws and orders, notifications and rules, policies and programs, decisions and adjudications, norms, values and principle must conform to the Constitution and promote its goals. Moreover, it is the duty of the three organs of the state to enforce it. It is the duty of every citizen to abide by the constitutions and to respect its ideal and institutions. The judiciary is required to keep in mind all the provisions of the Constitution and to give effect to them so far as it lies within the purview of its judicial functions of resolving disputes. Its decisions have therefore to be in conformity with the provisions of the Constitution and it has to strike down acts which go beyond the Constitution. The judiciary should keep in mind that the separation of powers is as much an inseparable part of the Constitution while discharging the function of judicial review.It must discharge its mandatory constitutional obligation of keeping the individuals and institutions within their constitutional bounds and directing them to perform their affirmative constitutional obligations.

(c) Organic innovation and extensions
Doing justice is not a mechanical procedure; it is rather a dynamic process. Each case differs from the other. The creation of justice implies and involves every time a fresh application of mind, interaction with the parties and their lawyers, appreciation of the oral and documentary evidence against the particular background of each dispute, of the arguments advanced and the relief sought. The judges are required to be live partners in the process of justice and to respond creatively in each case.

Creativity and innovation amongst the judiciary are as necessary as impartiality and independence. The judges are not expected to be mere mechanics and masons. They are required to be designers and architects. So long as their innovations are within the bounds of their jurisdiction and are designed to advanced the cause of justice, and do not do violence to the legal norms, however unorthodox and unprecedented they may be the innovations have to be welcome as accreditations to the legal armoury to preserve and promote justice which should be the object of the any legal and judicial system. It is true that the certainty of law is a hallmark of the rule of law and the majority of the judges stick to the trodden path. But that is no reasons to frown upon innovations which are designed to promote and strengthen the rule of law. The growth and development of law over the years owes itself to the bold initiative and innovations of the few who thought positively and constructively and refused to submit helplessly to the impasse or to the dead-end situations created not necessarily by the law but by its development till that stage. Judicial activism which evolves new principles, concepts, maxims, formulae and relief in order to provide justice, and to expand the meaning and interpretation of locus standi .

PIL has become a part of the Pakistan’s legal system and has been so assimilated as a judicial procedure. What is of further importance is the awareness it created among all concerned that those incarcerated in such places are as much under the protection of law as others and that persons in charge of them are equally accountable to society. It can hardly be contended that the courts should wait to remedy the situation till the legislature had made suitable changes in the law.

(d) Judicial activism and public interest litigation
Judicial activism, in fact, has been age old. The proponents of judicial activism take it as a normal assertion of their judicial powers, a part of judicial review authority, result of judicial creativity and the necessary inbuilt mechanism to uphold the rule of law and canons of natural justice. In India, PIL remains is constantly utilised and embellished by the court. PIL in India has been used to provide various types of relief to under trial prisoners, to improve the conditions in protective homes for women, to check custodial violence, for the release of bonded labour, for the enforcement of labour laws, for environment protection and so on. The Indian judiciary through PIL has conveyed the message to all government agencies that it cannot stand idly by, principally when there is abuse of power and mal-governance.

Judicial activism is that legal process by which relief is provided to the disadvantaged and aggrieved party. Thus where there is a gap in the legislation or the law is silent on a specific point and prompt redress is needed, the judiciary exercises its inherent powers by virtue of being a custodian and watchdog of the constitution. Broadly speaking, judicial activism falls into two categories. The first consists of evolving new principles, new concepts, new maxims, new formulate, new relief going beyond and sometimes even alien to the hitherto known and evolved jurisprudence and substantive and procedural law. The seconds extends to laying down priorities, policies and programmes and giving directions to execute them when they are not obligatory, and are entirely in the direction of the executive and the legislature or other authorities, and thereby usurping their function, power and wisdom; to taking over detailed administration of a policy, scheme or programme even if they are obligatory instead of monitoring their performance; giving directions to execute a plan or a policy in a particular manner when equally good or better alternatives are available; preventing implementation of schemes and projects on grounds unsupported by and unverified with the expert knowledge; interfering with the working of the independent autonomous bodies by meddling with their decisions for no reasons other than their alleged impropriety; foisting the court’s choices, directing enactment of laws when they are at best directory; interpreting the Constitution and statutes contrary to their language and original intention, or by going beyond their accepted and well established and understood meaning, so on and so forth.

The Supreme Court discharges its social responsibility through public interest litigation. Judicial pronouncements in public interest cases pave the way for the institutionalization of individual accountability in democratic governance. By way of PIL, problems like child labour, bonded labour, custodial deaths, environmental pollution, protection to and preservation of historical monuments and violation of human rights have been greatly mitigated.

Public interest litigation should not be converted into populist interest litigation having detrimental effect to the very purpose of this mechanism. To make PIL effective the Supreme Court has to develop guidelines to entertain PIL cases. In India, the Supreme Court has developed internal guideline to this purpose. However, the guidelines developed by the Indian Supreme Court are not available publicly. It is a weak practice of the Supreme Court. It must be available to all concerned persons.

During the past decades, a vision of the judiciary as the moral tutor appointed for a recalcitrant society has become dominant in the legal academy and increasingly within the courts themselves. Most legal scholars, in one form or another, have embraced constitutional litigation as the ideal forum for moral evaluation of public policy. Rather than merely being the occasion for enforcement of a legal text by interpretation according to standards of law, the Supreme Court’s exercise of judicial power to review the constitutionality of government decisions has become an opportunity for exploration of public virtue and national aspirations.

Protection of human rights through PIL has many dimensions. What sort of rights can be protected under PIL jurisdiction is a matter of deep concern. Generally PIL jurisdiction is used to protect public interest and not to protect private interest. Therefore PIL has been used to protect community interest or the interest of the general public. However, while exercising its jurisdiction, the Court does not count the number of people affected. It takes into account the nature of the case and its impact on general public. The Court can use PIL jurisdiction to protect human rights if they are not remedied under ordinary jurisdiction of the Court.

The problem areas in judicial activism remains the suspicions which have come to be embedded in the common citizens mind vis-à-vis the state actions.

In a recent paper, Justice Nasir Zahid, critically addressed the gray shades where the state has particularly failed to fulfil its obligations, he points out these in the following terms:

Article 37 (d) of Pakistan Constitution requires the State to ensure inexpensive and expeditious justice. The primary responsibility, therefore, for providing justice, inexpensive as well as expeditious, is on the State and “the State” has been defined in Article 7 to mean the Federal and Provincial Governments, the Provincial Assemblies, and such local and other authorities that are empowered by law to impose taxes. It follows that these bodies and authorities are constitutionally required to establish and maintain such institutions that ensure civic and social justice to the people and also a judicial system that can be accessed speedily and with affordable expense by people for redress in case of violation of this mandate. The common perception is that the primary responsibility for providing justice to the people rests on the Judiciary through the judicial system and also as the protector and defender of the Constitution. However, without the full support of the legislature and specially of the executive, judiciary alone cannot discharge its responsibilities of providing inexpensive and expeditious justice to the people.

Let us first examine the role required to be played by the legislature in providing justice. The courts are required to decide cases in accordance with the Constitution and the law. Various questions should arise for consideration when the law makers decide to make a law. Are the law makers aware of the nature of law itself, its functions and purposes! Do they ever consider the interests of the common persons (common men and women) for whom the laws are going to be enacted! Are the proposed laws that are being debated in the legislative bodies represent the understandings of the law! Is it at all considered by our law makers whose values are being promoted and whose interests protected in the enactment of the law! The common person is always critical of our legal system. Questions are always asked whether our legal system is fair. A common person does not perceive our legal system to be fair and as a protector of his or her rights. He considers the law as an enemy rather than a protector of his rights. These and other questions that should be considered during the debates in the legislative assemblies are usually ignored. Taking a concrete example, can it be said with any certainty when a law is being made, that our legislators ever consider what would be its likely effect on Pakistani women who form about half the population of the country. Hundreds of amendments have been made in our Constitution yet, except for one or two amendments, no amendment has been made for advancing the cause or rights of the common person. As stated earlier, the courts have to impart justice in accordance with law and, if the law itself is not fair at least as regards the common person, it is not an easy task for the courts to protect the rights of the people. It can, therefore, be said that legislature is a very important component of “the State” in safeguarding the rights of and for providing justice to people.

Protection of human rights through PIL has many dimensions. What rights can be protected under PIL jurisdiction is a matter of deep concern. Generally PIL jurisdiction is used to protect public interest and not to protect private interest. Therefore PIL in Pakistan is that mode of providing substantive justice, which must remain confined to protecting community interest or the interest of the general public; while keeping aloof from populist litigation through PIL, which not only removed it from public domain, but invariable effects its character.

I am feverishly working on the two topics posted earlier and hope to post them within a week.

“Article 140-A: – Local Government. – Each province shall, by law, establish a local government system and devolve political, administrative, and financial responsibility and authority to the elected representatives of the local government.”

Constitution of Pakistan

Democracy and the societies of the sub-continent, or South Asia, experience a unique relationship, evasive, sometimes, at odds, more often, alienated. To me the association is that of strange bedfellows. The scholars, academicians, politicians, judges, lawyers, each in his domain have attempted to find the definition of democracy in isolation, rather than, acceding to, and adopting the universal concepts, and thereby applying the substance and content of the institution. India, to a large extent, is an exception, but the teething problems remain, at times revealing the gaps, which have yet to be filled up.

From a common man’s perspective, South Asia is witnessing a collapse of law and order, micro economic disorder, corruption, and nepotism; insensitive, at times, even numb, bureaucratic approach continues to compound the tribulations of the common man. Denial of Access to Justice has resulted in isolation, and a visible polarity has come to stay, between the elite and people, in a region which boasts of ‘democracy’ as the means to independence.

In 1947, Pakistan as other South Asian countries had all the promise to develop into an egalitarian, liberal, progressive nation. During the transitory period of the Partition, it had inherited, a sound administrative system, good physical infrastructure, and added to that, a people brought up in democratic traditions; however we may choose to attribute flaws to it. Fifty seven years later we are still struggling with an electoral system, which produces anything but participatory democratic institutions. The successive governments failed to focus their attention on institutional development; as a consequence the few existing institutions which were to be the anchor of a democratic society were politicized, corrupted, and weakened, thus becoming dysfunctional.

On 7^th October, 1958 with the advent of Martial Law, the first ever constitution framed and adopted in 1956 was abrogated, and Pakistan came to be ruled under Proclamation of 7th October, 1958. Thereafter, the State continues to be governed through authoritarianism, irrespective, of the claims of the political parties, opposition, or pressure groups within the society, on the issue of democracy, which is discussed later in this article.

The emergence of the Positive Law as the role player in the materializing norms of Pakistan’s society, and its manifestations, fascinates me. Prof. H.L.A. Hart’s Analytical Positivism, and his inclusion of ‘the minimum content of natural law[i]’, continues to pervade my mind, in the arrangement of the “Is” and “Ought” proposition. The Gunman example posited by Hart, and the intricate distinction drawn by him, between ‘obliged’ and ‘obligation’ requires an in-depth study of a society and its legal order, wherefrom, flows the basic norm of that society.

When we undertake the study of Pakistan, in legal perspective, we must bear in mind, its unique geographical situation, the social fabric, and the ensuing legal system, observable within the society, rather than embarking on an empirical study of successive governments, and their co-relativity with ‘law’, ‘democracy’ or ‘constitutionalism’.

It is this attempt which has been made in this article, whether Pakistan as a society can sustain democratization? With the enactment of the XVII Amendment, Article 140-A, has been added to Constitution of Pakistan. Article 32 of the Constitution, in ‘The Principles of Policy’, already provides for promotion of local government Institutions.

In the hierarchy of norms, as the pyramid is built upon the primary and secondary norms, conjoining in the ‘basic norm’, the bi-directional flow of the rules, define the basic norm, which also forms the repository of customary rules flowing to the pinnacle of the pyramid. To understand this paradigm, we may turn to the statutory laws, and analyze them, in their formulation, and application. At this juncture, we come to a point where this analysis of the rules, takes precedence for a critical survey of any Legal Order. No legal system can be dissected on the basis of individual realms of power.

Constitutionalism, democracy, and governance, all three concepts have been exquisitely woven in the canvas of law. It is the ‘Concept of Law’, founded in our environs, which draws my attention, for study on the malaise, which surrounds us, rather than dwell on trivialities of politics.

Pakistani society’s dilemma in arriving at any consensus for a democratic setup can be observed in the emergence of feudalism, and a conservative tradition oriented clergy. The relationship remains symbiotic, by reasons of necessity, which draws each to the other.

The Objective Resolution drafted and adopted by the Constituent Assembly, on 12^th March, 1949, and later embodied in the Constitution of Pakistan, 1973, by the VIII Amendment, in 1985 bears witness to it. Article 2-A is an ingenious compromise of opposite forces, ‘a democratic squaring of the Islamic circle… it affirmed the principles of democracy, freedom, equality, tolerance, and social justice’ but adds: ‘as enunciated by Islam’[ii].

For students of Pakistan, the debate over Islamization of laws reflects deeper philosophical conflicts which have characterized the nation’s turbulent history, since its birth. Conflicts and tensions in Pakistan’s jurisprudence largely explain the perpetual constitution making. At the same time the constitutional crises have largely masked the inherent conflicts in the legal system[iii].

At the micro level we find non-legal foray such as ‘Jirgahs’ validating the customary laws, as ‘karo-kari’, ‘vaani’, ‘vatta-satta’, etc.

Law as generally understood, may not be, what it suggests to be, without moral sanctifications, and here we find the academic debates between Prof. H.L.A. Hart and Prof. Lon Fuller, not remaining a matter left better to the academia, but providing a study of the legal systems, delving in the rationale of the basic law, for a fruitful discernment of a legal order, its central theme, the validity, and the justness or otherwise of that legal system.

Critics of morality in law may disagree, but without the graft of ‘natural law’ to Positivism, law remains illusive. Pakistan offers a model case study, on the doctrine of ‘morality of law’. It was not without reason that Prof. Hart ceded to ‘minimum content of natural law’. The general form of argument is simply that without such a content law and morals could not forward the purpose of survival which men have in associating with each other. In the absence of, men as they are would have no reason for obeying voluntarily any rules; and without a minimum of cooperation given voluntarily by those who find that it is in their interest to submit to and maintain the rules, coercion of others who do not voluntarily conform would be impossible.[iv]

Mindful of this premise when we observe Pakistan’s legal system, we find the state, being governed through pre-independence colonial law, The 1935 Act, as amended by the Indian Independence Act, 1947, for a period of 8 years. In these 8 years the society was intact, however, deprived it was. However, with the introduction of Martial Law in 1958. Absolute rule was imposed on the people. In State vs. Dosso[v], Their Lordship enunciated the doctrine of necessity; unconsciously, the Supreme Court was simply validating John Austin’s Positive Theory of Command[vi], some 150 years later. The misconceptions prevailing in Pakistan’s legal jurisprudence, comes out with clarity, on the reading not only of Dosso’s case, but a plethora of constitutional decisions, following it.

In 1959, just within one year of the abrogation of the Constitution of Pakistan, 1956, THE BASIC DEMOCRACIES ORDER[vii], was promulgated, which laid the foundation of ‘basic democracy’. It is interesting to note here, that till then Pakistan was governed under Martial Law. More interesting is the fact, that at the relevant time. The State remaining under what was termed as ‘One Unit’. The majority province East Pakistan was treated at par with the minority province West Pakistan. Therefore, under the Scheme, the Electoral Collage under Basic Democracies Order provided for 40,000 Basic Democrats, in each province. It does not require any comments, but as is obvious, the very structure of the Order, stood in conflict with the ostensible purpose, “to provide for the constitution of basic democratic institutions through out Pakistan…”[viii]. To what extent did the framers of the law, realized this dichotomy, is evident from one of the speeches made by the President, “While democracy is essential, for the progress of the nation, Pakistanis must realize that the kind of democracy suitable for other nations is not necessarily suitable for them. Just as tea which grows in Darjeeling, cannot grow in Parbatipur, each region and each climate has its own peculiarities, and Pakistan can only adopt what is suitable to its climate and genius…”[ix]

The words do not represent the views of one man, but the mindset of the ruling elite, which in 12 odd years, had by now matured in controlling and managing an infant society, which was fast losing its grip on that concept of the rule of law, which it had experienced and benefited, in the colonial era. The fact, that the society had gained independence, through lawful means, and by a statutory enactment, was lost.

The Basic Democracy Order, 1959, had been promulgated with a specific purpose, for a society, which was now required to redefine ‘democracy’ within given parameters, in a legal order, bereft of a constitution, run through a ‘proclamation’[x]. Much publicized Basic Democracy, in fact, proved little more than a cover for further centralised control not only over the lower levels of government, but the Social Order itself. Despite the rhetoric, in its favour, of empowerment, local governments had only nominal powers. From the centre directly to the local levels, moreover, negated the normal concept of decentralisation since Pakistan’s principal federal units, its four provinces, had been fused in ‘One Unit’, and simply did not exist in the enactments. The misuse of local government officials during the presidential referendum and the general elections of 1965, left no doubt that these governments were primarily instituted to create a pliant political elite that could help root the actual power structure in local politics and displace its traditional adversaries, found in conventional political systems. The canvass, of the administrative functions devolving on the Basic Democrats, 80, 000 in a population of 100 million suffices to understand the actualities involved.

Self evident fallacies, in a Order running into 100 articles, is evidence enough of the purpose, of founding the institution, where the primary tiers of democracy were non-existent, for example Article 17 of the Order read ”For the purpose of election to a Union Council or to a Town or Union Committee, the Union or Town shall be divided into as many ’territorial’ units to be called ‘Wards’ as the number of members required to be elected to such Council or Committee, so that each such ward shall have , as far as practicable, equal population.”

Basic Democracies was a pyramidal plan enabling the people to directly elect to Local Council men they knew, who would in turn elect the upper tier of the administration. Altogether there were 80,000 Basic Democrats elected. To lend legitimacy to his rule, Ayub Khan used the Basic Democrats as an electoral college, holding a referendum to seek a mandate to continue in office as President and to have the authority to frame the future Constitution of Pakistan.

The referendum held on February 14, 1960, asked the voters “if they had confidence in President Field Marshal Muhammad Ayub Khan, Hilal-i-Jurat?” With the results of the referendum, Ayub Khan was elected not only as President of Pakistan for five years, but also got the mandate to give Pakistan a Constitution of his choice.

The Basic Democracies system set up five tiers of institutions. The lowest but most important tier was composed of union councils, one each for groups of villages having an approximate total population of 10,000. Each union council comprised ten directly elected members and five appointed members, all called Basic Democrats. Union councils were responsible for local agricultural and community development and for rural law and order maintenance; they were empowered to impose local taxes for local projects. These powers, however, were more than balanced at the local level by the fact that the controlling authority for the union councils was the deputy commissioner, whose high status and traditionally paternalistic attitudes often elicited obedient cooperation rather than demands.

The next tier consisted of the tehsil (sub-district) councils, which performed coordination functions. Above them, the district (zilla) councils, chaired by the deputy commissioners, were composed of nominated official and nonofficial members, including the chairmen of union councils. The district councils were assigned both compulsory and optional functions pertaining to education, sanitation, local culture, and social welfare. Above them, the divisional advisory councils coordinated the activities with representatives of government departments. The highest tier consisted of one development advisory council for each province, chaired by the governor and appointed by the president. The urban areas had a similar arrangement, under which the smaller union councils were grouped together into municipal committees to perform similar duties. In 1960 the elected members of the union councils voted to confirm Ayub Khan’s presidency, and under the 1962 constitution they formed an electoral college to elect the president, the National Assembly, and the Provincial Assemblies.

The system of Basic Democracies did not have time to take root before the system fell in 1969. Whether or not a new class of political leaders equipped with some administrative experience could have emerged to replace those trained in British constitutional law was never discovered. And the system did not provide for the mobilization of the rural population around institutions of national integration. Its emphasis was on economic development and social welfare alone. The authority of the civil service was augmented in the Basic Democracies, and the power of the landlords and the big industrialists in the West Wing went unchallenged[xi].

There were a number of formal and informal mechanisms that allowed the represented population to be involved in the affairs of the local councils. Formal mechanisms for mass participation were included in the Local Government Ordinances. For example, in case of taxation every taxation proposal was published along with a notice in newspapers, so that the public could make its objections and suggestions. However, it was the informal channels of public participation which were perhaps more representative. There came to be, a great deal of awareness of and involvement in the lives of the public with regards to services undertaken by local councils. Expectations about the performance of local government remained high, precisely because the tasks which this level of government was expected to perform influences the lives of a large number of people at the local level. There was frequent contact between elected councillors and their constituents and opinions about performance were regularly aired. This was perhaps the most sensitive tier of government and one in which the public to ‘some extent’ directly involved.

Despite playing such a potentially prominent role in the lives of the people in Pakistan, elected local government in Pakistan has been non-existent for most of the time. Throughout its history, Pakistan has had elected federal and provincial governments. Elected local governments were only recently restored in Punjab and elections are planned in NWFP and Baluchistan. In Sindh the federal government under an Emergency declaration has dismissed even the provincial government. The reasons why local government elections have not been held on a regularly basis are revealing. Local government elections were only been held by Pakistan’s two regimes of Ayub Khan and Zia ul Haq. All other avenues for public participation were closed under these dictatorships and elections to the National and Provincial Assemblies were not allowed.

Under both military regimes, elected local bodies played a useful and productive role in many areas of the lives of people. With the return to ‘democracy’ in 1972 on the basis of General Elections of 1970, elected local bodies lost most of their importance and their role and potential was severely undermined by elected representatives of the higher tiers of government. This happened despite the fact that a large number of members of National and Provincial Assemblies had previously been elected to local councils when other forms of representation did not exist. Moreover, patronage and grants to members of Provincial and National Assemblies bypassing local governments, helped to further weaken the position of local government. Possibly, by realizing the potentials of effective local government, representatives of higher tiers of government felt threatened this level of government would undermine their new roles and privileges. Hence, their reluctance to fully revive this institution.

Under the Local Government Ordinances of 1979, elections of all local bodies took place on an adult franchise basis. After the elections of the members of a unit, the Chairmen, Vice Chairmen and Mayors are elected from amongst the members of the local council. The membership of each council was determined on the basis of the population distribution in that region. A separate representation was provided for non-muslims, peasants, workers and women, who were all elected by the members of the councils. The degree of electoral representation – number of seats according to population – was the highest at the lowest level of local government, i.e. the Union Council level in rural areas. There were a maximum number of seats prescribed for District Councils and municipal corporations in some provinces, which implies that the number of seats rose less than proportionately, with respect to population. Close to 80,000 seats are contested in the local government elections. 89 per cent of the elected representatives were seated in rural local councils of which 84 per cent in Union Councils. Since Punjab had the greatest share of Pakistan’s total population, it also had the highest proportion of overall local government seats (68 per cent).

With the fall of another ‘politicized’ ‘democratic’ government in October, 1999, Pakistan came under military rule. This time, however, with some distinct changes. The issues did not remain domestic, but the government in power had to face, more challenges, than any of its predecessors, excepting the debacle of 1971. Apart from many departures, which it took, possibly, the most comprehensive and enlightening for the society was the commencement of decentralization, which was lost, in the debates touching as ever the non-issues, as far the common citizenry is concerned, far and mostly, challenges thrown to it within the establishment i.e. the power structure comprising the fundamentalist section, and that elite which did not receive its due share in governance.

The local government was revived, this time not for personal aggrandisements, but with the support and guidance provided by foreign agencies. In 2001, four ordinances were promulgated, for reconstructing and regulating the local governments in all the four provinces.

Critics may again attempt to find similarities in Local Bodies, founded in the genius of the military regime of 1958, and the present government; but the distinct difference, may be found not only in the XVII Amendment, which for the first time in the constitutional history, has given the local governance not only protection, but has in fact, again, given priority to Article 32 of the Constitution, which unfortunately, even the framers of the original constitution, had abstained from. The XVII Amendment to the extent of local governance substantially parallels 73^rd and 74^th Amendments in the Constitution of India.

The highlights of the present local government may be seen in its structure, functions, and the powers delegated to it.

The foundation of the electoral structure for the three tiers of local government is the union council. The union is a multimember ward for the election of members of the union council (that is, each constituency is on average 25,000), and each union council is composed of 21 directly elected members.[xii] The nazim and naib nazim (mayor and deputy mayor) are elected on a joint ticket. The remaining 19 seats on the union council are allocated as follows[xiii]:

· 12 Muslim seats, 4 of which are reserved for women

· 6 seats for peasants and workers of which 2 are reserved for women

· 1 seat for minority communities.[xiv]

The nazim of the union council then becomes ex officio a member of the district council, and the naib nazim of the union council becomes ex officio a member of the tehsil council.

The union councilors constitute the Electoral College for the district or tehsil councilors-at-large and for the district and tehsil nazim and naib nazim, none of whom can be union councilors. Elected union councilors are not permitted to stand for election as nazim or naib nazim of any tehsil or district—the nazim and naib nazim stand as a joint ticket once all the union councilors in their district have been elected. If no joint tickets secure at least 50 percent of the votes for any district or tehsil, a runoff election is held within a week between the two pairs that secured the highest number of votes. The joint candidates securing the highest number of votes are declared winners.

One-third of the seats are reserved for women—directly elected at union council level and elected by the electoral college of union councilors at tehsil and district levels. This emphasis on women’s participation in politics is a dramatic break from the past. In addition, 5 percent of district and tehsil seats have been reserved for peasants (in rural constituencies) or workers (in urban areas), and 5 percent for minorities. Thus, overall, district councils and tehsil councils are made up of about two-thirds directly elected members and one-third indirectly elected, including the nazim and naib nazim.[xv] The size of district and tehsil councils varies according to the number of unions within the district. Some district councils are of a significant size and larger than provincial assemblies.

Each tier of local government has a term of office of four years,[xvi] with a two-term limit for nazimeen and naib nazimeen at all levels of government.

Whereas the provision for direct election of union councilors provides the most potent form of citizen representation in local government, the PO and LGO (along with other ordinances, such as the Freedom of Information Act) also provide numerous new bodies through which citizens are able to access and potentially influence government at the local level. These may be distinguished in three broad categories.

First, there is a group of external oversight bodies that provide some external check on performance and probity. In some of these bodies, such as the Monitoring Committees at the district, TMA, and union level, citizens are able to influence the performance of service providers through their elected representatives, who comprise the committees. Guidelines exist for the establishment of monitoring committees to identify problems at the service facility level and bring them to the attention of the respective council and the concerned EDOs [xvii]

The Guidelines specify that members of the monitoring committees are to involve the community in assessing the quality of service delivery through regular field visits and that they must present quarterly reports of their activities to their respective councils. On the basis of these reports the councils are to pass the necessary resolutions (or refer the matter upward to tehsil or district councils if needed), and the nazim are to report back within 30 days to the council on the actions taken. Functioning like monitoring committees, but concerned with the judiciary, insaaf committees have been established as subcommittees of the union councils to assist in redressing litigants’ grievances relating to the functioning of the district courts by facilitating access to the Member Inspection Team (MIT) of the High Court.

This category of oversight bodies also includes new agencies, such as the District Public Safety Commissions (DPSCs) made up of both elected councilors and community representatives appointed through procedures that involve local and province government and the Chief Justice of the High Court. PSCs are a mechanism for local external accountability over the police, part of a hierarchy involving PSCs at province and federal levels. The DPSCs are to look into cases of police excess, ensure the registration of FIRs, approve the annual policing plan of the district covering proposed expenditures and performance targets and check against misuse of the police by the district political leadership.

Accounts Committees are being formed as subcommittees of district, TMA or union councils to monitor activities of the corresponding local government or any organization using public funds, to identify any corruption or leakage or waste of public money at any time and to conduct annual reviews of external and internal audit reports.

Although not yet formed, but with potentially the broadest base of representation, Village and Neighborhood Councils are to be elected under provisions of the LGO. These institutions are meant to be vehicles for community participation in local government planning. Designed to mobilize community resources and gather information, they can also be delegated to deliver services for their respective areas.

The architects of devolution also recognized the importance of mechanisms for citizen dispute resolution to establish direct accountability relationships between citizens and service providers. To assist in resolution of citizen disputes with government, Departmental Grievances Redressal and Complaint Cells are to be established in local governments. To back up the new offices, there is to be a zila mohtasib (district ombudsman) to provide a formal avenue for redress for citizens who have been the victims of maladministration. Citizen Police Liaison Committees have also been established as self-financing voluntary organizations, which citizens can set up to assist the Public Safety Commission and the Police complaint authority in the discharge of their functions. They are also expected to assist in settling disputes between citizens and the police. Of a similar nature, the LGO provides for Musalihat Anjuman, which is to function as committees to promote the amicable settlement of disputes of a civil or criminal nature

Finally, a group of bodies is responsible for community development and management of facilities. Citizen Community Boards (CCBs) are the most prominent of these. Although formed voluntarily by citizens, who comprise the entire membership, CCBs are formally registered in accordance with local government guidelines and have a legal claim on the local government planning and budgeting process. Consisting of at least 25 members, CCBs can, in principle, be established for a variety of purposes, including initiation and improvement of development projects, establishment of cooperatives, formation of monitoring bodies over police and other service providers and to reinforce the capacity of monitoring committees at the behest of the concerned council. At least 25 percent of the total development budget of each tier of local government (district, tehsil, and union) must be earmarked for projects identified by CCBs, and each CCB has to make cash contribution of 20 percent in order to be able to tap into these funds for a specific project.[xviii] CCB development funds cannot be re-appropriated for other activities if unused by the end of the fiscal year and must be carried forward to subsequent financial years.

Although School Management Committees predate devolution, they are associated with it. Names vary with the provinces—SMCs in Sindh, School Councils in Punjab, Parent Teacher Associations (PTAs) in NWFP, and Parent Teacher School Management Committees (PTSMCs) in Balochistan.

The executive branch of each district government is divided into 10 to 13 departments, depending upon the province, to carry out its functions.

The District Coordination department is headed by the District Coordination Officer (DCO), the highest-ranking civil servant in the district. An Executive District Officer (EDO) heads each of the remaining departments. In tehsils, the TMA Municipal Officer (TMO) performs coordination functions similar to those of the DCO at the district level. There are four tehsil, taluka, or town officers (TOs) reporting to the TMO: TO (Regulation), TO (Infrastructure and services), TO (Finance), and TO (Planning).

Three groups of employees were assigned to the new district governments. These included staff from:

• Federal employment groups, primarily District Management Group (DMG) and the Audits and Accounts Group;
• Former rural district council employees; and
• Provincial employment groups, particularly Public Health Engineering, Rural Development, Local Government, Health and Education.

The overwhelming majority of district staff formerly belonged to the provincial employment groups, particularly education. Most are in grades 1–15 (90 percent of district staff in NWFP and 83 percent in Sindh). TMAs inherited staff from the former urban councils and from rural district councils and also some provincial PHED staff where these have been devolved.

Despite multiple reform efforts, occupational groups in Pakistan remain vertically separated, distinct career streams. Posts sometimes have been created to satisfy the needs of the various employee groups for promotion opportunities, rather than on the basis of policy priorities or operational needs. Now, these systemic civil service problems are replicated at the district level as the parallel, vertically oriented, occupational groups have generated significant problems in merging different groups of staff. In certain Sindh districts, for instance, devolution has resulted in Communications and Works Department staff working alongside the Education Works Department staff at the district level. In city districts, the Development Authorities once responsible for structural planning have been wound up and their staff transferred to various tehsils. Local Government and Local Council Service cadre employees have joined the staff from provincial departments posted to TMAs. Thus, tehsils have had to absorb staff from a variety of different sources in the first months of devolution. These mergers have led to complex and, in some cases, seemingly insoluble problems of seniority. No acceptable formulae for merging seniority lists can be found in such situations. The danger for local governments is that—as with the provincial and federal cases—the structures of district offices will be distorted by the need to find placements or promotions needed to appease staff cadres.

(1) In Balochistan the Finance and Planning office forms part of the DCO Group of Offices

(2) In Killa Saifullah the offices of Education and Literacy have not been separated

(3) Information Technology will be the 10th Group in Killa Saifullah after a district structure is put into place

(4) In Karachi 3 EDOs (College, Elementary, and Literacy) have been posted due to the size of the department

(5) In NWFP the DO (Revenue) heads the office. There is no post of EDO (R)

(6) Public Health Engineering Department (PHED), Communication and Works (C&W) and Physical Planning and Housing (PP&H) departments were merged to form the Works and Services (W&S) office in NWFP. In May 2003 the provincial government divided the NWFP into six circles each headed by Superintending Engineer (SE) of W&S department.

(7) Education and Literacy have not been separated in NWFP

(8) Recently Literacy has been merged with the Education department. The EDO post was vacant prior to merger.

(9) Public Health Engineering has, in principle, been devolved to the TMA level. In practice this has not been enforced—but Balochistan is the only province that has formally created a district structure.

(10) EIP (Enterprise and Investment Promotion) and Public Transport groups of offices were established only in Karachi district.

(11) Karachi Water and Sewerage Board has been notified as the 15th Group of Offices in City Government Karachi, though functions and infrastructure are yet to be devolved.

The key structural variations between provinces concern Public Health Engineering and Education and Literacy. In education, Punjab has created separate departments for education and literacy at the district level, while NWFP and Balochistan have opted for one department for both services. In Sindh, Karachi has separate departments while Khairpur has a joint department. At the provincial level, the structure of the Departments of Education in the Punjab, Sindh and NWFP are more complex with three directorates; Balochistan initially merged these into one but subsequently created a separate directorate for colleges.

In Water and Sanitation, there has, in practice, been very little devolution to the TMA level. Balochistan has not formally devolved PHED and has simply restructured it. The PHED department remains at the provincial level, with the Secretary and Chief Engineer operating from Quetta. Sindh has abolished the provincial PHED office, and merged the staff into the LG&RDD. NWFP has devolved the functions to urban tehsils but not to rural ones.

The success of the 2000 Local Government Plan and of the LGOs in establishing a consistent set of political, administrative and fiscal structures across four provinces is remarkable. The diversity in implementation was inevitable for several reasons, including most importantly the reality that the patterns of province—local government political relations, conflicts and alliances vary considerably from one province to another. Similarly, some groups of staff themselves have a vested interest in blurring the jurisdictional responsibilities between provinces and local governments so as to cause delay and confused implementation arrangements. Also important were differing expectations among both elected and administrative officials about the outcome of the prolonged hiatus in the National Assembly’s approval of the Legal Framework Order. This inevitably created some uncertainty and, arguably, some hesitation in implementation of the LGOs on the part of provincial governments.

Since local governments across the country face diverse situations, some variance in implementation was not only inevitable but also welcome. Turning a constructive blind eye to some of the more marginal differences has prevented needless federal-provincial conflict, and has started devolution along a path that will be of value in the future—where basic principles are recognized and enforced, but where, in the detail, local institutions are tailored to local circumstances.

Under a system of complete administrative devolution, all authority for personnel management would be found at the same level of government where staff are located. In practice, there are very sensible reasons to deviate from this simplistic model. Above all, history and tradition determine many of the present arrangements, making it difficult to abandon them completely and start again. Moreover, there are quite defensible reasons for higher levels of government to retain some control over staffing at lower levels. Specifically, such an arrangement provides:

• an opportunity to exercise some top-down influence over policy (as a national integrating device) even where political and fiscal authority have been largely devolved;
• a broader set of career options for civil servants, so they are competing for positions both within and outside their immediate administrative location; and
• Some fiscal safeguards in settings where political pressures might otherwise overwhelm constraints on hiring or remuneration.

There are also sector-specific reasons—particularly in education and health—for maintaining certain personnel management responsibilities outside the administrative unit where staff are located. For example, there is a need to follow a common set of professional standards in curriculum design and public health. Arguably, this goal can be achieved most readily by creating overarching staff groupings that share common interests and provide a single career path.

Notwithstanding these caveats, the ongoing challenge of decentralization is to shift the employer function gradually to coincide with the new levels of functional responsibility—to create, in effect, the equivalent of a District Service whether a body is formally established under that name or not. A District Service would constitute a group of personnel clearly employed by the districts.[xix] Being fully the employer in such a situation makes a government responsible for:

• Budget Control
• Establishment Control
• Recruitment
• Career Management
• Performance Management
• Pay Policy.

Progress to date in shifting the employer functions to district governments has been decidedly mixed. The federal government clearly remains the employer of the DMG and Audit and Accounts Group staff posted to the districts. Meanwhile, senior staff of the districts —Executive District Officers (EDOs) and others at or above BPS-16, or BPS-18 in Punjab—remain subject to the province or the federal government for appointment, promotion and transfer (APT) decisions.

The result is confused and competing lines of control. For instance, while the DCO reports to the district nazim, he or she remains part of a federal employee cadre for which promotions and transfers are determined by authorities outside of the district, undermining the reporting relationship to the district nazim. DCOs have been transferred frequently, and while nazimeen may request the transfer of a DCO they disapprove of, they cannot prevent an adverse transfer.

While the districts clearly became the employers of the former rural district council employees, the vast majority of district staff are from former provincial cadres. This group includes teachers and health-service providers over whom lines of control clash. Particularly in relation to APT authorities, these staff find themselves effectively managed by the province.

The six features of the employer function are described below provides a summary of the extent of devolution of the employer function in each province. Overall, as can be seen, local governments have little de facto employment authority over staff located in their areas.

Recruitment authority includes the ability to select and appoint staff and oversight over merit. Selection and appointment responsibilities have been devolved to districts but with significant limits—most notably, a prohibition on recruitment presently imposed by each province. Thus, even if local governments have vacant posts and local revenues to cover the salaries, the recruitment ban undercuts their ability to develop their own human resources complement. These bans have recently been relaxed, but the districts may only hire certain groups of employees and only on a contract basis.

Normally, the federal and provincial governments carry out hiring at specified intervals through their respective Public Service Commissions. The hiring of administrative staff and officers on contracts by the district government is a significant departure from this tradition. Contract hiring has been commonly practiced in the Health and Education sectors for teachers, medical staff and paramedics. Though it is becoming more common among the provinces, no clear rules or policy support this practice. One notable exception is NWFP, where a contract policy was introduced in October 2002. Under it, BS 1–10 contract appointments would be made on the recommendations of Departmental Selection Committee (DSC) while BS 11–15 contract appointments would be made on the recommendations of Provincial Public Service Commission (PPSC). Contract appointments in BS 16 and above are to be made through the PPSC. Thus oversight of merit rests in part with the districts and in part with the PPSC. In Sindh the oversight of merit remained, with the PPSC for staff above grade 11 until the Cabinet very recently removed BS 11–16 from the purview of the commission.[xx] Similarly, in Balochistan a recent notification of the provincial government, dated March 26, 2003, removed appointments in BS 11–16 from the purview of the Balochistan Public Service Commission.

In the absence of a clear policy, confusion exists as to the powers of district governments to hire essential staff on contract. For example, in Khairpur, the provincial finance department has reportedly given authority (not yet been carried out) to hire a DO Finance and EDO F&P on contract, but it is not clear who has this authority and how it will be exercised. However, in the same district, the Health department was able to hire a large number of doctors, in excess of the number of advertised vacancies.

Contract policies are also being gradually introduced in the other provinces, such as Punjab. The Government of Punjab’s policy lays down certain parameters and guidelines to ensure uniform criteria for such appointments. The selection committees constituted at the district level for processing recruitment on a regular basis have been entrusted with the task of making these contract appointments. In Faisalabad, the hiring of doctors and teachers was proudly considered to be a strong display of district autonomy and authority. In accordance with the provincial government’s policy, a district recruitment committee has filled many previously vacant positions in the BHUs through the appointment of more than 100 doctors on contract basis in various health facilities. Similarly, surgeons and child specialists have also been recruited on contract. These facility-specific contracts appear to carry slightly better salary and emolument packages than those of regular employees. However, they can be usually terminated on three months’ notice.

The government selecting and appointing staff is likely to be recognized legally before the courts as the employer, but that status is not certain.[xxi] For government employees who may wish to contest an employment action in the courts, the legal definition of the employer is critical. It is not clear whether employees formally transferred to the districts will bring legal action against the province or district government to contest a perceived injustice concerning their employment.

Career management includes the authority to offer promotions and make transfers among local government posts. The formal rules governing transfer authorities vary somewhat by province and by sector. APT authority in Punjab rests with the DOs and DCO up to grade 18, and with the district nazim for grade 19 (except for the transfer of EDOs and DOs). In Sindh APT authority rests with the DCO in consultation with the nazim up to grade 17. In NWFP district officers control APT authority up to grade 15 staff, while the provincial governments are authorized to make APT decisions for all higher grades. Balochistan has so far not produced APT rules for the districts. However, in practice, provincial officials in all four provinces frequently exercise APT authority

The disjuncture between the geographic location of senior staff and the location of their superiors making APT decisions creates competing lines of control. The 10–12 EDOs responsible for sectors such as education, health and literacy—report formally to the DCO and not to provincial line ministries in the former divisional-provincial hierarchy. However, as their promotion and transfers are determined at the provincial level, they too are unlikely to regard the district management structures as paramount. The threat of an unpleasant transfer or the promise of an attractive one can pressure the senior staff member to arrange the transfer of a junior employee, below grade 16. Enforced inter-district transfers for provincial cadres posted to the tehsils are also a significant problem.

Thus, despite various bans on transfers and postings issued by the provinces, transfers often are initiated by the provincial government exerting influence upon senior district officials.[xxii] External pressure is coming from at least two directions: provincial headquarters and elected representatives (MNA, MPA). The transfers of district staff tend to be most frequent in areas where there is some political conflict between the district and provincial governments. So long as provincial and federal cadres retain positions in local governments, some minimum time should be placed on their tenure. Without this, the temptation to use transfers as a covert policy instrument is overwhelming.

The role of the nazim acting as employer for the DCO is particularly complex. The relationship between the two officeholders is key to the smooth functioning of the local government and is meant to be balanced and two-sided. On the one hand, the DCO should, as per the LGO, be accountable to the nazim. On the other, and appropriately for a senior public servant, the DCO must be able to express independent views in order to provide professional, impartial advice to the nazim and council (“speaking truth unto power”). In many cases, as the previous section noted, the DCO is not performing this key role and has become de facto a political player, either acting at the behest of the province against the district nazim or as an agent in furthering the nazim’s political control over the district. These difficulties are of course not peculiar to devolution but reflect prevailing norms regulating politician-civil servant dealings at all levels of government in Pakistan.

It was generally observed that the authority of the nazim to write the ACRs of DCOs was an insufficient mechanism for enforcing accountability since it was an ineffective tool for measuring the performance of an officer and tended to be viewed as a routine matter to be placed on an officer’s file at the time of promotion in fulfilling a legal or administrative requirement. Officers tended to be given postings regardless of their performance in previous tenures.

District nazimeen must have a working relationship with the DCO that enables the nazim to drive policy, while being appropriately challenged on due process. In practice, there are few DCOs providing robust, technically informed and professional advice to nazimeen during the planning and budgeting process. Although DCOs can be supportive to nazimeen who are in a secure political relation with the province, where nazimeen are not well aligned politically with province interests DCOs can also be hostile, supporting conflicting provincial interests. The relationship between nazim and DCO is therefore key. Strong differences between these two players can lead to administrative paralysis and divided loyalties for staff.

There are two principal reasons why DCOs might and do seek to bypass the nazim. First, they can themselves face some challenges in imposing authority over other senior district staff. Pre-devolution, the office of Deputy Commissioner (DC) held the pivotal position at the district level, but other line departments were not answerable to the DC with respect to their annual development plans, budgets, or personnel issues. With the advent of devolution, the office of DCO has assumed a much larger and more formal role vis-à-vis the other groups of offices in a district. However, provincial departments can and do choose to disregard the new arrangements, and many instances were reported where the provincial government had sent instructions directly to EDOs, particularly education, instead of following the proper procedure. To counter this, DCOs use their informal contacts in the province to enforce authority.

Second, as members of federal or provincial cadres, DCOs consider, correctly, that the province rather than by the nazim will determine their career advancement. DCOs can feel that their position as a federal or provincial employee in a district is now a less powerful office. Senior officers at grade 19 serving in the districts note that their juniors are now serving the provincial government as Secretaries while they are serving as DCOs in places where they might have held more powerful positions more than a decade ago.

The ACR system is unlikely to provide a particularly strong mechanism for ensuring that the DCO retains some incentive to serve the interests of the nazim as these officers remain part of the federal employee cadre and so the ability of the nazim to make a credible threat to transfer the DCO is completely a function of the informal relationship between him or her and the province.

Nazimeen also have very little authority over the District Police Officer. Formally, only in Punjab has the district nazim been given the initiating authority for the ACR of the DPO, although in practice in none of the districts studied were these performance evaluation reports completed.[xxiii] Some nazimeen, in fact, considered that removing the authority of the former district magistrate in completing the ACR of a former district Superintendent of Police has contributed to deterioration in law and order in general.

Although local governments suffer from innumerable problems, many of which are serious, perhaps the biggest problem at present is that, except for Punjab, they lack public representation. Elections to local bodies will not solve all of the problems faced by this institution; nevertheless the process of participation and representation at this tier of government is probably a minimum condition to improve performance and capability. Although democracy in Pakistan at the provincial and national level has been wrought with glaring inconsistencies and shortcomings, an uninterrupted process of participation at all levels of government may, given time, initiate a process which improves the quality of participation and representation and hence, of governance it self.

Hence, the minimum condition for the improvement of government and governance is that elections be held at regular intervals at all levels of government. While provincial government can continue to work with the lowest tier of government, unless a substantial degree of importance is granted to local government, it will remain subservient to the provinces and constrained, if not downright ineffective. Therefore further amendments are needed, in the light of Article 140-A of the Constitution for a definitive independence of the local governments from provincial governments, granting the former greater autonomy from the latter.

Also, greater provincial autonomy will be a positive constitutional step at this stage and can act as a precursor to greater local government autonomy. Once the two main measures are undertaken – elections and greater autonomy – other changes can and will be instituted at the local level as and when needed by the appropriate authorities. Taxation proposals, administrative reform, employment issues, etc., can all be considered afresh by each respective council once it has the power and authority to do so. This will especially be true for the larger metropolitan and municipal councils with a larger resource base.

The role of the provincial government, while diminished, will continue to be of importance, especially in terms of provincial level coordination and in assisting a large number of smaller rural and urban councils, which despite the necessary changes, would require considerable assistance from higher tiers of government. Pakistan is amongst those countries where local government has become ineffective and largely inoperative. Its main purpose has been reduced to providing employment to a handful of individuals and looking after a few basic services, like street lighting, cleaning and perhaps water provision. Local government has neither the funds nor the technical expertise or possibly even the motivation to do anything worthwhile. Development projects and the running of schools and health institutions are out of the reach of even the more well to do and large metropolitan councils. To a large extent, local governments are not responsible for their predicament. Other institutions and individuals at higher levels of government are probably most responsible for the dire states in which local government finds itself. Reform of local government must begin with reform of the highest tiers of the state government. The Constitution, The powers of the Federal Government and the Provincial Governments require review and reforms in order to improve their functioning. This is the pre-requisite for any significant improvement at the local level[xxiv].

What gives weight to the Local Governance adopted by the present government, is the incorporation of Article 140-A to the Constitution, is the umbrella of protection provided to local governance, a welcome departure, from the past, an effort to cut the chain of conventional understanding of local bodies system. For the first time the Constitution of Pakistan may be moving in right direction basing its roots in an important and pivotal role player in the institutes of democracy. The decentralization which came about less than three years ago needs tender nourishment, and in due course the most ignored section of the society i.e. the middle class may now be seen actively involved in this participatory democratic institute. Notwithstanding, the flaws, which have appeared in the smooth running of this nascent institution; and which in fact, are constructive, for they show a live system, and the conflicts arising between the tiers should not be pre-judged on individual level, or castigation of political machinery. If the system was aptly applied, this is the natural sequence to that, for in it we see the conventional forces threatened. And at the very minimum, power structure of feudalism and fundamentalist clergy, would be in disarray, the middle class specially the mass of liberal sections of the society are now under moral obligations to counter those forces which did not allow democratization to take roots for the development of a civil society in Pakistan.

The three tiers of modern democracy, appear to have been completed, how so ever, we at this moment have to understand that more important than any other issue is the development of Democratic Institutions.

Local Governance is that measure of good governance, which forms the yardstick to determine the decentralization of powers from the Centre. It is a worthy effort, maybe a step toward acceptance of the “rights”, the pre-requisite of a stable and harmonious society, voluntarily submitting to the “rule of law”, in the absence of which, there neither can be there be good governance, nor the establishment of democracy simply because democracy and good governance are the core of a civil society and the elements and structure of these three pillars, essentially and inherently survives only in the medium of the rule of law. The change would of course take long moments; notwithsatnding, we cannot afford a skeptical or cynical approach on the issue. Local Governance may just be the harbinger of democracy. For a balanced and healthy democracy, the relative tension between the institutes any particapatory democracy is necessary, and Local Governance may just  may prove to be the catalyst for that.

[i] H. L.A. Hart: The Concept of Law, Second Edition; CLARENDON LAW SERIES

[ii] PAKISTAN IN THE EIGHTIES Law & Constitution, Edited by Wolfgang peter Zingel and Stephanie Zingel Ave Lallemant; pp213

[iii] Id. pp 210

[iv] H.L.A. Hart: Concept of Law; 2^nd Ed. CLARENDON LAW SERIES; p. 193.

[v] PLD 1958 SC (Pak.) 353

[vi] John Austin: Essays on the Province of Jurisprudence

[vii] Basic Democracies Order, 1959

[viii] Id.

[ix] Law and Principles of Basic Democracies, pp 90-91: Masood ul Hasan; Pakistan Social Services Foundation, Second Edition, 1963.

[x] PROCLAMATION, 7^th October, 1958.

[xi] http://workmall.com/wfb2001/pakistan/pakistan_history_basic_democracies.html

[xii] Councilors must be at least age 25, be a Pakistani citizen residing in the relevant ward, of good Muslim character (except for non-Muslims), and must not have been convicted of various crimes, nor be an employee of federal, provincial or local governments. Nazimeen and naib nazimeen must have at least a matriculation or secondary school certificate.

[xiii] http://www.worldbank.org

[xiv] In a district where the population of the minorities is in excess of 10 percent of the total population, some seats are reserved for minority communities. There are direct elections for these seats for which only the minorities will be eligible to vote, and the whole of the district will be the constituency.

[xv] The majority of nazimeen are experienced politicians from established political families. According to one media survey, 30 percent of district nazimeen in Punjab were former MNAs or MPAs, and approximately 90 percent belonged to established political families (The Herald, August 2001). Some of these nazimeen later resigned from local government in order to contest provincial or federal assembly seats.

[xvi] The term of office was changed from three years through an amendment in 2002.

[xvii] The NRB Guidelines specify that at the Union level monitoring committees will be established in at least the following areas: Municipal Services, Finance, Public Safety, Health, Education, Literacy, and Works and Services. Tehsil monitoring committees will be established for Municipal Regulation, Infrastructure and Services, Planning, and Finance; and District monitoring committees will be established for each “group of offices or for each individual office within the group of offices.”

[xviii] The guidelines specify that “in kind” contributions by CCBs will be considered as an addition to the 20 percent cash requirement and not a replacement and will be taken into consideration in the ranking and evaluation of the project proposal.

[xix] The NRB continues to discuss the possibility of creating a formal District Service, but no decision has been taken yet.

[xx] The Sindh Local Government Ordinance does not specifically mention the PPSC, raising the possibility that the districts will be able to mount a legal challenge to PPSC oversight of recruitment for their staff.

[xxi] The district generally is recognized as the employer for health and education staff. In NWFP district cadres were formally created for these staff on January 15, 2002, and March 15, 2002, respectively. Gazetted Notifications SOR.I(E&AD)1-218/2001 and SOR.II(E&AD)1(20)98.V.III.

[xxii] It is reported that in the 14 April 2004 decision, powers of postings and transfers of DPOs have been vested in the provincial Chief Minister who will appoint on the basis of a list prepared by the Province Police Officer. This potentially will further exacerbate these tensions.

[xxiii] The 14 April 2004 meeting reportedly reaffirmed the nazim’s responsibility to initiate the DPO’s ACR in respect of law and order in all the four provinces. Police rules have not yet been prepared.

[xxiv] http://www.unescap.org/huset/lgstudy/country/pakistan/pakistan.html

In 2004 the parliament took on an exercise to curb “Honour killings” through a Criminal Law (Amendment) Bill.

The statement and objects quoted here, was the first ever official acceptance of such barbarism patent in the cultural bathos: “issue of Honour-killing and other Honour crimes committed in the name of ‘Karo Kari, Siyah-Kari and similar other customs has always been a matter of concern of human rights organizations and the public which has assumed more significance in the recent years”.

The Criminal Law Amendment Act, 2004 which proposed amendments of the Pakistan Penal Code 1860 enhanced punishment for the offence of murders carried out in the name of Honour. Interestingly, the term ‘Honour killing‘ which was replaced with ‘Honour crime‘, was presumably word play to tone down the offences, and their gravity to make the “law” mild and acceptable to the shareholders of the society.

Under the amended Section 299, Act XLV of 1860 PPC, ‘Honour crime’ meant an offence committed in the name of ‘Ghairat’ or Honour or for “vindication of Ghairat or Honour and includes Honour killing and the offence committed on the pretext of ‘Karo Kari’, ‘Siyah Kari’ or similar other customs”. In clause ‘m’ it sought to add at the end the words ‘other than the person who has murdered the victim’.

Under the amended section 302, Act XLV of 1860, Honour crimes carried a maximum imprisonment of 25 years and not less than 10 years for the offence. The amended Sections 310 and 331 of the PPC prohibited giving a girl in marriage as ‘badla-i-sullah‘ and any offence under these sections carried maximum punishment of 14 years imprisonment and a minimum of not less than seven years of imprisonment.

Amendment to section 324 sought to include the hurting of a victim as an Honour crime. Similarly ‘Ta’zir’ was not to be less than one-third of the maximum imprisonment provided for the hurt caused and shall not be less than half of such imprisonment term if the hurt caused relates to Honour crime.

An amendment to section 56B envisaged that no police officer below the rank of Superintendent of Police shall investigate the case of a woman accused of the offence of adultery.

The Criminal Law (Amendment) Bill 2004 was passed purportedly against ‘Honour killings’, however, it shied away from addressing the critical issue at stake; that of the officially permitted waiver or compounding of the offence (Qisas and Diyat Ordinance) whereby, the perpetrators were given the advantage of seeking forgiveness from the heir of the victim. Qisas and Diyat law, now part of the Pakistan Penal Code, and covering all offences against the human body, (the original sections having been repealed and substituted). It made such offenses compoundable (open to compromise as a private matter between two parties) by providing remedies legitimized through what is fallaciously dubbed as Hudood Laws. Qisas (retribution) or Diyat (blood-money). The heirs of the victim may forgive the murderer in the name of God without receiving any compensation or Diyat (Section 309), or compromise after receiving Diyat (Section 310).

The Supreme Court of Pakistan through various judgments has time and again reiterated that “Neither the law of the land nor religion permits so-called ‘Honour’ killings and it amounts to intentional murder (‘qatl-i-amd‘)” noting that “such iniquitous and vile” acts violate the fundamental rights as enshrined in Article 9 of the Pakistan Constitution which provides that no person shall be deprived of life or liberty except in accordance with law”. Article 8 of the Constitution of Pakistan provides that “Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter (Fundamental Rights), shall, to the extent of such inconsistency, be void”. The failure to uphold the right to life guaranteed under the Constitution is at the heart of the crisis, not the lack of provisions in the Pakistan Penal Code to combat Honour killings. Measures are needed to amend the Law to ensure that State re-allocates to its self the responsibility for registering, investigating and prosecuting the accused of Honour killings without any scope for waiver or compounding under the Qisas and Diyat law, cosmetic gesture through word play hardly touch the nerve, much less alter the situation of the weak.

Whatever little may have been achieved through that Bill, was nullified ab initio by the well entrenched Qisas and Diyat Law.

Two years hence, on 20th December 2006 a new statute titled “Protection of Women (Criminal Laws Amendment) Act, 2006″ came into force in Pakistan.

(This is a prelude to the main article. The relevant laws have been placed for facilitation purposes to the readers.)

Mohammad Haleem was born in Lucknow in 1925, the youngest son of Barrister Mohammad Wasim in the household of Dalibagh. His family was already well established in the legal profession. His grandfather, Moulvi Mohammad Nasim had started his practice in 1890 and according to Sir Francis Robinson in his book “Separatism in the Indian Muslims of UP,” he had become the leader of the Awadh Bar within the first four years of his practice. By 1917 Barrister Mohammad Wasim had also consolidated his position in the bar to the extent that in most Taluqqedari cases being presented before the bench the father and son were asked to represent opposing sides. The problem eventually became so severe that Moulvi Mohammad Nasim chose to retire from the profession in favour of his son.

In the 1940s, the family had also become closely involved in the fledgling political movement for Pakistan, which was being spearheaded by the All-India Muslim League. From 1942 to 1946, Barrister Wasim held the office of Advocate General of the UP Province. During his tenure, at the request of Mohammad Ali Jinnah, he represented East Pakistan in the Boundary Commission headed by Lord Radcliffe. Thereafter he resigned from his post in the UP government and on the creation of Pakistan, opted to migrate and take up the virgin office of Advocate general of Pakistan.

By 1946, Barrister Wasim’s eldest son, Barrister Shameem had already completed his Baccalaureate of Civil Laws from Oxford University and had returned to India after being called to the Bar in Lincoln’s Inn. After his return he found himself to be more inclined towards academics and took up a post at Lucknow University. In the same year Mohammad Haleem also graduated from the same university.

Mohammad Haleem initially chose not to follow his Brother and his Father in the legal profession, instead enlisting as a reservist in the Pakistan Navy along with this elder brother the Late Commander Faheem. Mohammad Haleem was posted on the HMPNS Tariq.

However, following the untimely demise of his father, at his mother’s desire he resigned from the Armed Forces and returned to his ancestral profession of law. By 1963, Mohammad Haleem was appointed Assistant Advocate General, West Pakistan, High Court Bench. Shortly thereafter, he lost his eldest brother Barrister Shameem at the relatively young age of 56.

In the Bar and throughout his life, Mohammad Haleem was a uniquely apolitical personality. He was fond of recalling to memory the one occasion on which he had shown some flexibility in this otherwise iron-clad policy. When one of his closest friends the Late Sharaf Faridi literally dragged him by the hand to cast his vote in his favour in a certain Bar Election claiming “every vote counts.”

During his legal career as an Advocate, Mohammad Haleem was known for his boundless respect for the institution of the courts. Such was his deference that he took to wearing rubber-soled shoes in the halls of the High Court so as not to disturb the silence in those hallowed halls.

However, Mohammad Haleem’s true calling was recognised by the Late Justice Hammud-ur-Rehman who in 1969, recommended him for elevation to the Karachi Bench. Such was his standing at the time, that contrary to the general rule, Field Marshal Ayub Khan declined to interview him before the appointment as he deemed it unnecessary. This friendship continued throughout their lives, and Justice Haleem drew much inspiration from his mentor Justice Rehman.

By 1974, the young Justice Haleem had begun to act as an ad hoc judge of the Supreme Court and within three years he was elevated to the Superior bench by the Late Justice Yaqub Ali, the then Chief Justice of Pakistan. Shortly after his elevation, the March 1977 elections were held. Not only the political but also the judicial structure of Pakistan began to take a very heavy toll. In 1978, Justice Molvi Mushtaq presided over the murder case against Late Zulfiqar Ali Bhutto, at the Lahore High Court, through such proceedings which still remain a ‘black’ exception in Pakistan’s judicial history. The political atmosphere at the time was incredibly volatile and he came under intense political pressure to vote in favour of the establishment. However, Justice Haleem was as uncompromising as always, and refused to bow down, giving a dissenting judgement along with the Late Justice Dorab Patel and the Late Justice Ghulam Safdar Shah refusing to accept the paltry evidence presented before the court. In the appeal filed by the late Prime Minister Zulfiqar Ali Bhutto, Justice Haleem concurred with judgment delivered by Justice Ghulam Safdar Shah, besides his own note of dissent.

However, his bipartisanship and integrity were so respected by the same establishment, that the very same government appointed him as the Chief Justice of Pakistan on March 25th, 1981, after the promulgation of PCO1. During his tenure, he presided over several notable judgment including, the case of the late Yahya Bakhtiyar and the case of Fauji Foundation. In 1988, under the government of Zia-ul-Haq he along with the full court, heard the case of Benazir Bhutto vs. The Federation of Pakistan. The unanimous judgment with concurring notes by all judges was delivered following the dismissal of Mohammad Khan Junejo’s government and the seizure of power by General Zia-Ul-Haq. In this it attained a unique significance in the legal and political history of Pakistan in that it upheld the right of the people to maintain a consolidated political structure as was envisioned in the Political Parties Act 1962.

His judgment read: “…The liberties if purposefully defined, will serve to guarantee genuine feeling, freedom not only from the arbitrary restraint of authority, but also freedom from want, from poverty, and destitution, and from ignorance and illiteracy…” According to Justice Haleem, this approach was in tune with the era of progress and was meant to establish that the Constitution is not merely shackled to the past but also open to the unfolding of the future. To him, the law of the land was an organic and evolutionary entity. It would thus be futile to insist on ceremonious interpretative approach which only served to limit the controversies between the State and the Individual without extending the benefits of the liberties and the principles of policy provided in the Constitution to all segments of the population.

The case, also gave a new interpretation to Article 17 of the Constitution where it was held that the political party is by nature an aggregate of the citizens composing the party, and can thus exercise any rights guaranteed under the Constitution to the individual. Furthermore, it was in this same case, the Justice Haleem laid the foundations of Public Interest Litigation for the first time in Pakistan. Under his interpretation the restrictions as otherwise placed on moving a court for the enforcement of fundamental rights were relaxed. The right to seek legal redress on the basis of fundamental rights was extended to all citizens. As observed by Justice Haleem: “Why cannot a person acting bona fide, activate a court for the enforcement of fundamental rights of a group or a class of persons who are unable to seek relief from the court for several reasons.” This is what public interest litigation or class action seeks to achieve as it goes further to relax the rule on Locus Standi. This is the original and definitive judgement on the basis of which, public interest litigation was made available to the common man, and the discriminated classes.

In his capacity as Chief Justice, Mohammad Haleem was known for his egalitarian stance towards the judiciary. He considered himself equal to any other judge; the only difference in his eyes was that he was also carrying out an administrative function. It was his conviction that every judge had an equal right to hear, deliberate, and give his opinion in every case which involved issues of public importance. Thus we find that throughout his tenure, all the major cases were heard not by a full bench, by a full court.

His term finally came to an end on the 31st of December 1989, but Justice Haleem chose to take leave ten days before his retirement and abandoned all official standards, protocols, and emblems calling himself a free man once again. Though he still held the post of Chairman of the Islamic Ideology Council, for another three years he preferred to live a modest and private life in Karachi. He dedicated the remainder of his life to his family, his religion, and his wife, Uzma Haleem, whom he had doted upon through out . In the twilight of his life, Justice Haleem shunned the public eye and once again discovered his childhood love for botany. He would draw endless joy from the smallest and most beautiful of God’s creations, the flowers he cultivated in his garden, and the birds he would skilfully attract there. He was a man of great ability and great humility. He was one of the last of a dying breed: a truly noble man.

His last public appearance was in early 2006 when he on the request of the present Chief Justice of Pakistan, Justice Chaudhry Mohammad Iftikhar and his colleague judges, went to Lahore to attend, the judicial conference celebrating the Golden Jubilee of the Supreme Court in spite of his illness which had already begun to take its toll. On the 11th of August, 2006, Justice Haleem quietly departed to his heavenly abode as gracefully as he had lived his life.