..::Recent Developements in Criminal Laws in Pakistan

very informative blog.The area of Criminal Investigations requires deeper scrutiny, specially the lack of capacity, non-utilization of forensics, political interventions, deep rooted corruption etc.


The constitution of Pakistan as originally framed provided by clause (3) of Article 175 that the Judiciary shall be separated progressively from the executive within three years from the commencing day. The commending day was defined in clause (2) of Article 265 14th day of August, 1973. By various constitutional amendments the period of three years was extended to fourteen years and even the constitutionally prescribed fourteen years expired on the 14th of August, 1987. During this period of fourteen years, no progressive step was taken, not to my knowledge, for achieving this constitutional mandate. The most unfortunate part is that even after over a year of the expiry of the prescribed period, as much un-awareness and unconcern is being shown as during the preparatory period. Now the citizens of the country are invoking and have invoked the constitutional jurisdiction of the High Court for getting from the Government this…

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Late Justice Haleem always held Justice P.N. Bhagwati, Justice Chandrachud, and Justice Pathak of India, in highest respect. He considered Justice Bhagwati  along with Justice Humood ur Rehman as his mentors. He often confided to his unworthy son, the author this blog, which remains alive only in his fond memory, that the first ever judgment which opened the  gates of Public Interest Litigation in 1988 (Benazir Bhutto v The Federation of Pakistan and others, was in many ways a gift from Justice P.N. Bhagwati and his colleagues so far social justice was concerned.

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


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 10th 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 22nd, 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 22nd, 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 44th Amendment 1978 only eased the rigours of the 42nd 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 22nd, 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 2nd, 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 24th 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 22nd, 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 22nd, 1986

2- Ibid