COURT AS THE GUARDIAN OF THE CONSTITUTION

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

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 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

The message of Mohtharma Shaheed Benazir Bhutto on the demise of Justice Haleem

This message of condolence was given by Bibi Shaheed on the sad demise of Justice Mohammad Haleem. The author acknowledges pppusa.org for this excerpt from its news archives.

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.

THE DEVELOPMENT OF DEEP SEA RESOURCES

This paper is the second in the series of papers read by Justice Haleem during his tenure as Chief Justice of Pakistan, at the Twelfth Conference of the World Peace Through Law Center, West Berlin, Federal Republic of Germany, July 21-26, 1985

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

The first in the series of the papers presented by Justice Haleem, between 1981-1989
presented at the Judicial Colloquium held under the auspices of the Commonwealth Secretariat, London, at Bangalore, India, February 24-26, 1988

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: excerpts from Halide Edib’s ‘Inside India’

This is an excerpt from Halide Edib’s book Inside India. Dalli Bagh was the house where Justice Haleem was born on Ist January 1925. This incidentally was also the home of Barrister Mohammad Wasim, where Lucknow showered its hospitality on Helide Edib during her stay in India, while she was living in self exile, after Kemal Atatturk’s purge.

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.