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 province of Sindh as a case study on the prosecution service

Justice Nasir Aslam Zahid, Supreme Court of Pakistan (retired) & Professor Akmal Wasim, Hamdard University, Pakistan

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 These rules superseded the rules made earlier in 1923.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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

‘Low conviction rates?lt;/P>

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Footnote: Extract of a paper prepared for the Fourth Asian Human Rights Consultation on the Asian Charter of Rule of Law, on the theme of prosecution systems in Asia, held in Hong Kong from 17 to 21 November 2008.

Revival of Local Governance: Can it provide the moorings for a sustainable democracy in Pakistan.

This Article was written some time back in 2004. Some amendments have been adopted in the Local Governmental Laws. With the new elections in sight for 2007, the article is being posted without any changes. The issue for the common man in Pakistan, is how do we react to democracy, and the rule of law; and more important, what is our attitude in the face of rule of law? This article does not seek to answer either question, but limits itself to conflicts in the composition of Paksitan’s legal order and the evolving institution of self governance. In this backdrop it does provide another perspective from which the issue of democracy may looked at.

 

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

Constitution of Pakistan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

· 1 seat for minority communities.[xiv]

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

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

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

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

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

First, there is a group of external oversight bodies that provide some external check on performance and probity. In some of these bodies, such as the Monitoring Committees at the district, TMA, and union level, citizens are able to influence the performance of service providers through their elected representatives, who comprise the committees. Guidelines exist for the establishment of monitoring committees to identify problems at the service facility level and bring them to the attention of the respective council and the concerned EDOs (National Reconstruction Bureau 2001b). Such committees are to consist of at least three council members elected for a period of three years, with a third of the members of each committee from among the reserved seats for women, peasants, workers, and minorities. The union committees are responsible for monitoring the functions of all offices of the local government (district, tehsil, and union) that are responsible for the delivery of services within the union, while the tehsil and district committees oversee offices in their respective governments.[xvii]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

[iii] Id. pp 210

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

[v] PLD 1958 SC (Pak.) 353

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

[vii] Basic Democracies Order, 1959

[viii] Id.

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

[x] PROCLAMATION, 7th October, 1958.

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

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

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

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

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

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

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

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

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

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

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

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

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

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