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

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

Mohtarma Bhutto pays tributes to late Justice Haleem

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

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

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

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

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

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

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

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

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

THE DEVELOPMENT OF DEEP SEA RESOURCES

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

INTRODUCTION

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

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

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

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

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

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

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

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

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

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

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

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

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

THE DOMESTIC APPLICATION OF INTERNATIONAL HUMAN RIGHTS NORMS

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

THE DOMESTIC APPLICATION OF INTERNATIONAL HUMAN RIGHTS NORMS:

Significance of Human Rights:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

INTERNATIONALIZATION OF HUMAN RIGHTS:

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

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

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

THE UN CHARTER:

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

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

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

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

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

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS:

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

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

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

THE UN COMMISSION ON HUMAN RIGHTS:

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

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

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

HUMAN RIGHTS TREATIES AND CONVENTIONS:

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

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

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

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

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

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

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

THE EUROPEAN SYSTEM:

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

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

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

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

THE AFRICAN SYSTEM:

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

THE INTER-AMERICAN SYSTEM:

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

IMPLEMENTATION OF HUMAN RIGHTS NORMS:

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

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

HUMAN RIGHTS JUS COGENS:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lucknow: excerpts from Halide Edib’s ‘Inside India’

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

Lucknow

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Working Papers of Justice Haleem

Wikepedia lists 15 papers written by Justice Haleem, which he presented in different fora where he represented Pakistan . I will be placing all these in the near future, for all who may be interested in retrieving any information of interest. One of his hall mark works was in collaberation with his contemporary, the Chief Justice of Israel, in an international moot court proceedings in Berlin, Germany, 1985. These are not available with me, and I apologize for not posting these.

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

Justice Haleem

The edited version of this article was first published in daily “THE STAR”, a publication of the DAWN Group in August 2006.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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