ADDRESS

OF

THE HON’BLE CHIEF JUSTICE OF MR. JUSTICE TASSADUQ HUSSAIN JILLANI

TO

THE VISITING OFFICERS OF PAF AIR WAR COLLEGE, FAISAL,

ISLAMABAD ON 13th MARCH 2014

Commandant, PAF Air War College, Faisal, Karachi; Faculty Members; Course Participants;

Assalam-o-Alaikum!

It’s my pleasure and privilege to address the faculty and course participants of the PAF Air War College, Karachi. The Air War College is a premier training institution of defence forces in Pakistan. It is heartening to know that the College imparts training not just to local officers but also to the officers from several other friendly countries including Bahrain, , , , , , , , Oman, , , , UAE etc. has earned great name and fame among the comity of nations as a professional body. Professionalism and focus on its preparation for war in the time of peace and maintaining highest standards of training are hallmark of its traditions. Gentlemen! Constitution of any country being, the supreme law of the land, is a document which has a special sanctity and significance. It sets out the framework and principal functions of the different organs of the state. It also defines the principles which govern the operations of those organs of

2 State. All the public functionaries derive their powers from this document. The Constitution of Pakistan represents a combination of Islamic as well as democratic thoughts. The Preamble reflects that the sovereignty over the entire universe belongs to Allah Almighty alone and the authority to be exercised by the people of Pakistan through its chosen representatives within the limits prescribed by Allah Almighty is a sacred trust. Our Constitution is federal in nature and provides for the dual system of governance at Federal as well as Provincial level. There are three main pillars of the State i.e Legislature, Executive and Judiciary. The Legislature enacts laws, the Executive implements and the Judiciary interprets the laws. To achieve the desired objectives all these three pillars have to function harmoniously and within the limits prescribed by the Constitution maintaining the balance of trichotomy of power. It is only then that the social, economic and political justice can be ensured in the country. There is no cavil with the proposition that for upholding rule of law and constitutionalism in the country, an independent judiciary is a sine qua non. The Constitution of Pakistan assigns the Supreme Court of Pakistan a unique responsibility of maintaining harmony and balance between the three pillars of the State. The Supreme Court of Pakistan is the apex of country’s judicial system and is the Court of ultimate jurisdiction. Just

3 below it are the High Courts and Subordinate Courts. Similarly, Administrative Tribunals and Special Courts have been established, both at provincial and federal level. The Supreme Court, established under the Constitution of 1956 is successor to the Federal Court set up in 1937, under the Government of India Act, 1935. Gentlemen! Let me trace and explain the post-independence history of constitutional and political developments in the country and the role played by the Supreme Court in reacting to or dealing with the crisis that emerged. Our homeland emerged as an independent State in 1947, governed under the Government of India Act, 1935, as modified by the Indian Independence Act, 1947. The Constituent Assembly was tasked to frame a new Constitution for the country. The process of constitution making which is an arduous and difficult task, was delayed, giving way to political instability and political crisis, resulting in the dissolution of the Assembly on 24th October, 1954 by the then Governor-General, Ghulam Muhammad. Tamizzuddin Khan, Speaker of the dissolved Assembly, challenged the action of Governor-General in the Chief Court of , which declared the action invalid but the Federal Government filed appeal in the Federal Court. The Court held that Section: 223-A of the Government of India Act, 1935, which empowered the Chief Court to issue writs was invalid, not having received the

4 assent of the Governor-General, an essential constitutional requirement. Thus, the writ issued by the Chief Court was recalled.1 Thereafter, the Governor-General promulgated Emergency Powers Ordinance, 1955 and gave himself the power to frame the Constitution, which was challenged before the Federal Court in the case of Yusif Patel. The Court struck down the Ordinance, by saying that the Governor General alone cannot validate an invalid law as he does not possess the power to grant validation. The Court observed that the validation of law tantamount to legislation, and you cannot validate what you cannot legislate upon. This ruling created a serious crisis in the country. The Constituent Assembly had ceased to function, having been dissolved and there was no legislature competent to validate the invalid laws. At this point of time the Governor-General made a Reference2 to the Federal Court for the opinion inter alia, whether the Governor-General could declare that all orders made or acts done under any provision of the law or the Constitution were valid and enforceable. It was held that the during the interim period the Governor-General had the power, under the common law of civil or state necessity, of retrospectively validating the laws listed in the Schedule to the Emergency Powers Ordinance, 1955. Thus, the Constituent Assembly was reconstituted,

1 PLD 1955 FC 240

2 PLD 1955 FC 435

5 which approved the draft Constitution. This was the 1956 Constitution, new Constitution which came into force on 23rd March, 1956. Notwithstanding the promulgation of the indigenous Constitution, political instability and conspiracies continued, leading to successive changes of Government. Fresh General Elections were also not held. On 7th October, 1958, President Iskander Mirza abrogated the Constitution and enforced martial law in the country and on 27th October, 1958, Chief of the Army Staff Field Marshal took over. The action was challenged in the Supreme Court in the case of State v. Dosso (PLD 1958 SC 533). On the basis of the theory of “revolutionary legality”, propounded by Hans Kelsen, the Court accorded legitimacy to the assumption of power by General Muhammad Ayub Khan. He then drafted a new Constitution which came into force in 1962. On 26th March, 1969, General Yahya Khan imposed Martial Law and assumed the office of Chief Martial Law Administrator. This time the Supreme Court in the case of Asma Jillani’s case (PLD 1972 SC 139), held that the doctrine of legal positivism, founded on Hans Kelsen’s theory and recognized in Dosso’s case was inapplicable. Thus, General Yahya Khan was termed as a usurper and all actions taken by him, except those for the welfare of the people, were declared to be illegal. The question arose if Yahya Khan was usurper then how many of his acts whether legislative or otherwise

6 should be condoned or maintained, in wider public interest notwithstanding their invalidity or illegality in the eyes of law. It was observed that the Court would not condone anything which seriously impaired the rights of the citizens, except in so far as they may be designed to advance the social welfare and national solidarity. You are well aware of the elections held in 1970, the separation of the Eastern Wing and emergence of Bangladesh. Zulfiqar Ali Butto became the Prime Minister and 1973 Constitution was approved by the Parliament and enforced. The Martial Law of 1977 was imposed by General Zia-ul-Haq, the Chief of Army Staff. In Nusrat Bhutto’s case (PLD 1977 SC 657) the Supreme Court although declared the imposition of Martial Law as valid on the doctrine of State necessity, but at the same time observed, inter alia, the necessity of law and order and normalcy in the country, and earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions in the country. On 12th October, 1999, Prime Minister Muhammad Nawaz Sharif was removed from his office by General Pervez Musharraf, the then Chief of Army Staff. Proclamation of Emergency was issued and the Constitution was held in abeyance and Provisional Constitution Order, 1999 was issued. The action was challenged in the case of Syed Zafar Ali Shah vs. Federation. The Court upheld the action on the basis

7 of doctrine of State necessity and the principle of salus populi suprema lex. On 3rd November, 2007, General Pervez Musharraf again proclaimed Emergency and held the Constitution in abeyance. The same day, the Supreme Court passed a restraining order, whereby the Executive was restrained from undertaking any action contrary to the independence of judiciary. Judges of the Supreme Court and the High Courts were also directed not to take oath under the PCO. The Supreme Court, in its judgment dated 31st July, 2009 (Sindh High Court Bar Association vs. Federation of Pakistan. PLD 2009 SC 879) declared the PCO to be in violation of the Constitution. This resulted in the laying off of more than hundred judges of superior courts, who had taken oath under the PCO. Earlier, members of the Bar and civil society carried out a long and arduous struggle for restoration of independent-minded judges and the supremacy of Constitution and the law in the country. The restoration movement became triumphant and ushered in a new era of adherence to constitutionalism, rule of law and judicial independence in the country. After restoration, the judiciary performed well, which embraced public confidence, in the administration of justice. Consequently, more and more cases are being instituted in Courts and people are coming to judiciary for the resolution of the disputes and redress of grievances. Gentlemen!

8 My reason for giving an exhaustive account of the successive crises, political instability and constitutional breakdown, and the role played by the Supreme Court in dealing with those situations, is to appraise you of the difficult path, the Court had to tread to minimize the duration of constitutional deviation or aberration, so as to restore the Constitutional as well as the democratic system of governance in the country. Every time the crises emerged, resulting in the abrogation or suspension of the constitution, the action came under challenge in the Supreme Court, and willy-nilly, the Court had to enter political arena and to give an authoritative pronouncement. Undoubtedly, the judgment varied, in keeping, with the peculiar facts of the cases and socio-political situation, prevalent at the relevant time. Thus even, when the Court grants validation for the action, it always put a rider, limiting and minimizing the period of constitutional deviation. It made earnest efforts to restore the Constitution, rule of law and bring back the system of democratic and parliamentary dispensation in the country. I trust that this saga is over and the era of crises, political instability is now behind us. The Court, in the aftermath of victorious Restoration Movement, embarked on the task of ensuring full and complete adherence to the norms of constitution, supremacy of law and maintenance of rule of law in the society. A unique jurisdiction conferred by the Constitution on the Supreme Court is the exercise of powers for deciding

9 cases of violation of fundamental rights of the citizen involving issues of public importance. The Court has never hesitated to use its powers for putting an end to the exercise of arbitrary authority by the Executive or passing illegal or discriminatory orders. It would be pertinent to mention here that the Human Rights Cell, established in this Court is operating under the said jurisdiction. Recently, keeping in view plight of the expatriate Pakistanis, who cannot pursue their legal matters in their homeland, a special wing in this Human Rights Cell has been established. Gentlemen! Before parting I may add that heavy responsibility of defending the country primarily lies on our valiant Armed Forces and in this endeavor, the nation is fully behind them. However, the morale of the people in this context is partly linked to the welfare of the people, good governance and the rule of law. The two concepts of good governance and rule of law are interrelated. Without fair and effective judiciary one can hardly imagine good governance. In the contemporary age, nations have collapsed not on account of foreign invasion but on account of mal-governance. There is a broad consensus that the core principles of good governance are (i) participation, (ii) fairness (iii) decency (iv) accountability (v) transparency and (vi) efficiency. These goals are achieved through functional institutions and it is the judiciary which ensures that each institution works within the parameters of

10 law. The manner in which the institutions function and justice is dispensed play a vital role in the economic development of a country. Upholding property rights, enforcing contracts between economic actors, checking abuses of government power are various facets of enforcement of the rule of law. The Armed Forces are an important institution under the Constitution of Islamic Republic of Pakistan. I trust they will continue to perform their sacred duty under the mandate of law and demonstrate the spirit worthy of their calling. At this moment, I am reminded of the message which the Founder of this country Quaid-i-Azam Muhammad Ali Jinnah gave while addressing the role of Air Force Officers at Risalpure. He said and I quote:-

“Aircraft and personnel in any numbers are of little use, unless there is a team spirit within the Air Force and strict sense of discipline prevails. I charge you to remember that only with discipline and self-reliance can the Royal Pakistan Air Force be worthy of Pakistan”.

THANK YOU VERY MUCH

11

References:

1. A brief history of Constitutional Developments in Pakistan by Justice (R) Munir Ahmad Mughal.

2. Constitutional Crisis and the Judiciary in Pakistan by Abrar Hasan.

3. The Constitutional history of Pakistan by Malik Muhammad Awais Khalid.

4. Constitutional history of Pakistan by Syed Mahmud-un- Nasir

12