Mr. Chief Justice, Honourable Judges, Excellencies, Distinguished Guests, Ladies and Gentlemen :
Today when we commemorate the historic proclamation made in Lahore thirty-six years ago, it is most propitious for beginning the construction of a permanent building for the highest court of the land. The occasion harmonizes with the day.
I must stress at the very outset that the harmony is not merely symbolical. There are points of substance involved which carry great import for our national existence.
The first is the point raised by the Chief Justice in his speech. The Supreme Court was housed in a borrowed wing of the Lahore High Court for twenty-five years and then transferred to an improvised rest house. I might add, however, that in this phenomenon of makeshift arrangements for institutions that are organic to the nation's life, the Supreme Court found itself in good company. Until today, the Head of State is living in temporary accommodation. The Parliament is also housed in a borrowed building, somewhat better than a rest house, though some of its often absent members are prone to treat it more like a rest house than as a place of duty.
Permanence of National Institutions
Let me repeat here what I said when I had the honour of laying the foundation-stone of the Parliament building. My Government seeks to wipe out all traces of that psychology which lent a precariousness, an impermanence, an insecurity to the visible embodiments of our national institutions. Previous governments seem to have unconsciously looked upon Pakistan as if it were a temporary sojourn for refugees in their exodus from one place and eventual movement towards another. What else explains their lackadaisical attitude towards the dispersal of the organs of the State all over the country and their failure to consolidate them physically? Our administration has been the first in the country to launch a series of measures in order to give the physical shape to government that is essential to its inner cohesion. The transfer of the Naval Headquarters and the planned move of the Air Headquarters to Islamabad, the progress on the construction of the President's House, the project of the Parliament building and finally the initiation of a building to house the Supreme Court— all these proclaim, louder than words, our determination not to be content with improvisations, with ramshackle structures and rickety arrangements for conducting the affairs of our State.
I do not suggest, ladies and gentlemen, that buildings per se make institutions. But they do reflect a people's concern and respect for these institutions. If the highest organs of the executive, the legislature and the judiciary are allowed to languish in premises unbecoming of their dignity and harmful to their efficiency, it only means that scant regard is shown for their flourishing in an enlightened and progressive polity. Such disregard arises either from ignorance, an uncertainty about the nation's future, or it reflects a cynicism about the institutions of the State. Nothing is a more impelling urge for this Government than to rub out such uncertainty and erase such complexes. We believe in the power of the people and this power expresses itself most creatively in institutions. We believe in the permanence of these institutions and we are resolved to devote all available means to their physical and moral consolidation.
Importance of the Rule of Law
The second point of fusion between the occasion and the day relates to the status of the judiciary. As the Founder of our State said repeatedly, we demanded and achieved Pakistan so that we become free to conduct our affairs according to our traditions and our genius. Separate and independent judiciary is a concept which was not grafted on our minds by our erstwhile rulers but is an integral part of our Islamic heritage. I, therefore, appreciate your statement, Mr. Chief Justice, that “Courts of Law not only act as arbiters between citizen and citizen and the citizen and the State but by the faithful performance of their functions and the rigid discharge of their duties, they lay the foundations of a just society”.
All societies, old or young, traditional or new-fangled, take shape and attain their height through the consolidation and the quality of their laws. Societies may sometimes be created by duress but they are changed into civilized and organized societies only by the formulation of laws and adherence to them. Law is the essence of civilization as well as its most durable element.
History bears witness to the fact that when the pomp and pageant of empires has vanished, when their conquests have proved brittle and their dominion withered, it is the law they gave that has lasted as an element of human civilization. Rome's legions spread far and wide but, though her Empire disappeared, her law still remains the basis of Western Jurisprudence. Not Caesar or Augustus or Octavius but the Roman jurists left an indelible mark on history. Coming to more modern times, was there ever a more scintillating conqueror than Napoleon, the founder of a vast empire, the builder of cities and palaces and treasure houses, the creator of kingdoms? While all that abundance which attended his career proved ephemeral, it is the Napoleonic Code which has been his permanent gift to Europe. In her own time, Britain held sway over the largest empire in history and a galaxy of heroes, commanders and statesmen launched her on her imperial adventure. Yet it is the judicial system that she inculcated, which has been absorbed even by societies that shook off her colonial yoke. I would even say that the English language owes its international supremacy not to the power of Britain's empire, nor to her conquest of America nor to her victory in the Second World War, but to its association with her judicial system and its capacity to articulate the legal concepts evolved by British jurists. This can be seen in our own country. While English as a literary vehicle has begun to disintegrate in our society, the language still retains its pristine position in our courts.
While this is the status of law, we must remember that justice in the conventional and narrowly judicial sense is not enough. What people want is security for justice and the only security for justice is law enacted and administered by the “will of the people” as articulated by philosophers like John Locke and Jean Jacques Rousseau.
Human Rights Under Constitution
The preamble of our Constitution formulates the ideals and aspirations of our people. Basic human rights have been guaranteed by our Constitution and the Courts have been empowered to enforce these rights so that the rule of law be firmly established. Courts are no doubt the custodians of these rights. All the same, the fact remains that if the social system is exploitative, if illiteracy and ignorance are rampant, there can be no cause for complacency regarding constitutional guarantees protecting fundamental rights.
I am not under-estimating the role of Courts of Law. But Courts can be powerless when the under-privileged sections of society are denied recourse by their very indigence and ignorance. Let us not forget that justice is still a costly affair, far out of the reach of many of our citizens. This is a situation peculiar not to Pakistan alone but all under-developed countries where the social and economic environment often keeps the panoply of the judicial system beyond the outstretched hands of a man in tatters or a woman in distress. I find great force in the views of jurists expressed at international conferences on the Rule of Law that “adequate levels of living are essential for the enjoyment of individual freedoms and rights. What is the rational benefit of freedom of speech to under-nourished people or of freedom of the press to an illiterate population?” It would not be honest to ignore the fact that in the present system of administration of justice in almost all of what is nowadays known as the Third World, the scales are heavily weighted in favour of the economically privileged. For the poor man to obtain justice is often a harrowing struggle requiring financial means well beyond his capacity. No one familiar with our society can be oblivious of the hardship which a day in court entails for the litigant public. No one can lightly disregard the proverbial law's delay. Much of this delay is caused by the shortage of judicial officers and facilities, but much of it is inherent in the legal structure that we have inherited.
Administration of Justice
My concern is not so much with the law itself, which admittedly needs to be reformed in several fields, but with the system of administration of justice. For the wealthy, some of the fundamental rights are merely more rights capable of being turned into more property. Thus whereas the privileged can pervert the process to perpetuate their economic power, the under-privileged seek to avoid invoking the legal process for fear of the hardship it involves for them. As a social service the administration of justice, in practice, I am afraid, has fallen far below the ideals and aspirations formulated in the preamble of the Constitution. By saying this I am not criticizing the judiciary of the country but the social system widely prevalent in the world today. Within the framework of this system, our judges are doing their utmost to dispense justice. But the members of the Bench and the Bar cannot be insensible of this serious problem which has far-reaching social and political implications. No arm of the Government can afford to isolate itself completely from the great upsurge and the movement of ideas that is taking place in the Third World today. No institution in modern Pakistan can bear fruit if it does not relate itself to that movement. It has to function in accordance with the principles on which this Nation was founded and in the context of the emerging realities of a new order.
Executive and Judiciary
This brings me to the conventional bourgeois notion that there is an inherent confrontation between the executive and the judiciary and that the sedate judiciary has to act as a check on the rapacious executive. This is an obsolete notion conceived in the early stages of capitalism and colonialism, that law is a protector of the status quo. It is a notion associated with the spread of empires and not with their liquidation. In an earlier historical setting, empires were consolidated most effectively through the operation of laws which were so framed as not to threaten any vested interests. The approach was based not on the ethical propriety which is the bedrock of jurisprudence but on political expediency. This is demonstrated in the history of British colonialism. There were no doubt eminent British jurists—the great names of Denning and Maitland, among others, occur to my mind—who tried to release law from its political servitude by elevating the concept of equity. But theirs remained the voice of a minority. So tightly bound was the whole system to political expediency that, at the height of her empire, Britain did not permit the Emperor even to marry the woman of his choice, who happened to be a divorced lady: he had to forsake his coronation, abdicate the throne and leave the shores of Britain to return decades later only to be buried. Contrast this state of affairs with what prevails today when Britain no longer holds an empire. Today new legal fictions are freely devised.
No Protection for Status Quo
The notion that law is a handmaiden of the status quo is wholly invalid in a setting where relations of production are undergoing an alteration, where exploitation is to be ended, economic and social imbalances corrected and where, therefore, the executive's responsibility is not only that of administration but also to act as an agent for social transformation. In this developmental context, there is an alliance and a bond between the executive and the judiciary forged by their common aim of accelerating peaceful social change. Here the interpretation of laws has sociological implications far graver than are realized by those who are wedded to doctrines of liberalism conceived in the eighteenth and nineteenth centuries. The days of Kipling and Kim are over. This is the dawn of the brave new man fighting for an olympian justice beyond the frontiers of yesterday's values and outside the ramparts of the old order. These are the days of the “historic compromise” which till the high noon of today were beyond comprehension. I am sure that, by and large, the members of our legal profession are sensitive to urges of our society to forge rapidly in directions not anticipated during periods of colonial servitude and neo-colonial stagnation. Today more than ever, the Whig is not necessarily the crown of wisdom. Today more than ever, wisdom grows from the soil; it sprouts from the plant of social conditions. Courage is needed to defend the law but greater courage is required for weeding out what is obsolete in it and for changing it in order to remove iniquity.
Fourth Amendment—Facts and Fiction
We have witnessed this in the episode of the Fourth Amendment, over which an artificial controversy was created. What was the purpose of this Amendment? Did it seek to vest arbitrary powers in the Prime Minister and perpetuate his rule? Did it try to postpone general elections? Did it weaken the Judiciary? Did it curb trade unionism? Did it curtail the freedom of the press? Certainly not. Its chief aim was to enable the Government to recover money from unscrupulous and rapacious elements who had abused their privilege and obtained loans from Government. Whose money was it? It was the money of the poor, those who earn not much more than a hundred rupees per month. Would we allow a hundred crores belonging to these poor to be presented to the graft and greed of the privileged few? If not, we had to change the law. This is our struggle and it will remain so; we shall not let vested interests thrive at the expense of our toiling masses. We want the law of men, not of monsters, to establish domain over us. Nothing in this aim impinges on the independence of the Judiciary or derogates from our respect for the legal profession.
These reflections on the wider aspects of the dynamic place of law in our society do not in any way detract from the high status which my Government has given to the judiciary. For us this is not merely a matter of privilege or protocol. Our references to the Supreme Court to obtain verdicts on the validity of certain acts of the Government, which could be considered as involving only political issues, and our enlistment of judges in diverse commissions and tribunals to ensure the fairness, the judicial rationality, of our policies is an earnest of our attitude towards our courts. It is a considered and progressive attitude. It is with that attitude that I consider it an honour to lay the foundation-stone of what we hope will be a splendid edifice worthy of the mission entrusted to the Supreme Court of Pakistan.