In the British Parliamentary System the Lord Chancellor, as the Chief Justice, is changed when a government changes. He serves in differ­ent capacities including as a member of the Cabinet.

 

The Constitution of Pakistan of 1973 is also based on parliamentary system. Unfortunately, under the Martial Law regime of General Zia-ul- Haq the Supreme Court used the power to interpret the Constitution to re­write, amend and alter the Constitution thereby undermining the Rule of Law.

 

This was a great blow to civil society and the Rule of Law, and it was condemned internally as well as internationally.

 

Judgments must be consistent to be respected and valued. When Mr. Junejo was dismissed by the President in 1988, it was declared illegal by the Supreme Court.

 

In 1990 the dismissal of the Benazir Government was declared legal. In 1993, the dismissal of the Nawaz Government was declared illegal.

 

Judgments must be consistent. They cannot be based on a subjec­tive definition of what will "please the people".

 

Our sad history of playing with the Constitution began on October 23, 1954, when Governor General Ghulam Mohammad issued a procla­mation dissolving the Constituent Assembly of Pakistan whose task was to frame the Constitution of Pakistan. Simultaneously, General Mohammad Ayub Khan, was sworn in as the Defence Minister, contrary to express pro­visions of the Constitution.

 

In a historic judgement the dissolution was declared illegal by the then Chief Court, Sindh. However, during the appeal in the case of Federation of Pakistan vs. Moulvi Tameezuddin Khan, the decision of Sindh Chief Court was overturned.

 

The Federal Court gave a free hand to the Governor General who was himself not accountable to the people.

 

This was the beginning of a slippery path where the Judiciary became instrumental in Constitutional subversion. Till today, this judge­ment is considered a dark and ugly chapter in our country's history.

 

The Federal Court authorized the creation of a new Constituent Assembly which enacted the Constitution of 1956.

 

Soon after, the Republican Party or the "King's Party" as it may be called emerged on the scene. It was but a hand maiden of the bureaucratic military complex.

 

As many as four Prime Ministers changed between 1956 and 1958. Thus, a stage was set for military intervention.

 

By the Proclamation of October 7, 1958, the President of Pakistan annulled the Constitution of 1956 and dismissed the Central and Provincial Assemblies.

 

Martial Law was declared throughout the country and General Mohammad Ayub Khan was imposed as the Chief Martial Law Administrator.

 

A few days later, Ayub Khan took over as President and sent President Iskandar Mirza into exile.

 

The Martial Law Proclamation of October 7, 1958, was tested in the case of State Vs. Dosso. The stage was set for another judicial blow to the concept of Rule of Law.

 

Chief Justice Munir held that a coup d'etat can destroy the Constitution and the national legal order.

 

If the attempt fails, the sponsors are guilty of treason but if it suc­ceeds, it becomes a law creating fact in itself.

 

Nothing succeeds like success. He equated efficacy with validity as well as legitimacy. The Doctrine of Necessity was invoked to legitimize what was otherwise illegitimate.

 

The principle of 'might is right' was engrafted onto our Constitutional Jurisprudence.

All the talk about Rule of Law was set aside with one fatal judicial stroke. The destiny of millions of Pakistanis was relegated to a gun-toting usurper.

 

It was another ugly chapter which sowed the seeds of anarchy and chaos. An individual dictator imposed his Constitution in June 1962. Ayub Khan claimed the mandate to enact the Constitution on the basis of a referendum held in 1960, which elected him as President for five years. And we all know the truth about such referendums.

 

The Constitution of 1962 imposed a Presidential Form of Government. And what a Constitution it was. At the time of its promulga­tion it contained no fundamental rights. The people of Pakistan were robbed even of their basic rights to franchise through the ruse of "Basic Democracy".

 

In the elections which were held in the winter of 1964-65, the main demand of the then Opposition was for direct elections based on adult fran­chise. But dictators have little regard for the public opinion.

 

Eventually, a popular movement dethroned Ayub Khan. The Constitution of 1962 was destroyed by its creator. Such was Ayub Khan's respect for even his own Constitution.

 

Not surprisingly like other dictatorial fiats it was consigned to the debris of history when General Yahya Khan proclaimed Martial Law in March 1969.

 

It was only with the restoration of a democratically elected Government that the Supreme Court asserted the role of an independent institution. In the case of Asma Jillani it declared Yahya Khan as usurper, of course after Yahya Khan had fallen from power.

 

Bold though the decision in Asma Jillani's case was, we cannot forget that it declared Yahya Khan an usurper only when he was no longer in power.

 

At last, in 1973, the people of Pakistan gave themselves a Constitution which truly reflected their aspirations. It was unique as it was the first Constitution that was framed by the elected representatives of the people who were directly elected in fair elections. It was passed unani­mously.

 

Ladies and gentlemen!

 

Alas the forces of despotism could not tolerate democracy for too long. You are familiar with the most sordid chapter in our history when General Zia overthrew the elected government of Shaheed Zulfikar Ali Bhutto and later subjected his mentor and benefactor to murder.

 

When Martial Law of 1977 was tested in Begum Nusrat Bhutto's case, the Supreme Court once again resurrected the nefarious Doctrine of Necessity thereby departing from Asma Jillani's case.

 

Thus, the Supreme Court once again legitimized the illegitimate, declared the lawless, lawful, and handed over the destiny of the people into the hands of a vicious despot.

 

One man was empowered to subject the Constitution to his demented whims and what a havoc he wreaked to our Constitution.

 

Pakistan's longest Martial Law lasted over nine years, from July 5, 1977 to December 29, 1985. The usurper Zia got himself elected as President by referendum held in December 1984, where barely seven per­cent of the people voted. Taking a cue from Ayub Khan's elections in 1962, elections to the National and Provincial Assemblies were held on a non­party basis in early 1985.

 

Again non-party elections were totally illegitimate and against the clear provisions of the Constitution of 1973.

 

This unrepresentative and unconstitutional Assembly enacted the Eighth Amendment.

 

The Eighth Amendment permitted the usurper to combine the Office of Chief of Army Staff and President contrary to the provisions of all previous constitutions that the President could not hold any other office of profit.

 

The Amendment also indemnified all cruel and horrible punish­ments, and ratified reactionary laws that had been introduced by General Zia. Ultimately in August 1988 the Almighty Allah intervened to bring the darkest night of our history to its logical end.

 

On November 16, 1988 free and fair party-based elections were held in Pakistan in which the Pakistan People's Party emerged as the sin­gle largest party.

 

 

As it turned out the remnants of darkness were not prepared to tol­erate the spring of democracy for too long.

 

Ghulam Ishaq Khan dissolved the Assembly and the Government in purported exercise of power under the Eighth Amendment.

 

The contradictions in our judicial history are apparent in the con­flict between the Supreme Court judgements upholding the dissolution of the National Assembly in August 1990 while restoring the National Assembly dissolved in 1993.

 

A majority of the Judges who set aside the dissolution order of April 18, 1993 had upheld the dissolution of August 6, 1990.

 

On the face of it, the grounds for dissolution on April 18, 1993 were greater as the then Prime Minister in his concluding remarks on tele­vision on April 17, 1993 himself acknowledged that the Constitutional Machinery had broken down.

 

In our country, we talk a lot about the independence of the Judiciary.

 

In our country the Judiciary is independent.

 

It cannot be taken to task by any independent body but only by itself.

 

No one can question its judgments.

 

Chief Justices Munir and Anwarul Haq and their fellow Judges could not be questioned for allowing Ayub and Zia, to overthrow the Constitution or the power to amend the Constitution. Although we all know it was illegal.

 

No one could question why Doctrine of Necessity was legal in the hands of a usurper.

 

No one could question the Judges who ruled that dissolution of Assembly was legal in one case and illegal in another within a span of three years.

 

No one could question a Chief Justice who swore a false affidavit to get a plot of land.

 

No one could ask as to why a Judge who became Chief Minister next day was not held disqualified.

 

No one could question those in the Judiciary who were allegedly involved in a housing scheme. They decided it themselves.

 

No Judges resigned when Chief Justice Yaqub was dismissed because he refused to toe Zia's line.

 

Chief Justice Anwar kept his job because he toed Zia's line for per­sonal gain.

 

Did Anwarul Haq not refuse short adjournment when Justice Waheeduddin fell ill during the case but the case was adjourned for one week when Anwarul Haq went abroad during the case for a propaganda campaign and declared Shaheed Bhutto guilty while the case was sub- judice.

 

And when General Zia asked Judges to swear allegiance under the PCO, except for a few exceptions how many refused?

 

To be independent means to be free.

 

Our Judiciary is free.

 

Looking at our convoluted Constitutional history from the fifties, are the people not entitled to wonder as to whether our Judiciary has always been impartial. Each dictator has found a willing Court to legitimize his overthrow of the Constitution.

 

Many articles have appeared in the press criticizing judicial judg­ments for being violative of the Constitutions as in Doctrine of Necessity cases, or for being based on subjective reasons "pleasing the Nation" rather than enforcing the law or for being biased for personal gains as in the case of Anwarul Haq.

 

What the Judiciary needs is credibility. It needs a public perception that what it does is devoid of personal likes or dislikes.

 

The Judiciary must be above criticism and controversy.

 

And to be so, the Judiciary has to guard its reputation jealously.

 

If a relative of a judge is appointed to the Court, as many have been in the past, no one has criticized it because the Executive has made the appointment.

 

But if the appointment was made by the Judiciary, even if the can­didate was deserving, allegations would be made of favoritism and crony­ism.

 

As the Executive is elected, it is answerable to the people.

 

And power flows from the people.

 

Governments come and go. Judges don't. They stay on for as long as 30 years.

 

In America, a judge may be appointed who is liberal or conserva­tive depending on the Government.

 

So too in England, the Commonwealth and Pakistan.

 

I would like to mention here that while we have consistently worked for the independence of the Judiciary, those who have been opposed to us have been very consistent in undermining the independence of the Judiciary. In this context many of you may have heard that the Opposition had launched a campaign to call Judges of the Superior Courts "Jiyalas". Had the Opposition Leader not vowed to throw the Judges out of window if he comes to power again? This venomous campaign was launched to harass the Judges to avoid accountability. It was this attitude which was aimed at undermining the Judiciary.

 

Distinguished members of the noble profession!

 

You know that, who is today the Judge of the Supreme Court was nominated after 1977. So, almost all members of the Supreme Court have been made a Judge either by General Zia-ul-Haq or by Ghulam Ishaq Khan or by Mr. Nawaz Sharif.

 

But we did not turn around and use derogatory language for the Judges appointed by Zia-ul-Haq, Ghulam Ishaq Khan and Nawaz Sharif. We did not do so because we wished to see institutions flourish. The Judges appointed by the present government are junior most Judges, and they will not attain senior positions until ten to fifteen years have passed by. None of them has ever been a party to any legitimization of a dictatorial rule. In fact most of them had fought against it.

 

The entire Judiciary so far, whether it is the Supreme Court or the High Courts, is dominated largely by people who were appointed in the long period between 1977 and 1993, and this is a period of almost 20 years.

 

So, I would urge all of you to spread the word amongst the mem­bers of the legal community and tell them to ask the simple question that: Is the Opposition's criticism based on reality or just fiction?

 

Distinguished lawyers !

 

Many politicians throughout our history have wanted to fire their shots at democratic governments through the shoulders of different institutions. You know that many politicians wanted to fire their shots at the people's government through the shoulders of President Ghulam Ishaq Khan.

 

At the end of the day, when the President exceeded the powers and dismissed the government in 1990, he was the loser. Rigging of the elec­tion was fore-gone conclusion to keep out the true representatives of the people.

 

So too, when the PNA and foreign powers fired their shots from the shoulders of General Zia-ul-Haq in 1977, he was the big loser in the eyes of history. He will be forever condemned for hanging an elected Prime Minister and imposing a ruthless dictatorship.

 

When General Zia fired his shots on the shoulders of Chief Justice Anwarul Haq, the Judiciary was the loser and Anwarul Haq the man responsible for it.

 

In our history political groups have used the President, the Armed Forces and the Judiciary to fulfill their own anti-democratic agendas.

 

In this the losers have been those who fell prey to the machinations of such groups and allowed themselves to be used.

 

Time passes. Time waits for no-one. The moving finger of history having written moves on. Life ends and another begins but history lives forever.

 

Those who live in the pages of history, live forever. Those who blot their copy book are condemned forever. Yazid can never be forgiven.

 

Then why do men make mistakes? Why do the Zia's, the Ishaqs, the Munirs, the Anwarul Haqs make fatal errors? Because they are mortals. They get carried away by temptation.

 

Temptation for power, for pomp, for fame, for fortune. They like to think of themselves as messiahs when in fact they are pawns in the hands of political groups.

 

They stand convicted at the bar of history.

 

It reminds me of the French historian Chateaubriand who said : 'When in the silence of humiliation there is no sound save the clanking of the slave's fetters and the voice of the informer, when everything trembles before the tyrant, and to earn his favour or incur his wrath implies equal danger, then the historians appear to avenge for the people".

 

In Pakistan, history has ultimately avenged for the people. Where are the dictators or their apologists? Their ashes have been meshed with the dust of history.

 

Time passes. The concerned political groups are forgotten and their pawns discredited forever.

 

As Shakespeare said: "The evil that men do lives after them". Of course, Shakespeare was a very wise man. So, he knew that women did not do evil.

 

I remember that Gen. Zia was reluctant and frightened to impose martial law. But he was convinced by the vested political interests that PPP as a party was finished and Quaid-e-Awam could be defeated in Larkana by Pir Pagaro.

 

We can laugh now and say what a joke. But such was the talk that Zia actually came to believe it and swore at Makkah Shareef that he would hold elections in 90 days.

 

Of course, he could not hold those elections during his entire life time for the fear that PPP would win.

 

Ghulam Ishaq Khan was also convinced by vested and power hun­gry people in 1990 that PPP was finished and Benazir would flee the coun­try once her husband was arrested.

 

With hindsight we can say what a joke. But such is the propa­ganda, the power of the prophets of doom that they can actually convince quite rational and mature men of their fantasies.

 

Of course, after 1990,1 did not leave the country, although my hus­band was arrested, the elections had to be rigged and the country faced political instability.

 

So, the real wise men are those who do not get carried away by vested political interests, the propaganda of such vested political interests and the whispers of the prophets of doom.

 

I may say the Holy Book repeatedly warns us to beware of those who slander and to beware of evil whispers.

 

The real wise men are those who do not seek to make wise deci­sions because such decisions, being subjective, turn out to be unwise.

 

The real wise men are those who stick to their constitutional roles through thick and thin, through thunder and storm and thereby win respect in their own time and the time that comes after.

 

Distinguished Guests!

 

Political stability does not depend on the government alone.

 

Political stability depends upon the President, the Parliament, and the Judiciary, the Armed Forces, the Provinces, the Opposition and other organs of state fulfilling their constitutional obligations.

 

If today there is poverty and backwardness in Pakistan, we must blame all those who violated their constitutional oath, exceeded their con­stitutional duties and power and sought to do what they were not supposed to do. There is a road to success. There is a road to emancipation. There is a road to prosperity.

 

As democratically elected leader, elected in fair, free and impar­tial elections, permit me to say that the Pakistan People's Party Government and I symbolize that road.

 

Just as we symbolize the hopes, the aspirations, the dreams of the down-trodden and discriminated people of Pakistan who have elected us to positions of office. Positions we accepted only because it came from the people.

 

I invite you today to join us in travelling this road on a journey to emancipation, enlightenment and egalitarianism.

 

Thank you.