ROLE OF LAW IN PRESENT TIMES
Text of the reply by Mr. Justice A. R. Cornelius, Chief Justice, Supreme Court of Pakistan, to the address of welcome presented by the Karachi High Court Bar Association on 29 11 63
On behalf of my colleagues and myself I tender to you our grateful thanks for your warm welcome. I reveal no secret when I say that it always gives us great pleasure to visit Karachi, particularly at this time of year, when the weather is so wonderful. The cases you bring before us are as deeply interesting as any in Pakistan. They have a flavour which is appropriate to this sophisticated and well supplied society, and we find ourselves uniformly attracted by the manner in which they are presented before us by members of Bar. All of us know that our Bar started with something of a handicap at the Partition. Most of the senior lawyers emigrated to India, and the gap has taken some time to fill. Much difficulty was also felt by the lawyers who remained through shortage of books, periodicals and even of copies of Acts both new and old. We are aware that these difficulties have been overcome by great effort mainly on the part of certain senior lawyers. The junior members owe a debt of gratitude to them and so do the Courts and the public at large. The unaided efforts of the Judges could by no means have achieved the result that today cases are taken through our Courts with thoroughness and result in judgments which deal competently with all manner of questions. To maintain the system of justice left behind by the British rulers through the difficulties of the post Partition period had been a great and honourable task. It was also a necessary task, for there is nothing more certain than that the public in this country will not readily accept any system of justice which does not provide for methodical application of law through careful legal procedure to the evaluation of duly recorded evidence, and ultimate resolution of the issues arising with the aid of comprehensive arguments by Advocates. The public has become enured now to the provi¬sion of at least one appeal on fact, and one further appeal on law alone, so that a three tier system is an imperative of justice. The Bar of Pakistan has fulfilled that demand in noble fashion. It has helped equally to raise the status of the country in the eyes of the world. We sitting as Judges know that if by any of our judgments we have gained credit in your eyes or in the eyes of our public, and perhaps in a solitary instance here and there, in the great world outside Pakistan as well, it is only because our labours have been so largely assisted by your untiring efforts.
COMMUNITY OF PURPOSE
Between the Judges as a group and the lawyers as a class, there is a never¬ending dialogue of mutual understanding, as of fellow travellers on a pilgri¬mage. I never see a lawyer outside a Court without the thought crossing my mind of this community of purpose. I am aware that there are persons, some of them ex lawyers themselves who entertain quite a different opinion. But, for myself, I feel grateful to be surrounded by a community which I consider to represent the highest circle of intelligence in Pakistan. There are, of course, other groups as well, such as those of politicians, journalists, ecclesiastics, educationists, scientists, which in other countries form the cream of the intelligentsia, but I cannot overcome the feeling that here the main effort of every group is to keep every other group in a water tight compartment, appropriate to the status it enjoyed under the previous foreign rule. That is not conducive to development of broad, sympathetic understanding, or of general awareness of social and philosophical develop¬ments in the large world of today. In our country, it is perhaps only given to the Judges of the superior Courts and the lawyers who assist them, to think and speak and write with complete freedom about those matters which come within their purview. No field of activity in the entire country is outside the domain of the Judges unless it be some limited pocket into which the arm of law has not yet found its way. The range of vision which is thus provided for us and the freedom which belongs to the Judges as part of their armour (shall I say) and to the lawyers through privilege of law, enables both parties to say exactly what they think and what they feel, on a great many subjects. In a world, which is only too slowly recovering from the extreme restraints of the Second World War, that is a blessing indeed.
AN INSTANCE OF “HANGOVER” FROM SECOND WORLD WAR
It may surprise you to be reminded of the World War and the restric¬tions which it imposed upon the citizens of each country involved while at the same time considerable sections were enlisted, and regimented and con¬veyed to distant theatres to engage in the skilled art of killing other similarly organised groups of hostiles, under pain of being killed themselves. On both sides the watchword was blind obedience to undisputed authority. Men disobeyed only at the risk of endangering the security of their whole country. We saw an instance of the hangover from that period just a week ago, A heroic survivor of the Second World War coming from a distinguished background, devoted himself to the business of politics in the United States with such skill and address that he succeeded in reaching the highest position. At the pinnacle of his career, he was shot down in the way that so many five enemy aircrafts were shot down during the war in full fight, but this time not by a hostile petard. The shot was fired by another survivor of the last World War, a man who had been trained in marksmanship in the expectation that he would reserve his skill for the enemy’s leaders. His post -war career had been uniformly unsuccessful and he took his revenge on society, and it may be, on authority by calling into play his military training, to perform a spectacular act of the most ghastly nature.
We are not so far away from the Second World War as many people think. In a number of countries which were deeply involved in that war the supply of necessary consumer goods is still on a basis of rationing, i0distin¬guishable from that which was in force during the war. Authority is still required to interfere with private lives to a far greater extent than was thought necessary even during the 25 years which passed between the two wars.
TENSION IN SMALLER COUNTRIES
The processes by which the rule of law is being established once again, and in which members of the Bar play so large a part, are restarted in almost every country. This is inevitable so long as between the two greatest powers in the world a state of cold war is maintained, and from day to day fresh crises occur which bring the world to the brink of fresh disaster. Hardly a year passes but the news appears that, as a reflection of this continuing tension in the upper atmosphere, in some smaller country, there has been an explo¬sion, political power has changed hands and blood has flowed once again. On each occasion the agents of law have to make a fresh start to restore harmony among the major conflicting interests. Authority is again intensi¬fied and liberties are correspondingly curtailed, while the broken pieces are put together again, and brought within the framework of law. The Courts and the lawyers have to take up their slow and sorrowful task of clear¬ing up the debris and restoring order.
WORLD PEACE THROUGH LAW
The phenomenon is so familiar that to speak of world peace through law seems to me to reverse the true mechanics of the matter. Until the surcharge of tension at high level is eased, there can be no hope of restoration of full liberty in any country in the world, by relaxation of statutory controls and restoration of the genial processes which we once regarded as law. It is that law, the harmonious regulation of all active interests in the State that England, for instance, enjoyed in the Victorian Era, down to the year 1914, for the rule of which we all yearn. But, we know best the law that was born out of the rigours of the times in which we were fated to live.
JUSTICE TO THE POOR
You have raised a number of points In your address, Mr. President, and I would like to say at once that I do not regard these as matters of grievance. These are included in the dialogue which passes between yourself and us the Judges, through our involvement in a common function. You have spoken of dispensing full justice to the poor, and I am reminded of the excellent system of legal aid in England, which I tried to bring to general notice not so long ago. I wonder if I may impress upon you to send, at convenience, a small group of your members to England to examine the working of this scheme. We have in our Constitution in Article 2 a resounding promise given to the people that they will be governed by law and only in accordance with law. There is no such promise given to the British people despite their constitutional history which is some 600 years longer than our own, but there it is provided that any person whose income can be shown to be less than £ 1,500 Rs. 20,000 a year, may ask for legal aid, and after under¬going a means test, and a superficial examination of the cause of action he wishes to pursue in the Courts, he is provided with aid which covers cost of counsel as well as all other costs. Fees are paid to counsel at 80% of their normal charges and this has come very handily to the aid of the younger barristers. Solicitors’ fees are paid as well, wherever necessary. The aid is not denied if there is failure in one Court or the next. I heard a case being argued before the House of Lords in which the appellant (against a great and powerful corporation, the B. O. A. C.) had been given legal aid. It is a complicated system and bears no resemblance at all to the kind of free legal advice that is sometimes offered in our country by well meaning but short¬ lived societies and by some social workers. Yet, although it is available to about 90 per cent. of the population of England, the net expenditure to the British Exchequer is only two million pounds. There is, Mr. President, a real need to consider whether the proper implementation of our Constitution does not require you, the lawyers, and us, the Judges to give thought to the Possibility of bringing some such system into operation in our own country, with the aid of the legislative and executive authorities.
POLITICAL ISSUES NOT REQUIRING COMMENT
As regards the separation of the Executive from the Judiciary, the justifiability of the fundamental rights, and the right of retired Judges to practise, you will forgive me if I withhold comment. It is not because these matters are not germane to the dialogue. These are live political issues, very close to, if not quite on the anvil. But on the first of these questions, it might interest some of you to hear that in the newly liberated African countries where the British system of the District Officer combining in himself all legal powers was in operation, one of the first things which has been done is to take away the District Officer’s judicial powers.
LEGAL EDUCATION : A SCHEME FOR PROJECTING JUSTICE OF COURTS TO ACADEMIC MINDS
I can perhaps say a little more about the subject of legal education, which you have raised. As you can well conclude from what I have already said it is of deep concern to me to ensure that the men of law maintain their position as the highest intellectual class in the country. It can be said with¬out fear of contradiction that there is no subject in the world which receives continuously, and by the very necessity of human organization through Legislatures and Courts of justice, such intensive and fully documented study as the subject of law. Even in our own country, I imagine that the volume of legal literature produced every year is probably a hundred times as great as the literature produced on any other subject. I am prepared to include cinema advertisements in that computation. Consider only the published judgments of the Courts. We have not in our country as yet reached the stage of producing learned legal journals to explain and project the justice of our Courts before the academic minds of our own, and other countries as well, but I am hoping that my small efforts may produce some result in this direction fairly soon. What I have in mind I have expressed in a paper presented to a high authority and the contents of this paper have now been circulated among the heads of the universities and a few other institutions, from whom I have invited opinions. The idea is that each university in Pakistan should establish without delay an Honours School of Law together with an Honours School of Islamic Jurisprudence. The professional training of lawyers should be entrusted to institutions to be set up by the Bar Associations themselves, where appreciable advantage would be given to candidates who have obtained Honours Degrees in law. It would be a valuable aid to the implementation of Article 2 of the Constitution if the possession of such a degree were made a condition of entry into the higher branches of all public services dealing with administration under forms of law.
EXCLUSION OF LAWYERS FROM TRIBUNALS
You have spoken also, Mr. President, of the exclusion of lawyers from certain newly established Tribunals. That again is appropriate to the dialogue, for it is of concern to the agencies of justice that the laws should provide for the greatest measure of liberty consistent with the public interest. Judicial review, as a part of the administrative function, and also, as a supplement to that function is recognised the world over as a salutary pro¬vision. The aid of lawyers in the processes of judicial review is generally accepted as being of advantage. These are matters to be pressed, not only in such a gathering, but more appropriately in the concourses of the law makers. For us, the Judges, our oath compels us to implement the law, according to the accepted canons of Construction.
LOCATION OF SUPREME COURT
Lastly, you have raised the question of the location of the Supreme Court at Karachi. That is a subject on which I have spoken before, at a time when the requirement of the Constitution was that the Supreme Court should be located at Karachi. Today, the Constitution requires that it should be located at Islamabad,