The idea of an
independent state emerged and traveled through history before coming into the
present form. The feelings of protection and safety are one of the basic reasons
for the need of an independent state anywhere in the world. This requirement compels
the people to sacrifice even their lives to achieve such a place on earth,
where they can live freely and feel safe and secure without any internal as
well as external threat. The other reasons may include avoidance of social,
cultural and religious persecution and welfare of a community etc.
There is no denying
the fact that the existence and survival of any nation is directly related to
the national security and defence of its geography. The sacrifices made in
pursuance to the vision for an independent state become meaningless in absence
of national security and defence of the country. Therefore, it is crucially
important that the internal as well as external threats to the security and
existence of any country must be dealt with promptly in order to safeguard the
rights of the people.
When we talk of
the security and defence of any state, the military aspect comes into our mind immediately,
but it must be remembered that it is not the sole component of the national
security and defence of any country. In modern times, the state has to work for
the progress and prosperity of its citizens on the one hand and on the other
hand the citizens are bound to be loyal and work for the betterment of their
country to the best of their abilities. The idea of national security
previously focused on military might has transformed in modern times. Today it
encompassed many facets, which include non-military and economic security of
any nation. Now, in order to protect national security we have to possess
security in the economic, energy and environmental sectors. The conventional
threats to the existence are also there, but the non-state threats e.g
violence, narcotics, natural disasters are also included in this category. The
external aggression includes the war and threats to the sovereignty. Such
challenges are dealt with by the help of armed forces usually, but the role of
other organs and institutions cannot be ignored. Particularly, the role of justice
in society in protection and promotion of national security and defence of
country is very important. Here it would be instructive to refer to history.
During World War II when Sir Winston Churchill was asked whether Britain will win the war or not, he put a
counter question to his interlocutor asking, is the judiciary in Britain
operating independently and doing justice? The answer was yes. He said then we
will win the war!
Justice is
accorded cardinal importance the western world. Rather the concept of Justice
has always been highly regarded in every society throughout the history in
every part of the world and injustice anywhere is considered a threat to
justice everywhere. In an Islamic society, it carries more importance, because
in Islam, justice is not only considered a worldly affair rather it is a sacred
duty. Allah Almighty has ordained in the holy Quran:
"O you who believe! Stand out firmly for justice, as witnesses to
Allah, even as against yourselves, or your parents, or your kin, and whether it
be (against) rich or poor: for Allah can best protect both. Follow not the
lusts (of your hearts), lest you swerve, and if you distort justice or decline
to do justice, verily Allah is well-acquainted with all that you do." [Sûrah al-Nisâ’: 135]
Islam being a
religion of peace provides complete code of life for every segment of the society.
History of the world is filled with the tales of struggle to have an
independent homeland. The struggle for Pakistan was a unique one as it was
not just a struggle for a piece of land rather it was to get a place where the Muslims
of the subcontinent could live and practice Islam freely. Quaid-e-Azam,
Muhammad Ali Jinnah, in his address at Islamia College Peshawar, declared that:
"We do not demand Pakistan
The sacred
struggle was full of sacrifices and ultimately, on 14th of August,
1947, the dream for an independent state came true and Pakistan emerged
on the map of world. Now being loyal Pakistani citizens, it is our
responsibility to safeguard and protect the interests of this country. Under
Article 2 of the Constitution, Islam has been declared as the state religion of
Pakistan and to run the system
of government, in this Islamic republic
of Pakistan
We know that the
importance of justice for the existence and security of any country is very crucial,
therefore, Constitution has held the state responsible to ensure justice in the
country. According to Article 37 (d) of the Constitution of Pakistan, 1973 it
is for the State to ensure inexpensive and expeditious justice. For this
purpose whole system of administration of justice has been established under
Article 175 of the Constitution. Supreme Court being the apex court of the
Country is the final arbiter of disputes. Besides the Supreme Court, and the Federal Shariat Court
the Constitution has established High Courts in all the four provinces and one
in the federal capital. The tribunals, special courts and other subordinates
courts established under the law are apart from this.
Nowadays,
countries achieve strength or weakness due to their economic and cultural
prowess. Therefore, to ensure the national security of our country it is very
much important that the internal fabric of society should be made so strong
that the country turns into an unconquerable fortress against any internal as
well as external aggression. When we turn particularly to our country, Pakistan , we observe
that most of our resources including the armed forces are being utilized in
combating the war against terrorism and to maintain the law and order situation
within the country. Major portion of our financial resource is being spent on
these activities. Little money remains with the government for the welfare and
improvement work. We are also aware that to nurture the armed forces is not a
child’s play. If the main part of our budget goes to the war against terrorism and
for maintenance of the law and order situation in the country then little and
insufficient amount would be available to cope with the military needs. It will
have adverse affect on the national defence. In our country where there are
already the issue of corruption and tax evasion the situation would be more
worsen.
The role of
judiciary in promoting the national security and defence of our country has not
been discussed properly and taken into account generally. It is not to lessen
the importance of other stakeholders but to bring into light the role which
this organ of the state has played in promoting national security as well as defence
of Pakistan .
The justice
delivery system has to impart justice as per dictates of law and the Constitution.
Although role of judiciary never varies in times of war or peace as it has to
perform the function for which it has been established and that function is to
deliver the justice. However, in times of war whether it is against any
internal aggression like terrorism and maintenance of law and order situation or
against any external aggression the need for imparting justice becomes more
significant. The judiciary cannot deliver justice until and unless it operates
independently. Constitution of Pakistan
ensures its independence. The very preamble of our Constitution states that
independence of the judiciary shall be fully secured. Ruling in the case of
Government of Sindh Vs. Sharaf Faridi (PLD 1994 SC 105), further strengthened
the independence of judiciary, wherein it was held that independence of
judiciary also meant the elimination of financial control over judiciary by the
executive.
The historic
lawyers’ movement for the independence of judiciary has proved that the people
of Pakistan
desire a stable and impartial judiciary which can fully protect their rights
and decide their issues according to the Constitution and the law. Judiciary is
the only organ of State which has to protect the rights of the people when they
knock at its doors against the aggressions of even the state functionaries. The
number of writ petitions filed in the High Courts, which runs in thousands
every year, gives a very gloomy picture of the institutions. Now the courts are
heavily burdened with the work of protecting the citizens against the
violations of their rights. Furthermore,
it is also very common that the deprived class and segment of any society
becomes an easy prey to the terrorists. The foreign elements even engage the
local agents to carry out their heinous designs and accomplish their evil objects.
If the deprived locals are given proper opportunities to grow, prosper and
participate in the mainstream, then the foreign terrorists might not be getting
the sources and connections for the accomplishment of their nefarious designs.
The judiciary of
Pakistan
can combat the internal security issues. The need is to make the judiciary
independent. The judiciary of Pakistan
in its various judgments has exhibited this spirit. Constitution of Pakistan is the
document which has clearly defined the role of all the institutions. Article
245 of the Constitution defines the role of the Armed Forces. It has been
stated in this Article that the Armed Forces shall, under the directions of the
Federal Government, defend Pakistan
against external aggression or threat of war, and, subject to law, act in aid
of civil power when called upon to do so. Besides taking part in the
constructive activities the armed forces of Pakistan have to act in aid of
civil power.
Supreme Court of
Pakistan has played very important role in the protection of national security.
The issues of terrorism and law and order have been given due attention. There
is no doubt that the law and order situation plays a vital role in national
security. Supreme Court in the case of law and order situation of Karachi had
taken a suo motu notice and had, interalia, observed that the law and order
condition prevailing in a country has a direct and significant bearing on the
peace and pattern of economic development of that country. The existence of
basic socio-economic framework and the continuation of economic growth without
any hindrance or interruption depends upon substance of better law and order
situation.[1]Trade
activities are the backbone for the growth of economy of any nation. If a
country is providing fair and equal economic opportunities to its people,
prosperity is bound to happen. Feelings of deprivation create a tendency to commit
crimes, which seriously challenge the national security.
Judiciary of Pakistan
has always given special attention to such issues related to the improvement in
the justice delivery system and since 2009, the National Judicial Policy has
been implemented. It was agreed in the Policy that the priority would be given
to the disposal of trade, commercial and investment cases. Such cases would be
managed on fast track basis through establishment of designated courts and by
constituting special benches by High Courts and the Supreme Court. Furthermore,
it was also decided that the banking, tax, duty, levy and cess cases should also
be decided within 6 months.
If the courts
are deciding the cases on merit, rule of law and independence of judiciary are
accorded due respect then the national security as well as the defence of the
county becomes impregnable. If the better environment for the trade and
commerce activities is provided and the commercial cases are given priority and
justice is provided in time, then it will surely boost the international investment
in the country. The investors from all over the world prefer to invest in a
country which is safe and peaceful. But to attract the foreign investment we
have to maintain the internal peace and make sure the law and order is
appropriate. The judiciary is to be kept independent so that it decides the
issuses and disputes with full confidence without any fear or favour. This
impartiality will add to the prosperity of our country.
Supreme Court
also held in the Karachi
law and order case that there was need to depoliticize the police in the city.
The matter of depoliticizing is not restricted to the police. It should be
carried in all the civil establishment for strengthening democracy and internal
security. Recently Supreme Court has laid down various principles regarding the
affairs of civil service in the famous case of Ms Anita Turab (Const. Petition
No. 23 of 2012) vide its judgment dated 12.11.2012. The judgment has started
producing results and now no civil servant feels vulnerable in view of
extraneous pressures. This Judgment has ensured that a safe and secure
environment is provided government functionaries to carry out their duties
without any let and hindrance.
The Courts are often held
responsible for the release of culprits and it is usually said that the
terrorists and other criminals are released by the Courts. It is pertinent to
mention here that the Courts are bound to deliver the justice as per law of the
land. If there is little or insufficient evidence to prove the guilt of any
accused then how the Courts can punish the accused? There is need to improve
the criminal justice delivery system in order to promote national security. The
law in this regards requires improvement. Late Mr. Justice Sabihuddin Ahmed, (May
his soul rest in peace), had rightly observed:
“….terrorism is a fast growing
phenomenon and it is in the wider public interest that all civilized States
should make laws and take appropriate measures within their Constitutional
system to combat it.”[2]
The law
regarding investigation, prosecution and evidence needs further improvement,
and the crimes require to be more narrowly defined, so that the criminals
should not escape from the strong arms of law. If at the stage of trial and
investigation, any lacuna is left it results in the ultimate escape of the
culprits. Legislature should look into the matter and make such laws which make
the criminal justice delivery system more effective and efficient. It should also
be made sure that no innocent be punished by the faulty or wrong investigation,
because this creates the sense of insecurity and dissatisfaction among society
at large. If any innocent is punished wrongly then it promotes the tendency
towards commission of crime. If strong person escapes from clutches of law then
weaker segment of the society tries to become strong and richer in an
undesirable manner. They adopt wrong ways, which further threatens the national
security.
It is also very
important to discuss here that the Constitution has provided for the roles, functions
and power of every institution. All the organs and institutions including the
armed forces and the judiciary have to work within their prescribed limits. The
judiciary cannot act like an armed forces and the forces are not empowered to
exercise the powers of the judiciary. The Courts never allow the parallel judicial
system to be run by the armed forces. In the famous case of Liaquat Hussain Vs.
Federation of Pakistan[3]
the courts established pursuant to the Pakistan Armed Forces (Acting in Aid of
Civil Power) Ordinance, 1998 were declared to be unconstitutional.
.
Everybody is
aware of the fact the on-going political jostling, threats to national security
and deteriorated law and order situation, we have only one comfort that as a
nation we have consensus on fundamental issues. We have one common and
fundamental law with us and that is our Constitution which enjoys the
unprecedented legitimacy. We can easily chart out visible future course of
action and to have a system of good governance, and in order to promote
equality, tolerance liberty, socio-economic and political justice in the
society.
No organ and
institution in any society can work without co-operation of the others. In
order to achieve the goals and objects as set out by the Constitution we have
to work hand in hand with each other. Every organ and institution is
established in a society for a particular purpose. If all the institutions are
working within the boundaries of law then the wheels of prosperity would surely
lead us to the ideal and peaceful life envisaged by the Constitution. Being patriot
we should work for making our nation stronger and better than ever. We should
not focus on what we have received. Rather, we should see what we have given
and contributed for our motherland. Waving the flag is not the only symbol of
patriotism; rather it is the active practical step which counts. James Bryce
had rightly said:
“Patriotism consists not in waving the flag, but in striving that our
country shall be righteous as well as strong.”
The judiciary of
our country is determined to play its role within the contours prescribed by law
and the Constitution.
----------------------------------
No comments:
Post a Comment