Islamabad, October 20, 2012 (PPI-OT): My brother Judges of the Supreme Court;
Learned Chief Justice and Judges of the Lahore High Court;
Worthy President and Office Bearers of the Supreme Court Bar
Association of Pakistan;
Eminent Delegates, Judges and Jurists from foreign countries;
Learned Members of the District Judiciary;
Learned Federal and Provincial Law Officers;
Presidents and Office Bearers of the High Courts and District Courts
Learned Advocates of Supreme Court, High Courts and District
It is a matter of great privilege for me to inaugurate this International Conference and to address this gathering of eminent judges, jurists, scholars, intellectuals, lawyers and law officers from across the globe. I would like to thank and appreciate the efforts of the Supreme Court Bar Association for organizing this conference and affording us an opportunity to exchange ideas and views on an important contemporary issue, “Peace Through Rule of Law”.
It is encouraging to note that the Supreme Court Bar has been arranging national as well as international seminars and conferences quite regularly. The issues are of national and regional relevance and importance. It gives good opportunity to the legal fraternity from various backgrounds to share their wisdom and suggest the way forward to face and overcome challenges being faced by our nations and its institutions.
Peace is what the humanity is striving for since its inception. Peace is the state of harmony among individuals, institutions, States and nations. It is not just the absence of conflict but the existence of healthy interpersonal and international relationships, understanding and cooperation for economic well being and social development.
The human race has experienced war and conflict for thousands of years and the end result was no more than destruction and devastation, causing pain, agony and suffering. Time has proved that after every war the belligerent States tried their utmost to devise such strategies by taking all possible measures that could foreclose the possibility of future warfare. These measures devised and adopted by the States at national and global level led to the formulation of local and international laws as tools for bringing peace and harmony.
Today the humanity realizes the importance of unity and mutually beneficial coexistence. The humanity strives for attaining the status of a ‘single comprehensive community’ and the establishment of peace through law is the most urgent and commonly regarded object. To utilize law more effectively and productively as means for bringing peace; all the stakeholders have to consider the larger context of global processes of interaction and the inextricable interactions of law and peace.
The inadequacies in the inherited legal theories and procedures have to be analyzed critically and appropriate conceptions of law and peace have to be formulated and applied through legal means at national as well as international level.
Islam our great religion means and conveys the message of peace.
There is no basis for violence in Islam. The very opening verse of the Holy
“In the name of Allah, the most Merciful and the most Beneficent”.
This opening verse repeated in the Holy Quran 114 times clearly shows that mercy and compassion are the dominant traits of Islam. Moreover, the Holy Book sets peace as destination of Islam in the following verse:
‘But Allah doth call to the Home of Peace: He guide whom He please to a way that is straight..’ (10:25)
Most verses of the Holy Quran directly or indirectly aim at propagating peace and abhorring oppression and violence. Similarly, the famous event of conquest of Mecca under the leadership of Holy Prophet (P.B.U.H) is a great example of peace when the Muslims despite being in dominant position conquered the whole city without bloodshed and violence. Islamic teachings are oriented towards achievement of peace, brotherhood and human welfare.
I believe that like Islam all the major religions of world carry the message of peacemaking and peacekeeping. There have been instances where the religious leaders and institutions succeeded in bringing peace through mediation and other peaceful alternatives. Peaceful methods of settlement of dispute are the preferred option of contemporary religions.
The Addis Ababa Agreement 1972, a result of mediation between World Council of Churches and the All Africa Conference of Churches, put an end to the First Sudanese Civil War. Similarly, Sant Egidio a catholic organisation succeeded in ending the civil war in Mozambique in 1992.
It is unfortunate that the humankind has got fragmented into religious and ethnic sects and groups without understanding the true spirit of such religious thought and philosophy. The deep rooted rifts have given rise to terrorism, bloodshed extra-judicial killings, human rights violations and other evils that are perpetuating extremism and radicalism and affecting the global peace. The best way to address these issues is through bridging the gaps among individuals and States by common understanding and sharing of knowledge about law, peace and religion and exploring the factors that can help in achieving the objective of global peace.
The restoration or maintenance of peace and harmony through adherence to rule of law is the increasingly acceptable mean for resolving conflicts and terrorism, be it at the international level or domestic level. In my view, genuine peace between those who are in a state of conflict can only be brought about through peaceful settlement. Such settlement can be made acceptable to conflicting parties only when they are assured that the settlement is fair and will be enforced through the force of law. In other words, without the guarantee of law behind it, no settlement can last very long; and without such settlements, peace cannot be established. The reverse of this is also true. If disputes can be settled legally, people have no need to start a conflict.
As a believer in the Quranic view of creation, I believe that the original order of nature was peace not conflict. When Adam and Eve were created, they were originally in a state of harmony and peace. Peace was their original state, and so it remains the destiny for their progeny. Conflict amongst them, and then amongst their progeny, is not a natural state. It arose, and continues to arise, because people sometimes have differing interests about which they are unable to compromise. In pursuit of their interests, they tend to go to greats lengths, often transgressing upon the lives, liberties, sensitivities and properties of others. These conflicts can potentially be resolved through covenants and settlements. But, for that to happen, the settlements must, as I said earlier, be backed by the force of law.
In societies where the ‘Rule of Law’ is weak, the problem is that the law loses it force. In such times, covenants and settlements also lose their sanctity. Ultimately, people are left with no option but to resort to violence and transgression. When violence and transgression breaks out, the law can still be invoked to restore peace. But that is more difficult. The greatest contribution that the law makes is that it makes peace through pacific settlements possible. That is the primary role of law.
Administering justice, once peace has already broken down, is also a role of the law. But this role, often over-emphasized, is only a secondary role. In short, the law is an instrument of peace primarily because it creates the possibility of durable and amicable settlements which lead to peace in society. As a secondary role, the law is also helpful in dealing fairly with those who have already violated society’s peace. This is a simple point, but one which people often forget.
Those of us who have devoted our lives to the legal profession cannot however afford to forget this critical point. One of the practical implications of this view is exactly what Pakistan’s lawyers have demonstrated in the past, and in particular last half decade. One of the duties of lawyers is to assist the courts in administering justice, in specific cases before them. That is what you are expected to do in the courtroom. But an equally important role of the legal community is to stand up for the principle of the rule of law because that is the foundation of social order and peace. In the last five years, Pakistan’s lawyers have done just that: stand up for the rule of law in all areas of life. We have seen with our own eyes that once people begin to stand for the rule of law, so many conflicts which previously seemed impossible to resolve, begin to die down. And peace comes, once again, a goal within sight.
At the national level, the political scene has been dominated by bickering on institutionalizing religions on sectarian lines. There are also ideological, political and economic undercurrents. These conflicts are not unique to Pakistan. They are old stories. Almost all nations and societies have faced these tussles. History teaches us that the most successful way for long-term resolution of these conflicts is through the law-i.e. through constitutionalism. In fact, legal philosophers call the constitution, a social contract because it is in the nature of a settlement which brings together various conflicting parties and establishes peace amongst them. Adopting a constitution does not take those conflicts away.
They remain there. But they can now be resolved amicably and fairly, on the basis of the fundamental law. For as long as the constitution is adhered to, conflicting interests do not explode. But when the constitution is either abolished or simply side-lined, conflicts become hard to resolve. That is when force has to be resorted to, which is often more destructive.
If Pakistan today is facing a situation where peace seems a distant dream, we should realize that we have not come to this sorry state out of nowhere. We are paying a price to atone for sins of the past. It is an unfortunate fact that, for long periods of time, we did not treat the constitution with the sanctity that it deserves. Nations that value constitution and its strict application have been successful in overcoming challenges and resolving conflicts and issues. Scholars are unanimous in reaching the conclusion that the successive violations of the constitution and deviations from rule of law, led us astray and eroded the rule of law in Pakistan. Such state of affairs contributed to the atmosphere of violence and lawlessness which has long afflicted us.
The sorry events of 1971 are not unconnected to the subversions suffered by the Constitutions of 1956 and 1962. Similarly, the sectarian terrorism, extremism and ethnic violence that became so rampant in the last decade is not entirely unconnected to the outright subversion of the 1973 Constitution in 1977, and again 1999. Other, most subtle evasions of constitutional provisions, which continue even today, have also impacted negatively on national cohesive and development.
The cumulative effect of constitutional deviations and weak rule of law in the past has resulted into the present day militant and terrorist tendencies in certain regions of our country. There has occurred mushroom growth of militancy, which subsequently challenged the writ of the State. Ultimately, the state had to respond and counter these militant organizations.
The response however has to be within the framework of the Constitution. It is my considered view that if constitution and law were strictly followed in letter and spirit, there would have been no room for resorting to terrorism and all the outstanding issues could have been resolved.
A cursory look at the world history reveals the fact that economic development and law are intrinsically linked. In societies where there is rule of law, protection of private property, respect for the dignity of person, and where level playing field is provided, sustained economic and sociopolitical growth is bound to happen. However, the societies where discretionary powers held sway over rule based governance, and where individuals are stronger than the institutions, the result is chaos and anarchy where everybody loses in the end.
The present superior judiciary in the country is making a conscious effort that rule of law prevails and corruption is rooted out from the system and that a transparent and rule based environment is created, wherein investment flourishes and investors have the complete confidence in the system. Thus, the contemporary jurisprudence of the Supreme Court of Pakistan reflects these realities wherein not only billions of rupees were recovered from the shady government deals but also clear guidelines were given for good governance, merit-based transparent policies and conduct of economic activities in a fair and transparent manner.
There are many factors which provide a conducive environment for realizing the potential of law as an instrument to achieve everlasting peace. One such critical factor is the media as a watchdog body keeping an eye on the wider spectrum of public policy formulation and implementation.
It is heartening to note that the present media in Pakistan both print and electronic-has been playing this role effectively since the past many years. In fact, whenever the history of jurisprudence of contemporary of Pakistan will be written, the historian will find a clear connection between a watchdog media blowing the whistle on observing any malfunctioning in the executive branch and the responsive judiciary taking prompt and indiscriminate action.
The same media has also played its role in sensitizing the people of Pakistan about the importance of rule of law and supremacy of constitution. Today, not only the lawyers are ready to sacrifice everything for upholding the Constitution in the country but the entire the civil society, the academia the students and the general public are aware of their political rights and expect good governance from their political leaders. Thus, it is my firm belief that in the presence of the media, the movement of rule of law and supremacy of the Constitution is bound to achieve success despite some concerted efforts on the part of status quo oriented powers to disrupt this flow of history.
It is expected that the combination of factors like independent and assertive judiciary, an effective media presence and an assertive civil society is bound to produce good leadership in the country which commands the real respect of the people. The leadership should not only be aware of the challenges faced by the people but should have the capacity and the inclination to take on these challenges and provide workable solutions.
In the last decade, my learned brothers in the Supreme Court and I have had the privilege to give our constitutional jurisprudence a new direction. From personal experience as a judge of Pakistan’s highest constitutional court, I can tell you that when you stand for the law, the law does not disappoint. The law does call for sacrifice. Judges and lawyers, more than any other segment of society, have to make those sacrifices. But let me assure you that the law’s promise is real. If you stand for it, you are richly rewarded.
One of the rewards is peace in society, which leads to good law and order situation, flourishing of trade and business and attraction of local and foreign investment in the country. Economic growth, social cohesion and prosperity of the people should be the broad goals of our nation.
The legal fraternity through their struggle for the supremacy of the Constitution and rule of law can, and should, play a leading role in achieving peace and taking the country forward on the path of constitutionalism, good governance, protection of the honour, property and liberty of citizens.
Let us play our role so that our children live in safe, secure atmosphere and unleashed their potential for serving their families and the society, making us a great nation. With these words I conclude. I wish you useful and productive deliberations in the coming two days. I trust that all of you and especially the foreign delegates would have a good time and comfortable stay.
For more information, contact:
Shahid Hussain Kamboyo
Public Relations Officer
Supreme Court of Pakistan
Tel: +9251 920 4184
Fax: +9251 920 1001