The rulers of Pakistan ignored the teachings of Quaid-e-Azam, a great leader and brave lawyer to protect their vested interests.
The founder of Pakistan Quaid-e-Azam Muhammad Ali Jinnah was a renowned constitutional and legal expert in united India. Barrister Joachm Alve remembered Jinnah in the following words:
‘When he stood up in court, slowly looking toward the judge placing his monocle in his eye with the sense of timing you would expect from an actor, he became omnipotent. Yes that is the word ‘omnipotent’, he cast a spell on the court room, head erect, referred by the worst circumstances. He has been our boldest Advocate.’ Once a magistrate said to Jinnah, ‘Mr Jinnah remembers that you are not addressing a Third Class Magistrate.’Jinnah answered, ‘My lord allow me to warn you that you are not addressing a third class pleader.’
Unfortunately, the rulers of Pakistan ignored the teachings of Quaid-e-Azam, a great leader and brave lawyer to protect their vested interests. Quaid-e-Azam supported the resolution moved by one of India’s most distinguished jurists Sir Hari Sing Ganr for the establishment of Supreme Court of India. In a speech in the assembly on February 17, 1925, Jinnah alleged ‘The Privy Council have on several occasions absolutely murdered Hindustan and slaughtered Mohammdan Law.’
Jinnah renewed the proposal in an amplified form at the federal structure sub-committee of the Second Round Table Conference on October 27, 1931. He proposed three courts at the apex of the judicial hierarchy ‘a federal court on constitutional matters, a Supreme Court to hear appeals from the High Court on federal laws and criminal court of appeal. [A. G. Noorani] In 1949 the basic law of Germany established federal constitutional court as well as the federal court of justice, the federal administrative court, the federal finance court, the federal labour court and the federal social court. The basic idea was to provide the citizens speedy justice.
The federal court, Jinnah emphasised, should not only have jurisdiction over disputes between the federation and the provinces and over disputes among provinces but its doors should be kept open for the citizen if his rights were violated. He explained ‘The personnel of the court will be qualified in those constitutional matters as constitutional lawyers, because the question dealt with will arise, as we have contemplated, between the federation and the units and between the units inter se. Further, I maintain that it should be open to any subject, if his right is invaded or attacked ‘relating to the constitution of course, or arising out of the constitution’ to go to the federal court direct.’
However, he envisaged also a procedure adopted later in the constitutions of France and Sri Lanka for a reference to the court before the bill is enacted. ‘If there is any measure which infringes any provision of the constitution’ which includes fundamental rights and many other things’ if it infringes any provision of the constitution which affects any subject or any community or any class and if an objection is raised, by at least a majority of two-thirds, that if affects their particular right under the constitution, that measure ought to be suspended and within one month that party or a member of the party or community should be entitled to file an action.
If the courts are thus separated, lawyers who have specialised in that particular branch of the law will be appointed judges. ‘This is an age of specialisation’ he reminded the members. Yet lawyers handled cases on different subjects ranging from marriage and divorce to contracts, admiralty and easements.
Experience has amply vindicated Jinnah. The Law Commission of India proposed some years ago bifurcation of the Supreme Court of India to set up a separate constitution court. The suggestion was viewed with deep suspicion because of Prime Minister Indira Gandhi’s policy of appointing ‘committed’ persons to the bench.
The Charter of Democracy (2006) embodies a bipartisan accord on a federal constitutional court. If the matter is considered fully in light of Jinnah’s detailed exposition on October 27, 1931, a more nuanced proposal would emerge.
Ms Benazir Bhutto and Mian Nawaz Sharif signed Charter of Democracy on May 14, 2006, both national leaders agreed.
‘A federal constitutional court will be set up to resolve constitutional issues, giving equal representation to each of the federating units whose members may be judges or a person’s qualified to be judges of the Supreme Court constituted for six-year period. The Supreme Court constituted for six-year period. The Supreme Court and High Court will hear regular civil and criminal cases. The appointment of judges shall be made in the same manner as for judges of higher judiciary.’
The enormous backlog has resulted in gross delays in the disposal of cases. The rulers of Pakistan are supposed to establish federal constitutional court as early as possible to provide relief to the common man in view of Charter of Democracy and the teachings of the Quaid-e-Azam.