Constitutional justice in Pakistan: read a speech by Pakistan's Supreme Court Justice Fazal Karim

This address was delivered at Reprieve's second annual death penalty conference in Pakistan on 13th April 2011.

Hon’ble Mr. Clive Stafford Smith OBE, Ms. Denny LeBoeuf, the board members of Reprieve, ladies and gentlemen.

I have had, as judge, the great honour and good fortune to be a part of the system of justice in Pakistan for thirty six long years. For most of these years, I was a trial judge and that was a great experience. As a trial judge you are brought into direct contact with the common man. I always treated my court, to borrow the memorable words of an Irish judge, as a temple of justice and myself as a minister in that temple. For a judge, the pursuit of justice is a noble pursuit and I deemed it an honour to be an instrument engaged in that pursuit. In the words of William Wordsworth: Bliss was it in that dawn to be alive…

Justice is largely an abstract and normative concept. The theory of justice belongs exclusively to the discipline of philosophy ad many attempts at defining it have been made. As a student of judicial review, I feel fascinated by what according to the Greek philosophers, including Plato and Aristotle, the conception of justice is. They thought originally, on grounds derived from religion, that each thing or person has its or his proper sphere; to overstep which is unjust. To the modern American political philosopher, John Rawls, justice is fairness; the fundamental idea of fairness, according to him, is impartiality. But can you think of a better system of social justice than that ordained by the Holy Quran. Chapter 51:19, namely that the needy and the have-nots have a share in the possessions of those who have. It is their right, not charity, not a favour.

However that may be, to the people, justice as Gerry Spence says is an ideal, not an instrument of power. To the people and the practitioners of law, justice is as Justinian defined it: “the firm and continuous desire to render to everyone that which is his due.”

It has been said that justice is difficult to define. That is true. But it is equally true that if you want to know what justice is, you must know what injustice is. As has been said, “if it were not for injustice, men would not know what justice is”. “In the little world in which children have their existence”, says Pip in Charles Dickens’s Great Expectations, “there is nothing so finely perceived and finely felt as injustice”. A starving child longing for and denied with disdain, a piece of bread, as innocent woman with a suckling baby in her lap, incarcerated for an unknown offence, a condemned man convicted on false evidence and in complete disregard of his constitutional criminal fundamental rights, languishing in a death-hole, wishing for his case to be heard, all know very well what injustice is. As I owed so much to the institution of law and justice, I thought, after retirement, of repaying at least a part of my debt. My way to do so was to write books. I wrote “Access to Justice in Pakistan”, “Judicial Review of Public Actions” and recently “The Law of Criminal Procedure”.

I do not know whether you are familiar with these books, whether you have them in your library and whether you have read them, but I can tell you in confidence that my books are better than me.

From a judge, long retired, it was a big psychological leap to be a teacher in law. And what an opportunity. As a teacher, I could afford to indulge in what John Rawls described as “thought experiement”. Like Socrates, I could ask questions, but unlike Socrates, without the fear of being put to death for asking questions. I started asking questions such as:

Do you know…

That Pakistan is governed by a written constitution; that the theory essentially attached to a written constitution is that it is paramount law of the land that any act, legislative or executive, in opposition to the constitution is void.

That almost all the fundamental human rights have been incorporated in the written constitution.

That the constitution not only guarantees these rights but also provides for their effective vindication.

That most of the rights so guaranteed are criminal procedural rights.

In incorporating these rights in its constitution, Pakistan has, like many other countries, followed the American constitution, the oldest written constitution of the world, described by the British statesman and Prime Minister, William E. Glodstone as, “the most wonderful work ever struck off at a given time by the brain and purpose of man”.
The first ten amendments to the American Constitution, passed in 1791, known as the Bill of Rights, read with the 14th Amendment, guaranteed 23 fundamental right. Of them, 12 rekated to criminal procedure, and this led Lawrence M. Friedman, in his “History of American Law” to say that “the Bill of Rights contained, in a way, a mini-code of criminal procedure.” The rights guaranteed by the American constitution include the right to the writ of habeas corpus, the right against Bill of Attainder or against ex-post facto law, the right against unreasonable searches and seizures, the right to trial by jury, the right against double jeopardy, the right of the accused against self-incrimination, the rights in all criminal prosecutions to speedy and public trial, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favour and to have the assistance of counsel for his defence, the right against excessive bail, the right against cruel and unusual punishment.
Also guaranteed by the American constitution is the general right not to be deprived of life, liberty and property without due process of law, as well as the right to equal protection of the laws.

In the exercise of their power to interpret their own field of creative endeavour, the judges of the Supreme Court of America have developed and expanded these rightsl they have also created judicial remedies by effectively safeguard them. Thus, the right to be heard has come to mean the right to be heard by counsel. The right to the assistance of counsel includes assistance at the police station. It means also that if the person accused is too poor to hire a counsel at his own expense, the state shall provide him with one at state expense. For there can be no equal justice, when the kind of trial a man gets depends upon the amount of money he has. There is, it has been held, an intimate relationship between the right against self-incrimination and the right to counsel: according to what have famously come to be known as Miranda warnings, prior to any questioning, , the suspect must be warned that he has a right to remain silent, that any statement that he does make may be used as evidence against him, and that he has a right to the presence of a counsel, either retained or appointed. Any statement, any evidence, stemming from custodial interrogation without the use of these procedural safeguards cannot be used at the trial. Right to be confronted with the witnesses against him includes the right to cross-examine and the right against hearsay. There is then the controversial exclusionary rule; subject to some well known exceptions, any evidence obtained in violation of a constitutional right, e.g. right to privacy, will be inadmissible, for the judges will not allow their judicial integrity to be compromised by being a party to a constitutional violation. This exclusionary rule, it may be mentioned, has reversed a long-standing common law rule that evidence, if relevant, is admissible, and the court is not concerned with how it was obtained. Also, presumption of innocence and proof beyond reasonable doubt are, according to the US Supreme Court, part of the right to due process of law.

This is how the constitutional criminal procedure, that is the criminal procedure which has its roots in the constitutiona, has evolved in America.
It reamines to see the relevance of the American cases, or for that matter, cases from Great Britain and the EU, to the criminal jurisprudence of Pakistan. We have seen that in incorporating the fundamental human rights into our written constitution, we have followed the American pattern. Then, all the important human rights in the democratic constitutions of the world, including the US and Pakistan are common. In fact, as has been noted in one of our cases “Pakistan has…improved upon them in more than one respect. For example, the dignity of man and woman, and privacy of home, are inviolable, and the right against torture for extracting evidence is expressly protected. As has been said by the Indian Supreme Court in relying upon some American cases on the equality clause, “In considering the authorities of the superior courts in the US, we would not be incorporating principles foreign to our constitution or be proceeding upon the slippery ground of apparent similarity of expressions or concepts in an alien jurisprudence developed by a society whose approach to similar problems on account of historical or other reasons differs from ours.” As regards cases from the UK, they have, to quote from another case, “a direct bearing under the system of law and the constitutional pattern we have chosen to adopt in Pakistan.’

Some of the fundamental rights in the constitution of Pakistan have been expressed in the same or similar language as in the constitution of the US. The recent Article 10A of the constitution of Pakistan which reads:“For the determination of civil rights and the obligations or in any criminal charge against him a person shall be entitled to a fair and due process”, seems, if one may hazard a guess, to have incorporated into the constitution of Pakistan both the English and European concept of pr procedural fairness and its predecessor, due process of law. Due process of law was, in its origin, an English concept, but as it was enshrined in the US constitution, it is now treated as an American concept, and rightly in my opinion, for a great and respectable body of case-law has developed around it in America.

I have argued therefore in my book “The Law of Criminal Procedure” that we should develop our own constitutional criminal procedure jurisprudence. Because constitutional criminal procedure will be a new creature in the jurisprudential landscape of Pakistan, we can make a liberal use of the accumulated wisdom and experience of other jurisdictions; we can glean guidance from all available sources. Indeed, in doing so, we must not lose sight of our traditions and conditions.

May I, with your permission, conclude with a very relevant poem by SEAMUS Heaney, in which the aggrieved persons you people in Reprieve represent in the courts might find their voice reflected. The poem has been quoted in “the Idea of Justice” by Amartya Sen:
“History says, don’t hope
On this side of the grave
But then, once in a lifetime
Then longed for tidal wave of justice can rise up,
And hope and history rhyme”

I thank you, ladies and gentlemen, for hearing me out. I thank the board members of Reprieve, Sarah Belal in particular, for providing me with this opportunity to speak on constitutional criminal procedure which it is my ardent hope is developed, taught practiced and enforced in Pakistan.