The Counsel


Address delivered by Mr. Justice (R) Fakhruddin G. Ebrahim at the Annual Dinner of the Karachi Bar Association

held on 25th May, 1983

Dear Mr. President, Members of the Karachi Bar Association and friends:

To begin with, kindly permit me to thank you and the august members of this premier Bar in the country for doing me this signal honour to be the Chief Guest at your Annual Dinner this evening. I am not unconscious of the fact that this is a departure from your normal practice to invite a sitting Judge, preferably the Chief Justice to be the Chief Guest. I am truly overwhelmed by the kind words you have spoken about me. Believe me I have done no more than my duty and what I thought to be right and proper. I have always received great affection and love from the members of the Bar and equally from my colleagues on the Bench. The most pleasant time of my life has been spent in the Temple of Justice, our superior courts. God was kind enough to make me a Judge and let me tell you that there is no other assignment which has given me so much happiness and so much satisfaction, but the price that the Provisional Constitution Order 1981 demanded had to be paid and it was paid willingly and without a moment’s hesitation, and I alongwith some of my colleagues made an honourable exit. All that is now an old story and it is not for me to judge that we were right in refusing to take the pre-emptory oath though I sincerely believe that we were right and history will so record it.
   In the recent past we have witnessed a meaningful controversy in the national press on the subject of the film ‘Gandhi’. Commendable articles were written and justifiable indignation expressed at attempt made in the movie to run down our national hero, the founder of our State, Quaid-e-Azam Mohammad Ali Jinnah.
   Sometime ago there was a campaign launched in the city of Karachi to keep the city clean. Banners and buntings on the roadside exhorted us to keep the Quaid’s city clean.
   Every year, if not thrice, at least twice on the occasion of the birth and death anniversary of our Quaid, we acknowledge our debt to Quaid and pay him rich tributes for his relentless struggle for a homeland for Indian Musalmans, for the principles of democracy, rule of law, independence of judiciary and human rights for which the Quaid stood for so valiantly and so selflessly.
   Yes, keep the Quaid’s city clean. But the question arises how far we have kept the Quaid’s country clean and healthy? How far we have in practice followed the aspirations of Quaid? How far we have stood for the principles for which Quaid lived and died?
   Time has come to take stock of the prevailing conditions in the country, before our existence becomes meaningless and we become a country without any aspirations, a country without its soul.
   Let me tell you, my good friends what Quaid stood for in his own words.
   On the role of Bureaucracy, Quaid-e-Azam, while addressing the Bombay Provincial Conference at Ahmadabad in October 1916, replying to the argument that people should be satisfied that the then alien bureaucracy had given a most efficient administration and the civil servants were devoted to their duties and had the welfare of the Raiyyat at their hearts, the Quaid stated:

"It is said that all is going well – everything is managed properly on behalf of the people by the Civil Servants. Assuming all this to be correct and granting that there is peace and prosperity and efficient administration entirely in the hands of the Civil Servants, is that any reason that the control, the management and the Administration of the affairs of our country should have for ever be continued as a monopoly in the hands of a bureaucratic Government?"

The Quaid further observed that:

"The system of administration conducted by the Civil Servants who are neither under the control of or responsible to the people, who pay their salaries, can no longer continue."

In Pakistan the beauracy though indigenous has, in the absence of political process, remained the master of all it surveys, and they have been happier placed for the alien beaucracy was at least ostensibly responsible to the Secretary of State for India and the Secretary of State India in turn was responsible to the British Parliament.
Quaid-i-Azam was un-compromisingly against conferment of arbitrary powers, particularly powers which encroached upon individual liberties. Protesting against the internments, the Quaid while addressing a meeting convened under the auspices of Bombay Presidency Association on 30th July 1917 said

"Ladies and Gentlemen, It seems obvious that if we accept the policy of the Government, all constitutional and lawful agitation will in effect, be stopped, that the freedom of speech and the press and the right of public meeting under the British Flag is henceforth to be regulated by the arbitrary judgment and decision of a Provincial Governor or Government, that the Executive are to decide what is lawful and constitutional propaganda without reference to the Courts of Justice of His Majesty the King Emperor."

The Quaid was resolutely against laws which excluded the judicial supervision of the Executive actions for according to him you cannot prevent abuse of arbitrary powers. And while speaking before the Legislative Council on the Press Act 1910, made a grievance of the fact that there was no provision for an appeal and went on to address the Government in these words:

"I do not wish for a single moment that any culprit who is guilty of sedition, who is guilty of causing disaffection, who is guilty of causing race-hatred, should even escape, but at the same time, I say, protect the innocent, protect those journalists who are doing their duty and who are serving both the public and the Government by criticizing the Government freely, independently, honestly – which is an education for any Government."

   Quaid’s passionate love for personal liberty is fully expressed in the debates in Legislative Council on the question of Criminal Law (Emergency Powers) Bill. This Bill was presented to the Council on 6.2.1919 and was based on the recommendations of the Rowlatt Committee. The Bill was divided into 5 parts. The first part provided for the speedy trial of offences and also for trial in camera. Part 2 dealt with preventive measures including the power of detention and directing a person to abstain from entering any specified area. Part 3 of the Bill empowered the Governor General to declare that in his opinion a particular movement was likely to lead to the commission of offense against the State. The Quaid stated that:

"My lord, to any man who believes in law and justice, these measures must seem abhorrent and shocking and went on to say that:"

"It is against the fundamental principles of law and justice namely that no man should lose his liberty or be deprived of his liberty without a judicial trial in accordance with the accepted rules of evidence and procedure………. that the powers which were going to be assumed by the Executive means substitution of Executive for Judiciary, and that such powers are likely to be abused and in the past we have instances where such powers have been abused. And that there was no precedent or parallel that I know of in any other civilized country where you have laws of this character enacted."

Answering the argument that the law provided for, by way of remedy, an investigating authority to examine the detention, Quaid complained that:

"This inquiry was anything but a judicial inquiry……. This was a very serious matter when you are dealing with the liberty of the subjects."

and went on to ask:

"How can you expect this investigating authority sitting in camera behind the back of the person accused, to come to any really useful conclusion?"

The Qaid then went on to say that:

"It is quite clear and it is obvious that this measure is of a most serious character. It is dangerous. It imperils the liberty of the subject and fundamental rights of a citizen and, my Lord, standing here as I do, I say that no man who loves fair play, who loves justice and who believes in the freedom and the liberty of the people can possibly give his consent to a measure of this character."

The Quaid also complained that:

"The Bill was brought into the Council by an executive government, and the executive government that has got no mandate from the people at all."

   My friends, Quaid was so disgusted with the Criminal Law (Emergency Powers) Bill that when it was passed by the Imperial Legislative Council, he resigned from the Imperial Legislative Council and in his letter of registration addressed to the Viceroy wrote:

"The Government of India and Your Excellency, however, have thought it fit to place on the Statute Book a measure admittedly obnoxious and decidedly coercive at a time of peace, thereby substituting the executive for judiciary.
Today, three quarters of a century later we have on our Statute Book a Law,"

M.L.O. 12, which enables the executive to detain a person indefinitely, not only without any trial, but even without communicating to him the grounds for detention. And what is more unfortunate that the detenue has no right to challenge the executive action in any Court of Law. I dare say, it is not a law of preventive detention but is a law that imposes nothing less than arbitrary punishment, while it is the exclusive jurisdiction of the Courts to punish a person. Quaid called part 2 of the Criminal Law Amendment Bill abhorrent and shocking. On another occasion while speaking on the Bengal Criminal Law Amendment Ordinance in the Indian Legislative on 28.1.1925, he stated:

"My liberty should not be taken away without a judicial trial in a proper court where I have all the rights to defend myself."

   Again on 25th March 1925, speaking on the Bengal Criminal Law Amendment Act – Supplementary Bill, which provided for indefinite detention without a trial the Quaid stated:

"This (Act) is an engine of oppression and of repression of legitimate movements in this country and it has been abused in the past and there is every likelihood of its abuse in the future."

   Ladies and Gentlemen, I have no words to describe the most unfortunate M.L.O. 12
   Quaid’s love for democracy is proverbial.
   As far back as December, 1916, addressing the Lucknow Session of the All India Muslim League, the Quaid-i-Azam ridiculed the view that democratic institutions cannot thrive in the environment of the East and that the only form of Government suitable for India was autocracy.
   In 1947, the Muslim League Assembly Parties in various Provinces were going to elect their leaders, and some candidates were claiming Quaid’s support. Quaid publicly declared that it was entirely the responsibility of the Assembly Parties and they should freely and fairly choose their leaders whom they consider best.
Addressing your Association at a reception held on 25.1.1948 the Quaid stated:

"Islam and its idealism have taught democracy. Islam has taught equality, justice and fairplay to everybody. What reason is there for anyone to fear democracy, equality, freedom on the highest standard of integrity and on the basis of fairplay and justice for everybody."

Quaid went on to say that:

"Let us make it (the future constitution of Pakistan). We shall make it and we will show it to the world."

Quaid again and again emphasized the role of judiciary as a vital and an independent institution to safeguard the rights and liberty of the citizens and even on a small matter like appointment of Additional Judges, while addressing the Federal Structure Sub Committee of the Second Indian Round Table Conference, stated that:

   It is demoralizing to the Bench; it is demoralizing to the profession. I think it is an undesirable practice. Once you appoint a Judge let him remain there."

   Poor Quaid was alarmed that Additional Judges were appointed. He called such appointments demoralizing for the Bench. Alas; now far and wide we have traveled since then. It is now common to extend the term of Additional Judges from year to year. They are no longer automatically confirmed after two years.
   Quaid said let them be there permanently. But today for more than two years we do not have a single permanent Chief Justice in Pakistan. What is the position of Supreme Judiciary since the Provisional Constitution Order 1981. It is this:
(i) Judges of the superior Courts are over-night, without even the courtesy of a notice, transferred from one court to another, hundred miles away from their homes on the pain that if they do not agree they will cease to be Judges;
(ii) the judges of the superior Courts have in fact been removed without assigning any reason;

(iii) the judges cease to be judges and stand compulsorily retired if they do not take the oath prescribed to sustain a regime in power;

(iv) when duly considered judgments and orders of superior Courts have been nullified and rendered redundant;

(v) the vital jurisdiction of the superior Courts is curtailed and the laws which reach you and me cannot touch select body of men whose actions are not subject to judicial review by Courts.

   Independence is the soul of Judicial and the soul of Judiciary has been silenced.

   My young friends, I regret to say that my generation has failed Pakistan. We have failed to give a representative parliament, we have failed to give a responsible Government, we have failed to give you an independent judiciary.

   In today’s Pakistan principles are at a discount and values have become valueless. We no longer feel for causes. We no longer feel for Pakistan. Our hearts no longer bleed for Pakistan.

   It is my earnest hope and prayer that under your future leadership things will be different for there is yet time to save Pakistan, this beloved God’s gift, which has given us so much, so soon and to so many of us. The other day there was an editorial in Dawn captioned “Restore Quaid’s House”. My friends, Quaid’s house was Pakistan. Let us restore Quaid’s Pakistan before it is too late, before it is too late.

Khuda Hafiz