Jurisprudentia of Justice Jawwad S. Khawaja

Jurisprudentia of Justice Jawwad S. Khawaja

 TABLE OF CONTENTS

• ABSTRACT

1. AUTOBIOGRAPHY OF JUSTICE JAWWAD S. KHAWAJA
2. FUNDAMENTAL LAW: THE CONSTITUTION
3. SUPREMACY OF CONSTITUTION
4. REJECTED THE SUPREMACY OF PARLIAMENT
5. PRINCIPAL OF PUBLIC RULE
6. CONCLUSION AND THEORY OF CONSTITUTIONALISM

• INDEX OF AUTHORITIES
• REFERENCES

ABSTRACT

The author explores five judgments[1] of the Supreme Court of Pakistan specifically upheld by Justice Jawwad S. Khawaja. He examines numerous contentious issues arising from the questions raised in court and analyses how Justice Jawwad S. Khawaja reacted to those questions and which theory of jurisprudence was upheld by him.

1. BIOGRAPHY OF JUSTICE JAWWAD S. KHAWAJA

Mr. Justice Jawwad S. Khawaja was born on 10th September 1950, in Wazirabad, District Gujranwala. He did his graduation in Arts in the year 1971 from FC College, Lahore and LL.B from the Punjab University Law College, Lahore in 1973. He then obtained an LL.M degree from the University of California, Berkeley in 1975. Thereafter, he was enrolled as an Advocate of the High Court in 1975 and as Advocate of the Supreme Court in 1985. He remained in legal practice until his appointment as a judge of the Lahore High Court on 21st April 1999. He resigned from his post on 19th March 2007. He then remained Professor of Law at the Lahore University of Management Sciences (LUMS) and headed the Department of Law and Policy until his appointment as a judge of the Supreme Court of Pakistan on 5th June 2009.[2]

2. FUNDAMENTAL LAW: THE CONSTITUTION

In our first selected judgment (PLD 2012 SC 664)[3], the history of Pakistan was discussed and it was declared that “our nation needs to understand and play the role envisaged for the Supreme Court by the Constitution. The court has endeavored to uphold the Constitution and has stood up to unconstitutional forces bent upon undermining it.”[4] Furthermore, Justice Jawwad S. Khawaja stated that “at least since March 2007, this court has trod only one path ahead of it – the path of the law and the Constitution- which is our only hope of preserving the gains of the “unremitting struggle of the people against oppression and tyranny.”[5]

In the second chosen case reported as PLD 2013 Supreme Court 195[6], Justice Jawwad S. Khawaja upheld the same principle of law and Constitution of Pakistan. The judgment states,

“The aim of Constitution, to further the welfare of the people of Pakistan, articulates the same principles. The truth is that principle pertaining to the setting up of a just and constitutional government are eternal, not peculiar to our times. Our law, constitution and courts only apply these universal and time-tested principles to the prevalent situation.”[7]

He further added that there was the obligation on administrator and enforcer of law to remain compliant with Constitution and law.[8] According to Article 5 of the Constitution, every citizen of Pakistan has the foremost duty of “obedience to the Constitution and the law.“[9]

The elected representatives in Parliament and the executive cannot claim any primacy over and above the Constitution. It is the Constitution which is supreme over all organs of the state because it manifests the will of the people. This is expressly stated in the Constitution itself. In the Preamble, for instance, the Constitution is mentioned as expressing the “will of the people of Pakistan to establish a constitutional order” and in the Third Schedule, it is stated clearly that the Constitution “embodies the will of the people”. It is this fundamental principle which is the hallmark of our democratic dispensation.[10] The same principle has been upheld in another judgment in these words: “they have a legitimate claim to being enforcers and exponents of the will of the people.”

To sum up, our Constitution conceives of an order wherein the various organs of the state are co-equals, each manifesting the will of the people and giving effect to such through adjudication, executive action or legislation. It is important that the primacy of the Constitution over the government as also over the judicature be fully understood.”[11] Moreover, the fundamental law is the Constitution and has precisely concluded to, “preserve, protect and defend the Constitution of the Islamic Republic of Pakistan”.[12]

3. SUPREMACY OF CONSTITUTION

Quoting James Madison in one of his judgments, Jawwad S. Khawaja says,

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”[13]

In our Constitution, the division of powers with its distinct features is perhaps the most important of these “auxiliary provisions” which oblige the government and Parliament to themselves be controlled by constitutional norms and mechanisms.[14]

4. REJECTED THE SUPREMACY OF PARLIAMENT

Jawwad S. Khawaja cites the judgment of Lord Steyn writing in the House of Lords, the highest Court of England, in these words: “The classic account given by Dicey of the doctrine of supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom”.[15] It is about time, sixty-five years after independence, that we unchain ourselves from colonial masters for our own peoples’ Constitution as the basis of decision-making on constitutional issues.[16]

The same view has been upheld by him in another judgment in the following words:

“The European Convention on Human Rights as incorporated into [UK] law by the Human Rights Act, 1998, created a new legal order…The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom.”[17]

5. PRINCIPAL OF PUBLIC RULE

In an another selected case[18], Jawwad S. Khawaja upheld the constitutional order and principal of public rule. He says that the Constitution of 1973 has not been bestowed as a matter of grace on the people of Pakistan by a monarch or a foreign parliament as, for instance, is the case with Canada, Australia and a number of other countries. Our constitutional order has been established by “the will of the people of Pakistan“. All state functionaries have to understand that in a very real sense, they are employed in the service of the people of Pakistan and are paid for by them. The loyalty, therefore, of these state functionaries has to be to the constitutional order established by the people.[19]

Additionally, Juice Khawaja refers to Justice Cornelius who, he says,“boldly asserted that the Constituent Assembly of Pakistan was” “not a creation of the British Parliament…” It was simply,

“a body representative of the will of the people of Pakistan in relation to their future mode of Government. The will of the people had, up to that time, been denied expression in this respect, through the presence, by virtue of conquest and cession, of the undisputed and plenary executive power in India of the British Sovereign… that power did not owe its existence to any law…”[20]

Forbye, the same notion of supremacy of the “will of people” as crystallized in our written Constitution has been repeated.

“This has been observed in above-mentioned judgment, “there is no justification in our dispensation, for muddying the crystal and undefiled waters of our constitutional stream with alien and antiquated, 19th Century Diceyan concepts of Parliamentary supremacy. These concepts have lost currency even in their own native lands. In the afore cited case, we have held that “it is about time, sixty-five years after independence, that we unchain ourselves from the shackles of obsequious intellectual servility to colonial paradigms and start adhering to our own peoples‟ Constitution as the basis of decision making on constitutional issues”.[21]

However, the consequence of what is good or bad for the people must be left to the elected representatives of the people, subject only to the limitations imposed by the Constitution.[22]

Jawwad S. Khawaja has upheld the principle of public rule and a more recent case, the Asma Jilani case, has been referred to where Justice Hamood ur Rahman CJ approvingly described the principle as the “cornerstone of Pakistan’s legal edifice and as the bond which binds the nation and as a document from which the Constitution of Pakistan must draw its inspiration.” Furthermore, another case[23] has most accurately summed up the position of the Preamble. He noted that the Preamble,

“shows the will of the people” and is the key to the understanding of the constitution.[24]  In case of Kesavananda Bharati and more recently Ashoka Kumar Thakur, the Court held that “when a constitutional provision is interpreted, the cardinal rule is to look to the Preamble to the Constitution as the guiding star. The preamble embodies the hopes and aspirations of the people”[25]

6. CONCLUSION AND THEORY OF CONSTITUTIONALISM

If we connect all of the above, it can easily be concluded that Justice Jawwad S. Khawaja is the upholder of the theory of constitutionalism. Constitutionalism is a theory and in practice stands for the principle that there are, in a properly governed state, limitations upon those who exercise the powers of government, and that these limitations are spelled out in a body of “higher law”[26] which is enforceable in a variety of ways, political and judicial.[27] However, there is a rich tradition of state constitutionalism that offers broader insight into constitutionalism in the United States.[28] Furthermore, the principal of constitutionalism had been declared by James Madison and he has been cited by Jawwad S. Khawaja in his judgments many times, as it has been mentioned above. For the foregoing reasons, it can be concluded that Jawwad S. Khawaja upholds the theory of constitutionalism. Additionally, this theory has been endorsed by Jawwad S. Khawaja in the context of Pakistan, its history and social norms of the society. Furthermore, Jawwad S. Khawaja strongly condemns the imported theories of other jurists who have not been familiar with our social norms and structure of our legal system and whose theories have been applied by our judiciary in different judgments as quoted from one of his judgments:

“Maulvi Tamizuddin Khan, the Governor General’s Reference and Dosso when the court went beyond the Constitution and founded its judgments on notions such as “salus populi suprema lex” and a distorted version of Hans Kelsen’s doctrine of revolutionary legality. Reliance on theories, counter theories and variants of the same thus highlight another hazard in the adjudication of constitutional cases as such reliance may stray from the Constitution.”[29]

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INDEX OF AUTHORITIES

Supreme Court of Pakistan Cases

1. SUO MOTU ACTION REGARDING ALLEGATION OF BUSINESS DEAL BETWEEN MALIK RIAZ HUSSAIN AND DR. ARSALAN IFTIKHAR ATTEMPTING TO INFLUENCE THE JUDICIAL PROCESS PLD 2012 SC 664.
2. SYED MAHMOOD AKHTAR NAQVI VERSES FEDERATION OF PAKISTAN PLD 2013 SC 195.
3. WATAN PARTY VERSES FEDERATION OF PAKISTAN PLD 2012 SC 292.
4. MUHAMMAD AZHAR SIDDIQUI VERSES FEDERATION OF PAKISTAN PLD 2012 SC 774.
5. DISTRICT BAR ASSOCIATION, RAWALPINDI AND OTHER VERSUS FEDERATION OF PAKISTAN PLD 2015 SC 401.
6. SYED YOUSAF RAZA GILLANI VERSUS ASSISTANT REGISTRAR, SUPREME COURT OF PAKISTAN, PLD 2012 SC 466.
7. MUBASHAR HASSAN VS. FEDERATION OF PAKISTAN, PLD 2010 SC 265.

House of Lords Case

1. JACKSON & OTHERS (APPELLANTS) V. HER MAJESTY’S ATTORNEY GENERAL (RESPONDENTS) [(2005) UKHL 560].

Indian Supreme Court Case

1. ASHOKA KUMAR THAKUR VS. UNION OF INDIA (2008 [6] SCC 1.

Books and Scholarly Articles

1. PHILIP P. WIENER, ED., “DICTIONARY OF THE HISTORY OF IDEAS: STUDIES OF SELECTED PIVOTAL IDEAS”, (DAVID FELLMAN, “CONSTITUTIONALISM”), VOL 1, PP. 485, 491–92 (1973–74).
2. ALAN TARR, UNDERSTANDING STATE CONSTITUTIONS (PRINCETON UNIV. PRESS, 1998) AND JOHN J. DINAN, THE AMERICAN STATE CONSTITUTIONAL TRADITION (UNIV. PRESS OF KANSAS, 2006).
3. JAMES MADISON, IN HIS REMARKS INTRODUCING THE BILL OF RIGHTS, 8 JUNE 1789, ANNALS 1:424–50
4. JAMES MADISON, IN FEDERALIST NO. 51, THE FEDERALIST PAPERS.

Website

1. OFFICIAL WEBSITE SUPREME COURT OF PAKISTAN.

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References:

[1] PLD 2012 SC 664; PLD 2013 SC 195; PLD 2012 SC 292; PLD 2012 SC 774; PLD 2015 SC 401.
[2] Source, Official Website Supreme Court of Pakistan.
[3] PLD 2012 SC 664.
[4] PLD 2012 SC 664, Pg. 668-669.
[5] PLD 2012 SC 664, Pg. 678.
[6] PLD 2013 Supreme Court 195.
[7] PLD 2013 Supreme Court 195, Pg. 201.
[8] PLD 2013 Supreme Court 195, Pg. 203.
[9] PLD 2013 Supreme Court 195, Pg. 203.
[10]  PLD 2012 SC 774, Pg. 835.
[11] Syed Yousaf Raza Gillani versus Assistant Registrar, Supreme Court of Pakistan, PLD 2012 SC 466 Para 34.
[12] PLD 2015 Supreme Court 401. pg.100 Pg. 151-152; Article 65 read with the Third Schedule.
[13] James Madison, in Federalist No. 51, The Federalist Papers.
[14] PLD 2012 SC 774, Pg. 836.
[15] Jackson & others (Appellants) v. Her Majesty’s Attorney General (Respondents) [(2005) UKHL 560].
[16] PLD 2012 SC 774, Pg. 839.
[17] PLD 2015 Supreme Court 401. pg.100; Jackson v. Attorney General ([2005] UKHL 56).
[18] PLD 2012 SC 292.
[19] PLD 2012 SC 292, Pg. 359-360.
[20] PLD 2015 Supreme Court 401,  Pg. 105.
[21] PLD 2015 Supreme Court 401, Pg. 101; Muhammad Azhar Siddique vs. Federation of Pakistan (PLD 2012 SC 774).
[22] Mubashar Hassan vs. Federation of Pakistan (PLD 2010 SC 265).
[23] Dr. Mubashar Hassan v. Federation of Pakistan (PLD 2010 SC 265), Ch. Ijaz Ahmed, Justice.
[24] PLD 2015 Supreme Court 401, Pg. 133-134.
[25] PLD 2015 Supreme Court 401, Pg. 131; Ashoka Kumar Thakur vs. Union of India (2008 [6] SCC 1).
[26] In the case of Pakistan it is Supreme Court.
[27] Philip P. Wiener, ed., “Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas”, (David Fellman, “Constitutionalism”), vol 1, pp. 485, 491–92 (1973–74).
[28] G. Alan Tarr, Understanding State Constitutions (Princeton Univ. Press, 1998) and John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006).
[29] PLD 2015 Supreme Court 401, Pg.143.

 

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