June 7, 2009 3:38:44 am
The conference organised by the Qatar Law Forum last week in Doha attracted large number of lawyers,judges and jurists from different parts of the world,including India. The theme was Global Commitment to the Rule of Law. The warmth and geniality of Lord Harry Woolf of Barnes,the moving spirit of the conference,greatly contributed to its success
It was highlighted that Rule of Law is not a mere legalistic slogan. It denotes a way of life,commitment to certain principles and values. It is the priceless inheritance of civilisation. It transcends national frontiers and geographical boundaries,there is nothing Western or Eastern about it. The PM of Qatar emphasised that consolidation of the rule of law at the national level was not sufficient unless adopted at the international level. In his brilliant speech,Lord Phillips,President-elect of the Supreme Court of the UK,made an eloquent plea that without a universal commitment to the ultimate authority of law,founded on principles and administered through independent,stable and respected judicial systems,the world as we know it is not going to survive.
One of the documents circulated during the conference was Judicial Guidelines from the second Khalifa of Islam in 1300 A.D. approx. to the Governor of Basra. Some of these guidelines are of abiding relevance. For example,It is useless to talk of a right that is not enforceable. Again,the admonition to treat the people equally in your court…so that the noble shall not aspire to your partiality,nor the humble despair of your justice. As regards precedents,it is stated,Do not let a judgment that you judged yesterday,and then reconsidered prevent you from returning to the truth…which is better than persistence in error. This is in keeping with our Supreme Court judgments.
Release of Hafiz Saeed
At first blush,it seems unfair to blame the Pakistan Government for the release of Hafiz Saeed by the Lahore High Court. It appears that the grounds of detention were furnished three months after Saeeds detention instead of 15 days as statutorily mandated. Besides,there was no specific material alleged against Saeed which would justify the necessity of his detention,save and except citing the UN resolution against him. In these circumstances,the High Court was constrained to quash Saeeds detention order,not on technical grounds but for non-compliance with mandatory requirement of law.
Orders of preventive detention are very strictly construed by courts. Our Supreme Court has on several occasions ordered release of dreaded criminals and militants if their detention was in contravention of statutory requirements and safeguards. Besides,courts of law have to act on the basis of evidence and the material produced. Many criminals who committed arson and murder during the 1984 anti-Sikh riots were acquitted because of shoddy police investigation and deep loopholes in the evidence.
The critical question is why did Pakistani authorities commit such serious lapses. Was it owing to the incompetence of its legal adviser? Or was it with the aim of securing Saeeds release through the court and thus pass on the buck to the judiciary? In order to establish its bonafides,two courses are open to the Pakistan Government. One is to promptly file and appeal to the Supreme Court and obtain a stay of the High Court order. The other and better course,is to pass a fresh order of detentionwhich is not impermissiblecontaining the requisite grounds of detention and after complying with all the mandatory requirements of law. One should not jump to conclusions at this stage like some anchors of television channels have done,accusing Pakistan of duplicity. There are instances where Pakistan deserves strong condemnation. However,indiscriminate Pakistan bashing is not conducive to a proper atmosphere for constructive dialogue. It certainly does not redound to the credibility of the concerned television channels.
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