ADDRESS BY Mohtarma Benazir Bhutto

Prime Minister Islamic Republic of Pakistan

To Jacobabad and Nasirabad Bar Associations

Jocobabad

Distinguished members of Jacobabad and

Nasirabad Bars;

Assalam-o-Alaikum!

It is a great pleasure to address the Jacobabad District Bar Association. I am no stranger to this Bar and to its honorable members. In fact this Bar gave great strength to the people's movement launched by Quaid-e-Awam against the regime of Ayub Khan and it gave great strength to the struggle launched by Quaid-e-Awam's daughter against General Zia-ul-Haq for human rights and for democracy. Together we fought and faced the forces of tyranny and injustice for the nation. We fought and struggled for the supremacy of the Constitution and for Quaid-e-Azam's vision of a federal, democratic and parliamentary form of government.

So, the association between the Jacobabad Bar and me, which started in 1978, is now almost 20 years old. In this time I have seen the Bar grow in size as more distinguished members have joined practice. I remember correctly when I first addressed the Bar in 1978, there were about 20 members, and I am told that now there are 120 members in Jacobabad Bar. So, I take pride in your growth and in your success.

The Jacobabad Bar and the People's Government have fought to democratization against despotism. We have been against despotism in all its forms, whether it is political despotism, social despotism, judicial despotism or an economic despotism. We have always stood for egalitarianism. We do not believe that a set of people or an institution can become judge and jury at the same time. We believe that power corrupts and absolute power corrupts absolutely. We believe that power cannot be exercised without responsibility, and there cannot be responsibility without accountability. Accountability is the hallmark of an egalitarian order. Accountability is the check on excess. That is why, in our Constitution the Parliament is the supreme body to make laws. Members of Parliament are accountable in the court of the people.

We do not believe that the Judiciary has the right to alter or amend the Constitution, only the right to interpret it. That is why, we opposed the "Doctrine of Necessity". That judgment gave the power to the dictator to amend the Constitution which was totally illegal and unconstitutional and stole from the people of Pakistan the right to amend the Constitution through their elected representatives. Thus, judicial restraint is the hallmark of an independent Judiciary free from political consideration devoted to interpreting the law.

The Supreme Court of the United States evolved the doctrine of judicial restraint when called upon to interpret the New Deal Legislation which is for the welfare of the people. The Supreme Court of the United States consistently displayed a reluctance to enter into political questions.

Every student of Jurisprudence knows that it is for the Legisla­ture to make the law, for the Executive to implement the law, and for the Judiciary to interpret the law. This separation of Power is known as the Rule of Law. If any of these organs is supreme in the parliamentary system, it is the Legislature. The Legislature is the essence of representative democracy. It is the forum where the people rule themselves through their delegates.

In the British Parliamentary System the Lord Chancellor or Chief Justice is changed when a government changes. He even serves as a member of the Cabinet.

The Constitution of Pakistan of 1973 is also based on Parliamentary System. Unfortunately, under the Martial Law regime of General Zia-ul-Haq the Supreme Court used the power to interpret the Constitution to re-write, amend; alter the Constitution as the Rule of Law. This was a great blow to civil society and to the Rule of Law, and it was condemned internally and internationally. Judgments must be consistent to be respected and valued. Unfortunately in the past, judgments were tailored to suit the occasion. When Mr. Junejo was dismissed by the President in 1988, it was declared illegal by the Supreme Court. And two years later when Benazir Bhutto was dismissed by the President in 1990 it was declared legal by the Supreme Court. And three years later when Mr. Nawas Sharif was dismissed by the President, it was declared illegal by the Supreme Court. So, we can see that judgments are shockingly turned on their heads in a very short time and this has not evoked the kind of confidence that is necessary to have an independent Judiciary, per turbulent history.

The nation now expects all its organs and institutions to work according to the Constitution and not to exceed the limits placed by the Constitution on their roles, their obligations, their duties and their responsibilities.

From its birth, Pakistan has sought to reconcile an authoritarian political culture with the plural society. The Supreme Court has oscillated between extreme judicial activism and judicial restraint. The Court has played a legitimizing function using the "Doctrine of Necessity" to legitimate the illegitimate and to condone the powers of the usurper. This sad history of ours commenced on October 23, 1954, when Governor General Ghulam Mohammad issued a proclamation dissolving the Constituent Assembly of Pakistan whose task was to frame the Constitution of Pakistan. Simultaneously, with the proclamation the Commander-in-Chief of the Army, General Mohammad Ayub Khan, was sworn in as the Defence Minister contrary to express provisions of the Constitution. In a historic judgment the dissolution was declared illegal by the then Sindh High Court. However, when the Sindh High Court's judgment- was challenged before the Federal Court of Pakistan, an appeal in the case of Federation of Pakistan Vs Moulvi Tameezuddin Khan, the Federal Court allowed the appeal of the Government. It was allowed on the technical ground that the writ petition was not maintainable, because Section 223-A which conferred the power to issue the writ, had not received the assent of the Governor General. The Federal Court gave this ruling in complete violation of the Constitution and the fact that the Quaid-e-Azam had not accorded assent to amendments in Government of India Act, 1935. Thus, the Federal Court exceeded the limits of the Constitution. I might say it subverted the Constitution itself. Till today, this judgment is considered a dark and ugly chapter in our country's history.

This decision paralyzed the administration as a number of constitutional amendments had not received assent. In overcoming the crisis the Federal Court adopted the doctrine of state necessity advanced by the Counsel for the Government. The Court went on to declare that things which are otherwise not lawful can be made lawful through necessity.

In order to resolve the issue the Federal Court authorized the creation of a new Constituent Assembly elected by the Provincial Assemblies on the pattern of the present Senate. This Constituent Assembly enacted the 1956 Constitution. Soon after, the first "Lota Party" or Republican Party or the 'King's Party' emerged on the scene. As a result of the Muslim League's lack of internal discipline and cohesion, its off-shoot, the Republican Party, was but a hand maiden of the bureaucratic military complex.

As many as four Prime Ministers were changed between 1956 and 1958. Thus, a stage was set for military intervention. By the Proclamation of October 7,1958, the President of Pakistan annulled the Constitution of 1956, dismissed the Central and Provincial Cabinets and dissolved the National and Provincial Assemblies. Martial Law was declared throughout the country and General Mohammad Ayub Khan, Commander-in-Chief of the Pakistan Army, was appointed the Chief Martial Law Administrator.

A few days later, Ayub Khan took over as President and sent President Sikandar Mirza into exile.

The Martial Law Proclamation of October 7,1958. was tested in the case of State Vs Dosso. According to Chief Justice Munir, the Constitution of a national legal order may be destroyed by a coup d'etat. If the attempt fails, the sponsors are tried for treason, but if the attempt succeeds, there is nothing like success. So, the coup itself becomes a law creating fact. It is then judged by reference to its own success. Applying this twisted doctrine the Chief Justice, Mr. Munir, and his companion Judges conferred legitimacy on Ayub Khan.

Again they violated the Constitution by amending the law rather than interpreting it. It was another ugly chapter which sowed the seeds of anarchy and chaos. The Constitution of Pakistan of 1962 was promulgated in June of that year by one man, President General Mohammad Ayub Khan. He claimed the mandate to enact the Constitution on the basis of a referendum held on February 14, 1960, and that referendum elected Ayub as President for five years. And you know the referendums are meant to elect the dictators as Presidents.

The Constitution of Pakistan of 1962 divided into twelve parts, represented a radical departure from the Parliamentary form of Government. It imposed a Presidential form of Government with complete separation of powers between the Executive and the Parliament. Under this Constitution, the people of Pakistan were robbed even of their rights to franchise through the ruse of "Basic Democracy". It was the "Basic Democrats" and not the people of Pakistan who elected the President and the members of the Assembly.

In the elections which were held in the winter of 1964-65, the main demand of the then Opposition was that there should be direct elections based on adult franchise. Eventually, a popular movement dethroned Ayub Khan. The Constitution of 1962, a one man Constitution, did not survive Ayub Khan's removal. It was consigned to the debris of history when General Yahya Khan proclaimed Martial Law in March, 1969.

The verdict on the Yahya Khan regime was written by the Supreme Court of Pakistan in the Asma Jilani's case, but it was written only after Yahya Khan fell from power. Asma Jilani's case is of fundamental importance to Pakistan's jurisprudence. In that case the Supreme Court over-ruled its earlier decision in the case of State vs. Dosso.

Bold though the decision in Asma Jilani's case appears to be, it cannot be forgotten that the Court declared Yahya Khan an usurper only after he was no longer in power.

The Constitution of 1973 is unique. This is the first Constitution that was framed by the elected representatives of the people who were directly elected in fair elections. It was passed unanimously.

This was all the more impressive, considering the deep ideologi­cal differences that existed among the members of the Assembly. The religious parties wanted a Constitution in which Islam would play a dominant role. The majority in the National Assembly consisted of parties that had a socialist orientation. There was a major difference of opinion on the question of the rights of the provinces. The National Awami Party (NAP) and its allies, who were in the majority in the Provincial Assemblies of NWFP and Balochistan, stood for far greater autonomy for the provinces. Thus, the making of the Constitution required major concessions on all sides.

Gentlemen of the Bar, you are familiar with the most sordid chapter in our history when General Zia overthrew the elected government of Shaheed Zulfiqar Ali Bhutto and later subjected his mentor and benefactor to judicial murder.

When Martial Law of 1977 was tested in Begum Nusrat Bhutto's case, the Supreme Court once again applied the nefarious Doctrine of State Necessity, departing from the rule in Asma Jilani's case where this doctrine had been over-ruled.

Thus, the Supreme Court once again legitimized the illegitimate, declared the lawless, lawful and the lawful, lawless.

Pakistan's longest period of Martial Law lasted over nine years, from July 5, 1977 to December 29, 1985. The usurper Zia got himself elected as President by referendum held in December 1984, where barely seven percent of the people voted. Taking a cue from Ayub Khan's elections in 1962, elections to the National and Provincial Assemblies were held on a non-party basis in early 1985.

Again non-party elections were totally illegal and against the clear cut provisions of the Constitution.

This unrepresentative, illegal and unconstitutional Assembly enacted the Eighth Amendment moving the country backward to the Constitution of 1956 which had been the root cause of political instability. The Eighth Amendment permitted the usurper to combine the Office of Chief of Army Staff and President contrary to the provisions of all previous Constitutions that the President could not hold any other office of profit. The Amendment also indemnified all cruel and horrible punishments, and ratified reactionary laws that had been introduced by General Zia.

On November 16, 1988 free and fair party-based elections were held in Pakistan in which the Pakistan People's Party emerged as the single largest party at the Federal level. Once again this was the false spring. Ghulam Ishaq Khan dissolved the Assembly and the Government in purported exercise of power under the Eighth Amendment.

Thus, the contradictions in our judicial history are apparent in the conflict between the judgement of the Supreme Court of Pakistan upholding the dissolution of the National Assembly of August 6, 1990 and restoring the National Assembly dissolved on April 18, 1993. Eight out of the ten Judges who set-aside the Dissolution Order of April 18, 1993 had upheld the dissolution of August 6,1990. On the face of it, the grounds for dissolution on April 18, 1993 were greater as the then Prime Minister in his concluding remarks on television on April 17, 1993 himself acknowledged that the Constitutional Machinery had broken down. So in our country, we talk a lot about the independence of the Judiciary.

However, independence and respect of the Judiciary can only flow when judgments are in accordance with the Constitution and do not exceed it. It can flow when judgments are consistent and do not change with the political climate. It can flow when it is recognized that Parliament alone can amend the Constitution, and no one else.

Those who would like to see laws amended should knock at the doors of Parliament. Political questions are for Parliament. Politicians can go to the Press, the public or the floor of the House to defend themselves and their views.

I would like to mention here that while we have consistently worked for the independence of the Judiciary, those who have been opposed to us have been very consistent in undermining the independence of the Judiciary. I have already referred to some of the judgments that were delivered from the Judiciary, which were politically motivated, which exceeded the Constitutional limits and which of course, tarnished the image of the Judiciary. But even now the Opposition is hell bent on tarnishing the image of the Judiciary. In this context many of you may have heard that the Opposition has launched a campaign to call Judges of the Superior Courts "Jiyalas". It is supposed to politicize the Judiciary and it is an attempt to undermine the Judiciary.

I would like to mention to you, honorable members of the Jacobabad and Nasirabad Bars that you should judge for yourselves. You know the Constitution gives us the power to appoint anybody as Chief Justice. We can appoint some body from the Jacobabad Bar as the Chief Justice of the Supreme Court or Chief Justice of the High Court. But we did not exercise this constitutional power so far, and instead we chose the Chief Justices from the existing lot of Judges.

You know distinguished members of the Bars, that every single Judge of the Supreme Court was nominated. Who is today the Judge of the Supreme Court was nominated after 1977. So, every single member of the Supreme Court has been made a Judge either by General Zia-ul- Haq or by Ghulam Ishaq Khan or by Mr. Nawaz Sharif. So, is it not an irony that they should call the Judges that they have appointed "Jiyalas". These are people they had appointed. But I thought that let us try and strengthen the Constitution, and although the Constitution gives us this power I did not exercise it to take a Chief Justice from the Bench. You know Constitution also gives us the power to take Judges in the Supreme Court from the Bench. So far, we have not exercised that constitutional right. I did not turn around and say that the Judiciary is full of "Payaras", people appointed by Zia-ul-Haq, Ghulam Ishaq Khan and Nawaz Sharif. So, I will not appoint from the Bench, I will appoint from the Bar, because I don't want people who were tarnished by appointments by General Zia, a Martial Law dictator, or by a rigged Prime Minister. I did not do that, because I want to see institutions flourish, and only those who do not want to see institutions flourish, only those who do not want to see democracy flourish, who do not want to see the rule of law flourish, they distort the fact, but I am prepared to challenge them to take on fact. But each person in the Supreme Court of Pakistan has been made a Judge after 1977 either by General Zia-ul-Haq or by Mr. Nawaz Sharif or by Mr. Ghulam Ishaq Khan. So not one of them can be called a "Jiyala". If anything, he can be called a "Payara", but they are not into calling "Jayalas" or "Payaras", because we believe that if a man becomes a Judge he should do above any political consideration and he should work according to his conscience, and he should work according to the Constitution. So, we do not do that. Even in the High Courts the Judges that we have appointed now are junior most Judges, and they will not attain senior most positions until ten to fifteen years are passed by. So, the entire Judiciary so far, whether it is the Supreme Court or the High Courts, is dominated largely by people who were appointed in the long period between 1977 and 1993, and this is a period of almost 20 years.

And you can yourself imagine how much the Judiciary was used as the political lever. That if today for two years we are appointing Judges and those Judges will not attain any important positions for the next ten to fifteen years, already Opposition is making such a hue and cry. But I may say that Opposition is making a hue and cry because they wish to discredit the Judiciary, because the Judiciary is to set in judgments of the cases that the Government has filed against the Opposition. So, I would urge all of you to spread the word amongst the members of your own Bar, and the members of other Bars and tell them to ask the simple question that, is the Opposition's criticism based on reality or the just fiction or fact?

Distinguished members of the Bar!

Many politicians throughout our history have wanted to fire their shots at democratic governments through the shoulders of different institutions. You know that many politicians wanted to fire their shots at the people's government through the shoulders of President Ghulam Ishaq Khan.

At the end of the day, when the President exceeded the powers and dismissed the government in 1990, he was the loser. Rigging of the election was a fore-gone conclusion to keep out the elected repre­sentatives.

So too, when the PNA and foreign powers fired their shots from the shoulders of General Zia-ul-Haq in 1977, he was the big loser in the eyes of history. He will be forever condemned for hanging an elected Prime Minister and imposing a ruthless dictatorship.

When General Zia fired his shots on the shoulders of Chief Justice Anwarul Haq, the Judiciary was the loser and Anwarul Haq was the loser.

When the Judiciary convicted Quaid-e-Awam to satisfy Gen. Zia in the charge of conspiring to murder a man who is still alive, they were the loser.

Political groups have used, in our history, the President, the Armed Forces and the Judiciary to fulfill their own unrepresentative agendas.

In this the losers have been those who fell prey to the machinations of such groups and allowed themselves to be used.

Time passes. Time waits for no-one. The moving finger of history having written, moves on. Life ends and another begins but history lives forever.

Those who live in the pages of history, live forever. Those who blot their copy book are condemned forever. Yazid can never be forgiven.

And, if that is a religion passage, pause to think of Hitler. He can never be forgiven. History is unforgiving.

Then why do men make mistakes? Why do the Zias. the Ishaqs, the Anwarul Haqs make fatal errors? Because they are mortals. They get carried away by temptation. Temptation for power, for pomp, for fame, for fortune. They like to think of themselves as messiahs when in fact they are pawns in the hands of political groups.

Time passes. The concerned political groups are forgotten but their pawns are remembered in the annals of history.

As Shakespeare said: "The evil that men do lives after them." Of course, Shakespeare was a very wise man. So, he knew that women did not do evil.

I remember that Gen. Zia was reluctant and frightened to impose martial law. But he was convinced by the vested political interests that PPP as a part was finished and Quaid-e-Awam could be defeated in Larkana by Pir Pagaro.

We can laugh now and say what a joke. But such was the talk that Zia actually came to believe it and swore at Makkah Shareef that he would hold elections in 90 days.

Of course, he could not hold those elections during his entire life time for fear that Quaid-e-Awam and the PPP would win.

Ghulam Ishaq Khan was also convinced by vested and power hungry people in 1990 that PPP was finished and Benazir would flee the country once her husband was arrested.

With hindsight we can say what a joke. But such is the propaganda, the power of the prophets of doom that they can actually convince quite rational and mature men of their fantasies.

Of course, after 1990,1 did not leave the country, although my husband was arrested, the elections had to be rigged and the country faced political instability.

So, the real wise men are those who do not get carried away by vested political interests, the propaganda of such vested political interests and the whispers of the prophets of doom.

I may say the Holy Book repeatedly warns us to beware of those who slander and to beware of evil whispers.

The real wise men are those who do not seek to make wise decisions because such decisions, being subjective, turn out to be unwise.

The real wise men are those who stick to their constitutional roles through thick and thin, through thunder and storm and thereby win respect in their own time and the time that comes after.

With political stability comes economic stability. With economic stability, comes progress and prosperity.

But political stability does not depend on the government alone.

Political stability depends upon the President, the Parliament, the Judiciary, the Armed Forces, the Provinces, the Opposition and other organs of state fulfilling their constitutional obligations.

If today there is poverty and backwardness in Pakistan, we must blame all those who violated their constitutional oath, exceeded their constitutional duties and power and sought to do what they were not supposed to do. There is a road to success. There is a road to emancipation. There is a road to prosperity.

As democratically elected leader, elected in fair, free and impartial elections, permit me to say that the Pakistan People's Party Government and I symbolize that road.

Just as we symbolize the hopes, the aspirations, the dreams of the downtrodden and discriminated people of Pakistan who have elected us to positions of office. Positions we accepted only because it came from the people.

This is the road which leads to an age of reform. It is the path of enlightenment mirrored in Iqbal's lectures on the Reconstruction of Islamic Thought, in Quaid-e-Azam's speech to the Constituent Assembly of August 11, 1947.

I invite you today to join us in travelling this road on a journey to emancipation, enlightenment and egalitarianism.

I have noted the points that were made by the President of the Bar Mr. Mahr. He has mentioned that the Government should consider setting up Labour, Banking and other Courts in Jacobabad. As you know there are financial implications always involved in such decisions, therefore, I will certainly ask the Provincial Government and the Ministry of Law at the Federal level to examine these proposals made by the Jacobabad Bar.

You have also mentioned that the Jacobabad should not be associated with the Larkana Bench of the Sindh High Court when it is set-up. As you know the Judiciary is now separate from the Executive so in all humility I would request you to take up the demand directly with the Chief Justice of Sindh High Court because it is he who will have to decide under which Bench the Jacobabad Bar Association will fall.

I have noted the points that have been made about housing. I would request the Chief Minister of Sindh to sympathetically examine setting up a Lawyers' Cooperative Society in Jacobabad, so that on a "no-profit, no-loss basis" the lawyers of this Bar may have recourse to plots where they can build their own houses.

I have noted what you have said about the daily air fare from Karachi and Jacobabad, and I will direct the Pakistan International Air Lines, which is an autonomous Corporation, to examine this demand in a sympathetic light. If there is enough traffic between Jacobabad and Karachi, I am sure they will be very happy to solve this issue.

The Chief Minister may have noted your demands about the establishment of Jacobabad Development Authority. I would ask him to examine it and to try and do the needful.

As far as my promise for a by-pass to Jacobabad is concerned, I do no.t break my promises and I will build that by-pass for Jacobabad.

I would like to announce here a grant of rupees five lakhs for the Jacobabad Bar and five lakhs for the Nasirabad Bar Association which is also here.

I have been very pleased to note that there is a lady lawyer here. There was no lady lawyer when I visited you in 1978, although I do believe that Mr. Pecho's wife was at one time a lawyer, although she has now gone on to other task.

I learnt from your President that he has been elected for seven terms. Having myself only two terms, I am very keen to know how he did it.

Thank you very much.