Vol. XXXVI 2008
(P.L.J.)
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Magazine Section
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PROHIBITION OF TORTURE
By:
AMJAD HUSSAIN PANWAR
Lecturer,
Department of Law,
The Islamia
ABSTRACT
The present
paper gives an analysis of the Article 14(2) of the Constitution of the Islamic
Republic of Pakistan, 1973, with reference to prohibition of torture, pointing
out its undernourished nature, leading to certain misconceptions due to partial
prohibition of torture. It also speaks about the torture practices in
Prohibition of
Torture under the
The constitution
of a country is the supreme law of the land. It is a model document of the
country, which shows the approach, and thoughts of a nation. As a practice,
this document is drafted in a way to incorporate some rights as fundamental and
a mechanism is also provided to protect these rights, which are called
fundamental human rights. ‘Human Right’ means and includes everything that a
human needs to survive with dignity. Fundamental human rights are provided
unconditionally to all the citizens because they deserve it being members of
the human society. However, these rights are provided subject to certain
limitations. The essence of a fundamental right is that it imposes restraints
on the arbitrary exercise of power by the State authorities[1] and it cannot be
interfered or taken away except by a constitutional amendment.[2] It would not only be “technically inartistic but a fraud on the
citizens for the makers of a Constitution to say that a right is fundamental
but that it may be taken away by the law.”
[3]
‘Freedom from torture’ is one of these fundamental rights.
The word ‘torture’ means an intentional act of causing pain, anguish, hurt, or
suffering, whether mental, physical, or psychological, even for the purpose of
criminal investigation, or preventive measure and it includes the use of
methods intended to obliterate the personality of the victim or to diminish his
physical or mental capacities, even if no physical pain or mental anguish is
caused.[4] Torture, in any form, is
unacceptable to the society. However, we can find examples of torture in all
the societies. Despite the commitments to protect human rights, torture is
allowed by the governments in more than one hundred countries.[5] However, a State does not
allow torture expressly or impliedly. The Constitution of Pakistan, 1973, has
provided a list of fundamental rights[6] with a machinery[7] to enforce these rights
but as for as the ‘prohibition of torture’ is concerned, it says:
“No person shall be subjected to torture for
the purpose of extracting evidence.”[8]
The above provision
seems to have an injudicious approach with reference to the meaning of
fundamental rights. It clearly means that there is only one single prohibition
of torture and that is to dig out the evidence, i.e., one cannot be tortured to
extract evidence only. What about the rest, the Constitution is silent and this
silence may be taken, impliedly, to think that torture is not prohibited in all
other cases.
There may be another interpretation of the said provision that
torture is prohibited generally but it is prohibited specially in cases where
the Authorities use torture as a tool to extract evidence but it would be
secondary approach. The first understanding of the provision implies that the
torture is not prohibited in all the other cases. In
With reference to Article 14(2), it would be allowed by
presumption to mean that torture is partly (and not fully) prohibited by the
constitution. In
The year 2007 witnessed a large number of torturous acts
against the lawyers, judges, journalists and political leaders. Army is kept to
defend the national boundaries but it has usurped the sovereignty of
Torture is considered as mother of all human rights violations. It
not only affects the victim but also the society at large. That is why, a large
number of Conventions and Declarations passed for the prevention of torture.
The UDHR states that no one would be subjected to torture or to cruel, inhuman
or degrading treatment or punishment.[12] The Geneva Conventions
also ban cruel treatment and torture.[13] The ICCPR prohibits torture using the same words. It also prohibits
medical or scientific experimentation without one’s free consent.[14] The European Convention[15] and American Convention[16] both state that there is
no room for torture or like activities.
The Universal Islamic Declaration of Human Rights says: “No person shall be subjected to torture in
mind or body, or degraded, or threatened with injury either to himself or to
anyone related to or held dear by him, or forcibly made to confess to the
commission of a crime, or forced to consent to an act which is injurious to his
interests.”[17]
African Charter prohibits all forms of exploitations including torture.[18] The CAT prohibits torture
under any circumstances.[19] The Cairo Declaration
forbids psychological torture or any form of humiliation, cruelty or indignity.[20] Thus, torture is
completely prohibited by the international community.
The case law on
the subject has also established the principles discouraging the use of
torture. In D.K. Basu v. State of W. B.[21] the violation of human
rights with reference to "torture" was highlighted. It was observed
by the Supreme Court of India:
" 'Torture' of a human being by another human being is
essentially an instrument to impose the will of the 'strong' over the
'weak'.... 'Torture is a wound in the soul so painful that sometimes you can
almost touch it, but it is also so intangible that there is no way to heal it.
... 'Torture' is despair and fear and rage and hate. It is a desire to kill and
destroy including yourself.' "
In A. v.
The United Kingdom, [22] the
In Aksoy v. Turkey,[23] it was held that the ill-treatment, suffered by the applicant, was of
such a serious and cruel nature that it could only be described as torture. It
was also held that where an individual was taken into police custody in good
health but found to be injured on release, it was incumbent on State to provide
plausible explanation.
In Velásquez-Rodríguez
v. Honduras,[24] the Inter-American Court
of Human Rights found that Angel Manfredo Velásquez was kidnapped and
presumably tortured, executed and clandestinely buried by agents of the Armed
Forces of Honduras and the period in which those acts occurred, the legal
remedies available in Honduras were not appropriate or effective to guarantee
his rights to life, liberty and personal integrity. The Court held that the
State of Honduras has violated its obligations to respect and to ensure the
right to personal liberty (Article 7), humane treatment (Article 5) and right
to life (Article 4) of the American Convention. The State of Honduras was held
liable to pay fair compensation to the next-of-kin of the victim.
In Upendra
Baxi (Dr) v. State of U.P.,[25] the Indian Supreme
Court, found the inhuman conditions prevailing in protective homes, long
pendency of trials, trafficking in women, importation of children for
homosexual purpose, non-payment of wages to bonded labourers and inhuman condition
of prisoners in jails. The Supreme Court passed orders giving certain
guidelines.
In Sheela
Barse v. State of Maharashtra[26] the Supreme Court of
India noticed the violence against women prisoners while confined in the police
lock-ups. The Court directed the Director of College of Social Work, Nirmala
Niketan,
In Hilal
v. The United Kingdom,[27] the European Court of Human Rights found a
violation of Article 3 of the European Convention. Said Mohammed Hilal, a
Tanzanian national, requested asylum in the
In Darshan
Masih v. State,[28] the Supreme Court of
Pakistan took notice of a group of brick kiln bonded labourers and their
families suffering from physical and mental torture. The labourers and their
families were in hiding and were concerned about their security. Consequently,
the Bonded Labour System (Abolition) Act of 1990, enforced the law against
bonded labour. Bonded debt was abolished through this legislation and
monitoring mechanisms were provided for prevention of the incidences of bonded
labour.
In S v. Masitere,[29] the
applicant had been convicted by a magistrate for housebreaking with intent to
steal and theft. He was senteced to three years imprisonment with labour. The
magistrate ordered that the first and last fortnights of the terms of
imprisonment be spent in solitary confinement and on spare diet. Held that the punishments of solitary confinement
and spare diet amounts to torture, and to inhuman and degrading punishment.
Such punishment was thus prohibited by Section 15 of the Constitution of
Zimbabwe, and thus unconstitutional.
In Muhammad Pervez and others v. State,[30] it was found that accused, after
their arrest, were subjected to torture and thereafter confessional statement
was recorded before Magistrate. Trial Court and
In Biyan v. Turkey,[31] Constantin v. Romania,[32] and Afanasyev v. Ukraine,[33] the European Court of Human Rights held that there
was a violation of Article 3 of the European Convention because the applicants
suffered ill-treatment during police custody. In Khashiyev and Akayeva
v. Russia,[34] the Court found lack of
effective investigation into allegations of torture. In Nevmerzhitsky v. Ukraine,[35] the Court found bad
conditions of detention, force-feeding of detainee on hunger-strike, inadequacy
of medical treatment and failure to bring detainee promptly before a judge. In Karalevičius
v. Lithuania,[36] the Court found dire
conditions of detention amounting to torture, in particular over-crowding. In Öçalan
v. Turkey,[37] the Court found failure
to bring detainee promptly before a judge, denial of access to lawyer during initial
period of custody, supervision of subsequent consultations with lawyers and
restrictions on visits by lawyers, and restrictions on applicant’s and lawyers’
access to the file and imposition of the death penalty following an unfair
trial. As most of the cases are related to ill-treatment during the police
custody, it may be said that a large amount of torture is practiced by the
Police.
Conclusion:
A fair analysis
of Article 14(2) may invite to think ---
1.
That all acts of torture are not prohibited by the
constitution.
2.
That the said provision may be taken as a justification in
certain cases, i.e., in emergency, etc.
3.
That the above provision is against the dignity of the
citizens as it does not prohibit the torture fully.
4.
That Article 14(2) is in contradiction with the other
Articles relating to Fundamental Rights because when there is no complete
prohibition of torture, other fundamental rights are meaningless.
5.
That if the constitution is not clear on this issue, it
would cause frustration and a state of insecurity in the minds of the citizens.
6.
That while making our Constitution, we followed the Indian
pattern but we find no such provision in the Constitution of India. Similarly,
In the above
circumstances, we must consider the following:
1.
There is an urgent need to amend the said constitutional
provision at least by eliminating the words, “for the purpose of extracting evidence”. Because such a provision
not only damages beauty of the constitution but it is also unjustified,
unethical and illegal.
2.
It is suggested that
3.
There is an instantaneous need to legislate for torture.
The use of torture by police or other officers must be declared as a crime and
such acts would also be liable to compensation. In this respect, we must seek
guidance from the ‘Inter-American Convention to prevent and punish Torture’,
which declares that a public servant would be guilty of the crime of torture if
he orders, instigates or induces the use of torture, or directly commits it or
being able to prevent it, fails to do so.[38] It further provides that
“the fact of having acted under orders of a superior shall not provide
exemption from the corresponding criminal liability”.[39]
4.
“The existence of circumstances such as a state of war,
threat of war, state of siege or of emergency, domestic disturbance or strife,
suspension of constitutional guarantees, domestic political instability, or
other public emergencies or disasters” would not be accepted as excuse for
practising torture.[40]
5.
The police officers and other public officials would be
made responsible for the custody of accused or other persons deprived of
freedom, and there should be complete prohibition of use of torture during
interrogation, detention or arrest.[41] The similar
responsibility should be imposed on the jail authorities.
6.
The persons liable for the use of torture must be awarded
severe punishments.
7.
We should make certain verses of the Holy Quran and Holy
Sunnah regarding prohibition of torture, part of the syllabus from early
education so that we may educate the young minds against the practices of
torture to produce an anti-torture nation.
8.
Last but not the least, we should conduct seminars and
workshops against the use of torture, violence and aggression and condemn such
activities everywhere.
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IMPLEMENTATION
OF ISLAMIC OBLIGATIONS UNDER THE CONSTITUTION
By
DR. A.Q. SIAL[42]
Abstract
Independence Pakistan Pakistan
Introduction
History of geographical alterations may
record creation of
Constitution
making is not a simple process. Constitution of a state is multidimensional
document with immense amount of meanings to implement. One of its functions in
the society is to standardize the norms and ensure their maintenance. This
object is essential for stability and continuity of the norms. The law or
constitution making institution while in the process has to firstly ascertain
capacity of the society for continuity of the existing and adaptability of the
prospective norms. If not, violation or non-assumption of fresh norms is
certainty that no society can afford. The possible way left with the society is
to take into account the norms for which the whole society eagerly desires to
assume by feeling its assumption feasible, desirable and promoting their
individual and collective well being. A large section of our population feels
it comfortable to adopt system of alien norms. Valued norms of alien system may
not be instantly adoptable although working well in another community or
society. Assumption of new norm should not be simply based on desire. It
involves several characters and qualities like standard education, vide range
of good demeanour, or eagerness and respect for obligations. Unless a system of
norms develops within the society, smooth assumption may not be expectable.
People of
Muslims ideology provided the
base and strength to
Framing the
Constitution
Prior to opening the debate on
the subject topic certain fact relating to constitution making need
comprehension. It may enable to understand disappointment in obtaining success.
Constituent Assembly of
“The 1935 and 1947 Acts were preparatory and
constitutive laws to provide interim government until a new constitution was
framed. They were not constitution substitutes: they were not designed to help
the Country confronts its massive state-building challenges, and one can argue
that their structures could not provide an adequate basis for satisfying
Muslims of
sub-continent had attained their homeland to live but blessings of sovereignty
yet to be attained. The moment, days even years of transition in which transfer
of power, territory and sovereignty takes place is a difficult mission to
transact with. It includes revolutionizing conceptual conditions of the nation
for responsibilities providing the basis of self-rule. A corpulent tree had to
be replaced with a small delicate plant of hopes and pleasure. Known and
unknown consequences followed the partition. Constitution making might have
been main concern for the nation to accomplish. However the task of
constitution making was over-looked due to many reasons some of those were
glaring.
Constituent
Assembly was expected to accomplish the task of constitution making as national
priority. At the time of independence, the nation seemed prepared to get rid
off the Imperial system. The unity and
the integrity of the nation at that time may have facilitated decision-making
on complicated issues like language, religion and problems relating to
geographical separation. Since nation
was so deeply united on the basis of Islamic ideology coupled with abiding
faith in their leaders that the development of compromising position on some
required sections may had been possible practice.
Constitution
making is the act of people of a country through which they have to lay down
the principles of action to observe for living life of national harmony. This
is the real disposition of sovereignty. This is a social contract among the
people of a country to act and deal in a manner making the implementation of
this a reality. This is natural right of humanity and is in accordance with
dictation of nature without observing which the system of individual and
collective life may not be executable. The act of constitution making is the
act of people to perform. Neither has any body any right nor is of any use any
effort to compel or assume any responsibility of making law or to take any
decision for the life and prosperity of any body or community without their
express command in that respect. Following concepts will assist to see how
people had to perform their responsibilities.
1. After attaining sovereign status people of
2. The leader of nation Mohammad Ali Jinnah in his effort to
develop national entity and honor of sovereignty had to step back so for people
of
3. Making constitution was neither permissible nor legitimate
through the dictation of founding father. It was deemed the process of evolving
national unity by introducing the capacity of public participation for the
constitution making.
4. By introducing the honor and prestige of
liberty the leader of nation (Mohammad Ali Jinnah) offered an opportunity to
the nation of understanding the concept of their social, religious and
political responsibilities for the purpose of building a capacity to lay the
foundation of new social contract.
5. There seems no reason to speculate that
the leader of nation was in any way affording or even willing perpetuity of the
polity under the Act of 1935. Mohammad Ali Jinnah had declared his preference
to have parliamentary form of government in
The Constituent
Assembly comprising of elected representatives originated the process of
constitution making. Amongst those proposals, one, which involved criticism of
the sections of population, was the mode and extent of adoption of religious
obligations. The theme of religious obligations was resolved with firm and
patent determination of the members of the committees in several constitutional
documents. However practicality of the premise was still out of sight, which
caused substantial loss to further development of political system of the
country.
Islamic Inheritance
The theme of
religion in relation to constitution making or other social commotion has been
and still holds dormant position in society of
The introduction
or ordination of religious concepts in socio-political system never had been
optional in states with Islamic inheritance. These have been providing
foundations in the process of constituting governments or other political
organizations in Muslim societies. People of these states practice religions
not only as part of their faith or legal obligation but as part of their social
and psychological contentment. They believe Islam as a social system having
potential to accommodate certain social requirements of the nations. Our legal
system obtains lot of dependence upon juristic findings of Islam. The fact has
been observed by Superior courts in their judgments. Courts in
Besides,
in societies of conservative outlook religious wisdom for a long time has been source
of inspiration of the people. There are sections of people in these societies
who believe that primitively religions had been main source of guidance of
humanity. Fundamental rights and obligations and several other aspect of human
concern has been its main effort. Large number of people further visualizes
fancies of this system of social obligations. It may comfortably be presumed
that force of customary beliefs of majority of the people have sufficient
energy to maintain the situation of status quo. Therefore, the situation
demands that somehow there should be practical approach on resolution of 59
years old national challenge on adoption of Islamic legal system.
In
historical perspectives constitution-making bodies/forums failed in creating
standardization of thoughts among different sections of faith in Islamic world.
It is not unique as for our society is concerned. Religious approach of various
levels of different societies have unmatched divergence. It is not
unconstructive and has its own dimensions of realism. It is not difficult to
understand / maintain that religion is un-detachable fragment of people almost
allover the world. The most relevant question is to discover why people
belonging to same truism have found such a vast abyss of dissimilarities among
themselves. This is an intricate issue of mysticism currently needing severe
span of investigation. The exploration if honestly and wholeheartedly done can
perform unmatched service to peace and humanity in the world prickly settings.
Nevertheless most relevant initiative may be undertaken by exploring the causes
of lamentation of the society of
Every
constitution prescribes its objectives and procedure of function of state
system. In such system all organs along with each national has to perform
constitutional obligations. Each institution and individual has to perform
destined obligations how minor the obligation may be. Being densely fabricated,
disregard of any constitutional obligation may vibrate organization of state.
Hence, it is necessary to emphasize necessity of faithfulness to the
constitutional obligations and then to ascertain the nature and consequences of
deviation of
Objectives Resolution
Whereas sovereignty over the entire Universe belongs to Almighty
Allah alone, and the authority be exercised by the people of
And whereas it is the will of the people of
Wherein the State shall exercise its powers and authority, through
the chosen representatives of the people;
Wherein the principles of democracy, freedom, equality, tolerance
and social justice, as enunciated by Islam, shall be fully observed;
Wherein the Muslims shall be enabled to order their lives in the
individual and collective spheres in accordance with the teaching and
requirements of Islam as set out in the Holy Qur'an and Sunnah;
Wherein adequate provision shall be made for the minorities freely
to profess and practice their religions and develop their cultures;
Wherein the territories now included in or in accession with
Wherein shall be guaranteed fundamental rights, including equality
of status, of opportunity and before law, social, economic and political
justice, and freedom of thought, expressions, belief, faith, worship and
association subject to law and public morality:
Wherein adequate provision shall be made to safeguard the
legitimate interests of minorities and backward and depressed classes:
Wherein the independence of the judiciary shall be fully secured:
Wherein the integrity of territories of the Federation. Its
independence and all its rights, including its sovereign rights on land. Sea
and air, shall be safeguarded: So that the people of
Now, therefore, we, the people of Pakistan; conscious of our
responsibility before Almighty Allah and men; cognizant of sacrifices made by
the people in the cause of Pakistan; Faithful to the declaration made by
founder of Pakistan, Quaid-e-Azam Muhammad Ali Jinnah, that Pakistan, would be
a democratic state based on Islamic principles of social justice; dedicated to
the preservation of democracy achieved by the unremitting struggle of the
people against oppression and tyranny;
Inspired by the resolve to protect our national and political
unity and solidarity by creating an egalitarian society through a new order; do
hereby, through our representatives in the National Assembly, adopt, enact and
give to ourselves, this constitution.
Objectives Resolution still forms foundation of our desired
Islamic socio-political system. It has a profound history. The first Constituent
Assembly of Pakistan passed the Objectives Resolution in 1949. The Resolution
was discussed in five successive meetings of the Constituent Assembly. The
Pakistan National congress, which was the main opposition party in the
assembly, objected to it on the plea that it mixed up politics with religion
and that it would reduce the minority communities to the status of surfs. Among
the Muslim members with the solitary exception of Mian lftikharuddin, all
upheld the Resolution. The non-Muslims were definitely dissatisfied with this
resolution. They expressed apprehensions that it would allow the state to
interfere in personal life of the citizens. Leader of the Congress party, S.C.
Chattopadhya, protested that Resolution would make the non-Muslims in
It was against the faith of
Muslims to draw a line between religion and political system. This inspiration
of separation between religion and political affairs is so frequently
propagated by people ignorant of Islamic teachings that the idea has obtained
vide recognition. In spite of reservations overwhelming majority adopted the
resolution. It was introduced as preamble of 1956 Constitution. The Objectives Resolution was also made Preamble of 1962
Constitution. Again when 1973 Constitution was framed, the Objectives
Resolution was incorporated as Preamble of the Constitution. In
Judicial analysis
As resolved earlier objectives resolution has central place for
Islamization of laws in
The Constitution of 1973 provides
following contributors / forums in the matter of Islamization of laws of
Interpretation of Courts
There are two viewpoints amongst academic circles regarding
adequacy of required provisions in the constitution for implementation of
Sharia. Article 2 is midpoint of attention.
In Article 2 Constitution provides that Islam shall be the state
religion. One side see the provision possessing the potential to influence rest
of the body of the constitution. The other side holds it an introductory
article and mere continuation of this not enough to islamise the system of
law. The provision came to be
interpreted in the courts of law in reference to certain petitions needing its
implementation in letter and spirit. Courts held liberal interpretation of the
Article. A Full Bench of Sindh High Court held that: Article 2 is incorporated
in the introductory part of the constitution and as far as its language is
concerned, it merely conveys a declaration of the state. Court observed that
question arises as to the intention of the makers of the constitution by
declaring that 'Islam shall be the state religion of
There is also difference of opinion on reading substance of
objectives resolution inside all Articles of the Constitution. Article 2-A
declares Objectives Resolution an effective part of the constitution. The
background of introduction of this Article seems to bring compatibility amongst
provisions of constitution. Whereas in State v. Zia-ur-Rahman case Chief
Justice Hamoodur Rahman observed that Objectives Resolution 1949, even though
is a document which has generally been accepted never repealed or renounced,
will not have the same status or authority as constitution itself, until its
principles are incorporated within its provisions.[xiv]Despite
the fact that inclusion of Article 2-A within articulated body of the
constitution was deemed enough to implement Islamic obligations enshrined in
the objectives resolution. But status of the issue remained unresolved.
Practicality of Article 2-A came up for consideration in several petitions
before the High Courts of the provinces. The Lahore High Court in a case Sakina
Bibi v. Federation of
The proposition if seen in broader view, Superior Courts of
Judgments of the superior courts do not seem to have created
constraints against Islamization of the system of laws. Judicial organ maintaining independence of
judiciary refrained from entering in the area of Parliament. This option of the
judiciary has ensured two imperative obligations.
1. It is the parliament that commands delegated authority to enact or
correct inconsistency or deficiency in the provisions of the constitution.
2. There should be authentic harmonious inclination in provisions of
the constitution enabling unambiguous performance of Islamic obligations.
The interpretations of
courts retain genuine piece of guidance for attainment of the object. These
observations have neither blocked the introduction of the process of
Islamization nor have imposed their own version to reform the corpus of law.
Rather courts have found appropriate forum for remedial supremacy of
representative institution. Every law to be framed by the Parliament has to
conform to the Injunctions of Islam as contained in Holy Qur'an and
Sunnah. If any such law is found to be
repugnant to the Injunctions of Islam, the Federal Shariat Court as well as the
Shariat Appellate Bench of the Supreme Court has the power to scrutinize the
said law on the touchstone of Islamic injunctions and make necessary
declaration as contemplated in Article 203-D of the Constitution. Federal
Government or provincial Governments, as the case may be, shall have to
initiate process to amend the law suitably as required in the judgment.[xviii]Indian
courts have held the same view regarding implications of the preamble insides
the provisions of the Indian constitution.
Another share of the constitution that should have played
effective role on the subject is implementations of principles of policy. Under
the provisions state institutions shall enable the Muslims of Pakistan
individually and collectively to order their lives in accordance with the
fundamental principles and basic concepts of Islam as described in Holy Qur'an
and Sunnah. Nevertheless the responsibility of deciding whether any action of
an organ or authority of the state or person performing functions on behalf of
an organ or authority of the state is in accordance with the Principles of
Policy is that of the organ or authority of the state or of the person
concerned to determine. Moreover the validity of an action or of any law shall
not be called in question on the ground that it is not in accordance with the
Principles of Policy. No action under the constitution shall lie against the
state any organ or authority of the state or any person on such ground. In the
absence of judicial check cum institutional responsibility such obligation are
not supposed to be carried out faithfully by anyone.
State Omissions
There is no doubt that only legitimate representative government
shall accomplish process of Islamization. Abuse of political process by extra
constitutional ruling of the country reduced the strength of political parties
as much that they felt no hesitation to beg Islamization from the government of
Zia-ul-Haq. His regime exploiting the same demand prolonged his rule for a
decade. Besieged by prolongation of the cause religious parties made several
frivolous attempts for Islamization. One of their move succeeded in 1980 when a
Most of the obligations for Islamization of the legal system are
to be executed by parliamentarians. Chosen public representatives/ trustees
have to exercise delegated authority within the limits prescribed as sacred
trust. These representatives must believe in equality, tolerance, and social
justice as enunciated by Islam. It means they themselves must have required
knowledge of Islam. Public representatives must first enable themselves to
order their lives in accordance with teachings of Islam. Article 62-63 on
qualifications of the members of parliament seems good addition to ensure
induction of qualified parliamentarians who have to initiate the noble cause of
reforming the existing as well as fresh provisions of Islamic obligations.
Parliament and executive organ mainly comprising of unqualified members have
resisted implementation of this stipulation of constitution. Resultantly as
emerging beneficiary of the running system they do not seem to care about
implementing provision on qualifications.
In order to reform electoral process in the light of prescribed
qualification constitutional petitions were filed under Article 203 of the
Constitution for seeking a declaration that the entire electoral system of
The Court inter alia, observed that the spirit of the Qur'anic Injunctions
has been embodied in Articles 62 and 63 of the Constitution and identified
number of problems contaminating the process of electioneering. The Court made
number of suggestions for reforming the electoral process bringing the system
of state close to Islamic values and required proper scrutiny of the candidates
for determining suitability of their contribution for legislation. The Court
desired screening committee for dealing complaints by members of the
constituency on malpractice, unethical conduct committed by the members. The
court disapproved general trends of the candidates using excessive resources
during the campaign. The court ruled that Sections 13,14,49,50,52 of
Representation of Peoples Act are against the Holy Qur-an and Sunnah and section
38 (4) (c) (ii) excluding from the count otherwise valid
vote merely because the voter has disregarded the rule of secrecy is also
repugnant to Qur’an and Sunnah. The Court observed that the Representation of
the peoples Act 1976 and the Houses of the Parliament and Provincial Assemblies
Election Order, 1977 should accordingly be amended.[xxi]The
provisions of the constitution are prevented to operate for mutual benefits of
aspiring parliamentarians of all sides. The situation is maintained almost the
same except when these are made to operate for personal reasons. Recent move
against Imran Khan of Tehrik Insaf is example of that. Majlis-e-Shoora as major
contributory of enactment and promulgation of laws in conformity with the
Injunctions of Islam needed to be reformed in the light of judgment referred
above. Review of scrutiny record reveals that public representatives so far
have not realized to comply with those terms and failed to honour the oath
taken under the constitution for implementation of the Islamic Obligations.
Maintainability
of Islamic provisions was ensured but practicality remained unattended. The society not only failed to implement
Islamic share of constitution in the country, it failed to implement rests of
social obligations in material terms and has yet to establish any other system
free of impurities. Islamic social / political system equally demands
constitutionalism. The state system influenced as a result requires enforcement
of Fundamental Rights, efficiently functioning judiciary, guardianship of the
needy and elimination of poverty etc. Islam also stresses simplicity of public
functionaries and impartial system of accountability of head of state to common
servant. This has been deviation of legal obligations to evolve a system of
reimbursement at time when society was capable not only to contribute adherence
but to guard against resistance. It was the occasion of independence of the
nation. Rest of the time mostly had been the period of deviations, which has
contributed the amount of diversity of thoughts in social sects enough to take
equivalent time for its reconciliation.
Faithfulness of the governments for Islamization of laws out of
existing emaciated provisions remained question mark. The governments instead
of making consolidated efforts rather applied the provisions for discretionary
appointment/transfer of Judges to get rid of judges upholding independence of
judiciary. The president under the law had unusual, inequitable powers under
sub-Article 4-B of Article 203. The President may at any time modify the term
of appointment of a Judge; assign a Judge to any other office and require a
Judge to perform such other functions as the President may deem fit. He may
still pass such other orders, as he may consider appropriate. Thus, a
constitutional Court constituted for Islamization of laws in
System of Sharia is not man made system. Its foundations are in
Divine commands combined with juristic instinct of humanity. This is
practically proved code of life backed by rule of law and system of good
governance. It combines each and every phase of human life therefore is
consistent and consolidated scheme of law. It is a system of welfare and its
implementation demands submission. Mohammad Ali Jinnah had exact vision for Islamic
political system as system of life derived by realistic, modern and academic
deduction excluding customary beliefs and practices of orthodoxy values. Quaid-e-Azam in his speech on
Review of the existing position of law reveals that Articles of
the constitution on the subject have no consistency and compatibility with
other provisions of the constitution. The status of these Articles seems
neglected portion of the Constitution. Nation had high hopes from council of
Islamic Ideology. Chairman of Council Dr. Khalid Masood has said that the
Council did provided valuable suggestions to the government on important issues
but most of them went unheard. The Chairman added that during the last three
years as many as seventy-two recommendations were sent to the government but
only seventeen received the positive response. He also said that the Council
has suggested that amendment in all laws enacted from 1977 to 1990 be made
consistent with Quran and Sunnah. He deplored that the recommendations of
Council of Islamic Ideology were not implemented. He proposed to the government
to form a committee comprising members of the National Assembly tasked to give
practical shape to suggestions of the Council but all in vain.[xxiv]Same
is the situation in financial sector. There is mockery in the name of Islamic
Banking. While from
Common man has been given a wrong
concept of Islamic values. He has been allowed to redeem the adulterated
version of Islamic obligations. The two distinct areas of Islam dealing public
and private sections of Divine system of obligations have to be partitioned
facilitating separation of relatively optional fragment. The section of
obligations comparatively belonging to personal responsibilities may have been
made of no controversy. Islamic popular welfare system of public administration
based on joint responsibilities is produced by concrete efforts. Deviations
have caused fatal consequences. Nation paid the cast of mishandling
implementation of Islamic obligations in the country. The movement of
Nizam-e-Mustafa in 1977 was hijacked by Zia-ul-Haq resulting in revocation of
political system for the period of ten years. Society is facing a strong wave
of extremism causing imposition of compulsory international aggression on
A considerable majority of
1. Islam is an
imperative segment of social order which nation cannot keep pending forever
without decision on the range of its intermingling in the legal system of the
state.
2. The state of
irresolution has created current languish situation in social sectors
preventing growth of standardized legal / social norms in the society.
3. This is also
causing consequent impairment on securing the sagacity of political system in
the country.
4. The mode of
management of its unconstructive implications in the society has to be
determined for development of Islamic representative constitutional and
political structure for our country.
Resolution
Islamization of the society is a
virtuous national mission. Only a legitimate and representative government
would undertake it. At present the nation is politically based beyond August
1947. It happened due to suppression of political process since birth of the
society. Outcome for this failure is that nation has no democratically
developed constitution as the forefathers desired. We have survived without
standard fair general elections in between forty years of our independent life.
Therefore no system of representative government has so far emerged in the
country. Consequently no durable positive steps have been taken to determine
the nature of public legal system. Presently curatives are seen naturally
making their place in the society. Fair transparent general elections seem due
in near future. Keeping in view the past experience representative government
may need to evolve a system free of ambiguities. All pending constitutional
issues along with Islamization of the system should be resolved in the
following manners.
1. In founding base for Islamization of legal structure national
movement has to be launched for durable social reforms in the society to
upgrade academic and moral standard of general population. State shall provide
opportunities of inexpensive education of same standard for all at all level.
Government should plan to own the parallel academic empire run by religious
charity organizations all over the country with their participation.
2. Government should constitute a broad based constitution commission
to review the constitution in the light of proposals of federating units on all
outstanding national issues inclusive of the judgments of courts on
Islamization of the system.
3. The Commission should comprise of qualified representative
parliamentarians, superior court judges of higher integrity, moderate Islamic
scholars of all schools of thought and members of legal fraternity.
4. A coherent scheme of Islamization of laws as prepared by the
commission be incorporated in the Constitution replacing the existing one.
5.
With all of these efforts state
may succeed in resolving the issue that has delayed accomplishment of
structural development of the country. Prime Minister Liaqat Ali Khan rightly
observed on the occasion of presentation of the Objectives Resolution that “It
is not every day that great nations come into their own; it is not every day
that people stand on the threshold of renaissance; it is not every day that
destiny beckons the down-trodden and the subjugated to rise and greet the dawn
of a great future. It is the narrow streak
of light heralding the brilliance of the full day that we salute in the form of
this Resolution. [xxvii]
REFERENCES
1. Report
of the Constitution Commission, 1961, Govt. of
2. Khan,
Hamid, Constitutional and Political History of
3. Benazir
Bhutto v. Federation of
4. Newberg,
Paula R “Judging the state”
5. Mist
Kaneez Fatima v. Wali Mohammad and others, P.L.D. 1993, S., C. 901.
6. Fazal
Ghafoor v.
7. Mehmood, Safdar, Constitutional Foundations
of
8. Satan Singh v. State of
9. Hakim Khan and others v. Government of Pakistan, P.L.D.1992, S.C, 595.
[1]. Shaukat Hussain Mst. Rubina and others, P.L.D., 1989, Kar. 513.
[1]. P.L.D., 1980, S.C, 160.
[1]. Habib Bank Limited v Messrs waheed textile Mills Limmited, P.L.D., 1989, Kar. 371.
[1]. Niaz Ahmed v.
Province of Sindh P.L.D., 1977.
[1]. State v. Zia-ur-Rehman, P.L.D. 1973, S.C. 49.
[1]. Sakina Bibi v. Fedeation of
[1]. Hakim Khan and others v. Government of
Pakistan, PLD,
1992, S.C. 595.
[1]. Justice
Rizvi, Shabber Raza, Constitutional Law of
[1]. Aslam Khaki V. Muhammad Hashim, P.L.D. 2000, S.C. 225.
[1]. Sardar Ali and others v. Muhammad All and others, P.L.D.
1988, S.C. 287.
[1]. Federation of
[1]. Muhammad Salahuddin v. Government of
[1]. Tanzeelur-Rehman. P.L.D., 2002, Journal, 66.
[1]. Speeches in
[1]. “The Dawn” June 14. 2007.
[1]. Justice Saeed Khan Khosa P.L.D, 1995, J.17.
26. Hussain
Naqi v. the District Magistrate, P.L.D. 1973, Lah.164.
[1]. Speech of Liaqat Ali Khan, Mehmood, Safdar, Constitutional Foundations of
JUDGES AND ELECTIONS:
Some Reflections, Observations and
Suggestions from the Perspectives of a Civil Judge
By
MUHAMMAD AMIR MUNIR
(Civil
Judge 1st Class / Judicial Magistrate s.30)
Additional-Director (Academics)
The experience of working as returning officer (RO), assistant
returning officer (ARO), presiding officer (PO) and revising authority (RA)
during past four important elections has made me to learn a lot about the roles
of a judge during election activity, the common man, the political elite, the
executive, the police and the elections themselves. Many hard realities came to
light while at the same time something over and above of traditional judicial
duties provided experience towards a new sort of public dealing. Extensive
tours to the electoral area and the polling stations provided a pleasant change
in routine duties.
Although the involvement of judiciary[1] in conduct of elections was
meant to use its exalted position for a free, fair and impartial election
activity, but the events that are beyond control of the judiciary during this
activity brings bad name for the judiciary for no fault on part of the judiciary
itself, e.g., lack of police control and vigilance during and after election
hours, highly charged political environment, use of fire-arms by political
rivalries, resultant harassment to the voters and weak candidates,
non-cooperation of police with returning officers, no security for presiding
officers during and after election hours until they deliver results to the
returning officer, mismanagement of transport plan for presiding officers,
etc., to name a few. Hence, it needs review of paradigm shift into the power
and role of each functionary responsible for conduct of fair and impartial
elections. Due to the election work, the judicial work generally and the
litigants particularly suffer the most as all the judicial work is generally
adjourned without formal hearings for almost two months for general or local
bodies’ elections. Anyhow, loss of judicial time for a ‘greater good’
(judiciary conducting elections!) can be deemed a fair trade-off between
judicial and election duties if ‘greater good’ is really achieved; but what to say of vice-versa!
The process of elections starts from appointment of returning
officers, assistant returning officers and other staff while the activity is
headed by district judges of respective districts as district returning
officers (DROs). As a matter of policy, only then executive officers are
involved in substantial election activity when there are no alternative
judicial officers available. Perhaps for the reason that people have more
confidence in judiciary than in executive, the judiciary has been involved for
the conduct of the elections. However, we have a lot–before, during and after
the election process–which lowers the image of judiciary in the eyes of public,
sometimes more due to the actions or inactions on part of the executive, who
are to help the judiciary in conduct of elections. Citizens, therefore, rightly
raise their eye-brows to take to their surprise any allegations of rigging made
although the elections have been conducted by the judiciary.
Practically, election activity is monitored district wise through
DROs, who are made so to coordinate between the returning officers of their
respective districts and the election commission. The main responsible person
of election in any constituency is RO who works with the help of ARO and other
staff attached to his/her court. However, for every action or inaction, the RO
cannot shift his or her responsibility to anyone else for fair and impartial
conduct of election in the constituency under his / her control.
The best thing in my view is that judges are not easily accessible
by the general public, the executive and the political elites. This is part of
their training as well as their experience over the years as judicial officers.
Perhaps, the code of conduct applicable to the judicial officers remains
applicable even when they function under the election commission. This area,
however, needs consideration by the judicial policy makers so that the code of
conduct may be made more exhaustive to address the issues relating to the
elections vis-à-vis the judicial officers. The election duty requires a change
in the attitude and behavior of the judicial officers towards the candidates,
their learned counsel and other supporters who appear before them during election
activity. It is so because the election duty is, by its definition, an
executive duty and hence, the provisions of code of conduct for judges cannot
be made applicable in stricto senso.
Judiciary as an institution has great respect in the eyes of common man for the
reason of judiciary’s fear, awe and decorum. The role of the judicial officers
involved in election activity is, therefore, much sensitive and important not
only for conduct of free, fair and impartial election activity but also for
maintaining the notions of ‘independence’ and ‘impartiality’. Still we cannot
avoid the statements in the press that ‘one or the other thing has been done on
the instructions of government!’ Generally, this is only political propaganda,
while there ought not to be any question of instructions received from any
government or its functionaries. The independence of judiciary even during the
election process can easily be maintained, thus, by the judicial officers being
members of the judiciary. This is the reason of public confidence in judiciary
being unapproachable.
There are many problems faced by the public in elections. Many
have no link with or control of the judiciary itself. For example, due to
paucity of funds, some arrangements may have lapsed. What to blame to a
returning officer who is unable to use his / her official vehicle provided by
the district administration with meager fuel charges. It is another matter that
we never heard of a returning officer with such complaint. What a returning
officer is supposed to do when he or she is short of funds and facilities
necessarily required for conduct of election? The impartiality of judiciary and
its independence is always affected jurisprudentially when such things happen
and the issues remain unnoticed and not properly addressed by the election
commission or the high courts. In my view, there must be a special report
written by every judicial officer connected with the election activity and sent
to the high court concerned (as is the case for a report for election commission
by each returning officer) for preparation of consolidated report at each high
court level and submitted to the National Judicial (Policy Making) Committee
for policy action at the highest judicial level. It will check any probability
of allegations against the judiciary for the fault of administration, police or
other agencies involved in election activity.
The ROs are always found having done things to minimize any
complaint of public as well as contesting candidates. For example, during the
distribution of election material to electoral staff (presiding officers etc),
lack of facilities like water, proper conveyance, and personnel is a failure on
part of the executive and not of the judiciary. As far as the facilities at the
polling stations are concerned, it is the available infrastructure to which
judiciary cannot change only for the election purpose. Efforts, wherever
possible, are always made to facilitate the candidates and their voters by
improvising the facilities. I still remember one municipal corporation primary
school in
Anyhow, election duty brings many more things to a judicial
officer which otherwise are not desired of him / her in his / her judicial
conduct. For example, during ordinary judicial life, judicial officer is
required not to intermingle with the public and should avoid going to public
places without necessity.[1] But in elections, judicial
officers, as a matter of duty, have to meet and facilitate so many people
inquiring or complaining about one or the other election matter. Much
interaction occurs with the political figures of the constituency. Even to
appoint a large number of polling staff (consisting of almost every government,
semi-government departments and even private organizations working at the
district level) also made judicial officers vulnerable to come into a little
bit executive style of relationship with them. How one can at once get away
from all such developed relationship when the election activity ends? What if the ordinary shopkeepers and others
start recognizing a judge due to his/her election duty? Perhaps, judges become
more prone to public access as an outcome of duties performed during elections.[1]
It is prime duty of returning officer to make all the polling
stations fit for election purposes. For that, physical verification of
buildings through visits is a must. And that brings a judge into streets.[1] I remember moving in the
streets of old cities of
Another thing that I noted was the public reaction to various
orders passed by the returning officers. I found that public, as a whole, give
less respect to returning officer as compared to a judge while sitting in
courtroom. I have experienced that during the filing of nomination papers,
disbursement of electoral material to polling staff, and the activities of
election day, people bother less about any orders passed by the returning
officers. Comparatively, more respect is shown by the same number of people in
courtroom during judicial duties. I found that people behave differently when
they are in courtroom during judicial work as compared to the time when they
are in the same courtroom with same person sitting on the presiding chair. To
quote an example from
In recent local bodies elections, I, along with my two other
colleagues, was serving as presiding officer for a tehsil nazim election at
Kharian. The activity remained peaceful during the voting hours, but at the
time of ballot count, some intruders came there and made aerial firing for
almost fifteen minutes and tried to sabotage the whole vote counting process.
The ballot papers/boxes were damaged in booth where vote count for tehsil nazim
was under progress. However, as the result was already prepared by my colleague
incharge of said polling booth, he managed to announce the same just before the
sabotage activity. Hence, the purpose of intruders still failed due to timely
action of my colleague to provide the result to the RO without fear of what
happened at the booth. Police were nowhere during such brutal act. However, God
saved all of us and no one of us, as also any other staff or polling agents,
got any injury. But I can remember that such ten or fifteen minutes’ firing
made all of us to recall the Sialkot Jail incident where four civil judges
(including one of my batch-mates) were brutally murdered and police remained
fail to avoid the mishap. I made a call from my cell phone to the RO who showed
his helplessness on phone by saying that he is unable to contact police as
police is not attending his calls! When the culprits left the scene, I asked
the DSP about the police during all that happened. He replied: ‘Police were
taking their positions!’[1] So it was loud enough for all
of us (the members of district judiciary) what he means (perhaps the culprits
were under police protection as not a single fire was made on the culprits by
the police nor their car tires were made to burst by the police![1])
We have also heard that one civil judge/returning officer was
subject to physical torture in
There are many such like and other incidents where judicial
officers suffer personally to serve as returning officers or presiding
officers. If you are in the judicial service, you will hear a lot about these,
but no one writes about these things so that any effective policy is made by
the executive, the legislature and the judicial policy makers to control such
type of incidents. Here, we need someone who can speak on behalf of judiciary
in this aspect of their official life.[1]
One more thing noted in all these elections was that the petrol
charges provided by the election commission were always too short to meet the
requirements of commutation during election activity as also the stationary
charges. To visit far flung polling stations again and again consumes much
petrol. But perhaps, no extra money was ever provided to meet the extra
expenses on petrol. Hence, the election commission must give second thought to
this aspect because due to non attendance of this issue, there are many chances
that some other sources can be used for running the cars provided for election
duty. In my view, petrol charges must be given on the basis of actual mileage
covered by the transport provided to each RO through a log.
Coinciding with
this is the issue of official vehicles provided to the judiciary during the
election activity. It is the duty of the district administration to provide
official vehicles to the returning officers for their movements during election
duty. It is a common complaint of district judiciary that district
administration provides very old and non-functional vehicles during elections
just to comply with the orders of the chief election commissioner in this
respect. Practically, the vehicles are found not in good condition to meet the
requirements of returning officers who have to travel a lot during election
activity. The election commission and the administration must give due
consideration to this aspect and efforts should be made to provide vehicles of
good order to the returning officers.
Police force is always found insufficient during elections. This
provides much opportunity to those who try to rig at the poling stations. Only
one or two policemen with no fire-arms are not enough to control law and order
situation at the polling stations. Further, during the recent local bodies
election, I found that police was not cooperating with the judiciary and even
reports were made that no police officer visited a polling station where
rigging complaint was made early in the morning. I have seen one of the presiding
officers, who was harassed so much that he was not in a position to speak a
single word. He was rescued by the RO, but again without any police force to
even help the RO. Many efforts during election hours have been made to have a
conversation with the police head[1] but all proved futile. During
election hours, I was only able to talk to the DPO once. When I complained him
that police response on complaints of law and order situation at various
polling stations is very slow, he showed his helplessness.
No police force was provided to the returning officers to visit
polling stations with security. So if returning officer is unable to visit a
polling station on a complaint for the reasons mentioned above, any complaints
of rigging can be attributed to the executive / police by way of vicarious
liability. To tackle this situation, I am of the view that in every district,
election activity must be divided into four phases so that more police
contingents are available for the areas where elections are underway. It
becomes a real difficulty and practical impossibility for police force to act
timely during election activity everywhere in the city. Perhaps, police can be
consulted in this matter and a joint conference can be organized by the
judiciary, the executive, the police, and the election commission to point out
the problems and their prospective solutions.
Another important area that needs little discussion is the
personnel that are appointed presiding officers at the polling stations.
Mostly, they are school or college teachers. They cannot face the pressure of
political leaders during elections. It has been experienced that some of the
presiding officers were abducted by the candidates and after preparation of
fake results with forced signatures of presiding officers, the presiding
officers were made to deliver the results to the returning officers. There is
no proof to prove this observation. However, this is what we hear after the
elections. School and college teachers are locals of the area and they avoid
any conflict with the candidates who threaten them of dire consequences. What
to talk of female presiding officers! We commonly hear complaints that the
presiding officers provided one result to the candidates and press reporters at
the polling station and another to the returning officers. The returning
officer is bound to accept the official result provided to him / her by the
presiding officer. It is in its authority to verify physically the result if
serious complaints are made. But what to say when not only the result is
manipulated but the ballots also. This is done by the presiding officers after
they leave the polling station but before reaching the returning officers
either under harassment and influence of the candidate intending to rig the result
or with connivance of the same. These are difficult areas to address by simple
solutions. They need due consideration not only by the election commission but
judiciary can also provide its input being one of the important stake-holders
in conduct of the election. The reputation of judiciary is always at stake
during elections and hence to protect the same due to fault of other agencies
involved in the election activity is need of the time through a timely policy
action or direction to the organizations concerned.
To address this issue, there may be many solutions. One option can
be the use of information technology. In each and every polling station, the
activity can be monitored through mini cameras (just as same have been
installed on roads by the traffic police) and presiding officers can be
provided with fax machines, cell phones and email facility to send a copy of
the result to the returning officer through these means before leaving the
polling station for physical hand over of the result and other allied matters.
For this purpose, the election commission can use the wireless phone facility
and computers. Computers can be hired from educational institutions while
wireless phone facility can easily be obtained from the national
telecommunication and other private organizations in the field. Wireless phone
service providers also provide internet services through the same phone set for
no extra cost. This is possible and will definitely generate positive impact
regarding the fairness of the election activity which remains out of sight of
the returning officer unless he or she receives the copy of result declared by
the presiding officer. Use of electronic voting system and computerized ID
cards will even help more in this regard. Election commission needs to
prioritize its activities towards this side to raise its credibility in the
eyes of public.
It is also seen that during the filing of nomination papers, many
election disputes regarding academic qualifications arise. No guidance or
manual is provided to the returning officers to decide these matters. Every
time same disputes are filed. To address this issue, election commission must
prepare a ‘bench-book’ for returning officers in which all the important case
law relating to election disputes is to be provided subject-wise. Further,
election commission must provide names of all the educational institutions,
boards and other degree/certificate awarding institutions whose
degrees/certificates are recognized by the higher education commission or other
such bodies. Any certificate not mentioned in such booklet will be a
disqualification for the contesting candidate. Election commission has ample
time to do this exercise for the help of returning officers. All the relevant
judgments relating to this issue must be included in this proposed booklet. It
will help ROs to be more precise while deciding these issues. Further,
candidates must be made to provide certified (and not the attested) copies of
their credentials by the degree/certificate awarding institutions or the higher
education commission.
Election symbols is another area for consideration. When the
number of candidates is high in one constituency, as generally happens in local
bodies elections, the ballot papers contain many symbols. Some of them used to
be so identical that it becomes difficult for the voters to duly identify
symbol of the candidate of their choice. I have received an application in one
of the elections I conducted as RO wherein it was alleged (and rightly alleged)
that the symbol of ship and boat confused the voters. For example, if the
candidate was allotted symbol of ship, the voters voted for him at boat
although boat was not assigned to any of the candidates. Consider the situation
if boat was also allotted to another contesting candidate who will obtain votes
of his rival due to confusion about symbol. This controversy even cannot be
addressed through an election petition as there is no measure that the votes
actually cast in favor of boat was actually meant for ship. Little effort on
part of election commission can avoid such type of problems for voters. It must
be addressed.
There are many
other areas for discussion and deliberations on the issue in hand; however, due
to paucity of time, I conclude my essay. If I will find more time to write
about other matters not discussed in this essay, I will do the same. I hope
that judicial officers with election experience will be prompted to add to this
essay their own ideas and experiences. A debate within the district judiciary is
necessary for raising all those issues that are not generally reported to the
higher authorities. One way is to organize a conference, as suggested above, on
the issues raised and discussed with participants from the district judiciary,
police, election commission and district administration. I recommend to all the
stake-holders to consider this proposal.
-----------------------
THE MULTIPLE DIMENSIONS OF JURISDICTION OVER
INTERNATIONAL CRIMES
By:
USMAN HAMEED*
LL.M (
INTRODUCTION:
The international crimes are
crimes of most serious concern to international community. The international
crimes can be prosecuted both before national courts as well as international
criminal tribunals. Recently the principle of universality has evolved which
empowers any state to bring to justice the authors of international crimes. The
jurisdiction of international criminal tribunals is spelt out in the instrument
of their creation. The states are generally reluctant to exercise universal
jurisdiction hence the international criminal tribunals are more appropriate
forums to prosecute the perpetrators of international crimes.
In this paper at the out set
international crime and state jurisdiction will be discussed Secondly the
exercise of universal jurisdiction by state courts will be discussed. Thirdly
the exercise of jurisdiction by international courts will be considered.
Fourthly merits and demerits of international adjudication will be considered
and finally the conclusions will be made.
INTERNATIONAL CRIMES:
The International crimes are
offences against the whole international community.
They give rise to the
personal criminal responsibility of the accused as opposed to state
responsibility even if the crime is committed under the directions of
government. Usually the international crimes involve widespread and systematic
violations of fundamental rights of a population on racial, religious, ethnic
and political grounds. A person accused of international crimes cannot claim
immunity. The international crimes comprise of serious violations of customary
rules meant to protect dignity of mankind as a whole hence they bind all
nations and individuals alike. Since repression of these crimes is in the
interest of all nations, any state is empowered to prosecute and punish the
person accused of international crimes. Under the customary law the
international crimes entailing individual criminal responsibility include
piracy, war crimes, crimes against humanity, genocide, torture, terrorism and
aggression. The conventional laws also include drug trafficking and illicit
arms trade amongst international crimes but they are not recognized as
international crimes under customary international law. (1).
HOW STATES CAN EXERCISE JURISDICTION OVER INTERNATIONAL CRIMES:
Traditionally the
individuals were subject to the jurisdiction of the state in which they lived.
At that time violation of international rules was generally attributed to the
state of nationality of the offender. In
case the offender happened to be a state official he or she was immune from
criminal proceeding. After the emergence of international crimes as an
independent category of offences the principle of individual criminal
responsibility was established. Now states can exercise jurisdiction over
international crimes on following four bases:
- Nationality of the accused or active
nationality.
- Place of commission of crime or territorial
state.
- Nationality of the victims or passive
nationality.
- Universality principle
It has been observed that
states are generally not inclined to prosecute foreigners for committing crimes
against foreigners in the territories of other states. It is so because the
international crimes are mostly committed with encouragement of governmental authorities
and states do not want to spoil their diplomatic relations by interfering in
the domestic affairs of each other. Moreover as most of the persons accused of
international crimes are government officials the states of their nationality
do not cooperate with prosecuting states in extradition and collection of
evidence. Similarly the assumption of jurisdiction by the victims' state is
also regarded unusual because due to public sentiments involved it is difficult
for judges to remain impartial.
Usually the territorial
state and state of nationality of accused are considered as appropriate forums
of trial because it is easy for those two forums to collect evidence and in
this way inviolability of sovereignty is also ensured. (2)
THE UNIVERSALITY PRINCIPLE:
More recently the
universality principle has evolved in relation to exercise of jurisdiction over
international crimes. As international crimes are crimes of common concern to
whole international community, under the universality principle 'any state is
empowered to prosecute and punish the accused regardless of nationality of
accused or victim and place of the commission of offence.' This principle finds
support in both customary as well as conventional international law. In
customary law Piracy is considered as an attack on freedom of high seas and
pirates are regarded as enemies of mankind therefore any state is entitled to
prosecute them. In 1927 the Permanent Court of International Justice observed
in the Lotus Case (
1- The international crimes
are crimes of such a serious magnitude that they deserve to be prevented by all
states.
2- The universal character
of these crimes vests in every state the authority to try and punish the
accused (3).
In its Judgment in the Genocide case (
CONDITIONAL UNIVERSALITY:
It is argued by some writers
that universal jurisdiction can only be exercised if the accused is present on
the territory of prosecuting state. This is called conditional universality.
The main reason for conditional universality is the fact that trial in the
absence of accused is neither recognized in the domestic legal system of
majority of states nor it is allowed under the statutes of international
tribunals. It is commonly believed that trial in absentia deprives the accused
of his fundamental right of fair and impartial hearing. Furthermore even if the
accused is convicted subsequent to an absentia trial, the state of his
nationality may not be willing to surrender or extradite him. In such case the
whole purpose of the trial will be defeated because the enforcement of judgment
will become impossible. Hence it is important for the exercise of universal
jurisdiction that accused should be in custody of prosecuting state.
Nevertheless more widely accepted view is that all pre trial proceedings can be
conducted in the absence of accused including issuance of warrants and
collection of evidence but trial itself can only begin once the accused is
present on the territory of prosecuting state. (5)
IMMUNITY FROM JURISDICTION:
A Person accused of
international crimes cannot claim exemption from the exercise of jurisdiction
by foreign states on the ground that alleged crimes were committed in
performance of his official functions and he is immune from criminal
proceedings. There are two kinds of immunities in international law .Functional
immunity and Personal immunity Functional immunity means a state official is
immune from criminal proceedings if he commits a crime in the exercise of his
official functions.
This immunity is related to
acts done in the service of state and it continues even after the relinquishment
of office by the state official. Under the statutes of ICC, ICTY and ICTR
functional immunities have been cancelled. Personal immunity is available to
current Heads of states, foreign ministers and diplomatic agents. It terminates
as soon as the office is relinquished. This immunity applies to acts done by
state officials in private as well as official capacity (6).
According to the facts of Case Concerning Arrest Warrant (if 11 ApriI2000(Congo V Belgium) an
investigating judge of a Belgian Court issued a warrant for the arrest of an
incumbent foreign minister of Congo and circulated the same to other countries.
The warrant was issued on the charges of instigating ethnic massacre of
Citizens of Congo in the
Although the states are
barred from exercising universal jurisdiction against a person enjoying
immunity from criminal responsibility, nevertheless House of Lords in R v: Bow
Street Metropolitan Stipendiary Magistrate. exp Pinochet Ugarte Case (2./ March 1999) has drawn a distinction
between the immunity enjoyed by an incumbent head of state and a former head of
state. According to the judgment' an incumbent head of state enjoys complete
immunity from criminal proceedings abroad whereas a former head of state enjoys
immunity pertaining to only those acts which are done in performance of his
official functions. The limited immunity available to a former head of state
does not extend to acts done in private capacity during his stay in office. The
offences alleged against ex General Pinochet of
CONDITIONS FOR THE EXERCISE OF UNIVERSAL
JURISDICTION:
The exercise of universal
jurisdiction by state courts is subject to the fulfillment of certain
conditions. According to R. V Bow Street Metropolitan Stipendiary
Magi.5Irate, ex p Pinochet Ugarte Case (House (if Lords, 24 March 1999) a Spanish Court exercising
universal jurisdiction issued a warrant for the arrest of ex General Pinochet
the former head of state of Chile on the charges of torture and hostage taking
in the territory of Chile. The accused was arrested on his visit to
- The alleged act must be a crime under the laws
of both, the extraditing state and the prosecuting state. (Principle of
double criminality)
- The alleged act must not be legal at the time
of commission or the accused must not genuinely believe it to be legal.
{Principle of legality)
- The alleged act must violate a superior rule of
international law (.Jus Cogens). (9).
UNIVERSAL JURISDICTION AND STATE PRACTISE:
Although some international
conventions do encourage the states to prevent and punish international crimes
by exercising universal jurisdiction yet the state practise is not consistent
in this regard. A few states like
IMPEDIMENTS ON THE EXERCISE OF UNIVERSAL JURISDICTION BY NATIONAL
COURTS:
Usually the State courts
have to face following common problems in the exercise of universal
jurisdiction over international crimes:
- If a person accused of international crimes
never enters the prosecuting state the judge will have to investigate a
large number of complaints about which he can do nothing.
- Trial in the absence of accused will be
criticised for violating the fundamental rights of accused.
- The state of nationality may refuses to
cooperate and extradite the accused.
- Where accused is a state official mere issuance
of arrest warrant without caution may lead to international dispute.
- Where more than one state start criminal
proceedings against the same accused for same crime, there can be a great
risk of inconsistent rulings.
- Where the trial involves a high ranking state
official, due to political nature of the case the judge can be
politicised.
- As international crimes are generally committed
by individuals with the encouragement and support of territorial state,
such state may not cooperate in collection of evidence.(l0)
It is emphasized that the
exercise of universal jurisdiction is useful where international crimes are
committed by low ranking defendants not high ranking state officials. With
regard to low ranking defendants, the collection of evidence and issuance of
warrant even in their absence will facilitate their subsequent arrest. Low
r811king defendants are not well known persons and usually no national feelings
are associated with their arrest. Hence it is more than likely that state of
nationality will cooperate in the arrest of offender (11).
EXERCISE OF UNIVERSAL JURISDICTION BY INTERNATIONAL TRIBUNALS:
It has been argued by
Rolings that "a distinction must be drawn between individual and system
criminality". The individual criminality refers to the solitary acts of
individuals whereas system criminality pertains to the criminal acts encouraged
and supported by the government. The international criminal tribunals are best
fitted to exercise jurisdiction over system criminality because it involves
appraisal and condemnation of the whole system of government including the
highest authority of a state (12).
ICTY, ICTR AND ICC:
The international criminal
tribunals for former
PRIMACY OF ICTY& ICTR:
The statutes of ICTY &
ICTR provide that the tribunals shall have concurrent jurisdiction along with
national courts to try a person accused of international crimes but the tribunals
shall have primacy over national
court. The tribunals can request a national court to defer to the competence of
international tribunal. The ICTY & ICTR can assert primacy in the following
cases:
- When the trial before a national court will
belittle the seriousness of an international crime.
- When the national court proves to be unreliable
and the trial is a sham to save the accused from international criminal
responsibility.
- When the case is closely related to the other
cases being tried by ICTY or ICTR.
In Prosecutor v. Dusko Tadic (1995) the ICTY requested the German
authorities to defer the trial to the competence of ICTY on the ground that it
was not in the interest of justice if some of the co accused of the same crime
were to be judged by national courts and other by ICTY. The German authorities
complied with immediately and had the accused surrendered. (13)
COMPLEMENTARITY OF ICC:
Under the statute of ICC the
Court is subsidiary and complementary to
the national courts. National Courts enjoy priority in the exercise of
jurisdiction. The ICC is barred from exercising jurisdiction in following
cases:
- Where a national court asserts jurisdiction
over an international crime and under the domestic law such court has
jurisdiction to try the accused.
- Where the accused has been convicted or
acquitted by the national courts after a fair trial.
- The case is not of sufficient gravity to
justify action by the ICC.
The ICC can override the
national jurisdiction in the following cases
- Where the national court is unable or unwilling
to try the accused.
- Where the case is of sufficient gravity to
justify the exercise of jurisdiction by the ICC.
A state may be regarded as unwilling when proceedings are taken by
the national court to shield the accused, there is an unjustifiable delay in
the trial of accused or proceedings of national court are not impartial and
independent. A State is Unable to try
the accused when due to collapse of judicial system the state is not in a
position to detain the accused, collect evidence and carry out criminal
proceedings. A state may also be Unable to
try the accused when it cannot proceed due to legislative impediments such as
amnesty law.
Under the ICC statute all
cases may be tried by the national courts irrespective of the status of the
offender and the magnitude of crime. The ICC only comes into picture when the
national courts are unable or unwilling to try the accused. (14)
COMPARISON:
It has been argued that the
international tribunals should have primacy over national courts. Where the
trial is conducted by the territorial state the judges do not remain impartial
due to public sentiments against the accused. Similarly where the trial is
conducted by the state of accused’s nationality and the crime is committed with
the support of government, the national courts are unable to prosecute the
accused unless a change of government takes place. (15)
INTERNATIONAL TRIBUNALS AND UNIVERSAL JURISDICTION:
It has been suggested by
Daniel D. Natenda that the international community does have the power to
establish international tribunals vested with universal jurisdiction over
international crimes. The individual states are agents of international
community and if they are competent to exercise universal jurisdiction it is
quite logical thC1t the international community being their principle is
equally competent to do the same.
The allied powers acted on
the same principle when they set up International
military tribunal at
The international tribunals
for former
In case of ICC, Contrary to
the universality principle article 12(2) of ICC Statute provides that the court
can only exercise jurisdiction where either the state of offender's nationality
or the state where crime is committed is party to the ICC statute. The only way
court can exercise jurisdiction when these states are not parties to the
statute is either of them making a declaration under article 12(3) accepting
the exercise of jurisdiction by the court.(17)
CRITICISM ON INTERNATIONAL TRIBUNALS:
The exercise of jurisdiction
by international tribunals has been subjected to criticism. It has been argued
that the Charter of International Military Tribunal at
MERITS AND DEMERITS OF ADJUDICATION BY INTERNATIONAL TRIBUNALS:
Some writers suggest that
the international tribunals are not suitable forums for exercising universal
jurisdiction over foreign nationals because they lack an autonomous police
force empowered to arrest and override national authorities. The international
crimes are committed over large territories involving many states; in the
absence of a standing police force it is very difficult for the tribunals to
collect evidence without seeking state cooperation. Trials before international
tribunals are unnecessarily prolonged because judges are from different social
and cultural backgrounds and the proceedings have to be translated into more
than one language. The accused remains in custody for a long time due to
lengthy proceedings at pre trial, trial and appeal stages. The trial before
international tribunals is also prolonged due to lengthy examination and cross
examination. It is so because the accused does not usually like to plead guilty
due to stigma attached to the conviction by international tribunals. (19)
Despite of these short
comings the international tribunals enjoy a number of advantages over domestic
courts in the exercise of jurisdiction over international crimes. It is
submitted that the international tribunals ensure uniformity in the application
of international laws. The Judges of international tribunals are generally
considered impartial. The trial before international tribunals is given more
media projection resulting into public dislike and repression of crime itself.
The domestic courts are not inclined to exercise jurisdiction where the states
have no territorial or national link with the crime whereas the tribunals being
independent bodies can exercise jurisdiction directly over individuals living
in foreign countries. The states are more willing to cooperate with
international tribunals instead of domestic courts because international
tribunals are considered as independent and impartial bodies. (20)
CONCLUSIONS:
It has been suggested by
Daniel D. Natenda that "a permanent court vested with universal
jurisdiction could have been a potent force to combat the immunity enjoyed by
today's dictators but sadly the ICC statute reveals that the dream has not
materialized" (21). Due to reluctance of states the international
tribunals are in a better position to adjudicate upon international crimes by
assuming universal jurisdiction. The ICC only comes into picture when the
states are unable or unwilling to proceed. Nevertheless it is hoped that ICC
will assert its limited jurisdiction with great vigour and if it does the
states will be pressurized to repress international crimes with fairness and
impartiality because no state would like ICC to pass judgement on its inability
or unwillingness to proceed against international criminals (22) Furthermore,
It is pertinent to mention that in recent years states have preferred t()
resort to mixed tribunals in emergency situations .Mixed tribunals are
established JI1 the territorial states under national legislation or treaty law
and they comprise of national as well as international judges. Such Courts have
been set up for
REFERENCE:
1.
Antonio Cassese, International law (2001) p,246
2.
J,I Charney, 'International Criminal law and the role of domestic
courts, 95 AJIL(2001) P.120
3.
Antonio Cassese, International Criminal law (2003) p. 284-291
4.
Ian Brownlie, Principles of public international law (2003) p.568
5.
Antonio Cassese, International Criminal law (2003) p.286-287
6.
Antonio Cassese, International law (2001) p.259-260
7.
Alexander Orakhelashvili, Arrest warrant of II April 2000 (
8.
D J Harris, Cases and materials on international law (2004) p.333-340
9.
Ibid
9a- Antonio
Cassese, International law (2001) p.259-260
10.
J.I Charney. 'International Criminal law and the role of domestic
courts, 95 AJIL(2001) P.120
11.
Antonio Cassese, International Criminal law (2003) p.291
12.
Antonio Cassese, International law (2001) p.265
13.
Kriangsak kittichaisaree, International Criminal Law (2002) p.25-26
14.
Kriangsak kittichaisaree, International Criminal Law (2002) p.27-38
15.
Antonio Cassese, International Criminal law (2003) p.277-285
16.
Daniel D Ntanda Nsereko, The ICC Jurisdictional and related issues, 10;
1 Criminal Justice Periodicals 1999 P.87
17.
Ibid
18.
Antonio Cassese, International Criminal law (2003) p.232-338
19.
Antonio Cassese, International law (2001) p.268-270
20.
Antonio Cassese, International law (2001) p.268-270
21.
Daniel D Ntanda Nsereko, The ICC Jurisdictional and related issues, I
0; I Criminal Justice Periodicals 1999 P.87
22.
Helen Duffy, Towards eradicating impunity: The establishment of ICC,
26,4:Criminal Justice Periodicals 1999 p.115
23.
H. Strohmeyer, Collapse and reconstruction of judicial system, 95 AJIL
(2001) P.46
-----------------------
DOCTRINE OF NECESSITY
By:
SARDAR MUHAMMAD RAZA
I have gone through the judgment handed
down by my learned brother Rana Bhagwandas, J., being reasons for the short
order dated 28th September 2007, whereby we had held, while
dissenting with majority view, that the petitions are maintainable under
Article184 (3) of the Constitution and hence accepted in totality. I agree with
the reasoning adhered to in the judgment aforesaid but would like to dilate
upon the view taken by Mr. Abdul Hafeez Pirzada, learned amicus curiae.
He did not controvert the merits of the
case. His placing reliance upon Haji Saifullah case (PLD 1968 SC 166)
was tantamount to saying that even if the petitioners have a good case on
merits, it would not be in the fitness of the things to issue writ in their
favour, as it would, most likely impede smooth transition from uniform rule to
the rule of pure democracy. The stance so taken is nothing but reiterating the
import of doctrine of state necessity, altogether forgetting that the favour
did not work in the past. The transition provided only a reinvigorating space
for a new Uniform rule, bringing the Nation back again and again to the
zero point – the marvel of doctrine of necessity.
Doctrine of necessity is neither Law nor
any rule nor regulation. It is a state of affairs where, in the given
circumstances, unfair is justified in the name of expediency. Most of
philosophers, scholars and pseudo-intellectuals in the west have been floating
various ideas from time to time sparking debates the world over. Genuine things
are adopted and promoted in the developed countries while underdeveloped are
duped into the fantasies of ingenuine, which unfortunately are followed as
sacred commandments. Later category include Hans Kelsen’s doctrine of state
necessity and Machiavelli’s “Prince”; cherished in the underdeveloped like
What irks my mind most is not primarily
the genuineness or otherwise of these draconian ideas of Kelsen or Machiavelli
but whether or not we the Muslims have any legacy to follow or to refute or
defy the evil ideologies though dead in the civilized countries yet flourishing
in the third world. I firmly believe and hold that we the Muslims must seek
ultimate guidance from the ultimate wisdom of revealed knowledge – The Holy
Qur’an.
A book that has to last for all times
should always avoid minor details and must always lay down the principles. It
is essentially true about the Holy Qur’an. Before that we seek guidance from
the Book, it is necessary to comprehend as to what the doctrine of necessity or
those of Machiarelli are. Briefly, those propound that truth and falsehood,
permissible and impermissible have no such frontiers that cannot, under any
circumstances, be violated. If expediency demands, impermissible can be made
permissible regardless of good conduct, principles or values of life. Means are
justified by the ends achieved. On the other hand Holy Qur’an lays down certain
restrictions on the conduct of man, which cannot be changed or violated.
Any deviation therefrom is a negation
of
6/115- وَتَمَّتْ
كَلِمَتُ
رَبِّكَ
صِدْقًا
وَعَدْلاً
لاَّ مُبَدِّلِ
لِكَلِمَاتِهِ
(The commands of your nourisher are
complete with truth and justice. No person can bring about any change
whatsoever in them.)
Doctrine of necessity is a man made
enigma, which must always be subservient to the greater human values, ordained
by Almighty Allah. Certain commandments are directed towards individuals, the
negation whereof ultimately affects the whole society. When truth is ordained
and falsehood condemned, it is imperatively laid down that “do not confound
truth by overlaying it with falsehood nor knowingly conceal the truth.”
2/42-تَعْلَمُون وَلاَ
تَلْبِسُواْ
الْحَقَّ
بِالْبَاطِلِ
وَتَكْتُمُواْ
الْحَقَّ
وَأَنتُمْ
Almighty Allah has denounced even the
mixing up of truth with falsehood, leaving no room for expediency. More
explicit is the verdict in surah Al-Nisa where extremely strong and
impulsive expediencies are shunned altogether in comparison to the greater
values of truth and justice. It says, “Believers! be upholders of justice and
bearers of witness to truth for the sake of Allah, even though it may be
against yourselves or against your parents and kinsmen or the rich or the poor,
for, Allah is more concerned with their well being than you are. Do not, then,
follow your own desires lest you keep away from justice. If you twist or turn
away from the truth, know that Allah is well aware of all that you do.” (Al-Nisa 4/135 ]
يَا
أَيُّهَا
الَّذِينَ
آمَنُواْ
كُونُواْ
قَوَّامِينَ
بِالْقِسْطِ
شُهَدَاء
لِلّهِ
وَلَوْ عَلَى
أَنفُسِكُمْ
أَوِ الْوَالِدَيْنِ
وَالأَقْرَبِينَ
إِن يَكُنْ
غَنِيًّا
أَوْ
فَقَيرًا
فَاللّهُ
أَوْلَى
بِهِمَا
فَلاَ
تَتَّبِعُواْ
الْهَوَى أَن
تَعْدِلُواْ
وَإِن
تَلْوُواْ
أَوْ تُعْرِضُواْ
فَإِنَّ
اللّهَ كَانَ
بِمَا تَعْمَلُونَ
خَبِيرًا
Let us have a glance through a few other injunctions
where deviation from truth for the sake of expediency is condemned. “
Believers! Be upright bearers of witness for Allah and do not let the enmity of
any people move you to deviate from Justice. Act justly that is nearer to
God-fearing. And fear Allah. Surely, A;llah is well aware of what you do.” (Al
Maida 5/8]
يَا
أَيُّهَا
الَّذِينَ
آمَنُواْ
كُونُواْ
قَوَّامِينَ
لِلّهِ
شُهَدَاء
بِالْقِسْطِ
وَلاَ
يَجْرِمَنَّكُمْ
شَنَآنُ
قَوْمٍ عَلَى
أَلاَّ
تَعْدِلُواْ
اعْدِلُواْ
هُوَ
أَقْرَبُ
لِلتَّقْوَى
وَاتَّقُواْ
اللّهَ إِنَّ
اللّهَ
خَبِيرٌ
بِمَا تَعْمَلُونَ
One has to restrict only to a
few references from the Holy book, owing to the shortage of time, otherwise,
one can write volumes on the subject that Qur’an has defied expediency in
comparison to the truth. It is nothing but worst kind of hypocrisy, which has
been the way of life of the nations who were eliminated and replaced by nations
who followed the Divine Verdict. Duality of conduct has been the hallmark of
condemned people. Time is witness to it. History of mankind bears witness to it
and the truth thereof is evident from Surah Al-Asr- (103), wherein the
non-righteous are declared to be in a state of loss. In brief, every word of
Quran abhors falsehood, hypocrisy, duality of character, duality of conduct,
expediency, and thus, the doctrine of necessity. Seen in the larger and wider
perspective and applied to the entire society, the doctrine of necessity
becomes one of State necessity. Whatever be the canvas, whether individual or
collective, the doctrine is destructive either way. Rather, at State level, it
is devastating for the entire nation. Who should know it better than us.
Duality of conduct is always attributed to
falsehood. Truthful never vacillate. Mingling of truth and falsehood is a
negation of Divine Verdict. I, at this juncture, cannot avoid referring to a
very apt quotation of Allam Iqbal, whose deep insight into the Holy Qur’an is
evident from his poetry.
Batil dooie pasand hai, Haq laa sharik hai
Shirkat minna-e-Haq o batil na kar qabool
Idolatry has, in the present day, multifarious
manifestation. Ideologies, doctrines, theories and hypothesis are invented,
tailored and banked upon to please human, at the cost of displeasing the
Almighty. Quid pro quo is followed and maintained which may be relevant
to politics but cannot, in the circumstances, be pressed into service in
judicial matters while imparting justice. It is high time to follow Greater
Values of life rather than the expedient. We should avoid being accused of “ Khud badaltey nahin, Quraan ko badal
daitay hain ”.
For what has been dilated upon, though
short to encompass the subject, I hold that the doctrine of necessity is
violative of Quranic injunctions and withholding of decision on merits,
in order to achieve smooth transition in the interest of State necessity, would
neither be just, nor fair nor legal. The petitions being maintainable are
hereby accepted, pursuant to our short order dated
-------------------
STRICT COMPLIANCE IN LETTERS OF CREDIT
By
QAISAR ZAMAN
Advocte High Court (
Introduction:
The doctrine of strict compliance prevails
in all the contracts which occur in a letter of credit transaction: the
contract between the buyer and the banker, the contract between banker and
seller and between issuing and correspondent bank,[1] e.g.
in case of the contract between applicant and the issuing bank, the bank is
obliged to observe the borders of the commission given to it and fulfills that
request by observing strict compliance. The bank must accept those documents
which comply with the terms of the credit. It has no mandate to accept any
other documents. If the issuing bank deviates it has no right of reimbursement
by the buyer and if the seller does not present confirming documents it has no
ground of action against a bank, if they are rejected. A bank that rejects
confirming documents may be liable to the seller for the consequent loss;
equally, if the confirming bank deviates it has no right to claim reimbursement
from the issuing bank.
Definition:
“There is no room for documents which are
almost the same or which will just do as well….if the bank does as it is told,
it is safe, if it declines to do anything else, it is safe; if it departs from
the conditions laid down, it acts as own risk”.[1]
There are certain specific requirements
for the doctrine of strict compliance i.e.
1) All of the documents specified in the credit must be
tendered.
2) Each document must be
regular on its face.
3) Documents must be presented
within the stipulated time.
4) Original documents are
required.
5) The amount of the
credit, quantity, unit price must be specified.[1]
Art. 13(a) of UCP 500 (international
standard banking practice) obliges the bank to examine all documents stipulated
in the credit with reasonable care, to ascertain whether or not they appear, on
their face, to be in compliance with the terms and conditions of the credit.[1]Therefore,
documents which appear on their face to be inconsistent with one another will
be considered as not be in compliance. That standard is applicable only for
stipulated documents; documents which are not stipulated will not be examined
and shall be returned to presenter or be passed without responsibility.[1]
Time for Examination of Documents:
According to art.13 (b) of UCP 500, banks
shall have reasonable time for examination, not to exceed seven banking days
following the day of the receipt of the documents, and for determination
whether to take up the documents or refuse payment.[1]
According to art. 13(c) of UCP 500, banks
will deem conditions as not stated and disregard them if a credit contains such
conditions without stating the documents to be presented.
Waiver of Discrepancies:
Art. 14(b) of UCP 500 is very important:
banks, which can be the issuing bank, the nominated bank or the confirming
bank, must determine the documents alone whether or not they appear on their
face to be in compliance with the terms or not, if they appear not to be in
compliance, bank may refuse to take up the documents. The bank hereby has got
latitude when judging, which it need because not every error leads to a
rejection and many problems can be solved by communication between bank,
applicant and beneficiary. But the bank is obliged to decide on its own. If the
issuing bank determines documents to be not in compliance, it may in its sole
judgment approach the applicant for waiver of the discrepancies, art.14(c).
Art. 14(d) contains the obligation of issuing, nominated or confirming bank to
give notice with reasons and the obligation of the remitting bank to pay back
refund with interests.[1]
Art.14(e) rules that if a issuing or
confirming bank fail to act in accordance with the provisions or fail to hold
the documents at the disposal of or to return them to the presenter, they shall
be precluded from claiming that the documents are not in compliance with the
terms and conditions of the credit. Art.14 (f) clears up that if the remitting
bank paid under reserve or against a guarantee that only concerns the relation
between such bank and the beneficiary. The issuing bank and the confirming bank
are not relieved from any of their obligations or provisions of art.14.[1]
Justification
of Strict Compliance in the context of Commercial Credits:
The
doctrine of strict compliance has been justified in the context of commercial
letters of credit on two grounds. First, on principles of agency law, the
issuer must act within the mandate given by the applicant and obtain documents
which comply strictly with the applicant’s instructions. Documents which go
outside the mandate do not entitle the issuer to reimbursement. Secondly, the
doctrine ensures that the issuer obtains documents which are commercially
marketable and can be used in case the goods are lost or destroyed. The aim is
to give the buyer the documents which are valuable or protective.[1]
Compliance
must be Strict:
“In
determining whether the documents conform strictly to the terms of the credit,
the bank is only concerned with what appears on the face of the documents. It
does not need to look behind the documents. It is not concerned with the
underlying transaction. This is made clear by art. 4 of the UCP 500 which
states that: ‘in credit operations all parties concerned deal with documents,
and not with goods, services and/or other performances to which the documents
may relate’”.[1]
The documents must comply strictly with
the requirements of the credit. As stated by Viscount Summer in Equitable
Trust Co of New York V. Dawson Partners Ltd.
In J.H. Rayners and Co Ltd v. Hambro’s
Bank Ltd, the correspondent bank
advised the sellers that a letter of credit in their favor was available upon
delivery of certain documents evidencing the shipment of “Coromandel
groundnuts”. The sellers tendered a bill of lading describing the goods as
“machine shelled groundnut kernels” and having in its margin the letters
“C.R.S.” which were an abbreviation of “Coromandels” but in the invoice the
goods were described correctly as “Coromandel groundnuts”. The court of appeal
held that the bank had rightly refused the payment under the credit, in view of
the doctrine of strict compliance.[1]
A literal, Mirror Image of the Credit:
Lord Summers principle seems to assume a literal mirror image
approach to the determination of documentary compliance. On the one side is a
detailed unambiguous formulation of requirements in the operative credit
instrument. On the other are the required documents, replicating to the last
minute detail the credit terms and conditions. The issuing, confirming,
negotiating or paying banks are supposed to hold the mirror image of the credit
terms to the tendered documents. Any deviation, no matter how slight, is
unacceptable. Yet, in the transition from the general principle to the concrete
documentary tenders that occur daily, the mirror image becomes quite blurred.
Various aspects of the doctrine are
considered with examples in the following paragraphs.
Exact literal
compliance:
Notwithstanding the rejection of the de
minimis principle, insignificant or trivial differences typographical errors in
names are not regarded as discrepancies. While the English and Canadian courts
have not adopted a rule of substantial documentary compliance there has been
apparently been recognition that there must be some latitude for minor variations
or discrepancies that are not sufficiently material to justify a refusal of
payment.[1]
In Seaconsar Far East Ltd V Bank
Markazi Jamhouri Islami
In Hing hip Hing Fat Co Ltd v Daiwa
Bank Ltd, the credit was applied for by Cheer goal Industries Limited, and
this name appear on the credit. But the presented bank presented the letter of
credit on a document which showed the drawee as Cheer goal Industrial Limited. Kaplan
J referred to a passage from Gutteridge and Megrah to the effect that
strict compliance did not extend to the dotting
of I’s and crossing of t’s or obvious typographical errors, concluding
that it was impossible to generalize: each case has to be considered on its own
merits. He held that the reference to the industrial was an obvious
typographical error, had caused no confusion and could not be relied upon as
discrepancy.[1]
Discrepancy
of the Documents:
The law on this subject is summed up by sir
john Donaldson M.R.[1]
he observed that:
…..that the
banker is not concerned with why the buyer has called for particular documents,
that there is no room for documents which are almost the same, or which will do
just as well, as those specified, that whilst the bank is entitled to put a
reasonable construction upon any ambiguity in its mandate, if the mandate is
clear there must be strict compliance with that mandate, that documents have to
be taken up or rejected promptly and without opportunity for prolonged inquiry,
and that a tender of document which properly read and understood calls for
further inquiry or is as such to invite litigation is a bad tender”.[1]
Technicalities:
“Even though a discrepancy may appear to be
purely technical, a bank is nevertheless obliged to take the point unless the
applicant waives the discrepancy”.[1]
A discrepancy may not affect the value or
merchantability of the goods, and may thus appear merely technical. A bank is
nonetheless obliged to take the point unless it is instructed by its customers,
the buyer, that the documents are acceptable.[1]
The buyer’s reason for not wanting to take
up the documents is almost always unrelated to the discrepancy, e.g. the market
may have moved against him or he may suspect that the goods may not comply with
the contract.
Trivial
Discrepancies:
“The distinction between trivial
discrepancies and those which require the bank to reject documents tendered is
not always easy to draw”.[1] In Moralice (London) ltd v. E D and F man
the documents were required to evidence the shipment of 500 metric tons of
sugar in bags of 100 kgs net weight each. The shipment was three bags short
(0.06%). It was held that because it was a letter of credit transaction the
maximum de minimus non cur at lex, or the rule of insignificance could not be
relied upon, and the bank was entitled to reject the documents.[1]
Today situation is different due to
incorporation of art. 39(b) “where the UCP applies art. 39 allow the bank to
disregard certain minor variations subject to the express provisions of the
credit. Art. 39(a) provides that the words “about”, “approximately”, “circa” ,
or similar expressions are used in connection with the amount of the credit or
the quantity or unit price of the goods they are to be construed as allowing a
tolerance not exceeding ten percent more or less than the amount or quantity to
which they refer”.[1]
Originality
of Documents:
Where
the documents tendered appear to have been or have actually been produced by
reprographic, automated or computerized systems or as carbon copies, they shall
also be acceptable as long as they are marked as original and where necessary
appear to be signed. (art. 20. b) [1]The
certificates required by the credit in this case to be marked as original were
not so marked. It was contended that they could not, therefore, be accepted
under art, 20.[1]
In this
case Midland Bank had rejected the documents inter alia, on the grounds that
the insurance policy was not marked “original”. The document was laser printed
on the colored notepaper of the insurance company and signed in original. The
court of appeal held that where the document is clearly an original, art.20 (b)
does not impose the requirement that it should be marked or stamped as
original.[1]The onus is
on the applicant for credit to establish that a bank has failed to discharge
his duty of reasonable care.[1]
Forfeiture
of right of reimbursement:
The doctrine requires the bank to accept
the documents that strictly comply with the terms and conditions of the credit.
“The bank loses its right of reimbursement and forfeits remuneration from the
applicant if it accepts documents that do not comply with credit and thereby
causing loss to the applicant”.[1]
The case of North Western Shipping and
Towage Co Ltd v Commonwealth Bank of
Problems
concerning the Doctrine of Strict Compliance:
There are several problems concerning the
doctrine of strict compliance:
1)
different
interpretation and extent of strict compliance
2)
fraud exception
3)
the liability of
banks if they don’t pay attention to strict compliance
In this paper I will discuss the last two problems.
Fraud Exception:
“Fraud unravels all. This maxim is rooted in
common law and equitable tradition. In the letter of credit case of