Justice Faez Esa’s lecture: Letting violators of Constitution go injustice

LAHORE: Supreme Court judge Justice Qazi Faez Esa on Friday said the 8th and 18th amendments to the 1973 Constitution were made to provide safe passage to ‘generals’, who had violated their oaths of office, and to provide constitutional cover to the laws promulgated during their tenures.Justice Qazi Faez Esa expressed these views while delivering a lecture on “Rights and Responsibilities of Pakistan’s Public Institutions and the Role of Suo Moto”, held in Lahore under the patronage of The Iqbal Ahmad Distinguished Lecture series. Validating such acts and giving a safe passage to violators of the Constitution was an injustice to the people of Pakistan, he said. The judge categorically said the Constitution mandates that every citizen must obey it and, if any person abrogates, subverts, suspends or holds in abeyance the Constitution or attempts to do so by force or by show of force, he commits high treason. Justice Esa said frequent tampering with the Constitution and laws undermine them; to ensure their durability, there must be longevity, i.e. they must subsist for a considerable period of time to retain the original ethos. Misguided political experiments destroy the old order and undermine the credibility of the new one, he added. Moreover, subverting and suspending the Constitution, and then validating such acts, does a great injustice to the people of Pakistan, and the social contract binding them and the country together. The apex court judge said what was conceived in 1940, envisaged in 1949 and detailed in 1973 must no longer be disrupted.Known physicist and activist Dr Pervez Hoodbhoy moderated the session, participated by a large number of people from different walks of life. Justice Esa started his lecture by saying that to speak the truth is an easy job as compared to telling a lie. The truth is straight and has its own shelter, while to cover a lie you have to tell more lies, he added. Justice Esa quoted an event from the era of Holy Prophet (PBUH), when a man came to Prophet Muhammad (PBUH) and said he had two (bad) habits of stealing and telling lies. He asked the Prophet (PBUH) that which one of them should he give up first?" The Prophet (PBUH) said, "Give up telling lies first and always speak the truth." Justice Qazi said that stealing is a criminal offence while telling a lie is not, but the Prophet (PBUH) barred the person from telling lies.He said it was a privilege for him to speak to honour the memory of Eqbal Ahmad as what Eqbal Ahmad knew and what every citizen must realise is the importance of the Constitution. He said the Constitution defines and inspires people. In dark times, it lights path forward, a path that avoids confusion, as well as the dangers of stumbling over the precipice, the judge added. Justice Esa said the Constitution is the foundation of Pakistan and no other single document encompasses the spirit and essence of Pakistan with greater clarity. Quaid-e-Azam Muhammad Ali Jinnah’s Pakistan was divided in less than a quarter of century after its inception because the constitutional scheme was disrupted and then jettisoned. He said after the dismemberment of the country, the present Constitution was unanimously adopted on the 12th of the April by a house of 200 direct representatives. He said within the Constitution, we discover the unified vision of Pakistan.About suo moto, Justice Esa said in respect of matters of public importance and fundamental rights, the SC could intervene while exercising jurisdiction under Article 184(3) of the Constitution. However, extra care must be taken to make sure that this jurisdiction is carefully exercised and jurisdiction exercised only when the stipulated two preconditions, public importance and enforcement of any of the fundamental rights, are met, Justice Esa added. He said the Supreme Court, as stipulated in Article 184 (3) of the Constitution, must ensure the enforcement of the fundamental rights while remaining vigilant that it does not stray into governance and policy issues and the apex court must also not undermine laws made by the elected representatives of the people.About 8th and 18th amendments, Justice Esa said the Constitution became operative on August 14, 1973 but within four years, it was subverted and suspended on 5th July 1977. He said the 8th Amendment to the Constitution was enacted on 11th November, 1985 to provide safe passage to the ‘general’, who had violated his oath of office and the constitutional order and also to provide constitutional cover to the laws promulgated during his tenure. He elaborated that this was done by inserting Article 270-A into the Constitution. Justice Esa said the Constitution was again subverted and suspended on 12th October, 1999. The 18th Amendment was enacted on 8th April 2010 to similarly provide safe passage to another ‘general’, who had also violated his oath and constitutional order and also provide constitutional cover to the laws promulgated during his tenure. This time it was done by inserting Article 270-AA into the constitution, Justice Esa explained. He said through 8th and 18th constitutional amendments, a number of other amendments were also made to the Constitution. These constitutional amendments also stipulated that the actions of these dictators shall not be called in question in any court on any ground whatsoever, Justice Qazi Faez Esa maintained.In the question answer session, Justice Esa said popularism is for politicians not for judges. He said we, the judges, issue verdicts but the justice belongs to Allah Almighty. To a query by Najam Sethi that in recent times suo moto powers were used excessively, Justice Esa quoted Benazir Bhutto vs. Federation of Pakistan case in which the apex court had held: “It is only when the element of “public importance” is involved that the Supreme Court can exercise its power to issue the writ. Incidentally, I have also exercised suo moto powers in Faizabad Dharna case, I don’t know if you consider it good or not,” Justice Esa concluded.

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