News
Monday, August 14, 2006
‘Courts must adhere to constitution in judging’ISLAMABAD: Terrorism has posed great challenges for the judiciary around the world, but, courts must not go outside the constitution while judging terrorism cases.
This was said by J Clifford Wallace, senior judge of the United States Court of Appeals, in an interview with Daily Times. Judge Wallace is currently in Islamabad as a delegate in the International Judicial Conference. Asked to comment on the plight of terrorist detainees at Guantanamo Bay and the justification of their miserable conditions, the judge said that 9/11 had changed the world and terrorism had become an everyday occurrence. It had also given the judiciary a greater challenge as it had to fight terrorism while remaining in the constitutional sphere. He said that every suspect must undergo the process of prosecution according to the constitution of the country he is caught in.
He said, “We are also dealing such issues in the US. I had a case in my court last week where the government held a suspect from the Middle East without charging him, on the grounds that they were still investigating and any indictment might block their investigation. Our court held that the government should either charge him or let him go because that’s what the constitution says.” Judge Wallace said, “Courts have a responsibility towards the constitution, not towards the government”.
On the validation of military rule by the Supreme Court of Pakistan, he said he was aware that this validation had been given on the basis of the doctrine of necessity. “If the constitution of Pakistan allows such validation under the given doctrine, and if this validation is within the constitution, I have no problem in following the constitution,” he said.
Wallace, who has been visiting Pakistan for the past 25 years, recalled when General Ziaul Haq was killed in a plane crash in 1988. Zia had made an executive order banning political parties’ participation in the general elections. But when a lawsuit was filed against the executive order, the Supreme Court struck it down. The then president accepted the court verdict and because of the Supreme Court’s ruling the entire democratic process sprung up. “This is a good example because the entire process of governance is to bring democracy into play.” The role of the court is to enforce the constitution and the role of the government is to facilitate democracy and let the people decide, he said. Wallace quoted Sir Winston Churchill: “Democracy is the worst system of government, except for every other one tried.”
He said the courts’ problems in case management could be overcome by promoting alternative dispute resolution (ADR) or mediation. “I have worked in 50 or 60 countries over the past 25 years and this (mediation) has worked in almost every country. Pakistan has a lot of potential for mediation.” Wallace praised Supreme Court Justice Tassaduq Hussain Jillani, who is working to promote ADR. Wallace said the system of ‘plea-bargaining’ could also be used in criminal cases. “No country has enough prosecutors to prosecute all criminals or enough courts to try them all. I have read the Holy Quran as well as the teachings of the Holy Prophet (PBUH) and found that mediation is in line with Islamic injunctions. Mohammad Kamran
Courtesy http://www.dailytimes.com.pk