August 16, 2006	Wednesday	Rajab 20, 1427

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ISLAMABAD, Aug 15: Judges around the world are facing a new challenge since 9/11 as they have to act within the limits of the constitutions while state organs seek to deny rights to suspects in the name of secrecy.

“It is fair to say that after 9/11 the world has changed and terrorism has become everyday occurrence,” Judge J. Clifford Wallace and Chief Justice Emeritus of US Court of Appeals observed while talking to reporters here.

This situation therefore has put a great challenge to judiciary because it can not go outside the constitutional bounds which asks to protect the rights of all citizens.

Justice Wallace, who is attending the International Judicial Conference here, said that last week the US government produced in his court a suspect from Middle East without charging him. The government pleaded that by charging the suspect the source of information through which they were trailing the terrorist organisations would be disclosed, he recalled.

“But our court held that the government either has to charge or let the man go because that’s what the constitution says,” Judge Wallace observed, adding courts have a great responsibility towards the constitution but not towards the government.

“The key is to keep alive the values of the constitution all the time no matter what it takes.”

On the role of Pakistan’s superior judiciary in validating authoritarian interventions, judge Wallace said he was aware of such validations under the “doctrine of necessity.” If this is allowed within the constitution, he has no problem but there were many instances when the judiciary here played a crucial role in establishing democracy.

It was due to the Supreme Court that the entire democratic process sprung up in Pakistan, he said and recalled that after the death of Gen Ziaul Haq, a law suit was filed challenging his executive order of outlawing all political parties.

The Supreme Court struck down the order by declaring it unconstitutional, he said, adding courts could not decide unless it had the acceptance of the people.

This is a good example to quote because the purpose of the governance is always to bring democracy into play, he said.

About the backlog, he said, Pakistani courts were experiencing difficulty in overcoming this problem.

But there are relatively simple devices like case management and dispute resolution (mediation) through which the pendency could be curtailed.

Citing a pilot project initiated in the Lahore High Court several years ago, he said despite apprehensions expressed at that time Justice Tassaduq Jillani was able to get through the project starting from the Family Courts and help settling 68 per cent of such cases.

“I have read the Holy Quran and the teachings of the Holy Prophet (peace be upon him) and have found mediation process very Islamic,” he observed.

It is easier to develop mediation programmes in the Islamic countries because it is part of their customs and thus has a great potential to succeed, he said.