By Yasser Latif Hamdani
… And thank god that they have not dabbled in that horrible theory of the basic structure which would have meant closing the door on any future prospect of democratic reform in Pakistan (in my personal view).
I think this is an important middle ground which has atleast restored some of the faith I had lost in our judiciary to do the right thing.
Now it is upto the democratic government to meet the judiciary half way. Continue reading
Faisal Naseem Chaudhry
The 18th Amendment case is likely to conclude soon and it is quite probable (courtesy of remarks of the Honourable Judges) that the SC may strike down a constitutional amendment finding it contrary to Independence of Judiciary; in other words finding it contrary to the ‘Basic Structure of the Constitution’.
Pasted below are some excerpts from a Five Member Bench Judgement of the SC delivered on 13 April 2005. The Judgement is known as Pakistan Lawyers Forum vs Federation of Pakistan and through this cluster of different petitions, the constitutionality of 17th Amendment was challenged before the SC. One of the grounds was that the 17th Amendment was violative of the Basic Structure of the constitution. As stated earlier, it was a Five Member bench and the then two members are still members of the Full Bench of today i.e. Chief Justice Iftikhar Chaudhry and Justice Javed Iqbal.
President Musharraf’s Uniform / Dual Office quite analogous to President Zardari’s Dual Office was also challenged in the same petition, and dismissed accordingly, but since that is not the subject today, so that part of SC’s wisdom as to how it handled that question in 2005 is ignored at this point of time to be discussed in future.
The five member bench in 2005 dismissed the petition and upheld the 17th Amendment. The court held that the Indian Doctrine of Basic Structure of the Constitution has never been accepted in Pakistan’s judicial history; and that the Court can strike down a Constitutional Provision only if it is not passed in accordance with the procedures provided by the Constitution itself. Once an amendment is passed, it is left to the wisdom of the Parliament which passed it to change it in future according to the aspirations of the people of Pakistan. Continue reading
The Supreme Court has proved yet again that it is independent and free… independent of any check by law and free of all rational sense.
It is now becoming increasingly clear that the the Superior Courts have every intention to allow every terrorist and his mother in law loose on the streets. By dismissing the appeals of Punjab and Federal Governments against release from house arrest of Hafiz Saeed, our honorable Supreme Court told the government, “Arrest him when you have proof”. What would constitute proof one wonders? Indian Government has submitted five dossiers. Is there nothing in them that atleast qualifies as actionable evidence? It seems though that the Supreme Court is now unconcerned with the fate of this country. Continue reading
Posted by Raza Rumi
We are grateful to Babar Mirza who has translated an interview given by Justice Jawwad S. Khawaja to Sohail Waraich in June 2007 which is recorded in Waraich’s book ‘Adlia ke Arooj-o-Zawaal ki Kahani’. The interview is a must read for all those who are interested in Pakistan’s politics and institutions. A biographical note is also available for those who wish to know more about the life and times of J. Khawaja. The latter resigned when J. Iftikhar Chauhdry was illegally deposed by the Musharraf regime. Later, he was part of the lawyers and judges movement and he was re-inducted into the Supreme Court after J. Chauhdry was restored as the Chief Justice in 2009. The interview also explains why Justice Khawaja took oath unde the 2000 PCO during the Musharraf regime.
Just as in any other part of the world, Punjab too has its share of stigma. Leaders from other provinces and many historians allege that the people of Punjab are not brave or courageous. Only time will establish the truth or falsehood of this allegation, but, in the recent judicial crisis, only one judge in Pakistan resigned from his office and that judge was a Punjabi from the Lahore High Court, Justice Jawwad S. Khawaja. Perhaps this was why Sindhi nationalist Rasool Bux Paleejo had to admit that Punjab’s strong stance in the judicial crisis had compensated for her many misgivings in the past. The Punjabi judges who decided to reinstate Chief Justice Iftikhar Muhammad Chaudhry have further helped clear the judiciary of many an allegation and perhaps the mistakes made by Punjabi judges in the past would now be remedied. Bold and fearless though the role of judiciary has been, the first drop of rain was Justice Khawaja and that will always remain to his credit.
Justice Khawaja is a very private person. He shies away from the world of fame. Perhaps this is why he did not give any interview or try to gain prominence after his resignation. Had any other judge resigned in similar circumstances, he would have justifiably lead protests, presided over meetings or at least given interviews to newspapers and television channels. But the reclusive nature of Justice Khawaja kept him away from all that. He felt the reference against the chief justice to be a burden on his conscience and resigned to free himself from that burden. Continue reading
The views expressed in this piece are not those of PTH. This article was sent to us as a contrarian viewpoint and in the interest of promoting a debate, we are posting it. Some of the contents are controversial; and we hope that the readers will correct the perceptions about the judicial activism that is supported by many people in Pakistan. (PTH Editors)
Once a democratic champion, the Chief Justice now undermines the elected government. (WSJ-OPINION ASIA)
By DAVID B. RIVKIN JR. AND LEE A. CASEY
When U.S. President Barack Obama sharply challenged a recent Supreme Court decision in his State of the Union address, prompting a soto voce rejoinder from Justice Samuel Alito, nobody was concerned that the contretemps would spark a blood feud between the judiciary and the executive. The notion that judges could or would work to undermine a sitting U.S. president is fundamentally alien to America’s constitutional system and political culture. Unfortunately, this is not the case in Pakistan.
Supreme Court Chief Justice Iftikhar Mohammed Chaudhry, the country’s erstwhile hero, is the leading culprit in an unfolding constitutional drama. It was Mr. Chaudhry’s dismissal by then-President Pervez Musharraf in 2007 that triggered street protests by lawyers and judges under the twin banners of democracy and judicial independence. This effort eventually led to Mr. Musharraf’s resignation in 2008. Yet it is now Mr. Chaudhry himself who is violating those principles, having evidently embarked on a campaign to undermine and perhaps even oust President Asif Ali Zardari. (image above – Associated Press) Continue reading
We are posting Marvi Sirmed’s bold and controversial piece that made waves today in Pakistan’s media. This piece entitled “Let reason prevail” has a clear line and PTH does not necessarily subscribe to this point of view (editors).
There is a judicial crisis, the media says. This claim seems to be correct if one realises the level of urgency the Supreme Court showed in responding to a presidential notification. This notification was nothing bigger than the elevation of the senior-most judge of the Lahore High Court (LHC) to the Supreme Court and the subsequent appointment of the second senior judge as the Acting Chief Justice of the LHC. Those having objections to the president’s notification say it violated Article 177 of the Constitution. The said Article provides for a consultation with the Chief Justice (CJ) of the Supreme Court prior to making such appointments, but it does not give a definition of the “consultation”. It is also true that the CJ Supreme Court sent a summary to the president who subsequently rejected it and sent it back. The allegation of “not consulting the CJ” thus becomes irrelevant. Article 177 does not make the CJ’s recommendation binding on the president. Continue reading
– by Abdul Nishapuri
In a (not so) surprise move, top judicial bureaucrats sitting in Pakistan’s Supreme Court and Lahore High Court have declared war against a fragile democracy in Pakistan. The (right-wing) establishment has taken its dagger out for a final attack on the democratic government of the (left-wing) Pakistan People’s Party.
In a decision announced in the after hours on Saturday, the Supreme Court of Pakistan suspended the appointment of two judges by President Asif Ali Zardari.
According to Iftikhar A. Khan of Dawn newspaper,
The build-up to the suspension of the presidential order packed more suspense than a thriller. A three-member bench of the Supreme Court first suspended the operation of notifications for elevation of Chief Justice of the Lahore High Court, Justice Khwaja Sharif, to the apex court and appointment of Justice Saqib Nisar as acting chief justice of the LHC.`The Supreme Court staff was called in the evening before the bench hurriedly constituted by Chief Justice Iftikhar Mohammad Chaudhry took up the matter, leaving most observers baffled. Continue reading