ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

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yousaf
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Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Post by yousaf » Thu Dec 20, 2012 8:52 am

DISTRIBUTION OF POWERS AND ADAPTATION OF LAWS IN PAKISTAN Federal principle of the United States Constitution has influenced the world more than the financial and military might of the United States. More than eighty per cent of the world's population lives in federal or semi-federal states.2 Even the authors3 of the Federalist Papers may never have imagined that charisma of federalism will win the heart and minds of the world. Federalism in India and Pakistan has been interpreted by the Supreme Courts as part of the basic structure of the constitutions of these nations.4 The power of the Parliaments to amend their respective constitutions does not include the power to alter the basic structure of the constitution including the federal principle. K.C. Wheare defines the federal principle to mean the method of dividing powers so that the federation and federating units are each, within a sphere, coordinate and independent.5 What is necessary for the federal principle is not merely that the federation, like the federating units, should operate directly upon the people, but, further, that each Government should be limited to its own sphere and, within that sphere, should be independent of the other6 Existence of a concurrent jurisdiction in some matters is not necessarily incompatible with the federal principle. But if there is a concurrent jurisdiction, there must exist also some provision to determine which authority, in case of conflict, is to prevail.7 K.C. Wheare also argued in favour of a single list for distribution of powers between federation and federating units.8 He called the person a supreme draftsman who could draw three lists and no charge of overlapping could be brought against them and declared a second exclusive list a great nuisance by citing the Canadian example. Drafting legislation in a federation poses a unique challenge. For example, inter state commerce clause9. in the United States Constitution has been used by the US Congress to regulate activities like meatpacking,10 labour relations,11 agriculture,12. civil rights13 and education.14 But situation in Pakistan differs from the United States because historically there were subjects which were specifically federal, provincial or concurrent. If any of those subjects are missing from the existing single federal list, it has to be construed as provincial subject. Despite this, Parliament of Pakistan has recently enacted an Act15 for reconstruction and rehabilitation of earthquake hit areas presumably invoking the entry of national planning and national economic coordination.16 If this Act is upheld by the Supreme Court, the national planning entry may become the commerce clause of the Constitution of Pakistan. Pakistan is a federation right from its inception17 except for the periods it remained under military rule. Federal principle was reflected in every constitutional dispensation.18 Whenever powers are distributed or re-distributed, number of issues surface because of any such dispensation and sometimes it is not possible to envisage all the future issues while decision about distribution or re-distribution of powers is being made. The Constitution (Eighteenth Amendment) Act 2010 has omitted the Concurrent Legislative List in order to transfer powers to the provinces in furtherance of federal principle and to have simplest form of distribution of powers with one exclusive Federal Legislative List. This re-distribution of powers has raised many issues of its ownHistorical Prospective In order to understand the problem posed by re-distribution of powers under the Eighteenth Amendment, one has to consider the historical prospective of distribution and re-distribution of powers in Pakistan. Reconstitution of India on federal basis was a popular demand of the then indigenous political leadership. The Nehru Report19 of 1928 proposed that in the Federation of India, the provinces be assigned enumerated functions and the residuary powers may be assigned to the Centre. Demand for Federal Constitution with residuary powers vested in the provinces was the first point in Jinnah's Fourteen Points20 of 1929. Government of India Act 1935 The Government of India Act 1935 reconstituted India on federal basis with eleven provinces. This Act provided three lists i.e. Federal Legislative List, Provincial Legislative List and Concurrent Legislative List to distribute legislative as well as executive powers between the centre and the provinces.21 The Governor-General was authorized to empower either the Federal Legislature or the Provincial Legislature to enact law with respect to any residuary matter not enumerated in any of the three lists.22 The federal law on a concurrent subject had overriding effect over a provincial law on the same subject.23. This Act saved the existing laws until those laws are altered, repealed or amended by a competent legislature.24 His Majesty, by Order in Council, was empowered to direct that any law shall have effect subject to such adaptation and modification as appeared to His Majesty to be necessary for bringing that law into accord with the provisions of the Act.25 The Government of India (Adaptation of Indian Laws) Order 1937 was passed by adapting the existing laws as central or provincial laws in order to clearly distribute the existing laws amongst the Central or Provincial Legislatures on the basis of subjects in the three legislative lists. This Act continued to be the temporary Constitution of Pakistan under the Indian Independence Act 1947.26 Constitution of 1956 Constitution of Pakistan 1956 contained three lists on the pattern of the Government of India Act 1935 for distribution of powers between the federation and the provinces.27 The existing laws were given lease of life subject to necessary adaptation.28 The President was required to pass order within three years for adaptations and modifications of the existing laws. He may also authorize the Governor of a province to exercise the same powers with respect to the laws relating to matters enumerated in the Provincial List.29 But this Constitution had not survived for three years due to the imposition of martial law in 1958.30 Constitution of 1962. Federal principle was kept intact, although, to a lesser degree in the Constitution of Pakistan 1962. Only one legislative list was provided in this Constitution enumerating the matters on which the Central Legislature had exclusive jurisdiction to legislate. The Central Legislature may also legislate on a residuary subject in the 'national interest'.31 Thus a highly centralized federal system was established.32 A central law was to prevail over a provincial law in case of a conflict between them.33 This Constitution also protected the existing laws subject to their necessary adaptation and required the President to make adaptation of laws through an Order to be passed within two years of the commencing day of the Constitution.34 The President may also authorize the Governor of a province to pass similar order with respect to which a Provincial Legislature has power to make laws.35 The adaptation orders were passed in 1964 by the President and the Governor of the Province of West Pakistan.36 This Constitution could not last more than seven years and another martial law was imposed in 1969.37. Constitution of 1973 The present Constitution of Pakistan (1973) initially provided two lists i.e. Federal Legislative List and Concurrent Legislative List for distribution of powers between the Federation and the Provinces.38 Federal Legislature (Parliament) has the exclusive authority to make laws with respect to matters enumerated in the Federal Legislative List. The Parliament and a Provincial Assembly had the power to make laws with respect to matters mentioned in the Concurrent Legislative List and for residuary matters only a Provincial Assembly had the powers to make laws.39 This Constitution also protected the existing laws subject to adaptation through Adaptation Orders to be made by the President and the Governor of a province with the permission of the President.40 The Adaptation Orders were passed by the federation and all the four provinces in the year 1975.41 Adaptation under Eighteenth Amendment. In all the constitutional arrangements prior to the enactment of the Constitution (Eighteenth Amendment) Act 2010, a mechanism for adaptation of the existing laws was provided to give effect to the revised scheme of distribution of powers between the Federal and Provincial Legislatures and executives. The federal government was given final say with respect to the adaptation of the existing laws. This has been done to avoid conflicts between the federation and federating units on adaptation of the existing laws. The Constitution (Eighteenth Amendment) Act 2010 repealed42 the Concurrent Legislative List but the subjects of electricity,43 criminal law, criminal procedure and evidence44 are still concurrent subjects on which the Federal Legislature (Parliament) and the Provincial Assemblies may legislate. The Constitution, in case of conflict, gives primacy to the Federal law over a Provincial law made on a concurrent subject.45 But the Constitution (Eighteenth Amendment) Act 2010 after omitting the Concurrent Legislative List and re-distribution of powers between the Federation and the Provinces has only protected the existing laws until these laws are altered, repealed or amended by the competent authority.46 The competent authority to the extent of the existing laws has been defined to mean the appropriate legislature.47 For administrative devolution of matters to the provinces, the Federal Government constituted an Implementation Commission48 but the Implementation Commission has no jurisdiction regarding adaptation of the existing laws. This has been left to the each province, in fact to legislative drafters, to determine the appropriate legislature for an existing law. It has not even been envisaged that laws are not made by expressly invoking a specific entry in any of the legislative lists. Further, there are laws which have been made on two or more subjects one of these subjects fall within the Federal Legislative List and the other subject has become a residuary subject on which only a Provincial Assembly is competent to legislate. It has been left to the legislative drafter of a province to decide or formulate an opinion as to the pith and substance49 of an existing law and whether there is an incidental encroachment50 or it is a colourable legislation.51 The retention of concurrent legislative jurisdiction, although only to the extent of four subjects, has also been problematic in exercise of the legislative authority. These subjects have not been enumerated in any list but have been incorporated in the text of the Constitution. Conclusion Federalism is deep rooted concept in Pakistan. Smaller Provinces consistently demand more autonomy and transfer of federal subjects to them. But redistribution of powers poses a real challenge for a legislative drafter especially with respect to adaptation of the existing laws. There are chances that drafters of provinces may differ in interpreting an existing law. A drafter may consider an existing law as a law on a residuary subject and draft a bill for its adaptation by the Provincial Assembly. Still drafter of another province may genuinely treat it a federal law on the basis of general entries in the Federal Legislative List like national planning, inter-provincial matters and coordination, and international treaties, conventions and agreements.52 The issues of laws on multiple subjects are more complex. Law of Higher Education Commission53 is just one example of many such laws. Mere proposal for its reorganization on the basis of re-distribution of powers has created a huge uproar in the society especially academia. This situation may promote unnecessary conflicts and litigation, and courts may be asked to interpret entries in the Federal Legislative List. This could have been avoided if a clause promoting cooperative federalism is incorporated in the Eighteenth Amendment for building consensus between federation and provinces on adaptation of the existing law
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yousaf
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Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Post by yousaf » Thu Dec 20, 2012 8:57 am

ROLE OF COURT IN KHULAA AND CANCELLATION OF NIKKAHThe concept of Khulaa is based on the following verse:"Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khula (divorce)." (2:229)In this verse the words of 'Fala Junaha Alaihuma' (there is no sin on either of them) related to forthcoming words, i.e. 'Fima-ftadat Bihi' (she gives back and (the Mahr or a part of it) for her Al-Khula (divorce)) but people have related it to Khulaa, although Khulaa itself is something else than the sum of redemption (fidya). At this point people are confused in the subject of discussion that is why they comprehend the sum of redemption as a condition for Khula. However, there is noway that the word 'Junah' (sin) becomes a condition, this word is used in the meaning of consequence, confinement or sin.Putras Bustani has Arabicized it to sin in Muheet-ul-Muheet.In short Khulaa can happen without the money of redemption and with the sum of redemption but it is more admirable without it. Imam Kasani stated two types of Khulaa in his book Badaie-as-Sanae. One is Khulaa without exchange and the other is with exchange. Therefore he writes if husband in the case of Khulaa without exchange has intention of divorce with the word of Khulaa, then divorce will take place without nay exchange. However in the case of Khulaa with exchange, Khulaa will not occur without exchange.1Therefore we see the structure of 'Fala Junaha Alaihuma' alleged on the suspension of the conception of significance or confinement, not on the conception of condition. If the cause and the initiation of separation between spouses are from husband, then it is absolutely obligated on husband that he cannot take any thing back from his wife."But if you intend to replace a wife by another and you have given one of them a Qintar (of gold i.e. a great amount as Mahr) take not the least bit of it back" (4:20)1. Albahr-ul-Araeq, Vol.3, p.151, Allama Ibn-e-Najeem, Published in Egypt 1328 H, Vol.4, p.77.But if the cause of separation of woman then the husband can take back his granted wealth and property wholly or partially, as stated in Al-Bagra verse 229.Qazi Ibn Rushd Malki Undlusi writes:"The Philosophy of Khulaa is that woman has been given the right of Khulaa, since the man has the option of divorce. Therefore if the soman has any difficulty with her husband, so she has the right of Khulaa and if the man has any difficulty with his wife then the legislator (i.e. Allah) has given the right of divorce to him.2In our view, the process of Khulaa can be possible at home elegantly. So, there is not any condition, neither it is necessary to pursue court. Although in general people believe that it is necessary, or a condition. In our opinion woman pursue court when she is forced to live with her husband against her desire and when any woman goes in the court, it is obvious and clear that she seriously wants to be separated from her husband. Otherwise why would any Muslim woman incline to confront the court and want to destroy her blissful home and family unit? The Quran has therefore given the right to the court to listen to the essence of problem, call the defendant party and after a true satisfaction implement the necessary procedure in the form of decision. Therefore that decision from the aspect of its consequence could be implemented in the form of divorce with Khulaa, and on the denial of husband, in the form of cancellation of Nikkah. But all of this could only be possible if the husband and his wife could come before court. If the husband does not come in court and he is not keen on coming wither, then on his non-serious attitude, in our view, the court attains the full right of cancellation of Nikkah. Allama Ibn-e-Haman states:"When the judge sees the interests of his decision in the favour of absent or against him and decides accordingly, then judge's decision will be validly functional, because it is an Ijtihadi problem.3Moreover, for such husbands any penalty could be proposed separately, so that the piety of court could not be trodden. As there is the reign of indiscipline, lawlessness and confusion in the society in which people do not have the sense of the importance and essentiality of Court. In our humble opinion, declining the appropriate and based on reasons decisions of the court or releasing decrees against them, is nothing but an insult to the Court. Because the right of hearing a lawsuit and the decision of the judge is not only the need of society, in addition its establishment is in the exigencies of the law of Islam.2. Badayat-ul-Mujtahid, Vol.2, p.68, Published in Egypt, I379H.3. Fath-ul-Qadeer, Vol.5, p.368-369, Published Muktaba Nooria Riazvia SukkurOn no account, is not necessary for Khulaa that when the woman would be a plaintiff in the Court, she would give details of her reasons against husband on the basis of which she wanted to be separated since there are several matters in between spouses which could be explainable and there are various matters that are unexplainable and the law of Islam recognize the value of keeping private issues concealed. Thus, the judge does not look for the reasons behind the loathness, rather the coming of the chaste woman to the court should be enough for the judge.A word may suffice for a wise manThose who seek, search and detection and depends on investigation and research, should take lesson from the approach of Hazrat Umar, which he had taken in a similar matter. One woman came to Hazrat Umar and appealed for Khulaa. Initially he suggested going back to her husband but she refused then he imprisoned her in a filthy and stinky place. After three days of imprisonment he gave her the same advise. Just then she replied:"By God only these three days gave me comfort, which I spent without my husband."By hearing this Hazrat Umar understood the need of Khulaa. Therefore, he did not look for the reasons behind taking Khulaa, because in this one sentence there is immeasurable amount of complaint and oppressed behaviour of her husband. So, he called her husband and ordered him for Khulaa.44. Kashf-ul-Ghama, Vol.2, as referred in The Rights of Spouses, P.66, Sayyed Abual Ala Mawdudi.Indeed after the failure of the objective of nikkah. while the verdict of separation is a sign of the acknowledgement of free-will of woman, it also provides society matrimonial happiness fully.This tradition also makes it obvious that if the judge of court decides any kind of other condition in place of investigation, which could give a kind of satisfaction that the woman is legitimately rightful in her demand of Khulaa, then he could adopt likewise or any other similar condition. However, he could not carry out investigation, seeking and cross-questioning in every respect. So that the privacy between man and his wife could not spread out and no one will suffer ignominy in society. In this manner the natural shyness and modesty of a woman will be saved. But it is remorseful that our approach is inconsistent to it. In some cases both the parties do not spare each other or one of them to the opposite one, consequently through the cross-questioning in the court make other one exposed.In our view on woman's demand of Khulaa, no Mufti has the right in the name of Sharie (lawful) to expose the private matters and relationship of both parties and not even for the court it is appropriate to spray a lot of questions, so that both of them or at least one of them necessarily would be exposed.Likewise when the wife of Hazrat Thabit bin Qais came to the Prophet (S.A.W.) and demanded separation from her husband then He (S.A.W.) asked her that why she wanted to be separated? She replied: "O messenger of God! I do not see any defect in Qais's religion; it is only that I do not like him and I do not want to fall into infidelity after living in Islam.5According to the tradition, the inquiring of the Prophet (S.A.W.) for the reason of separation from her husband was on habitual moral reason not for investigative purpose otherwise the Prophet (S.A.W.) must have made some unsatisfactory remark or would have investigated more on her answer.This incident provides evidence that whenever a woman requires Khulaa, the judge should absolutely not insist on the, reasons behind Khulaa, rather on the objective of Khulaa.The personal dislike of a woman has got its own importance that simply on the basis of it the separation is lawful between them. It is narrated by Ibn-i-Abbas (R.A.) that the husband of Barira (R.A.) was a slave, whose name was Mugis. (Narrator reports) as if I am seeing him wandering crying after his woman and tears are falling on his beard, on this circumstance the Prophet (S.A.W.) said to Hazrat Abbas (R.A.): "O Abbas! Don't you surprise on the love that Mugis has for Barira, and the hatred that Barira has for Mugis?" Then the Prophet (S.A.W.) said to Barira would that be better if you return to your husband. She replied: 0 messenger of God! Is - it an order? He said: No, I am only suggesting it.She replied: Then I am not in need, of him.65. As-Sahi Al Bukhari, Vol.2, Chapter Al Khulla and how divorce will happen in it.6. As-Sahi Al Bukhari, Chapter, Recommendation of the Prophet for Barira's husband.This tradition has made the substance of the issue more obvious and clear.The word of "Khulaa" has been emphasized in our society greatly, if this word is used as the proclamation and conveying the conception that the separation is not from the husband rather from the wife, then obviously it is a clear and decisive terminology and we and our courts should use this word in Khulaa's circumstance, so that it can be differentiated that the husband has not taken out the wife from his life, rather the wife has taken out the husband from her life. However, if the separation of spouses occurs by the decisive factor the court then we and the court should use the terminology of nullifying or cancellation of Nikkah so that the essence of the fact will be understood through one word. But this fact should be obvious that whether it is Khulaa or Cancellation of Nikkah or divorce, the end result of all of them is same that is the parting of spouses. Therefore, we have doubts on the validity of the decrees which are given out without considering the objective of law and which do not accept the decision of court only because why they have used the word of Khulaa in place of nullifying or Cancellation of Nikkah? When the result of all three of them is same then the differentiation like this (such as) not acknowledging Khulaa as the cancellation of Nikkah is in fact equal to not understanding the essence of the problem. This reality should be in mind that the decision of court can not be annihilated by the wordy tricks because in the acknowledgement of decisions only words are not significant, rather its spirit, wisdom and objective are important.In the matter of spouses the role of authorities/court is decisive which is obvious from the words of Quran. The way of reconciliation in between spouses in the circumstance of breach is described in the 35 verse of Sura-e-Nisa:"If you fear a breach between them (the man and his wife), appoint (two) arbitrators, one from his family and the other from her."The ulama have two viewpoints in the meaning of the word "hakam" (arbitrator). One view is that the word "hakam" (arbitrator) is in the meaning of lawyer or representative and according to other view the word "hakam" (arbitrator) is in the meaning of decision make that is judge of court. In the light of second view, it is important that the arbitrators would be declared as decisive authority in the circumstance of breach in between. Ibn-e-Saeed, Saeed bin Jubair, Ibrahim Nakhei, Shaoubi, Muhammad bin Sirin and other have shown this point of view.Our view is that is the matter of breach could not be settled in home then the court should be involved. As per Quran the court should appoint one arbitrator from husband's family and one arbitrator from wife's family and this court appointment itself will be a validation of the fact that the arbitrators are authorized to take the absolute decision. This fact is obvious with the words of "appoint" and "arbitrators".It is finely evident that for the matters of breach in between spouses which could end up in separation, for any Islamic society the ground court could set up an especial court comprising two judges from the relatives of both parties, in our view this appointment is nothing but an endeavor to keep the secrecy of two families. It means that principally, the law of Islam (Sharia) is more interested to settle the disputes of both parties in a familiar environment, rather than in a strange environment. So that the private and concealed matters would be limited to concerned person's family, and not turn into publicized, as well as the environment of society do not become contaminated.Amin Ahsan Islahi has written "after reaching any matter in court then from the court will be handed over to the panchayat (a native court of arbitration consisting of five or more members) and the court will also authorize the right of making decision to the Panchayat.7As per Islahi's writing "authorize the right of making decision" indicates that the arbitrators will not be authorized to make decision until they are empowered by the court. Yet they are sanctioned after court's permission. Hence from one aspect this might be correct to adjudge but in our view the court appointment of arbitrators is itself logical to enable them for the authorization of making decision. Since the word 'arbitrator' has the meaning of authorization which is obvious in itself. In this affair the decision of arbitrators is actually the decision of court. Imam Malik and Imam Shafai have the similar view on it.Imam Ragib Asfahani has described 'arbitrator' in this manner:"(Arbitrator) or judge is called Hakam, and arbitrator is more eloquent than judge and in the verse instead of Haakiman (Judge), Hakman (arbitrator) is used, this indicates that the two arbitrators are appointed on condition that both of them will decide on their own insight without going in details, whether that decision is acceptable to the spouses or undesirable to them."8And Muth Ahmed Yar Khan Naeemi writes:"Haakim (Judge) is the person who evaluates ordinary cases and Hakam (arbitrator) is the one who evaluates extraordinary cases which is called in Urdu as "Panch"' (a council: an assembly of five men). "97. Tadabbur Quran, Vol.2, p.294, Tafseer Surat-un-Nisa Verse 35.8. Almufradat Fi Gharib-ul-Quran, Kitab-ul-Ila, Noor Muhammad Tijarat Kutub, Karachi.9. Ashraf-ut-Tafaseer. Al-Maruf Bihi (famous as) Tafseer-i-Naemi, Vol.5, p.64, Maktaba-i-Islamia, Lahore.The word Hakam (arbitrator) is illustrated by our Urdu translators through different terms. Most of the translators have used munif (judge) and panch (a council: an assembly of five men), however Ghulam Ahmad Pervaiz has translated Hakam as Saalis (mediator) and Waris Sirhindi has regarded these three as synonyms by giving the meaning of Saalis (mediator) as munsif (judge) and panch (a council: an assembly of five men). Muhammad Ali has translated it as the one who judges. Whereas Ashraf Ali Thanvi has regarded him as hakam who has the ability of making decision and few of our translators have left hakam as it is and did not try to describe it with other words for example: Abdul Majid Darya Abadi, Abual Ala Mawdudi, and Zeeshan Haider Jawadi etc.so, the outcome of this discussion is that the word "Hakam" is giving the same reality of its different translations and that is Hakam is the name of legal authorization of complete power of decision.Rather Imam Abu Al Fardh Abdur Rehman bin Ali bin Muhammad Jauzi Hanbali (D. 597H) writes: "Imam Malik and Imam Shafae state that the inclination of the spouses are not necessary for the decision of arbitrators." 10And Justice Tanzeel-ur-Rahman writes: "If both of the spouses have disagreements then the decision that they won't be able to keep, the limits ordained by Allah, and should do Khulaa, will only be a third person who can do and in this condition Khulaa will perform through court."Further on he writes:"One famous case of Bilqees Fatima for Najm-ul-Ikram (PLD 1959, Lahore, 566) Learned Judges Justice Shabbir Ahmad, Justice B.Z. Kaikaus and Justice Masud Ahmad had declared that if the court reach on the decision that the spouses cannot keep the limits ordained by Allah then the court can perform Khulaa (on the reasonable amount taken out from wife) without the willingness of husband. This opinion is on appropriate judgment and this viewpoint was adopted by the Supreme Court in the case of Khursheed Begum (PLD 1967 Supreme Court. 13:97)1110. Zaad-ul-Munir, Vol, 2, p.77-78, Published Maktab Islami, Bairut 140H.11. Majmua Quaneen Islam, Vol.2, p.592-597, Idara Tahqiqat-i-Islamic, Islamabad, 3rd Edn.1984.Briefly our objective is that if any woman appealing court for Khulaa then it is the responsibility of the court to provide her right, means ensure to release her from her husband. There is not a single tradition in our abundant traditions in which the woman was not got released after her demand of Khulaa, since the law of Khulaa has been made for the reason which led to separation, parting. Those who know the objective of nikkah duly, they cannot do the foolishness to leave the woman on the mercy and pity of husband. Therefore in the matters of Khulaa it is important that the court should call the husband and order him to give divorce to his wife. If the husband releases his wife on court order then it is good enough, otherwise court should use its right of making decision and perform separation in between them.Here it is important to restate that Khulaa could happen in exchange and without exchange. This exchange is depicted in Quran with the words of "if she gives back (the Mahr or a part of it) for her Al-Khulaa (divorce)." (2:229) and the reciprocal of exchange as "then there is no sin on either of them". This is the exchange, due to which the willingness of husband in Khulaa is acknowledged and if Khulaa is happening without exchange on the court orders then there is absolutely no need of the willingness of husband. Rather the non-appearance of husband in the 'court is enough to order Khulaa without exchange. And the same is the case in Cancellation of Nikkah, since this is that authority of court which is used after the failure of getting husband's acknowledgement. And this is the authorization, through which the oppressed woman is guaranteed separation from her husband. If the court is forbidden this right then one can think how possibly the woman will get justice? Obviously in 'this way she will never get freedom from her husband's violence and tyrant behavior. Therefore in our view, it is quite rational from the Sharia's aspect, rather highly important to acknowledge the decisive role of court in Khulaa and in Cancellation of Nikkah.
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yousaf
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Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Post by yousaf » Thu Dec 20, 2012 9:00 am

RULE OF LAW AND TRANSPARENCY*So much has been said and written on the Rule of Law for the past two years as to what it is. The struggle for Rule of Law launched by the lawyers countrywide has culminated successfully with the restoration of judiciary to its position of November 3, 2007. Each time the rule of law suffers a blow, we are reminded of arbitrary and unlawful actions taken by civil/military bureaucracy or both beginning from the days of Ghulam Muhammad. It is not possible within the available short span of time to address all aspects of rule of law and the events which led to its denial.It was rightly observed by the National Policy Making Commission of Pakistan, of which the writer of this article till lately, was one of its members, that no progress can be achieved unless there is economic progress which in turn demands good governance. But good governance envisages that the three branches of Government namely the legislature, executive and judiciary function within their own areas as set out in our Constitution. In this article I will attempt to touch upon those aspects of rule of law, which have gone unattended or deserve the attention of our learned judges, law makers, jurists and lawyers, electronic and print media and public at large.We are unmindful of two institutions of great significance: one is the Federal Shariat Court established under Chapter 3.A of the Constitution of the Islamic Republic of Pakistan and the other, the institution of Mohtasib (Ombudsman) at Federal and Provincial level in Sindh, Punjab and Baluchistan. The former is a court of special jurisdiction, which besides being an appellate Court, in Hudood Cases, was entrusted the task to declare if any law or provision of law is repugnant to the Holy Quran and Sunnah of the Holy Prophet (P.B.U.H). The declaration of direction given by the Federal Shariat Court shall be binding on all, unless set aside or modified by the Supreme Court Shariat Appellate Bench. Both these institutions have significant roles to play in furtherance of Rule of Law and good governance but have been overlooked or undermined.Is it an irony that the Federal Shariat Court which deals with Shariat petitions and Hudood appeals, does not deserve as much independence and regard as other superior Courts of the country. It is pertinent to note that its Judges take oath `to discharge their duties according to law i.e. Quran and Sunnah' as against oath administered to Judge of other superior courts `to preserve, protect and defend the Constitution' yet the treatment melted out to them under the Constitution is below the dignity of their office and is rather derogatory. To illustrate this position, under Article 203C of the Constitution of the Islamic Republic of Pakistan, 1973, the Judges of the Federal Shariat Court, shall be appointed by the President of Pakistan, who may by order in writing (a) Modify the term of appointment of a Judge (b) assign to a Judge any other office and (c) require a Judge to perform such other functions as the President may deem fit and pass such other order as he may consider appropriate. Is it possible for a Judge of Federal Shariat Court to work under these conditions independently and fearlessly when the sword of Damocles was hanging over his head?The Chief Justice of Federal Shariat Court unlike those occupying similar positions in the Supreme Court and High Courts remains a silent spectator to a game of musical chairs in the appointment of Judges in his Court. Under Article 200 of the Constitution, the President may only transfer a Judge of a High Court to another High Court with his consent and after consultation with the Chief Justice of Pakistan and the Chief Justices of both the High Courts but the Chief Justice of Federal Shariat Court has no say in the matter and he is obliged to accept whosoever (including a High Court Judge) is appointed under Article 203C to Federal Shariat Court whether the transferee Judge is fit for the Court or not.What may further be added here, Is that the Constitution does not provide any qualification for an `Aalim Judge' and it is left open to the Executive to appoint whosoever in its sole discretion is an Aalim. It is pertinent to note that since the establishment of the Federal Shariat Court, there has not been even a single case of conviction under Hadd for want of credible evidence as required under Islam. The Court is thus left to proceed against an accused under Tazir for which requisite knowledge of Major Acts namely Pakistan Penal Code, the Code of Criminal Procedure and Qanun-e-Shahadat is essential. Our Ulema by and large have no sufficient knowledge or understanding of these laws. Similarly in order to ascertain whether any law or provision is repugnant to Quran and Sunnah, it is incumbent that they should have at least workable understanding of legal terminology, modern jurisdiction and interpretation of statutes. Failure to set out necessary qualifications will lead to maladministration and corrupt practices.We are also unmindful of the leading role which may be played by Mohtasib (Ombudsman) both at Federal and Provincial level in dealing with administrative justice and matters connected with corruption malpractices and civil liberties. If any citizen is aggrieved by a public functionary, he may apply directly to him. No Court-fee or charges are payable by him. Known as `poor man's Court', this system has been functioning in more than 105 countries of the world and commemorated its 200th anniversary recently. The Ombudsman in Pakistan deals with maladministration in Government Ministry, Division, Department, Commission established by the Government but would not include the Supreme Court, the Supreme Judicial Council, the Federal Shariat Court or a High Court. The law also excludes from its jurisdiction sub judice cases, foreign affairs matters relating to defence and service, so also grievance of a person against the agency where he is working.Maladministration at the Federal level has been defined to include the following among others:(i) A decision, process, recommendation, Act of omission or commission which:--(a) Is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons; or(b) Is perverse, arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory; or(c) Is based on irrelevant grounds; or(d) Involves the exercise of powers or the failure or refusal to do so, for corrupt or improper motives, such as, bribery, jobbery, favourtism, nepotism and administrative excesses; and(ii) Neglect, inattention, delay, incompetence, inefficiency and ineptitude, in the administration or discharge of duties and responsibilities.Similar provisions are found in the Establishment of the Office of Ombudsman for the Provinces of Sindh, Punjab and Balochistan and their jurisdiction is identical to the Federal Ombudsman.The modern Ombudsman owes its origin to Sweden where it has been functioning most successfully and is considered as `Role Model' for other Ombudsman. He is appointed by the Parliament with the consensus of all the political parties and is answerable to the Parliament alone. It is stated that about 50% cases filed before the parliamentary Ombudsman in Sweden, relate to corruption and malpractices in judiciary, police forces, prison and probation services arid social services which have been effectively dealt with by him. He may carry out inspection and inquiries without notice in suo motu cases. The decisions and directions given by him is open to public. There is no appeal against his decision. When the first parliamentary Ombudsman was re-elected in Sweden there was a serious debate in the Parliament as he had neither any law degree nor any legal training. According to Bengt Wieslandar, in his book "The parliamentary Ombudsman in Sweden": "in practice it will be difficult to conceive of any one but a professionally trained lawyer who would be able to make assessment of multiplicity of legal issues which arises in the exercise of office".The position in Pakistan is somewhat different. The President appoints the Federal Ombudsman and the Governor the provincial Ombudsman. No qualification for appointment of Ombudsman is required both at Federal and Provincial level. Unlike Sweden it is not inconceivable that anyone other than a professionally trained lawyer maybe entrusted to deal with administrative justice. The Agency (Government Department) may make a representation to the President in case of Federal subject and the Governor in case of a provincial matter, who may set aside his decision. The writer of this article painfully recalls that when he was Ombudsman Sindh, he took suo motu action against the Directorate of Education as hundreds of non-registered private schools were running in the province illegally and arbitrarily charging fees in contravention of the West Pakistan Educational Ordinance 1952, which required that the school fees shall be fixed by the Provincial Government. In exercise of powers as Ombudsman I required the Secretary Education as well as the Director of Education, to take penal action against those schools who had failed to get their schools registered up to 31-12-1991. It may be noted that before the deadline, the Governor repealed the old law and replaced it with Sindh Private Educational Institutions (Regulation and Control) Ordinance 2001, whereunder the Government of Sindh surrendered its right to fix fees for private schools functioning in the province.A more painful and unbelievable experience was, when I had constituted a Commission comprising two senior advisers to monitor illegal detention in Sindh to protect the life and liberty of citizens and empowered them to enter into any police station or other premises, under the control of police at any time without notice and to report to me if any citizen was arrested and detained, save in accordance with law. This was done in the best interest of justice and rule of law. A number of persons were recovered by the Members of the Commission from different places in Sindh which exposed the highhandedness and atrocities committed by the police on the citizens of Pakistan. However, it was shocking for me that the then I.G. Police as aggrieved party filed a representation before the then Governor and obtained ad interim stay against the said order of Ombudsman. I believe the matter is still pending before the Governor. However the ends of justice will be met only when every order passed by the President or Governor setting aside the decision of Ombudsman shall be subject to scrutiny by the Supreme Court of Pakistan. It may be emphasized here that the President or Governor while dealing with representations against the decisions of Federal and Provincial Ombudsmen takes advice from those who may belong to civil bureaucracy or Military hierarchy or politicians who may have their own vested interests.In the end, the superior courts should own, strengthen and protect the institution of Ombudsman, the poor man's court. With their blessings, the Ombudsman will not only share much of their burden but will also provide speedy and effective justice to the poor man.
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yousaf
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Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Post by yousaf » Thu Dec 20, 2012 9:05 am

RULE OF CORPUS DELICTI IN CRIMINAL LAWCorpus delicti is, Latin word which mean "body of crime", a term from western jurisprudence which refers to the principle that it must be proven that a crime has occurred, before a person can be convicted of committing the crime. For example, in order for a person to be tried for arson, it must be proven that a criminal act resulted in the burning of a property. Black's Law Dictionary (6th Edn.) defines "corpus delicti" as "the fact of a crime having been actually committed".Corpus delicti may be defined as "Proof that the specific crime charged has actually been committed by some one".A consideration of the meaning of corpus delicti becomes necessary at this point, because some people usually think of a murder victim when anyone uses this term. A commonly accepted definition of corpus delicti is "the body or substance of a crime". As the term is used and understood today, this definition is not accurate. The definition has a broader meaning. Corpus delicti is applicable to the substantial and fundamental fact or facts connected with the actual commission of an illegal act (civil or criminal).For example, in the theft of a watch, the corpus delicti is the taking of the watch.The corpus delicti is the objective proof that a crime has been committed. It is the body or substance of a crime, which ordinarily includes the act itself which constitutes the crime and the criminal agency of the act.HISTORICAL ORIGIN OF RULEThe "corpus delicti rule" is a common law rule of ancient origin which requires that the State show by evidence, independent of a confession or admission, the existence of each element of the crime. Many scholars believe the doctrine owes its genesis, at least in part, to a widely reported 17th Century English case in which three people were executed following a false confession to murder, only to have the erstwhile "victim" turn up alive. Such a shock naturally called into question the competency of the criminal justice process and commentators began to recognize that confessions were potentially unreliable evidence of objective truth. To prove the confession was not the product of a fevered imagination, some Courts began to require evidence of the crime independent of the confession. In contrast to English courts, which never universally accepted the doctrine, characterizing it as "a rule of judicial practice" rather than part of the "law of evidence", and limiting its application to homicide cases 19th century American courts applied the corpus delicti rule to all crimes.A POSITIVE OBSTRUCTION TO JUSTICEMost commentators believe the corpus delicti rule should be relegated to the jurisprudential dustbin. Learned hand doubted the rule had "any substantial necessity in justice".Courts advance three justifications to defend the rule's legitimacy. These are that the rule:--(1) Protects innocent persons from their own objectively false confession.(2) Protects against coerced confessions, and(3) Promotes better law enforcement by discouraging techniques that rely too heavily on confession.Wigmore found it- "a positive obstruction to the course of justice".BURDEN OF PROOFUsually the corpus delicti is proven by the prosecution at the start of a case, because without it, there is no offence.On September 27, 2001, the Supreme Court of Arkansas in case titled as Charles Bornes v. State of Arkansas, held that under the corpus delicti rule, the State must prove (1) the existence of an injury or harm constituting a crime and (2) that the injury or harm was caused by someone's criminal activity; it is not necessary to establish any further connection between the crime and the particular defendant. And the State needs to prove that the accused confessed and the victim died as a result of a homicide.The Oklahoma Court of Criminal Appeals in case Long v. State (1943 OK CR, 77 OKL Cr. 174, 140 P.2 & 600) laid down the following principles relating to corpus delicti namely:--(1) In a criminal case a conviction cannot be had on the extra judicial confessions of the defendant, without evidence aliunde of the corpus delicti, but direct and positive proof of that fact is not indispensable;(2) the corpus delicti must be established as an independent fact, beyond a reasonable doubt, yet it is not necessary that it should be proven by direct and positive proof. It may be proven by circumstantial evidence if from all the circumstances the jury is satisfied of the defendant's guilt beyond a reasonable doubt;(3) the corpus delicti may be established without showing that the offence charged was committed by the accused; and(4) an extra judicial confession of the defendant is not sufficient to warrant his conviction without additional proof that the crime charged has been committed. There must be in addition to the confession, proof of the corpus delicti, and where the corpus delicti is established by independent evidence, a conviction based upon the defendant's voluntary confession is warranted.
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Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Post by yousaf » Thu Dec 20, 2012 9:07 am

INDEPENDENCE OF JUDICIARY ?Despite that the Constitution, made in 1973, used the word `government' exclusively for the Executive branch of the system, due to an error of Constitutional Committee in its report given in 1972, which used this term for the Executive, the trichotomy of the governmental authority envisaged by the Constitution gives an imaginary concept of independence of Judiciary. Making this concept a reality needs some substantial constitutional changes. Procedure of the appointment of Judges, especially that of the Chief Justice of Pakistan, laid down in the Constitution is the most serious impediment to the independence of Judiciary. Under the Constitution, Prime Minister is the Head of Executive branch of the government. He is elected to the appointment by his own elected peers in the Assembly. President is also elected by the Parliament and the Provincial Assemblies.In the legislature also, the Head of the Senate and the Assembly, the two Houses of Parliament, are elected by their own peers in the respective House.A deviation has been made in respect of the third branch, Judiciary where it's Head, the Chief Justice of Pakistan is appointed by Head of another branch, viz. the Prime Minister who is not bound to consult anybody for such an appointment. The Constitution mentions the President as the appointing authority, but under Article 48, he is bound to act on the advise of the Prime Minister. When appointment of Head of Judiciary is the sole discretion of the Head of Executive, the concept of independence of Judiciary is nothing but a mirage. Prudence as well as honesty to the purpose require that selection and appointment of the Head of Judiciary should be left to the Judges themselves. If the policy is advisable in the case of Executive and Legislature it would also be practical and beneficial in the case of Judiciary for its independent working. Selection and appointment of other Judges should also be assigned to the collective body of Judges.Financial independence is the real independence. Perhaps, the Constitution makers were not very serious about the idea of independent working of the judiciary to impart justice. They took note of independent working of Legislature and they ensured their financial independence by introducing Article 88 providing for a Finance Committee of each Legislature to control its finances. The Judiciary was made subservient to the Executive in respect of control of their finances. A similar provision for Supreme Court and each High Court for control of their finances was equally justified.The sole argument that would be advanced in opposition to these ideas and proposals is that what we are doing was also done in the past and is being done elsewhere, and this is the argument that is mainly responsible for backwardness of the nation.***
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Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Post by yousaf » Thu Dec 20, 2012 9:12 am

WHETHER JUSTICE DELAYED IS JUSTICE DENIED One must learn from the past and refrain from repeating the mistakes. There is a general tendency that the judiciary as well as the lawyers are being criticised and said to be responsible for the delay in the process of justice. The developed societies and overcrowded countries have highly complexed laws, thus, causing delay in the disposal of the cases even then this aspect of the matter has never been held to be the main hurdle in the process of justice. Even in civilized societies the Court system is provided by the States to its citizens for resolving their disputes and in our society the dispute resolving apparatus which the State provides and which we as lawyers serve produces the result which is just proper and if we take the view that justice delayed is justice denied then this view will affect the society and may cause hardships without appreciation of the real matter. 2. In my opinion the time that passes between the arising of claim and disposal of it by a final judgment, can be divided into following periods, namely the arising of the claim, commencement of the proceedings of Court, service of opposite‑party, the trial period, the period between the trial and judgment and disposal of the final appeal. Improper delay may occur in this process as such the reasons for the delay in such circumstances and the remedies for it are different at different stages and the main problem is that delay in not synonymous with the passage of time rather improper delay affects the society and such improper delay amounts to the denial of justice. 3. Lawyers generally take time to process claim and for the drafting of the petitions, suits and complaints, notice to the opposite‑party. Courts allow time for needs which are incidental to the main proceedings, issues are formulated in order to avoid surprises, evidence is collected and complexity of the matter may determine the quantum of evidence and these are sufficient reasons in taking considerable time, as such the time consumed in processing the claim cannot be said to be improper delay. It is the duty of the lawyers to see that the disputes are resolved quickly and this vital service to the society by the lawyers is their paramount consideration. 4. The recent publicity in respect of undue delay in the process of justice is highlighted by the executive but it reflects a long standing failure by the lawyers to inform the public of its judicial purpose, skill and services provided by the legal profession to, the litigants for resolving their disputes. 5. Unless and until the delay is not appreciated in its true perspective we cannot say that the justice delayed is justice denied. Generally delay is caused by the Courts due to overwork because the cases are fixed before the benches after many years in such circumstances the executive is responsible for such delay but the delay which is incidental to the proceedings, in order to enable the parties to settle the issue to collect the evidence, cannot amount to improper delay and the time consumed in such matters will not amount to "justice delayed is justice denied". The lawyers are not responsible for improper delay in the process of justice. The working of the Courts, case load, the complexity of the litigation and quantum of evidence is the relevant material for the speedy justice and the decision of cases cannot be equated with treatment of a patient. Thus, without providing full opportunity for the production of evidence to the opposite‑party, the decision of suit in hurry and haphazard manner will amount to denial of justice and the real purposes of administration of justice may be flouted by speedy disposal which amounts to "justice hurried is justice buried". Reliance is placed on PLD'1996 Lah. 210 where concept of hearing has been highlighted. 6. The improper delay can be avoided by simplifying the present procedural laws and legislation can be said to be responsible for improper delay because there are different types of Courts, different types of legislation for different subjects thus resulting in delaying the justice. It will not be out of place to mention here that certain suggestions are given by the Courts to simplify the procedure but the same are not incorporated by the Legislature, thus, causing hardships for the litigants. At this juncture I will refer to PLD 1973 Supreme Court page 619 wherein it was observed by the Supreme Court of Pakistan that the definition of cheating under section 415 requires amendment but the said definition of "cheating." was amended in 1980. There are many other examples in this behalf and the same was amended in such circumstances it can easily be said that when the cases are being decided on hypertechnical issues by the Courts then this may amount to "justice delayed is justice denied". The lawyers are not responsible for such inordinate delay and the legislation and executive can be held responsible for inordinate delay. It is the duty of an Advocate and he is under obligation to assist the Courts in the litigation entrusted to him. The lawyers always took interest that the matter should be settled without undue delay but some instances of delay do not amount to improper delay in such extreme cases. Deliberate delay in the process of litigation may amount to the abuse of the process of the Court but this undue delay can be avoided when the time limit should be fixed within which case of a particular kind may be dealt with and disposed of and the superior Courts should seek explanation from the lower Courts for such delay. The Court must adopt administrative structure and machinery to ensure that litigation is concluded within the stipulated period. The Courts must adopt a structure appropriate to the speedy disposal of the litigation so that the delay should not amount to the denial of justice. In order to achieve this object the number of claims can be fixed being dealt with by an advocate by the Bar Council. Overcrowded professional engagements of an advocate may be one cause of delay in the process of justice. The number of Courts should be increased so that the overworking of the Courts should not be responsible for delay which amounts to denial of justice. Lastly, statutes and the rules made thereunder should be simplified by the legislation and complexity of the statutes is the main reason for process of delay. 7. In order to get rid of this situation that justice delayed is justice denied some proposals are given below:‑‑ (i) Before the framing of issues, the counsel for the parties should be required to submit a summary of the early neutral evaluation and there should be a specific provision for referring the matter to the arbitrator and if this offer is accepted and parties have referred the matter to the arbitrators the parties may be exempted from the payment of court‑fee. This process is more conciliatory, less‑formal and more flexible. The pre‑trial proceedings can be introduced in the civil suits. (ii) That if the parties are not at variance on facts, question of law should be formulated and reference can be sent to the High Court under section 113, C.P.C. The aforesaid section 113, C.P.C. may be amended and reference may be laid at rest within one month. (iii) The provision in respect of interrogatories and admission of documents, admissions of facts, discovery, inspection; production, impounding and returning of documents shall be laid at rest before the formulation of issues in order to avoid delays. (iv) The Constitutional Courts can avoid undue remands if there is uniformity of judgments, thus, delays can be avoided. (v) Delays can also be avoided when substituted service is adopted simultaneously. (vi) Written arguments should be asked to be produced and still the party insists to make oral submissions specified time should be allocated for oral arguments in the interim order. (vii) Parallel judicial system by the Government are creating hurdles in the administration of justice and the time tested present judicial system is fully appreciated by the people and approved by them. The said system also enjoys the confidence of the people, thus, parallel judicial system should be abolished. (viii)Exemplary costs should be imposed in order to avoid frivolous litigation. (ix) The number of Forensic Science Laboratories should be increased and serious action should be taken against the persons responsible for undue delays. (x) Time should be fixed for hearing of the case and frequent adjournments should be avoided. (xi) Supervisory jurisdiction may be exercised tinder Article 203 of the Constitution of Islamic Republic of Pakistan if the ruling of the Constitutional Courts are not followed by the subordinate Courts then disciplinary actions should be taken and rules should also be framed in this respect. (xii) Ineffective Supreme Judicial Council is also a hurdle in the administration of justice. (xiii) The time limit should be fixed within which cases of a particular kind may be dealt with and disposed of by the lower Courts and the superior Courts should seek explanation from the lower Courts for such delay and disciplinary action may be taken against the Courts responsible for such delay. (xiv) The High Court must adopt a structure appropriate to the speedy disposal of the litigation and the liability of the delay must be fixed. (xv) The number 'of claims should be fixed by the Bar Councils. Overcrowded professional engagements of a professional are also a cause for the delay in the process of justice. (xvi) The number of Courts should be increased and necessary funds should be provided by the executive for the disposal of matters within a reasonable time. (xvii) The complexed procedural laws should be simplified by the legislation and the suggestions by the superior Courts should become part of legislation and if the same are not incorporated in the statutes within six months due to oversight of the Legislature the public should not think that justice delayed amounts to denial of justice. (xviii) That it is a duty of the Appellate Court to resolve that the decision by the Court or Tribunal is incorrect, mala fide, or based on incorrect assumption of facts and the Appellate Court should be authorised to pass an order to direct the lower Court to pay the costs to the aggrieved persons. (xix) That unapproved reporting in the Law Journals is also a cause of delay in the process of justice and it creates hardships for the public. Thus, unapproved reporting in the Law Journals is another cause of the delay, thus, undue delay occurring due to the reckless reporting can be avoided. (xx) The rule‑making‑powers are not being exercised by the High Court otherwise the confusion can be resolved by exercising these powers and interpretation of the rules may result in the speedy disposal of cases. (xxi) The Bar Councils should be authorised to propose amendments in the Procedural Laws and if the proposed amendments are not incorporated in the statutes by Legislature within six months then the same may be presumed to be the part of rules. Thus, undue hardship to the litigants can also be avoided and nobody can say that justice delayed is justice denied. (xxii) That evidence in civil case should be recorded through local commission in order to avoid delays in recording of evidence. (xxiii) Article 163 of the Qanun‑e‑Shahadat may please be amended to this effect that if the plaintiff states on oath that his claim is true and the defendant refuses to make a statement on oath then the suit should be decreed. On the contrary, if the defendant makes a statement on oath and the plaintiff fails to rebut the same on oath the suit shall be dismissed. (xxiv) That if the denial in the written statement or evidence in this respect is false then the person should be prosecuted for perjury. In my humble opinion the time consumed for processing the claim and recording of evidence will not amount to improper delay and the same will not amount to "justice delayed is justice denied" rather if the justice is hurried that will amount, to injustice and will cause hardship and it can be said that if the justice is, rushed then the justice is crushed.
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Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Post by mariyahatta » Thu Dec 20, 2012 11:35 am

Thnx alot @yousaf

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Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Post by Jazi » Thu Dec 20, 2012 2:42 pm

Thnx So Much Dear Yousaf God Bless U!
Rao Jazib Saeed
Housing, Urban Development and Public Health Engineering Department Govt. of Punjab

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Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Post by yousaf » Fri Dec 21, 2012 8:50 pm

BAIL LAW SHOULD BE REFORMEDBritish's Government had made Indian Penal Code in 1860, which describe offences, and their punishment. And thereafter, British's Government had also made Criminal Procedure Code (Cr.P.C.) in 1898, which provides procedure for trial of criminal cases in Courts. Both laws were adopted by the Pakistan's Government after its independence.It is interesting thing that aforesaid both laws were made by British imperialism for controlling and ruling on India according to their desire. But after independence no effort has been made to reform laws according to welfare Pakistan's people.And aforesaid both laws are for over century an old, and they must be reformed according to present requirements of Pakistan's society and for welfare of people. Although, the Second schedule has been given in Cr.P.C. which shows detail description offences. And some offences are bail-able and some are non bail-able. But discretionary power to grant bail in non bail offences to the Courts under section 497 Cr.P.C. I think, bail should be granted as matter of right to accused in all offences except a few offences like terrorism, murder, rape, dacoity etc. on the following reasons:Meaning of bail:According to Black's Law Dictionary "A security such as cash or a bond; especially, security required by a Court for release of a prisoner who must appear at a future time".(i) Most jails are in Pakistan was built by British Government, which have very low capacity to hold prisoners.(ii) At the beginning of new English judicial System, jails and Courts were only built at district headquarter. But now criminal Courts are working at district headquarters as well as tehsil headquarters. And in most cases tehsil headquarters are away at district headquarters for more than 50 kilometers, and prisoners daily in severe cold winter and hot summer send via prisoner's van to criminal Courts situated at tehsil headquarters.(iii) In every jail has a cell, which has prepared list of those prisoners who's required by the criminal Courts in trials, and has prepared list that's send by the criminal Court back to in jail.(iv) Today, Surety bond is very low amount order by learned Court, but surety bond must be increased, and continue increase according to inflation.(v) If any person already on bail and he repeat offence or offences, he will not grant bail in bail-able offence until decision of his case.(vi) Per-arrest bail should be granted as a matter of right to accused in bail-able offences subject to joining police's investigation to protect innocent people from police torture and humiliation. And criteria has been given in act while granting pre-arrest bail to accused such as education, social status, job, allegation, and against evidence on file. Two reasonable surety bonds should be made in pre- arrest bail.(vii) A huge annual expense has been spent on transportation for prisoners from jails to criminal Courts situated at tehsil headquarters, such as maintenance of prisoner's van, security, and petrol.(viii) While holding prisoners in jails, a huge annual expense has been spent of food, medical, and security by the state. Now Pakistani jails have been producing habitual and hardening criminals, but I think jail should be made reform center.(ix) When any prisoner keeps in jail, he does not work, and he and his family suffer due to economic problems due to his detention in jail.(x) It is no benefit to society to keep accused in jail without completing trial, because every accused is/are innocent during trial process unless he proves guilty. But I think, habitual criminal must be kept in jail, who break law and disturbed society.(xi) Surety bond must be increased to extent that accused does not escape or escape to foreign country. But today surety bond is very low amount which is invitation to accused to escape or to escape foreign country after granting bail.Pakistan's State runs on taxes, which it collects from people. And all expenses has been spent by the State to keep accused in jail, such as food, medical, transportation and security, on burden of their citizens. Common people are suffering due to indirect heavy taxes, and reform must be made in all departments for reducing the State expenses for welfare of Pakistan's people.------------------------
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Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Post by yousaf » Fri Dec 21, 2012 8:53 pm

JUDICIAL BIASHuman learning process eschews scattered transactions, engulfs different theories, right from birth till death, there is vibrant process, which many human term as inherent, and very few try to change the already written fortune. Humanity being fond of equality, in my view, does not recognize class distinction, races, caste, religion and undue downtrodden movements towards shrines. The most eye opening and heart touching lesson by Almighty to His Messenger (SAW) “Iqra Be-Ismay Rabi Kal Khalaq” (a Quranic verse which often shakes my body abruptly and trembles me perhaps) guides us through the process of evolution. No body has seen hereinafter, as the term itself refers to certain contingent events, which will definitely happen but different roles assigned to humans in this world by Almighty are determinative thereof. Justice being Divine attribute, in common is defined as “the constant and perpetual disposition to render every man his due”. A judge in common holds the most respected place in our current judicial set up, perhaps in Islamic Republic of Pakistan. What if judge is biased, or performs adventurous task, puts you sudden surprise, takes your position, he may be bias. We are enjoying the most typical Pakistani society, in which, a lawyer has to be most dramatic to please his clientage, which concerns least to well established lawyers. But, what if judge holds your position and becomes party to your cause, and also let your client lose faith in you, this in my view, is classical case of biased judge. Biasness is a terms that cannot be defined exactly and must be construed in the given facts and circumstances. On the other hand judge is not disqualified to hear a case simply because he had already expressed his opinion on similar question of fact and law while deciding similar case earlier. See PLD 2009 KARACHI 176Judicial bias being innovative is not definitive term, but In our society where maxim “Might is right” applies with full force, one party to litigation might be strong and aggressive while the other is weak, incapable of defending his rights, in such situation, it becomes necessary for there to be a way to prevent people from oppressing each other, to ensure that the weaker members of society receive justice, and to determine right from wrong when issues get complicated or uncertain. This can only be realized through a judge that has the power to give legal verdicts in cases of dispute and must be enjoying powers of execute its own orders and judgments. As held by CJ Irshad Hassan Khan in PLD 2000 SC 869 that judiciary is the only forum recognized by both the ruler and the ruled. The Service Tribunals, which though termed as constitutional courts, don’t have powers to implement their own judgments and orders, except NWFP Service Tribunal. See 2009 PLC (CS) 914. As, a judicial body giving verdicts without having powers of execution, is a fantasy, chimera, illusion and perhaps a mockery over the law playing with the rights and sentiments of innocent litigants. Such like situations also violate the maxim “where there is a right, there is a remedy”, but what if law recognizes your right only without there being remedy. In such cases, frequently, the strong litigant turns towards bribing the concerned authorities, buying the bureaucratic giants, and poorest divert to courts, wherein, their whole generations see the presiding officer’s inductions and retirement and don’t get justice. There is another dilemma of our society, wherein the mighty litigants prefer buying the system, instead of submitting themselves to get the rightful verdict. Here comes the tyranny, the Sialkot Incident as well as intentional murderous assault over innocent Christians are clear cut example of edge where our society travelling rapidly. Limitations and technical hindrances only bind the poor adversaries, the rich and strongest go safe without such restrictions. It is very unfortunate for our collapsing system that mighty people gets their grievances redressed within shortest possible time, Moonis Elahi is latest example. In Roberts Gwyfai VS District Council (1899) 2 CH 608 “no duty of the court which is more important to observe and no power of the court which is more important to enforce than its power of keeping public bodies within their rights”. Chief Justice Marshall on an occasion said “that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people was an ignorant a corrupt or a dependent judiciary”. (Basu’s Commentary on Indian Constitution). Both corrupt and dependent judge, in my view, are greatest examples of biasness, the proper significance of to travel beyond the even handed administration of justice system. On the other hand, religious testaments also put great emphasis on existence of a unbiased judge and exercise of such power to be both a religious obligation and a necessity of human life. I feel dignified to refer the following Quranic verses in support of my arguments:“We have sent Messengers with clear proofs, and sent down with them the Scripture and the Balance that mankind can establish justice…” (Quran 57:25). The importance of an impartial judge can be further highlighted by quoting the following references:-“And remember David and Solomon, when they gave judgment concerning the field when people’s sheep had browsed therein at night, and We were witness to their judgment. And We made Solomon to understand the case. And to each of them We gave good judgment and knowledge.” (Quran 21:78-79)Further Holy Quran Says“O David, verily we have placed you as a successor on Earth, so judge between people in truth, and do not follow your desires for it will mislead you from the path of God. Verily, those who stray from the path of God have a severe punishment because they forgot the day of reckoning.” (Quran 38:26)“So judge (O Muhammad) between them by what God has revealed and do not follow their vain desires, but beware of them lest they turn you away from some of what God has sent down to you.” (Quran 5:49)And “…And if you judge (O Muhammad), judge between them with justice. Verily, God loves those who act justly.” (Quran 5:42)And He says:“But no, by your Lord, they shall have no faith until they make you (O Muhammad) judge in all their disputes and find in themselves no resistance against your decisions and accept them with full submission.” (Quran 4:65)“If a judge gives a judgment using his best judgment and is correct, then he receives a double reward (from God). If he uses his best judgment but makes a mistake, then he receives a single reward.” (Ahmed)Holy Prophet (SAW) also emphasized in the following words:-“You should not wish to be like other people, except in two cases: a man who God has given wealth and he spends it on Truth and another who God has granted wisdom and he gives verdicts on its basis and teaches others.” (Saheeh Al-Bukhari, Saheeh Muslim)The terms “bias” and “prejudice” through distinct but more correlative and it’s not an easy task to separate the practical impacts of both. As said by Ibn Qudaamah (RAW) and I supplement in the following words that there are two classes of judges, one who reads, develops the litigant’s right even though not properly pleaded and gives verdict impartially, this angel will be in heaven. The other type reads the litigant’s right, eyes you with trembling heart and decides wrong, that judge will go to hell definitely. Holy Quran also throws light in such cases like “There are seven categories of people whom God will shelter under His shade on the Day when there will be no shade except His. One is the “just” leader.”(Muslim) and “God commands justice and fair dealing...” (Quran 16:90). Article 6 of European Convention for the protection of Human Rights and Fundamental Freedom 1950, provides principles of natural justice as rule and safety against bias, which in turn take resort to different maxims, such as (i) no one should be a judge in his own cause, (ii) justice should not only be done, but seem to have been done. The rule against biasness inheres in itself automatic judicial accountability forming judicial independence. Independence of judiciary, without impartial and unbiased and righteous presiding officer is a hypothetical concept rather myth. The term “independence of judiciary” inheres in its own self certain dynamic concepts and phrases, which are of contextual nature. Dispensation of justice is more or less dependent upon judge, and in discharging such functions, it is possible only when judge prevents himself from luxurious food and thoughts. SEE PLJ 2010 MAG 56. The judiciary to be independent and criteria thereof had already been laid down by Hazrat Ali while setting guidelines in his famous letter to Governor of Egypt Malik Ashtar, operative part therefrom reads as follows:- Chief Judge Select for your chief judge one from the people who is by far the best among them one who is not obsessed with domestic worries, one who cannot be intimidated, one who does not err to often, one who does not turn back from a right path once he finds it, one who is not self-centered or avaricious, one who will not decide before knowing full facts, one who will weigh wit care every attendant doubt and pronounce a clear verdict after taking everything into full consideration, one who will not grow restive over the arguments of advocates and who will examine with patience every new disclosure of fact and who will be strictly impartial in his decision, one who flattery cannot mislead or one who does not exult over his position. But it is not easy to find such men. Once you have selected the right man for the office, pay him handsomely enough, to let him live in comfort and in keeping with his position, enough to keep him above temptations. Give him a position in your court so high none can even dream of coveting it and so high that neither back-biting nor intrigue can touch him. Subordinate Judiciary Beware! The utmost carefulness is to be exercised in his selection: for it is this high office which adventurous self-seekers aspire to secure and exploit in their selfish interests. After the selection of your chief judge, give careful consideration to the selection of other officers. Confirm them in their appointments after approved apprenticeship and probation. Never select men for responsible posts either out of any regard for personal connections or under any influence, for, that might lead to injustice and corruption. Of these select for higher posts men of experience, men firm in faith and belonging to good families. Such men will not fall an easy prey to temptations and will discharge their duties with an eye on the abiding good of others. Increase their salaries to give them a contented life. A contented living is a help to self-purification. They will not feel the urge to tax the earnings of their subordinates for their own upkeep. They will then have no excuse either to go against your instructions or misappropriate state funds. Keep to watch over them without their knowledge, loyal and upright men. Perchance they may develop true honesty and true concern for the public welfare. But whenever any of them is accused of dishonesty and the guilt is confirmed by the report of your secret service, then regard this as a sufficient to convict him. Let the punishment be corporal and let that be dealt in the public at an appointed place of degradation ………………….” (Underlying for emphasis). At this juncture, Holy Quran Says “…Be just, for it is closest to God-consciousness…” (Quran 5:8) and “…When you speak, speak with justice, even if it is against someone close to you…” (Quran 6:152)The above reproduced religious testaments also laid down the criteria for the general observance of every judicial system qua appointment/selection of presiding officer/judges for real administration of justice. In my humble view the above narrated testaments form part of our religious teachings, and require strict observance for Islamic welfare state. My Lord Mr. Justice Ch Ijaz Ahmed in his Article titled as “Methods of Educating Newly Appointed Judges” has very artistically marshaled down the importance for an independent judiciary. Some of the extracts are also reproduced hereunder:-“The Law is supreme and the judges must not subordinate to the ruler………..The judiciary should be beyond every kind of executive pressure or influence, above fear or favor, intrigue or corruption……..we would not allow a doctor to perform a surgical operation without thorough training and certification, why not require as such of a trial judge who daily operates on the lives and fortune of others. As judges necessarily have an important role to play in applying the laws, there is every reason for ensuring that their selection, training and working conditions facilitate their ability to act wisely and deiced impartially……………..”No exact human formula has been devised so far, to detect biasness in the judicial proceedings. It was held in Lesson VS General Council of Medical Education (1889) 43 UD 366 384 that the law does not allow any further inquiry as to whether or not the mind was actually biased by the pecuniary interest. The fact is established from which the inference is drawn that he is interested in the decision and he cannot act as a judge. The only significant feature of bias is to show travelling beyond from the standard of even handed justice which the law lays so. In my humble view, the definition of “bias” must be inclusive besides its various types containing subject-matter, personal, class and pecuniary bias etc. Personal bias is dangerous, which may evolve either association or hostility of a presiding officer with a party or even his lawyer. See 2011 SCMR 232. This type of bias must render the whole trial as invalidated, but in our country, such considerations have not been paid due attentions. Otherwise, law has attached undue presumption of truth with the judicial proceedings, and as said earlier, there is no scientific formula within which the blood of party be transfused to get the definite result of “biasness”. Simply, it depends upon conscience, and simply conscience is what makes you respectful. The maxim “justice should not only be done but manifestly seem to have been done” stood automatically violated, if a judge or presiding officer is found indulging obligations with a particular party at the cost of other party, perhaps buying hell. SEE AIR 1996 SC 513 and as said by our Supreme Court in PLD 1999 SC 885 that a judge who decides injudiciously shall go to hell. Class bias has undergone dramatic changes, in our socio-depressed society, where the tyrannies and egoism of caste, class-distinction and so called “Baradarism” prevail, a judge with previously burdened with such menaces try to administer justice is restricted by his own consciousness, which has been grown up and fed by oppressive destructive system. Echo of change, if not possessed by such person, would definitely render him absolutely unfit to be retained in judicial service of any type. Inner voice dubbed with all hypothetical human formulations override the basic Islamic tenets, which bar giving preferential treatment to one over others thereby calculating castes, color, associations and brandishing your egos thereby destroying other vested and fundamental rights. I must quote some extracts from Khutba-e-Hajja Tul Wida on Ninth Day of Dhul Hijjah 10 AH in the Uranah Valley of Mount Arafat:- “All mankind is from Adam and Eve, an Arab has no superiority over a non-Arab nor a non Arab has any superiority over an Arab; also a white has no superiority over black nor a black has any superiority over white except by piety and good action…………..Remember, one day you will appear before ALLAH and answer your deeds………………All those who listen to me shall pass on my words to others and those to others again” . The judges who suppresses one’s right over petty matters, constitute bias, just think whether can bypass the Commandments made in Holy Prophet’s (SAW) last sermon, if still somebody nods in affirmative, then Allah is the best judge and creator of all things. Snatching one’s right and source of livelihood just to promote other’s undue business, to obtain encouragement is violation of not only dignified human values but would definitely render one liable for action in Hereinafter. Strict adherence to Islamic values would definitely deplete the sighs and grievances of already marooned nation. Also SEE PLJ 2011 MAG 459 over illegal practices in our professionIn my view, bias or prejudice at judge’s end cannot be presumed, in fact, the law attaches sanctity and presumption to the judicial proceedings. The term judicial proceedings are not exhaustive in nature. It, in itself, includes administrative proceedings, disciplinary matters in educational institutions as well. See AIR 2000 SC 3344 & 2008 SCMR 1666 for fairness in proceedings dealing with right of individuals. It may be a state of mind, which God knows better, but in our society very few judges dare to point out their relations or previous associations to let the trial go “taint-free”. I forgot to note the exact citation referred by Mr A.K Dogar while arguing a case before Supreme Court of Pakistan, in which he put much emphasis to the theory that repeated and unwarranted interruptions in arguments from bench and subsequently unduly passing adverse remarks against the party amounted to denial of right of fair hearing, which definitely would vitiate the whole trial. That’s true, and real spirit of law and equity, being strictly followed by Mr Justice Mansoor Ali Shah and Mr Justice Farukh Irfan Khan, Honorable Judges Lahore High Court Lahore and both said honorable judges let party exhaust all his arguments and then comes the solid verdict, if challenged, apex courts seldom interferes. Very judge is honorable, but the most honorable would be who honors others; does not let his judicial knowledge destroy the young lawyer’s tiny preparations. People like me are always encouraged by most romantic judge Syed Mansoor Ali Shah, who at all times called us “Yes Young Man”, and believe me, these syllables, shoot our passion from zero to infinity and we feel always proud there after, perhaps the Honorable Judges never insulted and taunted us for lesser preparations. May both live long. Honorable Chief Justice Cornelius in PLD 1955 FC 185 held “A judge deciding a case under the influence of bias would take one view of his wrong doing, if he realized that every thing he did would be set aside if bias became known, but on the other hand, he would take a very different view, and might even be encouraged in his wrong doing, if he through that the only danger was that of correction of his judgment in appeal. For, correction of judgments in appeal is incidental to all appealable judgments. The enforcement of an absolute rule of nullity is, therefore, calculated to encourage and preserve the maintenance by judges of complete impartiality and to deter all those who may be interested to influence their decisions”. Perhaps the honorable judge was much conscious about the reasonable apprehension in the mind of the litigant that due to bias he would not get justice from the judge. In my humble view, the great lawyer would always know the loopholes of statutes and interprets more naturally. A biased judge can write for or against any proposition, but an honest judge would definitely write one judgment. All that elements would obviously not remove danger in litigant’s mind for which CJ Cornelius marshaled. It is also highlighted that that the essence of bias is the apprehension in the mind of the litigant that he would not get justice because the judge trying the case is biased. The importance founded upon the apprehension in the mind of litigant and not the judges hearing the case. In my view, interest of whatever form it may take, wholly disqualifies a judge to constitute himself in the bench. Besides, a judge may refuse participation in the bench having some interests, the alleged bias of the judge may not render the proceedings null & void if the party though knowing the circumstances about the biasness of particular judge, failed to take objection as such, although had an ample opportunity and recognized right to challenge the presence of the judge in the bench. But, whether principle of waiver, applies in such facts and circumstances, depends upon facts and circumstances of each particular case. The due process clause in Article 4 of Constitution of Pakistan 1973 guarantees that the tribunal or court before which the rights are adjudicated must be so constituted so as to give reasonable impartiality of its own existence. The right guaranteed by said article prima facie includes right to have a fair trial and right to have an impartial court or tribunal. Benjamin Franklin said: "Without justice, courage is weak." Justice in words of George Washington “The administration of justice is the firmest pillar of government”. Had there been real justice in Pakistan, every wrongfully terminated employee would have been receiving sufficient pecuniary compensation as damages to sustain confidence in judicial system, every maliciously entangled citizen in criminal proceedings would be recovering from the state functionaries greater amount of damages, which unfortunately badly missing, as courts administers justice, which is somewhat alien to “real justice” which an illiterate litigant tries to embed in our courts.Muhammad al-Khaadimi (May Allah bless His mercy on him) said: “Knowledge of judicial matters is one of the noblest and most sublime branches of knowledge, because it is a high position and prophetic role ………………” Prophet (SAW) also said “There should be no envy except in two cases: a man to whom Allah has given wealth and granted him the authority to spend it in a rightful manner and a man to whom Allah has given wisdom and he judges and acts on the basis of it.” The position of adoring robes becomes sinful for a judge, who is generally and totally ignorant of the legal knowledge and presides over and decides the rights of litigants, knowing well, he was never definite while adjudicating the rights, and it is condition precedent for an impartial judge to be definite and perfect in his findings. It was narrated that Mak-hool said: To go forth and have my neck struck is dearer to me than being appointed as a judge. It was narrated from Raafi’ that ‘Umar ibn Hubayrah summoned him to appoint him as a judge, and he said: I would not like to be appointed as a judge, even if the pillars of this mosque were turned into gold for me. It was narrated that Ibn Shubrumah said: Do not dare to assume the position of judge until you dare to be exposed to the sword. Applying these tests to the appointments made in service tribunals through out Pakistan, same clearly prove to be mockery and fraud with the statutes and even with religion Islam. Can you expect judicial knowledge from a retired Police Officer appointed to preside service tribunal; whose orders on frequent occasions have been subject matter of contempt jurisdiction of various high courts, the answer is surely negative. It is only the judicial officer under the direct judicial umbrella of high courts, who could be expected to be well versed with judicial knowledge having been rolled indefinitely in judicial ovens. Visiting Islamic history would show many of the imams sought to avoid being appointed as judges, and some of them even accepted beatings and imprisonment instead of being appointed, and some fled from their homelands in order to avoid being appointed as judges. Alas: - compare with present scenario. Shaykh ‘Ala al-Deen al-Taraabulsi (may Allah bless His mercy on him) said: One of the imams said: The sign of the pious is that they avoid this and flee from it. A number of exemplary imams endured hardship in order to keep away from this and they bore it with patience. I would conclude by quoting the most heart touching words of Ibn Mas’ood (may Allah be pleased with him): “If I were to judge for one day, that would be dearer to me than worshipping for seventy years.” Hence judging justly between people is one of the best of righteous deeds that brings the highest status in the Hereafter, and biased judge would definitely be deprived from enjoying the pleasance and pleasures of Heaven, perhaps born for staying hell always.
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