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yousaf · Post by **yousaf** » Sun Dec 23, 2012 1:45 pm

THE DOCTRINE OF JUDICIAL REVIEWMEANINGS , DEFINITIONS OF "JUDICIAL REVIEW":1. According To Black's Law Dictionary (Seventh Edition):According to this dictionary, it is:(a) the Court's power to review the actions of other branches or levels of government; especially the Court's power to invalidate legislative and executive actions as being unconstitutional;(b) the Court's review of a lower Court's or an administrative body's factual or legal findings.3. A Judicial Power in Action:It is a doctrine according to which the Courts are entitled, in the exercise of the "judicial power" of the State, to examine and decide the question--(a) of the Constitutional validity of any law, be it the result of primary or subordinate legislation; and(b) of the Constitutional validity or lawfulness of a decision, action or inaction of a person or body in relation to the exercise of a public function (1).4. English Civil Procedure (Amendment) Rules 2000:In its Section 54.1, it is defined as:A claim for judicial review means a claim to review the lawfulness of:(a) an enactment;(b) a decision, action or failure to act in relation to the exercise of a public function.5. According To Lord Bingham:"It is the power of the Court to see that public powers are lawfully exercised".6. According To Lord Lindley:In Roberts Gwyfai Vs District Council, according to him:"There is 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".7. According To Chief Justice Coke:In Bonham's case in 1610, he maintained that:"When an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge, such Act to be void".IMPORTANCE:The power of judicial review, or the authority to declare legislative enactments void, it was said by Justice Iredell in 1878, is:"Of a delicate and awful nature".Marshall CJ said:"No tribunal can approach such a question without a deep sense of its importance and of the awful responsibility involved in its decision" (2).Whether or not it is right to describe the power of judicial review as awesome, there seems to be no doubt that to see judicial review in action is to witness the judicial power, and hence, the administration of justice at its best.POSTULATES OF THE DOCTRINE OF JUDICIAL REVIEW:The doctrine of judicial review pre-supposes the truth of the following propositions:(a) Constitution is a law which is enforceable by Courts.(b) It is a law of higher obligation than the ordinary law.(c) In the event of conflict between Constitution and ordinary law, it is for the Courts to declare the ordinary law, on the ground of its repugnance to higher law, as void (3).DIVINE ASPECT OF JUDICIAL REVIEW (JUDICIAL REVIEW IN ISLAM):For Muslims, judicial review is part of the Divine Law (Holy Quran).The Holy Quran ordains:"O ye who believe, Obey Allah, and obey the Messenger and those charged with authority among you. If you differ in anything among yourselves, refer it To Allah and His Messenger, if you do believe in Allah and the Last Day: That is best and most suitable for final determination" (4).HISTORICAL PERSPECTIVE (THE ESTABLISHMENT OF JUDICIAL REVIEW):So fundamental is the doctrine of Judicial Review of legislation that a few brief remarks about its genesis and the circumstances in which it arose to the position of its present power would not be out of place.Justice Marshall's Contribution:"If American law were to be represented by a single figure, skeptic and worshipper alike would agree that figure could be one alone, and that one, John Marshal. Marshal found the Constitution paper and he made it power" (5).True to the saying "cometh the hour, cometh the man", came the appointment of John Marshall as the Chief Justice of the US Supreme Court in 1801."He was so singularly fitted for the office of Chief Justice and rendered such incomparable services in it, that the Americans have been wont to regard him as a special gift of favouring Providence" (6).His appointment proved the maxim attributed to Napoleon that:"The tools belong to the man who can use them".But having said all that, we should be cognizant of the fact that the doctrine of judicial review was in vogue much before Marbury Vs Madison case.The Doctrine Has Ancient Roots:1. That the doctrine of judicial review was not the invention of John Marshall is proved by the fact that the classic tradition of juristic thought in which the lawyers and judges of that time were steeped, owed much of its vitality and vogue to the writings of Blackstone whose "Commentaries on the Laws of England" had been reprinted five years before the Declaration of Independence in America.2. The origin of the doctrine of judicial review has been traced back to the dictum of Sir Edward Coke who is regarded as the greatest of the 17th century authorities on the Common Law of England. He contended that Magna Charta had embodied certain fundamental principles of rights and justice, and that the common law contained a further expression of the same principles. Dr. Bonham's Case (1610):In this famous case, decided in 1610, Sir Edward Coke, then Chief Justice of England, in an appeal, preferred by Dr. Bonham charged for having violated the statute, adjudged the appellant to be "not guilty" upon the ground that the law in question was void, his reasons being:"And it appears in our books, that in many cases, the common law will control acts of Parliament, and sometimes adjudge them to be utterly void; for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void".SCOPE OF JUDICIAL REVIEW:As has been defined, judicial review can question the validity of:- legislation (primary or subordinate), and- administrative actions.1. JUDICIAL REVIEW OF PRIMARY LEGISLATION:Primary Legislation:Primary Legislation is legislation made directly by the legislature or the authority in whom the power to legislate for the time being vests.Subordinate Legislation:It is a law made by an authority acting under a power granted by a primary legislation.BASIS AND RATIONALE OF JUDICIAL REVIEW OF LEGISLATION:In England: In England, Lord Coke would have liked it to be a Constitutional rule that "when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, adjudge such Act to be void"; but that was not to be, and there was no such thing as judicial review of Acts of Parliament.The reason is that England is not governed by a written Constitution and there is no difference in authority between one statute and another.In America:Ever since the landmark case of Marbury vs Madison, in which the great Chief Justice John Marshall first asserted the power to pass upon the Constitutionality of legislative acts, and thereby, as Chief Justice Earl Warren has put it, "rooted this fundamental principle in American Constitutional law as our original contribution to the science of law".In India:Marbury vs Madison principles have been followed in all the countries governed by written Constitutions. They were re-echoed in a very early Indian case decided by the Calcutta High Court namely Empress Vs Burah (ILR 3 Cal. 63).In Pakistan:In Pakistan, they were applied, among others, in the:1. Province of East Pakistan vs Muhammad Mehdi Ali Khan (PLD 1959 SC 387);2. Fazlul Quader Chaudhry vs Muhammad Abdul Haq (PLD 1963 SC 486);3. Abul Ala Maudoodi case (PLD 1964 SC 673); and 4. Sabir Shah vs Shad Muhammad (PLD 1995 SC 66).The Grounds of Challenge to Primary Legislation:In the words of Chief Justice Marshall in Marbury vs Madison, "It is the theory of a written Constitution that an Act of the legislature, repugnant to the Constitution, is void".In Pakistan: In Pakistan, as in India, we have a written Constitution and the Constitution is the supreme law of the land. We have adopted the English Parliamentary system but not the English doctrine of the absolute supremacy of Parliament in matters of legislation. In this respect, we have followed the American Constitution and the systems modelled on it.Judicial Review of Constitutional Amendments:In United States of America:In the USA, all the questions relating to Constitutional amendments are considered as political and non-justiciable. Even as regards the ground that the Constitutional amendment has been passed in contravention of a procedural requirement, the settled law in America is that this question is a non-justiciable political question to be determined exclusively by the Congress and that the Courts have no proper role to, play in reviewing amendment process issues.In India:Basic Structure Doctrine:In India, the Supreme Court had developed the Basic Structure Theory which has since the Kesavananda Bharati case (7), been firmly rooted in the Constitutional law of India. This case is also an authority for the view that if in making an amendment, the special procedure prescribed by the Constitution has not been complied with, the amendment is invalid. In Islamic Republic of Pakistan:Although the Courts in Pakistan have not recognized the Basic Structure Doctrine, the Courts in Pakistan consistently held (In Abdul Wali Khan case "PLD 1976 SC 57" and in Pakistan Lawyers Forum vs Federation of Pakistan "PLD 2005 SC 719") that a Constitutional Amendment can only be challenged if it has been enacted in a manner not stipulated by the Constitution itself.2. JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS:General Scope:In the exercise of its judicial review jurisdiction, the High Court is concerned only with the lawfulness of what the public officers do."The public officers are accountable to Parliament for what they do so far as regards efficiency and policy and of that Parliament is the only judge; they are responsible to a Court of justice for lawfulness of what they do and of that the Court is the only judge" (8).Position in Pakistan:"Where an administrative executive officer acts under a law, the High Court will control the action by an appropriate order if he:- goes out of law, i.e. exercises a jurisdiction not vested in him by law;- wrongly denies or omits to exercise a jurisdiction; and - where the law under which he acts prescribes the manner in which he is to act materially departs from that law" (9).Justification for Treating Subordinate Legislation with Administrative Actions:The justification for treating the subject of subordinate legislation along with administrative actions in general is that subordinate legislation is merely one form of administrative action and both, in American and British systems, judicial review of subordinate legislation is subject to normal law governing review of administrative action.Doctrine of Ultra Vires:It's Meanings:Ultra Vires is a Latin word which means;"Beyond Power".It's Concept:It is axiomatic that a public authority which derives its existence and its powers from statute cannot validly act outside those powers.The doctrine of Ultra Vires covers all the defects which may lead to administrative actions - subordinate legislation included being invalidated in the Courts.Grounds for Ultra Vires:(a) Contravention of the Constitution;(b) Inconsistency with or Contravention of the Enabling Statute;(c) Affecting jurisdiction of Courts;(d) Contravention of a Law other than the Enabling Enactment;(e) Affecting Vested Rights; Retrospectivity;(f) Bad Faith or Mala fides; and(g) Unreasonableness.RELATIONSHIP BETWEEN JUDICIAL POWER, JURISDICTION AND JUDICIAL REVIEW:"Before a Court can claim to exercise judicial power, it must have jurisdiction; for jurisdiction is the authority of a Court to hear a case and hence to exercise judicial power" (10).Theory of Jurisdiction and Judicial Review:It is well to bear in mind that Judicial Review has grown out of the theory of jurisdiction and traditionally judges in America, England and other common law countries have for centuries been accustomed to using the expressions "jurisdiction", "without jurisdiction", "within jurisdiction", "excess of jurisdiction" in the exercise of their power of judicial review.INTERPRETATION AND ITS RELATION WITH JUDICIAL REVIEW:Judicial power is the power to decide and that includes the power to interpret. The core function of a judge is to decide by applying the law to the facts of the case before him. That necessarily involves interpretation of the law in order that it may be so applied."Interpretation is at the heart of judicial review; and judicial review, so to say, is essentially a matter of interpretation" (11).NEXUS BETWEEN JUDICIAL REVIEW AND FUNDAMENTAL RIGHTS:In countries with written Constitutions, fundamental rights form part of the written Constitution and any law or executive action which is inconsistent with fundamental rights, will come under judicial review.Effect of Violation of Fundamental Rights:Ever since that land mark case of Marbury Vs Madison in which the power to pass upon the Constitutional validity of legislative acts was first asserted, it has been a firmly rooted principle that a written Constitution is the fundamental and paramount law of the nation "and consequently, the theory of every such government must be such that an act of Legislature, repugnant to the Constitution is void".It makes, like Article 13, clauses (1) and (2) of the Indian Constitution, provisions expressly declaring laws inconsistent with or in contravention of the Fundamental Rights, which are part of the written Constitution, to be void.Article 8 of Constitution of Islamic Republic of Pakistan, 1973:It says in its clauses (1) and (2):(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this chapter (of Fundamental rights), shall to the extent of such inconsistency, be void;(2) That State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such inconsistency, be void.JUDICIAL REVIEW AS DEVELOPED IN DIFFERENT COUNTRIES:Here we will observe the status of judicial review in different countries.1. Judicial Review in Great Britain: Introduction:Judicial review is a procedure in English Administrative Law by which English Courts supervise the exercise of public power.Unlike the United States and some other jurisdictions, English law does not know judicial review of primary legislation (laws passed by Parliament), save in a few cases where primary legislation is contrary to EU law and the European Convention of Human Rights. A person wronged by an Act of Parliament therefore cannot apply for judicial review unless this is the case.2. Judicial Review in United States of America:In America, there is a written Constitution, and judicial review is the doctrine according to which Courts are entitled to rule upon the Constitutionality of an action taken by a co-ordinate branch of government. Thus there, judicial review extends to legislative enactments also.Courts in the United States have the power of judicial review. This power is based fundamentally on the tripartite nature of governmental power as enunciated in the United States Constitution."The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish... The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution..." (12).The Supreme Court:The ultimate Court for deciding the Constitutionality of federal or state law under the Constitution of the United States is the Supreme Court of the United States. The doctrine of judicial review was first announced as part of federal law in 1803, by the Supreme Court decision Marbury v. Madison.MARBURY vs MADISON (1803) 5 US (1 Cranch) 137:Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is a landmark case in United States law and the basis for the exercise of judicial review in the United States, under Article Three of the United States Constitution.Brief Facts of the Case:The case resulted from a petition to the Supreme Court by William Marbury, who had been appointed as Justice of the Peace in the District of Columbia by President John Adams shortly before leaving office, but whose commission was not delivered as required by John Marshall, Adams' Secretary of State. When Thomas Jefferson assumed office, he ordered the new Secretary of State, James Madison, to withhold Marbury's and several other men's commissions. Being unable to assume the appointed offices without the commission documents, Marbury and three others petitioned the Court to force Madison to deliver the commission to Marbury.Decision:The Supreme Court denied Marbury's petition, holding that the statute upon which he based his claim was unconstitutional.MCCULLOH VS MARYLAND 17 vs (4 Wheat) 316:In this case, the doctrine of judicial review was reinforced and applied to "the supremacy of the Federation over States".3. Judicial Review in Pre-Partition India:In pre-independence India, only three High Courts at the Presidency towns of Calcutta, Madras and Bombay had the power to issue the prerogative writs. By the charters of the three Supreme Courts created in pursuance of the Regulation Act of 1773, those Supreme Courts were vested with the powers of the Court of King's Bench which included the power to issue the prerogative writs.4. Judicial Review in India:The Courts in India exercise the power of judicial review by virtue of this power being conferred on them by Articles 32 and 226 of the Indian Constitution.Judicial Review Is A Part Of Basic Structure Of The Indian Constitution:The Supreme Court of India has held in a host of cases that:"The doctrine of judicial review is the power inherent and intrinsic in the Supreme Court and High Courts of India, and even a Constitutional amendment cannot divest these Courts of their power of judicial review".5. Judicial Review in Islamic Republic Of Pakistan:The Supreme Court and High Courts of Pakistan exercise the power of judicial review by virtue of powers conferred upon them Articles 184(3) and 199 respectively of the Constitution of Islamic Republic Of Pakistan, 1973. STANDARD OF REVIEW:In the United States:In the United States, unconstitutionality is the only ground for a federal Court to strike down a federal statute.If a state statute conflicts with a valid federal statute, then Courts may strike down the state statute as a violation of the Supremacy Clause. But a federal Court may not strike down a statute absent a violation of Federal law or of the federal Constitution.Nevertheless, the federal Courts have not departed from the principle that Courts may only strike down statutes for unconstitutionality.PROCEDURE IN JUDICIAL REVIEW PROCEEDINGS:Procedure Including Evidence:Because judicial review proceedings are in the nature of summary proceedings, matters involving a conflict of fact and a conflict of evidence which would require investigation and would involve discovery and cross-examination are considered unsuitable for disposal on an application for judicial review.Procedure Including Evidence:Article 199 doesn't prescribe any period of limitation for applications under this Article. The Limitation Act 1908 also doesn't apply to the proceedings under Article 199.JURISDICTIONAL REQUIREMENTS IN USA:In the Constitution of the United States, Article III confines federal Court jurisdiction to "cases" and "controversies". Interpreting this jurisdictional requirement, the Courts have established self-imposed limitations on its power of judicial review. They are as follows:1. The Rule against Advisory Opinions:It means, against extra-judicially deciding a question.The earliest instances of cases in which this rule was propounded are Hayburn's case of 1792 and Muskrat vs US (219 US 346). The basis of this rule is the doctrine of separation of powers.2. Mootness:The Courts cannot decide moot questions; they can only decide actual cases and controversies.3. Ripeness, Prematurity and Abstractness:Until the controversy has become concrete and focused, it is difficult for the Court to evaluate the practical merits of the position of each party.The leading case on ripeness is United Public Workers Vs Mitchell (330 US 75).4. Standing:In Allen vs Wright (468 US 737), it was held that the requirement of Standing is perhaps the most important of the jurisdictional doctrines. This doctrine implies that the Courts should be satisfied that they have jurisdiction and that the parties have the standing.The leading cases in this matter are Fothingham vs Mellon (262 US 447), and Flast vs Cohen (392 US 83).THRESHOLD QUESTIONS:1. Other Adequate Remedy:In England:In England, it is well established that, "a remedy by way of judicial review is not to be made available where an alternate remedy exists".In Pakistan:"Under Article 199 of the 1973 Constitution, the jurisdiction of the High Court is subject to the condition that the High Court is satisfied that no other remedy is provided by law" (13).2. Doctrine of Locus Standi:In England:Under the English Legal System, "the Courts as the judicial arm of government do not act on their own initiative". The Courts in England, in exercising the power to grant prerogative writs, have always reserved the right to be satisfied that the applicant has some genuine locus standi to appear before it.Public Interest Litigation in England:Recent cases show that the Courts in England have shown "an expansionist view towards locus standi in respect of public interest challenges".Doctrine of Standing in America:There is no specific provision in American Constitution corresponding to Article 199 of the Constitution of Pakistan requiring that there must be an application by an aggrieved person or aggrieved party. The "Doctrine of Standing" is one of the doctrines which cluster about Article III of the American Constitution which confines the federal Courts to adjudicating actual cases and controversies and is perhaps the most important of the jurisdictional doctrines.Doctrine of Standing in Pakistan:The words "on the application of any aggrieved party", "on the application of any aggrieved person" as they occur in Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 are clearly redolent of the presence of the doctrine of Locus Standi in Pakistan.Public Interest Litigation and Locus Standi:In the cases of(a) Benazir Bhutto vs Federation of Pakistan, (14) and(b) Ardeshir Cowasjee vs Karachi Building Control Corporation, (15)It has been observed that the concept of locus standi has undergone material change in case of public interest litigation; and, indeed, there is a greater need to allow liberal cases "under a generous conception of locus standi".3. Territorial Jurisdiction:"Territorial jurisdiction is the power of a Court or Tribunal considered with reference to the territory within which it is to be exercised. It means the geographical limits within which the judgments and orders of a Court can be enforced and executed. The object of defining the territorial limits of the Courts and Tribunals generally is to avoid a clashing of jurisdiction".Under Article 199 of our Constitution, the jurisdiction of the High Courts is territorial.4. Fairness:"Public authority must, in the performance of their public law functions, act fairly and justly, is a universal rule vouched by high and respectable judicial authority" (16).5. Natural Justice:Natural justice, it has been said, is only "fair play in action".For our purpose, it is sufficient to say that natural justice consists of the rule against bias and the right to be heard.6. The Right to Be Heard:This right may be founded upon a statute or a statutory instrument or it may rest upon the maxim "Audi Alteram Partem".It is one of the principles of justice that no man should be condemned without being heard.7. The Rule against Bias: "The rule against bias" is the second pillar supporting natural justice. It is commonly captured in the phrase "nemo judex in sua causa", which means that "nobody may be judge in his own cause".8. Duty to Give Reasons:Natural Justice demands that:(a) the applicant be informed of the nature of the case against him; and(b) he should be given a reasonable opportunity to be heard.It is well established rule that if opportunity to be heard is to have any value in practice, the decision maker must assign or .identify the reasons for any adverse decision.9. Duty to Communicate the Adverse Order:Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the Courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice.10. Unreasonableness:In Government of Pakistan vs Dada Ameer Haider Khan (PLD 1987 SC 504), the respondent was refused a passport, and the reasons given by the government before the High Court were that the respondent was on old political worker having "communist thoughts". In upholding the decision of the High Court, the Supreme Court observed:"We don't think that this reason was a reasonable ground on which a citizen's liberty to travel abroad could be curtailed".11. Mala-fides:The Supreme Court and the High Courts in their judicial review jurisdiction can always pronounce an act to be mala fide and therefore void, and their jurisdiction to do so cannot be taken away.12. Judicial Review in National Security and Emergency Matters:In such a situation, the Court must observe the limits dictated by law and common sense, but at they same time, the Courts don't abdicate their judicial function.13. Question of Fact:In the exercise of their judicial review jurisdiction, the Courts are concerned with the lawfulness of the actions of public authorities; they are primarily concerned with the "questions of law" and they give scant regard to "questions of fact".Judicial Review and National Supremacy:Even many persons who have criticized the concept of judicial review of congressional acts by the federal Courts have thought that review of state acts under federal Constitutional standards is soundly based in the supremacy clause, which makes the Constitution and Constitutional laws and treaties the supreme law of the land.IS JUDICIAL REVIEW UNDEMOCRATIC?Ever since the decision in Marbury vs Madison, there has been a lively debate as to the legitimacy of the power of judicial review.The Earliest Opposition:The earliest opposition came from no less a person than Thomas Jefferson, who was President of America at the time of the decision of Marbury vs Madison. He expressed himself thus in a letter:"You seem to think it developed on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive, more than the Executive to decide for them. The instrument (the Constitution) meant that its co-ordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are Constitutional, and what not, not only for themselves in their spheres of action, but for the legislature and executive, in their own spheres, would make the judiciary a despotic branch".Position in Pakistan:This is precisely the position in Pakistan. They are the judicial organ of the State and are so recognized by a written Constitution, namely the Constitution of the Islamic Republic of Pakistan. The system of government under that Constitution is democracy and the Courts are therefore an integral part of that democratic system. TENSIONS ARISING FROM JUDICIAL REVIEW:Tension Is Inevitable:It is natural and inevitable that tensions and frictions will arise from decisions in the applications for judicial review and judges will have their critics. The reasons are not far to seek. They are, among others, that it is in the nature of those exercising political authority to be overweening in its exercise and secondly, judges are the bulwarks of liberty and it is the requirement of their judicial function that they treat the executive on the same footing as any other litigant.In England:Thus, as has been noticed by Lord Woolf, in the English Judicial History, one of the periods of such tension was when there was a Labour Government and Lord Denning was the Master of the Rolls.In America:In America, the tension was openly voiced when after his landslide victory in the 1936 election, President Roosevelt decided not only to attack the Supreme Court but to do so disingenuously.In Pakistan:In Pakistan, the tension, once in the year 1997 rose so high that a three judge Bench of the Supreme Court suspended the operation of a Constitutional Amendment i.e. 14th Amendment; in another matter, a Bench directed the President not to assent to a Bill, which had been duly passed by the National Assembly and the Senate. There were speeches in and out of the National Assembly in respect of the Judges, which gave rise to contempt proceedings (17) culminating in the national humiliation of having the Supreme Court of Pakistan physically attacked during the hearing of the contempt matter against the then Prime Minister and others.Moderate Judicial Review:Judicial review won out in early American history after genuine struggles, but the form it won was critical to its success. In a different form, it is likely that it would not have survived. The form it took was "Moderate Judicial Review"."Great Constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the Courts" (18).PROS AND CONSAlthough judicial review has become an established part of Constitutional law in the United States, some people disagree with the doctrine, or believe that it is unconstitutional since it is not specifically spelled out in the Constitution.Proponents of judicial review note that any government based on a written Constitution requires some mechanism to prevent laws from being passed that violate that Constitution. Otherwise, the document would be meaningless, and the legislature, with the power to enact any laws whatsoever, would be the supreme arm of government. •HOW SUPREMACY OF SOME CONSTITUTIONS IS SECURED THROUGH MEANS OTHER THAN THAT OF "JUDICIAL REVIEW":It becomes necessary in the context to notice how in countries where the doctrine of judicial review doesn't apply, the supremacy of the written Constitution is maintained.1. Swiss Example:In Switzerland, for instance, the federal judiciary has no power to review the Constitutionality of the federal law. Its powers are confined to adjudicating the Constitutionality of the Cantonal Laws. The Swiss Constitution doesn't establish any clear cut division between the executive and the judicial organs of the State power.2. French Example:In the Constitution of the fourth French Republic, it is for the Constitutional Committee created under Article 91 to say whether the laws passed by the National Assembly imply amendment of the Constitution. It would be noticed that interpretation of the Constitutionality of the impugned law doesn't partake either of the method provided in the Constitution of the United States (namely by means of judicial review, nor again does it conform to the English Constitutional practice (that is of rendering the Parliamentary legislative Acts immune from challenge).Conclusion:The cases of Swiss and French Constitutions have been referred in an attempt to show that the procedure of judicial review is not the only device of conserving the supremacy of a written Constitution.REFERENCES1. Judicial Review of Public Actions by Justice (R) Fazal Karim. 2. McCulloh Vs Maryland:3. FUNDAMENTAL LAW of Pakistan by A.K.Brohi4. In Sura 4:595. Oliver Wendell Homes, himself a great and celebrated judge.6. James Bryce in his book, "The American Common Wealth":7. AIR 1973 SC 14618. Diplock LJ in IRC vs National Federation of Self-Employed (1981) 2 All ER 93. 9. Chief Justice Munir in Tariq Transport Company Case (PLD 1958 SC 437). 10. Fauji Foundation Vs Shamim-ur-Rehman (PLD 1983 SC 457):11. Christopher Wolfe in his book "The Rise of Modern Judicial Review".12. Article III of United States Constitution.13. Muhammad Arif vs Income Tax Officer (PLD 1989 SC 109):14. PLD 1988 SC 41615. 1999 SCMR 2883. 16. Airport Support Service vs Airport Manager (1998 SCMR 2268):17. Masroor Ahsan vs Ardeshir Cowasjee (PLD 1998 SC 823). 18. Holmes J in Missouri, Kansas and Texas Ry. Vs May (194 US 267):------------------- . Tarek S. Zaheer and M. Kabir Hassan, Financial Markets Institutions and Instruments, a Comparative Literature Survey of Islamic Finance and Banking, vol.10, No.4 Black wall Publishers, p.158-159. Usmani M.I., Meezan Bank's Guide to Islamic Banking, 2002, Darul-Ishaat Karachi, Pakistan, p. 13. M. Ariff and M.A. Mannan (ed.). Developing a System of Financial Instruments, "The role of Shariah Based Financial Instruments in a Muslim Country", D.M. Qureshi, 1990, Islamic Development Bank, Islamic Research and Training Institute, p.53. Mudaraba is also known as Qirad and Muqaradah.. 5 Shirazi, H., (tr.) Islamic Banking, 1990, Butterworths (London), p.31.. EI-Sarraf, M.F., Financial Dealings in Islamic Banks, Journal of Islamic Banking and Finance, Karachi, Pakistan, vol. 1, no. 1, 1984, p. 12.. Different scholars have given different opinion on that point.. There are two types of Mudaraba namely. First is restricted silent partnership in which the capitalist (Rab ul Mal) may specify a particular business or place for the entrepreneur (Mudarib), in that case he shall invest the money in that particular business or place. Second is unrestricted silent partnership, in this type the capitalist (Rab ul Mal) gives full freedom to the entrepreneur (Mudarib) to undertake whatever business he deems fit. The capitalist (Rab ul Mal) may specify only the rule according to which the profit is to be shared.. C.R. Tyser, D.G. Demetriades, Ismail Haqqi, (tr.) the Mejelle, the Other Press, Malaysia, vol. 1, p. 490.. C.R. Tyser, D.G. Demetriades, Ismail Haqqi, (tr.) the Mejelle, the Other Press, Malaysia, Vol. 1, p.233-234. Tarek S. Zaheer and M. Kabir Hassan, Financial Markets Institutions and Instruments, a Comparative Literature Survey of Islamic Finance and Banking, vol. 10, No.4 Black wall Publishers, p. 165 . Obiyathulla Ismath Bacha, Adapting Mudarabah Financing To Contemporary Realities: A Proposed Financing Structure November 1996 http://www.fivepillarsassc.com/document ... arabah.pdf accessed on 1st June 2007-06-02 at 3:30 a.m. . Obiyathulla Ismath Bacha, Adapting Mudarabah Financing To Contemporary Realities: A Proposed Financing Structure November 1996 http://www.fivepillarsassc.com/document ... arabah.pdf, accessed on 1st June 2007-06-02 at 3:30 a.m. . Obiyathulla Ismath Bacha, Adapting Mudarabah Financing To Contemporary Realities: A Proposed Financing Structure November 1996 http://www.fivepillarsassc.com/document ... arabah.pdf, accessed on 1st June 2007-06-02 at 3:30 a.m . Humayon A. Dar and John R. Presley, Lack of Profit Loss Sharing In Islamic Banking: Management and Control Imbalances, International Journal of Islamic Financial Services, vol. 2, No. 2, July to September. 2000, p.3-13.. Maulana Taqi Usmani, Islamic Finance, Musharakah & Mudarabah http://www.darululoomkhi.edu.pk/fiqh/is ... nance.html - 3k - accessed on 3rd of June at 20:30 . Saad Abdul Sattar Al-Harran, Islamic Finance: Partnership Financing, 1993, Peladuk Publications, p.75 . Andrew Cuningham, Islamic Banking and Finance prospects for the 1990s, Middle East Economic Digest (Meed) no. 4, April 1990, p. 14 . Saad Abdul Sattar Al-Harran, Islamic Finance: Partnership Financing, 1993, Peladuk Publications, p.79 . Tarek S. Zaheer and M. Kabir Hassan, Financial Markets Institutions and Instruments, a Comparative Literature survey of Islamic Finance and Banking, Black wall Publishers, vol.10, no.4 p. 165-166. Saad Abdul Sattar Al-Harran, Islamic Finance: Partnership Financing, Peladuk Publications, 1993, p.79 . Usmani M.I., Meezan Bank's Guide to Islamic Banking, 2002, Karachi, Pakistan, Darul-Ishaat, p.92 . Maulana Taqi Usmani, Islamic Finance, Musharakah & Mudarabah http://www.darululoomkhi.edu.pk/fiqh/is ... nance.html - 3k - accessed on 3rd of June at 20:30 . Mohammad Omar Farooq Partnership, Equity-Financing and Islamic Finance: whither profit-loss-sharing?, August 2006, accessed on 3rd of June 2007 at 20:42 http://www.globalwebpost.coni/farooqm/w ... ership.doc. The practice of Musharaka is different in Pakistan. First, it is a venture in which one party provides the required funds and the other party skills like a conventional Mudaraba. Second is that the risk is limited for the party providing capital. . Andrew Cuningham, Islamic Banking and Finance prospects for the 1990s, Middle East Economic Digest (Meed) no. 4, April 1990, p. 14 . Note: He can suffer loss in case of bankruptcy of borrower . Usmani, M.T., An Introduction to Islamic Finance, 1998, Karachi, Pakistan: Idaratul Ma'arif, p.27 . Said Zafar and Shameela Chinoy, Papers submitted on Islamic Financial Institutions to the Task Force on the Future of the Canadian Financial Services Sector, 8th of October 1997, Khamic Financial Institutions Canada http://www.fin.gc.ca/taskforce/pdf/ifi2.pdf-accessed on 28th of May 2007 at 23:26. Sufyan Gulam Ismail, Islamic Finance Explained, http://www.1stethical.com/IslamicFinanceExplained.pdf accessed on 2nd June 2007 at 20:19 . Regulatory Impact Assessment for alternative Finance Products, http://www.hmrc.gov.uk/ria/ria-alt-finance.pdf accessed on 2nd June 2007 at 19:59 . Islamic Finance a Growing Industry in the United States, http://www.unc.edu/ncbank/Articles%20an ... 0/KimTacyP DF.pdf accessed on 2nd of June 2007 at20:34. Muhammad Amin, the Taxation of Islamic Finance in Major Western Countries, sixth paper 2007, pwc.blogs.com/mohammed_amin/files/.pdf accessed on 2nd of June 2007 at 20:26 . In Pakistan, the development of term finance certificates has all but eliminated the use of Musharaka. The religious merit of Musharaka is recognised, however, and some banks make a point of taking part in them, especially in capital-starved markets such as Sudan. Nevertheless, for practical purposes, Musharaka remains a highly marginal instrument, despite its attraction for theorists . Andrew Cuningham, Islamic Banking and Finance prospects for the 1990s, Middle East Economic Digest (Meed) no. 4, April 1990, p. 14. SCB Islamic Home Financing, http://www.standardchartered.com/pk/ib/ ... nance.html accessed on 1st of June at 2:21

yousaf · Post by **yousaf** » Sun Dec 23, 2012 1:47 pm

SOME DRAWBACKS OF JUDICIAL POLICYHonourable Chair, Members of the Presidium, Ladies & Gentlemen, I feel, very proud and honoured for this opportunity of addressing this learned audience regarding judicial policy.I belong to an office which has the unique experience of conducting cases in the trial as well as appellate Courts specially, on Civil side. In other words, I am the person who has personal experience in the Courts. I have formulated some of the drawbacks of the running judicial policy in the following words:--1. Judicial Policy which should be in aid of justice, has, practically, been observed to be damaging.2. Golden provisions of procedural law which are fundamental for the advancement of justice, are not only being ignored but are also being bulldozed, in the name of Judicial Policy.3. Judges openly express that they are not here to do justice but they have to save their jobs, by showing greater number of disposed off cases.4. Concept of Interim relief has been totally ruined. Courts ordinarily refuse to grant stay orders even in case of most urgency. If such relief is granted, it is not extended beyond 15 days, in the name of Judicial Policy.5. Procedure regarding summoning and serving of summoned witnesses has been totally disturbed. Courts do not share such responsibility but shift the whole burden upon litigants. This factor seriously damage the rights of litigants resulting in heavy expenses or closure of their right of evidence.6. Longstanding principle, "Justice rushed, Justice crushed" can be seen every where specially in lower Courts.7. After conclusion of trial, judges do not hear arguments, discuss or even refer the judgments put by counsels of parties, in their final judgments. Such professional misconduct on the part of Trial Court Judges are observed in most of the cases, by the superior Courts.8. Judicial policy has created such a rushy & rashy atmosphere that has increased the tendency of corruption in lower Courts. 9. There is another problem with bona fide litigant that when they want to get their cases transferred from an approached/known corrupt judicial officer, their transfer applications are not accepted in the name of judicial policy. In such situation, a litigant has to face the negative results from the same prejudice Judge.10. Present Judicial Policy has shattered the trust of bona fide litigant public in judiciary, as they are going to believe that their grievances are not remedied by present Courts. Such situation is itself a risk for survival of the State and its main Organs, specially the judiciary.11. Due to remand orders litigation has considerably increased. In order to solve these problems, I am putting some suggestions:--(i) To minimize distrust upon Trial Courts, Judges should be directed to take Oath to do justice on merits at the time of hearing final arguments/ pronouncement of Judgments in presence of parties or their counsels. For this purpose Order 20, Rule 1 CPC should be amended.(ii) Basic and golden provisions of procedural law should not be turned down merely on the basis of provisions of Judicial Policy, at any costs.(iii) Judicial Officers should be made accountable for their corrupt and totally baseless and illegal decisions and in case of reversal of their judgments by superior Courts the costs and damages should be deducted from their pockets. (iv) Regulator of Judicial policy should be re-set after attending and studying the statistics mentioned supra.Thank you for giving patient hearing to my humble words.

zeebee · Post by **zeebee** » Sun Dec 23, 2012 8:13 pm

good work yousuf sahab plz will you share important topic for Urdu essays and a good book for Urdu essays

yousaf · Post by **yousaf** » Fri Dec 28, 2012 3:28 pm

if you like my post say thanks

maneeiz · Post by **maneeiz** » Tue Feb 05, 2013 5:27 pm

yousaf wrote:JUDICIAL ACTIVISM AND SUO MOTOJudicial Activism:The concept of judicial activism was created and introduced by "Arthur Schlesinger Jr." (an American historian and social critic) to the public in a Fortune magazine article in January 1947. [1]For an informal definition one can phrase out Judicial Activism as being the process or concept in a judicial system that justifies making decisions which are contrary to established precedents and laws, whether statutory or constitutional. Such decisions are applauded by the general public rather than juristic philosophers and writers.Numerous legal and non-legal sources have attempted to define the word and have done so successfully in various different expressions. Some of the good sources need to be quoted here as follows:"A philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent." [2]The term "Judicial activism" is different from the term "An Activist judge" and should not be confused to mean the same because the former relates to the definitions and concepts defined above while the latter may be referring to a judge who has not literally overturned an established rule or principle but has just given an important judgement/decision on an important law point. Important decisions on points of law even though not in conflict with established laws will be an activist decision by an activist judge. Thereby meaning that the progress of the judiciary is also linked to the term "activism".The concept of judicial activism especially to laymen is more of a "protector of individual rights" rather than a concept of "restraining constituional violations even if it involves ignoring precedents" even though both concepts are one of a kind when it comes to their effect in their application.The Debate - Arguing For and Against Judicial Activism:It is difficult to say whether the concept of judicial activism has made more critics of itself or supporters but in the view of its critics of `the application of the concept usurps power of the legislature, thereby diminishing the rule of law and democracy'. The main objection with the concept is that in the view of its critics, the Courts (Judiciary) are established to rule upon (uphold) the rules and legislation drafted by the legislature and not to check the validity of the legislation. The duly elected participants/members of the parliament have the sole authority to make laws and the courts are only a forum that would interpret them and decide whether someone is following it or deviating from it. The supporters of the concept of "separation of powers" also argue along the same line by arguing that the three organs of the state i.e. the Legislature, the Executives and the Judiciary should operate individually and independently rather than stepping onto the jurisdiction of the other organs of the state.However on the other hand the people who have defended judicial activism argue that it is the duty of the court and the court should take upon itself to guarantee the rights of individuals against the powerful hands of the few powerful people in the society. Laws that are inconsistent with fundamental rights should be declared to be void with no effect no matter how much loss the legislature has borne in introducing that illegal law. It is the view of the supporters of the concept that it is also the job of the courts to uphold the rights of the minority no matter what political pressures the court faces in making that decision. The country has to be "socially equal" in everyway to achieve full democracy. It cannot make double standards as to its own policy making and the courts should be there to watch that such double standards have not arisen between the general public and the government.Another critic of the concept is the present Chief Justice of America, John Roberts who has condemned the concept of `judicial activism' in the following words;"Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire."Furthermore the Chief Justice has stated that `the courts are not under a commission or mission to solve the society's problems'. The courts in his view are only the adjudicators upon fact and law and they should responsibly do only the duty of interpreting law.An example of a U.S case that involved important judicial activism is quoted as follows:Dred Scott vs. Sandford [3]This case also known as the "Dred Scott Decision", was a lawsuit, pivotal in the history of the United States, decided by the United States Supreme Court in 1857 that ruled that people of African descent, whether or not they were slaves, could never be citizens of the United States, and that Congress had no authority to prohibit slavery in federal territories. The decision for the court was written by the then Chief Justice of Amercia, Roger Taney. The implications of the decision are not under discussion because the important point to note here is that the Court took upon itself to lay down the law as opposed to interpreting it which is the primary duty of the Judiciary. Judicial Activism in Pakistan:Judicial activism in Pakistan is becoming a norm rather than an exception. The judiciary in Pakistan has assumed the role of upholding the constitutional rights of the citizens of Pakistan themselves, ensuring that the fundamental rights of the public are not being infringed by the powerful political parties at their whim.One of the various modes in which judicial activism is practiced or is entrusted upon the courts to practice is through the concept of "Public Interest Litigation" (hereinafter referred to as "PLI"). The main appellate Court which is the court of last resort is the Supreme Court of Pakistan. The Supreme Court has been involved in historical problems which have frequently changed the level of judicial activism in Pakistan but the soaring level at which it has been for the past few years has never been witnessed before.Pakistani courts have been involved in judicial activism since a long time back and one of the examples of such activism can be witnessed from the 1988, Saifullah's case. Despite the strong pressure by the executives, it was made mandatory that elections would be held on party basis. Later, the Lahore High Court and the Supreme Court both declared that the government of "Junejo" was dissolved unconstitutionally. The matter came down to an interpretation of Article 17 of the Constitution and by taking a very dynamic interpretation of Article 17 of the Constitution, the Nawaz Sharif government was restored in 1993. Had the Supreme Court interpreted the article literally, the case should have been heard by a High Court at first instance.Therefore it is evident that the Pakistani courts have been involved in judicial activism since a long time back whether it is activism in relation to political affairs or activism for the protection of individual rights and the upholding of the rule of law.The recent example of the "clash" between the Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry and the President of Pakistan, can be attributed to Judicial Activism in Pakistan. Prior to the tussle between the two, the Chief Justice of Pakistan ("CJP") had been taking various harsh actions against several governmental authorities/bodies under the shield of Suo Moto. When the decisions of the CJP became agonizing for the President and his reign, he removed the CJP in one day by exercising the so-called powers of the President in the mistaken capacity of the Chief of Army Staff. Suo Moto:The concept of suo moto (in the context of Pakistan) can be defined as an inherent right of the Supreme Court and High Court of Pakistan to take cognizance of any act/omission of any public functionary in order to check the legality and more often, the legitimacy of any action of that public functionary. Anything under the sun can come under the notice of the two Apex courts of Pakistan.In Pakistan the courts have gradually developed this doctrine and are acting upon it on a day to day basis whenever they get a chance. In other words a special tool named Suo Moto has been created by the Pakistani courts to legitimize the taboo of "Judicial Activism". The two terms "Suo Moto" and "Judicial Activism" are different concepts and are not interchangeable with each other; in fact the former is a part of the latter. Suo Moto can contribute to judicial activism but there are various other methods by which judicial activism can take place.Suo moto has reached the status of an "inherent right" in Pakistan, in other words it means that it is perfectly legitimate for the Judiciary (High Court and Supreme Court) to interfere in the domain of other organs of the state. This in turn means that the doctrine of "Separation of Powers" is directly in conflict with the doctrine of Suo Moto.ConclusionWhile concluding this discussion on Judicial Activism and Suo Moto, it is necessary to evaluate the public perception of judicial activism in Pakistan. For the general public in Pakistan, suo moto action has been a divine revelation, something that can be equated to a blessing. The poor and suppressed community being the majority of the community in Pakistan is in strong favour of the doctrine of suo moto. The current CJP has taken numerous decisions behind the facet of suo moto jurisdiction including decisions on the enforcement of human rights and on cases such as the `missing persons' cases.One of the manifold reasons for the success of the concept of Suo Moto is that it is effortlessly accessible to the poor (which is the majority class in the country) so for the poor and needy only a simple hand written "letter" can initiate proceedings in the highest court of Pakistan. The people who cannot even imagine affording the towering fees of big named attorney's can simply request the CJP through a letter about any malpractice of a governmental authority and the CJP (especially the ex-CJP) would be more than willing to cure the defects by ordering the needful.In this way suo moto action is a blessing for those who have been victimized by the might of governmental authorities. Moreover another positive effect of the suo moto action is that the governmental authorities in order to save themselves the embarrassment of being called inefficient or ultra vires through court try to restrain themselves into doing acts which are within its legal sphere.The new concept may be a violation of the rule of separation of powers but the question then arises, do we actually need a concept such as "separation of powers"? Is the legislature and executive doing anything according to the rules of natural justice so that the citizens and the organs (which are made up of the citizens themselves) are totally honest with the country? Instead of making the situation worse, the judiciary is helping the country in developing integrity and responsibility towards citizens, guaranteeing the enforcement of their fundamental rights and constitutional rights as promised in the Constitution of the Islamic Republic of Pakistan, 1973.A developed country like the U.S which only requires checks and balances for its smooth running can afford to apply and abide by such a doctrine but where a country like Pakistan is being dictated by the military for the past 10 years, it is better for someone to take upon him/her self the responsibility of providing justice and who else is better equipped or legally capable to provide justice other than a Judge of the Supreme Court of Pakistan?The recent decision of the Supreme Court of Pakistan regarding the holding of two posts simultaneously by the President i.e. the posts of Chief of Army Staff and the President of Pakistan has taken the general public by surprise (the Supreme Court has held with a majority of 6-3 in favour of the President that he can legally hold the two concerned posts at the same time) because the intensity and frequency of judicially active decisions since the past few months had created a strong belief in the general public's mind that the current President would not be allowed to keep both posts simultaneously.Is this decision a product of judicial activism as well or has the government used its sticks against the judiciary to calm its activism down? No matter what explanations the Supreme Court gives in its detailed order, the language of Article 63 of the Constitution of the Islamic Republic of Pakistan is clear and unambiguous. It clearly lays down that a member of Majlis-e-Shoora (the Parliament) cannot be a person who has been in the Civil Services of Pakistan or has acted and worked in a post which is controlled or owned by the government.This decision can also be viewed as judicial activism by the judges by ignoring the express prohibition in Article 63 of the Constitution of the Islamic Republic of Pakistan but this time the judicial activism was in favour of one man at the expense of a nation built up of millions of people.A final verdict upon whether judicial activism is favorable or not can be concluded in making a statement that such activism is favorable for a third world country like Pakistan where justice and equality is not at arms length for the poor. Judicial activism has helped societies all over the world in developing their laws, however such activism should be checked and balanced so that the judiciary does not become the legislature and the interpreter of law. The role of the judiciary is to interpret the law as laid down by the legislature and in doing so it should keep in mind the intention of the legislature as well as the benefits and detriments of the final decision upon the society. Last but not the least, the actions and activism of the judiciary should replicate the needs of the society and any action taken on behalf of the public should be for the benefit of the public as a whole as opposed to the recent decision of the Supreme Court regarding the holding of two posts simultaneously by the President, which is on the face of it tainted with ohhhnly one person's personal interests.

thanks

yousaf · Post by **yousaf** » Tue Feb 19, 2013 4:13 pm

BAIL LAW SHOULD BE REFORMED

British'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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yousaf · Post by **yousaf** » Tue Feb 19, 2013 4:15 pm

NAKAHNAMA SHOULD BE REFORMED

Pakistan's society is changing fast, but laws are not changing by state according to the society requirements. Courts are bound to the existing laws; and justice cannot achieve by the people due to defects of laws.

For example, in big cities, a large number of family cases are pending for adjudication in family Courts. However, in many cities, for example, in Lahore, Family Courts are built separate from ordinary Courts. How do family Courts quickly decide cases? Here are some suggestions to reduce family litigations or quickly decide family cases.

50-years before, the Muslim Family Laws Ordinance, 1961 had become status of act, which does not amend still. And nakahnama introduced according aforesaid law, which does not fulfill requirements of present day. Here are some suggestions to amend nakahnama as mentioned below:-

1. Name of bridegroom with detail description of his education, profession, property, and monthly income.

2. Name of bride with detail description of her education, profession, property, and monthly income.

3. Whether spouse will live under joint family system, separate or otherwise?

4. To attached complete list of dowry articles with nakahnama, which become part of nakahnama.

5. How do many expenses incurred by bridegroom on bride monthly?

6. Whether bride share her income in house expenses, and what is ratio?

7. Most nakah registrars are not well educated. And some columns of nakahanma are crossed by nakah registrar, which relates to divorce right or other rights of bride. Nakahnama is a public document. Therefore, nakah registrar should be appointed by a legal persons.

8. All columns of nakahnama should be filled by nakah registrar compulsory.

yousaf · Post by **yousaf** » Tue Feb 19, 2013 4:16 pm

JUDICIAL BIAS

Human 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 176

Judicial 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 profession

In 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.

yousaf · Post by **yousaf** » Tue Feb 19, 2013 4:20 pm

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 own

Historical 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

yousaf · Post by **yousaf** » Sun Nov 13, 2016 6:18 pm

thanks

ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

Re: ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS