Stories about judiciary

Judicial activism and democracy

Recently in the backdrop of the ‘memogate’ controversy, the honourable apex court hearing a petition regarding the possible removal of the ISI chief and the army chief sought “assurances” from the government that the two would not be removed. Some would think that this is an example of one pillar of state, the judiciary, overstepping its boundaries and encroaching on the mandate of the executive. In Yale Law Professor Owen M Fiss’s essay The Right Degree of Independence, which deals with the idea of political insularity for the judiciary, an independent judiciary acts as a “countervailing force within a larger ...

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The limits of judicial review

The Supreme Court of Pakistan seems to be arrogating power to itself while targeting the executive. The problem here is is two-fold. The first issue is one of judicial review, and the limits of that tactic. The Supreme Court has asked the attorney general whether the government intended to dismiss the chief of Army staff and the director general ISI, and when answered in the negative, asked for a written response from the government to the same effect. This translates as a written guarantee that both the aforementioned figures will not be relieved of their posts. The prerogative for these actions in ...

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The president’s immunity

The question of whether President Asif Ali Zardari enjoys immunity against criminal or civil proceedings requires an analysis of Article 248 of the Constitution. This states that: Article 248 (1) : The president shall not be answerable to any court….for any act done or purported to be done in the exercise of those powers and performance of those functions. The article goes on to state that: Article 248 (2): No criminal proceedings whatsoever shall be instituted or continued against the president or a governor in any court during his term of office. Article 248(3): No process for the arrest or imprisonment of the ...

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Why democracy should stay

Pakistan’s administrative setup was modeled after the British system: an elected legislative assembly was to give form to an executive government headed by the prime minister. The president was to hold a symbolic role while the judiciary was set to be independent. It remains a reality that despite the narrow scope in the electorate, Pakistan was a product of democracy, and will only thrive and succeed if it is democratic in structure and spirit. The continuous hampering course that Pakistan is passing through is not helping it become a truly democratic nation which can grow strong economically and deliver welfare to ...

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Musharraf’s politics: A Pakistani love affair

Enough has been written on APML’s Karachi jalsa on January 8. Much has been said about the not-so-intelligent choice of venue, drawing immediate comparisons to the mammoth PTI crowd just two weeks earlier. Perhaps its time to dwell on why there were less supporters (read 8,000 – 10,000) in the ground. General (retd) Pervez Musharraf is undoubtedly among the few love affairs of the Pakistani public. At a certain time in recent history, millions of us worshipped him, liked and loved him, defended his actions and chanted his slogan ‘Sab se Pehle Pakistan’. We were proud that we were led by ...

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Inquiries in NICL scam

The judiciary has been walking the tightrope with the doctrine of “judicial restraint” in one hand and the desire to shake off corruption in the other. The latest order in the NICL scam shows that the judiciary is inclined not to get bogged down in the balancing act and get on with pursuing corruption cases. During the proceedings, leading to the detailed order, Chief Justice Iftikhar Mohammad Chaudhry had conveyed his displeasure to the prime minister through the attorney general over the transfer of the investigators of the scam. The three-judge bench, headed by the Chief Justice, had repeated its ...

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The Supreme Court can do better

The whole nation looks to the honourable Supreme Court as the last resort for provision of justice and redressal of longstanding grievances. Ordinarily, legal cases pass through a long arduous process of litigation in lower courts, especially in civil matters, before they reach the Supreme Court for the last round of litigation. It is no secret that the lower judiciary, functioning under the direct supervision of district judges, is by and large, desperately inadequate in dealing with jurisdiction, legal rights, application of the law in its totality to given cases and conduct of evidence. Lacunas are left in orders and ...

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The futility of justice: Was the movement in vain?

The lawyers’ movement that began three years ago was supposed to restore justice and fairness to the Pakistani judicial system with the reinstatement of Chief Justice Iftikhar Muhammad Chaudhry, who had been so unceremoniously dumped from his position by then president, General Pervez Musharraf. But, while Chaudhry returned to his former office, justice it seems got lost somewhere along the way. After nine torturous years, Mukhtaran Mai, who was gang raped and assaulted on the orders of the village council of where she lived, witnessed five of the six accused freed by the Supreme Court (SC). A desperate end to a harrowing ...

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ZAB case: Revisiting history is necessary

The government’s decision to file a judicial review reference to reopen the case of Zulfikar Ali Bhutto, in which he was convicted of murder and sentenced to hang, has come under much opprobrium from various quarters. There is a view that reopening this 32-year old case is basically just a ploy to divert attention from the various follies that this government has committed, ranging from the fiasco that was the National Reconciliation Ordinance, to the botched-up restoration of the judiciary to the various corruption scandals that have dogged the Pakistan Peoples Party’s (PPP) fourth dispensation in power. However, whatever side of ...

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Choose democracy, not the HEC

Criticism of the government’s decisions is becoming more of a habit than a reformative concern among our so called experts. As far as media campaigns to save the Higher Education Commission (HEC) are concerned, some would even suggest that democracy is being slaughtered at the altar of activism. Since the federal government’s announcement to devolve HEC, there has been a plethora of articles, blogs, letters, and comments, most of them supportive of the commission’s authority in matters relating to higher education. Few, if any, have bothered to objectively and critically weigh the HEC’s success against its failures as a central ...

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