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Reforming the Judiciary in Pakistan
REFORMING THE JUDICIARY IN PAKISTAN Asia Report N°160 – 16 October 2008 TABLE OF CONTENTS EXECUTIVE SUMMARY AND RECOMMENDATIONS................................................. i I. INTRODUCTION ............................................................................................................. 1 II. BACKGROUND................................................................................................................ 3 A. ISLAMISING THE POLITY ..............................................................................................................3 B. VALIDATING MILITARY INTERVENTIONS .....................................................................................3 C. DEMOCRATIC TRANSITION AND JUDICIAL REFORM......................................................................5 III. ISLAMISING THE LEGAL SYSTEM: INSTITUTIONALISED DISCRIMINATION.......................................................................................................... 6 A. THE BLASPHEMY LAW.................................................................................................................6 B. TARGETING AHMADIS..................................................................................................................8 C. WOMEN AND THE HUDOOD ORDINANCES ..................................................................................10 D. THE FEDERAL SHARIAT COURT .................................................................................................11 IV. RESTORING THE RULE OF LAW ........................................................................... -
Building Judicial Independence in Pakistan
BUILDING JUDICIAL INDEPENDENCE IN PAKISTAN 10 November 2004 Asia Report N°86 Islamabad/Brussels TABLE OF CONTENTS EXECUTIVE SUMMARY AND RECOMMENDATIONS................................................. i I. INTRODUCTION .......................................................................................................... 1 II. THE STRUCTURE AND HISTORY OF PAKISTAN'S JUDICIARY.................... 2 A. THE STRUCTURE OF PAKISTAN'S JUDICIARY ............................................................................2 B. COURTS AND POLITICS: PRE-1999 ENTANGLEMENTS.........................................................3 C. THE SUPREME COURT AND THE 12 OCTOBER 1999 COUP ..................................................5 III. JUDICIAL APPOINTMENTS AND PROMOTIONS ............................................... 6 A. THE CONSTITUTIONAL FRAMEWORK.....................................................................................6 B. APPOINTMENTS AND PROMOTIONS IN PRACTICE..................................................................8 C. REFORMING THE APPOINTMENT AND PROMOTION OF JUDGES ...........................................11 IV. THE REMOVAL OF JUDGES................................................................................... 12 A. MEANS OF REMOVING JUDGES............................................................................................12 B. REFORMING REMOVALS AND STEMMING CORRUPTION.......................................................13 C. "ADDITIONAL" HIGH COURT JUDGES ..................................................................................14 -
P L D 2007 Supreme Court 202 [Shariat Appellate Jurisdiction
P L D 2007 Supreme Court 202 [Shariat Appellate Jurisdiction] Present: Abdul Hameed Dogar, Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Dr. Allama Khalid Mahmood and Dr. Rashid Ahmed Jullundhari, JJ NAZEER alias WAZEER---Appellant Versus THE STATE---Respondent Criminal Appeal No.53(S) of 2001, decided on 18th October, 2006. (On appeal from the judgment of Federal Shariat Court, dated 8-2-2001 passed in Criminal Appeal No.128/I of 2000 with M.R.41/I of 2000). (a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--- ----S.10(3)---Penal Code (XLV of 1860), Ss.302(b) & 201---Juvenile Justice System Ordinance (XXII of 2000), S.12---Oaths Act (X of 1873), S.5---Constitution of Pakistan (1973), Art. 203- F(2-B)---Leave to appeal was granted by Supreme Court to consider; whether Juvenile Justice System Ordinance, 2000 was applicable to the case; whether judicial confession made on oath could be used against the accused for sustaining death sentence; and whether such confession made on oath was admissible in evidence and could have been acted upon. (b) Criminal Procedure Code (V of 1898)--- --Ss. 164 & 364---Oaths Act (X of 1873), S.5---Judicial confession---Administering of oath to accused---Scope---Contention that confessional statement recorded on oath, if causes no prejudice or injustice to accused is admissible in evidence---Validity---Provisions of Ss.164 and 364, Cr.P.C. invariably apply to all sorts of statements---Confessional statement recorded under S.164, Cr.P.C. on oath is violative of S.5 of Oaths Act, 1873, which prohibits -
Judgesʼ Library Monthly Newsletter
JUDGES’ LIBRARY MONTHLY NEWSLETTER Vol: 2 Issue: 1 January, 2014 LIST OF BOOKS FOR THE MONTH OF JANUARY, A JUDGE SPEAKS OUT 2014 AJMAL MIAN OXFORD UNIVERSITY PRESS, THE GOLDEN WARRIOR 2004 (THREE COPIES) LAWRENCE JAMES Oxford University Press, New Delhi, ABACUS, 2005` (ONE COPY) 2004. Hardbound. Book Condition: As During the 1920s—in the aftermath of New. New. Contents Preface. 1. The the Arab revolt against Britain—T. E. early years. 2. England. 3. The legal Lawrence gained global attention, both profession. 4. The High Court of Sindh. for his involvement in the Middle Eastern 5. Acting chief justice high court of anti-imperialist movement, and for his Balochistan. 6. Transfer back to the vivid and sensational writings about his high court of Sindh. 7. The chief justice experiences. Following World War I, his high court of Sindh. 8. Elevation to the appointment as an advisor to Winston Supreme Court of Pakistan. 9. Being Churchill—nearly simultaneous with the superseded. 10. The Judges case. 11. release of an American documentary President's reference no. 2. 12. Judicial about the revolt—further charged the T. crises. 13. The chief justice of Pakistan. E. Lawrence mania. Despite the 14. Final thoughts. Appendices. Notes. emergence of a whole new set of Glossary. Index. A Judge Speaks Out problems in the Middle East, and fueled provides some interesting anecdotes by the classic status of the epic movie and poignant moments from his life Lawrence of Arabia, the T. E. Lawrence his youth his migration at partition mystique continues to fascinate. from Delhi to Karachi in 1947 and the Controversial and provocative, this acclimatization of his family there to revised and updated edition of Lawrence his subsequent entry into the legal James’s acclaimed biography penetrates profession in 1957. -
2004 SCMR 1824.Pdf
TaxHelpline Case No. 153 of 2004 Supreme Court of Pakistan Cr. Petitions Nos.21 and 22/K of 2003, heard on 13th April, 2004 Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ Akhlaq Ahmed Siddiqui, Advocate-on-Record for the Petitioner. M. Ilyas Khan, Advocate Supreme Court and Ms. Wajahat Niaz, Advocate-on-Record for Respondents THE STATE through Prosecutor-General, National Accountability Bureau---Petitioner Vs Agha WAZIR ABBAS and another---Respondents ORDER NAZIM HUSSAIN SIDDIQUI, C J.-----The Stale through Prosecutor-General, National Accountability Bureau (NAB), petitioner (in both petitions) has impugned the judgment, dated 8- 2-2003 of a learned Division Bench, High Court of Sindh, Karachi, whereby Criminal Accountability Appeals Nos.31 and 32 of 2002 were allowed and the respondents in both petitions were acquitted of the Reference filed against them, under section 10 of the National Accountability Bureau Ordinance, 1999 and the sentences of seven years' R.I. and fine of Rs.25,00,000 each or in default thereof three years' S.I. and disqualification for a period of ten years from holding any representative office/office in the service of Pakistan, were set aside and they were ordered to be released forthwith, if not required in any other case. 2. The prosecution case against respondent Agha Wazir Abbas, an Assistant Excise and Taxation Officer in the Excise Department, Government of Sindh, Karachi and respondent Abdul Hameed, Manager of Messrs Standard Wine Company (Pvt.) Ltd. was that they along with the absconding accused, namely, Riaz Hassan Khoso, Abdul Razzak Abbasi, Asif Ikhlaq Ahmed and Saleh Muhammad Rahu were guilty of forging import and transport permits, evasion of vend fee and fee of cess charged on transport permits for the disposal of liquor, thereby caused loss of Rs.38,287,290 to the public exchequer. -
1991 S C M R 703 Present: Zaffar Hussain Mirza and Ajmal Mian, JJ
1991 S C M R 703 Present: Zaffar Hussain Mirza and Ajmal Mian, JJ MUHAMMAD SAJJAD HUSSAIN ---Appellant versus MUHAMMAD ANWAR HUSSAIN ---Respondent Civil Appeal No.361-K of 1990, decided on 16th December, 1990. (From the judgment, dated 29-11-1988 of the High Court of Sindh, Karachi, passed in First Appeal No.42 of 1981). (a) Benami transaction--- ---- Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to consider the question, whether the two Courts below had misread the evidence on record or omitted to take into consideration material evidence and whether they failed to consider the primary and most important question as to the source of money for the purchase of suit house. (b) Constitution or Pakistan (1973)--- ----Art. 185---Civil Procedure Code (V of 1908), 5.100---Appeal to Supreme Court---Concurrent finding of fact of two Courts below---Supreme Court when can interfere. When the appeal in hand is not an appeal under section 100 of the C.P.C., Supreme Court is not precluded to examine the concurrent finding of fact. It is true that while considering the question of grant of leave to appeal against a judgment, Supreme Court declines to grant leave to app6al against a concurrent finding of fact unless it is demonstrated that the finding is perverse or is based on misreading of evidence or contrary to the evidence on record. However, once leave is granted on a question which involves appraisal of evidence, Supreme Court does examine the correctness of the concurrent Finding of fact recorded by the two Courts below and it sets aside if it is found that the same is based on misreading of evidence or is contrary to evidence. -
The Feudal Tentacles: Is Feudalism Dead
Pakistan Perspectives Vol. 21, No.2, July-December 2016 Study of the Emergency Rule in Pakistan, 2007 Khan Faqir & Fakhrul Islam Abstract Some of the steps of public interest litigation that the judiciary took in 2007 were considered as a threat to the military government of Pervez Musharraf. He dismissed the Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, on the charges of corruption. This presidential move was not against the chief justice of Pakistan but against the judiciary. The executive intent to tarnish and erode judiciary’s image, integrity and authority was countered by a countrywide movement for the restoration of judiciary. A consolidated struggle of the bar and the bench lead to judicial revivalism in Pakistan. ______ Historical background Authoritarianism as a colonial legacy was incorporated in the political system of both Pakistan and India. From the very beginning India quite successfully tried to democratise itself. There ‘the rule of law was ever bent to subserve either executive action in the administration or the will of dominant elements of society’. On the other hand, Pakistan failed to make a worthwhile change to democratic rule after emerging from the debris of British colonialism. The colonial state was quickly replaced by authoritarian rulers, whether civilian or military. History of Pakistan has been defined by uneasy relationships between state institutions and civil society. In its executive-dominated state, the superior courts in particular have played unusually important part in determining the country’s political fate.1 The conflict between Pakistan’s executive orders and judicial authorities dates back to the era of Liaquat Ali Khan when the country was in its teething years. -
The "Chaudhry Court": Deconstructing the "Judicialization of Politics" in Pakistan
Washington International Law Journal Volume 25 Number 3 Asian Courts and the Constitutional Politics of the Twenty-First Century 6-1-2016 The "Chaudhry Court": Deconstructing the "Judicialization of Politics" in Pakistan Moeen H. Cheema Follow this and additional works at: https://digitalcommons.law.uw.edu/wilj Part of the Comparative and Foreign Law Commons, Constitutional Law Commons, and the Judges Commons Recommended Citation Moeen H. Cheema, The "Chaudhry Court": Deconstructing the "Judicialization of Politics" in Pakistan, 25 Wash. L. Rev. 447 (2016). Available at: https://digitalcommons.law.uw.edu/wilj/vol25/iss3/4 This Article is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington International Law Journal by an authorized editor of UW Law Digital Commons. For more information, please contact [email protected]. Compilation © 2016 Washington International Law Journal Association THE “CHAUDHRY COURT”: DECONSTRUCTING THE “JUDICIALIZATION OF POLITICS” IN PAKISTAN Moeen H. Cheema† Abstract: The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry (2005–2013). This era in Pakistan’s judicial history was also marked by great controversy as the court faced charges that it had engaged in “judicial activism,” acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. -
Defining Shariʿa the Politics of Islamic Judicial Review by Shoaib
Defining Shariʿa The Politics of Islamic Judicial Review By Shoaib A. Ghias A dissertation submitted in partial satisfaction of the Requirements for the degree of Doctor of Philosophy in Jurisprudence and Social Policy in the Graduate Division of the University of California, Berkeley Committee in Charge: Professor Malcolm M. Feeley, Chair Professor Martin M. Shapiro Professor Asad Q. Ahmed Summer 2015 Defining Shariʿa The Politics of Islamic Judicial Review © 2015 By Shoaib A. Ghias Abstract Defining Shariʿa: The Politics of Islamic Judicial Review by Shoaib A. Ghias Doctor of Philosophy in Jurisprudence and Social Policy University of California, Berkeley Professor Malcolm M. Feeley, Chair Since the Islamic resurgence of the 1970s, many Muslim postcolonial countries have established and empowered constitutional courts to declare laws conflicting with shariʿa as unconstitutional. The central question explored in this dissertation is whether and to what extent constitutional doctrine developed in shariʿa review is contingent on the ruling regime or represents lasting trends in interpretations of shariʿa. Using the case of Pakistan, this dissertation contends that the long-term discursive trends in shariʿa are determined in the religio-political space and only reflected in state law through the interaction of shariʿa politics, regime politics, and judicial politics. The research is based on materials gathered during fieldwork in Pakistan and datasets of Federal Shariat Court and Supreme Court cases and judges. In particular, the dissertation offers a political-institutional framework to study shariʿa review in a British postcolonial court system through exploring the role of professional and scholar judges, the discretion of the chief justice, the system of judicial appointments and tenure, and the political structure of appeal that combine to make courts agents of the political regime. -
Volunteering, Governance and Leadership
Journal of Public Administration and Governance ISSN 2161-7104 2012, Vol. 2, No. 3 Federalism in Pakistan during Musharraf Regime Ghulam Ali Lecturer Government Degree College Chowk Azam (Layyah) M Phil Scholar, Department of Political Science, The Islamia University of Bahawalpur Prof. Dr. Razia Musarrat (Corresponding author) Chairperson, Department of Political Science, The Islamia University of Bahawalpur Email: [email protected] Muhammad Salman Azhar Department of Management Sciences The Islamia University of Bahawalpur Received:July 07, 2012 Accepted:September 25, 2012 DOI:10.5296/jpag.v2i3.3209 Abstract After eleven years of democratic rule Pakistan once again went under military regime when Pervaiz Musharraf imposed emergency in the state by ousting the then elected Prime Minister Mian Nawaz Sharif from his office and started ruling the country with the help of Military junta. This time military stepped in as an institution due to the wrong deeds of politicians. Pervaiz Musharraf declared himself Chief Executive of the state and tried to fulfill his own agenda. He amended the anti terrorism act to punish Nawaz Sharif. Basic pillar of federalism the judiciary remained under fire throughout his regime and Chief Justice of Pakistan was deposed from the office. Political activities and parties were banned. Powers were centralized in the name of devolution of powers. Constitution was abandoned and LFO was introduced to provide victory to the King’s party in an engineered elections. Musharraf jumped into war against terrorism and the whole country was facing bomb blasts and attacks of militants on official institutions of the state. Keywords: Federalism, constitution, election, terrorism, military 171 www.macrothink.org/jpag Journal of Public Administration and Governance ISSN 2161-7104 2012, Vol. -
P L D 2004 Supreme Court 394 Present: Nazim Hussain Siddiqui
P L D 2004 Supreme Court 394 Present: Nazim Hussain Siddiqui, C.J., Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ KARL JOHN JOSEPH---Petitioner Versus THE STATE---Respondent Criminal Petition for Leave to Appeal No. 108-K of 2003, decided on 6th February, 2004. (On appeal from the judgment/order of the High Court of Sindh at Karachi, dated 18-12-2003, passed in Criminal Appeal No.198 of 2003). (a) Control of Narcotic Substances Act (XXV of 1997)----- ----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Petition for leave to appeal---Explanation furnished by the prosecution being convincing and natural, non-joining of private persons as Mashirs of recovery was of no consequence---Case of accused was distinguishable from that of acquitted co-accused as according to prosecution version the boat from which "Charas" was recovered belonged to the accused and not to the said co-accused---High Court had considered the case in its proper perspective without any misreading or non-reading of the material and the impugned judgment was- based on proper appreciation of facts and law---Requirement-of search warrant could be dispensed with if the same could not be possibly obtained from the Court before conducting the search ---A.N.F. Officials, in the circumstances of the case, could not obtain the search warrants from the Court and the complainant, therefore, was competent to search the boat without search warrant---Leave to appeal was refused to accused in circumstances. Fida Jan v. The State 2001 SCMR 36 ref. (b) Control of Narcotic Substances Act (XXV of 1997)-- ----S 20---Issuance of search warrants---Provisions of S.20 of the Control of Narcotic Substances Act, 1997, being directory in nature, non-compliance thereof cannot be considered a strong ground for making the trial of accused bad in the eye of law. -
IN the SUPREME COURT of PAKISTAN (Original Jurisdiction)
IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction). PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Javed Iqbal Mr. Justice Sardar Muhammad Raza Khan Mr. Justice Khalil-ur-Rehman Ramday Mr. Justice Mian Shakirullah Jan Mr. Justice Tassaduq Hussain Jillani Mr. Justice Nasir-ul-Mulk Mr. Justice Raja Fayyaz Ahmed Mr. Justice Ch. Ijaz Ahmed Mr. Justice Ghulam Rabbani Mr. Justice Sarmad Jalal Osmany Mr. Justice Muhammad Sair Ali Mr. Justice Mahmood Akhtar Shahid Siddiqui Mr. Justice Jawwad S. Khawaja. CONSTITUTION PETITION NO. 09 OF 2009 Sindh High Court Bar Association through its Secretary. ….PETITIONER CONSTITUTION PETITION NO. 08 OF 2009 Nadeem Ahmed Advocate ….PETITIONER VERSUS Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others. ….RESPONDENTS For the petitioner: Mr. Hamid Khan, Sr. ASC. (Const.P.09/2009) Mr. Rashid A. Razvi, ASC. Mr. M. S. Khattak, AOR Assisted by M/s Waqar Rana, Waheed Khalid Khan & Haq Nawaz Talpur, Advocates. For the petitioner: Mr. Muhammad Akram Sheikh, Sr. ASC. (Const.P.08/2009) Assisted by Barristers Ms Natalya Kamal & Syed Shehryar, Advocates 2 For respondent No.1 Sardar Muhammad Latif Khan Khosa Attorney General for Pakistan. Agha Tariq Mehmood Khan, DAG Mr. Shah Khawar, DAG. Ch. Akhtar Ali, AOR. For respondent No.2. Mr. Muhammad Yousaf Leghari, A.G.Sindh. Raja Abdul Ghafoor, AOR. For respondent Nos.3 & 4. Nemo. Respondent No.5. Not represented. Dates of hearing: 20th to 24th and 27th to 31st July, 2009. JUDGEMENT IFTIKHAR MUHAMMAD CHAUDHRY, CJ.- The above Constitutional Petitions bearing Nos. 9 of 2009 and 8 of 2009 involve common questions of facts and law and are disposed of by this single judgment.