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Judicial Immunity of Superior Courts Judges In Judicial Immunity of Superior Courts Judges in Constitutional Framework: A Case Study of Pakistan By Usman Quddus A thesis submitted in partial fulfillment of the requirements for the degree of Ph.D. Law (Department of Law) in the International Islamic University, Islamabad Pakistan 19-SF/PHDLAW/F12 Supervisor: Prof. Dr. Muhammad Munir International Islamic University, Islamabad Pakistan © Usman Quddus 2018 All Rights Reserved ii Table of Contents Acknowledgments ................................................................................................................. viii Executive Summary ................................................................................................................. ix Introduction ............................................................................................................................ xiv CHAPTER ONE ....................................................................................................................... 1 Definition and Historical Development of the Concept of Judicial Immunity .................... 1 1.1. Introduction ............................................................................................................... 1 1.2. Definition and the Concept of Judicial Immunity .................................................. 2 1.3. Policy Considerations for Judicial Immunity with Countervailing Argument ... 7 1.4. Historical Development of Judicial Immunity in the Common Law Jurisdictions .......................................................................................................................... 8 1.4.1. Historical Development in England ................................................................. 8 1.4.2. Historical Development in U.S.A ................................................................... 13 1.5. Judicial Immunity in Civil Law Jurisdictions ...................................................... 19 1.6. Historical Development in Pakistan ...................................................................... 19 1.7. Conclusion ............................................................................................................... 23 CHAPTER TWO .................................................................................................................... 25 Judicial Immunity in the Judicial System of Pakistan ........................................................ 25 2.1 Introduction ............................................................................................................. 25 2.2 Exemption of Superior Courts from Writ Jurisdiction in the Constitution of Islamic Republic of Pakistan .............................................................................................. 26 2.3 Restriction on discussion in Parliament with Respect to Conduct of any Judge of High Court and Supreme Court .................................................................................... 36 2.4 Power of Contempt of the Superior Courts .......................................................... 43 2.5 Rule making powers of the Superior Courts in Pakistan .................................... 52 2.6 Conclusion ............................................................................................................... 57 CHAPTER THREE ................................................................................................................ 59 Appointment and Removal of the Superior Court Judges in Pakistan .............................. 59 3.1. Introduction ............................................................................................................. 59 3.2. Appointment Process of the Superior Judiciary in Pakistan and Judicial Immunity ............................................................................................................................. 61 iii 3.3. Removal through Supreme Judicial Council: It’s Effect on Judicial Immunity 76 3.4. Conclusion ............................................................................................................... 86 CHAPTER FOUR ................................................................................................................... 87 Judicial Immunity in India .................................................................................................... 87 4.1 Introduction ............................................................................................................. 87 4.2 Superior Courts and Writ Jurisdiction in the Constitution of India ................. 88 4.3 Restriction on discussion in Parliament with Respect to Conduct of any Judge of High Court and Supreme Court .................................................................................... 92 4.4 Power of Contempt of the Superior Courts .......................................................... 96 4.5 Rules making power of Superior Courts in the Constitution of India ............... 99 4.6 Conclusion ............................................................................................................. 101 CHAPTER FIVE .................................................................................................................. 103 Appointment and Removal of the Superior Court Judges in India ................................. 103 5.1 Introduction ........................................................................................................... 103 5.2 Appointment .......................................................................................................... 104 5.3 Removal of Judges ................................................................................................ 108 5.4 Conclusion ............................................................................................................. 111 CHAPTER SIX ..................................................................................................................... 113 6.1 Introduction ........................................................................................................... 113 6.2 Judicial Immunity in the Times of Prophet Muhammad (P.B.U.H) ................ 114 6.3 Judicial Immunity in the times of Caliphs following Prophet Muhammad (P.B.U.H) ............................................................................................................................ 121 6.4 Judicial Immunity and Muslim Jurists ............................................................... 125 6.5 Conclusion ............................................................................................................. 131 CHAPTER SEVEN ............................................................................................................... 133 Conclusion and Recommendations ..................................................................................... 133 7.1 Conclusion ............................................................................................................. 133 7.2 Recommendations ................................................................................................. 135 BIBLIOGRAPHY ................................................................................................................. 147 List of Books, Journal, Newspaper & Websites ............................................................. 147 List of cases ........................................................................................................................ 156 iv Annexures .............................................................................................................................. 163 Annex A ............................................................................................................................. 163 The Judicial Officers` Protection Act, 18501 .................................................................. 163 Annex B .............................................................................................................................. 166 Article 199 of the Constitution of Pakistan. Jurisdiction of High Court ......................... 166 Article 68 Constitution of Pakistan. Restriction on Discussion in Majlis-e-Shoora (Parliament)..................................................................................................................... 169 Article 204 of Constitution of Pakistan. Contempt of Court. ......................................... 170 Article 202 of Constitution of Pakistan. Rules of Procedure .......................................... 170 Article 208 Constitution of Pakistan. Officers and Servants of Courts. ......................... 170 Article 175-A Constitution Of Pakistan.Appointment Of Judges to the Supreme Court, High Courts and the Federal Shariat Court.- ................................................................... 171 Article 209 Constitution of Pakistan. Supreme Judicial Council .................................... 176 Annex C ............................................................................................................................. 179 The Judges (Protection) Act, 1985 .................................................................................. 179 Annex D ............................................................................................................................ 181 Article 32 of the Constitution of India. Remedies for Enforcement of Rights Conferred by this Chapter. ...................................................................................................................
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