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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 ........................................................................... -
REFORM OR REPRESSION? Post-Coup Abuses in Pakistan
October 2000 Vol. 12, No. 6 (C) REFORM OR REPRESSION? Post-Coup Abuses in Pakistan I. SUMMARY............................................................................................................................................................2 II. RECOMMENDATIONS.......................................................................................................................................3 To the Government of Pakistan..............................................................................................................................3 To the International Community ............................................................................................................................5 III. BACKGROUND..................................................................................................................................................5 Musharraf‘s Stated Objectives ...............................................................................................................................6 IV. CONSOLIDATION OF MILITARY RULE .......................................................................................................8 Curbs on Judicial Independence.............................................................................................................................8 The Army‘s Role in Governance..........................................................................................................................10 Denial of Freedoms of Assembly and Association ..............................................................................................11 -
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. -
Honour Killing in Pakistan
South Asian Studies A Research Journal of South Asian Studies Vol. 25, No. 2, July-December 2010, pp. 361-411 The Law on Honour Killing: A British Innovation in the Criminal Law of the Indian Subcontinent and its Subsequent Metamorphosis under Pakistan Penal Code Tahir H. Wasti The Islamic College, London ABSTRACT In the Islamic Republic of Pakistan, hundreds of women are killed every year in the name of honour. Such a barbaric and inhuman custom has existed in the subcontinent for many centuries yet under the pre-colonial criminal justice system of India; the perpetrators of such killings were dealt with like the other offenders of murder; without any exception or impunity from prosecution and punishment. However, it was the Indian Penal Code drafted by the British in 1860 that brought in the tradition of treating the offenders of honour killings with leniency and latitude. In 1990, Pakistan introduced its version of ‘Islamic’ criminal law which allowed for compromise between the parties of a murder case. The ‘new law’ reconceptualised the law of culpable homicide and murder in this country. Under the ‘new law’ the offence of murder was not defined as a crime against the legal order of the State but as against the legal heirs of the victim. Since in most honour related crimes the women are killed by their own family members, the new law provided a virtual immunity to the culprits of honour killings. During the past few years, thousands of men and women have been killed in honour-related crimes. This piece of research surveys the history and escalation in honour killings after the enforcement of Islamic criminal law in Pakistan. -
Role of the Supreme Court in the Constitutional and Political
Journal of Politics and Law; Vol. 5, No. 2; 2012 ISSN 1913-9047 E-ISSN 1913-9055 Published by Canadian Center of Science and Education Role of the Supreme Court in the Constitutional and Political Development of Pakistan: History and Prospects Comparative Study of Begum Nusrat Bhutto (1977) and Syed Zafar Ali Shah Case (2000) Fayyaz Ahmad Hussain1 & Abdul Basit Khan2 1 Former Faculty Member, Department of Political Science & International Relations, Bahauddin Zakariya University (BZU), Multan, Pakistan 2 Department of Political Science & International Relations, Government College University, Faisalabad, Pakistan. Correspondence: Abdul Basit Khan, Lecturer, Department of Political Science & International Relations, Government College University, Faisalabad, Pakistan. Tel: 92-300-609-0344. E-mail: [email protected] Received: April 3, 2012 Accepted: April 19, 2012 Online Published: May 11, 2012 doi:10.5539/jpl.v5n2p82 URL: http://dx.doi.org/10.5539/jpl.v5n2p82 Abstract Pakistan has undergone the imposition of Martial Law for quite a few times. On these occasions, the then existing constitutions were either abrogated or held in abeyance and were partially applicable. Invariably these extra constitutional steps were challenged in the courts of law. The historical background of these cases had similarities and dissimilarities; nevertheless irrespective of similarities the courts of law examined these cases in somewhat different manner and from variant angles. Irrespective of the nature of their verdicts in these cases, the same had very serious impact and significant repercussions on the style and development of the political system in Pakistan. The aim of this study is to compare and contrast the background of the imposition of Martial Law in 1977 and military takeover of 1999 alongwith the verdicts of the superior judiciary when the same were challenged and brought before the courts of law. -
Genesis and Evolution of Public Interest Litigation in the Supreme Court of Pakistan: Toward a Dynamic Theory of Judicialization
_28.2_KHAN_ARTICLE 4 (DO NOT DELETE) 2/23/2015 8:15 PM GENESIS AND EVOLUTION OF PUBLIC INTEREST LITIGATION IN THE SUPREME COURT OF PAKISTAN: TOWARD A DYNAMIC THEORY OF JUDICIALIZATION Maryam S. Khan I. INTRODUCTION Judicial activism in South Asia, as well as the unique form of pro-poor litigation known as ―public interest litigation‖ (PIL) on which much of it rests, has received considerable attention in recent years from both South Asian and foreign scholars. The concept of public interest law or PIL is not novel and is often instinctively traced back to the PIL phenomenon of the 1960s in the United States. In recent decades, the American practice has been a notional counterpart of public interest in courts in other constitutional systems. However, the South Asian incarnation of PIL is, in many ways, distinguishable from the Anglo-American experience. Upendra Baxi‘s early critique of the Indian Supreme Court‘s activism in the mid-1980s is the classic statement of the distinctiveness of the Indian genre of PIL. Baxi uses the term ―social action litigation‖ (SAL) to emphasize the very different historical triggers, institutional settings, and conceptual groundings of PIL in the Indian context. The * Oscar R. Ruebhausen South Asia Yale Fellow (Yale Law School), 2010. An earlier draft of this article was presented at the Annual Meeting of the Association of American Law Schools (AALS), 2014, and at the Harvard Institute for Global Law and Policy (IGLP) Workshop in Doha, Qatar, 2014. My deep appreciation to Sudha Setty and Anil Kalhan for their fervent interest in my research and for providing me the opportunity to present through proxy at the AALS due to my inability to personally attend the Annual Meeting. -
Genesis and Evolution of Public Interest Litigation in the Supreme Court of Pakistan: Toward a Dynamic Theory of Judicialization
_28.2_KHAN_ARTICLE 4 (DO NOT DELETE) 3/3/2015 11:48 AM GENESIS AND EVOLUTION OF PUBLIC INTEREST LITIGATION IN THE SUPREME COURT OF PAKISTAN: TOWARD A DYNAMIC THEORY OF JUDICIALIZATION Maryam S. Khan* I. INTRODUCTION Judicial activism in South Asia, as well as the unique form of pro-poor litigation known as ―public interest litigation‖ (PIL) on which much of it rests, has received considerable attention in recent years from both South Asian and foreign scholars. The concept of public interest law or PIL is not novel and is often instinctively traced back to the PIL phenomenon of the 1960s in the United States. In recent decades, the American practice has been a notional counterpart of public interest in courts in other constitutional systems. However, the South Asian incarnation of PIL is, in many ways, distinguishable from the Anglo-American experience. Upendra Baxi‘s early critique of the Indian Supreme Court‘s activism in the mid-1980s is the classic statement of the distinctiveness of the Indian genre of PIL. Baxi uses the term ―social action litigation‖ (SAL) to emphasize the very different historical triggers, institutional settings, and conceptual groundings of PIL in the Indian context. The * Oscar R. Ruebhausen South Asia Yale Fellow (Yale Law School), 2010. An earlier draft of this article was presented at the Annual Meeting of the Association of American Law Schools (AALS), 2014, and at the Harvard Institute for Global Law and Policy (IGLP) Workshop in Doha, Qatar, 2014. My deep appreciation to Sudha Setty and Anil Kalhan for their fervent interest in my research and for providing me the opportunity to present through proxy at the AALS due to my inability to personally attend the Annual Meeting. -
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 ........................................................................... -
General Pervez Musharraf's Executive Assault on Judicial Independence in Pakistan, 35 N.C
NORTH CAROLINA JOURNAL OF INTERNATIONAL LAW AND COMMERCIAL REGULATION Volume 35 | Number 2 Article 7 Winter 2010 State of Emergency: General Pervez Musharraf 's Executive Assault on Judicial Independence in Pakistan Taiyyaba Ahmed Qureshi Follow this and additional works at: http://scholarship.law.unc.edu/ncilj Recommended Citation Taiyyaba A. Qureshi, State of Emergency: General Pervez Musharraf's Executive Assault on Judicial Independence in Pakistan, 35 N.C. J. Int'l L. & Com. Reg. 485 (2009). Available at: http://scholarship.law.unc.edu/ncilj/vol35/iss2/7 This Comments is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Journal of International Law and Commercial Regulation by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. State of Emergency: General Pervez Musharraf 's Executive Assault on Judicial Independence in Pakistan Cover Page Footnote International Law; Commercial Law; Law This comments is available in North Carolina Journal of International Law and Commercial Regulation: http://scholarship.law.unc.edu/ncilj/vol35/iss2/7 State of Emergency: General Pervez Musharraf's Executive Assault on Judicial Independence in Pakistanf I. Introduction ....................................................................... 4 86 II. General Pervez Musharraf s Military Rule ....................... 489 1II. Judicial Independence and Judicial Activism in P akistan .............................................................................. 4 97 A. The Role of the Judiciary in Pakistan's Constitution and Precedents ............................................................. 498 IV. A Weak Foundation: The Supreme Court's Acquiescence to the Article 58(2)(b) Presidential Power. 502 A. Article 58(2)(b): The Presidential Power of Dissolution .................................................................. 502 B. -
Morning Call November 28, 2013 Pakistan Strategy Equities Smooth Transition (Political, Military, Judicial): Confidence Boosters
Morning Call November 28, 2013 Pakistan Strategy Equities Smooth transition (Political, Military, Judicial): Confidence boosters Chief of Pakistan Army Timely transition of Chiefs (Army, Judicial) to boost investor confidence Name Tenure After a massively successful, and highly smooth, political transition in the history of Gen. Sir Frank Walter Aug'47 - Feb'48 Gen. Douglas David Feb'48 - Jan'51 Pakistan in May’13, the two top as well as the most influential positions of the Field Marshal Ayub Khan Jan'51 - Oct'58 country’s esteemed institutions i.e. Military (Pakistan Army) and Judiciary (the Gen. Muhammad Musa Oct'58 - Sep'66 Honorable Supreme Court of Pakistan), have been filled up with no further delays, Gen. Yahya Khan Sep'66 - Dec'71 Gen. Gul Hassan Dec'71 - Mar'72 as were initially feared. This series of smooth flow of democratic transitions should Gen. Tikka Khan Mar'72 - Mar'76 not only boost investor confidence in country’s overall leadership, but also help Gen. Muhammad Zia-ul-Haq Mar'76 - Aug'88 rebuild the war-torn image of the country, we believe. Gen. Mirza Aslam Beg Aug'88 - Aug'91 Gen. Asif Nawaz Janjua Aug'91 - Jan'93 Any impacts or changes expected on country’s political canvas ahead? Gen. Abdul Waheed Jan'93 - Jan'96 Though done at the last minute, Prime Minister Nawaz Sharif's move to appoint Gen. Jehangir Karamat Jan'96 - Oct'98 General Raheel Sharif is largely expected to support country’s democratic forces Gen. Pervez Musharraf Oct'98 - Nov'07 Gen. Ashfaq Parvez Kayani Nov'07 - Nov'13 into politics like his predecessor, General Ashfaq Parvez Kayani, who through his Gen. -
Courting Constitutionalism
COURTING CONSTITUTIONALISM THE POLITICS OF JUDICIAL REVIEW IN PAKISTAN MOEEN H. CHEEMA November, 2018 87,394 words A thesis submitted for the degree of Doctor of Philosophy at The Australian National The Australian National University University. provided by View metadata, citation and similar papers at core.ac.uk CORE brought to you by © Copyright by Moeen H. Cheema, 2018 All Rights Reserved Except where otherwise indicated and duly referenced, this thesis is my original work. Parts of the thesis have been published in identical or similar form in the following articles: - Moeen Cheema, ‘Two Steps Forward One Step Back: the Non-Linear Expansion of Judicial Power in Pakistan’ (2018) 16 International Journal of Constitutional Law 503 - Moeen Cheema, ‘Pakistan: The State of Liberal Democracy’ (2018) 16 International Journal of Constitutional Law 635 - Moeen Cheema, ‘The ‘Chaudhry Court’: Deconstructing the ‘Judicialization of Politics’ in Pakistan’ (2016) 25 Washington International Law Journal 44 - Moeen Cheema, ‘Beyond Beliefs: Deconstructing the Dominant Narratives of the Islamization of Pakistan’s Law’ (2012) 60 American Journal of Comparative Law 875 ------------------------- MOEEN H. CHEEMA 6 November, 2018 2 ACKNOWLEDGEMENTS This thesis has been a labour of love and there are many people without whose help, support and encouragement it would not have been possible. Foremost amongst the people to whom I owe a debt of gratitude is the chair of my supervisory panel, Professor Peter Cane. Peter has always been a source of inspiration and set very exacting standards which, while somewhat intimidating, pushed me to try to produce my best work. Peter’s generosity with his time, constructive feedback and detailed comments enabled me to produce a thesis I can be proud of. -
Elections in Pakistan: New President, Same Old Story
ISAS Brief No. 80 – Date: 11 September 2008 469A Bukit Timah Road #07-01 Tower Block, Singapore 259770 Tel: 6516 6179 / 6516 4239 Fax: 6776 7505 / 6314 5447 Email: [email protected] Website: www.isas.nus.edu.sg Elections in Pakistan – New President, Same Old Story Rajshree Jetly1 Until eight months ago, no one would have predicted that Mr Asif Ali Zardari would become a pivotal figure in Pakistani politics, much less the President of Pakistan. Better known as the controversial spouse of former Prime Minister, Ms Benazir Bhutto, Mr Zardari’s name was tainted with allegations of corruption and linked to extortion and murder. He spent eleven years in jail though none of the charges were proven in court before being bailed out by then- President Pervez Musharraf through the National Reconciliation Ordinance. But he has overcome all odds to be elected Pakistan’s President. Mr Zardari’s election victory was impressive, winning 481 out of 702 Electoral College votes. The other two candidates were Pakistan Muslim League-Nawaz’s (PML-N) Saeeduzzaman Siddiqui, who secured 153 votes and Pakistan Muslim League-Quaid-e- Azam’s (PML-Q) Senator Mushahid Hussain Sayed who garnered 44 votes. A breakdown of the total electoral votes shows that Mr Zardari won convincingly at both the national and provincial levels. He secured 281 out of 436 votes at the national level in both houses of the parliament (of which 10 were declared invalid). In comparison, Mr Siddiqui and Senator Hussain managed only 111 and 34 votes respectively. The Pakistan Peoples Party’s (PPP) strength was further reinforced at the provincial assemblies where its nominee, Mr Zardari, swept all votes in the Sindh assembly, and scored convincing victories in Baluchistan and the North Western Frontier Province (NWFP) over his two rivals.