PAK301 VU Current GDB Spring 2012 Solution

“How do you see Judicial Activism in Pakistan? Post your comments after inferring the above topic. Your comments should NOT exceed from 100 to 120 words.

Closing Date Wednesday, July 11, 2012

Solution:

The SC cannot be the forum to make the final arbitration. It can interpret the constitution but cannot take away the rights of the people

Since its creation, Pakistan witnessed multiple military coup d’états that obstructed the growth of democracy. None of the elected parliaments could complete their term. Either the head of the state or the military dissolved parliament. The then governor-general dissolved the first Constituent Assembly in 1954 when the drafting of the constitution reached a final stage. Tamizuddin Khan, the president of the Constituent Assembly, challenged the governor- general’s action in the Sindh High Court. The Sindh High Court accepted the writ and after a proper hearing declared the action of the governor-general illegal, who appealed against the judgment to the Supreme Court (SC) of Pakistan. The country fell into a deep constitutional crisis. Ignoring protocol, the governor-general reportedly went and met Chief Justice Munir at his residence. The SC in its judgment validated the action of the governor-general under the infamous ‘doctrine of necessity’. The same person had earlier dismissed the prime minister on the ground that he had lost the confidence of the people. It was true that the dismissed prime minister became unpopular in the eastern wing of the country but it was the job of parliament to have a no-confidence vote to remove him from office. The governor-general was supposed to act on the advice of parliament. His successor Iskander Mirza followed the same path. He dismissed Prime Minister Hussain Shaheed Suhrawardy on the pretext that he no longer enjoyed the confidence of the people but did not allow him to test the confidence of parliament. Two years later, the same Iskander Mirza dissolved parliament, abrogated the recently promulgated constitution and handed over power to General Ayub Khan. This marked the beginning of the dismemberment of united Pakistan.

General Ziaul Haq took charge of the country in the backdrop of a mass movement launched by the opposition parties, protesting the rigging of the parliamentary election in 1977. The government of Zulfiqar Ali Bhutto tried to contain the movement by force but that did not help. The movement turned violent and caused large scale destruction of life and property. General Zia seized the opportunity and overthrew the government. Bhutto was detained on the charge of the attempted assassination data copied from vu solutions dot com of Ahmed Raza Kasuri. The Lahore High Court found Bhutto guilty and sentenced him to death. The verdict of was challenged in the SC. The full bench of the SC gave a due hearing and by a narrow margin upheld the verdict. This judgment of the highest court gave rise to controversy, casting a shadow on the independence of the judiciary in Pakistan.

Benazir Bhutto’s government was dismissed by the president in 1996 on the ground that it was corrupt and failed to uphold the rule of law. The dismissal of the government was challenged in the SC, which upheld the decision. The crux of the matter is that people elect members of parliament and the party winning the majority seats becomes eligible to form the government. As long as the party in power commands the confidence of parliament, it has the right to govern the country. In the event the president reserves the authority to dismiss the government on the ground of poor performance or being involved in corruption, it denies the very principle of governance of the people. Should the government fail to perform up to the expectations of the people or drifts away from its commitment, it is the people who should decide the fate of the ruling party in the next election. They will either re-elect the party or give a chance to another party to form the government. In the same vein, the SC cannot be the forum to make the final arbitration. It can interpret the constitution but cannot take away the rights of the people. The elected government represents the majority members of parliament and thereby represents millions of people in the country. The SC, regardless of the depth of knowledge on the law of the land and the constitution, cannot overrule the choice of millions of people. If it does, it will dismiss the very essence of democracy — the government is of the people, by the people and for the people.

The judiciary in Pakistan came under turmoil during the regime of General Pervez Musharraf. In the year 2000, a good number of judges of the high courts and the Supreme Court had to leave because of their refusal to take oath under an ordinance issued by the office of the president. The situation improved after the last parliamentary election. The Chief Justice and judges sacked by the military regime were reinstated. This was a healthy move and people expected that the judiciary would again be the forum of last resort to seek justice.

The SC of Pakistan on June 19, 2012 disqualified Prime Minister Yousaf Raza Gilani, declared his membership of parliament void and declared him ineligible to participate in elections for the next five years. Earlier the SC had found Mr Gilani guilty of contempt of court. The court observed that since no appeal was filed against the judgment, the conviction had attained finality. It noted that the Speaker should not have gone beyond her authority to find faults in the judgment of the apex court.

The issue that has shaken the country and cost Mr Gilani the job of the prime minister centres round the money allegedly transferred to Swiss banks by President Asif Ali Zardari. After the dismissal of Ms Benazir’s government, Mr Zardari was arrested and kept in jail for nearly eight years. The administration could not prove any of the charges of foul play allegedly committed by him and failed to get him convicted in court. Judged in this backdrop, the attempt of the highest judiciary to dismiss the prime minister and thereby his government on the issue involving the president seems untimely. It has added to political instability when the country is facing the wrath of the superpower. People cannot ignore the reality that a government deeply troubled by economic and security problems cannot effectively confront an international challenge. On the other hand, the action of the SC has come as a reminder to the politicians that they do not have the licence to play with the resources of the country. Apart from being accountable to the people, they should conduct themselves to the highest standards. People in Pakistan have now the reason to contend that at last the judiciary is in the pursuit of recovery of their assets siphoned abroad by the powerful elite. The judiciary gave birth to the infamous doctrine of necessity in the past and this did not help the nascent democracy to grow. Successive military dictators took advantage of that, overthrew elected governments and destroyed political institutions. The hope is that the judiciary’s action will not precipitate a crisis that will put the democratic process again in jeopardy. At a time when long-term dictators in the Middle East have acceded to the people’s choice, the process cannot be impossible to reverse in Pakistan. The people of Pakistan deserve democracy and nothing short of democracy will keep them resolved to meet the challenges, be it from the superpower or from across the border.

JUDICIAL ACTIVISM IN PAKISTAN

OUTLINES:
1. Introduction
2. What is Judicial Activism?
3. Origin of Judicial Activism
Marbury Vs Medison case
Macquillun VS Maryland Case
4. Judicial Activism in Pakistan

A. Historical Background
eg. Moulvi Tameez ud din case, Dosso case, Nusrart Bhutto Case
B. Current scenario
5. Is it a Judicial Activism or Judicial Adventurism in Pakistan?
6. Causes of Judicial Activism
a. Mal performance of executive
eg. Sugar crisis, Punjab Bank scam, missing person issue
b. Mal performance of legislature
eg. NRO, 17th amendment, ambiguity in laws
c. Corruption/ No accountability
d. Violation of Fundamental Rights of people
e. Role of strong civil society
7. Repercussions/impacts of Judicial Activism
a. Protection of Fundamental Rights of people
b. Check on extra-constitutional acts of administration
c. Political adventurism
d. Public awareness against injustices

8. Legal status of Judicial Activism
a. Suo moto notices U/A.184(3)
b. Judicial Review Power
c. Supreme Court is guardian of Fundamental Rights of people
d. Precedents..eg USA and India
9. Judicial Activism Vs Parliamentary Sovereignty
10. Conclusion