Tag Archives: domain

Rough justice

By Asad Jamal

June 2012 will go down in the legal and political history of Pakistan as a watershed month as the Supreme Court (SC) of Pakistan intruded not only the domain of other state institutions and violated the code of conduct for the superior judiciary but also disregarded some of its own recent and not-so recent pronouncements.

It was the June 19 decision to disqualify Yousuf Raza Gilani as a member of the National Assembly (NA) and as Prime Minister of Pakistan that really stole the limelight. The decision, delivered through a short order which states that the reasons for disqualification will be recorded later, has been criticised on various grounds. The critics of the verdict variously call it legally infirm, an encroachment upon the domain of parliament and other constitutional offices, lacking impartiality and being potentially detrimental to democracy in Pakistan.

On the lack of impartiality first: while the decisions of a court may be debated and questioned, the judges should never lose the appearance of impartiality. In a 2006 speech during the Golden Jubilee celebrations of the SC, Justice Asif Saeed Khosa had said “… independence of judiciary is not an end in itself; it is only a means to the end, and the end for sure is impartiality of judiciary.” Unfortunately, the order for Gilani’s disqualification is a glaring example of the court’s transgression into the jurisdiction of other constitutional offices, if not outright bias.

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CJ Iftikhar Chaudhry should be asked to appear before Parliamentary Committee on Rules of Procedure and Privileges

In the light of recent commentaries by leading Pakistani and international lawyers including but not limited to Asma Jahangir, Justice Markandey Katju [Listen Justice Markandey’s interview at BBC urdu] (Indian Supreme Court), Saroop Ijaz etc, it is evident that Supreme Court of Pakistan has violated not only national constitution but also attacked the very foundation of parliamentary democracy in Pakistan.

Former Indian Supreme Court judge Justice Markandey Katju, writing in The Hindu recently, questioned what he said was the “lack of restraint” on the part of Pakistan’s superior judiciary. Justice Katdue wrote: “In fact, the court and its Chief Justice have been playing to the galleries for long. This has clearly gone overboard and flouted all canons of constitutional jurisprudence”. He said that Article 248, Clause 2 of the Pakistani Constitution very clearly states: “No criminal proceedings whatsoever shall be instituted or continued against the President or governor in any court during his (or her) terms of office”. He then went on to ask that if this is the case, how could a court approach what is a settled provision in the “garb of interpretation”?

The Pakistan Constitution draws its basic structure from Anglo-Saxon laws, which establishes a delicate balance of power among the three organs of the state — the legislature, the executive and the judiciary. However, in recent past, particularly since April 2012, Pakistan’s top judiciary led by Chief Justice Iftikhar Chaudhry has encroached into the elected parliament’s domain. This situation is not only a violation of Pakistan’s constitution but violates privilege of the elected parliament.

In his desire to become a saviour and hero of Pakistan, CJ Chaudhry has become a tool in the hands of politicians and media, and is through his actions and verdicts hurting Pakistan’s very security and stability.

Lawyer Saroop Ijaz writes:

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Intrusion in executive’s domain? Pakistan Supreme Court asks govt to say in writing it will not fire Army & ISI chiefs!?

Govt has no intention of sacking Kayani, Pasha: AG

ISLAMABAD: During the hearing of a petition filed against a possible removal of Chief of Army Staff (COAS) General Ashfaq Pervez Kayani and Director General Inter-Services Intelligence (ISI) Lt-Gen Ahmad Shuja Pasha, the government clarified that it had no intention of sacking the said officials, DawnNews reported.

Attorney General Maulvi Anwarul Haq told the Supreme Court bench hearing the petition that the government had no plans to take such an action.

On the attorney general’s explanation, Chief Justice Iftikhar Mohammad Chaudhry directed him to file a written reply after taking orders on the issue from the government. ….

Read more » DAWN.COM

Is it not time for Gen Kayani to call it quits and take along with him the DG ISI and the air chief?

Time for heads to roll – By Babar Sattar

Excerpt:

OUR military and intelligence agencies stand indicted for being complicit with terror groups and our best defence seems to be to plead incompetence.

Osama’s refuge in the shadows of the Pakistan Military Academy Kakul and his killing without the knowledge or permission of Pakistani authorities have not only raised piercing questions about the country’s willingness to function as a responsible state but also cast fundamental doubts on the ability of our national security apparatus to protect Pakistan against foreign intervention.

An ISPR release after Thursday’s corps commanders’ conference that broke the security establishment’s silence on the Osama operation is mostly gibberish.

While admitting “shortcomings in developing intelligence” on Osama’s presence in Pakistan, it goes on to blow the ISI’s trumpet for extraordinary achievement all around. The commanders feel betrayed by the CIA for not telling the ISI where Bin Laden was hiding.

The release doesn’t say why the military failed to detect foreign choppers and troops in our territory for an hour and 40 minutes. ….

…. In a functional democracy, these gentlemen would be sacked after such a debacle. Unfortunately, national security related decisions in Pakistan fall within the exclusive domain of the military, which jealously guards its turf. But responsibility must accompany such power. And the responsibility for erosion of our international credibility and increased threat to security personnel and citizens from terror networks nestled within Pakistan rests squarely on the military’s shoulder.

Be it a rise in suicide bombing and terror incidents within Pakistan, an increase in US drone strikes in our territory, the Mumbai attacks or the Osama operation, the threat to Pakistan’s interests for being perceived as a pad for terrorist activity and to its citizens as targets of terror has proliferated under Gen Kayani’s watch. Is it not time for Gen Kayani to call it quits and take along with him the DG ISI and the air chief? Shouldn’t these heads roll to account for failing to do their jobs?

With them in the driving seat it might neither be possible to hold a transparent inquiry into the security breaches that led to the Osama operation and its execution without Pakistan’s knowledge nor engage in a rethink of our perverse national security mindset. Can we shed some baggage and create room for untainted faces and ideas?

The concept of sovereignty assumes control over the territory a state claims. We cannot continue to shirk responsibility for the men, material and money transiting in and out of Pakistan and simultaneously wail at the disregard for our sovereignty. It is time to publicly articulate our legitimate security interests linked to the future of Afghanistan and develop a regional consensus around it, instead of vying for the whole hog.

It is time to completely liquidate the jihadi project and cleanse our state machinery of those who believe in its virtue. And it is time to shun the delusions of grandeur and conspiracy that prevent us from realising our potential as a responsible and industrious nation.

Read more : DAWN

Blasphemy and the Islamic way

by Maulana Wahiduddin Khan
Due to some recent events in Pakistan, the issue of blasphemy is again in the news. It is generally held that Islam prescribes capital punishment for those who commit blasphemy; that is, using abusive language against the Prophet of Islam. But this is quite untrue. According to Islam, blasphemy is simply a misuse of freedom and not a cognisable offence; the blasphemer is not liable to incur legal punishment. This kind of law has no basis in Islamic scriptures. If someone uses abusive language against the Prophet, Muslims must take it as a case of misunderstanding, and then try to remove this misunderstanding. They are required to do so by engaging in discussion or by providing the blasphemer with Islamic literature that gives the true image of the Prophet of Islam.
To use abusive language against the Prophet or to praise him are both a matter of one’s own choice. Whatever the choice, it is in God’s domain to pass judgment on it. Muslims have nothing to do in this situation except try to remove the misunderstanding and then leave the rest to God.
If there is such a case – which could be called blasphemy – and in anger one tries to punish the offender, one is simply reacting negatively to the situation. And acting in this way is looked upon with extreme disfavour in Islam. Islam always tries to go to the root cause of any given problem.
When one abuses the Prophet of Islam, it is most probably due to some kind of provocation. Without provocation, this kind of negative attitude is extremely unlikely. That is why the Quran advises Muslims to get at the real reason.

The Quran points to one such root cause behind this kind of act and urges Muslims to try to come to grips with it: “But do not revile those (beings) whom they invoke instead of God, lest they, in their hostility, revile God out of ignorance.” (6:108)
It is on the record that, during the Prophet’s time, there were some non-believers who used to use abusive language against the Prophet of Islam. The Prophet of Islam never suggested any legal punishment for those persons. He simply directed them to one of his companions, Hassan bin Sabit al-Ansari, who would respond to their blasphemous statements and remove their misunderstanding by means of argument.  Islam suggests capital punishment for only one offence, and that is murder.

Read more : The Times of India

“Why democratic system is weak in Pakistan: Causes and Solutions”

by Jamil Hussain Junejo

Executive Summary – Pakistan has been in quest for stable democratic system from its very inception.The process of its democratization has been slow and passive. Its nature has remained fragile. It has been showing high vulnerability towards non democratic interventions. Besides, it has been easily falling prey to non civilian forces. As a result, Pakistan has been continuously failing to offer what a democracy promises. Such pathetic scenario has various reasons behind it at all three levels: State, government and society.

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