US Supreme Court Ruling and the precedent for the world (especially Pakistan)

By Yasser Latif Hamdani

The Supreme Court of the United States ("SCOTUS") has ruled that Obamacare is constitutional. The  "Court held that the individual mandate, which requires that virtually all Americans either obtain health insurance or pay a penalty by 2014, is constitutional."

This is no doubt a historic decision for the US and for President Obama. The SCOTUS ruled that the Congress had wide powers under the commerce clause but it upheld the law under taxing power of the Congress i.e. the penalty to be imposed is a tax against not paying for health insurance.  Indeed this would have a major impact on the impending elections which the sisterblog of this website http://2012electionsus.blogspot.com/ will be looking at in some detail in the coming future.

However my interest - as a Pakistani lawyer- is in the persuasive precedent this historic ruling sets for the rest of the world and in particular Pakistan and also Egypt, the two Muslim majority states also grappling with the issue of judicial overreach at the moment. In Pakistan a democratically elected and relatively secular government has been the direct victim of judicial overreach. Chief Justice of Pakistan, Chaudhry Iftikhar, has disqualified the former Prime Minister, Mr. Yusuf Raza Gilani for not initiating proceedings against President Asif Ali Zardari despite the fact that such an action is constitutionally barred in clear language of the constitution. In Egypt a secular judiciary has thrown out an Islamist parliament.
 

Persistence of Judicial Power

The past two weeks have seen a lot of political news which has been generated by constitutional courts. In Pakistan we faced the full brunt of judicial tyranny when the Chief Justice dismissed the elected Prime Minister of the country. In Egypt, the Constitutional Court turned out the parliament. In the US, Obama's health care faces severe judicial scrutiny which might result in the clipping of Congressional Power. This article by the syndicated columnist Juliette Kayyem says it all.

This is hardly a week when we need to be reminded that judges, particularly Supreme Court justices, have a profound impact on politics. While the current court may seem extreme in its willingness to enter the political fray on immigration and health care, that is not new: High courts around the world have been wreaking havoc on their countries' political systems for a long time.

Process of Appointment of Superior Judiciary in Pakistan Part II

By Zeeshan Zafar Hashmi

The primary argument against the procedure of appointment of the superior judiciary as laid out in the Al-Jehad Trust case was that it placed too much power in the hands of the Chief Justice of Pakistan. Since the consultation of the Chief Justice was considered as binding, it was thought that this increased the chances of a Chief Justice exercising his power to appoint judges arbitrarily rather than having accord to qualifications such as seniority.

Furthermore, it was argued that the appointment procedure reduced the role of the executive to that of a rubber stamp, as the President’s reasons for rejecting a nominee of the chief justice could ultimately be struck down by the Court under the aegis of the Chief Justice. This did not seem to be resulting in an “efficient” operation of the constitution, in the words of British economist Walter Bagehot.