Suo Standards: The key to the Supreme Court’s success

COURTESY DAWN

Waris Husain

The Supreme Court of Pakistan – File Photo

A visiting delegation from the International Commission of Jurists criticised Pakistan’s Court for exercising suo motu excessively, stating that judicial interventions were seen by some as the court exercising “undue influence.” A representative for the Supreme Court rejected the claim as being based on faulty information, because the rules for suo motu are laid out in Article 184(3) of the Constitution and in case law. However, learned experts inside the country including Asma Jahangir, have asked the court to create a legal standard for the use of suo motu. Though suo motu has been used to remedy several of the nation’s major issues, its practice cannot continue until a legal standard is developed that takes into account all the potential negative aspects of its use.

Classification continued

Classification: Powers of the Government/Legislature to create and protect classes in conformity with the stated objective:

                                                           

1.       Independent Newspapers Corporation (Pvt) Limited v. Chairman Fourth Wage Award 1999 SCMR 1533

We are conscious that the purpose of Newspaper Employees (Conditions of Service) Act,, 1973, is the betterment of the financial condition of the persons employed in the Newspaper Establishment and it should receive beneficent construction but in an interpretative effort to pragmatize this piece of legislation and treat a particular benefit as wages and then fix the rate thereof, the       Wage Board cannot travel beyond the spectrum of  the impact of its decision on the Newspaper Industry, ignore the factors envisaged by section 10 of the Act, which is not exhaustive in character and determinative of all the relevant considerations p regulating the fixation of wages. The Board has to act objectively and not subjectively. We are, therefore, unable to accept grant of so large a width to the powers of the Board to brand such a benefit as wages.

Lawyering the law: A rebuttal

It seems that some people are more interested in their own agendas and axes to grind than any real discussion on history or facts. The context of this ninth pillar of wisdom is an article by by Urooj Zia in Pakistan Today.

1973 Constitution is theocratic in form and substance

By Yasser Latif Hamdani (courtesy Daily Times)

While there is no consensus on whether Pakistan was envisaged as an Islamic or a secular state, there is remarkable consensus that Pakistan was not meant by the founding fathers to be a theocracy. Indeed, most Pakistanis insist that Pakistan was not envisaged as and is not a theocratic state but as a modern Islamic democratic state.

Ehteram-e-Ramadan Ordinance is unIslamic and unconstitutional

COMMENT: There is no compulsion in religion —Yasser Latif Hamdani

A thousand years before the age of enlightenment and before the idea of religious toleration took root in the west, the Holy Quran said, “There is no compulsion in religion” (2:256).

It is often forgotten, when we speak of Islam, that Islam’s approach was reformist. For example, the punishment for stoning to death for adultery existed long before Islam but Islam set the bar for evidence so high that it became virtually impossible for anyone to be stoned for adultery. For slavery, Islam created obligations on slave owners in terms of treatment of slaves and encouraged slaves to be mandatorily freed on the flimsiest excuse. Similarly, Islam strictly regulated the prevalent practice of polygamy by limiting it and further setting a standard for equal treatment that is hard to achieve.

Now our mullahs have forsaken substance and adopted form. Whereas Islam sought to civilise a tribal society, our mullahs’ take is to tribalise all civilisation. Where Islam sought to regulate polygamy and eradicate its social evil, our mullahs’ take is that marrying more than once is a necessary part of faith — ironically a Mormon idea. Whereas Islam humanised and rationalised existing customs and tribal traditions such as rajm (stoning) by introducing strict proof, our mullahs want to de-humanise all laws and while Islam spoke of equality of all mankind and religious freedom at a time when these concepts were unheard of, our mullahs want to end equality and religious freedom in the information age.

The closest precedent for Ehteram-e-Ramzan Ordinance comes not from Islam but from Christian fundamentalists in the Midwest who had enacted the ‘Blue Laws’ that forbade selling of non-essentials on Sunday out of respect for the Christian Sabbath

Harmonious construction of statutes

1.      Kamaluddin Qureshi v. Ali International Co. 2009 C L D 784

Discussion in para 10

While interpreting the statutes an interpretation leading to conflicting judgments is to be avoided as held in Hafiz Abdul Waheed v. Mrs. Asrna Jehangir and another PLD 2004 SC 219. The intention of the law maker is always gathered by reading the statutes as a whole and meanings are given to each and every word of the whole statute by adopting a harmonious construction. In this regard, the principles for interpretation have been settled by this Court in the cases of Messrs Mehboob Industries Ltd. v. Pakistan Industrial Credit and Investment Corporation Ltd. 1988 CLC 866, Shahid Nabi Malik and another v. Chief Election Commissioner and 7 others PLD 1997 SC 32, M. Aslam Khaki v. Muhammad Hashim PLD 2000 SC 225, Mysore Minerals Limited v. Commissioner of Income Tax 2000 PTD 1486, Hafeezullah v. Abdul Latif PLD 2002 Kar: 457, Hafiz Abdul Waheed v. Mrs. Asma Jehangir PLD 2004 SC 219, 7afar All Khan and another v. Government of N.W.F.-P through Chief Secretary and others PLD 2004 Peshawar 263, D. G. Khan Cement Company Limited and others v. Federation of Pakistan and others 2004 SCMR 456, Muhammad Abbas Gujjar v. District Returning Officer/District Judge Sheikhupura and 2 others 2004 CLC 1559, Shoukat Baig v. Shahid Jamil PLD 2005 SC 530.

Debt recovery law faces due-process challenge in Pakistan

By Yasser Latif Hamdani

B.N. Rau, Constitutional Adviser to the Constituent Assembly that was drafting the Constitution of India (“the Indian Constitution”), travelled to the U.S.A, where he met U.S. Supreme Court Justice Felix Frankfurter. The latter advised him against including the phrase ‘due process’ in the Indian Constitution, and hence, in 1949, the phrase was not included in the text of the Indian Constitution. Indian courts, however, repeatedly located ‘due process’ in Article 14 of the Indian Constitution instead. One could, without exaggeration, describe the Pakistani legal tradition as India-lite (with a flavour of Islam). The Constitutions of 1956, 1962, and 1973 all avoided the use of the term ‘due process’ in keeping with the Indian tradition. In 2010, when Pakistan’s Parliament passed the Eighteenth Amendment to the Pakistan’s Constitution, a new article - Article 10-A - was introduced. It reads:

“Article 10-A: For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to fair trial and due process.”

Read more here.