Congratulations Democratic Pakistan

Pakistan has completed today a peaceful transition from democratically elected government to another through constitutional means and in due course. It is also the second time a legislature has handed over the reins to another legislature, which means that Pakistan now has had 11 years of unbroken national legislature.

Things will only get better. One can only wish a demcoratic Pakistan the best of luck in the future.

Partition of Punjab II : Jinnah's so called Islamic pronouncements

Continuing from last week, we come to Jinnah’s so-called Islamic pronouncements, which matter, at best, is an incidental tangent from the main issue but since it was raised by Mr Shakil Chaudhry in his article (Daily Times, July 26, 2012) , it needs to be addressed. 

The claim that Jinnah was secular needs to be understood before it can be argued for or against. The claim that Jinnah was secular does not necessarily pre-suppose that all utterances of Jinnah the politician were consistently secular, especially when put against secularism as we understand it today. That Jinnah used the Islamic idiom on occasion is a fact and not necessarily an inconvenient fact for those who argue for Jinnah’s secular vision. Substance not form trumps rhetoric.

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.
 

"Pakistani Supreme Court has gone beserk" says Indian SC Justice

By Yasser Latif Hamdani

I have been harping about it for months now.  Now an upstanding Indian justice has said the same thing. I quote:

By Markandey Katju

When I was a student of law in the Allahabad University I had read of the British Constitutional principle ‘The King can do no wrong”. At that time I did not understand the significance of this principle and what it really meant. It was much later, when I was in law practice in the Allahabad High Court that I understood its real significance.

The British were experienced and able administrators. They realized from their own long, historical experience that while everybody should be legally liable for his wrongs and made to face Court proceedings for the same, the person at the apex of the whole Constitutional system must be given total immunity from criminal proceedings, otherwise the system could not function. Hence the King of England must be given total immunity from criminal proceedings. Even if he commits murder, dacoity, theft, or some other crime the King cannot be dragged to Court and made to face a trial.

Chief Justice's terrible decision!

A few hours ago the Supreme Court of Pakistan ruled that Yusuf Raza Gilani stands disqualified under 63(1) g of the Constitution. I have written extensively on this in many of my previous blog posts which may be found on this website. However I'd like to state some basic issues with this judgment in clear and unambiguous terms (sadly no one speaks in those in Pakistan:

1. Chief Justice of Pakistan is NOT vested with the authority under the constitution to dismiss the Prime Minister or over-rule the decisions of the Speaker i.e. Presiding Officer of the National Assembly whose decisions are his or her privilege and are covered by the parliamentary privilege clause.

2. Chief Justice of Pakistan/the entire Supreme Court of Pakistan has no authority to dictate to the Prime Minister of Pakistan on what to write to which foreign authority. That is an executive function and not a judicial function.

US Constitution: Is it a template for modern democracies?

Very interesting. There was an article about this in the International Herald Tribune as well by Adam Litpak. My own personal view is that the US Constitution was kept deliberately vague to make it flexible for the ages. However without a progressive judiciary aligned with values of freedom and equality, the US Constitution might not have worked out as a charter of freedom that it is today. -Yasser Latif Hamdani

As Egypt begins selecting people who will draft a new constitutional, U.S. Supreme Court Justice Ruth Bader Ginsburg had some advice for the fledgling democracy: don't look to the United States for pointers.

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Enlarge(Photo: REUTERS / Mario Anzuoni)"A constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom,” U.S. Supreme Court Justice Ruth Bader Ginsburg told an Egyptian news organization.

Institutional Balance

By Yasser Latif Hamdani
Many eminent jurists and  legal minds have weighed in on the issue of the Supreme Court’s recent judgements, including the National Reconciliation Ordinance (NRO) judgement and the subsequent painting of the prime minister prima facie as dishonest and in violation of his oath. There are, however, far simpler issues that a humble observer and student of political science and law may raise as to the recent goings on.
The first and foremost issue to my mind is the separation of powers and how the recent rulings of the Supreme Court of Pakistan have affected it.

Much Ado About Article 6

By Yasser Latif Hamdani

In the course of the Memogate scandal, a lot has been written and said by shrilled-voiced commentators on the application of Article 6 of the Constitution of 1973. To me this comes as a surprise because there is no way that anyone who has read Article 6 can imagine that it can be applied in any form to the Memogate scandal.

What does Article 6 aforesaid say? It reads:

“High treason. (1) Any person who abrogates or subverts or suspends or holds in abeyance, or attempts to hold in abeyance or attempts or conspires to abrogate or subvert or suspend or hold in abeyance the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason. (2) Any person aiding and abetting or collaborating the acts mentioned in clause (1) shall likewise be guilty of high treason. (2-A) An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any Court including the Supreme Court and a High Court. (3) Majlis-e-Shura (Parliament) shall by law provide for the punishment of persons found guilty of high treason.”

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.