Need for Legal Protection of Digital-Content Consumers in Pakistan

Muhammad Akbar Khan

m.akbar@iiu.edu.pk

Today, a large number of population in Pakistan consumes digital content such as apps, online games, videos or music downloads software or e-books etc. Although exact number of users of digital content are harder to come by but there are almost 30 million internet users of digital content in Pakistan. Despite its large scale consumption unfortunately at present there is no proper law on the subject in the country that provides adequate protection to the consumers of digital content. Sometime the digital content, bought by a consumer, causes greater harm to his other data that result great loss. Most of the countries have promulgated laws on the subject but no initiative can be seen in Pakistan for making such a law. In Pakistan various laws provide protection to the consumers in transactions of goods and services such as Sale of Goods Act, 1930, Islamabad Consumer Protection Act, 1995, NWFP Consumer Protection Act, 1997, Punjab Consumer Protection Act, 2005, Balochistan Consumer Protection Act, 2003 and Sindh Consumer Protection Ordinance, 2007. However, under the existing regime, it is not clear in terms that whether digital content falls in the category of goods or services. It is also not mentioned anywhere in the said laws that if a digital content causes damage to the other data whether or not the manufacturer, supplier or retailer can be held responsible for such loss. Due to its importance and day by day increase of digital content in modern times it is proposed that there should be a proper legislation on the subject that ensures adequate protection for the consumers of digital content. In order to protect rights of the digital-content consumers, all contracts for digital content should include an implied term guaranteeing the safety, quality of the digital content and fitness for the purpose. The consumers should be entitled to refunds or other remedies for defective or poor quality content. Issues related piracy of such products should also be given due consideration in the proposed legislation. Though it is possible that the purpose may be achieved through amendment in the existing laws but it is highly recommended that a new legislation should be enacted on the subject as there are many loop holes in the current consumer laws such as lack of harmony and analytical inconsistency among them. There should be a national policy which should be followed by promulgation of laws in all provinces for the protection of digital content consumers. Organizations in Pakistan that work for the protection of consumers should also give due consideration to the issue of digital-content and spread awareness among the masses for the need of such a law. This law in long run will not only protect consumers but also producers and businesses dealing in digital content product. It is, therefore, highly recommended that government should take keen steps in formulating concrete national policy on the subject and making laws for the protection of the consumers of digital content.

Please comment and share your views on the topic. m.akbar@iiu.edu.pk

Distinguishing Right from Wrong

The issue I raised will remain intact even after the solution suggested by Dr Wasti is adopted as the basic problem is not in the law but in its application. The problem is more than legal.

Again it is no argument to undermine a particular legislation just because the same was promulgated by a military ruler. It is also not just to refer the Qisas and Diyat laws to Gen. Zia ul Haq as the same were promulgated in 1990 during the PPP era, long time after the death of late Gen. Zia. There may be problems in any legislation whether promulgated by military ruler or anyone else. But it is not justified to say, without  impartial analysis, that a particular legislation is bad just because it is enacted by a military ruler.

As for as its transformation to the modern state theory is concerned, there is no problem in regard to the current Qisas and Diyat laws and they can be well adjusted in any kind of modern set up.

 It is also pertinent to explain the meaning of Syasah here. It simply means the administration of justice according to Shariah. It never gives the ruler any authority to deviate from the principles of Shariah as mentioned by Jörg Fisch in Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law, 1769-1817. The basic objective of the Syasah jurisdiction is to fill the gaps left over to the state by Shariah and achieve the high purposes of Islamic law rather than deviate any of them.

Thus any change in the law, without giving any attention to the other factors, will be more like to deceive one`s self.  The main problems of the judicial delay, corruption, nepotism, and politicisation which result in reducing the level of social confidence in the overall judicial system will continue to exist. The point I want to make here is that all other factors that affect the administration of justice in Pakistan should be taken into account while formulating any policy regarding criminal justice. Merely changing the substantive provisions would not be of much help. The soul never thinks without a picture (Aristotle). 

Distinguisihing State law (Siyasa) from Sharia

Akbar Khan has raised the pertinent question of coordination between CII, Federal Shariat Court and Shariat Bench of the Supreme Court. Islamic Research Institute and Shariat Academy of International Islamic University Islamabad should also be included in this list. His second question is even more important. It relates to corruption in judiciary and regards it as the main culprit along with the ignorance of judges of Islamic law. The solution, according to Akbar Khan, lies in the eradication of corruption and preventing the political misuse of sublime laws by the mighty and influential segments of the society. This is the view of majority in Pakistan and Akbar Khan is not alone in expressing it. According to this view, there is no problem in Islamic law as promulgated by General Zia or any other government. A different strand of this view argues to first Islamize the society and then laws.

There are two problems with the above view. Firstly, it does not provide a mechanism to eradicate corruption and Islamize the society. And when it does try to provide a mechanism, it is too idealistic to be workable. Secondly, this view does not appreciate the transformation in the nature of the state in the nineteenth and twentieth centuries. Modern state is an impersonal machinery run by rules and laws independent of the persons who apply them. Modern state thus rises above the personal, familial, communal and tribal relations. This puts it in direct conflict with the collectivist norms of Islamic law. There is nothing denying the divine sanctity of Sharia and its superiority over man-made laws. The problem however arises when man-made laws are given divine sanctity due to political motivations or emotional attachment to Islam. 

Historically, Muslim jurists solved the problem of conflict between the norms of Sharia and maintenance of order in society through the doctrine of Siyasa Sharia which in effect means political expediency. This gave rulers authority to deviate from the principles of Sharia without expressly violating them. Historical research conducted upon the system of the administration of criminal justice in pre-colonial Bengal provides evidence of the interplay between Sharia and Siyasa. (See Jörg Fisch's Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law, 1769-1817 and Radhika Singha's A Despotism of Law: Crime and Justice in Early Colonial India).

The existing provisions of Pakistani penal law do incorporate the doctrine of siyasa by providing tazir punishments under certain circumstances. This however causes uncertainty in the law and our superior courts and legal experts have yet to take steps towards organic development of law based on judicial precedents in order to make law clear, certain and just.

Rethinking the question: How Your Lordships at the Supreme Court can stop Fasad fil ard?

The post on “How Your Lordships at the Supreme Court can stop Fasad fil ard?” is a good article by the author.  I would also like to post some of my random thoughts on the subject. 

Unfortunately the focus of legal scholars in Pakistan is always on changing the existing laws and never considering other factors that could lead to the abuse of laws. In my humble view there is no problem in the current Qisas and Diyat laws. All the three cases referred to in the article are the outcome of state`s non- seriousness in the application of laws without any discrimination between stronger and weaker segments of the society. The judges are the real culprits in this scenario as the law on Qisas and Diyat has never said that if a Qisas punishment is compounded or waived it would plainly mean the acquittal of the accused rather S.338 of the Pakistan Penal Code clearly mentions that where an offence has been waived or compounded, the court may, in its discretion having regard to the facts and circumstances of the case, acquit or award Tazir to the offender according to the nature of the offence. Thus, the judges, most of whom are corrupt, not being loyal abuse their discretionary powers and allow the acquittal of the offenders. Thus the problem is more in the persons applying the law rather than the law itself.

 With regard to the Islamic Ideological Council it has been constantly victimised by every regime as everyone brings his own brand of Islam when he/she comes in power. Due to this reason till this date there is no particular methodology defined for the Islamization of laws in Pakistan. Consistent policies are indispensable for any institution to achieve its ultimate goals. Unfortunately, there is no institutional link at all between Council Islamic Ideology, Federal Shariat Court, Shariat Appellate Bench at the Supreme Court of Pakistan and other organisation dealing with Islamic legal matters which causes inconsistencies in their actions and attitudes towards Islamic Law. This results in challenging many laws in the Federal Shariat Court which have been recommended by the council and passed by the Parliament. The Women Protection act may be one example of it.  The fate of Riba case is also unknown.

Therefore, in my view acting upon the recommendation of Dr Wasti that compromise should only be used as mitigating circumstance alone is not enough. It is also need of the hour to purify judiciary from all sorts of political influences and recruit judges who not only know about the laws but also understand their spirits. Plus the institutional reforms at national level and enabling institutional link among the relevant organs will insure clarity about all the laws including criminal laws. Then it would not be a big deal whosoever may the Chairman of the council be. 

How Your Lordships at the Supreme Court can stop Fasad fil ard?

Pardoning the murderer in the Shahzeb case has highlighted the inadequacy of penal laws in Pakistan yet again. This is the third high profile case involving this issue, other two being the cases of cold blooded killings of Sarfraz Shah by Rangers in Karachi and two Pakistani citizens by American security agent Raymond Davis. The abuse of Islamic legal principle of diyat (blood money) by the rich and influential is also proved by empirical research based on data collected from ten districts in the Punjab, Multan bench of the Lahore High Court, the Federal Shariat Court and the Supreme Court. In his doctoral thesis entitled ‘The Application of Islamic Criminal Law in Pakistan’, Dr Tahir Wasti showed how the provisions of qisas and diyat law were systematically exploited to the detriment of the poor and downtrodden. By comparing the overall impact of this law during the ten years of its operation (1991-2000) with the previous ten years (1981-1990), he finds that the new law caused an increase in the number of murders. 

It is in this context that huge public attention has been drawn towards the formation of a large bench at the Supreme Court to deal with the issue of pardoning the convicted murderers under qisas and diyat law. Chief Justice, Mr Chaudhry has rightly commented that the purpose of qisas and diyat under Islamic law is to establish order in society; however, he observed that the waiver of capital punishment is being misused to defeat this purpose. 

The honourable Chief Justice is right to remark that it is the duty of the legislature to rectify the law in order to curb its misuse. However, it needs to be appreciated that judges are partners of the legislature in the operation of the legal system. It is true that under the constitutional arrangement, legislature rather than judiciary is empowered to enact laws. Nevertheless, it is the judiciary which applies the enacted laws, and it falls very much in the ambit of judges to disallow mischievous use of laws.

Recently, our judiciary has shown resilience against political powers, both civil and military. In addition, judges provided legal protection to the underprivileged in society (transgenders’ case is one such example). It needs reminding that right after the creation of Pakistan, these were the judges, who recoursed to the principles of Islamic law, in order to protect fundamental rights of citizens. In this way, they were the ones who initiated the process of judicial Islamization to curb the powers of the executive. Later, they also resisted Zia’s political manoeuvring of Islamic law. Their positive role vis-à-vis Islamic law is shown in another doctoral thesis, ‘The Role of Islam in the Legal System of Pakistan’, written by Dr Martin Lau who finds that the process of Islamization in Pakistan was primarily judge-led. Their lordships softened the rigours of hudud laws when the political motivations for the enforcement of such laws were obvious (Safia Bibi v The State (1985) and Rani v The State (1996)).

On the issue of qisas and diyat laws, however, the challenge before the Supreme Court is of a different kind. This time, the honourable judges are not questioning the authority of the mighty military, or powerful politicians. Rather, these are the political ulama who portray any change in Islamic law as an attack on Islam. The capture of the Council of Islamic Ideology by Jamiat Ulama-e Islam, has deprived this constitutional body of its neutrality. The Shariat Bench of the Supreme Court is rightly posed to fill this gap. It already has superior constitutional authority over the Council, because its decision provides a binding precedent. The presence of highly qualified and politically impartial ulama judges at the Supreme Court enables it to lay down a mechanism, in order to curb the mischievous operation of sublime principles of Islamic law.

 

Here the question is that why should judges drag themselves in the dirty politics that is going on in Pakistan in the name of Islamic law? The answer is that they are best placed to deal with this issue. Unlike the legislature, the judiciary develops legal principles organically through adjudication on a case-by-case basis. The judiciary has authority, rather a duty, to ensure administration of justice through proper application of laws. Therefore, not only does the judiciary have sole authority to interpret legislative enactments objectively, it can also strike down any piece of legislation under its power of judicial review. 

Now what legal authority does the SC have to deal with the evil of the exploitation of qisas and diyat laws? To my mind, the judges have authority under Islamic procedural law, known as adab al-qadi; Articles 2A (The Objectives Resolution) and 3 (Elimination of exploitation) of the 1973 Constitution; and the principles of justice, equity and good conscience. Based on his analytical study, Dr Wasti recommends that compromise in murder cases should only be allowed after the conclusion of the trial. It should only be used as a mitigating circumstance and should not result in automatic acquittal of the convict. In this way, by making the state a stakeholder (wali) in murder cases, the negative impact of current law of homicide can be removed. This would be the best legal solution to accommodate the collectivist approach of classical Islamic law in order to meet the requirements of an increasingly individualistic society that exists in 21^st century Pakistan.

History of Qisas and Diyat laws in Pakistan

1790-1817 East India Company gradually replaced Islamic criminal law with English law in Bengal.

1860            Indian Penal Code replaced Islamic criminal law in British India.

Feb1979     Islamic criminal laws (Hudud) promulgated with the exception of Qisas and Diyat laws.

Oct 1979    Shariat Bench of Peshawar High Court declared law of homicide un-Islamic.

Sep 1980    Federal Shariat Court comes to the same conclusion.

Oct 1980    General Zia’s govt appealed against the above decisions. Zia did not promulgate qisas and diyat laws during his eleven year rule.

Jul 1989     Shariat Appellate Bench of the SC dismissed govt’s appeal. Govt filed a review petition.

Sep 1990    Qisas and Diyat Ordinance 1990 promulgated, one month after the first govt of Benazir Bhutto was  dismissed by President Ghulam Ishaq Khan.

Apr 1997    Criminal Law (Amendment) Act 1997 passed by the PML (N) govt.

Judges who Islamized Pakistani Penal Law

Afzal Cheema (1913-2008) Politician, Supreme Court judge, served as the Chairman of the Council of Islamic Ideology (1977-1980). Under him, Hudud laws were drafted along with Qisas and Diyat law.

Dr Tanzilur Rehman (b. 1928) Chairman of CII (1980-84) and Chief Justice of the Federal Shariat Court 1990-92. Following his predecessor, he asked Zia to promulgate Qisas and Diyat law.

Afzal Zullah (1928-2011) Member of the Shariat Appellate Bench (1979-82) and the Chief Justice of Supreme Court (1990-93). During the constitutional crisis caused by the dismissal of the first govt of Benazir, his position as the Chief Justice was one of the key factors behind the promulgation of the Qisas and Diyat Ordinance 1990.

Why DNA scares you?

In his seminal article Honourable Mr. Justice Dr. Khalid Masud analyses the evidentiary value of DNA in order to establish the criminal act of rape. He finds that there is no Islamic legal justification for rejecting DNA as circumstantial evidence in rape cases. This view is supported by various ahadith and opinions of classical jurists of various schools of thought. This begs the question that why did Council of Islamic Ideology refuse to endorse the evidentiary value of DNA in rape cases? 
 

Dr Masud argues that these are the powerful who are scared of being punished in case DNA is used to prove the crime of rape. This, he argues, is done by confusing zina (consensual intercourse) with zina bil jabar (rape):

“Rape is commonly confused with Zina in Muslim patriarchal societies in general, and in Pakistan in particular to save the mighty from shame. Thanks to the sectarian and religious political affiliations, one need not refer to the original teachings of the Qur’an and the Sunna of the Prophet because that might scare the mighty.”

He further elaborates this point by contending that in order to deny the evidentiary value of DNA, the “mighty and the scared” employ two principles:

1. They refuse to distinguish between rape and fornication. They call the first Zina bil Jabr and the second Zina, implying that there is no concept of rape in Islamic law; and

2. They insist on requiring four pious and God fearing male eyewitnesses in rape cases.

As it is impossible for a victim of rape to produce four such witnesses in order to establish the crime of rape, the perpetrators of this heinous crime are acquitted even when they are prosecuted in a court of law.

Dr Masud shows that Zina is clearly distinguished from rape and concludes:

“It is not therefore correct to claim that Islamic legal tradition could not develop the concept of rape and that is why Pakistani jurists do not distinguish between rape and cases of fornication (Zina). Studying hadith and Fiqh one finds that the Islamic legal tradition did not require four witnesses as primary and mandatory procedure for rape; they frequently accepted circumstantial evidence.”

He then goes on to quote various ahadith and juristic opinions in order to endorse his above views. He concludes his article with the following observation:

“In societies where rape is used for intimidation, disgrace, humiliation and subjugation, it is in the interest of the mighty to confound rape with Zina. It raises doubt about the intent and involvement of the victim of rape. Even victim’s family abandons her and pleads her to keep quiet. In some cases, she is silenced in the name of family honour.”

This is an excellent piece of scholarship, which combines learning of classical Islamic legal texts with sociological knowledge—a rare but desperately required combination in order to remove the grave injustices done to the weaker and vulnerable sections of Muslim societies in the name of Islam. It is unfortunate that the mighty, whose powers should have been curbed by law and religion, exploit the both in order to subdue the weak and the poor.

Written in the context of infamous Mazar e Quaid rape case, Dr Masud’s article has laid down the foundation of a new research methodology. Its further application by other researchers and scholars will expose the vested interests behind the whole project of ‘political exploitation of Islamic law’.

Read the full article of Dr Khalid Masud at:

http://www.academia.edu/3762325/Who_is_afraid_of_DNA 

Book Review: The Impossible State by Wael B. Hallaq—Some Preliminary Reflections

Book Review: The Impossible State by Wael B. Hallaq—Some Preliminary Reflections

The thesis of this book is that “Islamic State” judged by any standard definition of modern state is ‘both an impossibility and a contradiction in terms’. It is asserted that moral-legal system based on divine sovereignty is essential for Islam as much as sovereignty is essential for the modern state. Therefore, there can be no Islamic state (p51). Hallaq argues that the paradigmatic ‘Islamic governance’ does not differentiate between the legal, the moral, and the mystical. This makes it a misfit within the structure of not only the modern state but also the globalised world dominated by capitalism and corporations (pp137-8)

Students of political science would notice that the doctrine of sovereignty was a historical construct. It was the result of the Peace of Westphalia in 1648, which ended the religious wars in Europe and restricted the powers of Roman Catholic Church to interfere in the matters of European states. As sovereignty is a supreme authority which need not be absolute, and the rise of supra-national organisations such as the UN, EU and WTO have restricted the powers of nation states, it is not very hard to imagine that an Islamic state could be sovereign within the limits of Sharī‘a.

Apart from political science, Hallaq engages with other disciplines of social science and humanities. This book is a fascinating piece of scholarship interwoven in an interdisciplinary jargon and only a scholar of Hallaq’s stature could have produced it. As a revisionist scholar, Hallaq is credited for not only breaking open the so called closed gates of Ijtihād, but also bringing down ‘Schacht’s castle’ about the origins of Islamic law. I find this work quite impressive, however, my main concern is about its teleology. But before I present my reflections, it is advisable to first explore this masterpiece.

After setting its premises in chapter 1, chapter 2 sets out to define the Modern State.  It is followed by chapter 3 which establishes contradiction and confusion in the theory of Separation of Powers in the first part of this chapter. In the second part, the author argues that the term “Islamic State” is anachronistic and rather prefers the use of “Islamic governance” for the historical phenomenon that has been described by other scholars as “Islamic State”. He then describes the Islamic moral-legal system, which according to him, is based on complete separation of powers between the legislature and executive. He argues that Islamic “legislators”—muftīs represented the community and successfully put a check on rulers’ powers. He challenges the thesis of Oriental despotism and ends this chapter with the assertion that “Shar‘ī structures” provide for John Rawl’s “well ordered society” in which citizens have a shared sense of justice (pp72-3).

If the first half of the book builds up to show how “Islamic governance” is perfectly suited to the models of ‘rule of law and democracy’, the second half is dedicated to establish that “modern state” is an impossibility under Islamic modes of governance. Thus chapter 4 shows that the separation of law and morality under Western tradition along with the rise of new-Hobbesian political state has made it incompatible with the norms of Sharī‘a. This theme is further developed in chapter 5. Here it is shown that how modern state controls citizens through not only techniques of surveillance but also through the provision of education and other public services. This is contrasted with the “Islamic governance” that is based on the “technologies of self” which do not differentiate between the moral, the legal and the mystical.

Chapter 6 extends the analysis and argues that in a globalised world primarily based on capitalist economy, “Islamic governance” based on moral principles is an impossibility. Hallaq also provides a critique of corporations from Islamic perspective. He attributes the absence of juristic personality under Islamic law to the morality of Sharī‘a because had the corporate form been tolerated it might have led to unwarranted consequences. To support his argument, he refers to the English government’s banning of corporations in the sixteenth century [should be eighteenth century] on the basis of “moral sanity”, which did not last long. (p154)

The final chapter reiterates the main thesis of the book by arguing that the modern state is not a ‘neutral tool of governance’, which could be used to achieve the moral objectives of Sharī‘a. The book ends on an elegant note that the moral problems posed by modernity are not simple challenges for Muslims alone, rather the whole world shares these challenges.

Hallaq’s thesis appears to present an incisive critique of modernity and Western liberal democracy. However, its subtext challenges the political Islam. Since an Islamic state is an impossibility, and Sharī‘a is incompatible with the very notion of the state, the whole point of a political organisation based on the principles of Sharī‘a is preposterous. Sharī‘a is based on moral principles and it requires an individual to comply with its injunctions voluntarily and with the intention of obedience to God, therefore, any system of governance based on authoritative sanctions is antithetical to Sharī‘a.

In order to strengthen and persuasively argue his thesis, Hallaq had to conflate some historical facts. First, he had to magnify the peculiarity of modern state and portray it as a distinctive European phenomenon. One may ask, if state is a unique European construct, so is the ‘law’. It follows that if pre modern Muslim political models of governance cannot be called ‘state’, likewise, Sharī‘a could not be translated as law. Hallaq accepts this but yet still he describes Muslim jurists ‘muftis’ as legislators—the representatives of civil society. Perhaps more problematic is his account of Islamic judicial system which is shown to be an exclusive domain of Sharī‘a. In this account, Sharī‘a is an all encompassing and all embracing code which deals with minute details of every aspect of life. This ahistorical depiction of Sharī‘a is contrary to Hallaq’s observations in his earlier work ‘Sharī‘a: Theory, Practice and Transformation’, where he notes, ‘Islamic law depended, in both theory and practice, on the cooperation of customary (‘āda, ‘urf) and royal law (siyāsa shar‘īyya).' (p368 italics original). In this work, however, both custom and imperial law are shown to be subservient to Sharī‘a.

The subtitle of the book is ‘Islam, Politics, and Modernity’s Moral Predicament’. However, what is conspicuously missing is any reference to the writings of the proponents of ‘Political Islam’. One finds a few references to Syed Qutub. Khomeini is also mentioned in a footnote, and so is the Brotherhood of Egypt. However, Mawdudi is significant only by his absence. This is intriguing since any discussion on the issue of Islam and state remains incomplete without Mawdudi’s contribution in this field, despite its being unorthodox. Likewise, the absence of any reference to leading Muslim philosopher Muhammad Iqbal renders the otherwise highly sophisticated work deficient.

Despite above observations, this is a remarkable piece of work and undoubtedly it will help generate a healthy debate about the relationship between Islam and modern state. It is thought provoking and has succeeded in raising the questions which would grapple with the minds of both students and accomplished scholars.

Impact of Common Law and Civil Law on the Personal Law of India

English and French Approaches to Personal Laws in South India, 1700-1850 by Anselmo Francisco Trinidad Reyes, PhD Law Thesis, University of Cambridge, 1986

 

Introduction

The purpose of this thesis is to examine the extent to which different legal traditions, common and civil, influence the articulation of personal laws.

It contributes towards the study of development of personal or minority law institutions by common or civil law courts today.

This thesis finds that difference in legal traditions did not play any major role in the articulation of personal laws. They developed roughly in identical fashion aside from a few discrepancies. For instance, both the English and the French applied the prohibition of usury in India, but under different motives. The English because of sensibilities of the Hindu, and the French because of their inspiration by the canon law prohibition of usury.

Theoretical Framework: Autonomy v Functionality of law

In The Evolution of Law, Professor Watson argued that economic, social and political conditions have no direct effect on the direction of legal change. Lawyers in civil and common law tradition are by nature conservative. Hence, this is the logic of legal tradition which ultimately determines the nature and extent of legal change.

Dr Washbrook’s model of Anglo-Hindu law, articulated in his famous article, ‘Law, State and Agrarian Society in Colonial India’, is diametrically opposed to this view. He argues that the needs of the East India Company had direct bearing on the way the law was interpreted and developed in India.

Conclusion

English and French laws reached to the same conclusion, though through different methods. Factors external to legal traditions played a part in reducing discrepancies between the two legal systems. The French relied upon English legal literature because of their meagre financial resources. The English, on the other hand, relied upon Roman law.

Selected Excerpts

‘The plurality of legal sources implies a degree of uncertainty within the legal system. That uncertainty gives the judges room to manoeuvre in the articulation of legal principle.’ pp384-5

‘Textbook writers are less constrained than judges in that they pick and choose themselves, from varied laws available, the principles they wish to articulate. Judges must react to what is offered them in argument by the parties to a dispute…’ p386

‘Finally, one cannot discount the influence of similar economic, political and social pre-occupations in adjacent settlements, leading to similar perceptions and solutions.’ p392

Politicians v Judges

On the 5th of August 1775 Raja Nandakumar was hanged, after being found guilty of forgery by the newly established Supreme Court. He was tried a few days after having brought charges of corruption against the Governor-General, Warren Hastings. A year before that, the Supreme Court had been established by the English Crown to restrain the exercise of power by the officials of the East India Company. In order to maintain the autonomy of the Supreme Court, the judges were directly nominated by the Crown. 

After their appointment, the judges started to entertain suits against the officials. In one case, they even ordered the arrest of powerful members of the Provincial Council for illegally taking over the property of a complainant. Because of this, tensions arose between the Supreme Court and the Governor-General, who accused the activist judiciary for putting British rule in India at risk. He argued that by imposing their authority on revenue officials, the judges usurped the sovereignty of the Company. The Supreme Court, on the other hand, insisted on the difference between the public responsibilities of the officials and their use of official powers for private gains. The Chief Justice, Sir Elijah Impey rebutted the charge that the Supreme Court exceeded its authority by claiming that the Supreme Court represented the people of India.

Notwithstanding the hostility between the judiciary and executive, Governor-General Hastings acknowledged the role of the Supreme Court in the Indian political system. After all, it was the Supreme Court which had averted a coup against him when a member of the Council threatened to take over the garrison at Calcutta because of dissension in the Council. This was a partial reason behind the Chief Justice Impey’s accepting the position of a judge in the Company’s highest court, Sadr Diwani Adalat. He received an extra salary for this position, though it jeopardised his impartiality as the Chief Justice of the Supreme Court. In Macaulay’s words, acceptance of an additional office made him ‘rich, quiet and infamous’. 

Historians recognised Impey’s significant contribution towards improving the operation of the Company’s courts. However, his services were cut short when he was dismissed from his office as the Chief Justice of the Supreme Court for accepting a salary from executives of the East India Company, to whom he was required to control as a judge. Later, he was impeached for the judicial murder of Raja Nandakumar but was found not guilty.

Finally, a solution for this executive-judicial tussle was found by appointing the Chief Justice along with one judge and a barrister as the members of the Governor-General’s Council in 1853. In this way, the conflicting executive and judicial powers were merged into the one body of the executive council. This did not stop various Chief Justices from taking an activist judicial role in holding executive officers to account and providing relief to people against the government. When the judicial system was reorganised, the Supreme Court was abolished. For the next hundred years until Independence in 1947, there was no Supreme Court in India. Appeals from the decisions of various High Courts were made directly to the Privy Council based in London, though a federal court was established in 1937 with limited powers regarding constitutional cases.

This story is illustrative of the fact that a discord between the executive and judiciary is inevitable. There could be two alternate solutions. First, by making the system more representative, which could legitimate the authority of parliament over the judiciary. Second, by increasing executive power, which could supersede the judiciary, though nominal representation of judges could be accepted as part of the executive. The first option was adopted in England and the second in colonial India. There was, however, an interim solution to this convoluted problem of executive-judicial tussle: ‘soften’ the hearts of judges by providing them with additional perks. Recent events show that the successors of the first Supreme Court in South Asia are still in the ‘interim period’ on either side of the border in both India and Pakistan. Meanwhile, Hastings and Impeys prosper, while Nandakumars suffer!

Legal Realism and the Supreme Court of Pakistan

In 1895, the New York Legislature unanimously enacted the Bakeshop Act, which prohibited individuals from working in bakeries for more than ten hours per day or sixty hours per week. Joseph Lochner, owner of a bakery, was fined on a charge that he violated the Act by employing a worker for extended hours. After losing his appeal at the New York Court of Appeal, he took his case to the Supreme Court of the United States. The Supreme Court, by a vote of 5–4, ruled that the law limiting bakers’ working hours violated individual liberty and constituted an illegitimate exercise of state power. With this decision began the Lochner era, in which a right wing majority of judges in the Supreme Court issued several controversial decisions, invalidating federal and state statutes that sought to regulate working conditions of labourers such as fixing of minimum wages.

One of the dissenting judges in the Lockner case was Oliver Wendell Holmes, a famous American Legal Realist. He challenged the age-old notion of law as written rules in the books of law, and argued that law is what the courts say it is. Legal Realists argued that law is an empirically testable phenomenon, the same as the laws of nature, e.g. the law of gravity or the law that water boils at 100 c. Therefore, it must be predictable and certain. In reality, this is not exactly the case. Law, as lawyers and judges understand it, has a human aspect to it. It is not objective and can never be so. Legal Realists argue that if that is the case, then judges should admit that they take into account other things along with the law while deciding disputes. They assert that judges should not pretend to be bound by law in books. Rather they should admit the reality that their behaviour as judges is influenced by extra legal factors. That is why Scandinavian Legal Realists bring psychology into their analysis of law. Prominent legal theorists, such as Austin, Hart, Kelsen, Dworkin, Raz and Finnis, recognise the humanist aspect of law, from the point of view of both the judges as officials and citizens as subject of law.

Human beings unlike machines are not immune to the social environment surrounding them. Therefore, an expectation that legal rules should be like the laws of nature and should be applied mechanically is unrealistic. But equally unrealistic is the view that written laws are irrelevant when courts decide cases. American Legal Realism was a reaction to the arbitrary decisions of the US Supreme Court. It wanted transparent judicial reasoning, rather than the ideological inclination of judges to be the foundation for court decisions.

Judges of the superior courts of Pakistan are well aware of Legal Realism. Former Chief Justice of Pakistan Justice Munir is still despised for handing down a blank cheque to Ayub Khan for the ‘successful’ revolution under Kelsen’s Pure Theory of law. However, our courts have come a long way from 1958 to 2009. The Supreme Court of Pakistan has publicly buried the infamous doctrine of necessity for good. It would be ironic if the same Supreme Court might appear to usurp the legislative powers of the parliament under its pretentious power of interpretation of the Constitution and statutes. It was this Supreme Court which lay down the idea of the balance of powers against the well-established doctrine of the separation of powers. The role of the Supreme Court is vital in order to ensure that this balance is struck, though other stakeholders could not be absolved from their responsibilities. Let that justice should be done, but what an awful thing it would be if it should bring down the heavens. Heavens are based on balance and justice is at the core of this balance. Justice is not justice if it is not impartial and is not based on sound principles.

Jinnah at the Privy Council--the Highest Court of Appeal in the British Empire

Below are the three judgments of the Judicial Committee of the Privy Council in which Jinnah pleaded the case. He appeared in several cases before the Privy Council, but these are the three judgments in which Jinnah is specifically mentioned.

1. Kumar Gopika Raman Roy v Nagendra Nath Chowdhury and others (Fort William (Bengal)) [1931] UKPC 21  
2. Abdul Majid Khan and another v Saraswatibai and others (The Court of The Judicial Commissioner of the Central Provinces) [1933] UKPC 72
3. Babu Ramasray Prasad Choudhary and another v Babuyee Radhika Devi and others (Patna) [1935] UKPC 58
   

CHANGING ROLE AND IMAGE OF JUDICIARY IN PAKISTA FROM 1988 TO 1999 by Parvez Ahmed, Department of Political Science and International Relations, Bahauddin Zakariya University, Multan

Abstract
The objective of this is to examine the role of superior judiciary in Pakistan after 1947. We have mainly focused on the controversial role of the judiciary during the period 1988-1999. It is popularly believed that after the independence Pakistan's judicial system was established closely on the footsteps of the English system. In the early years the judiciary of Pakistan enjoyed independence in deliverance of justice. Afterwards, most of the governments resorted to unconstitutional method to pressurize the judiciary for its ulterior motives. All the three constitutions provided constitutional guarantees to judiciary for independence but the executive's always pressurize it in legal way such as through abuse of power of appointment, parallel hierarchy of courts (Federal Shariat Court, Anti-Terrorists Courts, Military Courts), and amendments in the constitution for curtailing the powers of judiciary. Both democratic and undemocratic regimes used the shameful and blatant methods on the issue of appointments. From 1988 to 1999, five assemblies were dissolved almost on the charges of corruption, inefficiency and were challenged in the Supreme Court. On every occasion, the decision of judiciary was different. Therefore we have focused our analysis on the role of superior judiciary and how its controversial judgments had affected its image. It is important to emphasize that the controversial role of the superior judiciary cannot be examined in isolation from the over all political environment prevailing in the country. Therefore our thesis has been divided into various chapters and each chapter has been used as background to create the necessary link between the past and the present.

Access full text http://eprints.hec.gov.pk/2474/1/2360.htm

PhD Theses on Political Science from Pakistani Universities

Muhammad , Mushtaq (2011) Consociationalism And Multi-ethnic States: Post 197 Pakistan-a Case Study. PhD thesis, Bahauddin Zakariya University, Multan.
Muhammd Shakeel , Ahmad (2011) Electoral Politics in NWFP 1988-1999. PhD thesis, Quaid-i-Azam University, Islamabad.
Khalil-ur-Rahman, Shaikh (2011) Pakistan-Japan Political & Economic Relations In Post Cold War Era: Challenges And Responses. PhD thesis, University of Sindh, Jamshoro .
Muhammad, Ibrahim (2011) Role Of Biradari System In Powerpolitics Of Lahore Post Independece Period. PhD thesis, Bahauddin Zakariya University, Multan .
Jalbani, Din Muhammad (2010) A Critical Analysis of Governments Poverty Alleviation Policies with Special Reference to Rural Sindh. PhD thesis, University of Karachi, Karachi .
Butt, Khalid Manzoor (2010) Child Labour in Human Rights Perspective: Case Study of Child Scavengers of Urban Areas of Lahore. PhD thesis, Govt. College University, Lahore.
Javed, Muhammad (2010) Muhammad Ubaid Ullah Sindhi k Siyasi Afkar ka Asar e hazir k Tanazur main Tehqiqi Jaiza. PhD thesis, University of Karachi, Karachi .
Memon, Aslam Pervez (2010) Vifaq e Pakistan r Qoumi Yakjehti 1947 - 1971 ka Siyasi jaiza. PhD thesis, University of Karachi, Karachi .
Ahmed, Zahoor (2009) A Specific Study of District Gujrat, Toba Tek Singh, Sargodha, Multan and Lahore. PhD thesis, Federal Urdu University of Arts Sciences & Tech. Islamabad.
CHANDIO, AMIR ALI (2009) Politics Of Sindh Under Zia Government An Analysis Of Nationalists Vs Federalists Orientations. PhD thesis, Bahauddin Zakariya University, Multan.
Anjum, Azra (2008) ECONOMIC HUMAN RIGHTS AND THEIR IMPACT ON CONTEMPORARY CONSTITUTIONS. PhD thesis, University of Karachi, Karachi.
Taheri, Muhammad Reza (2008) Tribal Politics in Balochistan 1947-1990. PhD thesis, University of Sindh, Jamshoro.
Ayoubi, Laila (2006) Home Schools for Afghan Refugees Girls in Pakistan 1996-2005. PhD thesis, Preston University, Kohat.
Mustafa, Ghulam (2006) Regional Co-Operation Among Muslim States-A Case Study of Gulf Co-Operation Council. PhD thesis, University of Peshawar, Peshawar .
Ahmed, Parvez (2005) CHANGING ROLE AND IMAGE OF JUDICIARY IN PAKISTA FROM 1988 TO 1999. PhD thesis, Bahauddin Zakariya University, Multan.
Rizvi, Arshad Javaid (2005) The Political System Of Pakistan ( A Constitutional Study ). PhD thesis, Hamdard University, Karachi .
Nasir, Mughith Ahmed (2004) INFLUENCE OF TRIBALISM ON THE POLITICS OF FAISALABAD DIVISION. PhD thesis, Bahauddin Zakariya University, Multan.
Khalid, Tanveer (2004) ISLAMIZATION IN PAKISTAN: A POLITICAL AND CONSTITUTIONAL STUDY FROM 1947-1988. PhD thesis, University of Karachi, Karachi.
Zain, Umer Farooq (2004) Separatist Movement in the Indian Punjab. PhD thesis, Bahauddin Zakariya University, Multan.
Kazmi, Shehla (2003) M. A. JINNAH: LEADERSHIP PATTERN. PhD thesis, University of Karachi, Karachi.
Chishti, Naheed Anjum (2003) Pakistan National Integration. A Case Study. PhD thesis, Bahauddin Zakariya University, Multan.
Raza, Amera (2003) The Global Village And Changing International Attitudes. PhD thesis, Hamdard University, Karachi .
Al-shehri, Muhammad Awdah (2002) Pakistan-Saudi Relations: A Study in Bilateral Cooperation in Political Economic and Military Fields (1867-1991). PhD thesis, University of the Punjab, Lahore.
Khan, Ghulam Sarwar (2002) Politics of Feudalizm in Southern Punjab (1970-80). PhD thesis, Islamia University, Bahawalpur.
Akhtar, Shahnaz (2002) THE ROLE OF THE ORGANIZATION OF THE ISLAMIC CONFERENCE IN POLITICAL AND ECONOMIC CO-OPERATION OF THE MUSLIM WORLD. PhD thesis, Bahauddin Zakariya University, Multan.
Gopang, Pir Bakhsh (2001) Constitutional Foundations of Federalism: A Case Study of Pakistan (1956-1988). PhD thesis, University of Sindh, Jamshoro.
Nazir, Muntzra (2001) FEDERALISM IN PAKISTAN: 1947-58. PhD thesis, University of the Punjab, Lahore.
Syeda, Saiqa Zubeda (2000) ISLAMIC POLITICAL SOCIOLOGY IN THE MODERN AGE: THEORY AND PRACTICE. PhD thesis, University of Karachi, Karachi.
Thaheem, Nagina Perveen (1999) A Social- Psychological Study of Perceptions of Senior Teacher and Senior Students about Themselves and Each Other at Alama I.I Kazi Campus University of Sindh Jamshoro. PhD thesis, University of Sindh, Jamshoro.
Bukhari, Syed Mussver Hussain (1999) PAKISTAN, ETHNIC NATIONALISM AND POLITICS OF INTEGRATION. PhD thesis, Islamia University, Bahawalpur.
Abdul , Rauf (1998) (Urdu) Pakistan Ma Islami Nizam e Hokmat Kay Nifaz Ka Masala. PhD thesis, Bahauddin Zakariya University, Multan.
Kundi, Mansoor Akbar (1998) Revolution in Afghanistan: Case Study of Its Causes & Effects. PhD thesis, University of Balochistan, Quetta .
Muhammad, Ayaz (1998) Some Political Aspects of Local Government Finance in Punjab. PhD thesis, Islamia University, Bahawalpur.
Khan, Mohammad Usman (1997) TRIBAL POLITICS IN BALOCHISTAN 1947-1990. PhD thesis, University of Karachi, Karachi.
Khan, Rahmat Ibad (1996) IMPACT OF POLITICAL CULTURE ON POLITICAL DEVELOPMENT OF BALOCHISTAN. PhD thesis, University of Karachi, Karachi.
Musarrat, Razia (1995) Pakistan:Federalism Andnational Integration. PhD thesis, Islamia University, Bahawalpur.
Chaudhary, Muhammad Azam (1995) PUNJAB CONTRIBUTION TO PAKISTAN MOVEMENT 1849 TO 1947. PhD thesis, University of Karachi, Karachi.
Siddiqui, Hameed Raza (1994) (Urdu) Pakistani Parlimani Jumhoriat (1947-1958). PhD thesis, Bahauddin Zakariya University, Multan.
Hussain, Syed Ahmad Uddin (1994) Development of Local Government Institutions in the Province of the Punjab. A Critical Assessment. PhD thesis, Bahauddin Zakariya University, Multan.
S. Shariff, Muhammad Abdul Salam (1994) Political Development in Nigeria 1945-1988. PhD thesis, University of Sindh, Jamshoro.
Chodho, Muhammad Murad (1994) Political Movements in Larkana and Its Impact on the Struggle for Pakistan (1945 to 1947). PhD thesis, University of Sindh, Jamshoro.
Khan, Abdul Hamid (1993) Islamization:Islamic Ideilogy and its Implementation in Pakistan” (1972-85). PhD thesis, Islamia University, Bahawalpur.
Khan Malik, Sandha (1993) Pakistan - A Case Study in Threat Perception. PhD thesis, University of the Punjab, Lahore .
Khan, Rashid Ahmad (1991) PAKISTAN POLICY TOWARDS ARAB-ISRAEL CONFLICT (1948-1973). PhD thesis, University of the Punjab, Lahore.
Wajidi, Muhammad Abuzar (1990) KMC: A STUDY OF ITS ADMINISTRATIVE & FINANCIAL ORGANIZATION. PhD thesis, University of Karachi, Karachi.
Shamayleh, Fadi (1988) (Arabic) Islamic Political System. PhD thesis, University of Sindh, Jamshoro.
Aslam, Farhat Imrana (1988) Constitutional Development in Pakistan-1972 to 1985. PhD thesis, University of the Punjab, Lahore .
Karim, Syed Arshad (1988) Ideology, Leadership and Jehad as Agents of Political Movement - a Case Study of the 19th Century Bihar. PhD thesis, University of the Punjab, Lahore .
Makhdoom, Khalid Javed (1987) Interaction of Ideology and Strategy in Pakistan Foreign Policy 1947-1960. PhD thesis, University of the Punjab, Lahore .
Shaikh, Muhammad Hassan (1987) Role of Political Parties in Pakistan 1969-1977. PhD thesis, University of Sindh, Jamshoro.
Hasnat, Syed Farooq (1986) The Persian Gulf 1971 -78 and Analysis of the Regional Security System. PhD thesis, University of the Punjab, Lahore .
Sangi, Ghulam Ali (1985) Role of Education in Socio Political Economic Conditions in Larkana District during Talpur and British Period. PhD thesis, University of Sindh, Jamshoro.
Khan, Hidayatullah (1983) Public Service Organization–An Ideal Type for Pakistan. PhD thesis, University of Peshawar, Peshawar .
Chano, Sabeb Khan (1983) The Movement for Separation of Sind from the Bombay Presidency 1847-1937. PhD thesis, University of Sindh, Jamshoro.
Shahkar, Abdol Hassain (1982) Political Process in Iran 1941 to 1979 - A Study of Muhammad Raza Pehlavi's Politics. PhD thesis, University of the Punjab, Lahore .
Zangano, Muhammad Laique (1980) (Sindhi) Tahreek-E-Pakistan Mein Sindh Jo Hiso. PhD thesis, University of Sindh, Jamshoro.
Razvi, S. Rizwan Ali (1977) "NIZAM AL-MULK TRUST" HIS CONTRIBUTION TO STATECRAFT, POLITICAL THEORY AND THE ART OF GOVERNMENT. PhD thesis, University of Karachi, Karachi.
Shaikh, Ikramul Haq Pervez (1977) Contributions of Muslims of Sindh Towards Making of Pakistan. PhD thesis, University of Sindh, Jamshoro.
Rizvi, Shahid A. (1977) LOCAL GOVERNEMNT IN PAKISTAN A CRITICAL STUDY. PhD thesis, University of Karachi, Karachi.
Khanam, Akhtar (1973) THE ROLE OF ISLAM IN THE GOVERNMENT OF PAKISTAN. PhD thesis, University of Karachi, Karachi.
Farooqi, Mohsin (1971) Study of Local Government Institution in Sindh during British Period 1843-1947. PhD thesis, University of Sindh, Jamshoro.
Khan, Shafiq Ali (1967) EVOLUTION OF TWO NATION THEORY WITH REFERENCE TO INDIA AND PAKISTAN. PhD thesis, University of Sindh, Jamshoro.
Hassan, Parveen Feroze (1967) THE POLITICAL PHILOSOPHY OF IQBAL. PhD thesis, University of the Punjab, Lahore.
Khan, Bashir Ahmad (1959) THE POLITICAL AND SOCIAL POSITION OF INDONESIA IN ITS SOUTHEAST ASIAN SETTING. PhD thesis, University of the Punjab, Lahore.
Hamid, Abdul (1950) SIR SAYYID AHMAD KHAN AND THE GENESIS OF THE MUSLIM SEPARATIST MOVEMENT IN POLITICS: AN INTERPRETATION. PhD thesis, University of the Punjab, Lahore.
Kaw, R. K (1943) THE DOCTRINE OF RECOGNITION (PRATYABHIJNA DARSANA) PHILOSOPHICO-RELIGIOUS DOCTRINE OF KASHMIR. PhD thesis, University of the Punjab, Lahore.
M.A., Indra (1940) ORGANISATION FOR WAR AND PEACE IN ANCIENT INDIA. (600 BC. TO 700 AD). PhD thesis, University of the Punjab, Lahore.
Mahajan, Vidya Dhar THE EXECUTIVE CONTROL OVER THE MUNICIPALITIES IN THE PUNJAB. PhD thesis, University of the Punjab, Lahore.