India Did Not Kick Us Out Re: # 170
Couldn`t agree more. It is is down right frustrating, when one finds thought evoking material in all sincereity of purpose, posted on CHOWK, being trivialized into irrelevancy, simply on account of intolerant, agressive, and the most casual comments by individuals who can`t possibly find another forum, to clean and litter their laundry.

CHOWK provides for all tastes, and hopefully with the new mangement, things will improve.

Thank You CHOWK staff. I sincerely hope that you with the help of most of your members, would succeed in allowing sober and serious discussions and debates to carry on.

Ciao

India Did Not Kick Us Out `Successful` societies founded on compromises. Is this a joke, dear Mantolives?
By your understanding of succesful societies, we no doubt are a role model, then. Winning the hearts, and progressives obligation, or a duty cast; AND, whose hearts? The mullatos. When you refer to `islamists`, do consider the polarities between Islam and the mullatos or `islamists` as you choose to call them.

No offence intended. Just couldn`t hold back.

India Did Not Kick Us Out `Successful` societies founded on compromises. Is this a joke, dear Mantolives?
By your understanding of succesful societies, we no doubt are a role model, then. Winning the hearts, and progressives obligation, or a duty cast; AND, whose hearts? The mullatos. When you refer to `islamists`, do consider the polarities between Islam and the mullatos or `islamists` as you choose to call them.

No offence intended. Just couldn`t hold back.

Songs of Dissonance Re: # 24
We aren`t discusing Ahmedis here. And what is thsi bull shit about Ahmadi perscution anyway. Count how many Ahmedis dead since `85 and rest of us how have died in the name of Shias, and Sunnis. rest assured ahmedis nothing more than triviality, asserting itself, thanks to the mulla bigots again.

Songs of Dissonance I am still wondering whether all of us were non-muslims before the light of enlightenment hit us in the face through uniform of Zia Jee; for that matter were all of our purkhas and pukhis also kafirs. The neo-moslems of our degenerated society, are the worst of all evils let loose on us ignorants. One should pray juno does well in his `designer bourtiue` or is something else, so he could also bask in the glory of his wealth, and the shade of his mulla mentors leaving us poor soul, to find our own pace with our God Almighty. Just pure sickening, the man has gone stark raving mad, adding salt to the miseries. Whats gone wrong with JJ anyway.

The Impact of the Greek Philosophers on Modern Education Re: # 6
WHO ASKED YOU TO TURN UP AT THE WRONG PLACE?

The Sania Effect Saniajee,
help us all

Role of Judiciary in Constitution Making in Pakistan This project appears to have nose dived. Sorry there Ghazia.
Sorry to see it go

Role of Judiciary in Constitution Making in Pakistan Re: # 22
``...I have always believed the separation between morality and legality in pakistan is the key problem..ultimately the lack of respect for the rule of law is a moral/ethical failure.``

Zakk, I simply couldn`t agree with you more on the subject. Your understanding I am sure your study of law nd society must be commended. I wonder how many of legal pundits would ever be aware of this very dichotomy exhisting in our legal setup. Without morality within the core of law, the lattter is as good as dead fish. Ofcourse our concurrence here may not be lat word, as we in our own specified surroundings, have been trained to follow the rules as laid down. I don`t know how far you would agree here with the proposition that in fact we today are nothing more than an extension of the Khilafath of medeieval days. Thus, the legal order is fraught with the analytical aspect of law in the spirit of `law as is`.

This fundamental error is the underpinning of our legal insensitivities. I strongly feel that without a serious jurisprudential exercise in determining the nature and concept of law in Pakistan,the desired purpose may not be served. Not discouraging Ghazia on this:)

As to your reference to India, Bibek Debroy, in his book, In the Dock, if I remember correctly has put the backlog of cases in that country to 3 million.

The figures and statistics nowithstanding, your appraisal of the ineffectiveness of law, stands.

As for the revival of Jirgah system and mad hatters cruel circus of Karo Kari, Vaani, etc,. yes I once agin agree with you. The turn to a parallel suedo-judicial system, unrecogbnized by the Constitution, is a definate pointer of the ineffectiveness of the judicial sytem, and failure of the rule of law. What Ihad refered to in my comment was the urban society,encompassing the middle and the lower classes, rather the marginalized majority of our population.

Ciao

Role of Judiciary in Constitution Making in Pakistan Re: # 20
Dear Zakk,
no intentional disrepect to your views, which are quite rich, and infact I for one endorse what you have stated, in your comments. As you did point out and rightly so, the assertion by the courts is found only when the powere structure is in decline.

For us, the innocous entities, maybe these issues are primordorial, as the common man, seeks survival, through an ineffective judicial system, in the wilderness of anarchy. For those who fall within the power engine, by compromise or default, are neither effected, nor should they be sensitive, to the question in hand. The courts, could have played the role required of them, had not the power vested in them not been diluted.

In my humble view, the study of courts or rather the judiciary, as Ghazia Aslam posits the questions is an untread path. At least to me, for I have not come accross any indeginous serious research under taken. May be I am more ignorant than willing to accept, but so far what ever little material available is too sordid, not just laced but actually dwelling on non-issues ( by that I mean persons, personalities, or maybe a little beyond, but staying well with certain parameters, which I choose to call the strait jacket of our honored research scholors).

The role of the courts in constitution making, can be a worthy contribution. Specially from that generation, whom we never gave a second thought, as to the seriousness and evolution of nationalism, unknown atleast to the three earlier generations, who not failed themselves, but colectively collapsed as a society.

We should all wish Ghazia the very best in her research project. At last law is witnesing a new dawn, hopefully a promising one, this time.

Role of Judiciary in Constitution Making in Pakistan Re: # 18
Zakk,
Good points raised. My congratulations:) there.

However, your pointation of ZAB`s case, not holding brief for the government, do study disspaionately the role of the defence counsels also. One has yet to seethe arguments in a muder appeal going on for months on end. The prtocratination in fact led to the retirement of one judge, and there after Justice Waheeduddin fell sick. He was hearing the case as an ad-hoc judge, brought in again in the Supreme Court, after his retirement. Both the judges were very senior highly repectd and above approach. The defence was fuly aware of the inclination of the Court at the material time. Why wa stime allowed to be wasted? The role of the then Chief Justices of the Supreme Court and the Lahore High Court must also be kept in mind. If you are refering to the Review which was filed, we must bear in mind the extremely limited scope it has. certainly the minority judges, could not by any strech of legal fiction over ride or review the judgment passed by the majority judges.

As far as your allegation of Supreme Court being pressurized by the army at any stage during the hearing of Siafullah`s case. It is only hearsay. If that was the position, how come Supreme Court unanimously delivered a judgemnet on 21st June 1988, which virtually turned the politics of this county Ref: Benezai Bhutto v. Federation of Pakistan. And this judgment was delivered during the lifetimeof General ZiaulHaq.

I suggest that instead of preconcieved notions, we ought to go into adeeper research on the subject, a detached and neutral observation is nessacary, if any research is to made fruitful.

Role of Judiciary in Constitution Making in Pakistan Re: # 12
I wonder why the list is so short. Had I been in your shoes. I would have initially taken up Maulana Adul Sattar Khan Niazi`s case(1953), Munir Commission Report on Qadiuani Movement violence, Usif Patel v. Crown (1954), Governor General`s Reference (1955), and later Benazir Bhutto v. Federation of Pakistan (1988), prior to Zafar Ali Shah, Liaqat Baluch Case (1999), the list can never be exhaustive.

As for the views posted and your absorption, yes, they are indeed providing rich material to your approach, rather concretizing it.

Keep it up Ghazia:) and GOOD LUCK on your project.

Role of Judiciary in Constitution Making in Pakistan Re: # 13

Every representative democracy is founded on the `will` of `the people`. Can we disagree with this proposition? The repositry of the will is not just the legislature, but efectively the courts too find the moral sanctions as the only force available for the enforcement of their judgements. Constitutional provisions not withtanding. This is true for every democratic system.

The courts no doubt are a creature of the constitution, and as such interpret the constitution while doing so, it is the court who finally says what the constitution is?. Ref: Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

How would this jurisdiction in the context of democratic or non-democratic government be phrased.

While insistence on limiting the role of courts to that of mere interpretator, is undeniably the hall mark of many legal systems. It cannot however, be denied, the quest for an effective judicially acive courts is in line with the post modern jurisprudence, and judicial philosophy.

When we say `government`. What does the term construe? It should in my view not be equated in the conservative context, of the traditional meaning assigned to it.

Class Interest Litigation, or PIL is one form of enforcing fundametally established principles of law. We certainly cannot equate such enforcement with taking over the governmental or legislative functions by the courts. PIL is part of our Constitution through Article 184 (3), but it could only survive a decade, and died in its infancy. In india, the Supreme Court sou moto assumed the juisdiction, and today the courts ther are playing a much healthier positive and constructive role in hormonizing the sociatal frictions.

Hasan siddiqi, this is meant only as an argument. I respect your views and find substance in them. The questions arising out of the statement made by Ghazia Aslam, have only been posed, again not by any disrespect to you.

Role of Judiciary in Constitution Making in Pakistan Ghazia,
Your article as I had pointed out earlier, is indeed, breath of fresh air. We must all remember, that any evolution and progress is only posible through academic dicussions. You have entered an area, which has not been tread upon at all. As the comments keep coming in, one finds that individual instances are once again becoming the topic. Do correct me if I am wrong, it is not about individuals and personalities. The time now is address the issues, one critical of all, is the role of the courts, which you have raised.

We have to keep this going, and not get bogged down in trivialties.

And as for 1999 events and the courts. I would be educated, if some one could give one, simply one example besides the Case of Fiji, where the courts have not given legal cover to a successful coup. The reason, WHY? is available in Madzimbamuto v. Lardner-Burke (1969) AC 1 645.

One more reminder, what about Dosso`s Case?, and the ensuing sequence of judgments. For that matter, even Asma Jilani`s case was decided after the fall of Dacca, with no military government in power in 1972. So, why isolate Zafar Ali Shah`s Case?

Role of Judiciary in Constitution Making in Pakistan Ghazia,
In my view, you have raised a question for a healthy debate. However, in the first instance any comparision of the U.S. Supreme Court and the Supreme Court of Pakistan (American judiciary and Pakistan`s judiciary) would not resolve the question you have posed here, though by all means, it would provide for an illuminating study.
Why, I say so, is primarily on account of the critical difference present beween the two systems. Constitution of Pakistan finds its roots in Analytical Law, while United States Constitution is founded on Normative Law or what is commonly called `the fundamentally established priciples of law`. By way of example, lets read Amendment I of the U.S. Constitution ``Feedom of religion, and the press, rights of assembly and petition: `Congress shall not make any lawrespecting an establishment of religion, or prohibiting the free exrcise thereof, or abridging the freedom of speech, or of the press, or right to the people to keep and bear Arms, shall not be infringed.```

In contrast Article 19 of the Constitution of pakistan lays down:` Freedom of Spech, etc. : Every citizen shall have the right to freedom of speechand expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity security or defence of Pakistan or any part thereof, friendy relations with foriegn states, public order, decency or morality, or in relation to contempt of court...`

Article 20 reads:`Freedom to profess religion and to mange religious instutions:-subject to law, public order and morality_-...`

Pakistan constitutional scheme has common law, institutional, and legal reasoning traditions
wher the courts cannot take upon themselves the jurisdiction, which you have quoted Marbury v. Madison (1803). In the paticular case, U.S. States Supreme Court assumed a jurisdiction which was not expressly provided for in the Constitution. In pakistan majority of the judemnets which may be in your mind, are mostly deciding the `the doctrine of state nessicity`. However Madzimbamotos` Case (1969) and most recently that Republic of Fiji v. N.S. Prasad (2001), and ofcourse from our own jurisdiction Asma Jilani`s Case (1972) can provide much better understanding on Han`s Kelsen`s theory.

The rulings on the rights of the citizenry, do read Shehla Zi`a (1994) case. It still remains to be enforced by the excutive. And, by the way that was the closest our apex court ever went towards judicial activism.

Religion as understood in American Constitutioanl Law would always be at odds with a theocratic constitutional scheme. Refer to Artice 2-A of Constitution of Pakistan.

I admit I have to agree with Mantolives when he refers to `Plessey Vs Ferguson`. Yes, there are too many dichotomies between the two systems to provide any answer to your quewstion

The Impact of the Greek Philosophers on Modern Education Re: # 4

I couldn`t agree more. Philosophy and education go hand in hand. Without a philosophical base, education loses its essence. A lovely article, a joy to read.