Wednesday, September 5, 2012
BY:MARKANDEY KATJUIn a democracy, the remedy for a malfunctioning legislature and executive must come from the people, not the judiciary It is evident that the Pakistan Supreme Court has embarked on a perilous path of confrontation with the political authorities, which can only have disastrous consequences for the country. Recently its Chief Justice said that the Constitution, not Parliament, is supreme. This is undoubtedly settled law since the historical decision of the U.S. Supreme Court in Marbury vs. Madison (1803). The grave problem, however, that courts are often faced with is this: on the one hand, the Constitution is the supreme law of the land and, on the other hand, in the garb of interpreting the Constitution, the court must not seek an unnecessary confrontation with the legislature, particularly since the legislature consists of representatives democratically elected by the people. The solution was provided in the classical essay “The Origin and Scope of the American Doctrine of Constitutional Law” published in 1893 in the Harvard Law Review by James Bradley Thayer, Professor of Law at Harvard University. It elaborately discusses the doctrine of judicial restraint. Justices Holmes, Brandeis, and Frankfurter of the U.S. Supreme Court were followers of Prof. Thayer’s philosophy of judicial restraint. Justice Frankfurter referred to Thayer as “the great master of Constitutional Law,” and in a lecture at the Harvard Law School said: “If I were to name one piece of writing on American Constitutional Law, I would pick Thayer's once famous essay, because it is a great guide for judges, and therefore the great guide for understanding by non-judges of what the place of the judiciary is in relation to constitutional questions.” The court certainly has power to decide constitutional issues. However, as pointed out by Justice Frankfurter in West Virginia State Board of Education vs. Barnette 319 U.S. 624 (1943), since this great power can prevent the full play of the democratic process, it is vital that it should be exercised with rigorous self restraint. SEPARATION OF POWERS: The philosophy behind the doctrine of judicial restraint is that there is broad separation of powers under the Constitution, and the three organs of the State, the legislature, the executive, and the judiciary, must respect each other, and must not ordinarily encroach into each other's domain, otherwise the system cannot function properly. Also, the judiciary must realise that the legislature is a democratically elected body, which expresses the will of the people (however imperfectly) and in a democracy this will is not to be lightly frustrated or thwarted. Apart from the above, as pointed out by Prof. Thayer, judicial over-activism deprives the people of “the political experience and the moral education and stimulus that comes from fighting the problems in the ordinary way, and correcting their own errors”. In Asif Hameed vs. The State of J&K, AIR 1989 S.C. 1899 (paragraphs 17 to 19), the Indian Supreme Court observed: “Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State. The legislature, executive, and judiciary have to function within their own spheres demarcated in the Constitution. No organ can usurp the function of another. -- While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.” Judicial restraint is particularly important for the Supreme Court for two reasons: (1) Of the three organs of the state, only one, the judiciary, is empowered to declare the limits of jurisdiction of all three organs. This great power must therefore be exercised by the judiciary with the utmost humility and self restraint. (2) The errors of the lower courts can be corrected by the higher courts, but there is none above the Supreme Court to correct its errors. Some people justify judicial activism by saying that the legislature and executive are not properly performing their functions. The reply to this argument is that the same charge is often levelled against the judiciary. Should the legislature or the executive then take over judicial functions? If the legislature and the executive do not perform their functions properly, it is for the people to correct them by exercising their franchise properly, or by peaceful and lawful public meetings and demonstrations, and/or by public criticism through the media and by other lawful means. The remedy is not in the judiciary taking over these functions, because the judiciary has neither the expertise nor the resources to perform these functions. In this connection I may quote from an article by Wallace Mendelson published in 31 Vanderbilt Law Review 71 (1978): “If, then, the Thayer tradition of judicial modesty is outmoded, if judicial aggression is to be the rule, as in the 1930s, some basic issues remain: “First, how legitimate is government by Judges? Is anything beyond their reach? Will anything be left for ultimate resolution by the democratic process, for, what Thayer called ‘that wide margin of considerations which address themselves only to the practical judgment of a legislative body representing (as Courts do not) a wide range of mundane needs and aspirations?’ “Second, if the Supreme Court is to be the ultimate policy making body without accountability, how is it to avoid the corrupting effects of raw power? Also, can the Court satisfy the expectations it has aroused? “Third, can nine men [the Supreme Court Judges] master the complexities of every phase of American life? Are any nine men wise enough and good enough to wield such power over the lives of millions? Are Courts institutionally equipped for such burdens? Unlike legislatures, they are not representative bodies reflecting a wide range of social interest. Lacking a professional staff of trained investigators, they must rely for data almost exclusively upon the partisan advocates who appear before them. Inadequate or misleading information invites unsound decisions. “Finally, what kind of citizens will such a system of judicial activism produce, a system that trains us to look not to ourselves for the solution of our problems, but to the most elite among elites: nine Judges governing our lives without political or judicial accountability? Surely this is neither democracy nor the rule of law.” In Marbury vs. Madison (1803), Chief Justice Marshal, while avoiding confrontation with the government of President Jefferson, upheld the supremacy of the Constitution. Another example is the very recent judgment of U.S. Chief Justice John Roberts in the Affordable Healthcare Act case, in which he basically followed the doctrine of judicial restraint. In Divisional Manager, Aravali Golf Course vs. Chander Haas (2006) the Indian Supreme Court observed: “Judges must know their limits and not try to run the government. They must have modesty and humility and not behave like Emperors. There is broad separation of powers under the Constitution, and each of the organs of the state must have respect for the others and must not encroach into each other’s domain.” A similar view was taken in Government of Andhra Pradesh vs. P. Laxmi Devi. NEW DEAL LEGISLATION: A reference may usefully be made to the well known episode in the history of the U.S. Supreme Court when it dealt with the New Deal legislation initiated by President Franklin Roosevelt soon after he assumed office in 1933. When the overactive court kept striking down this legislation, President Roosevelt proposed to pack the court with six of his nominees. The threat was enough, and it was not necessary to carry it out. In 1937, the court changed its confrontationist attitude and started upholding the legislation (see West Coast Hotel Vs. Parrish). “Economic due process” met with a sudden demise. The moral of this story is that if the judiciary does not maintain restraint and crosses its limits there will be a reaction which may do great damage to the judiciary, its independence, and its respect in society. It is not my opinion that a judge should never be activist, but such activism should be done only in exceptional and rare cases, and ordinarily judges should exercise self restraint. In Dennis vs. U.S. (1950), Justice Frankfurter observed: “Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardised when Courts become embroiled in the passions of the day, and assume primary responsibility in choosing between competing political, economic, and social pressures”. The Pakistan Supreme Court would be well advised to heed these words of wisdom, even at such a late stage. (Justice Markandey Katju is chairman of the Press Council of India.)
معروف تجزیہ نگار اورسینئر صحافی مجیب الرحمن شامی نے کہا ہے کہ صدرآصف علی زرداری کے دو
Deutsche WelleReligious extremists and security forces continue to intimidate progressive journalists in Pakistan. In a recent incident, a Karachi-based journalist was beaten by fanatics for listening to music in his house. A few days ago, Zainul Abedin, who works at Pakistan's English-language The News daily, was dragged out of his house in the middle of the night and beaten up by four bearded men. Then he was warned that if he watched TV in his house and listened to music, he would be killed. Abedin went to the police station to report the incident, but was met with resistance. This all happened in the heart of Karachi - a relatively liberal city with a population of more than 15 million - and not in one of the restive, semi-governed northwestern tribal areas of Pakistan on the border with Afghanistan."As they (the fanatics) delivered more kicks, slaps and blows, they kept saying: ‘We will not let you go unless you repent,'" Abedin wrote in an email that he sent to the city's journalists' unions. "They went away shouting abuse and threats such as: 'Next time it will be worse. Do not turn on your TV and no songs and qawwalis (mystical songs) here. You will not live if it happens again. You and this house will be no more. We will not break the windows, we will shoot you, kill you.'"
FrighteningCommenting on the harassment of Abedin, Dr. Riaz Ahmed, a political activist and professor at Karachi University, told DW that it was not merely about music and TV but was an organized attempt by the Islamists to intimidate journalists. Ahmed also criticized media owners for compromising with Pakistan’s right-wing groups. He pointed out that Abedin's own newspaper had not taken any notice of the incident for several days. "The message being conveyed by the media owners to journalists like Abedin is: 'If the mullahs beat you up, you should not protest," he said, adding that commercial interests of the Pakistani media and religious groups were closely linked. Ghazi Salahuddin, a senior journalist at the Jang Group of Publication, which also owns The News, told DW that Pakistani journalists had to work under very difficult circumstances. "Many journalists feel scared and threatened. Pakistani politics has been criminalized. It has become very difficult for journalists to perform their tasks freely," he said, adding that journalists' unions should ensure that the rights and lives of people working in the media were protected. Ahmed's point of view was that the journalists' unions were either intimidated themselves or too corrupt to stand up against the media owners.
IntimidatingObservers say that progressive sections of Pakistani society are being systematically intimidated by Islamists. Pakistan's liberals are extremely worried about the growing influence of right-wing groups in their country, and they feel that their freedom is at risk in the Islamic Republic. Pakistani rights activists also complain that the Islamists enjoy state patronage, whereas liberal and progressive voices often have to face the wrath of the country's security agencies. They say that if a progressive journalist working for a big newspaper such as The News is unsafe in Karachi, then the risks faced by journalists in the conflict zones of northwestern Khyber Pakhtunkhwa and the western Balochistan provinces are easily imaginable.
PerilousA 2012 UNESCO report ranks Pakistan "the second most dangerous country for journalists the world over" after Mexico. According to the South Asian Free Media Association (SAFMA), 17 journalists were killed in South Asia in 2011, 12 of them in Pakistan. Terrorism and Islamism are the most dangerous issues for Pakistani journalists to report on, SAFMA said. Nasir Tufail of Geo TV told DW that the local and foreign media rely on only a few journalists for information about the restive northwestern tribal areas. “Most journalists can’t even enter these areas,” he said. "Therefore, it's impossible to get reliable news about the Taliban and the 'war on terror.'" He added that most journalists would not even think of venturing into "most parts of Balochisan, where the military is operating against separatists. How can you expect independent reporting?" Imtiaz Alam, the secretary general of SAFMA, blamed both state and non-state elements for the situation. "So many journalists in Pakistan have been killed. Yet nobody has ever been brought to justice for their murders."
Associated PressOfficials say Pakistan, Afghanistan and the U.S. have held discussions about providing Taliban leaders safe passage to participate in peace negotiations. Pakistan's Foreign Ministry says representatives from the three governments held the inaugural meeting of the Safe Passage Working Group in Islamabad on Wednesday. They agreed to form the group in April. A U.S. official says the group is focused on choosing which Taliban leaders should be provided safe passage, guaranteeing their security and dealing with logistics like visas. The official described the meeting as positive. The official spoke on condition of anonymity because he was not authorized to discuss the meeting with reporters. Many Taliban leaders are believed to be based in Pakistan. Islamabad is seen as key to peace talks because of its historical ties to the Taliban.
EDITORIAL:THE FRONTIER POST
The writer is a senior journalist and academic based in Sydney, Australia.
The Express TribuneA 12-year-old daughter of Pakistan, Rimsha Masih, is in jail without bail for burning pages of Quranic verses even after the police found she was victimised through a trumped-up charge by a local cleric determined to oust the Christian community from the village of Mehrabad, near Islamabad. She suffers from Downs’s syndrome and may not understand why she is being maltreated. Even after the discovery that the cleric was indulging in a criminal plot against the Christian community, she has not been allowed to return home on bail. A crowd was organised to oust the Christian community upon appeals from mosque loudspeakers. The mob went to the house of Rimsha and started kicking the door asking the parents to hand her over. They finally entered the house and gave a beating to the little girl and her mother. Following this, the police were informed, who immediately took the girl away and put her in jail under the ‘non-bailable’ black law. The Capital Development Authority has reassured those who were evacuated that they will be returned to their homes and their tormentors will be forced under law to relent. The displaced families were made to move to another place where the local inhabitants refused to let them stay temporarily because they feared ‘incidence of crime due to their presence’. The shock administered by this case of blasphemy has been felt inside Pakistan. It has deepened the despair the outside world feels about our country; and the Christian Church is once again appealing to do something about a law that, as now proved beyond all doubt, is causing harm to Pakistan and its reputation. This happened on August 16, on the 27th of Ramazan, thus further raising suspicions as to when Rimsha was put in confinement. A few days ago, even after a witness alerted the authorities that the cleric had cooked up the story of burning the Holy Quran by putting scarred pages in a bag that Rimsha was carrying, the police have still not released her. The judiciary is silent so far but the Supreme Court should take suo-motu notice and get the girl placed in a better environment which her age, her health and her innocence deserve. What people have always said about the law and are still saying is this: “In blasphemy cases, the state institutions just try to defuse the pressure of accusers by registering a case against the accused”. Both the police and the judiciary take the side of the accuser. During the last two decades or so, more than 1,000 cases of blasphemy have been registered and it is believed that a vast majority of these cases were fake. Not even a single accuser in these fake cases has been convicted, implying that the state patronises the accusers at some level. Laws are usually made after criminal acts are observed in society. In this case, criminal acts have followed the enforcement of the law. The victimisation follows a familiar pattern. In February 1997, the twin villages of Shantinagar-Tibba Colony, 12 kilometres east of Khanewal, in Multan division, were looted and burnt by 20,000 Muslim citizens and 500 policemen. The police first evacuated the Christian population of 15,000, then helped the raiders use battlefield explosives to blow up their houses and property. In November 2005, the Christian community of Sangla Hill in Nankana district in Punjab experienced a most hair-raising day of violence and vandalism. Three churches, a missionary-run school, two hostels and several houses belonging to the Christian community were destroyed by an enraged mob of some 3,000 people. The Supreme Court must act to save Rimsha Masih and, thereafter, declare the blatant misuse and abuse of the blasphemy law against the spirit of Islam and against the ‘grundnorm’ of the Constitution. Or, is it true that like the politicians, the institutions of the state are too scared to act?
DAILY TIMESRecommendations by the Council of Islamic Ideology of Pakistan (CIIP) on the country’s most discussed blasphemy law which have been presented to parliament await the government’s response for the last several years. Apparently the government is reluctant to give a final nod due to unknown reasons. Some believe that clerics are pressing the government not to consider these recommendations. The CIIP has made these recommendations on a reference sent by the federal government in the wake of increasing complaints about the misuse of the law. According to religious scholars, the misuse of the blasphemy law was tantamount to blasphemy, and therefore a person who was guilty of misuse of this law should be punished under the same law. The council has recommended death penalty for anybody misusing the blasphemy law. “The incorrect complainant and witnesses in a blasphemy case should be handed similar punishment (capital punishment) as a guilty person,” the recommendations read. “The government should not allow anyone to misuse the blasphemy law and it should take all appropriate measures whether administrative, procedural or legislative to stop incidents of mishandling the blasphemy law.” It has also recommended only the judges of the Federal Shariat Court (FSC) hold proceedings in blasphemy cases (The FSC consists of five permanent judges and three renowned Islamic scholars). The council has recommended that police should investigate the complaint systematically before registering a case. It is also proposed that the complainant should produce concrete evidence to substantiate charges while lodging a first information report (FIR), adding that the accused should be given the right to defend himself or herself through a legal adviser. It also adds that a first-class magistrate should supervise the police investigations prior to the registration of the case. However, the council strongly opposed any amendment in the blasphemy law, particularly in Section 295-C, a far as the penalties are concerned. The proposals also authenticate the capital punishment in the light of the holy Quran and Sunnah for blasphemy. Sources said the CIIP had given several reminders to the Interior and Religious Affairs ministries in this regard, but the successive governments had not even cited reason (s) for delaying the recommendations. The National Assembly sources said the recommendations consisted of volumes of books and the lawmakers usually did not have enough time to read these books in detail. CIIP Secretary Ilyas Khan said the recommendations were always in detail, as these could only be understood in “their reference to context”. “The court judges pen down a detailed verdict to justify their decisions even on a simple matter, these are valuable proposals related to prestige of Islam and the legislators should spare some time for them,” he remarked. Talking about the validity of the proposals, he said recommendations would remain valid until and unless they were rejected by parliament. He said the recommendations were tabled in 2001 when religious scholars Dr SM Zaman, Rafi Usmani and Mufti Munibur Rehman were in the council. The council also enjoyed the support of religious scholars of all schools of thought at that time, he added. Some people, however, have different opinion and they say it is the most sensitive issue that has claimed several lives, including two top political figures. The international community was pressing the government to bring reforms in the law, but the PPP-led government seemed careful due to threats by religious parties and upcoming general elections, they added.
http://www.boston.com/Quotes from first lady Michelle Obama’s speech Tuesday to the Democratic National Convention: ____ ‘‘Our life before moving to Washington was filled with simple joys. Saturdays at soccer games, Sundays at grandma’s house and a date night for Barack and me was either dinner or a movie, because as an exhausted mom, I couldn’t stay awake for both. And the truth is, I loved the life we had built for our girls and I deeply loved the man I had built that life with and I didn’t want that to change if he became president. I loved Barack just the way he was.’’ ____ ‘‘You see, even though back then Barack was a senator and a presidential candidate, to me, he was still the guy who'd picked me up for our dates in a car that was so rusted out, I could actually see the pavement going by in a hole in the passenger side door. He was the guy whose proudest possession was a coffee table he'd found in a dumpster, and whose only pair of decent shoes was half a size too small.’’ ____ ‘‘Well, today, after so many struggles and triumphs and moments that have tested my husband in ways I never could have imagined, I have seen firsthand that being president doesn’t change who you are. No, it reveals who you are.’’ ____ ‘‘And as president, you are going to get all kinds of advice from all kinds of people. But at the end of the day, when it comes time to make that decision, as president, all you have to guide you are your values, and your vision, and the life experiences that make you who you are.’’ ____ ‘‘When it comes to the health of our families, Barack refused to listen to all those folks who told him to leave health reform for another day, another president. He didn’t care whether it was the easy thing to do politically. No, that’s not how he was raised — he cared that it was the right thing to do.’’ ____ ‘‘And believe it or not, when we were first married, our combined monthly student loan bill was actually higher than our mortgage. We were so young, so in love, and so in debt. That’s why Barack has fought so hard to increase student aid and keep interest rates down, because he wants every young person to fulfill their promise and be able to attend college without a mountain of debt.’’ ____ ‘‘Barack knows the American Dream because he’s lived it, and he wants everyone in this country to have the same opportunity, no matter who we are, or where we’re from, or what we look like, or who we love.’’ ____ ‘‘So when people ask me whether being in the White House has changed my husband, I can honestly say that when it comes to his character, and his convictions, and his heart, Barack Obama is still the same man I fell in love with all those years ago.’’ ____ ‘‘For Barack, success isn’t about how much money you make, it’s about the differences you make in people’s lives.’’ ____ ‘‘He’s the same man who, when our girls were first born, would anxiously check their cribs every few minutes to ensure they were still breathing, proudly showing them off to everyone we knew. You see, that’s the man who sits down with me and our girls for dinner nearly every night, patiently answering questions about issues in the news, strategizing about middle school friendships.’’ ____ ‘‘And I didn’t think that it was possible, but let me tell you today, I love my husband even more than I did four years ago, even more than I did 23 years ago, when we first met.’’