RIGHT PATH

INDIA _ Ethics of Judges & Judicial Accountability

2010-10-17T12:07:00.000-07:00

In a Democracy, the Judiciary, as a custodian of constitutional rights and obligations cannot be above public accountability. Judicial independence and accountability are interlinked. Hon'ble Mr. Justice S.H. Kapadia , Chief Justice of India said: “When we talk of ethics, the judges normally comment upon ethics among politicians, students and professors and others. But I would say that for a judge too, ethics, not only constitutional morality but even ethical morality, should be the base…[2]”

The well-known legal luminaries including Former Chief Justice of India S.Venkataramaiah and Former Judge of the Supreme Court D.A.Desai and another Former Judge of the Supreme Court Chennappa Reddy have expressed the view that if all the sections of the society are accountable for their actions, there is no reason why the Judges should not be so[3]. Former Chief Justice, Verma recognized the validity of this plea when he remarked on one occasion, “These days we (Judges) are telling everyone what they should do but who is to tell us? We have task of enforcing the rule of law, but does not exempt and even exonerate us from following it”.

It is perhaps pertinent to remember that every advanced democratic country has evolved its own procedure of judicial accountability. In India, time has now come to ensure judicial accountability, perhaps through the constitution of a National Judicial Commission and formation for forum of redressal of grievances of common man. Judicial independence and Judicial accountability are neither incompatible nor mutually exclusive concepts. Rather Judicial accountability concept increases the legitimacy of the judiciary amongst the people and vis-à-vis it discharges its duties more effectively and efficiently.

History teaches us that no justice can gain public respect by making it immune from public criticism; instead public confidence is reposed on an institution on the basis of its performance and transparency of it’s action. The same holds ground from the Indian Judiciary. Besides the aforesaid, a criminal law on defamation itself provides adequate safeguards to protect the reputation and dignity of the honest Judges in the country.

For proper implementation of this concept of judicial accountability, it is necessary that the Judges should follow a code of conduct which may be broadly called as ethics for Judges.

Code of Ethics of a Judge:-
1. Judicial decision to be honest:- It is, therefore, absolutely essential that in order that the Judge’s life is full of public confidence in their role in the society, the judicial decision is to be honest and fair. No judicial decision is honest unless it is decided in response to an honest opinion formed in the matrix of the judges proficient of law and fact. However, the perception of an individual judge may be wrong. But a wrong decision honestly made does not make that decision dishonest. A decision becomes dishonest if not decided on judicial conviction of fairness, honesty and neutrality. Judicial decisions can be tainted when such decision is based on conviction which has its origin to any external and irrelevant stimuli, such as, friendship with a lawyer, acquaintance of the Judge with the party to the litigation, obliging someone whom the judge knows who might have intervened in the decision making, receipt of gratification etc. In order to be a judge on whom public can repose confidence, he must be true to the judicial oath and must not allow anyone to interfere with that.

2. Judge trying a case is himself on trial:- Lord Denning M.R in his book[4] has observed as follows:-
“When a judge sits to try a case, he is himself on trail-before his fellow country men. It is on his behaviour that they will form their opinion on our system of justice. He must be robed in the scarlet of the red judge-so as to show that he represents the majesty of law. He must be dignified-so as to earn respect to all who appear before him. He must be alert to follow, all that case on. He must be understanding-to show that he is aware of the temptation that beset any one. He must be merciful so as to show that he too has that quality which dropeth as gentle rain from heaven upon the place beneath”.

Thus, the great guarantee of justice is not law but the personality of the judge and the way he discharges his duties and functions. The warranty of appointment of a judge does not confer on him a degree of wisdom, larger than he has. But it certainly places him under an obligation to dispose justice without fear or favour, affection or ill-will in consequence of his oath of office and not to go out of his way to be on the right side of the establishment which is the biggest litigant in any country. Therefore, if the element of the fear, favour, affection or ill-will come to play any role in the formation of judicial opinion or affect the judicial behaviour of a judge, the judgment though unimpeachable by the judge at the time of holding the office of a judge.

3. Code of ethics for the Judges:- In order to make a judicial decision fair, without any objective and without any bias, a Judge should follow certain code of ethics. The code of ethics which should guide a Judge in execution of the judicial functions may be summarized as follows:-

(i) The basic code of ethics is the principle that no man can be judge in his own cause[5]. The principle confines not merely to the cause where the Judge is an actual party to a case, but also applies to a case in which he has interest. A Judge should not adjudicate in a case if he has got interest therein. Judge do require a degree of detachment and objectivity in judicial dispensation. They being duty bound by the oath of office taken by them in adjudicating the disputes brought before the court in accordance therewith, Judges must remain impartial, should be known by all people to be impartial. This is made clear by the Supreme Court[6].

(ii) Judges must not fear to administer justice. “Fiat justitia, ruat caelum” that is “let justice be done though the heavens fall” should be followed as a motto by a Judge. Every unjust decision is reproach to the law of the Judge who administers it. A judge should not allow either reason of the Judge who administers it. A Judge should not allow either reasons of State or political consequences, however, formidable they might be, to influence his decision. He should guard against intimidation of powerful outside interests, which often threatened the impartial administration of justice and keep himself free from application of crude pressure, which may result in manipulation of the law for political purposes at the behest of the government in power or anybody else. Lord Mansfield’s observation in this context in the celebrated case of John Wilkes is worth noting. John Wilkes had published a seditious libel in a paper called the North Briton. He had fled abroad and been outlawed. He returned and himself asked for the outlawry to be reversed, but he was cast into prison meanwhile. He was a popular hero and many supported him and urges his release. Numerous crowds thronged in or around West Minister Hall. Pamphlets were issued in the name of the people dictating the Judges the way they should decide. Reason of policy were urged emphasizing the danger to the Kingdom by commotions and general confusion. This is how Lord Manfield answered them when he came to give Judgment:

“ Give me leave to take the opportunity of this great and respectable audience, to let the whole world know, all such attempts are in vain. Unless we have been able to find an error, which will bear us out, to reverse the outlawry, it must be affirmed. The Constitution does not allow reasons of State to influence our judgments: God forbid it should. We must not regard political consequences, we are bound to say “fiat justitia, ruat caelum”. The Constitution trusts the King with reasons of State and policy; he may stop prosecutions; he may pardon offences; it is his, to judge whether the law or the criminal should yield. We have no election. We are to say, what we take the law to be; if we do not speak our real opinions, we prevaricate with God and our consciences.. Once for all, let it be understood, that no endeavours of this kind will influence any man who at present sits here”[7].

(iii) Parties to the dispute be treated equally and in accordance with the principles of law and equity. A judge does not belong to any person or section or division or group. He is the judge of all people. In the courts of law there cannot be double standard-one for the highly and another for the rest. A Judge should not have any concern with personalities who are parties to the case but only with merits[8]. He must treat the parties to the dispute equally, giving them an equal opportunity during the trial. The Rt.Hon.Lord Hewart of Bury, Lord Chief Justice of England, said that it is “essential to the proper administration of justice that every party should have an opportunity of being heard, so that he may put forward his own views and support them by argument and answer the views put forward by his opponents”[9].

The Supreme Court said in the celebrated case “No man’s right should be affected without an opportunity to ventilate his views”[10]. A Judge is , therefore, expected to be serene and even-handed, even though his patience may be sorely tried thereby and the time of the court appear to be wasted[11]. Lord Reid’s observation in Wiseman’s case is worth noting in this context when he said that “where the decision is to be reached by a body acting judicially there must be a balance between the need for expedition and the need to give full opportunity to the defendant to see the material against him”[12].

After all justice, in the words of Lord Denning, “should not be done as speedily as dust can fall from the foot”[13].

It deserves mentioning here that the court’s time is not wasted unnecessarily if a matter is heard in details to the satisfaction of the parties to the dispute with equal opportunity to all. Even the defeated person in that event leaves the court precincts with the feeling that he received what he deserved. “Justice must be felt to be just by the community if democratic legality is to animate the rule of law”[14]. And if the invisible audience sees that parties to the dispute were not treated equally, a chorus of no confidence will be heard to say that the deprived party had no chance to defend his stances.

In classical language of metaphor, the God of Justice sits on a golden throne, but at his feet sit two lions-‘law and equity’. A Judge will fail to discharge his duty if he disregards their presence and participation. The first duty of a Judge is to administer justice according to law, the law which is established by the legislative authority or the binding authority of precedent. Where the law appears clear, he can shrug his shoulders, bow to what he regards as the inevitable and apply it. If the law should be in danger of doing injustice then equity should be called in to remedy it. Equity was introduced to mitigate the rigour of the law. A Judge may, if he has moral intellectual, social or other twinges, set out to make new law if he thinks the existing legal situation unsatisfactory. But he risks troubles if he goes about it too blantantly; and if the law has been declared in statutory form, it may prove too much for him, dislike it though he may.

(iv) Distances may be maintained from the relations and acquaintances, parties to the dispute and their lawyers. Judges should be cautious in their outlook and approach. They should neither provide supportive stool to their sons and daughters, close relations and acquaintances in order that they may succeed in the profession nor recognize chosen ones in that sphere.

Since judging is not a profession but a way of life, the judge must distance himself from the parties to the dispute and their lawyers during the conduct of the trial. One can notice now a days the growth of a new caste in legal profession who thrive not by intellectual or professional capabilities but by utilizing their close connection with the judges. The growth of this suspicious trend can be checked if practicing lawyers and sitting judges avoid meeting frequently in private. Persons who occupy high public offices must take care to see that those who claim to be close to them are not allowed to exploit that closeness, alleged or real[15].

(v) Too much of activity and participation in social functions be avoided.

It is often said that as a result of a very considerable amount of ordinary social activity, a Judge may become identified with people and points of view, and litigants may think they may not get fair trial. To repel that feeling, a Judge should avoid too much of social activity. Again, Judges should be very selective in attending social functions. Judges in England and USA generally decline such participation. If they attend even a private function, they ask for the list of invites. The Supreme Court in Ram Pratap Sharma v Daya Nand issued a note of caution to the effect that it is proper for a Judge not to accept any invitation and hospitality of any business or commercial organization or of any political party or of any club or organization run or sectarian, communal or parochial lines[16].

(vi) Media Publicity be avoided

As far as possible a Judge should keep off the media. He should refrain from expressing his views in media on matters either pending before him or likely to appear for judicial consideration. Else he may be accused of prejudging the issue and his neutrality may be questioned thereby. Lord Widgery, Lord Chief Justice of England since 1971 to 1980, said that “the best judge is the man who should not court publicity and should work in such a way that they don’t catch the eyes of the newsmen”. Lord Hailsham said that the “best judges are those who do not find their names in the The Daily Mail and still, who abhor it”[17].

(vii) Need of restrainment be not overlooked.

Socrates said, four things belong to a Judge; to hear courteously, to answer wisely, to consider soberly and to decide impartially.

In the matter of making disparaging remarks against a person or authority whose conduct comes into consideration before a court of law, a Judge should consider: (a) whether the concerned party or authority is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on their conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct[18].

Judicial pronouncement, it may be noted, should be judicial in nature and should not normally depart from sobriety, moderation and reserve[19].

A Judge should have the ability to recognize that he is not infallible and any party may be unjustified and if so, it may do considerable harm and mischief and result in injustice[20].

(viii) Judges not to yield to procrastinative tactics of the lawyer: It is the duty of the Judge to see that the lawyer does not intentionally delay the proceedings of the court by seeking repeated adjournments. When a complaint is made to the State Bar Council against an advocate for drawing of disciplinary proceedings by the Disciplinary committee of the State Bar Council on the ground that the concerned advocate had been seeking repeated adjournments for postponing the examination of the witnesses who are present in the court without making alternative arrangement for their examination, conduct of such advocate has been held by the Supreme Court to be professional or other misconduct, and it is the duty of the Bar Council of India has refused to entertain such a complaint against an advocate and the said order of the State Bar Council has been affirmed by the Bar Council of India, the Supreme Court in N.G.Dastane v Srikant S.Shinde[21] directed the complaint made by the client be enquired into by the disciplinary Committee of the State Bar Council. Apart from the question of the professional misconduct of the advocate, the Supreme Court has observed that the judicial magistrate who yielded to the procrastinative tactics should remain answerable to the High Court so that action can be taken against the magistrate on the administrative side for such serious latches. This decision of the Supreme Court clearly demonstrates that it is within the judicial ethics of a judge not only to administer justice honestly, impartially but also to administer it expeditiously. If the Judge or the Magistrate finds that an advocate is unnecessarily taking procrastinative tactics to delay the proceedings before the Judge, it is the duty of the Judge to take proper steps so that the concerned advocate is not encouraged to use such procrastinative tactics and to delay the trial.

Restatement of Values of Judicial Life
In India on 7th May 1997 a 16 point code of conduct, for ensuring proper conduct among members of the higher judiciary was adopted by the Judges of the Supreme Court and the High Courts with the Gujarat High Court as the sole dissenter, reportedly. The 16 point code which the Judges prefer to describe as “The Restatement of Values of Judicial Life” is believed to have become effective since then. It was drafted by a Committee of five Judges, headed by Justice Dr.A.S.Anand, as he then was. The other members were Justice S.P.Barucha, Justice K.S.Paripoornan, Justice M.Srinivasan and Justice D.P.Mohapatra. The 16 point code[22] stipulates:

(1) Justice must not merely be done but it must also be seen as done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, weather in official or personal capacity, which erodes the credibility of the perception has to be avoided.

(2) A Judge should not contest the election of any office of a Club, society or other association; further he shall not hold such elective office except in a society or association connected with the law.

(3) Close association with individual members of the Bar, particularly those who practice in the same court shall be eschewed.

(4) A Judge shall not permit any member of his immediate family to, such as spouse, son, or daughter, son-in-law, or daughter-in-law, or any other close relative, if as member of the Bar, to appear before him or even be associated in any manner with a case to be dealt with by him.

(5) No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the judge actually resides or other facilities for professional work.

(6) A Judge should practise a degree of aloofness consistent with the dignity of his office.

(7) A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.

(8) A Judge shall not enter into a public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.

(9) A Judge is expected to let his judgement speak for themselves. He shall not give interview to the media.

(10) A Judge shall not accept gifts or hospitality except from his family, close relations and friends.

(11) A Judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.

(12) A Judge shall not speculate in shares, stocks or the like.

(13) A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. (publication of a legal treaties or any activity in the mature of a hobby shall not be constructed as trade business).

(14) A Judge should not ask for accept contribute or otherwise actively associate himself with the raising of any fund for any purpose.

(15) A Judge should not seek any financial benefit in the form of a perquisite or privilege attached to his office unless it is clearly available. Any doubt in this behalf must be got resolved and clarified through the Chief Justice.

(16) Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which the office is held.

These are only the “Restatement of the Values of Judicial Life” and are not meant to be exhaustive but illustrative of what is expected of a Judge.

Conclusion:
Need of a new law suggested: The only remedy is to provide a legal conscience and for that there is necessity to enact a new law on the lines of Prevention and Corruption Act, 1988 under the purview of which the judges of the Supreme Court and the High Courts shall be brought, because neither the impeachment procedure of the Judges as provided in the Constitution nor the internal judicial machinery to prevent the corruption of Judges of the Higher Judiciary in India is workable.

US Supreme Court: Judicial Activism

2010-10-17T11:53:00.001-07:00

US Supreme Court:

Judicial Activism

The charge that judges are going beyond their appropriate powers and engaging in making law and not merely interpreting it. Against this position is placed the ideal of judicial restraint, which counsels judges to resist the temptation to influence public policy through their decisions and decrees.

Judicial activism is not prisoner to any particular ideological or political viewpoint; it can be conservative as well as liberal. A long period of American history was characterized by conservative judicial activism, by a Supreme Court unwilling to allow the states or Congress to pass legislation that would regulate social or economic affairs. Typically such legislation—laws governing child labor, workers' hours, and so forth—would be invalidated as violations of the Constitution's Commerce Clause or Contracts Clause or of the judicially created doctrine of “liberty of contract” under the Due Process Clause of the Fourteenth Amendment (see Contract, Freedom of). The best‐known example of conservative judicial activism is Lochner v. New York (1905), a case in which the Court invalidated New York's law regulating the hours bakers could work as a violation of “liberty of contract,” a part of the doctrine of substantive due process under the Fourteenth Amendment.

More recently the Court has been subject to criticism that it is engaging in liberal activism. This has been especially the case since the advent of the Warren Court and the revolution that it wrought in civil liberties; but the charge has continued through the Burger Court and into the Rehnquist Court. The argument is that in the name of expanding the “rights” a majority of the justices find agreeable, the Court is twisting the Constitution by disregarding the original meaning of the Due Process and Equal Protection Clauses in order to reach desired results (see Original Intent). Probably the best‐known example of liberal activism is Roe v. Wade (1973), in which the Court struck down restrictive abortion laws as violating the “right to privacy” it had previously found inherent in the Due Process Clause of the Fourteenth Amendment.

What practitioners of liberal and conservative activism have in common is their willingness, at least as perceived by their opponents, to abandon the literal words of the Constitution in pursuit of what the Supreme Court considers to be the just or right or reasonable course of action, whether that be the right of employers to set whatever conditions they see fit for their employees or the right of a woman to abort a fetus. In both instances critics of judicial activism charge that such decisions are properly left under the Constitution to the legislative power of the states.

The distinction between judicial activism and judicial restraint is closely related to the distinction between interpretivism and noninterpretivism and the question of whether it is ever appropriate for judges to import new meaning into the old words of the Constitution.

A campaign against judicial activism became a hallmark of presidencies as ideologically diverse as those of Franklin D. Roosevelt, Richard M. Nixon, and Ronald Reagan.

.
See also Constitutional Interpretation; Judicial Self‐Restraint

Bibliography

Raoul Berger, Government by Judiciary (1977).
Alexander M. Bickel, The Least Dangerous Branch (1962)

A Matter Worth Taking Suo Moto Action

2010-10-17T11:49:00.000-07:00

Supreme Court of Pakistan has directed former President of Pakistan. Mr. Musharraf to appear on court on 29th July. The case has not even started but a quick judgment prior to hearing from The Chief Justice of Lahore High Court and that too in front of hundreds of lawyers and media has already been passed.
Addressing the oath-taking ceremony of the Ferozwala Bar Association in Sheikhupura district, Lahore High Court Justice Mr. Khwaja Sharif passed a statement that Musharraf had seen good times and now should be ready to face bad times because of his deeds. He also said that Punjab Chief Minister Shahbaz Sharif would resolve issues of the judges’ salaries because he considered quick dispensation of justice vital according to The News, July 25, 09.
I am not sure if a serving high court judge has the right to pass any judgment or even comment on the extremely sensitive issue which is going to be started in Supreme Court of Pakistan after couple of days.
Mr. Khwaja’s views on former President and the current Nawaz Shareef Government clearly tell us the inclination and behavior of judiciary in Pakistan

After witnessing that particular behavior of our “esteemed judge” many doubts have been raised in my mind not only regarding the fair trial of Pervez Musharraf but the overall behavior and professionalism of Pakistani judiciary.
In next few days big things going to happen in our country. This is just a very first loop hole revealed in Musharraf’s trial.
Courtesy: Pakistan Desk.com

Nasir M. Aijaz on July 29th, 2009 : This judge must be tried for contempt of court.
In my opinion the whole lot of present judges including their chief are biased and have a chequered past. They all were availing the perks and benefits after taking oath twice under PCO in 1999 and 2002 and now have become saints and champion of judiciary.
They are paid servants of Nawaz Sharif and also getting dictations from the US.
We sure will see a lot of nonsense from these judges in the coming days and people will see their actual faces very soon.
nazia@gmail.com on August 10th, 2009 : SC DECISION IS BIGGEST FRAUD
The decision of Supreme Court of Pakistan dated 31st of July 2009 as projected by media is the biggest Fraud in Judicial History of Pakistan when it says that PCO judges have been sent home. PCO Judges are still working and non PCO judges have been sacked, packed and sent home. The beneficiaries of the recent judgment are Chief Justice Iftikhar Chaudhry, Mr. Justice Javed Iqbal, Mr. Justice Sardar Muhammad Raza Khan, Mr. Justice Khalil-ur-Rehman Ramday Mr. Justice Mian Shakirullah Jan, Mr. Justice Tassaduq Hussain Jillani etc. All these judges violated the constitutional oath and took fresh oath under the PCO of General Musharaf after Pakistan army ousted Nawaz Sharif in October of 1999.
The other set of PCO judges are Justice Faqir Muhammad Khokhar and Justice Javed Buttar etc. including other judges in High Courts who took oath under the PCO on 3rd of November 1999. All of them are judges even today and are still continuing.
Interestingly the judges who have been sent home had never taken oath under any PCO. Most of these Judges were not even appointed in General Musharaf’s period. Infact they were appointed after the restoration of democracy in the country. The name of these judges who took oath under the constitution are as under:-
1) Mr. Justice Pervez Ali Chawla
1) Mr. Justice Habib Ullah Shakir
2) Mr. Justice Nazir Ahmed Ghazi
3) Mr. Justice Abdul Sattar Goraya
4) Mr. Justice Syed Ihtasham Qadir Shah
5) Justice Ms. Jamila Jahanoor Aslam
6) Mr. Justice Mahmood Akhtar Khan
7) Mr. Justice Jamshed Rahmat Ullah
Mr. Justice Pervez Inayat Malik
9) Mr. Justice Arshad Mahmood
10) Mr. Justice Irfan Qadir
11) Mr. Justice Syed Zulfiqar Ali Bukhari
12) Mr. Justice Ch. Naeem Masood
13) Mr. Justice Anwar-ul-Haq Pannu
14) Mr. Justice Muhammad Shafqat Khan Abbasi
15) Mr. Justice Imtiaz Rasheed Siddiqui
16) Mr. Justice Bin Yamin
17) Mr. Justice Khalid Ali Z. Qazi
18) Mr. Justice Salman Ansari
19) Mr. Justice Abdul Rehman Farooq Pirzada
20) Mr. Justice Abdul Rasheed Klwar
21) Mr. Justice Zafar Ahmed Khan Sherwani
22) Mr. Justice Syed Mehmood Alam Rizvi
23) Justice Ms. Soofia Latif
24) Mr. Justice Maqbool Ahmed Awan
25) Mr. Justice Safdar Ahi Bhutto
26) Mr. Justice Moharram G. Baloch
27) Mr. Justice Malik Muhammad Aqil
28) Mr. Justice Syed Shafaqat Ali Shah Masoomi
29) Mr. Justice Muhammad Iqbal Mahar
30) Mr. Justice Khadim Hussain M. Sheikh
31) Mr. Justice Muhammad Ismail Bhutto
32) Mr. Justice Arshad Siraj Memon
33) Mr. Justice Aamir Raza Naqvi
34) Mr. Justice Muhammad Karim Khan Agha
35) Mr. Justice Salman Talibuddin
36) Mr. Justice Shaji Rehman Khan
37) Mr. Justice Ghulam Mohayuddin Malik
38) Mr. Justice Ziauddin Khattak
39) Mr. Justice Syed Mussaddiq Hussain Gilani
40) Mr. Justice Syed Yahya Zahid Gilani
41) Mr. Justice Muhammad Alam Khan
42) Justice Mazhar Hussain Minhas
43) Justice Muhammad Ashraf Bhatti
44) Justice Rana Zahid Mehmood
45) Justice Kazim Ali Malik
46) Justice Hafiz Tariq Nasim
47) Justice Khalil Ahmad
48) Justice MA Zafar
49) Justice Malik Saeed Ejaz
50) Justice Syed Shaheen Masud Rizvi
51) Justice Ali Akbar Qureshi
52) Justice Muhammad Ahsan Bhoon.
The aforesaid 52 judges have never ever taken oath under the PCO. They have been ousted. The nation is celebrating and all the PCO judges are still continuing as judges. In short the fight between post November 3 PCO judges and post October 12 PCO judges has resulted in ouster of judges who took oath only under the Constitution of Pakistan and never ever under the PCO. The media, PML[N], the lawyers and other political forces are mixed up and are rejoicing the ouster of constitutionally appointed judges and PPP seems ignorant of this fact. Such things can only happen in Pakistan. After General Musharraf dislodged Nawaz’s government on 12th October 1999, Iftikhar Chaudhry in order to save his job took oath under the PCO. However when he lost his job on 3rd of November 2007 he condemned the PCO. Lets stop having double standards. All PCO judges should be removed regardless of the fact whether they took oath under the PCO before 2nd of November 2007 or thereafter. The irony is that PCO judges have removed those judges who took oath only under the constitution and never under any PCO.
And if Dogar was not constitutionally right, then so was Musharraf and all the appointments in Musharraf's time in every domain should be nullified as well.
Note These are comments from The Pakistani Spectator

US Supreme Court: Constitutional Interpretation

2010-10-17T11:24:00.000-07:00

Constitutional interpretation is both the process by which the American Constitution is construed and the study of that process. The latter is principally an academic activity while the former art is practiced daily by government officials, private lawyers, and ordinary citizens. Constitutional interpretation is the process by which the meaning of the Constitution is determined. Constitutional adjudication is the process by which justices enforce the Constitution. Courts have no roving commission to strike down all government actions thought unconstitutional. A justice may exercise the power of judicial review only in an appropriate case or controversy, when the constitutional issue is justiciable, and when the constitutional violation is sufficiently clear to warrant judicial invalidation.

The Constitution as Law

Although usually taken for granted, that the ways in which the American Constitution may be legitimately interpreted are similar to the ways in which lawyers and judges construe legal documents is significant. This is partly a consequence of the U.S. Constitution being a written document, indeed the first modern written constitution of a nation‐state. The important American innovation was not the writing per se, but rather the political theory whereby the state was objectified and made a mere instrument of the sovereign will that lay in the people. The distinction between the sovereign and the organs of state, which seemed so absurd to minds before the eighteenth century, was an indispensable premise for a comprehensive, written constitution that conveyed limited powers. By this means, the United States put the power of the state under law. A written constitution made constitutional interpretation along customary legal modes of thinking feasible. A limited government, put under the written constraints of a superior legal instrument, will inevitably introduce the modalities of legal reasoning and argument into decisions affecting the legitimate power of the state.

One way of understanding the centrality of having a text to construe is to look at the role of texts in other legal contexts. A written constitution is like a trust agreement. It specifies what powers the trustees are to have and endows these agents with certain authority delegated by the settlors who created the trust. Because the American Revolution and the Declaration of Independence put sovereignty in the hands of the people, the “trustees” in the constitutional scheme (the government) are not identical with the “settlor” (the sovereign) and therefore are not at liberty to alter the trust agreement and change the limits of their authority. From this agreement must come decisions about the extent of that authority. A written constitution is not only a set of rules; it is a way of creating rules. Like the trust agreement, the governing text will constrain the agents that it creates only if the methods of interpretation compel such constraints. When Thomas Jefferson wrote that “Our peculiar security is in the possession of a written constitution,” he meant that the constraints manifest in a written charter would act as safeguards against a governmental usurpation of powers that belonged to the people. Because Jefferson, as principal drafter of the Declaration of Independence, believed that the state was the creation of sovereign power, not the other way around, he insisted on a written Constitution and a written Bill of Rights. The phrase “inalienable rights” that appears in the Declaration means that the people cannot alienate—that is, sell or trade—their rights because to do so would render the people less than sovereign.

By relying on a written instrument to perfect the constitutional understanding, the framers of the Constitution introduced the habits and style of Anglo‐American legal argument into the politics of the state. This determined the foundation for constitutional interpretation in the United States. Since the Constitution was the supreme law, its terms had to govern; since it was a comprehensive law, it would be implicated in every legal decision; since it was written law, it had to be construed, both to give it supreme effect and to apply it in situations not explicitly anticipated in the text. And because it was law, this was to be done according to the prevailing methods of legal construction. The ways in which Americans interpret the Constitution could have been different; indeed, the forms of constitutional discourse are very different in other societies. For Americans, however, these ways have taken the forms of common‐law argument, largely those forms prevailing at the time of the drafting and ratification of the U.S. Constitution. Thus the methods hitherto used to construe deeds, wills, contracts, and promissory notes, methods familiar to the mundane subjects of the common law, became the methods of constitutional construction once the state was put under law

Modalities of Constitutional Argument

These methods of reasoning and ways of making arguments determine the ways in which constitutional propositions are characterized as valid from a legal point of view. These methods might be divided or recategorized in different ways, but the following six forms or modalities of constitutional argument are widely accepted: (1) historical—relying on the intentions of the framers and ratifiers of the Constitution (see Original Intent; History, Court Uses of); (2) textual—looking to the meaning of the words of the Constitution alone, as they would be interpreted by an average contemporary American today; (3) structural— inferring structural rules from the relationships that the Constitution mandates; (4) doctrinal—applying rules generated by precedent; (5) ethical—deriving rules from those moral commitments of the American ethos that are reflected in the Constitution; and (6) prudential—seeking to balance the costs and benefits of a particular rule. A modality is the way in which a proposition is characterized as true.

History

May a state validly enforce a law that makes it a crime to procure an abortion? Constitutional arguments from a historical perspective are: the framers and ratifiers of the Due Process Clause of the Fourteenth Amendment intended to prohibit such legislation because the ratification debates of the period demonstrate a concern to protect previously disfranchised persons from debasement by the state; or the framers and ratifiers did not intend to do so because blacks, not women, and voting, not the intimate acts of private persons, were the subjects of their debates; or we cannot ascertain what their intention was regarding the state's coercive power to compel women to bear children because the debates, while broad in subject matter, are fragmentary in detail. Arguments that rely on this interpretive modality might also approach the abortion question as follows. Did the framers and ratifiers of the Fourteenth Amendment intend to countenance extant state laws forbidding abortions? Because these statutes were unmentioned in the debates, were they thus tacitly tolerated? Or did they intend to overturn them by means of the amendment? Or are their intentions unclear? Because the framers made general references to an evolving standard of protection from state intrusion, did they mean to delegitimate such statutes? Or is the historical record simply unclear as to those anti‐abortion laws that were on the statute books at the time of ratification? In any case, determinations of constitutionality will be made on the basis of historical evidence about the intentions of the framers and ratifiers of the relevant clauses of the Constitution.

Often the historical approach is confused with textual argument because historical argument usually refers to a specific text of the Constitution. Historical or “originalist” approaches to construing the text, however, are distinctive in their reference to what a particular provision is supposed to have meant to the ratifiers. What matters is the public meaning of the constitutional text at the time the provision was ratified, not private understandings between particular framers or what that constitutional language might mean at the present. When Chief Justice Roger B. Taney in Dred Scott v. Sandford (1857) construed the scope of the diversity jurisdiction in Article III in order to determine whether a slave could seek freedom through a diversity suit before a federal court, he wrote:

We must inquire who, at that time (1787–1788), were recognized as the citizens of a state, whose rights and liberties had been outraged by the English government; and who declared their independence, and assumed the powers of Government to defend their rights by force of arms. … We refer to these historical facts for the purpose of showing the fixed opinions concerning that race, upon which the statesmen of that day spoke and acted. (pp. 407–409)

Justices Antonin Scalia and Clarence Thomas are the leading proponents of originalism on the contemporary Court. “When interpreting” constitutional provisions, Thomas wrote in McIntyre v. Ohio Elections Commission (1995), “we must be guided by their original meaning, for ‘the Constitution is a written instrument’” (p. 359). Justice Scalia in that case agreed that the Constitution bears its original meaning and is “unchanging” (p. 371). Justices Scalia and Thomas in that case, however, disputed whether the persons responsible for the Constitution had intended to protect anonymous pamphleteering. Similar historical disputes have taken place in other contemporary cases. Justice John Paul Stevens's majority opinion in U.S. Term Limits, Inc. v. Thornton (1995) concluded that the framers had not intended to allow states to add to the qualifications stated in Article I for members of Congress. Justice Thomas in dissent claimed otherwise.

Dred Scott demonstrates other limitations of historical argument. Although the decision—which denied diversity jurisdiction to slave litigants and repudiated the Missouri Compromise—is regarded with shame by many constitutional scholars, there is nothing erroneous about Taney's historical argument. Perhaps, however, the framers and ratifiers did not intend that their contemporary opinions on every subject should govern every subsequent argument. More importantly, it is anachronistic and presumptuous to assume that we can determine what the framers and ratifiers of a particular provision, drafted a century or two before the present, would have preferred to happen in a world they could no more anticipate than we can successfully imagine theirs. We assume that Jefferson would be opposed to the intrusiveness and scope of the federal government today because he opposed Federalist policies so vehemently in his own day. But it is not clear whether he would have opposed the expansion of federal authority to eradicate the effects of slavery, an evil he also opposed but despaired of ever correcting.

Text

One of the constitutional questions in the Dred Scott case—who are the “citizens” for purposes of diversity jurisdiction (see Citizenship)—provides an example for the textual modality. The text of the Constitution provides that “The judicial Power shall extend … to Controversies … between Citizens of different States …” (Article III, section 2). Does this text of the Constitution, to the average person at present, appear to declare that a former slave can bring suit in federal court (because the text's use of the word citizen is not qualified by race)? Or does the text appear to deny this jurisdiction (because the text's use of the word citizen rather than person implies a distinction by race)? Or is the language simply too vague to say whether a suit between a black American in one state and his former employer, a white American resident in another state, is a “controversy … between Citizens of different States”?

Textual approaches are not inevitably more progressive than originalist approaches. Sometimes the text can be a straitjacket, confining the judge within language that would have been different had its drafters foreseen later events. Is twentieth‐century wiretapping prohibited by the Fourth Amendment, which guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”? Chief Justice William Howard Taft engaged in textual argument in a case where federal prohibition officers obtained incriminating information by intercepting telephone conversations of defendants:

The amendment itself shows that the search is to be of material things—the person, the house, his papers or his effects. The amendment does not forbid what was done here for there was no seizure. The evidence was secured by the sense of hearing and that only. The language of the amendment cannot be extended and expanded. (Olmstead v. United States, 1928, p. 464).

Textual argument is associated with the dominant figure of the postwar Supreme Court, Justice Hugo Black, and his frequently voiced assertion that the Constitution contained various “absolutes.” Black cited the First Amendment's provision that “Congress shall make no law … abridging the freedom of speech” as an example of a textual absolute on the grounds that if he read such a provision to the average citizen, it would be interpreted to mean “no law” whatsoever could constitutionally be applied to abrogate speech (see Speech and the Press). To the objections that such an interpretation would strike down virtually all obscenity laws and a great many defamation, conspiracy, and anti‐incitement statutes, Black simply interposed the text without further argument. Textual argument is thus often juxtaposed against judicial balancing tests that would concede, for example, that a particular regulation limits speech but that require the circumstances and necessity of the regulation to be taken into account.

Structure

Can a Congressional committee issue a subpoena for the disclosure of the president's working notes and diaries? Structural modes of argument would argue that the institutional relationships promulgated by the Constitution provide such power because Congress must have full information in order to fulfill its statutory function; or deny it because the president must be able to preserve the integrity of his deliberations free from the self‐consciousness that follows from the anticipation of private debate that will be made public; or speak equivocally because in some contexts the need for public information outweighs the damage to the executive process of policy formulation. Recent examples of structural arguments in separation of powers cases include Clinton v. Jones (1997), permitting the president to be a defendant in a civil lawsuit; Morrison v. Olson (1988), upholding the appointment of a special prosecutor despite her ambivalent status as an executive officer with responsibilities to the judicial branch; and, most importantly, Immigration and Naturalization Service v. Chadha (1983), which struck down the legislative veto (See Separation of Powers).

The second part of McCulloch v. Maryland (1819), the principal foundation case for constitutional analysis, relied almost wholly on structural approaches. In determining whether a Maryland tax on the federally chartered Bank of the United States could be enforced, Chief Justice John Marshall refused to specify what particular text supported his argument and explicitly rejected reliance on historical arguments, preferring instead to state the rationale on inferences from the structure of federalism. A federal structure could not be maintained, he concluded, if the states, whose officials are elected by a state's constituency, could tax the agencies of the federal government present in a state and thereby levy a tax on a nationwide constituency. By taxing a federal agency the state would be able to manipulate directly the choices made by the federal government—effectively prohibiting some choices by making them expensive—without the check of being answerable to affected constituents. The constitutional structure would not tolerate such a practice even though the text and the ratification debates did not explicitly condemn it.

Structural arguments are less intuitively obvious than arguments from the text or history of the Constitution. Arguments in this modality usually follow a pattern: first, an uncontroversial statement about a constitutional structure is introduced; second, a relationship is inferred from this structure; third, a factual assertion about the world is made; finally, a conclusion is drawn that provides the rule in the case.

Thus in Printz v. United States (1997), Justice Scalia addressed the question of whether a state officer may be required to implement a federal handgun law. He reasoned: (1) the Constitution sets up a federal system, that is, a system in which state and national officers are independent of each other (structure) (see Federalism); (2) if the national government could control the actions of state and local officials, we would cease to have a federal system (relationship); (3) requiring local officials to help implement national law would effectively make those officials agents of the national government and thus be incompatible with a federal system (conclusion).

Prudence

Can a state require mandatory testing for the AIDS virus antibodies? One might argue that it is wise because an epidemic can only be controlled by public health measures; or that it is unwise because of the distress caused to those who will falsely test positive and because the intrusiveness of testing an overwhelmingly virus‐free population outweigh the benefits of locating a few victims; or that it is unclear on the present facts whether it is wise to permit such testing because the efficacy of the tests and the scope of the epidemic are subject to inconclusive debate. These questions propose an evaluation from a prudential point of view.

In the first half of the twentieth century, the prudential mode of constitutional argument was associated with doctrines that sought to protect the political position of the courts, though it had long been a staple of constitutional argument in the other branches. The national crises of depression and world war provided reason for the courts to consider the practical effects of constitutional doctrine as elements in the rationales underpinning doctrine. One such case arose when, in the depths of the midwestern farm depression, the Minnesota legislature passed a statute providing a moratorium from foreclosure for those unable to pay a mortgage. On its face, this statute seemed to vindicate the fears of the framers that state legislatures would compromise the national credit market by enacting debtor relief statutes and also seemed to violate the Contracts Clause of Article I that was the textual product of such concerns. Nevertheless the Court upheld the statute, observing that an emergency existed in Minnesota that furnished a proper occasion for the exercise of the reserved power of the state to protect the vital interests of the community (Home Building and Loan Association v. Blaisdell, 1934). The Court, by a 5‐to‐4 vote, recognized the political expediency of the state's action and acquiesced in it.

The prudential approach is not confined to problems a nation encounters in emergencies. Prudential argument is based on facts, as these play into political and economic policies. From a prudential point of view, the legal rule to be applied is derived from a calculus of costs and benefits, after the facts are taken into account. Often this calls for a balancing of costs and benefits since more than one policy will be at stake. Sometimes the pragmatic problem may be the costs of protecting a particular constitutional right and may require abandonment of essential constitutional commitments. Justice Lewis Powell advanced such a prudential view in McCleskey v. Kemp (1987) when rejecting a claim that statistical evidence of racial bias required a judicial decision striking down the procedures Georgia used to impose capital punishment. “McCleskey's claim,” his majority opinion declared, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. … Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. Moreover, the claim that his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender. Similarly, since McCleskey's claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys or judges (pp. 314–317).

Doctrine

When a judge states that a neutral, general principle derived from the case law construing the Constitution should apply (that a particular precedent is on “all fours” with the instant case) or that it does not apply (the present case is one of “first impression”) or that it may apply (the precedents are divided, with authority for competing positions), such arguments are made in a doctrinal mode. Doctrinal arguments are not confined to arguments originating in judicial or administrative case law; there are also precedents from other institutions, such as the practices of earlier presidents or Congress.

This mode of argument is the stuff of common‐law legal reasoning. First‐year law courses are devoted to its mastery, and it is not unique to constitutional law. Consider as an example the question: to what extent can a state constitutionally provide financial aid to parochial schools? Suppose, for example, that parochial school students are given a cash allowance by the state to subsidize their education. Does this offend the Establishment Clause of the First Amendment because the state is bearing costs that would otherwise be born by church members? A judge confronting such a case might begin, not by reading the text of the First Amendment that states a rule in rather general terms, but by turning to precedent to find similar cases providing authoritative decisions. In the area of Establishment Clause jurisprudence a great deal of constitutional doctrine has been developed in numerous cases. The standards these cases develop and apply can be stated as legal rules. The case “on point,” whose facts are similar in relevant aspects, is Zelman v. Simmons‐Harris (2002), which sustained the power of local authorities to provide vouchers for children attending private and parochial church‐related schools. In Zelman the Supreme Court treated the provision of vouchers as a form of public welfare legislation, noting that “public funds were made available to religious schools only as a result of numerous, private choices of individual parents of school‐age children” (p. 650). The majority further reasoned that vouchers benefited the child in the same way as did police protection at crossings near the church school, fire protection for the school building, connections to the building for sewage disposal, and public highways and sidewalks by which one traveled to a parochial school.

Applying these principles to the illustrative question, the judge might write: “Zelman can be distinguished from the instance case because the program in Zelman provided vouchers for all students, whereas here only some students, the parochial ones, are given cash allowances. While doubtless the legislature had a secular purpose in mind, the effect of these allowances was in fact to make the parochial schools more attractive to parents than their secular counterparts and thereby advance the cause of religious institutions. Accordingly, the program must be held unconstitutional.”

Or the judge might write: “Zelman, which also involved vouchers for parochial school students, governs this case. Here as there, the state's program provides aid to students and their parents and not—as in cases that have struck down state assistance in this area—direct assistance to church‐related schools. Its secular purpose, to expand school choice for parents of children in failing schools, is apparent. Like school lunches, public health services, and secular textbooks, the vouchers provided here confers a benefit on the parochial student that is at parity with what the secular student receives.”

In either case, the judge has applied a rule derived from the relevant case law. The rule is neutral as to the parties; that is, it applies equally to Catholic, Jewish, and atheist claimants and does not vary depending on who is bringing or defending the suit. And the rule is general; that is, it applies to all cases in which the state is giving assistance to religious institutions and is not confined to the facts of the original case that gave birth to the rule.

The commitment to neutral, general principles does not mean that cases cannot be overruled. A particular precedent may be overruled because it does not comport with a persuasive reading of the cases on which it relied, or those from a competing line of doctrine originating in wholly distinct facts but progressively encroaching on the area of its operation. More significantly, doctrinal argument is not confined to the application of stare decisis, that is, the strict adherence to cases previously decided, because one of the assumptions of American doctrinalism is that the Supreme Court may reverse precedent. This would appear to follow from the family of modalities—that provide alternative legal rules—and the supremacy of the Constitution to the acts of government (including its judicial branch). The Court is empowered, indeed obligated, to overrule itself when it is persuaded that a particular precedent wrongly construed the Constitution. The justices in Lawrence v. Texas (2003) overruled Bowers v. Hardwick (1986) on the ground the former decision sustaining a ban on sodomy was constitutionally wrong when handed down and had been undermined by subsequent judicial and legislative precedents. By comparison, the plurality in Planned Parenthood v. Casey (1992) refused to overrule Roe v. Wade (1973) partly because the shaky constitutional foundations of the constitutional right to abortion had been buttressed by subsequent judicial precedents and social developments.

Ethos

Ethical arguments denote an appeal to those elements of the American ethos that are reflected in the Constitution. The fundamental American constitutional ethos is the idea of limited government, which presumes that all residual authority remains in the private sphere. Thus when we argue that a particular constitutional conclusion is required, permitted, or forbidden by the American ethos that has allocated certain decisions to the individual or to private institutions, we are arguing in an ethical mode.

Ethical arguments arise as a consequence of the fundamental constitutional arrangement by which rights, in the American system, are largely defined as those choices beyond the power of government to compel. Some constitutional commentators insist that elected officials have a constitutional duty to provide the economic and social conditions under which individuals can flourish, but few insist that such constitutional responsibilities are judicially enforceable in the absence of a violation of clear constitutional rights.

Structural and ethical arguments share some similarities. Each is essentially an inferred set of arguments. Structural argument infers rules from the powers granted to governments; ethical argument, by contrast, infers rules from the powers denied to government. The principal error regarding ethical argument is the assumption that any statute or executive act is unconstitutional if it causes effects that are incompatible with some preferred elements of the American ethos. Such an assumption equates ethical argument, a constitutional form, with moral and political argument generally. The American constitutional ethos is largely confined to the reservation of powers not delegated to a limited government.

A hypothetical example shows the basic pattern of ethical argument. Suppose a state judge offers a choice of a thirty‐year prison sentence or impotence‐inducing medical treatment to a convicted sex offender. The defendant accepts the latter option and is released on probation on terms that require that this pledge be fulfilled by systematic drug induced impotence. If the probationer were to cease taking the prescribed drug and his probation revoked, a constitutional challenge to the terms of his probation might take the following form.

First, there is no express constitutional power in federal courts to implement a program of eugenics. Indeed the reservation to the individual of the decision whether to have children is deeply rooted in the American belief in the integrity of the individual conscience, which is reflected in several parts of the Constitution. Second, eugenics programs are not an appropriate means ancillary to any express power that is allocated to government; therefore there is no federal power to assume this otherwise private authority. Third, those means denied the federal government are also denied the states. And, fourth, the hypothetical sentence would compel a man to comply with a eugenics scheme that rendered him ineligible to procreate.

The element of the American ethos at stake is the reservation to individuals and families of the freedom to make certain kinds of decisions. Similar arguments are found in cases in which a state criminalized particular forms of sexual behavior between consenting adults (Lawrence v. Texas, 2003); banned the use of birth control and abortion (Griswold v. Connecticut, 1965; Roe v. Wade, 1973); attempted to bar schools from teaching foreign languages (Meyer v. Nebraska, 1923); in which a state passed a compulsory education act requiring every school‐age child to attend public school, which implicitly outlawed private schools (Pierce v. Society of Sisters, 1925); in which a local zoning ordinance intended to exclude communes was applied to prohibit a grandmother from living with her grandchildren (Moore v. East Cleveland, 1977); and in which parents sought to end the artificial nutrition of their severely brain‐injured daughter (Cruzan v. Director, Missouri Department of Health, 1990). Each of these examples can be stated in the form of an ethical argument. For example, the Lawrence arguments could be framed thus: (1) there is no express constitutional power to regulate sexuality; (2) a statute outlawing consensual sexual behavior between adults is not an appropriate means associated with any express power (such as regulating commerce or providing for armed forces); (3) decisions about sexuality are reserved to individuals; (4) a statue banning sodomy amounts to a scheme to mandate prescribed forms of intimate behavior and family life.

Academic and Political Commentary

Commentary on these modes of constitutional argument by scholars and critics constitute the field of constitutional interpretation outside the courts and legislatures. From the mid‐1950s onward, the interpretation of the American Constitution has assumed a central place in American public life. Racial segregation, abortion, the powers of the presidency, and impeachment have all been made to turn on these methods of construction. At the same time, constitutional interpretation has become a rich academic field in its own right

The seminal works in the academic field were Charles Black's Structure and Relationship in Constitutional Law (1969) and Alexander Bickel's The Least Dangerous Branch (1962). Black's remarkable study isolated one particular form of argument, the structural and established criteria for the making and assessing such arguments. Bickel did much the same for prudential argument, tracing its lineage to Justice Louis D. Brandeis and demonstrating a family of related judicial techniques. John Hart Ely's Democracy and Distrust (1980) was the first sustained effort to answer the countermajoritarian objection to judicial review (the argument that overturning a legislative decision by a court amounts to a reversal of democratic, majoritarian choices) by relying on one of the classic forms of argument as preeminent. Ely divided the forms of argument into the interpretivist, that is, historical, textual, and structural forms, and noninterpretivist, that is, ethical, prudential, and doctrinal forms (see Interpretivism and Noninterpretivism). Paul Brest, in an important series of articles and an influential casebook, wrote about interpretation as argument and isolated some of the paradigmatic forms of argument. Constitutional Fate (1982), by Philip Bobbitt, identified and elaborated the six forms of argument described here. Bobbitt argued that there could be no hierarchy of arguments. He maintained that the countermajoritarian objection was fundamentally nonsensical since legitimacy was conferred not by majoritarianism but by following accepted conventional forms, which could not be genuinely applied in the absence of judicial review. At the same time, questions of interpretation came to the forefront of literary criticism, and the influence of semiotics, especially the school of deconstruction associated with Jacques Derrida, Paul de Man, Michel Foucault, and others, was felt in the field of constitutional interpretation.

Constitutional interpretation outside the courts also became a field of academic study. Sandy Levinson and Walter Murphy challenged common notions that courts had the ultimate authority for determining constitutional meanings. Louis Fisher detailed how constitutional interpretation typically involved a dialogue between courts and elected officials. Keith Whittington's Constitutional Construction (1999) detailed how elected officials resolved constitutional questions that were hardly ever adjudicated by courts.

In the political arena, attention also was focused on the methods of constitutional interpretation. The inspired but methodologically problematic opinion in Brown v. Board of Education (1954) invited such scrutiny. Perhaps the most influential member of the judiciary, Judge Learned Hand, implicitly criticized Chief Justice Earl Warren's opinion in lectures published as The Bill of Rights (1958). With this controversy, the countermajoritarian objection was revived and with it the debate about the proper methods of constitutional interpretation. Controversial Warren Court human rights and criminal process cases in the 1960s fueled this controversy, which erupted with new vehemence when the Supreme Court decided the abortion case Roe v. Wade. The debate was framed in terms of the legitimacy of judicial review itself rather than in terms of its various methods.

More fuel to these fires was added by a series of Rehnquist Court decisions limiting the power of the national government to regulate firearms (Printz v. United States, 1997; United States v. Lopez, 1995), punish violence against women (United States v. Morrison, 2000), and adopt affirmative action programs (Adarand Constructors, Inc. v. Pena, 1995). By the turn of the twenty‐first century, liberals were increasingly likely to argue that the constitutional powers of government should be broadly construed and courts should defer to legislative judgments on constitutional issues, while conservatives championed judicial review and the constitutional limits of government power. Many of the most salient questions of constitutional interpretation at present have been debated almost entirely outside the courtroom. These matters include whether lying about a sexual affair under oath is an impeachable offense and whether congressional approval is constitutionally necessary for a president to initiate combat abroad.

Originalism is presently at the center of many constitutional controversies. Edwin Meese, attorney general of the United States in the second Reagan administration, insists that justices should be confined to “strict construction” of the Constitution. He and other officials associated with the conservative wing of the Republican party hold that only historical, textual, and structural arguments provide a legitimate basis by which to evaluate statutes and practices for their constitutionality. Justice Brennan throughout his career took a more expansive view, stressing the prudential and ethical modalities of judicial review. Such modalities underlie such judicial opinions as Lawrence v. Texas.

Nowhere was this conflict more clearly and dramatically presented than in the Senate hearings on the nomination of Robert Bork to the Supreme Court (see Senate Judiciary Committee). To the question of how a judge should go about finding the law, Bork testified that the only legitimate way “is by attempting to discern … the intentions of … those … who ratified our Constitution and its various amendments.” Repeatedly Bork denied that there was “any legitimate method of constitutional reasoning” that would support controversial holdings that he opposed, but he was scrupulous about not criticizing them as policy. His rejection by the Senate may be taken as an affirmation of the legitimacy of the decisions that, as Bork argued, cannot be rationalized on strict constructionist grounds. All successful Supreme Court nominees in the wake of the Bork hearings have at a minimum indicated an open mind on the legitimate forms of constitutional argument.

Each of the various forms of argument can be used to construct an ideology, a set of political and practical commitments whose values are internally consistent and externally distinct from those of competing ideologies constructed around other modalities. Some persons believe that one particular modality represents the only legitimate means of interpreting the constitution (e.g., historical argument) since it is verifiable by a resort to materials (e.g., the evidence of the intentions of the framers) that are legitimated according to a particular political theory of interpretation. This has led some commentators to argue that the modalities of argument are no more than instrumental, rhetorical devices to be deployed in the service of the political ideologies of which they are a subsidiary part. Other critics have concluded that the modalities must be ranked in priority. In either case, some standard external to constitutional interpretation is imported into the decision making.

According to the latter argument, everyone agrees that the Constitution is law. Therefore, the Constitution does not merely mean what particular people want it to mean. If it did, it would not be law. The problem is that it is not always clear what the Constitution means, how it is to be applied or interpreted. Reasonable people disagree about what it means. Some think that a Constitution that guarantees “the equal protection of the laws” requires race‐conscious affirmative action policies in order to remove the effects of past and present discrimination (a prudential argument); others think that a state that engages in affirmative action is violating that same guarantee (a textual argument). In hard cases, two or more legitimate modalities will conflict. Since the Constitution itself does not direct how it is to be interpreted—does not say which modality is to be used—those who interpret the Constitution have to look to something other than the various legitimating forms of argument. This means that the interpretation of the Constitution must inevitably be based on principles that are external to the words of the Constitution itself. Those principles have to be created rather than found; the Constitution does not contain instructions for its own interpretation.

This does not mean that the Constitution could mean anything at all, that it is “indeterminate” regarding its appropriate interpretation. Sometimes the resort to interpretive principles admits of only one answer. Additionally, what various constitutional authorities think, and what they will say about questions not yet decided but likely to arise soon, can be predicted with some accuracy. Moreover, some interpretations are better than others; that is, only some correspond to the various legitimating modalities. Some interpretations of ambiguous provisions will produce an unacceptable increase in judicial discretion (prudential); others will leave politically weak groups at the mercy of the state (structural); others will make liberty too fragile (ethical); others will be insufficiently respectful of the claims of original intent (historical). So constitutional interpretation is not indeterminate even though it does not always yield unique answers.

How shall we choose, however, among good interpretations? What is the legal basis for this and why is it legitimate? Perhaps importing an external standard to govern such choices—say, a preference for liberty or equality or efficiency, which would allow us to justify our decisions—sacrifices their legitimacy, since it requires a rule that is not generated by the legitimating modalities of argument. Perhaps we cannot, in fact, give good reasons that explain our choice of one legitimate outcome over a different, equally legitimate outcome if, by “good” reasons, we mean legitimate reasons. This, at any rate, is the most important question confronting the field of constitutional interpretation.

LEARNING FROM THE PAST

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Most of the devastation hit north Pakistan and Pakistan-administered Kashmir. In Kashmir, the three main districts were badly affected and Muzaffarabad, the state capital of Kashmir, was hardest hit in terms of casualties and destruction. Hospitals, schools, and rescue services including police and armed forces were paralyzed. There was virtually no infrastructure and communication was badly affected. More than 70% of all casualties were estimated to have occurred in Muzaffarabad. Bagh, the second most affected district, accounted for 15% of the total casualties.

The national and international humanitarian response to the crisis was huge. In the initial phases of response Pakistan Medical corps, Corps of Engineers, Army aviation and large number of infantry units played important role. Lt.Gen Afzal, Maj.Gen.Imtiaz, Maj.Gen Javid were the leaders of their formations. Maj.Gen Farrukh Seir was the incharge of foreign relief coordination.

In early 2006, the Government of Pakistan organized a donors' conference to raise money for reconstruction and development of the area. A total of $6.2 billion was pledged and a large amount of the money was delivered in terms of services of international NGOs with high pay scales. The rest of the money pledged, which was given to the Government of Pakistan for reconstruction and development, was used by a reconstruction authority called ERRA which was made by then military regime to accommodate the retired high military official and while keeping the command of the reconstruction and rehabilitation authority directly under the military. This authority has highly been criticized for luxurious non-developmental spending and its false statistics.

Only practical reconstructions and rehabilitations were done by the foreign governments including Turkey, Japan and Saudi Arabia and UAE. UN, US and UK organizations came under criticism for not doing or taking practical rather focusing on training and seminars costing millions and high salaries. The basic infrastructure—including tertiary care, health, education, road networks, water supply, waste management and other basic needs—is still underdeveloped and has not reached pre-earthquake status in the region. (Wikipedia)

USURY vs PROFIT

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LIFE UNDER LOANS

Pakistan is a country that was created to enable its inhabitants to lead their life in accordance with the tenets of Islam. Islam has forbidden usury in the wording of the Qur'an and the prophet (pbuh) and by the unanimous decision of all the schools of Islam.

Allah (s.w.t) said O you, who believe, fear Allah and give up what remains of your demand of usury, you are indeed believers. If you do it not, take a notice of war from Allah and his messenger. But if you turn back (return to Allah) from usury, you shall have your capital sums, don't deal unjustly and you shall not be dealt unjustly.

As we notice from this verse Allah has declared a war on two kinds of people only (1) he who deals with usury (2) and he who harms Al-Mouhsen.

Allah (s.w.t) has forbidden usury because it is a financial profit or gain without any physical effort, and it creates animosity among one another, and it separates our society. Lenders are the ones who live a luxury life, very rich, and the loaner's work like animals all day long just to pay their debts.

As we all know, trade is the trading between merchandise and money but the usury is the money addition on loans.

Usury is forbidden in Christianity too (Luke, chapter 6, verses 34), loan your money, not awaiting usury, and then your reward is great. Germany prohibited its banks from charging usury between the two world wars (1920 - 1945)

Usury is forbidden in Judaism. According to verses 71 (if you lend money to the children of my people don't ask them to pay interest), and verses 35 (if your brother is in need don't ask any interest from him). Jewish people forbid usury among them, and deal with it among other people.

- Having an account in the bank: make sure that the interest that you earned on your account doesn't get to your pocket, in the same time don't leave it to the bank, it should be calculated and paid as a charity.

- Food stamps: one of the most obvious dealing with usury that some of us fell in it is buying food stamps for less than what it is worth, the dealer in this case is doing to forbidden acts: he is a sinner of usury, and he is eating the money of the poor people.

- Credit cards: if you pay the total on it in the end of the month you are save from committing a sin .If you don't pay the total by the end of the month then you are a sinner of usury.

THE LIBRARY

2010-10-07T01:19:00.000-07:00

Imam Ali's Argument on Equity

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When the people objected to Imam Ali's equitable distribution of wealth he replied:
(i) If the wealth had belonged to me even then I would have distributed it equally among the people but this wealth belongs to Allah and is meant for distribution among the people and therefore everybody has his right in it.
(ii) To distribute wealth among those who do not deserve it amounts to squandering the wealth. The Holy Qur'an also says.
Do not squander your wealth wastefully. The squanderers are indeed Satan's brothers and Satan is ungrateful to his Lord. (Surah Bani Isra'il, 17:27)
(iii) The inequitable and unjust distribution of wealth results in the formation of a group of greedy persons who surround the people and extract money from them through flattery and undue praise and thus makes them ashamed in the eyes of the law of Divine Justice.
Furthermore, Imam Ali says: "Unjustifiable and undeserving donations may enhance the status of a man among his worldly surroundings but he is sadly humiliated in the eyes of Allah. One who spends his wealth in evil ways and on wrong persons, is deprived, by the Lord, of the gratitude of those over whom he had spent; these undeserving beneficiaries usually turn against him and at the time of distress and need he finds them as his worst enemies, censuring his actions and blaming him for his lavish grants". (Sermon—129, p. 322, Peak of Eloquence)

Five friends meet for the last time in 1957

2010-10-06T10:10:00.000-07:00

Announcement

2010-10-05T23:26:00.000-07:00

Kashmir Institute of National Development (KIND) as the name implies has a mission to mobilize the nation to develop its own capabilities and to shoulder its own responsibilities for a life of honour and dignity – a life full of their social welfare, progress and prosperity through human development and through active participation in the national development initiatives.

Human development comes through knowledge, change of attitudes and adoption of good humanitarian values. Knowledge is acquaintance with facts, truths or principles, as from study or investigation. KIND is launching this project, “Right Path” to develop the knowledge base of the people and hence the nation. This is first step and its results will be discussed by inviting comments and clarifications to arrive at a right path. The second step will endeavour a change in attitudes by inviting people to practice and inform us of their experiences. The third step is the culmination of our effort. We will gauge the habit formation of practicing good humanitarian values and determine the impact of our initiative. It will give us idea if our nation is responsive or non-responsive, receptive or non-receptive and/or amenable or non-amenable.

In order to take the first step, we invite you all to:

i. Suggest a topic: Example:

a. One Allah is better than many Illahs

b. A Muslim’s strength lies in obedience to Allah

c. Aid (includes loan, grant or assistance) and self reliance,

ii. Reasons of selecting the topic

iii. Relevance of topic to our nation

iv. Expected outcome if practices

This activity has been conceived to provide an opportunity to thinking minds of the humanity. They can contribute to bring change through dialogue. We shall assess the quality of change

No Body to Blame – Every One is Involved

2010-10-05T23:18:00.000-07:00

RIGHT PATH

In an organized society, there is a sequence of every activity where three actors are involved to meet the needs of the society. These are sponsors who provide services – cash or kind to meet the needs of needy whom they identify as beneficiary. The medium – state and non-state actors who transmit the service to the beneficiary and the beneficiary, who receive the service to meet the needs to his or her satisfaction, work hand in hand. What is the relationship between the sponsor and the beneficiary? Apparently there is none. But it is the sponsor’s responsibility to monitor where the services provided by him go and evaluate for targeted objectives.

Sponsor – Sponsor is an entity (a person(s), a foundation or a government – internal or external) that budgets a part of its earning for the cause of benefiting individuals, communities or countries. The intentions are not discussed here, because we have no blames to brand.

Medium – Medium is state or non-state actor who undertakes to deliever a service. The integrity, honesty and transparency are considered the core values of the medium. Quite often these are proven on papers. The majority of the medium consists of the government functionaries and non-government organization activists. They have, quite often, their axe to grind. The conscience is the only regulatory mechanism

Beneficiaries – These are the ones who are assumed to be vulnerable, unreached and without access to goods and services. Every individual has a need. We are all beggars.

The circle will be incomplete if we fail to develop a link between sponsor and beneficiary. It is whole or part of ‘the beneficiary’ who empower the so-called ‘sponsor’ to part with a part of the benefits it receives from the ‘beneficiary’ through the institutional mechanism of ‘medium’. The beneficiary empowers the sponsor through vote, taxes and sweat.