• Tuesday, November 12, 2019

Parliament cannot make law conflicting with Constitution: CJP

Discussion in 'Insaf - Justice' started by Kabira, Feb 20, 2018.

  1. war&peace

    war&peace ELITE MEMBER

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    That's how it has always been.
    You alone are making sense and alone are right while all others are wrong and talking none-sense?
     
  2. Joe Shearer

    Joe Shearer PROFESSIONAL

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    @saiyan0321

    Brilliant thread. I have to bring to your notice these two judgements, which may not have gone unnoticed by the quite vigorous Supreme Court that you now seem to have. I assume that you may not be completely familiar with these two; if you already know of them, my apologies.

    https://en.wikipedia.org/wiki/Kesavananda_Bharati_v._State_of_Kerala
    https://en.wikipedia.org/wiki/I.C._Golaknath_and_Ors._vs_State_of_Punjab_and_Anrs.

    From the analysis of the first, this might excite your curiousity:

    I have to absent myself from serious interaction until Friday at the earliest. My apologies for the teaser-trailer.

    @M. Sarmad
    @Kaptaan
    @SecularNationalist
    @jamahir
     
    Last edited: Feb 21, 2018
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  3. Shane

    Shane SENIOR MEMBER

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    Can you smell the hunger for more and the Greed hidden in the manifesto?

    With the astronomical wealth that both Nawaz and Zardari have amassed ruling Pakistan over the years. There is still a golden bird still out of reach and to be had sometime in the near future...no small prize too:

    The precious metal and mineral mines of Balochistan.

    Makes Karachi Steel Mill and PIA look like peanuts.
     
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  4. Shane

    Shane SENIOR MEMBER

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    Following is an excerpt from the link:
    https://www.dawn.com/news/881082

    As in case of countries like India and the US, Pakistan has a federal constitution, which distributes powers between the centre and the provinces. Under Article 142 of the constitution, the federal legislature or parliament can make laws on subjects enumerated in the federal legislative list and the concurrent legislative list.

    The constitution also places some restrictions on the powers of both federal and provincial legislatures. If we go by the book, neither parliament nor a provincial legislature can encroach upon the other's legislative powers.

    In the first place, no law can be made which is in conflict with any of the fundamental rights granted by the constitution to the citizens. In this respect, Article 8 of the constitution states Any law, or any custom or usage having the force of law in so far as it is inconsistent with the rights conferred by this Chapter [Chapter 1], shall, to the extent of such inconsistency, be void.”

    In the second place, no law can be made which is repugnant to the injunctions of Islam. In this connection, Article 227 of the constitution stipulates “All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah...and no law shall be made which is repugnant to such injunctions.”

    In the third place, parliament cannot make any law which is inconsistent with the basic character of the constitution—the fundamental law of the land.

    There are thus four main restrictions on the legislative powers of parliament.
    1) It cannot, except when a proclamation of emergency is in force, legislate on provincial subjects; and its laws cannot be incompatible with:
    2) fundamental rights,

    3) Islamic injunctions and
    4) the basic character of the constitution itself.

    It is from these restrictions on the legislative competence of parliament that the power of judicial review follows. The superior judiciary can invalidate an act of parliament that is beyond its legislative competence for any of the four reasons mentioned in preceding paragraphs.
    ______________________________________

    XXX END QUOTE XXX


    In 2012, Supreme Court of Pakistan struck down the then recently passed Contempt Of Court Act 2012 by the parliament.

    The chief justice heading the bench said that the new COCA 2012 law was contrary to the provisions of several articles of the Constitution, including Article 63(1)(g), Article(25), Article 204(1) and Article 204(2) of the Constitution.
     
    Last edited: Feb 21, 2018
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  5. undercover JIX

    undercover JIX SENIOR MEMBER

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    they need to amend the constitution first, and then pass any law which goes against current Constitution.
    Guddi gdday ka khai hai kiya, just to save one na ahal person change all the laws and ignore constitution.

    Apologies, I am too late to say this, already discussed.
     
    Last edited: Feb 21, 2018
  6. Zibago

    Zibago ELITE MEMBER

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    Bhai jawab to dey na Sindh aur kpk key beghair kaisey karey gi constitutional ammendment

    Inka elaj hoga Naye Pakistan mein :D
     
  7. Kabira

    Kabira ELITE MEMBER

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    N league already had 2/3 in parliament, they had opposition from KP and Sindh as allies etc This is how they can make change in constitution. You don't need provinces approval but 2/3 majority in parliament.
     
  8. Zibago

    Zibago ELITE MEMBER

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    Um the opposition in Sindh is going to have the number game against them similar game for KPK and for Balochistan we cant say for sure with all the Zardari paid horse trading not sure how he is going to do that with only punjab in hand :D
     
  9. saiyan0321

    saiyan0321 SENIOR MEMBER

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    That's an amazing judgment. As I highlighted before that the parliament does have limitations in the constitution. Article 238-239 do give the impression of absolute power but that the rest if the constitution is conflicted towards this.

    For example as I stated on page 1 that the Parliament cannot pass laws that curtail fundamental rights and these fundamental rights have been argued in case laws and have a complete chapter dedicated to them with detail.

    Tu bhaiyo curly balo walay logon ka genocide start nahi kar saktay bcz the parliament cannot make laws that intervene with right to life which is a fundamental right mentioned in the constitution.

    The thing is joe I will blame this mess on the non serious attitude of Pakistan in terms of governance. Running a country is no joke but we sure treated it like that.

    From 1947-2008 the musical chairs between democracy and military rule is right now on complete display how far back we are! We are asking questions that should have been answered in the 70s. Non serious attitude of politicians and leg pulling by parties and then military intervention stagnated our progress in parliamentary governance.

    Sigh well better late than never.

    As you can see our judgement of PLD 2015 SC 401 is very similar and the courts are defining the constitution and the roles of institution. They are right. I have personally been unable to find anywhere where the worlds parliament is supreme are stated. Supremacy is given to God and the constitution. Article 238-239 simply provide the illusion bcz of its messy and incomplete statement that Parliament can pass any laws but the constitution has placed restrictions for example parliament cannot pass any laws that curtail the fundamental rights and has provided judiciary power to strike that law down and the parliament cannot pass unislamic laws bcz if passed then the federal shariah court can strike them down.

    Quite frankly this is good. This is our evolution and the fruits of working with democracy are paying off as we are openly discussing the limitations of institution.

    Tell me joe. What was the reaction of political parties and Parliament in India when the courts laid down the limitations?
     
  10. Shane

    Shane SENIOR MEMBER

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    Current affairs show host Nadeem Malik disects the speech of PM about supremacy of Parliament to make any law - is incorrect:
     
    Last edited: Feb 21, 2018
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  11. Joe Shearer

    Joe Shearer PROFESSIONAL

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    Chief:

    Before I answer your question, may I ask you and all other Pakistani friends if they remember Cornelius J.? There is a truly juicy bit of information coming to you, that will warm your hearts!
     
  12. Joe Shearer

    Joe Shearer PROFESSIONAL

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    You are right, of course; the only thing I have to add to your observations is that 'Keshavananda Bharati' laid down a very, very broad foundation, that only said that the 'basic structure' of the Constitution could not be affected, but avoided the question of what that 'basic structure' was; you will find that the Mangaldas & Mangaldas (or whatever this branch of the split partnership calls itself now) blog gives some detail about some of the opinions. It was a 12 judge bench, and there were 11 individual, separate judgements! Finally Sikri J. had to summarise their views into a 'View of the Majority' precis with 6 propositions in it. The broadest view was that of Khanna J., who said that amendment meant changing a part, therefore there must be a whole, therefore amendment cannot alter the nature of the whole. Subtle, very subtle; also minimalist, nothing added that isn't there visible in the broad glare of daylight. In view of his later political history, this view has a delicious irony to it.

    It was only subsequent judgements that elaborated on this basic proposition. How it did so is an exercise by itself; only hard core constitutional lawyers will be interested, and I would like to spare you the burden of wading through them (they are all mentioned under that URL).

    I sympathise but do not ENTIRELY agree. As I mentioned, just think of Cornelius!

    Furious! Read for yourself. All hell broke loose after 'Golak Nath'. Indira packed the bench, put in a stooge as JI, who put together another (13 judge) bench to review Golak Nath, and that fell apart in disarray, when it was discovered that the hearing was baseless - NOBODY HAD FILED A REVIEW PETITION! :rofl:

    The Bench was dissolved, the review was thankfully abandoned, the CJI in question permanently lost his reputation and became known as a sycophantic lickspittle, and the Court pieced together its views on the basic structure judgement by judgement.

    (You might be interested to know that, after the Shah Bano case, where the political abandonment of women's rights in favour of the blackmailing, bullying view of the self-certified Muslim Personal Law Board was embodied in parliament passing a law to that effect, the courts fought back and implemented the law such that women got the very most that they might have hoped for under this inequitable law).

    No politician or political party liked the judgement. They reacted very badly.

     
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  13. saiyan0321

    saiyan0321 SENIOR MEMBER

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    Hmmm. J? I do know about it A R Cornelius our fourth chief justice ( I would like to meet a lawyer in Pakistan who doesn't know his name. The man is a legend. Too bad his deeds and fight for Pakistan finds not a sentence in Pakistan history books)

    Do point where you disagree and what do you think what hampered the legislative development of the state and the constitutional evolution of institutions?

    Tss ufff.

    Yeah don't think our current govt can do anything even near that. It would open a Pandora's box and the media will pounce on it, the opposition will relish it, the people will criticize and then the army chief will end up making a statement which will create more buzz...
     
  14. Shane

    Shane SENIOR MEMBER

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    Supreme court has concluded the case proceedings and is about to give verdict or reserve judgement in Election Act 2017 case.

    Supreme court shall decide to give a short order or reserve judgement today.

    It is likely that parts of the act found to be against the letter and spirit of the constitution may be struck down by Supreme Court of Pakistan.
     
  15. koolio

    koolio SENIOR MEMBER

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    Lets see if Godfather escapes, I will reserve my judgement after the verdict, according to noony bogeys its the people's court who has a final say.:coffee: