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Parliamentary supremacy in Pakistan

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  1. saiyan0321

    saiyan0321 SENIOR MEMBER

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    Parliamentary supremacy in Pakistan
    by Saiyan0312

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    Introduction

    Pakistan as a country has seen repeated political upheavals with each decade bringing claims of current system not working and a new system to be introduced. Often blanket terms like Democracy and Military dictatorships were used for this purpose with the people looking for a messiah to their problems, running from one end to the other. The 1973 constitution provides for a parliamentary form of government.

    Question of supremacy is perhaps the most asked question in Pakistan with institutions claiming supremacy. The common concept in Pakistan is that Parliament is supreme since it makes the laws and represents the people thus it is supreme and they provide explanation that since democracy is rule of the people then automatically the elected representatives are supreme. This very simple point of view and definition devoid of complexity of state affairs is the common thinking amongst the people, the analysts and of course the parliamentarians.

    In Pakistan law is not a basic subject at all. A student in school will learn subjects on Islamic studies, math, social studies, history, languages, Pakistan study, physics, chemistry, biology, computer studies which will contain the basics allowing understanding on fields, yet he will learn nothing on law. A student in school is oblivious to the complexity of laws and legal philosophy even the laws that govern Pakistan. Ironic that one learns the laws that run the universe but not the laws that run their country, province, and district. A place they will, most likely spend their lives at.

    Hearing misinformation from unqualified lawyers and family friends and parents who themselves have little experience when it comes to dissecting the complexity of law.

    However this is why it is imperative that the legal fraternity takes utmost care to promote legal explanation which are not victim to bias nor misinformation and for the state to promote legal understanding amongst young minds so that each citizen of Pakistan is aware of the laws that run the state as well as the rights that are given to them since in the eyes of law a person is considered aware of his rights and the laws that run the state.


    Recent times

    Pakistan has seen a run of uninterrupted democratic rule since 2008 which has brought with it questions of politics and affairs relating to statecraft and deeper understanding and evolution of the constitution of Pakistan. Perhaps the most common and loudest question is whether the parliament is supreme in Pakistan. The constitution has been defined and explained towards this point with important case laws coming forth. Various opinions for and against have come to stage with of course the emotional cloak. It is often said seeing is believing and for this we will open the constitution of Pakistan to understand where supremacy lie and whether the supremacy is an illusion finding base on political slogans and emotional charges.

    However before we enter into the world of Laws, we must understand the following.

    Constitution

    A constitution are the set of rules and precedent which highlight the governing of a state.

    The essence of constitution is that it defines and regulates the powers of the government by imposing limitations on the exercise of executive authority and where the legislator is not supreme, on the power of the legislature itself by prohibiting it from making certain laws.

    It is the supreme law of the land, the fundamental law from which all public authorities derive their powers, all laws their validity and all subjects their rights.

    The constitution of 1973

    The war of 1971 and the separation of East Pakistan shook Pakistan to the core. The country lay broken and disheartened and demoralized. On 20th of December Zulfiqar Bhutto received placed martial law and become both the president and the martial law administrator. With these powers he set out to realign the state affairs. One of them was for the creation of a new constitution. The constitution of 1962 which was suspended in 1969 was seen as a dictator’s law thus was abrogated in 1972. On 14th April he convened the national assembly and on 21st April he rescinded the martial law and brought forward the plans for a new constitution. On 17th April Bhutto called for the constitutional convention which was presence of every political party of every ideology. On 20th October 1972 all parties received a draft which was signed by the national assembly on 2 February 1973. It was ratified on 19th April 1973 and came into full effect on 14th August 1973. 1

    With that Pakistan got its first Constitution. Its main points are the following

    1. Islamic provisions

    2. Fundamental rights

    3. Bi-cameral parliament meaning there is a national assembly as lower house and senate as upper house. The word Parliament takes in the meaning of both

    4. Parliamentary form of Government

    5. Preamble

    6. Objectives resolution and 1956 constitution used as source of law

    7. Country formed as a Federation of Provinces

    These are the basics of the 1973 constitution.

    CASE LAWS

    When a case is decided, its decision is not one off. It creates a precedent that all subsequent courts must follow. The judgment in that case becomes that precedent and these precedents themselves form laws. According to article 189 of the constitution of Pakistan a “Any decision by the supreme court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding upon all other courts of Pakistan”. An example would be the co shearer law which is “Each co shearer is considered an owner of each and every inch of an un-partitioned property”. This will law will not be found in acts but is based upon case laws. The Famous case law of 1989 SCMR 130. Lawyers use precedents and case laws to base a bulk of their arguments on and we will discuss supremacy on constitutional case laws especially recent ones.

    The words of law

    If one reads a law then will see a complicated sentence showcasing as much detail and explanation as it can. The reason for this is that each word in law holds importance and is interpreted towards its accordance. Even the word “Shall” has interpretations and case laws so when reading laws, each word must be considered with importance.

    Executive

    Executive authority is the president, prime minister and the cabinet whose job is to run the state affairs.


    And with the above let us return back to the topic at hand about supremacy of Parliament.


    Supremacy of parliament

    The parliament (composed of the senate and the national assembly which is also called the majlis e shoora) is considered as the supreme institution of the state. This concept often stems from the fact that since the parliament is the only organ of the state which is directly elected by the people and has the power to make laws and according to article 238 and 239 of the constitution, to also amend the constitution, thus the parliament is supreme. Supporters of this notion cite their supra-powers and indeed a massive majority does believe that parliament has utter supremacy.

    Definition of “supreme power”

    Black’s Law Dictionary defines supreme power as “Highest authority in a state, all other powers in it being inferior”.

    Now this holds two elements.

    1. The Authority is the highest

    2. All other powers in it are inferior

    This means that to have supremacy the institution or organ or authority must not only be the highest but it must also not have any equal and all others must be inferior to that high authority. This means that supremacy is one. There are no levels of supremacy nor multi supremes showing supremacy together.


    Arguments for supremacy of Parliament

    As the debate for supremacy reaches newer heights, the arguments and interpretations gain greater tract. The argument for supremacy is based on the following grounds.

    1. Democracy

    Abraham Lincoln describes democracy is the government of the people, for the people and by the people. Many argue that in a democratic setup the power is in the hands of the people and the people who elect their representatives among themselves thus hold that power and that power and responsibility makes the elected supreme. In a country like Pakistan, which has been marred in a battle between democratic and undemocratic institutions, such discussion often takes a sensitive and emotional aspect with the cry that any action against the elected representatives is an action to curtail the will of the people. This thought process gains greater ground as politicians use emotional slogans to showcase that the will of the people is so supreme that even the laws bend to it.

    2. Constitutional provisions

    The constitutional provision article 238 and 239 allow the parliament to amend the constitution. The articles are as such

    Article 238; “Subject to this part, the constitution may be amended by the act of majlis e shoora”

    Article 239.5; “No amendment of the constitution shall be called in question in any court on any ground whatsoever”

    Article 239.6; “For the removal of doubt, it is hereby declared that there is no limitations whatever on the power of the majlis e shoora to amend any provisions of the constitution”

    Many after reading this would say that this is it. This ends the entire argument and one could not blame them for thinking so. The articles were not part of the original constitution. They are a product of presidential order 14 of 1985 passed on 2nd march of 1985. This makes the articles controversial since at that general zia ul haq was running the country under a martial law and there was no parliamentary structure at that time. This addition was done under his order and thus is viewed by many legal experts as dictatorial law. It is indeed ironic that the very parliamentarians which abuse zia ul haq and his rule fight tooth to nail to justify and protect this amendment.

    However the articles are in full force and the parliament has made various amendments in the constitution utilizing these articles.


    3. Case Laws

    Many legal experts have discussed these articles and there are case laws present which have declared parliamentary supremacy relating to amendments.

    In the case of Ghulam Mustafa khan vs Pakistan PLD 1988 Lah. 49 it was observed:-

    The words “subject to this part” appearing in article 238 clearly signify that there are no limitation whatever on the power of parliament to amend any of the provisions of the constitution if the procedure provided in article 239 in fully complied with. Since there is no other article in part XI of the constitution except the present article and article 239, the clear and inescapable conclusion that can be legitimately drawn from the words “subject to this part” is that there are no restraints on the parliament, for amending the constitution other than what is contained in article 239. This view is fully supported by clause (6) of article 239 which itself declares that there is no limitation whatever on the power of the parliament to amend any provision of the constitution. The parliament thus is vested with the power of constituent assembly to make or unmake constitution by amending it through the machinery provided in the constitution.


    As well as in Muhammad khan bachal vs Pakistan PLD 1987 Kar. 296 the following was observed:-

    Parliament is supreme authority to make any amendment in any part of the constitution to modify it short of its complete abrogation of fundamentals of the constitution. There is no provision in the constitution which puts restraints on its powers in this behalf.

    4. Other democracies

    Many cite examples of other democracies especially the United Kingdom one where parliament is considered supreme. In recent times the Prime Minister khaqan abbasi also made the same statement. This is a common argument as Pakistan’s democratic road has been a rocky one and the argument presented often takes the shape that in perfect democracies the legislative body is supreme.

    5. Constitution itself says the parliament is supreme

    This is a very common argument and is often mentioned by the laymen. The claim and argument is very simple however the constitution has nowhere mentioned this supremacy so explicitly.

    All arguments for supremacy of parliament circle around the above and a person listening would say that these are sound arguments with solid bases both on philosophical as well as legal grounds. So then why the controversy? That is because of the counter arguments.


    Arguments against supremacy of parliament.

    There are many legal minds especially amongst the judiciary who have argued that the parliament is not supreme. They have presented their view points and counter arguments. To understand their argument we must first see the preamble of the constitution of 1973 as well as the objectives resolution.

    Preamble

    A preamble contains the principles used as guidelines by its framers.

    Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;

    And whereas it is the will of the people of Pakistan to establish an order:-

    Wherein the State shall exercise its powers and authority through the chosen representatives of the people;

    Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;

    Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;

    Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures;

    Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;

    Therein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;

    Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;

    Wherein the independence of the judiciary shall be fully secured;

    Wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded;

    So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity:

    Now, therefore, we, the people of Pakistan,

    Cognisant of our responsibility before Almighty Allah and men;

    Cognisant of the sacrifices made by the people in the cause of Pakistan;

    Faithful to the declaration made by the Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah, that Pakistan would be a democratic State based on Islamic principles of social justice;

    Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny;

    Inspired by the resolve to protect our national and political unity and solidarity by creating an egalitarian society through a new order;

    Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.

    The objectives resolution.

    The objectives resolution was adopted by the constituent assembly on 12th march 1949 and became part of the constitution of 1973 through presidential order no 14 of 2nd march 1985 as section 2A stating “The principles and provisions set out in the objectives resolution reproduced in the Annex are hereby made substantive part of the constitution an shall have effect accordingly”.

    The resolution states the following

    1. Sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the state of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust.[2]

    2. This Constituent Assembly representing the people of Pakistan resolves to frame a constitution for the sovereign independent state of Pakistan.

    3. The state shall exercise its powers and authority through the chosen representatives of the people.

    4. The principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed.

    5. The Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah.

    6. Adequate provision shall be made for the minorities to freely progress and practice their religions and develop their cultures.

    7. Pakistan shall be a federation and its constituent units will be autonomous.

    8. Fundamental rights shall be guaranteed. They include equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality.

    9. Adequate provisions shall be made to safeguard the legitimate interests of minorities and backward and depressed classes.

    10. The independence of the judiciary shall be fully secured.

    11. The integrity of the territories of the federation, its independence and all its rights, including its sovereign rights on land, sea and air shall be safeguarded.

    12. The people of Pakistan may prosper and attain their rightful and honored place among the nations of the world and make their full contribution towards international peace and progress and happiness of humanity.

    The preamble and the objectives resolution set the guidelines which the law makers must follow. Both highlight that the Supreme Being is God alone and all supremacy lies with him and the law makers must exercise their rights within the limitations prescribed by him. This means that the law makers cannot pass any laws which are contrary to Islam or its values and we will discuss these limitations.

    Limitations on parliament.

    The constitution has placed several limitations on the parliament when passing laws or making amendments. The following limitations are highlighted in the constitution and its interpretation.

    1. Restriction to pass laws contrary to Islam

    The constitution has made it that the parliament cannot pass laws which are against the injunctions or spirits of Islam. This is perhaps best explained in Article 227; “all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the holy Quran and sunnah, in this part referred to as the injunctions of Islam, and no law shall be enacted which is repugnant to such injunction”.

    With the above we can understand that the parliament has been placed under a limitation which states that it cannot pass unislamic laws. Such law will be considered repugnant.

    The word repugnant is the limitation and this word was explained in the case law PLD 2010 FSC 1 which states that “meaning and scope of the terms “repugnant” is not limited only to the actual state of being contrary i.e contrariety, conflict, antagonistic, opposite or being disparate of the letter of the NASS/Injunctions of islam alone but would also cover the case when an impugned provision of law, law itself or a custom is, disagreeable, repulsive, offensive, distasteful, inconsistent, incompatible, irreconcilable or even averse to the spirit of NASS i.e injunctions of Islam


    Infact on 22 December 2010 the federal shariah court passed a judgment against the women protection act 2006 against the sections 11,25,28,29 of the act and observed that the sections are impugned and the state was given some time to change them to be Islamic.


    There is another very important and famous case law.


    PLD 1990 SC 99 Qazalbash waqf vs chief land commissioner.


    Case history

    Zulfiqar ali Bhutto was prime minister with his party leading in the assembly. From 1973-77 he remained in power. Bhutto has promised great land reforms and he felt that since he has major support in the assembly as well as support among the populace under the famous slogan of “roti,kapra,makan” he would be able to pass land reforms which would not only make him popular amongst the peasant class but also weaken the landlords of Pakistan. However he overestimated his support as well as his reach. Bhutto passed the Land reform act of 1977 in his last days of parliament.


    Qazalbaksh

    Qazalbakh was one of the many awqaf which held thousands of acres of land given as waqf. With the passing of the land reforms, qazalbaksh lost thousands of acres without compensation.


    Case

    With the rise of Zia, the Islamic provisions and the formation of federal shariah courts in 1979 and with the shariat petition began the argument whether land reforms were Islamic and the position of the land reform act 1977. The process began before this judgment in the judgment of the case Haji naimatullah vs NWFP government of Pakistan, PLD1979 Pesh 104 which stated “We will, therefore, declare that clause (d) of sub-para. (3) of paragraph 25 of the M.L.R. 115 is repugnant to the Injunctions of Islam and recommend that the aforesaid clause shall be deleted with immediate effect.”


    The judgment

    The case went to the appellate court of shariah which which listens to appeals of federal shariah court. The bench comprised of five judges which passed their judgments as such.


    1. Maulana Muhammad taqi usmani pointed out that no one could be deprived of property in Islam except in limited circumstances and the Land reform bill was based on those circumstances.

    2. Pir karam shah al-azhari agreed with taqi usmani and pointed out these socialist reforms have no place in Islam. Both voted for removal of Land reforms.

    3. Nasim Hassan Shah ji observed “n a society like Pakistan, which has been raised on feudalistic capitalistic principles for centuries, to reduce the gulf between the rich and the poor … it would be essential for the State to intervene ... Accordingly, even large scale State intervention to restrain individual greed cannot be declared to be against the injunctions of the Holy Quran. [Therefore, the] Islamic State is not prohibited from adopting such legal measures as contained in the Martial Law Regulations 115 of 1972 and Act II of 1977 in order to bring about ‘Adl (social equilibrium in the society).”Therefore, even though he agreed, “FSC and SAB … has the jurisdiction … to examine [these laws,] on the merits of the case…”, on merits he held that “the impugned laws are not repugnant to the Injunctions of Islam…”

    4. Shaifur Rehman J agreed with nasim Hassan shah ji.

    5. Afzal Zullah J voted for the acceptance of appeal and against Land reforms.

    With the above Land reforms became illegal in Pakistan and the parliament to this day cannot pass extensive land reforms since land reforms have been declared unislamic by the federal shariah court and the parliament cannot pass any law repugnant of Islam.


    With the above we see that Islam places great limitations on the parliament and this contradicts the notion that parliament is supreme and can pass any laws it sees fit.


    2. Restrictions on Fundamental rights

    Parliament is has been restricted by the constitution that it cannot pass any laws which violate or go against the fundamental rights of a person nor can the parliament amend the fundamental rights which are stated in the constitution of Pakistan. Article 8 states; “Any law, or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by this chapter, shall, to the extent of such inconsistency, be void”.


    The above very clearly highlights the limitation of the legislative that it cannot pass any laws which are inconsistent with the fundamental rights.

    In the case law Muhammad Nawaz sharif vs President of Pakistan PLD 1993 SC 473 stated “Fundamental rights guaranteed in any constitution are not capable of precise or permanent definition. These rights are to be construed in consonance with the changed conditions of society and must be viewed and interpreted with the vision to the future”.


    Now PLD 2007 SC 642 observed

    “Fundamental rights guaranteed by the constitution are not meant merely to be pious enunciations of certain principles supposed to be the basis of the constitution. The characteristic of a fundamental right is its paramount to ordinary state-made laws. They are immune from the pale of legislative enactments and executive actions. They constitute express constitutional provisions limiting legislative power and controlling the temporary will of majority by a permanent and paramount law settled by the deliberate wisdom of the nation. The sanctity of fundamental rights is protected by article 8(2) of the constitution which prohibits the state which includes the legislature not to make any law by which any fundamental rights may be curtailed or taken away and if any law is made to the effect then to the extent of such contravention, it shall be void, it is not liable to be abridged by any legislative or executive order expect to the extent provided in article 233 of the constitution. Fundamental rights cannot be waived. No right which is based on public policy can be waived. Citizens of Pakistan cannot themselves waive out of the various fundamental rights which the constitution grants them. The fundamental rights are not to be read as if they include the words “subject to a contract to the contrary”.


    In the case Mehmood khan achakzai vs Federation of Pakistan PLD 1997 SC 426 it was observed

    Words “any law” as used in present article will apply to all laws made by the parliament, be it general law or a law to amend the constitution”.


    In the case Government of Balochistan vs Azizullah memon PLD 1993 SC 341 it was observed

    For the purpose of applying fundamental rights granted under the constitution, where the word “state” is sued, it shall include all agencies and functionaries specified in Article 7 of the constitution”. Article 7: “In this part, unless the context otherwise requires, “the state” means the federal government, majlis e shoora, a provincial government, a provincial assembly, and such local or other authorities in Pakistan as are by law empowered to impose taxes or cess”.

    In the case Muhammad usman vs the state PLD 1965 Lah 229 it was observed

    If the other parts are not separable in the sense that they cannot be worked without the offending part, or if the offending part embodies a vital part or the object and principle of the legislation, the whole law would be void”.


    With the above it becomes apparent that the parliament cannot pass laws contradictory to the fundamental laws as well as make laws which amend the fundamental rights and the cases above have highlighted this restriction. The parliament has been placed with second legal restriction within the constitution.


    3. Judicial Review and constitutional amendment restriction

    A recent citation has described judicial review. In the case of PLD 2009 SC 879 consisting of a bench of 17 judges it was observed

    That the judicial review is the basic feature of the constitution and that the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation. It was a cardinal principle of the constitution that no one could claim to be the sole judge of the power given under the constitution and that its actions were within the confines of the powers given by the constitution.

    The judges, to keep the power of judicial review strictly judicial, in its exercise, do take care not to intrude upon the domain of the other branches of the government. It is the duty of the judiciary to determine the legality of executive action and the validity of the legislation passed by the legislature.

    It is a fundamental principle of our jurisprudence that courts must always endeavor to exercise their jurisdiction so that the rights of the people against the violations of the law by the executive and not for personal aggrandizement of the courts and judges. It is to this end that the power of judicial review was being exercised by the judiciary before 3rd November 2007. Indeed the power of judicial review was, and would continue be, exercised with strict adherence governing such power, remaining within the sphere allotted to the judiciary by the constitution.

    Through the exercise of suo moto powers and alleged consequential erosion of trichotomy of powers enshrined in the constitution was made a ground for imposing the unconstitutional and illegal proclamation of emergency, which was upheld in tikka Iqbal Muhammad khan’s case, not a single case taken up suo moto was referred, to, or discussed in the detailed reasons of the said decision-except a bald reference in para 2(ii) of the short order – to point to any undue interference in the functioning of the other branches of the government”.


    In fact in case law PLD 2015 SC 401 it was held that constitutional amendments are not limited and are subject to judicial review. The case observed

    Article 239(5) if the constitution stated that “no Amendment of the constitution shall be called in question in any court on any ground whatsoever”. Term “any court” used in the said article did not include the Supreme Court by name when the jurisdiction of the Supreme Court was to be ousted, but when the constitution did not mentioned the Supreme Court, its jurisdiction was not ousted. Article 239(5) of the constitution, thus, did not oust the jurisdiction of the Supreme Court to call in question an amendment made to the constitution by the parliament. Even if an attempt was made to curtail the jurisdiction of the Supreme Court (to question the vires of an amendment), it would not be sustainable as the original constitution of Pakistan, 1973, and it was subsequently inserted by a military dictator (vide presidents order no 20 of 1985-constitution second amendment order, 1985) to sustain himself in the usurped office of the president”.


    It is with this we understand that the constitution does not have sovereign powers of amendment and amendments can be placed before the Supreme court for review if they are legal and in line with the constitution.


    The above three are constitutional limits which are placed on the legislative assembly.


    Constitutional system for governance

    The supremacy of parliament is not mentioned anywhere explicitly within the constitution. Infact the opposite was founded in another famous case. State vs zia ur rehman PLD 1973 SC 49 it was observed by chief justice hamood ur rehman

    In the case of a government set up under a written constitution, the functions of the state are distributed amongst the various state functionaries and their respective powers defined by the constitution. The normal scheme under such a system, is to have a trichotomy of powers between the executive, the legislature and the judiciary but each of these organs may itself be fashioned in a variety of different shapes and forms. Thus, the legislature may be unicameral or bicameral; the legislative subjects may be divided between the federating units and the federation in a federal system or even the legislative power may be divided between the executive and the legislature. The executive may take the types and grades of courts with the highest at the apex either as an ultimate court of appeal or a court of cessation. There may also be other administrative tribunals outside the judicial pyramid”.

    With the above it becomes apparent that the constitution has no concept of supremacy but of God and of itself. It is apparent that the constitution meant for the creation of three equal institution which become a check and balance on each other i.e Judiciary, parliament and executive.


    Democratic concept and other democracies

    For promoting the ratification of the US Constitution, James Madison (fourth president of USA) in collaboration with Alexander Hamilton and Jon Jay, wrote the ‘The Federalist Papers’. In one of the paper, Madison wrote “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself

    The US placed upon its government the concept of judicial review where the Supreme Court could strike down laws passed by the congress and signed by the president. Its most recent example would be The travel ban by trump on 6 muslim majority countries which have been struck down by state Supreme Courts and hearings by the federal US court will be heard in April highlighting the powers of the court. In fact in December of 2017 a unanimous Supreme Court on Monday stuck down a law that makes birthright citizenship harder for children of unwed fathers to obtain than children of unwed mothers.

    Thus the world’s greatest democracy has placed checks on the powers of its elected officials.

    Infact even in UK In 2005, Lord Steyn in Jackson Vs Attorney General UKHL adumbrated “the classic account given by Dicey of the doctrine of supremacy of parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom

    Infact if we look into the world’s largest Democracy which came into being with us. India. The Supreme Court has the power of judicial review on the decisions of the parliament. The Kesavananda Bharathi judgement or His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (case citation: (1973) 4 SCC 225) is a landmark decision of the Supreme Court of India that outlined the Basic Structure doctrine of the Constitution.[2] Justice Hans Raj Khanna asserted through this doctrine that the constitution possesses a basic structure of constitutional principles and values. The Court partially cemented the prior precedent Golaknath v. State of Punjab AIR 1967 SC 1643, which held that constitutional amendments pursuant to Article 368 were subject to fundamental rights review, by asserting that only those amendments which tend to affect the 'Basic structure of the Constitution' are subject to judicial review. At the same time,the Court also upheld the constitutionality of first provision of Article 31(c), which implied that any constitutional amendment seeking to implement the Directive Principles, which does not affect the 'Basic Structure', shall not be subjected to judicial review.

    Infact just a few years ago the Indian Supreme Court struck down an amendment by the legislative assembly of section 66A of their information Technology Act as unconstitutional under the title that it was a restriction on the freedom of Speech.


    Conclusion

    With the above the following can be concluded that on legal and philosophical grounds

    1. That the constitution nowhere states that the parliament is supreme. Infact Article 142 actually has a list of legislations that the parliament can pass. I.e Article 142(b); Majlis e shoora and a provincial assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence”. Article 142(c) “subject to paragraph (b), a provincial assembly shall, and majlis e shoora shall not, have power to make laws with respect to any matter enumerated in the federal legislative list”. The arguments and cases and interpretations highlight that Pakistan is a trichotomy of powers and none is supreme nor sovereign.

    2. That other democracies and famous democracies have placed restrictions on their elected legislative and this is exactly why they are such democracies as they don’t allow any institution to have complete power over all.

    3. French economist and prominent member of French liberal school, Fredric Bastiat rightly said “When plunder becomes a way of life for a group of men in a society, over the course of time they create for themselves a legal system that authorizes it and a moral code that glorifies it. This highlights that absolute power is a corruption even in philosophical point of view

    Pakistan’s education system has many flaws and the lack of legal sense is perhaps its greatest. Heresy and often misinformed views are spoken based on emotions without clear understanding even of the system that runs the country. This is why it is the duty of every citizen to take it upon himself to study the law that govern the country and its philosophy. It is the job of those that seek power to misguide yet one must read, investigate and learn so that we can educate ourselves as well as educate others and make informed decisions.



    Source


    1. · Siddiqui, Tariq Moin (21 July 2013). "Constitution of Pakistan". GEO Documentary (GEO News area studies). GEO Television Network. GEO Television Network. Retrieved 2 June 2014.
    2. constitution of the Islamic Republic of Pakistan 1973, A comprehensive and exhaustive commentary



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  2. saiyan0321

    saiyan0321 SENIOR MEMBER

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  3. Joe Shearer

    Joe Shearer PROFESSIONAL

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    Brilliant. Seldom read such a meaty and useful post anywhere.
     
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  4. HRK

    HRK PDF THINK TANK: CONSULTANT

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    In 2015 this debate was settled as SC court of Pakistan in its decision regarding the constitutional petitions challenging the 18th,19th and 21st Constitutional Amendments given the following principles
    Untitled.jpg
    http://www.supremecourt.gov.pk/web/user_files/File/Const.P.12of2010.pdf
     
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  5. Solomon2

    Solomon2 BANNED

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    @saiyan0321 : back up a bit. If you're questioning parliamentary supremacy you have to start with the Constituent Assembly which met way back when to discuss Pakistan's constitution and parliament's role. So you have to examine the legality and legitimacy of what the C.A. passed. Something like the Objectives Resolution, which was approved by only 21 out of 69 members of the C.A. and in the end imposed upon the constitution by a dictator, doesn't seem like a legitimate tool to restrain parliamentary authority, does it?
     
  6. VCheng

    VCheng ELITE MEMBER

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    All this sudden introspection of who and what is supreme and what the Constitution says is all fine and good - until the Doctrine of Necessity is invoked. Then we all know what is actually supreme - national interests, and the power that defines them. Everything else is hogwash.
     
    Last edited: Feb 26, 2018
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  7. salarsikander

    salarsikander SENIOR MEMBER

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    Still a good precedent I must say. The doctrine of necessity has caused considerable damage
     
  8. Divergent

    Divergent SENIOR MEMBER

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    Very well written and constructed :)
     
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  9. saiyan0321

    saiyan0321 SENIOR MEMBER

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    Thanks!

    Yes in 2015 the supreme court indeed passed the order in the famous case law PLD 2015 DC 401 however it created greater highlight on one restriction of parliament that the Supreme Court can do judicial review on acts passed by the parliament with the interpretation that the court mentioned in article 239.5 and article 239.6 are lower courts not supreme court. Many called it conspiracy and judicial review but the point of this thread to highlight that the parliament has not one but multiple restrictions placed on it and whenever democracy has come to pass be it in the 90s, 70s or 2010s, it is a fact that question of supremacy has arrived with the answer that no it is not and this is a trichotomy of powers and the laws passed by the parliament are indeed upto question. That the events of today are no conspiracy but a path that all democracies walk and we have walked it multiple times only to get back to the starting point and this path will not weaken democracy but strengthen it fore true democracy is checks and balances and dictatorship can take any form but always mean the same thing. Supremacy of one office or being.

    The Constitution of 1973 which is the constitution followed was passed by a unanimous vote and although yes the objectives resolution has a questionable pass however this is why i mentioned the Preamble which is reveals the thinking of the assembly as well as contains the soul of the constitution and the preamble is similar to the resolution and the preamble highlights the same limitations and the preamble was not by a dictator and although indeed that dictator by his presidential order did place objectives resolution as part of the constitution but you cannot ignore that it was the same dictator that provided the constitution the article 238-239 which gave the parliament sovereign powers of constitutional amendments. This tells us that his goal was not restraining of any parliament but to legitimize and hold the office he had usurped. The islamic limitations on the parliament find source in the Preamble and this along with other limitations such as fundamental rights and judicial review highlight that parliament is not supreme.

    Th article hides nothing. Take out all effects of the dictator and the parliament will only find itself with another limitation as the preamble will highlight Islamic limitations and the limit that the parliament cannot amend the constitution which is highlighted within the legislative list which points to what legislation the parliament can actually pass and constitutional amendments are not among them.

    I understand your concerns however this is a road that all democracies travel and we must travel on it as well which is a commendable thing and as for doctrine of necessity. The constitution has high treason article as well bcz of which one dictator is abused and the other cannot come to pakistan.
    Look at from this way. If a grand revolution comes to pass by the people and the constitution is abrogated and the new revolutionary government brings its own constitution then that revolutionary government will be a traitor according to the 1973 constitution and if the disposed government comes to power again on the bases of the 1973 constitution then that ex disposed, reinstated government can hold the revolutionary government now disposed under treason. You can use this example anywhere. not just for Pakistan.

    You see this is where the discussion comes. the constitution finds its power from the people and as long as the people stand by it and hold it sacrosanct then it cannot be removed. However how can the people call a constitution sacrosanct when they dont even understand it. When they dont learn about and hold great misinformation about it to this effect that a man stating that parliamentary dictatorship is constitutional. It is the job of the legal fraternity and the education sector to teach the people from the start about the constitution so that they can create a sense of attachment and with it hold it sacrosanct.

    The views of A R Cornelius only find more strength.

    thanks,
     
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  10. VCheng

    VCheng ELITE MEMBER

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    So what happens to this "supreme law" of the land when certain powers are clearly above it?

    https://www.dawn.com/news/1392224/still-missing

    Selective application of the law is Pakistan's enduring curse, and the results are before all to see.
     
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  11. salarsikander

    salarsikander SENIOR MEMBER

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    Sir, it is not unusual in any state, especially in US to disappear certain people or kill them under mysterious circumstances. But it should be kept under strict control. Which is acceptable like in US.

    For starter this book is most recommended for anyone seeking in depth knowledge
    https://oup.com.pk/constitutional-and-political-history-of-pakistan.html
     
  12. niaz

    niaz PDF THINK TANK: CONSULTANT

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    Pakistani system is based on the British Parliament; I would, therefore, use UK system as a reference point.

    In ancient Athens where it started; all citizens used to gather in the city square and listen to the speakers give their opinions on matters, and then vote on them. That was the true democracy. However, with the rising populations and distances, it is impossible to allow everybody to vote on every matter.

    In the UK, each constituency elects an MP which represents its residents. Here ordinary voter gets the chance to vote once every 5 years and relies on the politicians to act in our best interests. Pakistan follows the same system

    As politicians are trusted to represent their constituencies, it is in the best interests of the politicians to take away voter’s rights and their ability to influence policy, Politicians often make their own rules, even the rules governing themselves. It is inevitable that the people who run it will always look to increase their power

    Politicians can choose who carries things out, thus being elected offers huge opportunities for corruption and bribery. Political elections every few years mean political parties can put a lot of effort into each campaign, and the parties with better skill in misleading the public usually do better than the parties with better policies.

    Therefore ‘Democracy’ in theory may be the “Government of the people, for the people by the people”, what you get is, in fact, a kind of political ‘Oligarchy’. It is more so in Pakistan where the same people win elections time and again even though it may be with different parties and the leadership remains confined to a handful of families.

    A major flaw ( as pointed out by Iqbal) being that it is assumed that all opinions are worth the same, that is we are putting the same value on the opinions of the educated and the ignorant, and the law-abiding citizens and crooks. Another arguably fair criticism of the democracy is that it devolves into a popularity contest. Voting doesn’t decide who is right— simply whoever is most willing to say what people like to hear. As a result, many candidates for political office resort to pursuing the policies that focus on the immediate satisfaction of whims instead of long-term improvements.

    One could go as far to say that the system prevalent in the UK as well as in Pakistan is the “Tyranny “of the majority. Except that democratic governments often do not command a majority of the popular vote, merely a plurality; but they have the power to enact laws against the interests of the opposition.

    Pakistani democracy, in particular, revolves around tribal mentality. That means that whoever leads “your team” can rest assured that they have your vote. However, despite all of its flaws, currently, a democratic system based on the adult franchise is still accepted as the best system of governance.

    In the UK Parliament is the supreme legislative body that makes /changes or voids any previous law. Parliament alone can determine what is legal and what is illegal as well as the punishment for illegality. What we are really referring to when we speak of Parliamentary supremacy is no more and no less than the incumbent Parliament’s right to make or repeal any law and the ability to amend /strike down clauses of the Constitution and to add new ones to it

    However, its powers stop there. Existing parliament cannot prevent a future Parliament from doing the same. Additionally, the parliament can suspend some of the Human Rights in the interests of national security or as punishment of a crime but cannot take away the basic inalienable human rights.

    These basic rights are based on values like dignity, fairness, equality, respect and independence that belong to every person in the world, from birth until death. They apply regardless of where you are from, what you believe or how you choose to live your life.

    But human rights are not just abstract concepts; they are defined and protected by the Human Rights Act of 1998. Among others, these include, the right to life, freedom from slavery, right to liberty & security, right to marry, right to the peaceful enjoyment of your property and the right to a fair trial. Any act of parliament against common right and reason or repugnant to the basic Human rights as above would be adjudged to be ‘Void’.

    Mature democracies have developed a set of checks and balances in an attempt to ensure that the above rights are protected. An independent judiciary is essential to ensure the separation of the powers of the State, the Rule of law and the liberty of the citizen regardless of their opinions. It must be understood that in a parliamentary system, the Executive is selected from the elected members and therefore the Parliament and the Executive are the same.

    I am not a lawyer, but neither were original writers of the Magna Carta or most of the MNAs /MP’s elected to parliament who make the laws and govern the country. The subsequent narrative represents my personal opinion as an ordinary citizen on the sovereignty of the Parliament and its relationship with the Judiciary.

    In the subcontinent, the oldest form of courts was the Panchayat. It is derived from the Sanskrit word ‘Panchen’ and ‘Ayatanam’ meaning the council of 5 wise men. Even today in the rural societies of Pakistan, justice is handed out by the tribal Sardars, village panchayats & the Jirga. The reason why this system is still in practice is that it is cheap and provides quick justice.

    Regrettably, information about the judicial administration in the medieval subcontinent up to 1857 is limited except what is given in the chronicles of the Kings and these only give occasional reference to the judicial system & laws of the land at that time. “ Ain e Akbari” and “Fatwa e Alamgiri” give an idea of the laws but do not give a detailed description of the judicial administration.

    What we understand is that medieval subcontinent was highly centralised with extensive gov’t machinery which was more concerned with the collection of revenue than dispersing ‘Justice’. Overall it was the traditional feudal system.

    King was the supreme Judge, next only to the Almighty. He administered justice through a system of Qazi’s who were appointed by the king. If not personally known to the king, the appointment was based upon the recommendation of his advisers. It was the Qazis that held courts and gave justice. Local Subedars (governors) generally administered justice with the help of the Qazis.

    Subjects under the Muslim kings were divided into two sections, the believers and the Zimmis with different laws applicable to each. It is therefore not possible to compare the role of judges before the British Raj with that of the judges of today and we have to refer to the English justice system to have a meaningful discussion.

    Justice during the Anglo-Saxons and even after the Norman invasion of 1066, was a combination of local and royal government. Local courts were presided over by a lord or one of his stewards. The King’s court – the Curia Regis – was, initially at least, presided over by the King himself.

    The very first judges were the court officials who had been advising the King on the settlement of disputes. From that group evolved the justices who possessed a mixed administrative and judicial jurisdiction. Essentially, these justices were not meant to grant real justice but to impose the will of the king over the people and were in fact, instruments of oppression in most cases.

    In 1178, Henry II appointed five members of his personal household including two from the clergy “To hear all the complaints of the realm and to do right”. These “wise men” of the realm, was the origin of the Court system in the UK. Not too different from the Panchayat of ancient India.

    During this era bribes and payments were common, and, in the middle of the 13th century, the judiciary was openly accused of corruption. In 1346, judges were made to swear that “they would in no way accept gift or reward from any party in litigation before them and/or give advice to any man, great or small, in any action to which the King was a party himself”.

    Having witnessed situation in Pakistan from its birth, I have seen gross errors made by the Chief Justice of the Supreme Court, the infamous Mohammed Munir who invented the Doctrine of Necessity. In general, the judiciary in Pakistan has always been afflicted with flawed and discriminatory judgments, more than often denying justice to the lot appealing to them for justice.

    In a country where institutions are largely biased and fanatical; the people expect the judiciary to goad the government, the bar councils and associations into setting up inexpensive legal aid services. Instead, the courts in Pakistan, even the high courts, have earned infamy for passing verdicts on blasphemy laws hitting hapless members of the minority community and sentencing an elected Prime Minister to hang. Access to justice for the poor, especially for women and members of the minority communities is a serious issue in Pakistan.

    The other problem is the pressures on the justice system not attributed to the politicians. The biggest threat to the judiciary’s independence comes from the religious orthodoxy and the Media biased towards sensationalism over substance and it spins the facts to its advantage.

    Lawyer’s movement was dominated by the "judicial supremacists" who supported the view that both the Parliament and the Executive are bound by the Constitution to enforce all court decisions. This, in my view, violates the fundamental right of elected assembly.

    Some of the blatant examples of the judicial activism happened during the megalomaniac CJ Iftikhar Chaudhry’s tenure under whom the Supreme Court acted in matters that were beyond its capacity, such as fixing the price of sugar, petroleum and power. It did not change the end result but only wasted the Apex Court’s precious time.

    As recently as December 19, 2017, Justice Saqib Nisar along with two other judges visited Mayo Hospital Lahore unannounced to review the kind of healthcare provided to the patients. IMO the team of judges should have visited the Lahore District and Sessions Courts unannounced and met the litigants and enquired about the problems of corruption and inefficiency they face in the lower judiciary.

    While the apex court has the authority to declare any primary legislation null and void, if it considers it violates of the constitution, the power is usually exercised rarely and with restraint and only in cases wherein fundamental rights specifically enacted in the constitution are directly affected by the offending statute or law.

    Pakistani Supreme Court, particularly under its chief justice Iftikhar Chaudhry, has shown utter lack of restraint. It can be of no weight to say that the courts, on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. The judges cannot don the attire of self-righteousness and deprive people of their right to having honest and able judges to decide their cases.

    While no would disagree with that the unlimited power of Parliamentarians to make any laws should be checked through the process of interpretation by the Judiciary; it is also understood that the Judiciary courts interpret and apply the laws that Parliament makes faithfully and dispassionately. Supreme Court task is to interpret the law and not to make it. In Pakistan, the temptation to use power by the SC has led to actions that create political uncertainty and had a negative impact on national economy and law and order.

    I would also disagree with the assertion that the Constitution is ‘Sovereign’ because it can be amended by the two-third majority of the parliament. The supremacy of Parliament is still the general principle of UK constitution and same applies to Pakistan.

    But in Pakistan, an overzealous court in its pursuit of judicial activism even prevented the parliament from exercising its right of amending the constitution with the two-thirds majority. In essence, the court abrogated the right of elected representatives to amend the Constitution, while the existing Constitution guarantees it!

    In a ‘Democarcy’, next to the Almighty, it is the power of the people that is supreme. It is the people who elect the parliament who in turn write the Constitution and make the laws. The crux of the matter is that in a democratic system, good or bad, the party winning the majority seats is eligible to form the government.

    As long as the party in power commands the confidence of parliament, it has the right to govern the country and no non-elected body such as Judiciary has the right to impose their power over the elected Executive. Should the government fail to perform up to the expectations of the people or drifts away from its commitment, it is the people who should decide the fate of the ruling party in the next election. Once he is no longer the Prime Minister, he /she can be tried in the courts for the misuses of power, but IMO an incumbent Prime Minister can only be removed by the elected parliamentarians (as happened to Margret Thatcher) not by the Supreme Court especially on the flimsy grounds of contempt of court as happened to Gilani.

    The SC regardless of the depth of knowledge on the law of the land and the constitution has not been elected. Whereas the elected government represents the majority represents millions of people in the country. By overruling the choice of millions of people; CJ Iftikhar Chaudhry went against the very essence of democracy — the government is of the people, by the people and for the people.

    In my humble opinion, since it is the people who are supreme; their elected body holds sway over any non-elected persons. However, it is only in a system of government where the rule of law is respected that the law is truly legitimate, and legitimacy is the essence of the authority of a democratic government. Therefore, it must also be said that the Parliament’s respect for the courts as the interpreter of our law is essential to its legitimacy as a supreme legislator and while decisions by the courts whether right or wrong, can be challenged in an appeal; these must be respected by all.

    My post should therefore not be taken to support what Nawaz Sharif is doing, only to assert that Parliament supersedes the Supreme Court.
     
    Last edited: Mar 4, 2018
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  13. VCheng

    VCheng ELITE MEMBER

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    Any discussion of who supersedes who according to the Constitution is a pointless exercise as long as supra-Constitutional illegality reigns supreme over all.
     
  14. salarsikander

    salarsikander SENIOR MEMBER

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    Is objective resolution illegal ?
     
  15. saiyan0321

    saiyan0321 SENIOR MEMBER

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    no ofcourse not. I have not started this discussions for such mindless tags to be placed on members participating in it.

    The thing is that indeed both Pakistan and india have inherited many things from the british including the parliamentary system but we must also come to understand and respect the fact that the two nascent states had a very active legal fraternity which played an active role in the politics of the state and their active and educated discussions and arguments led both countries to a diverge path from the british system.

    Putting aside india. i will speak about Pakistan.

    The legal discussions brought the concept restrictions on the parliament akin to the us constitution. The constitution was made the sole authority and in it stated that Pakistan is a trichotomy of three powers. Legislative, executive and ofcourse judiciary. Where case laws came to pass that placed first restriction on the legislative which were islamic restrictions which are not just covered by the presidential orders of a dictator nor the controversial objectives resolution but by the preamble of the 1973 constitution. Second restriction were placed within the constitution that the legislative cannot make laws contrary to the fundamental rights that are inherent to all people. Both of these restrictions were to be overseen with judicial review.


    Yes Pakistan has inherited many things from british but i think judicial events of Pakistan highlight how it has differed from the british to adopt a system where each institution has checks and balance.

    If democracy truly is the will and rise of the people above all else and supremacy to them without checks and balances then yes pakistan is not this democracy and it may never become this democracy but wouldnt the same be true for india where the supreme court can pass laws contrary to the fundamental rights and the same with the american court which can strike down laws it finds contrary to the constitution.....


    I do not support judicial activism and i do not believe it is the role of courts to slash prices, to make surprise visits nor was the purpose of this thread to glorify such acts but it was simply to tell the people what system is in place in Pakistan so that they themselves can learn what are limits and what is the constitution. If you ask me about these restrictions. my opinion.

    They are right as each institution needs to be placed with limits. None are supreme. the constitution envisioned this nation as a trichotomy of Power and after 70 years of absolute joke of state running, it is time we pick this system and take it forward.

    The third restriction which is based on a word may seem excessive but the very article itself is an act of a dictator which is vilified by the so called heroes of democracies who very conveniently in their hypocrisy forget that this article was placed by the very dictator they so horribly vilify. Either stand and say that all his orders were illegal and the true spirit of the constitution of 1973 be revived or say that all his orders were right. They pick which favors them and point those that are against them. The courts simply stamped their authority on a controversial article added by a controversial person at a controversial time by interpreting it in a way that quite frankly left me stunned.


    We can ofcourse discuss the flaws of the system but we cant say that this is not how it is and it is this which is so absent mindedly stated.............