Tuesday, February 27, 2018

Threats to Philippine judiciary

See - https://www.rappler.com/nation/196963-charter-change-forum-dlsu-davide-judiciary

"x x x.

Ex-CJ Davide: Cha-Cha's threats to judiciary meant for dictatorship

'That is what we should probably be aware of, and have to fight hard,' says former chief justice Davide

By Lian Buan
Published 8:18 PM, February 26, 2018
Updated 8:18 PM, February 26, 2018

DICTATORSHIP? Former Supreme Court Chief Justice Hilario Davide Jr. believes that the proposals to 'defang' the judiciary is meant to put up a dictatorship. File photo by Michael Bueza/Rappler

MANILA, Philippines – Former Supreme Court chief justice Hilario Davide Jr said that the proposals to clip the powers of the judiciary are meant to "defang" the independent branch of government in the lead up to a dictatorship.

“These are the dangers that might happen really, because all the major organs of the government will be deeply affected, with the end view of putting up a real dictatorship,” Davide said in a Charter Change (Cha-Cha) forum held at the De La Salle University (DLSU) College of Law on Monday, February 26.

Davide, who strongly opposes Cha-Cha and federalism, was referring to theproposal of the House sub-committee on amendments headed by Capiz 2nd District Representative Fredenil Castro who wants to delete an entire phrase from Section 1, Article VIII of the Constitution. (READ: Changing the Constitution: What are being proposed so far)

As it is, Section 1 provides the judiciary the power “to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

In the proposed amendment, the phrase “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government” shall be deleted.

Issues that fall within this specific judicial authority include what is called the "political question" like the proclamation of martial law.

Supreme Court Chief Justice Maria Lourdes Sereno had strongly warned against using the political question doctrine saying it was the “principal mechanism by which the Supreme Court was blamed for having unduly validated Mr Marcos' martial law.”

“That is what we should probably be aware of, and have to fight hard,” Davide said, adding that it would be the biggest change to the Supreme Court should it be implemented.


Davide also said that the Judicial and Bar Council (JBC) – its composition and role in appointing members of the court – should not change.

The House sub-committee wants to delete the entire constitutional provision that created it. The PDP-Laban proposal, meanwhile, wants to do away with the JBC and instead have the Integrated Bar of the Philippines (IBP) shortlist at least 3 nominees and have the federal Senate appoint one.

“It would be dangerous if it would be back to political pressures and interferences,” Davide said.

Under the 1935 Constitution, appointments to the judiciary had to go through the Commission on Appointments, as Cabinet secretaries do today.

That changed under the 1973 Constitution when then president Ferdinand Marcos had the sole authority to appoint justices.

When Marcos was ousted, one of the significant amendments in the 1987 Constitution was the creation of the JBC, which screens applicants to the bench.

“That is not a problem at all, because if you interpret correctly now the bicameralism, there should be one from the upper house and one from the lower house,” Davide said.

Constitution ‘to die for’

Davide, one of the drafters of the 1987 Constitution, said it Is the Charter he would die for.

He said there are problems not because the 1987 Constitution is flawed, but because it is not fully and effectively implemented.

Davide also rejected the criticism of Associate Justice Lucas Bersamin who said the Constitution is "emasculated" insofar as responding to present-day threats to security.

Bersamin said it during the martial law oral arguments, where he supported proposals to amend the Constitution, particularly expanding the criteria to proclaim martial law to respond to “all dangers other than invasion or rebellion.”

“It’s the best Constitution, they are going to emasculate it now,” Davide said. – Rappler.com.

x x x."

Monday, February 26, 2018

Implementing Innovation: The Challenges to Changing Big Law

Law and Pop Culture

The ICC as a New Judicial Institution

Prosecutors as Problem Solvers: Discretion in the War on Drugs

Local Government and Governance

Local Economic Development through Enhanced Governance and Grassroots Empowermen

Virtual Reality & the Law

Women Lawyers: Equals at the Bar? - Professor Jo Delahunty QC

Immigration Law with Reid Trautz

How can lawyers fight implicit bias?

The Constitutional War Powers of the Executive and Legislative Branches

Originalism vs. Living Constitution

Human Trafficking - Justice and Accountability

Twenty Years of International Criminal Law

Human Rights in Cambodia

The Courts and the Administrative State

Tax reform ni Duterte, dapat bang ikatuwa ng mahihirap?

The story of Robert Mugabe’s downfall

The Inhumanity of Torture (with Patrick Eddington)

New DNA technology changed fate of rape case

Regulations Gone Wrong (with Peter Van Doren)

Threats to Religious and Ethnic Minorities under the Islamic State

Understanding Human Rights and How They Get Implemented

Justice: Local and Global with Amartya Sen

Free Speech Takes the Cake: Can States Compel Speech?

The Problem of Police Misconduct (with Jonathan Blanks)

Programme helps ex-convicts get reacquainted with society

Revisiting Race, Criminal Justice and Health

Courting Death: The Supreme Court and Capital Punishment

These Mothers Want Justice For Their Sons Killed By Police

Hong Kong: capital of domestic slavery

Farmworkers caught in the web of illegal immigration debate

Integrated Bar of the Philippines (IBP) creates a task force that will investigate the killings of lawyers in the country.

See - http://newsinfo.inquirer.net/970928/ibp-forms-task-force-to-probe-murders-attacks-vs-lawyers-ibp-lawyers-murders-killings-crime-justice

"x x x.

BP forms task force to probe murders, attacks vs lawyers
By: Tetch Torres-Tupas- Reporter / @T2TupasINQ
INQUIRER.net / 07:13 PM February 23, 2018

Noting that no attack against its members had been successfully resolved and prosecuted, the Integrated Bar of the Philippines (IBP) on Friday has announced the creation of a task force that will investigate the killings of lawyers in the country.

“The apparent continued attacks on the members of the Bar, none of which had been successfully resolved or prosecuted, create an impression of impunity, wherein State forces appear indifferent and helpless, or, worse, in one case, even involved in such violent assaults,” the IBP said in a resolution by its Board of Governors.

“This impression of impunity, in turn, creates a chilling effect on members of the Bar, who, in the discharge of the solemn duties as officers of the court and guardians of the Rule of Law, are placed under a serious, grave and imminent threat to their life and family,” the IBP lamented. IBP is a mandatory organization of lawyers composed of over 55,000 members.
The IBP board of governors authorized their national president Atty. Abdiel Dan Elijah Fajardo to appoint the chairman and four members of the panel, “all of whom are members in good standing of the Integrated Bar and of proven probity, independence and competence.”

Based on the resolution, the national task force will be directed “to investigate, document, prosecute or assist in the prosecution of cases involving the murder or violent assault against the members of the Bar and/or their families.”

The task force is required to submit to the Board a semi-annual report.

The IBP also called on all its chapters to “provide the said Task Force their full cooperation, support and assistance in the investigation, documentation and prosecution of the said cases.”

The IBP was prompted to create a task force following the foiled ambush against Atty. Argel Cabatbat last Feb. 13 and the death of Atty. Jonah John Ungab, Vice Mayor of Ronda town in Cebu and counsel of self-confessed drug distributor Kerwin Espinosa.

“The investigation of these cases has remained open-ended or unresolved nor has there been any of the said cases prosecuted before our courts of justice, with the perpetrators roaming freely in our midst and with the families of the victims haplessly and silently bearing the pain and suffering of a murdered loved one,” it explained.

The IBP has already condemned the attack on Cabatbat and Ungab and called on authorities to expedite the investigations and bring the perpetrators to justice. /jpv


Kerwin Espinosa’s lawyer killed in Cebu City ambush

Lawyer survives ambush, rams motorcycle-riding gunmen with SUV

x x x."

Read more: http://newsinfo.inquirer.net/970928/ibp-forms-task-force-to-probe-murders-attacks-vs-lawyers-ibp-lawyers-murders-killings-crime-justice#ixzz58CQ7SMnG
Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook

What do court administrators in the judiciary do?

See - https://www.rappler.com/newsbreak/iq/196413-roles-court-administrator-philippines-judiciary-supreme-court?utm_source=facebook&utm_medium=social&utm_campaign=newsbreak

"x x x.

What do court administrators in the judiciary do?

The Office of Court Administrator supervises over 2,600 judges and 25,000 court personnel across the Philippines

By Jodesz Gavilan
Published 7:45 PM, February 19, 2018
Updated 4:20 PM, February 21, 2018

MANILA, Philippines – Phone calls that allegedly tried to "influence" two trial court judges not to issue arrest warrants against Senator Leila de Lima took center stage during the 16th House justice committee hearing on the impeachment complaint against Supreme Court Chief Justice Maria Lourdes Sereno on Monday, February 19.

The calls were made by SC Deputy Court Administrator (DCA) Jenny Lind Aldecoa-Delorino to Muntinlupa Regional Trial Court (RTC) Judges Patria Manalastas de Leon and Amelia Fabros Corpuz after it was known that they were going to handle the cases alleging the involvement of De Lima in the illegal drug trade. (READ: Much ado about calls: Judges hit for ‘late’ warrants vs De Lima)

Delorino, who first joined the Office of the Court Administrator (OCA) in 2010, said that she only told the judges that they are willing to assist them in their needs – additional stenographers and other resources, for example. She also claimed she reminded the two about the guidelines for media coverage.

Court Administrator Midas Marquez, however, said it was not part of the OCA's protocol but was an exercise of discretion. So what exactly are the duties of a court administrator his deputy court administrators?

'Assisting' the court administrator

Created through Presidential Decree 828 in 1975, the Office of the Court Administrator (OCA) was established to help the Supreme Court in its administrative supervision over all courts in the country.

Marquez, appointed in 2010, is the 14th Court Administrator.

Besides the court administrator, there are also 3 deputy court administrators. The incumbent DCAs are Jenny Lind Aldecoa-Delorino, Raul Villanueva, and Thelma Bahia.

Under the law, the 3 are supposed to assist him in supervising over 2,600 judges and 25,000 court personnel across the country. They are assigned to supervise trial courts in certain regions.

For example, according to Delorino's profile at the Judicial And Bar Council (JBC) in which she serves as consultant, she has "direct supervision" over the trial courts in Regions 3, 5, 7, and 10, as well as the National Capital Region cities of Makati, Pasay, Pasig, Taguig, San Juan, Pateros, Las Piñas, Parañaque, and Muntinlupa.

Aside from this, according to Circular No. 30-91 series of 1991, the DCAs help the Office of the Court Administrator carry out his role and duties which include:

1. Judicial discipline of lower court justices, judges, and personnel

Discipline matters involving justices and judges filed before this office shall be immediately referred for appropriate action by the court en banc.

2. 'Administrative interventions' in case management of lower courts

The court administrator, assisted by his or her 3 deputies, has the responsibility to handle administrative problems of lower courts regarding assignment, detail and transfer of court personnel.

3. Preparation of draft circulars

The Office of the Court Administrator also works on the preparation of drafts of administrative orders and circulars in line with court resolutions or upon instruction of the SC chief justice.

4. Public assistance and information

The Office of the Court Administrator is expected to handle matters of public assistance and information, requests for “expeditious action” on pending lower court cases, and other requests that do not need administrative or judicial adjudications. These may include follow-up on status of cases, among others.

5. Personnel administration

Appointments in the lower court are processed by the Office of the Court Administrator in line with the guidelines set by the court en banc. Appeals against these appointments can only be resolved, however, by the court en banc.

6. Liaison with the executive and legislative departments

Under liaison with the executive and legislative departments, together with local government units and the military, the court administrator is expected to not compromise the independence of the judiciary “through any statement or policy.”

Requests for any action by these departments from the court administrator – that are not covered by existing policies, circulars, or guidelines by the judiciary – should be first cleared with the CJ. This includes topics pertaining to internal court operators and especially confidential information.

The office, however, cannot act on any issue involving expenditures on final transactions. – Rappler.com.
x x x."

Lawyers oppose Federalism

See - https://newsinfo.inquirer.net/971114/quezon-ibp-lawyers-against-proposed-shift-to-federalism#_=_
See - https://m.inquirer.net/newsinfo/971114

"x x x.

The Quezon chapter of the Integrated Bar of the Philippines (IBP) has declared its opposition to the plan of President Rodrigo Duterte to change the 1987 Constitution for a shift from a unitary form to a federal system of government.

During its annual general membership meeting on Saturday, 38 chapter members who registered for the event unanimously declared their opposition to charter change. IBP-Quezon has more 400 members.

Rodolfo Zabella Jr., Quezon-IBP president, claimed that the entire general membership was not in favor of amending the present Constitution.

“No one is in favor,” Zabella stressed.

He said the organization would soon adopt a formal resolution against the planned charter change of the Duterte administration.

Former Sen. Rene Saguisag, who was one of the guest speakers in the event, reiterated his opposition to charter change.

But should the planned amendments on some provisions of the Constitution push through, Saguisag said it should not be left at the hands of the country’s legislators in a constituent assembly.

“Congress is like an echo chamber on whatever Bobot Alvarez [House Speaker Pantaleon Alvarez] says,” Saguisag said.

The veteran human rights lawyer said: “This Constitution may not be perfect, but let us make sure that we will not come up with a worst one. Will it be a change for the better? Or will it be a change for the worst?”

Professor Carlo Cruz, a constitutional law expert who was also a guest speaker at the meeting, contradicted the assertion of former Chief Justice Reynato Puno that the victory of Duterte in the last election was a declaration of the people’s support to his federalism plan.

“With utmost respect to the chief justice, I think his mathematics was misplaced,” said Cruz, a bar reviewer and noted law books author. “While it may be true that 15.9 plus million elected this president, the chief justice forgets that more than 25 million voted against this president.”

Cruz noted that the country’s two experiences with a unicameral system were both failures.

“It is a matter of record. So why persist with this nonsense?” he said.

He lambasted the government propaganda that the shift to federalism would unite the country.

“They will actually divide this country,” Cruz said.

Cruz, the son of the late Supreme Court Justice Isagani Cruz, scoffed at Duterte’s domineering treatment of the Filipinos.

“He [Duterte] speaks as though all Filipinos are afraid of him. I have news for him. That is not true,” he said.

Cruz said Filipinos know when they are being “duped and deceived.”

“Filipinos finally and eventually will fight back,” he warned.

“The people are starting to speak out very vocally against many actions and statements of this administration. If it wants to survive, it would have to hear what the people are saying,” he said.

Zabella said Quezon-IBP would engage in massive information and political conscientization campaign to push the “silent majority” in the province to move and oppose the illegal acts of the Duterte administration.

He recalled that Quezon province has been known as the bastion of the political opposition.

“The silence of Quezon province now is quite surprising,” Zabella said.

x x x."

Read more: https://newsinfo.inquirer.net/971114/quezon-ibp-lawyers-against-proposed-shift-to-federalism#ixzz58CIsuDQ4 

Friday, February 23, 2018

Divorce Bill

See - https://www.rappler.com/nation/196612-explainer-house-divorce-bill. - rappler.com

"x x x.

What’s inside the bill? Here’s a summary:

Why a divorce law?

Section 2 of the bill, or its declaration of policy, says that while the Philippines “continues to protect and preserve marriage as a social institution and as the foundation of the family,” divorce would give a chance for couples to terminate “a continuing dysfunction of a long broken marriage.”

In doing this, the bill says it hopes to “save the children from pain, stress and agony consequent to their parents’ constant marital clashes” and “grant the divorced spouses the right to marry again for another chance at marital bliss.”

Key points in the law

Lawmakers have made it a point, since the very start, for divorce in the Philippines to be cheaper and more efficient than annulment, which is currently the only way to end a marriage in the predominantly Catholic nation.

During the committee’s deliberations on February 21, the members agreed that litigation and fees would be waived for “indigent” divorce applicants. They would also be entitled to lawyers assigned by the court.

For the purpose of the law, “indigents” are defined as those whose real properties are below P5 million, an amount proposed by Speaker Pantaleon Alvarez. Deputy Speaker Pia Cayetano explained that the overseas Filipino workers (OFWs) they consulted had specifically asked that the process would be affordable or would not cost them a year's salary.

Even if divorce is introduced, married couples can still seek legal separation or annulment of marriage, if they wish.

Those who file for divorce will need to observe a 6-month “cooling off period,” as a last-ditch effort to reconcile the couple. This is waived in cases of domestic abuse or if there is danger against one spouse or a child.

“Pro-woman” is part of the bill’s guiding principles, citing “most cases” wherein the wife needs to seek one in order to walk away from an abusive relationship.

An eventual divorce decree includes provisions for the case and custody of children, protection of the children’s legitime or inheritance, the termination and liquidation of conjugal partnerships of gains or absolute community, and alimony for the “innocent spouse.”

The State, as stated in the bill’s guiding principles, “has the role of strengthening marriage and family life” through programs, both before and after the marriage.

The proposed law also gives space for couples who might have a change of heart. If, in the middle of proceedings, the couple decides to reconcile, the process will be terminated. While the decree of absolute divorce will be set aside, the separation of properties and forfeiture of the share of the guilty spouse will subsist, unless the couple reverts back to the former property regime.

If the court finds that one party is coercing another to file for divorce, he or she may be punished with imprisonment of 5 years and a P200,000-fine.

The eventual implementing rules and regulations for the law will be drafted by several agencies led by the Department of Justice. The Department of Social Welfare and Development, the Philippine Commission on Women, the National Youth Commission, and at least two representatives from women’s groups will be part of the team that will craft it.

What are the grounds?

The grounds listed include existing grounds for legal separation under Article 55 of the Family Code, and annulment under Article 45 of the same code:
Physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner
Physical violence or moral pressure to compel the petitioner to change religious or political affiliation
Final judgement sentencing the respondent to imprisonment of more than 6 years, even if pardoned
Drug addiction or habitual alcoholism or chronic gambling of the respondent
Homosexuality of the respondent
Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad
Marital infidelity or perversion or having a child with another person other than one’s spouse during the marriage, except when the spouses have agreed to a having a child through in vitro or a similar procedure, or when the wife bears a child as a result of being a rape victim
Attempt against the life of the petitioner, a common child, or a child of the petitioner
Abandonment without justifiable cause for more than a year
Those legally separated by judicial decree for more than two years can also avail of divorce
One of the spouses was older than 18 but younger than 21 at the time of marriage without the consent of a parent, guardian, or substitute parental authority unless after the age of 21, the pair freely cohabitated and lived together
Either party was of unsound mind, unless such party, after coming to reason, freely cohabilitated with the other
The consent of one party was obtained through fraud unless, despite after knowing the fraud, continued to cohabit as husband and wife
That the consent of one party was obtained by force, intimidation, or undue influence, unless despite the cessation of such, the pair continued to cohabit
That either party was incapable of consummating the marriage with the other, and the incapacity continues or appears to be incurable
That either party is afflicted with a sexually transmissible infection that is serious or appears to be incurable

The bill introduces the following additional grounds:
Separation for at least 5 years at the time the petition is filed, with reconciliation “highly improbable,” except if the separation is due to the overseas employment of one or both spouses in different countries, or due to the employment of one of the spouses in another province or region distant from the conjugal home
Psychological incapacity of other spouse as defined in Article 36 of the Family Code, whether or not the incapacity was present at the time of marriage or later
When one of the spouses undergoes gender reassignment surgery or transition from one sex to another
Irreconcilable marital differences and conflicts resulting in the “total breakdown of the marriage beyond repair” despite the efforts of both spouses

How does divorce work?

For qualified indigent petitioners, the court will waive the payment of filing fees and other litigation costs. It will also appoint a counsel de oficio or a lawyer for the petitioner, as well as assigned social workers, psychologists, and psychiatrists, to assist the petitioner and the court.

This provisions ensures that those with real properties below P5 million can afford the process. During consultations, lawmakers were told that the cost of annulment – from the filing to the hiring of experts – was simply too prohibitive.

Couples can file jointly a petition for absolute divorce on the grounds of de facto separation for 5 years, legal separation for at least two years, or irreconcilable differences. Those with children should also come up with a joint plan over their parenthood arrangements.

Collusion between spouses is not allowed.

OFWs, as Albay 1st District Representative Edcel Lagman earlier said, will be given preference when it comes to hearing their petitions.

Summary proceedings can happen in case of couples who have been separated for at least 5 years, a bigamous marriage, legal separation for at least two years, sentence of imprisonment for at last 6 years, and sex reassignment surgery. – Rappler.com

x x x."

Tuesday, February 13, 2018

International Law and the Trump Administration: U.S. Engagement in Asia

The Fall of Class Actions and the Rise of Forced Arbitration

Income Inequality

Earmarks, pork barrel projects and logrolling

Inside the mind of white America - BBC

Natural Law Roots of the Social Contract Tradition

Ending Institutional Corruption | Francis Fukuyama

Secret History of the Credit Card

Criminal Justice and Racial Inequality

Catholic Case Against Free Markets | by Randy England

How Central Banks Are Waging War on Your Savings | by Mark Thornton

Ruth Bader Ginsburg: My life on the Supreme Court

"Are We Making Progress in Human Rights? Transformations in Knowledge and Activism" -- Kathryn Sikkink, Ryan Family Professor of Human Rights Policy, Kennedy School of Government; Carol K. Pforzheimer Professor, Radcliffe Institute for Advanced Study. Harvard University.

The Responsibility to Protect

Is the Death Penalty Ever Moral?

Secession and Liberty | Ron Paul

Judge Andrew Napolitano: What the 1st Amendment Really Means

Taxes Are Killing Small Businesses

The Evolution of Humanitarian Intervention

Why Japan's conviction rate is 99% | The Economist

The Sovereign Citizen, A Talk with Prince Philipp of Liechtenstein

Fault in Contract Law

Legal Malpractice

How To Read Cases

Law and Economics

Unbundled Legal Services

Interventionism and Regulations | Robert P. Murphy

The Myth of a Fair Tax | Joseph T. Salerno

How the Constitution Has Been Twisted to Undermine the Free Market

General Principles of Law and International Due Process

Arthur Lenk | Israel: The Peace Process & International Law

Rick Garnett, "Law and Religious Freedom in a Pluralistic Society"

Human Trafficking and Migrant Smuggling

International Dispute Resolution

Autonomous Weaponry and Armed Conflict

The Cost of Corruption on Global Business

The Restorative Justice Approach

Racial Injustice in Milwaukee: Crime and Punishment

"How to Read a Case" with UVA Law Professor Anne Coughlin

Ethics of Foreign Aid

Hearsay Analysis With Professor Kim Ferzan

Drone Wars: The Future of Targeted Killings & Presidential Power

The Morality and Legality of Targeted Killings

"Modern War in Theory and Practice" presented by Dr. John A. Nagl

Should Law Foster Forgiveness? | Martha Minow || Radcliffe Institute

Families in Flight: Today’s International Refugee Crisis

Protecting Refugees: It's a Human Rights Issue

"Immigration and the Civil Rights Agenda" - Professor Cristina Rodríguez...

American Foreign Policy in Retreat? A Discussion with Vali Nasr

The Corporation - "THE CORPORATION is a Canadian documentary film written by Joel Bakan, and directed by Mark Achbar and Jennifer Abbott. The documentary examines the modern-day corporation, considering its legal status as a class of person and evaluating its behavior towards society and the world at large as a psychiatrist might evaluate an ordinary person. This is explored through specific examples. Bakan wrote the book, The Corporation: The Pathological Pursuit of Profit and Power, during the filming of the documentary."

Six Myths About Money and Inflation | by Patrick Barron

The War on Drugs Is Not Like The War on Poverty | by Randall G. Holcombe

How Government Forces the Poor Into Black Markets | by Peter St. Onge

The Jeffersonian Secessionist Tradition | by Thomas J. DiLorenzo

When High Taxes Lead to Revolution | by Peter St. Onge

The Fiasco of Fiat Money | by Thorsten Polleit

Democracy, War, and the Myth of the Neutral State | by Luigi Marco Bassa...

The Mythology of the Supreme Court | by Ryan McMaken

Daniel Levitin: "Weaponized Lies: How to Think Critically

Suo Motu Jurisdiction

"x x x.

Pakistan's Hyperactive Supreme Court

By L. Ali Khan

Friday 9 February 2018 at 2:03 AM ET
edited by Sean Merritt

JURIST Guest Columnist L. Ali Khan of the Washburn University School of Law discusses troubling recent trends in the Pakistani Supreme Court...

Judicial activism is a milder label to express what the Pakistan Supreme Court has done over the decades to frame the national constitutional jurisprudence. Since the 1950s, the Court has validated several military coups that overthrew elected governments. It has bestowed powers on the military dictators to single-handedly amend the constitution. The Court has endorsed the execution of a highly popular prime minister, Zulfiqar Ali Bhutto, in a "murder" case prosecuted under the thumb of a military ruler. More recently, the Supreme Court has disqualified two elected prime ministers, one for contempt of court and the other on a highly technical ground holding that the failure to report an un-received income is a violation of assets disclosure required under the election laws.

After the failure of the courts to prosecute General Pervez Musharraf for various crimes and letting him leave the country, a popular perception circulates in legal circles that the Supreme Court is hurried in punishing elected representatives for minor misdemeanors but incredibly reluctant to demand accountability from military generals who commit constitutional subversions. Pakistan, some jurists would say, is a country where the generals and justices jointly govern to "protect" constitutional democracy.

In Pakistan, the behavior of the Supreme Court as an institution oscillates with the personality type of the Chief Justice. When a Chief Justice craves no personal fame, the Court retreats into a reclusive mode and decides cases without making needless political waves. But when a Chief Justice is ambitious in seeking celebrity status, the Court becomes hyperactive in deciding politically explosive cases that may procedurally belong to lower courts.

The Supreme Court relies on two controversial judicial concepts, the suo motu jurisdiction to bring provocative cases under its original jurisdiction and the contempt of court punitive powers to fine, imprison, and disqualify parliamentarians, ministers, and prime ministers from public office.

Suo Motu Jurisdiction

Article 184(3) of the Pakistan constitution vests in the Supreme Court "original jurisdiction" over "a question of public importance with reference to the enforcement of any of the Fundamental Rights" enumerated in the constitution. The Court may exercise original jurisdiction when an aggrieved party files a petition. However, the Court has also exercised original jurisdiction on its own initiative if the Court finds a question of public importance in the domain of constitutional rights needs attention.

This self-generated original jurisdiction is called the suo motu jurisdiction. (India, Bangladesh, and Nigeria courts have also invoked the suo motu jurisdiction in various cases of public importance.)

The suo motu jurisdiction is a precious tool for a high court to take judicial notice of a pattern of governmental abuse that the state functionaries may refuse to acknowledge or prosecute. For example, a high court may invoke the suo motu jurisdiction to demand state accountability for enforced disappearances and torture of journalists. In a suo motu case, the Pakistan Supreme Court prohibited the "public hangings . . . of even the worst criminals."

However, the Supreme Court uses the suo motu jurisdiction to intervene in cases that properly belong to the trial courts. For example, in a recent rape-murder case of a seven-year-old girl, which shocked the nation, the Court stepped in to oversee the police investigation of the case. Despite the good motive, the Court overlooked the fact that the Pakistani police known to frame innocent persons to "solve" intricate crimes could turn even more untrustworthy if placed under high-pitched pressure.

In the same case, the Court also took judicial notice of a TV talk show where a news anchor made outrageous accusations involving the defendant. The Court summoned the anchor, along with a dozen other news and media personalities to investigate the accusations. The courtroom scene mimicked a tribal Jirga as different media persons were supplying spontaneous advice to the Justices regarding what needed to be done.

By invoking the suo motu jurisdiction, the Supreme Court harms the function and credibility of trial courts. Furthermore, the provincial high courts are empowered to intervene under the suo motu jurisdiction if such intervention is necessary in select cases. No harm will occur if the Supreme Court entrust the suo motu jurisdiction to provincial high courts under some supervisory strictures and extricate itself from summary trials of questions raised in the electronic and print media.

Contempt of Court

Article 204 of the Pakistan constitution, titled Contempt of Court, vests in the Supreme Court and other High Courts the power to punish any person who disobeys court orders, obstructs the process or scandalizes the court or a Judge of the Court. In 2012, The Supreme Court invoked this constitutional power to remove Prime Minister Yousaf Gilani, who refused to obey an order. Last week, the Court ordered the imprisonment of a ruling party Senator who "scandalized" the Court through his speeches.

A few days ago, the Supreme Court Chief Justice took suo motu notice of anti-judiciary speeches by a minister and summoned him to appear before the Court. Several petitions have been filed under Article 204 against former Prime Minister Nawaz Sharif and his politically active daughter for giving disrespectful speeches against the Supreme Court Justices who removed the prime minister from office.

The 2012 Contempt of Court Act restricts the consequences of contempt of court by limiting fine and punishments. The Act permits "fair comments about the general working of the courts (or on the merits of a decision of a court) made in good faith in the public interest and in temperate language." The Act provides punishment for contempt but also allows court forgiveness if a bona fide apology is tendered at any stage of the proceeding.

Thus, the faultfinders of the Supreme Court and High Courts tread a fine line between permissible criticisms of the Court and its decisions and the constitutionally prohibited scandalization of the Court and its judges. Cases show that the inflammatory language in which the criticism is expressed is a prime factor in contempt convictions. In severe cases of contempt, the Court rejects a bad faith apology tendered merely to escape punishment.

Much like the suo motu jurisdiction, the contempt of court provision is trickier in the application and its overuse is potentially injurious to the credibility of the high courts. Given the unfortunate history of the Supreme Court in upholding military coups and refusing to punish defiant military generals either under the suo motu jurisdiction or the contempt of court provision, political parties believe that the Court uses these constitutional weapons only against elected officials, including parliamentarians, ministers, and prime ministers.


The suo motu jurisdiction is a precious legal tool to protect fundamental rights when state institutions decline to prosecute the perpetrators of torture, enforced disappearances, and extra-judicial killings. Likewise, constitutional protections against willful disobedience of court orders and indiscriminate vilification of judges ensure an independent judiciary committed to furnishing justice under the law. These constitutional instruments are efficacious when used thriftily and only in exceptional cases. As a broad principle, judicial restraint on part of the nation's highest court is a superior value to judicial hyper-activism.

L. Ali Khan  has devoted much of his academic scholarship to Islamic law and conflicts involving Muslim communities. Khan has participated in Islamic law symposia and contributed ground-breaking articles on Islamic jurisprudence. In addition to law articles and academic books, Khan also writes for the popular press in the United States, the Middle East, and the Indian subcontinent, including for the BBC, Press TV, and NPR.

x x x."

See - http://www.jurist.org/forum/2018/02/L-Ali-Khan-pakistan-supreme-court.php

Friday, February 2, 2018

International Law and The Nature of Security

Right to Die

The Constitution and the Rule of Law

Radicalization, Conflicts, and Property Rights

Civil Liberties and National Security

The Rules for Rulers

Critical Thinking: Just What Is a Fallacy?

Free Speech and Dissent During Wartime

Civil Disobedience by Henry David Thoreau

Anatomy of the State | by Murray N Rothbard

Thursday, February 1, 2018

Our democracy no longer represents the people. Here's how we fix it

For some immigrants, deportation means death

The secret US prisons

Will The Rohingya Ever See Justice?

Media and Ideology in China

Resisting Federal Tyranny

Should We Regulate Hate Speech?

Seeking Asylum in Germany

More churches are opening their doors to undocumented immigrants

Aung San Suu Kyi.

The Hidden Genocide

Money As Debt - The history of banking

The State Is Too Dangerous to Tolerate

Secrets of the Federal Reserve

Four Things the State is Not

Loving life as a lawyer: How to maintain joy in your work

Russia’s Electronic Warfare

Inside America's Largest Right Wing Militia

The Next Financial Crisis

Nationalism vs. globalism

A House Divided

Anti-Immigration Vigilante

Where GDP Is Measured In Happiness

Religious War

A Paedophile's Paradise

Religious Riots

Sharia Law In Indonesia

Indonesia's Dictatorship

The Plight of Battered Men

Fact-checking Trump