After being arrested, you are then checked into a police station where an officer records detail information on you, along with the crime that you have committed, which may be a minor or federal offense. Your mugshots and fingerprints are then taken, along with any personal property that you may have, which is returned upon your release from custody. Then you are placed in a cell with other inmates. If you are charged with a minor offense, you can usually post bail immediately, or wait for a hearing at court, where the judge will determine if there will be bail, and what cost.

The amount at which your bail is set usually depends on the crime committed, but is usually at the judge’s sole discretion, or based on the standard amount for that jurisdiction. Your prior criminal record is considered, as is your history, status in the community, and whether you are considered to be a danger to those around you. There are different types of bail, the most straightforward of which is cash bail, meaning that the bail is fully paid in cash, as a money order, via credit/debit card, and, sometimes, by personal check.

The second type of bail is called a surety bond, or bail bond, which is most common when the accused cannot afford bail, although it can be used for any bail. An associate of the accused, such as their criminal defense lawyer, usually contacts someone called a bail bondsman, or bail agent, who is endorsed by an insurance or surety company who, in turn, must pay the entire bail amount if the accused does not appear for trial. The bail agent or bondsman charges the client a premium for this service, and usually collects some sort of collateral.

An arrest does not always result in bail being required for the accused to be released from custody, however. A police officer or judge may choose to release a person on a citation, which requires the accused to appear in court at a specific date, also known as a summary offense. In these cases, the crime is usually minor and nonviolent, however they still require the accused to appear for court, even though they are released without bail.

Do Check: Law of Pre-Arrest Bail in Pakistan

Peter J. Scuderi is an excellent defense attorney in Philadelphia who provides legal representation that gets results. If you need a criminal lawyer in Philadelphia, contact the Law Offices of Peter J. Scuderi.

Fiqh’s literal description isn’t going to just mean understanding a thing, as an alternative it’s a deeply information about it. Fiqh has been utilized within the Quran within this meaning:

They have hearts wherewith they understand not

Figuratively, fiqh Concept: understanding of Islamic legitimate rulings using their origins. Therefore, fiqh’s figurative meaning is obtained from it’s literal one out of the perception which drawing religious rulings using their resources requires the mujtahid to possess a heavy comprehending within the various conversations of jurisprudence. He must search deep-down right into a issue and never be sufficient himself with only the obvious meaning. An individual who solely understands the look of an issue isn’t a faqih.

The topic of imagining deeply (tafaquh) regarding religion continues to be frequently pointed out within the Quran as well as ways of life carried in the Prophet (S.A.W) and also the Imams (a). What on earth is obtained from them, on the entire, is the fact that Islam would like man to seriously comprehend religious beliefs. Obviously, this being familiar with insures such topics as Islamic theology, Islamic belief, values, Islamic upbringing, the Islamic cultural method, praise, spiritual rulings and also good manners that certain should have in the individual as well as social life. The phrase ‘fiqh’ is becoming popular between Muslims ever since the 2nd century following the Hijra A.H. to imply Islamic jurisprudence and the art of deriving religious rulings using their methods. They have acquired the next meaning: an exact and deep knowing in addition to capability to obtain religious rulings using their sources.

Defination of Fiqh

These days, the phrase fiqh is actually most of the time to mean Islamic sciences or even Islamic rulings within the broad impression. The broad specification of Islamic rulings is actually split up into 3 basic categories:

1. Theology; what’s necessary for the mukallaf to think about Allah, HIS angels, books, messengers and also the Day of Judgment.
2. Ethics; the beneficial characteristics that the mukallaf need to acquire along with the bad characteristics that he should keep away from.
3. Activities; those things that the mukallaf must carry out.

This really is demonstrated through the traditions in the Prophet (S.A.W) WHO said: “Whoever wants Allah to treat him favorably must have a deep understanding (yafqahu) in religion.”)

Here, the saying fiqh is utilized in the general perception, identified of Islam.

Once the various sciences are classified the word fiqh can be used in order to imply the Islamic rulings concerning a person’s measures.

Fiqh, rolling around in its particular significance and what’s talked about in books of fiqh, consists of exactly what is due to every aspect of mankind’s life. The only thing that is analyzed today such as fundamental laws, city administration, family relationships, person activities, administration, national politics, etc can be found in the numerous parts of fiqh.

Shari’ah In addition to the Fiqh

Shari’ah includes the thing that was decreed within the duration of Prophethood based in the Quran as well as Prophetic ways of life.

Rights are those conditions of social life without which man cannot be at his best to develop his personality. These are such opportunities which are essential for everyone.

It is a historical fact that in ancient times women were treated like animals. In many countries they were regarded as slaves. They had no status, no rights and no privileges. Among few tribes of Arabia and in some other countries female children were buried alive after their birth. For example the women were considered as ‘organ of Devil’ ‘the instrument which the Devil uses to gain possession of the souls of human beings’ even they were named as ‘gate of Devil’ ‘road of inequity’ and the ‘sting of scorpion’ etc. by some Christians scholars¹. But the Islam has laid great emphasis upon the rights of women. One Surah of the Holy Quran, “The Nisa” deals with women’s rights. The meaning of Nisa is woman in Arabic. Allah says in this Surah;

“O mankind …. Be careful of your duty towards Allah in whom you claim (your rights) of one another and toward the women verily²…”

It is worthwhile to note that Islam has granted the women all types of social, cultural, economic and other rights which were earlier reserved for men. Therefore, they enjoy full liberties for selecting their partners and their free consent is required for validity of marriage. The women have the status of a mother, daughter, sister and wife. In each role she enjoys various rights.

For example as a mother, the saying of the Holy Prophet (Peace be upon Him) “Paradise lies under the feet of your mothers³” is very famous. The Holy Prophet (PBUH) stressed;

The Holy Prophet (PBUH) refused to allow Ja’hemah to join a battle⁶ when his mother was alive and advised that he should be near her because Paradise is at her feet. Similarly the Holy Prophet (PBUH) told to one of  His companions when he enquired who is to be most obeyed? “Your mother” the same reply was given two times more when he further enquired.⁷

It shows that among parents mother’s place in respect of obedience has been elevated much above that of father. The Quran places duty to parents only next to one’s supreme duty towards God.

Islam has provided mother share in the property left by her deceased children, the Quran says…….

“For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers (or sisters), the mother has a sixth…….⁸”

As  a wife The Holy Quran enjoins upon the believers to accord good and kind treatment to their wives. The relevant injunction is:

“Treat them kindly, if you hate them it may be that you dislike a thing while  Allah has placed abundant good in it ⁹”

The Holy Prophet (PBUH) is reported to have said, “Fear Allah, in respect of women as you have got them in custody in the name of Allah……..” Further the Holy Prophet (PBUH) has advised His followers to avoid hating women on ground of one trait of their character, because another good trait may please you ¹⁰”.

Islam has emphasized good and kind treatment for the women, therefore their rights as wife are guaranteed by Islam. For example; free consent of women is required for marriage and she can settle any terms and conditions in contract of marriage which remain binding for husband. She is entitled for dower (Mahr) which is compulsory payable to her. Similarly right of Khulla in unavoidable circumstances, through court, has been granted to women against arbitrary use of power of divorcing by the husband. A wife remains and entitled to inheritance in property of deceased husband to the eighth of that. The Quran says;

“And unto them belongeth the fourth of that which ye leave if you have no child, but if ye have a  child then the eighth of that which ye leave ¹¹”

The Holy Prophet (PBUH) has greatly stressed on rights of women regarding love and good behaviour, food, clothing and residence etc. He said (PBUH); “They have got (rights) over you in respect of their food and clothing according to means¹².” He further advised one of his companions to give your wife food when you take your food and the clothes when you have clothes yourself ¹³.

Similarly in famous Farewell Address, the Prophet Muhammad (peace be upon him) declared: “Well then, people! Verily there are rights in favour of your women which are incumbent upon you, and there are rights in favour of you which are incumbent upon them…….. ¹⁴”

As daughter and sister, Islam has not only condemned the inhuman practice of killing female children and burying them alive but also abolished it. The Quran says:-

The following sayings of Prophet (PBUH) are being quoted on the subject of good treatment of daughter/sisters.

• ‘Who maintain two girls till they attain maturity, he and I will come on judgment day like this’ and He (PBUH) then showed His fingers joining together ¹⁶(Narrated by Hazrat Anas)
• If a person had got a female child and he neither buried her alive nor treated her unjustly ….. ‘Allah will admit him in Paradise ¹⁷(Nrrated by Hazrat Ibn Abbas)

The daughters are entitled to share the estate left by their deceased father or mother alongwith other legal heirs. The Qur’an commands:

“Allah (thus) directs you as regards your children’s (inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two thirds of the inheritance; if only one, her share is a half ¹⁸”

Conclusion

From the above discussion it is clear that for the first time in the history of mankind, Islam has raised the status of the women from mere an article like any other articles of property to the status of human being and the women are placed on equal footings as regards the rights of human beings.  And as a matter of fact Islam is the only religion which has taken up the cause of women in the earnest by defining their rights in clear and precise terms and there by raising the legal position of women in the society.

Reference:

1.                   Extracts from scriptures of other religious and review of religious Vol-XIII by Abdullah Alladin

2.                   Surah Nisa, Ayat 1

3.                   Mukhtasarul Maqasid, page 348

4.                   See generally Bukhari and Muslim

5.                   See generally Tirmizi

6.                   See generally Ahmed, Nisai and Baihaqi

7.                   See Tirmizi and Abu Daud

8.                   Surah Nisa, Ayat 11 An English Interpretation of The Holy Qur’an by A.Yusuf Ali Page 112

9.                   Surah Nisa, Ayat 19 Ibid Page 115

10.               See generally Muslim Sharif

11.               Surah Nisa, Ayat 12 An English Interpretation of The Holy Qur’An by A.Yusuf Ali          Page 113

12.               See generally Bukhari and Muslim

13.               See generally Ahmad, Abu Daud and Ibn Majah

14.               Farewell Address of the Holy Prophet (PBUH) delivered at Arafat on the occasion of last pilgrimage in 10 A.H.,

15.               Surah Bani Israil,  Ayat 31 An English Interpretation of The Holy Qur’An by A.Yusuf Ali Page 421

16.               See generally Muslim

17.               See generally Abu Daud

Surah Nisa, Ayat 11 An English Interpretation of The Holy Qur’An by A.Yusuf Ali Page 112

By:
MUHAMMAD NAWAZ DOGAR
Assistant Professor, University Law College
University of the Punjab, Lahore

Justice is one of the most important factors for peace and prosperity of the community and it is the witness who plays a vital role for complete construction of Justice. Under the Islamic Law, evidence is a trust imposed by Almighty Allah for human being. The Holy Quran contain many verses which emphasize such obligations to fulfill in this regard, some of these are reported as under……….

“Who is more unjust than those Who conceal the testimony they have from Allah? But Allah is not unmindful Of what ye do¹”

“The witnesses should not refuse when they are called on (for evidence)²”

“Conceal not evidence; For whoever conceals it – His heart is tainted With sin. And Allah Knoweth all that ye do³”.

Further it has been stressed that at the time of providing evidence the witness shall observe equality and complete impartiality and shall avoid making misrepresentation which may be prejudicial for other. The Quran says……..

“O ye who believe! Stand out firmly For Allah, as witnesses To fair dealing, and let not The hatred of others to you make you swerve To wrong and depart from Justice. Be just: that is Next to Piety: and fear Allah. For Allah is well-acquainted With all that ye do⁴”.

The above verses lay down some basic condition for evidence under the Islamic Law.

1.       It is a trust imposed by Al Mighty Allah for human being which shall be fulfilled when required.

2.       Concealment of evidence is a sin.

3.       For providing evidence a witness shall state all the relevant facts with honesty and impartiality even the same may be against the interests of his own or his near relatives.

4.       It shall be without any fear and greed.

5.       All facts shall be narrated clearly so that the presiding officer of the court may reach the right decision without any difficulty. While explaining the quality of believers  Quran says…….

“Those who witness no false hood⁵”

6.       The witness shall not avoid Justice during evidence being biased against anyone.

Summoning of second witness

Under the Islamic Law if there is found some suspicious regarding correctness and truth about the witnesses, court may summon other witness. The Quran says…….

“But if it gets known That these two were guilty of the sin (of perjury), Let two others stand forth In their places – nearest In kin from among those Who claim a lawful right: Let them swear by Allah; “We affirm that our witness Is truer than that of those two, and that we Have not trespassed (beyond The truth): if we did, Behold! The wrong be Upon us That is most suitable: That they may give the evidence In its true nature and shape, or else they would fear That other oaths would be Taken after their oaths. But fear Allah, and listen (To His counsel): for Allah Guideth not a rebellious people⁶”.

This opportunity of providing evidence over evidence is due to the fact that there may be chances that a witness may not give correct and true evidence which may be disproved and rejected by evidences of other witnesses and the person providing false witness will be declared culprit and may get disrespect and insult in the community.

Number of Witnesses

It has been laid down that for fiscal matters there shall be two male witnesses or one male and two female witnesses. This principle has been clearly expressed in the Quran. Similarly any document related with debt or will the same rule is applicable under the Islamic Law of evidence. However, for general immoral propaganda (Jurm-e-Fahash)  there shall be four witnesses⁷ and if the same is as allegation against modest women such person should provide four witnesses and in case of failure to do so they shall be punished with 80 lashes⁸ and their evidence shall not be acceptable and they shall be deprived of such rights which otherwise are available for noble citizens under the Islamic state⁹. Matters related with Talaq at final stage, two witnesses are required¹⁰.

General Principle of Evidence

It is general principle of evidence that writing or stamp is not acted upon; however, if the same is clear from any type of forgery then it becomes permissible. Therefore, official documents and Shahi Farameen remain always acceptable and can be acted upon on the ground that these always are far from fraud and forgery¹¹.

It is also required for Qazi to record the statement of witnesses either himself or his official before him because special precautions are required for recording the witness and it shall be before the person or his attorney against whom it is being recorded so that the opponent party may cross examine on it. It is also required for Qazi to read the statements when these are recorded by his officials for its authenticity¹².

Circumstantial Evidence

It is that evidence which can not be rejected but is deduced on facts and circumstances when it is not possible to prove against it. For example, a person comes out of a house with knife in his hand stained with blood looking confused and in the meanwhile a person is found dead with a cut on throat, there would be not suspicion that the same person who came out of that house is culprit and possibilities like suicide by the deceased shall not be given due consultaion¹³.

Scientific Techniques as Circumstantial Evidence

Today there are certain scientific techniques used for evidence to prove the facts. These are

A.        Post Mortem

It is examination of dead body by medical officer with following objects.

a.       To establish identity of an unknown body.

b.       To ascertain cause of death and time since death

c.       In case of a newly-born infant the question of live birth and viability, i.e. capability of living. 

The following rules¹⁴ are applicable for post mortem:-

1.       Post mortem examination should only be undertaken when there is a written order by District Magistrate (but it is not necessary condition under Islam Law where only permission by city Qazi is sufficient).

2.       It should always be done in day-light and not in artificial light when contusions and their colour or pin-point marks maybe missed.

3.       It should be thorough and complete. All the three cavities of the body, i.e. skull, thorax and abdomen should be opened and examined even if the cause of death has been found in one of them, because you have to state not only the injuries to certain organs, but also to certify that other organs are healthy.

4.       All the details have to be entered in the post mortem register, immediately at the time of examination. Preliminary rough notes may be taken.

5.       Nothing is to be erased or overwritten, if any cutting is made, it should be initialed/signed.

6.       Do not allow police or any other outsider to be present at the time of post mortem examination  (only your staff is allowed).

7.       When the police bring the papers to you, see that the following documents are present.

i.            Statement of injuries by the police

ii.            Death report on the prescribed form

iii.            Statement of witnesses

iv.            If examined during life, by a doctor, then copy of the medico-legal report, operation notes, hospital notes, etc.

8.       All article found on body should be noted on the register with full detail and these should be returned back to police by taking the signature of the person receiving on post mortem register as a receipt.

9.       Any bullet or shorts recovered from body should be handed over to police in a sealed parcel under signature.

10.   Examination should be done as soon as possible and report shall be sent immediately otherwise, delay may waste the proof and create trouble and inconvenience to relatives of the deceased.

If the above rules are observed post mortem report may prove sufficient to determine the cause of death and to impose criminal liability accordingly.

B.         Record of Voice

Importance of tape recorder becomes relevant if the voice of culprit has been recorded at the time of occurrence of incident and same is verified by its expert then such opinion becomes relevant¹⁵.

C.         Hand Writing and Finger Prints

The opinion of handwriting / finger print experts become relevant¹⁶ when the Court considers them as fully adept in their respective fields. For example

i.         If the matter in issue is to decide that whether a certain document is written by ‘A’ or not, the opinion of a handwriting expert is relevant.

ii.       The opinion of finger print expert is also relevant when the matter in issue is to match the finger impression of the accused with that on the knife, used in murder.

It is important to note that the finger prints of one is never identical with other, therefore, it is required to search the place of occurrence of crime with full care and vigilance to get any article found to get the finger prints for verification of the experts and if  verified this circumstantial evidence becomes a valid proof against him.

D.        Blood Examination

Blood examination may become affective for murder cases therefore, following may be deducted from blood examination.

a.       Whether it was a venous or arterial blood

b.       Whether murdered was died before hemorrhage

c.       Whether hemorrhage was not due to other type of injury

d.       Whether the blood was menses blood or piles blood

e.       Whether it was not the blood of an animal

Keeping in view the above, if the clothes of culprit and murdered bear blood of same body and the culprit is arrested at the place of occurrence of crime, status of blood examination would be in the nature of such circumstantial evidence.

E.         Dying Declaration

It is the statement made by a person as to cause of his death or as to any of the circumstances of transactions which resulted in his death¹⁷. Before dying declaration can be admitted in evidence it must be proved that.

a.       It was a statement of a person who must be dead

b.       It must, as far as possible, in actual word of the maker

c.       It must corroborate with other material evidence on record

d.       Cause of death must be fact in issue

e.       It must be taken as a whole therefore, such a dying declaration, which is incomplete upon its face¹⁸, is inadmissible in evidence because no one can tell what the deceased might have added

f.        It must have been recorded immediately after the occurrence of crime without any opportunity to have consultation

g.       There was sufficient light at the place of occurrence and the deceased had been observed the incident with due diligence and had recognized the assailant.

It is general presumption that dying person usually speaks truth. Admissibility of dying declaration obviously rests upon the principle of necessity alone. As the victim is, in most cases, the only principle eye witness to the crime, the exclusion of his statement might defeat the ends of Justice. Therefore, dying declaration duly proved and admitted into evidence, can safely be basis for conviction in a case and where it is, true and genuine, is sufficient for conviction¹⁹.

From above discussion it can be concluded that the discussed circumstantials which are applicable in the modern era are in line with Islamic Law of evidence to great extent therefore, these can be made a part of  Islamic Law of evidence to that extent.

REFERENCES

1.       Surah Al-Baqra Ayat 140

2.       Ibid                       Ayat 282

3.       Ibid                       Ayat 283

4.       Surah Al-Mayda Ayat 8

5.       Surah Al-Furqan Ayat 72

6.       Surah Al-Mayda Ayat 107 and 108

7.       Surah Al-Nisa Ayat 15

8.       Surah Al-Noor Ayat 4

9.       Ibid                   Ayat 23

10.   Surah Talaq Ayat 2

11.   Al-Mujallatul-Al-Ahkamul Adlya 1981 Page 406 published Ulma Academy publication Department of Awqaf Punjab, Lahore

12.   Ibid

13.   Ibid         Page 407

14.   Forensic Medicine and Toxicology by Dr Siddique Hussain Page 43

15.   Article 60 Qanun-e-Shahadat Order 1984

16.   Article 59         Ibid

17.   Article 46(1) Qanun-e-Shahadat Order 1984

18.   Muhammad Abdullah Vs Safdar Khan, 1973 SCMR 26

19.   Muhammad Iqbal Vs State, 1978 PCr. LJ 507(DB)

——————-

MEANINGS , DEFINITIONS OF “JUDICIAL REVIEW”:

1.    According To Black’s Law Dictionary (Seventh Edition):

According to this dictionary, it is:

(a)   the Court’s power to review the actions of other branches or levels of government; especially the Court’s power to invalidate legislative and executive actions as being unconstitutional;

(b)   the Court’s review of a lower Court’s or an administrative body’s factual or legal findings.

3.    A Judicial Power in Action:

It is a doctrine according to which the Courts are entitled, in the exercise of the “judicial power” of the State, to examine and decide the question–

(a)   of the Constitutional validity of any law, be it the result of primary or subordinate legislation; and

(b)   of the Constitutional validity or lawfulness of a decision, action or inaction of a person or body in relation to the exercise of a public function (1).

4.    English Civil Procedure (Amendment) Rules 2000:

In its Section 54.1, it is defined as:

A claim for judicial review means a claim to review the lawfulness of:

(a)   an enactment;

(b)   a decision, action or failure to act in relation to the exercise of a public function.

5.    According To Lord Bingham:

“It is the power of the Court to see that public powers are lawfully exercised”.

6.    According To Lord Lindley:

In Roberts Gwyfai Vs District Council, according to him:

“There is no duty of the Court which is more important to observe and no power of the Court which is more important to enforce than its power of keeping public bodies within their rights”.

7.    According To Chief Justice Coke:

In Bonham’s case in 1610, he maintained that:

“When an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge, such Act to be void”.

IMPORTANCE:

The power of judicial review, or the authority to declare legislative enactments void, it was said by Justice Iredell in 1878, is:

“Of a delicate and awful nature”.

Marshall CJ said:

“No tribunal can approach such a question without a deep sense of its importance and of the awful responsibility involved in its decision” (2).

Whether or not it is right to describe the power of judicial review as awesome, there seems to be no doubt that to see judicial review in action is to witness the judicial power, and hence, the administration of justice at its best.

POSTULATES OF THE DOCTRINE OF JUDICIAL REVIEW:

The doctrine of judicial review pre-supposes the truth of the following propositions:

(a)   Constitution is a law which is enforceable by Courts.

(b)   It is a law of higher obligation than the ordinary law.

(c)   In the event of conflict between Constitution and ordinary law, it is for the Courts to declare the ordinary law, on the ground of its repugnance to higher law, as void (3).

DIVINE ASPECT OF JUDICIAL REVIEW (JUDICIAL REVIEW IN ISLAM):

For Muslims, judicial review is part of the Divine Law (Holy Quran).

The Holy Quran ordains:

“O ye who believe, Obey Allah, and obey the Messenger and those charged with authority among you. If you differ in anything among yourselves, refer it To Allah and His Messenger, if you do believe in Allah and the Last Day: That is best and most suitable for final determination” (4).

HISTORICAL PERSPECTIVE (THE ESTABLISHMENT OF JUDICIAL REVIEW):

So fundamental is the doctrine of Judicial Review of legislation that a few brief remarks about its genesis and the circumstances in which it arose to the position of its present power would not be out of place.

Justice Marshall’s Contribution:

“If American law were to be represented by a single figure, skeptic and worshipper alike would agree that figure could be one alone, and that one, John Marshal. Marshal found the Constitution paper and he made it power” (5).

True to the saying “cometh the hour, cometh the man”, came the appointment of John Marshall as the Chief Justice of the US Supreme Court in 1801.

“He was so singularly fitted for the office of Chief Justice and rendered such incomparable services in it, that the Americans have been wont to regard him as a special gift of favouring Providence” (6).

His appointment proved the maxim attributed to Napoleon that:

“The tools belong to the man who can use them”.

But having said all that, we should be cognizant of the fact that the doctrine of judicial review was in vogue much before Marbury Vs Madison case.

The Doctrine Has Ancient Roots:

1.    That the doctrine of judicial review was not the invention of John Marshall is proved by the fact that the classic tradition of juristic thought in which the lawyers and judges of that time were steeped, owed much of its vitality and vogue to the writings of Blackstone whose “Commentaries on the Laws of England” had been reprinted five years before the Declaration of Independence in America.

2.    The origin of the doctrine of judicial review has been traced back to the dictum of Sir Edward Coke who is regarded as the greatest of the 17th century authorities on the Common Law of England. He contended that Magna Charta had embodied certain fundamental principles of rights and justice, and that the common law contained a further expression of the same principles.

Dr. Bonham’s Case (1610):

In this famous case, decided in 1610, Sir Edward Coke, then Chief Justice of England, in an appeal, preferred by Dr. Bonham charged for having violated the statute, adjudged the appellant to be “not guilty” upon the ground that the law in question was void, his reasons being:

“And it appears in our books, that in many cases, the common law will control acts of Parliament, and sometimes adjudge them to be utterly void; for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void”.

SCOPE OF JUDICIAL REVIEW:

As has been defined, judicial review can question the validity of:

• legislation (primary or subordinate), and
• administrative actions.

1.    JUDICIAL REVIEW OF PRIMARY LEGISLATION:

Primary Legislation:

Primary Legislation is legislation made directly by the legislature or the authority in whom the power to legislate for the time being vests.

Subordinate Legislation:

It is a law made by an authority acting under a power granted by a primary legislation.

BASIS AND RATIONALE OF JUDICIAL REVIEW OF LEGISLATION:

In England:

In England, Lord Coke would have liked it to be a Constitutional rule that “when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, adjudge such Act to be void”; but that was not to be, and there was no such thing as judicial review of Acts of Parliament.

The reason is that England is not governed by a written Constitution and there is no difference in authority between one statute and another.

In America:

Ever since the landmark case of Marbury vs Madison, in which the great Chief Justice John Marshall first asserted the power to pass upon the Constitutionality of legislative acts, and thereby, as Chief Justice Earl Warren has put it, “rooted this fundamental principle in American Constitutional law as our original contribution to the science of law”.

In India:

Marbury vs Madison principles have been followed in all the countries governed by written Constitutions. They were re-echoed in a very early Indian case decided by the Calcutta High Court namely Empress Vs Burah (ILR 3 Cal. 63).

In Pakistan:

In Pakistan, they were applied, among others, in the:

1.    Province of East Pakistan vs Muhammad Mehdi Ali Khan (PLD 1959 SC 387);

2.    Fazlul Quader Chaudhry vs Muhammad Abdul Haq (PLD 1963 SC 486);

3.    Abul Ala Maudoodi case (PLD 1964 SC 673); and

4.    Sabir Shah vs Shad Muhammad (PLD 1995 SC 66).

The Grounds of Challenge to Primary Legislation:

In the words of Chief Justice Marshall in Marbury vs Madison, “It is the theory of a written Constitution that an Act of the legislature, repugnant to the Constitution, is void”.

In Pakistan:

In Pakistan, as in India, we have a written Constitution and the Constitution is the supreme law of the land. We have adopted the English Parliamentary system but not the English doctrine of the absolute supremacy of Parliament in matters of legislation. In this respect, we have followed the American Constitution and the systems modelled on it.

Judicial Review of Constitutional Amendments:

In United States of America:

In the USA, all the questions relating to Constitutional amendments are considered as political and non-justiciable. Even as regards the ground that the Constitutional amendment has been passed in contravention of a procedural requirement, the settled law in America is that this question is a non-justiciable political question to be determined exclusively by the Congress and that the Courts have no proper role to, play in reviewing amendment process issues.

In India:

Basic Structure Doctrine:

In India, the Supreme Court had developed the Basic Structure Theory which has since the Kesavananda Bharati case (7), been firmly rooted in the Constitutional law of India. This case is also an authority for the view that if in making an amendment, the special procedure prescribed by the Constitution has not been complied with, the amendment is invalid.

In Islamic Republic of Pakistan:

Although the Courts in Pakistan have not recognized the Basic Structure Doctrine, the Courts in Pakistan consistently held (In Abdul Wali Khan case “PLD 1976 SC 57″ and in Pakistan Lawyers Forum vs Federation of Pakistan “PLD 2005 SC 719″) that a Constitutional Amendment can only be challenged if it has been enacted in a manner not stipulated by the Constitution itself.

2.    JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS:

General Scope:

In the exercise of its judicial review jurisdiction, the High Court is concerned only with the lawfulness of what the public officers do.

“The public officers are accountable to Parliament for what they do so far as regards efficiency and policy and of that Parliament is the only judge; they are responsible to a Court of justice for lawfulness of what they do and of that the Court is the only judge” (8).

Position in Pakistan:

“Where an administrative executive officer acts under a law, the High Court will control the action by an appropriate order if he:

• -     goes out of law, i.e. exercises a jurisdiction not vested in him by law;
• -     wrongly denies or omits to exercise a jurisdiction; and
• -     where the law under which he acts prescribes the manner in which he is to act materially departs from that law” (9).

Justification for Treating Subordinate Legislation with Administrative Actions:

The justification for treating the subject of subordinate legislation along with administrative actions in general is that subordinate legislation is merely one form of administrative action and both, in American and British systems, judicial review of subordinate legislation is subject to normal law governing review of administrative action.

Doctrine of Ultra Vires:

It’s Meanings:

Ultra Vires is a Latin word which means;

“Beyond Power”.

It’s Concept:

It is axiomatic that a public authority which derives its existence and its powers from statute cannot validly act outside those powers.

The doctrine of Ultra Vires covers all the defects which may lead to administrative actions – subordinate legislation included being invalidated in the Courts.

Grounds for Ultra Vires:

(a)   Contravention of the Constitution;

(b)   Inconsistency with or Contravention of the Enabling Statute;

(c)   Affecting jurisdiction of Courts;

(d)   Contravention of a Law other than the Enabling Enactment;

(e)   Affecting Vested Rights; Retrospectivity;

(f)   Bad Faith or Mala fides; and

(g)   Unreasonableness.

RELATIONSHIP BETWEEN JUDICIAL POWER, JURISDICTION AND JUDICIAL REVIEW:

“Before a Court can claim to exercise judicial power, it must have jurisdiction; for jurisdiction is the authority of a Court to hear a case and hence to exercise judicial power” (10).

Theory of Jurisdiction and Judicial Review:

It is well to bear in mind that Judicial Review has grown out of the theory of jurisdiction and traditionally judges in America, England and other common law countries have for centuries been accustomed to using the expressions “jurisdiction”, “without jurisdiction”, “within jurisdiction”, “excess of jurisdiction” in the exercise of their power of judicial review.

INTERPRETATION AND ITS RELATION WITH JUDICIAL REVIEW:

Judicial power is the power to decide and that includes the power to interpret. The core function of a judge is to decide by applying the law to the facts of the case before him. That necessarily involves interpretation of the law in order that it may be so applied.

“Interpretation is at the heart of judicial review; and judicial review, so to say, is essentially a matter of interpretation” (11).

NEXUS BETWEEN JUDICIAL REVIEW AND FUNDAMENTAL RIGHTS:

In countries with written Constitutions, fundamental rights form part of the written Constitution and any law or executive action which is inconsistent with fundamental rights, will come under judicial review.

Effect of Violation of Fundamental Rights:

Ever since that land mark case of Marbury Vs Madison in which the power to pass upon the Constitutional validity of legislative acts was first asserted, it has been a firmly rooted principle that a written Constitution is the fundamental and paramount law of the nation “and consequently, the theory of every such government must be such that an act of Legislature, repugnant to the Constitution is void”.

It makes, like Article 13, clauses (1) and (2) of the Indian Constitution, provisions expressly declaring laws inconsistent with or in contravention of the Fundamental Rights, which are part of the written Constitution, to be void.

Article 8 of Constitution of Islamic Republic of Pakistan, 1973:

It says in its clauses (1) and (2):

(1)   Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this chapter (of Fundamental rights), shall to the extent of such inconsistency, be void;

(2)   That State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such inconsistency, be void.

JUDICIAL REVIEW AS DEVELOPED IN DIFFERENT COUNTRIES:

Here we will observe the status of judicial review in different countries.

1.    Judicial Review in Great Britain:

Introduction:

Judicial review is a procedure in English Administrative Law by which English Courts supervise the exercise of public power.

Unlike the United States and some other jurisdictions, English law does not know judicial review of primary legislation (laws passed by Parliament), save in a few cases where primary legislation is contrary to EU law and the European Convention of Human Rights. A person wronged by an Act of Parliament therefore cannot apply for judicial review unless this is the case.

2.    Judicial Review in United States of America:

In America, there is a written Constitution, and judicial review is the doctrine according to which Courts are entitled to rule upon the Constitutionality of an action taken by a co-ordinate branch of government. Thus there, judicial review extends to legislative enactments also.

Courts in the United States have the power of judicial review. This power is based fundamentally on the tripartite nature of governmental power as enunciated in the United States Constitution.

“The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish… The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…” (12).

The Supreme Court:

The ultimate Court for deciding the Constitutionality of federal or state law under the Constitution of the United States is the Supreme Court of the United States. The doctrine of judicial review was first announced as part of federal law in 1803, by the Supreme Court decision Marbury v. Madison.

MARBURY vs MADISON (1803) 5 US (1 Cranch) 137:

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is a landmark case in United States law and the basis for the exercise of judicial review in the United States, under Article Three of the United States Constitution.

Brief Facts of the Case:

The case resulted from a petition to the Supreme Court by William Marbury, who had been appointed as Justice of the Peace in the District of Columbia by President John Adams shortly before leaving office, but whose commission was not delivered as required by John Marshall, Adams’ Secretary of State. When Thomas Jefferson assumed office, he ordered the new Secretary of State, James Madison, to withhold Marbury’s and several other men’s commissions. Being unable to assume the appointed offices without the commission documents, Marbury and three others petitioned the Court to force Madison to deliver the commission to Marbury.

Decision:

The Supreme Court denied Marbury’s petition, holding that the statute upon which he based his claim was unconstitutional.

MCCULLOH VS MARYLAND 17 vs (4 Wheat) 316:

In this case, the doctrine of judicial review was reinforced and applied to “the supremacy of the Federation over States”.

3.    Judicial Review in Pre-Partition India:

In pre-independence India, only three High Courts at the Presidency towns of Calcutta, Madras and Bombay had the power to issue the prerogative writs. By the charters of the three Supreme Courts created in pursuance of the Regulation Act of 1773, those Supreme Courts were vested with the powers of the Court of King’s Bench which included the power to issue the prerogative writs.

4.    Judicial Review in India:

The Courts in India exercise the power of judicial review by virtue of this power being conferred on them by Articles 32 and 226 of the Indian Constitution.

Judicial Review Is A Part Of Basic Structure Of The Indian Constitution:

The Supreme Court of India has held in a host of cases that:

“The doctrine of judicial review is the power inherent and intrinsic in the Supreme Court and High Courts of India, and even a Constitutional amendment cannot divest these Courts of their power of judicial review”.

5.    Judicial Review in Islamic Republic Of Pakistan:

The Supreme Court and High Courts of Pakistan exercise the power of judicial review by virtue of powers conferred upon them Articles 184(3) and 199 respectively of the Constitution of Islamic Republic Of Pakistan, 1973.

STANDARD OF REVIEW:

In the United States:

In the United States, unconstitutionality is the only ground for a federal Court to strike down a federal statute.

If a state statute conflicts with a valid federal statute, then Courts may strike down the state statute as a violation of the Supremacy Clause. But a federal Court may not strike down a statute absent a violation of Federal law or of the federal Constitution.

Nevertheless, the federal Courts have not departed from the principle that Courts may only strike down statutes for unconstitutionality.

PROCEDURE IN JUDICIAL REVIEW PROCEEDINGS:

Procedure Including Evidence:

Because judicial review proceedings are in the nature of summary proceedings, matters involving a conflict of fact and a conflict of evidence which would require investigation and would involve discovery and cross-examination are considered unsuitable for disposal on an application for judicial review.

Procedure Including Evidence:

Article 199 doesn’t prescribe any period of limitation for applications under this Article. The Limitation Act 1908 also doesn’t apply to the proceedings under Article 199.

JURISDICTIONAL REQUIREMENTS IN USA:

In the Constitution of the United States, Article III confines federal Court jurisdiction to “cases” and “controversies”. Interpreting this jurisdictional requirement, the Courts have established self-imposed limitations on its power of judicial review. They are as follows:

1.    The Rule against Advisory Opinions:

It means, against extra-judicially deciding a question.

The earliest instances of cases in which this rule was propounded are Hayburn’s case of 1792 and Muskrat vs US (219 US 346). The basis of this rule is the doctrine of separation of powers.

2.    Mootness:

The Courts cannot decide moot questions; they can only decide actual cases and controversies.

3.    Ripeness, Prematurity and Abstractness:

Until the controversy has become concrete and focused, it is difficult for the Court to evaluate the practical merits of the position of each party.

The leading case on ripeness is United Public Workers Vs Mitchell (330 US 75).

4.    Standing:

In Allen vs Wright (468 US 737), it was held that the requirement of Standing is perhaps the most important of the jurisdictional doctrines. This doctrine implies that the Courts should be satisfied that they have jurisdiction and that the parties have the standing.

The leading cases in this matter are Fothingham vs Mellon (262 US 447), and Flast vs Cohen (392 US 83).

THRESHOLD QUESTIONS:

1.    Other Adequate Remedy:

In England:

In England, it is well established that, “a remedy by way of judicial review is not to be made available where an alternate remedy exists”.

In Pakistan:

“Under Article 199 of the 1973 Constitution, the jurisdiction of the High Court is subject to the condition that the High Court is satisfied that no other remedy is provided by law” (13).

2.    Doctrine of Locus Standi:

In England:

Under the English Legal System, “the Courts as the judicial arm of government do not act on their own initiative”. The Courts in England, in exercising the power to grant prerogative writs, have always reserved the right to be satisfied that the applicant has some genuine locus standi to appear before it.

Public Interest Litigation in England:

Recent cases show that the Courts in England have shown “an expansionist view towards locus standi in respect of public interest challenges”.

Doctrine of Standing in America:

There is no specific provision in American Constitution corresponding to Article 199 of the Constitution of Pakistan requiring that there must be an application by an aggrieved person or aggrieved party. The “Doctrine of Standing” is one of the doctrines which cluster about Article III of the American Constitution which confines the federal Courts to adjudicating actual cases and controversies and is perhaps the most important of the jurisdictional doctrines.

Doctrine of Standing in Pakistan:

The words “on the application of any aggrieved party”, “on the application of any aggrieved person” as they occur in Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 are clearly redolent of the presence of the doctrine of Locus Standi in Pakistan.

Public Interest Litigation and Locus Standi:

In the cases of

(a)   Benazir Bhutto vs Federation of Pakistan, (14) and

(b)   Ardeshir Cowasjee vs Karachi Building Control Corporation, (15)

It has been observed that the concept of locus standi has undergone material change in case of public interest litigation; and, indeed, there is a greater need to allow liberal cases “under a generous conception of locus standi”.

3.    Territorial Jurisdiction:

“Territorial jurisdiction is the power of a Court or Tribunal considered with reference to the territory within which it is to be exercised. It means the geographical limits within which the judgments and orders of a Court can be enforced and executed. The object of defining the territorial limits of the Courts and Tribunals generally is to avoid a clashing of jurisdiction”.

Under Article 199 of our Constitution, the jurisdiction of the High Courts is territorial.

4.    Fairness:

“Public authority must, in the performance of their public law functions, act fairly and justly, is a universal rule vouched by high and respectable judicial authority” (16).

5.    Natural Justice:

Natural justice, it has been said, is only “fair play in action”.

For our purpose, it is sufficient to say that natural justice consists of the rule against bias and the right to be heard.

6.    The Right to Be Heard:

This right may be founded upon a statute or a statutory instrument or it may rest upon the maxim “Audi Alteram Partem”.

It is one of the principles of justice that no man should be condemned without being heard.

7.    The Rule against Bias:

“The rule against bias” is the second pillar supporting natural justice. It is commonly captured in the phrase “nemo judex in sua causa”, which means that “nobody may be judge in his own cause”.

8.    Duty to Give Reasons:

Natural Justice demands that:

(a)   the applicant be informed of the nature of the case against him; and

(b)   he should be given a reasonable opportunity to be heard.

It is well established rule that if opportunity to be heard is to have any value in practice, the decision maker must assign or .identify the reasons for any adverse decision.

9.    Duty to Communicate the Adverse Order:

Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the Courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice.

10.   Unreasonableness:

In Government of Pakistan vs Dada Ameer Haider Khan (PLD 1987 SC 504), the respondent was refused a passport, and the reasons given by the government before the High Court were that the respondent was on old political worker having “communist thoughts”. In upholding the decision of the High Court, the Supreme Court observed:

“We don’t think that this reason was a reasonable ground on which a citizen’s liberty to travel abroad could be curtailed”.

11.   Mala-fides:

The Supreme Court and the High Courts in their judicial review jurisdiction can always pronounce an act to be mala fide and therefore void, and their jurisdiction to do so cannot be taken away.

12.   Judicial Review in National Security and Emergency Matters:

In such a situation, the Court must observe the limits dictated by law and common sense, but at they same time, the Courts don’t abdicate their judicial function.

13.   Question of Fact:

In the exercise of their judicial review jurisdiction, the Courts are concerned with the lawfulness of the actions of public authorities; they are primarily concerned with the “questions of law” and they give scant regard to “questions of fact”.

Judicial Review and National Supremacy:

Even many persons who have criticized the concept of judicial review of congressional acts by the federal Courts have thought that review of state acts under federal Constitutional standards is soundly based in the supremacy clause, which makes the Constitution and Constitutional laws and treaties the supreme law of the land.

IS JUDICIAL REVIEW UNDEMOCRATIC?

Ever since the decision in Marbury vs Madison, there has been a lively debate as to the legitimacy of the power of judicial review.

The Earliest Opposition:

The earliest opposition came from no less a person than Thomas Jefferson, who was President of America at the time of the decision of Marbury vs Madison. He expressed himself thus in a letter:

“You seem to think it developed on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive, more than the Executive to decide for them. The instrument (the Constitution) meant that its co-ordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are Constitutional, and what not, not only for themselves in their spheres of action, but for the legislature and executive, in their own spheres, would make the judiciary a despotic branch”.

Position in Pakistan:

This is precisely the position in Pakistan. They are the judicial organ of the State and are so recognized by a written Constitution, namely the Constitution of the Islamic Republic of Pakistan. The system of government under that Constitution is democracy and the Courts are therefore an integral part of that democratic system.

TENSIONS ARISING FROM JUDICIAL REVIEW:

Tension Is Inevitable:

It is natural and inevitable that tensions and frictions will arise from decisions in the applications for judicial review and judges will have their critics. The reasons are not far to seek. They are, among others, that it is in the nature of those exercising political authority to be overweening in its exercise and secondly, judges are the bulwarks of liberty and it is the requirement of their judicial function that they treat the executive on the same footing as any other litigant.

In England:

Thus, as has been noticed by Lord Woolf, in the English Judicial History, one of the periods of such tension was when there was a Labour Government and Lord Denning was the Master of the Rolls.

In America:

In America, the tension was openly voiced when after his landslide victory in the 1936 election, President Roosevelt decided not only to attack the Supreme Court but to do so disingenuously.

In Pakistan:

In Pakistan, the tension, once in the year 1997 rose so high that a three judge Bench of the Supreme Court suspended the operation of a Constitutional Amendment i.e. 14th Amendment; in another matter, a Bench directed the President not to assent to a Bill, which had been duly passed by the National Assembly and the Senate. There were speeches in and out of the National Assembly in respect of the Judges, which gave rise to contempt proceedings (17) culminating in the national humiliation of having the Supreme Court of Pakistan physically attacked during the hearing of the contempt matter against the then Prime Minister and others.

Moderate Judicial Review:

Judicial review won out in early American history after genuine struggles, but the form it won was critical to its success. In a different form, it is likely that it would not have survived. The form it took was “Moderate Judicial Review”.

“Great Constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the Courts” (18).

PROS AND CONS

Although judicial review has become an established part of Constitutional law in the United States, some people disagree with the doctrine, or believe that it is unconstitutional since it is not specifically spelled out in the Constitution.

Proponents of judicial review note that any government based on a written Constitution requires some mechanism to prevent laws from being passed that violate that Constitution. Otherwise, the document would be meaningless, and the legislature, with the power to enact any laws whatsoever, would be the supreme arm of government. •

HOW SUPREMACY OF SOME CONSTITUTIONS IS SECURED THROUGH MEANS OTHER THAN THAT OF “JUDICIAL REVIEW”:

It becomes necessary in the context to notice how in countries where the doctrine of judicial review doesn’t apply, the supremacy of the written Constitution is maintained.

1.    Swiss Example:

In Switzerland, for instance, the federal judiciary has no power to review the Constitutionality of the federal law. Its powers are confined to adjudicating the Constitutionality of the Cantonal Laws. The Swiss Constitution doesn’t establish any clear cut division between the executive and the judicial organs of the State power.

2.    French Example:

In the Constitution of the fourth French Republic, it is for the Constitutional Committee created under Article 91 to say whether the laws passed by the National Assembly imply amendment of the Constitution. It would be noticed that interpretation of the Constitutionality of the impugned law doesn’t partake either of the method provided in the Constitution of the United States (namely by means of judicial review, nor again does it conform to the English Constitutional practice (that is of rendering the Parliamentary legislative Acts immune from challenge).

Conclusion:

The cases of Swiss and French Constitutions have been referred in an attempt to show that the procedure of judicial review is not the only device of conserving the supremacy of a written Constitution.

REFERENCES

1.    Judicial Review of Public Actions by Justice (R) Fazal Karim.

2.    McCulloh Vs Maryland:

3.    FUNDAMENTAL LAW of Pakistan by A.K.Brohi

4.    In Sura 4:59

5.    Oliver Wendell Homes, himself a great and celebrated judge.

6.    James Bryce in his book, “The American Common Wealth”:

7.    AIR 1973 SC 1461

8.    Diplock LJ in IRC vs National Federation of Self-Employed (1981) 2 All ER 93.

9.    Chief Justice Munir in Tariq Transport Company Case (PLD 1958 SC 437).

10.   Fauji Foundation Vs Shamim-ur-Rehman (PLD 1983 SC 457):

11.   Christopher Wolfe in his book “The Rise of Modern Judicial Review”.

12.   Article III of United States Constitution.

13.   Muhammad Arif vs Income Tax Officer (PLD 1989 SC 109):

14.   PLD 1988 SC 416

15.   1999 SCMR 2883.

16.   Airport Support Service vs Airport Manager (1998 SCMR 2268):

17.   Masroor Ahsan vs Ardeshir Cowasjee (PLD 1998 SC 823).

18.   Holmes J in Missouri, Kansas and Texas Ry. Vs May (194 US 267):

——————-

.    Tarek S. Zaheer and M. Kabir Hassan, Financial Markets Institutions and Instruments, a Comparative Literature Survey of Islamic Finance and Banking, vol.10, No.4 Black wall Publishers, p.158-159

.    Usmani M.I., Meezan Bank’s Guide to Islamic Banking, 2002, Darul-Ishaat Karachi, Pakistan, p. 13

.    M. Ariff and M.A. Mannan (ed.). Developing a System of Financial Instruments, “The role of Shariah Based Financial Instruments in a Muslim Country”, D.M. Qureshi, 1990, Islamic Development Bank, Islamic Research and Training Institute, p.53

.    Mudaraba is also known as Qirad and Muqaradah.

.    5 Shirazi, H., (tr.) Islamic Banking, 1990, Butterworths (London), p.31.

.    EI-Sarraf, M.F., Financial Dealings in Islamic Banks, Journal of Islamic Banking and Finance, Karachi, Pakistan, vol. 1, no. 1, 1984, p. 12.

.    Different scholars have given different opinion on that point.

.    There are two types of Mudaraba namely. First is restricted silent partnership in which the capitalist (Rab ul Mal) may specify a particular business or place for the entrepreneur (Mudarib), in that case he shall invest the money in that particular business or place. Second is unrestricted silent partnership, in this type the capitalist (Rab ul Mal) gives full freedom to the entrepreneur (Mudarib) to undertake whatever business he deems fit. The capitalist (Rab ul Mal) may specify only the rule according to which the profit is to be shared.

.    C.R. Tyser, D.G. Demetriades, Ismail Haqqi, (tr.) the Mejelle, the Other Press, Malaysia, vol. 1, p. 490.

.    C.R. Tyser, D.G. Demetriades, Ismail Haqqi, (tr.) the Mejelle, the Other Press, Malaysia, Vol. 1, p.233-234

.    Tarek S. Zaheer and M. Kabir Hassan, Financial Markets Institutions and Instruments, a Comparative Literature Survey of Islamic Finance and Banking, vol. 10, No.4 Black wall Publishers, p. 165

.    Obiyathulla Ismath Bacha, Adapting Mudarabah Financing To Contemporary Realities: A Proposed Financing Structure November 1996

www.fivepillarsassc.com/documentation/Adapting-Mudarabah.pdf

accessed on 1st June 2007-06-02 at 3:30 a.m.

.    Obiyathulla Ismath Bacha, Adapting Mudarabah Financing To Contemporary Realities: A Proposed Financing Structure November 1996

www.fivepillarsassc.com/documentation/Adapting-Mudarabah.pdf,

accessed on 1st June 2007-06-02 at 3:30 a.m.

.    Obiyathulla Ismath Bacha, Adapting Mudarabah Financing To Contemporary Realities: A Proposed Financing Structure November 1996

www.fivepillarsassc.com/documentation/Adapting-Mudarabah.pdf,

accessed on 1st June 2007-06-02 at 3:30 a.m

.    Humayon A. Dar and John R. Presley, Lack of Profit Loss Sharing In Islamic Banking: Management and Control Imbalances, International Journal of Islamic Financial Services, vol. 2, No. 2, July to September. 2000, p.3-13.

.    Maulana Taqi Usmani, Islamic Finance, Musharakah & Mudarabah www.darululoomkhi.edu.pk/fiqh/islamicfinance/islamicfinance.html – 3k – accessed on 3rd of June at 20:30

.    Saad Abdul Sattar Al-Harran, Islamic Finance: Partnership Financing, 1993, Peladuk Publications, p.75

.    Andrew Cuningham, Islamic Banking and Finance prospects for the 1990s, Middle East Economic Digest (Meed) no. 4, April 1990, p. 14

.    Saad Abdul Sattar Al-Harran, Islamic Finance: Partnership Financing, 1993, Peladuk Publications, p.79

.    Tarek S. Zaheer and M. Kabir Hassan, Financial Markets Institutions and Instruments, a Comparative Literature survey of Islamic Finance and Banking, Black wall Publishers, vol.10, no.4 p. 165-166

.    Saad Abdul Sattar Al-Harran, Islamic Finance: Partnership Financing, Peladuk Publications, 1993, p.79

.    Usmani M.I., Meezan Bank’s Guide to Islamic Banking, 2002, Karachi, Pakistan, Darul-Ishaat, p.92

.    Maulana Taqi Usmani, Islamic Finance, Musharakah & Mudarabah www.darululoomkhi.edu.pk/fiqh/islamicfinance/islamicfinance.html – 3k – accessed on 3rd of June at 20:30

.    Mohammad Omar Farooq Partnership, Equity-Financing and Islamic Finance: whither profit-loss-sharing?, August 2006, accessed on 3rd of June 2007 at 20:42 www.globalwebpost.coni/farooqm/writings/islamic/i_econ_fin/if_partnership.doc

.    The practice of Musharaka is different in Pakistan. First, it is a venture in which one party provides the required funds and the other party skills like a conventional Mudaraba. Second is that the risk is limited for the party providing capital.

.    Andrew Cuningham, Islamic Banking and Finance prospects for the 1990s, Middle East Economic Digest (Meed) no. 4, April 1990, p. 14

.    Note: He can suffer loss in case of bankruptcy of borrower

.    Usmani, M.T., An Introduction to Islamic Finance, 1998, Karachi, Pakistan: Idaratul Ma’arif, p.27

.    Said Zafar and Shameela Chinoy, Papers submitted on Islamic Financial Institutions to the Task Force on the Future of the Canadian Financial Services Sector, 8th of October 1997, Khamic Financial Institutions Canada www.fin.gc.ca/taskforce/pdf/ifi2.pdf-accessed on 28th of May 2007 at 23:26

.    Sufyan Gulam Ismail, Islamic Finance Explained,

www.1stethical.com/IslamicFinanceExplained.pdf accessed on 2nd June 2007 at 20:19

.    Regulatory Impact Assessment for alternative Finance Products,

www.hmrc.gov.uk/ria/ria-alt-finance.pdf accessed on 2nd June 2007 at 19:59

.    Islamic Finance a Growing Industry in the United States,

www.unc.edu/ncbank/Articles%20and%20Notes%20PDFs/Volume%2010/KimTacyP DF.pdf accessed on 2nd of June 2007 at20:34

.    Muhammad Amin, the Taxation of Islamic Finance in Major Western Countries, sixth paper 2007, pwc.blogs.com/mohammed_amin/files/.pdf accessed on 2nd of June 2007 at 20:26

.    In Pakistan, the development of term finance certificates has all but eliminated the use of Musharaka. The religious merit of Musharaka is recognised, however, and some banks make a point of taking part in them, especially in capital-starved markets such as Sudan. Nevertheless, for practical purposes, Musharaka remains a highly marginal instrument, despite its attraction for theorists

.    Andrew Cuningham, Islamic Banking and Finance prospects for the 1990s, Middle East Economic Digest (Meed) no. 4, April 1990, p. 14

.    SCB Islamic Home Financing,

http://www.standardchartered.com/pk/ib/home_finance.html accessed on 1st of June at 2:21

* SYED MUHAMMAD NAJMUL SAQIB MUMTAZ

Advocate, LL.M. (Previous) (Part-1)

Bahauddin Zakariya University Multan.

]]> http://www.pakistanlaw.net/law-articles/law-definition/the-doctrine-of-judicial-review/feed/ 2 http://www.pakistanlaw.net/law-articles/law-definition/what-is-law/ http://www.pakistanlaw.net/law-articles/law-definition/what-is-law/#comments Wed, 27 Oct 2010 15:20:12 +0000 Bilal Sarwari http://www.pakistanlaw.net/?p=2819 WHAT IS LAW?

By
MRS. NAILA SABIR KHAN
L.L.M. Advocate High Court.
Part time Lecturer
B.Z.U. Gillani Law College, Multan

Law means the rule of conduct. The rule of conduct is prescribed to maintain peace and order. Peace and order promote the cause of humanity. Chaos and anarchy disturb it. Cause of humanity is that rights of all individuals remain protected. Rights and duties co-exist and correspond to each other. Neither I should injure you nor should you injure me. This is a universally accepted principle and is principle of natural justice. I am free in my actions but subject to the condition that other remains free in their actions. This is possible only when both acting freely must observe certain limitations and then takes care of it. Law is to obeyed. If law is not observed it looses its very purpose. The whole philosophy behind all law is to make the observers civilized. In a democratic set up it is the sing and symbol of the people that they respect law, they act according to law and under law. Their actions are under due process of law. Law that declares machinery or the manner according to which the courts, the parties, the counsel and other involved in the process are to proceed is called procedural law. The sole purpose of law is to administer justice.

What is law, a law and the law?

Law means a rule of action, that is, any standard according to which certain acts in certain circumstances must operate.

In the abstract sense law means the entire body of rules applied by the courts in the administration of justice. The worked “law” and the “the law” are used in this sense. Thus when we say “the rental law I” we do not mean any particular statute or section of that statute but the general principles of the law of.

In the concrete sense law means “particular enactments” in this sense “a law” means “an Act of Parliament” and the “law” would means a number of particular”. The Punjab Rented Premises Ordinance, 2007 is a law in this sense.

Law in concrete sense is thus one of the of the sources  of law in the abstract sense and it stands in the same relation to law as a judicial precedent stands to case law.

In the science of law, the study is bifurcated . one is regarding the philosophy or abstract side of it while the other is its concrete from or the law positive, as it is existing and in force in the land and administered in the courts. One is the soul, the other is the body. The soul or abstract or philosophical aspect is called the law while the actual enacted from is called a law. For instance, the traffic on the Pakistani roads observes the rule of conduct: “Keep to the left”. If any one violates he will punished as prescribed by the traffic law in force at the relevant time. Why to keep the left. It is to maintain peace and order on the roads or for the safety of all purpose a particular enactment or particular rules made and promulgated by the law maker in the shape of an Act of Parliament is called a law and its plural “laws” would mean “a number of particular laws”. This is law in the concrete sense.

The soul or philosophy or the spirit behind or hidden it its letters is called “the law”. This is in the abstract sense.

Law in this concrete sense is thus one of the sources of law in the abstract sense and it stands in the same relation to law as judicial precedent stands to case law.

The definitions in the two senses are thus neither coextensive nor coincident. A law may be no part of the law. Nor is it necessary that the law should consist only of law.

“All law is not produced by law do not produce laws so goes the epigram.

It means that the law in the abstract sense consists  not only of particular laws of statutes but it is deprived as well from other sources as custom or precedent. The second part of the epigram means that particular statutes do not necessarily produce la in the abstract sense.

To achieve the objective or purpose law maker may make more that one law but the spirit behind all of them remains the same. Further, it may have different forms in different places and circumstances suited to them. Still. The object or spirit of law in that particular field remains the same.

The body or corpus of all laws of a country are jointly called the law of that country as the law of United States, the law of United Kingdom, the law of Pakistan.

How a law is made?

In the constitution of Islamic Republic of Pakistan, 1973, the legislative procedure is given in the Articles 70 to 77.

The law making is the field of Legislature, its interpretation the field of Judiciary and its execution the filed of the executive.

Under Article 70 of the Constitution,-

A Bill with respect to any matter in Federal Legislative List or in the Concurrent legislative List may originate in either House and shall, if it is passed by House in which it originated, be transmitted to the other House; and if the bill is passed without amendment by the other House also, ti shall be presented to the President for assent.

If a Bill transmitted to a House under clause (1) is rejected or is not passed within ninety days of its receipt or is passed with amendment, the bill shall be referred to Mediation committee constitution under article 71 for consideration and resolution thereon.

Where a bill is referred to Mediation Committee under clause (2), the Mediation Committee shall within ninety days, formulate an agreed Bill which s likely to be passed by both houses of the Majlis-e-Shoora (Parliament) and place the agreed Bill separately before each House, and if both the houses pass the Bill, it shall be presented to the President for assent.

In this Article and succeeding provisions of the constitution, “Federal Legislative List” and concurrent Legislative” mean respectively the Federal Legislative list and the Concurrent Legislative list in the Forth Schedule.

Article 71 deals with the Mediation committee. It says——

Both Houses of the Majlis-e-Shoora (Parliament) shall, within fifteen days from the date of the referral for the Bill by the House in which it was originated for consideration and resolution by Mediation Committee under clause (2) of Article 70, nominate eight members each as members of a Mediation Committee.

House in which the bill was originated shall nominate a member of the Mediation Committee as Chairman of the Committee and the other House shall nominate a member as the Vice Chairman thereof.

All the decisions of the Mediation Committee shall be made by a majority of the total number other members of each House in the Committee.

The president may, in consultation with the Speaker of National Assembly and Chairman of the Senate, makes rules for conduct of business of the Mediation Committee.

Article 72 deals with the procedure at joint sitting. It says:

The President, after consultation with the speaker of the National Assembly and the Chairman, may make rules as to the procedure with respect to the joint sittings of, and communication between the Houses.

At a joint sitting, the Speaker of the National Assembly or, in his absence such person as may be determined by the rules made under clause (1), shall preside.

The Rules made under clause (1) shall be laid before a joint sitting and may be added to, varied, amended or replaced at a joint sitting.

Subject to the constitution, all decision at a joint sitting shall be taken by the votes of the majority of the members present and voting.

Article 75 lays down the procedure concerning President’s assent to Bills. It says:

(1)                When a Bill is presented to the President for assent, the President shall, within thirty day,–

(a)    Assent to Bill; or

(b)    in the case of Bill other than a Money Bill, return the Bill to the Majlis-e-Shoora (Parliament) with a message requesting that the Bill, or any specified provision thereof, be reconsidered and that any amendment specified in the message be considered.

(2)                When the president has returned a Bill to the Majlis-e-Shoora (Parliament) it shall be considered by the Majlis-e-Shoora (Parliament)and, if it is again passed, with or without amendment by the Majlis-e-Shoora (Parliament), in accordance with the Article 70 it shall be deemed for the purpose of the Constitution to have been passed by both the Houses and shall be presented to President and the President hall not withhold assent therefrom.

(3)                When the President has assented to a Bill, it shall become law and be called an Act of Majlis-e-Shoora (Parliament).

(4)                No Act of Majlis-e-Shoora (Parliament), and no provision of any such Act, shall be invalid by reason only that some recommendation, previous sanction or consent required by the constitution was not given if that Act was assented to in accordance with the Constitution.

Article 76 provides three things, namely,-

A bill pending n either house shall not lapse by reason of prorogation of the House.

A bill pending in the National Assembly, or a Bill which having been passed by the National Assembly is pending in the Senate, shall lapse on the dissolution of National Assembly is pending in the Senate, shall lapse on the dissolution of the National Assembly.

Part V of the Constitution deals with the subject of “Relations between Federation and Provinces”. Chapter 1 of this part is concerning distribution of the legislative powers. It has four Articles, namely, Articles 141, 142, 143 and 144.

Article 141 gives the extent of the Federal and Provincial Laws. It says: subject to the Constitution Majlis-e-Shoora (Parliament) may make laws having extra territorial operation for the whole or any part of Pakistan, and a Provincial Assembly may make laws for the province or any part there of.

Article 142 deals with the subject matter of Federal and Provincial laws. It also states four things namely,

Subject to the constitution,-

Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respective to any matter in the Federal Legislative List;

Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to matters not enumerated in either of the lists for such areas in Federation as are not included in any Province.

Article 143 provides the mode of solution of inconsistency between Federal and Provincial Laws. It states: if any provision of any Act of Provincial Assembly is repugnant to any provision of any Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament)is competent to enact, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall to extent of repugnance, be void.

Article 144 empowers the Majlis-e-Shoora (Parliament) to legislate for two or more Provinces. It states: If two or more Provincial Assemblies pass resolutions to the effect that Majlis-e-Shoora (Parliament) may be law regulate any matter not enumerated in either List in the Fourth Schedule, it shall be lawful for the Majlis-e-Shoora (Parliament) to pass an Act for regulating that matter accordingly, but any Act so passed may as respect any Province to each this applies, be amended or repealed by Act of Assembly of that Province.

According to Article 1 of the Constitution Pakistan is a Federal Republic to be known as Islamic Republic of Pakistan. Article 2 says: Islam shall be the state religion of Pakistan. Article 2A states: the principles and provisions set out in the Objectives Resolution produced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly. The Article 3 states: the State shall ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability, to each according to his work. Article 4 lays down: (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

(2)        In particular-

(a)        no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with;

(b)        no person shall prevented from or hindered in doing that which is not prohibited by law; and

(c)        no person shall be compelled to do that which the law downs not require him to do.

Article 18 guarantees freedom of trade, business or profession. It states: subject to such qualification, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business:

Provided that nothing in this Article shall prevent–.

the regulation of any trade, commerce or industry in the interest of free competition therein; or

the carrying on, by the Federal Government or a Provincial Government, or by the corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons.

What is a Bill?

A bill is a written draft of proposed legislation presented by a member of National Assembly or the Senate.

The object is to show that every elected representative of the people has the right to move or legislation on a subject he considers in the interest of the people. It is also to show thath participation is one thing and what comes the ultimate result or shape of such bill will be dependent upon the debate and consideration and going the whole lawful and legitimate process of law making. Further, it is to show thath there is lawfulness and transparency in every affair of the State organs, be they the Legislature, the Judiciaary or the Executive.

Bills are either Ordinary Bills or Money Bills. Fiscal Matters come under the Money bills. Law making is a hill task and during the whole process a full fledged law and parliamentary affairs division works with its expertise and hard labour that the laws are taking their final shapes as we see them.

What is an Act?.

A bill when passes through the whole process prescribed by the Constitution and is assented by the president is called an Act.

It is allotted a number in the statute book maintained in the legislature which is mentioned in brackets in Roman digits and the year in which it is passed in Arabic digits as adopted in English language.

For example: The Code of Civil Procedure, 1908 (Act No.V of 1808); the Code of Criminal Procedure, 1898 (Act No.V of 1898); The Pakistan Penal Code, 1860 (Act No.XLV of 1860); The Illegal Dispossession Act, 2005 (XI of 2005).

What is an Ordinance?

Both an Act and an Ordinance are piece of legislation. Both are made and promulgated under the authority of law.

Article 89 of 1973 deals with the Ordinances. It states:

The president may, except when the National Assembly is in session, if satisfied that circumstances exist which render to take immediate action, made and promulgate an Ordinance as the circumstances may require.

An ordinance promulgated under this Article shall have the same force and effect as an Act of Majlis-e-Shoora (Parliament) and shall be subjected to like restrictions as the power of Majlis-e-Shoora (Parliament) to make laws, but such Ordinance—

Shall be laid—

before the National Assembly if it contains provisions dealing with all or any of the matter specified in clause (2) of Article 73, and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the assembly, upon the passing of that resolution.

before both Houses if it does not contain provisions dealing with any of the matters referred to in sub-paragraph (i), and shall stand repealed at the expiration of four months from its promulgations or if before the expiration of that period a resolution disapproving it is passed by either House, upon the passing of that resolution; and

may be withdrawn at any time of the President.

Article 128 of the Constitution also deals with the Ordinances at the Provincial level. It states:

The governor may, except when the National Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an ordinance as the circumstances may require.

An ordinance promulgated under this Article shall have the same force and effort as an act  of Provincial Assembly and shall be subject to like restrictions as the power of Provincial Assembly to make laws, but every such Ordinance—

Shall be laid before the Provincial Assembly and shall stand repealed at the expiration of three months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution;

(3)           Without prejudice to provisions of clause (2), an Ordinance laid before the Provincial Assembly shall be deemed to be a Bill introduced in the Provincial Assembly.

How is a statute amended?.

The same procedure is applicable to amend a statute as is applicable for the passing of original statute, whether it is an Act or an Ordinance.

What are the object of reason?

When a bill is introduced in the legislature to be passed as a law object and reasons are mentioned by the member who introduces it. Those are always available in the relevant Gazette in which the law is notified.

Those are briefly stated in the preamble or the long title. The words “Whereas ..” in the preamble do have glimpses of those objects which a statute is to obtain and the reasons for which it was being enacted.

In the present law it is to regulate the relationship of landlord and tenant, to provide a mechanism for settlement of their disputes in an expeditious and cost effective manner and for connected matters.

What expediency?

Expediency means the requirement of the time in connection with the welfare and well being of society the members of which are going to be subjects of the law. State in its legislative function owes a duty to legislate the conduct of the people in the public interest. It is the legislature who is the see what ought to be the law and what is best suited for the society in the circumstances prevalent at the relevant time.

The very first paragraph of the law begins with words:

“Whereas it is expedient to regulate the relationship of the landlord and tenant, to provide a mechanism for settlement of their disputes in an expeditious and cost effective manner and for connected matters”.

It means according to the legislative wisdom time has come, circumstances so require, public interest so demands, that an enactment be made to regulate the relationship of landlord and tenant, to provide a mechanism for settlement of their disputes in an expeditious and cost effective manner and for connected matters. From where this knowledge and wisdom is gained by the legislators? It is gained by their own knowledge, experience and constant study, watch, vigilance, interaction with the people, public opinion expressed in all lawful manners, such as increasing complaints, news in mass media such as radio, television, newspapers, books, articles seminars, conferences etc. interaction and meeting with the and even speeches, debates and questions answers from both sides in the legislature itself. They keep in view the past and also future and present the solution for present running and current situation. Every minute that passes is thus entering into past history of legislation and future is unfolding it via present. Hence it is a constant process that needs constant vigilance and working. Of course human oriented laws are according to human limitations and those are to be judged by human standards. Perfection is divine. Hence divine laws are perfect ant have their own performance. Those are permanent guides for whole mankind for all times. The more a human oriented or man made law conforms to the law divine it will have in it a reflection of those merits and good qualities. We are fortunate that we have Holy Quran and Sunnah and while make our laws we are by our own Constitution obliged not to legislate any law or provision of law is repugnant to them a full competent machinery has been provided by the Constitution  in Chapter 3A titled as the Federal Sheriat Court. Section 203 D mentions the powers, jurisdictions and functions of this Court as under:-

(1)                The may either or its own motion or on the petition of a citizen of Pakistan or the Federal Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah of Holy Prophet (Peace and blessings of Allah be upon him), herein after referred as the Injunctions of Islam.

(2)                (1A) Where the court takes upto the examination of any law or provision of law under clause (1) and such law or provision of law appears it to be repugnant to the Injunction of Islam, the Court shall cause to be given the Federal Government in the case of a law with respect to a matter in the Federal Legislative List, or to the Provincial Government in the case of a law with respect to a matter not enumerated in either of those Lists, a notice specifying the particular provisions that appear to it to be so repugnant, and afford to such Government adequate opportunity to have its point of view placed before the court.

(2)        If the Court decided that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision: (a) reasons for its holding that opinion; and (b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take no effect:

Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal there from may be preferred to the Supreme Court, or, where an appeal has been so preferred, before the disposal of such appeal.

(3)        If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam,

the President in case of law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the injunction of Islam; and

such law or provision of law, shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.

How laws are validated?

Chapter 7 of the Constitution is on the subject of “Transitional”. It has the following articles:

Article 267. Power to president to remove difficulties.

Article 268. Continuance in force, and adaptation of, certain law.

Article 269. Validation of Laws, Act, etc.

Article 270. Temporary Validation of certain laws etc.

Article 270-A. Validation of Presidents Orders etc.

270AA. Validation and Affirmation of laws etc.

(1)                The proclamation of Emergency of the fourteenth day of the October 1999, all president’s orders, Ordinances, Chief Executive’s orders, including the provincial Constitution  order No.1 of 1999, the Oath or Office (Judges) order, 200 (No.1 of the 2000), Chief Executive Order No.12 of 2002, the amendments made in the Constitution through the Legal Framework (Second Amendment) Order, 2002 (CEO NO.32 of 2002) and all other laws made between the 12^th day of October, 1999 and the date on which this article comes into force (both days inclusive) having been duly made or accordingly affirmed, adopted, and declared to have validly made by the competent authority and not withstanding anything contained in the Constitution shall be called in question in any Court or forum or any ground whatsoever.

(2)                All orders made, proceedings taken, appointments made, including secondments and deputations, and act done by any authority, or by any person, which were made, taken or done, or purported to have made, taken or done, between the 12^th of the October 1999 and the date on which this Article comes into force (both days inclusive), in exercise of the powers derived form any proclamation, president’s orders, ordinances, Chief Executive’s Orders, enactments, including amendments in the constitution notifications, rules, orders, bye laws or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court or forum on any ground whatsoever.

(3)                All proclamation, president’s orders, ordinances, Chief Executive’s Orders, laws, regulations, enactments including amendments in the Constitution notifications, rules, orders or bye laws in force shall continue in force, until altered, repealed or amended by the competent authority.

Explanation: In this clause, competent authority means; -

(a) in respect of President’s Orders, Ordinances, Chief Executive’s Orders, laws, regulations, enactments including amendments in the Constitution, the appropriate legislature; and (b) in respect of notifications, rules, orders, bye laws, the authority in which power to make alter, repeal or amend the same vests under the law.

(4)                No suit, prosecution or other legal proceedins, including writ petitions, shall lie in any court or forum against any authority or any person, for or account of or in respect of any order made, proceedings taken, or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.

(5)                For the purposes of clauses (1), (2) and (4) all orders made, proceedings taken, appointments made, including secondments and deputation, act done or purporting to be made, taken or done by any authority or person shall be made to have been made, taken or done in good faith and for the purpose intended to be served thereby. (Constitution  of Islamic Republic of Pakistan, 1973 as amended upto date, article 270AA was substituted by Constitution of (Seventeenth Amendment) Act III of 2003, dated 31.12.2003.

HISTORY OF THIS LAW?.

What is Preamble?

A preamble is an introduction or a preface to an enactment stated by the law maker itself. It is always restricted to the preface of a statute where the framers in a succinct way define their intent and explain the mischief to be remedied. It is undoubtedly a part of enactment and may be fixed to explain it.

When a Preamble is to be used?

A preamble becomes useful when the enacting part of a statute is ambiguous. At such juncture resort may be had to the Preamble for assistance in the ascertainment of the statute’s meaning. Where meanings of an enactment are unambiguous, clear and explicit, those cannot be affected by the preamble. A preamble is not to enlarge the scope of the enactment, n or to contradict a clear intent of the legislature.

Administration of Justice.

Act of Court should not prejudice anyone. Judge would be supposed to decide case not on basis of his personal feelings, likeness or dis likeness, but on basis of evidence available on record, in accordance with principle of law applicable to the facts of case and after applying its independent mind.

]]> http://www.pakistanlaw.net/law-articles/law-definition/what-is-law/feed/ 1 http://www.pakistanlaw.net/law-articles/law-definition/international-human-rights/ http://www.pakistanlaw.net/law-articles/law-definition/international-human-rights/#comments Tue, 31 Aug 2010 06:08:06 +0000 Bilal Sarwari http://www.pakistanlaw.net/?p=2768 By:
REHAN RAUF ADVOCATE
M.A. (Political Science)
M.A (History)
P.G.D.E.L., LL.B (Punjab University)
E-mail: DJREHAN103FM@YAHOO.COM

1.      PRELIMINARY NOTE

Human rights are sometimes called fundamental rights or basic or natural Rights. Fundamental or basic rights are those, which must not be taken away by any legislature, or any act of government and which are often set out in Constitution. Human rights refer to the “basic rights and freedoms to which all humans are entitled.” Examples of rights and freedoms which are often thought of as human rights include civil and political rights, such as the right to life and liberty, freedom of expression, and equality before the law; and social, cultural and economic rights, including the right to participate in culture, the right to food, the right to work, and the right to education.

The Magna Charta or “Great Charter” was one of England’s first documents containing commitments by a sovereign to his people to respect certain legal rights. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”

2.      Views of philosophers about human rights

• J, E.S Fawcett, The law of nations (London, 1968) P, 151

“Human Rights are common rights, for they are rights which men or women in the world should share”

• Lauterpacht. International law and human rights, P. 152

“Human Rights are not created by any legislation, they assume the position of natural rights”

• MC Dougal. Human rights in the United Nations, Vol.56 (1964), P.604

“International concern with human rights is not a modern innovation. It is in fact, heir to all great historic movements for man’s freedom”.

1. 3. HISTORY OF HUMAN RIGHTS

This history of human rights covers thousands of years and draws upon religious, cultural, philosophical and legal developments throughout recorded history. Several ancient documents and later religions and philosophies included a variety of concepts that may be considered to be human rights. Notable among such documents are the Cyrus cylinder of 539 BC, a declaration of intentions by the Persian emperor Cyrus the Great after his conquest of the Neo-Babylonian Empire; the Edicts of Ashoka issued by Ashoka the Great of India between 272-231 BC; and

• The Constitution of Medina of 622 AD, drafted by Muhammad to mark a formal agreement between all of the significant tribes and families of Yathrib (later known as Medina), including Muslims, Jews and Pagans.
• The English Magna Charta of 1215 is particularly significant in the history of English law, and is hence significant in international law and constitutional law today.
• Declaration of the Rights of Man and of the Citizen approved by the National Assembly of France, August 26, 1789

Much of modern human rights law and the basis of most modern interpretations of human rights can be traced back to relatively recent history. The British Bill of Rights (or “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown”) of 1689 made illegal a range of oppressive governmental actions in the United Kingdom. Two major revolutions occurred during the 18th century, in the United States (1776) and in France (1789), leading to the adoption of the United States Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen respectively, both of which established certain rights. Additionally, the Virginia Declaration of Rights of 1776 set up a number of fundamental rights and freedoms.

4.      U.N CHARTER AND HUMAN RIGHTS:

The charter of united nation represents a significant advancement so far as faith in and respect, for human rights is concerned.

Views of philosophers

• Philip E.Jacob. “The united nations and struggle for HR” (January 1951), P.220

“All the organs of UN touch in greater or less degree upon the subject of Human Rights

• Humphrey. “The international Protection of Human Rights (London 1967)

“The provisions concerning human rights run through out the UN. Charter like a golden thread”

1. 5. PROVISIONS OF THE UN CHARTER CONCERNING HUMAN RIGHTS

There are following references in the preamble of UN charter;

Art 13 Purposes of UN

Art 13 (2) responsibilities of general assembly

Art 55 (c) functions of ECOSOC

Art 62 (2) responsibility of ECOSOC’s Commission

Art 68 objectives of the trusteeship system

Views of philosophers

• Ian brow lie, Principles of public international law (second edition, 1973). P 552

“The provisions of UN. Charter concerning human rights provides a foundation for protection of human rights.”

• Oppenheim, International law. Vol eighth edition (1970), edited by lauterpatch, P.783

“The provisions of UN Charter indicates the wide possibilities of the international recognition of human rights.”

6.         HUMAN RIGHT COMMISSION

The commission on human rights established by the Economic and Social Council in February 1946

Purpose of HRC

• Ian brow lie, Principles of public international law (second edition, 1973). P 554

“The purpose of Human Right Commission is protection of human rights”

7.         CATEGORIES OF HUMAN RIGHTS

There are following categories of rights;

v             Civil and Political Rights

v             Economic, Social and Cultural Rights

v             Environmental Rights

v             Reproductive Rights

8.         UNIVERSAL DECLARATION OF HUMAN RIGHTS

The Universal Declaration of Human Rights was adopted by General Assembly on 1948. This Declaration consists of a preamble and 30 articles.”It is not a treaty. In the future, it may well become the international Magna Charta.”

The Universal Declaration of Human Rights (UDHR) is a non-binding declaration adopted by the United Nations General Assembly in 1948, partly in response to the atrocities of World War II. Although the UDHR is a non-binding resolution, it is now considered to be a central component of international customary law which may be invoked under appropriate circumstances by national and other judiciaries. The UDHR urges member nations to promote a number of human, civil, economic and social rights, asserting these rights are part of the “foundation of freedom, justice and peace in the world.” The declaration was the first international legal effort to limit the behavior of states and press upon them duties to their citizens following the model of the rights-duty duality.

1. 9. HUMAN RIGHTS

Following are a few International Human Rights mentioned in Universal Declaration of Human rights with relevant Provisions/Articles.

1. Right to life and liberty                        Art 3
2. Prohibition of slavery                          Art 4
3. Prohibition of torture                           Art 5
4. Equality of all                                     Art 6-11
5. Freedom of movement                        Art 13
6. Rights to seek asylum                         Art 14
7. Right to nationality                              Art 15
8. Right to own property                         Art 17
9. Freedom of religion                            Art 18
10. Freedom of opinion                             Art 19
11. Freedom of Association                      Art 20
12. Right to social security                        Art 22
13. Right to employment                           Art 23
14. Right to education                              Art 26

10.              CONVENTION OF WORLD-WIDE CHARTER

Followings are a few conventions relating to protection of international human rights.

v             Employment policy convention 1964

v             Convention on forced labor 1957

v             Collective bargaining convention 1949

v             Convention relating to status of refugee 1951

v             Equal remuneration convention 1951

v             Convention on political rights of women 1952

v             Convention relating to stateless person 1954

v             Others.

1. REGIONAL CONVENTION

At regional level there exists a European Convention on protection of human rights.

12.              AMERICAN CONVENTION ON HUMAN RIGHTS 1969

This convention was signed at the inter-American specialized conference on human rights at San Joe, Costa Rica, on 22^nd November, 1969. This convention is also relating to the protection of human right.

1. 13. GENEVA CONVENTIONS

The Geneva Conventions came into being between 1864 and 1949 as a result of efforts by Henry Dunant, the founder of the International Committee of the Red Cross. The conventions safeguard the human rights of individuals involved in armed conflict, and build on the 1899 and 1907 Hague Conventions, the international community’s first attempt to formalize the laws of war and war crimes in the nascent body of secular international law. The conventions were revised as a result of World War II and readopted by the international community in 1949.

The Geneva Conventions are:

v             First Geneva Convention “for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field” (first adopted in 1864, last revision in 1949)

v             Second Geneva Convention “for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea” (first adopted in 1949, successor of the 1907 Hague Convention X)

v             Third Geneva Convention “relative to the Treatment of Prisoners of War” (first adopted in 1929, last revision in 1949)

v             Fourth Geneva Convention “relative to the Protection of Civilian Persons in Time of War” (first adopted in 1949, based on parts of the 1907 Hague Convention IV)

In addition, there are three additional amendment protocols to the Geneva Convention:

• Protocol I (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. As of 12 January 2007, 167 countries had ratified it.
• Protocol II (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts. As of 12 January 2007, 163 countries had ratified it.
• Protocol III (2005): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem. As of June 2007 it had been ratified by 17 countries and signed but not yet ratified by an additional 68 countries.

All four conventions were last revised and ratified in 1949, based on previous revisions and partly on some of the 1907 Hague Conventions. Later conferences have added provisions prohibiting certain methods of warfare and addressing issues of civil wars. Nearly all-200 countries of the world are “signatory” nations, in that they have ratified these conventions. The International Committee of the Red Cross is the controlling body of the Geneva conventions.

1. 14. INTERNATIONAL HUMAN RIGHTS LAW

Human rights law is a system of laws, both domestic and international, designed to promote human rights. Human rights law includes a number of treaties, which are intended to punish some violations of human rights such as war crimes, crimes against humanity and genocide. There are also a number of international courts, which have been constituted to judge violations of human rights including the European Court of Human Rights and the International Criminal Court.

An important concept within human rights law is that of universal jurisdiction. This concept, which is not widely accepted, is that any nation is authorized to prosecute and punish violations of human rights wherever and whenever they may have occurred.

1. 15. HUMAN RIGHTS TREATIES

In 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted by the United Nations, between them making the rights contained in the UDHR binding on all states that have signed this treaty. However they only came into force in 1976 when they were ratified by a sufficient number of countries (despite achieving the ICCPR, a covenant including no economic or social rights, the US only ratified the ICCPR in 1992). The ICESCR commits 155 state parties to work toward the granting of economic, social, and cultural rights (ESCR) to individuals.

Since then numerous other treaties (pieces of legislation) have been offered at the international level. They are generally known as human rights instruments. Some of the most significant are:

1. Convention on the Prevention and Punishment of the Crime of Genocide (adopted 1948, entry into force: 1951)

2. Convention on the Elimination of All Forms of Racial Discrimination (CERD) (adopted 1966, entry into force: 1969)

3. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (entry into force: 1981)

4. United Nations Convention Against Torture (CAT) (adopted 1984, entry into force: 1984)

5. Convention on the Rights of the Child (CRC) (adopted 1989, entry into force: 1989)

6. International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) (adopted 1990)

7. Rome Statute of the International Criminal Court (ICC) (entry into force: 2002)

1. 16. ENFORCEMENT OF HUMAN RIGHTS LAW

By international law, the United Nations Security Council is the only group authorized to enforce human rights laws. Historically, it has often been the case that a government will make claims of human rights violations in another country as a reason to go to war against that country.

17.              THE UNITED NATIONS

The United Nations (UN) is the only multilateral governmental agency with universally accepted international jurisdiction for universal human rights legislation. All UN organs have advisory roles to the United Nations Security Council and the United Nations Human Rights Council, and there are numerous committees within the UN with responsibilities for safeguarding different human rights treaties. The most senior body of the UN with regard to human rights is the Office of the High Commissioner for Human Rights. The United Nations has an international mandate to: achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.

1. 18. HUMAN RIGHTS COUNCIL

The United Nations Human Rights Council, created at the 2005 World Summit to replace the United Nations Commission on Human Rights, has a mandate to investigate violations of human rights. The Human Rights Council is a subsidiary body of the General Assembly and reports directly to it. It ranks below the Security Council, which is the final authority for the interpretation of the United Nations Charter. Forty-seven of the one hundred ninety-one member states sit on the council, elected by simple majority in a secret ballot of the United Nations General Assembly. Members serve a maximum of six years and may have their membership suspended for gross human rights abuses. The Council is based in Geneva, and meets three times a year; with additional meetings to respond to urgent situations.

Independent experts are retained by the Council to investigate alleged human rights abuses and to provide the Council with reports. The Human Rights Council may request that the Security Council take action when human rights violations occur. This action may be direct actions, may involve sanctions, and the Security Council may also refer cases to the International Criminal Court (ICC) even if the issue being referred is outside the normal jurisdiction of the ICC.

1. SECURITY COUNCIL

The United Nations Security Council has the primary responsibility for maintaining international peace and security and is the only body of the UN that can authorize the use of force (including in the context of peace-keeping operations), or override member nations sovereignty by issuing binding Security Council resolutions. Created by the UN Charter, it is classed as a Charter Body of the United Nations. The UN Charter gives the Security Council the power to:

• Investigate any situation threatening international peace;
• Recommend procedures for peaceful resolution of a dispute;
• Call upon other member nations to completely or partially interrupt economic relations as well as sea, air, postal, and radio communications, or to sever diplomatic relations; and
• Enforce its decisions militarily, if necessary.

The Security Council hears reports from all organs of the United Nations, and can take action over any issue, which it feels threatens peace and security, including human rights issues. It has at times been criticized for failing to take action to prevent human rights abuses, including the Darfur crisis, the Srebrenica massacre and the Rwandan Genocide.

The Rome Statute of the International Criminal Court recognizes the Security Council the power to refer cases to the Court, where the Court could not otherwise exercise jurisdiction.

1. 20. OTHER UN TREATY BODIES

A modern interpretation of the original Declaration of Human Rights was made in the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in 1993. The degree of unanimity over these conventions, in terms of how many and which countries have ratified them varies, as does the degree to which they are respected by various states. The UN has set up a number of treaty-based bodies to monitor and study human rights, under the leadership of the UN High Commissioner for Human Rights (UNHCHR). The bodies are committees of independent experts that monitor implementation of the core international human rights treaties. The treaty that they monitor creates them.

The Human Rights Committee promotes participation with the standards of the ICCPR. The eighteen members of the committee express opinions on member countries and make judgments on individual complaints against countries, which have ratified the treaty. The judgments are not legally binding.

The Committee on Economic, Cultural and Social Rights monitors the ICESCR and makes general comments on ratifying countries performance. It does not have the power to receive complaints.

The Committee on the Elimination of Racial Discrimination monitors the CERD and conducts regular reviews of countries’ performance. It can make judgments on complaints, but these are not legally binding. It issues warnings to attempt to prevent serious contraventions of the convention.

The Committee on the Elimination of Discrimination against Women monitors the CEDAW. It receives states’ reports on their performance and comments on them, and can make judgments on complaints against countries, which have opted into the 1999 Optional Protocol.

The Committee Against Torture monitors the CAT and receives states’ reports on their performance every four years and comments on them. It may visit and inspect individual countries with their consent.

The Committee on the Rights of the Child monitors the CRC and makes comments on reports submitted by states every five years. It does not have the power to receive complaints.

The Committee on Migrant Workers was established in 2004 and monitors the ICRMW and makes comments on reports submitted by states every five years. It will have the power to receive complaints of specific violations only once ten member states allow it.

Each treaty body receives secretariat support from the Treaties and Commission Branch of Office of the High Commissioner on Human Rights (OHCHR) in Geneva except CEDAW, which is supported by the Division for the Advancement of Women (DAW). CEDAW meets at United Nations headquarters in New York; the other treaty bodies generally meet at the United Nations Office in Geneva. The Human Rights Committee usually holds its March session in New York City.

1. 21. INTERNATIONAL COMMITTEE OF THE RED CROSS

Under the 1949 Geneva Conventions the International Committee of the Red Cross (ICRC) has legal status as a non-governmental sovereign entity. It has a mandate to be the controlling authority of International Humanitarian Law.  The International Committee of the Red Cross (ICRC) is an impartial, neutral, and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of war and internal violence and to provide them with assistance.”

MISSION OF ICRC

The ICRC directs and coordinates international relief and works to promote and strengthen humanitarian law and universal humanitarian principles. The core tasks of the Committee, which are derived from the Geneva Conventions and its own statutes, are the following:

• To monitor compliance of warring parties with the Geneva Conventions
• To organize nursing and care for those who are wounded on the battlefield
• To supervise the treatment of prisoners of war and make confidential interventions with detaining authorities
• To help with the search for missing persons in an armed conflict (tracing service)
• To organize protection and care for civil populations
• To act as a neutral intermediary between warring parties

The ICRC drew up seven fundamental principles in 1965 that were adopted by the entire Red Cross Movement. They are humanity, impartiality, neutrality, independence, volunteerism, unity, and universality.

Although the ICRC has no powers to enforce the rights enshrined in the Geneva Conventions, its statements carry significant force, and few countries or warring parties deny the ICRC access to the individuals it exists to protect. Doing so has a significant effect on public opinion and international standing and can be taken as an implicit admission of wrongdoing. The initial refusal of the United States to admit the ICRC to its detention facility at Guantanamo Bay drew considerable international condemnation.

22.              REGIONAL HUMAN RIGHT

There are many regional agreements and organizations promoting and governing human rights.

23.              AFRICA

The African Union (AU) is a supranational union consisting of fifty-three African states. Established in 2001, the AU purpose is to help secure Africa’s democracy, human rights, and a sustainable economy, especially by bringing an end to intra-African conflict and creating an effective common market.

The African Commission on Human and Peoples’ Rights (ACHPR) is a quasi-judicial organ of the African Union tasked with promoting and protecting human rights and collective (peoples’) rights throughout the African continent as well as interpreting the African Charter on Human and Peoples’ Rights and considering individual complaints of violations of the Charter. The Commission has three broad areas of responsibility:

• Promoting human and peoples’ rights
• Protecting human and peoples’ rights
• Interpreting the African Charter on Human and Peoples’ Rights

In pursuit of these goals, the Commission is mandated to “collect documents, undertake studies and researches on African problems in the field of human and peoples, rights, organize seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples’ rights and, should the case arise, give its views or make recommendations to governments” (Charter, Art. 45).

With the creation of the African Court on Human and Peoples’ Rights (under a protocol to the Charter which was adopted in 1998 and entered into force in January 2004), the Commission will have the additional task of preparing cases for submission to the Court’s jurisdiction. In a July 2004 decision, the AU Assembly resolved that the future Court on Human and Peoples’ Rights would be integrated with the African Court of Justice.

The Court of Justice of the African Union is intended to be the “principal judicial organ of the Union” (Protocol of the Court of Justice of the African Union, Article 2.2). Although it has not yet been established, it is intended to take over the duties of the African Commission on Human and Peoples’ Rights, as well as act as the Supreme Court of the African Union, interpreting all necessary laws and treaties. The Protocol establishing the African Court on Human and Peoples’ Rights entered into force in January 2004 but it’s merging with the Court of Justice has delayed its establishment. The Protocol establishing the Court of Justice will come into force when ratified by 15 countries.

24.              AMERICA

The Organization of American States (OAS) is an international organization, headquartered in Washington, D.C., United States. Its members are the thirty-five independent states of the Americas. Over the course of the 1990s, with the end of the Cold War, the return to democracy in Latin America, and the thrust toward globalization, the OAS made major efforts to reinvent itself to fit the new context. Its stated priorities now include the following:

v             Strengthening democracy

v             Working for peace

v             Protecting human rights

v             Combating corruption

v             The rights of Indigenous Peoples

v             Promoting sustainable development

The Inter-American Commission on Human Rights (the IACHR) is an autonomous organ of the Organization of American States, also based in Washington, D.C. Along with the Inter-American Court of Human Rights, based in San José, Costa Rica; it is one of the bodies that comprise the inter-American system for the promotion and protection of human rights. The IACHR is a permanent body which meets in regular and special sessions several times a year to examine allegations of human rights violations in the hemisphere. Its human rights duties stem from three documents:

• The OAS Charter
• The American Declaration of the Rights and Duties of Man
• The American Convention on Human Rights

The Inter-American Court of Human Rights was established in 1979 with the purpose of enforcing and interpreting the provisions of the American Convention on Human Rights. Its two main functions are thus adjudicatory and advisory. Under the former, it hears and rules on the specific cases of human rights violations referred to it. Under the latter, it issues opinions on matters of legal interpretation brought to its attention by other OAS bodies or member states.

Many countries in the Americas, such as the United States, Colombia, Cuba, and Venezuela, have been accused of human rights violations.

25.              ASIA

There are no Asia-wide organizations or conventions to promote or protect human rights. Countries vary widely in their approach to human rights and their record of human rights protection.

The Association of Southeast Asian Nations (ASEAN) is a geo-political and economic organization of 10 countries located in Southeast Asia, which was formed in 1967 by Indonesia, Malaysia, the Philippines, Singapore and Thailand. The organization now also includes Brunei, Vietnam, Laos, Myanmar and Cambodia. Its aims include the acceleration of economic growth, social progress, cultural development among its members, and the promotion of regional peace.

The South Asian Association for Regional Cooperation (SAARC) is an economic and political organization of eight countries in Southern Asia, representing almost 1.5 billion people. It was established in 1985 by India, Pakistan, Bangladesh, Sri Lanka, Nepal, Maldives and Bhutan. In April 2007, at the Association’s 14th summit, Afghanistan became its eighth member.

The Cooperation Council for the Arab States of the Gulf (CCASG) is a trade bloc involving the six Arab states of the Persian Gulf, with many economic and social objectives. Created in 1981, the Council comprises the Persian Gulf states of Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates.

The Asia Cooperation Dialogue (ACD) is a body created in 2002 to promote Asian cooperation at a continental level, helping to integrate the previously separate regional organizations of political or economical cooperation. The main objectives of the ACD are as follows:

v             To promote interdependence among Asian countries in all areas of cooperation by identifying Asia’s common strengths and opportunities which will help reduce poverty and improve the quality of life for Asian people whilst developing a knowledge-based society within Asia and enhancing community and people empowerment;

v             To expand the trade and financial market within Asia and increase the bargaining power of Asian countries in lieu of competition and, in turn, enhance Asia’s economic competitiveness in the global market;

v             To serve as the missing link in Asian cooperation by building upon Asia’s potentials and strengths through supplementing and complementing existing cooperative frameworks so as to become a viable partner for other regions;

v             To ultimately transform the Asian continent into an Asian Community, capable of interacting with the rest of the world on a more equal footing and contributing more positively towards mutual peace and prosperity.

v             None of the above organizations have a specific mandate to promote or protect human rights, but each has some human rights related economic, social and cultural objectives.

v             A number of Asian countries are accused of serious human rights abuses by the international community and human rights organizations.

26.              EUROPE

The Council of Europe, founded in 1949, is the oldest organization working for European integration. It is an international organization with legal personality recognized under public international law and has observer status with the United Nations. The seat of the Council of Europe is in Strasbourg in France. The Council of Europe is responsible for both the European Convention on Human Rights and the European Court of Human Rights. These institutions bind the Council’s members to a code of human rights which, though strict, are more lenient than those of the United Nations charter on human rights. The Council also promotes the European Charter for Regional or Minority Languages and the European Social Charter. Membership is open to all European states, which seek European integration, accept the principle of the rule of law and are able and willing to guarantee democracy, fundamental human rights and freedoms.

The Council of Europe is separate from the European Union, but the latter is expected to accede to the European Convention and potentially the Council itself. The EU also has a separate human rights document; the Charter of Fundamental Rights of the European Union.

The European Convention on Human Rights defines and guarantees since 1950 human rights and fundamental freedoms in Europe. All 47 member states of the Council of Europe have signed this Convention and are therefore under the jurisdiction of the European Court of Human Rights in Strasbourg. In order to prevent torture and inhuman or degrading treatment (Article 3 of the Convention), the Committee for the Prevention of Torture was established.

The European Court of Human Rights is the only international court with jurisdiction to deal with cases brought by individuals (rather than states).

27.              AUSTRALIA

There are no regional approaches or agreements on human rights for Oceania, but most countries have a well-regarded human rights record.

Australia is the only western democracy with no constitutional or legislative bill of rights, but a number of laws have been enacted to protect human rights and the Constitution of Australia has been found to contain certain implied rights by the High Court. However, Australia has been criticized at various times for its immigration policies, treatment of asylum seekers, treatment of its indigenous population, and foreign policy.

28.              PHILOSOPHIES OF HUMAN RIGHTS

v             Animal rights

v             Children’s rights

v             Civil rights

v             Collective rights

v             Equal rights

v             Fathers’ rights

v             Gay rights

v             Group rights

v             Human rights

v             Inalienable rights

v             Individual rights

v             Legal rights

v             Men’s rights

v             Natural right

v             Negative & positive

v             Reproductive rights

v             Self-defense

v             Social rights

v             “Three generations”

v             Women’s rights

v             Workers’ rights

v             Youth rights

Several theoretical approaches have been advanced to explain how and why human rights become part of social expectations.

One of the oldest Western philosophies on human rights is that they are a product of a natural law, stemming from different philosophical or religious grounds.

Other theories hold that human rights codify moral behavior which is a human social product developed by a process of biological and social evolution (associated with Hume). Human rights are also described as a sociological pattern of rule setting (as in the sociological theory of law and the work of Weber). These approaches include the notion that individuals in a society accept rules from legitimate authority in exchange for security and economic advantage a social contract.

1. 29. NATURAL RIGHTS

Natural law theories base human rights on a “natural” moral, religious or even biological order that is independent of transitory human laws or traditions.

Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or natural right (Latin jus naturale). Of these, Aristotle is often said to be the father of natural law, although evidence for this is due largely to the interpretations of his work by Thomas Aquinas. The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics.

Some of the early Church Fathers sought to incorporate the pagan concept of natural law into Christianity. Natural law theories have featured greatly in the philosophies of Thomas Aquinas, Francisco Suarez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, and John Locke.

The term “human rights” has replaced the term “natural rights” in popularity, because the rights are less and less frequently seen as requiring natural law for their existence.

30.              STATE AND NON-STATE ACTORS

Companies, NGOs, political parties, informal groups, and individuals are known as non-State actors. Non-State actors can also commit human rights abuses, but are not generally subject to human rights law other than under International Humanitarian Law, which applies to individuals. Also, certain national instruments such as the Human Rights Act 1998 (UK), impose human rights obligations on certain entities which are not traditionally considered as part of government.

Multi-national companies play an increasingly large role in the world, and are responsible for a large number of human rights abuses. Although the legal and moral environment surrounding the actions of governments is reasonably well developed, that surrounding multi-national companies is both controversial and ill-defined. Multi-national companies’ primary responsibility is to their shareholders, not to those affected by their actions. Such companies may be larger than the economies of some the states within which they operate, and can wield significant economic and political power. No international treaties exist to specifically cover the behavior of companies with regard to human rights, and national legislation is very variable. Jean Ziegler, Special Reporter of the UN Commission on Human Rights on the right to food stated in a report in 2003:“the growing power of transnational corporations and their extension of power through privatization, deregulation and the rolling back of the State also mean that it is now time to develop binding legal norms that hold corporations to human rights standards and circumscribe potential abuses of their position of power.”

31.              HUMAN RIGHTS VIOLATIONS

Human rights violations occur when any state or non-state actor breaches any part of the UDHR treaty or other international human rights or humanitarian law. In regard to human rights violations of United Nations laws. Article 39 of the United Nations Charter designates the UN Security Council (or an appointed authority) as the only tribunal that may determine UN human rights violations.

Human rights abuses are monitored by United Nations committees, national institutions and governments and by many independent non-governmental organizations, such as Amnesty International, Human Rights Watch, World Organization Against Torture, Freedom House, International Freedom of Expression Exchange and Anti-Slavery International. These organizations collect evidence and documentation of alleged human rights abuses and apply pressure to enforce human rights laws.

Only a very few countries do not commit significant human rights violations, according to Amnesty International. In their 2004 human rights report (covering 2003), the Netherlands, Norway, Denmark, Iceland and Costa Rica are the only countries that did not (in their opinion) violate at least some human rights significantly.

There are a wide variety of databases available, which attempt to measure, in a rigorous fashion, exactly what violations governments commit against those within their territorial jurisdiction. An example of this is the list created and maintained by Prof. Christian Davenport at the University of Maryland.

32.               WATER

There is no current universal human right to water, binding or not, enshrined by the United Nations or any other multilateral body. In November 2002, the United Nations Committee on Economic, Social and Cultural Rights issued a non-binding comment affirming that access to water was a human right: “the human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights.”

United Nations Committee on Economic, Social and Cultural Rights This principle was reaffirmed at the 3rd and 4th World Water Councils in 2003 and 2006. This marks a departure from the conclusions of the 2nd World Water Forum in The Hague in 2000, which stated that water was a commodity to be bought and sold, not a right. There are calls from many NGOs and politicians to enshrine access to water as a binding human right, and not as a commodity.

1. 33. FETAL RIGHTS

Proposed rights of the fetus have been a controversial subject. Currently, human rights only apply to individuals. Pro-life and pro-choice groups dispute the point at which a fetus is considered to be an individual in particular. Those who are pro-life believe that an individual’s life begins at the moment of conception, or at the time of implantation, and therefore believe that the fetus has equal rights to any other person. Others, including many pro-choice groups, argue that until the point at which the fetus is viable (or could survive alone), typically marked somewhere within the third trimester, the rights of the fetus are secondary to and dependent upon those of the mother.

34.              ENVIRONMENTAL RIGHTS

The onset of global warming and a heightened knowledge of environmentalism has created potential conflicts between different human rights. Human rights ultimately require a working ecosystem and healthy environment, but the granting of certain rights to individuals may damage these. In the area of environmental rights, the responsibilities of multi-national corporations, so far relatively undressed by human rights legislation, is of paramount consideration.

35.              FUTURE RIGHTS

Future technological advances, such as the possibility of mass space travel, the advances in the internet and the possibility of access to huge amounts of information, and others, all raise the possibility of new rights.

In Britain of late, reformers have demanded a new Supreme Court-enforceable Bill of Rights to protect a much wider range of economic, political, judicial, communication, and personal rights and freedoms than are currently protected under basic law.

1. Epitome

Human rights are seen as belonging to men and women by their very nature. Another way to describe human rights would be to call them common rights, for they are rights which all men or women in the world should share. The element of human rights is also found in the United States Declaration of Independence, 1776 which says “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”

37.              REFERENCES

v             Amnesty International (2004). Amnesty International Report. Amnesty International Publications. ISBN 0862103541 ISBN 1-887204-40-7

v             Alexander, Fran (ed) (1998). Encyclopedia of World History. Oxford University Press. ISBN 0198602235

v             Alston, Philip (2005). “Ships passing in the Night: The Current State of the Human Rights and Development Debate seen through the Lens of the Millennium Development Goals”. Human Rights Quarterly. Vol. 27 (No. 3) p.807

v             Arnhart, Larry (1998). Darwinian Natural Right: The Biological Ethics of Human Nature SUNY Press. ISBN 0791436934

v             Ball, Olivia; Gready, Paul (2007). The No-Nonsense Guide to Human Rights. New Internationalist. ISBN 1-904456-45-6

v             Barzilai, Gad. (2003). Communities and Law: Politics and Cultures of Legal Identities. Ann Arbor: University of Michigan Press. ISBN 0472113151

v             Chauhan, O.P. (2004). Human Rights: Promotion and Protection. Anmol Publications PVT. LTD. ISBN 812612119X.

v             Cook, Rebecca J.; Fathalla, Mahmoud F. (September 1996). “Advancing Reproductive Rights Beyond Cairo and Beijing”. International Family Planning Perspectives Vol.22 (No.3): p.115-121

v             Davenport, Christian (2007a). State Repression and the Domestic Democratic Peace. New York: Cambridge University Press. ISBN 0521864909

v             Davenport, Christian (2007b). State Repression and Political Order. Annual Review of Political Science.