Lahore University of Management Sciences. SS 3336/POL Constitutional Governance: Theory & Practice in Pakistan Fall

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1 SS 3336/POL Constitutional Governance: Theory & Practice in Pakistan Fall Instructor Room No. Justice Jawad S. Khawaja jawwad@lums.edu.pk Course Basics Credit Hours 4 Course Distribution Core Elective Open for Student Category No Yes COURSE DESCRIPTION Why do people obey the law? What is good governance and how can this be achieved? What role do courts, specifically the Supreme Court, play in our constitutional politics? What role can they play? Can they be effective? How does a judge resolve these questions? This course broadly speaking will attempt to address these and other related questions. After establishing the theoretical framework in the initial sessions, the class will meet once each week to discuss in a seminar style key issues arising in Pakistan s recent history. The class will have the opportunity to discuss and exchange views with participants from a broad range of disciplines including social sciences, science, law, and business, among others. In approaching the subject of constitutional governance, the course will focus on the administrative state. Each week students will consider a separate component of the administrative state s machinery such as the bureaucracy, the army, Parliament, the media and so forth. Each session will look at how the Supreme Court has interacted with other such institutional actors and what change, if any, has been brought in its operations. People in Pakistan often give varying explanations for the present state of governance in the country. Some will argue that our laws are outdated and provide a decontextualized

2 system of governance which locals find difficult to accept. Some will blame the government for weak enforcement. And some will simply target the extensive delays and inefficiencies in our system for redressing grievances. The list of explanations goes on and includes the wider socio-economic conditions in the country such as lack of education, lack of openness/transparency, military interventions, foreign influences and so forth. There is no clear answer. However, there is little disagreement on the fact that there is huge gap between the letter (and spirit) of the law and its actual enforcement. This course will examine this gap in Pakistan or what scholars typically refer to as the difference between the large C constitution and the small c constitution. In essence, students will be provided an opportunity to explore in detail the policy alternatives before the different organs the state and the judiciary in these various cases and the possible rationale which was driving judges at the time. Assigned course work may include news articles/reports, case extracts, movies, and documentaries. Grading Breakup and Policy Instrument Weightage (%) Class participation 10% Attendance 10% Quizzes 15% Assignments 25% Final exam 40% Course Outline: Session Theme Readings 1. Introduction to theoretical framework a. Babar: Big C small c Constitution. Mirza, Sultan Babar, The Chaudhry Doctrine: A Small C Constitutional Perspective, in Politics & Jurisprudence of the Chaudhry Court ( ) (Moeen Cheema & Ijaz Gilani eds., Oxford University Press, 2015), pages (till the Civil Executive and the Politicians) b. Examples: clips, newspaper c. Inclusivity: 1 st Jinnah Lecture d. Federalist N-78: Extract.

3 2. Sovereignty of Parliament & Role of Courts 3. The Notions Legitimacy a. British & Pakistan Constitutions: History of Colonial Administration b. Military Courts: Following extracts from the Military Courts Judgement: 1. Opinion of Justice Mulk, Para 4-5, and Opinion of Justice Khawaja, Para 6-21, 40-44, and a. Tom R. Tyler Why people obey the Law b. Extracts from the Federalist No 78. c. Article 190 and Constraints. d. Yusaf Raja Gilani Case. Criminal Original Petition 6 of 2012 in SMC no 04 of 2010 e. Elizabeth Kolsky: Extracts 4. Independence of Judiciary a. AL-JEHAD TRUST through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi v Federation of Pakistan (Constitutional Petition No.29 and Civil Appeal No.805 of 1995) b. 18 Amendment case (Const.P.11/2010 etc). th c. Strategic decision-making in 21 amendment. st d. Transparency: Appointment / Removal e. Oath & Code of Conduct of Judges. f. Munir Bhatti: Appointment /Removal. 5. Judicialization of Politics a. The Chaudary Court: Ch 6, Rule of Law or Judicialization of Politics by Moeen H. Cheema b. Political debate. c. Musharraf Case: Proclamation of Emergency declared by Chief of the Army Staff Gen Pervez Musharraf 6. Urdu Judgement a. Abdul Qayum Kakar. b. History of the Common Law, Law French, pg c. Letter from (Kaavish) Sindh. d. Implementation: Lahore High Court

4 6 (A). Governance a. Bureaucracy Anita Turab Case (Syed Mahmood Akhtar Naqvi and others v Federation of Pakistan and others) b. A. D. Khowaja: Suspension of the provincial government's notification in relation to the removal of Inspector General of Police (IGP) A.D. Khowaja c. Haider Ali v DCO Chakwal d. Quetta Commission Case: Interior Ministry s monumental failure in countering terrorism e. Suo Motu Jurisdiction: efficacy f. Appointments to state entities: OGRA / SECP 7. State and its Assets a. Establishment of Makro Habib Store on playground (Suo Motu Case No.10/2009). b. Khawaja Muhammad Asif v Federation (SC 206 of 2014). c. Zonal Labour Union Lakhra v Federation (SC 47 of 2014). d. Fiduciary Principle: Preamble to Constitution. e. Audit of State Funds/Secret Funds (Hamid Mir Case: SCMR 1880 of 2013). 8. Courts & Bar a. Can courts bring about social change or change in Governance. b. Legitimacy in public. c. Abuse of process. d. Court interference in Administration e. Examples: Stay, PEMRA, PTA, JJVL. f. Sugar pricing/ OGRA CNG g. Code of conduct and National Judicial Policy Oversight of Executive: Judicial Review a. Types of oversight: Political/Parliamentary b. Civic, Executive, Judicial. c. Normative and Actual Role of the Judiciary in Governance. d. Dynamic Equilibrium: Parliament v Government v Military v Judiciary. e. Ombudsman & Fundamental Rights. f. Prisons Case/ Labour Case.

5 g. Wellington Conference-Plenary Session (iii) Alex Brenninkmeijer. h. Test of Constitutionality. i. Fundamental Rights. 10. Media a. Framing Debate & Public Perception. b. Panama Case. c. Putois: Anatole France d. Bahria/ARY incident: Press Clippings e. Social Media & Crackdown: Press Clippings f. Arts 19 & 19 A: Memo case g. Right to information NA Question Time: Statute and Rules of Business. h. Media case: PEMRA: Code of Conduct i. Raza Rabbani Work Art: Press Clippings 11. Corruption as Aspect of Governance a. Hajj Corruption case. b. NAB. c. NRO Case. d. Mega Scams. 12. Moral Foundations of the Constitution a. Case of Arts 162 & 163. b. Panama Case: extracts c. Right to Information. d. Preamble: Arts. 37 & 38: Ideology. e. Complete Justice Obligation of SC. f. Musharraf High Treason Case. 12 (A). Democratizing Governance a. Cabinet-Collective Responsibility (CIVIL APPEALS NO.1428 TO 1436 OF 2016) b. Dual Nationality case. c. Local Governments & Legislation. d. Centralising v De-centralising. 13. Courts & Law Enforcement a. Police Laws. b. Fundamental Rights.

6 c. Karachi/ Balochistan Law & Order. 14. Constitutional Deviation a. Doctrine of Necessity. b. Watan Party v. Federation of Pakistan(SMC NO. 16 OF 2011 & CONSTITUTION PETITION NO. 61 OF 2011) c. APS and Military Courts: Dost Muhammad Khan / Faez Isa d. Events of e Constitutional Debates. 15. Principles of State Policy a. Is Ideological leaning given in Constitution? b. Arts. 37 & 38 Constitution. c. Education/Food /Housing. d. Letter by Mr. Abid Minto to CJP. e. Press Clippings. Possible Guest Speakers: Mr. M. Ali Nekokara Mr. Syed Saadat Mr. Asad Rahim Khan or Matiullah Jan Mr. Faisal Siddiqui. Mr. M. Sarwar Khan Mr. Tariq Khosa Umer Gillani