Lahore University of Management Sciences. Law 102 Introduction to Pakistan Legal System Fall 2017

Transcription

1 Lahore University of Management Sciences Law 102 Introduction to Pakistan Legal System Fall 2017 Instructor Marva Khan Room No Office Hours TBA Telephone - Secretary/TA - TA Office Hours - Course URL (if any) - Course Basics Credit Hours 3 Lecture(s) Nbr of Lec(s) Per Week 2 Duration 75 minutes Recitation/Lab (per week) Nbr of Lec(s) Per Week N/A Duration - Tutorial (per week) Nbr of Lec(s) Per Week N/A Duration - Course Distribution Core Elective Open for Student Category Close for Student Category BA/LLB Non-Law students All None Grade Breakup Attendance and Class Participation: 10% Quizzes: 15% Presentation: 15% Mid-Term Exam: 25% Final Exam: 35% COURSE OBJECTIVES This course provides an introduction to the legal system of Pakistan. The course shall include an overview of the Constitutional and statutory provisions to help students understand how the state machinery derives legitimacy from the Constitution; discern the various rights and remedies available to citizens in Pakistan under domestic laws, and also help them learn about the rudimentary procedural laws pertaining to civil and criminal trials. In order to provide a better understanding of the current system, the first module of the course pertains to a discussion about the constitutional genesis of the Country, including the constitutional politics surrounding the 1956 and 1962 Constitutions and their respective features; leading up to the promulgation of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution ). In light of this historical background, the second module of the course entails a discussion of the Federal and Provincial structure of Pakistan; the relation of the Provinces with the Federation; and the structure and powers of the Constitutional Courts in the country, that is, the Supreme Court, High Courts and the Federal Shariat Court. The third module is aimed at making the students understand the basic rights available under Pakistan s legal system, along with their respective remedies and procedures. For this, this section of the course will provide a comprehensive overview of the Fundamental Rights and the Principles of State policy prescribed in the Furthermore, it also entails a description of the structure of the lower courts of Pakistan, along with outlining the substantive and procedural elements pertaining to criminal and civil trials in the country. The course will conclude with an overview of the Constitution, by presenting the evolution of the Constitution since 1973 by a general perusal of constitutional amendments to date, along with an analysis of the legal and socio-political setting of the legal system in Pakistan.

2 Lahore University of Management Sciences The students will be encouraged to critically engage with the course material. This objective shall be furthered via group presentations, in which the students shall be expected to critically analyze and present the assigned material. The course outline also provides recommended readings for several sessions. While the recommended readings are not compulsory, the students are strongly advised to cover them in order to enhance their understanding of, and increase their grasp on the respective topics, especially students who shall be presenting during the assigned session. Examination Detail Midterm Exam Yes/No: Yes Combine Separate: Separate Duration: In class Preferred Date: Session 14 Exam Specifications: Objective Final Exam Yes/No: Yes Combine Separate: Separate Duration: TBA Exam Specifications: Objective and subjective questions. Lecture/ Module Session 1 Session 2 Session 3 Session 4 Topics Introduction to the course; familiarization with legal concepts Conception of the Pakistani State Constitutional evolution of Pakistan Constitutional evolution of Pakistan (contd.) COURSE OVERVIEW Required Readings MODULE 1: HISTORICAL BACKGROUND A. K. Brohi: Constitutional Law of Pakistan (pages 3-6, 13-18, 55-58,70-71) Quaid-e-Azam s speech of 11 th August, 1947; Liaquat Ali Khan s speech of 7 th March 1949 [including Preamble to the Constitution (Objectives Resolution)]; Speeches of Bhupendra Kumar Dutta; Dr Ishtiaq Husain Qureshi. Paula Newberg: Judging the State Courts and constitutional politics in Pakistan (pages 35-42) G. W. Choudhury: Constitution of Pakistan; D. P. Singhal: The New Constitution of Recommended Readings Speeches by Maulana Shabbir Ahmad Osmani; and Mian Iftikharuddin. S. Kaushik: Constitution of Pakistan at work Study Objectives Introduction of basic legal concepts including the distinction between private and public law; the concept of a written constitution and its emergence; three organs of the state and separation of powers; and notion of Pakistan as a federal republic. Overview of the varying ideologies pertaining to the conception of Pakistan; and an introduction to the Objectives Resolution. Constitutional politics at the time of Independence; brief overview of the Government of India Act 1935, and the Independence Act, Discussion of the features of the 1956 and 1962 Constitutions

3 Session 5 Session 6 Session 7 Session 8 Quiz 1 Session 9 Session 10 President and Majlis-e-Shoora (Parliament) Federal legislation Provincial legislation; Relations between the Federation and the Provinces Repugnancy of laws qua Fundamental Rights, the Constitution and Shariah Federal and provincial structures and their respective administrative relations; the Attorney General and Advocate General Lahore University of Management Sciences Pakistan; Articles 1-7 of the MODULE 2: STATE STRUCTURE AND FUNCTIONALITY Articles 41-49; 50-63A; 68, 89 of the Constitution; 2 nd Schedule of the Articles 55, of the Constitution; Sections 1-6 of the Pakistan Citizenship Act, Articles 55, , , and of the Constitution; 4 th Schedule of the Articles 2A, 4, 8, 227, 232, 233 of the Constitution; Public Actions, Vol.1 (pages 29-46, ). Articles , A, , , 57, 111 of the (pages ). Articles 64-67, 69 of the 3 rd Schedule of the 3 rd Schedule of the of Pakistan; and a discussion on the preliminary provisions of the 1973 Introduction to the President s office, including election procedure; discussion of the composition, duration, meetings of the Majlis-e-Shoora, and the qualifications and disqualifications of its members. Discussion of the legislative procedure prescribed in the Constitution, to be followed in the Majlise-Shoora. Understanding the provincial machinery, including the governor s office, and the constitution and functionality of provincial assemblies. It is recommended that students read the oaths for the respective posts provided in the 3 rd Schedule. Further discussion about the Objectives Resolution s role after the promulgation of Article 2A; and an analysis of laws inconsistent with Quran, Sunnah and Fundamental Rights which may be repugnant. Additional discussion about the federal and provincial government machinery, with particular emphasis on their relations with each other; introduction to the procedure of constitutional amendments.

4 Session Session 13 Session 14 Session Session 17 Session Judicial system under the Constitution and the advent of military courts Judicial review In class mid-term exam Fundamental Rights and Principles of State Policy Constitutional remedies Statutory remedies I: Substantive criminal laws Lahore University of Management Sciences Articles , , 203A-D,F, of the Constitution; 18 th, 19 th and 21 st Amendments (w.r.t. judicial appointments); Public Actions, Vol.1 (pages ); Judicial system of Pakistan (pages14-20). Public Actions, Vol.1 (pages 3-16) MODULE 3: RIGHTS, REMEDIES & PROCEDURES Chapters 1 and 2 of the Constitution (Articles 8-40); Public Actions, Vol.1 (pages ). Public Actions, Vol.2 (pages ); Articles 199, , 201, 202, 204 of the Judicial system of Pakistan (pages 21-28); J. (R) Fazal Karim: Access to Justice in Pakistan (pages , ); Sections 1-5, 24-25, 34-35, 53-55A, 65, 69, , of the Pakistan Penal Code, 1860; Brief overview of Qanun-e-Shahadat Ordinance and CrPC. Complete judgment on Military Courts available at < file:///c:/users/ marva.khan/doc uments/pls/mili tary%20courts% 20Judgement.p df>. Discerning the structure of the superior courts, including the Supreme Court, High Courts, and the Federal Shariat Court, along with the their respective jurisdictions, appointment of judges and role of the Supreme Judicial Council. This session will also provide a purview of the 21 st Constitutional Amendment and the advent of military courts in Pakistan. This session use the base set by the judgment discussed in the previous class in order to help students learn the power of judicial review. Synopsis of Fundamental Rights, in light of those enumerated in the Constitution; a discussion on the content of the Principles of State Policy, and how they are distinct from Fundamental Rights. Overview of the original, appellate and advisory jurisdictions of the Supreme Court, the jurisdiction of the High Court and its role with respect to the subordinate courts in Pakistan. Examination of the subordinate court structure in Pakistan, along with a basic understanding of the operation of criminal cases, including evidence and burden of proof. Session 20- Statutory remedies II: Substantive civil [Refer to the court structure provided in Similar to the

5 Lahore University of Management Sciences 21 laws readings for session 11-12]; J. (R) Fazal Karim: Access to Justice in Pakistan (pages ); Brief overview of substantive civil law statutes in Pakistan including the Contract Act, the Transfer of Property Act; Brief overview of the CPC, and the Arbitration Act. discussions in the previous two sessions, the students will learn the structure of civil courts in Pakistan, along with understanding the procedure pertaining to civil trials. Session 22 Session 23 Quiz 2 Session 24 NAB Session 25 Session 26 Session 27 Appeal, revision, review, arbitration, time bars Dissolutions of the National Assembly I Prior to the 1973 Constitution Dissolutions of the National Assembly II - Evolution and impact of Article 58 Dissolutions of the Provincial Assemblies J. (R) Fazal Karim: Access to Justice in Pakistan (pages ); Articles 185, 203F, 203DD of the Constitution; Sections 96, 100, 107, 109, of the Code of Civil Procedure; Sections 410, 411A, , 417, 423 of the Criminal Procedure Code; Sections of the Arbitration Act, PILDAT: NAB: An Independent Review of Structure and Performance (pages 15-33). Paula Newberg: Judging the State (Pages 42-60, 73-78, ). Article 58 of the Constitution; Osama Siddique: The Jurisprudence of Dissolutions (pages , ); Paula Newberg: Judging the State (Pages ). Article 112 of the Constitution; Tayyab Mahmud: Praetorianism and Common Law in Post-Colonial Settings 1 st Schedule to the Limitation Act, Full report on NAB, available at < at.org/publicati ons/publication/ Democracy&Leg Str/NationalAcc ountabilityburea uanindependen treviewofstruct ureandperforma nce.pdf>. Paula Newberg: Judging the State (Pages 60-68) Osama Siddique: The Jurisprudence of Dissolutions (pages ). Complete Judgment: PLD 1992 SC 723 Significance of some of the important judgments pertaining to dissolutions prior to the 1973 Constitution, including the Molvi Tamizuddin case, Governor General s Reference, State v. Dosso, and the Asma Jillani case. Dissolutions of the National Assembly post the incorporation of Article 58(2)(b), including the Haji Saifullah case, Tariq Rahim Case, Nawaz Sharif case and the Benazir Bhutto case. In light of the discussion on dissolution of National

6 Session 28 Review Lahore University of Management Sciences (FN 328); Hamid Khan: Constitutional and Political History of Pakistan (pages ); PLD 1992 SC 723 Federation of Pakistan v Aftab Ahmad Khan Sherpao (Excerpts). Federation of Pakistan v Aftab Ahmad Khan Sherpao (Excerpts). Assemblies, especially post Article 58(2)(b), the students will learn the effect of its provincial counterpart. Textbook(s)/Supplementary Readings Volumes 1-3 of the Reading Package shall be available at the photocopier; Recommended readings shall be uploaded on Zambeel/sent via .