Lahore University of Management Sciences. Law-331A Constitutional History of Pakistan

Transcription

1 Law-331A Constitutional History of Pakistan Fall Semester 2012 Instructor Dr. Osama Siddique Room No. Law Wing Office Hours Tuesday and Fridays (4.00 to 5.30 pm) Telephone Secretary/TA Mr. Muhammad Imran TA Office Hours To be announced Course URL (if any) Course Basics Credit Hours 4 Lecture(s) Nbr of Lec(s) Per Week 2 Duration One Hour Fifty Minutes Recitation/Lab (per week) Nbr of Lec(s) Per Week Duration Tutorial (per week) Nbr of Lec(s) Per Week Duration Course Distribution Core Elective Open for Student Category Close for Student Category 2 nd Year of the LL.B Stream for B.A/LL.B Students Final Year B.A/LL.B Students All SHSS Juniors and Seniors All Freshmen and Sophomores COURSE DESCRIPTION Constitutions have come to be regarded as the collective consensus and ultimate reference point of a nation s aspirations and ideals. They are looked upon as the primary custodians of individual and collective rights and the supreme arbiters in disputes between the organs of a State. They are the mirror to the ideological hopes of the past, the litmus test for the actuality of the present and the looking glass for the future. The alchemy of their creation and interpretation is suffused with politics, and the politics of a nation are greatly influenced by its Constitutional disputes. This course attempts to outline the history of constitutional development in Pakistan through a detailed analysis of the landmark cases that act as distinct milestones through this journey. We will look at length at not just the jurisprudence of the judgments but also the unique social and political environment, which influenced them and furthermore how these judgments in turn ended up influencing that environment. Contestations over several deeply divisive choices have characterized Pakistan s constitutional debates over the years. While the highly nebulous and controversial doctrine of revolutionary legality and doctrine of necessity were used in Pakistan s early years (as well as also fairly recently as far as the doctrine of necessity is concerned) in order to justify various military coups and consequent abrogations and suspensions of the Constitution, the decade of the 1990s demonstrated an irresolute and destabilizing vacillation between a Presidential and a Parliamentary system of Government. As a result, what emerged was our very own constitutional brew with ingredients that are unique to our history, culture and politics. The study of constitutional history is particularly poignant and meaningful at the current point in time, given the additional fundamental constitutional dilemmas which Pakistan is facing as we enter the second decade of the twenty first century. The Musharraf years spawned various new challenges and doubts about what is

2 legitimate and what is not in both the popular imagination as well as juristic sub-consciousness. After his 2007 emergency, the subsequent internationally visible Lawyers Movement, and the eventual restoration of the ousted appellate court judges, we are confronted with renewed tensions and contestations between a resurgent judiciary and a nascent democracy. In the wake of some significant constitutional amendments, various highly publicized and sensationally televised showdowns between the government, the judiciary and the army, and a period of unprecedented excessive use of suo motu powers by the Supreme Court in the domain of public interest litigation, there are multiple exciting themes that merit scrutiny by students of law and social sciences and indeed any informed and concerned citizen. Some of the most notable such themes are those that pertain to questions about the optimal limits of judicial activism, the appropriateness of judicial incursions into the domain of the political and policy-making, the future shape of a decentralized and devolved federal structure, and the current challenges of democratic governance. At the same time, more than ever before (and due to the generally increasing lawlessness as well as the state of armed insurrection in certain parts of the country and acts of aggression by external foreign powers) we face severe strains and stresses in terms of the protection of fundamental rights in their more conventional plain reading of the Constitution sense, as well as in their expanded ambits as interpreted by the appellate courts over the years. During the course, two prominent lawyers and/or judges will visit us as guest speakers and will provide seasoned and thought-provoking viewpoints on our topics of discussion. Speakers in the past have included prominent lawyers, Mr. Abid Hassan Minto, Mr. Aitzaz Ahsan, Mr. Hamid Khan and Mr. Mirza Mahmood Ahmad, as well as the veteran parliamentarian and the petitioner in the seminal dissolution case Haji Muhammad Saifullah Khan. COURSE PREREQUISITE(S) None. Not open to Freshmen and Sophomores. COURSE OBJECTIVES This course will introduce students to the ideological and political underpinnings of the evolution of constitutionalism in Pakistan in order to try and understand our current predicament. This will entail an examination of the colonial laws that formed the early constitutional and governance framework of the country, as well as the most significant cases in Pakistan s constitutional history. At the end, we will be in a position to ask important questions as to what direction our constitutional framework should take in view of what we have covered in class. Apart from the students of Law and Policy at LUMS, this course will be of special interest and value to those students who may want to pursue further studies in the areas of history, political science, political economy and development economics. It is equally meaningful for anyone endeavouring to develop a better general understanding of these issues and the resultant state of politics and civil society in contemporary Pakistan. Learning Outcomes

3 Grading Breakup and Policy Assignment(s): Home Work: Quiz(s): Class Participation: 25 % Attendance: Midterm Examination: Project: Final Examination: 50 % Class Presentations: 25 % Lahore University of Management Sciences An in-depth understanding of Pakistan s constitutional and related political history A close appreciation of the contemporary constitutional and political issues besetting Pakistan An examination of relevant constitutional and political theory debates A comparative evaluation of other relevant constitutional regimes Examination Detail Midterm Exam Yes/No: No Combine Separate: Duration: Preferred Date: Exam Specifications: Final Exam Yes/No: Yes Combine Separate: Separate Duration: 3 Hours Exam Specifications: Open Notes/Closed Books COURSE OVERVIEW Week/ Lecture/ Module Topics 1 Introduction to the Course None Recommended Readings Introduction Objectives/ Application 2 3 Laws of Conquest & Domination: From Company Bahadur to Pax Britannica. Freedom Struggle & the Colonial Vision of a Federal India Wolpert. Chapters 10,12,13,14,15 &16. Keay. Pages 369 to 447. Khan. Pages 5 to 30. Wolpert. Chapters 17, 18, 19, 20, 21. Keay. Pages 448 to 508. Khan. Pages 5 to 30 and 52 to 72. Module 1: From Raj To Swaraj (Sessions 1-5) The Lecture titles are selfexplanatory 4 The Act of 1935 & Beyond. Wolpert. Chapter 22 D.G. Karve. The New Indian

4 Constitution: Principles and Prospects: The University of Toronto Law Journal, Vol. 3, No. 2 (1940), Sir Reginald Coupland. The Structure of the British Raj from The Indian Problem Oxford: The Clarendon Press, Khan. Pages 31 to Birth Pains: The First Constitutional Crisis & the Battles of Moulvi Tamizuddin Khan. The Emergence of the Doctrine of Necessity. The Doctrine of Necessity Vitalized. The Doctrine of Revolutionary Legality makes its Opening Appearance. The Doctrine of Necessity Circumscribed. The Doctrine of Revolutionary Legality Repudiated. Khan. Pages 75 to 130. McGrath. Pages 79 to 154. G.W. Choudhury. Constitution Making Dilemmas in Pakistan. The Western Political Quarterly, Vol.8, No.4 (December 1955), Federation of Pakistan v. Tamizuddin Khan (1955). McGrath. Pages 155 to 186. Newberg. Pages 35 to 51. Khan. Pages 130 to 148. Reference by His Excellency the Governor-General (1955) Newberg. Pages 51 to 68. Khan. Pages 148 to 165. The State v. Dosso (1958). Newberg. Pages 69 to 78 and 86 to 89. Khan. Pages 212 to 216. Asma Jilani v. Government of Punjab (1972). Newberg. Pages 120 to 135. Khan. Pages 444 to 447. Tayyab Mahmud, Jurisprudence of Successful Treason: Coup d Etat& Common Law, 27 Cornell Int l L.J. 49, Winter 1994, Module 2: Executive vs. Judiciary and Emergence of the Junta. (Sessions 6-11) The lecture Titles are selfexplanatory 10 The Doctrine of Necessity Resuscitated. 11 Guest Speaker Begum Nusrat Bhutto v. Chief of Army Staff (1977) Newberg. Pages 161 to 179. Khan. Pages 579 to 595. Tayyab Mahmud, Praetorianism and Common Law in Post- Colonial Settings: Judicial Responses to Constitutional Breakdowns in Pakistan, 1993 Utah L. Rev. 1225, 1245.

5 Lahore University of Management Sciences The Eighth Amendment to the Constitution and its Discontents. Selected Statutory Texts. Siddique. Pages 1 to 21. Judicial Minimalism. Sunstein. Pages 1 to 72. The Era of Dissolutions. President v. Prime Minister -- Take 1. Federation of Pakistan v. Muhammad Saifullah Khan (1989). Khan. Pages 689 to 708. Module 3: A Decade of Dissolutions. (Sessions 12-18). The Lecture titles are selfexplanatory The Era of Dissolutions. President v. Prime Minister -- Take 2. The Era of Dissolutions. President v. Prime Minister -- Take 3. The Era of Dissolutions. President v. Prime Minister -- Take 4. Tariq Rahim v. Federation of Pakistan (1992). Khan. Pages 711 to 737. Nawaz Sharif v. President of Pakistan (1993). Newberg Khan. Pages 738 to 772. Benazir Bhutto v. Federation of Pakistan (1997). Khan. Pages 773 to The Era of Dissolutions. An Overview. Siddique. Pages 22 to 58 and 65 to st-Century Doctrine of Necessity. Back to Square One? Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (2000). Khan. Pages 817 to 845 and 924 to 939. Siddique. Pages 58 to 63. Module 4: The General in his Labyrinth: From Emergency to Emergency. (Sessions 19-20). The Lecture Titles are selfexplanatory 20 The Musharraf Years and the Second Emergency. Qureshi, (Entire Article) 21 The Lawyers Movement and its Aftermath I Berkman, (Entire Article). Malik, (Selected Pages). Osama Siddique, The Lawyers Movement and its Fragments, The Express Tribune, February 19, 2012 Module 5: Marching Lawyers, Declaiming Judges. (Sessions 21-23). The lecture titles are selfexplanatory 22 The Lawyers Movement and its Aftermath II Shoaib A. Ghias. (Entire Article). Joel A. Mintz. (Entire Article). 23 Guest Lecture 24 The Design of the 1973 Constitution and Subsequent Amendments: The Eighth, Selected texts of the Amendments Module 6: Contestations in the New Democratic Era. (Sessions

6 Thirteenth, Seventeenth, Eighteenth and Nineteenth Amendments Rahim. (Excerpts) Maryam Khan, Ethnic Federalism in Pakistan: Federal Design, Construction of Ethno- Linguistic Identity and Group Conflict (forthcoming publication). (Excerpts) 24-27). The lecture titles are selfexplanatory Raging Controversies: Themes & Issues The Emerging Institutional Balance of Power Maryam Khan, The Politics of Public Interest Litigation in Pakistan. Osama Siddique, The 2005 South Asian Earthquake: Natural Calamity or Failure of State? Osama Siddique, Across The Border A New Avatar For India s Basic Structure Doctrine, in Seminar: A Monthly Symposium, On 60 Years of The Indian Constitution ( ), Maryam Khan, Selective Borrowings, in Seminar: A Monthly Symposium, on 60 Years of The Indian Constitution ( ), Anil Kalhan, (Entire Article). Selected Cases (Excerpts) 27 The Judicialization of Politics and the Politics of Judicialization Osama Siddique, Reforming Pakistan s Justice Sector Reform Discourse, Social Science and Policy Bulletin, 2:2, Autumn Maryam Khan, Judicialization of Politics 28 Concluding Review Session Textbook(s)/Supplementary Readings The relevant parts from all these texts will be made available to students in the form of a course package before the start of the course. 1. Toby Berkman. The Pakistani Lawyers' Movement and the Popular Currency of Judicial Power, Harvard Law Review, Volume 123, Number 7, May 2010, 1705.

7 2. Sir Reginald Coupland. The Indian Problem Oxford: The Clarendon Press, Shoaib A. Ghias, Miscarriage of Chief Justice: Lawyers, Media, and the Struggle for Judicial Independence in Pakistan, Law & Social Inquiry, Vol. 35, No. 4, p. 985, D.G. Karve. The New Indian Constitution: Principles and Prospects: The University of Toronto Law Journal, Vol. 3, No. 2 (1940). 5. Anil Kalhan, "Gray Zone" Constitutionalism and the Dilemma of Judicial Independence in Pakistan, 46 Vanderbilt Journal of Transnational Law 1 (forthcoming January 2013). 6. John Keay, A History of India. London: Harper Collins Publishers, Hamid Khan, Constitutional and Political History of Pakistan. Karachi: Oxford University Press, Maryam Khan, Selective Borrowings, in Seminar: A Monthly Symposium, On 60 Years of the Indian Constitution ( ), Maryam Khan, The Politics of Public Interest Litigation in Pakistan in the 1990s, Social Science & Policy Bulletin, Volume 2, No. 4, Spring Maryam Khan, Ethnic Federalism in Pakistan: Federal Design, Construction of Ethno-Linguistic Identity and Group Conflict (forthcoming publication). 11. Maryam Khan, Judicialization of Politics and the Supreme Court in Pakistan: A New Paradigm of Judicial Power (forthcoming book publication). 12. Joel A. Mintz, A Perspective On Pakistan s Chief Justice, Judicial Independence, and the Rule of Law, 15 ILSA J Int'l & Comp L 1 (Fall 2008). 13. Allen McGrath, The Destruction of Pakistan s Democracy. Karachi: Oxford University Press, Tayyab Mahmud, Jurisprudence of Successful Treason: Coup d Etat& Common Law, 27 Cornell Int l L.J. 49, Winter Tayyab Mahmud, Praetorianism and Common Law in Post-Colonial Settings: Judicial Responses to Constitutional Breakdowns in Pakistan, 1993 Utah L. Rev. 16. Muneer A. Malik, The Pakistan Lawyers Movement, Pakistan Law House, Paula Newberg, Judging the State: Courts and Constitutional Politics in Pakistan. New Delhi: Cambridge University Press, Taiyyaba Ahmed Qureshi, State of Emergency: General Pervez Musharraf's Executive Assault on Judicial Independence in Pakistan, 35 N.C.J. Int'l L. & Com. Reg. 485, 2010.

8 19. J. A. Rahim. Outline of a Federal Constitution for Pakistan. Lahore: Pakistan People s Party Political Series (4), Osama Siddique, The Jurisprudence of Dissolutions: Presidential Power to Dissolve Assemblies under the Pakistani Constitution and its Discontents. Arizona Journal of International & Comparative Law Vol. 23, No Osama Siddique, Across the Border A New Avatar for India s Basic Structure Doctrine, in Seminar: A Monthly Symposium, On 60 Years of the Indian Constitution ( ), Osama Siddique, The 2005 South Asian Earthquake: Natural Calamity or Failure of State? Exploring State Liability and Remedies for Victims of Defective Construction in Pakistan (with Maryam Khan), 9 Asian Law (2007). 23. Osama Siddique, Reforming Pakistan s Justice Sector Reform Discourse, Social Science and Policy Bulletin, 2:2, Autumn 2010, Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court. Cambridge: Harvard University Press, Stanley Wolpert, A New History of India. New York: Oxford University Press, Photocopied complete texts or excerpts (as applicable) of the (italicised) legal cases and materials as well as law journal articles.