Global south Rule of law

Question 1

A remarkable sequence of events in Pakistan caught the international legal community’s imagination when

Answer 1

the deposed Pakistan Supreme Court CJ , Iftikhar Muhammad Chaudhry, was reinstated for the second time from the 2nd wave of Lawyers Movement in Mar 2009

Question 2

Why was chaundry dismissed

Answer 2

military ruler dismissed him, 2nd dismissal was by military regime dismissing a wave of judges replaced them with pro-regime judges

Question 3

What did the 2007 dismissay of Chaundry CJ lead to?

Answer 3

protests by Pakistina’s lawyers, representing struggles for the Rule of Law and liberal democracy in the Global South

Question 4

In the Global South there has been an historical rejection of liberalism because

Answer 4

permitted gross injustices through the civilising mission of colonialism.

Question 5

It has been argued that ROL theories embody a particular

Answer 5

Western conception of liberal human rights and democracy which is not always applicable in different cultural contexts;

Question 6

Thicker conceptions of the ROL which requires laws to be

Answer 6

o be democratically legitimate and the protection of substantive liberal rights is inherently Westernised

Question 7

The universalisation of a Western conception of the ROL is not conducive to

Answer 7

the historical, political and social contexts of the Global South.

Question 8

n the Global South, there have been frequent populist movements for

Answer 8

greater judicial activism which formal ROL theory seeks to constrain.

This is because the ROL is associated with concrete political demands and an inherent distrust of democratic institutions.

Question 9

Contextualised and decontextualised ROL

Answer 9

Need a contextualised theory of the ROL because a de-contextualised theory ignores who it advantages and who it disadvantages. A new ROL theory should seek to challenge deep-rooted inequalities which includes positive obligations for the state.

Question 10

However, if the judiciary were to act progressively to instigate social change;

Answer 10

• This subverts the separation of powers
• Undermines the supremacy of legislation

Question 11

background of rule of law in global south

Answer 11

he breakout of violence in Pakistan post the dismissal of the Supreme

Court judge by the President, Musharaf led to a situation where the entire

legal community erupted over what was perceived to be a complete

contravention of notions of the rule

Question 12

The courts in the lead up to the dismissal of the PM had been taking a far

more

Answer 12

activist approach. They had been attacking corrupt practices in

Pakistan, and had been pushing for a more substantive rights based

approach to legal decision making.

Question 13

The movement

what did they want

Answer 13

ovement that saw the Western

system of democracy and rule of law as the ideal and wished to

implement that in their own country, but according to their particular

context

Question 14

criticism of the movement/judicial activism of the court

Answer 14

the rule of law as becoming deeply politicised and therefore in

trouble of seeing the whole society

Question 15

competing conceptions of the Rule of Law can be divided into

Answer 15

“formal” and “substantive” versions

Question 16

Rule -by law is

disadvantage

Answer 16

governance by law is the minimum necessary condition of the Rule of Law.

meaningless when tyrannical or dictatorial regimes retain the power to declare what the law is and alter it at their convenienc

Question 17

Formal legality

Answer 17

procedural legality

• Principles of Fuller’s inner morality of law e.g. enerality, clarity, public promulgation, temporal stability, substantive consistency, absence of retroactive application, a substantial degree of adherence by officials and subjects, and the reasonable possibility of compliance by the subjects with the promulgated rules
• Raz: independence of the judiciary, principles of natural justice, judicial review, access to justice, and limits on the discretion of crime preventing agencies
• Summers: rule-making bodies, independent tribunals and other redress mechanisms, civic education of citizens, an independent legal profession, and legal academia

Question 18

Democratic legality

Answer 18

requires the conformity of governmental action to a valid law but also requires such law itself to be democratically legitimate.

Question 19

The thinnest substantive version is

Answer 19

includes individual rights into concept of democratic legality e.g. property, contract, privacy

Question 20

The second substantive brand of Rule of Law adds

Answer 20

Civil and political rights

Question 21

thickest substantive version includes

Answer 21

socio-economic or social welfare rights in addition to individual and political rights

Question 22

he common sense of the rule of law within Western societies is

Answer 22

democratic legality with individual rights

Question 23

the core of Rule of Law theory

Answer 23

is provided by formal legality and that Rule of Law includes at least that.

Question 24

he debate between formal and substantive versions of the Rule of Law may be understood.

Answer 24

a concern with the seepage of politics into law

The formalists fear that the incorporation of politically-contested notions such as the various kinds of rights may overburden the concept and hence render it devoid of any independent value.

Question 25

judicial activism.

Answer 25

active political involvement of judges in contentious social issues.

Judges, who are usually appointed rather than elected, interpret the law in such a way as to change its original meaning and intent

Question 26

Judicial activism can take many forms: it may simply mean that judges

Answer 26

are speaking out on controversial ethical and political issues when such pronouncements are not really proper to the role of a judg

Question 27

Judicial activism cmean using one’s position as a judge

Answer 27

o radically reinterpret and rewrite the law, to suit trendy political opinion or to enforce a stifling political correctness.

Question 28

a focus on “thin” definitions places emphasis on

Answer 28

procedures through which rules are formulated and applie

Question 29

A “thick” definition delineates positively

Answer 29

n delineates positively the rule of law as incorporating such elements as a strong constitution, an effective electoral system, a commitment to gender equality, laws for the protection of minorities and other vulnerable groups and a strong civil society.

Question 30

The Philippine judicial system at the local level is

Answer 30

corrupt, allowing wealthy individuals to win cases through unlawful means

Question 31

Tamanaha has highlighted a more recent form of this debate, the tension between “two core ideas”

Answer 31

“the classical rule of law ideal that there are independent legal limits on law itself” and (2) “legal instrumentalism, . . . that law (and hence the Rule of Law) is a means for political, social and economic ends

Question 32

The thicker theories of Rule of Law appear, in contrast, to be concerned primarily with its utility for

the rule of law is only meaningful

Answer 32

redistributions of political, social, and increasingly economic, power.

the Rule of Law is meaningful only because, and to the extent that, it helps secure such ends.

Question 33

formal legality achieves the valuable social goal of

Answer 33

ensuring a minimal level of liberty by constraining the exercise of governmental powers

1. Limits gov, they are subject to the law

Question 34

substantive conceptions of the Rule of Law that also seek to

Answer 34

advance the core liberal aims of enhancing the autonomy of the citizen and safeguarding basic liberties from the state’s intrusion.

Question 35

the extent that both formal and substantive conceptions

Answer 35

arbitrarily limit the ends which the Rule of Law may serve, they become arguments for maintaining status quo particularly in societies where law is relatively efficient.

Question 36

The sustained assault from the Left undermined the claim that law, especially public law adjudication,

Answer 36

could be separated from politics and could be undertaken in a largely formal manner

Question 37

What did CLS claim

Answer 37

laws are indeterminate, undermining the formal rule of law

Question 38

CLS standpoint was not, for the most part, that law is in fact radically

Answer 38

indeterminate and that judges act politically in the sense that they decide individual cases based largely upon their political leanings or affiliations.

Question 39

If CLS standpoint was not, for the most part, that law is in fact radically indeterminate and that judges act politically in the sense that they decide individual cases based largely upon their political leanings or affiliations

WHAT does it mean then?

Answer 39

logically indeterminate while being in fact quite determinate.

While legal rules, precedents and statutes may be given different interpretations, in reality they are often interpreted in consistent ways with the result that the law changes very slowly.

Question 40

Thus, the lasting legacy and value of the CLS critique, building on the earlier work of the Realists, is that it has made it increasingly difficult to

Answer 40

distinctions between law and politics

Question 41

In much of the Global South constitutionalism

Answer 41

is weak and democracy is thin or procedural. And yet, the usage of law to further coercive state power is pervasive.

Question 42

Global South state

Answer 42

bureaucratic-administrative state has failed to transform in many places in the Global South into a welfare state,

Question 43

what is the question

Answer 43

If the dominant conceptions of formal and substantive (liberal rights- oriented) legality are rooted in the political and socio-economic contexts of Western democracies, are these suitable models for postcolonial states and transitional democracies of the Global South?

Question 44

there is the demand to articulate visions of the Rule of Law

Answer 44

are tied in with concrete questions of constitutional politics

Question 45

what can we not do

Answer 45

plagiarizing universalist abstract answers to some of these questions from the North—such as the uncritical adoption of separation of powers—may become an obstacle to the quest for socio-economic justice that is increasingly at the heart of the Rule of Law in the Global South

Question 46

what should we do in global south

Answer 46

answer visions of rule of law e.g.

Does the rule of law . . . privilege ‘good’ and ethically viable ways of

structuring representation? . . . Does it favour federalism over unitary, republican over monarchical, secular over theological, flexible over rigid constitutional formats? Does it privilege plenary judicial review over forms of legislative, executive and administrative action? .may hierarchies of administration of justice devised, justices appointed and their autonomy and accountability be concretely define

Question 47

In opposition to abstract theorization, a call is thus being made to envision the rule of law

Answer 47

with the explicit ideological agenda of challenging deep-rooted inequalities in both the public and private domains, which includes positive obligations of the state to make law for the disadvantaged, deprived

Question 48

Rule of law in global south must be

Answer 48

Rule of Law must be mindful of historical inequalities and simultaneously imbued with visions of more egalitarian futures

Question 49

how is law relatively indeterminate

Answer 49

Can be changed by judicial decision making, legislature

Question 50

Judicial decision making is

Answer 50

rigid, stable and conservative. b/c judges whose decisions then become binding on everyone come from limited classes and groups in society and share certain class commitments

Question 51

are modern liberal legal systems wicked

Answer 51

yes, some parts

e.g. indigenous, anti terrorism law, illegal immigrants

Question 52

why do disadvantaged groups benefit from judicial activism?

Answer 52

they compel state to be more egalitarian so they can only make things better

majorities would lose

Question 53

Is substantive conception of rule of law negative or positive? Explain

Answer 53

negative discourse

by focusing on individual rights, prevent state from doing things, but cannot compel them to do anything. E.g. redress historical imbalances.

Question 54

what was the dismissal of CJ a symbol of?

Answer 54

authoritarian and military rule even which highest judicial officer in the country was not proteced from arbitrary power of the military regime

• Challenged judicial independence and rule of law

Question 56

Lawyers movement protesting against dismissal of CJ,

what did they call for

Answer 56

democracy, rule of law , constitutionalism, judicial independence

Question 57

Can’t have meaningful substantive democracy without

Answer 57

rule of law or justice. STRONG AND JUST LEGAL INSTITUTIONS

Question 58

According to Cheema, when does the judiciary become a strong, popular institution with lots of public support

Answer 58

when they stopped becoming apolotical, neutral institution

when they got involved in social-economic redistribution of power, trying to create to compel state to become more egalitarian

Question 59

suo motu action

Answer 59

Courts under s 184(3) of the Pakistan Constitution can take sou moto action based on public interest. Special power of Indian and Pakistani Courts

Question 60

Judicial muteness

Answer 60

• low level of judicial independence and low level of judicial involvement

courts don’t do much and do little b/c of strong government and strong regimes. e.g. cambodia, singapore

Question 61

Judicial restraint

Answer 61

High level of judicial independece but do very little to challenge the executive

e.g. japan. Australia has high degree of indepenence, has capacity to do a lot but chooses not to

Question 62

Is judicial restraint political?

Answer 62

Cheema argues that judicial restraint is equally political.

• Capacity to challenge executive but choose not to because they are comfortable with elite consensus and status quo

Question 63

Judicial activism

Answer 63

High judicial independence + high judicial involvement e.g. korea, indonesia

• said to be overly political

Question 64

Politicisation of the judiciary

Answer 64

low judicial independence + high involvement e.g. Thailaid 2006-2010

Question 65

traditional status of judges

Answer 65

strictly neutral and reluctant to become involved with what were seen as purely ‘political’ issues. because they are neither elected nor accountable, should confine themselves solely to issues of legal interpretation and the maintenance of the rule of law

Question 66

how does liberal judges influence politicisation of judiciary

Answer 66

challenge the power of government if they felt human rights were under threat. e.g. british judges

Question 67

why shouldn’t judges answer political issues?

1.

Answer 67

members come from such a narrow social background

Question 68

why shouldn’t judges answer political issues?

2.

Answer 68

• not elected and are therefore not accountable by parliament or public.
• can make decisoins that are against national interest or public opinion

Question 69

The Supreme Court Bar Association of Pakistan declared the suspension of the Chief Justice as

Answer 69

assault on independence of judiciary

Question 70

Lawyers’ Movement was the name given to the

Answer 70

popular mass protest movement started by the lawyers of Pakistan in response to the actions of 9th March 2007 by the country’s military ruler

Question 71

New’ constitutionalism in the South

Answer 71

India, South Africa, Colombia … substantive rule of law

Question 72

Constitutionalism’

Answer 72

recognizes the need for government with powers but at the same time insists that limitation be placed on those powersm.

A government which goes beyond its limits loses its authority and legitima

Question 73

what is the role of judiciary in pakistan

Answer 73

strengthens demotratic trends in pakistan

Question 74

what is the substance of democracy? what does it include

Answer 74

rule of law is the substance of democracy

it includes, supremeacy of the constitution, equality before the law and civil liberties

Question 75

history of pakistan’s democracy

Answer 75

blatant disregard.

Legislature and executive act undertake their functions as if they have unlimited power or are above the law

Question 76

to safeguard democracy in pakistan what must we ensure

Answer 76

judicial independence.

protect citizen’s rights. safeguard rule of law

Question 77

Since appointment to Supreme Court in 2005, what did Chaundry began to exercise

how did this affect the cases

Answer 77

began to exercise the court’s suo moto powers

took on cases re corruption of bureaucracy, abuse of police powers

these cases won, gaining popularity among populace

Question 78

judicialization of politics

Answer 78

expansion of the province of courts and judges in determining public policy outcomes

Question 79

what are public policy questions courts are answering

Answer 79

religious liberties and privacy to property, trade and commerce, education, immigration, labor, and environmental protection.

Question 80

in US, courts have

Answer 80

long played a significant role in policymaking

Question 81

Judicial Restraint is a theory of judicial interpretation that encourages judges to

Answer 81

do not strike down law unless they are obviously unconstitutional. Judicially-restrained judges respect stare-decisis, the principle of upholding established precedent handed down by past judges.

Question 82

Judicial restraint and deference

Answer 82

urges judges considering constitutional questions to grant substantial deference to the views of the elected branches and invalidate their actions only when constitutional limits have clearly been violated.

Question 83

judicial restraints

courts should hesitate to

Answer 83

use judicial review to promote new ideas or policy preferences. In short, the courts should interpret the law and not intervene in policy-making.

Question 84

Under judicial restraint, judges should always decide cases based on

Answer 84

1. The original intent of those who wrote the constitution.
2. Precedent – past decisions in earlier cases.
3. The court should leave policy making to others.

Question 85

Judicial activism describes judicial rulings suspected of being based on

Answer 85

personal or political considerations rather than on existing law.

Question 86

According to the idea of judicial activism, judges should use their powers to

Answer 86

correct injustices, especially when the other branches of government do not act to do so. This means that Judicial activism has a great role in formulating social policies on issues like protection of rights of an individual, civil rights, public morality, and political unfairness.

Question 88

The higher judiciary (comprising of the Supreme Court and the High Court is largely perceived by the people of India as an institution that

Answer 88

champions their fundamental rights, breaks on the arbitrary exercise of power by any public functionary and this has increased the importance of judiciary manifold.

Question 89

In India, judiciary interferes with

Answer 89

every aspect of the social and political life through the tool of judicial activism.

Question 90

During the last few years, Judicial Activism has opened up a new dimension for the Judicial process and has

Answer 90

given a new hope to the millions who starve for their livelihood. There is no reason why the Court should not adopt activist approach similar to Court in America , so as to provide remedial amplitude to the citizens of India

Question 91

How may substantive rule of law be achieved in global south?

Answer 91

through judiial activism

Question 92

Indian Judiciary & Rule of Law

Answer 92

Supreme Court and the various High Courts through Judicial activism and public interest litigation, have made significant contributions towards protecting freedoms and preventing human rights violations and abuses, thereby ensuring that the Rule of Law and respect for citizens’ rights

Question 93

judicial activism in pakistan is seen as

Answer 93

by lawyers and the media as a positive development

Question 94

According to cheema Chaudhry Court’s public law jurisprudence can hardly be labelled as judicial activism because

Answer 94

refers more appropriately to courts stretching established jurisprudential principles’ and developing novel interpretations of law

Question 95

How is the Chaundry Court display proactivism

Answer 95

• initiating suo motu
• human rights cases
• turned the Original Jurisdiction of the Supreme Court into a tool of Public Interest Litigation (PIL)

Question 96

While the Chaudhry Court was increasingly criticized for engaging in judicial activism, that critique

Answer 96

is weak. it rests on the conservative and unrealistic notions of an apolitical judiciary and hard distinctions between law and politics.

judicialization of politics is the norm around the world, and most recently courts in Asia have become noticeably activist

Question 97

some courts have actively engaged in judicial actiism

Answer 97

by intervening in politics to promote good governance

1. checks and balances on executiv abuse
2. uphold supremacy of law
3. protect citzens rights

Question 98

The Korean and Indonesian constitutional Court are good example of

Answer 98

judicial activism in direct support of democratic governance and constitutionalism by adjudicating politically charged cases

Question 99

How can judicial politicisation be bad e.g. thailand

Answer 99

judges become policy-makers and elite seek to influence court decisions. Elites have relid on courts to advane their interests and block reform attempts

Question 100

How can judicial politicisation be bad e.g. thailand

Answer 100

judges become policy-makers and elite seek to influence court decisions. Elites have relid on courts to advane their interests and block reform attempts

• lack of impartiality, political bias

Question 102

judiciary goes is largely driven by the type of regime: courts seem more activist in

Answer 102

in established, vibrant democracies (e.g., South Korea, Indonesia, India, Taiwan)

Question 103

judges are far less assertive in

Answer 103

semi-authoritarian and authoritarian settings (e.g., China, Cambodia, Malaysia).