انعقاد رمضان و عیدین میں رؤیت قمر كی شرط كی حكمت

According to the Prophetic injunction, the fasting in the month of Ramadan, end of the fasting in that month, and determination of Eid al-Adha date should be based on moon sighting by at least two authentic persons. But due to advanced lunar movement calculations majority of Muslim nations prefer the lunar calendar in determining dates of Ramadan and the two Islamic festivals, 6d al-Filr and Eid al-Adha. This article attempts to prove that a pre-calculated lunar calendar cannot be the basis of determining the dates of the fasting month and Islamic festive days; and the only Islamic way to begin fasting month and celebrate festive days is moonsighting.

Constitutionalism and the Dilemma of Judicial Autonomy in Pakistan: A Critical Analysis

This work provides a twofold nature in relation to the law of Pakistan: firstly, constitutionalism being a broad public law concept applies to an analysis of the ongoing development and gradual maturing of this phenomenon in Pakistan. This endeavor helps place the thesis into a rich field of legal and law related literature that examines the trajectories of post-colonial countries in terms of their constitutional struggle and related developments. It provides a more descriptive framework that is useful in its own right as an orderly exposition of largely existing knowledge, ideally with updates on recent significant developments that major scholarly contributions from the earlier times did not yet included. Secondly, this thesis examines the dilemma of judicial activism, which is also referred to as public interest litigation. It endeavors to assess the extent to which judiciary of Pakistan may act as an autonomous entity that can rightfully set itself up as being somehow superior to the other constitutional entities, namely the legislature and the executive. However, the constitutional history of Pakistan elucidates that the role of military is an unavoidable additional stakeholder that impacts the judicial functioning in Pakistan. Constitutionalism not only outlines the sources from where the government derives its authority but also highlights the parameters for the exercise of that power. Montesquieu says that every state performs mainly three functions: legislative, executive, and judicial. To avoid undue concentration of powers, these three functions need to be performed by different bodies. In case, where both legislative and executive functions are performed by one person or body, possibility may arise that tyrannical laws may be enacted by the senate or monarch and those laws be imposed x in despotic manner. Similarly, there could be no liberty if judicial authority is not segregated from the legislative authority or the executive authority. In case where judicial and legislative functions are performed by one body, life and liberty of the people would be at risk to arbitrary control because legislature would be the judge. In case where judicial and executive functions are performed by one body, the judge instead of interpretation of laws may behave with violence and oppression. So, when these three main functions: law making, execution, and adjudication are concentrated in one body that would lead to an untoward position. In the constitutional history of Pakistan, the role of army is that of an unavoidable additional stakeholder and thus significantly impacts the position and role of judiciary. Throughout history, Pakistan has kept on shifting between military and fragile civilian rules where judiciary has often been used to legalize extra constitutional steps especially during military regimes. The establishment of a democratic government with its organs having real independence fairly gives an assurance that judicial autonomy would thrive in future. The Superior Judiciary of Pakistan has facilitated the despotic regimes and its associated interests, which created institutional disequilibrium and consequently undermined representative institutions. After its restoration in March 2009, judiciary asserted an unprecedented autonomy not only from the military regime, but also extended the same attitude towards the civilian government and considered itself as a representative of the public will. Judiciary established a self-conception of public legitimacy and accountability. Judiciary widened the scope of suo motu jurisdiction to a great extent and transgressed its powers of judicial review for so many times, which grappled the whole nation, putting them in a state of disbelief of the existence of an elected democracy. Excessive judicial activism and judicial involvement in every matter of xi the executive can damage the very existence of other state organs. In order to keep the democratic transition on a positive track, judiciary should not intervene excessively in the domain of other state organs. In terms of decision-making, state institutions gives an impression that the whole idea of checks and balances has been compromised. This dictatorial dominance and institutional imbalance has never remained completely unchallenged. Pakistan’s experience with judiciary suggests a rational compromise between judicial autonomy and its constraints. Maximum judicial autonomy, without any constraint, would certainly create impediments to the smooth-functioning of representative institutions and may consequently further strengthen the military and its affiliated interests. This current shift of democratic regime inevitably entails institutions with strong governing capacities, in order to rein in the ambitious military and to uphold the spirit of constitutionalism.