Editorial: The Riba¯ Case Pending for three Decades: The Federal Shar¯ı‘at Court, Pakistan may Fulfill its Constitutional Responsibility by Outlawing the Interest

2021 ◽  
Vol 11 (01) ◽  
pp. 1-13
Author(s):  
Muhammad Ayub
Keyword(s):  
Supreme Court ◽  
The State ◽  
Islamic Banking ◽  
Free Banking ◽  
Policy Decisions ◽  
Finance System ◽  
Banking And Finance ◽  
The Supreme Court ◽  
Almost All

While Islamic banking is being promoted by the State Bank of Pakistan (SBP) working parallel with theconventional banking since 2002, the Constitution of Pakistan requires that interest must be outlawed from The economy as early as possible [Article 38 (f)]. The legal trajectory of interest made its way to the Federal Shar¯ı‘at Court (FSC) after the 10-years moratorium on adjudicating fiscal and banking matters ended at the end of May 1990. The FSC and subsequently the Shar¯ı‘at Appellate Bench (SAB) of the Supreme Court of Pakistan delivered their landmark judgments in 1991 and 1999 respectively, but the state officials opted to hide behind some constitutional provisions, or the presumed view of some jurists /scholars to plead that the ‘interest" was not that rib¯a as prohibited by Qur’¯an. Although, the connotation of rib¯a has long been agreed at the level of Islamic ummah to include moderncommercial interest in rib¯a, and e_orts for evolving ‘interest-free’ banking and finance system are underway also including Pakistan, but there have been some hindrances in implementation of Islamic injunctions and the Shar¯ı‘at Courts’ judgments. The rib¯a case being reheard in the FSC since 2013, after it was remanded back by the SAB in 2001 is becoming gradually complicated. The debt trap for Pakistan’s economy is becoming increasingly painful requiring to transfer almost all resources for servicing the debt. However, little e_ort hasbeen made to transform the economy of Pakistan to risk and reward sharing and cooperative bases in the light of Islamic principles. During the hearing of the case in May this year the representatives of the state contended that "the non-justiciable policy decisions regarding implementable possibilities were beyond the jurisdiction ofthe Shar¯ı‘at Court.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

PERSINGGUNGAN KEWENANGAN MENGADILI PENYALAHGUNAAN DISKRESI ANTARA PENGADILAN TUN DAN PENGADILAN TIPIKOR / INTERCEPTION OF JUSTICE AUTHORITY OF DISCRETION ABUSE BETWEEN ADMINISTRATION COURT AND CORRUPTION COURTS

2018 ◽  
Vol 7 (2) ◽  
pp. 213
Author(s):  
Budi Suhariyanto
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Administrative Law ◽  
The State ◽  
Government Officials ◽  
Criminal Process ◽  
The Supreme Court ◽  
State Finance ◽  
The Law ◽  
To Receive

Diskresi sebagai wewenang bebas, keberadaannya rentan akan disalahgunakan. Penyalahgunaan diskresi yang berimplikasi merugikan keuangan negara dapat dituntutkan pertanggungjawabannya secara hukum administrasi maupun hukum pidana. Mengingat selama ini peraturan perundang-undangan tentang pemberantasan tindak pidana korupsi tidak merumuskan secara rinci yang dimaksudkan unsur menyalahgunakan kewenangan maka para hakim menggunakan konsep penyalahgunaan wewenang dari hukum administrasi. Problema muncul saat diberlakukannya Undang-Undang Nomor 30 Tahun 2014 dimana telah memicu persinggungan dalam hal kewenangan mengadili penyalahgunaan wewenang (termasuk diskresi) antara Pengadilan Tata Usaha Negara dengan Pengadilan Tindak Pidana Korupsi. Pada perkembangannya, persinggungan kewenangan mengadili tersebut ditegaskan oleh Peraturan Mahkamah Agung Nomor 4 Tahun 2015 bahwa PTUN berwenang menerima, memeriksa, dan memutus permohonan penilaian ada atau tidak ada penyalahgunaan wewenang (termasuk diskresi) dalam Keputusan dan/atau Tindakan Pejabat Pemerintahan sebelum adanya proses pidana. Sehubungan tidak dijelaskan tentang definisi dan batasan proses pidana yang dimaksud, maka timbul penafsiran yang berbeda. Perlu diadakan kesepakatan bersama dan dituangkan dalam regulasi tentang tapal batas persinggungan yang jelas tanpa meniadakan kewenangan pengujian penyalahgunaan wewenang diskresi pada Pengadilan TUN.Discretion as free authority is vulnerable to being misused. The abuse of discretion implicating the state finance may be prosecuted by both administrative and criminal law. In view of the fact that the law on corruption eradication does not formulate in detail the intended element of authority abuse, the judges use the concept of authority abuse from administrative law. Problems arise when the enactment of Law No. 30 of 2014 triggered an interception in terms of justice/ adjudicate authority on authority abuse (including discretion) between the Administrative Court and Corruption Court. In its development, the interception of justice authority is affirmed by Regulation of the Supreme Court Number 4 of 2015 that the Administrative Court has the authority to receive, examine and decide upon the appeal there is or there is no misuse of authority in the Decision and / or Action of Government Officials prior to the criminal process. That is, shortly before the commencement of the criminal process then that's when the authority of PTUN decides to judge the misuse of authority over the case. In this context, Perma No. 4 of 2015 has imposed restrictions on the authority of the TUN Court in prosecuting the abuse of discretionary authority.

James Kraig Kahler v. State of Kansas: On Writ of Certiorari to the Supreme Court of the State of Kansas

2019 ◽  
Author(s):  
Steven J. Twist ◽  
Paul G. Cassell ◽  
Allyson N. Ho ◽  
Bradley Hubbard ◽  
John Ehrett
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Supreme Court

Kansas V. Johnson: On Petition for a Writ of Certiorari to the Supreme Court of the State of Kansas

2020 ◽  
Author(s):  
Paul G. Cassell ◽  
John Ehrett ◽  
Allyson N. Ho ◽  
Bradley Hubbard ◽  
Matthew Scorcio ◽  
...  
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Supreme Court

Beshada v. Johns-Manville Products Corp.: The Function of State of the Art Evidence in Strict Products Liability

1984 ◽  
Vol 10 (1) ◽  
pp. 93-114 ◽  
Author(s):  
Jack Berman
Keyword(s):  
New Jersey ◽  
Supreme Court ◽  
State Of The Art ◽  
Strict Liability ◽  
The State ◽  
Health Hazards ◽  
Products Liability ◽  
The Supreme Court ◽  
Liability Claims

AbstractIn Beshada v. Johns-Manville Products Corp., the Supreme Court of New Jersey held that a state of the art defense is unavailable in cases brought under a theory of strict liability for failure to warn. The court indicated that asbestos producers may be held liable for their products' harms even if the health hazards of asbestos were unknown and not discoverable when the products were marketed. In a subsequent case, the New Jersey court held that state of the art evidence is relevant to whether a product is defective. This Case Comment examines these different uses of knowledge evidence in the disposition of products liability cases. It contends that manufacturers should not be held liable for unknowable risks. The Comment concludes that the state of the art defense establishes a logical limit on strict liability and promotes efficient resolution of products liability claims.

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