Justice Katju is a former Judge, Supreme Court of India. He is Chairman, Press Council of India
Related posts: Constitutional misbehaviour of the Pakistan Supreme Court (Part II) -by Justice Markandey Katju
Justice Louise Arbour concerned about direction of Pakistan’s Supreme Court
Note: We applaud Justice Katju’s bold and principled stance on the Judicial Coup in Pakistan. Tragically for Pakistan, its Judiciary, barring a few honourable exceptions like Justice Cornelius, Justice Dohrab Patel, Justice M.R. Kiyani, Justice Fakhruddin Ebrahim, have been at the forefront in validating coups. Pakistan’s Judicial history has few bright spots and many dark ones.
This Institute committed the “Judicial Murder” of Prime Minister Zulfiqar Ali Bhutto, as admitted to by one of its own (Justice Nasim Hasan Shah). It has not only made itself subservient to military dictators, it has also literally allowed dictators like General Zia ul Haq and General Musharaf to mangle the Constitution. One such blot on the Constituti0n is General Zia’s version of Article 63 – a fundementally flawed and biased law that is the favourite prop of this “Pro-Rape, Islamofascist” Judiciary.
Most of Pakistan’s Civil Society and its compromised, biased has also played an atrocious role in supporting this farce of a Judiciary. This urban upper-middle class segment of Pakistan’s society takes pride in abusing Bhutto and Benazir for their failings and compromises but never questions their own alliance with Jamaat-e-Islami and Lal Masjid/Sipah-e-Sahaba during the Lawyer’s Movement. The overturning of the Speaker’s verdict and the retroactive disqualification of the now former Prime Minister Gillani once again highlights the selective bias of this Judiciary. Without the utter sycophany and the tasteless efforts to give this Judiciary a near Divine status, media and civil society are deeply culpable in the ongoing Judicial Coup in this country. (End Note)
“Pakistani court has no right to dismiss a Prime Minister or overrule the constitutional immunity given to the President.”
When I was I was a student of law at Allahabad University, I had read of the British Constitutional principle ‘The King can do no wrong’. At that time I did not understand the significance of this principle and what it really meant. It was much later, when I was in law practice in the Allahabad High Court, that I understood its real significance.
The British were experienced and able administrators. They realized from their own long, historical experience that while everybody should be legally liable for his wrongs and made to face court proceedings for the same, the person at the apex of the whole constitutional system must be given total immunity from criminal proceedings, otherwise the system could not function. Hence the King of England must be given total immunity from criminal proceedings. Even if he commits murder, dacoity, theft, or some other crime, the King cannot be dragged to court and made to face a trial.
One may ask why should the King be given this immunity when others are not? The answer is that in the practical world one does not deal with absolutes. The British were one of the most far sighted administrators the world has known. They realized that if the King is made to stand on the witness box or sent to jail, the system could not function. A stage is reached at the highest level of the system where total immunity to the person at the top has to be granted. This is the only practical view.
Following this principle in British constitutional law, almost every Constitution in the world has incorporated a provision giving total immunity to Presidents and Governors from criminal prosecution.
Thus, Section 248(2) of the Pakistani Constitution states:
“No criminal proceedings whatsoever shall be instituted or continued against the President or Governor in any Court during his term of office.”
The language of the above provision is clear, and it is a settled principle of interpretation that when the language of a provision is clear the court should not twist or amend its language in the garb of interpretation, but read it as it is.
I therefore fail to understand how proceedings on corruption charges (which are clearly of a criminal nature) can be instituted or continued against the Pakistani President.
Moreover, how can the court remove a Prime Minister? This is unheard of in a democracy. The Prime Minister holds office as long he has the confidence of Parliament, not the confidence of the Supreme Court.
I regret to say that the Pakistani Supreme Court, particularly its Chief Justice, has been showing utter lack of restraint. This is not expected of superior courts. In fact the court and its Chief Justice have been playing to the galleries for long. It has clearly gone overboard and flouted all canons of constitutional jurisprudence.
The Constitution establishes a delicate balance of power, and each of the three organs of the state — the legislature, the executive and the judiciary – must respect each other and not encroach into each other’s domain, otherwise the system cannot function. It seems to me that the Pakistani Supreme Court has lost its balance and gone berserk. If it does not now come to its senses I am afraid the day is not far off when the Constitution will collapse, and the blame will squarely lie with the court, and particularly its Chief Justice.
Source: The Hindu
Judiciary in Pakistan has acted as subservient to wishes and agendas of army generals.