PM’s disqualification: ‘Pakistan’s top court has overstepped its bounds’
Former judge of the Indian Supreme Court Justice Markandey Katju has taken a dim view of the apex court ruling that disqualified Yousaf Raza Gilani from the premiership— asserting that a prime minister did not need a trust vote from the Supreme Court.
In an opinion piece written for The Hindu, Justice Katju – who is currently the chairman of the Press Council of India – has claimed that the “Pakistani Supreme Court, particularly its chief justice, has been showing utter lack of restraint. This is not expected of superior courts.” Substantiating his stance against the Pakistan’s highest court, he held that the language of the Pakistani Constitution with regards to this specific provision was clear.
He cited Section 248(2) of the Pakistani Constitution which states: “No criminal proceedings whatsoever shall be instituted or continued against the president or governor in any court during his term of office.”
He said according to the “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”. He said this principle was central for the efficient working of a system. “I fail to understand how proceedings on corruption charges can be instituted against the Pakistani president.”
“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.”
Published In The Express Tribune, June 22nd, 2012.
COMMENTS (78)
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If a person sees his/her own mistakes he/she would not commit them. However, the PCO SC judges have been using suo motu as weapon of mass destruction against the elected govt officials. They are interfering in every appointment by the executive and purely focused on political cases, while the real cases have been rotting for decades without any hearing.I know that judges in other countries want to keep a low profile but it is time that the top judges and lawyers from other countries come out and tell the truth. This is the best present friends and well-wishers of Pakistanis can award us. Thanks for a nice clean and easy to understand Op Ed for a great publication in Pakistan.
Let justice chaudhary put his own son behind bars and then we will see. questions should be asked that why CJ didnt take action when he knew about his sons wrong doings since years. in any other country CJ would have resigned and presented himself for inquiry. its fine if you want to treat your CJ as a god, but the fact remains that he is human and as fallible as others. PS. didnt he validated a dictators rule as well. now he is on high moral grounds somehow.
We do what others don't do and this is what makes us most popular and unique from rest of the world. We don't need any outsider. We know how to destroy ourselves.
Justice Markandey Katju's words are wise. It's dangerous if any of the pillars of state (Presidency, Parliament, Courts, Military) get carried away. The key to democracy is maintaining a balance between them. And the way the Supreme Court is in the headlines every other day, I would stay wary. Military is not the only coup we should be worried about.
@kaalchakra: “Indian judge, stay away. The last thing Pakistan needs is a justice system like that of India.”
Man, you must be so impressed with Bhutto's hanging by the Pakistani court!
Justice Katju of Indian High court has given his comment because he is learned judge and knows the constitution, who should give our answer and not,"WHO ARE YOU". Two days ago the famous newspaper GULF NEWS has written an editorial "CJ Pakistan acted beyound the law". What is the answer with us?
@Wahab Khan Afridi: Can I go and register case again SC judge or army officer? Will they come and claim immunity or I will be told that by law I cannot. Where does constitution isay that president has to claim immunity? Can some cite section of constitution that say that SC has to interprete law? Is it just convention? SC is writing a parallel constitution!!!!
I'm surprised at such narrow mindedness being shown by some of the readers.Why every opinion from India is being looked at as if it is only to name and shame pakistan for it's inefficiencies, Justice Katju is an Respected jurist whose opinions and judgements are quoted in Pakistani judicial circles.If you read any international newspapers they all criticise CJI's action to disqualify PM as Judicial overreeach an big blow to fragile democratic process. There is nothing wrong in giving immunity to President & it's given in every civilised society. And arrest as well as starting of criminal proceedings against him may lead to collapse pf entire country. There is nothing wrong in concluding that pakistan's SC has gone berserk and playing to the gallery & such a step at a time when Country faces problems related to Inflation, Unemployment, Nato Transit & terrorism is totally unwarranted and going to create more troubles for the state of pakistan and I think any progressive Indian aur Pakistani would agree with me.
@kaalchakra: "Indian judge, stay away. The last thing Pakistan needs is a justice system like that of India."
Well then, why do your judges cite Indian case law?
PCO judges and their cronies were constantly quoting Indian judiciary's Keshwanands case till yesterday in order to abrogate 18th amendment even at the cost of disregarding Pakistan's own judicial precedents and now that an Indian judge has remarked about the same he is being denounced as nobody!
Shameless double standards of Pakistani judiciary and its supporters!
@Ahmed HM: So why dont you impeach the president who kept the money overseas ? why only PM?
@Dr.A.Tewari: you have fantastic sense !
You tried dictatorship. You were not happy. You don't like democracy either. You guys should embrace sharia and see how that goes.
@S.H. Ali Raza: Certainly Satan possessed a lot of knowledge when Allah ordered him to bow before Adam. Hazrat Ali (RA) compared knowledge (through a known legend) to a drop of rain that can become 'pearl' upon dripping inside a shelled mollusk or become 'poison' upon finding its ways down the throat of a snake. So, anyone claiming to be pregnant with knowledge should think of serious self introspection.
Indian judge, stay away. The last thing Pakistan needs is a justice system like that of India.
Caution to Justice Katju - Sir please watch what you say or do or write, this CJ might take a suo-moto action and hold you in contempt....
@Ahsan Mlk: "Well our constitution is a bit different. You wouldn’t understand Mr.Judge! We don’t just sit by and allow criminal activity to continue.
" Ah. But your constitution ISN'T different. Your constitution also provides immunity to your president and your CJ did something that is not permited by constitution.
@ishrat salim: "Sonya…..exactly….if that was the case as commented by yr honorable indian CJ than why wud an Indian firm nominate CJ for an international award ? bcz our CJ is doing a good job & thus internationally recognised., hence , yr comment & that of yr indian CJ stands nullified"
That award was for a very specific judgmet - where he did not endorse PCO in 2007. It was not an overall judgment on his decisions. So the fact that he was recognized for one good decision does not mean that comments related to all other decisions are null and void.
@EyeRoll!: "Yes expect the Indians to as usual to come and advise us since things are working out so well for them back home arn’t they? Atleast our SC is agressively keeping a check on the PM and the various corruption allegations, but in India the corruption of the Congress has been out of control with no one to rein it in. This is the difference between us and them."
Your prime minister was convicted due to contempt of court NOT due to corruption. In India several people have been convicted for corruption while not a single person in Pakistan has been convicted for corruption. Likewise several people in India have been convicted for terrorism whereas in Pakistan not a single person has been convicted for terrorism. In India there are othermeans of accountability besides conviction also. For example ministers and chief ministers are foreced to resign their position by public pressure if they fail to perform. This does not happen in Pakistan either but is a much needed form of accountability. In India there is no judicial overreach into executive functions and unlike Pakistan the checks and balance between judiciary, executive and legislature are well defined and also visible in practice.so yes there is a difference in the 2 countries but unlike what you are indicating, it does not show Pakistan in a positive light.
@EyeRoll!: "Yes expect the Indians to as usual to come and advise us since things are working out so well for them back home arn’t they"
I do not believe Justic Katju provided any 'advice' to you. He wrote an opinion piece in an Indian newspaper.
and yes - India's judiciary has its problems but does not overreach into executive functions. The checks and balances between executive, judiciary and legislature are well defined and work well in practice. Army is not even considered a separate institution and rolls under the executive.
Its all looks like a great mess..
One corrupt Prime Minister go, and there come another corrupt Prime Minister. Whether the honourable SC Chief Justice disqualify him also. The parliament is the correct body to launch a no confidence motion against the Prime Minister or the President. The Prime Minister is the top executive and the President is the supreme commander of the armed forces. Peoples anger on corrupt leaders is a different thing and the judiciary cannot join their bandwagon to bring down the government. Even, the judiciary is also corrupt, whether the President or the Prime Minister got powers to remove them.
@Nael, awesome rebuttal! The amount of ignorance in this comments section is staggering.
I am amazed at the non-technical basis of criticisms of the learned judge's view which he has expressed in his country and in their newspaper. His arguments seem to have substantial merit. The current CJ has made some seriously flawed judgements in the past and his actions have to be analyzed by learned people from wherever they are. Pakistan will be the beneficiary. I wish the former justices of the US Supreme court would comment as well. That will enrich the Pakistan judiciary.
Britian has no written constitution.
who care british danm laws any more we are free country ...... and we need sharias law period.
Wow the comments here are once again so ignorant. The opinions of an Indian Supreme Court judge are very important because both India and Pakistan are countries that follow the common law tradition. Decisions made by Indian courts as well as by other common law courts such as Canada, Australia and the UK hold weight in Pakistan's courts. In fact the judgement by the Pakistan Supreme Court on Gilani's dismissal cited decisions by Indian courts as a basis of precedent. The Indian judge here has made a very good point. If our sitting political officials are constantly open to prosecution, the government will simply stop functioning as it will be subject to constant judicial challenge. Opposition politicians are now free to constantly bring cases against the ruling government. You may rejoice today because its Zardari or Gilani, but the same thing can now happen to any future PM including Imran Khan and Nawaz Sharif. Government has to take unpopular and legally difficult decisions; a function in which it will now be extremely constrained. This is dangerous.
Seems this proves that india wants a bankrupt pakistan
He said according to the “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”.
Well our constitution is a bit different. You wouldn't understand Mr.Judge! We don't just sit by and allow criminal activity to continue.
From our constitution's point of view, every citizen is equal. :)
honourable indian judge should also read that our honourable judge has asked the Prime minister yousaf raza gillani to claim for imunity so thats where the problem lies and supreme court has dicided to take action against yousaf
I agree with Justice Katju. Even though we admire CJ but the fact remains he should chose his battles carefully. I feel he is wasting time and resources on Zardari 's minions. Yousuf Gilani was nothing more then a letter carrier for the President so is newcomer Raja Ashraf etc. All of them corrupt to the core and each new comer worse then one before it. Also SC should mind its business and elections should decide who stays and goes not SC. It is people elected representative who should have higher authority and not SC. It can't Change the President who is at the core of this whole fiasco and as long as and his siblings head the PPP they will never allow anyone to open cases against him and his late wife. So CH should focus on issues that matter to public at large. Law and order and eradication of corruption and other ills in all sectors of society.
Justice Katju see the comments!! the commentators want to say that you are an Indian so how you dare to pass even a legal/technical comment on our holy judiciary and our holy judges.
BACK OFF........mind ur own business.....we don't need ur advice
@People, As far as I know Britian has got no constitution, so stop giving example of britian system.
@Ordinary Villager
So that means you agree with Israel's behaviour towards Palestine? Interesting.
@Ahmer Ali
probably not, but they are happy to substantiate their verdicts with precedents from the indian courts.
Problem is that President can only be ousted from the office through impeachment, and in current situation it is not possible. On the other hand SC and two political parties of Punjab want Zardari out of Presidency. So they did what they did, and they'll do anything to achieve their objective, Constitution or no Constitution. Happy hunting guys!
@Salman
I think you're own argument applies to you. Because as per constitution, President has complete immunity for criminal cases, not civil.
Pakistan is new to democracy - or at best never really experienced it. It is easy to think that an aggressive SC overstepping its bounds, is real democracy. Well, it isn't. You have traded one type of dictatorship for another. Watch and wait for the fallout of arbitrary judicial decisions.
The office of the President in Pakistani Law is not an instutition like it is in USA. The President is a head of the State & symbol of unity as envisaged in Article 41(1). Therefore, to refer a public functionary as an institution is in it self a collapse of the system. He cannot act independently and the advise of the Prime Minister is BINDING on him under Article 48, therefore it is a seat of symbol with very limited powers. By far this seat is not an Institution under the Pakistani Constitution.
@Arya: Exactly.. that's what Justice Katju opined..
Section 248(2) of the Pakistani Constitution which states: “No criminal proceedings whatsoever shall be instituted or continued against the president or governor in any court during his term of office.”’
Constitution is read thorugh only two doctrine namely doctrine of Reading In and Reading Out. While reading Art. 248 (2) what comes to my intrepretation is that "no criminal proceedigs whatsoever shall be instituted" OR "continued".
The question is are there any criminal proceedings being instituted or continued. Certainly Not.
The text of Paragraph 178 of Dr Mubashir Hassan's Case directed to "write a letter withdrawing the earlier letter of AG Malik Qayyum to switzerland". Will that amount to reopening cases. Yet again, No; because under Art.33 of the Vienna Convention all heads & former heads of states are granted immunity abroad. So, in affect no criminal case is being instituted or continued. The only problem is that if the Letter is written to withdraw the earlier letter by AG Malik Qayyum; Zardari gets dirty by because documents become public and a pandora box opens and PPP's next election along with Late Ms. Bhuttos delima will be at stake.
President of Pakistan is Pakistanis very own institution. Does not matter a corrupt is sitting there, the institute is still sacred, and it should be guarded. Zardaris come and go. People may elect a good person in future. So, justice Katju was referring to this institution and need to save it from an aggressive Judiciary, however good its intention is. A corrupt Zardari might have swindled huge money and taken country back, but let the country's system too not collapse because of court's insistence on this individuals punishment. The situation is like taking away knife from kids hands.
"He cited Section 248(2) of the Pakistani Constitution which states: “No criminal proceedings whatsoever shall be instituted or continued against the president or governor in any court during his term of office.”' - Does this section still exists in the constitution?? If so, i think there is only one way to vacate the President from his office, by passing impeachment motion in parliament (which may not be possible under current circumstances)..
I think, whatever the laws and constitutions the world (to some extent) follows would not apply to current Pakistan. Here the situation is so odd that the entire things are taking unusual twists and turns which one can never ever expect..
Something great should be done to make all the systems fall in line and trust & respect each other with due respect to the constitution..
Justice Katju's view in this context may be something thought provoking, but the people are not that much patient to wait..
As far as publishing views/articles/news whatever from/of foreign authors (in particular, India) on internal affairs would greatly hurt public sentiments and is evident from the comments posted here so far.
“I fail to understand how proceedings on corruption charges can be instituted against the Pakistani president.” When the President is extremely corrupt, charges can be levied against the President. The situation in Pakistan is totally different and I believe that SC took this step in extreme circumstances when it had no other option.
Sonya.....exactly....if that was the case as commented by yr honorable indian CJ than why wud an Indian firm nominate CJ for an international award ? bcz our CJ is doing a good job & thus internationally recognised., hence , yr comment & that of yr indian CJ stands nullified.
Most of the comments above depicts a further lowlessnes of the nation who is not even ready to listen to a constitutional expert just because he is an Indian. What they don't understand is the two countries got British system of parliamentary governance with similar settings. Supreme institutions of all the countries have alot in common which allows experts to make comments on decisions taken in one country. Can I ask the guys here as to why our chief justice went to UK last month to claim International justice award from an Indian law firm? you celebrated it didn't you?
Didn't show restraint? What was he doing for the last 3 years if not showing restraint? What a joke.
Judge katju comments were out place, sorry to read Indian ex-cj remarks-it reflected his poor judgement.
Strongly agree with Indian Judge.
Mr. Indian judge mind your own business and don't comment on this Pakistan's extremely internal issue. Did any Pakistani judge ever interfere or comment on your any decisions?
What justice Katju has overlooked is that the Supreme Court has been exercising extreme restraint against blatant wrong doings and the people who are the ultimate beneficiaries of the Law were left dazed and empty handed, until now.
@Ordinary Villager
Indians have no right to comment in the internal affairs of Pakistan
An Indian Judge wote his opinion in an Indian newspaper. He has full right to say what he wants.
If you dont like it, don't listen or you can just work yourself into a frenzy, whichever suits you.
BTW heard that Justice Chaudhry has sited two references from Indian Judiciary in his verdict in this regard.. is that true???
Indian judges should be more concerned about the human rights violations and atrocities taking place in Indian occupied Kashmir.
Okay, lets just ignore all court orders. Ok?
If you don't know the facts of case please refrain from writing such R.......... .The nature of case against president is criminal in nature .
Finally Judges has been judged.
I agree with the observation of the learned Former judge of the Indian Supreme Court Justice Markandey Katju This has also set a wrong precidence which will be used against the PMs who are today supporting it. This decision is akin to the one taken by by Egypt's supreme court to dissolve the parliament which has plunged the country into turmoil and uncertainty.
That the best 'logic' most commentators found here was that Justice Katju is not a Pakistani is a very eloquent comment in itself :)
Well if our courts have crossed the limits then we are happy for this move. This govt has gone low in every kinda of way and this is the best way to stop these holligans.
Indian courts aren't strong enough like our.Learn from us ,don't teach us.We got the best man who is doing pretty much good work and we being PAKISTANI are admiring his work,
This is pakistan where democracy is only in the buddig stage. Otherwise how can one justify a killer of a governor is getting a hero's welcome and the chief justice & his team are working 24X7 to bring down an elected govt without even showing the patience to wait for the completion of their term
Yes expect the Indians to as usual to come and advise us since things are working out so well for them back home arn't they? Atleast our SC is agressively keeping a check on the PM and the various corruption allegations, but in India the corruption of the Congress has been out of control with no one to rein it in. This is the difference between us and them. Both countries need proactive SC to make sure governments dont take the electorate for granted and misuse their authority!!!!
@Sheharyar - You should understand.. this is exactly what ET wishes to say on this issue. They have no choice but to express through an outsider. The reasons best known to you.
@Sheharyar:
Who cares what you think about the judge who thinks this !!
India dont need to be like an America in this region. India is not like an Israel and Pakistan is not like Palestine. Indians have no right to comment in the internal affairs of Pakistan. Mind your own business and dont poke your nose in the affairs of Pakistan.
Indian Judge should mind his own business. They do not have a president who has placed 60 million USD in foreign currency accounts and is protected by the PM.
Did anyone tell him that Court orders were not obeyed for 3 years? and did anyone tell him that mere writing of letter does not convict the President? Does he live in Pakistan?
Who are you please go and worry abt ur country
Is there aby doubt left now? Justice Munir is the only winner of the chaos created to usurp will of the people which had begun to take route.....
Is there any thing to debate about now? Justice Munir is the ultimate winner of this chaos created to usurp will of the people.
With due respect I wish to point out to jutice Katjoo that it's Pakistan where shariya under plays it's role over the constitution of the country . Blood money is the solution for a murder . Plz. don't compare this country with rest of the world and be prepare to face an allegation of over stepping yout own limit for intefering in their internal affairs . This sole right now only rest with Drones.....?
Who cares what an Indian Judge thinks about our SC? Get a Life ET!