Judicial responsibility and organs of state

Published: June 26, 2012
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The writer, a judge of the Supreme Court of India from 2006 to 2011, is chairman of the Press Council of India

The writer, a judge of the Supreme Court of India from 2006 to 2011, is chairman of the Press Council of India

After my article about the constitutional misbehaviour of the Pakistan Supreme Court was published in The Hindu (June 21), I received several queries and objections regarding it. Hence an explanation is called for, which I am giving below:

The first objection is that the British Constitutional principle, “The King can do no wrong” applies to a monarchy, not a republic. My answer is that I am well aware that Pakistan, like India is a republic. However, in both these countries, total immunity from criminal prosecution is granted to the President. Thus, Section 248(2) of the Pakistan Constitution states: “No criminal proceedings whatsoever shall be instituted or continued against the President or Governor in any Court during his term of office.” Article 361(2) of the Indian Constitution is identically worded.

One may ask, why should this immunity be given to the President and Governor when all other citizens have to face criminal prosecution for a crime? The answer is that in the real, practical, world there are no absolutes. The British, who were one of the most far-sighted administrators the world has known, realised from their long, historical experience that if the King was dragged to a law court, put up on a witness box, made to face a criminal trial, and sent to jail if found guilty, the system could not function. Hence, an exception has to be made to the general rule and immunity granted to the person at the apex of the constitutional system. We, in India and Pakistan, have followed the British principle instead of the American principle (in the US Constitution there is no such immunity granted to the president).

The second objection is that this immunity is only to the official acts of the president, not his personal acts. This again is a specious argument. There is no such distinction made in the provision and the use of the word ‘whatsoever’ strengthens this view. If we accept this objection we will be adding the words ‘except for his personal acts’ after the word ‘whatsoever’ in Article 248(2). It is a settled principle of interpretation that one should neither add, nor delete, words in a statute.

The third objection is that after the National Reconciliation Ordinance was declared unconstitutional by the court, criminal cases can continue against Mr Zardari. This is not correct. Article 248(2) says that not only can no criminal proceedings can be instituted against the president, but also that none can be continued. Hence, even if a criminal case had been instituted against Mr Zardari before he took oath as president, it cannot continue as long he is the President.

The fourth objection is that Mr Zardari’s very election was illegal since the NRO was declared unconstitutional. There are several replies to this objection. Firstly, Article 41(6) of the Pakistan Constitution states: “The validity of an election of the President shall not be called in question by or before any Court or other authority.” Secondly, the period of limitation for challenging such election has long expired. Thirdly, the eligibility for being elected a president is mentioned in Article 41, and the disqualification in Article 63. How was Mr Zardari ineligible?

The fifth objection relates to the court’s order disqualifying and effectively removing Yousaf Raza Gilani from the post of prime minister. Reliance is placed on Article 63(1)(g) of the Constitution which says that a person is disqualified from being a member of parliament if he is convicted for defaming or ridiculing the judiciary. In my opinion, it is not every conviction which disqualifies a person under this provision. We have to see the nature of the act which led to the conviction. If the prime minister had attributed some corrupt or ulterior motive to the Court, it would certainly have been defamatory and if he had called the Court ‘stupid’, it would have been ridiculing the Court. But as far as I know, Mr Gilani has done none of these things. Instead, he respectfully told the Court that it had no jurisdiction to pass orders which would directly or indirectly violate Article 248(2). How is this defamation of the Court? If this is regarded as defamation, then whenever a lawyer tells a Court that it has no jurisdiction that lawyer can be hauled up for contempt of court and sent to jail.

Moreover, this proposition enunciated by the Supreme Court can be very dangerous for democracy, because if the chief justice and his companion judges wish to oust a prime minister (hypothetically, because of personal animosity or some other reason) they have only to pass an order without jurisdiction and if the prime minister objects to it, they can convict him for contempt of court and then disqualify him. This will make the Supreme Court a superior body above the other two organs of the state, instead of only one of the three equal coordinate organs.

In all countries having a parliamentary system of government, 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 for quite some time, the Pakistan Supreme Court seems to be playing to the galleries and not exercising the self-restraint expected of superior courts.

I wish to make it clear that I am not a political person and, in particular, I have nothing to do with the politics of Pakistan. I personally do not know Mr Zardari or Mr Gilani and I am neither for nor against them. I expressed my views purely from a legal and constitutional angle because I strongly felt that for some time, the Pakistan Supreme Court had embarked on a perilous path of confrontation with the political authorities which would lead to disastrous consequences for the country.

When former General Pervez Musharraf removed the chief justice, we Indians condemned this attack on democracy and we were happy when he was reinstated. However, subsequently he and some of his companion judges have acted in a manner which has prompted my concern as expressed in this piece of writing.

In my judgment in Divisional Manager, Aravalli Golf Course vs. Chander Haas (which can be seen online) I have emphasised the need for judicial restraint. This is particularly necessary for the superior courts, because of the three organs of the state (legislature, executive and judiciary), it is only the judiciary which can determine the limits of jurisdiction of all the three organs. This great power must, therefore, be exercised by the judiciary with the utmost humility and self-restraint, otherwise the delicate balance of power in the constitution will be upset and there will be chaos.

I do not mean to say that judges should never be activist. In certain exceptional circumstances where the public interest strongly demands judges may be activist, but ordinarily they should be self-restrained. In particular, judges should ordinarily avoid entering the political thicket, as Justices Holmes, Brandeis and Frankfurter of the US Supreme Court strongly advocated.

Published in The Express Tribune, June 27th, 2012.

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Reader Comments (101)

  • White Russian
    Jun 26, 2012 - 11:42PM

    Purely legal line of reasoning of a thoroughly professional mind. Courts would disrupt everything if they step out of their narrow legal ambit, or they can slowly and intelligently guide a society towards stability by practicing judicial restraint!

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  • Ali tanoli
    Jun 26, 2012 - 11:44PM

    Good to see u sir i have heard and read lot about u.

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  • :D
    Jun 27, 2012 - 12:01AM

    Excellent and very honest comments by Mr. Katju. Highly appreciate. I hope pakistan will have judges like you in SC in near future.

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  • kaalchakra
    Jun 27, 2012 - 12:04AM

    Sir, it would be much appreciated if you keep your advice to your side of the border, fir for your conditions and interests. Thank you.

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  • C. Nandkishore
    Jun 27, 2012 - 12:06AM

    My word, ET, you are the best. Getting all the best brains. I am really really enjoying ET and learning a lot. Thanks.

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  • Mirza
    Jun 27, 2012 - 12:06AM

    Thanks a lot for a top legal analysis of the judicial activism in Pakistan. 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 WMD 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.Recommend

  • ishaq
    Jun 27, 2012 - 12:08AM

    Pakistani Judiciary is the most Politicised one!!!!!!!!!!!!

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  • imran bhatt
    Jun 27, 2012 - 12:20AM

    In Pakistan, every institution is not doing what it is supposed to do. Army failing to guard the geographical boundaries of Pakistan is bent on guarding its non-existent ideological boundaries in this globalised world. Judiciary instead of playing by the book (Law and Constitution) is playing to the galleries. Media instead of reporting sensationalise news events. And Parliamentarians have totally abandoned their primary job of enacting laws for the betterment of people they represent instead they busy themselves improving their own lives.

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  • Sonya
    Jun 27, 2012 - 12:22AM

    Respect cannot be demanded, it is always earned (of course through personal character and professionalism). Our chief justice has become controversial, he should resign and go home before it is too late.

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  • Asad
    Jun 27, 2012 - 12:30AM

    Hopefully an independent piece of writing can bring some sense to our judiciary. The dangers of the judiciary over stepping its authority are grave. They are setting the course for a confrontation. A great article btw.

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  • m.b.f.h.
    Jun 27, 2012 - 12:34AM

    I appreciate and commend Mr. Markandey Katju and Express Tribune for so much enlightening in such a concise briefing. We Pakistanis are blessed to have the opportunity to experience such a discourse without even getting up from the dining table. I request the media and the scholars of India & Pakistan to please come forward in the name of knowledge to discuss such issues more frequently in future.

    It’s true: On the Path-of-Knowledge when a Muslim was asked to go even to China he would not get there without stopping in India first. That also tells: The student was expected & required to have a very open mind that is without any Pride or Prejudice to cross the border of his town and travel for days to arrive into a new & strange land only for the sake of “Knowledge”.

    Along with bi-lateral trade issues we must also work on sharing of educational ideas with same enthusiasm and zeal just for the benefit of masses, it’s their right.
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  • S.H
    Jun 27, 2012 - 12:36AM

    Very nice article with strong and convincing arguments. However the public in general has no good perception about Zardari and that is why people are not looking into the merits or demerits of the court decision on writing letter to the Swiss authorities.
    I myself have deep regard for the chief justice and I support his every decision without using my mind particularly when it targets the present regime, however now I am convinced that the decision of writing a letter to the Swiss authorities was though famous but wrong.
    To be honest, we the public are tired of their incompetence that’s why we feel happy whenever a decision comes against this government.

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  • Javaid R. Shami
    Jun 27, 2012 - 12:37AM

    Thank you, sir for your explanation which I have no difficulty in understanding and accepting. Now, if only the chief judge and his brethren were to understand and accept it too…

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  • Jun 27, 2012 - 12:38AM

    Great writeup sir. people like you should keep on serving the humanity . you are an asset to the entire Indian subcontinent.

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  • Jpy
    Jun 27, 2012 - 12:55AM

    A very sensible article. Very apt explanations

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  • Mahmood Saeed
    Jun 27, 2012 - 1:01AM

    Mr Katju has no first hand experience of life in Pakistan, the shenanigans of the corrupt and the machinations of the powerful. From his ivory tower he has chosen to pronounce seditious views……………….not a helpful exercise, Sir.

    I put two questions to the good judge when his original sin wa published in the Hindu, These have remained unanswered and I repeat these here

    NRO judgment (given by a bench consisting of all of its judges) was sent to the Government to have the NRO validated by the Parliament. The government could not get this done and hence the start of the NRO implementation case. The Government never pleaded the immunity provisions and in fact shied away when the Court encouraged it to do so.The Court has shown examplary patience and allowed the Government to drag the proceeding for as long as it could. How can any one accuse the Court of misbehaviour?

    Mr. Gilani chose not to appeal his conviction and hence paid the price. He could have prolonged his tenure by appealing the verdict and then dragging it like the main case. How can any one fault the Court?

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  • Shahbaz Asif Tahir
    Jun 27, 2012 - 1:06AM

    No one is above the law. It is about time that this criminal President,
    is bought to the book, for his loot, plunder, murder, and several other actions.
    We Pakistanis do not need an Indian, to advise our courts. Our judiciary is well
    up to the task. Perhaps it would have been better, that you had instead praised it
    for chasing these poisonous snakes, who are leading this country towards destruction.

    “To you is your way, and to me is mine” (Surah Kafiroon) “Holy Quran”

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  • Mustafa Kamal
    Jun 27, 2012 - 1:08AM

    Thanks for a neutral analysis Sir!! Hope now people will realize this article is not written by any lawyer, judge and journalist of Zardari Camp.

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  • Nagpuri
    Jun 27, 2012 - 1:25AM

    Very aptly put. What SCOP (Supreme Court of Pakistan) is doing is not only ridiculous and dangerous, it bordering on madness. This is either driven by 3rd world messiah complex, spite or pure revenge. Whatever may be the cause it is about time it is put to end.

    It is time for Pakistan parliament to start impeachment proceeding against CJ of SCOP.

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  • Alucard
    Jun 27, 2012 - 1:42AM

    Beautiful article, thoroughly professional and concise. Lets hope the emotionally charged lawyers and judges in Pakistan as well as their over-zealous supporters realise the long-term mess this PCO populist judiciary is getting Pakistan into. I hope the Supreme Court will start working with and not against parliament soon.

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  • Pashtun voice
    Jun 27, 2012 - 1:50AM

    Well – seems like a pretty good analysis, even someone like me can understand. CJ sahab, I am sorry to say but you may have gone beyond the authority bestowed upon you by the constitution.

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  • Athar
    Jun 27, 2012 - 2:02AM

    Instead, he respectfully told the Court that it had no jurisdiction to pass orders which would directly or indirectly violate Article 248(2).

    Dear Justice sahb does not know that Govt. never took this line in the court through its lawyer. Court has to decide on the basis of those arguments presented before them not on the basis of those arguments presented in political/TV talk shows or in the newspaper.

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  • Kamal
    Jun 27, 2012 - 2:03AM

    Thanks ET for publishing this valuable analysis by the learned judge of the Indian SC…As a lawyer I absolutely agree with him .Ch Iftikhar has made a mockery of our Constitution and rule of law in his vendetta and greed.. I am not a supporter of PPP, but our CJ has clearly violated and shows no respect for, inter alia, Article 248 (complete immunity of the President from any criminal prosecution WHATSOEVER) and secondly Art 89 ( the sole, unchallenged, absolute power of the Speaker of NA to disqualify a member). This CH thinks he is abour our laws and above our Constitution. He should be fired and charged for treason…

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  • Jeffmahagaonvi
    Jun 27, 2012 - 2:42AM

    Thank you very much for the article. I hope that It may help our CJ & other judges
    to correct their constitutional misbehaviour in future.

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  • Suraj
    Jun 27, 2012 - 2:45AM

    Thanks for very nice explanation, Sir.

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  • Uza Syed
    Jun 27, 2012 - 3:54AM

    Yes, it’s none of the judiciary’s business to run the state or regulate those who are elected by the people—–I guess this is exactly what most of us, who are blamed for being anti SC or its CJ, have been warning against. It’s still not too late, hopefully, for our judicary and the ‘hyperactive judges’ to be self-restrained and pay heed to the wisdom of many before them which suggests that, “judges should ordinarily avoid entering the political thicket”. Take advice of brains such as Justices Holmes, Brandeis and Frankfurter of the US Supreme Court and, of course, the good and learned man Justice Markandey Katju.

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  • Muhammad
    Jun 27, 2012 - 4:47AM

    Thanks Mr Katju for writing it, bless u for bringing the truth to this supreme court which has become totally biased & politicized.

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  • Kailash
    Jun 27, 2012 - 5:19AM

    People may disagree with Pakistan sc but this guy is no saint. This guy was recommending to ban Facebook and twitter in India cause the postings were not to his linkings and his moral standards

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  • Umer
    Jun 27, 2012 - 5:35AM

    Can we not have Judge Katju as the CJ of Pak SC until this mess is sorted out?

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  • Pollack
    Jun 27, 2012 - 5:38AM

    @kaalchakra: “Sir, it would be much appreciated if you keep your advice to your side of the border, fir for your conditions and interests. Thank you.”

    You have no reasonable argument to make. Your attitude is similar to a weak person who throws the ball away and walks off when it clear that he is going to loose the game.

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  • Mirza
    Jun 27, 2012 - 8:00AM

    To all those who liked this Op Ed, please think that why does the deep state wants to create walls between the two countries? They do not want Pakistanis to see the light on the other side of the wall including economic progress, secularism, the scholarly discussion, education, common culture and healthcare to name a few. This is just one Op Ed in one Pakistani paper, the deep state and enemies of democracy do not want the voters of Pakistan learn from the experience of their neighbors. Please keep up with these debates to help Pakistani brothers. The legal scholars of the free world should condemn the judicial dictatorship the same way they opposed Gen Mush’s dictatorship. How easily and simple the honorable Indian judge has explained the position PM Gilani has taken that it is against constitution to write a letter to a foreign country to prosecute sitting president of Pakistan. If Gilani would have done that he would have gone against constitution and could be tried for that by a later court.

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  • Hasan
    Jun 27, 2012 - 8:10AM

    This is the opinion of a retired SC judge; it is his opinion. I have no doubt that ET could quite easily obtain various opinions from various sources. The law is not always black and white and it is very important for us all to be aware of this fact.

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  • Abdullah
    Jun 27, 2012 - 8:25AM

    Thankyou Sir,for your letter
    Unfortunately judiciary is politicized in Pakistan

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  • imransbb
    Jun 27, 2012 - 8:40AM

    What is happening in Pakistan is very unfortunate. Views of prominent lawyer being overruled by journalist, Watch the programe failsay ap Ka http://getpakistan.tv/2012/06/june-26-faisla-aap-ka-2/ Where Farkhru-deen G Ibraheen clearly stated that supreme court is overstretching and how his argument overruled foolishly by Shaid Masood

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  • vijaygkg
    Jun 27, 2012 - 9:49AM

    @kaalchakra:
    Exactly.My analysis is at vijaygkg.wordpress.com/2012/06/23/why-cjp-choudhary-is-correctand-katju-wrongin-the-islamic-republic-of-pakistan/ – none of Katju’s arguments apply in Islamic republic

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  • Princess
    Jun 27, 2012 - 9:50AM

    When the parliament stops performing its duties, the void will be filled in by someone outside. In this case, it’s the SC.

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  • gp65
    Jun 27, 2012 - 9:54AM

    @Kailash: “People may disagree with Pakistan sc but this guy is no saint. This guy was recommending to ban Facebook and twitter in India cause the postings were not to his linkings and his moral standards”

    His opinion on facebook and twitter which indeed are social media were in his capacity as Chairman of Press council of India not in his capacity as member of Supreme court. Press council IS the right place to regulate media not the judiciary. I agree with you and most people who disagreed with his opinion that social media is where content is driven by individuals and the media per se does not exercise editorial control should not be monitored in the way that content from controlled media such as TV, radio, newspaper. But this is a difference of opinion. HE did respect other people’s opinion on the issue and did not try to imlement his own views unilaterally. His behavior thus even in that aspect is consistent with his general democratic demeanor.

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  • harkol
    Jun 27, 2012 - 11:11AM

    Kailash: You are wrong about Katju. He may have views that you disagree with, but he didn’t ask for a ban on Facebook. What he said was it is not unusual for folks posting stuff in Facebook be held accountable, and also to ask for the censorship rules applicable to other media in the country be applicable to Internet.

    It is a different debate. For example, you can’t have porn on Indian TV channels, but there is no such rule on internet. While transmission media is different, how is Youtube much different than Satellite TV??

    I am against censorship of any kind, but I realize there is a strong argument for it too.

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  • Abbas
    Jun 27, 2012 - 11:30AM

    Excellent, very reasoned and logical piece of writing Sir. Could you please email this to Supreme court of Pakistan. A week before I had arguments with my friends on this issue and I pointed out the very similar reasons but my arguments were rejected by saying that I have no authority to comment on the constitutional language. But I am very glad to see your article which substantiated my arguments to a great extent.

    Long Live My Lord!!!

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  • abid
    Jun 27, 2012 - 11:41AM

    the last paragraph of your article answers all of your objections regarding judicial activism in Pakistan.
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  • Jun 27, 2012 - 11:44AM

    I agree in principle that Supreme Court should exercise judicial restraint. I just have few observations and a question to share with the respected author: In an environment in which hindrances are created in the investigations of cases, investigation teams are changed during the course of investigations, law enforcement officers are sent to far flung areas in punishment for pursuance of cases involving big fish, where every effort is made to disobey the court orders, where corrupt officials removed from posts are re-posted somewhere else with executive authority and where people in top slots openly abuse court orders (decorum in court and press conferences etc) – how would respected Mr. Markandey Kanjtu act as a Supreme Court judge?

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  • Qasim
    Jun 27, 2012 - 11:48AM

    @kaalchakra:
    Why, look at the message; are his arguments flawed? Do not try to shoot the messenger just because he is from the other side. That is the crux of our problems; averse to opposite views even at the cost of truth.

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  • ahmed
    Jun 27, 2012 - 11:50AM

    Dear Sir,
    thanks for enlightening us..extremely professional and neutral view. we must all fight to preserve and strenghten the system.

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  • Barrister Rizwan Ahmad
    Jun 27, 2012 - 11:57AM

    Dear Mr. Katju

    Thank you for your reply on all the issues that I raised on Beena’s blog on this forum. It is really helpful. I went through all the judgments that you referred to me in your email. It has brought clarity in my mind over many issues.

    Thank you

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  • A J Khan
    Jun 27, 2012 - 12:11PM

    “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.” Write the honorable Justice Markandey Katju.
    As a Pakistani, I agree with him. If we have to accept a dictator, then we would prefer a proper dictator rather than Judocracy.Courts are once again damaging its own image by the over kill and faulty decision making.

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  • choptocut
    Jun 27, 2012 - 12:49PM

    Excellent piece. Our judges are not judging “cases” but “personalities”. That is subjective, and cannot be called justice.

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  • samina noman
    Jun 27, 2012 - 1:24PM

    A good lecture on constitution, for an LLB student. However now that Justice sahib has taken it upon himself to enlighten Pakistani courts and its people, I hope he would go an extra mile and read the judgements and proceeding of the court related to NRO and its implementation and write another article.

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  • anticorruption
    Jun 27, 2012 - 1:29PM

    Controrary to all this propaganda, the judiciary has not overruled the presidential immunity at all. The letter the Swiss authorities have been ordering the government to write is simply to undo the letter Malik Qayum wrongly wrote to them to withdraw the Swiss case. Once this letter is written, the Swiss case goes back to the status it would have had if Qayum had not written this letter. Due to presidential immunity, it would mean a state of abeyance during the time Zardari is president but resume when he stops holding this office. What the PPP wants is to avoid writing the letter so that the case remains closed for good and thus give Zardari immunity for life in the garb of presidential immunity.

    This article is completely missing the point as it accuses the supreme court of initiating proceedings against Zardari when it is not initiating any new case but only undoing whatever benifits were derived under the NRO.

    Also, how come ET only finds anti-judiiciary opinions to publish?

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  • Barrister Haris
    Jun 27, 2012 - 1:33PM

    Well Sir your analysis is flawed because you have misinterpreted our constitution. The constitution of Pakistan only applies to Pakistan and the Pakistani courts it has no bearing on the Swiss Courts. So when Article 248 (2) states that no criminal cases can be brought or continued in a court against a persistent…the constitution is referring to Pakistani Court not the Swiss Courts….the presidential immunity if any in this case will be government by the international conventions and not the constitution of Pakistan

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  • Nasar
    Jun 27, 2012 - 1:41PM

    In my view best guardian of independence of judiciary is judicial restraint. Great legal analysis.

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  • Tilsim
    Jun 27, 2012 - 1:52PM

    I believe that the Supreme Court would like the opportunity to opine on the central question of whether the President does indeed have immunity under the Pak constitution. Please someone ask them this. Aitzaz Ahsan did not even do this even though that is the basis of the ex- PM not writing the letter.

    The CJP appears to believe that his role is to provide of justice and upholding justice; not to be a blind arbitrer of the constitution. He seems to be developing a doctrine which mutes the express injunctions of the constitution. This evolving doctrine takes from SC developments in India as well as the idea of fundamental rights.

    The much amended constitution of Pakistan is the work of dictators as well as democrats. I don’t believe the SC believes that it is meeting the public’s expectations of justice as far as the conduct of the leadership in Pak goes. Watch this space for developments in legal theory in Pakistan.

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  • MAD
    Jun 27, 2012 - 2:08PM

    Mashaalah you scour the worlsd to find anyone agreeing with what you want them too and than print it here. He is an justice of the Indian Supreme Court meaning even if we consider the court to be parralel to ours (it isnt) he wouldnt be competent to advise the chief justice. ET kindly straighten your act please.

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  • siddiq khan
    Jun 27, 2012 - 2:09PM

    sir as per my knowledge is concerned mr gillani many a times try to ridicule a judiciary in their public gatherings in front of media

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  • Mahesh Patil
    Jun 27, 2012 - 2:11PM

    It is very heartening to see many commentators from Pakistan by reading this article have realized how the CJP of Pakistan and his learned brothers have trampled the constitution and overstepped the authority of Parliament .Now also they have asked the incumbent PM whether is he going to write such letter? For one moment let us think that the PM writes such letter.What would happen? Nothing.Such letter would have any legal validity.But one thing is sure PML-N will be benefited.That must be the hidden agenda of CJP.

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  • Aftab Kenneth Wilson
    Jun 27, 2012 - 2:12PM

    Thank you ET for giving space to an able Indian Judge. I am not sorry at all to say that we always had “POLITICIANS IN THE ROBES’. I once heard CJ (controversial) of our Supreme Court that Express Tribune is a reliable news paper. I hope he must have read what you penned down if not then kindly send him a copy of your findings in this case.

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  • Masood Khan
    Jun 27, 2012 - 2:22PM

    @anticorruption:

    From where you got this : ” If letter is not written today, Swiss court case will be closed forever”. Please share the source, that could be an interesting & turning point in this discussion.

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  • AA
    Jun 27, 2012 - 2:32PM

    @Mirza:
    You Rock Man… I like the clarity with which you present your thought… More power to you and other like-minded ppl.

    Regards – AA (from India)

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  • irfan urfi
    Jun 27, 2012 - 2:38PM

    Thanks For Truly Expert Opinion !

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  • Malik
    Jun 27, 2012 - 3:28PM

    I think writer is too subjective here – he may not have read about other cases like NICL, Steel Mill, Bank Scandal, and Drugs importation cases against government officails and allies where Government kept on causing hurdles in the way of investigation by changing inquiry teams and by transferring upright officers. No contempt Notice has been issued on these actions and Court restrained itself from becomming party.

    The contempt was not issued for not initiating criminal proccedings, contempt was issued for not chasing proceeds of crime “the money in Swiss banks” and there is no question of indemnity to have out money back.

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  • Shakir Lakhani
    Jun 27, 2012 - 4:36PM

    Does the writer mean that if a person facing a credible murder charge is elected president (something which could well happen), he cannot be hauled before the courts?

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  • Aqeel Abbas
    Jun 27, 2012 - 4:53PM

    Sir, with due respect, I am surprised to learn how week are your comments in support of the presidential immunity issue. While you are all praise for the British as being one of the greatest administrators in the history of mankind, I dare to know if no Indian or Muslim king has made any mark in this respect? Perhaps, we have witnessed a time, when Indians and Muslim rulers have set more delightful examples by offering themselves for the justice to take its due course. Do we think that if they have done so, then the British would not have liked it? To me, apart from what the true intentions of our SC are, the true motives behind this immunity issue are still obscure and far from being considered as naive. If it was something to do with essential administration, then why have Americans failed to reap benefits of this great principle? I suggest, we should not let our typical sub-continent mentality come in the way of accepting a very essential criteria to judge the rulers’ performance. Thanks.

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  • ishrat salim
    Jun 27, 2012 - 5:41PM

    Wud advise Mr Katju to read the entire procedings of the case from beginning to end before he gives his views….it wud horrify him….what he said is not based on ground realities…read proceedings my lord before giving yr valuable views…as it is, we are a very emotional nation & get swept away in the beginning ending up at the mouth of the dark tunnel….Recommend

  • sattar rind
    Jun 27, 2012 - 5:46PM

    academic line of justice.

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  • Vilas Tamhane
    Jun 27, 2012 - 7:34PM

    What constitution he is talking about? Both our nations have most corrupt politicians. In Pakistan this is the major reason why people do not protest military takeover. I wish to ask Mr. Katju only one question. How many corrupt politicians were sent to jail during our great self rule?
    Frankly I am jealous of Pakistan’s judge. Only the judicial activism will save democracy in both the countries.

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  • A J Khan
    Jun 27, 2012 - 7:56PM

    @anticorruption:
    What about the corruption of Arsalan in the name of Judiciary

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  • Vilas Tamhane
    Jun 27, 2012 - 8:09PM

    @anticorruption:
    Yes! This is a good point which everybody missed.

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  • Khawaja Mohiuddin Saleem
    Jun 27, 2012 - 8:12PM

    The argument that Mr. Katju is giving that Yousuf Raza Gilani simply and politely explained the court about article 248, is an incomplete argument Yes .. YRG gave this point of view to the court and courts refused to accept this argument and asked the YRG’s attorney if he wanted to discuss article 248 as a justification of not writing letter to Swiss Courts. YRG’s attorney refused to discuss this point. And then once again, the court asked YRG to write letter and he once again refused to abide the court order right inside the court and right in front of the honouable judges.
    Not only once, the honourable court gave several chances to YRG to abide by the orders and he kept on refusing straight away. Whether you refuse the court orders politely or angrily, it;s contempt of court. The story did not stop here, YRG many times, in his public & political speeches loudly, over the loud speaker said that he will not follow the court orders. A person at the stature of Prime Minister was actually making fun of the orders of the Supreme Court of Pakistan, in public, private and even inside the court.
    Please let me rephrase myself, if I am not calling the courts stupid but giving clear & loud attitude as if I am dealing a stupid court, it is exactly like ridiculing the courts.
    Cheers
    .Recommend

  • Vilas Tamhane
    Jun 27, 2012 - 8:12PM

    @Mahmood Saeed:
    No need for Katju to have experience of Pakistan. In what way the two countries are different? Both have the most corrupt politicians.

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  • Muhammad Ishaq
    Jun 27, 2012 - 8:16PM

    great sir. thanks for opening eyes of robes, here.

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  • Vilas Tamhane
    Jun 27, 2012 - 8:21PM

    @Nasar:
    If my sister is being raped in front of my eyes, should I report the case to police station or kill the rapist? Restraint should be shown to civilized people.

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  • hamza khan
    Jun 27, 2012 - 8:22PM

    basically what president musharraf did to the judiciary was well deserved by them. the job of the judiciary is not to be above the executive and hinder its work. thats exactly what they’ve been doing for a few years. when the government was effective under musharraf people didnt realize or notice as much. now that the government is ineffective corrupt, people are forgiving the judiciary for extreme activism because they hate the government. but that doesnt justify the out of bounds playing to the galleries actions it has taken. people dont realize this.

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  • Zohaib
    Jun 27, 2012 - 8:39PM

    Justice Katju is an Respected jurist whose opinions and judgements are quoted in Pakistani judicial circles.If you read any international newspapers they all criticize 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 and Pakistani would agree with it.

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  • Umer
    Jun 27, 2012 - 8:40PM

    @Vilas Tamhane:

    No one was raping anyone’s sister in this case so I fail to see your logic or rather lack of it.

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  • Sayma
    Jun 27, 2012 - 8:47PM

    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 judgment 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.

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  • Mirza
    Jun 27, 2012 - 8:54PM

    @Shakir Lakhani:
    “Does the writer mean that if a person facing a credible murder charge is elected president (something which could well happen), he cannot be hauled before the courts?”

    You have answered your own question. If a person is facing credible murder charges he would be in jail and not qualify to be president even while on bail. It would be the job of election commission to reject his papers even before nomination. If the murder charges are three decades olf (like the Swiss cases) and the Pakistani judges have not convicted him for so long despite keeping him in jail for two decades then how could the charges be credible? Zardari was kept in jail by his opponents for almost two decades yet these judges did not decide a single case against him, why? They wanted to keep the cases so they can continue using them when it suits his opponents. That is why despite the Swiss prosecutor saying that it is the job of Pakistani courts to try their president these PCO judges neither are writing to the Swiss courts not taking up the case. What is the function of Pakistani courts if they outsource even their most imp cases? What these judges are afraid of and how many decades would they take?
    Regards,
    Mirza

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  • Jun 27, 2012 - 8:54PM

    I agree to Justice Sb what he said, and I am sure our SC is smart enuf to know these things.But the Basic Question still remain unaswered, which led Gilani to court, which is – How can court decide about president immunity, if it was not claimed. Court repeatedly asked Aitzaz Ahsan that you want to remontrate for presidential immunity, as the base for not writing the letter. He Said no.

    Please Explain!!

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  • Parvez
    Jun 27, 2012 - 10:29PM

    An extremely interesting read but Sir there is a very basic difference that you have overlooked in your 2nd. paragraph. India is a republic but Pakistan is an Islamic Republic where according to the Constitution there can be no Law repugnant to Islamic principles. In Islam there is no concept of immunity for a ruler. This matter needs to be settled.

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  • Jun 27, 2012 - 10:51PM

    @Shakir Lakhani:
    Law clarifies the kind of charges president is immune in. personal and professional. in his personal life if he kills someone then yes he gets charged, but if he did something wrong(?) in his job (like granting clemency to sarabjeet) then he is immune.

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  • Raza Khan
    Jun 27, 2012 - 11:00PM

    Mr. CJ why all the judgement against PPP & none against PML(N)? Sir, you need to resign since there are too many skeletons in your closet which are coming out like anything besides you have become too controversial to stay as CJ of Pakistan.

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  • Cynical
    Jun 27, 2012 - 11:50PM

    Justice Katju is an idealist and a strong character.He is highly respected for his secular views.Though at times he tends to be a loose cannon.

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  • Mahmood Saeed
    Jun 28, 2012 - 1:25AM

    The third objection is that after the National Reconciliation Ordinance was declared unconstitutional by the court, criminal cases can continue against Mr Zardari. This is not correct. Article 248(2) says that not only can no criminal proceedings can be instituted against the president, but also that none can be continued. Hence, even if a criminal case had been instituted against Mr Zardari before he took oath as president, it cannot continue as long he is the President. > Blockquote

    Sir, does the constitution of Pakistan prevail in other sovereign states? The answer you would agree is no. Hence you are misleading us by your explanations/views.

    Is it your agenda to give spurt to the turf war between a corrupt and incompetent Government and an errant Court trying to save the country from the clutches of looters?

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  • YKMirza
    Jun 28, 2012 - 1:27AM

    Immunity should not be granted to the President of Pakistan as a principle of Islamic Sharia and even if a Constitution grants it, it is possible to strip it off as in the case of Wolff where prosecutors were going to STRIP HIM OFF THE IMMUNITY!!! Our AAZ and his advisors are afraid of invoking the Immunity clause in court for the NRO Swiss Letter issue… WHY?? Because they are afraid to risk it – having that German example that may be used to STRIP his IMMUNITY OFF!!

    Let us not blindly follow our old ex-masters on the premise that “The British, who were one of the most far-sighted administrators the world has known”! It’s a lame premise!!! How far did this far-sighted Empire, where the Sun never set, go?? Today, the Great British Empire is largely confined to the British Isles, less Ireland, and now-a-days the Sun rarely ever shines on the remnants of the British Empire!! The new Empire, that is also in decline, is the American one and we might go with the new Empire and, like them, have no immunity clause!!Recommend

  • kaalchakra
    Jun 28, 2012 - 8:46AM

    When you have a man like Mr Katju, no matter how capable, commenting on matters that are fundamentally related to Islam and its interpretation byIslamic peoples, no good can come of it either for Muslims or for non-Muslim commentatators. The gentleman is again advised to stay away before he makes a fool of himself.

    Pakistan’s CJ does not need to listen to a retired judge from another country has little direct relevance to Pakistani internal matters and laws.

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  • Aqeel Abbas
    Jun 28, 2012 - 10:15AM

    @Zohaib: What if the corrupt politicians have a big role in the country’s current problems? Should they be stopped or allowed to continue to plunder? Who other than SC, no matter how clumsily, is trying to stop this plundering?

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  • Zulfiqar Haider
    Jun 28, 2012 - 10:15AM

    Due to unconstitutional evry now and than, the organ os states could not evolve. Previously it was political forces and army taking turns to enjoy the fruits of ruling pakistan. Now Judiciary and the Media has joined the party. The new players are making all effortsto create choas amongst state organs. every organ is trying to undo the other to make its space. The Judiciary by being label as biased and political is damaging itself and the stability of the country.

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  • vasan
    Jun 28, 2012 - 10:39AM

    Kaalchakra : You are way off the mark. Mr Katju was not commenting on Islamic related matters. He was commenting on your SC’s judgement in respect of your own constitution. Why drag religion into everything incl your breakfast and morning duties.

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  • Abbas
    Jun 28, 2012 - 10:41AM

    I still wonder at the people who are recommending that please see the proceedings and please not let the sub-continent mentality come in the way of Justice. Issue is not this… Mr. Katju is simply putting that there is no such thing can be proceeded further in light of the constitution. If the case is initiated on wrong foundations, then is there any need to see the proceedings? Secondly, whatever is written in constitution cannot be altered upon anyone’s wish unless the parliamentarians do the needful with two third majority both in upper and lower house. Again Mr. Katju you explain and interpret the constitution reasonably well and with logic. You deserve appreciation !!!

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  • YKMirza
    Jun 28, 2012 - 12:42PM

    @Vasan: Pakistan is an Islamic Republic and its constitution is not paramount above Islamic Sharia! Sharia can’t be changed but constitution can be amended! Agree with Kaalchakra’s points.
    @Cynical: We did hear cannon-fire! While writing the article, the author seems to have forgotten to practice what he preached! He did not reign in his opinions of “great power” and did not “exercise the utmost humility and self-restraint”, but started giving unsolicited opinions in cases not in his court. Would have been better to maintain his own balance in the matters of Constitution of countries other than his own!!

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  • Ram
    Jun 28, 2012 - 1:58PM

    Judges are also human beings and they do make mistakes. Hope the mistake is undone in a way that the new PM is allowed to function and doesn’t face the same fate as Mr Gilani.

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  • Darawar
    Jun 28, 2012 - 2:40PM

    Justice markhundy is the world’s best judge,Enjoyed reading his article,
    Pakistan and Judges of men think that their decision,people grow and learn to breathe democratic life.Chief Justice of Pakistan today
    look former President of pakistan Ghulam Ishaq Khan.and he is man agent of Punjab, Democracy is under the derailment.

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  • JK
    Jun 28, 2012 - 5:39PM

    With due respect to Judge Katju, who interpret Anglo laws n what actual says or why such laws were made is a unending debate. One thing is sure that over 60-plus years both side of the border nations are forced to follow eighteenth century laws. Frankly, it shows n proves that both side of the border failed to give birth to even ONE intellect or person with knowledge of law or group who could have rewrite the british masters laws into Free People Law. In our view these so called experts need to sit down n look their faces in the mirror. Surely, mirror won’t dis-appoint them.

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  • Mahmood Saeed
    Jun 28, 2012 - 6:55PM

    @Mirza:

    Read yesterday’s editorial in Hindustan Times and such articles and you will enjoy the venom being spewed against Pakistan. Never accept any Indian (
    Bharati) view at face value. You know what (none at all ) has been the progress on Siachin. Sir Creek etc etc despite Pakistan relentig on Trade etc

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  • ayesha_khan
    Jun 28, 2012 - 7:46PM

    @kaalchakra: “When you have a man like Mr Katju, no matter how capable, commenting on matters that are fundamentally related to Islam and its interpretatio”

    HE is not a mula and would never consider commenting on Islam. HE was commenting on a court case based on the interpretation of Pakistani constitution.

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  • kaalchakra
    Jun 28, 2012 - 10:04PM

    ayesha

    What a person like Mr Katju cannot understand is that Pakistani constitution is not and can never be independent of Islam, and therefore, of its interpretation. The constitution clearly states, if Mr Katju cares to study it, that nothing in it can be repugnant to the directives of Islam. Why then should he believe that his views, which are based on no evident knowledge of or reference to Islam, can have even a shred of validity for any Muslim?

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  • Abbas
    Jun 29, 2012 - 12:03PM

    @Barrister Haris: I wonder you are a barrister, India and Pakistan both were the colonies of Great Britian and they inheritaed law beside many other things from those imperialists. Secondly, CJP also referred to many cases of Indian courts while proceedings, please confirm. Thirdly, if section 248(2) refers to any court, it means ANY court because the article doesn’t mention any exception therein. Fourthly, do you know about the Geneva Convention? Fifthly, if that would be the case as you are suggesting, then why Supreme Court is enforcing to write a letter. Please put your conservative goggles aside while analyzing.

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  • Jun 29, 2012 - 5:00PM

    I have read and re-read the article. I am neither for or against the judiciary or the government, but like many others, I too have few questions.

    Question #‎1. He argues immunity: did the government argue or claim immunity in the court? When did the government lawyer bring up immunity in the court. The fact is that the government neither argued immunity clauses nor had any intention to do so.

    Question #‎2. “The British, who were one of the most far-sighted administrators the world has known, realised……granted to the person at the apex of the constitutional system.” That is his opinion, NOT a fact, and can be debated at another time. In the same article, he talks about the American constitution, which does not give immunity to the President; my question: Why is it that the American constitution has worked for two hundred years despite the British realization that “if the King was dragged to a law court, put up on a witness box, made to face a criminal trial, and sent to jail if found guilty, the system could not function.”

    Question #‎3. He also cites Artical 41(6) of the constitution (“The validity of an election of the President shall not be called in question by or before any Court or other authority.” ), but very conveniently forgets to mention that the constitution was amended in 2010 to shut this door by the same regime when clause 7-9, number 8 in particular were omitted. In my opinion, half truth is more dangerous than complete lie. And the author unfortunately is only telling half truths.

    We could go on and dissect every argument he makes, but you get the picture. Don’t you?Recommend

  • Saleem
    Jun 29, 2012 - 9:04PM

    Courts are busy in witch-hunting of PPP members. There hundreds of thousands Pakistanis that retain dual nationality and they are the one who are major sources of foreign exchange. They must be happy with this biased decision of court. Courts are bound to interpret constitution and they are very much bounded to the same constitution. I have a question do constitution envisage arbitrary disqualification of millions of Pakistanis that hold dual-nationality? I am sure not. Courts are running their own parallel government that is not bound to any law or constitution. We strongly condemn this decision of court.

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  • Danyal
    Jun 29, 2012 - 9:06PM

    With the PCO judges breathing down his neck no PM can do anything. In fact that is the purpose of targeting the govt and its elected members. Wouldn’t it be great if the judiciary direct their guns toward the biggest defaulters for a change? Once the overdue bills are paid there would be no shortage of fuel and as result electricity. If people are unwilling to pay even subsidized bills then they don’t deserve any electricity.
    Despite high prices of other commodities like petrol, phone services, Internet, gold and silver there is no shortage in the market. However, one has to pay upfront and not get it all free. Once the companies start charging in advance all the bills would be paid like phone, Internet, and petrol. The gravy train must stop here right now.

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  • Mahmood Saeed
    Jun 30, 2012 - 2:24AM

    @Naveed Rana:

    That is it, man. He has either been planted by RAW or taken upon himself to defend current Pak Government which has yielded the most to India without a single tangible gain from the other side………..as has been India’s wont since Partition.

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  • Jul 1, 2012 - 5:00PM

    CONTEMPTUOUS ATTITUDE OF PRESENT RULERS: If we put a glance over the present August court, it can safely be inferred that the present PPP rulers did not intend to restore the judiciary and it was due the to the protest of lawyers and public at large and might be due to this pressure of Army, the judiciary was restored. The PPP leaders and even the then Prime Minister Gallani on so many occasions criticised the Supreme court directly and indirectly. It is also an admitted fact that the Supreme Court has no personal enmity with anyone and whatever decisons were made those are purely on merits and flows from the facts. How much restraint should be extended by the Supreme Court. To my view the present rulers were not deserve any leniency. What they did with every state organ, every body know it very well. and even now what they are saying that the President should not be allowed to surrender before a Magistrate. We have to follow the principles of Islam wherein every body has equal rights and principle of equality is applicable irrespective of the position of anyone. Even many PPP leaders on media spoke about judiciary and show their contemptuous attitude which require severest condemnation.Recommend

  • PakShock
    Jul 1, 2012 - 8:24PM

    Its easy to pass a good judgement when matters are simple. The controversial steps it took based on it's arrogance on Public Support PPP has created a scenario of Extreme Challenge for even most honest judges to give unbiased judgements.

    To see a “thin black wire in the dark” is possible only if the Judges don’t get distracted by outside-of-the-court or personal opinions(non-judiciary) arise out of hatred, but instead continuously keep negating these factors in mind. Any dis-balance in walking this thin- black-wire and the Judgement will fall on it’s face. No one ever said to be a Judge is Easy.

    But the real test of a professional driver is on a bad road in a notorious area, on a dark rainy night, making sure the sick passenger(Pak People) in the back seat is safely taken to the hospital(democracy). Hopefully Peoples' Choice or Democracy is a Word worthy of protecting in the Books Of Judiciary!
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