1) It can continue on its path of confrontation with the political authorities. In that case, it must disqualify Prime Minister Raja Pervaiz Ashraf because logically, it cannot give him a treatment different from what it meted out to Yousaf Raza Gilani. Thereafter, it must disqualify the third prime minister who will be appointed after Prime Minister Ashraf, and so on and so forth, ad infinitum.
2) It must switch over to the path of judicial restraint, overrule its earlier decision disqualifying Mr Gilani and openly acknowledge its mistake. This it can do because the five-judge bench hearing the case can overrule the three-judge bench verdict of disqualifying Mr Gilani.
In all earnestness and as a well-wisher to members of my own erstwhile judicial fraternity, I would advise the Court to adopt the second path. The Court is now standing on the brink of a precipice from which it should step back immediately to avoid disaster. This is the last chance it has of not plunging downhill and taking the country down with it.
We are all human beings and we all commit mistakes. So do the Courts. Lord Alfred Denning has said that “the judge has not been born who has not committed a mistake”. There is nothing dishonourable in acknowledging one’s mistake. In fact, one grows in stature in accepting one’s mistake. The provision for review in most statutes and constitutions is precisely because it was realised that sometimes courts commit grievous errors and should have an opportunity to correct them.
The path of confrontation with political authorities is the surest path of wrecking the Constitution and will be disastrous for the country and democracy. Justice Felix Frankfurter repeatedly advised judges to avoid entering the ‘political thicket’, and the recent judgment of Chief Justice John Roberts of the US Supreme Court, in the Affordable Healthcare Act case, has basically followed the same wise approach.
There can be given any number of instances where courts have realised and accepted their mistakes. For example, after a period of confrontation with the government of President Franklin Roosevelt (when it was striking down the New Deal legislation), the US Supreme Court, in 1937, acknowledged its mistake and beginning from the decision in West Coast Hotel vs Parrish (1937) drastically reversed its stand and started upholding that legislation. Similarly, in Brown vs Board of Education (1954), the US Supreme Court reversed the racially obnoxious doctrine of ‘separate but equal’ laid down in Plessey vs Ferguson (1896). In Maneka Gandhi vs Union of India (1978) the Indian Supreme Court reversed its earlier decision, and also in AK Gopalan vs State of Madras (1950) in which it had taken a narrow view of the right to life and liberty given in Article 21 of the Constitution. Many more such examples can be given from judicial history.
The great error committed by the Pakistan Supreme Court was in disqualifying and removing Mr Gilani from the post of prime minister by contending that he had defamed the judiciary. In fact, Mr Gilani had only taken a stand based on the immunity given to the president under Section 248(2) of the Constitution. He had not abused the Court or attributed corrupt or improper motives to it. How is this defamation? If this is defamation and contempt of court then whenever any lawyer objects to the jurisdiction of a court, he can also be jailed for defamation and contempt of court.
The Court forgot that in a parliamentary form of government, the prime minister holds office as long he has the confidence of parliament, not the confidence of the Supreme Court. Section 63(1)(g) cannot be utilised by the Court to oust a prime minister who undoubtedly enjoyed parliament’s confidence. I am afraid that the Court has set up a dangerous precedent by which it can remove a prime minister enjoying the confidence of parliament just because it is inimical to him (or to create problems for the president). This would be fatal for a democracy. The sooner this dangerous precedent is reversed, the better.
Published in The Express Tribune, July 19th, 2012.
COMMENTS (65)
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Dear Sir ! Our judiciary doesn't seem to have the wisdom which such cases demand.If you see the judgement of NRO case,the judgement provides 6 options to be adopted but in Contempt Case,the bench itself adopted the hardest options to oust the PM YRG.Now,much the water has run under the bridge of time.Even Election has been done in YRG's consituancy.There is no hope that these judges may revise their previous judgement.CJ has openly spoken on the issue live on TV which depicts their mindes n wisdom.
We all agree with the valuable advice and excellent legal analysis by Mr Justice Katju. Thank you.Our people are being misled and fooled by this corrupt and crazy judiciary.
The SC should have shown activism by listing all pending cases and given priority to family cases, property cases, cases of crimes against women, people in jails without trials , then criminal cases , murder killings etc. Worked out the number of judges , allotted them a time frame to complete them and become a real bench mark for the society . Playing to the gallery, army/media will be of no benefit to the people at large.
History shows SC in Pakistan has been responsible to declare all Martial Laws valid, all breakers of constitution as law abiders This grand standing has only led to people always considering the SC to be the most incompetent set up, i am sure from Justice Munir till today no CJ after he is gone has not been considered the most corrupt
Superb article by this learned Justice....Wish we had judges like him in Pakistan. Pakistan would have been much better off, instead of these looney, greedy, egotistical, hypocritical SC judges and the CJ we have in our unfortunate country. Ch Iftikhar is performing the functions of a politician instead of handling thousand of cases pending before him and reforming the corrupt, inefficient , terrible judiciary we have in Pakistan. This CJ is really terrible and should be fired immediately. Corruption, bureaucracy, economic matters, law and order, security, Balochistan are issues for the Govt and the Executive and Legislature and NOT for the judiciary. CJ should mind his own business and peform the duty under the Constitution, i.e. to adjudicate legal cases, honestly, promptly and efficiently.
Dear Sir ! SCP has taken up the hardest option out of 6,it has itself given in NRO Judgement.It is just like to remove a fly sitting on a wall by using an Atomic Bomb which leaves huge damages and aftereffects behind it.SC has left with no option with itself to be adopted and acted upon.SCP's Judges are not wise enough to rewise their judgement.They are heading towards total disturbance.In Pakistan,Judicial Activism has turned into Judicial Autocracy and Judicial Dictatorship according to PCO oath.
The pro-terrorist cheap justice won't stop until he fulfils his fetish of chaos everywhere and that's why he wants to dismiss the democratic process.
Hon'ble (Retd.) Mr. Justice Katju's argument is purely legal and is backed by relevant citations and precedent. Tragically we have completely forgotten the decency of heeding any sane advice or to thank someone who is taking the pain to hold a lamp in darkness for us to tread safely. Despite all this, I would like to add a further sane advice by Francis Bacon in his essay on "Of Judicature", "...Judges must beware of hard constructions, and strained inferences; for there is no worse torture, than the torture of laws." Lets hope that besides the honorable and respectable members of the bench, the people at large will also appreciate and pay some heed to the sagacious approach of following the established principles of restrained.
@elemetary: Thank you. I would like to return the compliment as well. I always look forward to reading your opinions as well as those of Faraz, Mirza, falcon, Uza Syed, Umer and ofcourse many Indians as well World would be a boring place if we all thought, said and did the same things.
When you read opinions that are backed by logic and facts (even if the opinio differs from your own), it broadens your thinking thus enriching you.
@gp65: I have to say you are the most balanced and unbiased of indian commenters here,who realizes perspective from within the pakistan can be diffrent;instead of just blindly following the indian perspective and promoting it's foriegn policy agenda.
excellent piece,..coming from an authority. that's the way institutions work.
we dont have judges in sc but they a party
@Lala Gee: Thank you for taking the time to clarify. Differences in opinion can always exist. In some areas where national narratives are strong, differences are likely to be larger. As long as we can disagree without being disrespectful that should be okay.
If your response about so much effort to save a corrupt President referred to the number of pro-PPP comments, I can understand your viewpoint though I may not fully agree. I am glad you did not mean that Justice Katju was elnisted to bail Zardari out.
As a non-Pakistani clearly I donot have a stake in Pakistani political system. As an observer it seems that PPP with all its incompetence was elected fair and square and if they have failed the people, they should be thrown out by the very same people come next elections. A PM needs to have the confidence of Parliament and not Supreme court in my view. Also contesting jurisdiction as Gilani did does not amount to contempt. There is a difference between disobeying the constitution and disobeying an individual - even if that individual is the CJ. For true contempt look elsewhere - in the missing person's case, in the case where the judge sentencing Qadri was given death threats and had to leave Pakistan.
My own beloved country (where I do not currently live) also unfortunately has a very corrupt government that I do not approve of. I hope they will meet their just desserts in 2014 elections. Already state elections are providing clues about which way the wind is blowing. But I would not want army or SC or any such unlelected institution to throw out a legitimately elected government.
In the Eyes of any Neutral Person Supreme Court of Pakistan Has Lost all the Credibility and Politics is deeply rooted in it.
Most comments justifying SC action here miss a point. No one is contesting court's right to punish PM Gilani for not implementing a court order. But, the courts never ruled on the matter of the immunity to president. Without that ruling, PM was under no obligation to 'immediately' write a letter.
But, court still found him guilty of contempt for not implementing its order. Fine, it also punished him. That is where the matter ends. There was contempt and there was punishment.
Where did court get its power to punish him again by dismissing him as PM, on charge of defaming judiciary that wasn't even heard? What kind of justice system is this? Punishing someone for some offense and punishing him again without even hearing another offense?
Mr Katju, it will be a great service of you for this country to ask (request, direct) the PM of Pakistan to write very few words to Swiss Govt. for reopening the money laundering cases against Mr Zardari & Co. The matter is very simple, write the letter, save the PM. Don't accuse SC of Pakistan - the only institution of integrity and hope for poor people of Pakistan.
@Uza Syed Totally agree with you. Anyways, a very good writeup by you. very nice use of words.
Respectfully sir! then close down the Courts (Especially the SC) and let the PM and parliament do whatever they want. Loot the country....Should I remind you "Justice has to be done even if the heaven falls".
@huzaifa: yourself back stabbing it. Well apparently you don't see that there is some front stabbing happening in broad day light in Pakistan and the lay people least seem to appreciate the fall outs.......
Although I do not agree with him, I am very grateful for Justice Katju for presenting the contrary position in such a clear technical manner and such an input from our neighbour country is welcome and educating. However I do feel that he has become a bit extreme the other way when he says the court should overrule its decision to disqualify Gilani. A better option would be for the court to give the incumbent prime minister and officials such time (about 8 months) to carry out its order which would fall intoo the post election period. This would enable the executive to rule the country until the elections without getting bogged down in judicial confrontation while at the same time keep the issue open for the re-elected or, if the people wish, a newly elected, ruling party to comply with the order. Interestingly Justice Katju's Wikipedia profile shows him to be very activist in certain areas such as protection of minorities etc, forcing officials to comply with his esteemed orders, very much similar to our own CJ. To those people who say the CJ is carrying out the military's agenda should remeber that this CJ's confrontation with the military is longer and more deeper than with the civilian government and newspaper reports have confirmed that if was not for the CJs activism re missing persons, the people of Baluchistan would by now have separated totally from Pakistan.
@gp65:
"Lala Gee, Do you think a retired justice of Indian supreme court is a a hired Zardari gun trying to save him from jail? That is what you statement seems to imply. I hope that isnot what you meant."
Of course I never meant that and I also acknowledge that there may be difference of opinion even among the judicial community. However, if I have to take side, I would rather go with the unanimous decision of the full bench of 17 judges of Pakistan Supreme Court than aligning with the solo opinion of a judge irrespective of how respectable he might be. If you remember that the NRO was declared 'void ab initio' after the parliament of Pakistan refused to validate it, and hence all the acts taken under NRO were declared unlawful including the letter written by the Attorney General of Pakistan to the Swiss authorities to end the cases of graft money laundering against Benazir and Asif Ali Zardari. The NRO implementation case is just to enforce that decision of the full bench and asking government to withdraw that illegal letter written by the Attorney General. It is that simple and nothing more or nothing less.
The missing links in all this discussion till today are: 1. Constitutional Development in Pakistan in Islamic Perspective 2. Development of judiciary over past 03 years
The honourable writer and many commentators have also utterly failed to consider the history of Muslims and Islam, the concepts they provide for a judicial system and of social justice. Alas!
@elementary:
Why PPP should write a letter? Why not Supreme Court itself writes that letter? afterall it is one of its six options it laid for itself to settle the case. Why only PPP should be judged for its intentions only, why not a fair comment be given on prima facie intentions of the Supreme Court???
@Umer: In my view the time factor shows malafide intent. How many years did it take to pass a law on the protection of women's rights ?
@Parvez:
Desperate times call for desperate measure. Besides if laws are not made in the parliament, then where else would you suggest be made.
@Not of your tribe: For that they have to read and have a mind. The CJ is one eyed (half sight) and has no mind! Dont expect him to do that. Also after seeing the horrific performance of the judges in the full court meeting in which PEMRA Chairman was taken to task in which not a single judge said something to the contrary, one can expect the remaining judges to be hamnawa of the CJ!!! Nothing more!
@Mirza:
Sir! I beg to differ on this one; otherwise I am a great admirer of your comments. 1) If SC (PCO or no PCO) does not correct its mistake then who will? 2) Whatever the intentions were, but the (PCO) SC has at least once declared one emergency unconstitutional, so the facts should be straighten up a bit. On rest I agree with you 100 percent.
Sir, We are on suicidal path! We have a death wish! We are crazy people!
It appears the selection of comments is very subjective. I am sure there are many who support judiciary. Why are they silent? One should hear both sides, although I agree with the author that judiciary is over stepping.
Our Judiciary has some inherent faults. Most of the Judges are partisan and belong to either a political party or a group of influential chamber. Mostly they lack professional acumen and are neither well read nor well qualified for the coveted posts. Our friend Markandey Katju quotes from cases which our judges must never have heard. They are following the principles of WWE rather than judicial restrain.
There is also a 3rd option, PM should claim immunity & reply to court order that under article 248 no case can be continued or started against sitting President. Therefore they are unable to write letter to Swiss authorities. However the cases will be reopened as soon as President retires from office.
A good article and sane advise. hope it is listened to by our courts.
@Attorney Kamal: Yes, indeed!
One also has to see the ulterior motive of the Supreme Court, especially the Chief Justice. By disqualifying the sitting prime minister, he has gotten people's attention off his son's case. He does what we lovingly call "doosron ko naseehat, khud ko faseehat"
Justice Katju, reading your pieces, I feel ashamed at the state of affairs caused by the judicial activism in Pakistan. The CJ, Iftikhar Chaudhry is by far the most active politician in Pakistan. He is not trying to derail the current government, he is working towards the next setup which is to be formed (in their dreams) without the PPP. He is running the campaign for PML-N and wont mind having PTI become part of a set up to have a minus PPP setup.
One also has to look at this nonsense positively. A government for the first time is not reacting to the dictats of a court. Nawaz Sharif did that in 1997. Pervez Musharraf did so after the steel mills case and then in 2007. The PPP under Zardari has done what not many with power have done: show restraint.
Let's see what happens in the by-election in Multan today. If the PPP wins, hear mindless remarks from Pakistan's anti-christ.
i agree with the writer well sad
You are giving very very practical suggestion. But Pakistan SC is all set to take its confrontation with the executive to the next level.
Justice Katju, thanks for your constructive suggestion to our power-hungry, incompetent, tainted, convoluted judiciary. I hope they are listening to your sane and valuable advice. Our CJ has violated many provisions of the Constitution, usurped the powers of the Executive and Legislative branches and infringed fundamental rules of law in his recent illegal court orders and verdicts. He has capped it all by treasonously removing the elected head of the government on the mere basis of contempt of court when no such authority is given to the apex court. This is the same judge who previously upheld the overthrow of the Constitution and the constitutional govt by a military dictator, while his son is alleged to have amassed a fortune of hundreds of millions of rupees by throwing the weight of his father's judicial authority. Our country is really unfortunate and blighted in view of the mechanisms, power grabs and tyrannies by military despots and judicial tinpots. God save Pakistan and its people..
Just now I watched a US SC judge A. Scalia's interview on CNN. This is one of the rate occasion that a sitting judge agreed on an interview. The US SC judges keep a low profile and stay away from public statements. He was asked a question about Bush vs. Gore case. His answer was we do not make or decide election results. The SC would rather not have to take that kind of case. He said they decided according to the results without interfering. In fact he gave an example when Nixon was defeated by Kennedy there were many irregularities in Chicago area which changed the election results. To the credit of Nixon he did not bring the case in the courts (unlike Gore) and accepted less than perfect elections. Of course later the nation rewarded Nixon when he was elected President. In short the US SC is not in the business of changing election results whether they are perfect or not. It is the right of people and not the paid govt servants.
Who cares about democracy and country? One political idiot said today that it makes no difference if ten prime ministers are sacrificed.
We deserve corrupt rulers because we have people who disapprove of any action against their corruption.
ET thanks for giving opportunity to a neutral person to write who has no stake in either case other than fair play and justice. President has immunity whether judges like it or not.
@Parvez:
How many hours should it take before it is legal in your eyes? What is legal is legal it has nothing to do with how many hours it take. This is objection for objection sake for when no other objection is left.
Respected sir, Your advice is very sensible.But our PCO CJ is in a mood defiance to democracy & Justice. Thank you very much for the just writings.
@Lala Gee: "It is amazing to watch how much effort can be made to save a man from jail and his US$ 60 million of graft money. Wow".
Lala Gee, Do you think a retired justice of Indian supreme court is a a hired Zardari gun trying to save him from jail? That is what you statement seems to imply. I hope that isnot what you meant.
Mr Katju perhaps does not completely appreciate the unfortunate reality of Pakistan in which our court is not doing justice, it is doing politics.
Thanks Sir. We Pakistanis are always little late to understand. Iftikhar Chowdhary is a judicial dictator. He is overriding wisdom lying behind the very idea of judicial restraint. By the way, we must get rid of Supreme Court Party of Pakistan. They can not dare to call Corps Commander for hearing, but they can disqualify Prime Minister.
you need to look at the deeds (read all misdeeds) of the current lot of politicians in power ! while poor citizens suffer in poverty, the president is not allowing the Govt. functionaries to write a letter to swiss Courts to reopen cases of graft against him ! if he is clean, why not reopen cases. Infact, what better time to get himself cleared since he is the president and no biasedness can be exercised against him !
If the Govt. does not act to make the citizens of the country less poorer, then someone should, and if takes the Supreme court to do it, then be it !
Why is decision of PPP leadership of not writing the letter written in stone?. To avoid a disaster if SC is being asked to go topsy turvy and stand on his head, why can't government write the letter to avert the same. Your suggestion, sir ,may have legal sense,but respectfully ,lacks common sense.
Dear Justice M. Katju, I believe you are wasting your precious time in advising SC of Pakistan. Please focus on our country where you are doing wonderful job. Also we are looking forward for more of your contribution in Indian society.
It is amazing to watch how much effort can be made to save a man from jail and his US$ 60 million of graft money. Wow.
Dear sir, I wish TV-viewing judges had also taken a day out to read newspapers too. It would be an act of dishonor (be-ghairti) for a ghairatmand nation to accept and acknowledge its mistakes. And sir, in Pakistan only time the minority's voice prevails over majority is when they get united against PPP. Therefore, here it is understandable that the three member bench can over-rule the judgment of seven member bench but five member bench cannot think of going against three's decision. You can find Chief's jaan-nisars everywhere in black attire in Pakistan: on the bench and in the bar alike.
Sir would you care to comment on the Law rushed through parliament in a matter of hours which was specific to this case. Was this a good precedence set by parliament, did it show respect for the rule of law ?
The learned Justice Katju is talking about fine things that finer people have done else where in many civilized societies. The good man forgets those who are full of themselves are convinced of their unquestionable imminenece and infalliability. One can employ the falliability principle in any intellectual discourse only when one, s/he, accepts the fact that one, anyone, is falliable. Here we are trying to talk about wise course of action to those who are extremely allergic to the very notion of wisdom. The issue here is not an error, what we are witnessing, alas, is a premeditated attempt to browbeat or is it an assault on our collective wisdom by a few overwhelmed by their egoistic disposition. And the consequence is more than obvious, one has to just glance through whatever is written and published about our Supreme Court and its judges these days. Such negative opinions were never even entertained about our judiciary, let alone criticising publically.
It is appreciable that you are keeping the debate alive , media electronic media has decided no matter what the consequences they are going to sing the same mantra that it is because of the deficiencies of the executive that the judiciary had to step in and as a consequence now the right to overstep the mark. The fate of this activism is going to be no different from the article 58-2b whereby successive governments were sent by presidents like Ghulam Ishaque Khan at the whims of a single man that ultimately led to all the parties getting united and get rid of the article. Although the current judicial set up carries the halo of the lawyers movement but in any future setup a similar clash would be labelled as a personality clash between two individuals. And not two institutions.
ET TU Brute!! Mr. Markandey Katju,you call judiciary your fraternity and you yourself back stabbing it. Dear sir! Nazria-e- Zarrorat must be buried alive cruelly and ruthlessly, we never had such suitable time in the history as we have today. If we miss this chance then God forbid these hapless crowd/ people will remain in the clutches of corrupt and inefficient politicians. You must have the courage to review you writing otherwise history will judge it as your words have been saved in the annals of history.
Sir present lords of our court are yearning for more, so that they won't adopt second route as suggested by you.
The way it works in the rest of the world is that if you do no carry out a court's verdict (yes that's any court and what to talk of the Supreme Court)...doesn't matter if you are highest office holder of the country or pauper on the street... you will have to face the law!
So Mr. Markandey Katju, your advice seems completely out of line with the contemporary understanding of the State, it's branches of power and the landmark legal precedents that have moved nations out of tyranny towards democracy.
Dear Sir, Giving advice when none is solicited is prudish and ill-mannered. Alos, what is with Pakistan? Any Tom, Dick or Harry and can come in and tell the SC no less, what to do? Where are the judicial experts of Pakistan? Are they busy garlanding some other terrorist now?
A very sane voice .
That's the way it works in the rest of the World --- lets hope your SC figures it out before it's too late.