It is jolly decent of Mr Markandey Katju, a former judge of the Supreme Court of India, who obviously believes in the Latin maxim judicialis continentiam, to take so much interest in trying to solve the political and judicial crisis that is taking place in Pakistan and for attempting to preserve what passes for democracy in this country. In a recent article (“Two options before the Supreme Court”, July 19) on these pages, he has let our chief justice know that his options have now been narrowed down to two — both of which, the thinking man will agree, are equally unsavoury. The basic thrust of the three articles, written with immense enthusiasm and fortified with a battery of case histories, is that there is really no point in confrontation on the part of the chief justice, and considerable need for judicial restraint.
In other words, in the tug of war taking place between the legislature and the judiciary, their Lordships should stay on their side of the white line. They can give the occasional tug, but that is about all. To substantiate his point, he enlightened readers in this neck of the woods with quotations from those great jurists Felix Frankfurter and Oliver Wendell Holmes. Unfortunately, Mr Katju seems to have forgotten that he is writing about Pakistan and not the United States, and that it takes a very special kind of judicial creature to handle the kind of political situation that has evolved in this country.
Actually, the issue is much more complicated than what leader writers put across in their editorials. Mr Katju is an intelligent commentator and I am certain he knows the reasons behind the chief justice’s actions. Obviously, he can’t say so in his columns and so comes up with academic treatises that are brimming over with well-meant advice and good sense. However, it would be instructive to compare the styles of the two members of the Supreme Court bench by employing the Managerial Grid model (1964) of behavioural scientists Dr Robert R Blake and Dr Jane S Mouton whom I had the singular pleasure of meeting in Austin, Texas, in 1980. The grid equates a manager’s concern for production with his concern for personnel, and marks are given on the scale of one to nine. By this classification Justice Iftikhar Chaudhry would be a nine-one man while Justice Markandey Katju would be a five-five man.
The thinking man is on the side of the nine-one man who believes he is doing nothing more than interpreting and protecting the Constitution. After watching a cast of indefensibly shallow folk incinerate their own reputations, one loaded question that must have been asked by millions of Pakistanis and irked Their Lordships and opposition politicians has remained unanswered. And that is how did the current president amass such a huge fortune during the two premierships of his wife? The figure, allegedly, fluctuates between one and one and a half billion dollars, which is allegedly stashed away in banks in different parts of the world.
Nobody can predict how the confrontation will end. Whether unfettered democracy will survive and turn into a mild dictatorship or whether the chief justice will be successful in ensuring that the looted billions will be returned to the Fatherland, only time will tell. While the president continues to play his adversarial games, presiding over the most dire and grievous moments in peoples’ lives, the mood of the people is growing ugly.
Published in The Express Tribune, July 22nd, 2012.
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targeting of Zardar is just the proof that he cannot be defeated in the court of public and establishment and failed politicians can never sleep easy as long as ZARDARI is there.
@Thair Younus: I repeat what I said before. For those who advocate the rule of law and NOT mob justice, then due process is a trial, conviction, then sentence. And all are innocent until proven guilty. You and your lot would have zardari rot in jail for another 100 years without trial just on the basis of your perceptions. And another thing...dont be so naive to believe that only zardari has billion/millions or whatever you claim, the fact is everyone at the top is as corrupt as zardari, judges, generals, politicians included. They are all mr 10%.
@Attorney Kamal: An absolutely to the point, matter of fact and hard hitting articles that brings the truth home. Congratulations Attorney Kamal.
@LionOfPunjab: He spent time in jail for his misdeeds there is nothing heroic about it. Others who did the same including the generals should also be brought to book. But let's stop glorifying the criminals.
The judiciary as a custodian of the constitution is under greater obligation to uphold the constitution by strictly adhering to the principle of separation of powers enshrined in the constitution. It is universally agreed that the judges do not declare what the law should be, but only what it is. In other words, judges are not legislators or lawmakers but adjudicators interpreting the text of law laid out by the legislators and stating what the text means.Parliament being the representative body of the people, who have been acknowledged as sovereign by the constitution, is superior to all the institutions of the state, including the judiciary. Parliament as a creator of the constitution and vested with the powers to amend it, clearly enjoys a superior status and this principle is accepted all over the world. Common sense, which really makes sense, also endorses this dictum.
sounds like a fancy way of describing the doctrine of necessity all over again
I feel great reading the comments. What is undemocratic needs to be damned and put to end immediately.
Constitution is not a some general book to be modified and crumpled with every 2 years.
Its a scared book on which nations/civilizations are built on.
In entire history of mankind, democracy has stood strongest in those nations, where the Constitution has been tampered with the least.
IC
All of us were lucky to have had T. N. Sheshan. But as Karma said, Sheshan's greatest strength came from staying well within well-understood existing constitutional boundaries.
What in the world is Mr Mooraj talk about? It's clear that rule of law and constitutional law is not his cup tea. He calls Justice Katju a "commentator", when actually Justice Katju is more than a mere commentator, like Mr Mooraj, he is a constitutional and legal expert and an ex judge of the Indian Supreme Court.. The unconstitutional and illegal actions and orders of Ch Iftikhar has nothing to with America's behavioral scientists.
Mr Mooraj is trying to defend the indefensible by saying that in Pakistan issues are "complex", that Pr Zardari is hugely corrupt. Even if this is so, does this give our CJ the right and license to trample the Constitution, usurp the powers of the Executive and Legislative branches, violate the cardinal principles of law, give illegal and contradictory Orders, dismiss the elected and constitutional head of the Pakistan Government on the pretext of contempt of court? As for corruption, it is alleged that the CJ's son has amassed a fortune of hundreds of millions on account of his father's judicial authority, which is being investigated. Apologists for this incompetent, ambitious, errant , overreaching , power-hungry judiciary are trying their best to distract our naive and gullible people by pointing to corruption and inefficiency of this PPP govt. But the underlying issue is not about the PPP politicians or its Govt: its about judicial dictatorship of this CJ, his judicial coup, and disrespecting and violating Pakistan's Constitution and principles of law. anf future of democracy and rule of law of Pakistan.
Indian Catholic: Mr. Seshan worked well within the frame of constitution, that is why Politicians couldn't do anything to him.
The question is can a pillar of constitution usurp the role of another. There are very rare circumstances when it can, especially when another pillar collapses. But, it such acts should be rarest of the rare.
An interesting point was brought up about 'basic structure' doctrine. I feel Basic structure is a valid doctrine. Constitution is typically formed by the constituent assembly elected specially for that purpose. The basic structure of the constitution shouldn't be malleable, just because there is brute majority in law making (As Indira Gandhi had when she tried to mess around with Indian constitution).
However, to use this doctrine frivolously to deny the legitimate role of Parliament & executive is not only wrong, it undermines democracy.
@Mirza: I have always found your comments to be thoughtful, but I have to disagree with your point of view on this one. I agree with Mr. Anwer Mooraj that Mr Markandey Katju's prescriptions are more attuned to developed democracies such as the United States or perhaps even India. . To counter your point of view, I shall use the example of Mr. T. N. Seshan who served as Chief Election Commissioner from 1990 to 1996. Prior to Mr. Seshan, all elections were held under the cloud of poll violence, vote rigging and booth capturing. Mr. Seshan went on a collision path with the reigning government but introduced much-needed electoral reform. In fact the current Voter ID Cards that Indians possess was his vision. Mr. Seshan was himself a flawed person who was an attention seeker and later a wannabe politician. However, no one can deny that our current electoral process owes a lot to him. . Net effect of Mr. Seshan as CEC was that despite the confrontations, subsequent leaders realized that they too have too must not cross the line as far as certain institutions are concerned.
We immediately understand the sayings of Maulla Jat but not coming from intelligent people!
The Indian Gentleman is wrong in his assessment of even the US law. Perhaps he should read the judicial history of my nation. It is incredible that he forgot Chief Justice Marshall who wrested away from Executive the powers they claimed and instead enjoined not only Judaical review of Presidential acts but also those of Congress. Please see the rules and laws passed by Warren Court in 60's that were not created by Congress but by the court, among them was equal education of Blacks against the idea of separate but equal. The Miranda warning that is ubiquitous, the government requiring to get a Judge to sign a warrant to seize property and above all the very idea that the Judges in Federal Courts are appointed for life, with the Lowest and most powerful being the District Judge. No one who has been a student of law or even remotely related to understanding the court system of my country will write the nonsense that the Indian gentleman did without knowing the history of the national law and Supreme Court taking the powers of Executive away from them under judicial review of all matters.
I usually disagree with this author, but I hope he keeps on writing for ET. It is part of free speech ideology I believe in. And I respect his opinions.
The journalists in the country have parked themselves in various camps which forces them to take a stand on certain topics that stretches readers imagination and grossly damages the authors reputation. In Pakistan the orientation is ideological with one group aligning with the Mullah and Military, the second group always rooting for Democracy. In neighboring India journalists have no ideological orientation, just monetary motivation --- the concept of PAID NEWS mostly financed by the Business lobby is being increasingly seen in the smaller financially weak publications.
I feal Mirzaji's comments are more accurate & factual. He is always very convincing & contains more logic
The writer in his comments on the articles of Justice Katju has not refuted any argument raised by Justice Katju. Instead has raised a question "how did the current president amass such a huge fortune during the two premierships of his wife? " Firstly this question has nothing do with the interpretation or application of constitution. Secondly this question, in a democracy, should be asked and answered by the people as expressed by their votes. The supreme court should refrain, as expressed by Justice Katju, to venture in domain of executive and parliament.
@Mirza: As usual, you are on the spot. You said it all.
@Ahmed: @Sudheer: Thanks a lot it is humbling to read your comments. I have thought about writing many times but I am a working man and have to make a living. I am waging a jihad from my bed during the nights and want to remain an unnamed soldier. I have never loved money or fame. My dream is like India and other countries of the region Pakistan make progress in education and freedom of choice. We are second to none and it is the bad luck that our first PM was shot dead by an army man while Mr. Nehru lived a long life. Otherwise the history would have been much better. Thanks and regards, Mirza
It is simply mind blowing that how Pakistani judiciary and the journos supporting it are eager to get their hands on Indian invented 'basic structure doctrine' which was rejected world over but for everything else Pakistan is not the same as United States, India or UK as the need be.
Sir,Even if one agrees that Mr Z has amassed great wealth,butvhe spent 10years in jail and not a single case was proved against him.Also there are thousands of others in politics,Army,Judiciary and the media who have amassed wealth including the Cjs son,why isnt he doing anything about them
The writer seems grossly incapable of comprehending Justice Katju's point of argument. In all essence Justice Katju and every notable jurist has the same basic conclusion when Mr Writer you and everyone else in the country are acknowledging there is a confrontation: the judiciary has gone to far! Lest we remind Chief Justice Iftikhar that this a legitimate government and not a usurper that any drastic measures need be taken, when he should have taken such actions he gave Gen. Mush go ahead to contest elections, change Constitution and do whatever he wills.
@Mirza: Entirely agree . To my limited knowledge Zardari has spent the maximum time in jail compared to all the politicians in Pakistan . His singular failure has been the inability to manage public perception , or his opponents have Helen significantly better at it . I do not remember a single military dictator having spent even a single day in prison . Even the great Yayha Khan who provided over the break up of Pakistan was not held to account .
Double standards or what ?
Ludricrous piece of writing... this is the same kind of "Pakistan is a unique case with unique circumstances" that has used to derail democracy in Pakistan. I fully agree with Mirza. These judges are as self serving as anyone else in the system and how can we expect Pakistani democracy regardless of however flawed to deliver if we do not let it work.
Thumbs up to Mr Mooraj.
I have noticed that since the past day, comments on all articles have been mostly pro-government who defend the current government, praise our president and criticize the judiciary and Imran Khan. I can only conclude that most of the usual commentators are busy in praying and turning to Allah during Ramazan while those who have sold their souls to the devil are free here to defend the right of those in positions of power to get richer at the expense of the masses.
Mr. Mooraj Do not bother, Sonia is rumored to have amassed 19 billion dollar. But, people say that democracy is flourishing in India. No supreme court intervention on the part of judiciary in India. Less said abut pakistani judiciary, better it is.
While a columnist may become partisan, a judge has to remain non-partisan. Because of this simple reason, Mr Mooraj is wrong in imposing his biased view on detached jurisprudential mind of Mr Katju. Whatever Mr Mooraj thinks about Zardari or his actions, a judge should be thinking like Mr Katju does.
I believe Mirza can analyse the issue better than the author of this issue.... Mirza I would request if you join the opinion section of this newspaper.
Mr Katju's welcome is wearing thin. If he continues to participate in Pakistan's political process by siding with one of the parties accused of stealing billions, he will need to be a treated as just another Pakistani politician.
Mirza, FYI Zardari was already convicted in Swiss Court and he belongs to same party who made the deal in the form of NRO with Gen Mush and you know what NRO means. It mean Zardari is pardoned. Pardoned for what?
@Mirza Dear Sir, although I, as a reader of ET, is expected comment on the author's article, but, sadly his writeup is so shallow that it doesn't deserve my opinion. However, I find your comments/responses to his(and others) articles quite wise, reasonable, very knowledgeable and therefore commendable. I am really aghast to see the kind of columnists dominating the Pakistani print media today and I needn't have to say anything about the state of Pak's electronic media. Off course there are exceptions like the great Kamran Shafi, Irfan Hussain, Khaled Ahmed, Ayesha Siddiqa etc., but their numbers are dwindling. You must be aware of the recent episode of a retired air marshal loosing his cool over the response he received from Indians to his articles published in this very newspaper. I am not opposed to his point of view because everyone of us is entitled his/her opinion, but, what that shocked me was his blatant disregard for factual accuracy, which, I believe is a media person's first 'dharma'. Having said that I must also admit that the writers such as air marshal and the author of this very article make the Express Tribune more "masaledaar" and that is the reason Dawn (my old favorite) increasingly appear rather stale to me, though, may be, at the cost of sacrificing journalistic ethos. However, I visit this newspaper because I get the opportunity to read the uncensored views of the enlightened Pakistanis like you Mr. Mirza. Thank You. God bless you.
@Mirza: Well spoken Mirzaji. Your posts are always well supported by facts and logic.
@Mirza: Wonderful rejoinder and very incisive and pertinent ------ I like it Mirza, good job! By the way, let me rephrase the failing here, it's not the readers but the author Mr Mooraj who failed and failed miserably while struggling hard to defend the shameless folks who can not be dended no matter what, however, psychophancy has its own logic and there are many over here who have made it a fine art of which Anwar Mooraj is just another example.
That moth eaten document, the constitution should be the final arbiter of all things. The problem in Pakistan is that the constitution can be altered very easily. If somehow changes to the constitution required a 3/4 majority in the national assembly it would make it inviolate, or at least less suspect to tinkering. If this was the case the SC would decide if some law was constitutional or not. Once the peoples representatives (by a large majority) insert or delete a clause from the constitution the SC is required to abide by that change.
I fail to understand the meaning of this Op Ed. While the mastery of Justice Markandey Katju is beyond a doubt on the subject of SC, the writer is trying to show his candle to the sun which is beyond ridiculous to say the least. Talking about bringing in looted money, these same Pakistani judges have kept Zardari in jail for two decades without proving a single charge. Their emphasis has been to use these cases as Damocles’ sword to keep him and PPP away from power. Why did these same judges never show this kind of enthusiasm about any of the cases against Zardari when he was powerless and in jail? Their total efforts were to keep him in jail, exile and away from politics not to announce a single verdict in two dozen cases against him. These same upright judges were lapdogs of Gen Mush and took oath of allegiance when he abrogated the constitution and committed acts of high treason. These judges supported and fully endorsed his overthrow of the elected govt, and all his extra constitutional acts. Their faithfulness to Gen Mush continued till he issued a charge sheet against the CJ, fired him and put him and his likes in detention. The writer is portraying these same PCO justices as messiah who has been bestowed powers by God to take over the elected govt and each of its functions. The fact is in the imperfect Pakistan everything is far from perfect and each institution should work in its own boundaries for the future. We have to wage a jihad against terrorists and pay attention against them and to protect the people who have been suffering not to further our own extensions and perks.
a good article.chief justice is also a pakistani riding a same ship. essence of justice lies in un popular descions i.e independent of public pressure.do we have any such coming from our sc.
A very good example of saying plenty but with restraint. Justice Katju, in all fairness should give you a thunbs up.
Very poor, very shallow. Just goes to further prove that justice Katjus analysis is spot on and that for institutions to develop further we need them to work together and not indulge in a popularity contest. Furthermore, what evidence do you or anyone else have that Zardari has amassed billions? If so then prove it in court, -already we have waited almost 20 years.
Unfortunately, Mr Katju seems to have forgotten that he is writing about Pakistan
Yes, the same judiciary that gave us,
A. Doctrine of necessity.
B. Judicial Murder. AND
C. PCO that makes me CJ is GOOD, PCO that makes another CJ is BAD.
You don't preach such a formidable Judiciary.
mr mooraj is not saying anything new and his allegations of corruption are unfounded and unproven A JOurnalist shoiuld be carefull In what he writes Perceived and alleged corruption of one person doesn't give supreme court the right to cross its limits .it is a shame that people are in essence suporting judges and not the supreme court the disrepute that has been brought upon the courts by partisan proceedings is obvious to everyone MR Morraj forgets that billions have been siphoned of by shareef and laundered abroad but mr chief justice seems not concerned in the least No matter what you say the whole country believes that mr chaudhry is targeting PPP and this is unacceptable for any citizen
you need to explain your logic when you say; Whether the chief justice will be successful in ensuring that the looted billions will be returned to the Fatherland. I did not know Jilani or Asgraf have that much money in far off lands. Perhaps a word or two for democratic norms would have helped further. I agree with Katju's arguments 100%.