It seems to me that the Pakistan Supreme Court logically now has only two options before it when it resumes its hearing on 25th July:
(1) It can continue on its path of confrontation with the political authorities. In that case it must disqualify the new Prime Minister, Mr. Ashraf, because logically it cannot give a different treatment to him as compared to what it gave to Mr. Gilani. Thereafter it must disqualify the third Prime Minister who will be appointed after Mr. Ashraf, and so on and so forth, ad infinitum.
(2) It must switch over to the path of judicial restraint (which I have been suggesting repeatedly), overrule its earlier decision disqualifying Mr. Gilani, and openly acknowledge its mistake. This it can do because the 5 Judge bench hearing the case can overrule the 3 Judge bench verdict 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, and not the first.
The Court is now standing on the brink of a precipice, from which it should step back immediately to avoid a disaster. This is the last chance it has of not plunging downhill, taking the country down with it.
We are all human beings and we all commit mistakes. So do the Courts. Lord Denning has said "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 realized that sometimes Courts commit grievous errors, and should have an opportunity to correct them.
The path of confrontation with the political authorities is the surest path of wrecking the Constitution, and will be disastrous for the country and democracy. Justice Frankfurter repeatedly advised Judges to avoid entering the 'political thicket', and the very recent judgment of the present Chief Justice of the U.S. Supreme Court, John Roberts in the Affordable Healthcare Act case has basically followed the same wise and statesmanly approach.
In fact I am surprised that the Pakistan political authorities have for so long endured and tolerated the Constitutional misbehaviour of the Supreme Court. I would not be surprised if they now take some action against the Court akin to that taken by President Franklin Roosevelt against the U.S.Supreme Court in the 1930s. But before that happens I request the Court, in all earnestness, and as a well wisher, to reconsider its unwise stand and step back from the abyss to which it has reached.
It no doubt takes a lot of moral courage for someone to admit his mistake, but I do hope that the Pakistan Supreme Court will rise to the occasion and display that courage. By doing so its reputation will go up, not down.
There can be given any number of instances where Courts have realized 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 U.S. 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 U. S. 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 in A.K. Gopalan vs. State of Madras (1950) in which it had taken a narrow view of the right to life and liberty 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 holding that he had defamed the judiciary. In fact Mr. Gilani had only taken a stand based on the immunity given to the President by section 248(2) of the Pakistan 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 be jailed for defamation and contempt of court.
The Court forgot that in every country having a parliamentary form of government the Prime Minister holds office as long he has the confidence of the Parliament, not the confidence of the Supreme Court. Section 63 (1)(g) cannot be utilized by the Court as it did to oust a Prime Minister who was undoubtedly enjoying the confidence of the parliament.
I am afraid 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.
Justice Markandey Katju
Former Judge Supreme Court Of India
Published in The Express Tribune, July 19th, 2012.