Sunday 1 July 2012

Judicial Responsibility and Organs of State

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.

8 comments:

  1. Very balanced views! Problem with Pakistani system is that they don't follow their constitution and thus their democracy suffers, Even if Gilani was not a brilliant PM, he should have been defeated in next general election by public themselves rather than an SC disqualification but in a place where the judges call themselves as "representatives of public" what can be expected out of them.

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  2. If judiciary is asking for the looted money of the people of Pakistan it is moving in the right direction. We are not interested in legal complexty. We just want justice. Constitution wether british or american can be ammended. It is made by humans for the humans. The writer just wanted to protect the thug govt of pakistan and ignored the feeling of the poor mases of pakistan

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    1. Dear, try to think for "Pakistan" not for "Opposition". What u call the "Right" direction is only out of frying pan into the fire.
      You said: "It is made by humans for the humans", then cant we act like "Humans". Is it not the capacity of "Civilization" which elevate humans from Hyenas who can collaborate even to "snatch (De-seat)" from a lion "his" Kill.
      Until and unless "Humans" in PAKistan don't learn to guard their own interest "Real Thugs" can easily pose Saints and extract "their" share easily. (one way is democracy and the other what we saw Sialkot and only recently in Bhawalpur, with hundreds uncounted for in between.

      But who cares?????
      Do you care?????

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    2. My friend – The ‘legal complexity’ that you are referring to is actually the constitution – which defines how the state works. Interpreting constitutional articles in order to intentionally benefit or harm an individual or a group will set a dangerous precedence.

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  3. If judiciary is asking for the looted money of the people of Pakistan it is moving in the right direction. We are not interested in legal complexty. We just want justice. Constitution wether british or american can be ammended. It is made by humans for the humans. The writer just wanted to protect the thug govt of pakistan and ignored the feeling of the poor mases of pakistan

    ReplyDelete
  4. If judiciary is asking for the looted money of the people of Pakistan it is moving in the right direction. We are not interested in legal complexty. We just want justice. Constitution wether british or american can be ammended. It is made by humans for the humans. The writer just wanted to protect the thug govt of pakistan and ignored the feeling of the poor mases of pakistan

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  5. Judges are bureacrats with handsom salaries, perks and priviledges, secured jobs, secured future after retirement with pensionery benefits and immune from any accountability. They are not representatives of the people. It is strange to read that Justice Jawwad S. Khwaja gave sermon that judges are representatives of the people. Really a strange thing.

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  6. If Justice Katju is reading this,Don't you think people have accepted the fate of the world and are unwilling to change but they don't realize that there is nowhere to go but to follow the truth?We are 7.5 billion people living on this planet where resources are running out and we need to wake up quick from debauchery,ignorance,religion,group mentality,greed? ..When people say corruption,i don't see it in context of politics but corruption of the soul.

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