Thursday 19 July 2012

Two options before the Pakistan Supreme Court

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.

Thursday 12 July 2012

The Philosophy of Judicial Restraint

I have expressed my views about the Pakistan Supreme Court and its need to maintain judicial self restraint in some articles which have been published in Express Tribune and elsewhere.

However, in view of the judicial turmoil currently prevailing in Pakistan because of some highly controversial orders passed by the Pakistan Supreme Court, particularly the order ousting the Prime Minister, a clear elaborate enunciation of the philosophy of judicial restraint is called for. This in my opinion is necessary because it is evident that the Pakistan Supreme Court, particularly its Chief Justice, have for some time embarked on a perilous path of confrontation with the political authorities, for reasons best known to themselves, which can only have disastrous consequences, not only for the judiciary but also for the entire country.

In a recent statement, the Chief Justice has said that it is the Constitution, not Parliament, which is supreme in the country. There is no controversy about this legal position, and indeed that is the settled law since the historical decision of the U.S. Supreme Court in Marbury vs. Madison (1803).

The grave problem, however, which Courts are often faced with is this: on the one hand there is no doubt that the Constitution is the supreme law of the land and prevails over statutes and executive decisions, and it is for the Courts to interpret the Constitution, on the other hand, in the garb of interpretation, the Court must not seek an unnecessary confrontation with the legislature, particularly since the legislature consists of representatives democratically elected by the people.

The solution to the problem was provided in the classical essay written in1893 (and published in the Harvard Law Review the same year) by Prof. James Bradley Thayer, the then Professor of law of Harvard University entitled 'The Origin and Scope of the American Doctrine of Constitutional Law'. This essay elaborately discusses the doctrine of judicial restraint and explains why Courts should follow it.
Justice Holmes, Brandeis, and Frankfurter of the U.S.Supreme Court were followers of Prof. Thayer's philosophy of judicial restraint. Justice Frankfurter referred to Thayer as "the great master of Constitutional Law", and in a lecture in Harvard Law School said:

"If I were to name one piece of  writing on American Constitutional Law, I would pick Thayer's once famous essay, because it is a great guide for Judges, and therefore the great guide for understanding by non-judgesof what the place of the judiciary is in relation to Constitutional questions."

The Court certainly has power to decide Constitutional issues. However, as pointed out by Justice Frankfurter in West Virginia State Board of Education vs. Barnette 319 U.S. 624 (1943), since this great power can prevent the full play of the democratic process, it is vital that it should be exercized with rigorous self restraint.
The philosophy behind the doctrine of judicial restraint is that there is broad separation of powers under the Constitution, and the three organs of the State, the legislature, the executive, and the judiciary must respect each other, and must not ordinarily encroach into each other's domain, otherwise the system cannot function properly. Also, the judiciary must realize that the legislature is a democratically elected body which expresses the will of the people (however imperfectly) and in a democracy this will is not to be lightly frustrated or thwarted.

Apart from the above, as pointed out by Prof. Thayer, judicial overactivism deprives the people of " the political experience and the moral education and stimulus that comes from fighting the problem in the ordinary way, and correcting their own errors".
In Asif Hameed vs. The State of J&K, AIR 1989 S.C. 1899 (paragraphs 17 to 19 ) the Indian Supreme Court observed:

"Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State. The legislature, executive, and judiciary have to function within their own spheres demarcated in the Constitution. No organ can usurp the function of another.--While exercize of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercize of power is the self imposed discipline of judicial restraint."

As observed by Justice Frankfurter in Trop vs. Dulles (1958):

"All power is, in Madison's phrase, of an encroaching nature. Judicial power is not immune against this human weakness. It must be on guard on going beyond its proper bounds, not the less so since the only restraint upon it is self restraint.--The Court must observe a fastidious regard about limitation of its own power, and this precludes the Court's giving effect to its own notions of what is wise and politic. That self restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgement on the wisdom of what the legislative and executive branch may do."

As observed by Justice A.S.Anand, former Chief Justice of India:
"Courts have to function within the established parameters and Constitutional bounds. With a view to see that judicial activism does not become judicial adventurism the Courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile. Failure to bear this in mind would lead to chaos. Public adulation must not sway the judges. They must remember that they cannot run the government."
Judicial restraint is particularly important for the Supreme Court for two reasons:

(1) Of the three organs of the State, only one of them, the judiciary, is empowered to declare 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.

(2) The errors of the lower courts can be corrected by the higher courts, but there is none above the Sipreme Court to correct its errors.

Some people justify judicial activism by saying that the legislature and executive are not properly performing their functions. The reply to this argument is that the same charge is often leveled against the judiciary. Should the legislature or executive then take over judicial functions? If the legislature or executive are not properly performing their functions it is for the people to correct them by exercising their franchise properly, or by peaceful and lawful public meetings and demonstrations, and/or by public criticism through the media and by other lawful means. The remedy is not in the judiciary taking over these functions, because that would not only be against the separation of powers in the Constitution, but also because the judiciary has neither the expertise nor the resources to perform these functions.

In this connection I may quote from the article 'The influence of James B.Thayer upon the work of Justices Holmes, Brandeis, and Frankfurter' by Wallace Mendelson published in 31 Vanderbilt Lae Review 71 (1978):

"If, then, the Thayer tradition of judicial modesy is outmoded, if judicial aggression is to be the rule, as in the 1930s, some basic issues remain:

First,how legitimate is government by Judges? Is anything to beyond their reach? Will anything be left for ultimate resolution by the democratic process, for, what Thayer called" That wide margin of considerations which address themselves only to the practical judgment of a legislative body representing (as Courts do not) a wide range of mundane needs and aspirations?

Legislation is a process slow and cumbersome. It turns out a product--laws--that rarely are liked by everybody, and frequently little liked by anybody. When seen from the shining cliffs of perfection the legislative process of compromise appears shoddy indeed. But when seen from some concentration camp as the only alternative way of life, the compromises of legislation appear but another name for what we call civilization.

Let philosophy fret about ideal justice. Politics is our substitute for civil war. It is far too wise to gamble for Utopia or nothing, to be fooled by its romantic verbiage. By give and take, the legislative process seeks not final truth, but an acceptable balance of community interests. In this view, the harmonizing and educational function of the legislative process itself counts for more than any of its products. To intrude upon its pragmatic adjustments by judicial fiat is to frustrate our chief instrument of social peace.

Second, if the Supreme Court is to be the ultimate policy making body without accountability, how is it to avoid the corrupting effects of raw power? Also, can the Court satisfy the expectations it has aroused?

Third, can nine men (the Supreme Court Judges) master the complexities of every phase of American life? Are any nine men wise enough and good enough to wield such power over the lives of millions? Are Courts institutionally equipped for such burdens? Unlike legislatures, they are not representative bodies reflecting a wide range of social interest. Lacking a professional staff of trained investigators, they must rely for data almost exclusively upon the partisan advocates who appear before them. Inadequate or misleading information invites unsound decisions.

Finally, what kind of citizens will such a system of judicial activism produce, a system that trains us to look not to ourselves for the solution of our problems, but to the most elite among elites:nine Judges governing our lives without politiclal or judicial accountability? Surely this is neither democracy nor the rule of law."

In this connection Justice Frankfurter,while Professor of Law at Harvard University, wrote in 'The Public and its Government':

"With the great men of the Supreme Court Constitutional adjudication has always been statecraft. As a mere Judge Marshal had his superiors among his colleagues. His supremacy lay in his recognition of the practical needs of government."

A classical example of this is Marshal's judgment in Marbury vs. Madison(1803), in which while avoiding confrontation with the government of President Jefferson he upheld the supremacy of the Constitution. Another example is the very recent judgment of Chief Justice John Roberts in the Affordable Healthcare Act case, in which he basically followed the doctrine of judicial restraint.

In my opinion,  adjudication must be done within the system of historically validated restraints and conscious minimization of the Judges personal preferences.

As observed by the Indian Supreme Court in State of Bihar vs. Kameshwar Singh, AIR1952 S.C. 252(274):

 "The legislature is the best judge of what is good for the community, by whose suffrage it comes into existence."
In Divisional Manager, Aravali Golf Course vs. Chander Haas (2006) the Indian Supreme Court observed (vide paragraph 20):

 "Judges must know their limits and not try to run the government. They must have modesty and humility and not behave like Emperors. There is broad separation of powers under the Constitution, and each of the organs of the state must have respect for the others and must not encroach into each other's domain."

A similar view was taken in Government of Andhra Pradesh vs. P. Laxmi Devi (see from paragraphs 47 onwards).

In Lochner vs. New York, 198 U.S. 45(1905) Mr. Justice Holmes in his dissenting judgment criticized the majority of the Court for becoming a super legislature by inventing a 'liberty of contract' theory, thereby enforcing its own laissez faire economic philosophy. Similarly, in his dissenting judgment in Griswold vs. Connecticut, 381 U.S. 479 (1965) Mr. Justice Hugo Black warned that "unbounded judicial creativity would make the Court into a day-to-day Constitutional Convention." In 'The Nature of the Judicial Process' Mr. Justice Cardozo observed: "The Judge is not a Knight Errant roaming at will in pursuit of his own ideal of beauty and goodness." In 'Some Reflections on the Reading of Statutes' Justice Frankfurter pointed out that great Judges have constantly admonished their brethren of the need for discipline in observing their limitations.

In this connection reference may usefully be made to the well known episode in the history of the U.S. Supreme Court when it dealt with the New Deal legislation initiated by President Franklin Roosevelt soon after he assumed office in 1933. When the overactive Court kept striking down this legislation President Roosevelt proposed to pack the Court with six of his nominees. This threat was enough, and it was not necessary to carry it out. In 1937 the court changed its confrontationist attitude and started upholding the legislation (see WestCoast Hotel Vs. Parrish ). "Economic due process" met with a sudden demise.

The moral of this story is that if the judiciary does not maintain restraint and crosses its limits there will be a reaction which may do great damage to the judiciary, its independence, and its respect in society.
It is not my opinion that a Judge should not never be activist. Sometimes judicial activism is a good and useful thing, such as in the School Segregation and Human Rights cases decided by the U.S. Supreme Court, e.g. Brown vs. Board of Education, Miranda vs. Arizona, Roe vs. Wade, etc or the decisions of the Indian Supreme Court expanding the scope of Articles 14 and 19 of the Indian Constitution. Such activism should, however be done only in exceptional and rare cases, and ordinarily Judges should exercise self restraint.

In Dennis vs. U.S. (1950) Justice Frankfurter observed:

"Courts are not representatine bodies. They are not designed to be a good reflex of a democratic society. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when Courts become emroiled in the passions of the day, and assume primary responsibility in choosing between competing political, economic, and social pressures".

The Pakistan Supreme Court would be well advised to heed these words of wisdom, even at such a late stage.

Justice Markandey Katju
Former Judge, Supreme Court of India

Published in The Express Tribune, July 12th, 2012.

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.