Archive | August, 2012

SC

29 Aug
It has no right to dismiss a Prime Minister or overrule the constitutional immunity given to the President
I was a student of law at Allahabad University, I had read of the British Constitutional principle ‘The King can do no wrong’. At that time I did not understand the significance of this principle and what it really meant. It was much later, when I was in law practice in the Allahabad High Court, that I understood its real significance.
The British were experienced and able administrators. They realized from their own long, historical experience that while everybody should be legally liable for his wrongs and made to face court proceedings for the same, the person at the apex of the whole constitutional system must be given total immunity from criminal proceedings, otherwise the system could not function. Hence the King of England must be given total immunity from criminal proceedings. Even if he commits murder, dacoity, theft, or some other crime, the King cannot be dragged to court and made to face a trial.
One may ask why should the King be given this immunity when others are not? The answer is that in the practical world one does not deal with absolutes. The British were one of the most far sighted administrators the world has known. They realized that if the King is made to stand on the witness box or sent to jail, the system could not function. A stage is reached at the highest level of the system where total immunity to the person at the top has to be granted. This is the only practical view.
Following this principle in British constitutional law, almost every Constitution in the world has incorporated a provision giving total immunity to Presidents and Governors from criminal prosecution.
Thus, Section 248(2) of the Pakistani Constitution states:
“No criminal proceedings whatsoever shall be instituted or continued against the President or Governor in any Court during his term of office.”
The language of the above provision is clear, and it is a settled principle of interpretation that when the language of a provision is clear the court should not twist or amend its language in the garb of interpretation, but read it as it is.
I therefore fail to understand how proceedings on corruption charges (which are clearly of a criminal nature) can be instituted or continued against the Pakistani President.
Moreover, how can the court remove a Prime Minister? This is unheard of in a democracy. 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 the Pakistani Supreme Court, particularly its Chief Justice, has been showing utter lack of restraint. This is not expected of superior courts. In fact the court and its Chief Justice have been playing to the galleries for long. It has clearly gone overboard and flouted all canons of constitutional jurisprudence.
The Constitution establishes a delicate balance of power, and each of the three organs of the state — the legislature, the executive and the judiciary – must respect each other and not encroach into each other’s domain, otherwise the system cannot function. It seems to me that the Pakistani Supreme Court has lost its balance and gone berserk. If it does not now come to its senses I am afraid the day is not far off when the Constitution will collapse, and the blame will squarely lie with the court, and particularly its Chief Justice.
(Justice Markandey Katju is a former Judge, Supreme Court of India. He is currently Chairman, Press Council of India)
PART II
Related posts: Pakistani Supreme Court has gone overboard – by Justice Markandey Katju (Supreme Court of India)
Justice Louise Arbour concerned about direction of Pakistan’s Supreme Court
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 andeffectively 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.

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Our Problem

23 Aug

This is one of the best editorial I have read in this paper. North West of United India was always famous for more aggressive people and acted as a fodder for British Army and produced more army officers per square mile. The real inheritors of Pakistan are those who own the land where majority of population lives are unjust. they never struggled for it but reaped the benefit. They lead a degenerated life personally , do not allow the school in their district, have labor in bondage and their own security system and virtual prison for people. It breeds hostility. Look at the educated lawyers who beat up each others like Sher Afghan and Naeem Bokhari , judges and domestics. They throw rose petals over murderers. Our religion is supposed to be religion of peace but in reality we use militancy which is not condemned by the religious

 leaders. We have our own Taliban and suicide bombers. Our culture in villages is based on honor killing and punishment by gang raping is officially sanctioned. Members of Parliament advocate burying the women when they are half alive as tradition of the tribe, The same member became education minister, We have culture of settling every thing with gun, chopping the nose and defacing with acid. We are nation of revenge as is well know in tribal area where many generations are destroyed over decades. I have read in papers that somebody took revenge on his return from England by shooting the the person who killed his father and this after obtaining higher education from England. One sometime wonders if we have some kind of genetic disorders. Solution looks to be in having democracy, education particularly of women to raise better citizen, abolition of feudal system as well as tribal justice system at least on paper. Let us send our Mullah to mosques to preach passage to Jannah though good deeds rather than taking a short cut by becoming Shaheed. Ultimately we have to have Pakistan of Jinnah’s dream and not of some bigoted ideology.It is interesting to mention that some of Eurpean and American who had extensive dealing with people in India and Pakistan observed that People in Pakistan have some kind of chip on their shoulders and a short fuse and that included shop keepers and small business men. We have a problem.

Shariah

18 Aug
There was no Shariah . After Quran was completed prophet died shortly there after and not many people were knowledgable of Quran in its entirety.If you read the history of compilation of Quran which was done by first three Caliph you will realize that in initial stages everything was in flux except moral life was initiated with strong spiritual background. All most all prophet’s worldly pronouncement were secular as they were based on universal truths. If we follow final version of Uthmanic Quran we find its not in conflict with secular values which are based on human rights and equality among human beings. The only thing which complicates the issue in modern era is weakness in Iman and development of Shariah and verbal history(Hadith) and its enforcement by militant suicide bombers.Tell me one country in the world where Shariah was introduced and human development took place. In “Golden Age of Islam” It was the educated populace and not Shariah which made the difference. Shariah restricts the human energy and obtunds the mental faculties. What we need is spirituality and secular society. Shariah is the brainchild of Islamic thinkers and that is a truth validated by verify able facts.
 
 

Secular and Spiritual

17 Aug

May be if you say so. I do not think so, You can be observant Muslim as well as secular. Remember individual responsibility with rewards and punishment separates Islam from other religion. Education level is more than what it was 1400 years ago. Tribal primitive culture can be equated with Jahilia as was prevalent in Mecca and I’ll grant you that we also have traces of it in Pakistan. Prophet never asked anybody to be killed if he talked or acted against him. Blasphemy did not exist in prophets time. Secularism as I understand and see it practiced is a system of administration where people are treated equally. Islam I believe is one of the foremost religion which made spirituality compatible with secular principles. Read his last sermon at the time of farewell Hajj and tell me if its not secular. All I say that I will not impose my values on you and by the same token do not impose your values on me. Thats what prophet taught us by his actions.

Practice of Islam

17 Aug

Laulak. He was a real prophet no ifs or but. He taught us God is one and gave us five arkaan to practice Taqwa “thought purification’ which leads us to ethical life and contended soul as Quran teaches us. Nobody needs any intermediary to practice that. My honest difficulties are when political Islam and others people’s culture and interpretation is made part of my faith. Hadith or verbal history came 200 years latter and Shariah was conceptualized by Ghazali almost 300 years latter. My believe is if we practice what prophet taught us through the word of God ( universal truths as mentioned in Quran) to attain ethical life and contended soul I do not need the teaching of four Sunni Imams ( I am Sunni but do have Shia relatives),Bokhari ,Muslim and Ghazali. Literacy rate in in Saudia was less than1% and they needed the instruction ( people of Chabootra or platform in Masjid-i-Nabawi). Today situation is different. One thing I am sure that one has to follow Quran as a whole book of instruction rather than selectively and if you do you become a Talib of Punjab and Afghanistan. I did study Islamic theology as a subject in under graduate school. I hope you know what I am saying as I can not explain any better.

Restructuring of Pakistan

7 Aug

Tariq:You are absolutely right. We need pro Pakistani ideology . Unfortunately because of our social structure and cultural differences Punjab has not been able to adopt a national ideology. Its not the fault of the people but rather extension of two nation theory which died on August 14 1947. One unit formation aggravated the situation as for the same reason Egyptian union with Syria and Libya did not work. Bangladesh was by product of one unit as predicted in pre partition India by Azad and Patel. If we have divided Punjab and Bengal into three provinces each then our map would have been different and development and growth of the country would have been different. Fortunately we are thinking and moving in the right direction in creating South Punjab and Bhawalpur and other entities. Talking to my educated friends in Lahore they feel certain reservation about breaking up the province though they accept it as the right thing to do. I would say this is natural as it indicates human weakness.No body can stop the evolution. Punjabis will stay as Punjabis whether the stay in three provinces or one. Look at Indian Punjab. Its the most prosperous area of the country after Gujrat. Security forces and army also needs to be restructured in order to avoid dictatorship and feeling of deprivation by smaller units.

My Islam

4 Aug

It has never done what you claim it is supposed to do. It is not suppose to do that because its not doable. Cross cultural impositions don’t work.You cant tell people what to eat and what language to speak. Its not enslaving religion as old Arabs practiced. No body can take over culture, it is against human nature. Our ethical values are not superior than others because they are universal truth. You do not take anything about the spirit of Islam. Islam has only two aim ,ethical life and contended soul. Read Quran in its entirety ,its a whole book and not separate pages. We are not Arabs but Southeast Asians. Islam’s golden period was when people were educated and not that they practiced better Islam. THINK before responding and please respond to the point as we need healthy exchange.