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Not a judicial coup


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THE Supreme Court’s order disqualifying Yousuf Raza Gilani as prime minister has polarised opinions inside and outside Pakistan.

One foreign commentator, Justice Markandey Katju, a retired Indian Supreme Court judge, has — in a widely published article — accused the Pakistani Supreme Court of having “gone overboard” and “berserk” and having “flouted all canons of constitutional jurisprudence”.

Domestic critics of the SC have strongly relied upon his article painting it as an authoritative statement of law by an unbiased foreign jurist. While Katju’s credentials are not in doubt, his reputation and neutrality are insufficient to save an article premised on fundamentally erroneous presumptions.

Justice Katju cites, with admiration, the English-law principle that ‘the king can do no wrong’. He states it was evolved by the English who — being “experienced and able administrators” — realised the system could not function if the king was made to “stand in the witness box or [be] sent to jail”.

According to Katju, the English concluded from their “long, historical experience” that although the law should be the same for everyone yet the person at the apex of the constitutional system (i.e. the king) must be given total immunity even if he commits murder, dacoity or theft. Katju considers this “the only practical view” and would apply the principle to all heads of state.

Contrary to what Justice Katju writes, however, the principle that ‘the king can do no wrong’ was not evolved by “able administrators” after mature reflection upon their “long, historical experience”. Rather, the principle originates from the religious belief in the ‘divine rights of kings’.

Like many other peoples in bygone days, the English believed their sovereign reflected God’s will on earth. All the laws of the land owed their existence to the will of the king. All judicial power was vested in judges by the king and was exercised in his name. Naturally, the king could not be subject to his own laws or to his own courts. He was answerable only to God Himself.

Nevertheless, this belief in the ‘divine rights of kings’ came into conflict with more modern beliefs in ‘democracy’ and ‘the rule of law’. As a result, the last English king to strongly assert the ‘divine right of kings’, namely King Charles I, was beheaded after a public uprising in the year 1661 and his head displayed on a pole outside West-minster Abbey.

To resurrect a discredited religious doctrine rooted in English history and apply it in Pakistan to someone as far removed from ‘divinity’ as Asif Ali Zardari seems absurd. If we must follow a religious doctrine, surely it should be drawn from Islamic jurisprudence where the righteous caliphs eschewed any special privilege before the qazi.

The only other justification for presidential immunity is that the head of state should be able to devote all his attention to affairs of state rather than waste his time defending legal proceedings.

This argument may carry some weight in countries like the US where the president actually heads the executive branch of state (although, even there, the US Supreme Court rejected Nixon’s and Clinton’s claims for immunity for unofficial acts outside the scope of their presidential duties).

In Pakistan, however, the presidential office is essentially ceremonial. Responsibility for state affairs lies not with the president but with the prime minister (who has not been conferred any such sweeping constitutional immunity).

This strengthens the view that the immunity conferred upon the president by Article 248 (2) of the constitution is not due to practical considerations regarding performance of state functions but is only a relic of our English colonial history.

No doubt, our Supreme Court will examine the antecedents of the doctrine of presidential immunity and its reason and purpose whenever it is called upon to interpret Article 248 (2) of the constitution.

Thus far, however, the SC has not considered the scope and extent of presidential immunity conferred by Article 248 (2) because neither Gilani nor Zardari ever raised this issue before the court.

Indeed, during the contempt proceedings against Gilani, the court expressly asked his counsel Aitzaz Ahsan whether Gilani’s refusal to address the letter to the Swiss authorities was on account of the presidential immunity conferred by Article 248 (2) of the constitution. Aitzaz Ahsan replied that he was not relying upon Article 248 (2) and that there was no reason for the court to interpret its scope and effect.

The PPP government deliberately avoided raising the Article 248 (2) argument before the SC as they feared that a restrictive interpretation of the article might land the president in even more trouble. They reserved this argument exclusively for talk shows, press conferences and public rallies.

To criticise the SC for not considering an argument that was never made before it seems unreasonable. Criticism would have been far more justified had it done the converse i.e. decided an issue never raised before it.

Such critics, including Justice Katju, would benefit from a full reading of the original NRO judgment, the NRO review judgment and the Gilani contempt judgment (all available on the Internet) so their ‘legal critiques’ are based on what was actually argued before, and decided by, the SC rather than being based upon talk-show debates and newspaper columns.

In the contempt proceedings, Gilani’s counsel made a quite different submission regarding presidential immunity. He argued that, under international law, a domestic court could not exercise jurisdiction over a foreign head of state.

To this, the SC quite rightly pointed out that the proper forum to raise this point of international law was before the domestic court seeking to exercise jurisdiction over a foreign head of state (i.e. the Swiss court).

As such, if the Swiss authorities resumed proceedings against Zardari, the Pakistani government could point out that Zardari — having now ascended to presidential office — had acquired immunity under international law.

Finally, Justice Katju argues that the court’s decision to disqualify the serving prime minister is unprecedented in any democracy. He need only look to his own country where Indira Gandhi was disqualified as prime minister by an Indian court on account of electoral fraud. It took the imposition of an emergency and several legislative and constitutional amendments by a completely pliant legislature to save her. Thankfully, even the PPP allies in the present parliament appear reluctant to distort the constitutional fabric of the nation in order to save one person’s seat.

The author is a practising barrister.

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The views expressed by this writer and commenters below do not necessarily reflect the views and policies of the Dawn Media Group.

Comments (32) Closed

lubna Jul 03, 2012 05:31pm
your statement is fishy and shows undue influence and favour for this judge,and we have islamic history and legislature to base our own .what a beautiful analysis by salahuddin and ripping apart all arguments of this judge with reason and logic.bravo mr have opened our only biased people can unduely respect this indian judge article
majhool Jul 03, 2012 03:56pm
the writer is a practising barrister..... and judges have to select one ............. I don't want say anything more...
Jabbar Shaikh Jul 03, 2012 02:43pm
Presidential immunity must not be in a country like ours where masses in general election and their representatives in assemblies sells their votes, so there should be no presidential immunity in our country.
Ercelan Jul 03, 2012 08:12am
sad to see a silly commentary from someone generally wise.
Abdul Hannan Jul 03, 2012 02:43pm
critics of this article need to come with solid arguements not just baselss criticism
Cyrus Howell Jul 03, 2012 03:46am
"It can be held certain that information that is withheld or suppressed contains truths that are detrimental to the persons involved in the suppression." -- J. Edgar Hoover (founder of the FBI)
Kulsoom Jul 03, 2012 02:20pm
Finally, someone makes sense. Great article!
sajad Jul 03, 2012 02:07pm
wonderful article, arguments nicely put.. well done barrister
Umesh Bhagwat Jul 03, 2012 06:10am
I don't know what the Constitutional provision is in Pakistan but in India The President enjoys total immunity from any legal proceedings-civil or criminal.The only way a President can be removed is under Article 61 of the Constitution ie by impeachment by Parliament.
observer Jul 03, 2012 06:42am
Just read the brief article by Justice Katju. Enough of an eye-opener. All readers are encouraged to google "justice katju article pakistan supreme court" and read the article for themselves. Shame on those that question Justice Katju's opinion that only points out a few relevant facts. What Justice Katju has to gain from voicing his opinions?
Naseem Jul 03, 2012 05:21pm
The author presents strong arguments against the article of Mr. Katju. He should comment on the rejoinder and withdraw his uncharitable remarks against the Supreme Court of Pakistan.
g.raman Jul 03, 2012 12:09pm
"Indeed, during the contempt proceedings against Gilani, the court expressly asked his counsel Aitzaz Ahsan whether Gilani’s refusal to address the letter to the Swiss authorities was on account of the presidential immunity conferred by Article 248 (2) of the constitution." what would have happened if Aitzaz Ahsan had said Yes!
Jawaid Jul 03, 2012 03:37pm
I googeld and read the article by Justice Kanju. Mr. Salahuddin has rightly contested the issue of immunity raised by the judge. Most of the comment under Justice Knaju's articeld also contest his stand.
critic Jul 03, 2012 12:23pm
What a country. The highest court is continuously "playing to the galleries" and getting loud applauds. Shame on us.
akhter husain Jul 03, 2012 03:22pm
What ever Mr Katju wrote in his article makes sense. The law could be bad but it is there to be respected instead of interpreting for this practice has divided religions in sects thereby the humanity.
farhanshahidkhan Jul 03, 2012 12:44pm
Very valid arguments. Justice Kanju should probably keep his opinions limited to his own country. He seems to be to impressed with administrative abilities of British. No wonder most of the conflicts in the world are attributed to faulty boundaries left by British colonialists
manish Jul 04, 2012 03:59pm
they did not fire the president because they knew president has immunity!!!
Tariq Sheikh Jul 03, 2012 07:55am
totally biased article. totally lacking sense of jurisprudence and common sense.
shankar Jul 03, 2012 08:12am
Totally agree with the author. Mr. Katju should let Pakistani democracy stew in it's own judicial juices and not waste his time on educating them with his unbiased opinions.
harkol Jul 03, 2012 08:14am
All the arguments provided here is futile. It tries to explain the irrationality of presidential immunity. If so, it is for the parliament to withdraw that immunity - not for anyone else. As long as it is law, how can judiciary interpret it any other way?? Ridiculous!
Ahsan Butt Jul 03, 2012 07:08am
A biased and one sided article. The barrister clearly knows nothing about constitutional jurisprudence and is keen to appease the dictatorial judiciary.
Asad Raza Jul 03, 2012 08:59am
I want to add only two things. The Allahabad court decision was about the election proceedings. Second thing is that the SC has decided this case on the basis of an ordinance which does not exist now.
Rizwan Ahmad Jul 03, 2012 10:50am
Highly biased article, author tried to twist the law & constitution.
sanaullah khan Jul 03, 2012 10:17am
little bit a good article
Usman Masood Jul 03, 2012 02:53pm
Sir, No Words. Excellent. Spot On. Let those who worship their intellectual idols, 'democracy', and the supremacy of Par-lament, do so. But... You said it!
salman ahmed Jul 03, 2012 04:24pm
Good article. I agree that Katju's article was inappropriate to say the least.
NASAH (USA) Jul 04, 2012 12:51am
Pakistan is different from India -- in Pakistan constitution -- a sitting prime minister can be and has been removed by a sitting judge on contempt of court for having no skill to write letter against his party president -- if not for staring at the judge. What puzzles jurist all over the world -- why the supreme court judges did not write the letter themselves as Ms Jahangir said -- or ask the registrar of the court to write the letter. Most interestingly -- why the supreme court justices did not ask the president to write the letter self-incriminating himself -- instead asking the prime minister -- and fired the president for noncompliance instead of his prime minister?
Subscriber Jul 03, 2012 07:48pm
Thats what we are saying Its Pakistan's constitution not Indian So the Authority is Pakistan's SC not of India and Pakistan's SC has full Authority to interpret it......
guest Jul 03, 2012 07:44pm
Judiciary has the right to interpret the Constitution in Pakistan and also in other countries where the written Constitution is exercised....
zaina huda Jul 03, 2012 07:39pm
very nice Article.......Mr Katju did not know what Pakistan constitution is so why he is arguing on it????? Pakistan SC has full Authority to interpret Constitution and this Right is given to SC by the constitution not CJ....
observer Jul 05, 2012 10:27am
If I had not known that Justice Katju was Indian, i would have written the same analysis. However, if you had not known that Justice Katju was Indian, you would most probably have liked his views.
Aitzaz Jul 05, 2012 10:00am
Pakistani supreme court is over active that is all i can say......will i be summoned for these comments!!!!