Dawn News

The Katju debate

In a previous blog, I referred to an op-ed authored by Mr. Justice (retd.) Markandey Katju, a former judge of the Supreme Court of India, which was published by The Hindu  – it is also available on his personal blog along with a follow-up piece authored by him in response to criticism from Pakistani commentators. The response by Pakistani lawyers to Katju’s comments has been nothing short of explosive. This is not surprising considering the forthrightness with which Katju put forward his opinion, which can be summed up by the following observation made by him: “It seems to me that the Pakistan 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 Pakistan Supreme Court...”

Though Katju’s language was no-doubt abrasive, his argument itself contained substance. The core of Katju’s op-ed focused on the Constitutionally-enshrined principle of Presidential Immunity. In his view, this was a complete response to the disqualification case made out against former Prime Minister, Yousuf Raza Gilani, who was justified in disobeying a court order where doing so would result in a clear violation of the Constitutional mandate. In the short time since the original op-ed was published, no less than three senior Pakistani jurists have published detailed public responses to the original piece. Though the debate has, to an extent, been overtaken by the detailed judgment of the Supreme Court itself, it is still of interest for those following recent legal developments in Pakistan.

An initial response was put forward by former Senator Mr. Iqbal Haider. His argument was two-pronged. Firstly, he asserted that the argument of immunity was not put forward by the Prime Minister’s counsel as a defense. Secondly, he argued that by not appealing against the verdict, the Prime Minister implicitly accepted the ‘correctness’ of the verdict. A similar line of argument was also developed by the prominent Karachi-based counsel, Mr. Faisal Siddiqi, in his op-ed in Dawn entitled ‘Misguided Criticism.’

With respect, I can’t bring myself to agree with either of these two counter-arguments. Firstly, it is not fitting to say that the Supreme Court is entitled to put aside the mandate of constitutional provisions which were not raised before it in argument. The principle of Presidential Immunity was implicit in the entire controversy and it could not, in good faith, be treated as a subject which was not central to the case. Even if the counsels themselves had not raised it, its substance could not on this basis have been overlooked by the Supreme Court.

Secondly, it is self-evident that by not appealing against the verdict, the Prime Minister was not accepting the verdict, but rather rejecting the forum (rightly or wrongly). It was clear to any observer which way the appeal would have gone. Either way, this does not deal with the central thrust of Katju’s argument: that the very conviction itself was unjustified due to the Constitutional mandate enjoining the Prime Minister to decline to act, or alternatively the bona fide belief which the Prime Minister held in such a Constitutional mandate.

Both lawyers also attacked Katju’s impartiality: Haider labelled him ‘opinionated’ while Siddiqi referred to his views as ‘partisan.’ This particular allegation was replied to by Katju himself in a letter published in a Pakistani English-language newspaper but even leaving aside the fact that Katju himself has nothing to gain from the outcome to this legal debate, it seems highly implausible that he would have some ideological axe to grind with the Pakistani Supreme Court, or that his opinion follows from anything other than his understanding of the law. Though all three Pakistani lawyers also labelled Katju ‘ignorant’ as well as ‘partisan’, I don’t believe this particular allegation merits a response.

The only response which attempted to deal with the main thrust of Katju’s argument was put forward by the respected Karachi-based counsel, Mr. Salahuddin Ahmed, in his piece entitled ‘Not A Judicial Coup.’ The op-ed by Ahmed convincingly argues that the Presidential Immunity conferred by the Constitution is a “relic of our English colonial history.” Though this may well be true, it reduces his argument to either: one in favour of Constitutional reform rather than one in defence of the Supreme Court’s judgment; or alternatively an argument that the Supreme Court is entitled to put aside Constitutional provisions which do not corroborate with their understanding of what should be the law (certainly it cannot, while remaining within the sphere of intellectual honesty, be referred to as an ‘interpretation’).

Despite my ambivalence towards the latter notion and what its long-term implications could be, I do believe that Ahmed’s enunciation is consistent with the Supreme Court’s own views. A similar belief was expressed in the detailed judgement by which the former Prime Minister was disqualified; at one revealing point in his concurring opinion, Mr. Justice Khilji Arif Hussain says in relation to the exercise of jurisdiction under Article 184(3) of the Constitution: “... this practice of identifying individual Fundamental Rights which are affected in a case such as this is somewhat anachronistic.”

In my view, this best exemplifies the state of the law as it is in Pakistan today. And that is perhaps the real answer to Katju’s comment: the Pakistani legal system is now so far advanced, that even the literal text of the Constitution has become redundant.

The writer is a lawyer practicing in Karachi.

The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.

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Comments (22) Closed

Raamis Hussain
Jul 10, 2012 11:56am
I’d heard Mr. Katju arguing on this on BBC Urdu making a disinterested approach towards this entire issue. The ‘others’ who are deprived of enjoying power are seeking new doors unavailed yet. And that’s exactly what has happened and Yousuf Nasim has pronounced it good enough. Only an obstinate mind would stand out of the circle of this debate!
dawn fan
Jul 10, 2012 07:00pm
The constitution of a democratic republican country is always supreme and no body or judicial institutions is bigger than it’s popularly elected Parliament. If the SC and its judges are made to be such a HERO, than they have led a territorial incursions into the political domain of policy making authority, largely the prerogative of the parliaments. If the SC confronts the Parliament, then the day will be not far, that parliament- the law making body loses its raison d etre and its overwhelming sanctity, in the concept of the rule of law. The dismissals of Prime Minister Gilani will have its ramifications in the years to come, when the precedence becomes the norm for any elected government in the state or at the Federal levels and it was the poorest judgement in the history of judicial benches anywhere in the world. It was a miscarriage of justice and its shocks will be felt to the nascent democratic institutional structure. It was not a judgement but a guillotine.
Jul 11, 2012 04:02am
So true.
Madan Mohan Joshi
Jul 10, 2012 10:22am
The constitution of a country is foremost and each and every statute must be abided religiously to keep the sanctity of the constitutional provisions by all especially the judiciary, the parliament and the executive. In Pakistan judiciary has been emboldened by its frequent praise due to a stark failure of constitutional government, that's why it is acting as a saviour and producing controversial judgements.
Jul 10, 2012 10:27am
The lawyer community in Pakistan identifies itself completely with the CJ. They are the ones who fought to get him back to power. We cannot expect them to say anything against the CJ!
Yousuf Nasim
Jul 10, 2012 10:58am
Dumbledore: since its consistent with the prevailing judicial philosophy of this Supreme Court, its not open to any lawyer to argue that it is not legal. Whether it is good law is a different matter altogether. For my part, I don't think its sustainable or fair to the electorate.
Jul 10, 2012 11:04am
@ dumvledore I think that may have been a sarcastic remark at the end! It is my understanding that the writer believes (as does Mr Katju)that the constitution should be adhered to bythe Supreme Court before it completely collapses and we are governed by the whims of the judiciary and in particular the chief justice. Can or should one man be allowed to redefine the constitution in Pakistan. Is this evolution of the law or a complete disregard of it?
Agha Ata
Jul 10, 2012 01:10pm
Three things: a) Why did PPP elected a man with a dubious past as the president? b) Can Zardari be arrested, or letters to the Swiss banks written after his term as a president is over? If so why doesn’t the court wait for a little while? OR c) Is it the unconstitutional- undemocratic desire of not letting the President complete his term?
Jul 10, 2012 11:12am
Wonderful analysis!!! Such a clever way to put it. may your tribe increase!!!
Jul 11, 2012 07:49pm
"If so why doesn’t the court wait for a little while? OR c) Is it the unconstitutional- undemocratic desire of not letting the President complete his term? " Good question Agha -- right at the time Zardari retires -- CJ retires -- Kayani retires -- everybody retires -- won't that be great -- for CJ the time is NOW or never -- this is V for Vendetta -- not F for failure. Besides, Zardari can come back who knows -- but the God particle cannot.
Jul 10, 2012 12:42pm
Mr. Katju has an opinion about everything mostly un-warranted.
Raj Patel
Jul 10, 2012 12:33pm
I have a question to the constitutional experts." If suppose in next election. Mr. Gilani get the people's confidence and PPP select him to be Priminister again then what SC will do??? Again they will send him back to his house??? Who is suprem ??? People's mandate or SC?
Jul 10, 2012 01:51pm
this shows ur ignorance about the law. He (Gilani) cannot participate in election for the next five years!
Jul 10, 2012 11:27am
By the way this happens in India too. Just recently the GOI has asked for a review of the 2G order in face of SC judgement to show the courts its place.
Abdul Waheed
Jul 10, 2012 12:03pm
It looks that Justice Iftikhar wants to assume all powers of Executive, parliament and also of all judges of judiciary. He is behaving in such a manner that he is omnipotent in the field of constitutional matters and only his rule is legitimate. But for his personal glorification / heroism, he is doing a lot of damage to the country by creating instability, uncertainty, terrifying the weak political government, rendering Bureacracy unable to make decision by fear of judiciary, discouraging investment, completely stopping privatization process. His stay as CJ will cause more catstrophics to Pakistan's economy. When the entire world is of the view that Head of States enjoy immunmity from prosecution, he is bent uopn to send Prime Ministers home one by one.
Jul 10, 2012 09:45am
Did not understand the last part: " And that is perhaps the real answer to Katju’s comment: the Pakistani legal system is now so far advanced, that even the literal text of the Constitution has become redundant" Do you agree with this argument? Or was it a dose of sarcasm?
akhter husain
Jul 11, 2012 07:13am
The conviction of PM in contempt case was neither constitutional nor legal.but was the result of war of authority and supremacy
Jul 11, 2012 07:46am
Strange things happen in Pakistan - I think it is unheard of anywhere in the world that the Supreme Court of that country moves for prosecution of a President in office, this is not judicial activism but crass politics that does not behove well for any country leave alone Pakistan which is going through far greater problems. It seems the judiciary in Pakistan is bent on destroying democracy - its like to spite someone you will cut your own nose. One of the problems with Pakistan is that there are too many egos floating around in the power centers that it is hurting the people. The simple understanding of democracy is Parliament is supreme as they are elected by the people.
Abdul Waheed
Jul 11, 2012 07:54am
The simple understanding of democracy is Parliament is supreme as they are elected by the people but our CJ openly says that there is no conception of supermacy of parliament and that he will strike down the legislation made by parliament. Really strange.
Jul 11, 2012 08:04am
You said it. So that was the real motive behind all this drama. To disquality an elected PM for 5 years not to uphold the constitution. Because even a lay man can understand that he enjoys immunity as per the constitution
Dr Bakht
Jul 11, 2012 08:45am
People ask one question why it is necessary to beg immunity when it is clearly given in constitution and judicial people are aware of it. While taking decision they should have generously consider it voluntarily.
Pramod Joshi
Jul 20, 2012 11:56am
In parliamentary system of governance it is collective responsibility. The decision of not to write to Swiss authorities was not a personal one. It is not that government has a different view on the issue now. Why a person be punished not to contest for five years?