The Katju debate

10 Jul 2012


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.