The Pakistan Supreme Court “has flouted all canons of Constitutional Jurisprudence”

Justice Katju: “The Prime Minister holds office as long he has the confidence of Parliament, not confidence of the Supreme Court.”

Justice Markandey Katju, former Justice, Supreme Court of India and presently Chairman, Press Council of India just sent me an article about the recent order of the Pakistan Supreme Court declaring that Mr. Gilani is not the Prime Minister. Justice Katju writes, “In my opinion the Pakistan Supreme Court has gone totally overboard, flouted all canons of Constitutional Jurisprudence, and is only playing to the galleries and not exercising judicial restraint. It is thereby upsetting the delicate balance of power in the Constitutional scheme.”

In his article, Justice Katju explains the concept of immunity and stresses the need for balance between the organs of the state. He writes that it may be published freely in any newspaper:

By Markandey Katju

When I was a student of law in the 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 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”.

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 Pakistan 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 confidence of the Supreme Court. (emphasis added)

I regret to say that the Pakistan Supreme Court, particularly its Chief Justice, has been showing utter lack of the restraint which is expected of the superior Courts. In fact the Court and its Chief Justice have been playing to the galleries for long. It has clearly gone overboard an 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 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, particularly its Chief Justice.

Justice Markandey Katju
Former Judge, Supreme Court of India
Presently Chairman, Press Council of India

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102 Responses

  1. Thank you Justice Markandey Katju for your independent and professional comments on the removal of Prime Minister of Pakistan.It has cleared my confusion on the judgement.

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  2. Well the article is well written yet Kajtu fails to realize that Gillani has been charged for a contempt of court rather than corruption charges. He was ordered by the court to take an important step and his failure to follow those orders led him to be removed by CJ as the PM under the article 63(1)(g) of the constitution where it clearly states that a person cannot be a member of the parliament if he found guilty for the contempt of court.

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    • But dear how had he made contempt when he was following the Article 248(2) of the Pakistan Constitution which states: ”No criminal proceedings whatsoever shall be instituted or continued against the President or Governor in any Court during his term of office”.
      He categorically said to the honourarble court that the President has got immunity so he could not write a letter against him……

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      • Immunity has to be claimed. There is no such thing as blanket immunity.

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    • But the PM is not answerable to court in a way that it can prosecute him during his term. Certainly after it is complete. Does the esteemed Supreme Court of Pakistan not shudder that 33 years of your 65 years of your “Independence” have been under military rule? Baffling.

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  3. I am not a lawyer but I know that all laws, contracts, agreements are made in “good faith” and all parties are bound by their respective responsibilities and obligations to run the system and maintain the ‘delicate balance of power’ the learned Judge refers to. However, in this case “immunity” was being willfully and openly abused and the oath of office was blatantly and repeatedly violated – with a Parliament – to which they were accountable – becoming party to the ongoing loot and plunder of national wealth.
    The “immune” were “flouting all canons” of governance forcing the court to take the “unheard of” step.
    It was not a normal or pretty situation and as Mr Katju agrees “in the practical world one does not deal with absolutes”.

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    • Excellent response to Mr. Katju’s opinion….

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    • Immunity is immunity, whether the actions undertaken under it are perceived as abusive or not. That is subjective. Should the PM have been held in contempt of court while in possession of this office which gives him immunity for his term? If my understanding is right, correct me if I am wrong, then not so! Further to Justice Katju’s point, Mr. Gilani could have theoretically been tried after his government finished its term, might I add, after it became the only civilian government to complete its term! Unlike a King, both the president and the prime minister could be tried fairly after their terms. What we are faced with is the abuse of the means of justice by historically and systematically incentivized tyrannical tendencies which too long have undermined democratic consolidation! Without balance of power who will guard the guards?

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  4. Sir, I completely agree with most of the contents of your article and i liked how you have explained the history of the immunity that is granted to the head of state of a nation.

    however, with all due respect, please try an appreciate the background of the issues surrounding this controversy and perhaps if possible clear my perception about certain things as well if possible.

    First of all, the President of Pakistan, Mr. Asif Ali Zardari could only become the President of Pakistan because of the National Reconciliation Ordinance (‘NRO’) that was promulgated by Gen. Pervez Musharaf. The effect of this Ordinance was completely contrary to its preamble and what it did was, it gave the corrupt leaders of Pakistan a clean slate. In the absence of this Ordinance Mr. Asif Ali Zardari could never become the President of Pakistan because of the corruption cases that were pending against him.

    Now after the general election when PPP came into power and allowed Mr. Zardari to become the President, the matter regarding the NRO went to the supreme court for being unconstitutional, and the supreme court declared it unconstitutional and void ab initio.
    So I will distinguish your opinion about the immunity of heads of states from the current scenario in Pakistan. The criminal proceedings and the cases pending against Mr. Zardari were not new which were being opened, in fact, his Pre-NRO cases were being reopened.

    My opinion from the outset was that after the NRO was declared unconstitutional and void ab initio, Mr. Zardari should have been overthrown in the first place because he did not have the right to sit on seat of the President in the first place.

    Now coming to Mr. Gillani, this is somewhat unclear to me because i feel that there were a few conflicting articles of the constitution and i do not know that which one would prevail in such a situation as i am still a very young Barrister in the beginning of my legal career.
    Mr. Gillani had clearly committed contempt of court and according to Article 63(1)(g) he was declared disqualified from being a member of the Parliament and in effect disqualified from being the Prime Minister of Pakistan. However, on the other hand it was in the hands of the speaker of National Assembly to disqualify him which she chose not to do so how could the supreme court take this matter in their own hands?

    Now coming to the Parliament of Pakistan. what we must appreciate is that the Parliament in Pakistan is not Supreme. The reason why it is still arguably Supreme in the UK is because they have an unwritten constitution. Conversely, in countries where there is a written constitution then the Constitution of that country is supreme. So my question is that even if the Parliament gave Mr. Gillani full confidence, then does that mean anything at all? because the constitution under Article 63(1)(g) “Clearly” disqualifies the Prime Minister from holding office in the Parliament.

    Please do reply back if you have the time Sir.

    Thank you

    Barrister Rizwan Ahmad
    Advocate High Court, Lahore, Pakistan

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    • I my opinion, you are misreading article 248. The article 248 applies equally to past and present actions and any related proceedings. 248 protects immunity to the President during the term of his office and does not distinguish between the proceedings brought for past actions or current actions or between the proceedings that were initiated before and the proceedings that were to be initiated. For your reference the article states “no proceedings whatesoever shall be initiated or continued (emphasis added)”, which clearly means that even if there were any proceedings that were ongoing, they could not be continued against the President so long as he holds that office. Simple and plain…I would like you comments on that Barrister Sahib.

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      • Dear Salman, first of all for some strange reason I thought that I was actually writing to Mr. Justice Katju himself and that my comments would reach him somehow, however, it later transpired that perhaps thats not gonna happen.***embarrassing***

        Anyway, now coming to the point, perhaps you are right regarding the wording and the effect of Article 248, however, by reiterating the contents of my previous comment, my contention is simply this, that the President became the President in the first place because of an illegal, unlawful and unconstitutional ordinance which is the NRO. NRO was declared void ab initio by the SC. If NRO was never in place then Zardari was not qualified to be the President in the first place so the point is that if you do not have shelter on your head then how can you protect yourself from hail storm?

        I agree that the approach taken by the SC is not the best one, perhaps a different approach would be more constitutionally correct and more fruitful. I think the correct approach should have been, that instead of going after Gillani, the SC should have directly gone after Zardari, as they have already declared the NRO void ab initio meaning that it never existed and then should’ve have overthrown him as President and initiate all legal action against him.

        hope this helps a little…

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      • Dear, Barrister Rizwan Ahmed; Before u ask a person ( a retd Justice of India) who has given his opinion or suggestion on constitution of Pakistan (after giving a read), to clearify his stance. Why dont u asked Chief Justice of Lahore High Court to which u are a Barrister or for that matter CJ of Pakistan Supreme Court to sort their clearification and explanation on the Article referred by the writer (Justice(R) Katju). As per my knowledge & knowing, PM Pakistan has been soley charge on Contempt of Court for not writing a letter to Swiss Bank to re-open cases against the President of Pakistan. Secondly, What so ever may be the case, it rises after PPP came into power and Mr Asif zardari was then elected as President by the Parliament ( sitting representatives of people of Pakistan) which is supreme in nature to all Institutions of Pakistan. All Institution of Pakistan are subserviant to the Parliament ( Gori ke tara, Shaak mai na raho). Thirdly, Mr Asif zardari had been in jail on same corruption charges for 8 long years, which could not be approved by the same Court, NRO was not declared un constitutional before election 2008, what I percieve, it may have been declared un constitutional after the election of PPP in power and Mr Asif Zardari nominated / elected as President of Pakistan, on this context, & Article 248(2) as referred by Retd Indian Justice Katju becomes valid and appealing, that President enjoy immunity and PM Pakistan may not be removed as he was brought into by the people of Pakistan not the CJP’s orders. Lastly, I would say, how unfotunate it is, that the Article legislated by Parliament Of Pakistan for implementation by the CJP, is being explained and clearified by a retd Justice of India instead of our CJP and judges, Are we, so incompetent to know, clearify, explain & implement our own makings. More unfortunate is that you are giving a task or assignment to a Guest (Retd Justice Katju) to asseses the situation/cases in Pakistan & give out his viable recommendation for u to implement, The Job you are suppose to do being paid for through the taxes of people of Pakistan. And last of all, I dont understand myth, the law or article of the constitution of Pakistan was / is formulated/ framed by the Legislators or law makers in Parliament(Representatives of people), how could it be explained & clearified by the CJP of Pakistan Supreme Court,untill it is amply justified by the Parliamentary committee for Implemenation. How could CJP know the context / background of making the law or constitution & its articles discussed, approved and passed by the Parliament & Senate finally the President of Pakistan. Do CJP know the idea, thinking of law makers in the back of their mind on which the laws & constitution is made & passed. Therefore I feel the clearification/ Explanation of any law & articles in the constitution rest with Parliament not the CJP, since it has become a precedence, constitution or law are being clearified / explained by CJP & Judges which is linchpin of all problems in our beloved country.

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      • The letter to swiss courts could have been written stating tht our Supreme Court has ordered us to re-open the cases, however our president enjoys immunity till he holds the office of president. Therefore, no proceedings shld b continued until he leaves his office however our earlier letter to close the cases should be considered void. Things could have been better if the govt could do this.

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      • From Barrister Rizwan Ahmad, in response to Gurgh (unable to post directly due to technical difficulties):

        Dear Gurgh (a very ‘different’ name I must say)

        (Reply to your comment on my comment dated 22 june 2012 at 12.57
        pm)

        It seems to me that you do not really have any training in law & procedure. I fail to understand your point of view and from the gist of things that you mentioned and it shows clear confusion. Please read both of my comments again and perhaps you may see some light of what I am saying.

        your fundamental confusion is that you think that all institutions are somehow subservient to the Parliament. This is clearly not the case especially in Pakistan or in states that have a written constitution. There is a theory of Separation of Powers first thought of by a French philosopher called Montesque. It may be a good idea to research on it and give it a read. In simple words this theory is about the fact that every State has 3 organs i.e. the Executive (your PM, ministers, civil servants etc.), the Legislature (Parliament) and the Judiciary. Each of these 3 organs is independent from one another however, they may keep a check and balance on one another. So the Executive and the Judiciary are not at all subservient to the Parliament.

        Secondly i suggest that you research the meaning of a Latin term i.e. “Void ab initio”. Once you do that you will be able to see that what I mean by my assertion that the President should have been overthrown even if he was elected before the ruling of NRO. For your convenience void ab initio means “to be treated as invalid from the outset,”. Therefore, NRO which gave the President immunity from his pending criminal case and because of which he could even contest the election was declared invalid or illegal from the outset.

        Thirdly, I asked the guest a question through an informal channel because i thought it was possible and his insight would be quite valuable. Leave the Indo-pak conflict aside for a minute. The factual position is that much of indian law is very much similar than that of ours (especially their constitution) and in practice if we do not find anything in our law we always refer to indian law as a starting point. And many of our laws are in fact based on their law. The reason is quite simple, it is a bigger country with more everyday issues that go to court and get resolved there forming good precedents. Another reason is that they did not really have any problems regarding their Judicial System like we had over the past few years. An example would be the PCOs which basically took most of our competent judges away before they could really start their career as judges. These are the bitter facts that we must face and try to cope with the problems that we are facing effectively. Read the Judgments of the indian judges and read the judgments of most of our judges and you will clearly see a difference. Good and Competent Judges are a rare breed to be found in Pakistan in these times. Read the Judgments of our Judges from the past like Mr. Justice Corlaneous or Mr. Justice Bhagwandas etc.. and compare them to the current judgments and you will see a visible difference.

        I hope this helps.

        p.s. For your information, Barristers don’t get paid by the income generated through the “tax payers”. We are lawyers and we provide legal services to our clients and charge them appropriate fee for their case. So its not my job to give reasons or recommendations for anything really, i’m not bound by anything. But using my knowledge and my expertise I would love to help my country wherever and whenever I can out of love and patriotism.

        Thank you for your comments and your critique

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    • Justice Katju’s reply to Barrister Rizwan Ahmad:

      Dear Rizwan,

      I have seen your comment on my article,and would like to respond.
      You have basically raised two issues in support of the action taken by your Supreme Court:

      (1) Since the National Reconciliation Ordinance has been declared unconstitutional by the Court, the pre NRO cases against Mr. Zardari can go on.

      (2) The Prime Minister is disqualified from becoming a member of Parliament because of section 63(1)(g) of your Constitution.

      My reply is as follows:

      As regards (1), the cases against Mr. Zardari cannot go on, at least as long he is the President, because section 248(2) of the Constitution specifically says that not only no criminal case can be instituted against the President, but also that none can be continued. So even if a criminal case was pending against him when he became the President it cannot continue so long as he is the President. The wording of the section is clear and unambiguous, and it is a settled principle of interpretation that when the language of a provision is clear then the only rule of interpretation which applies is the literal rule.

      As regards(2), section 63(1)(g) of the Constitution, to which you have referred says, inter alia, that a person shall be disqualified from being elected and from being a member of Parliament if he has been convicted by a competent Court for acting in any manner which defames or brings into ridicule the judiciary.

      I need not go into the question as to which authority has the power to disqualify a person under this provision. I am raising a much more fundamental question.

      When Mr. Gilani said that the Court cannot give directions which directly or indirectly violate section 248(2) of the Constitution did he defame or ridicule the judiciary? I think he raised a very valid objection and this surely does not amount to defaming or ridiculing the Court. Had he said that the Supreme Court was acting mala fide or for some ulterior or corrupt motive that would certainly be defaming the Court, and had he said that the Court was acting stupidlly that would amount to ridiculing the Court.

      But Mr. Gilani only raised a Constitutional question of great importance. Does this amount to defaming or ridiculing the Court?

      In my opinion, every conviction for contempt of court cannot result in disqualification under section 63(1)(g). One has to see the precise act which has resulted in the conviction.

      Hence both the objections raised by you are unsustainable.

      As I have already mentioned earlier, your Chief Justice, and also many of his companion Judges are showing utter lack of self restraint expected of a superior Court, and for a long time they have been playing to the galleries. Whether they have some hidden agenda for behaving like this I cannot say, but if this trend continues I am afraid it will wreck the Constitution, and then the results will be disastrous

      Regards
      Justice Katju

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      • Actually,Gilani was convicted for DISOBEYING the court.Not for contempt/ridicule.
        Secondly,in an islamic country QUR’AN is supreme.Not constitution or laws or parliament or president.The JUDICIARY is empowered to interpret the Qur’an in a judicial situation.In this case, the CJP/SC interpreted the Qura’anic injunctions to show that Gilani cannot be a good moral muslim & is hence disqualified.
        Can you answer these points,Justice Katju? I believe they nullify your arguments.

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      • Dear Mr. Justice (retd.) Katju

        First of all thank you very much for your reply and your valuable observation on the subject.

        Secondly I would like to break down the issues so that each issue can be identified separately and people can understand my point of view in a better way.

        Let us take the issue of IMMUNITY first. In this regard I would like to reiterate the comment of Dr. Anjali Nirmal because her point of view was very well reasoned and I was also thinking on the very same lines.

        I will begin by distinguishing the position of Pakistan with the United Kingdom regarding the notion “the king can do no wrong”. First of all Pakistan does not have a monarchy system. Mr. Asif Ali Zardari is not the King of anything really, and even if he was the King when this notion came into being then I am sure that the British would say “The King can do nothing but wrong”. My question here is that if Mr. Zardari wakes up one fine morning in the summer with a temperature of 50 degree celcius with no electricity (highly unlikely) and just loses it, picks up an AK-47, goes outside and just starts going berserk with is gun and kills everybody around him, even then, would the immunity under Article 248 protect him?

        Back when I was the student of LL-B (which is not that long ago) I came across this theory called “the two-hat theory”. This theory involves the fact that Heads of States wear two hats when they are in power. One is the official hat and the other is their personal hat. If the head of state does something wrong in his official capacity then he shall be granted immunity but if he does something wrong in his personal capacity then the appropriate proceedings may be initiated again him. So saying that Article 248 grants immunity to the President in all forms of proceedings is not as simple as it seems or as one may think and may be the “literal rule of interpretation” is not the best approach. In my opinion there is still room for interpretation that the courts can adopt and punish the President for his wrongs. This is one opinion that I have.

        The other opinion that would still justify the President to be overthrown is the fact that I mentioned in my previous comments and a few of my fellow bloggers have backed it up. This view is that the President was only eligible to be the President because of the NRO which gave him a clean slate and a right to contest the elections. When the NRO was declared unconstitutional and void ab initio meaning “invalid from the outset” then the President should’ve been overthrown and the pending Swiss cases should’ve beeen initiated against him, that would be the correct approach (however, I do not know what the limitation period for such an action is, but even if it has expired there could be an application for condonation of delay). Some people might argue that after the decision of NRO the law could not be applied retrospectively therefore, the SC’s decision does not affect the status of Mr. Zardari at all. However, my counter argument is that if a “law” was never in place and it had been declared by the highest forum on Pakistan that the law was against the constitution (which is SUPREME in Pakistan) then the whole process of Mr. Zardari’s appointment was illegal.

        Sir, If all Heads of States have the “King’s” immunity then why was Sadam Hussain prosecuted and hanged? Why was Kaddafi persecuted? Why was the law after Mubarak? And there are countless examples on these points. An analogical example can also be seen from the Nurenburg trials where the Nazi generals were prosecuted for killing Jews even though when they committed these acts of terrorism they were all following orders and in their jurisdiction it was legal at the time.

        So since the decision of NRO till date I do not understand why Mr. Zardari is still our President?

        If the SC had to go after Zardari then in my opinion the proper ways would be the above or who knows there may be other arguments as well as the subject of law is so vast that even a person like you would still learn a thing or two that would be new.

        Now coming to Mr. Gillani, well although he is out of power now but he remains to be a burden on the Pakistan exchequer as he would still get all his staff and all the perks of a Prime Minister till the rest of his life. I was reading an interesting article yesterday which stated that by 2025 (if the world doesn’t end in 2012) if we keep on changing our Governments at this rate then all these people would be a great burden on the Pakistani tax payer.

        I might be wrong but as far as I understand the issue, Mr. Gillani had given various statements on various media channels about the Supreme Court that were demeaning and were in fact ridiculing the August Supreme Court, so it is not only contempt of Court by disobeying the Court’s order that Mr. Gillani was disqualified under Article 63(1)(g). If he was only challenging the jurisdiction of the Court then common sense demands that this would not amount to contempt as you Sir had pointed out to me.

        What the SC did was wrong in my opinion but I’m sure we do not share any sort of love with our politicians because they are the biggest and the greatest examples of corruption that the world has seen in its history and I think they should be awarded a PHD degree in corruption. So as much as I would like them to be behind bars for the rest of their miserable lives, I think that the actions currently taken by our SC were inappropriate and maybe Mr. Gillani should have gone for the appeal. That leaves us with another question to ponder about. If Mr. Gillani was so right and did not do anything wrong then why didn’t he even attempt to challenge the SC’s ruling in appeal? And because of this proposed appeal we had lost an excellent judge to the Supreme Court in the shape of Mr. Justice Sh. Azmat Saeed. We miss him dearly in Lahore.

        Thank you for now.

        Kind Regards,

        Barrister Rizwan Ahmad

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    • @ Dear Barrister Rizwan; Your response dazzle me for couple of minutes, Indeed, you never crasp the crux / purpose of my comments, what I intent delivering to you.( I never meant scratching Pak-Ind conflict or enmity or adversity). However; still u have not understood that u are an employee in one of state organ; that’s what the mis-understanding is. I prefer u should check out list of protocols issued on state organs giving priority of respect / status to each organ as per their importance in the state; I mean Pakistan, nontheless u will never find Parliament in the list; May I ask why..?. Let me put it in this manner for ur convenience, if at all it appeals to ur good understanding & if possible reply back for my damaged brain (I think) to get it repaired / rennovated. As per my perception & understanding Parliament is the heart of all state organs i.e the Exec, Judiciary,Army and now one more has pop up as fourth organ’ The mighty Media” which I always consider as ‘Devil” just like Iblis, who always divert humans or for that matter muslims from the righteous path. Parliament ( House of Representative, of whom’ The People of Pakistan) therefore power lies with people not Judiciary. This house regulate/ pump blood to all organs in the body to function and had devise, charter of duties to each organs to work remaining in their orbits, a sort of controlling authority in the State or whole body. The laws & constitution are framed /intituted by the same house, disscussed and further passed to each organs to interpret, enforce and subsequent implement in the state in the manner as required to keep the state functioning in the right direction; Theory of seperation of powers lies here for organs as per the charter of duties given to them and Parliament is not in the organs ( I think). Which is why each organs are responsible & answerable to the parliament for their acts. I must say again, as per ur concepts, if all organs are independent in the state, how would u justify summoning of COAS of Pakistan Army an independent & soveriegn body in the state in the SC by CJP and also its agencies heads, Army runs on a set pattern of laws framed & passed by the Parliament in 1952(The MPML, Manual of Pakistan Military law) secondly as to how in the previous govt, Military Courts were established to punish hardcore terrorists under the jurisdiction of SC why can’t the SC do the same.

      There is rumours floating in the country that CJP is being called by the Parliament and may be some articles of constitution require amendments or change. What could be the possible reaction of CJP, would he abide by the people power or corrupt people of Pakistan and their representatives,

      Pakistan, laws of the land is not based on Indian laws, infact; Those laws which bears the name of India like Indian Acts are basically framed by the Bristish before 1947 when both countries were under the British Raj, Perhaps.(please correct me)

      As for termonology of law ” Void ab Initio, for NRO is concern. The reconcialation terms were instituted by legimate govt of Gen Pervaiz Musharraf in consultation with politicians with the consent of the same CJP it was promulgated and it was not made invalid untill PPP was in power; once the black law was not Void ab Initio, before election then why irking now. My point is once the man running for Presidency is not refrianed or stop initially. As to why creating confusion /chaos in the country when he has been elected as President and has already occupied the seat, therein running the state, here is the point when the Article 248(2) come in play & power and Article 63(1)(g) cannot cut through.

      My last point; if my eyes was colour blind & ears deaf; SC short order intially indicated only article 63 and SC ord 2003, leaving every thing on half cocked politicians, people including me and self imposed experts to decide themselves what to do with PM putting the entire country guessing, predicting and removing the PM at their own accord, a fully state of confusion & chaos; even after detailed order they(judges) took the support of poet Habib Jalib, poetry to pity the nation(ppl) instead of giving clear & precise judgement, for whom the entire judiciary is servent, i am afraid u may say no to the servent word; if no, then ur judges are really independent & Emperors and CJP the King or emperor of Emperors. When his(CJP) son corruption case pop up and there goes the beloved Article 63 adding Sub article (1) along with (g) cutting through the article 248(2) in such quike strike even the article 248(2) itself cannot come know that it has been cut/sliced . With due apology “I am not interested reading Indian Supreme Court judgements/ cases I am only concerned with my country Pakistan”.

      With due regards & hope u may understand my jumbled up grey matter ( Brain or mind).

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      • Dear Gurgh

        First of all I am sorry if I had offended you in my earlier comment but I didn’t mean to, I was just giving my opinion and stating the obvious.

        Secondly, once again I am sorry to disappoint you but I am not an employee either of the Judiciary or the Government. I don’t get paid by either of them. The Attorney General or the Advocate Generals are on the Government’s pay roll but I am not and I enjoy complete autonomy and just work under the instructions of my clients. However, I do have ethical duties towards the court e.g. not to mislead it and be courteous to it which I think is the right of the Court as it is a very honourable institution of every jurisdiction.

        Thirdly, I believe its an undisputed fact that the whole world including Pakistan has 3 State organs, at least in theory so I still don’t know what you are talking about, it might just be your opinion and I respect that. I have no knowledge of the “protocols” that you mentioned, maybe Parliament is written under a different name there (our Parliament is called Majis-e-Shoora).
        I totally do agree with you that the media is the “Devil” and their recent scandals have also opened the eyes of many people in our great nation. Pakistan does not deserve having an independent media but no matter how independent it seems it is always dependent on the funds generated by different influential interest groups. Even if it has to be independent then there should be a strict code of conduct for them and we really do not need 15 different news channels, that is just weird.
        However, I disagree with you on the point that our Parliament is the heart of the 3 organs. Seriously? do you actually think that we get free and fair elections here??

        Fourthly, all the 3 organs are in fact independent from each other but there is another theory of law called “checks and balances”. The judiciary can keep a check on the Legislature through Judicial Review which is their Constitutional power. Similarly the Legislature can keep a check on the Judiciary but passing an Act of Parliament, practically nullifying the Judgment of a court. So I would like to reiterate that in Pakistan it is the Constitution that is Supreme and not the Parliament. You should also know that even though the Parliament can amend the Constitution but it can only be done through 2/3 majority and the an Act of Parliament is passed through simple majority. So the point is that even though Gen. Pervaiz Musharaff got NRO passed through his puppet Parliament, it doesn’t change a thing as NRO is contrary to the Constitution. The Supreme Court only decided NRO later in time because the case was instituted after the elections and you must appreciate that cases do not get decided in 1 days. I remember that it was done in 2009 as I have also worked on this case very briefly as an internee with Mr. Salman Akram Raja. The NRO was highly discriminatory as one of the aspects was that it was discriminatory towards Nawaz Sharif for instance. So as long as the NRO case instituted within time prescribed by law then it doesn’t matter if it was decided after Zardari came into power as the SC held it to be void ab initio.

        Fifthly, there is a special court to try terrorists in Pakistan and it is called the ATC or the Anti-Terrorist Court so again I don’t understand your point here.

        Lastly, the disqualification of the PM is a never ending debate, I have and the people have already written enough about it on this blog, I’m tired of writing the same thing over and over again.
        And regarding the poetry part of Gilani’s judgment, well please try to understand that every judgment has two parts i.e. the obiter dictum and Ratio decidendi. The latter is the reasoning of a judge for his decision and the former are the things said “by the way” in a judgment. It is a convention and it is in most of the judgments, the poetry written by Mr. Justice Asif Saeed Khosa (who I think is a brilliant Judge and a rare treasure to have in our judiciary) was his note on the judgment and his obiter and NOT the ratio, it was his opinion on the matter and he CAN do this. A judge can even write in his judgment what he had for breakfast in his obiter if he wants to and no one can object it.
        And, its your choice if you do not want to read the Indian Judgments, I just think that you might learn a thing or two because knowledge can come from anywhere. If you want to read the Pakistan Judgments then read the old ones or the ones published by the few remaining competent Judges of this era in Pakistan. The Supreme Courts has most of them.
        One last thing. you are right the British made our law before the independence but even after the independence many of our laws are based on the Indian laws. you can start by comparing the Constitutions of both the nations. Our was written in 1973 after the independence.

        I hope this helps and please let me know if i left out anything.

        Regards,
        Barrister Rizwan Ahmad

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  5. yes, they can like this coz in their country parliment is responsible and and opposition play their role in positive manner for the betterment of country…. but in pakistan when PM himself is corrupt then someone else has to take a step to save the country….

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    • Yes of course the one whose own son is involved in sharing the booty with established corrupts ,is the most entitled to end corruption at the top….

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      • The Chief Justice is wrong in having removed the Prime Minister but it doesn’t mean he is necessarily to blame for his son’s actions. That has not been established.

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  6. “In civilized life, law floats in a sea of ethics. each is indispensable to civilization. Without law, we should be at the mercy of the least scrupulous; without ethics, law could not exist.”
    —C.J Earl Warren

    Both the writer and the Indian C.J needs to pay a visit to google and look him up, would help to clearly understand why Pakistan is the best place for Judicial Activism, and how the C.J. of India is a weak one if he cant exercise his right to do so.

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    • Precisely Flouting the Court was not in the list of charges framed against Mr. Gilani, whom I still consider symbolically the PM. He took an important constitutional position, on which judges are silent even the detailed order. I don’t know the reason but apparently defence of this judgment is difficult.

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    • Please don’t conflate civilization with governance. Its a rookie error but it leads to the loss of substantive liberty in favour of a roaring, tumultuous ocean of ambiguity.

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  7. Dont agree to you at all. We as Pakistani feel Supreme court is right and we salute to the Chief Jusice Of Pakistan. Its not like one way, the best lawer pleaded the cases and it was not a closed room kind of thing. It was all in public even the arguments.

    Mr.Katju Do you know constitution of Pakistan. It also says that we will not have any rules contradicting anything from Islam and Islam clearly doesn’t allow immunity to the rulers. You should read the whole constitution. Our CJ is courages enough to challenge. Bravo

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  8. You’re talking about a “SYSTEM”, the supreme leader, president, PM of a country but unfortunately in PAKISTAN you’ll not find any system because of these inept & corrupt so called leaders. I don’t call them LEADERS, because THEY feel pain for their nation and country men but what THESE SUPREME leaders are doing to us? I am sure you’re aware of that. YES, THEY secretly allow US to DRONE us (99% poor pakistanis and 1% terrorist) and in the parliament condemn the DRONE attacks, YES they allow their family members to be partners in the corruption(NICL, Ephedrine, Hajj scandals) and still they try to keep them away from criminal proceedings, YES they keep the LOOTED money in swiss banks and still they don’t write a letter to the Swiss govt. to send back the money they’av looted, YES they don’t have any economic plan for the Pakistan that’s why one dollar has gone up to 96 Pakistani rupees and on the top of all these THEY don’t feel ashamed of what they have done to the nation and Pakistanis. When a SYSTEM exists then the things can be molded in the form that not to harm the system BUT when THEY give Immunity to Raymond Devis for being the CIA SPY not a counselor or embassador and handed over Dr. Aafia Siddiqui to the US, when THEY live luxurious life, wearing 3 pieces suits of millions of rupees and most of Pakistanis don’t have anything to eat and wear, When they don’t compromise on their PM house’s & President house’s budgets to have their LUXURIOUS life and the education budget is less than that THEN in my view some one has to take the step and the CJ of Pakistan has done the best according to the situation and I completely support this because this has stopped the country in completely going into anarchy. We always should keep in mind that the rules and regulation can not be CONSTANT but it should vary according to the situation and from country to country thats why THESE CORRUPT leaders have brought amendments in the law (18,19 and many more)…..

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  9. […] Read orginal Post here […]

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  10. I would differ here. In Islam, no one is above justice. The British maybe experienced and able administrators but they are far from the element of equality which is taught by the Islamic Judicial System. This article is self explanatory: http://www.martinfrost.ws/htmlfiles/islam_justice.html

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  11. Having born and brought up in Pakistan, and having studied law and practised in the United States, I regret the Court’s decision. Although my understanding (based on media reports) is that Pakistani Nation welcomes this decision, because it provides with a desirable outcome, However, I am dissapointed that the public fails to realize that while this decision may have a beneficial short term outcome, that its consequences which are yet to be seen — will be dire. While judicial activism is a good thing for the country that is face so much corruption, economic recession, and significant foreign relations hardships, here however the Supreme Court has oversstepped its powers more than just a tad bit. Here is my analysis:

    Not only is there a immunity issue at stake here (as Justice Katju explained) but there is also an issue of horizontal seperation of powers. Foreign relations fall under Executive branch, where only the President has supreme power in this arena. Requiring a PM to do certain actions in foreign relations stream warrants stepping out of line of SC’s own powers. Secondly, the Court has arguably overstepped on the parliament’s powers by overturning legislative branch — the most democratically elected branch, and the “closest” to people of Pakistan — SC has not acted in any less of a role than a dictator. If Parliament did not have an issue with the PM, the political forces would balance it out. There was no need for Court’s intervention. In other words, if parliament is not complying with the will of People, then there is a check in place: overthrow the govt in election.

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    • Democratically elected? Excuse me! This govt was formed based on the agreement between USA and Gen. Musharaff. So when the foundations are unjust, criticising the judiciary appears biased. In Pakistan law, President is just a non politicised constitutional position. Foreign policy and functions are run by Prime Minister.

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      • How can you say it was govt made by us and general musharaf. It was people of pakistan who voted.

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      • Recently NADRA declaration that 3crore 72lakhs votes are fake in electoral roll of 2007. NADRA confirms only voters list of 4crore 40lakhs however 3crore 72lakhs votes have no authenticity (almost 44% of total voted) and are not confirmed. It clearly shows the legitimacy of this parliament.
        We do not want anyone’s running commentary on the affairs of Pakistan who are not in Pakistan. Pakistanis in Pakistan are facing the music; suicide bombing, drone attacks, target killings, missing persons, corruption, 12 to 16 hours daily load-shedding, collapsed economy, shortage of water and many more. People are afraid, they are uncertain about their future. Do you have any little idea what we are going through!! I do not care about the whole debate which seems me rather a manner of testifying/justifying each of yours academic learning and professional experience than to reduce the plight of the poor people of Pakistan.

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    • You hit the nail right on the head Mr. Talha. Incidentally I have the same background as you, born and raised in Pak, studied and practiced law in Pak and now practicing in USA. I fully endorse Justice Katju’s opinion and your views. Additionally, I think Article 249 of the the constitution is crystal clear, unless we choose to ignore it. Article 248 applies equally to past and present actions and any related proceedings. 248 protects immunity to the President during the term of his office and does not distinguish between the proceedings brought for past acts of President or present acts or between the proceedings that were initiated before he took the office and the proceedings that were to be initiated. For reference the article states “no proceedings whatesoever shall be initiated or continued (emphasis added)”, which clearly means that even if there were any proceedings that were ongoing, they could not be continued against the President so long as he holds that office. Simple and plain. So, on purely legal grounds, PM’s defense was sound and valid that he was following the constitution when he declined to write to the Swiss Courts. On another note, the proceedings headed by CJ against PM stink with personal grudge and as Katju commented, “flout the canons of justice” and parliamentary democracy. In Pakistan, it has become a norm to dog the PPP down through other institutions be it army or judiciary, rather than at the ballot box. PPP’s founding father ZAB was hanged through a controversial and politically motivated judgement and today even his staunch opponents like PML (N) Nawaz Sharif openly acknowledge that ZAB was victim of Judicial Murder. Time will come when all those, specially PML(n) who are today celebrating the judicial activism of SC will be crying when this same activism will come back to bite them in the ass. Just like Nawaz sharif today openly admits and apologizes for having collaborated with military after he was kicked by a military dictator.

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    • actually a party from parliament knocked the doors of the SC, meaning thereby parliament had issues with the PM

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      • If that was the case, the party should have initiated removal in parliament and sought removal legitimately. It seems that either the said party could not pack a punch in parliament or that they were woefully ignorant of how to go about doing things legally and democratically. Its very sad.

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  12. With respect, I disagree with your argument completely. Contrary to your reasoning, the British constitutional system actually evolved towards lessening the immunity for monarchs, from the Magna Carta onward. This involved making episodic changes to constitutional clauses that held monarchs above the law. The ultimate goal of that evolution was to create a system where “rule of law” was supreme. This holds true today. In most Western democracies, members of parliament do NOT enjoy full immunity from criminal liability. This is because of the principle that as representatives ‘of the people, by the people’, elected officials and by connection their appointed officials (e.g. a president in Pakistan) should not be treated preferentially before the eyes of the law. Most importantly, a “democratic” system must realize that there are crimes that are so egregious and malicious that to ignore them would itself “flout” the rule of law.

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  13. So the Supreme Court flouts all canons of Constitutional Jurisprudence and it’s wrong, but it’s right for a Prime Minister to wilfully flout a judgement of the Supreme Court? Furthermore the Swiss letter is not about bringing the President to trial, it is about provision of mutual legal assistance regarding a case that is pending before the Swiss courts, this is where International Law comes in. The dynamics of this particular case are different from whatever this gentleman has dealt with in his career.

    – Adnan Farooqui.

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    • This gentleman happens to be former Judge of the Supreme Court of India, same India whose three court rulings have been cited and relied upon by the CJ in his judgement on PM’s disqualification. I am sure Katju has dealt with many novel questions of law during his career, certainly more than you, me and probably more than our esteemed CJ because apparently our CJ is barely left with any time to do legal research and apply the jurisprudence after watching countless Talk Shows on Pakistani TV Channels and lining up the fresh suo moto that he is going to take up the next morning. Pathetic.

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      • I would request the people commenting here to keep their comments limited to legal aspects rather than bringing in their frustrations with government for other non legal reasons like government performance . Plus if the constitution and laws mean nothing and Islam is superme then why this matter didn’t go to federal Shariat Court ?

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  14. With due Respect for Mr.Katju & Madam Beena Sarwar:
    What if a PM always appoint an officer or Minister to a better ministry/position when he loses his position/ministry because of his involvement in some corruption case decided by court??
    See an example just few days after SC declared RPPs (Rental Power plans) deals corrupt, and asked to conduct inquiry against all involved (including Minster for Power then Raja Parvez), PM appointed him as Minister for Information technology.
    And the president for whom you are talking about immunity, he has nominated him (Raja Parvez) candidate for PM seat today.

    This is what general public is thinking about the situation.

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  15. Does the President enjoy immunity to crimes committed before and after his Presidency ? The answer prima facie is NO.In fact the court should Declare Asif Zardari Presidency as illegal once the NRO became Unconstitutinal.

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    • Actually according to Article 248(2) of the constitution, President DOES enjoy immunity from past and present acts, however the immunity continues only while he is holding the office. So you are misreading the article, if you have actually ever read it. Let me reproduce the relevant section here for you and others on this forum:

      “248(2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office.”

      If you are not a lawyer, ask any lawyer to explain what is meant by “instituted or continued”. It simply means that even if there were any proceedings that were pending when the person became the President, such proceedings will not be continued while he remains in office.

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  16. I respect the expertise of Justice Markandey Katju’s life long experience in Judiciary and however I am just surprised to see his comments about the case. May be his view is just based upon by reading a few news in Indian news papers. Well to explain the case fully may take book like treatment. However I would like to summarize a few points here.
    1. Pakistani Judiciary system is based upon Islamic principles and not the British one. In Islam no one is above law, even if the ruler does a crime he has to face the court proceedings. Immunitity to ruler is starting point of imbalance in society as per Islam
    2. Mr Zardari became president based upon a NRO an ordinance by Gen. Pervaiz Musharraf which did not gained approval of the then parliament.
    3. Judiciary in an case against NRO declared NRO and all benefits gained through it null and void.
    4. Zardari also came under the order and the cases against him had to be opened again.
    5. Yousaf Gillani tried delaying tactics for over 3 years to fulfil the order and then straight away refused it.
    6. Refusing to a court order brought him under trail under contempt of court law.
    7. Court declared him being found guilty and gave him a symbolic punishment.
    Morally he should have resigned at that moment.But then courts has to inform in clear words about his ineligibility to be member of parliament.
    This was just a short summary of what actually happened.

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  17. while the respected judge has expressed his opinion based upon the immunity enjoyed and advanced through the british raj days, i simply donot agree. why? ONE. every right has an indispensible side of duty as well. if the kings are given the right of immunity, then this right automatically entails a particular duty as well.he must behave sensibly and honestly. this right does not entitle the king or president to go out and looting the nation. TWO. if something was happening 50 years ago, it does not mean that it should be continued for another 50 years. THREE. the respected judge has not advanced any credible and valuable reason for this extraordinary right to kings and presidents, he has failed to present any logic behind this extra ordinary right.

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  18. Well under islamic laws the dead of the state does not have any such immunity rather in order to show that everyone is equal before the law he must appear in the court. I respect what the respected Judge of India has said but with respect disagree with it.

    We Pakistan can give the world a new law in which even the king can do wrong which infact he does actually. He is not above the law but equal before the law. Being head of the state does not mean you can kill or kick but you should be more conscious of the laws of the land.

    In Pakistan sadly the ganges runs in opposite way. here the king makes fun of the appex court and ridicule it and thinks he is above the law. In Pakistan every law has to be in accordance with the Islamic Principles and this law is contrary to Islamic Laws. Rightly guided Caliphs use to appear in the court and never said we are immune to it, similarly head of Pakistani government has to appear in the court for the wrong he does as a head of the state.

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    • “We Pakistan can give the world a new law in which even the king can do wrong”

      Just like Pakistan gave the world menace of terrorism and “suicide bombers”….

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  19. Justice Markandey Katju, has mixed altogether two separate issue as like mixing Black & white to create a new shade of gray of his own choice and preference. Wholsome issue in our apex court was not at all the immunity of King and his Govt functionaries. I think Mr.Markandey did not follow the case background and over 2 yrs long episodes of the series of its proceedings that resulted so far into the outage of one PM.. The actual issue thereafter the defunct of NRO ab initio was of writing the letter to swiss authorities in obedience of the apex court that really had nothing to do with immunity of the king.. Apex court at no stage of proceeding and representation re- interpreted or redefined the clause of Immunity of the King…For disobedince of the court order contempt the PM was convicted and punished 30 seconds

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  20. King Can Do No Wrong is a Black law of Magna Carta mainly for the empowerment of the black colonial Rule of British Raj for loot nepotism and plunder into sub continent and other colonies…i regret that now people like Mr. Markandy Katju are still around to defend the black laws of Magna charta…

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  21. The learned judge should know that its been the legislature that has been intervening in Pakistan’s executive and Judiciary since ever. What happened to the verdict of 7 member bench when the prime minister was sentenced? There is a difference in initating proceedings against the king & writing to Swiss courts that the letter they received from the then Attorney General was unconstitutional. Thankyou my Lord but we disagree with your findings.

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  22. I beg to differ with Justice Markandey Katju, former Justice, Supreme Court of India, Can he imagine to live in India ruled by a Prime Minister who has been convicted. It has been said that Law is nothing but it is a reflection of moral standards of the society.

    I believe while making his opinion he has ignored the basic principle that law is not interpreted in vacume but in given set of circumstances. Under the constitution of Pakistan all judicial, executive and legislative acts are subject to judicial review of the superior court of the country except the amendment in the constitution. More specifically, in NRO implementation case the court is just seeking writing a letter to the Swiss Goverment to revive the claim of the State of Pakistan over that 60 Million US Dollars which has now stand abondand, incidently it has a consequential impact of revival of prosecution against the President for the act which he has committed much prior to become the President, minding the fact that under Swiss law if the letter is further delayed Claim of the State of Pakistan would become time barred. It goes further to the root that whether the incumbent was qulified to be President

    President is enjoying immunity here in Pakistan in Parallel prosecution to the swiss cases…….the same immunity can be claimed by the President under the international law………..Where the constitution violated.

    Now the departure of Mr Gilani it is not the Supreme Court he himself can be blamed for it. He was not convicted for mere disobedience of Court direction rather for bringing the judiciary to public humiliation. in his speaches, deamenour as he is above the law. Besides involvement in corruption himself, his family members and the goverment it self made his case for lossing the membership of the parlaiment consequentially premiership for though legal reason as kind of popular public aspiration. The King is dead long live the King.

    Besides in Pakistan Goverment is not only badly failed to govern but living under the allegations of all kind of misdeeds, Parliament is ineffective to the extent that it cannot do anything itself to bring the most unavoidable change…………. then Court become a last hope.. minding the fact this Supreme Court though established under the Constitution but having behind mass movemement for it restoration it has more popular mandate than the goverment of the day and the Parliament.

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    • Wakil Sahib….a few points for you to ponder, if possible respond.

      PM did not write the letter following article 248(2) of the constitution which provides:
      248(2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office.
      Please explain the meaning and import of “instituted or continued”. It clearly means that not even the proceedings that were initiated against the person before he became the President can be continued.

      PM was not disqualified for corruption, so your whole argument on that point is just misplaced.

      You commented and I quote:
      “Under the constitution of Pakistan all judicial, executive and legislative acts are subject to judicial review of the superior court of the country “except the amendment in the constitution””.
      Could you please enlighten all of us here how this Judiciary treated 18th amendment which was unanimously passed by the constitution. It was magnanimity and graciousness of the Parliament, or may be a mistake, that it accommodated the SC’s and made further amendments, but the point remains that our SC has gotten into the habit of crossing its bounds and limits. May be if the Parliament would have took a stand then the SC could have been put in its place i.e. “interpreting the law” as laid by the legislature and not writing the law.

      Also what is the current status of “Contempt of Court Ordinance (v of 2003) under which PM has been convicted? Was it ever validated by the Parliament or it just lapsed?
      I seriously don’t know although I tried to look up online but could not find any registry of current laws in Pakistan.

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      • Dear Salman I do appreciate urs interest. Please note that court only ask the letter to revive the claim. this is a back ground. In 1990s when the Government of Pakistan Claim through a letter to Swiss government, founding substance in it they have started investigation they have have found enough evidence that they initiated prosecution.These amount were deposited with the same sequence with which Swiss company were paid for Pre inspection by the Government of Pakistan minding the fact these wer not one or two transaction these were 600 transaction. Commencing this Government through a letter the said claim was withdrawn on the strength of NRO, now the NRO has been declared null and void as a result in parallel case in Pakistan revived where in the President is till accused has not been prosecuted because of Article 248 however other co accused are being prosecuted. Similarly in Swiss the President is not alone but there other co accused who are getting undue immunity because of not writing a letter as directed by SC. Please not that there other repercussions if the the letter is further delayed the State of Pakistan claim would be time barred. In case with the revival of the claim prosecution is reignited the President can claim sovereign immunity under the International Conventions.

        As far as 18th amendment is concerned it was challenged by some Petitioner SC has not taken sou motu action, SC feel and some observation and requested the Parliament for amendment . It was the Parliament which found substance in the SC observation NOT ALL but some of the recommendation was made part of the Constitution in Form of 19th Amendment. The Court retained the Judicial restrained.

        Contempt of Court Ordinance had protection under LFO which was endorsed by the Parliament under the 17th Amendment.

        Let me add that SC under the circumstances seemed to be potent for the sole reason that it standing on a very High Moral Pedestal compare to government and the Parliament which again selected another convicted person: because it was who has caused the entire Gilani’s government convicted in Rental Power Case

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  23. Totally disagree….

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  24. I am Agree with you Sir

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  25. Sir,Itotally agree with you, but you must know our poor emotional nation is not thinking logically but is emotional,the courts have become politicized which is not good for the future of Pakistan.

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  26. absolutely correct. The judges are behaving like third rated politicians. they have got no concern with with justice , rules and Nation

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  27. the NRO was not a bad law. if the courts are being used to victimize people then there should be some other way out. the cases which not been proven since 1980s. come on. i think it is enough time to pass judgment on all the cases. those cases were pending in these very courts and these courts were/are lingering them on to keep a sword on the head of the people. personal dislikes aside but is this how the courts are supposed to operate?

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  28. To all those who support the SC on Gilani’s disqualification based on the argument that it will establish “rule of law”, I would like to remind them that in Pakistan if “rule of law” were to be established by such judgement and actions then, it would have been established long ago when:
    1. an elected PM was hanged by the judiciary in 1979.
    2. when another elected PM was twice punished by SC by denying her restoration in 1990 and 1997.
    3. When yet another PM was yet again punished by the Judiciary by denying him restoration in year 2000 (our esteemed CJ was part of that bench)
    4. When a PM was convicted of highjacking crime.
    Note: all the PMs were dismissed on the grounds of corruption and justice was delivered and rule of law was established by SC by denying their restoration.

    So my dear countrymen, this case is not abut rule of law, lets make that clear, once and for all. This about POWER.

    In democracy, the only way to punish a corrupt and incompetent (and PPP’s present government is both) leader, party or government is to out-vote them in elections not dogging them down through un-elected institution such as army or judiciary.

    Such actions, are in part responsible for keeping these parties, and specially PPP alive. Bhutto was hanged and the way he was hanged, i.e. judicially murdered, his ghost came back to haunt.

    May be its the Pakistani Establishment which do not want the people of the country to be awaken and wants them to keep electing the same incompetent and corrupt leaders and to achieve that it keeps using means that are undemocratic, unjust, unfair and without due process of law, against the political leaders, which in turn makes them victims and which results in the corrupt leaders gaining sympathies. We have seen it over and over and over. This is a vicious circle.
    Please, once and for all, let the political process roll and you will see how people will out vote, if not 1st time then certainly 2nd time, the corrupt leaders and parties.
    But for that, we need to have a firm belief in the collective wisdom of the people. As Abraham Lincoln said:
    “You can fool some of the people all of the time, all of the people some of the time, but you cannot fool all of the people all of the time”.
    So, lets not make anymore victims and shaheeds, let the political process roll without interference and let people vote them out.

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  29. What amused me the most in the whole article is the repeated use of the word “PRACTICAL” in the context of law. Now how PRACTICAL is this to apply the laws of Britain to Pakistan, a geographically, culturally, politically, economically … you name it …. different state from Britain … or any other “Practicing/fully functional” democracy!!!???
    Thank your for your very sincere and learned advice Mr. Justice Markandey Katju … but we would prefer to be left alone … to EVOLVE our OWN system that SUITS US!!

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  30. I am not a law expert, but correct me if i am wrong that PM gilani was held for civil proceedings not criminal, so he himself could not claim immunity under 248. Regarding the President Zardari, in the contempt case Mr. Itizaz did not claim immunity, he argued with the courts on different other points to save PM from being held for contempt. BUT ABOVE ALL I THINK THAT PM GILANI AND HIS ADMINISTRATION SHOULD HAVE FACE MORE RESTRAIN THAT THIS AS THIS 4 FOUR YEARS OF THEIR TENURE HAS BEEN THE WORST IN THE PAKISTAN HISTORY. IT COULD NOT HAVE BEEN GOTTEN WORSEN. THIS IS THE TRANSPERANCY INTERNATIONAL LATEST REPORT. AND YES I COMPLETELY DISAGREE WTIH JUDGE Markandey Katju,

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  31. I think mr Mukendy has tha right to voice whatever he wants to say but he does not know what crimes Mr ZarGilani has done in Pakistan, I am sure even 10% of those crimes would not have been tolerated in his India by their PM.

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  32. The best thing, could have been and should have been, that all the beneficiaries of NRO, should have resigned from their posts, immediately after NRO was declared unconstitutional by the SC, and should have got themselves acquitted of all charges against them, from the normal courts of the country.
    This move would have been respectable as well as political. And it could have absolved them in the eyes of the people as well.
    The British Parliament also once debated the Maxim,’The King can do no wrong,’ And If I remember correctly, the critic of the maxim was the famous novelist of 18th. century Oliver Gold Smith and the defender was Dr.Samuel Johnson.His main argument, in favour of the maxim, was that the King was not capable of doing any wrong.What ever happens in the parliament is in principal on the Crowns bidding.The Government and the Opposition in the parliament both have equal patronage of the Crown.In Pakistan, this is not the case.The President is Co-Chairperson of Pakistan People’s party , the major partner in the ruling coalition. The Leader of MQM ,an other partner of the ruling coalition is sitting in London for the last so many years and controlling his party from their.
    In politics the bull should be taken by the horn.Instead of taking refuge behind NRO or the like, one should fight to prove his or her innocence beyond doubt to the people who at the end of the day really matter.

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  33. Indian Mr. Justice has based his argument on the British Contitution in which King has absolute powers and absolute immunity… in my opinion, Pakistan President and Prime Ministers etc are not kings and we happen to take Quran and Sunnah as source of our contitution and legal and judicial system… thats what we have kept on studying in every school and college year….and in Islamic jurisprudence, no one is king and no one except Allah has abosolute immunity… Khulfa -e Rashideen (Pious caliphs) had been brought to court of Qazi of that time on different charges to defend themselved… thats another thing that the charges were never proved in their cases… so we are not followers of Britishers

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    • Incorrect. Pakistan’s establishment draws its authority from its constitution, which clearly lays down certainly laws in matter-of-fact terms; the Holy Qu’ran might have been, and is, a source of spiritual guidance, but as far as legal jurisprudence is concerned, it is the Constitution of Pakistan that reigns supreme. Crimes and criminals are decided on the basis of the Pakistan Penal Code and not Sharia. You may not be Britishers but you have a system that is based on parliament, legislature and judiciary; not an Islamic Shu’ra.

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  34. To all Pakistanis…May be Mr katju 100% correct and we do respect of his views but in such a situation,we all Pakistanis must be united and don’t rely over Indian or western media….lets move forward and stand with judiciary and pressurise parliament to do work for betterment of common people.If Pakistani parliamentarian have had delivered to the people of Pakistan, we must have experience of the people on the street like people of Pakistan came on the street in 2007 for judiciary ………like in Venezuela,when its government was toppled with the help of CIA just few years ago,on the next morning people came on the street and stood for many hours until H. chavez was reinstated)….. therefore we people of Pakistan believe in democracy and would never permit its judiciary to dictate. But at this moment people of Pakistan are happy with the decision.I am with my people rather than katju.

    Message to those pseudo liberal who are impressed very much from Indian or western media….for God sake, do your own research and use their own common sense rather their taking article from other people and share here. If they want to share international article than do come up with anti.corruption policies, anti-drugs, work for education for all and particularly women, awareness regrading acute diseases , work for labour laws, awareness of technological advancement and welfare of the people and so on. ..

    sorry my view weren’t regarding the subject..these are general.

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    • Your argument is based on very little besides nationalist fervour. Petty nationalism ceases to be petty and becomes patriotism, a civic virtue, only through intelligently loving your country. This requires understanding how things should run and being able to criticize and correct any of the equally important branches of government. Stop focusing on who the people who are making the points are, and focus on the points themselves. I know now that you understand this, you will be able to protect your judiciary from making decisions which endanger it in the long run 🙂

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  35. Apropos Justice Katju’s remarks on the Pakistan Supreme Court in ‘Pakistan’s Supreme Court has gone overboard’, I must point out that the Pakistan Supreme Court has committed no wrong. Rather Mr. Katju has got the concept of sovereign immunity all wrong. Sovereign immunity is not absolute. The doctrine was developed in an era when it was fondly believed that the monarch would be a man of such high character that he would never stoop so low as to commit a criminal offense. It was just the expression of a pious intent that the country would be ruled by men of high moral caliber, and there would never be a need to prosecute the monarch. This doctrine, with some modifications was adopted in various countries of the world in respect of presidents and governors et al. still, the underlying belief was the same. Unfortunately, the presidents and governors in the world have turned out to be men of rather weak moral fiber. Clinton indulged in sex with Monica Lewinsky inside his office with her consent. Consent is often takn for granted by men in high offices and women, out of understandable fear, do not put up enough resistance or raise an instant alarm. Suppose had it been a case of no consent? Would he not have been prosecuted for rape? Does Justice Katju mean to say that a president or governor, while in office, has a license to commit rape, molest women, attempt to murder or murder? We are aware of an instance when a governor who liked to carry a baton had, in a fit of anger, poked that baton into the abdomen of his ADC. Suppose the ADC had died of a ruptured spleen. Would the governor have not been tried for murder? We are also aware of a governor who was secretly filmed indulging in sexual activity with more than one woman. Supoose one or more of them were to level an allegation that they were called to his place under some other pretext and then the governor took advantage of the secluded nature of the place and forced himself upon them. Would the nation stand a mute witness to a rape committed by a governor? Suppose a foreign delegation is visiting USA. Suppose the American president makes a pass at some woman of the delegation and then meets her in the priovacy of a room. Suppose he proceeds to rape her in quite the same manner in which Mike Tyson had raped Desiree Washington. Suppose this woman presses charges. Would the Americans say that they would let the president get away with rape? No! I have shown a little later why it cannot be so. Justice Katju’s views reflect a highly retrogressive thinking.

    The constitutional provisions mentioned are made by man, not by God and they are fallible. Most of the laws of the countries and their constitutional provisions have left many grey areas. This is one of them. It does not mean that a president or governor can literally get away with murder. It has got two parts. The first part is that no criminal proceedings shall be instituted. This rests on the unrealistic and almost religious presumption that the president would not commit an offense. The second part is that no criminal proceedings shall be continued. Therein lies the catch. May I ask why it should be so? Does it mean to say that you first make such a man the president who has got criminal charges pending against him and then claim that for his tenure in office the trail would be suspended. This is ridiculous. The correct thing would have been to provide in the constitution that a person who has got criminal charges pending against him shall not be made president in the first place.

    Evidences of President Bush’s violations of international law and federal criminal laws are growing daily. The recent disclosure of the secret “Downing Street” memo strongly suggests that the Bush administration deliberately misled the American people in the 2003 invasion of Iraq. Add to this the continuing reports of the U.S. violations of the international humanitarian and human rights laws in Iraq, Afghanistan, Guantanamo Bay, and other secret detention facilities. Above all, consider all the wanton destruction and killing of more than 100,000 Iraqi people and the unnecessary deaths of more than 1,600 U.S. soldiers!

    John H. Kim has comprehensively shown in ‘Criminal Prosecution of an Incumbent President’ (2005) that that there has been a general reluctance by the special prosecutors to indict a sitting President for various reasons. Chief among these are respect for the office as the Chief Executive Officer and the availability of the impeachment route. However, these personal or policy considerations do not justify a legal conclusion that an incumbent Present cannot be prosecuted.

    In 1973, President Nixon’s Attorney General named a Democrat, Archibald Cox, as special prosecutor to investigate and prosecute the Watergate scandal. But President Nixon fired Cox because the special prosecutor was investigating him too aggressively. Then, Leon Jaworski was named to continue the prosecution. Although there was clear evidence of Nixon’s participation in “a conspiracy to obstruct justice,” Jaworski declined to prosecute him because he believed that the “impeachment process should take precedence over a criminal indictment [1975 Report of the Watergate Special Prosecutor Task Force, at 122; See also Ken Gormley, “Impeachment and the Independent Counsel: A Dysfunctional Union,” 51 Stanford Law Review 309, 345 (1999). Gromley states that Jaworski also wanted to help the Congress since Nixon refused to cooperate with the subpoena issued by the House Judiciary Committee].”

    Nevertheless, his legal staff submitted a legal memo to Jaworski which strongly endorsed the right to indict a sitting President: “As we understand it, the conclusions regarding indictment of an incumbent President reached by the Dept. of Justice, the U.S. Attorney’s Office, and this office, are all consistent: there is nothing in the language or legislative history of the Constitution that bars indictment of a sitting President…..” [Memorandum dated Feb. 12, 1974, p. 10; See 27 Hofstra Law Review 677, Appendix, 1999.]

    In the perjury case of President Clinton, regarding his sexual relations with Monica
    Lewinski, Special Prosecutor Ken Starr also took the easy route by referring the evidences he collected in the case to the House of Representatives for impeachment. Clinton was then impeached by the House in December 1998 but acquitted by the Senate in Feb. 1999. Interestingly, after Starr’s resignation, Special Prosecutor Robert Ray impaneled a grand jury in July 2000 “to consider indicting Clinton after he left office.” [CNN, Jan. 21, 2001.]

    Although “sufficient evidence existed to prosecute President Clinton,” Clinton avoided prosecution by striking a deal with Ray on January 19, 2001, the day before he left the White House. The deal required Clinton to admit publicly of giving a false testimony in a judicial proceeding and accept a 5-year suspension of his law license in Arkansas along with $25,000 fine. [AP, March 6, 2002.]

    Although the penalty is civil in nature in connection with a legal disciplinary proceeding, it is significant that Clinton was forced to admit his perjury under a strong pressure of Ray to prosecute him. Thus, it can be argued that a sitting President was subjected to a criminal prosecution process, even though Clinton got away with little punishment.

    In any case, the general trend in the post-WWII international law has been to deny criminal immunity for heads of state for serious violations of international humanitarian law such as genocide, crime of aggression, war crimes or crimes against humanity. [Nuremberg Principles; 1948 Convention on the Prevention and Punishment of the Crime of Genocide; also the 1998 Rome Statue of International Criminal Court.]

    A good case in point is the indictment of then-President Charles Taylor of Liberia for the crime against humanity by the Special Court for Sierra Leone, which was set up by an agreement in 2002 between the United Nations and the Republic of Sierra Leone.

    Under the current regulations of the Department of Justice, the U.S. Attorney General may appoint an outside “special counsel” to conduct a particular investigation when the prosecution by the U.S. Attorney’s Office “would present a conflict of interest” and such appointment “would be in the public interest.” [28 C.F.R.. 600.1.]

    Since Attorney General Alberto Gonzales worked closely with President Bush as his former White House Counsel, he had a conflict of interest. Therefore, he should have stepped aside and let the Deputy Attorney General appoint a special prosecutor to investigate and prosecute the President for his probable violations of the federal criminal laws, including false statement, conspiracy, murder, torture, and war crimes.

    Nothing in the international law, U.S. Constitution, federal statues or court cases provides a blanket immunity for an incumbent President or other federal officials from criminal prosecutions. History and public policy also argue against such an immunity. As the U.S. Supreme Court pointed out long ago in U.S. v. Lee, [106 U.S. 196, 220 (1882).], “no man in this country is so high that he is above the law….All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.”

    It is time the Indian jurists stop venerating the British. Yes, I am aware that, historically, the general rule in the United Kingdom has been that the Crown has never been able to be prosecuted or proceeded against in either criminal or civil cases [Halsbury’s Laws of England, volume 12(1): “Crown Proceedings and Crown Practice”, paragraph 101]. The only means by which civil proceedings could be brought were:
     by way of petition of right, which was dependent on the grant of the royal fiat (i.e. permission);
     by suits against the Attorney-General for a declaration; or
     by actions against ministers or government departments where an Act of Parliament had specifically provided that immunity be waived.

    The position was drastically altered by the Crown Proceedings Act 1947 which made the Crown (when acting as the government) liable as of right in proceedings where it was previously only liable by virtue of a grant of a fiat [volume 8(1): “Constitutional Law and Human Rights”, paragraph 382]. According to Maurice Sunkin [“Crown immunity from criminal liability in English law”. Public Law (Winter 2003): 716–729.] criminal proceedings are still prohibited from being brought unless expressly permitted by statute. The provisions reflect nothing but a retrogressive British attitude.

    I congratulate Justice Iftikhar Choudhary for being bold and honest in a country which is beset with all sort of vices including corruption. And, at the same time, I do not hold any brief for him if he is indicted for corruption charges that have been leveled against his son and which albeit indirectly hint at his involvement.

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    • I agree to your cmments.

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    • Dr. Anjali, Your knowledge and clarity of thought is impressive. The way you have explained everything is remarkable and only shows your full grasp on the subject. I wish if Mr. Katju also read your comments. Thanks a lot for sharing your thoughts with us!

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    • Dr. Nirmal, I share your general concern but would like to remind you of the importance of the means being adequate to the ends. In Richard Nixon’s case, he was impeached and was then theoretically liable to be tried for Watergate. The court did not remove him themselves. Similarly, the Parliament, on a majority could have impeached the Prime Minister. I do believe that you have overlooked this crucial point and will be so open as to revise your personal judgment in lieu of this observation.

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  36. In Pakistan “Judicial Activism” has turned into “judicial Dictatorship”, “Judicial Autocracy” and “Judicial Revenge”.

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  37. The SCP is using its extra Constitutional Authority to derail democracy and all these judges are PCO judges who are fulfilling their oath to the non democratic forces.Everybody who says something against them are called in contept of court case.Justice Sb thank God that you are not Pakistani otherwise you would be found in SCP in contempt case after the publication of this article of yours.

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  38. In fact, CJP has become controversial after his Son’s corruption charges and press conference of Malik Riaz.He must answer to the questions raised by Malik Riaz on properly on proper forum or to resign and face an inquiry in the Parliament.Instead of it,he used extra constitution powers to oust thh PM whom only Parliament could send home.In this way,he not only used the power of the parliament but also denied the right of public and parliament.

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  39. He, and his companions who quote the examples of Hazrat Umer(RA) in their remarks and judgment,they themselves do not feel themselves accountable like Him(RA) to their conscious,people of Pakistan,Constitution of Pakistan and Parliament of Pakistan.Rather,they feel themselves above the rules and constitution.They are calling people in contempt charges which has been abolished by the parliament through 18th amendment unanimously passed by it.In the end, i want to say'”aap hi apni adaaon pe zara ghor keejiye, ham agar arz keren ge to shikayat ho gi”

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  40. […] […]

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  41. the american concept of seperation of powers is added by concept of check n balances. Yes it is true that in british conventions there is a notion than king can never do wrong but it is also a dfact that there exist a concept of rule of law in british constituion which is based on two main priciples , same law for every one and every one is equal before law. so immunity for the king is a merely a trdition where as rule of law is a fact.

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  42. To support his view point, the learned author relied on British model but ignored his own country’s glorious traditions where a trial magistrate convicted a sitting Prime Minister Indra Ghandi. Quite, naively, he chose to compare Head of a State of a constitutional Government with British Crown as well as Hhead of Church of England to give a subjective twist to constitutional jurisprudence without realizing that in Pakistan: 1) The Constitution replaced the Crown, President did not succeed the Crown; and 2) Judicial branch of the Constitution is not part of the State as per Article 7 of our Constitution.

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  43. Simple reply for your so called intellectual constitutional comment “British Constitutional principle ‘The King can do no wrong” doesn’t apply in Pakistan!”

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  44. The learned Judge compared oranges with apples: He fails to distinguish that:
    1) Britain has no written Constitution but Pakistan works under a written constitution. In former, all laws are at par; in latter ordinary laws have to be consistent with Constitution that in turn is to be in accord with Qura’an and Sunnah.
    2) In UK Crown is Sovereign, in Pakistan, Sovereignity vests in Allah Almighty, exercised by people through the Constitution. The Sovereign can not do not commit any wrong.
    3) Judiciary is not a state organ; it is a constitutional umpire authorised to determined vires of all laws including the constitutional amendment.
    4) British King/ Queen is not a member of any political party; article 248 was also predicated on that assumption. However, no immunity is available in civil matters (Art 248(4).
    5) While evaluating Pakistani Apex Court, the retired Judge conveniently forgot that an Indian Magistrate had convicted Prime Minister Indra Gandhi.
    6) I sympathise with people whose cases were decided by this Judge in service!

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    • I totally agree with you Mr. K. Z. Ahmed and appreciate the way you have explained everything. I wish if we can have some response from Mr. Katju. I also wish if Barrister Rizwan Ahmed could also comment on this as he sought advice from Mr. Katju but your connotation has made everything quite clear. I have also liked the comments of Dr. Anjali Nirmal and if anyone read her comments in conjunction with yours, everything becomes totally clear. Thanks to you both for this enlightenment!

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    • 1. Surely Pakistan has a written constitution. Justice Katju has quoted provisions from your very own constitution and not of any third country, to base his arguments. Unless, of course, you don’t agree with what’s there in your own constitution.
      2. May be. I don’t have full knowledge of Pakistani constitution.
      3. So, what difference it makes? It hasn’t struck down Section 248(2)? Has it? It has chosen to go for an interpretation that takes extraneous considerations into account when it is a settled principle of law that you look for interpretations only when there is ambiguity, not when things are laid down in matter-of-fact terms. This applies to all countries where rule of law exists, unless you want to turn Pakistan into a goddamned African nation!
      4. Article 248(4) states, “No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of anything done by or not done by him in his personal capacity whether before or after he enters upon his office…”. That looks like it gives immunity to the President even for civil cases, doesn’t it?
      5. As far as India is concerned, the head of state is President, not the Prime Minister. The PM can very much be dragged to a court or be convicted – he is not protected by the constitution in matters like these. So, you are mixing issues here the priviliges of PM and President. More than all that, I’
      6. That may actually be true..! Justice Katju has been vocal ever since he took over as the head of Press Council of India. His views on media’s independence, Lokpal are quite against popular perception. Irrespective of all that, you have a write to disagree with his views too But more than anything else, accept my humble sympathies for the people of Pakistan, whose judges have inflicted far more damage to its identity, than what Justice Katju inflicted on the Indian people through his illustrated career in jurisprudence !!!

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    • The learned High Court Judge makes very good arguments but has neglected vital intricacies which bring to question the validity and soundness of some of his premises.

      1) Britain may not have a fully written constitution because no one can agree on things such as the nature and extent of the Royal Prerogatives but many of its laws are written, of which the law in question protecting the Sovereign monarch is one.

      2) The Quaid e Azam intended for Pakistan to be an Islamic Britain, which makes the monarch’s duties to God and exercise of power comparable to the President’s duty to Allah and exercise of power. So your rather ambiguous and dangerous point of right and wrong as delegitimizing fails.

      3) Even the judiciary has to acknowledge the scope of its mandate, Sir, regardless of where it belongs in the scaffolding of State.

      4) The President is elected by parliament, yes? Which means he or she technically represents all political parties. The original party affiliation is a non issue. Also your sub-premise is false. One cannot try the monarch! Not even in England, or in nearby Bhutan! You may try other members of the Royal Family however.

      5) Please do not misread the history of our country, sir. It is a long and complicated, albeit proud and democratically astute one, which is why I do not and cannot blame you for not noting the substance of it. The deceased former Prime Minister Indira Gandhi was tried for matters relating to electoral practice, not for her actions as Prime Minister during her term.

      6) Because of your admirable demonstrated reverence for God, let me answer your uncharacteristic personal subjective feeling towards Justice Katju with a verse from the Holy Bible (King James 2000 Bible (©2003)) ‘He that is without sin among you, let him first cast a stone at her.’ Maybe you will be more generous about Justice Katju in light of the blind spots in your own argument, sir.

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  45. […] Justice Katju argued that SCP overstepped its bounds here – https://beenasarwar.wordpress.com/2012/06/21/the-pakistan-supreme-court-has-flouted-all-canons-of-con… […]

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  46. It appears to be a Raw sponsored site. I suspect that the judge still works for that Organisation via its elements in the press council to destabilze democracy in Pakistan. If not, then the Judge should take a few elementary lessons in constitutional jurisprudence under a monarchy without written basic law, a secular constitution and an Islamic constitutional framework: Sovereign under each system is different and so is the responsibility of the courts. Why was an Indian Prime Minister convicted by a trial court needs clarity?

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    • Baba Ahmed you seem to have exceptional human abilities if you are able to ascertain the sponsorship of this site and link it to RAW! Can you please tell us how you manage to do this when most of us cannot? Also, can you please use your formidable, superhuman capability to ascertain ISI’s role behind the Supreme Court’s removal of Mr. Gilani?

      No, I didn’t think so.

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  47. total immunity from criminal proceedings is contradict to the most important concept of Islam that every one should be answerable for their wrong doings and principal of equality.

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    • Everyone is answerable for their wrongdoings to Allah/God/whatever name we call the Omnicient, not to each other!

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  48. Apropos of Baba Ahmed’s remarks…
    sir we should come out of such stereotyped versions of giving owner ship to every thing to intelligence agencies. This blame game would bring nothing positive but a trash of allegations and counter allegations. come out in logical manner and give rebuttal in meaningful and analytical manner and certainly people would listen to your arguments.

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  49. Thank God he was not a judge in Pakistan, otherwise we may still be in era of Pervaiz Musharaf.

    The Supreme Court merely wanted to resurrect the claim of Pakistan Government. The case could be kept pending till Mr 50% leaves Office. However, to prevent the claim getting barred by technicalities (time etc), the claim needs to be resurrected and brought to life, otherwise another 60 million dollars gone. I understand people having sympathies with PPP, not understanding the logic behind Supreme COurt’s Order, beacuse they ussually think from the perspective of financial gains.

    May Allah have mercy on us.

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  50. Honorable Katju,
    Difference of openion is a right of every one, in this contest, first you shouldnot have interefared in internal matter of Pakistan, 2ndly What about the majority of the peoples, Civil society and over all the lawyer Mr.Aitzaz Ahsan who defended Gilani was of openion that PM should write a letter ( gave his openion in media) untill he was appointed to appear for PM???????( Lot of Questions…)

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  51. SC is ready to continue presidential immunity to all the previous and future Presidents of Pakistan but not President Zardari because of personal enmity or grudge as he was not ready to reinstate them.

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  52. SC could solve the problems of Presidential Immunity once for all by going into “Judicial Review” of Article 248 and abolishing it from the Constitution as it is against human equality and basic human rights but they didn’t because there is something wrong in the minds of CJ n other judges.

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  53. this is with great sorrow that Pakistan supreme court has a strange character with political parties. Case of Bhutto, giving legal authority to ZiaUlhaq, accepted his referendum as legal, provided 3 years to Musharraf( it was the present CJ) and latter on accepting his false referendum are the few examples. Why the supreme court has made no judiciary review on 17th amendment in the era of Mr. Musharraf. For double nationality Rehman Malik was teased but having no question from our ex PM, shoukat Aziz. In my personal opinion the present game was played that like Nawaz sharif, the present govt would react and the CJ would call army for emergency. But this is the great vision of zardari who got the situation and accepted court’s so called decision. How can a court raid on speaker’s rulings? Gillani had to follow institution or court order? If this practice was not stopped then we will face “judiciary Marshall law” where the CJ will be chief executive of the country.

    Engr. Saifullah

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    • Brother Engineer Supreme court is appellate court against the ruling of both the speaker and election commission . Speaker ruling even can be turn over by the Election Commission on question of disqualification.

      Post March 2009 Judiciary can not be blamed for the sub due judiciary to the establishment.

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  54. CHIEF JUSTICE OF PAKISTAN MR.JUSTICE GORBACHEV.

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  55. Barrister Rizwan, I think you are mistaken. Zardari was never convicted from any court of law therefore, NRO or no NRO, he was eligible to contest the election. I might be wrong but I think your argument is based on misinformation.

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  56. Zardari remained in Jail during 4 governments Meraj Khalid,Nawaz Sharif,Musharaf n PMLQ.All were his bitter enemy but the could not prove anything against him in any court except false claims n point scoring.

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  57. In any case constitution must be followed.

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  58. I would like to hear Mr.Katju’s response on Babri Masjid attack,then and now.

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  59. Dear Justice Katju – I write this only on the hope that it is better late than never. I have been a lawyer and keen student of Constitutional Law for more years than I would like to say. Thank you for an excellent article that I have read several times. Can’t agree more with what you say. However for my own education I would like to ask a few questions and say a few things.
    Some basic principles that I think still hold the field;
    a. In our systems (India and Pakistan) the courts are there to decide a lis, a dispute that comes before them in an adversarial context i.e. it will hear a matter which is alive and germane between two or more parties before it. (The advisory jurisdiction is a separate matter) A court will not decide academic issues. In other words I cannot go to court to seek its opinion about a law without there being some dispute about its interpretation and such dispute must be real. Or I cannot challenge a law that has been repealed or an Ordinance that has lapsed (Article 123 of the Indian Constitution & Article 89 of our Constitution). My question is; once an Ordinance has lapsed on expiry of the time limit set in the Constitution can the Supreme Court ‘revive’ it and send the Ordinance back to Parliament and ask that it be reconsidered? And can the Supreme Court hear a matter wherein the vires of an Ordinance that has lapsed or an Act that has been repealed is challenged?
    b. The Supreme Courts in both India and Pakistan are at the apex of our judicial structure and their judgments are binding on all other courts in the country. (Art. 141 India & Article 189 Pakistan) Is it then not incumbent that whenever a matter is decided by them ALL relevant aspects of the law be examined and dealt with so that a proper adjudication takes place not only for the parties before the court but all future litigants? I am aware that being superior courts they must not go on a roving exercise on issues which have not been raised by the parties or are not necessary to be decided in a particular case or set down unnecessary.obiter dicta. In the NRO case and the disqualification of our Prime Minister matter, ought not the Supreme Court have dealt with Article 248 regarding immunity of the president. After all there is a possibility (bleak in the present scenario) that the Supreme Court comes to the conclusion that such an immunity exists.
    c. Must not judges speak, more if not only, through their judgments? Is it proper for a judge to speak his mind in public even before a matter has come before him or even been filed?
    I am sorry for writing after so long.

    Regards

    N.B. I would request the administrator of this blog to share my email address with you.

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  60. Recently a programme was telecast on WAQT TV about the illegal occupation of CDA land by Islamabad Lawyers on which they have constructed their Chambers.It includes the land of a graveyard too.The response of the culprits is absolutely disgusting and an insult to their proffession.The host was Mr.MuteeUllah Jan.How could one justify this crime and why every one is quiet?

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