Journeys to democracy

The following email correspondence copied to me stems from a comment on my blog by Barrister Rizwan Ahmad, Advocate High Court, Lahore, Pakistan, addressed to Justice Katju, in response to Justice Katju’s views on the Pakistan Supreme Court judgement first published on this blog. I forwarded the comment to Justice Katju who replied to Mr Ahmad: “I was constrained to write such a hard hitting article because your Chief Justice and his colleagues have lost all sense of self restraint expected of a superior Court, and have been playing to the galleries for quite some time. Whether they have a hidden agenda or not I cannot say, but they will certainly wreck the Constitution if they go on like this.” Read their  subsequent exchange below, arranged chronologically, starting with Rizwan Ahmad’s reply to Justice Katju’s email:

From: Rizwan Ahmad
Subject: Thank you for your reply and email sir
To: Markandey Katju
Date: Saturday, 23 June, 2012

Dear Mr. Katju,

I want to thank you for your reply to my article and your email. It is very encouraging for me and to be honest this is the first time I actually took some time to write something like this publically. I do not know Madam Beena Sarwar personally but I think she is doing a great job in spreading awareness amongst the people and gathering their perspectives.

I am from Lahore and did my undergraduate degree from university of London and Bar Professional Training Course from the City Law School and I am a member of the Honourable Society of Lincoln’s Inn, London currently I am doing a conversion LL-M from the City Law School, London from Pakistan while practicing law. This is my second year into practice and I know it is a long way to go from here.

Now coming to my comment on your article, well it wasn’t really in support of the decision of the Supreme Court, it was just my observation and questions that I had in mind from my own analysis. I completely do agree with you that yes the Supreme Court has gone overboard and this decision of theirs is going to cause a lot of repercussions, one of which is that it has set a bad precedent and if the courts keep doing that then the media will completely destroy them and people will have no respect left for the courts or their decisions. Our legal system already has so many flaws in it and sadly not much is being done to rectify these flaws.

I had been trying to reply back to your comment and another person’s comment but Beena’s website is down at the moment as it is not allowing me to post anything on it at the moment. I hope it goes through because I have some other questions that I would like to clarify as well. The “Two Hat” theory for instance, in the case of Zardari. Another point that I would like to elaborate is that I am challenging the very basis on which the President became the President in the first place. If the NRO was declared void ab initio meaning invalid from the outset so him being appointed as president is illegal from the outset so he should not be entitled to the immunity provided under Article 248 in the first place.

I will open of all these points in my reply to your comment as soon as the website is fixed. Once again thank you very much for taking your valuable time out to contact me, it is truly an honour.

Kind Regards,

Rizwan Ahmad
Barrister-at-law

From: Markandey Katju
To: Rizwan Ahmad
Date: Saturday, 23 June, 2012,

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

From: Markandey Katju
To: Rizwan Ahmad
Sent: Jun 25, 2012

Dear Rizwan,

I have not heard from you after my second letter to you (sent by email). Please let me know whether there is any other point you wish to be clarified. I would be happy to give my clarification.

What is the preponderant opinion of lawyers there? Do they agree with me or not?

You may give our correspondence for publication in the newspapers if you so wish.

I am presently in California

Regards
Justice Katju

From: Rizwan Ahmad
To: Markandey Katju
Date: Monday, 25 June, 2012

Dear Sir

I am sorry I could not reply to your second letter yet. It was just a little busy with a sudden load of work. I will definitely follow up on everything tomorrow.

The thing with Lawyers in Pakistan that you must appreciate is that there are two kinds:-

i) The intellectual class and;

ii) The intellectually challenged class

Unfortunately it is the latter that is in majority here and these people seem to be some kind of “chief justice pakistan loyalists” so no matter whatever he does, these people support him.

However, the intellectual class (who also seem to be the more prominent of lawyers here) support your viewpoint. They think that the chief’s decision was wrong and he actually turned Gillani into some kind of a hero and the are going to be some grave reprecussions for this in the coming future.

Now coming to your article, I may not have to give it for publication because it has gained a lot of popularity any way, I am sure you can tell from the comments plus all my lawyer friends who I have interaction with have all read it and agree with you.

I personally took the last bit from it and made it my status on facebook.

I hope you are having a good time in california and if you ever plan to come to Lahore, do let me know and we’ll have a chat over lunch or coffee or something.

Regards,
Rizwan

From: Markandey Katju
Subject: Re:
To: “Rizwan Ahmad”
Date: Monday, 25 June, 2012

Dear Rizwan,

Thank you for your email.

I am sure a large number of the the intellectually challenged class in your country will sooner or later become part of  the intellectual class by patient persuasion. I have great faith in the power of persuasion by reasoning. I am a disciple of the French philosopher Rousseau who believed that men are basically good by nature. Hence if my reasoning is correct I am confident that people will one day accept it.

I may clarify that I am a non political person, and I have nothing to do with the politics of your country. I expressed my views purely from the legal and Constitutional angle because I feared that your Supreme Court had for some time embarked on a perilous path which would lead to disastrous results for your country.

When Parvez Musharraf removed your Chief Justice we Indians condemned that act, and we were happy when the Chief Justice was reinstated. However, thereafter your Chief justice and many of his companion judges have been for quite some time acting in a totally unconstitutional manner.Of late they have gone completely overboard and have flouted all canons of Constitutional jurisprudence. They have upset the balance of power among the three organs of the State and are in effect claiming that the Supreme Court is above the other two organs, viz. the executive and legislature. This attitude is bound to wreck the Constitution.

Please read my judgment Divisional Manager, Aravalli Golf Course vs. Chander Haas, which I gave when I was on the Indian Supreme Court. It can be seen online. In that judgment I have emphasized the need for judicial restraint, particularly among members of the higher judiciary (the High Court and Supreme Court ). The higher one moves in the hierarchy, the more restraint he must have, otherwise he will create havoc. The Judges of the Supreme Court, in particular, must have utmost humility and self restraint because they are at the apex of the judicial system and therefore the last Court. The errors of the lower Courts can be corrected on appeal to a higher Court, but there is nothing above the Supreme Court.

I do not mean to say that the Courts should never be activist. In Government of Andhra Pradesh vs. P.Laxmi Devi (which can also be seen online ) I said that while adjudicating on the validity of economic regulatory measures by the legislature or executive the Courts should ordinarily defer to the opinion of the legislature or executive (because those measures are generally taken after consulting, and on the advice of, experts),  but the Courts should be activist in defending the civil liberties of citizens. You will find a detailed discussion on the subject in that judgment.

I regret to say that for quite some time your Supreme Court has not maintained the self restraint expected of superior Courts. Courts should avoid entering the political thicket, but your Supreme Court appears bent on doing just the contrary. Hence it needed a hard knock on its head to bring it to its senses, and that is precisely what I have endeavoured to do.

If there is any other question or clarification please do not hesitate in putting it to me.

Regards

Justice Katju

Filed under: Pakistan | Tagged: Justice Katju, Pakistan Supreme Court |