Pakistan's Supreme Court has gone overboard

Thus, Section 248(2) of the Pakistani 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 Pakistani President." Whether one agrees with the above section of the Pakistan constitution or not the intent of the law makers is clear-- that the president and the governor enjoy immunity. The Chief Justice cannot amend the constitution -- he can only remove an ambiguity if the wording of the section warrants. I agree with the writers views completely on this point.

I am disturbed by the article of My Lord Justice(R)Markandey Katju who being a law knowing wizard failed to acknowledge the presence of Art.63 of the Constitution of Pakistan, 1973 wherein the condition precedent for public functionaries including electables is outlined. Furthermore, My Lord failed to acknowledge Art.7 of same wherein State's definition does not include judiciary wherefore, it has ample power to decide whether the President is not immune or the Prime Minister is acting contemptuously. Furthermore, My Lord failed to take cognisance of Art.199 for High Courts or Art.184(3) for Supreme Courts to issues writ of co-warranto and set aside any notification of the appointment or election of the public functionary. A judge's code of conduct is secondary to his function of intrepretation of the Constitution.They say a lawyer never retires; perhaps my Lord was a good judge and a bad lawyer.

Zardari can always be held accountable once he is out of office and that is not too distant into the future. What is the great hurry?This decision has made the confusion worst confounded. How can a sane person even imagine that a Prime Minister in his senses can throw the Head of the State at the mercy of a foreign adjudicator. There is much much more to it than meets the eye.

Justice Markandey Katju is 200 per cent right The fact of the matter is that Justice Iftikhar Chaudhry drew tremendous amount of support from the lawyers of Lahore Bar Association, the same set which garlanded the assassin of Salman Taseer. In Pakistan Punjabi/Wahabimullah/Army/lawyers' community are interchangeable synonyms. They committed a judicial murder of Zulfkar Ali Bhutto, they assassinated Benazir in broad daylight and they hate the guts of Asif Ali Zardari. They say he is corrupt. They put him in jail for eight years and tried for all sort of crimes and could not pin a single charge against him. They turned against Musharraf only after he struck a deal with the Bhutto family and allowed Zardari to go abroad by setting up the National Reconciliation Commission. A lawyer worth his salt asks how Nawaz Sharif whose father ran a small time Ate ki chakki became a multi billionaire overnight with General Ziaul Haq's munificence. They disqualified Gilani out of personal pique.

Mr Justice Markandey Katju has overreacted to the decision of the Pakistan supreme court. He assures us that the head of a state or head of a province must have immunity from prosecution for any act of his during the period of his tenure because otherwise the system cannot be run. He has no other argument to support his view. Now, when a head of state acts in a blatantly wrong manner and he cannot be prosecuted in a court of law, then the only court to which he will be amenable is the court of public opinion. When the public takes matters into its own hands, then laws, rules, and jurisprudence cease to apply. What applies is the mood of the moment in a given mob. It is far preferable that a head of a state or a head of a province should be amenable and answerable to law. Be you ever so high, the law is higher than you. If this is not accepted, then the alternative can only be rebellion and violence.

So Justice Katju was not worried about the checks and balances of democratic institutions. Katju did not say the limitations of judiciary on the executive body but rather felt because "British were one of the most far sighted administrators and if the King were to go to jail, the system could not function." Why can't the system function? Can the cabinet choose another interim prime minister to enable a trial on the PM? Had this not happened before elsewhere? Clinton was impeached. Nixon resigned to face the trial. Why cannot this happen in a democracy?

The logic of sanctifying PM, CM and CJ is shallow and the argument is rubbish. I am deeply disturbed by this article by a Judge.

The King is king up to his kingship survive after he become a slave of
citizen and mercy of next ruler. This is fact of life. Democracy is also survive in educated and developed countries. Corruption is not last long
in democratic countries. Now days Kingdom and dictator are not lasting
long people has power remove ruler whenever election means population
has power if literate masses existent

Quite a simplistic, myopic and superficial approach from Mr Katju, I
must say. The letter the Swiss authorities is not to initiate criminal
proceedings against AZ. It is to withdraw the letter written by Malik
Qayyum following the NRO, which withdrew from these cases, which I
might add were registered way before AZ was President. What that means
is that criminal cases would be reinstated against AZ but could not be
prosecuted as long as he is in Office, according to the law of
immunity. So even if the Pakistan Govt wrote the letter, the Swiss
would either say- He has immunity, or that the time bar clause has
come into play. So writing the letter would have no consequences
whatsoever on AZ as he is now.

Justice Katju's analysis is very precise and correct. Very timely statement. It is not whether the Pakistani Government (especially it President and PM) is noble or not, it is about the extent to which judiciary should reach out. Judiciary has terribly outreached, it is not respecting the other two arms of the constitution. It is a sure recipe for disaster.

Mr. Katju makes two errors.
One, the court is asking the Paksitan Government to open the cases that were filled against Mr.Zardari when we was a Minister in his wife's cabinet which were closed before he became a President in a deal with Mr.Musharaf. These cases have nothing to do with his current functioning of President and thus Mr.Zardari does not have immunity from these cases.
The "King is always correct" principle will only hold for actions that Mr.Zardari takes in course of his functioing as President and his immunity is onlu for the period of time he is in office. Once he steps down, legal action can be taken against him. Second, the disqualification of Mr.Gilani is legal in that he was held in contempt of the Supreme Court of Paksitan. The Paksitan law is clear in that a person who has been convicted in a case cannot continue in office. The court has asked only that Mr.Gilani step down and not his government. His party is free to elect a new PM.

There are two aspects discussed in this article by Justice Katju... 1. The nation headed by the Primeminister and 2. the individual Yousuf Raza Gilani. If you put nation above an individual then what Justice Katju says is 100% correct and practicable. When you see Yousuf Raza Gilani as an individual he can be tried once the people strips him off his position. The Position he enjoyed was given by people not he himself took of gifted by anybody... Justice Katju is perfectly correct in the administrative jurisprudence.... I admire him that atleast there is one person to raise the voice when justice slips from its object.

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.

The PM should be removed by the people's representatives similar to
the Congress voting out a President in the US via impeachment.
However, in Pakistan the democratic institutions have been weak due to
heavy influence of the military and the justices are now acting high
handed with support from the military. If PM Gilani was removed by the
Pakistani Parliament with a majority decision then this would make
sense. Right now the motive is to weaken the present govt and lead
into a crisis so that new elections are held. If every elected govt is
at the mercy of military and justices who may not agree then the term
of each govt will have no meaning and therefore people's mandate is
null and void. Worst is that the country is almost bankrupt, law and
order are poor and poor people are suffering due to lack of basic
amenities. Maybe Imran Khan can fix this nation if he wins peoples
mandate, otherwise they are heading into a lot of trouble.

Yes, we should be more worried about the collapse of the constitution than the lives of people. The canons of law ,written by state powers for themselves, should be above the will and the good of the people. Long live Democracy!

Tell me one functioning democracy were special privileges are not given to its person at the top position.Before going on this rhetoric on the naive everyone-is-equal-so-lets-make-an-anarchy type of argument one should also look at the exceptions granted by constitutions of countries drafted by far sighted men including Ambedkar . Somebody spoke of French revolution;check the privileges earlier held by Nicholas Sarkozy(which was in news) in the present republic or any other Presidents of the previous republics. The Prime Minister is elected by people and I wonder how can he,who has the support of parliament, be simply removed as such.Is this called as democracy? The wisdom of people is held in the hands of parliament for practical purposes and the provisions like impeachment are there in place to safeguard against privileged men turning to autocrats.They cannot be subjected to whims and fancies of some appointed judges.It isn't rule of law and it isn't democracy.

For my Indian brother i want to clarify that in Pakistan, this a political game being played by opposition on the turf of supreme court.

What happens when a President/Prime Minister orders a mass genocide? Is he still above law? Pervez Musharraf became a President by organising a coup d'tat. Had this guy gone crazy and gone on a killing spree a la Idi Amin, Hitler etc, do you think he would still be above law? The King is immune because he himself made the laws. In a democracy, it does not hold good.As someone rightly pointed out above, laws made by humans tend to be flawed and they need to be revised from time to time.

People seem to be missing the basic point here. The question is not whether the President should have immunity or not(which i think he should not have) but the boundaries of judiciary and parliament. Judiciary cannot make laws, it is there to serve justice according to these laws and interpret them if required. The law, right or wrong, is there and judiciary cannot change it, only parliament can do that. Judiciary has encroached the domain of parliament in this case.

I think Katjuji has gone overboard by commenting on decision of Pakistan's Supreme Court and he needs to restraint himself.

The author has failed to bring up a few important points. In certain countries (america being a prime example) presidential immunity itself has certain limits. Take for example the water-gate scandal were the US supreme court ruled in United states vs Nixon that, "an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances." We are not the british, we don't live under the british raj anymore. If the Americans were smart enough to realize this then so should the citizens of the sub-continent. Kudos to the chief justice of pakistan for tackling the menace of corruption.

With all due respect sir, you made some extremely lame points.

A very nice picture of Justice Katju. Hindu photographers are becoming experts in
making photographs into caricatures. Keep it up!

The King can do no wrong’. At that time Mr. Katju did not understand the significance of this principle and what it really meant. I even dont understand its significance today. No body is above law, the law is supreme definitely if it is divine, as far as man made laws are concerned they are always subject to changes because they are full of flaws. How the system will function if the king is committing dacoity murder and theft which is seen in the present system of Pakistan. Infact the system is not functioning because of the immunity granted to the President,immediately the constitution needs an amendment,I do agree that the chief justice should have initially worked in bringing a desireable changes in the constitution by revoking this clause.Although in the constitution it is also mentioned that no convict will me made the president.I lament Mr. katju inference in this case.

Mr Zardari is an individual before he is President and he has two personalities one as an individual and another as President. Supreme Court of Pakistan has not ordered prosecution of President of Pakistan, but an individual Mr Zardari. Mr Zardari had been granted immunity under a law that has been set aside and is therefore subject to investigation as an individual.

crisis continues in Pakistan,earlier it's between military & executive
and now between judiciary & executive. They have no mutual respect to
each other. Supreme Court acts as a guardian of the Constitution but alas in Pakistan SC itself violating Constitution's article.In Indian
Constitution also there are some immunities for The President & The
Governor which they enjoy during their term of office. To uphold the
Constitution we have to respect all the articles & provisions of it,
only legislature has the power to amend the Constitution through the
procedure laid down by the Constitution itself and SC only examine the
due procedure followed during the passing of bill and nothing else. If
the Apex Court disobey the Constitution then how democracy will
sustain?

If the ruling by the Supreme Court of Pakistan is in clear violation
of constitutionally mandated principle, as this article suggests, then
it is a reaffirmation of the widely perceived view that the judiciary
has joined forces with the Pakistani military in a conspiracy against
democracy. True that Gilani has been very unpopular with the people of
Pakistan and they along with his bitter political rivals wanted to see
his fall. But it is unacceptable that the push came from the judiciary
that has nothing to do with the decision as to who comes to power and
who goes. It is for the people of Pakistan to take a call in that
regard. The term of a elected representative cannot be just cut short
by expelling him through an arbitrary judicial pronouncement. If the
Supreme Court's decision is based on considerations not constitutional
and legal then it is bound to have dangerous repercussions for the
troubled nation.

The author's viewpoints are very much valid. The whole system will
collapse if there is no such immunity provided at the top. It's the
title that has the immunity and not the person.

I completely agree with the author. It is clear that the CJ of Pakistan
has crossed his limits in the most blatant and outrageous manner. The
judiciary should understand that it is but one of the pillars of
democracy, and does not and should not have any authority over the
other pillars, other than envisaged in the Constitution as checks and
balances.

It seems Mr Katju has a point of view, it is obvious that 3 pillars of the democracy should respect each other's position under the purview of the Constitution.
Point is,CJ of Pak Supreme court has definately gone overboard by sacking/quashing the elected PM. At least he should have asked Parliament to convene a special session and discuss the matter.
I don't agree that PM is accountable only for the Parliament, infact he is responsbile for whole country, it's people and there by, the people sitting in the judicial benches too.

If a person holding a highest office cannot be held responsible and punish him for all the wrong doings, what is the necessary of judiciary.... In this case supreme court has not gone bersek, in fact, has pronounced a correct verdict according me!The principle of king to be given "Immunity" has no relevance in today's world.. The basic premise of democracy is every one is equal before law.. Then, how can constitution provide scope for immunity to a person holding highest office?

It's good to note that pakistan's judiciary trying to clean the mess created by the legislature and the executive!. Mr Katju, I sense that you are pained by this judgement because you feel this judgment may be used as a precedence in another part's of demoractic world..

I think its time to change the constitution with the changing times.

In any democracy Parliament, Executive and Judiciary are its pillars.They have their individual constitutional functions and one cannot interfere with the functions of the others. The Chief Justice of Pakistan, has, as rightly pointed out in the article, exceeded his jurisdiction and has committed,in my view, contempt of its Parliament. It's for the Pakistani Parliament to take whatever action against it's PM after debate in the Parliament. I have a feeling that some powerful people may be behind the Chief Justice to give this obnoxious verdict, may be with some quid pro quo.

It is not the Pakistani Chief Justice, but Mr. Katju who seems to have gone overboard. Under such a Constitutional immunity do Kings, dictators & tyrants thrive, let's not forget the genesis of the French Revolution. The American President can be impeached even during his term of office, he is not immune. Why should one follow a flawed British Concept. Why should Asif Zardari be granted immunity for all the corruption he indulged in during Mrs Bhutto's term of office.

"The King can do no wrong" prevails in the modern world means then how the System can be tagged as Democracy sir. It will lead to Autocracy in the nation. Everyone is equal under the Law in democracy system, i think.

I could not accept the premise under which Mr Katju criticises Pakistan Supreme Court. Every individual (even the King) is accountable for his/her actions. By eleminating individuals from prosecution while holding certain positions will fail to do justice to the aggreived parties. After looting a bank, I become the Governor and die in office. I was not brought to trail for my criminal activity.
The Section 248(2) of the Pakistani Constitution is gender biased and hence cannot be called a law for everbody.
I think Mr Katju knows more about the basis of rendering justice than a common man, but in this case his argument is weak.

With due respects, its high time we get out of these rhetorics..everyone is equal and no one is above law. Earlier days it was monarchy and hence absolute authority and no proceedings was considered a basic right(!) Now in democracy with better examples of misuse of power in both sub continent countries India and Pakistan, we must look for even withdrawing all selected candadates mid term even if there is a mild allegation. Its unfortunate that Mr.Katju whom I respect a lot is having a different view. I still believe he must have his reasons though.

I fully agree with the author.In fact the CJ has done a favour to PPP as
in the next election which is not too far away the party is sure to romp
home with victory on a sympathy wave.

At least the Supreme Court of Pakistan has the courage and fibre to call the spade a spade. In India, the higher judiciary uses a smokescreen of judicial activism, to cover its subservience to the executive.

it is not the king who should be the ultimate person but the people in real
democracy. So even the person at the apex should be answerable to people and
courts.