Friday, June 22, 2012

‘Gilani verdict shows Pak SC has gone berserk’ By (Justice) Markandey Katju - Comments by Ghulam Muhammed, Mumbai

Comments posted on The Times of India website over news report:

‘Gilani verdict shows Pak SC has gone berserk’

Markandey Katju | Jun 22, 2012,

Ghulam Muhammed (Mumbai)
7 hrs ago

Justice Katju is right when he bases his comments on British and Monarchic traditions to award, the King absolute immunity. However, in the Islamic Republic of Pakistan, the growing importance of Sharia perspectives on public affairs cuts through British legal ethos. Children are taught how Caliph Omar was asked to step down from his pulpit to first answer the charge of corruption, over how he was wearing a dress from the war booty distribution measure that was not enough for a dress. Omar stepped down and let his son come to his aid confirming that he has gifted his share of cloth to his father. When the old lady was satisfied, Omar resumed his duty. An Islamic republic cannot just wish away such open and enormous day-light robbery by those in-charge in the top posts of government or state; all in the name of British judicial and/or royal traditions. Besides, the Prophet himself asked a Zakat collector, to give the 'gift' he had received while doing his duty. Prophet said, the gift was not given to you, but was a bribe to your position as Zakat collector. All such traditions of Islamic jurisprudence are not dead and each day millions are learning about Islamic sharia and history, to blindly and slavishly follow colonial justice, just so that they are practical for a dynastic monarchy. In Sharia there is no time bar loophole. That illegal loot will be collected even in the after-world, if it is not paid back by the heirs of the looter or some other benevolent source. Justice Katju is literally and judicially right, but he had been a Supreme Court judge and has the background how justice at that level takes in the ground realities and public mood at a given time.


‘Gilani verdict shows Pak SC has gone berserk’

Markandey Katju | Jun 22, 2012,
When I was 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 as a legal practitioner its real significance dawned on me.

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. It is baffling, therefore, 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 PM holds office as long he has the confidence of parliament, not confidence of the supreme court.

I regret to say that the Pakistan supreme court, particularly its chief justice, has been showing utter lack of restraint which is expected of the superior courts.

The court is playing to the galleries for long. It has clearly gone overboard and flouted all canons of Constitutional Jurisprudence.

The constitution establishes a delicate balance of power among the three organs of the State, the Legislature, the Executive and the Judiciary. Each must respect the other, and not encroach into their 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.

(The author is the chairman of Press Council of India)

[GM adds: The author is a retired Justice of the Indian Supreme Court.]

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