Pakistani Supreme Court has gone overboard – says Justice Markandey Katju (Supreme Court of India)

It has no right to dismiss a Prime Minister or overrule the constitutional immunity given to the President

By: Markandey Katju

When I was I was a student of law at 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 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.

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 the confidence of the Supreme Court.

I regret to say that the Pakistani Supreme Court, particularly its Chief Justice, has been showing utter lack of restraint. This is not expected of superior courts. In fact the court and its Chief Justice have been 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, 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 Pakistani 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 court, and particularly its Chief Justice.

(Justice Markandey Katju is a former Judge, Supreme Court of India. He is currently Chairman, Press Council of India)


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2 thoughts on “Pakistani Supreme Court has gone overboard – says Justice Markandey Katju (Supreme Court of India)”

  1. Sacking Prime Minister by Supreme Court of Pakistan

    After going through the article: Katju’s King Can Do No Wrong! & Katju’s King has been killed”, I would go alongside the arguments advanced by Mr. Justice Markandey Katju, a former Judge of the Supreme Court of India. and totally disagree with the opinion/belief/judgment of Asian Human Rights Commission (AHRC).
    I find the arguments advanced in favour of “King Can Do No Wrong” are virtually in favour of the advancement of the country concerned/integration of the country concerned as well as in true spirit of the Constitution of the country concerned that may be of India or that of Pakistan.
    It is an established principle of jurisprudence in all civilized nations that Head of a sovereign State is immune from law suits.I would like to give in brief the constitutional frame work of a few democratic nations which accord the Head of State a status different from that of ordinary citizens:-
    * Article ‘5’ of the Norwegian Constitution of 1814 states that “The King’s person is sacred; he cannot be censured or accused.”
    * Article ‘13’ of the Danish Constitution of 1953 states that “The King shall not be answerable for his actions; his person shall be sacrosanct….”
    * Article ‘88’ of the Belgian Constitution of 1970 that “The King’s person is inviolable; his ministers are responsible.”
    President of India is Head of the State whereas Prime Minister of India is the Head of the Government. From the above especially in the Indian context, I am of the firm opinion that minister can be dragged in the court of law but not the Prime Minister. It is an acceptable adage that Minister may come, Minister may go; the Government will run for five years. But in case of Prime Minister to whom when we would say that he (PM) may come or he (PM) may go; our Government will run continuously for five years; would be our wrong saying.
    If the Head of the Government (i.e. Prime Minister) is dragged in the court of law and every other day, the orders come from the judiciary that:-
    1) Prime Minister ‘A’ is corrupt & criminal and hence, removed;
    2) Prime Minister ‘B’ is corrupt & criminal and hence, removed;
    3) Prime Minister ‘C’ is corrupt & criminal and hence, removed;
    4) Prime Minister ‘D’ is corrupt & criminal and hence, removed;
    5) Prime Minister ‘E’ is corrupt & criminal and hence, removed; so on & so forth, I am afraid the day is not far off when the Constitution will collapse, and the blame will squarely lie with Judiciary and particularly it’s Chief Justice who heads it.
    The Constitution of India or the Constitution of Pakistan gives a delicate balance of power, and each of the three organs of the Government: 1) the Legislature which legislate the laws; 2) the executive who implements the laws and the 3) Judiciary which interprets the laws—must respect each other and not at all encroach into each other’s boundary. Supreme Court of Pakistan has gone overboard by sacking/quashing the elected Prime Minister. No organ can become supreme over other.
    Everyone will agree that Prime Minister is accountable to the Parliament directly and to the people too directly & indirectly. 2/3rd Members of Parliament (2/3rd MPs) can shunt Prime Minister out than where is the direction required from the judiciary to shunt him out? In tune with the true spirit of the Constitution of India or of Pakistan, parliamentarians can only remove the Prime Minister on the basis of no-confidence motion. The Prime Minister holds office as long he has the confidence of Parliament, not the confidence of the Supreme Court of India or Supreme Court of Pakistan.

  2. 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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