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.

Syria unrest: ‘Bloodiest day’ as troops fire on rallies

At least 72 protesters have been killed by security forces in Syria, rights groups say – the highest reported death toll in five weeks of unrest there.

Demonstrators were shot, witnesses say, as thousands rallied across the country, a day after a decades-long state of emergency was lifted.

Many deaths reportedly occurred in a village near Deraa in the south, and in a suburb of the capital, Damascus.

The US White House urged the government to stop attacking demonstrators.

Spokesman Jay Carney said it should “cease and desist in the use of violence against protesters” and follow through on promised reforms.

UK Foreign Secretary William Hague said he was “extremely concerned” by reports of deaths and casualties across Syria and urged restraint on the country’s authorities.

“Political reforms should be brought forward and implemented without delay,” he said. “The Emergency Law should be lifted in practice, not just in word.”

Live ammunition

Protesters – said to number tens of thousands – chanted for the overthrow of the regime, Reuters news agency reports.

Video images coming out of Syria show footage of many confrontations where live ammunition was used.

President Bashar al-Assad’s lifting of the emergency had been seen as a concession to the protesters.

In their first joint statement since the protests broke out, activists co-ordinating the mass demonstrations demanded the establishment of a democratic political system.

Political unrest in Syria developed after revolts elsewhere in the Arab world, which saw the downfall of the Tunisian and Egyptian presidents and an ongoing civil war in Libya.

At least 260 people are said to have died since it began last month.

‘Rain of bullets’ …

Read more : BBC