My response to “Gilani verdict shows Pak SC has gone berserk”

This refers to the article titled “Gilani verdict shows Pak SC has gone berserk” published in THE TIMES OF INDIA , NEW DELHI / GURGAON / FRIDAY, JUNE 22, 2012 authored by Justice Markandey Katju.

Hon’ble Justice Markandey Katju in the said article states as follows (only certain views to which I would reply are quoted):-

“… the British Constitutional principle ‘The King can do no wrong’;  …. ‘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’; ……’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’; ….. ‘The PM holds office as long he holds 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’; ….. ‘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 Justice Markandey Katju is the chairman of Press Council of India).

I am also quoting an article published by a UAE based news paper Khaleej Times titled “Parliament can’t make laws repugnant to Constitution: CJ” published on Monday, June 25, 2012, in which it states, “Parliament cannot adopt a law that is repugnant either to the Constitution, Islamic injunctions or fundamental rights and if it does so, the action will be open to judicial review, Chief Justice Iftikhar Chaudhry has said”.; ……..” Chief Justice Iftikhar Chaudhry said law applies to all, irrespective of their status, power, caste, creed and religion. ‘No one can claim supremacy over and above the law’ he observed”.;  ….. The judicial institution of the state with the Supreme Court as the final arbiter acts as the ultimate protector of citizens’ rights and upholder of constitutional supremacy. The Supreme Court enjoys original, appellate and advisory jurisdiction, he said.”

With due respect and salutations to Hob’le Justice Markandey Katju for several observations and judgments passed during his tenure as a judge, I disagree strongly with the views expressed by him in the said article.

First of all, let me say that Justice Katju is now the Chairman of Press Council of India and therefore such a negative criticism by him of another county’s Supreme Court and Chief Justice is media catching and easily believed by the general public and as such should have been avoided. I would have ignored the article if authored by someone else.

Justice Katju has raised very serious issues that are contemporary and is applicable to India as well.

–       Is the president of a democratic country immune from criminal prosecution and is he/she above the law?

–       Can the British King be compared to Indian or American President? Is the King (president in the case of India and Pakistan) really above the law?

–       Is the King (president in the case of India and Pakistan) immune from criminal proceedings even if he commits murder, dacoity, theft, or some other crime as opined by Justice Katju?

I would like to draw the attention of Justice Katju to the constitutional crisis created by Watergate in which a series of scandals where President Richard Nixon and his associates were involved. When Congress sought to obtain White House tapes containing Oval Office conversations, President Nixon refused to turn them over, claiming that the tapes were subject to absolute executive privilege and asserting that the judiciary had no authority to order their production or inspection. Eventually the dispute reached the Supreme Court, where, in United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Court ruled against Nixon.

While acknowledging the importance of the president’s claims, the Court stated that “neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.”

Turning the pages of history, the Supreme Court said in an 1882 decision, United States v. Lee, 106 U.S. 196, 220, 1 S.Ct. 240, 261, 27 L.Ed. 171, that:

“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. 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 the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives”.

In denying immunity for criminal conduct, the Court in U.S. v. Isaacs also pointed out that “criminal conduct is not part of the necessary functions performed by public officials. Punishment for that conduct will not interfere with the legitimate operations of a branch of government”.

Thus, it is not surprising that the interest of criminal justice and public interest overruled the claims of executive privileges of the President, as Nixon was forced to turn over records of his conversation with his advisers in response to a subpoena in a criminal case.

In the United States, efforts by various presidents since Eisenhower to gain absolute and unqualified privilege have been rejected by the courts, though they remain inclined to support most claims of executive privilege.

If the President of India or Pakistan commits murder, dacoity, theft, or some other crime, say in the beginning of his/her term and the parliament that is the only body empowered to impeach the President keeps mum for any reason whatsoever, then according to Justice Katju, the citizens of India or Pakistan would have to swallow the acts of such a president!  What about the fundamental rights of citizens in such a circumstance and who will protect it?! Who will uphold the supremacy of the Constitution?

If a judge is to sit simply as an umpire in a dispute or a puppet to the government or its Chief Executive, then who will ensure fundamental rights to the citizens, what is the use of writ petitions, and don’t you think the result will be anarchy as seen in Tunisia, Libya, Egypt and so on?

Even in a kingdom or dictatorship, law courts are established to sanctify the actions of the king/dictator through judicial pronouncements.

I have been very closely following the developments in Pakistan. I am of the opinion that it is squarely because of Justice Iftikhar Chaudhry that Pakistan is surviving from dictatorship.  I am in concurrence with the rulings of CJ Iftikhar Chaudhry that

“law applies to all, irrespective of their status, power, caste, creed and religion. ‘No one can claim supremacy over and above the law’.  The judicial institution of the state with the Supreme Court as the final arbiter acts as the ultimate protector of citizens’ rights and upholder of constitutional supremacy. The Supreme Court enjoys original, appellate and advisory jurisdiction”.

If the Indian Supreme Court recognizes its inherent rights and powers (as done by the Supreme Court of Pakistan and United States) and rules for the benefit of its citizens as per constitutional provisions without fear, then India being a democracy, can go to great lengths to stop the flow of ‘black money’ and bring back the ‘black money’ stashed in foreign countries, as done by Pakistan Supreme Court in the case of President Asif Ali Sardari, and alleviate the sufferings of over 80% of the Indian citizens.  If not the Supreme Court, then who else will do it?

With Best Regards,

KK Sarachandra Bose
Partner/ Corporate, Commercial & Contract Lawyer
Dar Al-Adalah
Advocates & Legal Consultants
P.O. Box. 15878
Dubai, UAE.
Tel: 04-3355577/ Fax: 04-3354000/ Mobile: 050-6245087
Email: info@theboselaw.com / boselaw@gmail.com
www.theboselaw.com / www.daraladalah.com / www.globaldialoguefoundation.com / www.nridubai.com / www.indiatradedubai.com

References:
Times of India article Gilani verdict

Times Of India article

Khaleej Times article Pakistan CJ

Khaleej Times article

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About KK Sarachandra Bose

K K Sarachandra Bose (KK Bose) (born 1952 in Mezhuvelly, Kerala, India) is a Lawyer by profession and a partner at Dar Al-Adalah Advocates & Legal Consultants, and Bose & Bose and Nair, Cochin. He resides and practices his profession in Dubai, UAE. KK Bose has been involved in a lot of social activities over the past many years particularly helping Indian nationals in the Emirate of Dubai.
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