Thursday, 21 June 2012

The Pakistan Supreme Court “has flouted all canons of Constitutional Jurisprudence"

When 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 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 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.

 I therefore fail to understand 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 Prime Minister 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.In fact the Court and its Chief Justice have been playing to the galleries for long. It has clearly gone overboard an flouted all canons of Constitutional Jurisprudence.

 The Constitution establishes a delicate balance of power, and each of the 3 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 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


  1. Respected Sir,
    I agree with the thrust of the article and especially with the high lighted statements. Historically supreme court verdicts directing their governments in a specied manner have been either vitiated or circumvented by concerned parliament. Shaha Banu case is a case in point. This settles the equation of power between judiciary and legislature. Obviously the chief justice of the Pakistan supreme court and his cohorts have missed the wood for the trees.

  2. True! We have much stability in our country as compared to the neighboring countries because the Supreme Court of India does not go overboard. The Legislature, the Executive and the Judiciary hardly ever encroach into each other's domain.

  3. Mueen Sheikh(msheikh543@gmail.com22 June 2012 at 14:35

    Supreme court was not dealing with a criminal case. Government of Pakistan had filed a civil petition in a Swiss court which was withdrawn, without legal authority, by a previous Attorney General. The Supreme Court decided that the position be rectified by withdrawing the illegally written letter to ensure pakistan's claim to US$ 60 million remains intact if and when the case is decided by the Swiss Court. Maybe Justice Katju can find the time to enlighten everyone in view of these facts. The PM was removed as per constitutional provisions having been found guilty of contempt of court for refusing to obey the legal orders of the Supreme Court. I am certain the Pakistan supreme court will not hesitate to seek advice from justice Katju if it deems fit. Till that time Justice Katju may like to wait!

  4. no doubt the juristic opinion given by the learned judges are to be very much clear and gave the depiction of their knowledge,which ultimately Leeds them to the opinion in public as the learned judges. same is the juristic opinion and thought given by the learned judge in his above article i whole heartedly agree with his opinion and appreciate the approach given by him. because the the basic philosophy of the democratic system will be destroyed rather the whole system will be collapsed if there will be one man acts as all in all and feels him self to be the supreme and above to the other organs of the state. its beauty will only be maintained if all the institutions will work while keeping them selfs within their own limits.

  5. Well following are also part of our constitution:

    1. Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;

    2. Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;

    3. Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah.

    In short, any law/ clause in our constitution cannot contradict any Islam Law and in Islam no one is above law, specially the Man in charge. Our biggest disadvantage since independence is that people in charge who have made these laws have done so to protect their vested interests.

  6. Plus the British Law that says 'king can do no wrong' was made to protect King on decisions made by him after he becomes the king (keeping in mind a few unpopular decisions that sometimes rulers have to make, any/all decisions a king will make would be for the good of his country) not for the murders/frauds he had committed before he was king. It's just that in their system corrupt ppl did not went on to become kings

  7. Dear Justice Markandey Katju
    How r u?

    I was listening your interview with Shafi Naqi Jami on BBC. I was not convinced with your views. Mr. Gilani Ridicules judiciary. It was not only disobeying court order and it was not only matter of contempt of court.
    2ndly I agree present holds total immunity but Supreme Court directed to withdraw letter of Ex. Atorny General Justice Qayyum. Actually it was highlighted by Justice Asif Saeed Jhosa also. They just want to withdraw that letter. And if president holds immunity then he should claim there because there are also some other persons involve in those cases other than zardari


    Luqman Pakistan

  8. hello sir
    what has happened to your facebook account???
    i watched that video on website which was on INDIA
    i had to share so many things to you regading it
    i dont have any other source to contact you sir
    plzzzz do tell me any other source to contact you....
    thank you sir
    hoping for a prompt reply
    i was very excited to share my views on it.... :( :(

    1. You can contact him at :

  9. King can do no wrong.. is the accepted principle. It should not be viewed as suggested. The King being the head of the State is expected to follow the law and he does no wrong to the system.. If he engages in murder, arson and heinous crimes.. the law of England does not immune him from being prosecuted for the felony.. The law is the same for the common man and the "King". A common man elected as a Prime Minister or even a Judge cannot say under all circumstances be immune from the committed crimes.. I hope the judges of this Country honestly prosecute the criminals immaterial of their position.. Have we not heard that Subramania iyer of Madras High court had proclaimed that "high office matters not, law is Supreme"