I WAS trained in law in England but I must confess that the judgments of the superior courts of India, especially the Supreme Court of India, and the legal literature produced by Indian lawyers and academics, has, and continues to have, a formidable effect on my professional development.

Similarly, it would not be an exaggeration to suggest that the Pakistani superior court relies more on judgments of India’s superior courts than of any other foreign court.

It is in the above context that I was surprised to read the two newspapers opinions of Justice (retd) Markandey Katju, former judge, Supreme Court of India, published in The Hindu issue of June 21 titled ‘Pakistan’s Supreme Court has gone overboard’ and in a Pakistani newspaper dated on June 27 titled ‘Judicial responsibility and organs of state’, commenting on the disqualification of prime minister Yousuf Raza Gilani by the Pakistani Supreme Court.

I was especially saddened by the language used by the respected former judge of the Indian Supreme Court against the Pakistani Supreme Court, stating that “Pakistani Supreme Court has … gone berserk” and labelling its behaviour as “constitutional misbehaviour”.

With due respect, Justice Katju’s “berserk” or “constitutional misbehaviour” charge against the Pakistani Supreme Court is based on ignorance of the relevant judicial facts and the relevant judgments of the Pakistani Supreme Court and is a partisan view of what he thinks the judicial constitutional role should be. But let us critically examine the reasoning of Justice (retd) Katju.

How could the Pakistani Supreme Court ignore, or overrule, the constitutional presidential immunity under Article 248 of the constitution? This reasoning of Justice Katju is based on ignorance of the judicial facts and judgments. Firstly, as is obvious from Justice Tassaduq Hussain Jillani review judgment of Nov 25, 2011 in the NRO case, the issue of immunity under international law was urged by the government but never seriously argued before the Pakistani Supreme Court during the hearing of the review petition in the NRO case. Whereas, the issue of Article 248 of the constitution was not even raised by the government before the Supreme Court. Secondly, as is obvious from Justice Asif Saeed Khosa’s interim order dated Jan 10, 2012 in the contempt case against the prime minister, the Supreme Court itself allowed option four to the prime minister to plead presidential immunity under Article 248 of the constitution as his defence. Thirdly, as noted by Justice Nasir-ul-Mulk in para 35 of the judgment dated April 26, 2012 in the contempt case, the counsel for the prime minister himself “did not invoke the provisions of Article 248 of the constitution … and clarified that such immunity can be invoked by the president himself”. Moreover, Justice Nasir-ul-Mulk in para 43 of the same judgment has left the issue of presidential immunity under international law open to be invoked before, and decided by, the relevant authorities in Switzerland. Fourthly, the president has already been granted immunity from criminal prosecution under Article 248 of the constitution before the Pakistani courts (as opposed to before the Swiss courts) as none of the criminal cases against him have been reopened against him in Pakistan. How can the prime minister be guilty of defaming, or ridiculing, the judiciary for simply pointing out the presidential immunity under Article 248 of the constitution? As is obvious from the above, the counsel for the prime minister never took the defence of presidential immunity under Article 248 of the constitution despite the clear ‘offer/option four’ given in Justice Asif Saeed Khosa’s interim order of Jan 10, 2012 in the contempt case. Surely, Justice Katju is seriously misinformed about these critical facts. How could the prime minister be dismissed by the courts? Is Justice Katju aware of the fact that Justice Nasir-ul-Mulk in his earlier judgment of April 26, 2012 in the contempt case has clearly held that the contempt conviction of the prime minister is likely to have serious consequences of disqualifications under Article 63(1)(g) of the constitution? Is he also aware of the fact that the then prime minister had accepted this judgment by not filing an appeal against this judgment? I agree with him that the dismissal of prime ministers by the court is constitutionally problematic but what is equally so is an open public defiance by the prime minister of final judgments of the Supreme Court. Therefore, what requires resolution is this apparent contradiction between democracy and judicial independence. Lack of judicial restraint by the Pakistani Supreme Court: The Pakistani Supreme Court is in good company for its alleged lack of ‘judicial restraint’ because Justice Katju, in the ‘D.M., Aravali Golf Club case’ [2008(1) SCC 683], has levelled the same kind of allegations of lack of judicial restraint against his own fellow justices in the Indian judiciary, telling his fellow Indian judges not to “behave like emperors”. Surely, he must accept that this ‘judicial restraint’ debate is an ongoing, burning one between its proponents and opponents, and as S.P. Sathe’s book on Judicial Activism in India and the writings of Prof Upendra Baxi indicate that what may be required is a re-constitutionalisation of the judicial activist role in light of the South Asian judicial experience. But the academic and public jury is still out on this debate. However, what Justice Katju’s critique clearly shows is that the Supreme Court of Pakistan is now being judged by the global judicial elite. Therefore, the Supreme Court must now perform its judicial functions in a way that it strives for judicial excellence of an international level. n

The writer is an advocate.