Newspaper Articles Original Articles

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

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

Related posts: Constitutional misbehaviour of the Pakistan Supreme Court (Part II) -by Justice Markandey Katju

Justice Louise Arbour concerned about direction of Pakistan’s Supreme Court

Note: We applaud Justice Katju’s bold and principled stance on the Judicial Coup in Pakistan.  Tragically for Pakistan, its Judiciary, barring a few honourable exceptions like Justice Cornelius, Justice Dohrab Patel, Justice M.R. Kiyani, Justice Fakhruddin Ebrahim, have been at the forefront in validating coups.  Pakistan’s Judicial history has few bright spots and many dark ones. 

This Institute committed the “Judicial Murder” of  Prime Minister Zulfiqar Ali Bhutto, as admitted to by one of its own (Justice Nasim Hasan Shah).  It has not only made itself subservient to military dictators, it has also literally allowed dictators like General Zia ul Haq and General Musharaf to mangle the Constitution. One such blot on the Constituti0n is General Zia’s version of Article 63 – a fundementally flawed and biased law that is the favourite prop of this Pro-Rape, Islamofascist” Judiciary.

Most of Pakistan’s Civil Society and its compromised, biased has also played an atrocious role in supporting this farce of a Judiciary.  This urban upper-middle class segment of Pakistan’s society takes pride in abusing Bhutto and Benazir for their failings and compromises but never questions their own alliance with Jamaat-e-Islami and Lal Masjid/Sipah-e-Sahaba during the Lawyer’s Movement. The overturning of the Speaker’s verdict and the retroactive disqualification of the now former Prime Minister Gillani once again highlights the selective bias of this Judiciary.  Without the utter sycophany and the tasteless efforts to give this Judiciary a near Divine status, media and civil society are deeply culpable in the ongoing Judicial Coup in this country. (End Note)

“Pakistani court has no right to dismiss a Prime Minister or overrule the constitutional immunity given to the President.”

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.

Source: The Hindu

——–

Judiciary in Pakistan has acted as subservient to wishes and agendas of army generals.

About the author

SK

12 Comments

Click here to post a comment
  • Looming judicial tyranny

    Yousaf Raza Gilani is gone. The incumbent PPP is discussing his replacement. Whoever succeeds Gilani still runs the risk of being subjected to the same pressures from the judiciary as Gilani faced, and which eventually ended in his ignominious departure, not at the hands of the people or their elected representatives, which is the norm in all parliamentary democracies, but at the hands of an activist judiciary that has opened itself up in the process to grave criticism. For the benefit of our readers, let us retrace some of the steps and developments that led to this denouement.

    The National Reconciliation Ordinance (NRO) was essentially a political deal between Musharraf and the PPP led at that time by the late Benazir Bhutto. It gave relief to over 8,000 people affected by charges of corruption and other misdemeanours, of whom only about 80 were politicians. While the Supreme Court (SC) struck it down on the strict constitutional/legal criterion of being discriminatory, and ordered all closed cases of the beneficiaries to be reopened, its subsequent focus seemed to be on just one of those beneficiaries: President Asif Ali Zardari. Gilani took his stand on the basis of Article 248 of the constitution, which lays down that the president enjoys immunity so long as he is in office. This is a principle that is the bedrock of every constitution known to man. Take the example of French former president Sarkozy. After losing the presidential election, his immunity extended one month after leaving office, according to the French constitution. As soon as that grace period expired, Sarkozy is being hauled over the coals in various cases, including the murky Agosta submarine affair that involves a Pakistan angle. The SC saw fit in its wisdom to ignore all this constitutional edifice despite the argument being presented that President Zardari could be acted against in the Cotecna case after he leaves office. Instead, the SC suggested that if ‘someone’ claimed immunity, he must apply for it to the court (while Article 248 leaves no or little room for ambiguity). The government appeared reluctant to subject itself to an ‘interpretation’ of Article 248 that could open new cans of worms for it, hence its reluctance to pursue the immunity matter in all the proceedings. The SC ordered the chief executive, then Prime Minister Gilani, to reopen the Swiss case despite presidential immunity and the reluctance of the Swiss judicial authorities themselves to reopen the case in the absence of fresh substantive evidence, those being their judicial rules. The insistence despite all these facts by the SC indicated to some circles that some extraneous factor may have crept into these judicial proceedings. Be that as it may, the first casualty of this jurisprudence is a unanimously elected prime minister at the hands of the judiciary. And there is no telling whether he will be the last. It may be noticed in passing that the reluctance of Gilani to file an appeal against his contempt conviction suggests a lack of confidence in the impartiality of the court. This is a serious development with implications for the future.

    The separation of powers enshrined in the constitution is a reflection of the best practice and constitutional structure from world experience. The framers of the US constitution were clear that individuals or groups could not be relied upon to exercise restraint on the basis of good intentions, therefore checks and balances and the separation of powers was necessary. Every institution therefore is enjoined by this schema to remain within its boundaries and not encroach on other institutions’ turf. Unfortunately, the restored superior judiciary’s activism, unrestrained in some instances by the time honoured principle of judicial restraint, is deleterious for the respect and dignity of the judiciary itself since it opens up the judiciary to debate and controversy. The SC’s overruling the Speaker of the National Assembly can be considered a weakening of the principle that parliament is supreme. In fact, the essence of the verdict against the Speaker’s finding is to declare, at least in the sphere of the issues raised by the case, that parliament’s supremacy is subject to the will, not of the people, but of the judiciary. This is a dangerous chink in the wall of separation of powers construct. Since there is no higher judicial forum than the SC, its verdicts acquire permanence (we may recall the shelf life of the doctrine of necessity to illustrate the point). The US Supreme Court declared: “We are not final because we are infallible. We are infallible because we are final.” Hidden in that message is the thought that if the judiciary does not judiciously impose restraint on itself, the direction in which things may head would alarmingly resemble judicial tyranny.

    http://www.dailytimes.com.pk/default.asp?page=20126\21\story_21-6-2012_pg3_1

  • The decision to oust Prime Minister Gilani
    June 19th, 2012
    By Yasser Latif Hamdani

    (PTH)

    A few hours ago the Supreme Court of Pakistan ruled that Yusuf Raza Gilani stands disqualified under 63(1) g of the Constitution. I have written extensively on this in many of my previous blog posts which may be found on this website. However I’d like to state some basic issues with this judgment in clear and unambiguous terms (sadly no one speaks in those in Pakistan:

    1. The Supreme Court of Pakistan, in my legal opinion, is NOT vested with the authority under the constitution to dismiss the Prime Minister or over-rule the decisions of the Speaker i.e. Presiding Officer of the National Assembly whose decisions are his or her privilege and are covered by the parliamentary privilege clause.

    2. Chief Justice of Pakistan/the entire Supreme Court of Pakistan has no authority to dictate to the Prime Minister of Pakistan on what to write to which foreign authority. That is an executive function and not a judicial function.
    3. The Prime Minister was correct in obeying 248(2) of the Constitution above arbitrary dicta of the Supreme Court of Pakistan. He has paid a terrible price for following the Constitution in its letter and spirit. My heart goes out to him.

    4. By loosely wording the short order and disqualifying the Prime Minister from 26 April, 2012, the Chief Justice of Pakistan has opened up a whole new constitutional crisis for Pakistan. The status of the budget as well as the recent executive decisions of the cabinet are now under a shadow. The impact of this on the economy and uncertainty it will create will be terrible.

    I am not a People’s Party supporter. However, here one must commend the PPP for the statesmanlike manner in which the party has accepted what is otherwise a monumental injustice to a Prime Minister who was unanimously elected as the leader of house in 2008 and for the crime of obeying the Constitution.

    It is now important to acknowledge that we are no longer a democracy but a judiciary, where the whim and will of an unelected institution ostensibly carries more power than 180 million people.

    Perhaps it is time to dispense with the pretence of parliament, prime minister and president and constitutionally empower the Chief Justice to act as all three. Wait why constitutionally empower him? The Chief Justice should pass a decree abolishing everything other than the supremacy of the Supreme Court.

  • COMMENT : One suo motu too many — Tausif Kamal

    Whenever some of our preconceived myths are shattered by a stark, unyielding and yet truthful reality, we tend to revert to denial and a refusal to face up to the facts as they are

    The Supreme Court’s short order in the Arsalan Iftikhar case absolving the Honourable Chief Justice (CJ) without any investigation or examination of any evidence in the underlying imbroglio is premature. It is in fact contradicted by the Supreme Court’s own statement in this order: “…the Supreme Court (SC)…cannot judge the guilt or innocence of the parties without evidence or trial…” So how is this ruling not applicable to the CJ, who is so intertwined in this scandal being the father of one of the main suspects, and whose judicial power is at the heart of this corruption scandal?

    This is in way to imply that the CJ is guilty but there cannot be an exemption from inquiry and investigation along with other participants and witnesses, for possible criminal violations based just on mere words of one of the parties. Who is Malik Riaz to give a clean bill of health to the CJ? It is strange that the SC is relying on the good word of Malik Riaz whom the former considers to be an accused fit to be prosecuted for some serious criminal offences under Pakistan’s criminal laws.

    To contend that the media is maligning the judiciary by highlighting this scandal is to blame the messenger and not the message. Let us not be sidetracked, for now at least, by corruption in the media, which no doubt prevails, but which is less important than the imperative of our judiciary to have an unassailable reputation and an image above reproach. Conducting a thorough probe or inquiry of all those allegedly involved, including the Honourable CJ, will clear rather than tarnish the judiciary’s reputation and remove the dark clouds hanging over our most esteemed institution.

    The nation has a right to know answers to such vital questions as how long the CJ knew about his son’s involvement with Malik Riaz and how many meetings the CJ had with Malik Riaz before the matter was seized through a suo motu action. The only other acceptable alternative to such an inquiry would be for the CJ to quit honourably in the larger interests of the judiciary and the country.

    Lately, it appears that the rule of law in our land has been supplanted by a rule, by a surfeit of suo motu suits. Although in the sou motu matter of the CJ’s son and Malik Riaz, it is a case of one suo motu too many: the one that backfired, and the one that might come to haunt the judiciary for years to come.

    Whether dwelling on issues of purely executive governance (sugar pricing, highway bypasses, bureaucratic postings and transfers, etc), or of separation of legislative powers (Speaker’s parliamentary rulings, disqualification of assembly members, etc), or of admissions and adjudication of petitions (lack of legal standing and subject-matter jurisdiction in the memo case, usurpation of powers of the executive branch in the contempt case, etc), the misuse of the original jurisdiction by the judiciary has been whimsical and arbitrary.

    Far from strengthening the rule of law in our country, this judicial adventurism under the cover of Article 184 (3) suo motu jurisdiction has created a climate of political instability in the country. It has undermined the law-enforcing and prosecutorial institutions, increased the cost of doing business with Pakistan by millions of dollars, and above all, diverted the judiciary from performing its basic constitutional function of deciding thousands of regular cases that are languishing before the apex court on appeal. It is about time we discarded the anomalous, overreaching Article 184 (3) in the dustbin of history and thus join the other democratic nations of the world in matters of judicial oversight.

    Our knee-jerk reaction to this alleged corruption and blackmail scandal the moment it unfolded in the media seems to indicate the prevalence of a national psychosis or a mindset of paranoia, delusion and denial — reminiscent of the lugubrious, conspiratorial days of 9/11 and May 2 incidents. It seems that whenever some of our preconceived myths are shattered by a stark, unyielding and yet truthful reality, we tend to revert to denial and a refusal to face up to the facts as they are. In the case of the 9/11 attacks, our myth that all Muslims believe and adhere to the peaceful precepts of Islam, and in the case of the Osama bin Laden raid, our myth of invincibility of our armed forces were shattered and laid bare. As we all know, our preferred mode of coping with these setbacks was to spin a web of conspiracy theories.

    If the current national gridlock does bring down the edifice of democracy once again it would be the fault of our three institutions: the army, because of its running the country’s foreign and security policy; the government, because of its inept, non-transparent and ineffective performance, and the judiciary, because of its vengeful, overarching adjudication, creating roadblocks in political governance.

    Concerning our superior judiciary, we have created and embedded in our minds an illusion of cool, incorruptible, super judiciary that is beyond mendacious politics, mundane temptation and inveterate ambition. As soon as this high-flying myth came crashing down to reality with this corruption case, we reacted with, what else, conspiracy theories. Unless and until we stop believing in fairytales, in the last bastions of hope that Ayub will save us, that Zia will save us, that Bhutto will save us, that the army will save us, and now that the judiciary will save us, we will continue to be hugely disappointed and doomed to live perennially in these parlous times with one setback after another.

    We alone can save the country and ourselves.

    The writer is a JD, Attorney at Law in Houston, USA and can be reached at Tausifkamal@hotmail.com

    http://www.dailytimes.com.pk/default.asp?page=20126\20\story_20-6-2012_pg3_6

  • ‘Ousting PM instead of Parliament is the new khaki tactic’ – Ayesha Siddiqa

    by Adnan Farooq

    It goes without saying that the first thing which the Supreme Court will ask the next PM to do is to write the letter to the Swiss authorities. He will refuse too and the game continues

    The Supreme Court’s verdict to disqualify Prime Minister Yusuf Raza Gillani “is not a routine democratic change”, according to Ayesha Siddiqa. “In fact, it represents the new tactics of the military and its agencies,” she says.

    Author of ‘Military Inc’, Ayesha Siddiqa is internationally known analyst on military and political affairs.

    Commenting on the latest political developments in the country in an interview with the Viewpoint, she says: “Instead of ousting the entire Parliament, the military gets rid of prime ministers which has the same effect meaning a weak democracy. The judges seem to have become party to this”. Read on:

    The opinion on Supreme Court’s verdict on Prime Minister Yusuf Raza Gillani’s disqualification is divided. In general, the Opposition is hailing the verdict while the PPP and liberal circles are presenting it as a coup by other means. How do you assess the situation?

    This is an intense political battle in which the Supreme Court is not neutral but a party as well. Look at the Supreme Court’s comparative behavior. There are times when it bails out murderers and looters but does not spare the ruling party in particular. Its wrath is mainly for the PPP and the chief judge seems to be making sure that he can ensure the PPP government’s ouster especially since he is now worried about his son being investigated.

    There are 2-3 scenarios. First, the PPP will keep nominating prime ministers who will get ousted one after the other by the judges until elections can be held next year. Second, the game goes on until end of this year. Third, PPP looses and agrees to establish a caretaker government. Yet a fourth possibility being talked about is a long term caretaker government since the army and its agencies would have managed to malign everyone including the judges, the politicians and the media.

    It seems the democratic process is going on. Under a democratic set up, cabinets and prime ministers even governments get replaced. But if there is something special about Pakistan that a ‘routine’ democratic practice be construed as an attack on democracy?

    This is not a routine democratic change. In fact, it represents the new tactics of the military and its agencies. Instead of ousting the entire Parliament, the military gets rid of prime ministers which has the same effect meaning a weak democracy. The judges seem to have become party to this.

    President Zardari was reluctant from the beginning to restore Chief Justice Iftikhar Chaudhry. Do you think the PPP knew from the beginning that a judicial coup was possible?

    It is either that the PPP knew what Iftikhar Ch could do as his entire movement needs a serious revisit. He was built into a hero but the question is what was the movement about and how was it managed then? Either the PPP knew about the support from PML-N or Chaudhry got angry for not being reinstated by the PPP government and is now getting even. Matters have become worse with his son’s case.

    Do you think the crisis is over? Or will the SC ask the next PM to write to Swiss courts? If so, will PPP accept such a move lying down as it has apparently done in case of Yusuf Raza Gilani?

    It goes without saying that the first thing which the Supreme Court will ask the next PM to do is to write the letter to the Swiss authorities. He will refuse too and the game continues.

    Nawaz Sharif in this case joined hands with Imran Khan. While Nawaz Sharif has been opposing army’s role in politics, Imran Khan is seen as pro-establishment. What sort of interests or forces brought this collaboration between Nawaz Sharif and Imran Khan, both otherwise at daggers drawn?

    At this point in time the short term interests of both Nawaz Sharif and Imran Khan are solved by putting pressure. Remember, Nawaz Sharif wants to get into power and Imran Khan too. They have not partnered but are putting pressure independently.

    Are we witnessing a repeat of the 1990s with the difference that the Chief Justice—in the absence of 58-2b— is playing the President this time around?

    We are still far away from independence of judiciary. It’s old game different style.

    http://www.viewpointonline.net/ousting-pm-instead-of-parliament-is-the-new-khaki-tactic.html

  • I always felt that Gillani was misguided and wrongly advised by his legal counsels and Attorney General. Heavens would not fall down if a letter is addressed to Swiss authorities afresh and at the same time it is pointed out to them that Mr. Zardari, one of the parties in the pending litigation in Swiss Courts (if it is still pending) is now President of Pakistan who according to the Pakistan Constitution enjoys absolute immunity from any criminal proceedings and also according to international law is protected by the principle of sovereign immunity. Generally it is a settled position of international law as emphatically clarified in the recent Germany v. Italy (Greece Intervening)decision (3 February 2012) of the International Court of Justice that sovereign immunity of a State is always a procedural matter to be taken into account at the very initial step of any criminal or civil proceedings involving that State and has to be respected; consequently a Head of State would certainly enjoy that sovereign immunity, more so if the Constitution of that State of which he is the Head, expressly grants him absolute immunity. I don’t think a letter with such express clarification of the absolute immunity enjoyed by the President of Pakistan would be shoved aside lightly and the Swiss authorities would proceed with the case against Zardari even in that event. As for the other accused, I don’t think one should stop any proceedings against them and certainly if moneys are laundered and deposited in Swiss havens, Pakistan State has every right and duty to claim and get back those to its own custody on behalf of its people. I HAVE ALREADY MADE IT CLEAR THAT I STRONGLY CONDEMN THE VIRTUAL JUDICIAL COUP TO OUST GILLANI, WHICH IS NOT WARRANTED BY ANY PRINCIPLE OF CONSTITUTIONAL JURISPRUDENCE. POWER CORRUPTS… AXIOM HAS PROVED ITSELF EVEN IN REGARD TO THE PAKISTANI SUPERIOR JUDICIARY, ESPECIALLY ITS PRESENT CHIEF JUSTICE.

  • CJ Iftikhar Chaudhry has not conducted himself as a CJ, he has played to the gallery

    ’پاکستان سپریم کورٹ نے تو حد کردی‘
    آخری وقت اشاعت: ہفتہ 23 جون 2012 ,‭ 15:51 GMT 20:51 PST

    بھارتی سپریم کورٹ کے ریٹائرڈ جج جسٹس مرکھنڈے کاٹجو نے کہا ہے کہ پاکستان کی سپریم کورٹ نے عوام کو خوش کرنے کے چکر میں وزیر اعظم کو نااہل قرار دے کی اپنی آئینی حددو کو پار کیا ہے۔
    بی بی سی اردو کے ساتھ ایک انٹرویو میں انہوں نے کہا عدلیہ کو ہمیشہ تحمل کا مظاہرہ کرنا چاہیے۔سننے کے لیے کلک کریں

    http://www.bbc.co.uk/urdu/multimedia/2012/06/120623_indian_sc_judge_ra.shtml

  • گیلانی کو نااہل کر کے سپریم کورٹ نے حد پار کی‘
    آخری وقت اشاعت: ہفتہ 23 جون 2012 ,‭ 16:58 GMT 21:58 PST
    Facebook
    Twitter
    دوست کو بھیجیں
    پرنٹ کریں

    جسٹس مارکھنڈے نے کہا کہ جوڈیشل ایکٹوزم کبھی کبھی اچھا ہوتا ہے لیکن عام طور پر نہیں
    بھارتی سپریم کورٹ کے ریٹائرڈ جج جسٹس مرکھنڈے کاٹجو کا کہنا ہے کہ پاکستان کے سابق وزیر اعظم یوسف رضا گیلانی کو نااہل قرار دیتے ہوئے ملک کی سپریم کورٹ نے حد سے تجاوز کیا ہے۔
    جسٹس مارکھنڈے کاٹجو نے یہ بات بی بی سی کے پروگرام سیربین سے بات کرتے ہوئے کہی۔
    اسی بارے میں
    گیلانی حکومت، چار سال ایک ماہ ایک دن
    جمہوریت کے لیے بری خبر: ایچ آر سی پی
    اسمبلی کا اجلاس طلب، نئے وزیراعظم کا انتخاب جمعہ کو
    متعلقہ عنوانات
    پاکستان
    انہوں نے کہا:’پاکستان کی سپریم کورٹ نے عوام کو خوش کرنے کے چکر میں وزیر اعظم کو نااہل قرار دے کی اپنی آئینی حددو کو پار کیا ہے۔‘
    انہوں نے کہا کہ توہینِ عدالت کے بھی کئی درجے ہوتے ہیں اور توہینِ عدالت کے ہر مقدمے کا فیصلہ نااہل کرنا نہیں ہوتا۔ ’یوسف رضا گیلانی نے سپریم کورٹ کو یہ نہیں کہا کہ عدالت رشوت لے کر فیصلے کرتی ہے یا عدالت بدنیتی پر فیصلے کرتی ہے۔ اگر وہ یہ کہتے تو پھر نااہل قرار دیا جاسکتا تھا۔‘
    کلِک ’پاکستان سپریم کورٹ نے تو حد کردی: انٹرویو سنیئے‘
    جسٹس مارکھنڈے نے کہا کہ سپریم کورٹ سے یہ کہا گیا تھا کہ یہ مقدمہ ان کے دائرہ کار میں نہیں آتا۔ سپریم کورٹ سے کہا گیا کہ آئین کی آرٹیکل248 شق دو کے تحت صدر کو استثنیٰ حاصل ہے۔‘
    ’اس مؤقف سے کیسے عدلیہ بدنام ہو رہی ہے۔ اس کا مطلب ہے کہ کوئی بھی اعتراض نہیں اٹھا سکتا۔ اگر ایک وکیل عدالت سے کہتا ہے کہ یہ آپ کے دائرہ کار میں نہیں آتا تو کیا اس کو جیل بھیج دیا جائے گا۔ وہ آپ کو گالی نہیں نکال رہا بلکہ ایک قانونی نکتہ اٹھا رہا ہے۔‘
    جسٹس مارکھنڈے نے کہا کہ یہ تو بہت آسان ہے کہ اگر چیف جسٹس کی صدر سے نہیں بنتی تو پہلے کوئی غیر آئینی حکم جاری کردے اور جب وزیر اعظم اس پر اعتراض کرے تو اس کو نااہل قرار دے دے۔ اس طرح تو جمہوریت نہیں چلتی۔ وزیر اعظم حکومت چلاتا ہے پارلیمان کے اعتماد سے نہ کہ سپریم کورٹ یا چیف جسٹس کے۔
    ایک سوال کے جواب میں انہوں نے کہا کہ عدلیہ کے لیے توازن برقرار رکھنا بھی ضروری ہے۔ انہوں نے کہا کہ اگر غیر قانونی کام ہو رہا ہے تو ضرور ایکشن لیا جائے لیکن آئین میں جو مختلف اداروں میں توازن ہے اس کو خراب نہ کیا جائے۔
    جسٹس مارکھنڈے کا کہنا ہے کہ سپریم کورٹ صدر کا استثنیٰ ختم کرسکتی ہے۔ ’انگریزوں نے جو آئین بنایا اس میں انہوں نے کہا کہ لوگ قانون سے بالاتر نہیں ہے ماسوائے ایک شخص کے۔ ان کے مطابق اگر اس کو بھی استثنیٰ حاصل نہ ہو تو سسٹم چل ہی نہیں سکتا۔‘
    جسٹس مارکھنڈے نے کہا کہ جوڈیشل ایکٹوزم کبھی کبھی اچھا ہوتا ہے لیکن عام طور پر نہیں۔
    ’سپریم کورٹ کو اپنے دائرہ اختیار میں رہنا چاہیے۔ ہاں غیر معمولی صورتحال میں آپ ایکٹوزم کرسکتے ہیں۔ لیکن پاکستان کے سپریم کورٹ نے تو حد کردی۔ انہوں نے آرٹیکل 248 شق دو کو ختم کردیا۔‘
    آئین میں مختلف اداروں میں توازن کو برقرار رکھنے کے حوالے سے انہوں نے کہا کہ عدلیہ کو اپنی حد خود قائم کرنی ہے۔

    http://www.bbc.co.uk/urdu/pakistan/2012/06/120623_india_justice_markhande_rh.shtml

  • Ch Iftikhar has made a mockery of our Constitution and rule of law in his vendetta and greed.. I am not a supporter of PPP, but our CJ has clearly violated and shows no respect for, inter alia, Article 248 (complete immunity of the President from any criminal prosecution whatsoever) and secondly Art 89 (the sole, unchallenged, absolute power of the Speaker of NA to disqualify a member). This CH thinks he is about our laws and above our Constitution. He should be fired and charged for treason…