Katju Writes To Pakistani Lawyers
Newslaundry comment: We can heave a sigh of relief! We aren’t the only dumbos in the sub-continent. India-Pakistan bhai bhai!
Thank you for your email.
i am sure a large number of the the (sic) intellectually challenged class in your country will sooner or later become part of the intellectual class by patient persuasion. I have great faith in the power of persuasion by reasoning. I am a disciple of the French philosopher Rousseau who believed that men are basically good by nature. Hence if my reasoning is correct I am confident that people will one day accept it.
I may clarify that I am a non political person, and I have nothing to do with the politics of your country. I expressed my views purely from the legal and Constitutional angle because I feared that your Supreme Court had for some time embarked on a perilous path which would lead to disastrous results for your country.
When Parvez Musharraf removed your Chief Justice we Indians condemned that act, and we were happy when the Chief Justice was reinstated. However, thereafter your Chief justice and many of his companion judges have been for quite some time acting in a totally unconstitutional manner. Of late they have gone completely overboard and have flouted all canons of Constitutional jurisprudence. They have upset the balance of power among the three organs of the State and are in effect claiming that the Supreme Court is above the other two organs, viz. the executive and legislature. This attitude is bound to wreck the Constitution.
Please read my judgment Divisional Manager, Aravalli Golf Course vs. Chander Haas, which I gave when I was on the Indian Supreme Court. It can be seen online. In that judgment I have emphasized the need for judicial restraint, particularly among members of the higher judiciary (the High Court and Supreme Court). The higher one moves in the hierarchy, the more restraint he must have, otherwise he will create havoc. The Judges of the Supreme Court, in particular, must have utmost humility and self restraint because they are at the apex of the judicial system and therefore the last Court. The errors of the lower Courts can be corrected on appeal to a higher Court, but there is nothing above the Supreme Court.
I do not mean to say that the Courts should never be activist. In Government of Andhra Pradesh vs. P.Laxmi Devi (which can also be seen online ) I said that while adjudicating on the validity of economic regulatory measures by the legislature or executive the Courts should ordinarily defer to the opinion of the legislature or executive (because those measures are generally taken after consulting, and on the advice of, experts), but the Courts should be activist in defending the civil liberties of citizens. You will find a detailed discussion on the subject in that judgment.
I regret to say that for quite some time your Supreme Court has not maintained the self restraint expected of superior Courts. Courts should avoid entering the political thicket, but your Supreme Court appears bent on doing just the contrary. Hence it needed a hard knock on its head to bring it to its senses, and that is precisely what I have endeavoured to do.
If there is any other question or clarification please do not hesitate in putting it to me.
The letter referred to by Justice Katju. Written by Rizwan Ahmed.
I am sorry I could not reply to your second letter yet. It was just a little busy with a sudden load of work. I will definitely follow up on everything tomorrow.
The thing with Lawyers in Pakistan that you must appreciate is that there are two kinds :-
i) The intellectual class and;
ii) The intellectually challenged class
Unfortunately it is the latter that is in majority here and these people seem to be some kind of “chief justice pakistan loyalists” so no matter whatever he does, these people support him.
However, the intellectual class (who also seem to be the more prominent of lawyers here) support your viewpoint. They think that the chief’s decision was wrong and he actually turned Gillani into some kind of a hero and the are going to be some grave reprecussions for this in the coming future.
Now coming to your article, I may not have to give it for publication because it has gained a lot of popularity any way, I am sure you can tell from the comments plus all my lawyer friends who I have interaction with have all read it and agree with you.
I personally took the last bit from it and made it my status on facebook.
I hope you are having a good time in California and if you ever plan to come to Lahore, do let me know and we’ll have a chat over lunch or coffee or something.