or, Why CJP Choudhary is correct,and Katju,Hanif wrong,in the Islamic republic of Pakistan
In the matter of disqualification of Prime Minister of Pakistan Gilani, the Supreme Court of Pakistan (SCP) has been criticized by Justice Katju,retd judge of Indian Supreme Court & a public figure.
The SCP ordered Gilani to write a letter to swiss authorities to disclose Zardari’s accounts.The swiss purportedly had closed the investigation as well earlier.Gilani didn’t.
SCP held that president has no immunity in a civil matter,only criminal proceedings,and held that disclosure of swiss accounts/proceedings is a civil matter.Due to disobedience of the SCP order,Gilani was “convicted for contempt,with all consequences applicable”.
Thereafter the Speaker of the pak assembly held that the contempt conviction didn’t disqualify Gilani,there being no applicable law,and contempt not a criminal conviction.The SCP promptly reversed this ruling,bringing to bear an article of pakistani constitution to do with “being a good muslim”.
Justice Katju argued that SCP overstepped its bounds here – http://beenasarwar.wordpress.com/2012/06/21/the-pakistan-supreme-court-has-flouted-all-canons-of-constitutional-jurisprudence/
Mohammed Hanif,well known author,wrote an elegant piece at http://www.guardian.co.uk/commentisfree/2012/jun/22/yousuf-raza-gilani-chief-justice-pakistan
Howsoever,it must be firstly kept in mind that Pakistan is an ISLAMIC state.Justice Katju argues from the perspective of a SECULAR state.Mohammed Hanif’s imagination as a writer seems to extend to his visualizing Pakistan as a constitutionally SECULAR state as well.
In an ISLAMIC state,especially w.r.t Pakistan, the court holds the power of the Khalifa in the JUDICIAL sense, insofar that the constitution conditions actions on “being a good muslim” and the judiciary holds the authority to interpret WHO is a good Muslim.In this case,due to DISOBEDIENCE & conviction for CONTEMPT, it held that Gilani is NOT a good Muslim. In such a case,the matter being a public matter,conventions relating to Hisba are inapplicable.Judicial restraint is limited in an islamic state,and only circumscribed by interpretations of the Quran as applicable to that situation.
Pakistan is an islamic state in transition,trapped to an extent in its forms and procedures inherited,unquestioned from its colonial shared secular past with India.But that has been steadily unravelling since the 1970’s.Why did it take till the ’70’s? Because Ayub Khan,his predecessors as Military dictators,essentially preferred to ignore all of the riff-raff and details of the sort.They had little personal commitment to establishing an islamist state in fact,even if in theory,it was already one.For that reason,Pakistan enjoyed an image as a benign islamic majority country till the early 70’s.
You can’t wish away the fact that the court is a Supreme Court in an ISLAMIC state,nor that it is actually AUTHORIZED/EMPOWERED to interpret islamic actions or any action in an islamic light,in the public domain,and WHAT/WHO is a good muslim,should that question arise in any matter.
Now I would say,the court has also made some mistakes with respect to the NRO order.In fact,there is NO BASIC STRUCTURE in an islamic state other than the fact it is dedicated to ISLAM. Hence Keshavananda Bharti & ors, a landmark Indian Supreme Court Judgement of the 1970’s cited by Pakistani Supreme court, has little relevance to preserve institutions or tools of the Islamic state except in the MOST limited sense – Do the changes instituted PRESERVE/ADVANCE or DILUTE the fundamental nature of ISLAMISM in the ISLAMIC STATE OF PAKISTAN?
Viewed logically,the judicial powers in Pakistan are still evolving.But arguably,equipped with the fundamental power of determining whether any act or person is islamic,the SCP is well positioned to emerge as the principal power and arbitrator in Pakistan,a sort of Judicial Khalifa,without being in any sense “limited” in the same way as SECULAR states judicial institutions are.Where might this culminate? We don’t know yet,but as judgments evolve,it might end up having similar powers as the Chief Ayatollah of Iran,who is more powerful than the President of Iran in the Iranian constitutional structure.
None of this is new,but needs to be viewed in the proper perspective.ZA Bhutto with his befuddled notions of “Islamic Socialism” followed the founders of pakistan and their “objectives resolution” put in place the constitution of pakistan as an Islamic State.Today,his successors at PPP are the loudest in Pakistan in complaining of the consequences of what they themselves created & are in denial of.Poetic justice or what?