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


Posted on June 21, 2012 by beenasarwar

Justice Katju: “The Prime Minister holds office as long he has the confidence of Parliament, not confidence of the Supreme Court.”

Justice Markandey Katju, former Justice, Supreme Court of India and presently Chairman, Press Council of India just sent an article about the recent order of the Pakistan Supreme Court declaring that Mr. Gilani is not the Prime Minister. Justice Katju writes, “In my opinion the Pakistan Supreme Court has gone totally overboard, flouted all canons of Constitutional Jurisprudence, and is only playing to the galleries and not exercising judicial restraint. It is thereby upsetting the delicate balance of power in the Constitutional scheme.”

In his article, Justice Katju explains the concept of immunity and stresses the need for balance between the organs of the state. He writes that it may be published freely in any newspaper:

By Markandey Katju

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. (emphasis added)

I regret to say that the Pakistan Supreme Court, particularly its Chief Justice, has been showing utter lack of the 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 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 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.

Justice Markandey Katju
Former Judge, Supreme Court of India
Presently Chairman, Press Council of India

Read orginal Post here

The third gender’s right to dignity


PRABHA SRIDEVAN, The Hindu

They came beautifully dressed, some a tad brightly, but all beautifully and proudly, there was much chatter, and a lot of sisterhood. It was the public hearing of transgenders at Delhi. An excluded group must definitely feel cheered in a gathering, where the members of that group form the majority. True, the transgender experience is full of pain. It is a story of gross human rights violation, but today they had a voice, they had visibility.

The Pakistan Supreme Court recently ruled that those who do not consider themselves to be either male or female should be allowed to choose an alternative sex in their national identity cards. I thought of the times when I fill up forms, mindlessly marking (F), and what it must be like to have the pen faltering then, not knowing if I should mark the one or the other. I thought of the times when I enter the public restrooms for women, and if at all something hits me it is the sensory assault of those pit-places, and what it must be like to feel a sense of achievement that finally I gained my right to enter the restroom of my choice. A body which is built in one way, houses a mind which is crying to be something else. It is difficult to walk in those shoes, but that does not mean those shoes are not there.

Heart-rending

The stories are heart-rending. Every citizen has a right to life, the right to self-expression, under the Constitution. The right of gender expression is inherent in it, as much as the right of expression of sexuality. This is a facet of the right to life. The space of the third gender is not a space that is easy to inhabit for the ones who are there, and not easy to imagine for the ones who are not there.

Parents and siblings do not understand why this child cannot be like the others. Nor does the child know why, when he looks like his brothers, he wants to be like his sisters or the other way round. Acceptance is denied and the child faces exclusion even at home. In Sunil Babu Pant vs Nepal Govt and others , the Supreme Court of Nepal used the Yogyakarta Principles and held that sexual orientation is not “mental perversion” or “emotional and psychological disorder” and that the people of different gender identities are entitled to enjoy their rights without discrimination.

The discrimination against the third gender is embedded in our consciousness and is aggravated by ignorance and insensitivity. Even well-meaning persons are uncomfortable if they face someone who does not fit in the Procrustean beds of “the normal”. One might well ask, why a person who has a man’s body, can’t mark (M) in application forms, or queue up in the men’s restroom and be done with it. I will give you two answers. The first comes from a member of the community, “In public places, we are treated differently. If I am out and visit the women’s washroom they won’t like it and if I go to men’s washroom … you know it would be a different story. Where should I go?” The next answer is from Justice Albie Sachs‘s The Strange Alchemy of Law and Life : “There was an abysmal decision by our top court, the appeal Court, in the 1930s, when people of Indian origin objected to being excluded from post office counters where white people would queue. Three out of four judges could not see the problem; the applicants could be served just as well in the one queue as in the other. Only one judge, Gardiner said, ‘It touches on the dignity of people to be excluded, it’s not simply a question of functionality’.” The brown man will get the same postcards in the other counter. So why complain? No, it is about dignity, real dignity to all barring none. Justice Sachs speaks of the equality of the vineyard (grading up) or the equality of the graveyard (levelling down). The choice is entirely our people’s and of their representatives.

‘Invisible’

That day at the public hearing for “Access to Justice and Social Inclusion” Aradhana Johri (Additional Secretary, National AIDS Control Organization) narrated an incident at a parliamentary consultation. She said: “Avina [a transgender] got up to speak and asked the audience, “Do you see me?” and when they said yes, she said that though you ‘see’ me you don’t ‘see’ me. I am invisible, I am nowhere, we are the third gender.” Our country must be having the highest percentage of “invisible” people, people who do not matter, the disabled, the third gender, the old, the oppressed, the pavement dwellers, the list goes on. Perhaps that is why the forgotten ones vote in large numbers while for the others, it is a matter of option. For the invisible groups, it is important that they vote, because an election is the only time they count. That is why this community fought for the right to indicate their gender as “O” for ‘others’ in the electoral rolls, and got it in 2009.

Recently, the fight for equality of transgenders scored a remarkable victory. The Argentine Senate unanimously passed the Gender Identity Act, which has been described as the most progressive and liberal in the world. It recognises that a person’s subjectively felt and self-defined gender may or may not correspond with the gender assigned at birth. This is the right that the participants at the public hearing claimed, which is acknowledgment of their “human-ness”. If their gender identity is not accepted then even if they are elected, their election may be nullified. This has happened in our country.

The State of Tamil Nadu has a fair record of recognising the rights of the transgender community. But let us remember that this is not state largesse, this is the state performing its duty under the Constitution. One participant said in poignantly poetic words that we have day and night and the beauty of dusk and dawn too, the in-betweens, and asked why their worth cannot be recognised. Transgender persons walking alone are subjected to harassment, and so, in defence, they adopt a loud and aggressive behaviour. There are highly qualified, educated and articulate persons who cannot secure employment because of the difference. They pleaded, “Please do not drive us to sex-work. If we have no other option, what do we do?” They argue that if there can be reservation for the differently-abled, there must be for the differently-gendered too. One speaker said, “I too want to nurture my child.” There are no answers in a climate of non-acceptance.

The experience of the transgender community with the police is dignity-destroying. The case ofJayalakshmi v State of Tamil Nadu is an example. A young transgender named Pandian was interrogated by the police regarding a theft case. He was so abused and sexually harassed by the police personnel that he poured kerosene and set fire to himself. The Madras High Court ordered compensation. If the face of law which should protect the citizen turns brutal, to whom will the weak and vulnerable turn? Hear this voice from the community, “When [the police] saw my body they said that there is no hair on your body anywhere so you get yourself waxed or what do you do. First they began asking nicely then they told me that night time is the time for the police. After that I never went to the police.” How far can one go in reducing the dignity of another?

The young transgender drops out of school because of exclusion and one participant argued, “Provisions should be made that in whatever attire a child comes to school the right to education cannot be denied.” A safe childhood and access to education is their right. When state and society have no space for the different ones, they are doomed to be excluded. So wherever there is a form to be filled or there is a definition of “person” as male or female, this group goes invisible. The community wanted to know how the domestic violence against them can be addressed if the law recognises protection of women alone. They wanted an Indian protocol put in place for the sex change process.

All they want is to be recognised as persons and treated with dignity. I will end with their own words: “Today … we want to earn a decent livelihood, live with dignity.” In short, they assert their right under Article 21 of the Constitution.

(The writer is a former judge of the Madras High Court and Chairman of the Intellectual Property Appellate Board)

 

By recognising the rights of the transgender community, the state is not doling out largesse; it is only performing its duty under the Constitution

 

Warm memories of time in Pak jail


Justice Nasir Aslam Ahmed

Justice Nasir Aslam Ahmed

Anahita Mukherji, Times of India |

Within half an hour of the retreat ceremony at the Wagah-Attari junction,
the two gates on either side of a thin white line that forms the border
between India and Pakistan were re-opened once again at twilight on January
8. And 183 weary-eyed Indian prisoners released from Pakistan began
trickling into the country.

Of these, 179 were fisherfolk from Gujarat who had accidentally crossed the
invisible line in the sea that divides India from Pakistan. But as Sunday
Times sat down to listen to their stories, expecting tales of terror and
torture, what came out was both uplifting and heartwarming. Our prisoners
had actually come home with fond memories of their stay in Pakistan’s
prisons.

While a Karachi prison scarcely seems the place for Hindu-Muslim unity, the
fishermen spoke highly of the Pakistani inmates with whom they shared jail
space. The Pakistani convicts went out of their way to help the fishermen
adjust to life in prison. “We became one large family,” says Bharat Suda
Soma. “We were never discriminated against for being Hindu. Whenever we
needed something, like soap or buckets, the Pakistani prisoners would get
it for us.” Pakistani jailers, who gave the fishermen hope that they would
soon be out, came in for praise, too: “The jailers liked us as we were
well-behaved. They would let us go for walks in prison.”

Justice Nasir Aslam Zahid, retired Pakistan Supreme Court judge and current
chairman of the Pakistani government‘s Committee for Welfare of Prisoners,
says, “The Indian prisoners in our custody are well looked after. Someone
from our office visits them every day.” It was on Zahid’s mobile phone
that three minors released last week recall speaking to their families
while in prison. “Whenever I spoke to my mother, she would cry and ask me
when I would come home,” 16-year-old Kamlesh told this reporter after he
entered India.

The fishermen had spent between a year and 15 months in jail. Ram Singh
Shamat of Junagadh district was in prison for two years. He had no idea he
had crossed into Pakistani waters until he heard a shot fired in the air
before being captured. “I was very scared. I had no idea what was going to
happen,” he says.

Their joy at being released was, of course, tempered with grief for their
fellow fisherfolk left behind in prison. In a remarkable show of solidarity
with their brethren, the fishermen painstakingly drew up a list of 61 men –
with details of villages and talukas and dates on which they were arrested
– still in Pakistani jail. Each of the released fishermen has two
photocopies of this list which they hope to circulate amongst the media and
activists in a bid to get their friends free.

Jatin Desai, joint secretary of the Pakistan India People’s Forum for Peace
and Democracy, feels that fishermen should be released by sea with their
boats instead of the long route via land, from Karachi to the Wagah border
and then onwards from Amritsar to Gujarat.

While 276 Indian fishermen still remain in Pakistani prisons, 29 Pakistani
fishermen are in Indian jails. India released 121 fishermen last year.
Zahid feels there should be a bilateral committee of officials on board a
ship between the two countries, looking at cases of fishermen straying
across the border and settling the matter in the sea itself. Because no
amount of affection in a foreign jail can make up for lost time with loved
ones back home

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