KARACHI:
Constitutional experts say that this is the first time that the prime minister’s defence team has used presidential immunity as an argument in the contempt of court case, but warned that it may be thrown out by the court.
In Supreme Court advocate Rasheed A Razvi’s view, the written reply formulated by Prime Minister Gilani’s defence team, led by prominent lawyer Aitzaz Ahsan, has played the card of presidential immunity in a final act of desperation.
“The defence team had no other ace left to try to save the prime minister, it seems,” he said.
Supreme Court advocate Kamal Azfar, who, too, was defending the prime minister earlier in a related case, confirmed that the immunity of the president was not mentioned in the case earlier and this was a first by the defence team. “We never raised the question of immunity,” he said.
Former judge of the Supreme Court Justice Wajihuddin Ahmed said the reason why the prime minister’s defense team had previously avoided the immunity issue was because they knew that, according to the Constitution of Pakistan, the president enjoyed immunity only within the boundaries of the country.
Out of the 84 detailed points mentioned in the prime minister’s 24-page written reply, at least three address the question of immunity.
In point number 46, the prime minister says that “as long as a person is a Head of a Sovereign State he has immunity in both criminal as well as civil jurisdictions of all other states under international law. I believe this immunity to be absolute and inviolable, even though it persists only during the tenure of office … I think it wrong to subject the constitutionally-elected incumbent President of Pakistan to the authority of a Magistrate in a foreign country. I think this subjection should be avoided.”
However, Justice Ahmed disputed this and said that in the Constitution of Pakistan, including Article 248, it is clear that only the courts of Pakistan can’t prosecute the president. “As far as international law is concerned, it is for the Swiss courts to decide.”
Again, in point number 79, the prime minister, while explaining he had not committed any contempt of court, says: “I also believe that the Sovereign State of Pakistan cannot, must not and should not offer its incumbent Head of State, Symbol of the Federation (Art. 41), the most prominent component of Parliament (Art. 50), and the Supreme Commander of its Armed Forces (Art. 243) for a criminal trial in the Court of a foreign Magistrate, during the term of his office.”
Also in point number 81, the stress is on the “tenure” of the head of state. “The other principle protects the sovereignty of the State and its Head. It requires that during his or her tenure, the Head of a State be not prosecuted in a foreign court. This immunity is limited to the office of Head of State, and to the duration of office.” Justice Ahmed again stressed that the tenure of the office of the head of state argument was valid only within the courts of the country.
Published in The Express Tribune, March 20th, 2012.
COMMENTS (22)
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We as Muslim have Quran and Sunnah as the only constitution. This is meaning of our Kalima La elah illah. There is no concept of immunity to anyone. We can not make Zardari a god. Aitazaz who used to say poems adal bina kuch nahi, now he is killing justice. There is no concept of so called peers and syeds... Gillani and his son are big thefts. we must file a case against Zardari on question of so called immunity. India has the same rule but they have never interpreted that clause as such. In parliamentary system President is only ceremonial and only his ceremonial orders. No one can think about protection of Zardari type crimes in India. Top Indian lawyer Roy has interprets as only ceremonial protection and not the corruption and thefts of President
@Billoo Bhaya: please think, why they are in so hurry,having knowledge that country is already passing through different crisis , political crisis,financial crisis,Balochistan has become a issue,internal unrest,power crisis etc,
in fact, a new crisis being created deliberately, I call it constitutional crisis that is not in accordance with the state's sovereignty.
I leave on you,please,tell me president has constitutional immunity or not,in case, have ,why they are crying before time.
please not, see a head,in fact, he has been winner and would be winner for the next tenor, this fact is not sustainable for them,they are putting hurdles in the way giving up all political ways.
they should wait until constitutional immunity stand remained. They want to finish crisis with creating other new crisis it is against the conventional wisdom.
Hunter behind the prime target, but he is still beyond their approach.
@Sultan Ahmed: "Nothing but the Truth, the whole truth so Help me God." That's the oath one takes when making submissions of evidence to the Court. Does your conscience state that Gilani and his counsel are stating the truth and abiding by the Constitution??? If it is so, than all the legal experts and Judges of the SC are novices.
Retired generals can be summoned.
@Mirza: Sacred angels are presiding over the court proceedings.
@Billoo Bhaya: Your approach on negative line.Before commenting,it is indispensable to read the relevant para of the constitution. President has absolute immunity. as for as defense counsel is concerned,he is playing his due role and trying save prime minister from injustice and honor of constitution unanimously passed by the elected representative of the people.
in any civilized country with a genuine democracy, the natural thing would have been the president offering a resignation, but in pakistan, no way and not with the ppp jiyalas who are blind otherwsie why would a sane person elect a thief as president? immunity is for heads of states, not thieves of states...
we all know that these are simple delaying tactics to further their governance. and message for the judiciary .........Justice Delayed is Justice Denied........
The first prime minister, who is ready to go to the last extent, loyal to party chief.
Prime Minister's view, take matter to the Parliament, is defensive not offensive.
we are going to add a new chapter in the history of Pakistan.
Name calling cannot deny the facts sighted. Looks like the arguments were right and hit the spot!
According to my considered opinion, court should wait the end of the presidential tenor, hasty act may take the nation to an other new political crisis.
@Billoo Bhaya: And you always talk negative in all your posts. I appreciate your classical English, but wish it had retified your "aperture' to 'focus' positively.
At least court has bring out the Gilani from hiding behind the bureaucratic summaries.Now he is at his own along with Aitzaz looking for political martyrdom like Janejo.
@Mirza: Don't you any originality??? You made the same statement in another story today!!! You are a real Indian TROLL. And I have noticed that you are always after the SC and its Judges and the Pakistani Security Services. You are the DARK SIDE..
what's the criteria for making it to the supreme court as a judge. Just curious.
It is indeed disheartening that both the present President and the past President do no have the guts to face the Courts. This the real post independence culture.
Is SC of Pakistan exposing all the coming head of Pakistan for prosecution in any foreign court? Great then the US, India and other European countries including Bangladesh can try Pakistani head of the state in their lowest courts! When according to the SC and these retired SC justices’ head of the state can be tried then they can easily and happily prosecute the generals and others for any crimes including but not limited to protecting terrorists. Great tradition initiated by the PCO SC.
PM's illustrious counsel has gone over to the Dark Side. Now Darth Vader (read Zardari) is his Master and the counsel has sold his soul to him. A Faustian bargain at its best. But the Force is with the SC and the ordinary people of this country. The Force and Truth will eventually prevail. Hurrah!!!