To invoke or not to invoke is for now the question that legal wizards of the Pakistan Peoples Party (PPP) are vexed by most – as they contemplate whether National Assembly Speaker Dr Fehmida Mirza can shield the prime minister and his cabinet members from any criminal trial through article 248 (1) of the Constitution.
Opinions seem divided over the issue, mainly because there are doubts whether or not the article is even relevant in the wake of the Supreme Court’s conviction of Prime Minister Yousaf Raza Gilani in a contempt case.
The constitutional clause in question explicitly says the premier, members of federal and provincial cabinets and chief ministers are not answerable to any court for the exercise of powers and performance of functions of their respective offices.
PPP officials told The Express Tribune on Friday that Law Minister Farooq H Naek and some other lawyers, who were part of the prime minister’s defence team, argued that the speaker still has the right to overrule the court’s verdict based on her own interpretation of article 248 (1).
However, the prime minister’s chief defence counsel Barrister Chaudhry Aitzaz Ahsan does not subscribe to this view.
His argument is that the question of immunity for the prime minister could have been raised during the trial and it won’t be appropriate for the speaker to base her rejection of Gilani’s disqualification matter on the basis of article 248 (1).
Some PPP legal experts have been advising President Asif Ali Zardari at informal meetings since the conviction of Gilani that if the speaker rejects his disqualification matter and doesn’t send any reference to the Election Commission, it cannot be challenged in any court of law.
According to their interpretation, the rejection by the speaker on the basis of 248 (1) would close the chapter of the premier’s disqualification once and for all.
But Aitzaz is still unconvinced. His point of view is that the rejection by the speaker after the conviction would trigger another confrontation between the government and the judiciary, which might complicate the situation further.
He said the question of immunity for the premier might be raised once a larger bench starts hearing the appeal against Gilani’s conviction.
The government has the right to file the appeal till May 26. But opinion in the PPP is once again divided on whether they should go for this option or not.
According to Naek and his associates, the ambiguity in the verdict on the disqualification is the best bet for the speaker to interpret the matter in a way that suits Gilani.
And in case of appeal, they feared, the court might come up with a clear order on the premier’s disqualification. The PPP is likely to craft its final strategy early next week.
Constitutional experts such as Farough Nasim and Akram Sheikh believe that the speaker may not have the right to invoke article 248 (1). “She will be guilty of obstructing justice and may face contempt charges as well,” said Sheikh.
Published in The Express Tribune, May 12th, 2012.