ISLAMABAD:
Prime Minister Yousaf Raza Gilani arrived at the Supreme Court smiling and waving to the television cameras outside, amid a heavy security presence which included helicopters.
But perhaps it wasn’t just the police protection that gave the premier a sense of security and comfort. After all, he was appearing before the court with Barrister Aitzaz Ahsan by his side.
And that security was not misplaced.
Aitzaz, a well-respected practitioner and held in high regard for his role in the 2009 lawyers’ movement, sparred with the seven-judge bench over the central issue of President Asif Ali Zardari’s immunity. The lawyer held them off, with neither conceding an inch, before proceedings were adjourned until February 1.
“In the Constitution, there is complete immunity for the president,” was Gilani’s explanation to the court for not writing to Swiss officials to restore graft cases against President Zardari in line with the NRO verdict.
The PM’s voice was confident and respectful. Across the bench, Justice Asif Saeed Khosa was pleased to see him, terming Gilani’s appearance as his submission to the majesty of law.
“I have come today to show my respect to this court,” Gilani said. “It will not give a good message to proceed against a president who is elected by a two-thirds majority … There is complete immunity for head of states everywhere.”
According to the judges, the central legal issue is Article 248 of the Constitution, which ostensibly provides immunity to the president from money-laundering cases abroad. Justice Sirmed Jalal Osmani put this issue to Ahsan, asking: “How do you link the writing of letter to immunity?”
In response, Ahsan said he would like to avoid the question of immunity, for he was confining his submissions to proving the PM’s innocence.
The PM, Ahsan argued, decided not to write the letter on the advice of the ministry for law, justice and parliamentary affairs. He added he would show the court that the NRO judgment could not be implemented because of the constitutional bar on initiating criminal proceedings against the president.
Holding a number of stapled court orders, Justice Khosa observed that the government had delayed implementation for two years – but only now had cited immunity as the reason.
Ahsan was nimble in response again, saying he was not raising the question of immunity because his argument related to the fact that the prime minister acted in good faith. The court, he argued, would have to determine if Gilani was guilty of wilful disobedience or not.
The judges, though, would not be swayed.
Justice Ejaz Afzal Khan said that Article 248 served as the basis of the PM’s disobedience. Justice Khosa observed that if the court found that the immunity existed, it could discharge the notice issued to the PM. “What would you do if the case is otherwise?” Justice Khosa asked.
Ahsan, ever tactful, said he would do what the Constitution required him to do.
Justice Osmani asked Aitzaz to raise the matter before the court if he thought the PM was justified in his belief in presidential immunity as the basis for not complying with the court order. Aitzaz hit this one straight back across the court. He said he would not raise the matter, but the court could do so on its own. “Why must the court raise the question of immunity?” Justice Osmani asked.
Aitzaz said that immunity for the president extended even outside Pakistan and no one could push “a person into the fire of foreign cases.” He cited the cases of Fidel Castro and Muammar Qaddafi as relevant guidelines.
The bench had an answer for Aitzaz’s tricks: Justice Osmani observed that if the counsel addressed the court on the question of immunity, then he would not have to demonstrate that the PM acted in a lawful manner.
Just as they the tide began to turn, Aitzaz tactfully called ‘time out’, asking the court to grant him a few days to chalk out his case. This was granted, but not before Justice Osmani declared that next time they would “grab the bull by its horns.”
Talking to reporters outside, Aitzaz said he would satisfy the court on the question of immunity because the judges had insisted upon it.
Among those also present were Foreign Minister Hina Rabbani Khar, ANP chief Asfandyar Wali Khan and PML-Q leader Chaudhry Shujaat Hussain.
After the hearing, members of various bar associations chanted slogans in support of the court.
(Read: The PM’s day)
(With additional input from agencies)
Published in The Express Tribune, January 20th, 2012.
COMMENTS (11)
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thanks you for making me grateful to you for showing my feelings, thanks tribune.
Regarding the executive and the judiciary, the Constitution of Pakistan (1973) has described a system of trichotomy of power; the constitution assigns the Supreme Court a unique responsibility of maintaining harmony and balance between the three pillars of the state, namely the legislature, the executive and the judiciary. The idea is to ensure that the state organs perform their respective functions within the stipulated limits and constraints. As a guardian of the constitution, the court is required to “preserve, protect and defend” this document. However, it is extremely sad that the current judiciary has failed to maintain harmony and balance between the pillars of state. On the other hand, our executive has gone all out to defend the system of trichotomy of power envisaged in the constitution of Pakistan. Even the chief executive of our country, the prime minister of Pakistan, is going to appear in the Supreme Court for the sake of defending democracy in Pakistan. Given that the NRO beneficiaries are 8,041, so far, only one person who is the president of Pakistan has been targeted and the remaining 8,040 people are exempted from accountability; is this not against national interests? As far as the president of Pakistan is concerned, the Swiss cases are no more issues, as Geneva’s former Attorney General Daniel Zappelli clarified: “The Swiss courts cannot reopen the cases against President Zardari due to the immunity he enjoys as president.”The furore must die down now because international law also provides immunity to President Zardari as the president of Pakistan. We also have the examples of France and Sudan regarding similar issues. The French court does not take action against Sarkozy for acts like his alleged involvement in the submarine scandal, allegedly done while he was not the president. Even the Sudanese president is not arrested anywhere around the world despite an International Criminal Court (ICC) warrant, due to his sovereign immunity, for violations he committed while in office. President Zardari is the lawfully elected president and is immune from any legal action under Article 248 of the constitution. The superior judiciary should follow the constitution of Pakistan because a clash between institutions cannot be handled by our country, especially at this time when there is a faltering economy, widespread poverty and the bloody war with militant groups.
with great respect to their lordships, I feel The Prime Minister read his opening statement, in supreme court, narrating his and Party's past leaderships achievements, though might be true, however not relevent to the contempt of court being faced by him, the order of court, in case delivered should have been,"irrelevant".
@Irtiza: I agree with you 100%. It is a stupid argument that Dr. Ahsan or Asma lost their reputation for supporting their clients. It is their job to do that, otherwise they are not doing justice to their clients and it would be malpractice. It is like when a terrorist is captured the doctors who treat him are called terrorists. The fact is all the anger and frustration of some is that the desired results are not obtained in quick time. Thanks and regards, Mirza
It is time to think about the rights of the litigants also. What about contempt of litigants? The courts need to earn respect. Contempt of court may be abused to satisfy a judge's ego,to pass favourable judgement,etc. This act needs to be abolished,and there should be a debate on this. A new act is needed - Protection of Litigants vis-a-vis Judges. Is a litigant bound to obey an illegal order of the judge? A global debate is needed on this issue.
According to Article 248, if president or governor kills some one, the proceeding will not be done, is it the right constitution. I would say this should be amended.
I simply don't understand the logic behind decidng that Aitzaz has lost his honour. He is a professional defending his client here and the perception made against the government is thanks to the electronic media which runs its on 'courts' in the form of their talk shows.
Wishful thinking of a handful of people went down the gutter today, and they are still not out of shock. Keep it up Aitzaz and Gillani. People of Pakistan stand by you.
The cases of contempt of court of PM Gilani and immunity of the President will come to conclusion with its logical end.
This not something new which is happening in Pakistan.
I am not tempted at all with all this is going on in Pakistan, as every where in the world there have cases have cases and head of the states have been trailed in various courts and then finally decisions are made by the courts.
The best thing is that these cases are not related to war crimes or crimes against humanity.
Still not true. He can still argue that in good faith he believed that Mr. President had immunity, which is true. Even if there is an element of doubt, he can't be sentenced.
Aitzaz wins, people of pakistan lose.Aitzaz changing color like chameleon. Aitzaz ruins his honor and dignity in the eyes of people of pakistan. He has come to rescue looter and plunderers.