During the hearing of Gilani’s contempt case in the apex court, Justice Nasirul Mulk, heading a seven-member bench, remarked that the prime minister should have followed the court’s orders and then relied on the immunity clause.
Gilani’s lawyer Aitzaz Ahsan, however, maintained that the court’s order could not be followed till Asif Ali Zardari is the president.
The lawyer submitted before the court that he has a reasonable basis to believe that the compliance of paragraph 178 of the court’s judgment was not presently possible and the court should discharge the contempt notice against the prime minister.
He also presented a section of the Article 248 of the Constitution as a basis for not writing a letter to the Swiss authorities, with the suggestion to transfer the NRO case to Islamabad High Court for implementation.
“The Article 248 (1) partly provides immunity to the prime minister,” Ahsan argued.
The court observed that it could withdraw the contempt notice if the court’s NRO verdict which became the reason for the contempt case is implemented.
Ahsan contended that there was a reasonable basis due to which the prime minister did not implement the court order and said that the court order is non-implementable.
The prime minister has not committed any contempt of court by not ordering National Accountability Bureau (NAB) to reopen cases of Swiss accounts kept by Benazir Bhutto and President Asif Ali Zardari who enjoys immunity in the country, Ahsan reiterated.
It is also an international norm and we cannot throw our president into the foreign fire, he added.
“Gilani was advised by his law secretary to take this step. The prime minister himself is a layman and he can’t read the detailed verdict issued by the court in NRO implementation case,” Ahsan said.
Justice Mulk remarked that earlier the prime minister had said in the court that it was his own decision and no one had advised him and had cited the Article 248 of the Constitution as a reason for not writing the letter. Aitzaz replied that the premier appeared before court to show respect but he was not a practicing lawyer. “I am his spokesperson,” he said.
During the hearing, Ahsan also said that the court could question the presidential immunity but he will not argue on it in this case; however, Justice Mulk said that the contempt notice is associated with the immunity “so there would be no need for carrying on with the contempt case if the government proves immunity for the president”.
Aitzaz replied that it is not mandatory to satisfy the court regarding the Article 248 during the preliminary hearing as the president was not under discussion currently.
“If you can convince us, then we will withdraw our notice; otherwise, we will frame charges against the prime minister,” the court observed, adding that Articles 189 and 190 of the Constitution compelled all to obey the court orders.
The court also inquired about the law secretary, who was supposed to provide important documents to the court. Attorney General Maulvi Anwar ul Haq told the court that he will inform the court about secretary’s whereabouts later. However, he endorsed Ahsan’s stance that the required documents have already been submitted before the bench.
The court adjourned the hearing till February 2 (tomorrow) and ordered Ahsan to conclude his arguments by 11am tomorrow.
Court's NRO verdict 99% implemented: Kaira
Federal Information Secretary Qamar Zaman Kaira, talking to the media outside the Supreme Court, said that 99% of the court's NRO verdict has been implemented. "We are bowing down before the court."
The minister also quoted Aitzaz Ahsan and said that the lawyer emphasised during the hearing that he was upholding the Constitution of the country.
"Aitzaz Ahsan repeatedly said in the court that he was defending the Constitution of the country, and not specifically Prime Minister Gilani," he said.
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@Bored: Thanks for clearing things up for the belligerent legal experts that have suddenly spawned up all over blogoshpere. Its a simple enough clause, understandable with even a basic comprehension of English, and it is quite amusing at the various interpretations being put up by these home grown legal 'experts' on this article. May be you could put up the Punjabi translation of the clause to facilitate easier comprehension for our friends here.
At long last they have accepted in court that the account in switzerland belong to benazir and zardari,now the important question is whether zardari enjoys the immunity for the acts when he was not president. I am sure our forfathers who were authers of the constituation never intended to provide immunity to the president for looting of national assest. This act took place when he was an ordinary person. He should have ammunity for the acts he performs in his capacity as president and only as president. The president should allow the letter to be written to do justice to the high office he holds,but somehow I doubt he would do this.
@DevilHunterX: That's the point. You have to go by the rules. If you find discrepancy, you don't try to find ways to go around them or distort them. You have to change them and the right forum is the parliament not the court.
Let us amend the constitution and remove the immunity clause once and for all.
Good honest person do not need it anyway. Only corrupt people need to hide behind it.
And we all know the current President is not corrupt, so he has no need of immunity. I am sure the PPP would agree to that. Right?
What interpretation are we talking about? It is written very clearly in the constitution. But here we are talking about Pakistanis, who find ways and interpretations even in religion... Constitution is nothing compared to that..... With that said, the superior judiciary should not disfigure the constitution beyond recognition through interpretations.
@Ali.Mir:
Please read the constitution carefully.
*248. Protection to President, Governor, Minister, etc. (1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not he answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.
(2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office.
(3) No process for the arrest or imprisonment of the President or a Governor shall issue from any court during his term of office.
@Sehr: The Supreme Court knows very well that the President has immunity. They are insisting that the President claim immunity so that they will have a pretext to pass a ruling on whether or not he has immunity. They are being over smart and trying to trap him.
With regard to those naive enough to think the President has anything to do with PIA, please understand that an airline with 19,000 employees and only 29 aircraft can NEVER be profitable. PIA became this way over the last 30 years. Everyone is equally responsible for it, including PIA's own staff. They dont have enough planes to fly every route they would like, and want to strike over code sharing because the staff wouldnt be able to have their 3-4 days a week in NY, etc. Y'all need to grow up.
@saif M: Constitution is made or amended by the parliament and interpreted by the court. Liking or disliking of commoners does not matter. The constitution makes a basic assumption that those rising to the level of President, PM, governors will at least conform to moral,ethical,financial discipline besides being " Ameem ". The law makers could not visualize that people with dubious characters will get to such positions
In the Mumlekhat e Khuda Dad there is no one above the law. What immunity are we talking about? The Prime Minister is in contempt and the President needs to face the money laundering charges. Why should peope of Pakistan be made to suffer?
@saif M: It is for the Supreme Court to provide the interpretation of the constitution. When the Supreme Court Ordered the Government to write letter to Swiss Government, it automatically implied that in the Court's judgement Tthe President did not enjoy any immunity.
And this is the same Aitzaz who fought for the independence of the judiciary and swore that he would never come in front of any of the same judges for any petition?
@saif M: Great, another non-lawyer attempting to interpret the constitution. Study (and pass) the law degree, become a SC judge and then express a comment please.
@saif M: The Supreme Court interprets the Pakistan Constitution, not the Parliament and certainly not you.
It's high time a stand is taken and justice done even though the heavens may fall.
I agree with saif M
The learned Judges need to recite their Oath of Office as given in the Constitution of the Islamic Republic Of Paistan,and also read thhe Code of Conduct prescribed For the Judges of the Supreme and High Courts before assuming their seats as Judges every day they sit as Judges of their respective Courts.
@Sehr.Siddiqui et. al.
If you don't like the immunity clause, change the constitution. Until then, the constitution rules, not yours or the anyone else's sentiments.
This is getting farcical now, sort of like putting the cart before the horse. Why doesn't the Court follow the Constitution first and then issue its orders.
Never thought I would live to see this day, the President has actually changed the consitution of the Islamic Republic of Pakistan so he cannot be prosecuted. If we are still allowing him to be in power, we deserve the treatment we are getting ie. no gas, no power, no railways, no PIA, treasonous policies etc.
ahsan sb please fight for increase price of petroleum, and for fundamental rights of people of pakistan but dont fight who are creating problem for people
Our friend Aitezaz in now talking like Babar Awan.. saying that PM could not write letter because President enjoyed immunity. This is another contempt because you are now saying that Supreme Court did not that it was passing an order which was against the constitution. Secondly, you will please appreciate that no law can be passed in Islamic Republic of Pakistan which is repugnant to Islamic tenants. Immunity to any person is certainly against the cardinal principles of Islam. Article 248 is therefore likely to be declared against Islam as void and of no consequence.I feel sorry for you AA.
Clearly the President does not enjoy immunity for acts/things done prior to assuming office of the President. What politicians are missing out is the difference between acts Jure imperii and acts jure gestionis The immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private act or acts jure gestionis