Court, Aitzaz wrestle over what comes first: Letter or immunity?

Published: February 2, 2012
SC says it will drop charges if immunity proven. PHOTO: EXPRESS/FILE

SC says it will drop charges if immunity proven. PHOTO: EXPRESS/FILE

ISLAMABAD: What comes first: Writing the letter to Swiss authorities or invoking presidential immunity?

Aitzaz Ahsan, the premier’s counsel, insisted on Wednesday that Prime Minister Yousaf Raza Gilani could not follow the court’s orders until President Zardari was in office, given his immunity under the Constitution.

The court, however, insisted that the premier should have written the letter first, and then invoked the question of immunity.

Both sides, however, skirted around presidential immunity, but were reluctant to raise the question themselves.

Order ‘non-implementable’

During the hearing of Gilani’s contempt case in the apex court, Aitzaz argued that there was a ‘reasonable basis’ due to which the prime minister did not implement the court order, adding that the court order is non-implementable.

The prime minister has not committed any contempt of court by not ordering the National Accountability Bureau (NAB) to reopen Swiss graft cases against President Zardari, who enjoys immunity in the country, Aitzaz reiterated. It is also an international norm and Pakistan cannot throw its president into the foreign fire, he added.

Aitzaz’s additional argument on this issue was also key.

“Gilani was advised by his law secretary to take this step. The prime minister himself is a layman and he cannot read the detailed verdict issued by the court in NRO implementation case,” Aitzaz said.

Justice Mulk, heading a seven-member bench, 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 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.

He also presented a section of Article 248 of the Constitution as a basis for not writing a letter to the Swiss authorities.

“Article 248 (1) partly provides immunity to the prime minister,” Aitzaz argued. He also suggested that the NRO case is transferred to Islamabad High Court for implementation.

The court observed that it could withdraw the contempt notice if the NRO verdict, which became the reason for the contempt case, is implemented.

Immunity is a shield, not sword

Aitzaz also said that the court could question presidential immunity but he will not argue on it in this case. “Article 248 (2) is a shield rather than a sword,” Aitzaz said, referring to the clause on immunity for an incumbent during his stay in office.

Justice Mulk, however, 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 Article 248 during the preliminary hearing since the president was not under discussion.

“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 Anwarul Haq said that he will apprise the court about the secretary’s whereabouts later. However, he endorsed Aitzaz’s stance that the required documents have already been submitted before the bench.

The court adjourned the hearing till Thursday (today) and ordered Aitzaz to conclude his arguments by then.

Published in The Express Tribune, February 2nd, 2012.

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Reader Comments (8)

  • Sehr.Siddiqui
    Feb 2, 2012 - 10:30AM

    I feel sorry for Aitezaz Ahsan for picking a wrong case which has cost him his reputation.
    His present stance that SC order of 17 member bench that is not implmentable is yet another contempt now on his part. He is saying that these 17 learned lords did not know that they are passing an absurd order. Sorry Aitezaz Bhai, you are caught on wrong foot this time.


  • ak sheikh
    Feb 2, 2012 - 1:06PM

    sorry, mr aitizaz ! You have spoiled your reputation.


  • Samina Noman
    Feb 2, 2012 - 5:19PM

    its not just Gilani more loyal to his party then the state but it turns out Aitezaz is not far behind….depressing.


  • Malik Liaquat Hussain
    Feb 2, 2012 - 5:24PM

    Mr. Aitzaz this time no respect you are supporting those people who have looted millions of rupees of this poor nation.


  • Afaaq
    Feb 2, 2012 - 5:44PM

    Aitzaz Ahsan might show off to be an angel, but reportedly he takes millions to take a case. He was not forced to take this upon himself and could have respectfully declined. We are often judged by the choices we make. After all what more can you judge someone from? Sad to see someone who was championing against Musharaff that even our Prophets weren’t immune or above the law. Is Zardari even worth a atoms worth in comparison? Clearly he is playing to the people who are paying him money as he no longer resembles a person who would stand against a principle.


  • sunny
    Feb 3, 2012 - 7:28AM

    Ahtaza Ahsan should advice his client (PM) to atonce write the letter to the Swiss authority so that the one issue of not writing the letter may be defused. I wonder why PM is reluctant to write letter.


  • Leftist Pakistani
    Feb 4, 2012 - 7:35PM

    Court should deliver Justice and Ahtazaz should always be honoured for his struggle to restoration of Judiciary and Democracy.

    Its a catch 22 restoration of Judiciary was a strong case and this immunity or letter case is a weak case , both cases are complete ends and are in opposite direction.

    My interest is why Aitzaz choose to fight for this case which might be legally different but morally weak as law respects morality.

    Had there been Bhutto herself or himself Ahtzaz would have been in a strong position, unfortunately its corrupt team, no Bhutto and weak grounds.

    Good Luck!


  • Paki Bhai
    Feb 5, 2012 - 5:10PM

    Aitizaz is doing all for only Senate’s Seat…The Game is Over…lol, Recommend

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