Reaction: In a first, president’s immunity taken up to defend PM
“The defence team had no other ace left to try to save the prime minister, it seems,” SC advocate Rasheed A Razvi.
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.
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.