The Lahore High Court on Wednesday asked the Federation’s counsel to present arguments on the constitutional immunity enjoyed by the president on November 21.
A full bench of the court was hearing a contempt of court petition against President Asif Ali Zardari for not implementing the LHC judgment in a case challenging the two offices held by him.
Wasim Sajjad, the federation’s counsel, challenged the maintainability of the petition. He said filing a contempt petition was not the appropriate way to seek a judicial order against the president.
He told the court that while the president was not above the law, he was only answerable to the president.
He said the president had not been issued an order by the court and the LHC judgment on May 12, 2011, in the main petition against the two offices held by the president had only mentioned an “expectation”.
Chief Justice (CJ) Umar Ata Bandial said a period of one and a half years had lapsed but the order had not been complied with so far.
Advocate Sajjad said the court had not issued a direct order to the president he was not bound to fulfill the court’s “expectation.”
Justice Bandial asked the counsel, “Do you want us to direct the president like an ordinary functionary of the government?”
He said the court had exercised restraint and shown courtesy to the office of the president but had issued a clear declaration against political activities at the presidency. Bandial asked the counsel, “Should the court directly ask the President to shun his political office?”
Justice Ahsan asked the counsel, “How should the court proceed if its expectations are not fulfilled?”
Advocate Sajjad said the court must issue a direct order with any declaration. He said the president was not holding any office prohibited under Article 43 of the Constitution since his political office was not a profitable one.
He also said the president was not a constitutional expert and that his understanding of the judgment could vary from the courts.
He said President Zardari had neither violated any law nor misused his office. He said Article 242 (2) of the Constitution prohibited any criminal proceedings against the president while he was in his office.
He also said the Lahore High Court’s territorial jurisdiction prevented it from passing any restraining order to the presidency, which fell in the jurisdiction of the Islamabad High Court.
CJ Bandial rejected this argument and observed that the president was not confined to the presidency. “Being a symbol of the state, he is everywhere in the country,” he said.
Justice Mansoor Ali Shah said the counsel’s arguments appeared to be circular reasoning.
The bench adjourned the hearing till November 21.
Published in The Express Tribune, November 8th, 2012.
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Ok apparently this matter is decided can share a view from a lawyer friend which contradicts my last post
"If there was any ambiguity left about the president’s partisan political role, it has now been laid to rest by the Supreme Court in the Asghar Khan case. It has held that (i) the president of Pakistan is in “service of Pakistan” as his office is not excluded from the relevant definition under Article 260 of the constitution; (ii) the president by implication doesn’t have Article 17’s freedom of association rights, just like judges, bureaucrats and army officers etc; and (iii) a president who indulges in partisan political activity violates his oath pursuant to Article 42 whereby he has sworn not to allow his personal interest to influence his official conduct.
One can disagree with such a construction of the constitution. But it is now law. And the president’s political role is even more problematic during election time. Our constitution prescribes a neutral caretaker setup to administer elections. As the president is deemed to be non-partisan, the constitution doesn’t require him to resign prior to elections. Won’t his continuing involvement with electioneering at state expense afford undue advantage to the PPP and distort the level-playing field for competing parties? Won’t his partisan political activities undermine the Election Commission’s solemn duty under Article 218 to “ensure that elections are conducted honestly, justly, fairly and in accordance with law”?
@DevilHunterX:
If he is out of office good cheer but it should be done through rule of law
The oaths of the prime minister and the federal ministers, are similarly worded to those of the president can it be argued that his oath is no different from that of other holders of constitutional offices. The question is, is it good practise, or the constituition which requires that the president not to practise politics. Surely the constituition and the oath should be crystal clear in this regard. Question is , is there clarity or do our lordships have to bring this clarity.
At a full court session of the Supreme Court last week the CJ of the Supreme Court stated that every institution has to stay in its constitutional domain, however the CJ stated that the Judiciary has the responsibility to , quote from ET news item following "Although no one institution has the capacity to provide good governance single-handedly, yet the institution of the judiciary, due to its credibility and institutional mandate, can inspire all others to do their duties in a transparent manner,” I hope CJ Bandial is clear regarding " credibility and institutional mandate" referred to above. Because as a non lawyer I am not clear where the CJ has taken this from. If " dual office" is only a matter of good practice, then I am afraid equanimity demands that the office of the President takes cognisance of it and/ or parliament' itself. If they don't history will judge them as will the electorate. Our "judiciary and the legal profession from which it emanates,should be committed exclusively to “values of legality” rather than to nurturing populist aspirations?" Source article in ET titled "Ever Elusive Rule of Law".
Some background material http://tribune.com.pk/story/465102/the-ever-elusive-rule-of-law/
http://tribune.com.pk/story/466559/full-court-meeting-cjp-asserts-judiciarys-cross-cutting-jurisdiction/
He will be out of the office VERY soon.