Lahore High Court (LHC) Chief Justice (CJ) Umar Ata Bandial on Wednesday said the court wanted to have its judgments in the dual offices case implemented, not to convict or disqualify anyone.
The CJ was heading a five-member full bench which was hearing a contempt of court petition against President Asif Ali Zardari.
The bench adjourned further hearing till Thursday (today) and asked the lawyers to come up with arguments regarding constitutional concepts of civil and criminal proceedings. The counsel was also asked to cite a case of civil nature wherein punishment had been awarded to a defendant.
Earlier, the bench accepted a request by an additional attorney general to allow the government’s lawyer to also argue on the issue of immunity after the petitioner’s arguments were completed.
Justice Nasir Saeed Sheikh, Justice Sheikh Najamul Hassan, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah were the other judges on the bench.
Justice Bandial asked the petitioner’s lawyers whether the court should get its judgments implemented or let them float in air. He asked what would go wrong if judgments were not obeyed.
The petitioner’s lawyer, Advocate AK Dogar, said that non-implementation of the court’s judgments would hurt many provisions of the Constitution and it would be akin to living in a country which had no legal system.
Dogar said that if contempt of court proceedings were initiated against the president, they would be civil and not criminal in nature and the immunity enjoyed by the president under Article 248(2) of the Constitution would not be an obstacle to such proceedings.
Citing the Supreme Court (SC) judgments in former prime minister Yousaf Raza Gillani’s case and other cases, Advocate Dogar argued that the instant case pertained to the use of Article 204 (Contempt of Court) of the Constitution.
He said by invoking Article 204, the court could punish any person who willfully disobeys a judgment of the court.
He said the apex court in its judgment against the Contempt of Court Law 2012 had declared that Article 248(1) of the Constitution did not grant immunity to public office holders from criminal proceedings. He said the SC also held that Article 248(1) was in violation of Article 25 (Equality of Citizens) of the Constitution. He said the SC did not address Clause 2 of Article 248 in the judgment as it was irrelevant in that case.
He asked how it was possible that Article 25 was applicable to Clause 1 of Article 248 and not to Clause 2. Article 25 must be applied to Article 248 as a whole, he added.
Justice Bandial said that government functionaries and public office holders had been given immunity to protect them from frivolous litigation, otherwise it would become impossible for them to perform their official responsibilities.
Dogar responded that the immunity granted to the president and others was in sheer violation of basic principles of Islam.
Justice Mansoor Ali Shah said that the people of the country would get the law of immunity abolished if they considered it against Islam. He also asked whether the people of Pakistan could change the Constitution if they wanted to do. Dogar answered in the negative and said people could do this only through a revolution.
He said immunity could not be extended to the illegal and unconstitutional acts of all public office holders. He said the president and others were bound to obey the law and the Constitution.
He argued that under Article 63 of the Constitution, the president could be declared disqualified for not obeying the court’s orders.
Justice Shah responded that Article 63 pertained to the disqualification of parliamentarians, not the president. He asked how the article was applicable to the president.
The lawyer said that under Article 41 the eligibility criteria for the President was the same as for a member of the National Assembly, therefore, the disqualification process would be the same.
Justice Shah said that the Constitution had provided a procedure for the removal of the president under Article 47. If the people think their president is not obeying the judgments of courts, they can demand his impeachment, the judge added.
Published in The Express Tribune, December 13th, 2012.
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