Immunity applies to criminal, not contempt cases: LHC

Justice Bandial observes that no one has immunity from contempt of court law.


Our Correspondent December 15, 2012

LAHORE:


The Lahore High Court pronounced on Thursday that no one has absolute immunity from the contempt of court law during their continued hearing of the contempt of court petition against President Asif Ali Zardari.


The full five-member bench, led by Chief Justice Umar Ata Bandial, included Justice Nasir Saeed Sheikh, Justice Sheikh Najamul Hassan, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah.

The bench is hearing a contempt of court petition against President Zardari for not relinquishing political office in view of the LHC’s earlier order.

Chief Justice Bandial remarked that while the president enjoys constitutional immunity in criminal cases, no one has absolute immunity from the contempt of court law.

At the outset, the petitioner’s counsel, AK Dogar, stated that access to justice was the fundamental right of every citizen and if the court orders were not implemented, that right would be violated.

“Under article 248(2) of the Constitution, the president was given immunity from criminal proceedings and all cases of criminal nature against him were suspended until the expiry of his term in office or his removal and resignation,” Justice Najamul Hassan remarked. He went on to ask why the contempt petition against President Zardari could not be deferred till completion of his term.

Responding to the court’s queries, Dogar said contempt of court was a constitutional crime under article 204 and no one, including the president, has immunity from it.

Azhar Siddique

He requested the court to issue the contempt notice to the president under section of 17 of the contempt of court law.

Azhar Siddique, another counsel for the petitioner, contended that article 248 of the Constitution does not have overriding effect over other clauses of the Constitution. Hence, the President cannot even claim immunity under clause 2 of article 248.

“Contempt of court and high treason are only constitutional crimes and both have their independent implications and effects,” Siddique maintained.

Justice Najam asked whether the Constitution explicitly states that there is no hurdle in the way of conducting contempt proceedings against the president.

Azhar replied that contempt law is unique because it cannot be labelled as criminal or civil in nature. It is called Sui Generis (of its own kind).

Citing a Supreme Court judgment, Azhar pointed out that the apex court in the Shahid Orakzai case had also differentiated contempt law from criminal law by setting the precedent that in a criminal case it was the duty of the prosecution to prove allegations against the accused whereas in a contempt case the accused has to prove his innocence.

Azhar also placed on record the copies of the National Assembly debate at time of the approval of the Constitution of 1973. He said that then law minister Abdul Hafeez Pirzada had stated that the office of the president was a ceremonial post and he was granted immunity under article 248 in order to run affairs smoothly, but no such immunity could be sought in a contempt of court case.

The hearing was adjourned until December 19th, after the petitioner’s counsels concluded their preliminary arguments.

Published in The Express Tribune, December 15th, 2012.

COMMENTS (1)

Raj - USA | 11 years ago | Reply

LHC is strange and unique. They equate Contempt of Court to High Treason !!!!!!!!

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