Wednesday, 18 January 2012
The Supreme Court of Pakistan has issued a notice to the Prime Minister of Pakistan asking him to show-cause as to why contempt of court proceedings may not be initiated against him. (Contrary to what the media, both print and electronic, has been saying this does not amount to an initiation of contempt proceedings and the court cannot sentence the Prime Minister when he appears in response to the notice) This action has been taken on account of the ire expressed by the court on the 16th of January, when the Attorney General told the court that he had not received any instructions from any “of those concerned” as stated by the court in its order of January 10, 2012. Before dilating further it would be of benefit if the relevant paragraph of the order is quoted in full;
“6. The learned Attorney-General for Pakistan is hereby put on notice to address arguments before this Court on the next date of hearing, after obtaining instructions from those concerned, as to why any of the above mentioned options may not be exercised by us in these matters. It goes without saying that any person likely to be affected by exercise of the above mentioned options may appear before this Court on the next date of hearing and address this Court in the relevant regard so that he may not be able to complain in future that he had been condemned by this Court unheard. The learned Attorney-General for Pakistan is directed to inform all such persons mentioned above about the passage of this order and also about the next date of hearing.”
It seems to a bit odd that the highest court of the land is warning not anyone in particular but ‘those concerned’ and goes on to state that this warning is being issued so that “he may not be able to complain in future that he had been condemned by this Court unheard.” Such a warning is certainly strange if not unheard of.
On the 16th the Attorney General pleaded ‘no instructions’ and therefore the court exercised Option No. 2 as enunciated in its order of the 10th of January, 2012. It also went on to declare that the perceived inaction on the part of the Prime Minister in implementing its orders in the NRO case “reflects, at least prima facie, that he may not be an “honest” person on account of his not being honest to the oath of his office and seemingly he may not be an“ameen” due to his persistent betrayal of the trust reposed in him as a person responsible for preserving, protecting and defending the Constitution and also on account of allowing his personal political interest to influence his official conduct and decisions.”
The Supreme Court is of course hearing the now infamous National Reconciliation Ordinance (NRO) case which, to the credit of the ‘media cell’ set up by the Chief Justice, has hardly been out of the news-headlines since the day it was instituted. In this case the Supreme Court has shown efficiency which has sadly been lacking in other instances. The importance of the NRO case cannot be overemphasized. However one is amazed to see orders in this case being reserved and then announced within hours. And then the orders are not short orders but detailed ones covering several vital legal issues which take days to argue and contain references to cases from the US Supreme Court, Britain and even India. The cases quoted, only to read, would take more time than the time taken to announce these orders. One is tempted to ask: Do the judges come to court having already made up their minds and are the orders already drafted even before the hearing begins?
It seems to have escaped many of our ‘expert’ analysts that an important aspect of the case has not been addressed by the court at all until now; a detailed interpretation of Article 248 of the Constitution and its impact. This seems to have been acknowledged by the court itself in its order of the 10th of January 2012 when it puts out Option No. 4 and says;
“Option No. 4: Although in the present proceedings nobody has so far raised the issue pertaining to the protections contemplated by Article 248 of the Constitution yet if anybody likely to be affected by exercise of these options by this Court wishes to be heard on that question then an opportunity may be afforded to him in that respect before exercise of any of these options.”
Here again, for some strange reason, the court is not addressing anyone in particular but ‘anybody’ who claims protection of Article 248 and is likely to be affected by the decision of the Court even though it is quite apparent whom the Supreme Court is referring to. It is important to note that the Supreme Court itself admits that ‘nobody has so far raised the issue pertaining to the protections contemplated by Article 248”.
Article 248 (2) which needs to be interpreted reads as under;
“248 (2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term in office.”
It is being suggested by some that Article 248 is presumed to have been considered by the Court as it has not been said that the Presidential immunity extends to the present case. Others are suggesting that if the President is seeking immunity he must appear before the Court and claim it as such and the Court would not by itself grant him immunity.
The fact that the Supreme Court has not addressed the question of immunity in detail has been acknowledged by the Court itself as stated above. The Supreme Court is the final court (at least in this mortal world of ours) and is expected to decide cases not only in the present time frame but for the future too. It is therefore bound to take into consideration the entire gamut of law even if a point has not been pleaded before it. There have been occasions where the Court has decided a point of law in such a way that it resulted in an injustice to the litigant before it but to give another interpretation to the law would have lead to injustice in the future. In the NRO case the Supreme Court should have taken up the immunity granted to the President both under our Constitution and international law and given a decision one way or the other. To say that anyone claiming immunity should come and ask for it only shows that the court has made it a matter of its ego even though there is a presumption that immunity exists and the onus to prove otherwise is on the one claiming the contrary. Immunity granted to the President under Article 248 of the Constitution is not unique to our Constitution. Similar provisions exist in many other countries and there have also been several cases under International law. The Swiss authorities have made it obvious that they feel that the President enjoys immunity under International law also needs also to be taken into consideration.
One only hopes that saner counsel would prevail and the Supreme Court would exercise restraint and not become a vehicle for derailing democracy for which the people of Pakistan have shed their blood.