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.
