Prove immunity or face contempt

supreme court of pakistanISLAMABAD: The Supreme Court on Wednesday warned Aitzaz Ahsan that charges could be brought against the Prime Minister if he failed to convince the 17-member bench judgment on National Reconciliation Ordinance (NRO) is not implementable as the President has immunity under Article 248.

Justice Asif Saeed Khan Khosa, member of the seven-member bench hearing the preliminary arguments of contempt notice to Prime Minister Yousuf Raza Gilani, asked Barrister Aitzaz Ahsan “If you will be able to convince the court then the case will be discharged otherwise charges will be brought against your client. The purpose of the preliminary is to test the bona fide of your client.”Aitzaz Ahsan responded the Prime Minister’s stance is that he has reasonable basis to believe that complying para-178 of the NRO judgment was not presently possible as the President has immunity under Article 248.

Hence the contempt notice against PM should be discharged, he added.Justice Nasirul Mulk remarked that there would be no need for contempt proceedings if immunity was proved; adding the PM had said the decision not to write the letter to Swiss authorities was his own. He asked Aitzaz to first clarify position on Article 248 and then come to the issue of contempt notice to the PM.The court further pointed out to him that his argument is that the President has immunity under Article 248 therefore the letter could not be written to the Swiss authorities.

Aitzaz said the President is not the party in this case. He also said he was not canvassing whether his client violated the court orders or not, but his arguments are that the contempt notice was issued to the premier, which has penal consequence.Aitzaz stated he is not representing President or Prime Minister but is the lawyer of Constitution of Pakistan and wanted supremacy of the constitution. Justice Khosa said they would also not tolerate any violation of the Constitution, adding a 17-member bench had passed the judgment and they would not change it.

He further said no one wanted to sentence the Prime Minister but only wanted implementation of NRO judgment.Aitzaz contended he was not seeking revision of the judgment but asking for realisation and empathy on the legal grounds. The learned counsel said the law ministry had advised the PM that implementation of NRO judgment was not possible for the time being; as the President can’t be pushed into another country’s court, and the PM acted as bona fide.Justice Khosa remarked if the PM had reasonable basis to believe not to write the letter therefore the court should not have issued him contempt notice, then the same opinion would apply to 180 million people of Pakistan as after committing crimes they would also say that though they had acted against the law but their intention was not such.

The honourable judge asked why the PM took another opinion or appraised the court or sent the Presidential Reference that Articles 189, 190 and 248 speak differently regarding the matter. But no one has come to the court for clarification.Justice Khosa said for the last two years the court has been directing the government to implement the judgment. Therefore they don’t need to tell the court to show restraint, but he questioned the conduct of the government in this regard. He said the court was generous and has been showing grace.Aitzaz contended the court was not clear in its judgments as in the January 16 order six options were given but it was not clear to choose any option or all the options.

Justice Khosa said though they could have fired anyone or all the responsible persons for not implementing the judgment besides that they gave six options, which have not been chosen as yet. As no response of the Federation was received therefore ultimately the Prime Minister was issued contempt notice.Justice Athar Saeed said Attorney General Maulvi Anwar was asked on January 16, 2012 about the instructions on the options. But he categorically said till 2:00am he kept his phone on but no instructions were received.

Justice Nasirul Mulk said while in the order AGP was directed to communicate it to the President and the Prime Minister.Earlier, Aitzaz told the court that the PM was not fully aware of the content of review petition and it was not filed under his signature. He also stated the NRO judgment should be implemented through High Court, as the mechanism provided in the Article 187. Justice Athar Saeed said the issue of NRO judgment implementation is not related to one or two provinces, but the entire country and also abroad.The court inquired whether the law secretary had recovered or not? The attorney general informed the court the secretary was not well.The court had directed the learned counsel to complete their arguments by the first half of the proceedings and adjourned it till Thursday (today). – Nation