Supreme Court Judge Justice Nasirul Mulk observed on Wednesday that the prime minister would be charged for contempt of court if his counsel failed to satisfy the court that the president had immunity (from criminal prosecution) under Article 248 of the Constitution.
His remarks came during the hearing of a contempt case against the premier by a seven-member larger bench of the apex court headed by him.
The Supreme Court had issued the premier a show-cause notice to explain as to why contempt proceedings should not be initiated against him for non-implementation of the court’s earlier order on the NRO as well as his failure to write a letter to the Swiss government for reopening the cases against President Asif Ali Zardari.
Justice Nasirul Mulk asked the counsel to conclude his arguments by today (Thursday), adding there was no need for contempt proceedings if the counsel proved the matter of immunity before the court. He said the premier had told the court that he did not write the letter to the Swiss authorities as he believed that the president had immunity under Article 248 of the Constitution.
The counsel contended thatthe prime minister could not read the detailed verdict of the court thus he had to act on the advice of aides. “The law minister and secretary advised the prime minister,” he added.
Aitzaz Ahsan submitted that the President of Pakistan has immunity both in and outside the country. “My opinion was there is no issue in writing the letter,” Aitzaz said.
Justice Asif Khosa however asked the counsel as to whether the premier did not violate the court order by declining to write the said letter. “He acted on advice of aides, not on the orders of the court.” “Is this sincerity that your client doesn’t write letter?” he observed.
Aitzaz told the bench that different benches of the apex court had taken up the matter of implementation of court’s order on NRO however the prime minister was not held responsible for not abiding by the court order.
He contended that the case regarding implementation of NRO case should have gone to the high court. Justice Asif Saeed Khan Khosa reminded to Aitzaz that the prime minister had stated in Davos that he was ready to go to jail, but would not write the letter. “Is it not disobedience of the court order,” Justice Khosa asked.
He said the prime minister was acting on the advice of his subordinates, but was not ready to obey the court orders. Aitzaz replied that the matter of implementation of the court order should have been referred to the high court. He said there was no harm in writing the letter to Swiss authorities, but at the same time it did not warrant contempt of court, if not written.
Justice Nasirul Mulk observed that Article 204 of the Constitution empowered the apex court to take action against those who did not implement its orders. “You are saying that the implementation of the apex court order should have been ensured through the high court. Whether your client will not write the letter. Is it your bona fide intention,” Justice Khosa asked Aitzaz.
“17 judges have unanimously passed a crystal clear order on NRO. Do you want another order,” Justice Khosa asked Aitzaz, adding that the order could not be changed. Aitzaz stated that the action on the order, pertaining to writing a letter to Swiss authorities, was not possible currently. He said prime minister’s statement before the court on Jan 19, 2011 was informal. He said if prime minister had obtained advice, there was no harm, but if he did not, it did not warrant a crime. He said the order of writing a letter could not be implemented until the president was in his office.
The judge further asked the counsel that his client, the PM, was totally unaware of the court’s order regarding implementation on NRO adding that he was declaring his client as an ordinary person.
“PM was a seasoned parliamentarian and make legislation than how could you call him an ordinary person,” Justice Khosa asked Ahsan. Aitzaz Ahsan submitted that PM had immunity from the court proceedings in lieu of discharging his responsibilities.
Justice Asif Khosa however said that the court had held that personal matter could not be linked to the government responsibilities. Justice Nasirul Mulk observed that violating the court order would also be considered in the PM office responsibilities.
“The premier had not approached the court, telling that he was facing any difficulties under the law to write letter or he could send a reference to the court as well,” Justice Khosa said.Aitzaz contended that the apex court had not directed the high court to implement the NRO verdict as required under Article 187 of the Constitution.
Justice Nasirul Mulk however said that Article 187 does not mean that implementation was not only possible without high court. Ahsan replied that the role of high court as required in the Constitution was necessary for implementation.
“The apex court should have sent the matter to Islamabad High Court regarding implementation of the order for writing a letter to Swiss authorities,” Aitzaz contended. During the hearing Justice Athar Saeed inquired as to who would be responsible if Rules of Business were used wrongly. Aitzaz said no one was responsible for it as the prime minister also enjoyed immunity under Article 248 of the Constitution. “We don’t want to punish, but want implementation of the court orders,” Justice Khosa remarked.
Justice Athar Saeed reminded Aitzaz that the prime minister had been his student. He asked Aitzaz that if the prime minister was still a common man, then what he had taught him. Aitzaz said Jahangir Badr was also his student. “What you had been teaching him,” Justice Sarmad Jalal Osmany asked Aitzaz.
Aitzaz Ahsan replied that he had been teaching him ‘Rules of Business’. He told the court that judges’ remarks will be in the headlines, but there will be no reaction over them. “Should we not pose questions due to headlines,” Justice Khosa said. He said the court had not made any mind in the case, thus he suggested media to exercise restraint. “Why this case is discussed in TV talk shows, despite it being sub judice,” Justice Osmany said. The court adjourned the hearing till today (Thursday) and asked Aitzaz Ahsan to conclude his arguments the same day.
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