|PM Gilani says final No|
20 March 2012
ISLAMABAD – Prime Minister Yousuf Raza Gilani crossed the Rubicon on Monday by telling the Supreme Court that he will not write to the Swiss authorities for reopening cases against President Asif Ali Zardari.
The prime minister cast his die on the presidential immunity in his reply to the apex court in the contempt of court case, initiated against him for showing persistent defiance on the implementation of a court judgement annulling the National Reconciliation Ordinance (NRO). In doing so, he clearly exposed himself to a court decision that could sent him packing and even land him in jail.
The premier maintained that the court had prejudiced his rights to defend himself and expressed his resentment over court’s selection of the harshest of the six options laid down in an earlier order of the bench hearing the case. Gilani suggested that being a matter of grave public concern, the Supreme Court either refer the case to the parliament or consider its earlier option to leave the matter up to the judgment of the people.
On March 8, 2012 a seven-member bench headed by Justice Nasirul Mulk had directed Gilani to write a letter to the Swiss authorities for reopening graft cases against the NRO beneficiaries, including President Zardari, regardless of the advice of the secretaries. The court said, “The prime minister being head of the government and the chief executive of the country has to make the final decision about writing to the Swiss authorities for reopening the cases against the president.”
The PM in his 24-page written statement said: “If at all, however, the honourable court does propose to expose the incumbent president to prosecution before a western magistrate, I suggest that being a matter of grave public concern, the issue be sent to the parliament to take a decision; as was wisely done in the case of the 18th amendment, concerning articles relating to the appointment in higher judiciary and parliamentary oversight.”
“If nevertheless the honourable court seeks to enforce the order dated March 8, 2012, I reserve the right to expound my response thereto as that order was passed in suo moto case No. 4/2010, a lis in which my response is to be submitted separately.”
Gilani stated that president, being head of a sovereign state, had immunity in both criminal and civil jurisdictions of all other states under the international law. He said he believed that this immunity to be absolute and inviolable, even though it persisted only during the tenure of the office. He said this immunity was vested in the office, not in the person, and it represented the sovereignty and independence of a country as well as its sovereign equality with all other states, howsoever strong and powerful.
The PM believed that the sovereign state of Pakistan cannot, must not and should not offer its incumbent head of state, symbol of the federation (as per article 41 of the constitution), the most prominent component of parliament (article 50), and the supreme commander of its armed forces (article 243) for a criminal trial in the court of a foreign magistrate, during the term of his office.
Any such attempt on that part would be liable to serious consequences being in humiliation of the constitutional symbol of the sovereignty and independence of the State, which he is under oath to uphold, the PM wrote, adding that this was also a principle of absolute and inviolable “head of state immunity” recognised in the international law and must also be respected and upheld by all our institutions i.e. executive, legislature and judiciary.
PM Gilani stated that there were two high principles involved in this matter; One, that corruption should not be tolerated. This is salutary and important. The other principle protects the sovereignty of the state and its head. It requires that during his or her tenure, the head of a state be not prosecuted in a foreign court.
This immunity is limited to the office of head of state, and to the duration of office. Neither the court should have any difficulty, nor would the government have any impediment in prosecuting a person after he has vacated the office of president.
He further submitted that nations go to any length, even to war, to protect and recover even their ordinary citizens accused of grievous crime, from foreign processes and jurisdictions. They do not ever abandon them. Consider the feverish anxiety of western developed nations to retrieve and fly out their citizens faced with local indictments in Afghanistan and Pakistan in recent times. “How then can the state of Pakistan surrender its incumbent president for trial before an investigating magistrate in another jurisdiction?”
The prime minister said the apex court has several options and itself listed six options in its order on January 10, 2012. But he failed to understand why the ‘most coercive option’ has been selected by the court and for what reason. No justification appears to have been provided for selecting this option.
“The ultimate judges of my fate and reputation will still be the people of Pakistan who are referred to in the sixth option… As I submit to this court so will I also, in the manner expressed by the honourable court in the sixth option, surrender to the judgment of the people of Pakistan at the appropriate time according to the constitution.”
People are and must remain the highest worldly sovereign in this country. They are the judges of the last resort in this world. That will be the best course of action and also be according to the sixth option formulated by the honourable court itself.
In the last hearing the bench had told Aitzaz, PM Gilani’s counsel, that he could submit a written reply on behalf of his client or apprise the Registrar Office if the accused contemnor (PM) wanted to appear in person. The bench made it clear that in any case the hearing would be resumed on March 21.
The PM claimed in his reply that he trusts the SC, but expressed reservations on the bench. Gilani stated that he was wrongly convicted by courts for eight and ten years earlier too, but that he was as innocent then as he is today.
The prime minister said; “Without waiving my inalienable fundamental right under article 10A, I go to the merits only to show that I have done no wrong, nor I intend or seek to do a wrong.” He said that in view of article 10A the honourable judges who decided to initiate the prosecution, especially those who passed the pre-trial order dated January 10, 2012 casting serious aspersions against me, should graciously avoid sitting in trial and judgment.
“With all due respect, I submit that this Hon’ble Court must confine and consider the ‘charge’ as framed and the evidence produced by the prosecution to prove it.” He submitted that the prosecution’s own documents prove that he was not made aware personally of the orders of this honourable court, post September 23, 2010 even at the instance of the apex court, until January 2012. Hence, the reference to the “specific orders and warnings given from time to time since March 2010”, in the order dated March 8, 2012 in suo moto case No. 4/2010 (and not in the contempt matter which is Criminal Original (No. 6/2012), is not to any order addressed personally to me.
Gilani stated that the federal government does not comprise of him (PM) alone. It is as defined in article 90 of the constitution run through the agency of an entire host of officials and civil servants engaged in the process envisaged by article 99. They pass hundreds of orders, and communicate decisions on a daily basis to the citizens. That is how the government is run.
“Knowledge of the officials is never equated with knowledge of the prime minister (see Prime Minister Mr Manmohan Singh’s case, supra).” The first order that was both specifically and individually addressed to him (Gilani) as well as communicated to his office by the honourable court, was the order dated January 16, 2012. It required him to appear before it on January 19, 2012.
The PM stated that he acted on advice submitted to him by the law division and law ministry. This was the only prudent way to act, particularly in view of this apex court’s earlier precedents. That he thus acted expressly in accordance with law and practice of the government and the rules of business in accepting the advice of the law department. According to the practice and rules of business, the advice of law ministry is always given preference. Indeed, matters concerning all ministries and divisions are referred to the law division whose opinion is given primacy, he added.
The advice referred to interpretation of the effect of a long and detailed judgment of the apex court, in the complete context of which Para.178 had to be understood. The advice relied on the view not just of the incumbent law minister and law secretary, but also of the former law secretary and a former learned attorney general, both opining that the proceedings in Switzerland have been terminated on merits.
“Despite the above substantial elements, I directed the law secretary and the learned attorney general to apprise the honourable court of the position of the federal government. As a matter of fact by passing a de novo order on March 8, 2012 directing me to issue the letter the honourable bench recognised that this order was necessary because there was no previously binding obligation upon me to do so. This alone is an admission of the fact that I have committed no wrong so far and this alone is sufficient to exonerate me of the charge framed on February 13, 2012.”
The PM prayed the apex court ‘to discharge the contempt notice and to recall its ex parte order of March 8, 2012 in suo moto case. The Supreme Court will carry out its proceedings on March 21.
Earlier on Monday, Aitzaz Ahsen had said that it was not necessary that court’s verdict against Gilani would result in the premier’s disqualification. Aitzaz said that Supreme Court should not take any decision on March 21 without hearing him.
Moreover, he also said that a sentence of less than two years could not disqualify the prime minister. Aitzaz added that following the constitution of Pakistan does not indicate that they are at odds with the judiciary.
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