News
Wednesday, May 09, 2012
Executive may question a court decision, but can’t flout it: SCPM may face 5-year disqualification
* Detailed judgement says PM willfully and persistently defied a clear direction of court
* PM cannot shift blame or responsibility to his advisers for not giving him proper advice
By Hasnaat Malik
ISLAMABAD: The Supreme Court released on Tuesday the detailed verdict in contempt of court case against Prime Minister Yousaf Raza Gilani, which read that the premier had “willfully, deliberately and persistently defied a clear direction of the highest court of the country”. It raised the possibility that he could face a five-year disqualification from being elected to parliament or a provincial assembly.
The detailed judgement came hours after Gilani had left for the UK on an official visit, but it contained nothing new in the operative paragraphs. Justice Nasirul Mulk, who had headed the seven-member special bench, authored the 72-page judgement. It notes that the accused is the highest executive functionary of the state of Pakistan and has willfully defied a clear direction of the highest court of the country. “We are, therefore, fully satisfied that such clear and persistent defiance at such a high level constitutes contempt which is substantially detrimental to the administration of justice and tends not only to bring this court but also brings the judiciary of this country into ridicule.”
If orders or directions of the highest court of the country are defied by the highest executive of the country then others in the country may also feel tempted to follow the example leading to a collapse or paralysis of administration of justice besides creating an atmosphere wherein judicial authority and verdicts are laughed at and ridiculed, the verdict says. About the issue of immunity of the president, the court held that the counsel for the prime minister, Aitzaz Ahsan, did not invoke the provisions of Article 248 of the 1973 Constitution for the grant of immunity to the president of Pakistan, and clarified that such immunity can be invoked by the president himself and his arguments on immunity were based on the Customary International Law.
Regarding the international immunity of the president, the court held, “Since complete facts of the case in Switzerland are not before us, we are in no position to form a definite opinion about its status when the claim was withdrawn nor indeed are we competent to give our own findings on the case, even for the limited purpose of determining the question of immunity. It is the authorities or the courts in that country alone which can, in the light of the facts before it, examine the question of immunity. The immunity can, thus, be invoked before the relevant authorities in Switzerland and, going by the arguments of the learned counsel, if the same is indeed available, it may be granted to the president of Pakistan without invocation.”
The court noted that Aitzaz, in his written submissions brought on the record at the end of his oral arguments, had specifically adverted to the provisions of Section 18 of the Contempt of Court Ordinance and, thus, he was fully aware of the applicability and implications of the said legal provision vis-à-vis the case against him. But throughout his oral arguments and submissions Aitzaz had failed to utter even a single word on the subject.
The court noted that the prime minister’s argument that the letter cannot be written as long as Asif Ali Zardari remains the president of Pakistan, amounts to saying that the order of the court is non-implementable, as he believes that the same is not in accord with the constitution of Pakistan and the international law. It says the executive authority may question a court’s decision through the judicial process provided for in the constitution and the law but is not entitled to flout it, adding that the constitution makes it clear that interpretation of the law is the exclusive domain of the judiciary.
“The learned counsel submitted that since implementation of the judgement falls within territorial jurisdiction of the Islamabad High Court, that court alone was empowered to implement this court’s orders or directions. We, however, understand that the said provision does not, in any manner, ousts this court’s power to enforce its decisions, particularly in view of its wide powers under Article 190 of the constitution and under Article 204 to punish any person for disobeying the orders of the court,” the judgement read.
The court said even the case of Mian Muhammad Nawaz Sharif vs The State (ibid) does not further the case as Nawaz Sharif had to take a decision one way or the other on the advice that was tendered to him. The respondent had no option but to order the implementation of the court’s direction, particularly after the review of the federal government was dismissed. The verdict observes that the prime minister had never intended to comply with the orders of this court regardless of any advice, adding that he cannot shift the blame or the responsibility to his advisers for not giving him proper advice.
Courtesy www.dailytimes.com.pk