Would PM Gillani be convicted??
Finally the judiciary has driven the ruling Pakistan People’s Party to the arena of their choice and now the Prime Minister Syed Yusuf Raza Gilani is left with little choice but to take shield behind the Presidential Immunity and if he does not intend to save his skin for the sake of party leadership, even then the merits of Article 248 of the constitution would come under review and there are strong chances of revocation of Presidential Immunity.
Legal and constitutional experts saw little or no danger of conviction to Prime Minister Gilani and he could have easy escape in the shadow of Article 248 of the Constitution, which provides immunity to President of Pakistan against criminal proceedings till the time he is holding the office.
The Article 248 of the constitution reads:
“ 1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions:
Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federations or a Province.
(2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office.
(3) No process for the arrest or imprisonment of the President or a Governor shall issue from any Court during his term of office.
(4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of any thing done or not done by him in his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims.”
Previously, when the Prime Minsiter’s counsel Barrister Ch. Aitzaz Ahsan was giving arguments against the contempt of court notice served on his client the court had tried to drag him to argue on the merits of Article 248 but he tacitly avoided it, submitting before the court that he was restricted by his client to deal with the merits of the contempt notice only.
But now when even the intra-court appeal against the court decision to formally indict Prime Minister in the case was rejected and Monday (Feb. 13) was fixed as the date for framing charges in contempt of court case against Prime Minister Gilani, the Premier was left with no choice but to take shelter of the Article 248 to justify that he had not written letter to Swiss authorities out of constitutional compulsions and there was intension of defiance of apex court orders.
So the matter would automatically turn toward the Presidential Immunity and the intensions of the court are vivid and clear in this regard, as on a number of occasion the members of the bench hearing the intra-court appeal of the Prime Minister had given indication that the immunity granted to President under Article 248 was in clear violation of the basic Islamic injunctions and it is also clearly written in the Objective Resolution that no law or constitutional clause would remain in vogue which is repugnant to Islamic injunctions.
There is a strong argument that when the great Caliphs like Hazrat Omar Farooq and Hazrat Ali could appear before the Qazi(judge) then why the President of Pakistan could not.
As Prime Minister Syed Yusuf Raza Gilani has repeatedly said that he could not even think of committing contempt of court what to speak of actually doing so he would certainly not do opposite to his words and would definitely give solid reasons for not writing letter to Swiss authorities for reopening of graft cases against his party Co-Chairman Asif Ali Zardari and would definitely come up with the only reason that President Zardari is having immunity against criminal proceedings against him till the time he holds the office and hence the matter of immunity would come in the court for review.
The Prime Minister would be indicted in he Contempt of Court Case under Article 63 and most probably clause ‘g’ of the article would apply in the case, which reads:
“He has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan, unless a period of five years has elapsed since his release.”
Though most of the Hawkish elements in the party wanted to go for all out confrontation with the superior judiciary and even some of quite senior party leaders in the Core Committee of the party held under the chair of Prime Minister House on Sunday night came up with the idea that the notification issued by the Prime Minister which lead to the restoration of the judges should be withdrawn. But the doves in the party totally opposed the idea and gave the counter-arguments that the time is not conducive for it because the vibrant civil society and independent media is standing at the back of the judiciary while key opposition parties have also given their mind that they would not let the rulers to bully the superior judiciary and they would frustrate all the attempts to undermine the superior judiciary.
On the other hand the allies of the Pakistan People’s Party in government including Awami National Party, Pakistan Muslim League (Quaid-iAzam), Muttahida Qoumi Movement and FATA Parliamentarians have advised the government not to go for confrontation with the judiciary and adopt some conciliatory course to settle the matter.
In these circumstances it would not be possible for PPP to lock horns with the Supreme Court of Pakistan and political observers said that it would be advisable for the PPP to write letter to Swiss authorities as by doing so they would not only secure their government and the upcoming Senate elections due on March 2 but would also secure the future of democracy by blocking the way of forces of status quo which did not want to see the smooth transfer of power to next government.
Today Supreme Court is also set to resume another important case regarding the missing prisoners who were picked up by the intelligence agencies from outside Adiala Jail. The court on February 10 had given the strict direction to ISI, MI chiefs and chief secretary of Khyber Pakhtunkhwa to ensure the presence of prisoners on 13 Feb “at any cost” This case has got more significance at the time when the Prime Minister is appearing second time before the court on contempt charges. This case would be viewed as the test case for the highest court that if in case the prisoner were not produced before the court. Question off course would justifiably rise whether those responsible would meet the same fate as the Prime Minister of Pakistan in contempt case or otherwise.
By : Syed Abid Gillani