Muqtedir Akhtar Shabir
By engaging Barrister Aitzaz Ahsan, it seems that the government has decided to defend itself in the NRO case and subsequently the writing of the letter to Swiss courts, as well as claiming immunity for the President and Prime Minister provided under Article 248 of the Constitution. Despite claiming immunity, however, the writing of a letter to the courts to reopen the cases against President Asif Zardari, may not be covered under Article 248. One may ask: Why? Article 248 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 federation 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 anything done by or not done by him in his personal capacity whether before or after he enters upon his office unless, at least 60 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.
Keeping in view the above-mentioned clauses, the writing of the letter to Switzerland’s courts may be taken as intimating them that the earlier letter written for the withdrawal of the proceeding was illegal. It is, indeed, an indication by the government to the apex courts of this fact and, by no means, it comes under the definition of institution or continuation of the criminal proceedings against the President, and thus not covered under the immunity clause.
Nevertheless, immunity to the President, according to the law of the land and international convention, may come into play afterwards and the proceeding may come to a standstill till the continuation of his tenure.
As for the contempt proceeding against the Prime Minister, his counsel may claim immunity provided under Clause 1 of Article 248, wherein it has been provided that “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.”
In addition, this claim of PM Gilani’s impunity may not come in handy, as the Supreme Court has held in PLD 1975 SC 383 (p 393), with respect to Prime Minister’s impunity against the contempt proceeding as under, “it is not easy to define the exact scope of Prime Minister’s powers and functions, but this much is certain that his powers and functions are derived from the Constitution. Since neither the Constitution, nor any law possibly authorise him to commit a criminal act or to do anything which is contrary to law, the immunity cannot extend to illegal or unconstitutional acts. Even a Prime Minister is under Clause (2) of Article 5 of the Constitution, bound to obey the Constitution and law as that is basic obligation of every citizen. The scope of the powers and functions of a Prime Minister cannot possibly extend to the committing of contempt of Court which is punishable under the Constitution itself, and therefore, by necessary implication prohibited.”
It is, therefore, concluded that despite the immunity to the President, the government may not be exempted from writing a letter to Swiss Courts.
The writer is an advocate of the Supreme Court.
Email: muqtedir@hotmail.com