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| The Supreme Court of Pakistan |
Authored by Justice Jawwad S Khawaja, one of the judges of a bench that turned down the prime minister’s intra-court appeal on February 10, a detailed verdict also warned, ominously for the premier, that it would not practice restraint in the name of ‘serious consequences’ or ‘functional immunity’. It stated that a seven-member trial bench will examine contempt of court charges against the prime minister in depth.
The rationale for the rejection of the appeal is stated to be the premier’s constant inaction in implementing its order over the National Reconciliation Ordinance (NRO) – that is, to write a letter to Swiss authorities seeking reopening of graft cases against President Asif Ali Zardari.
The court termed Prime Minister Gilani’s appeal to receive preferential treatment contrary to the Constitution as well as Islamic teachings. The premier had filed an appeal through his counsel Aitzaz Ahsan against a preliminary Feb 2 order that decided charges against the prime minister would be framed for the non-implementation of the NRO verdict.
The judgment indicated the bench was in no mood for excuses, reminding premier Gilani of his oath to protect and work in accordance with the Constitution, saying that “the higher the constitutional office, the greater the onus of responsibility on the holder of such office … In other words, the court has greater reason to be particularly concerned about the possibility of contempt having been committed by the appellant.”
The verdict went on to state: “It is clear to us that the appellant’s (premier’s) claim to a ‘special privilege’ on account of his executive office, which seeks for him ‘greater restraint’ amounting to an exception from contempt proceedings, does not find any basis in our Constitution”.
The judgment quoted a Hadith of the blessed Holy Prophet Muhammad s.a.ww in the verdict as well: “O people, those before you were ruined because when someone of high rank among them (sharif) committed theft, they would spare him, but when a weak person from amongst them (zaeef) committed theft, they would inflict the prescribed punishment upon him.”
Replying to Aitzaz’s concerns, the court order stated: “…the court cannot and should not base its decisions on expediency or on consideration of the consequences which may follow as a result of enforcing the Constitution… the doctrine of necessity has already been buried because of the valiant struggle of the people of Pakistan. The court can only strengthen the rule of law by upholding the Constitution, which is, in fact, the supreme law.” The doctrine of necessity refers to the basis on which extra-legal actions designed to restore order are found to be constitutional.
Explaining why the court refused to dismiss the show-cause notice against the prime minister (a notice requiring one or more of the parties to a case to justify, explain, or prove something to the court) the judgment says, “A show-cause notice under the (contempt of court) ordinance can, of course, be discharged where the alleged contemnor shows that the court order has, in fact, already been complied with. The notice may, at the discretion of the court, also be discharged if the alleged contemnor agrees to comply with the court order even after the issuance of a show cause notice.”
The court observed that the prime minister’s explanations to rely on the advice of his subordinates’ summaries confirm that the directives in the NRO judgment have not, as yet, been complied with. The court also found incorrect the defence counsel’s contention that the trial bench denied him a ‘full hearing’.
Enticing Fury
Pakistan Cyber Force
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