Recourse to judiciary harmful: experts

By Nasir Iqbal

Originally Published at DAWN

Edited and Posted By: Farhad Jarral

ISLAMABAD: A number of legal experts have cautioned against wasting energy on the debate regarding constitutional immunity for a top office when the remedy to the controversy lies with the people of Pakistan though impeachment by parliament.

“It is not a question of any individual or that of (President) Asif Ali Zardari, but a question of supremacy of the Constitution, which being an organic document, must not be interpreted to suit certain interests,” said Advocate Athar Minallah, who was a spokesman for Chief Justice Iftikhar Mohammad Chaudhry when the latter was forcibly removed by former president Pervez Musharraf.

People who wanted to see the judiciary strengthened should refrain from dragging issues having political fallout in courts because a situation like this tended to make the judiciary controversial, he added.
Advocate Tariq Mehmood, who was in the forefront of lawyers’ movement for reinstatement of the chief justice, conceded that immunity had been sought by Gen Musharraf for forwarding a reference against the top adjudicator on misconduct to the Supreme Judicial Council, but the Supreme Court had rejected it on the grounds that whatever treatment meted out to the chief justice then was not of a criminal nature and, therefore, no protection was available.

The Supreme Court in its July 20, 2007, verdict restoring the chief justice to his office, had held that the mode employed by the then president to dismiss the chief justice on March 9, 2007, insulted the Constitution and was clearly mala fide and unsustainable in law and, therefore, impermissible.

Citing Article 248(2) of the Constitution, Advocate Mehmood said he was convinced that no process of any criminal nature could be initiated against the president as long he was sitting in the presidency.
“Even if corruption cases against President Zardari are re-opened, no process could commence to summon him in courts. This also applies even if money laundering cases are re-opened by Swiss courts because then the question of sovereign immunity would come,” he said.

Mr Mehmood cited an example when Islamabad Secretariat police refrained from registering a criminal case against Gen Musharraf on a charge of detaining judges of the superior courts and their families in their houses till the time he was occupying the top office. It was after the former president’s resignation, he added, police registered the case that too on the orders of the capital’s lower court.

“Now whenever the former president will return, he may face the charges because the immunity he enjoyed is no more,” he explained.
Mr Mehmood also cited a petition recently moved before the Supreme Court by Khalid Khawaja seeking striking down of the protection available to the president under Article 248 of the Constitution.

He said the apex court had returned the petition on the grounds that the petitioner had no locus standi and that the apex court was not a proper forum to decide the controversy at this stage.
The petitioner later challenged the office order of returning the petition in the same court which is still pending.

Advocate Minallah explained that in constitutional jurisprudence those office-holders who could face the impeachment process were always protected from litigation or immune from being dragged to courts on cases of criminal nature.

“Let us assume a declaration comes from the Supreme Court that the president is ineligible to hold the office or convicted by any court, Article 47 of the Constitution will still apply and unless impeached by parliament the president will still be considered to be the holder of the high office.”

Article 47 (1) of the Constitution says: “Notwithstanding, anything contained in the Constitution, the president may, in accordance with the provisions of this article, be removed from the office on the ground of physical or mental incapacity or impeached on a charge of violating the Constitution or gross misconduct.”

The Constitution and the authority of parliament have to prevail at all cost as the offices elected by the people through their chosen representatives should be removed through the constitutional means.
Advocate Salman Akram Raja, who recently pleaded against the controversial NRO before the Supreme Court, said the president enjoyed complete immunity from all kind of criminal cases and that the July 20 judgment did not affect this protection. SOURCE

Following are some facts and analysis by Nazir Naji and Retired Justice SaeedUzaman Siddiqui



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