NOTE:- It may be recalled here that the CPP filed the constitutional petition on 13th April, 2010 which challenges and seeks interpretation of Article 248 concerning the boundaries and conditions of Immunity to President of Pakistan from the Apex Court but till date this case has not been fixed for hearing inspite of several request to the Chief Justice of Pakistan and Registrar of the Supreme Court of Pakistan for the reason best known to them.
IN THE SUPREME COURT OF PAKISTAN, ISLAMABAD.
(Original Jurisdiction)
Constitutional Petition No. of 2010.Communist Party of Pakistan,
Through it’s Chairman:
Engineer Jameel Ahmad Malik,
Communist Party Secretariat,
1426-Fateh Jang Chowk,
Attock Cantonment. .........PetitioneVersus
1. Federation of Pakistan through the Secretary Law, Ministry of Law and Justice, Government of Pakistan, Islamabad.
2. National Accountability Bureau (NAB) through its Chairman, NAB Headquarters, Attaturk Avenue, G-5/2, Islamabad.
3. Punjab Province through Chief Secretary, Civil Secretariat, Lahore.
4. Sindh Province through Chief Secretary, Civil Secretariat, Karachi.
5. NWFP Province through Chief Secretary, Civil Secretariat, Peshawar.
6. Baluchistan Province through Chief Secretary, Civil Secretariat, Quetta.
7. Senator and Advisor to Prime Minister Mian Raza Rabbani, Chairman of 27 Members Special Committee on Constitutional Reforms, Parliament House, Islamabad.
8. Pakistan Peoples Party Parliamentarians through its Secretary General Senator Jehangir Badar, House # 1, St # 85, G-6/4, Islamabad.
9. Pakistan Muslim League (N) through its Quaid Muhammad Nawaz Sharif, PML-N Head Office, House No 20-H, Street No. 10, Sector F-8/3 Islamabad.
10. Pakistan Muslim League (Shujaat) through its Secretary General Senator Mushaid Hussain, Central Secretariat, 4-Main Margalla Road, Sector F-7/3, Islamabad.
11. Pakistan Muslim League (Saifullah) through its Convener Senator Saleem Saifullah Khan, Ghazni Khel, Lakki Marwat.
12. Muttahida Qaumi Movement Pakistan through its Convenor Dr. Imran Farooq, 494/8, Azizabad, Karachi. 13. Awami National Party through its President Asfand Yar Wali Khan, Baacha Khan Markaz, Pajagai Road, Peshawar.
14. Jamiat Ulama-e-Islam (F) through its Ameer Moulana Fazal-ur-Rehman, Jamia-al-Moarf, Al-Sharia, Dera Islmail Khan.
15. Jamaat-e-Islami Pakistan through its Ameer Syed Munawar Hasan, Mansoora, Multan Road, Lahore.
16. Pakistan Muslim League (F) through its President Shah Mardan Shah Pir Pagaro, Kingri House, Karachi.
17. Balochistan National Party (Awami) through its President Senator Mir Israrullah Khan Zehri, Baldia Plaza, Mezan Chowk, Quetta.
18. National Party through its President Dr. Abdul Hayee Baloch, Firdosi Building 4th Floor, Rustam G Line Jinnah Road, Quetta.
19. Pakistan Peoples Party (Sherpao) through its Chairman Aftab Ahmad Khan Sherpao, Member of National Assembly, 5-F, Rehman Baba Road, University Town, Peshawar.
20. National Peoples Party Workers Group through its Chairman Ghulam Murtaza Jatoi, Member of National Assembly, 18-Khayaban-e-Shamshir, Defence Housing Authority, Phase V, Karachi.
21. Pashtoonkhawa Milli Awami Party through its Chairman Mehmood Khan Achakzai, Central Secretariat, Jinnah Road/Club Road, Quetta.
22. Jamhoori Wattan Party through its President Nawabzada Tahlal Akbar Bughti, Central Secretariat – Fatima Jinnah Road, Near Bughti House, Quetta. ……… RESPONDENTS
A Constitutional Petition under the Article 184(3) read with the Holy Quran and Holy Prophet (PBUH) teaching which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb” and general rule i.e. no one is above law and also with the Preamble, Articles 2A, 3, 5(2), 17, 25, 41(1), 41(2), 62(d), 62(e), 62(f), 101(1), 101(2), 227 and 260(3)(a) of the Constitution of Pakistan, 1973 is being filed in the Supreme Court of Pakistan by the petitioner for seeking the authoritative and comprehensive Interpretation on the Article 248 concerning its limits and meanings of the Protection and Immunity as given to President and Governor in Article 248 in a Muslim and Islamic Country which is known as the Islamic Republic of Pakistan as per Article 1 of the Constitution of Pakistan, 1973.
Respectfully Sheweth,
That the aforesaid Constitutional Petition under the Article 184(3) of the Constitution of Pakistan, 1973 read with the Holy Quran and Holy Prophet (PBUH) teaching which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb” with the Preamble, Articles 2A, 3, 5(2), 17, 25, 41(1), 41(2), 62(d), 62(e), 62(f), 101(1), 101(2), 227, 260(3)(a) and general rule i.e. no one is above law is being filed by the petitioner on the points of law, facts and grounds, as narrated, herein as under:-
POINTS OF LAW:
A. Whether the President or Governor enjoys immunity under Article 248 of the Constitution outside Pakistan?
B. Whether the President of Pakistan Asif Ali Zardari has any immunity under Article 248 in re-opening of Swiss cases or otherwise?
C. Whether the re-opening of Swiss cases of the incumbent President of Pakistan is in violation of Article 248 of the Constitution?
D. Whether Article 248, which, otherwise is applicable in Pakistan has any relevancy with the Constitution of Switzerland and does the same Article 248 equally applies in Switzerland or otherwise?
E. The word Criminal and Corruption are altogether differently defined in the English as well as in the Legal Dictionary. Similarly the ‘Corruption Charges’ and ‘Criminal Charges’ are altogether differently defined in the English as well as in the Legal Dictionary and so the Corruption proceedings concerning President and Governor don’t have any immunity under Article 248 – the reason being that Corruption Proceedings does not come under the purview and definition of Criminal Proceedings in real and correct interpretation. Is this view of the petitioner is tenable, sustainable and correct?
F. In our country, the Corruption Charges against anyone including President Asif Ali Zardari are to be dealt and comes under the purview of the National Accountability Ordinance (XVIII of 1999) whereas the Criminal Proceedings against anyone are too be dealt and comes under the purview of the Pakistan Penal Code 1860 and the Criminal Procedure Code, 1898. The judgment of the Full Court of Supreme Court in the NRO case clearly differentiates between the Corruption and Criminal Charges and it support this view that President or Governor has no immunity against those Corruption Charges being preceded in the National Accountability Court before the promulgation of National Reconciliation Ordinance, 2007. Is this view of the petitioner is correct and lawful?
G. What are the limits and meanings of the immunity to President and Governor in Article 248 in a Muslim and Islamic Country like ours?
H. Does immunity in Criminal Proceedings to President and Governor give them a blank cheque to do any thing President and Governor likes in a Muslim and Islamic Country like ours?
I. Does Presidential immunity place the President above the law? If not, then, what is Presidential immunity and what purpose does it serve? The people of Pakistan rightfully deserve to know its interpretation.
J. Is Presidential immunity an invisible cloak? The adornment of which can make the President of a country turn invisible in the face of civil or penal charges? Or is it a legitimate Constitutional shield rightfully created to protect the President from unnecessary law suits?
K. The incumbent President of Pakistan don’t have any immunity under Article 248 of the Constitution outside Pakistan and the statement of the Prime Minister Yousaf Raza Gilani in the Parliament on 27 and 28 of January 2010 is total negation of Article 248 and full judgment of NRO dated 16-12-2009. Is this views of the petitioner is legal and tenable in law?
L. The statement of the Prime Minister Yousaf Raza Gilani in the Parliament on 27 and 28 of January 2010 that no action can be taken against Malik Mohammed Qayyum, as he has filed the review petition is totally negation of the full judgment of NRO dated 16-12-2009 on the simple reason that by filing review petition without any stay granted by the Supreme Court does not confer any right upon him and the Federal Government not to proceed against Malik Mohammed Qayyum as directed by the Full Court to proceed and take action against Ex-Attorney General of Pakistan Malik Mohammed Qayyum. Is this view of the petitioner is correct and legal?
M. All the corruption reference cases against the incumbent President of Pakistan was in field much prior to his becoming President and does the incumbent President has the immunity of the past corruption cases against him under the umbrella of Article 248 or otherwise?
N. There are two concept of immunity in the Muslim history. The first four Caliphs known as Khulfa-e-Rashdeen don’t enjoy immunity but since Ameer Muawiyah took over in the 7th century to the end of the Caliphate in 1924, the Caliph has always enjoyed immunity. As shadow of God on earth, the Caliph was at several times in history the main legislator and final Court of appeal. He could never be called into a Court of law. He was above it. The institution of Caliphate since Ameer Muawiyah has always been immune from legal action. Our Islamic Country of Pakistan falls in which Category of Caliphs. The petitioner being a Communist Party and not a religious Political Party, therefore, seeks interpretation of Article 248 as to know whether the Constitution of the Islamic Republic of Pakistan follows the Khulfa-e-Rashdeen era, where there was no immunity or the interpretation of the Supreme Court under the shadow of Article 248 is in conformity with the concept of immunity, which was allowed since Ameer Muawiyah took over in the 7th century to the end of the Caliphate in 1924, when the Caliphs has always enjoyed immunity. The great Khulfa-e-Rashdeen at times appeared in the Court side by side with the other party. And during his time as Caliph, Hazrat Ali (AS) appeared before a Qazi and lost his case to a Jew. The whole nation is anxiously now waiting for the interpretation of Article 248 of the Constitution of Pakistan, 1973.
O. That on one hand it is said that being a Muslim State, the President of Pakistan, who shall be the Head of State and shall represent the unity of the Republic [Art 41(1)] must and should be a Muslim [Art. 41(2)], who is sagacious, righteous, non-profligate, honest, amen [Art. 62(f)], good character and is not commonly known as one who violates Islamic injunctions [Art. 62(d)] and he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins [Art. 62(e)] and whereas the definition of Muslim vide the Article 260(3)(a) is “Muslim” means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him), the last of the prophets, and does not believe in, or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad (peace be upon him);” and does such a Muslim President, who so ever he may be, vide above referred definitions, if given immunity and protection under Article 248 can be justified on the teachings of Islam and Holy Qur’an and Sunnah. The answer is negative. Is this view of the petitioner is correct and legal?
P. Interpretation of any Article is the prerogative as well as the duty of the Superior Courts as envisaged in the Constitution. What is the correct Interpretation of Article 248 with respect to the Holy Quran and Holy Prophet (PBUH) teaching which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb” and with respect to the Preamble, Articles 2A, 3, 5(2), 17, 25, 41(1), 41(2), 62(d), 62(e), 62(f), 101(1), 101(2), 227, 260(3)(a) and general rule i.e. no one is above law?
Q. Whether the Article 248 which provides immunity and protection to the President and Governor is in conformity with the Preamble and Article 2-A of the Constitution of Pakistan or the Article 248 is conflicting or in contrary with the Preamble and Article 2-A of the Constitution of Pakistan, 1973. Which view out of two is viable, tenable, sustainable, legal and in accordance with law or otherwise?
R. Whether in a Muslim country like ours where it is said that under Article 227 of the Constitution of Pakistan, no law shall be enacted which is repugnant with the injunctions of Islam as laid down in the Holy Qur’an and Sunnah whereas the Article 248 which provides immunity to the President and Governor itself is repugnant to the teachings and injunctions of Islam as laid down in the Holy Qur’an and Sunnah as according to Islam, Holy Qur’an and Sunnah not even Caliphs or any rulers or persons has the immunity as given in Article 248 of the Constitution of Pakistan, 1973. The Article 248 is against all the teachings and injunctions of Islam as laid down in the Holy Qur’an and Sunnah. Is this view of the petitioner is legal and correct?
S. The Supreme Court vide its NRO Judgment dated 16-12-2009 has ordered Respondents No. 1 and 2 for opening of the Swiss cases and all other cases within Pakistan but on the other hand, a meeting of the Central Executive Committee (CEC) of the PPP convened in Naudero on 3rdApril 2010 presided by President of Pakistan – Asif Ali Zardari flatly refused, declared and resolved that the Peoples Party would resist the reopening of Swiss cases and trial of its late leader, Benazir Bhutto and Begum Nusrat Bhutto. So much so, the Federal Law Minister Babar Awan and PPP Information Secretary Fauzia Wahab said the Swiss cases technically could not be reopened as they had been decided on merit and the Swiss Attorney had stated that there was no possibility of reopening such cases. Whether all these statements by the PPP stalwarts in such circumstances, who are now openly defying the Orders of the Full Court of the Supreme Court given in NRO Judgment dated 16-12-2009 can be considered and treated as the contempt of the Supreme Court?
T. Under Article 184 (3) not only an aggrieved person but any person can knock the doors of Supreme Court and question of locus standi or on the right forum is thus not attracted if a question of public importance with reference to the enforcement of any of the Fundamental Rights is involved. Supreme Court is the right forum for the interpretation of Article 248 with respect to the teachings of Holy Quran and Holy Prophet (PBUH) which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb” and of the Preamble, Articles 2A, 3, 5(2), 17, 25, 41(1), 41(2), 62(d), 62(e), 62(f), 101(1), 101(2), 227, 260(3)(a) of the Constitution of Pakistan and general rule i.e. no one is above law. Is this view of the petitioner is legal and correct?
FACTS OF THE CONSTITUTIONAL PETITION:
1. That this is a public interest petition.
2. That the petitioner is a political party established in almost every country of the world. In some parts of the world, the Communist Party is a ruling party and in the rest of the countries, it is opposition of the ruling party. Its basic manifesto is to have socialism based on the ideology of Karl Marx, who was a German philosopher, political economist, historian, political theorist, sociologist, communist and a great revolutionary of all era. Communist Party of Pakistan (CPP) under its subjective condition is in the political arena for the social change, free from exploitation of man by man and is working for the welfare of the downtrodden and poor masses. The CPP files this petition through its Chairman, Engineer Jameel Ahmad Malik.
3. That the status of petitioner in terms of Rule 6 of Order XXV of the Supreme Court of Pakistan Rules, 1980 and vide Article 17 of the Constitution of Pakistan, 1973 is a political party and does not come under any law for the persons in the service of the Armed Forces of Pakistan. As such she is not barred by Articles 199 and 184(3) from invoking the Original Jurisdiction of the High Court and Supreme Court. However, she has not moved any High Court because of limited jurisdiction.
4. That vide Article 89, the President promulgate Ordinance and the National Reconciliation Ordinance, 2007 (NRO) was promulgated on 5th of October, 2007 by then President General Pervaz Musharraf, a day before his Presidential Election for which he was himself the candidate. Anyhow, Ex-Federal Finance Minister Dr. Mobashir Hassan, in the capacity of the petitioner vide its Constitutional Petition No. 76 of 2007 challenged the impugned NRO on 9th of October 2007 and soon after Roedad Khan, Qazi Hussain Ahmad and Muhammad Shahbaz Sharif and others also challenged the aforesaid NRO, which was heard by the Full Court headed by the Chief Justice of Pakistan Iftikhar Muhammed Chaudhry from 07th to 10th and 14th to 16th December, 2009.
5. It would not be out of place to mention here that on 14th of December, 2009 the petitioner also moved a Civil Misc. Application No. 4901/2009 in Constitutional Petition No. 76 of 2007 of Dr. Mobashir Hassan for impleadment as party and praying the Apex Court for interpretation of Article 248 of the Constitution of Pakistan, as this question of interpretation of Article 248 was not covered by the aforesaid Constitutional Petition of Dr. Mobashir Hassan and which in the opinion of the petitioner would likely to become controversial in the absence of any interpretation on Article 248 and this aspect has proved to be true now. Even the PM Syed Yousaf Raza Gilani while addressing the Parliament on 28th January 2010 said that he has already implemented several points of the detailed judgment in NRO case and would implement the remaining those points after such an interpretation on Article 248 is given by the Supreme Court. The Prime Minister further said he agrees to the legal opinion that the President enjoys immunity under Article 248 of the Constitution. He said if anyone has another opinion, he can go to the Court to get its interpretation.
However, the aforesaid CMA No. 4901/2009 in Constitution Petition No. 76/2007 of the petitioner for impleadment as party was neither returned back by the Registrar of Supreme Court with any objection nor the petitioner was heard by the Full Court for the reason best known to Apex Court.
6. The Full Court headed by the Chief Justice of Pakistan Iftikhar Muhammed Chaudhry vide its short and detailed judgment in NRO case dated 16-12-2009 reported in (PLD 2010 SC 1) hold as follows:-
“171. We have examined the respective contentions of the learned counsel for the parties as well as the vires of the NRO, 2007 on the touchstone of various Articles of the Constitution, and have come to the conclusion that the NRO, 2007 as a whole, particularly its Sections 2, 6 and 7, is declared void ab initio being ultra vires and violative of Articles 4, 8, 12, 13, 25, 62(f), 63(1)(h), 63(1)(p), 89, 175, 227 of the Constitution, therefore, it shall be deemed non est from the day of its promulgation i.e. 5th October 2007 as a consequence whereof all steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the Courts of law including the orders of discharge and acquittals recorded in favour of accused persons, are also declared never to have existed in the eyes of law and resultantly of no legal effect.
172. Resultantly, all cases in which the accused persons were either discharged or acquitted under Section 2 of the NRO, 2007 or where proceedings pending against the holders of public office had got terminated in view of Section 7 thereof, a list of which cases has been furnished to this Court and any other such cases/proceedings which may not have been brought to the notice of this Court, shall stand revived and relegated to the status of pre-5th of October, 2007 position.
173. All the concerned Courts including the Trial, the Appellate and the Revisional Courts are ordered to summon
the persons accused in such cases and then to proceed in the respective matters in accordance with law from the stage from where such proceedings had been brought to an end in pursuance of the above provisions of the NRO, 2007.
174. The Federal Government, all the Provincial Governments and all relevant and competent authorities including the Prosecutor General of NAB, the Special Prosecutors in various Accountability Courts, the Prosecutors General in the four Provinces and other officers or officials involved in the prosecution of criminal offenders are directed to offer every possible assistance required by the competent Courts in the said connection.
175. Similarly all cases which were under investigation or pending enquiries and which had either been withdrawn or where the investigations or enquiries had been terminated on account of the NRO, 2007 shall also stand revived and the relevant and competent authorities shall proceed in the said matters in accordance with law.
176. It may be clarified that any judgment, conviction or sentence recorded under Section 31-A of the NAO, 1999 shall hold the field subject to law and since the NRO, 2007 stands declared as void ab initio, therefore, any benefit derived by any person in pursuance of Section 6 thereof is also declared never to have legally accrued to any such person and consequently of no legal effect.
177. Since in view of the provisions of Article 100(3) of the Constitution, the Attorney General for Pakistan could not have suffered any act not assigned to him by the Federal Government or not authorized by the said Government and since no order or authority had been shown to us under which the then learned Attorney General namely Malik Muhammad Qayyum had been authorized to address communications to various authorities/Courts in foreign countries including Switzerland, therefore, such communications addressed by him withdrawing the requests for mutual legal assistance or abandoning the status of a civil party in such proceedings abroad or which had culminated in the termination of proceedings before the competent for a in Switzerland or other countries or in abandonment of the claim of the Government of Pakistan to huge amounts of allegedly laundered moneys, are declared to be unauthorized, unConstitutional and illegal acts of the said Malik Muhammad Qayyum.
178. Since the NRO, 2007 stands declared void abinitio, therefore, any actions taken or suffered under the said law are also non est in law and since the communications addressed by Malik Muhammad Qayyum to various foreign fora/ authorities/Courts withdrawing the requests earlier made by the Government of Pakistan for mutual legal assistance; surrendering the status of civil party; abandoning the claims to the allegedly laundered moneys lying in foreign countries including Switzerland, have also been declared by us to be unauthorized and illegal communications and consequently of no legal effect, therefore, it is declared that the initial requests for mutual legal assistance; securing the status of civil party and the claims lodged to the allegedly laundered moneys lying in foreign countries including Switzerland are declared never to have been withdrawn. Therefore the Federal Government and other concerned authorities are ordered to take immediate steps to seek revival of the said requests, claims and status.
179. In view of the above noticed conduct of Malik Muhammad Qayyum, the then learned Attorney General for
Pakistan in addressing unauthorized communications which had resulted in unlawful abandonment of claims of the Government of Pakistan, inter alia, to huge amounts of the allegedly laundered moneys lying in foreign countries including Switzerland, the Federal Government and all other competent authorities are directed to proceed against the said Malik Muhammad Qayyum in accordance with law in the said connection.
180. We place on record our displeasure about the conduct and lack of proper and honest assistance and cooperation on the part of the Chairman of the NAB, the Prosecutor General of the NAB and of the Additional Prosecutor General of the NAB, namely, Mr. Abdul Baseer Qureshi in this case. Consequently, it is not possible for us to trust them with proper and diligent pursuit of the cases falling within their respective spheres of operation. It is therefore, suggested that the Federal Government may make fresh appointments against the said posts of persons possessing high degree of competence and impeccable integrity in terms of Section 6 of the NAO, 1999 as also in terms of the observations of this Court made in Khan Asfandyar Wali’s case (PLD 2001 SC 607). However, till such fresh appointments are so made, the present incumbents may continue to discharge their obligations strictly in accordance with law. They shall, however, transmit periodical reports of the actions taken by them to the Monitoring Cell of this Court which is being established through the succeeding parts of this judgment.
181. A Monitoring Cell shall be established in the Supreme Court of Pakistan comprising of the Chief Justice of Pakistan or a Judge of the Supreme Court to be nominated by him to monitor the progress and the proceedings in respect of Court cases (explanation added in detailed reasons) in the above noticed and other cases under the NAO, 1999. Likewise similar Monitoring Cells shall be set up in the High Courts of all the Provinces comprising the Chief Justice of the respective Province or Judges of the concerned High Courts to be nominated by them to monitor the progress and the proceedings in respect of Court cases (explanation added in detailed reasons) in which the accused persons had been acquitted or discharged under Section 2 of the NRO, 2007.
182. The Secretary of the Law Division, Government of Pakistan, is directed to take immediate steps to increase the number of Accountability Courts to ensure expeditious disposal of cases.”
7. That as and when the impugned NRO was challenged by Dr. Mubashir Hassan and others, neither he nor any one else knew that one day a person, who has lot of criminal and massive corruption cases on his shoulders would become the President of Pakistan. Anyhow, one thing which is being reported in electronic and print media before and after the decision is that the present and incumbent President Asif Ali Zardar has the immunity or not. On this controversial issue, legal experts have two opinions.
On one side of this divide are those who are in the state of complete denial. They do not believe in the existence of any such thing as Presidential immunity. To them, the President can be dragged into Courts to face all type of charges inspite of the fact that the President or Governor cannot be charged for his official acts if it is not malafide.
On the other side of the fence are those legal warriors, who wish to put every thing under the sun in the President Immunity sack. Their claim seems to be absolute, categorical, and devoid of any plausible elaboration or explanation. These legal literalists do not wish to see beyond the words written in the Constitution. For them, what lies behind the Constitutional text does not weigh much. The intent of the framers of the Constitution and the purpose for which the Presidential immunity was legislated has no meaning for them.
Aside from these two opposing and politically motivated groups, the Pakistani society has a genuine concern in the outcome of this significant Constitutional issue. It is for the first time a sitting President in Pakistan is faced with a situation where old criminal and corruption charges have been revived against him. Despite what the Constitution says about Presidential immunity, there in not sufficient jurisprudential guidance available, since the Apex Court in Pakistan has not had the challenge to decide a case of this nature before.
There aren’t many precedent rulings by foreign Courts at hand either. In the US, for instance, a sitting President has never faced criminal charges arising out of his official or his private conduct and, therefore, the issue with regard to Presidential immunity in criminal context had not come up for judicial consideration. On the other hand, it is well settled through US Supreme Court (SC) decisions that a sitting President has immunity for his “official conduct” in civil actions. Such immunity, nevertheless, does not cover his private conduct.
In this back ground, three cases come to mind. The first was Nixon versus Fitzgerald, the second case is Clinton versus Jones, and third one is of 73-year old Italian premier Berlusconi. The detail of all these three cases have been described in the petitioner’s ground of petition under heading “IMMUNITY ISSUES OF DIFFERENT WORLD LEADERS IN PAST.”
8. The Federal Government’s nervousness has become increasingly visible because of three reasons. Firstly – many Accountability Courts have decided to go ahead with the trial of President Zardari’s co-accused in different corruption cases and secondly – the larger bench of seven judges headed by CJP Iftikhar Muhammed Chaudhry on the last hearing on 1st April, 2010 has directed Respondents No. 1 and 2 to implement the judgment of NRO dated 16-12-2009 in letters and spirits and Thirdly – the Attorney General of Pakistan Anwar Mansoor Khan has also resigned on 2nd April, 2010 because he claims the Government (Respondent No. 1) and Federal Law Minister Babar Awan has prevented him from carrying out Supreme Court orders to reopen old graft investigations into President Asif Ali Zardari. Mr. Mansoor said the law ministry had denied him access to documents needed to carry out the Supreme Court order.
The Accountability Courts say they respect the President’s right of Constitutional immunity as provided under Article 248 of the Constitution, but the others do not have that protection. According to NAB sources, the Federal Government (Respondent No. 1) does not want the Accountability Courts to try the cases even against the co-accused of President Zardari because if any of the co-accused is convicted in any of the corruption cases it would have extremely negative reflection on the President, who is the main accused in most of the cases.
9. That in petitioner’s view, the President and Governor vide Article 248 has the immunity only against the Criminal Charges if any subject to the interpretation of the Apex Court and not against the Corruption Charges. The word ‘Criminal’ and ‘Corruption’ are altogether differently defined in the English as well as in the Legal Dictionary. Similarly the ‘Corruption Charges’ and ‘Criminal Charges’ are altogether differently defined in the English as well as in the Legal Dictionary and according to these definitions, the Corruption Charges concerning President and Governor don’t have any immunity under Article 248 – the reason being that Corruption Proceedings does not come under the purview and definition of Criminal Proceedings in real and correct interpretation.
In our country, the Corruption Charges against anyone including President Asif Ali Zardari are to be dealt and comes under the purview of the National Accountability Ordinance (XVIII of 1999) whereas the Criminal Proceedings against anyone are too be dealt and comes under the purview of the Pakistan Penal Code 1860 and the Criminal Procedure Code, 1898. The judgment of the Full Court of Supreme Court in the NRO case clearly differentiates between the Corruption and Criminal Charges and it support this view that President or Governor has no immunity against those Corruption Charges being preceded in the National Accountability Court before the promulgation of National Reconciliation Ordinance, 2007.
10. For similar reason, it is said, the Federal Government is even dithering over whether to write to the Swiss authorities or not inspite of the clear instruction of the Larger Bench of seven judges headed by CJP Iftikhar Muhammed Chaudhry on 1st of April, 2010 and this was the reason that the Attorney General of Pakistan Anwar Mansoor Khan resigned on the 2nd of April, 2010 and after tendering resignation, Barrister Anwar Mansoor Khan talked to the national electronic and press media and he clearly explained the reasons of his resignation, which is very much connected with Swiss cases of President Asif Ali Zardari and with the implementation of the Full Court Judgment of NRO dated 16-12-2009. On the other hand, it is really surprising that the Prime Minister of Pakistan is still hiding behind the lack of clear direction from the Supreme Court in the matters of Constitutional interpretation.
11. The details of the Brief Cases List against President Asif Ali Zardari in Corruption and Criminal cases for the kind perusal of the Apex Court are narrated comprehensively as under:-
(A) Corruption Cases in Accountability Courts.
(i). Reference No. 6/2000 (Polo Ground Reference). This reference relates to the illegal construction of Polo Ground at the Prime Minister’s House in which Zardari, former Capital Development Authority (CDA) Chairman Shafi M. Sehwani (since dead) and Saeed Mehdi are accused. This reference is pending before the Accountability Court No. IV, Rawalpindi.
(ii). Reference No. 23/2000 (ARY Gold Reference). This reference relates to ARY Gold in which Zardari, Aslam Hayat Qureshi, Salman Faruqui and Javed Talat are accused. This case relates to the grant of license to ARY Gold which caused heavy loss to the Government. This reference is pending before the Accountability Court No. II, Rawalpindi.
(iii). Reference No. 13/2001 (Ursus Tractors Reference). This reference pertains to receiving commission in the URSUS tractors deal in which Zardari is one of the accused along with Benazir Bhutto, Begum Nusrat Bhutto, former Food and Agriculture Minister and currently PPP MNA Nawab Yousuf Talpur and former Chairman of the Agriculture Development Bank of Pakistan (ADBP), Badruddin Zahidi. It is alleged that the accused persons in connivance with each other committed corruption by purchasing 5,900 Russian and Polish made Ursus tractors at the cost of Rs.150,000 each under the Awami Tractor Scheme (ATS) in violation of the laws, rules and regulations of the then ADBP. The deal allegedly caused a loss of Rs.268.3 Million to the ADBP and a loss of Rs.1.67 Billion to the State Bank of Pakistan (SBP) on account of exemption from customs duty and sales tax.
This reference is pending before Accountability Court No. IV, Rawalpindi.
(iv). Reference No. 14/2001 (Assets Reference). The Assets Case is a case where disputed assets have been put at the door of Mr. Zardari and through him at the door of his wife. Zardari is the sole accused in the Assets beyond means case and which is pending before the Accountability Court No. IV, Rawalpindi.
(v). Reference No. 35/2001 (Cotechna Reference). This reference pertains to the illegal award of contract to Cotechna for pre-shipment and which is pending before the Accountability Court No. II, Rawalpindi.
(vi). Reference No. 41/2001 (SGS Reference/Money Laundering SGS Swiss Case). This reference is the SGS Cotechna Corruption Case in which Zardari, Benazir Bhutto and AR Siddiqui are accused of taking six per cent of the total revenue of the pre-shipment for awarding the $131 million contract for which they received $11.8 million in kickbacks. This company was to supervise customs services. This reference is pending before the Accountability Court No. II, Rawalpindi.
(vii). Reference No. 27/2001 (Steel Mill Case). In this Reference, Mr Zardari was convicted by the Accountability Court, Rawalpindi vide judgment dated 12-9-2002 for 7 years imprisonment and Rs.30 million penalties. Appeal filed against the said judgment in September 2002 before Lahore High Court, Rawalpindi Bench as well as in the Supreme Court of Pakistan. LHC Rawalpindi Bench announced its judgment reserved several months ago, on 9 September 2004, and set aside the conviction awarded by the Accountability Court.
(viii). Reference No. 59/2002 (BMW Car Reference). The BMW reference is a case of a second hand car imported by a person other than Mr. Zardari as admitted by the prosecution. This reference decided in favour of Mr. Zardari.
(B) CRIMINAL CASES IN SESSION AND HIGH COURTS
(a). Mir Murtaza Murder Case – FIR 443/96. The appeal against judgment of the Sessions Judge Karachi (East) is now pending for adjudication in the Karachi High Court.
(b). Nizam Murder Case – FIR No. 357/96 of Police Station Feroze Abad, Karachi – President Zardari was exonerated by a Sessions Court in 2008, allowing his acquittal application. The Sindh High Court has also acquitted President Asif Ali Zardari in this case.
(c). Container Case – FIR No. 2/97 of FIA SBC Circle, Karachi – Pending before Special Judge Central, Karachi – Bail granted on 28-11-1998. Acquittal Appeal pending before Sindh High Court, Karachi. Asif Zardari was arrested under FIR No. 2/97, registered on February 16, 1997 while already under arrest for the murder of Murtaza Bhutto. Registered under anti-corruption laws, this case charged Zardari, former High Commissioner to UK, Wajid Shamsul Hasan, a PIA official and the deputy collector of customs with non-payment of the freight and custom duties on goods sent abroad. When the receipt of airfreight charges paid to Pakistan International Airlines was produced during the trial and the concerned Customs officer gave evidence that goods were not liable to custom duty, the government exonerated the PIA official and DC Customs by withdrawing the charges but the case is still pending against Mr. Asif Ali Zardari, although he has been granted bail.
(d). Alam Baloch Murder Case – FIR No. 70/97 of Police Station Qasimabad, Hyderabad – Pending before Sessions Judge, Hyderabad for trial. – Bail granted on 11-12-1999. Trial not yet commenced. Alam Baloch was a former Federal Secretary who was killed on September 18, 1997 in Hyderabad while Zardari was already in prison in Karachi. He was granted bail in this case (FIR No. 70/97) on December 11, 1999 and the matter is still pending.
(e). Sajjad Hussain Murder Case: Police Stations Defence Karachi – Pending before Additional Sessions Judge Karachi South. Mr. Zardari was acquitted in this case by Sindh High Court on 12-8-2003.
(f&g). Two Suicide Cases – FIR 65/99 and FIR 66/99 of Police Station Civil Lines Karachi – Bail granted on 26-2-2000 – Mr. Zardari was acquitted by Judicial Magistrate Syeda Parveen Shah, Karachi on 9-7-2003. In FIR 65/99, Mr. Zardari was acquitted on 30-7-2003.
(h). KESC Case – Karachi – Mr. Zardari has been acquitted in this Case by Sindh High Court Karachi in 1998.
(i). Narcotics Case – FIR 525/97 of Police Station, Qilla Gujar Singh, Lahore – Pending before Sessions Judge Lahore – Bail granted on 15-12-2001. The hearing of narcotics case against Pakistan Peoples Party Co-Chairman Asif Ali Zardari has been adjourned till May 17 due to court holiday. The narco-smuggling case was registered against Asif Ali Zardari in Lahore in 1997 and an additional court is hearing the case. According to Zardaris lawyer Khurram Latif Khosa, an application to end the case has been submitted and the court only has to pass judgment in this regard.
12. Speaking on a point of order in the National Assembly, Chaudhry Nisar said there were many examples in the world where the heads of state faced cases in International Courts. In this connection, he quoted the case of the President of Sudan, who is facing a case in the International Court of Justice. “The Prime Minister of Israel is also facing a trial in the Court of European Union,” he said.
Accusing the Government of double standards, he said that the Government had no problem with the Constitutional interpretation when it got the Dogar Court to declare the BA condition for parliament members as being violation of the Constitution.
13. On the one hand, the Supreme Court has already asked for opening of the Swiss cases and all other cases within Pakistan but on the other hand, a Central Executive Committee (CEC) of the PPP convened in Naudero on 3rd April 2010 presided by President Asif Ali Zardari flatly refused, declared and resolved that the Peoples Party would resist the reopening of Swiss cases and trial of its late leader, Benazir Bhutto and Begum Nusrat Bhutto and the CEC declared that the reopening of Swiss cases is tantamount to the desecration of Zulfikar Ali Bhutto’s grave. Federal Law Minister Babar Awan and PPP Information Secretary Fauzia Wahab said the Swiss cases technically could not be reopened as they had been decided on merit and the Swiss Attorney had stated that there was no possibility of reopening such cases. This news of contempt appeared in all National Electronic and print media. This aspect and point now needs to be settled quickly by the Supreme Court in the interest of justice.
14. However, here two question comes in petitioner minds – firstly whether the immunity enjoyed by the President Asif Ali Zardari applied to the corruption cases and references which were pending for adjudication and decision in the Accountability Courts before the promulgation of the notorious NRO and before coming his President and secondly how the immunity under Article 248 is applied to the President Asif Ali Zardari in those cases, which are abroad in foreign Courts. The famous ones are Swiss and Spain cases against him and others.
“Article 248 of the Constitution never says that the President enjoys immunity in the foreign Court cases or in the corruption cases pending in the Accountability Court and this actually the Full Court judgment on NRO cases means,” at least is the answer of the petitioner.
15. That it is ridiculous that the Accountability Courts accepted the immunity of the President Asif Ali Zardari under Article 248 at their own without summoning any notice to him in those corruption cases and references, which were pending for adjudication and decision in the Accountability Courts before the promulgation of the notorious NRO and before coming to his President of Pakistan.
The Accountability Courts under NAB Ordinance 1999 was duty bound to summon the President Zardari when the NRO 2007 was set aside by the Full Court of Apex Court and it was than the President Zardari or his Counsel to tell the Accountability Courts that he has the immunity under Article 248. On that plea, the Accountability Courts was duty bound to give its verdict that the President has the immunity concerning his corruption cases or not. Without summoning the President Asif Ali Zardari in the Accountability Courts and presuming that the President has the immunity under Article 248 is totally against the true spirits of the Full Court Judgment of NRO dated 16-12-2009 and is also against the law and fact of all those reference cases pending for decision against Mr. Zardari.
16. Hence the aforesaid Constitutional Petition is being filed by the petitioner not requesting the Supreme Court of Pakistan to struck down Article 248, which is though in contrary and in violations and contradictory with the Holy Quran and Holy Prophet (PBUH) teachings which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb” and also in total negation and contrary to Preamble, Articles 2A, 3, 5(2), 17, 25, 41(1), 41(2), 62(d), 62(e), 62(f), 101(1), 102(2), 227, 260(3)(a) of the Constitution of Pakistan and also with the general rule i.e. “no one is above law” but knowing the fact that the Supreme Court is the creature of the Constitution and does not claim any right to strike down any provision of the Constitution but does claim right to interpret the Constitution, even if a provision in the Constitution is a provision seeking to oust the jurisdiction of the Court
17. Keeping in view, what has been stated as above, a time has now come wherein the Apex Court may kindly give an interpretation of Article 248 of the Constitution of Pakistan, which of course is the prerogative as well as the duty of the Superior Courts as envisaged in the Constitution. This interpretation of Article 248 is also now the needs of hour and nation as well, as the Parliament Special Committee on Constitutional Reforms headed by Senator and Advisor to the PM Mian Raza Rabbani (Respondent No. 7) for amending the 102 Articles of Constitution of Pakistan presented its report after its 77 consecutive meetings to both the Houses of the Parliament on 2nd April, 2010 and which was unanimously passed by 292 Members of the National Assembly on 8th of April, 2010 and in due course of time these amendments would also be approved by the Senate but, it is really very surprising that the 27 Members Parliament Special Committee comprising of all political parties of both the Houses of the Parliament including Pakistan Muslim League (N), Pakistan Muslim League (Shujaat), Pakistan Muslim League (Saifullah), Muttahida Qaumi Movement, Awami National Party, Jamiat Ulama-e-Islam (F), Jamaat-e-Islami Pakistan, Pakistan Muslim League (F), Balochistan National Party (Awami), National Party, Pakistan Peoples Party (Sherpao), National Peoples Party, Pashtoonkhawa Milli Awami Party and Jamhoori Wattan Party (Respondents No. 9 to 22) have double standards and this was the reasons that without any ambiguity, all of them clear cut compromised on the existing Article 248 with the Pakistan Peoples Party Parliamentarians (Respondent No. 8) and President Asif Ali Zardari and accordingly the Committee did not even touched a comma or full stop of Article 248, which otherwise is contrary and contradictory with the Holy Quran and Holy Prophet (PBUH) teachings which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb” and in total negation and contrary to Preamble, Articles 2A, 3, 5(2), 17, 25, 41(1), 41(2), 62(d), 62(e), 62(f), 101(1), 102(2), 227, 260(3)(a) of the Constitution of Pakistan and also with the general rule i.e. “no one is above law”. Therefore, an appropriate order which deemed fit in the current scenario for resolving this controversial issue may kindly be passed by the Supreme Court of Pakistan in the interest of justice, interalia on the following genuine
GROUNDS:
18. Accordingly this Constitutional petition is filed on the following among other genuine grounds, interalia:-
(i) PRESIDENT IS NOT EXEMPT AS A PERSON.
The Constitution in its original form gives the President a symbolic status and ceremonial powers. Hence his acts as President are not challengeable in the Court. Of course when he has no powers and he can’t act without the advice of Prime Minister and the Chief Justice, he can’t make big blunders and his acts will not have any serious impact. Same goes with the Governors. However neither President nor Governor is immune from acts as a person e.g. if they commit a murder, they can be and must be punished accordingly. According to renowned Senior Lawyer of Supreme Court of Pakistan and Jurist A. K. Dogar, Pakistani and Indian laws are carbon copies in this regard. He during course of arguments in NRO cases before the Full Court of SC quoted India’s one of the most famous and respected law expert whose book has recently made a silver jubilee celebrations, who is of the opinion that President’s act as President are immune from the Courts proceedings while they are in the office but not their personal acts e.g. corruption, lies, murders etc. etc. However, the situation becomes grim when it comes to Pakistan, as we have mutilated the Constitution and President has acquired all the powers of the Prime Minister and the Parliament rendering these two institutions to mere rubber stamps. How then his acts even as President will enjoy the immunity. It does not make sense and such immunity is absolutely and clearly is in clear violation of the basic human rights which supersedes and surpasses all Constitutions. If someone is murdered and robbed how can he be deprived of seeking justice and getting the offender punished? No way can anyone have immunity in such cases. The victim could be an individual or the entire nation. In cases of gross national thefts, corruption, treason, the entire nation is a victim and any citizen must be able to challenge this in the Court and in the Election Commission. During the NRO Proceedings before the Full Court of Supreme Court, when the Federal Counsel Barrister Kamaal Azfar asked Mr. A. K. Dogar about any ruling of Indian Supreme Court, he answered – Indians never elected a corrupt President and hence issue of such incidence did not arise. Mr. Dogar said that the Article 361 of the Constitution of India, 1949 and Article 248 of the Constitution of Pakistan, 1973 are same except that in Indian Constitution, the word State is used for the Provinces.
That Interpretation of the Constitution is the prerogative as well as the duty of the Superior Courts as envisaged in the Constitution and this interpretative function cannot be a mere academic exercise without relation to concrete dispute, either between a subject and subject or between a subject and the State. The petitioner is well aware of the legal and Constitutional position in this context. Hence the aforesaid Constitutional Petition is being filed by the petitioner not requesting the Supreme Court to struck down Article 248, which otherwise is contrary and contradictory with the Holy Quran and Holy Prophet (PBUH) teachings which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb” and in total negation and contrary to Preamble, Articles 2A, 3, 5(2), 17, 25, 41(1), 41(2), 62(d), 62(e), 62(f), 101(1), 102(2), 227, 260(3)(a) of the Constitution of Pakistan and also with the general rule i.e. “no one is above law” but knowing the fact that the Supreme Court is the creature of the Constitution and does not claim any right to strike down any provision of the Constitution but does claim right to interpret the Constitution, even if a provision in the Constitution is a provision seeking to oust the jurisdiction of the Court.
(ii) INTERPRETATION OF ARTICLE 248 IN THE CURRENT SCENARIO IS IN THE LINE OF THE ERA OF KHULFAH RASHIDUN OR IT FAVOURS THE INTERPRETATION OF IMMUNITY OF THE MALOOKIAT ERA STARTING FROM AMEER MUAWIYAH TO THE END OF THE CALIPHATE IN 1924.
My Lordships! There are two concept of immunity in the Muslim history. The first four Caliphs known as Khulfa-e-Rashdeen don’t enjoy immunity but since Ameer Muawiyah took over in the 7th century to the end of the Caliphate in 1924, the Caliph has always enjoyed immunity. The Rightly Guided Caliphs or The Righteous Caliphs is a term used in Islam to refer to the first four Caliphs, who ruled after the death of our Prophet Muhammad (Peace Be upon Him) is often quoted as the Khulafah Rashidun. In Islam, there is no immunity up to the time of Khulfa-e-Rashdeen and they followed the Holy Quran and Holy Prophet (PBUH) teaching which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb”. The great Khulfa-e-Rashdeen at times appeared in the Court side by side with the other party. And during his time as Caliph, Hazrat Ali (AS) appeared before a Qazi and lost his case to a Jew. The other example is of the second Caliph Hazrat Umar Farooq (RA) had a shirt (Choga) on his body. He was asked to explain regarding the cloth of that shirt because the cloth of shirt according to his share was much less than the body of Caliph. The Caliph replied that he had used the share of his son for making his own shirt. This is the type of accountability which we have to follow to save the nation to put on a right path.
However, overwhelmingly since Ameer Muawiyah took over in the 7th century to the end of the Caliphate in 1924, unfortunately the Caliph has always enjoyed immunity. As shadow of God on earth, the Caliph was at several times in history the main legislator and final Court of appeal. He could never be called into a Court of law. He was above it. The institution of Caliphate has always been immune from legal action since Ameer Muawiyah took over in the 7th century to the end of the Caliphate in 1924. From Ameer Muawiyah to the end of the Caliphate in 1924, the Caliph or Ruler being the Head of State was also the Head of the Religion and regarded as a successor to the Prophet and the Caliph or Sultan has the final say in matter of State as well as in Religion. In this matter, a book written by the Jamaat-e-Islami founder Maulana Abu Ala Syed al-Maududi known as “KHILAFAT AUR MALOOKIAT“ is well known in Muslim Ummah. In this book, he analyzed how the Khilafat’s was converted into monarchy kingdom.
Though it is said that in Islam and under Shariah law, the Caliph/Sultan or Monarch/Ruler was a servant of the law, was subject to the law and was not entitled to any special exemption from the provisions of the Shariah law, yet this principle was applicable in the Muslim History to the era of Khulfa-e-Rashdeen only and none else.
The petitioner being a Communist Party and not a religious Political Party, therefore, seeks interpretation of Article 248 as to know whether the Constitution of the Islamic Republic of Pakistan, which is a Muslim country follows the Khulfa-e-Rashdeen era, when there was no immunity or the interpretation of the Supreme Court under the shadow of Article 248 is in conformity with the concept of immunity, which was allowed since Ameer Muawiyah took over in the 7th century to the end of the Caliphate in 1924. The whole nation is anxiously now waiting for the interpretation of Article 248 of the Constitution of Pakistan, 1973 in this context.
(iii) COMPARATIVE STUDY OF IDENTICAL ARTICLE 248 IN MUSLIM COUNTRY LIKE PAKISTAN WITH IDENTICAL ARTICLE 41 OF THE COMMUNIST COUNTRY OF CHINA.
My Lordship! Even otherwise, the Article 248 which provides immunity and protection to the President and Governor is conflicting and in contrary with the Holy Quran teaching which says; “if Ye Judge between mankind, that Ye Judge justly” and the Holy Prophet (PBUH) also proclaimed; “people are all equal as the teeth of a comb”. This Article 248 is also conflicting and in total negation of general rule i.e. “no one above law” and the Preamble, Articles 2A, 3, 5(2), 17, 25, 41(1), 41(2), 62(d), 62(e), 62(f), 101(1), 101(2) and 260(3)(a) of the Constitution of Pakistan, 1973 and also vide Article 227 of the Constitution of Pakistan, no law shall be enacted which is repugnant with the injunctions of Islam as laid down in the Holy Qur’an and Sunnah whereas the Article 248 which provides immunity to the President and Governor itself, is repugnant to the teachings and injunctions of Islam as laid down in the Holy Qur’an and Sunnah. It would not be out of place to mention here that according to Islam, Holy Qur’an and Sunnah, not even Caliphs or any rulers or persons has the immunity and protection as now given in Article 248 of the Constitution of Pakistan, which is known as the Islamic Republic of Pakistan whereas if we look at the Article 41 of the Constitution of the People’s Republic of China, which is a Communist and secular state and not a religious state like ours and if we compares Article 41 with Article 248, one feels where our Nation is standing in this century. The comparison of two identical articles is as under:-
Article 41. Citizens of the People’s Republic of China have the right to criticize and make suggestions to any state organ or functionary. Citizens have the right to make to relevant state organs complaints and charges against, or exposures of, violation of the law or dereliction of duty by any state organ or functionary; but fabrication or distortion of facts with the intention of libel or frame-up is prohibited. In case of complaints, charges or exposures made by citizens, the state organ concerned must deal with them in a responsible manner after ascertaining the facts. No one may suppress such complaints, charges and exposures, or retaliate against the citizens making them. Citizens who have suffered losses through infringement of their civil rights by any state organ or functionary have the right to compensation in accordance with the law.
Article 248. Protection to President, Governor, Minister, etc.
(1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not he 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.
My Lordship! In fact and in reality, the Article 248 of the Constitution of the Islamic Republic of Pakistan is against all the teachings and injunctions of Islam as laid down in the Holy Qur’an and Sunnah whereas the Article 41 of the Constitution of the Peoples Republic of China, which otherwise seems to be in conformity with the teachings and injunctions of Islam as laid down in the Holy Qur’an and Sunnah, inspite of this very fact that Pakistan is a religious and Islamic Country and China is a secular and non-religious state being a Communist Country. This aspect too deserves the attention of the Apex Court while dealing with the interpretation of this Constitutional Petition.
(iv) PRESIDENT AND GOVERNOR HAVE IMMUNITY ON CRIMINAL PROCEEDINGS UNDER THE ARTICLE 248 SUBJECT TO INTERPRETATION BY THE SUPREME COURT OF PAKISTAN BUT PRESIDENT AND GOVERNOR DON’T HAVE THE IMMUNITY AGAINST CORRUPTION PROCEEDINGS UNDER ARTICLE 248.
That in petitioner’s view, the President and Governor vide Article 248 has the immunity only against the Criminal Proceedings if any subject to the interpretation of the Apex Court and not against the Corruption Proceedings. The genuine reason is that the word ‘Criminal’ and ‘Corruption’ are altogether differently defined in the English as well as in the Legal Dictionary. Similarly the ‘Corruption Charges’ and ‘Criminal Charges’ are altogether differently defined in the English as well as in the Legal Dictionary and according to these definitions, the Corruption Charges have altogether different meanings to the Criminal Charges and this is why the President and Governor don’t have any immunity for Corruption Charges against them under Article 248. Furthermore, the Corruption Proceedings against President and Governor under Article 248 does not come under the purview and definition of the Criminal Proceedings in real and correct interpretation.
In our country, the Corruption Charges against anyone including President Asif Ali Zardari are to be dealt and comes under the purview of the National Accountability Ordinance (XVIII of 1999) whereas the Criminal Proceedings against anyone are too be dealt and comes under the purview of the Pakistan Penal Code 1860 and the Criminal Procedure Code, 1898. The judgment of the Full Court of Supreme Court in the NRO case clearly differentiates between the Corruption and Criminal Charges and it support this view that President or Governor has no immunity against those Corruption Charges being preceded in the National Accountability Court before the promulgation of National Reconciliation Ordinance, 2007.
It would not be out of place to mention here that in 1962 Constitution, which was one man made Constitution and that too by a Military Dictator Field Marshal Muhammed Ayub Khan, the situation of immunity and protection was somewhat different. Article 117 of 1962 Constitution says, “Immunity is not provided where the act or omission is in contravention of the law, in which case he is liable.” But surprisingly the 1973 Constitution although made by duly elected representative of the people but unfortunately under Article 248, they have protected the President and Governor and others assuming the Pakistan State as a Monarchy State instead of Islamic State.
(v) CONDITION AND LIMITATIONS OF IMMUNITY UNDER ARTICLE 248 OF CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973.
My Lordships! It is correct that vide Article 248, the President and Governor have the immunity and protected under Article 248 against civil as well as criminal proceedings whereas the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister have the immunity and protection under Article 248 only against the civil proceedings and not against criminal proceedings.
That all those Government Functionaries, whose names are mentioned in sub-Article 1 of Article 248 have the immunity and protected and “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.” and “No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office” but it does not mean that if the President, Governor, Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister “abrogates or attempts or conspires to abrogate, aiding or abetting or subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means,” or “do a massive corruption” or “involved in a criminal cases of a heinous crimes” or “involving a criminal case involving moral turpitude” even than they are protected under Article 248 of the Constitution of Islamic Republic of Pakistan, 1973.
My Lordship! If this interpretation that they are protected under Article 248 is accepted than the general rule i.e. “no one is above law” and the Preamble, Articles 2A, 3, 17, 25, 41(1), 41(2), 62(d), 62(e), 62(f), 101(1), 101(2), 227 and 260(3)(a) of the Constitution and the teachings of the Holy Quran and Holy Prophet (PBUH) which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb” than becomes redundant and nugatory in the Constitution of Islamic Republic of Pakistan, 1973 and this is against the basic spirit of the Constitution of Islamic Republic of Pakistan, 1973. Every Article in the Constitution specifies the purpose. The purpose of Article 248 was/is to give protection to the bonafide actions of those functionaries but it does not mean at all that if they kill an human being or involved in a criminal cases of a heinous crimes or involved in a criminal case involving moral turpitude or involved in massive corruptions or if they openly commit an act of High Treason under Article 6 and abrogate or subvert the Constitution, they are not answerable to any Court of law or criminal proceedings cannot be initiated against them. The immunity of criminal proceedings to President and Governor under sub-Article 2 of Article 248 is related and dependent “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.” and for that they “shall not be answerable to any Court” but only for bonafide actions and broader meanings that the President and Governor have the free license of immunity and protection for all his evil deeds during the whole tenure of its Presidency and Governorship is infact the total negation of the general rule i.e. “no one is above law” and basic spirits of the Constitution of the Islamic Republic of Pakistan, 1973 with respect to the Preamble, Articles 2A, 3, 5(2), 17, 25, 41(1), 41(2), 62(d), 62(e), 62(f), 101(1), 101(2), 227 and 260(3)(a) of the Constitution and the Holy Quran and Holy Prophet (PBUH) teachings which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb”.
That immunity provided in Article 248 of the Constitution cannot extend to illegal or un-Constitutional acts. President, Governor and Prime Minister etc are bound to obey the Constitution and law under Article 5(2) of the Constitution which is basic obligation of every citizen. Neither the Constitution nor any law authorizes President, Governor and Prime Minister etc to commit a criminal act or do anything which is contrary to law.
(vi) PREVIOUS INTERPRETATION OF ARTICLE 248 OF THE SUPREME COURT CONCERNING IMMUNITRY OF PRESIDENT AND GOVERNOR.
That the interpretation of Article 248 came up for interpretation in CH. ZAHUR ILAHI’S CASE (PLD 1975 SC 383). The scope and the operational area of the said provision were so stated by this Court:-
“…………the immunity provisions must, in accordance with the accepted principles of interpretation, be construed strictly and unless persons claiming the immunity come strictly within the terms of the provisions granting the immunity, the immunity can not be extended. The immunity is in the nature of an exception to the general rule that no one is above the law.”
The matter was further explained thus:-
“Hence, since neither the Constitution nor any law can possibly authorise him to commit a criminal act or do anything which is contrary to law, the immunity can not extend to illegal or un-Constitutional acts.”
This Court, when confronted again with the protection provisions of Article 248 in AMAN ULLAH KHAN’S CASE (PLD 1990 SC 1092) reiterated that the said provisions were required to be strictly construed and added that:-
“56. If mala fide of fact was pleaded by a party then it had to decide for itself whether on the material with it, the Minister has to be impleaded in spite of the protecting provisions of the Constitution; because if his act does not fall within the purview of the provision so interpreted, then he can be impleaded as a party and all the objections to such impleadment dealt with in the proceedings. In the absence of the party, no finding with regard to mala fide of fact (as distinguished from malafide of law) can be recorded, should be recorded and should have been recorded. Recourse to the principles of natural justice to overcome the prohibition contained in Article 248 of the Constitution is not permissible.”
It was further declared that:-
“Protection under Article 248 of the Constitution is not available to the designated functionaries if their actions suffer from mala fide of fact ……………………………………………… …………………… where the allegation against the protected functionaries is one of mala fide of fact, they have to be personally impleaded as a party to the proceedings;”
The views of Naseem Hassan Shah J. in the same case are also enlightening for the resolution of the issue in question. The same read as under:-
“Now the immunity to a Minister extends only to the exercise of powers and performance of functions of his office or for any act done or purported to be done in the exercise of those powers and performance of those functions. A Minister can be said to be acting in exercise of the powers and functions of his office, if his acts are such which not only lie within the scope of the powers and functions conferred on him by law but are performed bona fide and for carrying into effect the intention and purposes of the statute under which he is acting. If on the other hand his acts are performed with mala fide intent or for a colourable purpose, such acts will not be deemed to have been performed in the lawful exercise of the powers and functions vested in him and will not, therefore, be covered by the immunity. Accordingly, where it transpires that a Minister has acted illegally and abused his discretion and the illegality committed was not in the bona fide exercise of his powers and functions but on account of mala fides the immunity contained in Article 248(1) would not extend to protect such an act.”
To the similar effect were the views expressed by this Court in NAWABZADA MUHAMMAD UMAR KHAN’S CASE (1992 SCMR 2450) which were as under:-
“Secondly, where allegations of malafide of fact are involved or alleged, it is necessary that the parties against whom such mala fide of fact is alleged must be impleaded as a party so that it has occasion to meet the allegation. This is notwithstanding the Constitutional protection enjoyed by such functionaries under Article 248 of the Constitution vide Amanullah Khan and others v. the Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092).”
That vide Para 107 of the detailed Judgment in Constitutional Petition Nos. 21, 7, 8, 10, 11, 12, 15, 16 (Communist Party of Pakistan through its Chairman versus Federation of Pakistan and others), 18, 19, 22, 23, 24, 25, 27, 30, 31, 32, 33, 34, 35, 38, 40 of 2007, C. M. Appeal Nos. 22, 27 of 2007 as delivered in a case titled Chief Justice of Pakistan, Mr. Justice Iftikhar Muhammad Chaudhry VERSUS the President of Pakistan (PLD 2010 SC 1) by 13 members bench headed by Mr. Justice Khalil-ur-Rehman Ramaday, immunity was not granted to the President General Pervaz Musharraf and accordingly the President was impleaded as a party due to the “detention of the chief justice at the Army House/President’s Camp for about five hours; the alleged illegal detention of the wife and the children of the chief justice in their house etc.”
My Lordships! All these actions of illegal detention of the chief justice, his wife and children, etc. are of criminal nature, which a sitting President ordered, but the Supreme Court did not give him immunity under Article 248(2), which says no criminal proceedings can be initiated or continued against a sitting President. Then how can the incumbent President are given immunity in all those corruption cases pending before the Accountability Courts prior to becoming of his President.
Many past judgments were also quoted by the Justice Ramday judgment of Dec 24, 2009. It said that such an immunity clause had been examined by the Privy Council in HB Gills case (AIR 1948 Privy Council 148) and the reaction of the Privy Council to such-like protective provisions was as under: “Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus, a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government medical officer acts or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.”
(vii) THE MALAY RULERS’ LOSS OF IMMUNITY AND THE IMMUNITY ISSUES OF THE DIFFERENT WORLD LEADERS IN THE PAST.
The Pakistani society has a genuine concern in the outcome of this significant Constitutional issue. It is for the first time a sitting President in Pakistan is faced with a situation where old corruption and criminal charges have been revived against him. Despite what the Constitution says about Presidential immunity, there in not sufficient jurisprudential guidance available, since the Apex Court in Pakistan has not had the challenge to decide a case of this nature before.
From its inception in 1957 the Constitution of Malaysia has provided immunity to the Malay Rulers (or Sultans) against civil actions or criminal prosecutions. Early in 1993 the Constitution of Malaysia was amended to remove this immunity, otherwise, there was a time in Malaysia, when the Malay Rulers or Sultans being the Head of State were also the Head of the Religion and regarded as a successor to the Prophet and the Sultan has the final say in matter of State as well as Religion.
However, there aren’t many precedent rulings by foreign Courts at hand either. In the United States of America (USA), for instance, a sitting President has never faced criminal charges arising out of his official or his private conduct and, therefore, the issue with regard to Presidential immunity in criminal context had not come up for judicial consideration. On the other hand, it is well settled through USA Supreme Court (SC) decisions that a sitting President has immunity for his “official conduct” in civil actions. Such immunity, nevertheless, does not cover his private conduct.
In this back ground, two cases come to mind. The first was Nixon versus Fitzgerald, a law suit by a Government employee who was sacked after he testified before a USA congressional sub-committee which did not agree with the executive branch. After pursuing legal remedies at various forums, Fitzgerald finally went before the SC and sought civil damages for wrongful termination. The main issue in the SC was whether the President is entitled to absolute immunity for his official conduct in a civil case for damages for wrongful termination of a federal employee.
The Court held that the President has the privilege of immunity for his official conduct, but not for his un-official conduct. As observed by one legal commentator, “the absolute immunity created by the SC is not a special privilege enjoyed solely by one person by the nature of his office. Instead, it is an area carved out by the Courts to ensure the official effectively pursues the interests of the public and to perform his functions without fear that his certain actions may draw personal, civil or criminal liabilities. Extending this immunity to the broad power of the President is the necessary step to allow the leader chosen by the people to fulfil the function bestowed by the USA Constitution”.
The second case is Clinton versus Paula Corbin Jones, in which a former employee filed sexual harassment suits against then President Bill Clinton for incidents occurred while the latter was the Governor of Arkansas. When this case went before the SC, the issue was whether the sitting President is entitled to “temporary” immunity from a civil case arising out of events that occurred before he took office.
President Clinton’s counsel argued that if such civil action was allowed to proceed, it would impose an unacceptable burden on the President’s time and energy and, thus, would impair his effective performance of his Constitutional duties. The Court rejected such reasoning, noting that many USA Presidents in the past had gone through the judicial process even though the process imposed many burdens on them. It also noted several incidences where former Presidents have given disposition and videotaped testimony, including President Nixon who had to produce the tape recording of his conversation with his aids.
And without a single dissenting note coming from any of the judges hearing this case on May 27, 1997, the USA Court ruled in favour of Paula Jones by finding that the President does not have immunity from civil lawsuits relating to personal conduct not part of his official duties. The ruling asserted that although a President cannot be sued for actions related to his official duties, he was subject to the same laws regulating purely private behaviour as the general population.
The landmark case of Clinton v. Jones (1997) thus went out setting the precedent that a sitting US President is not immune from prosecution for acts committed before taking office.
It is, however, not clear how the USA SC would rule if a sitting President were indicted for criminal conduct, as no case ever addressed this question before. There were, however, two incidents, where two Vice Presidents at separate occasions were criminally prosecuted while still in office. In one of the cases, the prosecutor argued that the Vice President is not entitled to temporary immunity from criminal indictment, but did acknowledged that the President, while in office, may enjoy temporary immunity from indictment and criminal prosecution.
The USA enjoys a Presidential form of Government, in which the President, as the Chief Executive, Head of State and Commander-in-Chief, has been given enormous responsibilities. In this form of Government, the principle of separation of power is deeply embedded and operative. Wherefore the feasibility of enforcement of both the judicial process and ruling could be a matter of grave concern. The temporary immunity is just a way to postpone the criminal judicial process until the President is removed or resigned from office, without creating political or Constitutional chaos. However, despite some theoretical similarities, the factual grounds here are quite different from what Pakistan is currently witnessing.
In Pakistan, the Apex Court is being confronted with enormous challenges. While the Court needs to assert its constitutionally given authority, it should also be cognizant of the fact that it is bound to step into many legal gray areas, where no clear-cut Constitutional direction is readily available. This is exactly where the real challenge for the Court lies. It is yet to be seen if the Court will manage to navigate through high tides with vision, vigour, and impartiality in a consistent manner on the long and perilous journey ahead.
Although, the prosecution of the incumbent and in-power heads of state within their own countries still remains a rarity due to the functional and personal immunity they continue to enjoy, courtesy their respective Constitutions, the still continuing trial of the three-time Italian Prime Minister Silvio Berlusconi on his own soil should serve as an example in this context.
The 73-year old Italian premier Berlusconi, quoted by the Forbes magazine as being the third richest Italian, is also currently the longest-serving leader of any G-8 country. Berlusconi, who also runs three analogue television channels, various digital television channels as well as some of the larger-circulation national news magazines that account for nearly half the Italian media market, besides owning the Italian football club A.C. Milan, is currently facing charges of bribing his former British tax adviser David Mills with $0.6 million to withhold evidence about his business dealings during corruption trials in the 1990s.
Tried in Italian Courts in several cases, Silvio Berlusconi has an extensive record of criminal allegations, including mafia collusion, false accounting, tax fraud, corruption and bribery of police officers and judges. He was acquitted in all the cases except the one he is presently facing. In his own words, 789 prosecutors and magistrates took an interest in his cases from 1994 to 2006, police visited him 577 times, and he attended over 2,500 Court hearings, besides paying 174 million euros to his lawyers.
(viii) UNDER ARTICLE 184(3) NOT ONLY AN AFFRIEVED PERSON BUT ANY PERSON CAN KNOCK THE DOORS OF SUPREME COURT AND NO QUESTION OF LOCUS STANDI OR ON RIGHT FORUM IS INVOLVED.
My Lordships! That under Article 184 (3) not only an aggrieved person but any person can knock the doors of Supreme Court and no question of locus standi or on the right forum is involved in the aforesaid Constitutional Petition of the petitioner. That also 9 member’s bench headed by Chief Justice of Pakistan Iftikhar Muhammad Chaudhry in a famous case of Pakistan Steel Mill titled Wattan Party versus Federation of Pakistan etc reported as PLD 2006 SC 697 and 11 members bench headed by then Chief Justice of Pakistan Muhammad Haleem in a celebrated case of Miss Benazir Bhutto versus Federation of Pakistan and others reported as PLD 1988 SC 416 already has dealt with this issue of locus standi in an elaborated manner and which are reproduced herewith for ready reference and is as under:-
PLD 2006 Supreme Court 697
(b) Constitution of Pakistan (1973) —
—- Art. 184(3) — Public interest litigation — Locus standi — Any member of the public having sufficient interest can maintain an action for judicial redress of public injury arising from breach of the public duty or from violation of some provision of the Constitution or the law and for enforcement of such public duty and observance of such Constitutional provision — Principles.
Any member of the public having sufficient interest can maintain an action for judicial redress of public injury arising from breach of the public duty or from violation of some provision of the Constitution or the law and for enforcement of such public duty and observance of such Constitutional provision. [p. 717] B
Only when the element of public importance is involved, the Supreme Court can exercise its power to issue the writ while sub-Article 1(c) of Article 199 of the Constitution has a wider scope as there is no such limitation therein. [p. 717] C
Question of locus standi is relevant in a High Court but not in the Supreme Court when the jurisdiction is invoked under Article 184(3) of the Constitution. [p. 717] D
Under Article 184(3) of the Constitution, a Supreme Court is entitled to take cognizance of any matter which involves a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I Part II of the Constitution even suo motu, without having any formal petition. [p. 717] E
PLD 1988 Supreme Court 416
(e) Constitution of Pakistan (1973) —
— Arts. 184(3) & 199 — Interpretation of Art. 184(3) — Principles — “Public Importance” — Connotation — Enforcement of Fundamental Rights by Supreme Court — Scope — Supreme Court, can exercise its powers to issue the writ only when element of “public importance” is involved while Art. 199(1)(c) has a wider scope as there is no such limitation —
In order to acquire public importance, the case must obviously raise a question which is of interest to, or affects, the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case, may be of no particular consequence. [p. 492] J
Having regard to the connotation of the words “public importance” it will be for the Supreme Court to consider in each case whether the element of “public importance” is involved in the enforcement of the Fundamental Rights irrespective of the individual’s violations or the infractions of a group or a class of persons. [p. 492] L
As provisions of Article 184(3) is open-ended, the proceedings could either be maintained by an individual whose Fundamental Rights are infracted or by a person bona fide alleging infraction of the Fundamental Rights of a class or a group of persons, as there is no rigid incorporation of the notion of “aggrieved person.” [p. 493] M
It is not correct that it is only an aggrieved party who can activise the proceedings for the enforcement of the Fundamental Rights under Article 184(3) of the Constitution as by reason of the fact that the two provisions [ Art. 184(3) and Art. 199 1(a) 1(c) ] are co terminus. [p. 493] N”
Furthermore, besides above, the other judgments of the Supreme Court in this context are summarised as under:-
(a) That five member’s bench headed by then Chief Justice of Pakistan Sajjad Ali Shah in a case titled Al-Jehad Trust versus Federation of Pakistan and others (PLD 1996 SC 324) held as follows:-
“ (n) Constitution of Pakistan (1973) —
— Arts. 199 &184(3) — Invocation of jurisdiction under Arts. 184(3) & 199 of the Constitution — Locus standi — Remedies under Arts. 199 & 184(3), Constitution of Pakistan available in a High Court and the Supreme Court respectively are concurrent in nature — Question of locus standi is relevant in a High Court, but not in the Supreme Court when the jurisdiction is invoked under Art. 184(3) of the Constitution. [p. 372] T
“(s) Constitution of Pakistan (1973) —
— Art. 184(3) — Constitutional petition under Art. 184(3), Constitution of Pakistan — Locus standi to file — Not only a practising advocate but even a member of the public is entitled to see that the three limbs of the State, namely, the Legislature, the Executive and the Judiciary act not in violation of any provision of the Constitution, which affects the public at large. [p. 419] UU”
(b) That ten member’s bench headed by then Senior Judge Saiduzzaman Siddiqui in a case titled Malik Asad Ali versus Federation of Pakistan and others (PLD 1998 SC 161) held as follows:-
“ (l) Constitution of Pakistan (1973) —
— Art. 184(3) — Interpretation and scope of Art. 184(3) of the Constitution — Constitutional petition before Supreme Court under Art. 184(3) of the Constitution of Pakistan — Cognizance of case by Supreme Court — Procedure
In order to take cognizance of a case under Article 184(3) of the Constitution by Supreme Court, it must be shown that the question raised in the petition is one of public importance and that the relief claimed therein relates to the infringement/enforcement of a fundamental right guaranteed under the Constitution…This liberal interpretative approach opens the door of “access of justice to all”. [p. 238] S”
(c) That five member’s bench headed by then Chief Justice of Pakistan Saiduzzaman Siddiqui in a case titled Al-Jehad Trust versus The President of Pakistan and others (PLD 2000 SC 84) held as follows:-
“ (a) Constitution of Pakistan (1973) —
— Art. 184(3) — Constitutional petition before Supreme Court under Art. 184(3) of Constitution — Maintainability— Direct petition under Art. 184(3) of the Constitution is maintainable if the Supreme Court considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chap. I of Part II of the Constitution is involved — If the petitioner succeeds in establishing breach of any of the Fundamental Rights involving a question of “public importance”, he is entitled to the appropriate relief. [p. 88] A”
(d) That full bench headed by then Chief Justice of Pakistan Ajmal Mian in a case titled Pakistan Tobacco Company Ltd versus Federation of Pakistan and others (1999 SCMR 382) held as follows:-
“ (a) Constitution of Pakistan (1973) —
— Art. 184(3) — Constitutional petition under Art. 184(3) of the Constitution before Supreme Court — Maintainability — Question whether a particular Constitutional petition filed under Art. 184(3) of the Constitution directly in Supreme Court is maintainable is to be examined not on the basis as to has filed the same, but the question is to be determined with reference to the controversy raised in the Constitutional petition, and if the controversy involves a question of public importance with reference to the enforcement of any of the Fundamental Rights the same will be sustainable. [p. 389] A”
(e) That eleven member’s bench headed by then Chief Justice of Pakistan Nasim Hassan Shah in a case titled Mohammed Nawaz Sharif versus President of Pakistan and others (PLD 1993 SC 473) held as follows:-
“Constitution of Pakistan (1973) —
— Art. 184(3) — Art. 184(3) of the Constitution provides abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction — Supreme Court has to lay down the contours generally in order to regulate the proceedings of group or class of actions from case to case. [p. 668] E”
(f) That it was held by the five members’ bench headed by then Chief Justice of Pakistan Nasim Hassan Shah that an impugned order affecting the whole country is sufficient ground to invoke jurisdiction of the Supreme Court of Pakistan under Article 184(3) vide judgment titled Syed Wasey Zafar versus Government of Pakistan reported as PLD 1994 SC 621.
(g) And in view of 11 members bench of Supreme Court headed by then Chief Justice of Pakistan Abdul Haleem Khan in a famous case of Miss Benazir Bhutto vs Federation of Pakistan etc. (PLD 1988 SC 416, 514) in which it was held “Article 17 (2) provides a basic guarantee to a citizen against usurpation of his will to freely participate in the affairs and governing of Pakistan through political activity relation thereto……”
(h) Supreme Court of Pakistan has the jurisdiction under Article 184(3) for the interpretation of Article 248 besides the inherit jurisdiction and we must also understand the special nature of the Constitution in this controversial matter. The Constitution of Pakistan, 1973 declares that each and every citizen of Pakistan, and every person within Pakistan, even if he is a foreigner, has to abide by the Constitution of Pakistan, 1973. The Constitution is not a simple law, it is the paramount law.
The 1973 Constitution is very crucial for the survival of the country. It is the only Constitutional document ever to have been promulgated unanimously by each and every member of the National Assembly. Out of 200, 196 voted in favour of it. There were four abstentions, not a single vote of dissent against the passing of the Constitution in 1973. In the document, the framers of the Constitution provided Article 184, which also stipulated the boundaries of judicial activism. The boundaries are, firstly, that the Court can take up only a matter of public importance, and secondly, one that pertains to fundamental rights. So if a whole scale infringement of fundamental rights is taking place, Article 184 enables the SC to act. This is, of course, in the larger interest of the people. For instance, if a dam that is providing water to say 10,000, or even 1,000 people, is being polluted, their fundamental rights are being violated. They may not have the resources to initiate a case against the violators, but the Court can take up the matter. So it is a wonderful device. It’s good for the poorer segments of society, it protects them and it supports them – and it is very much a matter of fundamental rights. Now if anybody has a personal dispute with somebody, this doesn’t come into the picture at all. So, the test is fundamental rights and public importance. If the SC takes notice of a matter which does not fall within these two conditions then it can be said to be acting beyond its jurisdiction. Keeping in view as explained above, it is beyond any shadow of doubt that indeed, a question of a public importance with reference to the enforcement of the Fundamental Rights conferred by Chapter I of Part II is involved in this Constitutional Petition.
PRAYER IN PETITION:-
1. In view of the above, the petitioner very graciously and respectfully prayed this Honourable Court to please kindly declare and to provide the following remedies:
(a) that this learned Court be pleased to kindly interfere to exercise its Constitutional power to the effect that an interpretation of Article 248 of the Constitution of Pakistan on the points of law as raised by the petitioner in the instant Constitutional Petition may kindly be given, which of course is the prerogative as well as the duty of the Supreme Court as envisaged in the Constitution. The aforesaid titled Constitutional Petition is filed by the petitioner not requesting the Supreme Court of Pakistan to struck down Article 248, which is though in contrary and in violations with the Holy Quran and Holy Prophet (PBUH) teaching which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb” and in total negation and contrary to Preamble, Articles 2A, 3, 5(2), 17, 25, 41(1), 41(2), 62(d), 62(e), 62(f), 101(1), 227, 260(3)(a) of the Constitution of Pakistan and also with the general rule i.e. “no one is above law” but knowing this very fact that the Supreme Court is the creature of the Constitution and does not claim any right to strike down any provision of the Constitution but does claim right to interpret the Constitution, even if a provision in the Constitution is a provision seeking to oust the jurisdiction of the Court.
(b) To kindly declare that the President immunity under Article 248 if any is restricted to Pakistan only and not against any Criminal or Corruption or any other Charges against him outside the Pakistan likes the Swiss and Spain cases.
(c) To declare that the President/Governor under Article 248 don’t have any immunity on the ‘Corruption Charges’ and the immunity if any is restricted to ‘Criminal Charges’ only and that too is subject to the interpretation of the Supreme Court of Pakistan.
(d) To kindly direct the Respondents No. 1 and 2 for reopening of all the Corruption Cases and References pending for decision with the respective Accountability Courts against President Asif Ali Zardari on the reasons as above mentioned in this constitutional petition.
(e) That this interpretation of Article 248 is, otherwise, now the needs of hour and our nation as well. The reason being, as on the one hand, the Supreme Court vide its NRO Judgment dated 16-12-2009 and Larger Bench dated Ist of April, 2010 ordered Respondents No. 1 and 2 for opening of the Swiss cases and all other cases within Pakistan but on the other hand, a meeting of the Central Executive Committee (CEC) of the PPP convened in Naudero on 3rd April 2010 presided by President Asif Ali Zardari flatly refused, declared and resolved that the Peoples Party would resist the reopening of Swiss cases and trial of its late leader, Benazir Bhutto and Begum Nusrat Bhutto and the CEC declared that the reopening of Swiss cases is tantamount to the desecration of Zulfikar Ali Bhutto’s grave whereas as per some media reports, it was reported by the Federal Law Minister Babar Awan that the reopening of Swiss cases would be at his death body. Similarly, the PPP Information Secretary Fauzia Wahab said the Swiss cases technically could not be reopened as they had been decided on merit and the Swiss Attorney had stated that there was no possibility of reopening such cases. It would not be out of place to mention here that the Parliament Special Committee on Constitutional Reforms headed by Senator and Advisor to the PM Mian Raza Rabbani (Respondent No. 7) for amending the Constitution of Pakistan presented its report for amending 97 Articles after its 77 consecutive meetings to both the Houses of the Parliament on 2nd April, 2010 and of course, it is really very surprising that the 27 Members Parliament Special Committee comprising of all political parties of both the Houses of the Parliament including Pakistan Muslim League (N), Pakistan Muslim League (Shujaat), Pakistan Muslim League (Saifullah), Muttahida Qaumi Movement, Awami National Party, Jamiat Ulama-e-Islam (F), Jamaat-e-Islami Pakistan, Pakistan Muslim League (F), Balochistan National Party (Awami), National Party, Pakistan Peoples Party (Sherpao), National Peoples Party, Pashtoonkhawa Milli Awami Party and Jamhoori Wattan Party (Respondents No. 9 to 22) have double standards and this was the reasons that without any ambiguity, all of them clear cut compromised on the Article 248 with Pakistan Peoples Party Parliamentarians ( Respondent No. 8 ) and President Asif Ali Zardari and accordingly the Committee did not even touched a comma or full stop of Article 248, which otherwise is in contrary with the general rule i.e. “no one is above law” and contradictory and conflicting with the Preamble, Articles 2A, 3, 5(2), 17, 25, 41(1), 41(2), 62(d), 62(e), 62(f), 101(1), 101(2), 227 and 260(3)(a) of the Constitution of Pakistan and also in contrary and in violations with the Holy Quran and Holy Prophet (PBUH) teaching which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb”. Under these circumstances, the interpretation of Article 248 has thus now become essential and the Supreme Court may kindly interpret and defined the boundaries and limitations of immunity to President and Governor under Article 248 of the Constitution of Pakistan.
(f) It is also prayed that contempt proceedings may kindly be initiated against all those contemptuous who are now openly defying the Order of Full Court of SC given in NRO Judgment dated 16-12-2009.
(g) Also an appropriate order which deemed fit in the current scenario for resolving this controversial issue may kindly be passed.
2. Any other remedy for the supremacy of the Constitution and the law, which this Honourable Court deems fit and appropriate in the facts and circumstances of the case, may also be granted and this petition may kindly be accepted. This prayer is made in the interest of justice.
Drawn up and filed by:
Sig/-
Dated:- 14th April, 2010. (Engineer Jameel Ahmad Malik)
Petitioner-in-Person,
Chairman of Communist Party,
Communist Party Secretariat,
1426-Fateh Jang Chowk,
Attock Cantonment.
Tel: 057-2611426
Fax: 057-2612591
Mob: 0300-9543331
Website: www.cpp.net.pk
LIST OF BOOKS:
1. The Constitution of the Islamic Republic of Pakistan, 1973.
2. PLD 1988 SC 719
3. PLD 2005 SC 719
4. 1999 SCMR 382
5. PLD 2000 SC 84
6. PLD 2006 SC 697
Certificate:-
Certified that this is the first petition in the Supreme Court on the subject:
Sig/-
(Engineer Jameel Ahmad Malik)
Petitioner-in-Person.