Contempt of Constitution – Part 1

In the Contempt of Court case, the Supreme Court of Pakistan (SCP) headed by the Chief Justice (CJP) Iftikhar Muhammad Chaudhry, convicted & disqualified the Prime Minister Syed Yousuf Raza Gillani, canceling his National Assembly membership, ousting him from the seat of the premier. PM Gillani had refused to obey the orders of the apex court instructing the Govt. to write letter to the Swiss Authorities for reopening the cases against President Asif Ali Zardari related to money laundering & kick backs in SGS/Cotecna cargo Inspection Company.

Raja Pervez Ashraf has taken the charge as the new Prime Minister of Pakistan & has started performing the duties. The Supreme Court of Pakistan, performing its duties, has asked the newly elected Prime Minister to show his consent whether or not he will write the letter to Swiss Authorities for the reopening of cases against President Zardari. The Honourable Court had given 15 days time to PM to act as per the Court Orders. Irrespective of the authenticity of the cases & possibilities to sack President Zardari if proved guilty, our concern is to highlight if SC is getting overboard its constitutional authorities or not.

The official website of the Supreme Court of Pakistan states that:

The Supreme Court was created under the Constitution of 1956. It succeeded the Federal Court, set up in 1948, which was successor to the Federal Court of India, established in 1937. Since its creation in 1956, the Supreme Court has retained its name and jurisdiction through the successive legal instruments including the Constitution of 1973.

Wherein, Supreme Court itself admitting its creation & status retained by the Constitution, hence, accepting the supremacy of its creator i.e. the Constitution of Pakistan & the constitution elaborates the supremacy of the President as:

45. President’s power to grant pardon, etc.
The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.

In a verdict in NRO implementation case, SC had ordered the Govt. to write letter to the Swiss Authorities against President Asif Ali Zardari for reopening cases against him. The order itself was a violation of constitution as article 248 protects the President from any sort of criminal or civil proceedings & assures immunity from arrest or imprisonment during his term of office.

The Constitution of Pakistan, Article 248 states that:

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.
(4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of anything done by or not done by him in his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims.

Above excerpts are plainly signifying the limits & authorities of both, the Supreme Court & the President. I am not a Lawyer or Constitutional Expert but any layman like me after going through the above lines can easily judge the unconstitutional nature of the Order passed by the SC on NRO implementation case, hence refused by the PM Gillani to obey, resulting in his ouster from the house.
(to be continued…)


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