The Prime Minister of Pakistan, Mr Youasf Raza Gilani, is under dark clouds in these days as he is facing contempt of court proceedings in the Supreme Court of Pakistan for not writing a letter to the Swiss government to reopen the graft cases against Mr Asif Ali Zardari, the President of Pakistan, despite its new direction dated 8 March, 2012. Conversely, Mr Yousaf Raza Gilani is of the firm view that “the President of Pakistan, who is also head of the state, has been provided complete immunity against the initiation of any kind of criminal proceedings in any court by the constitution of the Islamic Republic of Pakistan as long he is holding the office of the president. The immunity is also available to him under the international law as well.” He says that if he does not write a letter to the Swiss government as directed by the Supreme Court he may go behind the bars for six months but if he writes a letter, he would commit much bigger crime which may even take him to gallows for violating the constitution of the Islamic Republic of Pakistan.
The constitutional experts are sharply divided on the interpretation of the immunity clause which provides protection to the president. Some of them are of the opinion that there is no harm in writing a letter. If the Swiss government decides to initiate criminal proceedings against him, he may claim immunity against his trial provided to him in the constitution. Other legal and constitutional experts are of the view that it would be ridiculous to take up such a plea in the Swiss court by the president of Pakistan, especially in the circumstances when the Supreme Court of his own country has not provided him the said protection. In view of divergent views of the legal and constitutional experts, it is appropriate to have a look into the provision of the constitution itself.
Article 248 clearly states that no criminal proceedings whatsoever shall be instituted or continued against the president or a governor in any court during his term of office, and no process for arrest or imprisonment of the president or a governor shall be issued from any court during his term of office.
Although from the very face of it, Article 248 forbids the initiation or continuation of any kind of criminal proceedings against the president during his tenure, yet there are number of constitutional experts who are of the view that since the Supreme Court has the unfettered powers to interpret the constitution, it may do so in any way it likes and may send the prime minister behind the bars for not obeying its order. However, there are many other legal and constitutional experts, who are of the view that when the language of the constitutional provisions or law is clothed with clear and unambiguous words, even the Supreme Court does not have the power to interpret it differently. Hence, the Supreme Court cannot interpret the word “NO” into “YES” as it has to work while remaining within the limit of the constitution.
Should such an eventuality arise when the Supreme Court decides to send the prime minister behind the bars on the basis of its authority of interpretation, it may give rise to a very complex situation as. After the conviction of prime minister, some frustrated citizen may send a reference under Article 209 of the constitution to the president for referring it to the Supreme Judicial Council to inquire into the conduct of all those judges of the Supreme Court who remained directly or indirectly involved in the interpretation of the above constitutional provision. In such a complex situation, it is feared that there may hardly be any judge of the Supreme Court left to preside over the proceedings of the Supreme Judicial Council for determining the issue as to who violated the provision of the constitution: prime minister or judges of the Supreme Court.
In order to avoid this ugly situation where almost all the judges of the Supreme Court are required to face the Supreme Judicial Council for inquiry into their conduct, which would certainly be highly undesirable and embarrassing for the judges and as well as for the nation, some well-wishers of the judiciary are of the view that it would be wiser and more appropriate if the honourable judges of the Supreme Court stop proceedings in this case and refer it to the parliament for making a decision on the issue of immunity to the president rather than deciding it themselves, just like it was done in the past on the matter of the 18th amendment in the constitution concerning the articles relating to appointment of higher judiciary for an oversight by the parliament.
The writer is a lawyer.
