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| If Hazrat Umar can be questioned |
why not president: Aitzaz (before SC-2007) Who said what about president’s immunity in CJ case
Tuesday, February 02, 2010
By Ansar Abbasi
ISLAMABAD: The robust defence now being offered by some constitutional wizards for the immunity enjoyed by President Asif Ali Zardari is precisely similar to the that was advanced by the legal aides of his predecessor Pervez Musharraf in 2007 to protect the dictator’s answerability before Justice Khalilur Rehman-led 13-member bench of the Supreme Court.
While Syed Sharifuddin Pirzada and Malik Qayyum had strained their vocal chords to defend Musharraf’s immunity inside the courtroom, Barrister Aitzaz Ahsan, Hamid Khan, Fakhruddin G Ibrahim and others of their class had mercilessly attacked the president’s immunity.
Musharraf’s legal eagles wanted to secure for him the constitutional immunity under Article 248(1) of the Constitution; now in case of President Asif Ali Zardari Article 248(2) is cited to secure him from facing corruption cases in the courts.
Scanning through the newspaper clippings of May-July 2007 period when a 13-member bench headed by respected Justice Khalilur Rehman Ramday heard the Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhary, it is interesting to find Barrister Aitzaz Ahsan, Hamid Ali Khan and Fakhruddin G Ibrahim vigorously fighting against the constitutional immunity that Sharifuddin Peerzada and Malik Qayyum were seeking from the court.
Both Aitzaz Ahsan and Hamid Ali Khan while citing the example of Hazrat Umar (RA), who was questioned for his Abaya (long shirt), said that if the second Caliph of Islam could be questioned then why not the president of Pakistan. Not only that, Justice Ramday had said in his observations that the president was not above the law; the same was pressed by Aitzaz Ahsan too.
When Aitzaz was arguing for action against President Musharraf despite Article 248 of the Constitution, he was asked by Justice Nawaz Abbasi (who later took oath under Musharraf’s PCO) that if Article 2(A) is read with Article 248 of the Constitution how would it impact the president. To this, Aitzaz said that although he did not want to refer to the Islamic traditions, if Hazrat Umar (RA) could be questioned about his Abaya (long shirt), why could not president Musharraf be impleaded in the case.
Article 2(A) forms Objective Resolution as part of the Constitution’s substantive provisions.
As reported by an English daily on May 30, 2007, Ch Aitzaz Ahsan argued that according to Article 248, the president and governor could not be made party in criminal cases, they could not be arrested; but if any of their acts was contrary to the law, they have no protection under Article 248 of the Constitution. On this, Justice Faqir Khokhar remarked that the position of the president and governor was different from that of prime minister and chief Minister. If Articles 48 and 248(1) were read together, Justice Khokhar said, it would be clear that they had protection in the Constitution.
Aitzaz replied, “They have no immunity in this case.” While giving the reference of Justice (Retd) Malik Qayyum’s judgment, he said that it was absolutely clear that any act contrary to the law did not make the president and governor invulnerable. Justice Ramday asked, “Why do you want to implicate the President in person, the federation is fulfilling your purpose?” Aitzaz replied the question is not immunity but is subject to judicial review.
Justice Ramday asked again, “What is the inevitable reason that you want trial on President?” Aitzaz replied the federation is not answerable for the act of the president and if the government cannot answer the questions then the referring authority would be answerable, and gave the reference of the incident of March 9.
Justice Ramday asked, “If these were the questions, which one the president would have to answer?” Aitzaz gave an argument that the Chief Justice of Pakistan in his petition had levelled serious allegations of mala fide against the president and the president was not above the law. He gave the reference of Amman Ullah vs the Federal Government case and said that it was accepted in this judgment that the president could be made party.
Justice Ramday remarked that there was difference between the president and the minister. Aitzaz replied, “If you may see the law, there is no difference and gave the reference of Khawaja Tariq Rahim and Sherpao case in which the president was made party and the court had summoned the prime minster.
Justice Faqir Khokhar remarked that the PM could be summoned in a case but not the president and governor. “The president is not just only the referring authority”, he said. If he was not mala fide, then why did he call the CJ, simply a reference could be sent to the Supreme Judicial Council? In this situation protection under Article 248 is not available, he said.
Another English daily reported on May 30 that Justice Ramday observed that no state functionary, not even the president could claim absolute immunity.
“What the law said was that the president could not be made a respondent before a court by name under Article 248 of the Constitution, although nobody could claim absolute immunity,” the newspaper quoted Justice Ramday as having said while responding to the arguments of Advocate Hamid Khan, representing the Pakistan Bar Council, who had stated that the counsel of the federal government were claiming immunity for the president that he was not answerable to the court.
Citing two cases from the US judicial history, United States versus President Nixon and President Clinton versus Jones, Hamid Ali Khan was reported to have recalled that the two presidents of America had also claimed privilege but the US courts had interpreted the laws in a different way, contrary to what was being asserted.
Jang reported that Hamid Ali Khan in his arguments had also referred to Maulana Shibli Nomani’s book Al-Farooq and said that Hazrat Umar (RA) had appeared before a Qazi ten times.
Sharifuddin Pirzada and Malik Qayyum had shown their serious grievance over the issue. Both had argued that under Articles 211 and 248 of the Constitution, the president cannot be impleaded due to the immunity available in these articles.
Senior advocate Fakhruddin Ebrahim had said that Pervez Musharraf could not be extended constitutional immunity because he had become president through “extra-constitutional measures”.
“My case is that president Musharraf is not a duly elected president and, therefore, does not enjoy constitutional immunity,” Mr Ebrahim was quoted to have argued before a 13-member larger bench of the apex court hearing identical petitions challenging the filing of a reference against the chief justice.
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