In the detailed reasoning for rejection of Gilani’s appeal against his indictment on contempt charge released on Monday, the eight-member bench, led by Chief Justice Iftikhar Muhammad Chaudhry, held that in fact, the position which needs to be adopted, and which emerges from a close examination of the Constitution, is quite the opposite: the higher the constitutional office, the greater the onus of responsibility on the holder of such office.

The judgment, authored by Justice Jawwad S Khwaja, said one reason for this is that a holder of constitutional office is under this higher responsibility because he, unlike ordinary citizens, makes an oath to discharge his duties ‘in accordance with the Constitution... and the law’. The prime minister’s oath also requires that he ‘will preserve, protect and defend the Constitution’. Therefore, more stringent legal standards apply to him as compared to otherswho have not taken a similar oath. In other words, the court has greater reason to be particularly concerned about the possibility of contempt having been committed by the appellant.

In his grounds of appeal, Gilani’s lawyer Barrister Aitzaz Ahsan asked the apex court to ‘show greater restraint and forbearance with respect to a duly elected prime minister.... when the very stability of the democratic system obtained by the people of Pakistan after so much sacrifice, may depend on the outcome of this case’.

The order said this averment, coming as it is from the chief executive, appears to be based, firstly on a claim to some special privilege that accords the appellant preferential treatment by sheltering him from receiving equal treatment in accordance with the law and Constitution and thereby allowing him to disregard the orders of the court because of his office.

And, secondly, it calls upon the court to formulate its opinion, not in accordance with the mandate of law as applicable on the facts of this appeal, but in fear and anticipation of a possible outcome that may flow out of a decision, which may be arrived at by the learned trial bench on the basis of the law and Constitution.

“It is clear to us that the appellant’s claim to a ‘special privilege’ on account of his executive office, which seeks for him ‘greater restraint’ amounting to an exception from contempt proceedings, does not find any basis in our Constitution. For this, we need only refer to the Preamble, Article 5 and Article 25, the relevant parts of which are worth examining.”

Officials were meant, under Pakistan’s Constitution, to diligently and faithfully serve the people and not to rule over them with impunity, the judgment said.

Justice Khwaja has also expounded an important constitutional doctrine concerning ‘public trust’. According to this doctrine, all constitutional officers hold their office only as a trust for the general public. “Being trustees they are bound to follow the instructions of the general public,” the judgment ruled.

It further said that in Article 190, political leaders have been expressly obliged to act in aid of the Supreme Court. If, however, constitutional functionaries do not show such obedience, they can be seen as have violated the trust reposed in them by the public. “It is to take stock of such violations of public trust, and not because of any egoistic reasons, that courts are obliged to proceed against violators — a possibility contemplated in our constitutional’s Article 204,” the detailed judgment added.

The order said a number of constitutional articles have been framed to give effect to the principle of equality enshrined thus in the preamble. Amongst these is Article 5 which states that ‘obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be ...’ It should be noticed that the Constitution mentions no exemptions from the obligation it imposes. The exceptionalism, therefore, which is being claimed by the appellant has no constitutional basis.

“In a similar vein, Article 25(1) states in the clearest terms that all citizens are equal before law and are entitled to equal protection of law. It may be noted here that, in his appeal, the prime minister has not relied upon the limited and functional immunity from court processes, which is offered to certain official acts under Article 248 of the Constitution. Its cumulative effect is quite powerful and hard to miss. It becomes clear that our law does not accord individual immunity to the appellant from complying with the law.

“Therefore, even though we have no doubt that the appellant is a duly elected prime minister and deserves respect, this court cannot be expected to show any restraint and forbearance on account of his position. This constitutional directive only echoes the perennial wisdom which underpins governance of the state in accordance with the mandate of the Constitution.”

Responding to the special privilege sought by Prime Minister Gilani, the Supreme Court came up with the following great saying of the Prophet (peace be upon him): “O people, those before you were ruined because when someone of high rank among them (sharif) committed theft, they would spare him, but when a weak person from amongst them (zaeef) committed theft, they would inflict the prescribed punishment upon him”.

The order quoted a hadith of the Holy Prophet (peace be upon him), which has become a part of the collective consciousness of the people of Pakistan.

It expresses the spirit of equality enunciated by Islam which the Constitution refers to. A woman from a powerful Arabian tribe was found to have committed theft. The Holy Prophet (peace be upon him) was urged through some intermediaries to exercise restraint in her case because of her position in society. The hadith gives a description of the Prophet’s reaction to this suggestion.

It was, to say the least, stern. He rejected this plea and, instead, issued a warning which all functionaries of the state would do well to pay heed to. Similarly, deference shown by a Qazi by rising from his seat when Hazrat Umar (RA) appeared before him as a defendant was strongly disapproved by Hazrat Umar on the ground it militated against the principle of equality under the law.

According to the order, it has been observed by the apex court that the functionaries of the state are fiduciaries of the people and ultimately responsible to the people who are also their paymasters. It held in a recently decided case that “holders of public office have to remain conscious that in terms of the Constitution ‘it is the will of the People of Pakistan’ which has established the constitutional order under which they hold office. As such they are, first and foremost fiduciaries and trustees for the People of Pakistan. And, when performing the functions of their office, they can have no interest other than the interests of the honourable People of Pakistan in whose name they hold office and from whose pockets they draw their salaries and perquisites’.

About Aitzaz Ahsan’s concern that ‘the very stability of the democratic system ... may depend on the outcome of this case’, the order said in part, it is fully justified. Given that the instant case concerns concepts like the supremacy of the Constitution and the primacy of the rule of law, the outcome of this case is indeed important. However, the court has in previous cases already repelled arguments based on notions of consequentialism. In the NRO case, it was held: “...the court cannot and should not base its decisions on expediency or on consideration of the consequences which may follow as a result of enforcing the constitution”. As a court of law, we cannot base our judgments on the anticipated consequences of our decisions; else we will be reverting to the malignant doctrine of necessity which has already been buried because of the valiant struggle of the people of Pakistan. At page 481 of the NRO judgment, it was observed thus ‘political stability and the rule of law will flow as a natural consequence of giving sanctity and respect to the Constitution, both in letter and in spirit. The court can only strengthen the rule of law by upholding the Constitution, which is, in fact, the supreme law.”

The order said it is the strict adherence to this principle, which has fostered the revival of democracy in Pakistan, and upon which its survival still depends. If the appellant apprehends instability as a consequence of this case, such apprehension can easily be allayed by ensuring that the Constitution is adhered to. It is precisely this exercise which is being undertaken by the learned trial bench. The appellant may also draw comfort from the fact that institutions and systems provided in the Constitution ensure political stability. What happens to an individual can be of little consequence as long as state institutions continue functioning in accordance with the Constitution. The anachronistic notion of ‘aprËs moi, le dÈluge’ has no room in a constitutional order based on institutions rather than individuals.