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President’s dual office case
 
 
Amir Riaz
Saturday, September 15, 2012
From Print Edition
 
 

 

LAHORE: A larger bench of the Lahore High Court on Friday turned down the federal government’s plea to become a necessary party (respondent) in the contempt of court petition against President Asif Ali Zardari for not relinquishing his political office of PPP co-chairperson, but allowed the Centre to become a pro forma respondent in the case.

 

A pro forma respondent means a formal respondent; a party not interested in the subject matter but a government authority bound by court orders and the outcome of the case.

 

In the instant contempt case, the federation, as a “pro forma respondent.” is authorised to present arguments related only to the allegation of contempt and has no right to make detailed arguments on the merits or demerits of the case.

 

The bench headed by Chief Justice Umar Ata Bandial allowing the federal government to become a pro forma respondent in the case and observed that the government’s counsel would not be allowed to extend arguments on the merits and demerits of the case.

 

The court directed both sides to extend arguments at the next date of hearing on the maintainability of the contempt petition.

 

Senior lawyer Wasim Sajjad, who represented the federation, opposed the court’s decision, but the chief justice did not entertain his argument.

 

Earlier the four-member bench resumed proceedings of the contempt of court petition taking up the civil miscellaneous application filed by the federal government and asked Advocate Sajjad to advance his arguments. Court room No.1 was jam-packed with a large number of lawyers affiliated with the PPP attending the hearing.

 

The federation’s counsel tried to convince the court becoming a party in the contempt case was necessary for the federation as the President of Pakistan was a symbol of the federation and a part of the parliament. He said the federation was made party in the main petition against the President, and therefore should be allowed to become a necessary party in the contempt of court petition as well.

 

At this juncture the chief justice mentioned for the knowledge of the government’s counsel that in the main petition against the President’s dual office, a panel of federal government’s lawyers had boycotted the court’s proceedings. They also put a query to Sajjad that since he was asserting that the president was the part of the Federation, could it be assumed that he was representing the President.

 

Sajjad said he would extend arguments on this point if the court allowed the federation’s application to become a party. Replying to another court query, Sajjad said contempt proceedings could not be decided without hearing the President. The court said it was ready to hear the government’s objection to the contempt case but it should first be determined who was representing the President in the court. Sajjad once again said that he would assist the court on this point only if his application was accepted. He went on to say that in the sub-continent’s history, this was the first instance of initiating a contempt case against a head of state.

 

The court, however, heard initial submissions of the government’s counsel and issued a notice to the petitioner to file a reply on the application.Advocate AK Dogar, the petitioner’s counsel, received the notice and expressed his willingness to oppose the application without any delay. The bench also allowed the counsel to advance his arguments.

 

Opposing the government’s plea, Advocate Dogar argued that the contempt of court petition was not filed against the office of President but a person named Asif Ali Zardari. He said in a contempt matter only the guilty party was to defend the charges himself and no other person or party had the right to defend the charges or become party in the case. Dogar said that the presence of Attorney General was also not required in the case.

 

Advocate Sajjad interrupted the petitioner’s counsel and said if a writ petition could be filed against a private person (Zardari) then the federation could also be allowed to become party in the case. He said the results of the instant litigation will not affect Zardari only would have far-reaching implications for the whole country.

 

During the course of hearing, Chief Justice Bandial read out a letter submitted by Principal Secretary to President Zardari wherein it was mentioned that the Present would be represented in the case through Advocate Wasim Sajjad.

 

The CJ asked Sajjad time and again whether he was representing the President directly but the lawyer refused to give a clear stance and reiterated the same argument that he was representing the federation and the president was a symbol of federation and part of the parliament.

 

The counsel also failed to give a satisfactory answer when asked whether the court should consider the letter from the principal secretary a service of the court’s notice on the respondent (president).

 

The court remarked that the federation had not committed contempt of court and the same was done by a person (Zardari) and his representation in the court was essential.

 

During the hearing attorney general Pakistan Irfan Qadir also objected to the court hearing and urged the court to stop proceedings in the contempt matter. He argued that the same questions raised in the instant proceedings had been pending before the Supreme Court and on most of the questions short-orders had been issued by the apex court. Therefore, he said, till the detailed judgments of the apex court came out, the high court should halt its proceedings.

 

The AG further said that political questions had been raised in the instant case rather than any constitutional or legal point. He said the court should not show any haste in deciding the case and should wait for judgments of the Supreme Court.

 

The AG also delivered a short speech highlighting the ‘achievements’ of the ruling party (PPP) and said the office of the President should be honoured by all. He said the instant case will be an important case in the history of the sub-continent as it was against a head of a state.

 

Advocate Dogar countered the arguments of the attorney general and stated that the government wanted to delay proceedings without reason. He referred to a judgment of the SC and said the apex court had already held that proceedings in a contempt matter should not be delayed.

 

Responding to Wasim Sajjad’s arguments Dogar said the Supreme Court, while striking down the Contempt of Court Act 2012, had ruled that no had immunity in a contempt of court case.

 

At this, the AG said it was a short order and it could not be quoted until the detailed judgment came out. He said the contempt case against President Zardari was politically motivated and questioned why such petitions were only only filed in Punjab’s courts.

 

AK Dogar said the government was using delaying tactics in the case whereas the SC had declared that contempt proceedings should not be delayed.

 

At this, Justice Bandial said under article 189 of the Constitution the high courts were bound to follow SC verdicts. And if the SC decided the immunity issue in its detailed judgment, the court would proceed in the light of that verdict.

 

The courtroom also witnessed quite heated dialogues between Advocate Dogar and Attorney General Irfan Qadir, but the Chief Justice calmed down the situation.

 

Advocate Azhar Siddique, co-counsel of the petitioner, argued before the court that the conviction of former Prime Minister Yusuf Raza Gilani was a clear example of the contempt of court case. He said the SC had ordered Gilani to write the letter to the Swiss government as the chief executive of the country but punished him after he disobeyed the order. “Gillani is now no more in the power but the office of the chief executive still exists,” he explained his argument.

 

At this point, Advocate Sajjad said had Gilani not been the prime minister, he would not have been convicted by the court. He also challenged the locus standi (being aggrieved) of the petitioner and said not a single political party had raised objections on the president for holding political office.

 

After hearing all parties, the bench took a half hour break and announced the verdict of the government’s application when it resumed hearing at about 11:45am. The bench adjourned further hearing in the contempt matter till next Friday (Sept 21).

 

Justice Nasir Saeed Sheikh, Justice Sheikh Najamul Hassan and Justice Ijazul Ahsan were the other members of the larger bench. The fifth member of the bench, Justice Syed Mansoor Ali Shah, has been on leave since the beginning of the case.