No rhetoric, only case law under focus

Islamabad

Prime Minister Nawaz Sharif’s legal wizard Makhdoom Ali Khan’s defence of his client in the Supreme Court was primarily based on the Constitution and the judgments of the highest judicial forum, delivered in high-profile cases of political nature, rather than verbosity or rhetoric.

The case law cited by him pertained to the rulings handed down in Pakistan, India and Bangladesh, which have a broad applicability to the present pleas. Most of them related to Pakistan.

For the first time, the lawyer pointed out the privilege (immunity) available to every MP, obviously the premier included, in regard to speeches made by him in the parliament. Before he made the rare reference to this exemption, Justice Ejaz Afzal had alluded to Article 66 last week and also mentioned it again on Monday.

Article 66(1) is pertinent in this connection. It says subject to the Constitution and to the rules of procedure of Parliament, there shall be freedom of speech in Parliament and no member shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament, and no person shall be so liable in respect of the publication by or under the authority of Parliament of any report, paper, votes or proceedings.

Thus, it becomes clear that the Makhdoom’s emphasis was that all MPs including Nawaz Sharif have immunity from being asked questions in any court about what they utter on the floor of the parliament. Only the legislature can undo this privilege by amending the Constitution.

Justice Ejaz Afzal remarked that the court can neither ignore the past nor give judgment which could change the whole scheme of the Constitution.

The attorney’s contention was that the premier has the privilege and his parliamentary speech can’t be adjudicated in the court under Article 66. The lawyer went to the extent of saying that even if the premier’s speech in the National Assembly has any discrepancies or misstatements although there is no such thing in it, Nawaz Sharif has the immunity from prosecution.

Pakistan Tehreek-e-Insaf (PTI) lawyer Naeem Bokhari had spent several hours in pointing out what he claimed contradictions and lies in the prime minister’s three speeches, two of them delivered in the National Assembly. He had stressed that on account of these falsehoods Nawaz Sharif should be disqualified to hold the present office because he is no more ‘sadiq’ and ‘ameen’.

The Makhdoom’s point was that the court has jurisdiction to disqualify the MPs in some matters but cannot declare the premier ineligible on the basis of his speeches under Article 184(3) and it does not have jurisdiction to hold an inquiry in this matter.

Another point raised by the lawyer was that the apex court had disqualified some MPs under Article 62(1)(c) for holding dual nationality only after complete, sufficient evidence was provided against them and the disqualification did not occur simply because an allegation was raised in the Parliament.

Article 62(1)(c) says a person shall be disqualified from being elected or chosen as, and from being, a member of the Parliament if he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State.

Additionally, the Makhdoom cited the example of the disqualification case against former Prime Minister Yousaf Raza Gilani, arguing that the verdict came in light of sufficient evidence. However, the bench said that the decisions given in dual nationality cases, mentioned by him, prove that the Supreme Court has jurisdiction over disqualification cases.

The next topics on which the advocate will dilate on include the PTI’s claim that Maryam is a dependent of her father and that she is the actual owner of the London properties. He is expected to take a considerable more time in view of his pace of arguments.

When Asif Ali Zardari was president of Pakistan, all the corruption cases pending in courts against him became dormant because of the immunity from trial under a different constitutional article. The moment he left the office, these references became active. Even in the presence of highest form of judicial activism led by the then Chief Justice Iftikhar Muhammad Chaudhry, this article had remained fully in force during Zardari’s presidency.

Its clauses 2 and 3 say no criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office. No process for the arrest or imprisonment of the President or a Governor shall issue from any court during his term of office.

Its clause 1 reads the President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be 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.

According to clause 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 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.