ISLAMABAD: Flaunting a defiant posture, Attorney General Irfan Qadir dropped a hint before the Supreme Court on Wednesday that Prime Minister Raja Pervez Ashraf might not appear before it on August 27 to answer the charges of contempt.
“Had I been the prime minister I would never have come because under Article 248(1) of the Constitution the prime minister is not answerable to the court,” he argued before a bench headed by Justice Asif Saeed Khosa hearing a government petition seeking review of the court’s July 12 order which directed the prime minister to comply with its judgment in the NRO implementation case.
A different bench also headed by Justice Asif Khosa had issued a show-cause notice to the prime minister for his failure to implement the NRO judgment and asked him to appear in person before it on August 27.
As pleaded in the review petition, the AG emphasised, the prime minister could not be asked by means of the July 12 order to implement an un-implementable direction given by the Supreme Court in the NRO case.
“The prime minister is not answerable to the court in exercise of his functions and any direction issued by the court becomes meaningless because the Constitution wants the courts to extend sanctity to the office of the prime minister,” he said.
Therefore, the court could not issue any direction to the prime minister in matters which fell within the domain of his functions in view of the clear-cut provisions in Article 248(1) of the Constitution, Mr Qadir said, adding that the writing of a letter (to the Swiss authorities to reopen draft cases against President Asif Ali Zardari) was one such action that fell within his domain.
“You have totally inverted Article 248,” observed Justice Asif Khosa and suggested to the AG to consider not pressing the review petition at hand since it was not advisable to exhaust all arguments in a case which still was at an interim stage.
The court said it was the duty of the counsel to protect the interest of his clients because an adverse decision at this stage would be detrimental to the interest of the government, especially when the same pleading was also to be used in the NRO implementation/contempt of court case.
The AG sought time until Eid holidays to rethink the proposition and also consult the government. But the court adjourned the proceedings for Thursday. The court also asked the counsel if he wanted to argue on Article 248 so that the court could give its interpretation on it.
Justice Khosa reminded Mr Qadir that the court had already written in the judgment while convicting the former prime minister that the president enjoyed immunity at the international level.
The court again extended the concession and said it was ready to assist the government if it wrote the letter to the Swiss authorities. “The court is ready to assist if the government has any apprehension on the immunity question,” Justice Khosa said and also suggested what should be the contents of the letter.
The government only had to request the Swiss authorities to ignore the earlier letter written by then attorney general Malik Qayyum for closing the mutual legal assistance, the court said, adding that people had misconstrued its judgment without reading it as if it had asked the prime minister to write the letter. Rather the prime minister has to issue a direction either to the AG or the law ministry instead of applying his independent mind in the wake of the court’s orders.
Under the Constitution the prime minister always had to make up his mind, the AG retorted.
Justice Khosa again tried to comfort the AG by saying that everything was normal and the Constitution provided all kinds of mechanism for all situations. It’s only that every institution had to work independently within its own sphere, he observed.
The institution of the judiciary must also have respect for other institutions which the former prime minister displayed by appearing thrice before the court, the AG said.
“Respect is always shown by implementing the orders of the court and appearing before the court thrice is not enough,” Justice Khosa said.
When the court said that there were a number of judgments in which the government had not filed appeals, the AG recalled that there were several cases like the chief justice restoration case and Tikka Iqbal case in which no appeals had been filed yet the court revisited these in subsequent verdicts.
The Zafar Ali Shah case in which the court had validated the first military coup of Gen Pervez Musharraf by invoking the doctrine of necessity was praised earlier but later it became controversial, the AG said, adding that there was no need of citing old cases.
One should never be slave to precedence but try to extract wisdom out of it, Justice Khosa said.
The AG requested the court to adjourn the case till the time he got fresh instructions from the government to find a way out of the stalemate.
Justice Sarmad Jalal Osmany said the court was only asking for the fruits of the litigation in Swiss courts and not asking for convicting the president. “We only want to protect the interest of the country and we want our money back.”
Justice Khosa said the court was only saying that if someone got convicted in the Swiss courts and certain money was recovered then Pakistan as a damaged party had a claim on it.
“Is there any litigation pending before the Swiss courts or any money available there,” the attorney general asked.
At the outset, the court ignored a request by the AG to form a larger bench.
The AG questioned the composition of the bench and said that it could not be changed to hear review matters.