LAHORE, Dec 7: Hearing a contempt of court petition against President Asif Ali Zardari, a Lahore High Court full bench on Friday remarked that defiance of court judgments amounted to shaking the foundation of the Constitution.
“The Constitution does not allow anyone to do any unlawful act,” the five-member bench said and posed a question whether the president could be taken to court’s proceedings during his tenure in the office.
Headed by Chief Justice Umar Ata Bandial, the bench comprises Justice Nasir Saeed Sheikh, Justice Sheikh Najmul Hassan, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah.
The judges also asked the petitioner’s counsel to argue on a point whether court could take action against the president after the end of the tenure.
Advocates A.K Dogar and Azhar Siddique tried to establish that the constitutional immunity enjoyed by the president and others was not only in conflict with many articles of the Constitution but also a violation of the basic spirit of Islam.
Citing judgments of the Supreme Court, the counsel said if the president committed any crime in personal capacity, he would be liable to be punished like an ordinary citizen.
Justice Shah asked the counsel whether the president would be punished if he committed murder the very next day after taking oath. Advocate Dogar replied murder would be a personal act of the president and the constitution did not provide any such protection. He said there was a difference between a crime committed by the president and one committed by Mr Zardari.
Chief Justice Bandial, however, observed that the act of murder was supposed to be intentional while any other illegal act could unintentional.
Challenging the Article 248 of the Constitution, Advocate Dogar stated that the SC had already declared that the immunity granted to the president and others was against the independence of the judiciary. “Creation of a special group of public office-holders poses a serious threat to the independence of judiciary,” he said in his arguments.
He said the public office-holders by making the law of immunity had betrayed the trust of people. In Islam there is no difference between high and low in application of law, he added.
Justice Shah remarked that the state functionaries were not answerable for their official acts but they were bound to obey the court orders.
Additional Attorney-General Abdul Hayee Gilani told the bench that the immunity enjoyed by the president under Article 248(2) was also mentioned in the letter written to the Swiss government on direction of the SC.
Advocate Dogar clarified that the letter did not contain any such thing and could be produced before the bench on next hearing. The counsel reiterated that the Constitution did not provide any protection to acts of any public office-holder done in personal capacity.
The bench adjourned further hearing till Dec 10 and asked the counsel to come up with arguments on jurisprudence relation between sub-clauses 1, 2 and 3 of the Article 248.
The counsel for the federation had completed his arguments on previous hearing and was exempted from further appearance. Advocate Wasim Sajjad represented the federation and urged the bench to dismiss the contempt petition against the president for not being maintainable.
A citizen, Munir Ahmad had filed the petition against the president for consistently holding political office and indulging in political activities in violation of a LHC full bench order issued in 2011.