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Petition against Zardari not maintainable: Qadir

December 20, 2012

Attorney General Irfan Qadir. — Photo by Online

LAHORE: The attorney general made some harsh remarks in Courtroom 1 of the Lahore High Court on Wednesday about a number of judgments handed down by superior courts.

Irfan Qadir, the country’s top law officer, appeared before a full bench headed by Chief Justice Umar Ata Bandial and argued against the maintainability of a contempt petition against President Asif Ali Zardari.

Justice Nasir Saeed Sheikh, Justice Sheikh Najamul Hassan, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah are other members of the bench.

At the start of the hearing, the AGP told the bench that the federation’s counsel Wasim Sajjad was not available due to his engagement before the Supreme Court in Islamabad.

Mr Qadir insisted on arguing on the petition’s maintainability when the CJ asked him to tell the bench whether contempt of court proceedings could be initiated against the president in the presence of Article 248(2) of the Constitution.

The AGP pleaded that he could not discuss the point of immunity unless the maintainability of the petition was decided by the bench.

Justice Shah said interpretation of Article 248(2) was necessary to decide about maintainability of the petition.

On the maintainability of the petition, Mr Qadir said the president took oath of office under the Constitution and not under any judgment passed by the court.

He said the president could not be forced to do anything for which he was not obligated under the Constitution.

He said review petitions had been filed against most of the judgments cited by the petitioner side.

But the bench observed that no interim relief had been granted by the Supreme Court on the review petitions and the judgments held the field.

Criticising the SC judgment in Syed Yousuf Raza Gilani case, the attorney general said the government, despite having many reservations, had accepted the verdict to avoid a clash between national institutions.

He asked the judges to show any provision in the Constitution binding the president to act under the directives of courts.

In response, Justice Sheikh asked the AGP to show a constitutional provision allowing the president to throw away judgments of the courts.

The law officer said holding dual offices was a political matter and the court should not pass judgments on such issues.

Expressing doubts about the credentials of the advocates from the petitioner side, Mr Qadir urged the judges to find out hidden hands behind the plea before proceeding with the case.

He went on to say that the same advocates had got a ‘wrong’ judgment on Kalabagh Dam by misleading the court. He said the verdict lacked legal assistance on many points.

Chief Justice Bandial interrupted the attorney general and reminded him that he was not supposed to criticise court judgments in such a manner.

When the law officer stuck to his line of argument, the chief justice said: “If you know the Constitution, you must know you cannot discuss a judgment before the author judge.

“You do not have the liberty to discuss other judgments here and we are not here to face personal attacks.”

He asked the AGP to sit down if he did not have any legal argument on the issue that was before the court.

The law officer said political questions should not be brought to courts because it led to confrontation between institutions.

Justice Shah asked whether a verdict should not be obeyed or challenged if the court decided about a political question. The AGP replied that the May 12, 2011, judgment of the LHC was not practicable. He said that in a case where implementation of a judgment could not be sought, contempt of court proceedings could also not be initiated.

He said the court in its judgment had not issued any binding order but expressed its expectation. He also said the judgment was an outcome of one-sided legal assistance.

Irfan Qadir said the court could only interpret the Constitution but could not rewrite it.

The chief justice said the court had not issued any direct order keeping in view the grace and respect of the office of the president.

Mr Qadir said: “The office of the president is highly respectable but your remarks show that you are considering yourself superior to the president.”

Justice Bandial replied that the court had very much regard for the president’s office and, therefore, it had used the word grace.

“You may be good in English and can derive a better meaning of the remarks.”

The chief justice asked the AGP to come up on Thursday with arguments on the issue of immunity.

Earlier, Advocates Azhar Siddique and A.K Dogar gave brief arguments on behalf of the petitioner. On the court’s instruction, Advocate Siddique also read out a speech delivered in 1973 by the then law minister Abdul Hafeez Pirzada at the time of approval of the Constitution.

The counsel tried to establish that the role of the president was ceremonial and the whole business of the government was run in his name.

Advocate Dogar said there was no need to hear arguments about immunity because the case had reached a stage of framing charges against the contemnor.

The chief justice said the Constitution prohibited criminal proceedings against the president.

“Convicting the president will amount to convicting the state,” he remarked.

During the arguments, Justice Shah asked petitioner’s counsel to cite an example in the country’s history when a democratically elected president would have subverted the Constitution.

A citizen, Munir Ahmad, had filed the petition seeking contempt proceedings against President Zardari for not quitting his political office and activities in light of last year’s LHC judgment.