Prime Minister before the bench

I am not a lawyer! And I, therefore, am fully cognisant of my limitations! But I, like the rest of Pakistan, have an opinion and a rationale on which I base my opinion. A lawyer, however, has a definite edge on the rest of us who like to discuss judicial decisions, their merits and demerits and the interpretation of the constitution because he/she has spent a considerable amount of time both as a student as well as a practising lawyer on procedure and citations that strengthen the client's claim. And with globalisation the citations are from throughout the world.
While acknowledging my limitations, I would nonetheless make one observation with respect to the proceedings in the court on Thursday when the Prime Minister, in response to the court summons, made an appearance with his lawyer Aitzaz Ahsan. The Prime Minister himself referred to Article 248 of the Constitution as his defence. His lawyer Ahsan clarified that the Prime Minister was not a wilful defaulter of justice in not writing a letter to the Swiss court to reopen the case of money-laundering involving 60 million dollars but acted (or rather did not act) on legal advice. Much is being made of the fact that the legal advice referred to was not in consonance with the advice to the government given on the electronic media by counsel Ahsan over a two-year period of non-implementation of the National Reconciliation Ordinance after being declared void ab initio. Ignored is the irrefutable fact that a lawyer can opt to defend not only a guilty client but also a client who proposes a line of defence that the counsel in question has previously publicly opposed. Be that as it may, the Honourable judges leaned towards the generally held view in democracies that the interpretation of the constitution rests with the court while the Prime Minister and his counsel implied that it rests with parliament alone.
Article 248 (2) states that "no criminal proceedings whatsoever shall be instituted or continued against the President in any court during term of office" and Article 248 (4) notes that "no civil proceedings in which relief is claimed against the President shall be instituted during his term of office in respect of anything 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 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." There is without doubt a reference to immunity from both criminal and civil proceedings, however there is an "unless" in the said Article with reference to civil proceedings and the court is the only competent authority to interpret it. It is perhaps concern over the indisputable right of the court to interpret Article 248 that accounts for the government's decision not to invoke it in the courtroom for over two years. The timing, analysts claim, holds the key to invoking it at this time as the procedure may well take more time than the remaining term of the President.
And now for some non-legal observations that I, like the rest of the country, can legitimately make. First and foremost, the temperature in the court appeared to have gone down considerably with the PM's attendance. The justices stuck to legal points even though the Prime Minister's speech smacked of political overtones.
Second, counsel Ahsan extolled the Prime Minister's decision to drive himself and his two lawyers - including Ahsan - and Raza Rabbani to the Supreme Court building. If this was a reflection of the Prime Minister's humility then Ahsan did not succeed. The 70-odd cars accompanying the Prime Minister from the PM House to the Supreme Court, a distance of less than a kilometre, as well as the decision to stop all traffic from operating in the Blue Area purportedly for the PM's security, created horrendous traffic jams and loss of output due to the delayed attendance of thousands with offices in the Blue Area. Given that the Prime Minister covers this distance everyday to reach his secretariat and which has not merited closure of the Blue Area, the traffic decision taken no doubt by Rehman Malik made little sense.
Third, the accusation by counsel Ahsan that the media created an unjustified hype raises one question: was the decision of Ahsan to appear on at least three talk shows a day prior to his scheduled attendance in the court with his exalted client, the Prime Minister, a wilful attempt to get his side of the story across to the public through using the media? One must recall the complaints hurled by Princess Diana against the press, while she nonetheless did use the media for her objectives as well. One can't have one's cake and eat it too Ahsan.
Fourth, the pack mentality exhibited on numerous occasions by the hawkish Babar Awan invariably flanked by PPP leaders when appearing in the court remained surprisingly in evidence. Thus the usual PPP pack followers namely Kaira, Raja Parvez Ashraf, Raja Riaz and Rehman Malik were present in the courtroom. The significant difference from the Babar Awan as the President's chief counsel days was the presence of the top leadership of the coalition partners in the court. One may safely assume that the intent was to show solidarity of the parliamentary majority with the Prime Minister. Few doubt that the presence of the coalition partners would make any real difference to the court's final verdict.
Fifth, those of us who had maintained that Ahsan would urge the Prime Minister to speak only through his counsel in the court were disappointed to the extent that the Prime Minister spoke and in his usual vein: extolling the democratic credentials of the Bhuttos who sacrificed their lives but did not waiver in their respect for the court - a stance that the Prime Minister claimed he and the President are adhering to. He also, as has become the norm, presented his own electoral victories since entering politics. And to reiterate it was the PM who opened the can of worms of the President's immunity by referring to Article 248. For his counsel to then say that the court had compelled him to defend the President's immunity is untrue.
Sixth, the Prime Minister's counsel, the much respected dove Aitzaz Ahsan (who until recently was an outcast from the President's inner circle), chose to take the equally well respected Raza Rabbani and address the press conference with him on his right side. However, it is pertinent to recall that on his left was Kaira, a man whose attention was drawn by Babar Awan to the offending poem on notices issued by the court. And behind him were a bunch of lawyers chanting in favour of the Chief Justice though there is agreement that this was not the appropriate time to register a protest against Ahsan's decision to defend the Prime Minister in the contempt of court proceedings. The seed of doubt - good or bad, appropriate or inappropriate - within the legal fraternity pertaining to counsel Ahsan's hitherto immaculate standing has therefore surfaced.
And finally, I would draw the readers' attention to the 100 billion rupees generated by the Supreme Court while deciding cases of corruption implicating not only federal ministers and their children/spouses but also coalition partners - a statement attributed to the federal Finance Minister. The non-existent, instead of merely weak, prosecution against those accused of massive corruption as well as appointments made in violation of meritocracy (and no instance better reflects this than the appointment of FA pass Adnan Khawaja), and overall appallingly poor governance is not in dispute in Gilani's/Zardari's Pakistan. As non-lawyers we may tend to focus on these aspects of performance rather than on the legal procedure and the strictly legal merits or demerits of the Prime Minister's contempt of court case.