The Act which can make the President vulnerable.
By Dr Ghayur Ayub
There is an Urdu proverb which says, “Nadan Dost Se Dana Dushman Behtar Hai” It means 'a wise enemy is better than a stupid friend'. The proverb applies on the friends of Asif Ali Zardari. He has plenty of them. In recent weeks and months he has been discarding them one by one. The latest being the one (though he has not yet been discarded) who drafted the bill on the 'Contempt of Court'. The Bill was converted into The Act 2012 by passing it speedily through both the Parliament and the Senate. President AAZ took an early flight from Karachi to sign it before the midnight. With the same speed it was put on the cyberspace. Some even say that it was put on the cyberspace pages of Constitution before it was signed by the President.
The pinhead lawyer friend who had drafted the Bill to save the prime minister and other corrupt executives from the contempt cases and demean the judges of the superior courts has actually exposed the President from the immunity he has under Article 248 (1) of the Constitution. Ask me how?
When Mr. Aitzaz Ahsan was asked in the Supreme Court by an honourable Judge whether he wanted to discuss the Article 248 in the defence of the prime minister Yusaf Raza Gilani, he immediately replied in negative. Aitzaz understood that by bringing up the said Article in the contempt case, he would be opening a Pandora Box making the immunity of the President discussable and so questionable. The hurriedly passed Act 2012 can do what Aitzaz wanted to avoid.
He knew that the Article 248 (1) is in direct conflict with the;
Preamble, which states;
“Whereas sovereignty over the entire Universe belongs to Almighty Allah alone”
“Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah”
Wherein the independence of the judiciary shall be fully secured
Article 8, which states;
(1) “Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void”
(2) “The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void
Article 31 (1), which states, “Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah”
Article 204 (2 a), which states, “A Court shall have power to punish any person who abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court”
Article 204 (3), which states, “The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court”
So, by adding 'the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister' along with 'the President and a Governor' in the Article 248 (1), the Act made the whole Article weak and controversial, meaning by the Supreme Court can;
Strike down the Article 248 in its entirety ordering that it is in conflict with the Preamble and other Articles.
Send Article 248 back to the Parliament to rewrite it a fresh keeping the basic structure of Constitution and principles of Quran and Sunnah in mind.
Suspend the newly framed Act 2012 till the legislation is made on the new Amended Article 248.
Such a decision would mean that the Article 248 which protects the President is no more part of the Constitution and the government would have no excuse not to write the letter to the Swiss Court. This reminds me of a story whereby a person was weary of his beard. He prayed to God asking Him to get rid of his hair. His prayers were answered and one day he woke up to find no hair on his body. He was disgusted to see his bald head and face with no beard, eyelashes and eyebrows. He started praying again asking God to give him hair. One morning he woke up finding hair all over his body including his forehead, nose, lips, palms and soles. Annoyed with his condition he started praying to have his original beard back. We don't know about the outcome of this Act which is already challenged in the superior court, but one thing is for sure that the deviser of the draft will be cursing himself fearing that the President might loose his immunity in the process.
Talking on a TV chat show, the shrewd and rather happy-looking Babar Awan pointed his finger at the incumbent law minister to be the architect of the draft. He also said that the law minister rejected the original draft prepared by the Attorney General and replaced it with his version which he tabled on the floor of the Parliament. Babar Awan further disclosed that the law minister wants to hold an added portfolio of Attorney General. This incidence takes me back to March 2007 when General Musharaf approved a draft which cost him the presidency in the end. Some believe that it was a trap prepared by the agencies through his friends and Musharaf fell into it. AAZ's closet is full of such friends. One such close friend, the law minister, has drafted the Act 2012 which can hurt AAZ badly. The question is did he do it as a 'Nadan Dost' or he had something else in mind which was not just to have an additional portfolio as pointed out by Babar Awan? Whatever the reason Asif Ali Zardari should start looking for black goats in the market. He would need plenty of them very soon.