gilani statement to supreme court
TRANSCRIPT
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BEFORE THE SUPREME COURT OF PAKISTAN AT ISLAMABAD(Original Jurisdiction)
Criminal Original No.06/2012IN
SMC No.04/2010
Contempt Proceeding againstSyed Yusuf Raza Gilani, Prime Minister of Pakistan
Statement of Syed Yusuf Raza Gilani, Prime Minister of Pakistan
I, Yusuf Raza Gilani, the Prime Minister of Pakistan, state as follows:
1. I have held several political, elective, executive and government
positions. Most significantly I have been elected Chairman of the
Multan District Council and member of National Assembly on
several occasions. I was a Federal Minister, several times
between 1985 to 1993. From 1993 to 1997, I remained the
Speaker of the National Assembly. Since 1998 I have been Vice
Chairman of Pakistan Peoples Party.
2. I was wrongly convicted in two NAB References to five and ten
years imprisonment respectively, as evident from my honorable
acquittal in both References in appeal. Despite my innocence I
spent five years in Jail, sometimes in solitary confinement. Many
times the offer of a favourable Plea Bargain was made to me
but I refused. I was as confident of my innocence then, as I am
today.
NATURE OF THE CHARGE:
3. I hold this Honble Court in high esteem. I have however been
charged with willfully flouting, disregarding and disobeying the
direction given by the Court in Para. 178 of the judgment in the
NRO case. I have therefore been expressly charged with refusal
to revive the request of the Government of Pakistan for Mutual
Legal Assistance and status of civil party in the claims lodged by
it to the allegedly laundered moneys lying in foreign countries.
Accordingly, I have been charged with committing contempt of
court. The charge was framed on February 13, 2012. I denied
the charge and deny it again.
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4. I submit at the outset that I have been informed that the words
willfully flouted, disregarded, disobeyed require a wilful and
contumacious intent to disobey this Honble Court. That being
the requirement of the law and the charge as framed, I am not
guilty of the charge. Neither has my conduct been in wilful
contumacy of this Honble Court nor, indeed, has the prosecution
been able to lead any evidence of wilful or defiant contumacy,
flouting, disregarding or disobedience on my individual and
personal part. Adherence to a legal disability negatives
wilfulness and contumacy. The prosecution evidence is itself
deficient in establishing wilfulness and my learned counsel will
elaborate upon this aspect.
5. I may also respectfully point out that this Honble Bench needs
first to hear detailed arguments on my behalf why Para. 178 of
the judgment in the NRO case is not implementable at present
only, for the period Mr. Asif Ali Zardari is the incumbent
President of Pakistan. Submissions in this respect will be made
herein, which will be elaborated by my learned counsel. I do notseek a review of that judgment (which this Honble Bench is not
competent to do) but only to submit that it cannot, and should
not, be implemented for the time being only. The judgment
has to be implemented, but at the proper time. Till such time
arrives it must remain inchoate. This is not a matter of pride
and ego of any institution or person and nor should it be
construed as such. It is in fact, in accord with legal precedent
and international practice.
6. At the very outset, I most respectfully, take exception to the
proceedings undertaken against myself and aver with emphasis
that I have neither personally nor in my official capacity as Prime
Minister of Pakistan violated or disregarded any direction of this
Hon'ble Court including the one contained in Para. 178 of the
judgment in the NRO case. In fact, I have great regard for the
judiciary to which this Hon'ble Court is itself a witness, being well
aware that every issue concerning the judiciary has been
resolved, during my government, amicably and within the letter
and spirit of the law, without any personal gain, mala fide
intention or ulterior motive on my part. Only this one issue
remains which, too, must be so resolved so that the Constitution
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and the law come out supreme without damage of any kind to
any institution created by the Constitution.
7. At this point, I may even add that having been in Parliament
since long, I was the target of political victimization that put me
in the dock on false, trumped up and groundless allegations of
violation of Rules for personal or political gain. At the end of the
day, I was acquitted after a trying period of 5 years of
incarceration. This reinforced in me that I must keep going by
the book, no matter what. Today I stand at the Bar as an
accused but will still follow the law and the Constitution
according to my conscience and honest belief whilegiving due deference to this Honble Court as well to the
constitutionally and duly elected Head of the State as
required by the Constitution and my oath.
ON FACTS:
8. I will now turn to the backdrop of events, so as to put everything
in its true and proper perspective with a view to show that
(although the charge of contempt has neither been made out nor
has been proved to any degree of satisfaction) my conduct is
above board, and anything but contumacious and that I have not
violated, disregarded or disobeyed any order or direction much
less willfully. I seek, even now, to persuade this Honble Bench
that the letter in question involving the sitting President ought
not to be written for the time being.
9. Having now been apprised of all the judgments and orders
(being prosecution documents Exhibits P.1 to P.40), I can say
that I had been required to advert to only some of these earlier,
and that too in a different light. I can now submit that:-
10. When the aforementioned NRO case was taken up for hearing by
this Hon'ble Court in the year 2009, the Federal Government,
keeping in view the prayer clauses in the Constitutional Petitions
in question, preferred not to defend the vires or otherwise of the
then lapsed National Reconciliation Ordinance, 2007 (NRO). It
was, however brought to the attention of this Hon'ble Court that
in case this Honble Court wished to rule upon wider issues other
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than those raised in the petition and prayer, the Federation
would seek fresh instructions. Therefore the learned Attorney
General was instructed not to defend the NRO. It was in this
background that when the aforesaid constitutional petitions were
decided on December 16, 2009 (Exhibit P.1) the Federation
filed a Review Petition (CRP No.129/2010) through the Federal
Law Secretary.
11. It is now evident to me from Exhibits P.1 to P.40, that while
the aforesaid Civil Review Petition against the judgment in the
NRO case was pending, this Hon'ble Court undertook (what may
now be called), the Implementation Proceedings titled Suo Moto
Case No.04/2010 and held the first hearing on March 29, 2010
(Exhibit P.3). Thereafter, on April 01, 2010 (Exhibit P.6), this
Hon'ble Court directed the Secretary Law to start process now
and complete the same according to law.
12. Now, when the Secretary Law himself was required to initiate
and complete the process, there was no need for the Federal
Government to seek my instructions as it could act under
directions of this Honble Court. However, since the Law Ministry
was of the opinion otherwise, a Summary dated May 21, 2010
was moved to solicit my approval of certain proposals.
13. When the Summary dated May 21, 2010 (which has been
exhibited as Exhibit D.1) was placed before me, I noted that
no specific views qua the matter in question had been given
by the Ministry as per Rules of Business, 1973. Therefore, under
the circumstances, I directed that the legal stance already taken
by the Ministry had to logically be continued with.
14. The aforesaid Summary along with the order I passed thereon
was brought to attention of this Hon'ble Court on June 10 and
11, 2010 (Exhibits P.12 and P.13). Nothing was hidden from
this Honble Court.
15. This Honble Court did not take amiss my conduct. It only
disagreed with the Summary and directed that a fresh Summary
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be prepared and sent by the Law Secretary (then officiating) to
the Prime Minister.
16. It is therefore clear that I was never personally, or through
my office, addressed or required to pass any order
whatsoever except to pass orders on the Summary so
presented (thus accepting that I was to follow a Summary) which
is admittedly moved under the Rules of Business.
17. In fact, the reference made by me to those Rules in the aforesaid
Summary was never questioned by this Hon'ble Court.Therefore,
at this stage I could not be prejudiced for having approved one
of the proposals contained therein. Moreover the directions
given assume that I would, in all propriety, be expected
to act on the proposal in the Summary. This assumption is
apparent in the order recommending a different outcome be put
up. In the view of the Court, therefore, the outcome
depended upon the recommendations in the summary.
18. Once again, in accordance with direction of this Hon'ble Court,
another Summary dated September 21, 2010 (Exhibit D.2)
was moved after observing all legal formalities. This was a 54
page comprehensive Summary mainly focused on the area of
concern to this Hon'ble Court. The Summary after giving details
of the cases, their backgrounds, interest of Pakistan, status of
proceedings abroad and legal issues involved, particularized the
proposals in Para.17 therein.
19. I examined the recommendation. It categorically stated that
all cases abroad had been conclusively closed by the competent
authority of the concerned country and time for filing appeal (by
the Canton of Geneva) had also lapsed. The recommendations
were based on legal opinions, including those of the former Law
Secretary (a former retired judge of a superior court) and a
former Attorney General for Pakistan (a Senior Advocate of this
Honble Court) as well as other materials and documents from
Switzerland (that have been duly exhibited). It was further added
that as far as other directions were concerned, all had been
complied with and implemented. Faced with the aforesaid, and
the material thus before me, I acted on the advice expressed in
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the Summary itself. Therefore, I honestly and in all good
faith accepted the proposal as aforesaid.
20. My personal bona fides is established by the fact that I
further directed on September 23, 2010 that:
The Secretary Law and learned Attorney General for
Pakistan may appropriately explain the position to
the Hon'ble Supreme Court of Pakistan. (This has been
exhibited as Exhibit D.2/2).
21. Thus in the larger interests of justice, I have honestly and
faithfully executed my official duties with utmost regard for this
Hon'ble Court and directions passed by it.
22. It is a matter of fact that after the approval of the aforesaid
Summary a reasonable request was made to this Hon'ble Court
on behalf of the Federation that since Suo Moto Case
No.04/2010 for Implementation of Directions in the aforesaid
NRO case was proceeding while Civil Review Petition
No.129/2010 filed by the Federation against that judgment was
pending; therefore, it would be in the interest of justice if the
Implementation Proceedings (Suo Moto No. 4/2010) be taken up
after the Review Petitions formal disposal. Even when this
request was being made, the Hon'ble Court was also informed
that Summary had been approved. I invite the attention of this
Honble Court to page.3 ofExhibit P.19.
23. This request was acceded to by this Hon'ble Court (vide
Para.3 ofExhibit P.31) and Implementation Proceedings (Suo
Moto No. 4 /2010) deferred till after the hearing of the Review
Petition.
24. Thereafter, as per the record now before me, this issue was not
taken up until after November 2011. But in any case, I might add
that the order of this Hon'ble Court (Exhibit P.19) itself bears
witness to the fact that my directive passed on 23 September,
2010 on the aforesaid Summary was immediately
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communicated back to the learned Attorney General and the
Law Secretary and not a single day was wasted by my office with
the directive being brought to the notice of this Hon'ble Court
the very next dayi.e. September 24, 2010 (Exhibit P.19).
25. In November 2011, the Review Petition was taken up and finally
dismissed on November 25, 2011 (Exhibit P.2). Thereafter,
for the first time the Implementation Proceedings were taken up
again on January 03, 2012 (Exhibit P.21). On this date this
Hon'ble Court did not issue any direction to me or my office. It
simply directed the Law Secretary and learned Attorney
General for Pakistan (now prosecuting me) to apprise
this Hon'ble Court about the process of the Summary
which had already been in the knowledge of this Hon'ble
Court as referred to hereinabove. This Hon'ble Court
however issued a word of caution to the two gentlemen that
progress be shown by the next date of hearing, or action would
be taken against those who are found to be delinquent in the
matter. This is what I have now read. Otherwise, it was neverbrought to my notice.
26. Despite the above, on January 10, 2012, this Hon'ble Court
while, posing a number of options for itself, harshly observed, to
my great dismay that prima facie I could not be ameen and had
violated my oath of office (Exhibit P.22).
27. I submit that I have been informed that this Honble Court cannot
and should not attribute knowledge to an accused person on a
mere presumption. Knowledge must actually be proved. It
cannot be presumed. Even the documents presented by the
prosecution that comprise a series of orders passed by this
Honble Court, were not contemporaneously brought to my
knowledge in my capacity as the Prime Minister or otherwise.These may well have been in the knowledge of some concerned
officers of the Federal Government in so far as they were
passed in the presence of counsel representing the Federal
Government. Or these may have been communicated to the Law
Department through the Law Secretary or to the Law Minister.
Except for the aforesaid two occasions when two different
Summaries were placed before me I was not apprised of the
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proceedings of this Honble Court although they may well have
been in the knowledge of the learned Attorney General, the Law
Secretary or the Law Minister.
28. Then, too, it had been argued in the second Summary that
all directions of this Honble Court had been implemented, but
with respect to the one in issue here, a distinct proposal was
made.
As to the past conduct with which I have been formally Charged, I
submit that:
29. On September 23, 2010 as submitted, I accepted the proposal
with respect to that issue but at the same time directed that this
Honble Court be informed of the Governments appreciation of
the matter. This negatives contumacy. Had I the intent to
commit contempt, I would have directed that the matter be kept
away from the Courts eye. I had nothing to hide as I had no
mala fide intent. I expected the Honble Court to have been
informed and that if it had any issue with the argument
and proposal that had been made to me and accepted,
this Honble Court would pass appropriate orders.
30. I keep a very busy schedule as Prime Minister and Leader of theHouse in both Houses of Parliament. I am also required by the
responsibilities attached to my post to protect the honour and
integrity of Parliament, the President of Pakistan, and the
executive branch as full, coequal and coordinate branches of the
Federation. I have multifarious duties as Prime Minister, I lead a
coalition government and am pre-occupied by countless issues,
cases, applications and files on a daily basis with respect to
domestic and foreign policy matters. Unless someone reverts
with a complaint or information, I take it that my directives have
been complied with. I had thus reason to believe that my
instruction to the learned Attorney General and the Law
Secretary had been acted upon. That is the normal course of
business. The contrary cannot be presumed. There is
indeed no evidence to the contrary. And this Honble Court
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also did not then take up this matter untilJanuary 2012 when I
learnt that I had been issued a Show Cause Notice.
31. There is no proof, nor any allegation, of any knowledge
attributable to me that after I had given the direction on 23
September, 2010, that this Honble Court be informed of the
Governments position this Honble Court had at all rejected that
position on the basis of its earlier judgment.
32. By merely placing on the record of the case the several
orders passed by this Honble Court, the prosecution has
failed to link me to any wilful and contumacious
disregard on my part of any order of this Honble Court.
There is thus no question of any wilful contumacy on my part. No
offence is thus made out according to my understanding.
33. There is one other reason for me to have believed that the
matter concerning the judgment in the NRO case, its review and
implementation did not concern me personally. Mr. Justice
Tassaduq Hussain Jillani is a very distinguished and Honble
Judge of this Honble Court. He has had an illustrious career in
the service of law. He is a man of integrity and honesty.
Obviously he decided not to sit on the Appellate Bench to hear
ICA No. 1 of 2012 filed by me against the decision of this
Honble Bench to indict me. The reason for this was our close
relationship.
34. Mr. Justice Tassaduq Hussain Jillani has graced several Benches
dealing with the judgment in the NRO case and its follow up. He
has even scribed the main judgment dismissing the Review
Petition filed by the Federal Government. It is only obvious that
in the estimation of the Honble Judge, and according to the
impression thus obtained by me, there could be nothing in theseveral orders before January 2012 that amounted to any
negative reflection on my conduct or that would have affected
me in any manner whatsoever, or that concerned me.
35. I have also been informed that the proof presented by the
prosecution is wholly inadequate as the law requires a very high
standard of proof to prove a case of contempt of court. This is a
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criminal charge and has to be proved beyond any
reasonable doubt. The guilt must be pinned on to the
individual accused. Again, it cannot be presumed.
36. I believe that in a massive, unparalleled scam involving Rs.
65,000/-Crores (or Rs. 6,500 billion) in the 2G cellular phone
scandal in neighbouring India, the Supreme Court of India
recognized that the Prime Ministers duties were multifarious
and, even though knowledge on the part of his immediate staff
in the Prime Ministers own office was proven as admitted,
Prime Minister Mr. Manmohan Singh himself, was
exonerated on account of absence of proof of actual knowledge
and therefore of blame. I believe that the system in India,
including the practice of governance and the rules for conducting
Government business, are similar to those in our country. The
buck was therefore seen to have stopped before reaching the
Prime Minister but here it is being presumed, without basis to be
otherwise.
37. I am also informed that that Mian Nawaz Sharif, former
Prime Minister was exonerated by this Honble Court from
the criminal charge of hi-jacking an airplane for the reason that
the correctness of the opinion of the Prime Minister could not be
questioned so long as grounds existed from which it was possible
to draw the inference that he had drawn. He was actually
absolved of criminal intent even though the Honble Court itselfhad earlier, (in the famous case of Syed Zafar Ali Shah), found
him responsible for thereby planning to create such chaos and
anarchy as to justify military intervention.
38. There is another feature of the case that is most pertinent to my
defence. The prosecution has presented series of orders passed,
from time to time as Exhibits P.1 to P.48, as the ONLY
EVIDENCE of my alleged culpability. These span the period
between December 16, 2009 to February 10, 2012. However
until January 16, 2012 I had not, specifically or individually,
been made a party to, or subject of, any of those orders. The
Federal Government was indeed a party. But I personally was
not. There is an unspecific presumption that the buck stops
with me. But it never came that far.
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39. For the purpose of criminal liability, the Federal Government
cannot be equated or held to mean any one individual. An
individuals liability in criminal law, has to be pinned on to that
individual, not to a wider more amorphous body of persons or
officials. In criminal law, I am told, there cannot be any vicarious
liability. Guilt of each individual accused has to be established
expressly and beyond reasonable doubt. Each link of the chain of
proof has to be established along with proof of the guilty intent.
No such intent or guilt on me personally has been established by
the prosecution documents for past conduct as Charged.
(About the subsequent ex-parte order I will respectfully make
submissions later in this statement). And if any presumption of
guilt was to be implied on the basis of that material, it is fully
negatived by my order dated September 23, 2010 wherein I,
even while accepting the advice tendered to me by the Law
Minister and the Law Secretary, directed the learned Attorney
General (who prosecutes me today) and the Law Secretary, to
apprise this Honble Court of my position. Had that been done bythe concerned officials, as I had reason to presume would have
been done, this Honble Court could have taken issue with it, if
found wanting. But this Honble Court itself deferred the matter
of implementation until after the Review Petition filed by the
Federal Government. Exhibit P.31 dated October 11, 2010 may
be referred to. Thereafter it was only taken up in January
2012 and I was issued a Show Cause Notice on January 16, 2012
and directed to appear in person and show cause within three
days, on January 19, 2012. But an act of court should have
prejudiced no one.
40. With respect and humility may I suggest that the proper and
a fair trial process would have been to initially determine
whether there was prima facie basis for even issuing a Show
Cause Notice, through first issuing a mere Notice as envisaged in
Section 17(1) of the Contempt of Court Ordinance, 2003. That is
the very purpose of that provision in the law. It is provided by
the statute itself that governs these proceedings.
41. I seek no favours from this Honble Court. Nor do I seek any
special treatment. I have appeared as a humble accused
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charged with criminal conduct. But I am the unanimously elected
Prime Minister of the country. Had such a mere notice been
issued in the first instance, I would have had the right to two
stages of preliminary defence, and my assertion, in the first
instance that my direction of September 23, 2012 negatived
guilt on my part, may have held the field. But I was denied
that opportunity, I am constrained to feel with all respect to
this Honble Court, on account of the pre-trial order dated
January 10, 2012, Exhibit P.22. In that order my guilt,
personal knowledge and individual liability was presumed ahead
of the trial. On that order, I will also make further respectful
submissions later in this statement.
42. I have committed no contempt nor have I ever intended to
commit contempt. I have acted strictly in accordance with the
Rules of Business. When I did make an honest mistake of
ignoring the Rules of Business my order was rightly set aside by
this Honble Court. Decisions of several other Prime Ministers
and Federal Ministers have suffered the same fate, but they havenot been charged with any criminal offence. To set aside a
decision of an executive authority as being wrong, is one
thing. To charge that authority of a criminal offence, is
quite another.
43. My decision could have been right or wrong but it did not
amount to a criminal offence. Decisions and orders of FederalGovernments and Prime Ministers have been set aside or
reversed by the courts on countless occasions in the past. Never
has a Prime Minister been charged with contempt for having
performed the functions of his office in accordance with the
Rules of Business on advice tendered by the Law Department.
There is not a single precedent to my knowledge.
44. Now vide order dated March 8, 2012 the Honble Bench has
ordered me to ignore all advice and act to implement Paras. 177
and 178 of the judgment in the NRO case. I will submit with
respect to that direction.
45. The advice given in the past is, however, relevant to the
present and the future. The advice included statements that
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cases in the Swiss courts had been closed on merits and that the
documents that were the subject of Mutual Legal Assistance
Request had been provided way back in 1998 and nothing now
was required to be done on that account. I was also advised that
the sovereign position of the President of Pakistan required that
he could not be put up for trial in any foreign court including
Switzerland. I acted accordingly with no intention to commit
contempt.
46. I believe that this is indeed the correct position in law and fact.
As long as a person is a Head of a Sovereign State he has
immunity in both criminal as well as civil jurisdictions of
all other states under international law. I believe this
immunity to be absolute and inviolable, even though it persists
only during the tenure of office. It thus vests in the office, not
in the person. And it represents the sovereignty and
independence of a country as well as its sovereign equality with
all other states, howsoever strong and powerful. I think it
wrong to subject the constitutionally elected incumbentPresident of Pakistan to the authority of a Magistrate in a
foreign country. I think this subjection should be avoided.
47. I was a layman, in that I have never practiced the noble
profession of advocacy or the law. I have acted on the advice of
a department, and of persons steeped in law and who are
vigourous practitioners of the profession. Based on their advice Ibelieve that precedents of other Heads of State, Prime Ministers
and even Foreign Ministers, including precedents by this Honble
Court, support my submissions as to the Charge as framed as
well as the future course of action. My learned counsel will
elaborate on this.
Due process, Fair Trial and Article 10-A of the Constitution:
48. On the 7th and 8th of March evidence was led in my defence.
Certain documents were exhibited on the record and Mrs. Nargis
Sethi, Secretary Defence and Cabinet, recorded her statement
on oath as DW1. After her cross examination was over she was
relieved of her testimony by the Honble Bench. Fresh dates
were then announced by the Honble Bench for the recording of
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my statement and final arguments. After this my learned
counsel left the Court premises.
49. Thereafter the Honble Bench passed a de novo order in
another case (Suo Moto Case No.04/2010), without notice to
my learned counsel. For that purpose the presence of the
learned Attorney General, who, a short while earlier, had been
prosecuting me before the same Bench, was secured on my
behalf. He arrived in a hurry from Courtroom No.1 and was told
to inform me that the Honble Bench had decided to order me to
implement the directions given in Paras. 177 and 178 of the
judgment in the NRO case.
50. This was the precise allegation for which I was being
tried. I was yet to make a statement in my defence. My
learned counsel was yet to argue the case. Before hearing or
appreciating my defence the Honble Bench has passed a further
order and that too ex-parte requiring me to do precisely that
which I have to defend myself for allegedly not having done.
51. It was necessary for the Honble Bench to first hear and
appreciate arguments as to whether the steps referred to in
Para.178 could, or even should, be taken in the first instance in
Criminal Original No.06/2012 before directing me, ex-parte,
to do so in Suo Moto Case No.04/2010. It is evident that the
Honble Bench has arrived at a conclusion which is directly
contradictory with my defence which had yet to be fully
expounded. And it has done so without an opportunity to me and
my learned counsel to expound it. With utmost respect and
humility it is submitted that this amounts to pre-judging a
cause, and condemning without a hearing. Clearly two
conclusions are inevitable i.e.
a) That the Honble Bench has sat through the proceedings
having already decided that steps must be taken (i.e. in
effect that the letter must be written) before giving me the
opportunity to argue why it cannot, or at least should not be
taken and written for the time being;
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b) It is therefore evident also that the Honble Bench has not
been prepared even to consider the effect of the
submissions I, now, and my learned counsel later, has to
make in my defence.
c) After all, the entire issue in the case is one:
Did I commit a wrong in not taking the steps (writing
the letter) in question?
52. If the Honble Bench is to direct me to write the letter regardless
of any submissions or argument I may have to make in this
behalf, the Honble Bench is prejudging the question. If it is to try
me for alleged past conduct then it must create a mental
firewall so that events, before or after, do not affect its
judgment. That, unfortunately, has not been done. Grounds
based on future conduct may be created by the order dated
March 8, 2012 for presuming contumacy affecting the present
trial. But this is a criminal trial, which can lead to serious
consequences. I have therefore to be acquitted of the Charge
as framed before any other process can be initiated. In fact, the
fresh order of March 8, 2012 goes to show my innocence of the
earlier Charge. The contrary is not possible.
53. With respect I submit that this makes it a serious case of
mistrial. When this very Bench has yet to determine whether I
did wrong or right in not writing the letter, how can it
prematurely direct me, through a definitive and inflexible order,
to write it or face the consequences? This direction prejudices
my defence and indicates, it is submitted with utmost respect,
that the Honble Bench has made up its mind before the
conclusion of the trial. That being the case, I cannot obtain a fair
trial from it.
54. I do not want to cause offence to any of the Honble Judges on
the Bench. I am also aware of the sensitivity of the issue. But
this is a matter at a higher plane, a matter of the right of a
citizen to justice. And justice must not only be done, it must
also be seen to have been done. That is the point. There are
also other points of extreme concern to me.
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55. It is singularly peculiar that the same learned gentleman who
was prosecuting me before the same Honble Bench on the same
question of whether the letter could, or should be written, was
converted suddenly and transformed, with respect to the same
matter, into my Counsel and my representative on the very
same day. The matter is indeed the same even though it may
appear at different numbers in the Cause List. As a matter of
fact the learned Attorney General has been privy to the
entire process himself and first hand. He has been
appearing before this Honble Court regularly since his
appointment to his office on April 02, 2010. This period includes
the period when the two summaries, Exhibits D1 and D2 werescribed and approved. He was the gentleman, besides another,
mandated by me to bring the decisions of the Government to the
notice of this Honble Court. He did not. But he has been
appointed as the prosecutor by this Honble Bench and I am the
accused. This is a tragic irony.
56. There are other ironies. This Honble Bench itself issued theShow Cause Notice to me. It thus initiated the prosecution, itself.
If not prosecutors, the Honble Judges gracing this Honble Bench
are certainly in the nature of the complainants. Yet they sit as
Judges and try me in the same cause.
57. Therefore, in so far as:
a) an order has been passed directing me to take steps
mentioned in Para.178 before the conclusion of the Trial
to determine whether these could, or should, have been
taken (and the letter written); and
b) this Honble Bench having itself initiated the
prosecution is sitting in trial and judgment; and
c) the learned Attorney General, privy to all facts, first
becomes the Prosecutor then again my lawyer
means that the most fundamental principles of Natural
Justice stand violated. These well known principles of
Natural Justice as expounded by this Honble Court
itself, are that:
No man shall be condemned unheard.
No Man shall be a judge in his own cause.
Both these principles have been breached.
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58. This is not a mere statement of the art. Today it is a
Fundamental Right enshrined in Article 10-A of the
Constitution of our country. I am aware that there has been a
tradition and practice allowing judges to be judges in matters
initiated by themselves in cases of contempt of court. In Pakistan
that has recently changed radically.
59. Being the Leader of the House in the National Assembly and the
Senate for the last four years, I was myself aware and often told
by several members, from time to time, that one of the many
aspects in which the Constitution needed improvement was anew guarantee by way of a fundamental right to fair trial
and due process. Even though superior Courts had, from time
to time, introduced the concept of due process under other
provisions of the Constitution, yet without a Fundamental Right
these principles could be, and were, often disregarded. The
standard of enforcement of these principles also remained
variable.
60. Accordingly, I encouraged Parliament to adopt a new
Fundamental Right, enshrined in Article 10-A in the
Constitution by the 18th Constitutional Amendment Act. Fair
Trial and Due Process have thus become Fundamental Rights
which cannot even be surrendered by the citizen even if a citizen
wanted to waive a Fundamental Right. These guarantees are
most emphatically contained in the Principles of Natural Justice:
No decision shall be rendered without or before hearing
the affected party; and no man can sit and judge in a
matter that has been initiated by him.
61. I have thus submitted to the majesty of the Honble
Supreme Court, but not to the authority of this
distinguished and Honble Bench. It is my hope that the
members of this Honble Bench will not take offence my
foregoing assertion. To the Honble Court I submit. To the
Honble Bench, as constituted, I do not. That is my
Fundamental Right that I cannot even waive or forego in
light of the rulings of the Honble Court itself. I hope that
the Honble Judges gracing this Bench will not take this as a
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personal slight, but only as an adherence to the principles of
justice, as respectfully explained hereunder.
62. While my learned counsel will elaborate on this matter I may also
humbly submit that the application of the law of contempt of
court must now be subject to and in conformity with the
new Article 10-A of the Constitution to which the Honble
members of this Bench, as well as myself, have taken oath. This
requires a strict application of the age-old principles of Natural
Justice referred to above, now having unexceptional application.
These are now enshrined as a Fundamental Right and the
Honble Judges who decided to issue the Show Cause Notice to
me, should not have sat in the trial, nor should sit in judgment in
this case.
63. There may have been a wisdom in the past practice whereby
learned judges who themselves had initiated the prosecution
could sit in judgment themselves, but much water has flown
under the bridge and today the unanimous wisdom of our
Parliament, and that of many other legislatures, has decided that
to ensure fair trial and compliance with due process, judges must
avoid being party to prosecutions initiated by themselves.
Parliament while unanimously adopting Article 10-A did
not provide for any exception concerning cases of any
particular category including contempt.
64. In my case not only was the Show Cause Notice itself issued by
this Honble Bench but a preceding and Honble Bench, members
of which grace the present Honble Bench as well, was pleased
to pass a detailed and harsh order (discussed below) onJanuary
10, 2012.
65. I submit, with all the humility of a person accused, that in view of
Article 10-A the Honble Judges who decided to initiate the
prosecution, especially those who passed the pre-trial order
dated January 10, 2012 casting serious aspersions
against me, should graciously avoid sitting in trial and
judgment.
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66. Let us not forget that learned judges are also human
beings, and fallible. It is also difficult, if not impossible for
them, to disassociate from opinions so harshly, and firmly,
expressed by them before the initiation, and also before the
conclusion of the trial. The orders ofJanuary 10, 2012 and of
March 8, 2012 are clear indications of the mind of members of
this Honble Bench. Both are definitive orders. And both pre-
empt my submissions.
67. The order of January 10, 2012 (Exhibit.P.22) is a virtual
pre-trial indictment. It hypothesizes that I had betrayed
my oath to Allah, was disloyal to the Holy Quran, was not
sagacious, righteous, non-profligate, honest and
ameen and was also hence, not qualified to be a
member of Parliament, what to talk about being elected
Prime Minister of the Country. Even my commitment to
my religion, Islam, was questioned by these Honble
Judges.
68. The order ofMarch 8, 2012 (also in Suo Moto Case No. 4/ 2010)
opines that:
a) despite specific orders and warning given from time to
time since March 2010where none had been given to me
personally until I was summoned to appear in person on
January 19, 2012;
b) On personal appearance he made no commitment toimplement the Courts directionwhen that is precisely what
is in issue in the trial;
c) The said proceedings related to the disobedience of the
earlier orders of the Court and their pendency does not to
(sic) affect the process already undertaken for
implementation of the said directions, when the
implementation, only for the time being, is the very issue in
point.
69. The conclusive direction to do that which I am accused of not
having done in the past, and for which my explanation, and
arguments on my behalf have yet to be heard, is also a pre-
emptive order denying my defence to the past as well as
the future course of action. With all due respect, I submit
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that this Honble Court must confine and consider the Charge
as framed and the evidence produced by the prosecution to
prove it. At this stage, when evidence of both sides has been
closed, the scope of the charge may not be enlarged and no
personal knowledge of the Honble Bench be used or judicial
notice taken of any fact which is at issue in the subject
proceeding. Such would not only seriously prejudice my defence
but would also constitute being a violation of due process of
law.
70. I am also constrained to point out that in contrast to the
proceedings against me which were initiated as recently asJanuary 16, 2012 and have come to the conclusion in this trial,
the charge against the contesting PCO judges who were
removed from office as long ago as on July 31, 2009 has not
been framed to date. They had disobeyed an express order of
this Honble Court and seen their colleagues and seniors being
actually arrested and detained. These arrested and detained
were the Honble Judges whom I set free, and in the final
instance, reinstated. It would be below this Honble Courts
dignity to be perceived by anyone as having discriminated.
71. It is with a deep sense of hurt, therefore, that I feel I am left with
no option but to expressly invoke my Fundamental Right
under Article 10-A of the Constitution as a citizen of
Pakistan and as an accused person before this Honble Bench.
The Honble Judges know best that justice must not only be
done it must also be seen to have been done. With Honble
Judges who have expressed the above pre-trial opinions and
passed such pre-defence orders, continuing to grace the Bench,
justice will not, at the very least, be seen to be done. The cause
of justice and the dignity of this Honble Court will thereby suffer.
72. Having invoked my right under Article 10-A let me also
establish my defence on merits without prejudice to that
invocation. Without waiving my inalienable Fundamental
Right under Art. 10-A, I go to the merits only to show that
I have done no wrong, nor I intend or seek to do a wrong. I only
seek the Honble Bench to discharge the contempt and to recall
its order of March 8, 2012 in Suo Moto Case No. 4/ 2010.
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73. I thus submit that my defence is contained in:
a) The documents exhibited by the prosecution itself (Exhibits.
P.1 to P.40) of which those of September 24, 2010 onwards
have thereby been brought to my notice now;
b) The statement of DW (Mrs Nargis Sethi);
c) The Defence Exhibits i.e. Exhibit. D1-D1/4 and Exhibit. D2-
D2/16.
74. The prosecutions own documents prove that:
(i) I was not made aware personally of the orders of this
Honble Court, post September 23, 2010 even at the
instance of the Honble Court, until January 2012.
(ii) Hence, the reference to the specific orders and warnings
given from time to time since March 2010, in the order
dated March 8, 2012 in Suo Moto Case No. 4/2010 (and not
in the Contempt matter which is Criminal Original No.
6/2012), is not to any order addressed personally to me.
(iii) The Federal Government does not comprise of me alone.
While constitutionally, it is as defined in Article 90 of the
Constitution, in actual fact, it is run through the agency of
an entire host of officials and civil servants engaged in the
process envisaged by Article 99. They pass hundreds of
orders, and communicate decisions on a daily basis to the
citizens. That is how the government is run.
(iv) Knowledge of the officials is never equated with knowledge
of the Prime Minister (see Prime Minister Mr. Manmohan
Singhs case, supra).
(v) The first order that was both specifically and individually
addressed to me as well as communicated to me by the
Honble Court, was the order dated January 16, 2012. It
required me to appear before it on January 19, 2012. I
appeared as required.
75. Contrary to the learned Prosecutors objections, I only refer to
these documents for the Honble Court to see what effect, on
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their face, they would have on a person perusing them and
taking them as correct. I believe, therefore, that on their basis:
a) As expounded in Exhibits D.1/3; D.1/4; D.2; D.2/13 that the
proceedings against the President of Pakistan in Switzerland
are closed on merits.
b) As evident from Annexures, Exhibits D.2/8 and D.2/10 (Mr.
Saifur Rehmans letters) that the proceedings in Switzerland
against the President of Pakistan were initiated malafide.
c) The letter dated May 21, 2008 written by the then AttorneyGeneral Malik Muhammad Qayyum had no effect on the
conclusion of the proceedings in Switzerland. (Please refer
to the opinions of Mr. Anwar Mansoor Khan, the then learned
Attorney General (Exhibit D.1/4), and Mr. Justice (rtd) Aqil
Mirza, then Law Secretary (Exhibit D.1/3)).
d) The President of Pakistan being the Head of a Sovereign and
Independent State is immune during his term of office from
all processes and proceedings in any foreign, domestic
Court.
76. The statement of Mrs. Nargis Sethi, DW, establishes
that:
(i) I acted on advice submitted to me by the Law Division
and the Ministry of Law. This was the only prudent way to
act, particularly in view of this Honble Courts earlier
precedents.
(ii) That I thus acted expressly in accordance with law and
practice of the Government and the Rules of Business in
accepting the advice of the law department.
(iii) Acting on such advice was also appropriate as:
a) According to the practice and Rules of Business,
the advice of the Law Ministry is always given
preference. Indeed, matters concerning all ministries
and divisions are referred to the Law Division whose
opinion is given primacy.
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b)The advice referred to interpretation of the effect of a
long and detailed judgment of this Honble Court, in the
complete context of which Para.178 had to be
understood.
c) The advice relied on the view not just of the
incumbent Law Minister and Law Secretary, but also of
the former Law Secretary and a former learned
Attorney General, both opining that the proceedings in
Switzerland have been terminated on merits.
d)Despite the above substantial elements, I directed theLaw Secretary and the learned Attorney General to
apprise this Honble Court of the position of the Federal
Government.
77. Defence Exhibits establish that:
a) The very initiation of the proceeding in Switzerland was
mala fide and politically motivated.
b) The pending proceedings have been closed on merits
(Exhibits D.1/3; D.1/4, D.2 and D.2/13. The request to be
made civil party expired with this termination.
c) The Mutual Assistance Request was already acted upon and
finally concluded in 1998, and nothing remains to be done in
that behalf.
d) No civil action (suit) for the recovery of any monies of funds
was ever filed in Switzerland in 1997 or thereafter.
78. As a matter of fact by passing a de novo order on March 8, 2012
directing me to issue the letter the Honble Bench recognized
that this order was necessary because there was no previously
binding obligation upon me to do so. This alone is an admission
of the fact that I have committed no wrong so far and this alone
is sufficient to exonerate me of the charge framed on February
13, 2012.
79. I therefore, believe that I have committed no contempt and that
is a sufficient answer to the charge. I also believe that the
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Sovereign State of Pakistan cannot, must not and should
not offer its incumbent Head of State, Symbol of the
Federation (Art. 41), the most prominent component of
Parliament (Art. 50), and the Supreme Commander of its
Armed Forces (Art. 243) for a criminal trial in the Court of
a foreign Magistrate, during the term of his office. Any
such attempt on my part would be liable to serious
consequences being in humiliation of the constitutional symbol
of the sovereignty and independence of the State, which I am
under oath to uphold. This is also a principle of absolute and
inviolable Head of State Immunity recognized in International
Law and must also be respected and upheld by all ourinstitutions i.e. executive, legislature and judiciary.
80. I know that I am in no position to provide any guidance to the
Honble members of this august Bench who must know best. But
I, too, am an occupant of a constitutional office, and an elective
office. Thus even from my humble position standing at the Bar as
an accused before the majesty of this Honble Court, I may bepermitted to make a statement on behalf of the Federal
Government in the context that follows.
81. There are two high principles involved in this matter:
One is that corruption should not be tolerated. This is
salutary and important.
The other principle protects the sovereignty of theState and its Head. It requires that during his or her
tenure, the Head of a State be not prosecuted in a
foreign court. This immunity is limited to the office of
Head of State, and to the duration of office. Neither the
Court should have any difficulty, nor would the Government
have any impediment in prosecuting a person after he has
vacated the office of President. It is only a question of
time to implement only this one part of the judgment.
82. Finally, let me reiterate with emphasis, but humility, that
I want each and every constitutional institution to go from
strength to strength and to prosper with public esteem, dignity
and honour. I have committed no contempt nor have I ever
intended to commit contempt of this Honble Court. On the
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contrary, I have made every effort to discharge all of my
constitutional responsibilities by seeking advice from the
competent officials in accordance with the Rules of Business and
then acting in accordance with such advice. It is not my opinion
that is to be defended, but rather my right to express that
opinion based on the material before me. This Honble Court has
repeatedly recognized the special and binding nature of the
Rules of Business (including, it has been recently brought to my
notice, in the very NRO case itself) and thus any action taken by
me in terms of these Rules is entitled to constitutional
protection. It is therefore respectfully submitted that I am not
guilty of the charge framed against me.
83. I also submit, in all humility, that nations go to any
length, even to war, to protect and recover even their
ordinary citizens accused of grievous crime, from foreign
processes and jurisdictions. They do not ever abandon
them. Consider the feverish anxiety of western developed
nations to retrieve and fly out their citizens faced withlocal indictments in Afghanistan and Pakistan in recent
times.How then can the State of Pakistan surrender its
incumbent President for trial before a Investigating
Magistrate in another jurisdiction? This Honble Bench
should recall its ex parte order dated March 8, 2012 in Suo Moto
Case No. 4/2012. If at all, however, the Honble Court does
propose to expose the incumbent President of Pakistan, to
prosecution before a western magistrate I suggest that being a
matter of grave public concern, the issue be sent to Parliament
to take a decision as was wisely done in the case of the 18 th
Amendment concerning Articles relating to the appointment in
higher judiciary and Parliamentary oversight.
If nevertheless the Honble Court seeks to enforce the order
dated March 8, 2012, I reserve the right to expound my
response thereto as that order was passed in Suo Moto Case
No. 4/2010, a lis in which my response is to be submitted
separately.
84. It is evident that this Honble Court had several options. It itself
listed the Six Options available to it in its order dated January 10,
2012. I cannot understand, with all respect and humility, why the
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most coercive option has been selected by this Honble Court
and for what reason. No justification appears to have been
provided for selecting this option. The ultimate judges of my fate
and reputation will still be the people of Pakistan who are
referred to in the Sixth Option. As I submit to this Honble
Court so I will also, in the manner expressed by the
Honble Court in the Sixth Option, surrender to the
judgment of the people of Pakistan at the appropriate time
according to the Constitution. People are and must remain
the highest worldly sovereign in this Country. They are the
judges of the last resort in this world. That will be the best
course of action and also be according to the Sixth Optionformulated by the Honble Court itself.
SYED YUSUF RAZA GILANI