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February 22, 2012 / khawjaimtiazalam

Letter to the Chief Justice of Pakistan

17 Dec 2011

The Chief Justice of Pakistan
Supreme Court of Pakistan

Hon’able Chief Justice

Assalam O Alaikum

This is a follow of my letter of20th Nov 2011on the issue of Memogate. I strongly feel that the crux of the matter remains the question of Immunity to the President of the Islamic Republic of Pakistan.

It is not only a discriminatory Law but also repugnant to the Qur’an & Sunnah.

My views on Immunity to the President is enumerated below & may please be heard as a petitioner.

1.Constitution of Pakistan-1973 This Legislation was adopted unanimously by all Parties belonging from different walks of life and different Religious perceptions, that they so chose to adhere to the Islamic Ideology of their own free will  and representing  the aspirations of the people of Pakistan. .

2. That the petitioner is a citizen ofPakistanand believes in the Islamic tenets, Injunctions and believes that the, day to day existence of life requires  management according to the Quran & Sunnah, particularly in an Islamic State where Islam is a complete way of Life.  In an Islamic state Ideology , law  and religious faith are interrelated.

3.  The Preamble (Objectives Resolution) states that Sovereignty  belongs to Allah alone over the entire Universe  and Authority is exercised by the people of Pakistan  within the limits prescribed by ”HIM” is a sacred trust.

4.  That the petitioner is  a motivated and  dedicated Muslim, so are the rest of the Muslims in Pakistan who believe in the Supremacy of the law  and that 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. And whereas it is the will of the people ofPakistan to establish an order:-

5.  Wherein the principles of democracy, equality, tolerance, and social justice, as enunciated by Islam, shall be fully observed.

6.  Wherein the citizen’s of Pakistan shall be guaranteed Fundamental Rights , including Equality of Status, of opportunity and before law, social, economic, and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality.

7.  Article 2 states that Islam shall be the State religion ofPakistan.

8.  By virtue of Article 2A  of the Constitution of Pakistan the Book Of Allah (Subhana tala)  and the Sunnah of the Holy Prophet(P.b.u.h.) which for allow Muslims mean the paramount Law and Command has now become the Supreme Law of Pakistan. Sovereignty of Allah in its widest sense. Embracing all social economic, legal and political spheres, is now an enforceable  Sovereignty . All this is Supra-Constitutional and overrides and supersedes everything in all laws and even in the Constitution which comes into conflict with it.

9.  By virtue of Article 227-Provision relating to the Holy Qur’an and Sunnah- All existing Laws shall be brought in Conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah, in this part referred to as the Injunctions of Islam , and no Law shall be enacted which is repugnant to such Injunctions.

10.  It is very evident and clear from the above that no Law can be enacted which is repugnant to the Qur’an and Sunnah.

11. Article 248 of the Constitution is against the Injunctions of Islam. A dichotomy  exists within the Constitution of Pakistan when read in cosonance with  Article 2-A and Article 227 of the Constitution.

12.  The Injunctions of Islam are very clear when we discuss the Basic Fundamental Rights of Islam which clearly enunciates that “All are equal in the Eyes of the Law”.

13.  It has been amply illustrated during the Life of the Prophet SAW when during the course of discussion with a group of people the Prophet SAW remarked that “Even if Fatima RA was found in the act of stealing she would have been

punished with the amputation of her hand under Islamic Jurisprudence. The Import of these words are tremendous.

14.  The Caliph Umer RA on two occasions  was challenged in an open Court  on his holding extra piece of cloth sheeting from the Bait ul Mal and on another occasion on the fixation of Mehr for a women on the occasion of their marriage.

15.  The blanket Immunity under Article 248 to the President does no hold good when applying the Islamic Injunctions. It is repugnant to the Qur’an and Sunnah.

16. On 17th of Dec 2011 an Article published in the daily“The News” captioned

Memogate and Immunity by  Huzaima Bukhari and Dr.Ikramul Haq argues the point that Article 248-cannot be interpreted to condone any action that is violative of any law. The Article is produced below to elucidate the principle that “Nobody is above the Law”.

On Dec 1 the nine-member bench of Supreme Court passed an order in Constitutional Petitions 77 to 85 observing: “We are conscious of the fact that the respondents, who include the president of Pakistan, the army chief, ISI, etc., have to file their replies to explain their positions. However, we may, at this stage, refer to the case of United States vs Richard M Nixon, President of the United States [418 US 683], wherein the then president of the United States was facing proceedings before the Committee of the Senate, and at the same time, pre-trial evidence was being collected by a special prosecutor general, which was objected to by him and the matter went up to the US Supreme Court, and ultimately it was resolved that such pre-trial evidence could be collected. Similarly, there are so many other cases, including the case of Imtiaz Ahmad vs Government of Pakistan (1994 SC 2142) wherein collection of pre-trial evidence against persons who are found guilty ultimately is not prohibited.”

These observations have once again rekindled the debate regarding the scope of “immunity” available to the president of Pakistan under Article 248 of the Constitution. The issue became the subject of a heated controversy when, on Feb 19, 2010, the Supreme Court summoned the chairman of the National Accountability Bureau and reprimanded him for not implementing its order in Dr Mubashir Hassan and Others vs Federation of Pakistan and Others, PLD 2010 SC 1-commonly known as the NRO case. The Supreme Court gave the deadline of March 13, 2010, to the NAB to submit a report regarding the writing of letter to the Swiss authorities. The deadline was not met as the federal government filed a review petition, which was dismissed by a 17-member bench on Nov 25.

Everyone is now watching whether the government will act upon the directions given by apex court in the NRO case or still refrain from writing a letter to Swiss authorities using the pretext of immunity clause even after issuance of a notice to the president, the prime minister, the chairman of the NAB and governors of all the four provinces on Dec 14, 2011, to submit within two-and-a-half weeks why the NRO order was implemented in totality.

Of all the nine respondents asked to file comments by Dec 15 in Constitutional Petitions 77 to 85 (commonly known as Memogate Case), Mansoor Ijaz responded through an 81-page email, along with a letter to the chief justice, that he “is ready to appear before the court regardless of security concern.” Hussain Haqqani also filed his reply, challenging the maintainability of the petitions. According to a press release posted on the website of Supreme Court, the chief of the army staff (COAS), the director general of the Inter-Services Intelligence (ISI), the secretary of the ministry of interior and the secretary of the ministry of foreign affairs also filed replies. While the government questioned the jurisdiction of the apex court, the COAS and the director general of the ISI asked for investigation of the matter. All eyes are now set on the hearing in the matter on Dec 19.

Undoubtedly, the issue of presidential immunity under Article 248 has assumed renewed significance both in the NRO case and in Memogate investigations. The proponents of immunity under Article 248 should keep in view the following observations made by the Supreme Court in Chief Justice of Pakistan Mr Iftikhar Muhammad Chaudhry vs President of Pakistan, PLD 2010 SC 61:

“Another objection raised to the maintainability of this petition was that Gen Pervez Musharraf, the president of Pakistan, had been impleaded in the said petition as one of the respondents, which was offensive of the provisions of Article 248(1) of the Constitution. The said provision reads as under:

“ ‘248(1): The president, a governor, the prime minister, a federal minister, a minister of state and a provincial minister shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices, or for any act done or purported to be done in the exercise of those powers and performance of those functions:

“ ‘Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the federation or a province.

“ ‘Such an immunity had been examined by the Privy Council in H.B. Gills case (AIR 1948 Privy Council 148) and the reaction of the Privy Council to suchlike protective provisions was as under:

“ ‘Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials, cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the discharge of his official duty if his act is such as to lie within the scope of his official duty. Thus, a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a government medical officer acts or purports to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office.’”

The issue of immunity under Article 248 also came up for interpretation in Chaudhry Zahoor Elahi’s case (PLD 1975 SC 383) and it was held by the apex court that—

“…[T]he immunity provisions must, in accordance with the accepted principles of interpretation, be construed strictly, and unless persons claiming the immunity come strictly within the terms of the provisions granting the immunity, the immunity cannot be extended. The immunity is in the nature of an exception to the general rule that no one is above the law.”

On the strength of a number of cases, the Supreme Court in PLD 2010 SC 61 has held that, if an action is unlawful, “no exception could be taken to the impleadment of the president as a respondent in the petition.” In the presence of this judgement, the president of Pakistan, Asif Ali Zardari, cannot claim immunity under Article 248 either from charges of funds parked in Switzerland or the inquiry in the Memogate case.

Article 248 gives protection to acts done in good faith and cannot be construed to extend blanket cover for unlawful and unconstitutional acts. If the argument of unqualified immunity is accepted then after subverting the Constitution, an officeholder mentioned in Article 248 can escape punishment under Article 6 as well. Certainly, in such cases he cannot rely on this ouster provision. The ouster provisions of the Constitution-like Article 248-cannot be interpreted to condone any action that is violative of any law.

I fervently pray to you to accept this letter as a petition and admit it for regular hearing as it affects the future course of action of the Islamic Republic of Pakistan and will have a direct impact on the well being of the people of  Pakistan.

Thanking you

Lt Col Imtiaz Alam(retd)


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