Courts can abolish immunity to President, says Justice (R) Wajihuddin

[Naveed Yaseen]

JUSTICE (Retd) Wajihuddin Ahmad has said that the superior courts have powers to strike down those articles which are in conflict with the spirit of the Constitution and they include Article 248 which provides immunity to the president and governors from prosecution.

He was replying to media persons’ queries at a press conference at the Lahore Press Club on Saturday.

He said the discriminatory Article 248 was not inducted into the Constitution by any military dictator through notorious 8th or 17th amendments, but it was included in the Constitution by the architects of the Constitution themselves. However, he said, our glorious legacy prohibited the rulers from enjoying any kind of superiority over the masses. He said that during the Khilafat period, rulers (Khalifahs) were treated as equal citizens with other litigants inside courts. He cited an incident in which a Khalifah dismissed a Qazi (judge) since he stood up when Khalifah entered the court.

Giving examples from the modern world, Justice (Retd) Wajih said an Israeli president was prosecuted during his tenure of presidency while the supreme court of Italy struck down an article of the constitution enacted by the parliament providing immunity to president from being summoned by court.

To a question, the former judge of the Supreme Court said the Constitution was like a living organism and things like Article 248 was like its cancer.

When asked whether the parliament was superior to judiciary and could overrule its judgments through legislation, he said that whenever constitution was present in a written form, both judiciary and parliament had an equal status and worked in their own spheres.

When asked about the reports that the government was planning legislation to withdraw suo motu powers from judges of superior judiciary and enact a constitutional court, Justice (Retd) Wajih said it was unfortunate for a nation like ours which had glorious traditions of justice and equality. He, however, added that any attempt to clip the powers of judiciary would never be allowed to succeed.

He expressed sorrow over the state of affairs in the government and parliament regarding misuse of legislative powers, saying if people could have seen the draft of the proposed 18th Amendment, they would have pulled their hair out. He said it showed that the mentality of our legislators had not changed. He recalled that 13th and 14th constitutional amendments during the last tenure of Nawaz Sharif were stayed because they contravened the spirit of the constitution.

To a question about the fate of the National Reconciliation Ordinance, the former Supreme Court judge said it was the responsibility of the law enforcing and prosecution agencies to take proper action against those who benefited from the ordinance during 4-2-08 and 28-11-09. He, however, expressed concerns that powers of National Accountability Bureau were clipped and there existed no substitute agency to take action against the NRO beneficiaries, therefore, the responsibility to take such an action would again be put on the shoulders of judiciary.

He said judiciary could see whether the NRO was against the constitutional equality and fundamental rights. He said the judiciary had provided a chance to the present political and democratic system to approve or reject the NRO but the latter badly failed in carrying out this job. Earlier, addressing a press conference, Justice (Retd) Wajih said now the superior judiciary was back on its track and it would soon excel even the western judiciary. He said the vacant posts and complaints of corruption were hindering the judges’ way in dispensing justice and resulting situation was causing unnecessary delay in solving people’s problems who were forced to pay bribe for getting their rights.

The former judge said the poor state of affairs in the subordinate judiciary which was increasing public frustration since people were in direct contact with it. To a question, he said most of the judges were serving in additional capacity and both the media and masses could keep a watch on their performance so that those falling below the standard could be removed.

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