Gilani statement to Supreme Court

8/2/2019 Gilani statement to Supreme Court

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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

Gilani statement to Supreme Court

Documents

Transcript of Gilani statement to Supreme Court