Islamabad: Two days ahead of a Supreme Court deadline for reviving graft cases against President Asif Ali Zardari, Prime Minister Yousuf Raza Gilani on Monday refused to act in the matter and said the judiciary should let Parliament decide the issue of presidential immunity.
In a reply submitted to the apex court regarding his indictment for contempt for failing to act on orders to reopen corruption cases against Zardari in Switzerland, Gilani questioned how the President of a sovereign country could be put at the mercy of a magistrate in a Western country.
"I also believe that the sovereign state of Pakistan cannot, must not and should not offer its incumbent head of state, symbol of the federation, the most prominent component of Parliament, and the supreme commander of its armed forces for a criminal trial in the court of a foreign magistrate during the term of his office," Gilani said in his 24-page reply.
Noting that the Supreme Court had referred cases regarding the procedure for appointing judges under the recent 18th constitutional amendment to Parliament, Gilani said the issue of immunity guaranteed to the President under the Constitution too should be sent to Parliament.
The "absolute and inviolable" principle of immunity for a head of state, which is recognised by international law, must be respected and upheld by the executive, legislature and judiciary, Gilani said.
The Premier`s response was submitted by his legal team two days before a seven-judge bench headed by Justice Nasir-ul-Mulk resumes hearing the contempt case against Gilani.
The same bench has set March 21 as the deadline for Gilani to approach Swiss authorities for reopening the cases against Zardari. The bench had on March 8 issued an order that directed Gilani to write to Swiss authorities about reviving the cases without waiting for advice from legal aides.
In his response, the Premier asked the bench to take back the March 8 order that was passed in his absence.
The Supreme Court has been pushing the Pakistan People`s Party-led government to reopen cases of alleged money laundering against Zardari in Switzerland since late 2009, when it struck down the National Reconciliation Ordinance, a graft amnesty issued by former ruler Gen Pervez Musharraf.
The government has refused to act, saying the Constitution provides complete immunity to the President within Pakistan and abroad.
Gilani recently said he would prefer to be incarcerated for committing contempt than violate the Constitution by asking Swiss authorities to revive the cases against Zardari.
Giving reasons for not writing to the Swiss authorities in his response, Gilani said officials had advised him that the cases in Switzerland had been closed on merit.
He added that documents, which were the subject of a request for mutual legal assistance, had been provided in 1998 and nothing more was required to be done on that account.
The Premier said he was advised that the sovereign position of the President required that he could not be put up on trial in any foreign court.
Gilani said: "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."
If Gilani is convicted in the contempt case, he could face a six-month prison term and be disqualified.
Gilani also referred to a Supreme Court order of January 10 which listed six options for settling the issue of the cases against Zardari to buttress his contention that the matter should be sent to Parliament.
In the January 10 order, the apex court had said that "if in a given situation, the Executive is bent upon defying a final judicial verdict and is ready to go to any limit in such defiance, then instead of insisting upon the Executive to implement the judicial verdict and thereby running the risk of bringing down the constitutional structure itself, this court may exercise judicial restraint and leave the matter to the better judgment of the people of the country or their representatives in the Parliament..." Gilani said in his response that the matter of presidential immunity is of great national interest and thus should be sent to Parliament.