Today Engr. Jameel, of communist party, has challenged the immunity of President to not to present in any court of law, on the basis that such a clause is repugnant to the injunctions of Shariah.
It has been laid down in Article 248 that a President or governor is not answerable to court. I would like to present the actual text of section 248:
248.(1) The President, a Governor, the Prime Minister, a Federal
Minister, a Minister of State, the Chief Minister and a
Provincial Minister shall not be answerable to any court for
the exercise of powers and performance of functions of their
respective officers or for any act done or purported to be
done in the exercise of those powers and performance of
those functions:
Protection to
President,
Governor,
Minister, etc.
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.
(2) No criminal proceedings whatsoever shall be instituted or
continued against the President or a Governor in any court
during his term of office.
(3) No process for the arrest or imprisonment of the
President or a Governor shall issue from any court during his
term of office.
(4) No civil proceedings in which relief is claimed against the
President or a Governor shall be instituted during his term of
office in respect of any thing done or not done by him in his
personal capacity whether before or after he enters upon his
office unless, at least sixty days before the proceedings are
instituted, notice in writing has been delivered to him, or sent
to him in the manner prescribed by law, stating the nature of
the proceedings, the cause of action, the name, description
and place of residence of the party by whom the
proceedings are to be instituted and the relief which the
party claims.
Now we also know that as per constitution there can not a law repugnant to injunctions of shariah, so if any law is found to be so, section 203 deals with that issue as follows:
Section 203D-(1) The Court may, [either of its own motion or] on the
petition of a citizen of Pakistan or the Federal Government or
a Provincial Government, examine and decide the question
whether or not any law or provision of law is repugnant to the
Injunctions of Islam as laid down in the Holy Quran’ and the
Sunnah of the Holy Prophet, (PBUH), hereinafter referred to
as the Injunctions of Islam.
[(1-A) Where the Court takes up the examination of any law
or provision of law under clause (1) and such law or
provision of law appears to it to be repugnant to the
Inunctions of Islam, the Court shall cause to be given to the
Federal Government in the case of a law with respect to a
matter in the Federal Legislative List or the Concurrent
Legislative List, or to the Provincial Government in the case
of a law with respect to a matter not enumerated in the either
of those Lists, a notice specifying the particular provisions
that appear to it to be so repugnant, and afford to such
Government adequate opportunity to have it point of view
placed before the Court.]
(2) If the Court decides that any law or provision of Law
is repugnant to the Injunctions of Islam, it shall set out in its
decision.-
(a) the reasons for its holding that opinion; and
(b) the extent to which such law or provision is so
repugnant; and specify the day on which the decision
shall take effect:
[Provided that no such decision shall be deemed to take
effect before the expiration of the period within which an
appeal therefrom may be preferred to the Supreme Court or,
where an appeal has been so preferred, before the disposal
of such appeal].
(3) If any law or provision of law is held by the Court to
be repugnant to the Inunctions of Islam,-
(a) the President in the case of a law with respect to a
matter in the Federal Legislative List or the Concurrent
Legislative List, or the Governor in the case of a law with
respect to a matter not enumerated in either of those Lists,
shall take steps to amend the law so as to bring such law or
provision into conformity with the Injunctions of Islam; and
(b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.
I think NRO case may show some unpredictable results ... lets see
