BEFORE THE SUPREME COURT OF PAKISTAN AT ISLAMABAD (Original Jurisdiction)

Criminal Original No.06/2012 IN SMC No.04/2010

Contempt Proceeding against Syed 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 onFebruary 13, 2012. I denied the charge and deny it again.

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 not seek 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 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 while giving 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 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 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 Summarymainly 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 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 of Exhibit P.19.

23. This request was acceded to by this Hon'ble Court (vide Para.3 of Exhibit 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 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 day i.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 never brought 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 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 the House 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 also did not then take up this matter until January 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 the several 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 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 itself had 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.

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-parteorder 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 by the 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 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 have not 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 Federal Governments 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 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 incumbent President 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 I believe 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 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;

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.

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 were scribed 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 the Show 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) c) this Honble Bench having itself initiated the prosecution is sitting in trial and judgment; and 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.

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 a new 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 10A 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 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) on January 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.

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 of January 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, nonprofligate, 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 of March 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 2010 where 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 to implement the Courts direction when 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 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 as January 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.

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) c) The statement of DW (Mrs Nargis Sethi); 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 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 Attorney General 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.

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 the Law 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 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 our institutions 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 be permitted 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 the State 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 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 with local 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 18th 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 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 Option formulated by the Honble Court itself. SYED YUSUF RAZA GILANI