The contempt of court case against Prime Minister Yousaf Raza Gilani took a new turn on Thursday with Aitzaz Ahsen’s argument that the existing Contempt of Court Ordinance, 2003, stood void after the incorporation of Article 10-A in the constitution through 18th Amendment.
Aitzaz, who is defending the PM in the contempt of court case, argued that the existing contempt of court law was not in conformity with the constitution, thus contempt proceedings could not be conducted under it. He asked the court to declare this law void. However, the court told him that he could properly challenge it.
A seven-member special bench of the Supreme Court, comprising Justice Nasirul Mulk, Justice Asif Saeed Khan Khosa, Justice Sarmad Jalal Osmany, Justice Ejaz Afzal Khan, Justice Ijaz Ahmed Chaudhry, Justice Gulzar Ahmed and Justice Muhammad Ather Saeed, was hearing the case. Aitzaz said that Article 10-A gives the right of a fair trial to every citizen, thus under the said article, the bench which had already served a show cause notice to the premier was not competent to conduct the trial proceedings. He repeatedly stressed that the judges of the seven-member special bench who issued the show cause notice to the premier and later framed contempt charges against him, were not competent to conduct the trial proceedings, “as it would be a violation of the constitution”.
He said that although Article 204 of the constitution dealt with contempt, however Article 10-A was a governing law, thus it should be followed for the due process of law, and ensuring and safeguarding the fundamental rights of the citizens. “It’s a plain surgical situation that a judge who initiates contempt proceedings and then frames charges is not competent for the trial of the accused,” Aitzaz argued.
“Prosecution of any case will not be possible if Article-10A is considered independent of all laws,” Justice Gulzar Ahmed noted. “Dou you mean and want to say that after issuing the show notice and framing the charges, we should have referred the case to another bench,” Justice Nasirul Mulk asked, to which Aitzaz replied in affirmative. The PM’s counsel said the matter was related to the qualification and disqualification of the prime minister, thus it was necessary that a fair trial must be conducted. To a court query, he said he believed that the judges who initiated contempt proceedings were not competent to conduct trial proceedings. “You cannot get a fair trial if the complainant is himself the judge,” Aitzaz argued. Justice Khosa told Aitzaz that these were not the proceedings he was pointing out with respect to Article 10-A. He said when a judge issues a show cause notice to the contemnor, he asks in the notice that why the contempt of court proceedings should not initiated against him. He asked Aitzaz that it was wrong to say that the court had decided to punish his client.
Justice Ejaz Afzal Khan noted that the proceedings could not be conducted if the issue of prejudice was raised too much. Aitzaz, however, contended that this was not a matter of personal like or dislike, but of a fair trial. He contended that the judges who initiated contempt proceedings against the premier could proceed with the trial, adding that if this process continued, the premier would be deprived of his fundamental right.
When Aitzaz repeatedly stressed that the Contempt of Court Ordinance, 2003, was in conflict with Article 10-A of the constitution, Justice Osmany asked whether the bench should follow the contempt of court ordinance or Article 10-A. Aitzaz said the bench would have to follow the constitution. To another query by Justice Osmany that whether justice was not ensured before the introduction of Article 10-A, Aitzaz said the said article had strengthened fair trial and justice. Justice Khosa told him that if he was not satisfied with the Contempt of Court Ordinance, he should challenge it properly. At the onset of the hearing, Aitzaz, while clarifying some media reports about his comments on the judges of the special bench, said his party had complete trust in the members of the special bench. He contended that his comments about his client that he was a “peer-o-murshid and gaddi nasheen” (patron and custodian of a shrine) were distorted by a section of the media. He said he did not seek any favour in this context. “You should clarify your position in this regard outside the courtroom, as the court has not sufficient time for hearing such clarifications about media reports.
The court adjourned further hearing until Monday, asking Aitzaz to conclude his arguments on that day. Aitzaz had requested the court to adjourn the hearing until next month.