The Supreme Court on Thursday directed Aitzaz Ahsen, counsel for Prime Minister Yousaf Raza Gilani in the contempt of court case against him, to complete his arguments by April 18.
A seven-member special bench comprising Justice Nasirul Mulk, Justice Asif Saeed Khosa, Justice Sarmad Jalal Osmany, Justice Ejaz Afzal Khan, Justice Ijaz Ahmed Chaudhry, Justice Gulzar Ahmed and Justice Muhammad Ather Saeed issued the directives while hearing contempt proceedings against Gilani. However, Aitzaz submitted that he could not promise if he would be able to complete his arguments by April 18.
In his arguments, Aitzaz referred to Article 10-A of the constitution, which says that every citizen of Pakistan has a right to fair trial. “Any judge, who takes notice of any incident, without a petition filed or an FIR registered, automatically becomes a complainant in the case and hence is not eligible to hear the case,” Aitzaz argued. He said that President Asif Ali Zardari enjoyed immunity during his presidential tenure under the international law. He said that although many people dislike Zardari, but he was still an elected head of the state and could not be presented before any court of law.
Aitzaz argued that under Article 10-A, the special bench was not eligible to hear the case, as the case was initiated by it on its own. He said that it was a requirement of transparent proceedings that no person should be a judge in his own case. Justice Asif Saeed Khan Khosa noted that no single judge, but the whole bench was using its right to hear the case. Aitzaz said he does “not differ with the court or the people on the $60 million deposited in Swiss banks, which was public money and should be brought back to the country, but let President Zardari step down”. He said Zardari could be tried but only after he steps down from the office of the President. He said as long as Zardari was the president, he enjoyed immunity and could not be presented before any court of any country.
He said that if the president was sent before the Swiss magistrate, in the future anyone could be summoned by any international magistrate. “Today it is Zardari, tomorrow it might be any other elected president or prime minister, even an army chief or the chief justice,” Aitzaz argued. He said Zardari was a constitutionally-elected president and not an army general who came into power by force.
Aitzaz further said that the Contempt of Court Ordinance, 2003, was obsolete and that a new ordinance was presented in 2004. He said that according to his information, an appeal seeking clarification about the effectiveness of contempt law 2004 was pending with the court. Justice Nasirul Mulk however reminded Aitzaz that the existing contempt of court law was that of 2003. To a court query, Aitzaz said his client had acted according to the summary sent to him by the Law Ministry. He said he would also argue on the point that if holding the prime minister in contempt was right or wrong. He emphasised that the bench that farmed charge against the premier was not competent to hear the instant case, and if it does so it would not be a “fair trial”. He said that if a person complains against anyone, then the bench could initiate proceedings. However, if the bench itself initiates any proceedings either through a suo motu notice or through other means, it (bench) is not entitled to hear that case, Aitzaz said, adding that when a sessions judge directs for registering an FIR against anyone, he is not competent to hear that case. Aitzaz said there were two principles of a fair trial: that no one should be a judge in his own case; and that a man cannot be condemned unheard. He said that Article 10-A guarantees fair trial and due process of law on the statutes of fundamental rights. In response, Justice Asif Saeed Khosa told Aitzaz that “for the first time in the country’s history, you have struck down a piece of legislation which is not here”. Aitzaz said that it has been a practice that a judge who issues show cause notice also hears the case. However, with the inclusion of Article 10-A, such practices are struck down, and now a bench that issues show cause notice or frames charges against a person, is not competent to hear the case against him. “You stand disqualified after framing charge against the PM,” Aitzaz contended. Justice Muhammad Ather Saeed however obstructed Aitzaz, saying they were not sitting here in personal capacity but to hear a contempt of court case. Justice Ejaz Afzal Khan observed that the contempt case was fixed before the bench by the chief justice, and they could not refuse to hear it. “It is the prerogative of the chief justice of Pakistan and we have not made any effort to hear this case,” Justice Ejaz said. Justice Sarmad Jalal Osmany observed that the chief justice had taken suo motu notice for not implementing the court’s order on NRO. “Don’t you want that the Pakistani money be brought back,” Justice Khosa asked Aitzaz, reminding him about the Vienna Convention. However, Aitzaz replied that Zardari enjoyed absolute immunity in criminal or civil matters until he was holding the President’s office. He said the implementation of the relevant part of the NRO verdict was not possible because the president enjoyed immunity under international law. At one point, Justice Khosa asked Aitzaz why there was a contradiction in his stance, as on one hand he used to say that there was no graft case in Switzerland, while on the other he was saying that the government would not write letter to the Swiss authorities. Meanwhile, the court adjourned the hearing until today (Friday).
SC tells Aitzaz to conclude arguments by 18th
