ISLAMABAD - The Supreme Court Wednesday rejected attorney general’s pleas to form larger bench to hear review petition against the June 27 and July 12 orders and put off the hearing until after Eid.

A five-member bench headed by Justice Asif Saeed Khosa asked the Attorney General Irfan Qadir to address the court on article 248 of the constitution as it was his stance that the prime minister couldn’t write letter to Swiss authorities as the president has immunity under the said article.

The AG contended that the prime minister was not answerable to any court for the performance of his functions which were protected by virtue of article 248 (1) of the constitution and also asserted that his authority was above the court.

The AG said: “The court could not issue direction to the PM in matters which fall in the domain of his functions in view of clear cut provisions or clear cut words of article 248 (1). As the PM is not answerable to any court in the exercise of his functions, the court’s issuance of any direction becomes meaningless.”

The bench disagreed with his arguments and remarked that such constitutional provision did not make anyone above the law. Justice Khosa asked him to cite judgments in support of his assertion that PM is not answerable to the court, but he failed to do so. The bench questioned that if the PM makes some illegal orders, like promote undeserving people, in purported exercise of his power then can’t the court strike down his directions? The attorney general maintained that the court can dismiss that order but can’t issue contempt of court notice to the PM.

Justice Sarmad Jalal asked what the functions of the prime minister are and “whether the Rules of Business say that the PM should disobey the court orders as he is not answerable to the courts?” The honourable judge further questioned that if the prime minister commits murder then would he not be answerable to the court? Justice Asif Saeed Khosa remarked whether disobeying the courts order come into the functions of the Prime Minister?

Justice Khosa questioned who interprets the law under the constitution. The AG reply was under article 248 the president, governor and the prime minister can interpret the constitution. He also said the court can interpret the law in a manner not to change its meaning. “The constitution does not mention that the courts are to interpret the law,” he added.

Justice Khosa asked if a matter is referred to the court then under what provision the court would interpret the constitution. The AG replied that the court gives its opinion under article 186. Justice Ejaz Afzal inquired: Who would decide that the interpretation is in consonance or in non-conformity with the constitution?

He further asked: “Suppose if the court decides something correctly on an issue and the PM does not implement it then what would be its solution?” The AG replied that if the PM creates hurdle then he is libel for contempt of court.

Justice Khosa said that Prime Minister Raja Pervaiz Ashraf was issued notice, as he did not comply with the court order. He said: “We have never asked to prosecute the president. We want that the government tell the Swiss authorities that not only the parliament has rejected NRO but also the highest court of the country struck it down and therefore they should ignore the letter written by Malik Qayyum.”

Justice Khosa said the court wanted that the government revive its claim on money lying in Swiss banks, adding it’s up to Swiss court to prosecute the president or not? Moreover, he said that they had told Aitzaz Ahsan that the president has immunity under international and customary law.

The attorney general prayed to the court to grant him some time to seek instructions on this issue. The court asked him to also get advice on pressing of the review petition. The court advised the AG not to exhaust all his arguments for an interim order because if the decision goes against the federation then all the defences would finish. Justice Sarmad stated that a good lawyer does not exhaust all his arguments of a case at the stage when it is not required.

The attorney general then immediately requested to advise him how to solve the issue. Justice Khosa said in the last hearing Prime Minister Raja Pervaiz Ashraf was directed to write letter to the Swiss authorities for reopening cases against NRO beneficiaries. The attorney general replied there are legal hurdles to implement the NRO verdict as there are verdicts of five, seven and 17-member benches. Justice Khosa remarked but none of the order has been implemented.

Attorney general said when the court couldn’t write letter itself then how it can direct the Prime Minister to do so. He said on the court’s order, NAB chairman wrote letter to Swiss authorities but they did not accept it. Then the court issued direction to the federation to write letter and have now ordered to the PM to write letter to Swiss authorities.

The court said that they were not asking the government to apply for legal mutual assistance but tell the Swiss authorities that Malik Qayyum was not authorised to close the cases in Switzerland and that the PM direct someone to write letter to the Swiss authorities for reviving the cases.

The attorney general said that NRO judgment was against the constitution and prayed the court to revisit the entire NRO case as important questions were involved in it. The court asked him to point out which of the constitutional provision says that NRO judgment is not implementable.

The AG said that for the last three years he has persistently been saying that this court was not properly assisted in NRO case. “Court is not at fault but it (lacunas) is due to the lack of assistance rendered to it.” It should not be the matter of ego for the court and also the government, he said and he urged the court to consider his request so that the country comes out of stalemate.

Justice Khosa said: “You are saying that court was not properly assisted therefore it should absolve the incumbent PM from his obligation to implement the court order.” He said it is not a plausible argument that one person commits a crime and he should be punished but if another person commits the same crime he should be spared.

Justice Khosa said the federation neither challenged January 19 order, in which six options were given, nor it opposed March 8, 2012 order, in which the PM has been directed to write to the Swiss authorities regardless of advice of the secretaries. Therefore, both the orders have attained finality.

The attorney general said it was extreme decency and courtesy on the part of Yousuf Raza Gilani to appear before the court thrice. “If I would be the prime minister I might not have appeared before the court.” Is it below the dignity to appear before the court, questioned Justice Osmany. The AG said in the 65 years history of the country never the court summoned a prime minister.

Justice Khosa remarked in the 65 years always a few persons expected that the institutions would do according to their wishes. But when the institutions started to assert their authorities, the problem began. He said everyone is equal for the court. The attorney general said: “We should not have another accident. Already the government has lost one prime minister and order against another has been issued by court.

At the outset of the hearing, the AG objected to the inclusion of Justice Sarmad Jalal Osmany in place of Justice Ejaz Chaudhry, saying there was no need to rush with the matter and the case should have been adjourned like the others that have been deferred due to non-availability of the judges. Justice Khosa explained that the practice is that the author judge must be there in the bench. Four out of five judges are good enough.

The attorney general requested that matter should be taken up by the larger bench as the matter regarding contempt law is pending before a 16-member bench. He also requested to take up the case after Eid. The court rejected his both the requests. Justice Khosa said: “We are not in hurry to sentence the PM and if there is any illegality we will correct it.” The hearing was adjourned till Thursday.