ISLAMABAD – The seven-judge bench hearing the contempt case has rejected the reservations of Prime Minister Yousuf Raza Gilani’s counsel Aitzaz Ahsan, and decided to hear the case on daily basis.
As the bench headed by Justice Nasirul Mulk resumed hearing of the case on Wednesday, Aitzaz argued that the court can’t force the prime minister to write letter to Swiss authorities for reopening graft charges against NRO beneficiaries, including President Asif Ali Zardari.
Prime Minister Gilani also in his fresh reply, submitted by Attorney General Maulvi Anwarul Haq, reiterated his decision of not writing the letter and asked the apex court to take up this matter after the final decision on contempt of court proceedings.
During the hearing Aitzaz accused the judges of prejudice and said the court cannot proceed on ‘assumptions’ as it is a criminal trial and decision be made on evidences submitted before the court.
Aitzaz maintained that, judging from the harsh language used in the January 10 ‘six-option’ decision given by the SC, it appears as if the judges had already decided to punish the prime minister. The counsel also demanded that the bench, which issued show-cause notice and gave a verdict against the prime minister ‘even before the case was started’, should not conduct proceedings.
Justice Nasirul Mulk said that it means that any court that frame charges against anyone would be debarred from hearing the case. Justice Nasir told Aitzaz that he should have expressed no confidence over the bench earlier. Aitzaz responded that he had the right to do so at any moment.
The counsel said that Article 10-A gave the right of fare trial to an accused. He pleaded: “Due process requires that other bench hear the PM contempt case.” He said Article 10A inserted in 1973 Constitution through 18th amendment says, ‘there should be fair trial and due process’.”
Justice Sarmad Jalal Osmany remarked: “(Are) you telling us there should be fair trial and earlier the courts were not conducting fair trial?” Aitzaz said under Article 10A fair trial was made mandatory therefore the fundamental rights can’t be surrendered or waived.
Justice Asif Saeed Khosa told the lawyer not to think that the bench would depart from justice. “Rest assured we will go by the book and law and would not deviate from law even an inch.” “I will also not leave documents and law,” Aitzaz Ahsan remarked. Justice Athar Saeed said: “We are sitting with open mind and have been hearing cases for so many years therefore no need of reminding us.”
Justice Khosa remarked that the court never used harsh words and it would not provide several opportunities. Justice Khosa said the judges are trained that after the charges are framed they become dispassionate. He said if the court was harsh towards the PM then why an opportunity was accorded for hearing his case. He said that the 8-member bench, which heard the appeal, also noticed that no intervention was made and if he (Aitzaz) was making it base then there is no forum for the trial of this case.
Aitzaz said the prosecution has failed to prove that the prime minister wilfully flouted, disregarded, disobedience and disobeyed the court order on NRO verdict. In criminal jurisdiction the sentence can be harsh and severe but the court can’t proceed only on assumptions; hard and solid evidence is required for it. There is no evidence of contumacy against the PM.
Aitzaz argued there should be no sentence on presumptions, adding if it is proved from the documents that the PM is guilty then sentence him and if not exonerate him. “Do you want to say that the PM had no malafide intention,” Justice Khosa asked. Justice Usmani remarked that the court was never informed about the PM’s view. Aitzaz said the AG should be standing in the witness box to answer why the PM’s comments were not conveyed.
Justice Khosa said the AGP himself told the court that he waited for instruction till 2am, and it is part of the court record. He further said on Jan 3 the PPP co-chairperson (Asif Zardari) in an interview on a private TV channel said that the party has decided not to write letter, then how come the PPP vice-chairperson did not know about that court order.
Aitzaz again said this was not brought to his notice and he was not aware of it. Justice Khosa said: “We thought that the PM is knowledgeable person, as the newspapers published about that order.”
Justice Gulzar Saeed said that the case is being tried in court, protest rallies and media. Aitzaz said that his opponents are saying that they would give him a setback; therefore, I had to go to media. Justice Osmany said they hear about the case (developments) in media before it comes to the court. Aitzaz remarked: “Do not pay attention to newspaper headlines… criminal cases are not dealt with on the basis of news reports.”
Aitzaz said the court initiated proceedings against the prime minister ‘all of a sudden’, as earlier the law secretary was ordered to write the letter, not the prime minister. He said that the court had inquired about the implementation of NRO judgement from the NAB chairman and the prosecutor general, the AGP and secretary law, but only the PM was selected for the prosecution. He also contended that only the prime minister was held responsible for the contempt though former attorney general and former law secretary advised the premier for not writing the letter to Swiss authorities to reopen graft cases against Asif Ali Zardari.
Aitzaz probably was trying to convey that other four persons committed wilful defiance but no action was taken against them, while the PM acted on the advice of the law minister and secretary law and was selected for contempt.
During the proceeding Aitzaz Ahsan, PM counsel said that he never stated that judgment could not be implemented but said that it could not be implemented for the time being, as President Asif Ali Zardari has complete immunity during the term of his office. He however clarified that neither he was asking the court to review its order and nor he said the NRO verdict was wrong but the implementation of the relevant part of the order was not possible because the president enjoys immunity under international law.
“The office of the president is unique and enjoys immunity in 198 countries.” The learned counsel said that he would not argue presidential immunity under Article 248 of the constitution, but he (President Zardari) has complete immunity during the term of his office under international law.
Justice Nasir remarked that the court’s direction to the federation was to take immediate steps for the implementation of NRO judgment. He questioned why this aspect was taken up in review petition that the judgment could not be implemented immediately. Justice Khosa reminded the learned counsel that he himself had said that this bench has no authority to change even comma and full stop in December 16, 2009 judgment.
The bench, without passing any judgement on Aitzaz’s allegations, made it clear in its remarks that their minds were “not already made up” and observed that the case is always heard by the bench that issues the contempt notice. Rejecting Aitzaz’s reservations and his demand for a new bench, the court adjourned hearing till Thursday (today), besides deciding to hear the case on daily basis.
On March 8, the court had ordered the PM to write letter to Swiss authorities regardless of secretaries’ advice, and submit a compliance report before the court on March 21.
The PM through his principal secretary said, “The very issue in question (the subject matter of the order dated 8-3-2012) is already sub judice in Crl OP.06/2012 before the same honourable bench.” He further stated that although the present proceedings and the proceedings in the contempt of court case (Crl. O.P.06/2012) are different; yet the issue involved is essential and materially the same.
The court was also informed that the PM had already filed written statement in contempt of court case while evidence has already been recorded in the matter and the copy of the written statement was also attached with the reply. The PM requested the court that “further proceedings, if any, in the matter be undertaken only after the former has been completed”.
Speaking to the media after the contempt case hearing, Aitzaz Ahsan said that Prime Minister Gilani’s punishment cannot be of more than six months.
“In the January 10 order, a life term and a five-year imprisonment were also discussed but I don’t personally accept it. I believe the court will review it,” he remarked.
Narrating an example of Indian minister A Raja who is currently serving jail after being found involved in corruption worth millions of rupees the knowledge of Indian Prime Minister Manmohan Singh’s staff.
“But their Supreme Court said that the prime minister has so many engagements that even if his closest officer knew about the corruption, it could not be proved in the court that the prime minister also knew.”
“Similarly, four documents have been submitted to the court in this case as evidences which imply that the prime minister (Gilani) did not have any knowledge of the court orders.”
The court wondered if Prime Minister Gilani even read the newspapers, so I advised the bench that even they should not listen to the media and pass a verdict only based on the submitted documents, Aitzaz added. “These are the complete files; they can hang me over it if they wish.”
The Supreme Court had initiated contempt proceedings against Gilani after the government refused to write a letter to Swiss authorities in the National Reconciliation Ordinance (NRO) implementation case.