ISLAMABAD – Pleading the case of Prime Minister Yousuf Raza Gilani on Thursday, Aitzaz Ahsan again insisted that constitution debars the judges, who issued show cause notice and framed contempt charges, to hear this case.

Article 10-A of the amended constitution guarantees due process and fair trial to an accused. He cited the said article that read: ‘For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.’

A seven-member bench headed by Justice Nasirul Mulk was hearing the contempt of court case against Prime Minister Gilani for not implementing NRO judgment requiring writing letter to Swiss authorities to reopen graft cases against President Ali Zardari and others. Aitzaz argued that in this case the suo moto is not on the basis of any party, while the complainant and the prosecutor is the court itself. The judge(s) who is complainant and issued the show cause notice and framed the charges should not sit on the bench hearing the case, he pleaded.

Justice Gulzar Ahmed stated that it does not matter if the contempt hearings are initiated on an application or on a suo motu notice, the same bench will hear the case.

Aitzaz said: ‘I and the party may have full confidence in the bench and the judges and may not raise the issue of recusal but (as a matter of justice) any judge who has inquired into the matter previously should not continue to be part of the bench.’

Justice Khosa inquired whether the counsel meant to suggest that their (judges) minds have become prejudiced. ‘We are sitting with an open mind.’ Aitzaz said that it shouldn’t be that justice has been done but the justice must need to be seen done.

Justice Gulzar Ahmed pointed out the apparent contradiction in the counsel’s statement, saying, ‘You have confidence in the bench but (at the same time) saying it cannot hear this case.’ The court inquired whether he wanted this matter should be referred to another bench. Aitzaz said this is a criminal trial that will have serious consequence.

Justice Nasirul Mulk questioned whether the procedure laid down in the Contempt of Court Ordinance 2003 or the procedure the court has adopted in this case is violative of the due process and fair trial, and the spirit of Article 10-A. He said the existing Contempt of Court Ordinance 2003 stood void after incorporation of Article 10-A in the constitution through the 18th amendment. The lawyer argued that Article 10-A has the primacy over the said ordinance.

Justice Asif Saeed Khan Khosa remarked that if he had any problem with the law (Ordinance) then he should challenge it. The counsel argued that the court has the power to strike down any law, which is contradictory to constitutional provision. The court inquired, ‘Does the constitutional jurisdiction can be controlled by Article 10-A?’ Justice Khosa said that under Article 204 the court has power to sentence anyone for Contempt of Court. Aitzaz said that the use of power is subject to law; adding no body, including the court, has arbitrary power. Justice Khosa questioned whether one provision of the constitution could be utilised to scuttle the other provision of the constitution.

Justice Ejaz Afzal said a 17-member bench announced the NRO judgment as null and void, and later dismissed the review petition; and the contempt of court proceeding is the outcome for non-compliance of the full court judgment.

The bench observed that this is contempt on the face of the court. Justice Osmany said: “When the contempt is on the face of the court, can’t we (judges) send anyone accusing the court to jail then? He said that in many cases the court allow leave grant but later in same cases many a time the decisions are delivered against the petitioners. Similarly the stay order is given. The court observed that in many cases it is said that prime facie the accused has committed crime but later due to insufficient evidence he is acquitted.

Aitzaz said Article 10-A is an important provision and was introduced after much deliberation. The members of it were intellectuals like Raza Rabbani, SM Zafar and Waseem Sajjad. The article was introduced to bring change. Justice Gulzar Ahmed said through Article10-A the legislature has conferred the power to court to interpret itself. Aitzaz said, ‘No, the legislature has restricted the court.’

Aitzaz said Article 10-A has given right of fair trial. Justice Osmany said you are saying that before Article 10-A there was no fair trial. Aitzaz replied earlier the fair trial was due to law, but now it is guaranteed by the constitution.

After the court adjourned the contempt case till Monday, Aitzaz told the media that a section of it was deliberately twisting his statement regarding confidence on judges. He said he has no objection over the qualification of the judges and he has clarified the misunderstanding during the hearing of the case.

Aitzaz said that he objected to presence of judges on the bench where they should not be as a matter of fair trial as promised in the modified law under Article 10-A. The prosecution, who issues notice in any case, could not hear the case under Article 10-A of the amended constitution, he added.