ISLAMABAD: The seven-member bench of the Supreme Court headed by Justice Nasirul Mulk continued hearing the case against Prime Minister Yousuf Raza Gilani for not implementing its order on the National Reconciliation Ordinance (NRO) Friday, Geo News reported.
Barrister Aitzaz Ahsan, PM’s Gilani’s counsel in the case on Thursday told the Supreme Court that the bench that had framed charges against his client was not competent to hear the case, and it would not be a fair trial if it continued to hear the case.
Presenting his arguments, Aitzaz said if someone complains to the court it can indeed initiate contempt proceedings but if the bench itself initiates proceedings through suo moto or other means, the said bench is not entitled to hear the case.
‘When a sessions judge directs registering an FIR against anyone, even he is not competent to hear that case,’ Aitzaz said and contended that there are two principles of a fair trial: one, that no person should be a judge in his own case and the second that a person cannot be condemned unheard. Aitzaz argued that Article 10-A had brought changes thereby graduating fair trial and due process of law to the status of fundamental rights. Therefore, he contended that fair trial and correct process are the fundamental rights of every person in Pakistan.
He further contended that the Contempt of Court Ordinance 2003 is no more effective as a new ordinance in this regard was issued in 2004. He said that according to his information an appeal was pending with the court, seeking clarification about the effective law.
Justice Nasirul Mulk, however, reminded the counsel that the existing Contempt of Court Law is of 2003. ‘For the first time in the history of the country, you have struck down a piece of legislation which is not there,’ Justice Asif Saeed Khan Khosa told the learned counsel.
Aitzaz, however, replied that with the incursion of Article 10-A, a bench that issues show cause notice or frames charges against a person is not competent to hear the instant case. "You stand disqualified after framing charges against Premier Yusuf Raza Gilani,’ Ahsan contended.
Justice Muhammad Athar Saeed, however, obstructed Ahsan, saying the judges are not sitting here in a personal capacity but to hear a contempt of court case. Another member of the bench, Justice Ejaz Afzal Khan, observed that this case was interested upon by the chief justice, and they could not say no to hearing it. ‘It is the prerogative of the chief justice of Pakistan, and we have not made any effort to hear this case,’ Justice Afzal said.
Justice Sarmad Jalal Osmany observed that the chief justice had taken suo moto notice for not implementing the court’s order on the NRO.
When Aitzaz continued to argue on the scope of Article 10-A and to stress that the bench was not competent to hear the instant case, Justice Muhammad Athar Saeed told the learned counsel that their cause was to implement the SC’s decisions.
Aitzaz replied that everyone respect the orders of the court. At this Justice Nasirul Mulk pointed out that if that were indeed the case, then he would ensure implementation of para 178 of the court's order on NRO judgment. Justice Khosa added that it was the court's and the people’s cause to safeguard the rights of the people as enshrined in the constitution. ‘Don't you want that Pakistani money is brought back?’ Justice Khosa asked the learned counsel, reminding him of the Vienna Convention.
Aitizaz, however, contended that until Asif Ali Zardari held the office of President of Pakistan, he had immunity both in criminal or civil matters. He said that the implementation of the relevant part of the order of NRO was not possible because the president enjoyed immunity under international law.
Justice Khosa reminded the learned counsel that the bench expected maximum assistance from him in the instant case. The court asked him to conclude his arguments by Wednesday next and adjourned the hearing till today (Friday).
Other members of the bench are 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.