There will be a reunion, of sorts, today. Aitzaz Ahsan will appear before the chief justice for the first time since the movement for the restoration of the judiciary – for a case that is almost as sensitive.
The Supreme Court formed an eight-member bench on Wednesday to hear Prime Minister Yousaf Raza Gilani’s appeal against contempt charges. It was a prompt response to the prime minister filing his appeal against contempt charges earlier in the day.
The bench will be headed by Chief Justice Iftikhar Muhammad Chaudhry and will hear the plea on Thursday (today).
Gilani’s 200-page appeal pointed out 54 legal and constitutional points which argue that the prime minister did not defy the Constitution by not writing a letter to Swiss authorities. The appeal was packed with the same arguments made by the premier’s counsel, Aitzaz Ahsan, during the earlier proceedings of the case.
Aitzaz stated that the main reason for not writing the letter to Swiss authorities was Gilani’s understanding, based on advice, that “Mr Asif Ali Zardari, as President of Pakistan, enjoys absolute ‘Head of State Immunity’ from criminal as well as civil actions in all foreign jurisdictions during the term of his office”.
The barrister said he based the appeal on precedents set by top courts in Australia, Britain, France, India and the United States. He also claimed that the prime minister enjoys functional immunity under Article 248 (1) of the Constitution.
Aitzaz repeatedly mentioned that the court did not give him ample time for completion of his arguments in the case. He also said that the court had made an error in passing this administrative order without giving the ‘reasons’ for its ‘prima facie satisfaction’ to continue the case against the prime minister.
The prime minister’s appeal also argued that courts are obliged to try all other means to avoid contempt proceedings.
On the other hand, it also said that the court order in the National Reconciliation Ordinance (NRO) is not implementable. Citing presidential immunity to all incumbent heads of state by international law as reason for not implementing the court’s order against ‘politically motivated cases’, the PM’s appeal also asked the court if “such ‘valid justification’ ought not to have been sufficient ground to discharge the show cause notice as per precedent?”
The appeal then went on to say the order is not sustainable, terming it a ‘miscarriage of justice’.
Aitzaz reminded the court of favours extended by premier Gilani to the judges of the Supreme Court, while then referring to the actions of Pakistan’s last military dictator. He said that former president Pervez Musharraf expressly and brazenly flouted the historic order of this court on November 3, 2007. However, Musharraf, along with his associates, has yet to be formally charged and indicted.
“I have filed an appeal today. I have quoted more than 50 national and international cases and given specific reasons against the Supreme Court order,” Aitzaz told reporters. He had stated several times that he will not appear before the chief justice in the hearing of any case, but during the press conference today, he agreed to appear before the CJ.
The lawyer added: “My objection is that the court in its order on February 2 cited no specific reasons for initiating contempt of court proceedings against the prime minister.”
If convicted of contempt, the prime minister could lose his job and also be jailed for up to six months. Legal experts still maintain that the only way out for Gilani is to either appeal and win, apologise and hope for the best, or cave in and promise to write to the Swiss.
Published in The Express Tribune, February 9th, 2012.
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