In an unprecedented move, a Supreme Court bench passed a stay against the order issued by Chief Justice Iftikhar Muhammad Chaudhry to indict the defence secretary, Lt General (retd) Asif Yasin Malik, in a contempt case.
A five-judge larger bench, headed by Justice Nasirul Mulk, stopped the action ordered by the chief justice-led trial bench, which called to proceed against the secretary, until a final decision of the appellate bench is made.
The defence secretary had challenged Justice Chaudhry’s decision of indicting him for his failure to hold local bodies’ elections in 43 cantonment boards of the country.
Yasin Malik’s counsel Iftikhar Gilani cautioned the court that this case has serious repercussions for the country as a very senior functionary of the state and a person who retired from not less than the rank of a lieutenant general has been indicted. The court did not object to such an argument. Gilani had told the court that parliament, too, has taken up the matter and passed a resolution regarding the fact that LB elections could not be held immediately.
The three-judge bench indicted the defence secretary LB polls despite the fact that he was not authorised to hold elections, he had maintained. According to Article 4 of the Constitution, a person cannot be held responsible if he is not required to do certain work under the law, he argued.
During Friday’s hearing, Justice Nasirul Mulk asked the defence secretary’s counsel why he submitted an undertaking if he was not authorised to hold elections. Gilani replied that the three-judge bench, which has now turned into a trial bench, gave the undertaking.
“I submitted the undertaking and I fulfilled my duties to a maximum as I wrote to the relevant authorities and the executives responsible to hold elections,” Gilani said on behalf of his client. “I’m in a catch-22 situation because now I cannot even order for the elections to be held.”
Justice Mulk asked then why he had not submitted a reply before the bench during the preliminary hearing. “My client submitted an unconditional apology on my advice,” he responded, to which the bench asked why he was challenging a decision after an apology, as it is the bench’s prerogative to accept an apology or initiate trial proceedings.
Gilani told the bench that he was not against the decision of the trial, but he was requesting for a larger bench instead because it was mandatory under the law that the chief justice constitute a larger bench of five or more judges to decide the intra-court appeal. In this case, the chief justice led the bench himself and framed charges, which was against the set law.
Meanwhile, Additional Attorney General Shah Khawar, who was present in the court, has been appointed as the prosecutor in the case.
Another interesting development in Friday’s hearing was Attorney General Muneer A Malik’s refusal to act as prosecutor against the defence secretary in the case. He told the court that he excused himself because he is directly associated with the case.
Citing the July 2, 2013 order of the apex court, he said it stated that the defence secretary submitted the undertaking to hold the LB elections in the cantonment areas after consultation with the Election Commission of Pakistan and the attorney general of Pakistan.
The court adjourned the hearing till November 18.
Published in The Express Tribune, November 9th, 2013.
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