The Supreme Court will today hear an intra-court appeal filed by Prime Minister Yusuf Raza Gilani, who had been summoned by the apex court on February 13 for framing of charges against him in a contempt of court case.
The case has been filed against the prime minister for not implementing the court’s verdict in the National Reconciliation case.
An eight-member bench of the apex court, headed by Chief Justice Iftikhar Muhammad Chaudhry, will hear the appeal. Other members of the larger bench include Justice Mian Shakirullah Jan, Justice Jawwad S Khawaja, Justice Anwar Zaheer Jamali, Justice Khilji Arif Hussain, Justice Tariq Parvez, Justice Mian Saqib Nisar and Justice Amir Hani Muslim.
Barrister Aitzaz Ahsan, counsel for Prime Minister Gilani in contempt of court matter relating to NRO implementation case, on Wednesday, moved an Intra Court Appeal before the SC, with prayer for setting aside the impugned order of February 2 by a seven-member bench against his client.
In the ICA moved under Section 19 (1) (iii) of the Contempt of Court Ordinance 2003 in criminal original No. 06/2012, the counsel pleaded the Court to recall order of its seven-member bench and suspend proceedings for framing of charges on February 13 for the larger interest of justice.
Elaborating his contentions, Barrister Aitzaz said under Contempt of Court Ordinance 2003, it was a settled law that preliminary hearing had to be substantive since it would provide for the benefits of alleged contemnor.
He said the hearing was mandatory for arriving at a conclusion whether the show cause notice should be discharged after going through all the defence of the respondent.
Since, the contempt proceedings were always criminal in nature and it was the trite law that any benefit of doubt (including the taking of any decision in good faith or with no mens rea to, willfully disobey of an order, of the Court had to be given to the alleged contemnor even at the preliminary stage, he added.
He said only after the aforesaid inbuilt stage had been exhausted judiciously then the Court was supposed to go to the next question as to whether it was prima facie, satisfied that it would be in the interest of justice to proceed with the matter.
“It is therefore, submitted that there can be no satisfaction unless allegations contained in the show cause notice are kept in juxtaposition with the version of alleged contemnor,” he said, adding, “Something which seems not even to have been noticed by the Honourable larger bench. The order has therefore, caused miscarriage of justice.”
The counsel making another ground said that the impugned order was devoid of any reasons which was evident from its bare perusal.
“No ground, explanation or reason has been given in support of this conclusion,” he added.
He said there was no discussion as to the basis on which the satisfaction of the Court was achieved nor was there any elucidation of how the interest of justice would be served by proceeding further.
He said none of his arguments were recorded in the order which manifested that the impugned order was mechanically passed.
Referring to Section 24-A of the General Clauses Act, 1897, he said, for judicial orders this requirement had always been there and the notion of a judicial order which was not supported by reasons was unknown to law.
Aitzaz said that under Section 17 of the contempt ordinance, the Court had to reach to two conclusions (a) to discharge the notice or the show cause notice and to terminate the proceedings, or (b) to proceed with the matter and frame the charge. “There is no gainsaying that neither of these conclusions can be arrived at arbitrarily.”
“Any other conclusion would be tantamount to license for arbitrariness, which cannot now be countenanced after the insertion of Article 10 A,” he added.
In support of his arguments, he further said that the order to frame a charge must be supported by reasons and that such an order was appealable under Sections 19 of the contempt ordinance.
Justifying reasons for filing an appeal, he said that if the impugned order did not contain any reasons, there would be no basis for the appellate court to judge the validity of the impugned order on merits which had been considered sufficient ground for an appeal to succeed.
The counsel said that he was prejudiced by a non-speaking order of the bench.
“The minimum right given in the Contempt of Court Ordinance, 2003 before facing any charge of contempt had to be read in conjunction with the provisions of Article 10A of the Constitution i.e. it would be violation of the fundamental rights of the alleged contemnor,” he raised another question.
He said that inter alia, in view of the criminal nature of charge, without a speaking order having been passed after preliminary hearing, the Court would have no jurisdiction to step into the next stage of proceedings.
The counsel further said that in criminal proceedings, an accused could be acquitted to give him freedom from the agony of the trial even before a charge was framed.
He contended that his client in his capacity as prime minister was required to go by the Rules of Business, 1973 as formulated under and pursuant to Article 99 of the Constitution and took decision over Court’s directive for implementation of NRO decision.
He said after going through the facts of the case, there was no intention, let alone, wilful disobedience or flouting of any direction or order the apex Court.
The appellant could not be called upon either to show cause for contempt of court or that he had disobeyed any order of the Court and was liable to face trial for contempt.
Elaborating another ground for appeal, the counsel said, that the larger bench should have satisfied itself that, he as a senior counsel, had completed his arguments before passing an order to frame charges.
He maintained that, “The larger bench erred in preliminary hearing in departing from its own precedent of patience and forbearance in the PCO Judges’ case” (where arguments were allowed to be made on 24 actual dates spreading over several months).
Termination of his arguments during initial proceedings, was in violation of the privilege, indeed right, recognized by none other than Justice Conelius, he added.
He said “Such an order to frame a charge against the duly elected and constitutional prime minister is in itself a serious matter and ought not to be passed without a full hearing of the counsel for the prime minister and, then too, after exploring every avenue, argument and reason for his innocence.”
He said the prime minister was made bound by the Supreme Court to follow Rules of Business so what crime the PM did then when he accepted an advice of law minister and law secretary over NRO implementation case.
Raising a question, he said “Could a prime minister who undid the draconian action of a military dictator ( who ordered arrest of judges of the superior courts, including the Chief Justice and his children) even before he had taken oath as prime minister, be presumed to have contemplated committing contempt”.
Pleading the Court to exercise restraint, he said “Whether it is not ironic that a prime minister who released the detained judges should be sent to prison, or sentenced otherwise, by the judiciary”.