ISLAMABAD: Thursday can prove to be D-day for Prime Minister Yousuf Raza Gilani.
One day from today, Mr Gilani will make his third appearance in front of the Supreme Court (SC) in the contempt of court case. The SC will either exonerate the prime minister of all charges, or slap him with contempt.
Justice Nasir-ul-Mulk ordered that the prime minister be present on Thursday as he scheduled the court decision for the day. Justice Mulk is heading a seven-judge SC bench that is deciding whether or not the prime minister is guilty of contempt of court by failing to pursue the graft cases in Swiss courts. Worth $60 million, these cases involve President Asif Ali Zardari. The silence of the prime minister left the SC with no option but to frame charges of contempt against the prime minister on February 23.
The proceedings on Tuesday began with the arguments of the newly-appointed Attorney General Irfan Qadir. Defence lawyer Aitzaz Ahsan had finished his arguments last week.
Expectedly Mr Qadir did not play the traditional role of a prosecutor in contempt proceedings. Instead he argued that the court had no legal basis for pursuing a contempt case against the prime minister as there was no legal instrument that allows for a contempt of court case.
This was not unexpected because since his appointment as attorney general, observers had been predicting that Qadir’s arguments would help the government’s case. They were proved right.
After criticising a media group for its skewed reporting on the issue and asking the bench to admonish it, the attorney general spent the rest of the day arguing in favour of the prime minister. And his arguments ranged from the absence of a contempt law to the double jeopardy argument.
“There is no contempt of court law in this country,” Mr Qadir said at the beginning of his arguments which on at least one occasion led to a heated exchange with the judiciary.
The bench was taken aback at his statement, but Mr Qadir continued, emphasising that his role as a prosecutor necessitated that he exercise an “independent mind” to avoid a confrontation between the executive and the judiciary.
“There is a complete void. How will the court proceed when there is no law?” Mr Qadir asked.
He pointed out that the 2003 contempt of court ordinance, under which the prime minister was indicted, had been repealed by the contempt of court ordinance of 2004.
However, he pointed out that the 2004 ordinance had been passed under article 270AA, which requires that the given law be later presented in the National Assembly. And as this never happened, the law of contempt did not exist.
This lacuna, according to Mr Qadir, was also discussed in the landmark July 31, 2009 SC judgment that invalidated the November 3, 2007, emergency.
“This is not my personal view. It is the view of the constitution, as interpreted by the court in its July 31 verdict,” the attorney general recounted.
He went on to pinpoint that the 16-judge bench that heard the manhandling case against the Chief Justice in 2007 also considered the points that he was raising.
“In all fairness, propriety demands that the matter be referred to the 17-judge Supreme Court bench,” Mr Qadir concluded.
AG: ‘The prime minister is not culpable’ Mr Qadir also argued that the prime minister was not culpable in this case.
“The contempt charge is absolutely groundless,” he said.
According to him, the prime minister had never been a party in the NRO case, and there was no direct order against him to write the letter to the Swiss authorities.
The prime minister was also not answerable to any court of law, since the constitution granted him immunity, Mr Qadir continued.
He went on to question the SC’s dissatisfaction with a letter written to the Swiss authorities by the former attorney general, Malik Mohammad Qayyum.The letter, which closed the Swiss cases, was declared lawful in a letter sent to the National Accountability Board (NAB) chairman by the newly-appointed Secretary of Law, Yasmeen Abbasi.
Aside from these arguments, Mr Qadir also used the opportunity to criticise the NRO judgment. Describing it as a unique verdict in global judicial history, he argued that the condemnation of 8000 persons – without hearing their cases – was problematic. Eight thousand people are said to have benefited from the ordinance.
“Out of a 300-page judgment the court is seeking only implementation of just one paragraph,” Mr Qadir said, referring to the paragraph regarding the letter to Swiss courts.
He pleaded the bench to work for the welfare of the country, and requested the court to exercise judicial restraint and save the institutions. Such comments provoked the bench on at least one occasion.
“Is there anything wrong if the court tries to get back the plundered money that belongs to this poor nation? You want us to give up the claims?” Justice Osmany asked.
“I am not preventing this. But too many honest persons have lost their jobs because of this zeal. We should pursue these matters legally and not emotionally,” Mr Qadir retorted.