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SC verdict not implementable, says Aitzaz

February 02, 2012

Barrister Aitzaz Ahsan. — File photo

ISLAMABAD: Barrister Aitzaz Ahsan treaded a fine line on Wednesday and performed a delicate balancing act between defending the prime minister who is facing contempt charges and convincing the Supreme Court that its NRO verdict for requesting the Swiss authorities to reopen money-laundering cases is not implementable.

But at the end of the proceedings he was asked to complete his arguments by Thursday before the tea-break and, if convinced by his arguments, the court would discharge the contempt or move ahead with formally framing the charge against Prime Minister Yousuf Raza Gilani.

“This is a preliminary hearing in which the court has to test the bona fide of the prime minister,” observed a seven-judge bench hearing a contempt of court charge against the prime minister.

The court exempted National Accountability Bureau Chairman Admiral (retd) Fasih Bokhari from personal appearance. It rejected two applications filed by Barrister Zafarullah Khan of the Watan Party and Lt-Col (retd) Abdul Qadir for becoming parties in the matter.

There was a belief that Barrister Ahsan would have an easy walkover because the decision to bring him to defend Mr Gilani would dampen the raucous of difficult days for the prime minister and his government. But the bench was not willing to buy Mr Ahsan’s argument that the prime minister had been badly advised in the past.

“Is this your defence that the prime minister did not bother about the 17-judge Supreme Court bench order on the implementation of the NRO verdict, but preferred to act on the advice rendered to him under the rules of business by a subordinate, the law secretary?” Justice Asif Saeed Khosa, a member of the bench, asked. “This is a slippery argument,” he said.

“If a wrong advice is rendered to the prime minister under the rules of business which proved disaster to the nation later who will be responsible,” Justice Muhammad Ather Saeed asked. “Actually no one,” Mr Ahsan replied. He explained that the prime minister was also a beneficiary of Article 248 (1) of the Constitution which provided him immunity from being questioned by the court about the performance of his functions or exercise of his powers.

“Nobody wanted to shackle the prime minister or send him to jail. All the court wanted is implementation of a very clear NRO judgment,” Justice Asif Khosa said and asked whether the counsel wanted another direction in this regard.

“The prime minister is expected to respond to the court’s order because it is different than acting on advice on routine matters,” the bench said.

The bench was also not willing to let Mr Ahsan assume that the president enjoyed immunity. It made it clear that the counsel would have to argue on this issue and then allow the bench to issue a ruling on it.

“The question of immunity will come only after implementing the order first which is writing the letter (to Swiss authorities),” Justice Ejaz Afzal Khan said, adding that he wondered how the counsel could seek refuge in a castle built in the air.

Whenever Mr Ahsan tried to justify the prime minister’s decision of not writing the letter to Swiss authorities, the court asked whether he was formally moving on to the question of president’s immunity.

Barrister Ahsan argued that the prime minister had already submitted to the authority and majesty of this honourable court in the contempt case without reservations. And his defence is that he had reasonable basis to believe that the compliance of paragraph 178 of the NRO judgment (writing of letter to Swiss authorities) was not possible presently. Hence, the contempt notice ought to be discharged, he explained.

When the counsel argued that the prime minister was a layman and did not understand the implications of not obeying the court order, Justice Gulzar Ahmed said the prime minister had the finances and the machinery at his disposal to acquire best possible advice.

Justice Asif Khosa quipped that the prime minister was the most experienced parliamentarian as he had been elected several times and was a legislator who made laws for the country. “We always attribute wisdom to the legislators and hold them in high esteem,” Justice Khosa said, adding that now that he had got the best legal advice what steps the prime minister was taking.

“If we allow it to happen that the prime minister has reasons to believe that judgment is not implementable then tomorrow it will give licence to 180 million people to turn around and say that they did not implement the order but then intention was not bad,” Justice Khosa observed.

When Mr Ahsan criticised the media for condemning him for his changing stand on writing the letter to Swiss authorities, Justice Sarmad Jalal Osmany said he wondered why the counsel participated in talk shows on sub judice matters, adding that he never watched talk shows because these insulted his intelligence.