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Barrister Aitzaz Ahsan
Senior PPP leader Senator Aitzaz Ahsan. -File Photo

ISLAMABAD: Barrister Aitzaz Ahsan, who is defending Prime Minister Yousuf Raza Gilani in the contempt case, requested the Supreme Court on Thursday not to set a dangerous trend of submitting the country’s president to a foreign magistrate.

“Learning from the example of Raymond Davis who was taken away by the Americans, we should not submit our president to the foreign magistrate on our own because it is the cause of the people,” Mr Ahsan argued before a seven-judge bench, headed by Justice Nasir-ul-Mulk, hearing the contempt of court case against the prime minister for not pursuing graft cases in Switzerland in which President Asif Ali Zardari is also an accused.

The court asked the counsel to complete his arguments by Wednesday so that the attorney general could commence prosecuting the prime minister on Thursday.

“Overlook the fact that Asif Zardari is president today; if we allow setting the dangerous precedence today, tomorrow a magistrate of any country will summon our president, the chief justice or even the army chief,” the counsel said.

However Justice Asif Saeed Khosa, a member of the bench, referred to the 1949 Geneva Convention to remind the counsel that it was only meant for the smooth diplomatic functioning between countries and not to protect individuals.

He also drew the attention to an inherent contradiction in the counsel’s argument and said that on the one hand he was claiming that the graft cases in Swiss courts had been terminated and, on the other, he was raising the issue of country’s dignity by surrendering the president to a foreign magistrate.

“Whatever argument the counsel is now raising is in addition to the defence the prime minister earlier took that he acted on the advice rendered to him by not writing letters to the Swiss authorities for reopening of the graft cases,” Justice Nasir-ul-Mulk said.

Postponement of the NRO judgment, he said, would mean disobeying not only the NRO verdict but also subsequent review judgment by a 17-judge bench which asked for taking immediate steps for reviving the cases closed by taking the benefit of NRO.

When the counsel referred to the rights enshrined under Article 19 of the Constitution, Justice Khosa said in one sentence the article ensured the fundamental right of freedom of speech but took back the same in the other eight lines.

“It is like increasing the price of petrol by eight rupees and then taking back Rs2 only,” Barrister Ahsan quipped.

“It is your government (which did that),” Justice Khosa said.

“Yes, but sometimes you also fix the prices of sugar,” the counsel said.

“But even then it is not implemented,” Justice Khosa recalled.

Mr Ahsan said the sugar industry had not implemented the decision and contempt notices should also be issued to them for this.

He contended that the present bench was not competent to hear the contempt case because it had initiated it on a suo motu and being a complainant it should not try the prime minister, especially after the incorporation of Article 10A in the Constitution.

The bench said it was trying to convince the counsel again and again that they were not hearing the matter for their own cause but for the cause of the court.

But the counsel argued that the suo motu was taken to correct the process and not to punish or penalise after conducting a trial.

“Article 10A prohibits the judges to grace the bench,” he said, adding that the case in hand was not of corruption or in pursuit of any alleged proceeds of crime.

“It is a case that concerns an office which is immune under the international law from civil and criminal proceedings before any forum outside Pakistan.

This is not a case of disobedience of an order of this court but a matter of national status in the comity of nations,” Mr Ahsan said, adding that immunity to the president was absolute though time bound and, therefore, the NRO judgment was not implementable for the time being.