Supreme Court of Pakistan
Supreme Court of Pakistan. — Photo by AFP

ISLAMABAD: Barrister Aitzaz Ahsan, counsel for Prime Minister Yousuf Raza Gilani, on Friday contended before the Supreme Court that the speaker of National Assembly took a right decision on the qualification of the premier as a member of the parliament in the light of a seven-member bench's verdict regarding contempt of court issue.

He said that the office of speaker was no more 'a post office' after the 18th Amendment as it had been drastically changed.

He was arguing before a three-member bench, comprising Chief Justice Iftikhar Muhammad Chaudhry, Justice Jawwad S. Khawaja and Justice Khilji Arif Hussain in response to a set of constitutional petitions, challenging the NA Speaker's ruling.

The bench was hearing a set of petitions filed by the Pakistan Muslim League-Nawaz (PML-N), the Pakistan Tehrik-i-Insaf (PTI), Azhar Chaudhry advocate and others challenging the NA speaker's ruling of May 28 over the qualification issue.

Aitzaz, explaining his stance, further said that the Speaker NA Dr Fehmida Mirza had used her quasi judicial powers and gave her ruling over the issue with due application of her mind.

“She is no longer a mere post office and has to perform her exclusive functions of a sovereign institution,” he added.
He asked the chief justice to form a larger bench due to significance of the case.

He argued that in view of trichotomy of powers, courts must give some respect to other institutions, particularly the sovereign legislature, its speaker and its leader, the prime minister.

Referring to judgment of the seven-member bench, the counsel said that the concept of subjective satisfaction of a court or a judge was alien to law.

The chief justice told him that he was trying to take the bench to the issues, which could have been raised in an appeal.

He objected to the use of words “objective” about the judges of the Supreme Court and said that they had all respect for all the senior judges and Justice Nasirul Mulk, who headed the bench.

“Sorry! Aitzaz, you must have raised these issues in an appeal,” the chief justice told him.
Aitzaz argued that he was submitting his contentions on the conviction issue and said that there would be no automatic disqualification of a member of the parliament under Article 63 of the constitution. He said that the respondent's conviction did not mean his disqualification.

He said that he was accepting the judicial verdict, but was persuading the court that his client had not stood disqualified on the basis of the verdict and thus did not require appealing against the verdict.

The sentence less than one year would not render a member of the parliament disqualified, he added.

The chief justice told him that they would not consider it as filing an appeal against the decision of April 26 or otherwise, was the concern of the respondent.

He observed that it was the first case before the court in which a member of the parliament had not filed an appeal against his conviction.

If you had moved an appeal, the things might have been different, he told Aitzaz.

Upon bench's inquiry, the joint secretary legislation National Assembly appeared on behalf of the NA speaker, but the chief justice told him that if he wanted to appear in person, he should adopt the set process by submitting an authorisation on behalf of the respondent.

The chief justice told Aitzaz Ahsan to complete his arguments by 11:00 am on Monday and adjourned the hearing.

In her May 24 ruling, NA Speaker Fehmida Mirza rejected the April 27, 2012 reference sent to her office by Moulvi Iqbal Haider under clause (2) of Article 63. In it, Haider had prayed that the question regarding the prime minister’s disqualification be referred to the Election Commission of Pakistan, since Gilani had already become disqualified from membership in the NA as a result of the Supreme Court conviction.

The petitioners had requested the Supreme Court to declare the speaker’s ruling unconstitutional and illegal.