ISLAMABAD: Barrister Aitzaz Ahsan, who is defending Prime Minister Yousuf Raza Gilani against contempt charges, tried to convince the Supreme Court on Thursday that the 18th Amendment and introduction of Article 10A had almost overridden its power on the issue of contempt.
That would be the simplest way to put Thursday’s proceedings which were heavy on technicalities and interpretations. A seven-judge SC bench headed by Justice Nasirul Mulk is hearing the contempt of court case against the prime minister for not pursuing the graft cases in Switzerland in which President Asif Ali Zardari is also an accused.
Mr Ahsan argued that Article 10A incorporated into the Constitution through the 18th Amendment ensured due process through fair trial had now dominance over Article 204 which empowered the superior courts to punish a delinquent for scandalising or abusing it.
This, the counsel emphasised, had enhanced the rights of an accused and citizens in the contempt matter and also increased the burden on courts.
He said the due process also required a judge not to sit in trial when he had inquired a matter or initiated proceedings prior to a formal trial by issuing a show-cause notice. The party may have full confidence in the bench or a judge, but the right so created after the amendment could not be surrendered.
Mr Ahsan argued that if there was a departure from the due process and even if the party had not pointed it out, the right of a fair trial could not be waived. “Even no exception can be claimed no matter it is a criminal charge or contempt proceedings.
You can’t get a fair trial if the plaintiff becomes the judge,” he contended.
Justice Asif Saeed Khosa drew a distinction between a complainant and a judge and said when the judge issued a show-cause notice he always provided an opportunity to an accused to explain why he should not be proceeded against.
In response, the counsel suggested by way of example that the superior courts would always transfer a case from one district to another for a fair trial if all sessions judges of a particular district decided to lodge an FIR against some members of the bar on some incident. “Judge cannot become a judge of his own cause,” he cited the famous maxim.
Justice Khosa asked the counsel how Article 10A could be reconciled with Article 204 and said one provision of the Constitution could not be used to scuttle, cut down or control another provision. “When the Constitution itself recognises the power of the court under Article 204, how could it be circumvented through a subordinate legislation, though it could be regulated,” he asked.
“Don’t get carried away with the word ‘power’,” Mr Ahsan said and emphasised that the exercise of power conferred on a court under Article 204 was subject to be regulated through Article 10A.
“If you have any problem with the contempt ordinance why don’t you challenge it and get it amended,” Justice Khosa said.
“Are you trying to say that if certain provisions of the contempt law are contrary to Article 10A then the court should ignore these provisions,” Justice Mulk asked.
“When a law contravenes Article 8 of the Constitution that holds all laws to be void if inconsistent with the fundamental rights, judges will always ignore it,” Mr Ahsan said, adding that the court would never apply a void law even if it was not pointed out.
The court observed that in a collateral proceeding a law could not be held to be illegal without any challenge.
Barrister Ahsan, who will resume his arguments on Monday, requested the court to postpone further proceedings till April.
When the bench turned down his request and said the proceedings would continue on a day-to-day basis, the counsel made it clear to the bench that it should not expect from him early conclusion of arguments.