[standaman]

A seven-member bench of apex court headed by Justice Nasir-ul-Mulk and comprising Justice Asif Saeed Khan Khosa, Justice Sarmad Jalal Osmany, Justice Ejaz Afzal Khan, Justice Ijaz Ahmed Chaudhry, Justice Gulzar Ahmed And Justice Muhammad Ather Saeed would hear the suo moto notice taken against non compliance of court's verdict against National Reconciliation Ordinance (NRO).

The SC on March 08 adjourned the hearing of contempt case against Prime Minister Gilani till today.

During the course of proceedings‚ the seven member bench said if Prime Minister Gilani does not want to appear in person before the Court‚ it should submit its written reply by 19th of this month. If the Prime Minister wants to appear before the bench it may record his statement on 21st of this month.

In compliance of court order dated March 08, Barrister Aitzaz Ahsan submitted a statement on behalf of PM Gilani on March 19.

In his statement, the prime minister said that he had committed no contempt by not writing a letter to the Swiss authorities due to the constitutional immunity enjoyed by the President.

Prime Minister Gilani has suggested the SC that if it does propose to expose the incumbent President of Pakistan to prosecution before a Western Magistrate, the best recourse will be to send this issue of grave public concern to the Parliament to take a decision, like it had done wisely over articles concerning appointments in the higher judiciary in the 18th Amendment case.

"I also believe that the sovereign state of Pakistan cannot, must not and should not offer its incumbent Head of State, symbol of Federation (Article 41), the most prominent component of Parliament (article 50), and the Supreme Commander of its Armed Forces (Article 243) for a criminal trial in the court of a foreign magistrate, during the term of his office," he maintained.

He said that any such attempt on his part would be liable to serious consequences being in humiliation of the constitutional symbol of the sovereignty and independence of the state to which he was under oath to uphold.

"This is also a principle of absolute and inviolable "Head of State Immunity" recognized in International Law and must also be respected and upheld by all our institutions, i.e. executive, legislature and judiciary," he added.

The prime minister said that neither he committed any contempt nor intended to commit it as he had acted strictly in accordance with the Rules of Business.

"To set aside a decision of an executive authority as being wrong, is one thing. To charge that authority of a criminal offence, is quite another," he added.

Referring to the latest directive of the Court on March 8, in which he was ordered to ignore all advices and act to implement paras 177 and 178 of the NRO judgement case, he contended that the advice was given in the past which was relevant with the present and future.

Giving reasons for now writing a letter, he said the advice included statements by relevant quarters that cases in the Swiss court had been closed on merits and the documents that were the subject of Mutual Legal Assistance Request had been provided back in 1998 and nothing now was required to be done on that account.

The PM said that he was also advised that the sovereign position of the President of Pakistan required that he could not be put up for trial in any foreign court including Switzerland, to which he acted accordingly.

He said "I believe that this is indeed the correct position in law and fact. As long as a person is a Head of a Sovereign State, he has immunity in both criminal as well as civil jurisdictions of all other states under international law. I believe this immunity to be absolute and inviolable, even though it persists only during the tenure of office."

Such immunity was vested with the office and not in the person, he added.

"I think it wrong to subject the constitutionally elected incumbent President of Pakistan to the authority of a Magistrate in a foreign country. I think this subjection should be avoided," he emphasised.

Terming the March 8 order on the same issue as ex-parte, the PM said the bench should first hear and appreciate the arguments of his counsel over steps referred in Para 178, but it was evident that the bench had arrived at a conclusion which was directly contradictory with his defence.

"With utmost respect and humility, it is submitted that this amounts to pre-judging a cause," he added.

Gilani said that if the bench was to try him for alleged past conduct, then it must create a 'mental firewall' so that events, before or after, do not affect its judgement.

The prime minister said the grounds based on future conduct might be created by the order dated March 8, for presuming contumacy affecting the present trial, but this was a criminal trial which could lead to serious consequences.

"In fact the fresh order of March 8, 2012 goes to show my innocence of the earlier charge. The contrary is not possible," he added.

Objecting to passing of fresh order, the PM said that his case also pertained to the right of a citizen to natural justice as enshrined in Article 10A.

He said the order was passed by summoning up the Attorney General, who was already tasked as prosecutor in the instant contempt issue and he was asked to convey the directive to him.

Gilani said that the Attorney General was privy to all proceedings on the NRO case after his appointment on April 2, 2010, and the two summaries which were approved by him during this period.

He was the person, who was mandated by him to bring the decisions of the government to the notice of Supreme Court, which he did not and was appointed as prosecutor which was a tragic irony.

"There are other ironies. This Hon'ble Bench itself issued the show cause notice to me. It thus initiated the prosecution, itself. If not prosecutors, the Hon'ble Judges gracing this Hon'ble Bench are certainly in the nature of the complainants. Yet they sit as Judges and try me in the same cause," he added.

Raising further objection over proceedings conducted by the same bench, the prime minister said that the bench having itself initiated the prosecution was sitting in trial and judgement.

He said it meant that the most fundamental principles of natural justice stood violated. These well known principles of natural justice as expounded by this Court itself were "No man shall be condemned unheard. No Man shall be a judge in his own cause. Both these principles have been breached."

He said that application of the law of contempt of court must now be subject to and in conformity with the new Article 10A of the Constitution.

"The hon'able Judges who decided to issue the show cause notice to me, should not have sit in the trial, nor should sit in judgement in this case," he added.

The PM said that they should not forget that judges were also human beings, and fallible. It was also difficult, if not impossible for them to disassociate from opinions so harshly and firmly expressed by them before the initiation and also before the conclusion of the trial.

He prayed to court that it should recall its ex parte order of March 8 in suo motu case and show cause notice of January 10.

He said the same bench had laid down six options which could be exercised against him if found convicted of contempt of Court but he could not understand why the most coercive option had been selected by the Court and for what reason?

He said the sixth option envisaged sending of the instant matter to the people of Pakistan at an appropriate time according to the Constitution, was the best course of action for the bench.