Aitzaz urges judges to refer case to 17-member bench

Defending the Prime Minister Syed Yousuf Raza Gilani in a contempt of court case, his counsel Aitzaz Ahsan on Thursday urged a special Supreme Court bench to refer the case to a 17-member bench for a "fair" trial.
A seven-member special bench led by Justice Nasirul Mulk has been hearing a contempt of court case against Prime Minister Syed Yousuf Raza Gilani over his refusal to write a letter to Swiss authorities to reopen graft cases against President Asif Ali Zardari.
Justice Asif Saeed Khosa observed: "It is not the judges' cause to proceed in the instant matter, but it is the people of Pakistan's cause as they have constituted Article 184 under which the adjudication is taking place".
Aitzaz said: "Learning from the example of Raymand Davis who was taken away by the Americans we should not submit our president to a foreign magistrate on our own because it is the cause of the people."
The bench asked Aitzaz to complete his arguments by April 18, however, Aitzaz submitted that he could not promise if he would be able to complete his evidence by April 18.
Aitzaz relied his arguments on Article 10-A of the Constitution, which says that every citizen of Pakistan has a right to fair trial. "Any judge, who takes notice of any incident, without a petition filed or an FIR registered, automatically becomes a complainant in the case and hence is not eligible to hear the case," according to Aitzaz.
He insisted that President Asif Ali Zardari enjoyed immunity during his presidential tenure under the international law. Although many people dislike President Zardari, he is still an elected head of the state and hence cannot be presented before any court of law, according to Aitzaz.
He also argued that under Article 10-A of the Constitution, the special bench was not eligible to hear the case because the court had itself initiated it. Justice Asif Saeed Khan Khosa noted that no single judge but the whole bench was using its right to hear the case.
Aitzaz said he did not differ with the court as well as people over a demand that $60 million in the Swiss banks, which was public money, should be brought back to the country, But let the President Zardari step down, he said and added that Zardari could be tried, but only after he steps down from the office of the President. According to Aitzaz, as long as Zardari is the president, he enjoys immunity and cannot be presented before any court of any country.
He said if the President was sent before a Swiss magistrate, anyone else could be summoned by any international magistrate as well in the future. He said: "Today it is Zardari, tomorrow it might be any other elected president or prime minister, even an army chief or the chief justice". Zardari is a constitutionally elected President; he's not an army general who has come to power by force, according to Aitzaz.
He argued that the contempt of court ordinance of 2003 was obsolete and that a new ordinance was presented in 2004. He said that according to his information an appeal was pending with the court, seeking clarification about the effectiveness of contempt law 2004. Justice Nasirul Mulk, however, reminded Aitzaz that the existing contempt of court law was the law of 2003.
To a court query, Aitzaz said his client had acted in accordance with a summary sent to him by the law ministry. He said he would also argue whether or not the prime minister can be held contempt.
He said there were two principles of a fair trial. First, that no one should be a judge in his own cause. Second, that a man "cannot be condemned unheard."
Justice Muhammad Ather Saeed, however, obstructed Aitzaz, saying that they were not sitting in court in their personal capacity, but to hear a contempt of court case. Justice Ejaz Afzal Khan observed that this case was fixed before the bench by the chief justice and that they could not decline to hear it.
"It is the prerogative of the Chief Justice of Pakistan and we have not made any effort to hear this case," Justice Ejaz Afzal said. Justice Sarmad Jalal Osmany observed that the Chief Justice had taken a suo motu notice for not implementing the court's order on NRO.
"Don't you want that Pakistan's money be brought back," Justice Khosa asked Aitzaz while reminding him about the Vienna Convention. Aitzaz, however, contended that until Asif Ali Zardari was holding the office of President, he enjoyed absolute immunity in criminal and civil matters.T he bench adjourned the hearing till April 13 (today).