Resuming his arguments before the Supreme Court in the contempt Prime Minister Syed Yousuf Raza Gilani's lawyer Barrister Aitzaz Ahsan argued that a fair trial required that a judge who had issued show cause notice in a case should not adjudicate the same matter.
Article 10A of the Constitution provides explanation of right to a fair trial as, "For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process." However, the bench observed that acceptance of the stance of Ahsan in the matter would ignite a situation to such an extent that every defendant would be free to challenge the bench's eligibility.
Appearing before the seven-member bench led by Justice Nasirul Mulk, Barrister Aitzaz in his day-long presentation also referred to the Contempt of Court Ordinance 2003 and said provision of the Ordinance was divergent to the Constitution of Pakistan. Ahsan maintained that those laws should be automatically ignored which are considered contrary to the provisions of Constitution.
Justice Sarmad Jalal Osmani asked Ahsan: "Do you want the bench to declare the Ordinance null and void?" Justice Osmani observed that it would create legal complications for the legislature, executive and judiciary in case the apex court began to declare certain laws contrary to the Constitution.
Ahsan submitted that his statement was being twisted in the case, adding that he and his party had full confidence in the judges' qualification but the trial procedure adopted in the prime minister's case was not constitutional. Justice Gulzar asked Aitzaz whether he considered those on the bench as biased judges.
Justice Ijaz Afzal observed that a 17-member bench has given a verdict on National Reconciliation Ordinance case and it would not be possible to hear the case if counsel for the PM was focusing on the issue of 'biasness'. Ahsan said that according to Article 10-A of the Constitution, there is no issue of bias in the instant case but it is a fact that a transparent trial is not possible until the matter is referred to another bench for hearing.
Ahsan added that the present bench had issued show cause notice to the Prime Minister in the case so the matter should be referred to another bench in order to fulfil the obligations of Article 10- A of the Constitution. Referring to Ahsan's remarks that judges were complainant in the case, Justice Asif Saeed Khosa observed that there was hell of difference between a Judge and a complainant because in contempt of court proceedings a judge had to issue show cause notice to contemnor, asking him why proceedings should not be initiated against him. The bench adjourned hearing of the case till March 26.