ISLAMABAD: Four days before the date he has been summoned to appear before the Supreme Court in a contempt case, Prime Minister Yousuf Raza Gilani has challenged the order through an intra-court appeal which will be heard on Thursday.
The appeal says it would be ironic to send to prison a democratically elected prime minister who had released detained judges of the court even before taking oath as the chief executive.
Filed by Barrister Aitzaz Ahsan, the appeal was immediately fixed for Thursday before an eight-judge larger Supreme Court bench since the prime minister has been summoned by a seven-judge bench on Feb 13 for the framing of charges.
Chief Justice Iftikhar Mohammad Chaudhry will head the bench which will comprise Justice Mian Shakirullah Jan, Justice Jawwad S. Khawaja, Justice Anwar Zaheer Jamali, Justice Khilji Arif Hussain, Justice Tariq Parvez, Justice Mian Saqib Nisar and Justice Amir Hani Muslim who are not members of the original seven-judge bench hearing the contempt case.
The voluminous appeal, which cites a number of cases, requests the court to set aside the Feb 2 order of summoning the prime minister on Feb 13 and the show-cause notice in the interest of justice and suspend the proceedings before the seven-judge bench hearing the contempt case.
It says framing charges against a duly elected and constitutional prime minister is a serious matter and should not have been initiated without exploring every avenue, argument and reasons for his innocence.
The appeal says that according to the understanding of the appellant (the PM), the earlier directive of the court to write letters to Swiss authorities for reopening graft cases against President Asif Zardari cannot be implemented.
These cases stand closed and no application can be filed before any jurisdiction when already terminated on merit. The court is bound to respect the law of foreign jurisdiction since no-one can be compelled to do what the law does not require him to do.
It is also the understanding of the appellant based on advice that Mr Zardari as the president enjoys absolute “head of state immunity” from criminal as well as civil actions in all foreign jurisdictions during the term of his office.
The larger bench, the appeal says, erred during the preliminary hearing by departing from the court’s own precedent of patience and forbearance it showed in the Provisional Constitution Order (PCO) judges’ cases and asks why it applied a different standard to different litigants.
The appeal recalls that in the PCO judges contempt case arguments were allowed to be made on 24 dates spreading over several months during the preliminary hearing.
Referring to the treatment meted out to dictators, the appeal asks why a duly elected prime minister is not dealt with in a manner similar to real, actual and blatant contemnors who were not even formally charged and indicted for sacking the superior courts and their judges in November 2007.
These contemnors expressly and brazenly flouted the historic order of Nov 3, 2007, and arrested the judges of the superior courts along with their children and kept them under detention and captivity for a prolonged period.
Should not the court show greater restraint and forbearance with respect to the duly elected prime minister? it asks.
A prime minister who undid a draconian action of a dictator even before taking oath as the prime minister should not be presumed to have contemplated committing contempt, it says.
It recalls that after the dismissal of the NRO review petition, the apex court passed three strongly worded orders based on certain undue and ungenerous presumptions and issued to the appellant the show cause notice requiring his personal appearance.