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Contempt Of Court – The Prima Facie
by TARIQ BUTT

What the Supreme Court had been consciously avoiding in pursuance of the policy of judicial restraint for over two years since the pronouncement of its judgment against the National Reconciliation Ordinance (NRO) on December 16, 2009 has eventually happened as it is "satisfied prima facie" that Prime Minister Yousuf Raza Gilani has committed contempt of court by not complying with its verdict specifically the direction to write letters to Swiss authorities to reopen money laundering cases against President Asif Ali Zardari.
President Asif Ali ZardariThe exceptional professional skills and eloquence of Barrister Aitzaz Ahsan, who was hired by Gilani to defend him in the show cause notice for contempt proceedings, failed to rope in seven justices sitting on a bench to drop the case against the Prime Minister. The lawyer had a broken heart on hearing their decision to charge sheet against Gilani, which, by all judicial and political permutations, was a huge development as none of the premier's predecessors had suffered such a consequence although two of them (Zulfikar Ali Bhutto and Nawaz Sharif) had faced contempt proceedings. Ahsan was to serve as a firefighter in the raging executive-judiciary confrontation but his induction too remained unproductive.
The Prime Minister's non-implementation of paragraph 178 of the lengthy NRO verdict led to the extreme step by the apex court. It says since the NRO stands declared void ab initio, therefore, any actions taken or suffered under it are also non est. in law and since the communications addressed by Malik Muhammad Qayyum (as attorney general in 2008) to various foreign fora/authorities/courts withdrawing the requests earlier made by the Pakistan government for mutual legal assistance; surrendering the status of civil party; abandoning the claims to the allegedly laundered moneys lying in foreign countries including Switzerland, have also been declared by the court to be unauthorized and illegal communications and consequently of no legal effect, therefore, it is declared that the initial requests for mutual legal assistance; securing the status of civil party and the claims lodged to the allegedly laundered moneys lying in foreign countries including Switzerland are declared never to have been withdrawn.
Therefore the federal government and other concerned authorities are ordered to take immediate steps to seek revival of the requests, claims and status. Importantly, even after the passage of more than two Prime Ministeryears, the Prime Minister firmly though sadly stood ground that he would not commit writing letters to the foreign lands for revival of cases against Zardari because of the constitutional immunity the President enjoys. Earlier, he used to project this stand through boisterous lawyers like Babar Awan. This time, it was Aitzaz Ahsan, who hammered this point. So, the induction of this brilliant man brought out not even a slight change in the government stance on writing letters. This means the government policy has remained the same regardless of the consequences that Gilani is facing. Reinforcing this impression was the steadfast refusal of Aitzaz Ahsan to discuss the presidential exemption from prosecution before the bench despite the fact that judges persistently asked him to speak on this point. In response, he always insisted that he was representing the Prime Minister in the contempt case and was not concerned with the immunity issue. However, it is a hard fact that the contempt proceedings were opened against Gilani for not sending communications to Swiss authorities on the premise that President Zardari has immunity from prosecution. Thus, both the issues were interlinked. Aitzaz Ahsan perfectly followed the old government policy, which was in force since the NRO was challenged in the Supreme Court, not to raise the issue of presidential protection before it otherwise a decision on it would be handed down. The government did not want the court to adjudicate upon this point because it feared that the immunity might be interpreted, leading to a direction to reopen the cases against Zardari in and out of Pakistan. However, the lawyer kept insisting Aitzaz Ahsanthat even if the government writes letters to Switzerland, the cases would not be revived and thus the court would be embarrassed. Reacting to this, one of the judges had remarked that they did not want to be saved from embarrassment abroad. "Let's be embarrassed," they finally told Aitzaz Ahsan, who said he did not want this eventuality for the justices in or out of Pakistan.
Aitzaz Ahsan earned unprecedented fame, honour and prestige because of his heroic role in the movement for restoration of the deposed judges. He drove the then deposed Chief Justice Iftikhar Muhammad Chaudhry all over Pakistan as part of the matchless struggle he spearheaded as a powerful and shrewd public campaigner. His movement bore fruits and he thus made immense contribution in the return of the independent judiciary. However, when he took up the present assignment, several eyebrows were raised over his role. Even some of his fans and lovers did not approve it. But they ignored the fact that Aitzaz Ahsan is associated with the Pakistan People's Party (PPP) although he has been estranged with it for a long time. Finally, President Zardari accorded him recognition and respect, which made the lawyer agree to represent Gilani.
The way the contempt case is proceeding, it can be safely assumed that it may not take a long time to mature, passing through all the legal and constitutional stages. The judges have waited for a long time, showing unparalleled restraint and are in no mood to follow this policy any more. However, prominent lawyer Iqbal Haider did not agree and says no serious threat or adverse orders are apprehended either against the President or the Prime Minister in the contempt proceedings. The premier has the right to file at least four appeals under the Constitution and laws including the Supreme Court rules, and equal number of review petitions, if felt aggrieved by any court order. The disposal of the appeals and review petitions might take several months, if not years, depending upon the treatment the apex court might give. Thereby, the critical month of March (because of Senate election and appointment of the new spymaster or extension of the incumbent one) and mostly likely many more months thereafter will pass without any adverse order in the contempt proceedings, he believes.
In fact, earlier a five-member bench led by Justice Asif Saeed Khosa, which had heard the NRO non-implementation case and referred it to the larger bench (the present one) had clearly listed the option of contempt proceedings, among six choices. Option number two had stated that proceedings may be initiated against the Prime Minister, and federal law minister and secretary for committing contempt of court by persistently, obstinately and contumaciously resisting, failing or refusing to implement or execute in full the directions issued by this court in the NRO. It may not be lost sight of that, apart from the other consequences, by virtue of the provisions of clauses (g) and (h) of Article 63(1) read with Article 113 of the Constitution a possible conviction on such a charge may entail a disqualification from being elected or chosen as and from being a member of Parliament or a provincial assembly for at least a period of five years. This order was delivered not very long time ago. It was an unambiguous warning to the Prime Minister to write letters to the foreign countries or face the ultimate outcome.
"I would respect th I was handcuffed and sent to jail in the contempt of court case," Gilani said the other day. But his actions directly run counter to his public declarations and commitments. He repeatedly indulges in rhetoric by saying that he would respect judicial verdicts but when it comes to complying with paragraph 178 of the NRO decision, he is always poised to ignore its implementation. However, this slogan will hardly work now in view of the pace of the contempt proceedings against him. If he remained stuck to his im. If he remained stuck to his stand of not writing letters to the foreign lands, his and his PPP's desire to become a political martyr would materialize.


 
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