The Argument


Its not the news that sells, its speculation on the news that does. But its never a good omen, when subjudice legal cases become subject to speculation, its almost as heinous as gambling, perhaps even more.

Talk shows and talking head pundits are all full of many speculations, headlines full of odd connotations. All making sure that facts of the situation is buried deep inside a pile of made up sensationalism that sells.

Pakistan’s Supreme Court is looking at many important cases, important as they have constitutional implications. One case that gets most media coverage, and is subject to most speculation these days is contempt of court case, where the Prime Minister of Pakistan is indicted to have committed contempt of court.

Yesterday, at a hearing of the contempt case, the advocate for the Prime Minister, Barrister Aitzaz Ahsan, argued that bench should rescue itself from making a decision on the contempt case. His arguments were based on a legal principle and provisions of the constitution.

The said legal principle is “Not only must Justice be done; it must also be seen to be done” – What this states that where a decision has been made, the decision must be so just to all parties, that there can be no trace of even appearance of judicial bias against any of the affected parties.

Implying above, Barrister Ahsan stated that Article 10-A of the constitution states “in any criminal charge against him a person shall be entitled to a fair trial and due process.”

One of the basic requirements of a due process is that all parties should be provided a right of full hearing before a judgement is passed against them.

Recalling an earlier judgement made by the same bench in January, where the court had provided six options, Barrister Ahsan argued, the court had given a judgement against his client. The evidentiary hearing was latter provided to the Prime Minister. So effectively, court had made its mind up, even before hearing the Prime Minister. Barrister Ahsan also alluded to the language used towards the Prime Minister in the decision, where he was said to be ‘harping’ on about immunity and that Prime Minister has already broken his oath. He stated that this did not give him confidence that court had not made its mind up, even before hearing the Prime Minister.

The judges were hard pressed, and reassured the Barrister that they would ensure that justice is done. Going back to the legal principle, it is not that whether court are or are not actually bias. Its that they must not be ‘seen’ to be bias.

It may be recalled that earlier, Barrister Ahsan had sought an intra-court appeal to 8 different justices, against the earlier decision. That appeal was rejected, and the decision of the 7 justices was upheld. In that, by raising this issue, Barrister has created a predicament for the court. Effectively, Barrister Ahsan has argued that by giving a decision before hearing the Prime Minister, and that decision being upheld by the latter bench, means that whole of Supreme Court has decided on the matter without hearing the Prime Minister. They have already made up their mind, that the Prime Minister was in contempt. Upholding their earlier decision would only strengthen this notion.

The substantive argument in relation to contempt proceedings have remained the same by the Prime Minister’s Lawyer. That 1. President enjoys immunity from any international proceedings due to customary international law and that 2. even if 1 is not correct, Prime Minister was advised this is the case by his legal advisers, thus Prime Minister is not at fault.

It must be recalled that to be guilty of contempt of court, Prime Minister must be ‘malicious’ in his actions, actions taken on based of advise (even if bad advise) and done with good faith, would not constitute malicious.





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