Mohammad Malick The writer is editor The News, Islamabad.

The calendar reads Friday the 10th, but in essence today is more like the feared Jason's Friday the 13th. Surely, there won't be any instant casualties but the day's events are likely to kickstart a process that may ultimately claim the scalp of Prime Minister Gilani. With the PM's legal counsel Aitzaz Ahsan scheduled to wrap up his arguments in the prime minister's intra-court appeal against impending contempt charges by a smaller supreme court bench, the eight-member larger bench is expected to hand down a short order that will surely cast a long political shadow. And judging from the quality of Aitzaz's arguments and the observations of the judges, the judgment may not exactly be to the prime minister's liking.
Yesterday was clearly not one of the best Thursdays in the life of my brilliant friend Aitzaz Ahsan — more a classic example of a good lawyer stuck with a bad case. Barrister Aitzaz was on his feet for almost seven hours but one could easily see the case slowly and agonisingly slipping through his fingers. As is the judicial norm in proceedings involving a top lawyer in a big case, the court praised him for his brilliant presentation but in all sincerity it was a half-hearted attempt at best, especially by Aitzaz's standards. Knowing Aitzaz, his best only comes out when he is personally convinced about the merits of a case and clearly that chemistry wasn't in evidence.
So what next?
There wasn't anything new that Aitzaz brought up before the larger bench to make us expect an outcome different than that of his pleadings before the smaller bench. He again refused to venture onto the hallowed subject of presidential immunity and plainly refused to write the letter even at this stage. So with nothing fresh on the menu, why expect a new outcome? If "Insanity is doing the same thing over and over again and expecting different results," then there is some ground to believe that both Aitzaz and the court suffer such an ailment.
In a welcome development however, the larger bench headed by Chief Justice Iftikhar Chaudry has been giving a patient hearing to Aitzaz who, in his pleadings, had complained of having being cut short in his tracks by the smaller Justice Amirul Mulk-led bench. It is of critical import that this bench must, both in appearance and in intent, allow Aitzaz and his client to have their full say. It must allow Aitzaz to exhaust his arguments and then every argument of his must be addressed and countered by the court wherever it may choose to shoot it down.
In a legal case of this nature, pregnant with immense political consequences, it is imperative for the court to emerge absolutely neutral, clinically clean in professional behaviour, and painfully honest. Anything less will allow Gilani to secure what he desperately seeks: political martyrdom.
The people know that the prime minister has deliberately refused to implement the court's NRO verdict for over two years and by now they must know that he will get his due not because of some judicial biases but purely on the basis of points of law.
In the past, senseless actions by various military dictators have sired a number of political martyrs; it's now time for the court to break the mould by acting sensibly and patiently. No more political martyrs, please.
Based on the high probability of Aitzaz losing out in this appeal, the matter shall be referred back to the seven-member bench for formally charging the prime minister on Feb 13, to be followed by the holding of a proper trial. And if background information and observations are even half as credible, it will be one heck of a rocky ride ending with Gilani landing in the judicial marshes.
The prime minister is expected to be found guilty of contempt and sentenced and herein lies another legal conundrum: that of a presidential pardon. Contrary to the common perception that incarceration was never a problem for the prime minister as he would be immediately pardoned by the president, the reality may be entirely different. According to someone in the judging capacity, the power to pardon granted to the president under Article 45 is not a discretionary power and can only be exercised upon the advice rendered by the prime minister. "What would be the moral propriety and the legality of a convict prime minister recommending his own sentence remission has yet to be seen, but prima facie it would not be recognised by the court as it is tantamount to a guilty convict deciding his own terms of sentence," goes the legal argument.
Therefore, in the likely event of the prime minister being handed a guilty verdict along with a prison term, the issue of his pardon on his own recommendation will indeed spawn a new and interesting legal debate.
And interesting it will be because there is already talk of the need to forge a judicial consensus on the ultimate verdict against the prime minister, whatever it may be. In case it's a guilty verdict, it still remains to be decided whether it will be a token term of sentenced-till-the-rising-of-the-court (which would be politically convenient both for the court and all stakeholders) or a more meaningful one spread over a few months. Apparently the mood is swinging in favour of a tougher term. Not that the PM would be that scared; after all, he has already served five years. So what are a few more months between friends?
The judges are also seized with another interesting quandary pertaining to the government's inexplicable refusal to shoot off a letter as ordained in the NRO verdict. In a detailed analysis, former Attorney General Anwar Mansoor had summarised that Swiss authorities had ended the cases against Mohtarma Benazir Bhutto and Zardari not on the basis of the withdrawal letter sent by Justice Qayyum but for the want of evidence. In that summary, he has made a detailed analysis based on Swiss findings and laws, giving rise to the question: why would the government rather sacrifice a willing martyr than write the darned letter? According to someone in the know, it's a $28 million question, spread over two traceable transactions. Maybe true or false, but clearly there is a reason that falls outside the parameters of legal arguments.
Justice Saqib Nisar is one of the sharpest legal minds on the Supreme Court bench. Never given to rhetorical musings in the courtroom, his probing questions are extremely precise and his words ever so measured.
He is always the man to watch because his observations tend to leave an impact on the future countenance of the case in question. In a telling exchange with Aitzaz he nailed the matter when he told Aitzaz that in a contempt case the past, present and future actions of the accused were all relevant. He asked Aitzaz whether the PM – if given a chance – was willing to undo his past mistake based on 'wrong legal advice' (past action) and would now write the letter (present action) after being told by the Supreme Court that this was the only right course of action and thus avoid a guilty conviction (future prospect).
As expected Aitzaz refused to commit to obeying the court and for all practical purpose, the conviction die appears to have been cast.
Email: mohammad.

These are our most popular posts: who was the lawyer martyr of england