Barrister Aitzaz Ahsan, counsel for the Prime Minister, on Thursday contended before the Supreme Court that the initiation of proceedings by the same bench in the contempt issue led to its disqualification under Article 10A, which envisaged right to due process and fair trial.
Appearing before the seven-member bench headed by Justice Nasir ul Mulk, Barrister Aitzaz resumed his arguments by raising objection to the proceedings by the same bench which had issued the notice.
He said the process adopted by the bench in the contempt issue was violative of Article 10A due to exigency of due process and fair trial.
He said irrespective of any submission by the counsel showing confidence or lack of confidence in a judge, here the issue of disqualification was involved.
He said it was now requirement under the constitutional provision of Article 10A that a judge who had issued a notice, should not sit in trial.
"Now Article 10A says, if a complainant sits as judge, you cannot get a fair trial," he added.
The confidence of the party had nothing to do with the bench or the judge and might not raise the issue of recusal but any judge, who had inquired into the matter previously in pre-trial proceedings, or selected one out of several respondents for trial particularly in proceedings initiated by the court itself and the judge who had formulated the show cause notice and charges, should not sit in the proceedings, he added.
Responding a bench's query, he said that the initiation of contempt by judges in nature was like that of a complaint as the pre-trial proceedings could be conducted in suo motu but the same bench could not assume the role of a trial court in a criminal matter.
He maintained that with mere speculations and queries about what would happen in the trial, the court had given pre-opinions adverse to the accused.
Justice Ejaz Afzal told the counsel that if his contentions were accepted, those would create a difficult situation for the lawyers and
litigants. Referring to the Contempt of Court Ordinance, the counsel said
these were based upon laws which were subordinate to constitutional provisions.
He said, "When a constitutional provision steps in, it blocks laws. The fundamental rights are not controlled by laws."
Replying to Justice Sarmad Jalal Osmani's query, he said that Article 10A was indeed restricting and fettering the court. Article 9 could be controlled by the law but not the Article 10A which was introduced in the Constitution with deliberate purpose to ensure right to due process and fair trial. Aitzaz agreed with Justice Nasir ul Mulk's query that the same bench stood disqualified and the issue should be referred to some other bench.
He said, "The Constitution says you should not sit in the case."

It was the wisdom of Constitution makers that "Justice must not only be done, it must be seen to be done", he added.
Justice Ejaz Afzal Khan remarked that if the issue of bias was taken to such an extent, then the larger bench could also become biased.
He observed that in the contempt issue, the proceedings were initiated on the tentative findings.
Aitzaz maintained that previously, the trial was under the laws but now it was guaranteed by the Constitution. Citing Shahid Nabi Malik's case of 1997, he said, "It is imprisonment of past if judges issued notices and sit in trials." Justice Asif Saeed Khan Khosa said that there was a difference between a judge and a complainant.
He questioned how could Article 204 be reconciled with Article 10A which gave exclusive rights to the court. Aitzaz replied that the rights of the court were regulated under laws and the Constitution did not give arbitrary powers to anyone including this court.
He said the court had to ignore laws which were contrary to constitutional provisions.
About Justice Osmani's question whether the Contempt of Court Ordinance was violative of the Constitution, the counsel replied that the Constitution was supreme and the judges had taken oath to protect it.
"When rights of the citizens are increased, certainly the courts are burdened," he added.
He said the Article had graduated the legal right and transformed it into a constitutional and fundamental right.

"The fundamental rights cannot be surrendered. It is no longer a matter of choice but of strict application. The principle of stopple will not apply and the contempt of court rules are no exception," he stressed.
Further hearing was adjourned till March 26.