The main point in the appeal will be that "one of the charges in the judgement was not mentioned when Gilani was indicted in February," the sources said. In the chargesheet, it was not mentioned that Gilani had ridiculed the apex court`s December 2009 judgement striking down a graft amnesty that had benefited President Asif Ali Zardari and over 8,000 others.
But the court, in its judgement convicting the Premier on April 26, mentioned the word "ridicule". The sources said Ahsan would also object to different parts of the court`s detailed judgement and challenge an additional note written by Justice Asif Khosa, a member of the seven-judge bench that convicted Gilani. Gilani was convicted for contempt for refusing to act on orders to revive graft cases in Switzerland against Zardari.
Gilani and his government have refused to act on the court`s orders, saying the President enjoys complete immunity in Pakistan and abroad. The Premier has rejected calls from the opposition to resign, saying only the Speaker of the National Assembly or lower house of Parliament can disqualify him. A section of lawyers says that the Speaker will reject any proposal to disqualify the Premier.
Law Minister Farooq Naek has already said that Speaker Fehmida Mirza will decide Gilani`s future and that the matter will be closed if she rules that the Premier cannot be disqualified. Legal experts said Article 63(2) of the Constitution gives the power to the Speaker to decide the issue. "If the Speaker declares that the Prime Minister is qualified to hold his office, his conviction will be automatically suspended," an expert said.
In such an event, the Constitution is silent on whether the Speaker`s ruling can be challenged in court. However, leading legal expert Salman Akram Raja contended that if the Speaker decides in favour of Gilani, her decision can be challenged in the apex court as there is no specific constitutional provision to deal with such a possibility.
If the government files an appeal against the Supreme Court`s judgement, the Speaker`s office could hold any move against the premier till the appeal is decided in court, he said. The Islamabad High Court has already rejected a petition seeking the disqualification of the Premier following his conviction. Some experts further said that the Election Commission could not bypass the Speaker and take up the disqualification issue.
They pointed out that Article 63(2) of the Constitution states: "If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker... shall, unless he decides that no such question has arisen, refer the question to the Election Commission within 30 days and should he fail to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission." It is expected that a nine-judge bench of the Supreme Court will take up Gilani`s appeal. Three judges have already refused to hear any appeal.