May 04, 2012
The Supreme Court opted for a least confrontational and most lawful route when it sentenced Prime Minister Syed Yusuf Raza Gilani ‘till the rising of the court’ instead of a term of up to six months in the contempt case. The country’s political circles promptly ventured to comment on this historic judgment in the light of their own postures and party stands. One group has maintained that what was the point of dragging the contempt case for six months if the contemnor was to be awarded a punishment of only 30 seconds. However, Zardari loyalists have termed the case and its verdict to be devoid of legal merit and completely political in keeping with, what they alleged, the judiciary’s tradition of treating PPP unfairly.
The Supreme Court charged, April 26, Prime Minister Syed Yusuf Raza Gilani, under Section 3 of the Contempt of Court Ordinance, 2003, for willfully disobeying the final order of the apex court in a manner that tended to bring the authority of the court and the administration of law into disrespect and disrepute. In the NRO case, the Supreme Court had instructed the Executive to write to the Swiss authorities that Pakistan never legally withdrew from its status as a civil party in the money laundering case, involving some 60 million dollars stolen from Pakistan and stashed in Swiss banks. In this judgment, the court hinted that the prime minister’s conviction was likely to trigger Article 63(1)(g) of the Constitution and disqualification as a member of the National Assembly, and, consequently, for the office of the prime minister. The consequential punishment being major punishment, the court viewed that as a mitigating factor in determining the quantum of Gilani’s punishment under the contempt law.
Prime Minister Gilani took a position in the court that he was bound by the advice of the Law Ministry which asked him not to write such a letter because it involved Asif Ali Zardari, and the President enjoyed immunity against criminal proceedings under Article 248 of the Constitution. By refusing to write the letter to the Swiss authorities for opening corruption cases, and through his public speeches and posture and stand in the court, Prime Minister Gilani might have proved his loyalty to the party leader, but, in the process, he has initiated a new tussle between the State institutions. In a tit-for-tat action, the government is now contemplating to summon the Supreme Court registrar to appear before the Parliament for contempt of parliamentary proceedings. Law Minister Farooq H. Naek has already indicated that ’contempt of parliament’ proceedings would be initiated against the Supreme Court registrar for writing ‘inappropriate and careless letter to the National Assembly speaker.’ Another action is being taken against the SC Registrar through the Public Accounts Committee. The SC has, however, clarified that sending its order in the contempt case was in keeping with a regular practice under the Supreme Court Rules, 1980 and “there is nothing improper in following this practice.”
Meanwhile, the speaker’s office has reportedly released Registrar’s letter to PPP leaders. Why has the Speaker’s office released SC Registrar’s letter before considering it is anybody’s guess. Top legal expert and Supreme Court Bar Association President Yasin Azad, former judge of the Supreme Court Justice Wajihuddin Ahmad, and National Assembly’s former speakers Gohar Ayub and Chaudhry Ameer Hussain are unanimous in their opinion that after the apex court’s categorical judgment, the speaker has no decisive role as she could not be a judge on the judgment of the Supreme Court. Justice A.R. Cornelius, one of the most respected judges of the Sub-continent, had had laid down the principle half a century ago, in his judgment titled Mr. Fazullah Qadir Ch. Vs Mr. M. Abdul Haq (PLD 1963, page 486), saying neither the National Assembly speaker nor the Chief Election Commissioner could have the jurisdiction to question the constitutionality of a court order.” This washes away the claims that NA speaker can reject the reference of disqualification of the prime minister, as made by PPP legal wizards. If the speaker opts to act in a different manner, legal minds hold, she will also have to face the contempt of the court proceedings for disobeying the order of the apex court.
In keeping with its tradition, PPP cadres are now engaged in a propaganda campaign aimed at obfuscating the facts and creating confusion about the settled principle of separation of powers, which dictates that the judiciary has the last word on the Constitution’s interpretation. The interpretation of the Constitution by the judiciary is binding on the Executive; and the prime minister or any other person does not enjoy the privilege to determine when to implement a court order in view of his personal reading of the country’s Constitution. The reaction of PPP zealots on this judgment has crossed all limits of decency. Immediately after announcement of the guilty verdict by the court, infuriated PPP workers rampaged in different cities, raised objectionable slogans, pelted stones, burnt tyres and indulged in firing from automatic weapons. In Peshawar, PPP protesters said that the judiciary had hanged their founding chairman Zulfikar Ali Bhutto on April 4, and now it had tried to remove the unanimously elected prime minister of the same party in the same month on April 26. The brandishing of arms by PPP workers has sent a loud and clear message, that they have a scant respect for the rule of law. The trend has serious implications for the already fragile law and order situation and not so good economic conditions of the country.
Meanwhile, PML-N President Mian Nawaz Sharif has vowed to use all options, within and outside the Parliament, including agitation and long march, for forcing a convicted prime minister out of his office. Nawaz Sharif said all steps being taken by the government after Supreme Court’s verdict were illegal, unconstitutional and immoral. He appealed to Gilani to immediately resign, otherwise Nawaz Sharif warned, ‘be prepared for any unpredictable situation, including every sort of demonstration within and outside the National Assembly and Senate.’
On the other hand, Altaf Hussain called PM Gilani from London, on April 27, stating that MQM stands besides Gilani in these days of crisis. Under Article 63(2) of the Constitution, the Speaker is required to refer the matter of disqualification within 30 days of it having arisen, to the Chief Election Commissioner. However, PPP’s legal eagles have the audacity to assert that the Speaker can sit in appeal over the court ruling and declare that no question about disqualification has arisen. If that happens, it might create another case for the contempt of court! In what is being termed as an attempt to politicise the court judgment, Prime Minister Gilani has himself responded by coming on the floor of the National Assembly on April 27 and refusing to step down after his conviction, saying only the Parliament can remove him from the office.
Gilani said: “How can anybody order an elected prime minister to go home? Only the speaker of the House, who is the custodian of this House, has the authority to decide. I am ready to quit if this parliament disqualifies me.” He said: “The decision regarding the Parliament will have to come in the Parliament, and ultimate authority is the Parliament and every institution derives powers from the Parliament.” He gave a twisted version of the facts and tried to merge the issue of implementing the Supreme Court NRO judgment and writing letters with that of the presidential immunity. The newly-appointed Attorney General, Irfan Qadir, has declared the court order void ab initio, illegal and unconstitutional, saying it should be ignored; while PM’s counsel Aitzaz Ahsan has said that the court had gone beyond the scope of indictment. Anyhow, the prime minister owes resignation on moral grounds because it is not appropriate for a tainted chief executive to continue in the office. If the agitation picks-up, it can further weaken the frail democracy. The situation demands that all stakeholders should tread the path very carefully to ensure that the nascent democracy is not derailed.