Politics
 
Supreme Court Vs. Mirza Court
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June 01, 2012
The verdict of the Supreme Court of Pakistan is as clear as the day light. The Court judgment states, a couple of times, that the prime minister has ridiculed the judiciary, declaring that the very aspect of his conviction brings into play Article 63(1)(g) of the Constitution for his disqualification. However, National Assembly Speaker Dr. Fehmida Mirza decided not to forward the disqualification reference against Prime Minister Syed Yusuf Raza Gilani to the Election Commission, maintaining that in the light of the judgment of the Supreme Court, the question of the PM’s disqualification does not arise.

The Speaker has ruled: “I am of the view that the charges against Yusuf Raza Gilani are not relatable to the grounds mentioned in paragraph (g) or (h) of Clause (I) of Article 63; therefore, no question of disqualification of PM Gilani from being a member (of the parliament) arises under Clause (2) of Article 63.” Dr. Mirza, in keeping with the PPP strategy, seems to have been swayed by parochial loyalties rather than upholding the democratic norms of neutrality expected of a speaker and adherence to law expected of a lawmaker.

The Speaker’s administrative order is tantamount to disobedience of the country’s apex court and such disobedience is contempt of court, say legal experts of high standing.

According to S.M. Zafar, the Supreme Court has constitutionally set grounds for disqualification and left no room for any ambiguity so the other constitutional office may act in accordance with the Constitution. Ikram Chaudhry has declared Dr. Fehmida Mirza’s ruling as a political and not constitutional ruling, adding it would be the Supreme Court which will finally decide the case. Justice (Retd.) Tariq Mehmood has termed the Speaker’s ruling as badly argued and full of non-relevant case laws. He said the ruling of the Speaker could have been equipped with reasonable logic, like the right of appeal available to the PM, but what has been issued, is a baseless document.

Of course, it would have been better, if the speaker had forwarded the judgment of the Supreme Court to the Election Commission, and the Prime Minister had filed an appeal before the Supreme Court against his conviction. The argument that after the Speaker’s ruling there was no need to file a review petition, sounds hallow because in that case, if Mr. Gilani decided to contest the next election, his rival candidate could challenge Gilani’s candidacy on the grounds of the former’s conviction. By openly challenging the judgment of the apex court, Dr. Fehmida Mirza has also defied the principle laid down half a century ago by the most revered judge in this part of the world, Justice A.R. Cornelius, who had held that neither the Speaker National Assembly nor the Chief Election Commissioner could have the jurisdiction to adjudicate a court order, as pointed out by us in the article “Obfuscating Facts” – Pulse May 4 – 10, 2012.

Independent legal experts also uphold this view. According to them, the Speaker’s order is unconstitutional as Speaker National Assembly has no powers regarding disqualification of any member after a judgment of the Supreme Court. This power solely rests with the Election Commission and the Speaker should have sent the judgment of the Supreme Court to the Commission and let it decide the case constitutionally. Dr. Mirza’s argument that “Speaker will not act as post office and will apply her mind on a reference” is also irrelevant in the opinion of a majority of independent legal and constitutional experts, who say that the Speaker can apply mind if a reference is moved in the House by some member raising questions of disqualification of another member, but the Speaker cannot apply mind on the judgment of the Supreme Court. In such cases, the Election Commission is the final constitutional authority to decide whether a member is disqualified or not in the light of the judgment of the court.

The nation expected a constitutional decision from the Speaker, but Dr. Fehmida Mirza has delivered one loaded with political loyalties and thereby triggered a fresh constitutional, legal and political controversy with prime minister Gilani terming the decision in his favour as victory of the democracy, and Leader of the Opposition Ch. Nisar Ali Khan describing it as a ruling by ‘PPP activist’ and misuse of authority to save the skin of the PM.

The ruling coalition (PPP and its allies) believes that pro-Gilani ruling of the Speaker has averted derailment of the democratic process, but others claim it has deepened the crisis further. Legal opinion is also divided with majority believing that the Election Commission is not bound by the ruling of the Speaker and it can pronounce its own verdict. With her decision likely to be challenged in a court of law (though PPP Jiyalas are trying their best to confuse it with ‘Speaker’s ruling’ that is given if a reference is moved on the floor of the House by some member raising questions of disqualification of another member, and thereby maintaining that it cannot be challenged), Dr. Mirza may have bought more time for the prime minister, but she had only earned bad name for herself. She may be judged by the historians as a partisan speaker!

Prime minister Gilani’s counsel Aitzaz Ahsan informed the media persons in Lahore on May 26 that PPP had decided not to file an appeal against the conviction of the prime minister in the contempt case as it could be detrimental (to the PM). However, only a few days earlier, Aitzaz had said that the appeal was ready and the decision to file it would be made by the PPP. Aitzaz said that he has worked hard to file an appeal against the prime minister’s conviction, adding that he would be disappointed if the government decided against filing the appeal. He said the appeal contains 146 objections on the court order. However, strong fears that an appellate bench of the Supreme Court might enhance Prime Minister Gilani’s sentence on the contempt charge and pass a categorical disqualification order has forced the government to back off from filing an appeal challenging the order of the seven-member bench.

As expected, PML-N and PTI filed separate writ petitions in the Supreme Court, on May 28, against National Assembly Speaker’s ruling regarding Prime Minister Gilani’s conviction in the contempt of court case. Addressing a mammoth rally in Rawalpindi on May 27, PTI Chairman Imran Khan warned that if the government did not comply with the Supreme Court judgment, PTI would stage an unprecedented march on Islamabad. Lawyers at a convention organised by the District Bar Association, Lahore, on May 27, demanded the resignation of Prime Minister Gilani due to his conviction in the contempt of court case, asking the prime minister to resign or face a long march. Lawyers from across the Punjab attended the convention held at Aiwan-e-Adl in Lahore.

Meanwhile, it has been noticed that the tendency to defy the orders of the court is spreading like a wild fire or contagious disease. Not only the prime minister has defied a court order, there are also over two dozen federal ministries, government departments and autonomous bodies who are currently facing about 300 contempt petitions in the Islamabad High Court, according to daily Dawn (May 15). CDA alone is facing five dozen contempt of court petitions, whereas Islamabad administration is facing 15, Interior Ministry 12, Ministry of Housing and Works 11, Ministry of Defence and its allied departments and the Federal Board of Revenue 10 each. Other contemnor included National Assembly Secretariat, Prime Minister’s Secretariat, Cabinet Division, Establishment Division, Capital Administration and Development Division, Ministry of Religious Affairs, Ministry of Information, Petroleum Ministry, Ministry of Law and Justice, Statistics Division, Security and Exchange Commission of Pakistan, Federal Directorate of Education, Islamabad Police, Institute of Space Technology, OGDCL, NADRA, NAB and Zarai Taraqiati Bank.


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