SC sends Gillani packing
June 22, 2012
The Supreme Court of Pakistan on Tuesday declared National Assembly Speaker’s ruling and arguments void in the prime minister’s contempt of court case, and disqualified Syed Yousaf Raza Gillani, directing the President to take steps to ensure continuation of the democratic process through parliamentry system.
The apex court also directed the chief election commissioner to issue notification of disqualification of Syed Yousaf Raza Gillani from being a member of the Majlis-e-Shoora (Parliament) effective from April 26, 2012.
Earlier, the short order of the seven members bench headed by Justice Nasir-ul-Mulk convicted Mr. Gillani on April 26, 2012 under Section 5 of Contempt of Court Ordinance, 2003 (Ordinance V of 2003), with imprisonment till the rising of the Court.
Meanwhile, on April 30, 2012, a reference under clause (2) of Article 63 was dispatched to the Speaker’s office by Moulvi Iqbal Haider, praying for referring the question of disqualification to the Election Commission, as Yousaf Raza Gillani had become disqualified from being a member of the National Assembly due to his conviction by the Supreme Court of Pakistan under Contempt of Court Law.
The speaker, after having gone through the said reference application, the Short Order and detailed judgment of the Supreme Court, the relevant provisions of the Constitution and the Contempt of Court Ordinance, 2003, had ruled that no specific charge regarding the propagation of any opinion or acting in any manner against the independence of the judiciary or defaming or ridiculing the judiciary as contemplated under Article 63 (1) (g) has been framed by the apex court in its detailed judgment.
Quoting the case law on the subject while referring to Kanwar Intizar Muhammad Khan VS Federation of Pakistan and others reported in 1995 MLD Lahore 1903, she stated that the Speaker, while examining a reference under Article 63 (2) of the Constitution, is not supposed to act merely as post office.
The Speaker had applied her own mind judiciously after fully taking into consideration the relevant provisions on the subject and then decided whether any question in the nature of disqualification has arisen, which may justify the making of reference to the Chief Election Commissioner.
In the past, former MNA Makhdoom Javed Hashmi on 26.08.2004 had filed three separate nomination papers as candidate for ascertainment of the Leader of the House. The Government side raised objection that Mr. Hashmi being convicted is no more Member of National Assembly as he has become disqualified under Article 63 (1) (g) for propagating and defaming the Armed Forces of Pakistan, therefore, he cannot be a candidate for ascertainment of the Leader of the House and his nomination papers be rejected.
However the former speaker of the National Assembly over ruled the objection and accepted the nomination papers of Mr. Hashmi on 26.08.2004. Accordingly, the National Assembly Secretariat made all the arrangements for ascertainment of the Leader of the House for 27.8.2004 between two contesting candidates i.e. Mr. Shoukat Aziz and Makhdoom Javed Hashmi.
In the light of what has been stated above, the Speaker was of the view that the charges against Syed Yousaf Raza Gillani were not relatable to the grounds mentioned in paragraph (g) or (h) of clause (1) of Article 63, therefore, no question of disqualification arises under clause (2) of Article 63 of the Constitution.
The letters of the Assistant Registrar (IMP) for Registrar of the Supreme Court stood answered accordingly. The petition of Moulvi Iqbal Haider, Advocate, being without any merit, was not regarded maintainable and accordingly rejected.
Furthermore, the Speaker’s ruling in the contempt of court case was challenged by eight petitioners praying that Mr. Gillani had been convicted by the Court and was no more eligible to keep his office and cabinet functioning. The petitioners pleaded that the Speaker overruled the judgment of the court and gave her own ruling, whereas the matter was supposed to be conveyed to the Election Commission of Pakistan.
During the first hearing of speaker’s ruling case, the counsel for Mr. Gillani, Aitezaz Ahsan requested the court for more time and formation of a larger bench to hear the ‘case of prime importance’. The Attorney General (AG) on the behalf of federation also pleaded accordingly.
In an immediate response, the court had rejected their appeals and continued the hearing under a three-member bench headed by Chief Justice (CJ) Iftikhar Muhammad Chaudhry. The other justices included Justice Jawad S. Khawaja and Justice Khilji Arif Hussain.
After the completion of petitioner’s arguments, Aitezaz Ahsan argued that the court could not declare a member of the assembly as disqualified. He challenged the hearing of the case by the Supreme Court, arguing that neither the provincial government became a party to it, nor was anyone's fundamental right affected. “The court cannot go beyond its jurisdiction; the petitioners should have approached the high court first.”
In reply, the Chief Justice remarked how the verdict of a seven-member Supreme Court bench could be taken up by the high court. 'The petitioners have argued that the person in question (the prime minister) is not only an MNA, but a representative of 180 million people.' Chief Justice Chaudhry also asked Aitzaz Ahsan to quote a similar example.
Meanwhile, Attorney General Irfan Qadir interrupted the proceedings and said if the seven-member bench rules against the wishes of the people, it is also unconstitutional. The bench stopped the AG on that point and instructed him to speak on his turn.
Aitzaz, while continuing his arguments, referred to the case of Gen Musharaf's election in uniform. The CJ asked him why he was quoting this example, while being a flag-bearer of democracy and constitution. This is a case about which no one wants to talk about, the CJ added.
The chief justice asked him that instead of relying on such verdicts, he should have cited the judgments in Nusrat Bhutto, Dosso and Zafar Ali Shah cases. “I don’t know if it is a coincidence or the pressure of circumstances,” Justice Iftikhar Chaudhry said while referring to Aitzaz’ arguments.
However, the counsel said he was not working under any pressure. Clarifying the government’s position over non-filing of appeal against the verdict in the contempt case, Aitzaz said the seven-member bench did not disqualify the premier. Aitzaz said the prime minister enjoyed the same fundamental rights as any other citizen, adding that the court had the authority to safeguard the rights and provide justice to the people.
The counsel said the disqualification could be materialised only when one ridiculed the judiciary, but Gilani did not do so.
Chief Justice Iftikhar Chaudhry said the Speaker is a respectable person; she is the custodian of the House, but some of her actions are different than Parliament's functions. There are many cases that allow review of Speaker's ruling, he added.
Aitzaz noted that the oath of the Chief Election Commissioner (CEC) does not include the condition that he would defend and protect the Constitution. He (Prime Minister Gilani) was not convicted of defaming or ridiculing the judiciary, so no question of disqualification arises, Aitzaz said.
Barrister Aitzaz Ahsan concluded his arguments in the speaker ruling case on Monday, arguing that the Speaker’s ruling was in accordance with the parliamentary ethics and the verdict in the contempt of court case did not refer to the disqualification of Yousaf Raza Gilani. He further said the Supreme Court did not have the authority to disqualify any parliamentarian, including the premier. “The matter should be forwarded to the Election Commission of Pakistan (ECP) as it does not fall in the jurisdiction of the court under Article 184 (3) of the Constitution,” Aitzaz urged the court.
Munir Paracha, the counsel for the Federation, also pointed out that the petitions are not maintainable. 'Under 18th Amendment, the Parliament has increased the powers of the Speaker. Under Article 63, the disqualification of a member is linked to the charge of defaming and ridiculing the judiciary.'
The prime minister was charged for not following the court’s orders, Paracha added.
In his arguments, Attorney General Irfan Qadir said the Supreme Court could not intervene in the authority of the National Assembly Speaker and Election Commission, or, for that matter, disqualify a parliamentarian. He interrupted the proceedings by supporting Aitzaz’s arguments and said the bench lacked the public support as it acted in an unconstitutional manner. He said his arguments would go in vain as the judges had already made up their minds.
The attorney general further said no question whatsoever had arisen regarding the disqualification of prime minister. He said the disqualification of the prime minister was not the issue before the bench, as it was seized with the matter whether the premier had committed contempt of court or not and that Gilani’s conviction was based on groundless charges. The court could not disqualify the PM on the basis that he refused to write letter to Geneva to reopen case against the NRO beneficiaries, he added.
“Prime Minister Gilani has great respect for the judiciary and therefore he appeared before the bench to preserve the dignity and honour of the institution,” Irfan maintained.
However, the chief justice corrected him, saying it is not the matter of the institution but the Constitution. The chief law officer of the country argued that the seven-member bench’s verdict was in violation of Article 248 (1&2). However, the chief justice asked the attorney general to confine himself to the case and not to argue irrelevant issues, which the respondents had not pleaded. “The attorney general in ignorance said: I don’t know myself what I have to argue. I wanted to say something but you keep on interrupting me,” Justice Jawwad S Khawaja recalled the AG’s statement.
The attorney general also pleaded that there was no contempt of court law in the country and said there were many contempt cases pending before the court, but the bench was hearing Gillani’s case on an extremely fast pace. When Ifran talked about the seven-member bench’s judgment, especially the poetry part, the chief justice stopped him and said: “Now you are crossing your limit,” and directed him not to do so.
But the attorney general said Gilani had been ridiculed through the poetry part. The chief justice reminded him that they were hearing the case related to the speaker’s ruling and not the judgment. He told the attorney general: “You have invited trouble for yourself as you had said ‘the judges are biased’,” adding that they had noted the remarks.
Meanwhile, the attorney general submitted a written reply from Speaker Fehmida Mirza, who stated that the court’s verdict did not order sending a reference directly to the ECP. Moreover, she had the constitutional authority to decide over the disqualification of a member of the assembly. The speaker stated that in accordance with the Constitution, she had issued a legal ruling and it was not fair to say that the ruling had been delayed. The reply said Maulvi Iqbal Haider’s reference was not based on merit which was why it had been rejected.
Fehmida contended that after the 18th Amendment, she had an absolute power to decide the matter related to the disqualification or qualification of any parliamentarian. She stated that her ruling on any matter could not be challenged in the court.
“The office of the Speaker demands the highest respect for other organs of the state and functionaries of the government,” she maintained. Fehmida raised objections to the petitions filed by PTI Chairman Imran Khan, PML-N leader Khawaja Asif and others, saying no fundamental rights of the petitioners were infringed due to her ruling; therefore, all the petitions should be dismissed.
However, throwing her arguments aside, the apex court on Tuesday sent Gillani packing by declaring him disqualified.