Beyond the Rising of the Court
By Dr Mohammad Taqi
Florida
When these lines appear in print, the Supreme Court of Pakistan (SC) would likely have issued its detailed judgment in the contempt proceedings against the Prime Minister Yousaf Raza Gilani regarding, what the court called, his noncompliance with its order dated January 16, 2012. The august court’s short order dated April 26, 2012 did stir up a storm though. Sections of the media and the political opposition are calling for political blood. They want Mr Gilani gone instantly.
Frankly, Mr Gilani’s February 11, 2012 interview with Al Jazeera television had already stoked such fires where he, rather inarticulately, had stated that if convicted he would cease to be a member of parliament. Now Mr Gilani is no Winston Churchill and he should have been advised by his illustrious counsel, Barrister Aitzaz Ahsan to plead the Fifth to such questions. Fortunately for the prime minister, the court’s two-part short order did not do what he had assumed in his gaffe. The order states:
“ 1. For the reasons to be recorded later, the accused Syed Yousaf Raza Gilani, Prime Minister of Pakistan/Chief Executive of the federation, is found guilty of and convicted for contempt of court, under Article 204 (2) of the Constitution of the Islamic Republic of Pakistan, 1973, read with Section 3 of the Contempt of Court Ordinance (Ordinance 5 of 2003) for willful flouting, disregard and disobedience of this court’s direction contained in paragraph number 178 of the judgment delivered in the case of Dr Mubashir Hasan versus the Federation of Pakistan (PLD 2010 SC 265). After our satisfaction that the contempt committed by him is substantially detrimental to the administration of justice and tends to bring this court and the judiciary of this country into ridicule.
“2. As regards the sentence to be passed against the convict, we note that the findings and the conviction for contempt of court recorded above are likely to entail some serious consequences in terms of Article 63 (1) (g) of the Constitution which may be treated as mitigating factors towards the sentence to be passed against him. He is, therefore, punished under Article 5 of the contempt of court ordinance (ordinance 5 of 2003) with imprisonment till the rising of the court today.”
While the media and the opposition leaders found plenty to go to town on, it seems that despite having taken the executive head on, the court has still shown considerable restraint. Beyond sentencing the prime minister with the token — though not trivial — imprisonment for 30 some seconds, the SC appears to have left the rest to the constitutional and perhaps political processes. The court has clearly stopped short of triggering, or ordering to trigger, the operation of Article 63 (1) (g) against Mr Gilani, which could have immediately disqualified him from the National Assembly membership and, subsequently, from the premiership. In other words, Mr Gilani was sentenced exactly for what the above order says, i.e. until the rising of the court — nothing more and nothing less. The much-awaited detailed judgment is supposed to spell out the reasons that compelled the seven-member bench to arrive at this crucial decision: it cannot increase, amend or alter what they have already pronounced. The detailed judgment shall not go beyond the four corners of the short order.
I might have to eat my hat tomorrow but the matter will end up with the Speaker of the National Assembly for onward referral, and if she deems appropriate, to the Election Commission. The prime minister and the Pakistan People’s Party appear set to fight out the matter through an intra-court appeal, in the court of public opinion and by energizing the party base. The political opposition, which really means the two Punjab-based parties, i.e. Mian Nawaz Sharif’s Pakistan Muslim League and Imran Khan’s Pakistan Tehreek-e-Insaaf, though desperate to oust the incumbents, is bitterly divided on the strategy. With three out of four provinces not much interested in kicking the ruling coalition out, the summer starting and less than 90 days to the Ramadan fasting, a meaningful street agitation may fizzle out before it even starts.
In the interim, several petitions have been filed with the superior courts asking them to directly adjudicate on the question of Mr Gilani’s disqualification. But a cut-and-dried decision should hardly be expected given the restraint shown in the contempt case. Even though the SC took serious umbrage at Mr Gilani not writing, on its directive, to the Swiss authorities to reopen the alleged graft cases against President Asif Zardari, it never ventured to adjudicate on the presidential immunity invoked tangentially by the prime minister’s legal team. While Aitzaz Ahsan persistently declined to directly claim the immunity despite the SC’s insistence, the court too did not touch that matter.
The court’s restraint perhaps emanates from two factors. Firstly, despite having objected to recent constitutional amendments, and gotten its way to a certain extent, the SC is acutely aware that it cannot declare provisions of the constitution illegal. After all, even when the notorious eighth amendment was challenged in the SC, it did not strike it down. Secondly, by taking up several political matters in a highly selective manner, the court mired itself in controversies that have eroded some of the public support that had accompanied the successful lawyers’ movement of 2007-9. The late Justice Dorab Patel had aptly warned once that the judicial activism of the type where the “judges assume that they know better than parliament what the law should be...is likely to involve judges in political and religious controversies.”
In fact, the court’s activism and its suo motu jurisdiction have come under increasing scrutiny from domestic and international organizations like the Human Rights Commission of Pakistan and the International Commission of Jurists. The latter has raised specific concerns about how the cause lists are assigned and benches are constituted at the SC, leading, ostensibly, to stifling of dissent and conformist judgments. The superior judiciary, even during military rule had retained a stellar diversity of opinions, for example, by Justices Rustam Kiyani, Shafiur Rehman and, of course, Dorab Patel. But curiously, the present SC has acted like a monolith with virtually no dissent noted in any of its major decisions.
As the dust settles, it may become clear that the issue at hand is an executive one and the parliament held hostage by the rise of judicial activism and not merely an imprisonment until the rising of the court.
( The writer can be reached at mazdaki@me.com. He tweets at http://twitter.com/mazdaki)
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