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In the proceedings against Prime Minister Yousuf Raza Gilani, the Supreme Court has framed charges of wilfully flouting and disregarding the court’s direction in the case of Mubashar Hasan vs Federation of Pakistan (PLD2010 SC 265).
The court has accused the prime minister of committing contempt of court “within” the meaning of Article 204(2) of the 1973 constitution, read with Section 3 of the Contempt of Court Ordinance 2003, punishable under Section 5 of the ordinance.
Unsurprisingly, the moment the court summoned Gilani to appear in person to respond to the show cause notice, a debate was initiated about whether the prime minister would be disqualified from his office if the court were to convict him for contempt. By now, the speculative but more or less consensus opinion is that disqualification would indeed be the outcome if matters were to go this way.
In my opinion, however, even if the prime minister were to receive a full conviction under Section 5 of the 2003 ordinance, he would not be disqualified from his office.
Article 204 of the 1973 constitution empowers the courts to punish any person for contempt and explains the acts and omissions that may be taken up as contemptuous. The Contempt of Court Ordinance 2003 divides contempt into three categories: civil, criminal and judicial contempt of court.
The wording of the charge-sheet reflects that the prime minister has been charged within the contemplation of Article 204(2) of the constitution and Section 3 of the Contempt of Court Ordinance for “civil contempt of court”, i.e. wilfully flouting, disregarding and disobeying the direction/orders of the SC.
Under the constitution, the prime minister can only be removed from his office if a vote of no-confidence is passed against him in the National Assembly, or if he is disqualified from being a member of parliament.
In the present situation, in the absence of the required number of votes to pass a no-confidence motion, the relevant articles for the (speculative) disqualification of the prime minister would be Article 63(1) and sub-articles (g) or (h).
Article 63(1)(g) says that a member of the parliament stands disqualified from the membership of the parliament if he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, that is prejudicial to the integrity or independence of the judiciary of Pakistan, or which defames the judiciary or brings it into ridicule.
In the current instance, the charge-sheet does not level any of these charges against the prime minister. In the criminal justice system, a person cannot be sentenced for a charge that has not been framed against him. In absence of any such charges, therefore, the prime minister cannot be disqualified from being the member of National Assembly under Article 63(1)(g).
The constitutional position after the passage of the 18th Amendment is that the disqualification of any member from the membership of the parliament is possible if he has been, on conviction for any offence, sentenced to imprisonment for a term of not less than two years. The maximum punishment for contempt of court is six months, a fine up to Rs100,000, or both.
Hence Article 63(1) (h) cannot be applied even if the prime minister gets the full conviction.
If the court decided to level altered charges against the prime minister, that would give rise to another debate. Yet Gilani’s legal team is unlikely to let the charges be altered without locking horns with the court. Above all, it would not be easy to prove such charges (if framed) beyond reasonable doubt.
Based on all these points, I believe that under the charge-sheet in hand, the question of the prime minister’s disqualification has already been settled. Even if he were to receive a full sentence, he would remain the prime minister. The law does not allow for such a disqualification and while there may be issues of political and ethical morality, the fundamental point is that morality is not legally binding.
The writer is an advocate.
faisalkimail@gmail.com
