Down but not out
ISLAMABAD: In a ruling that added more chaos than clarity to an already messy and murky scenario, the Supreme Court handed down a symbolic punishment lasting less than a minute to Prime Minister Yousuf Raza Gilani on Thursday, making him the first ever chief executive to be convicted for committing contempt.
Wearing a black ‘sherwani’ instead of the suits he has usually preferred for his previous court appearances, the prime minister walked to the Supreme Court along with his son Musa Gilani, members of his cabinet and a crowd of supporters.
Pushed and shoved as well as showered with rose petals, the prime minister made his way to Courtroom 4.
The ruling convicted him for contempt and sentenced him “until the rising of the court”. The time period lasted only 37 seconds, after which the now convicted prime minister exited the premises.
Blue-clad officers stood hand-in-hand, encircling the prime minister and his supporters as he inched his way toward his car in an area overrun by local and foreign journalists as well as the PPP walahs.
Moment of truth
The ruling passed by the seven judges comprising the bench was short. The entire affair lasted only a few minutes.
“Can the respondent (Prime Minister Gilani) come to the rostrum?” asked Justice Nasirul Mulk, who had been heading the bench hearing the contempt case for over three months, before he read out the judgment.
“For the reasons to be recorded later the accused Syed Yousuf Raza Gilani, Prime Minister of Pakistan/Chief Executive of the Federation, is found guilty of and convicted for contempt of court… after our satisfaction that the contempt committed by him is substantially detrimental… and tends to bring this court and the judiciary of this country into ridicule.
“… (W)e note that the findings and the conviction for contempt of court… are likely to entail some serious consequences in terms of Article 63(1g) [disqualification] of the constitution….
“He is, therefore, punished under Section 5 (punishment) of the Contempt of Court Ordinance (ordinance V of 2003) with imprisonment till the rising of the court today.”
Only moments after the short order, the bench rose, and despite repeated efforts by Barrister Aitzaz Ahsan to attract the attention of the court, the judges exited the room. Ahsan repeated, “My lord, my lord, my lord,” but to no avail.
Soon after the court was adjourned, the bench released the following statement:
“The respondent appeared in person with his learned counsel. The short order passed in the matter of contempt of court was read out in open court. After that, the respondent/convict remained in the custody of the court till his release upon rising of the court for the day.”
Barrister Aitzaz, who represented the prime minister in the contempt case, later announced that an appeal would be filed against the decision.
Controversy over disqualification
The wording used in the ruling — especially the mention of Article 63(1g) referring to the disqualification of the prime minister — generated a heated debate.
The main question was whether the conviction meant automatic disqualification of the prime minister as a member of parliament or whether this would happen only if the Speaker of the National Assembly, Dr Fehmida Mirza, sent a disqualification reference to the Election Commission of Pakistan (ECP) under Article 63(2) of the constitution.
Lawyers had different interpretations to offer, which in some cases aligned with their political sympathies.
Some felt that the court had given a decision that did not rock the democracy boat. In their opinion, the court had adopted a middle-way by convicting the prime minister to maintain its dignity and honour as well as his but leaving the disqualification issue open to be taken up by the ECP.
“The court has left the issue of formal disqualification to the ECP because under Article 63, the jurisdiction to decide whether or not a member has become disqualified vests in the commission,” said Advocate Waqar Rana.
The court has wisely refrained from intruding onto the jurisdiction of the commission by using the expression “likely to entail disqualification”. Rana understands this to mean an automatic disqualification.
Others took a more black and white approach.
Advocate Hamid Khan, who is PTI’s vice president, explained that the decision meant there was no need for the speaker to send the reference to the commission, since the prime minister had already been disqualified and was, therefore, no longer the chief executive.
Former additional prosecutor general for the National Accountability Bureau, Raja Amir, declared the decision a “severe punishment” for the prime minister, because he had been held responsible for ridiculing the court. Therefore, the best course for him would be to resign as decisions he took while presiding over cabinet meetings will be illegal and could be challenged before the court in the future, according to Amir.
Referring to the reference by the speaker, he said no other forum over and above the apex court had been left to settle the disqualification.
Muttahida Qaumi Movement’s Senator Farogh Naseem, who is also a lawyer, saw the judgment as a positive ruling in which the court had demonstrated that it was truly an independent institution, adding that he was quite optimistic about the future of Pakistan after the verdict.
He was unsure about the significance of the order, stating that time would tell whether it meant automatic disqualification or if a reference had to be sent through the speaker.
Dr Mohammad Abdul Basit, who is the author of a book on contempt laws which was widely referenced during the proceedings, said the decision was a bad judgment because the prime minister was not disqualified automatically.
“The decision is vague, and ends up favouring the prime minister. He can continue to hold his office,” he deplored.
This debate is not limited to the lawyers. The main opposition party, the PML-N, is also asserting that the prime minister can no longer continue because of his ‘disqualification’ and it is evident the two parties will continue to fight this out in parliament and outside.
The PPP is aware of this, which is why it too is going to keep its street power on display. Observers feel that the pro-PPP demonstrations in parts of the country, especially Sindh, are bound to go on for some time.
Newly appointed Attorney General (AG) Irfan Qadir declared the order as void ab initio, illegal and unconstitutional and therefore to be ignored. He alleged that the court had decided the contempt issue on a political rather than legal basis.
“I cannot be party to a decision which violates the constitution,” the AG said.
The court had decided to violate the constitution, he said, adding that there was no contempt of court law in the country.
Aitzaz Ahsan said the apex court had gone beyond the scope of an indictment, as the prime minister was never charged for scandalising the court. When the charges were framed against the prime minister, there was no mention of scandalising the judiciary, otherwise he would have contested these charges and would have submitted evidence against them.
“The prime minister was charged under one offence but convicted under two charges, which is surprising,” he said, adding that they had been contesting the charges of civil offence over the past three months, but his client had been convicted under a criminal offence.
After saying that Gilani was still the prime minister, Ahsan explained that the speaker would have to send the reference to the ECP to settle the matter.