Disqualified after the verdict?
THE Supreme Court (SC) has announced its short judgment sentencing the prime minister of Pakistan, for wilfully flouting and disregarding the order of the SC, to ‘imprisonment’ till the rising of the court.
The sentence was immediately served upon the prime minister, but an observation made in the order has brought the country to the brink of political mayhem, despite the fact that the detailed judgment is yet to be announced and the prime minister has a legal right to appeal against this order.
For the average reader the question is very simple: does the prime minister stand disqualified after being sentenced by the SC or not?
My opinion is that legally and constitutionally the prime minister cannot be disqualified even if he were to have received the maximum punishment of six months under the Contempt of Court Ordinance, because after the 18th Amendment, any parliamentarian who has been awarded at least two years of punishment by a court of competent jurisdiction can be disqualified from being a member of parliament.
Therefore we have a controversy arising from the observation by the honourable bench regarding the disqualification of the prime minister.
The honourable judges rightly restrained themselves from entering the realm of parliament and left this issue to the discretion of the Speaker.
The procedure pertaining to the disqualification of members of parliament provided in the Pakistani constitution, gives absolute power to the Speaker of the National Assembly to determine the existence and veracity of any such ‘reason’ that has emerged for the disqualification of any member of parliament.
It is a legitimate expectation to see the SC deliver a judgment that is beyond criticism. In this case, the verdict did not meet this expectation. In my opinion, instead of clarifying an already complicated situation in an explicit manner, this order has caused confusion, which has also resulted in political chaos.
In the criminal justice system, the conclusion of a trial has to be definite and exact to the charge-sheet and not go beyond that as what appears to have happened in the prime minister’s case.
The honourable prime minister was charged for wilfully flouting and disregarding the court’s order (civil contempt of court) passed in the Mubashar Hasan case (PLD 2010 SC 265) but he has also been observed for hindering the administration of justice and ridiculing the judges or judiciary (criminal contempt of court). This inference is well beyond reasonable legal understanding.
The honourable court never levelled charges of criminal contempt against the prime minister but squarely fixed these charges on him without giving him ample chance to defend him.
If the SC during the trial realised that the prime minister was involved in ridiculing the judiciary or causing hindrance in the administration of justice, then the SC should have altered the charge-sheet accordingly.
Additionally, the execution of sentence in such an abrupt manner appears to be in violation of the fundamental principles of natural justice and the general principles of criminal law.
In my opinion, the sentence should have been announced as suspended in accordance with the general rule provided in the Criminal Procedure Code under which the sentence shall not be executed until the expiry of the period prescribed for making an appeal against such a sentence.
Modern jurisprudence has no place for rhetoric and populism and if we as nation keep on submitting to rhetoric, we will no longer be in sync with the political and legal philosophy of the rest of the world.
The writer is an advocate.