Constitutional trap
THE shadow of Zia still looms large over our political scene. Several parliaments and parliamentary committees have tried to exorcise this dictator’s ghost from the constitution but they never succeeded in rectifying all the ills. The current parliament is no different.
The committee drafting the 18th Amendment was urged time and again to do away with Zia’s crafty law that allows the disqualification of members of parliament. And now the PPP faces the consequences of its own omission as its prime minister is threatened with disqualification due to the Supreme Court judgment in the contempt case.
The SC has not convicted Prime Minister Yousuf Raza Gilani for obstructing the administration of justice but for ridiculing the judiciary. The court has been able to do this because of the law introduced by Zia. Article 63(g) is open-ended and can end up being used by the judiciary to persecute the politicians.
The law disqualifies anyone who has been convicted for “propagating any opinion or acting in any manner prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan…”
Very few would dispute that this article is problematic.
For instance, who defines the ideology of Pakistan? Surely this is a political and not legal debate and this definition cannot be left to a handful of appointed judges. Similarly, what distinguishes criticism from defamation or ridicule of the judiciary or the armed forces?
Under this law, it appears as if all citizens are being forced to agree to the independence of the judiciary. And if he or she does not, would they risk being disqualified as a member of parliament?
At the same time, which judiciary and which army men can or does the law refer to? Will the courts allow defamation and ridicule of the Munir and Dogar judiciary but not of others? Those who defame and ridicule Zia, Yahya Khan or Pervez Musharraf may be spared but not those who dare lash out at some ‘worthy’ general.
If the courts define the undermining of the security of the country as they did during the memo scandal, then perhaps half a dozen journalists of international repute, had they been parliamentarians, would also risk being disqualified under Article 63(g).
In short, this constitutional provision was meant to be as much a trap as the infamous Article 58(2) b. And now that the contempt case has shown how effective it can be, it may be used with more frequency in the future. Mr Gilani may be the first victim of this constitutional trap of Zia but he may not be the last — unless the people protest against this undemocratic addition of the constitution by a past dictator and demand its removal.
Partly the judgment was welcome. By the time it came, the non-implementation of the NRO judgment had reached fever-pitch and only a judgment could have brought the temperatures down. Therefore the conviction of the prime minister till the rising of the court was appropriate.
But to stretch his conviction from obstructing to “bringing the court into ridicule” was not welcome and questions have already been raised about it.
The law on contempt is quite clear. It contemplates three forms of contemptuous behaviour — civil, criminal and judicial. The prime minister was accused of civil contempt for wilfully flouting the judgment or process of the Supreme Court but ended up being convicted of judicial contempt which is applied for scandalising the court. The latter does not invoke disqualification for parliamentarians but strangely enough the former does.
However, apart from the legal issues raised, the political consequences are also clear. The Supreme Court finally pinned down the prime minister for not writing the letter to the Swiss authorities against the president. No one has yet discovered the actual reason for the PPP’s hesitation.
Knowing the PPP they may well discover later that the letter may not have hurt them as much as their refusal to write one. One never knows but they may end up doing both — losing their government and being forced to write the letter too.
However, at the moment the prime minister’s conviction has in a perverted sense exonerated him before his party members. And the ball is in the court of the speaker of the National Assembly who has maintained her dignity so far and promised to act in a neutral way. After being stabbed in the back by Leghari, PPP stalwarts are reluctant to follow suit.
But regardless of what she decides, the Supreme Court has hurt the image of both the judges and politicians. The friction between the two broke into an ugly public broil. The worst instincts of both sides were made public to the ordinary people who could not have cared less about this unnecessary confrontation at a time when they were suffering blackouts and rising inflation. And the end when it came, in a way added more fuel to the fire.
The self-righteous and mocking additional note in the judgment authored by Justice Asif Saeed Khosa makes it appear that this land of the pure, begins and ends with the premises of the honourable Supreme Court. All else is pitiable and can easily be dispensed with. No one can claim to be the only angel amongst so much despair nor should we convince ourselves that there is only one evil amongst a sea of saints.
But all this aside, the prime minister’s conviction has only reinforced the message that time is up for the present government. The best course possible is to call for early elections after meaningful engagement with the opposition.
Both sides must agree to appoint an independent and respected election commissioner. Second, the election ought to be carefully monitored to ensure that it is fair and that that those who lose cannot cry foul. The political parties alone cannot ensure that hidden hands do not cobble together a government that represents everyone but the people of this country.
The nation has experienced immense hardships. Sanity must prevail if we are to survive.
The writer is a prominent lawyer and a human rights activist.
No one should be given immunity from the law. Article 63(g) although introduced by a dictator, it was necessary. Politicians are the people who can say or do anything-speak against any institution of the state just for their own political interests. If we observe carefully the comments of most of our politicians, it becomes clear that they are without an ideology. They strive only for power and do whatever necessary. Therefore, all their statements should be judged strictly by a more strict law than article 63(g). Anyone, who says anything which harms Pakistan or its institutions, should not only be disqualified-but also punished. We can not oppose article 63(g) on the basis that it was introduced by a dictator.
This nation doesn't want to know their infections. They are interested in abating the symptoms only. Hats off to Asma Gee.
Thank you Dawn, thank you Asma.
Ms. Asma Jahangir has analysed the Constitution of the Islamic Republic of Pakistan,after the ammendments made to it by powerful Dictators like General Zia & General Musharraf,and this Parliament's efforts through the 18th Ammendment to rid it of some of the muck inserted into it by self-appointed Presidents & Chief Executives,who were granted legitimacy by the judiciary who would rather obey a Usurper than leave theiir jobs,and who would foreswear their solemn oaths to preserve. protect and defend the Constitution and willigly make new Oaths to abide by the Proclamation of Emergency & P.C.O. of October 14,1999.and make oaths as given in Oath of (Office) Order,200.
What I would like to add here is a question,"Souldnt those who break their solemn oaths at the time of assuming their high offices,be also consideed perjurers?"
Extremely well directed article, that the current Judiciary is using the Constitutional Amendment introduced by the General Zia. However unfortunate thing is when Asma was fighting against the dictatorship of Zia, Gillani was a member his Majlis-e-Shoora and it he who supported these constitutional amendments in 1985. I guess she forgot mention this important point in her article. Now why would this be wrong if Judges used this against the PM?
It is constitutional right of the judges to interpret the constitution, if not the judges then who will interpret the constitution?
We have extreme respect for Asma Jahngir but I cannot class this article as biased which is missing important facts.
Ms.Jahangir,
Talking about The Articles 63(g) and 58 (2)b and so forth pioneered by Genl.Zia is much debatable even among the fraternity of your professionals.I accept that those articles have changed the complexion of our constitution.May I humbly suggest for a 'Magna Carta',you being a strong activist could spearhead befittingly,don't worry I will follow your foot steps holding a sledge and hammer.
Lastly ,"Laws are honoured more in breach than in observance",I unquote.
Hamid Abbasi
Asma , the lawyers and judges are not the public ,the public will bring PPP back to power
another curse for Pakistan ,corrupt courts and lawyers, every one hates and fears them
I cold not agree more. Thought provoking and indepth anaylisis by Asma.
Asma's argumentation is brilliant. But she has provided no clues on how the law and judicial machinery could compel the Government to make the needed referral to the Swiss.
Hey fox! It is of no use having arguments on whether the lioness of the jungle lays eggs or delivers babies. It is the queen of the kings who decides what is good for the jungle. Once upon a time a king of the queen said " I swear upon God, when CJ will be reinstated every problem of Pakistan will go away" O yes, Can't we see, every problem of Pakistan is gone and our judiciary is as independent and clean as one can imagine. I bet this kind of pre decided divine justice will continue till another messiah from right wing extremists like Zia-ul Haque and Sons (most probably IK this time) will be installed. The bottom line is: It is all about right wing agenda. It was nothing to do with Mr. Musharraf, his uniform or dictatorship. If it was against dictatorship, Zia and others of the land of pure would not have been their hero. Same is the case with the democratically elected government now, it is meeting its fate. Attorney Tauseef has rightly said in his comment that "The arbitrary, broad powers of judiciary should be curtailed. No judiciary in any democratic country has been given such wide and huge powers, such as appointing their own judges and ordering and deciding on political and economic and non-judicial issues pursuant to its ridiculous suo motto powers etc, etc."
Although, I do not like PPP, but, it is being a democratically elected government and the only party which is nationwide, deserves the right to complete its tenure without interference. However, in my opinion, PPP should have taken the stand from the very beginning instead of becoming wet cat, blackmailed and controlled by the opposition and institutions. If PPP has to survive, it has to get back to its roots (masses), restructure itself, avoid mom and pap family politics and show its political strength from every province immediately. Otherwise it will be history. zafarsyed40@yahoo.com
Pakistan is a country where there is no tradition of resignations on failure. In fact people get promoted on failures. There are too many examples but I will list just a few:
Ayub Khan and et. al. not resigning after failed operation Gibraltar. Yahya Khan not resigning after losing half of the country, Zia not resigning after losing Siachin. BB not giving up politics after being convicted by Swiss courts in corruption cases and proof that Surrey palace belonged to Zardaris. General Pasha and Keyani not resigning after failing to detect OBL on Pakistani soil and failing to detect US aggression. The Naval chief not resigning after the attack and failure on Mehran base.
So where did PM Gilani go wrong? Why should he resign. I think by Pakistani standards he should run for another term.
Just one question Ms. Asma Jehangir. Did Gilani refuse to carry out supreme courts orders or not ?
"convicted for “propagating any opinion or acting in any manner prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan…”
That leaves a wide latitude for prosecution in the first instance. This really is nothing short of Chinese justice. Every Chinese knows that in the security of hisown home one may criticize government officials. If one criticizes the officials on the street corner, in public, or in a newspaper he or she is subject to a prison sentence.
After Zia was dead a Pakistani university student online told me (while discussing Shakespeare's play Julius Caesar) that one of his professors compared Pakistan to the Roman Empire.
It is understandable why Zia wanted to give immunity to the Army, but what glares back at me is the phrase "prejudicial to the ideology of Pakistan." That should be redefined.
A new interpretation of what the ideology of Pakistan actually is now could be re-written into the constitution.
"The security of Pakistan"? I guess the dictator and his judges would have decided about that. It surely alludes to internal security.
"Propagating an opinion" can be very dangerous for people living under a dictator. That may in fact be the worst of all crimes against the state.
"The good old days" were not all that good.
Did the PPP leave the judges any choice?
ms asma why dont lawyer come out with a movement of protecting the judiciary which is being disfigured by its own judges as they are not doing justice but doing politics in the name of justice it is the duty of lawyers to protect their institution from any invader be it a general politician or judge itself
I woul dlike to remind all the readers that this is the same Ms. Jehnagir who, while head of Supreme Court Bar Association, tried to get a motion passed at one of the meetings against the Suo Motto powers of the judiciary. She was thoroughly put to shame when she was asked to quote an example where the suo motto power had been abused by the judges. Everything must be analyzed keeping in mind the person who is expressing such opinions.
The is a difficult one to call. Rather than focussing on the 'contempt' per se doesn't one need to go behind the reason for this contempt. To me it appears this was to obstruct the investigation into Zardari's alleged corruption. I am equally surprised that Gailani — or the PPP — should make such a big deal about writing the letter, if he was convinced nothing would come of it. But we hear the Swiss courts convicted Zardari — is that true? When we throw in the ephedrine scandal, the extravagant shopping trips, it all begins to sound a bit fishy.
On the other hand, why is Nawaz Sharif sanctifying the very institution he elected to assault? And why are alleged money laundering/default cases coming up against him not being scrutinized? Indeed why is the Supreme Court handling terrorism cases with kid gloves.
Frankly, looks like sticky jalebi to me.
Dear Moderator,
I have sent my comments earlier. The one there is not my comments please can you chcek and put my comments and not someone else.
F Khan
Polls after polls suggest that this government has completely failed to deliver to people's expectation and the governance is at the edge of collapse. The country is in its death throes and people like you harp on the constitutionality of the verdict. People want to get rid of this ruling class no matter what. Are you completely blind. People are sick and tired of the ruling class and all you can do is waste all your grey matter on constitutional hair splitting. People are fighting for their lives and give a hoot to the constitution. They don't care what constitutional clause is applied… a, b, c, d, e, f whatever…. all they want is to get rid of this inept and corrupt ruling class. Courts verdict should be seen in this context.
An article like this reminds me of the Nero and his frivolities while the whole country is burning. Wake up Asma. Where are your human rights credentials. Don't you see the ultimate abuse of human rights of the ordinary man in this country. Is that not more critical to address than trying to split hairs on the constitution.