SC wants all Gilani actions ratified by parliament
ISLAMABAD, July 3: The Supreme Court issued on Tuesday its detailed judgment explaining reasons for disqualification of former prime minister Yousuf Raza Gilani and asked the federal or provincial governments to refer to parliament for ratification all actions and decisions taken by him after his conviction on April 26.
In its short order issued on June 19, a three-judge SC bench comprising Chief Justice Iftikhar Muhammad Chaudhry, Justice Jawwad S. Khwaja and Justice Khilji Arif Hussain had declared Yousuf Raza Gilani disqualified from being a parliamentarian from the date of his conviction on April 26.
He had been earlier convicted by a seven-member bench of committing contempt of court for not writing a letter to the Swiss authorities to reopen graft cases worth $60 million which involved President Asif Ali Zardari.
The detailed judgment deprives all decisions and actions taken by Mr Gilani after April 26 of constitutional sanctity.
It may be mentioned that President Zardari promulgated on June 24 an ordinance protecting all decisions and actions taken by Mr Gilani between April 26 and June 19. The “Validation Ordinance 2012” also restrained the apex court and high courts from entertaining any challenge to them.
Authored by Chief Justice Iftikhar Chaudhry, the 61-page detailed verdict held that after having been convicted on April 26 Mr Gilani had become stranger to the National Assembly, but continued to hold the office of the prime minister contrary to the Constitution and the law.
The 180 million people of the country were governed by a disqualified member of the parliament, it said, adding that same was the position of the cabinet headed by the prime minister in as much as all actions taken by the ministers were considered to be the actions of the federal government.
About the May 24 ruling by National Assembly Speaker Fehmida Mirza saving Prime Minister Gilani from the looming disqualification, the verdict held that by not sending a reference to the Election Commission of Pakistan (ECP) under Article 63(2) of the Constitution, the speaker had exceeded her jurisdiction. Like the speaker, it held, the ECP could also not sit in appeal over a concluded judgment of a superior court and had to decide the question in the affirmative that the convicted person had become disqualified.
“When there is a conviction recorded by a competent court against a person, who is a member of the parliament and which has attained finality, the role and function of the ECP is confined to issuing notification of disqualification of the concerned member on the basis of verdict of the court.
“No doubt, the existing scheme of the Constitution (after the 18th Amendment) gives the speaker right to decide the question of disqualification of a person from being member of the parliament but only when a court of competent jurisdiction has not recorded any conviction,” it clarified.
The judgment also rejected the contention that the May 24 ruling of the speaker fell within the ‘proceedings’ of the parliament and, therefore, could not be subjected to judicial scrutiny by virtue of Article 69 (courts not to interfere in the proceedings of the parliament) of the Constitution.
“The ruling of the speaker is open to judicial scrutiny by the superior courts because it does not fall with the proceedings or conduct of business of the parliament within the contemplation of Article 69 of the Constitution,” the verdict emphasised.
Meanwhile, in a short concurring note Justice Jawwad Khwaja opposed muddying the crystal and undefiled waters of Pakistan’s constitutional stream with alien and antiquated 19th century Diceyan concepts of parliamentary supremacy.
“These concepts have lost currency even in their own native lands,” he said, adding that it was about time that after 65 years of independence, “we should unchain ourselves from the shackles of obsequious intellectual servility to colonial paradigms and start adhering to our own people’s constitution as the basis of decision making on constitutional issues”.
Justice Khwaja observed that in Pakistan the Constitution enjoyed supremacy over all organs of the state, including the parliament and, therefore, on constitutional issues, members of the parliament, including the prime minister, could not avoid being answerable to court.
In his concurring note, Justice Khilji Arif Hussain justified that in the present case where the conviction was evident on the fact of the record and the case did not involve any disputed questions of facts, this power of the court to disqualify a member of the parliament had been rightfully invoked.
“If the prime minister himself is guilty of illegality, how can the rest of the state machinery be expected to uphold the rule of law. Therefore, the court which is obliged by the Constitution to ensure adherence to the rule of law, cannot be expected to act as a silent bystander,” he observed.