Dawn News

Playing monopoly

The ancient Chinese are said to have devised an unusual curse with which to spite their most hated enemies: “may you live in interesting times.” Another is: “may you come to the attention of those in authority”. They would certainly have sympathised with Mr. Gilani, who having lived in interesting times, has now come to the attention of those in authority.

According to the short order passed by the Supreme Court on 26 April 2012, the prime minister has been charged with and convicted for contempt of court. The ‘contempt’ complained of, is Mr. Gilani’s failure to follow the directions given to the Federal Government in the case of Mobashir Hassan v Federation of Pakistan – specifically, to take all possible steps to revive Swiss proceedings against the president. According to Mr. Gilani, this is utter nonsense. He asserts that he was convicted “for protecting the Constitution.” In support, Mr. Gilani relies on the immunity granted to the president under Article 248 and his own inability to act in violation thereof.

At first sight, the prime minister’s argument seems absurd: it is difficult to see the connection between presidential immunity under the Constitution of Pakistan and criminal proceedings in the distant realm of Switzerland. Whether Swiss law provides any immunity to foreign heads of state, such as Mr. Zardari, is a question for their courts to determine and not ours. On the other hand, the Supreme Court’s insistence that the president of Pakistan should be subjected to Swiss law in relation to an allegedly criminal act committed in Switzerland, seems no less bizarre. After all, our courts and our government should concern themselves with violations of the laws of Pakistan, not the laws of Switzerland.

The reason why the Supreme Court has ordered to the contrary in the present case is self-evident: the Federation has so far failed to secure a conviction against Mr. Zardari under Pakistani law and in Pakistan, where the actual corruption of which he is accused is alleged to have taken place. Therefore, we are now compelled to make sense of myriad obscure and nonsensical legal debates on issues of ministerial correspondence, Swiss law and presidential immunity overseas.

As a result, we’re thrust into a deadlock: the Supreme Court says Mr. Gilani must, under the Constitution, write to the Swiss authorities, and Mr. Gilani himself claims that the Constitution itself prevents him from doing so. But there is a third possibility: that the Constitution has nothing to do with the matter whatsoever. What Mr. Gilani has violated, is not any specific Constitutional provision, but the Supreme Court’s broad interpretation (as set out in the Mobashir Hassan Case) of what his Constitutional duties and obligations compel him to do.

This brings us to a most fundamental issue which few legal commentators consider in any detail: do judges have a monopoly on interpreting the Constitution? In the alternative, does Mr. Gilani have any justification for asserting that he is defending the Constitution as he understands it to mean? Is there any Pakistani equivalent to the famous assertion of principle by Charles Evans Hughes: “the Constitution is what the judges say it is”?

Let’s be clear: our Constitution itself reserves exceptions to the general principle. Under Article 47, if a president is to be impeached (whether for “violating the Constitution” or even otherwise), it is Parliament which determines whether or not a violation has occurred and whether impeachment is appropriate. This example, anecdotal as it may be, pierces the myth of a monolithic general principle, i.e. it is only judges who can or should, in all cases, make sense of the Constitution. There are certain matters, in which it is not the judges, but rather the People of Pakistan, acting through their democratically elected Parliament, who must decide what is or what is not constitutionally correct and act on that basis by expressing their will.

The same is true for most day-to-day affairs of governance. The Speaker of the National Assembly, a person who acts on the basis of her constitutionally imparted duties, does not have a judge at her elbow, so to speak, to ‘interpret’ for her what her daily functions should be. This would be not only legally but also practically absurd. If we mere mortals have no conception of what the Constitution can or does mean, then how is it even possible that we may enact it, change it, or even repeal it should we so choose, as our Parliament recently did, by passing the 18th Amendment?`

The truth is that the Court only derives its exclusive monopoly on interpretation when it is acting within its Constitutional ambit, as an authoritative third-party arbiter in the context of disputes brought before it under its appellate or its original jurisdiction as defined within the Constitution. This is self-evident – in a private conversation regarding constitutional matters, a judge and a parliamentarian are free to debate as they will. It is only when the judge sits down ‘as a judge’ so to speak, that his opinion becomes authoritative.

I have grave doubts whether the present case regarding the prime minister fits the bill. The main problem is that the Supreme Court itself is not, in this context, working within the narrow walls of jurisdiction set out in Articles 184 and 185 of the Constitution. Rather, it purports to act within an ambiguous niche carved for itself, i.e. suo moto jurisdiction – an area of the law which is woefully obscure at present. As such, the boundaries of the Supreme Court’s powers are perpetually shifting and it is therefore, only natural for other Constitutional actors to react against this rapid expansionism.

The point made above is not merely academic. The fact remains that it is not practically possible or legally permissible for our Supreme Court judges to take upon themselves the function of all other branches of government. Having given a judgment, it is not within their capacity to also then become the jury and executioner. They have no police force to command, or army to do their bidding.

Most importantly, they do not have the mandate of the People to take such action. Ultimately, there is only one tried and tested way of ascertaining the will of the People. Election day is not far and the president may yet face justice.

The writer is a lawyer practicing in Karachi.

The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.

Comments (27) Closed

May 01, 2012 02:39pm
Actually, Bill Clinton also had a contempt of court violation in 1999 and did not step down due to it.
Apr 30, 2012 04:43pm
Given the history, given that Zardari has served years in jail, given that writing a letter to swiss authorities will lead nowhere, given that this new experiment with democracy needs support from all quarters, given that Zardari is not the only corrupt politician in Pakistan, given that Pakistan has much bigger problems than this, frankly this is unnecessary political drama into which the SC has dragged itself into.
Apr 30, 2012 09:28am
a fantastic piece!
Apr 30, 2012 11:05am
Agree 100%. Gilani has a year to go before his term expires. I just don't understand what will be gained by removing Gilani now. Another PPP prime minister will take over and will refuse to write the Khat all over again. If anything, the action of the Supreme Court has given the PPP a powerful card to play in the upcoming elections. The martyr card. The PPP narrative will no doubt portray Gilani as one more in the long line of PPP leaders who has been unfairly hounded by the judiaciary. Judging b y the results of the recent by-elections in Multan (PPP won a seat which has been safely in PML-N column for 30 years) the strategy may well work. In the long run, this may well turn out to be a Pyrrhic victory for the opposition.
Apr 30, 2012 06:06pm
very nice analysis. it has answered to our many questions and cleared the dust of doubts. judiciary is over stepping its limits.
Amer A.
Apr 30, 2012 07:14pm
I am in total disagreement with the article. In a country where the politicians and the government seems to think they are above the law and are untouchables, we need a very strong judicial system. Mr Zardri's immunity is in total contradiction of our principles of Islam. In Islam no matter how big of a ruler you may be you are accountable and answerable to the judicial system whether the allegations are true or ill founded. Mr Zardari needs to be tried in the Swiss courts because he is well trained in defying our judicial system.
nazar m chohan
Apr 30, 2012 11:46am
Excellent yousuf...wish some body take this stand before the sacred judges....this whole drama is judiciarys doing, especially the shareefs connection makes it ridiculous.. nazar
Apr 30, 2012 09:03pm
A very good read, good job Yousuf
Syed Ali Raza Shah
Apr 30, 2012 05:55pm
A very well written article!
May 02, 2012 05:05am
I fully agree with you there!
May 01, 2012 05:06pm
Such a beautiful comment Shankar! This whole exercise is a waste of time. We have bigger problems to solve and people fail to realize this simple fact! I'd give Gilani another 8 months or so to prove whether he deserves a second term which he and Zardari do not seem to deserve. But then we don't have much of an example set by other govts to judge them against! Wonder if there is any sensible leader out there who would prioritize what country needs!
Apr 30, 2012 09:53am
In all, judicial activism is more dangerous as well as pivotal. Activism in other domains are controllable and subject to judicial review. As such, it should be practised rarely and on absolute necessity. Otherwise, complete breakdown would occur in the country like Pakistan where the institutions were not allowed to exercise their duties thus far.
ayaz khan
May 01, 2012 05:13pm
"@amer a yes because the american judges did not interfere and the case was dealt by parliament,
Javed Ali
Apr 30, 2012 01:44pm
A true translation of current happenings. These small words say a lot about nonsense being observed in our country by ..... I grade this article with high marks as few people today in Pakistan follow this reasonable point of view.
May 01, 2012 04:13pm
Don't agree with the writer's assertions; judicial activism has nothing to do with it. If certain organs of the State don't govern the way they are supposed to, some one else will step up to it.
May 01, 2012 03:42am
Right. In any sane country people with dubious past would never have been elected to begin with. Where do we go from here? Everyone has their own opinion. Maybe we need to go back to Supreme Court to further amplify their verdict in clear terms. Remember Al Gore v George Bush. In the end it was the Supreme Court whose verdict was supreme.
May 01, 2012 04:35am
Is the writer confused about the difference between executive, legislature and judiciary or is he trying to confuse the readers?
May 02, 2012 04:30am
Excellent article Yousuf - yes we are hopelesslly left with no opinion of ours as due to "su moto" powers the Chief Justices himself is behaving like a God "Playing Monopoly" - he is the one who has brought this country at this point - he deserves not be more than a Head Constable.... hurrh....
Apr 30, 2012 03:16pm
V impressive article. I agree with that. supreme court is working out of its jurisdiction
Amer A.
May 01, 2012 09:39am
@ayaz khan I think you missed a major point, Tony Blair and Bill Clinton never had a guilty verdict passed against either one of them.
May 01, 2012 10:51am
If the supreme court decisions are unacceptable then so are the ones of the junior courts. This confirms what many had suspected that Pakistan is a lawless country.
Haider Rizvi
May 01, 2012 05:33am
Very nice article. Two things seem strange. One, like the writer said, why should a Pakistani Court insist on asking a foreign court to convict a Pakistani President. Two, the people who make and amend the constitution should know what they meant by the words written in the constitution. It is understandable that the court will interpret ONLY if elected officials are not a party to that interpretation.
ayaz khan
Apr 30, 2012 03:53pm
v good article and @ mr mani, toney blair, bill clinton and barleskoni did not resign while they had got cases against them, we are not more civilized than them. and another point is that in civilised nations the judges are not biased, they are not influenced by establishment controlled media, they do not legalize military take overs. they do not do selective justice. this decision of court was not for the rule of law but for personal reasons
May 02, 2012 03:57am
Excellent analysis by Yousuf Saheb. I fully agree. As an attorney, may I add three more legal points. Courts world over try to defend their govts and heads of states from jurisdiction of foreign courts and foreign law on the accepted doctrine of sovereign immunity. Here its just the opposite: Our SC is asking a foreign court to take criminal action against our head of state in violation of presidential immunity and country's sovereignty guaranteed in our Constitution. Secondly, it seems SC's citing of the defunct and dead law, the Contempt Court Ordinance of 2003 is inconsistent with the well-established principle that laws which have lapsed have no legal effect whatsover, and they cannot be resurrected or applied either by courts or by any party in litigation. Thirdly, this contempt conviction involving a coercive sentence, rather than a fine, seems to be a case of indirect criminal conviction. As such PM was entitled to all the due process, jury trial etc. Also, since PM was not a party in the underlying case, to charge and try him a separate, stand-alone jury trial was required that needed proof beyong reasonable doubt for any conviction.
Yousuf Nasim
May 01, 2012 06:25am
Hello Mani, thank you for your comment. I agree with you that the Govt is acting unethically in this situation. My only concern is that judicial excess should not take the place of constitutionalism - the two are distinct.
Apr 30, 2012 12:04pm
I do NOT agree with this article. It seems the writer is not familiar with the "ethics" of governments. In the EU and US, when a public or elected official is suspected of wrong doing, they immediately resign from their post and face the charges in court. They do NOT “argue” that they are above the law as they do in this country. The “immunity” is for the “office” of the president, not for Mr Zardari. If Mr Zardari is clean then he should resign and allow the proceedings to take place according to the laws of this country. Democracy without accountability does not exist in the west but it does in this country and that is why we are in the state we are now. The current government has crossed every single boundary set by the laws and courts of this country and then they say they are protecting the constitution, what nonsense.
Naveed Ahmed
May 05, 2012 03:54pm
A muslim ruler should be modal from their mass.One day a woman had drown in front of our Prophet Hazrat Muhammed (SAW) she was accused to the crime of stealing something.Some Beloved companions of Prophet wanted immunity from her that is why they talked with our Prophet but ...but Our greatest Prophet said ' if here be my loving daughter replace this girl I am not going to give her any kind of immunity".