ISLAMABAD, May 26: Literally within hours of the deadline, Prime Minister Yousuf Raza Gilani’s lawyer, Barrister Aitzaz Ahsan, announced that the Pakistan People’s Party (PPP) had decided not to file an appeal against the symbolic contempt punishment handed down to Mr Gilani by the Supreme Court on April 26.
The announcement — which came on the last day that the appeal could be filed — prompted experts to debate whether the prime minister’s decision was made on the basis of legal or political considerations, especially since Advocate-on-record, M.S. Khattak, was waiting for a go-ahead to file a “210-page petition” with “146 questions of law” and “113 reasons” substantiating that the contempt punishment was unsustainable, according to Mr Ahsan’s assisting Advocate, Gohar Ali Khan.
The petition, prepared by Mr Ahsan, indicated that the prime minister had come close to filing an appeal.
“It (the decision — namely to not file an appeal) is a political decision,” says human rights activist and former president of the Supreme Court Bar Association (SCBA), Asma Jehangir, to Dawn.
The current SCBA President, Yasin Azad, did not disagree, but pointed out that every political party has a right to take whatever decision it deems fit for its political survival. He did, however, pinpoint that the conviction against the prime minister would now be permanent, given that the government was not filing an appeal. As for the question of the prime minister’s disqualification, the Election Commission of Pakistan (ECP) still held the mandate to make its own decision.
A source privy to a number of discussions held between legal aides and the prime minister explained that concern about the outcome of an appeal stopped the government from filing it. “We were not expecting a favorable decision from the Supreme Court. And filing the appeal would have belittled the favorable ruling of the Speaker of the National Assembly, Fehmida Mirza. It would thus be futile.”
The source went on to explain that the government’s confidence in the judiciary had dwindled after the Supreme Court rushed to appoint one acting and two ad hoc judges to complete the composition of the bench to hear the prime minister's appeal at a time when the detailed verdict explaining the reasons behind the ruling had yet to be issued.
Dr Mirza’s ruling was sufficient in addressing the question of whether or not the prime minister should be disqualified, according to the source. “The prime minister has already served a 30 second sentence,” he concluded.
Advocate Chaudhry Ramzan elaborated the explanation, pointing out that the prime minister was most likely concerned that an appeal would drag on the question of his disqualification. “There is also a possibility that different restraining orders aimed at stopping the prime minister from functioning as a chief executive could have been clubbed together with the main appeal,” he said.
Dr Mirza’s decision
The legal fraternity also debated whether Dr Mirza’s ruling could be challenged. According to Mr Ramzan, the parliament was the only forum where the ruling could be undone.
“The speaker is the custodian of the rights of the members of parliament. She has fulfilled that role,” he said, after quoting Dr Mirza’s argument that the speaker is more than “a post office”.
Mr Ramzan explained that any challenge to her ruling would require a legal debate to decide whether the judiciary could transgress upon the domain of another institution, to undo a ruling.
Former leader of the Balochistan High Court Bar Munir Kakar said that challenging the speaker’s decision would only lead this country to further anarchy. “When we say that the decisions of the Supreme Court should be respected, honoured and implemented in letter and spirit then it also means that the same deference should be shown to the ruling of the speaker,” he explained.
Political adviser to the prime minister, Advocate Fawad Chaudhry, however, explained that the ruling of the speaker could be challenged before a high court under Article 199 of the Constitution.
In case such a writ is filed, it would be placed before a single judge bench of the high court, the decision of which could be challenged through intra-court appeal. Obviously the final appeal would be made before the Supreme Court but such an exercise would be time consuming, he pointed out, adding that by the time the process reached its logical end, the general election would have been announced.
However, Advocate Raja Muhammad Irshad, who has represented intelligence agencies in the surviving Adiyala prisoners’ case, lamented that the Supreme Court was not at all asserting its judicial authority. However, he conceded that after the speaker’s ruling the issue of the disqualification of the prime minister had lost its significance and hence the government had not filed the appeal.
Our Lahore Bureau adds: Aitzaz Ahsan said at a press conference on Saturday that there the PPP leadership had unanimously decided after thorough deliberations not to file the appeal, saying “they have some apprehensions”.
He said an appeal had been drafted and it contained 146 objections against the judgment of the Supreme Court.
“The prime minister asked me last night not to file the appeal,” he said.
Mr Ahsan said his party did not recognise the short order in the case and the deadline for filing an appeal against the detailed judgment was June 7.
He said doors for involving the Election Commission in the matter had been closed after the ruling by National Assembly Speaker Dr Fehmida Mirza.