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Judicial brinkmanship

January 16, 2012

The court will most likely ratchet up pressure on the government again in the coming months. —Photo by Reuters
The court will most likely ratchet up pressure on the government again in the coming months. —Photo by Reuters

The Supreme Court of Pakistan (SC) has issued a contempt of court notice to Prime Minister Yousuf Raza Gilani due to his inaction on the court’s decision in the National Reconciliation Ordinance (NRO) case. The PM addressed the parliament today stating that he will respect the court and appear before the tribunal on January 19. Although Gilani had reportedly offered to resign earlier, there was little support for his ouster amongst the ruling coalition.

It is likely that the PM may live to see another day in the office, but his days seem to be numbered as the SC continues its attack the ruling party (PPP) through a brinkmanship approach. Under this tactic, the court may pull back from the precipice on January 19, if the prime minister appears and apologises to the court. The court, however, will most likely ratchet up pressure on the government again in the coming months.

Breaking down the NRO The NRO was passed as a political agreement between former president Pervez Musharraff and exiled former political leaders of Pakistan. The ordinance granted amnesty to politicians who faced “politically motivated” criminal proceedings either advanced by the army or political opposition. However, the court rejected this law in 2009, stating that it violated the Constitution of Pakistan for several reasons. One of these concerned Article 63 of the constitution, i.e. banning individuals with criminal cases from holding public office.

In the NRO case ruling, the court not only stated that government should reopen the cases of bureaucrats and low-level politicians excused by the ordinance, but also asked the state to move against President Asif Ali Zardari for the corruption cases filed against him. Amongst these was a Swiss case for money laundering against Zardari and his wife and former premier Benazir Bhutto, which the PPP government has continually attempted to dodge execution of. In fact, the president has gone on to claim that that no one in his party would ever attempt to reinstate those cases against him.

Government’s ‘disobedience’ Following orders from the ruling government, Law Minister Maula Bux Chandio and the National Accountability Board (NAB) Chairperson Fasih Bukhari have done little to take action on the Supreme Court’s order, which brings in the January 10 follow-up hearing by the SC, where Justice Asif Saeed Khosa found that the government had disobeyed the court’s orders on purpose. The court, according to Justice Khosa’s statement, was angered with the government’s refusal to “to uphold and maintain the dignity of this Court and to salvage and restore the delicately poised constitutional balance in accord with the norms of constitutional democracy.”

The Honourable Justice cited speeches by the prime minister and president where they criticised the court’s orders as “prima facia” evidence and that Gilani had “allowed loyalty to a political party and its decisions to outweigh and outrun [his] loyalty to the State and [his] ‘inviolable obligation’ to obey the constitution and all its commands.”

Thereafter, the court laid out six options, including: removing the president and prime minister for dishonesty, issuing a contempt order against the prime minister, forming a judicial commission, or allowing the parliament to take cognizance of the issue.

What the future holds for Gilani While NAB Chairman Fasih Bukhari issued an apology to the court today, the bench was not satisfied and issued a contempt of court order against Gilani. This is one of the most aggressive tactics that the SC could use, as the prime minister now faces up to six months in jail under the Contempt of Court Ordinance of 1998 if he is found guilty.

Some have argued that this would make him ineligible to hold a parliamentary seat under Article 63 (1) (h) of the constitution, which bans membership for those convicted for “crimes of moral turpitude.” However, this article requires a minimum conviction of two years in jail for one to be disqualified from the parliament, which is not possible in the contempt of court charge, carrying a maximum six-month sentence. Thus, the claims by the government’s political opposition that he could be ineligible to hold the seat (of prime minister) if held in contempt are not completely true.

Alternatively, the court could disqualify Gilani through Article 63 (1) (g), which prohibits any individual from holding a public office if they are “propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan…. the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary.” However, Gilani’s statement to Parliament offering respect to the independent judiciary and his agreement to appear before the Supreme Court will make a disqualification under this article more difficult to pursue.

Way out? There is another feature of contempt charges which may allow for Gilani to skate by the wrath of the Supreme Court. Under the Contempt of Court Ordinance, “a person accused of having committed contempt of court may, at any stage, submit an apology and the court.” If the court is satisfied with the apology as bona fide, it may “discharge him or remit his sentence.”

While one cannot predict exactly what will play out on Gilani’s appearance in front of the Supreme Court on January 19, but one way to pull back from the precipice is for the PM to apologise and the court to accept his apology. The SC may not wish to accept this apology, but there is little more they will be able to do to punish the elected government or attempt to force its hand.

Even with contempt of court charges against the prime minister and corruption charges against the president, the court cannot directly remove either from office by itself. This was evidenced by Option 6 laid out by Justice Khosa which recognises that “there may be situations where the people themselves may be better suited to force a recalcitrant to obey the constitution.”

Indeed, it will be up the people and their parliament to remove Gilani or Zardari, or to force them to act against their self-interests in executing the court’s NRO decision. Though predictions cannot be made with the court’s wild card decisions of late, what is becoming clear is that the court will continue pushing this government to the brink.

The writer holds a Juris Doctorate in the US and is a researcher on comparative law and international law issues.