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Judicial brinkmanship


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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.

Comments (11) Closed

mirza baig Jan 17, 2012 12:23am
i believe the court has a right to enforce the constitution if govt. is a reluctant party. NRO should be enforced in full, no compromise on this .
Amjad Wyne Jan 17, 2012 05:10am
I may be a naive but apparently the court is not buying the argument that the cases against the president and others were "politically motivated" - that is the reason behind the NRO ruling. Regarding options for the Prime minister Gilani - offering an apology and stating that the judiciary was independent does not cut it. In the opinion of the court, it simply takes the whole thing back to "why the court's ruling was not implemented". And that, in light of public statements issued by Mr Gilani and Mr. Zardari, may be tough to answer.
Anjum Abbas Jan 17, 2012 01:17pm
So for the Honorable Judges of the Supreme Court have shown tremendous restraint akin to their office, but enough is enough. Likes of Zardari and Gilani need something for their continued disobedience(mockery) of the courts.
Imran Jan 17, 2012 01:56pm
Supreme Court is showing indecent haste in this case. Whatever happened to Air Marshal Asghar Khan's petition lying unheard in the SC since 1990s? Why are they not listening to that petition? Why this selective judicial hyper-activism? Trying to hound the govt and push them against the wall and overturn peoples mandate?
raika45 Jan 17, 2012 05:03pm
There are a large number of retired generals living a life of luxury especially overseas.Maybe the courts can look into the financial management of the Armed forces, if the governmental bodies do not have the courage to do so.Going after the civil government only does not seem right.If you want to eradicate corruption one should go all the way.
Gautham Jan 17, 2012 06:01pm
Watching from outside, it is rather very silly on the behalf of Supreme Court of Pakistan. For all their self proclaimed independence and integrity, they pledge allegiance en mass if military takes over. But they wake up suddenly to realize they have 'power' to prosecute a democratically elected government. And what for? Just to prosecute one individual, Zardari? Really silly. To think that now Courts of Pakistan are the new kid on the block who can bring down democratic govts is amusing yet dangerous.
Badar Jan 17, 2012 09:19pm
I'm shocked at this article as well as going through some of the responses. How Zardari has become a billionaire? His dad never saw a billion rupees and he has a few billion dollars worth of assetts. How he made this money? Swiss accounts are a fraction of his wealth. Supreme court is only nulling the NRO. That's it. Its not becoming aggressive. I hope it becomes aggressive so Pakistan's economic and political melt down can be stopped. We should all be sincere to Pakistan at least. No?
ABDUL KADER AHMED Jan 18, 2012 01:23am
No one, whether in Pakistan or outside is entitled to interfere with the course of our justice. If it is so, let it be so.
Mohammad A Dar Jan 18, 2012 02:59am
Only barrier between Law of jungle and civility are Court based on truth absolute. do not hinder their way or no one will be safe in Pakistan.Let justice run its course for good of Pakistan.
gmail Jan 18, 2012 07:45am
its not just one indivisual. there is a long list of people who benefit from NRO and all charges were dropped against them. and for your refferance it was Judiciary who brought down the army coup.
gamil Jan 18, 2012 07:48am
I dont understand why some people are against Supreme Court in this matter .. is it so bad to ask government to investigate cases of corouption and how on earth a sensible nation can allow NRO kind of pardon...