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The Supreme Court’s April 26 short order and the symbolic 30-second punishment unleashed heated debate and widespread confusion, especially after judges mentioned Article 63(1g), disqualification of the prime minister, as an option.  — File photo

ISLAMABAD: The much-awaited Supreme Court verdict which explained the reasons behind Prime Minister Yousuf Raza Gilani’s contempt charge left much to be desired after it failed to answer the most important political question of the day: should the prime minister be disqualified?

The Supreme Court’s April 26 short order and the symbolic 30-second punishment unleashed heated debate and widespread confusion, especially after judges mentioned Article 63(1g) — disqualification of the prime minister — as an option.

While some constitutional lawyers argued that the seven-judge bench should have come up with a clear argument for the immediate disqualification of the prime minister, others held that doing so would have required altering the earlier short order. If the judges wanted de-seating of the prime minister they would have done it when they had issued the short order.

Authored by the presiding judge, Justice Nasir-ul-Mulk, the 71-page reason issued on Tuesday retraced the entire history of directions issued by the Supreme Court in an attempt to implement the NRO judgment, including how it led to a contempt of court charge. On the question of disqualification, however, it repeated the verdict issued on Jan 10 when the court gave six options of which one can entail a possible disqualification from elected or appointed membership in the parliament for five years.

Kahlil Gibran

An additional note was added by Justice Asif Saeed Khosa. It included a rendition of Kahlil Gibran’s poetry -- pity the nation that demands justice for all but is agitated when justice hurts its political loyalty.

“The bench has treaded cautiously by not elaborating on the disqualification question. That way no-one can point any fingers at the court and accuse it of interfering in the domain of others,” Justice (retd) Tariq Mehmood commented.

He was, however, convinced that not much room was left for Speaker of the National Assembly Dr Fehmida Mirza when it came to the question of the de-seating issue. According to him, any member of parliament, including from the opposition, can bring the verdict to her notice and she will have to forward a reference under Article 63(2) of the Constitution to the Election Commission of Pakistan. He also said that even the ECP would not pursue a detailed inquiry and that it may decide about the fate of the prime minister after cursory procedures.

Advocate Chaudhry Faisal agreed that the court had rightly refrained from entering into the realm of parliament because the Constitution provided an option for indoor management under Article 63 when it came to the question of disqualification of an elected member.

However, in his opinion the government has one month after the receipt of the official copy of the detailed verdict to file an appeal against the order. Even if the government and the prime minister decide against filing an appeal within 30 days, all references to the NA speaker can only be submitted after the lapse of this 30-day period.

After that, he explained, the speaker would have 30 more days to decide about the reasonability of the references and whether to quash them or refer them to the ECP.

When it came to the question of morality, Justice Mehmood said, one person’s hero is another’s villain. “The law does not recognise morality as a binding force,” he said.

Barrister Zafarullah Khan of the PML-N has only this to offer: “The detailed verdict does not clarify the confusion regarding the consequences of the prime minister’s conviction.”

Advocate Waqar Rana believed that the final authority to determine the question of disqualification, in view of the law laid down by the Supreme Court in the Sabir Shah’s case, was the ECP.

“The right to hold an office, including the membership of the National Assembly, is a civil and constitutional right, and the due process and procedure given in the Constitution must be followed in letter and spirit before any person is deprived of such an office. That way no room is left to give an impression of any bias or failure of the rule of law,” he explained.

Apart from the disqualification issue, the detailed reasons were clear on whether the prime minister -- as the highest executive functionary of the state of Pakistan -- wilfully, deliberately and persistently defied an obvious direction issued by the highest court in the country (namely to write to the Swiss authorities to reopen graft cases that involved President Asif Ali Zardari).

“We are, therefore, fully satisfied that such clear and persistent defiance at such a high level constitutes contempt, which is substantially detrimental to the administration of justice and tends not only to bring this court but also brings the judiciary of this country into ridicule,” the verdict said.

It added: “After all, if orders or directions of the highest court of the country are defied by the highest executive of the country then others in the country may also feel tempted to follow the example leading to a collapse or paralysis of administration of justice, besides creating an atmosphere wherein judicial authority and verdicts are laughed at and ridiculed.”

The verdict was also clear on the point that the Contempt of Court Ordinance V of 2003 derives its authority from Article 204(3) of the Constitution, while Article 204(2) of the Constitution itself empowers the apex court to punish a person for committing contempt. “These words used in the charge framed against the prime minister also stand sufficiently covered by the provisions of Article 204(2) of the Constitution,” the verdict explained. Referring to the controversy of awarding 2G licence that involved the name of Indian Prime Minister Dr Manmohan Sindh, the court explained that the contempt matter was a straightforward case when it came to the implementation of the court’s judgment. There should have been no two views on the matter. Even if there was any, the prime minister never approached the court for clarification, as it was not a matter of where the respondent (PM) was left with any discretion.

“He (PM) cannot shift the blame or the responsibility to his advisers for not giving him proper advice. The respondent has taken a conscious decision in that, and he must accept responsibility for the same.

“The executive authority may question a court’s decision, but through the judicial process provided for in the Constitution. The law is not entitled to flout the court’s decision, because it believes it to be inconsistent with the law or the Constitution. Interpretation of the law is the exclusive domain of the judiciary,” the verdict said.

Dangerous precedent

Referring to arguments by the prime minister that the letter cannot be written as long as Asif Ali Zardari remains the president, the verdict said the stand amounted to saying that the order of this court was non-implementable as he believed that it was not in accordance with the Constitution and the international law.

“If accepted, this argument can set a dangerous precedent and anyone will then successfully flout the orders of the courts by pleading that according to his interpretation they are not in accordance with the law. A judgment debtor would then be allowed to plead before the executing court that the decree against him was inconsistent with the established law. No finality would then be attached to the judgments,” it said.

The court expressed serious doubt about the claims that the case in Switzerland was closed on merit. It was also intrigued over the new attorney general who did not put forth arguments in favour of the prosecution rather pleaded that there was no evidence, whatsoever, on the basis of which the prime minister could be held guilty of contempt.

“We were, thus, rendered one-sided assistance only,” the verdict deplored.

Additional note

Justice Asif Saeed Khosa added that the power to punish a person for committing contempt was primarily a power of the people to punish a person for contemptuous conduct displayed towards courts.

“It is, thus, obvious that a person defying a judicial verdict in fact defies the will of the people at large, and that the punishment meted out to him for such recalcitrant conduct or behaviour is in fact inflicted upon him not by the courts but by the people acting through the courts.

“The chief justice did not possess or control any division when he refused to obey the unconstitutional dictates of General Pervez Musharraf, who commanded quite a few divisions, and still emerged victorious with the help of the people.

“There is a lesson to be learnt -- namely that if the cause is constitutional and just, then the strength and support for the same is received from the people at large, who are the ultimate custodians of the Constitution,” the note said.