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Constitutional trap

May 22, 2012

THE shadow of Zia still looms large over our political scene. Several parliaments and parliamentary committees have tried to exorcise this dictator’s ghost from the constitution but they never succeeded in rectifying all the ills. The current parliament is no different.

The committee drafting the 18th Amendment was urged time and again to do away with Zia’s crafty law that allows the disqualification of members of parliament. And now the PPP faces the consequences of its own omission as its prime minister is threatened with disqualification due to the Supreme Court judgment in the contempt case.

The SC has not convicted Prime Minister Yousuf Raza Gilani for obstructing the administration of justice but for ridiculing the judiciary. The court has been able to do this because of the law introduced by Zia. Article 63(g) is open-ended and can end up being used by the judiciary to persecute the politicians.

The law disqualifies anyone who has been convicted for “propagating any opinion or acting in any manner prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan…”

Very few would dispute that this article is problematic.

For instance, who defines the ideology of Pakistan? Surely this is a political and not legal debate and this definition cannot be left to a handful of appointed judges. Similarly, what distinguishes criticism from defamation or ridicule of the judiciary or the armed forces?

Under this law, it appears as if all citizens are being forced to agree to the independence of the judiciary. And if he or she does not, would they risk being disqualified as a member of parliament?

At the same time, which judiciary and which army men can or does the law refer to? Will the courts allow defamation and ridicule of the Munir and Dogar judiciary but not of others? Those who defame and ridicule Zia, Yahya Khan or Pervez Musharraf may be spared but not those who dare lash out at some ‘worthy’ general.

If the courts define the undermining of the security of the country as they did during the memo scandal, then perhaps half a dozen journalists of international repute, had they been parliamentarians, would also risk being disqualified under Article 63(g).

In short, this constitutional provision was meant to be as much a trap as the infamous Article 58(2) b. And now that the contempt case has shown how effective it can be, it may be used with more frequency in the future. Mr Gilani may be the first victim of this constitutional trap of Zia but he may not be the last — unless the people protest against this undemocratic addition of the constitution by a past dictator and demand its removal.

Partly the judgment was welcome. By the time it came, the non-implementation of the NRO judgment had reached fever-pitch and only a judgment could have brought the temperatures down. Therefore the conviction of the prime minister till the rising of the court was appropriate.

But to stretch his conviction from obstructing to “bringing the court into ridicule” was not welcome and questions have already been raised about it.

The law on contempt is quite clear. It contemplates three forms of contemptuous behaviour — civil, criminal and judicial. The prime minister was accused of civil contempt for wilfully flouting the judgment or process of the Supreme Court but ended up being convicted of judicial contempt which is applied for scandalising the court. The latter does not invoke disqualification for parliamentarians but strangely enough the former does.

However, apart from the legal issues raised, the political consequences are also clear. The Supreme Court finally pinned down the prime minister for not writing the letter to the Swiss authorities against the president. No one has yet discovered the actual reason for the PPP’s hesitation.

Knowing the PPP they may well discover later that the letter may not have hurt them as much as their refusal to write one. One never knows but they may end up doing both — losing their government and being forced to write the letter too.

However, at the moment the prime minister’s conviction has in a perverted sense exonerated him before his party members. And the ball is in the court of the speaker of the National Assembly who has maintained her dignity so far and promised to act in a neutral way. After being stabbed in the back by Leghari, PPP stalwarts are reluctant to follow suit.

But regardless of what she decides, the Supreme Court has hurt the image of both the judges and politicians. The friction between the two broke into an ugly public broil. The worst instincts of both sides were made public to the ordinary people who could not have cared less about this unnecessary confrontation at a time when they were suffering blackouts and rising inflation. And the end when it came, in a way added more fuel to the fire.

The self-righteous and mocking additional note in the judgment authored by Justice Asif Saeed Khosa makes it appear that this land of the pure, begins and ends with the premises of the honourable Supreme Court. All else is pitiable and can easily be dispensed with. No one can claim to be the only angel amongst so much despair nor should we convince ourselves that there is only one evil amongst a sea of saints.

But all this aside, the prime minister’s conviction has only reinforced the message that time is up for the present government. The best course possible is to call for early elections after meaningful engagement with the opposition.

Both sides must agree to appoint an independent and respected election commissioner. Second, the election ought to be carefully monitored to ensure that it is fair and that that those who lose cannot cry foul. The political parties alone cannot ensure that hidden hands do not cobble together a government that represents everyone but the people of this country.

The nation has experienced immense hardships. Sanity must prevail if we are to survive.

The writer is a prominent lawyer and a human rights activist.