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Speaker’s decision

May 25, 2012

THE decision of the Speaker of the National Assembly that no question of disqualification has arisen following Prime Minister Yousuf Raza Gilani’s conviction by the Supreme Court has further insulated Mr Gilani from legal sanction. Make no mistake about it, Fehmida Mirza’s decision, for all its appeal to legalese, is a decidedly political decision. But perhaps it is difficult to expect anything else in a case whose origins lie more in the political domain than the legal. The timing of the decision is also political: had she not issued her ruling at this point, the 30-day deadline under Article 63(2) of the constitution would have expired and a decision on the prime minister’s disqualification would have automatically passed on to the Election Commission of Pakistan. Arguably, with the prime minister’s appeal yet to be heard by the SC, the speaker’s 30-day deadline to issue a ruling may not have even begun — but if the ECP moved to take up the matter in the absence of a ruling by the speaker, the government would have had yet another fight on its hands in trying to wrest the matter back from it. Ms Mirza’s ruling has ensured that the ECP cannot now take up the matter without judicial intervention.

The legal thicket from here on becomes even more complicated. Presumably any citizen has the right to move the superior judiciary against the speaker’s decision and will find any number of grounds to challenge it, not least that the speaker has chosen to base her ruling on the charges framed against the prime minister and not the judgment handed down by the SC. But if the courts were to be moved to take up the case, the government would almost certainly argue that the speaker’s decision is covered by parliamentary privilege under Article 69 of the constitution which ousts judicial oversight of parliamentary procedure and business. That could take the matter back to the original question raised by the so-called Swiss letter and presidential immunity: if the court has one interpretation of the law and the government a different one and neither side budges, then whose interpretation de facto wins the day?

Much will depend on the pace of the government’s appeal. If the appeal is filed, the SC will announce a date for the first hearing and at the latter will indicate how quickly it hopes to proceed. Those decisions will give a sense of whether another judiciary-executive standoff is brewing and if so, how quickly. All of this was avoidable, of course, if politics and the law had not been treated as so interchangeable by both sides.