Prime Minister Syed Yousuf Raza Gilani's April 26 conviction and sentencing for contempt of the Supreme Court is proving more than just one momentous judgment by the now independent judiciary. It indeed set in motion a train of events not witnessed before in the long chequered constitutional history of Pakistan.
That Mr Gilani became the first sitting prime minister to be found guilty of disobeying the supreme court of the country and sentenced to the briefest of terms in our judicial history was noted immediately. What has followed since is no less telling and unprecedented, however.
For one Mr. Gilani continues to hold office, not frayed in the least by his detractors’ vociferous calls to “the convicted prime minister” to resign. Buoyed by the explicit support from his own PPP and allied parties, he gained new confidence when Speaker of the National Assembly Dr Fehmida Mirza ruled that his conviction did not attract his disqualification as a member of the assembly, as the Supreme Court had alluded to in its order sentencing him.
Her ruling also saved Mr Gilani from appealing the Supreme Court against that order.
But his troubles are not over. The constitutional petitions filed by PML-N and PTI - no friends to each other but competing in enmity to PPP - with the Supreme Court challenging the Speaker's decision can pitch the legislature against the judiciary, potentially another first in the battles waged by political rivals in courts.
Never before in Pakistan's judicial and constitutional history arose a situation pitching the two pillars of State in a stand-off. The storming of the Supreme Court in 1997, during PML-N's second government, the clash was primarily between the executive and judiciary.
Today, the scenario is altogether different. If and when the Supreme Court decides to hear the petitions of PML-N and PTI, it will have to delineate whether it can question the ruling of a sitting Speaker of the National Assembly. Speaker Fehmida Mirza has spoken her mind about the PM and the matter rests with the Supreme Court judges. The governing PPP is already aggressively propagating supremacy of the parliament vis-a-vis judiciary. It looks out to use the parliament as a shield where it enjoys a comfortable majority.
Legal experts were wonderstruck when the government did not go for a review of the order convicting the prime minister. But many now see it as a well calculated move. In the words of the veteran Supreme Court lawyer and seasoned politician, S.M.Zafar, it was the best shot from the PM and his legal team, led by Senator Aitzaz Ahsan.
Contrary to the majority of political and legal experts who thought the government chose the warpath by not filing review petition the government, Mr Zafar believes the decision would help calm frayed tempers.
Drawing upon his decades of experience in dealing with knotty constitutional matters, Mr Zafar told this correspondent that in the obtaining circumstances the apex court will avoid direct confrontation with the parliament.
At the maximum, he felt, it may ask the Speaker to reconsider her decision and forward the reference to Election Commission for latter's adjudication on the subject. Even to reach to this decision, the judges have to be very careful considering the sanctity of the Speaker's office, he said.
Dr Hassan Askari Rizvi, a political scientist, foresees three major repercussions of the ongoing conflict-like situation between the parliament and the courts.
First, whatever the outcome of the PTI and the PML-N writ petitions against the Speaker's ruling, it will lead to further polarisation and divisiveness in national politics. The more this tiff between two important state institutions persists, the more politics in the country will be adrift.
Second, the Supreme Court, acting as the ultimate arbiter of what Constitution, decides in a way that is viewed as political. An outcome which gives the impression the Supreme Court is meddling in purely political issues would be unfortunate and injurious to its own credibility.
Third, and the worst case scenario, the present power equation will stay even if the court sends prime minister home by asking the Election Commission to proceed with the process of disqualifying him. The ruling coalition will elect a new prime minister who will also refuse to do what his predecessor refused and suffered - write letter to the Swiss authorities for reopening cases against the PPP co-chairman and president of the country, Mr Asif Ali Zardari.
Hopefully, the approaching general election would dissuade from starting the legal battle anew which won't bring the issue to a close, only bad name to the country.
Dr Rizvi thinks the Supreme Court should simply sleep over the writ petitions and let the political parties settle their rivalries in the election arena.
Lawyers across the board also are for careful handling of the situation arising out of the Speaker's ruling and the challenge to it in the court. Even the counsel of one of the petitioners is not in a hurry for a quick hearing.
Advocate Muhammad Waqar Rana, who drafted the PTI petition has said that since such petitions had never been heard before, the Supreme Court should seek help of amicus curiae (friend of the court) to reach a definitive answer on this question.
Barrister Zafarullh Khan, who maintains a pro-PML-N stance, also is of the view that the court will try not to take the issue brought to it head-on. At the most it may ask the Election Commissioner to see whether the question of disqualification of the convicted prime minister arises or not, and that will take time.
Ahmer Bilal Sufi, an expert in international law, feels that it would be better if the concerned parties avoid confrontation and find a negotiated, amicable solution to the crisis.
Asma Jahangir, former chairperson, Supreme Court Bar Association, in a recent op-ed piece called upon all political forces of the country to work for smooth transition through a free and fair election. Her comment largely shed light on a number of anomalies which were still part of the constitution and being exploited by various quarters to their favour.
