What the verdict means
04 May, 2012
By M.A. Niazi
Prime Minister Yousuf Raza Gilani has been convicted of contempt of court. The nation watched the entire drama, but did not expect the final scene, in which the Prime Minister was sentenced "till the rising of the court"; a sentence that lasted about half a minute, and was thought by many to be no punishment. However, that is often enough the sentence passed by courts for contempt. If the sentence has been passed by a trial court, and the contempt matter has been heard early, that sentence might mean the wasting of a day, but no more. As Mr Gilani found out, that is not a sentence on which one is sent to jail. However, the sentence remains, and though Mr Gilani was free to do what he wanted, such as run the country, go to his native Multan, or anything else, so long as it was not illegal, he remained a convict.
One aspect was that he retained the office because he was still obeyed. However, such a conviction would mean that he was no longer qualified to be a member of the National Assembly, and thus no longer qualified to be Prime Minister. That is not the view that Mr Gilani takes, instead, being a politician, he is proving as tenacious of office as any government servant, and has argued that the conviction lacks finality. The business about finality has been tried before, when a review petition was moved, and it appears that the Prime Minister is relying on the procedure that needs to be followed. The National Assembly Speaker is supposed to receive any application against any member who might be suspected of no longer being qualified, and then send that application to the Election Commission of Pakistan, or ECP. It is the Commission, which is supposed to decide the matter, and declare the seat vacant and conduct the by-election, if necessary. This might explain the ire of the government at the Supreme Court's registrar for the communication of the court's decision to both the Speaker and the ECP, for it seems that the government strategy is to delay the case as much as it can. It is worth noting that the office of the Chief Election Commissioner has fallen vacant, and though the Prime Minister has given the Leader of the Opposition certain names, he has not entertained them, because his party has refused to deal with him.
There seem to be two reasons why the Prime Minister is in this position. One is the nature of the case: he was held contemptuous because he had not obeyed the repeated directions of the Supreme Court to write to the Swiss authorities asking that a case be reinstituted in connection with certain accounts containing money allegedly received by President Asif Zardari. The second is that he owes his position to the President, rather than having won it himself. This would also explain why he is so sensitive to the issue of presidential immunity, on which he has relied to explain why he has not written the letter.
There is an issue at stake here: does the presidential immunity extend to acts performed before an individual became President? The Supreme Court has not yet ruled on this subject, though it has now been raised before it in defence of the Prime Minister. On the face of it, the PM is bravely standing for the supremacy of the Constitution, but he may have gone to the real heart of the matter when he said that "no PPP Prime Minister" would write such a letter. The issue is thus identified as not presidential immunity, as the immunity that the Co-Chairman of the PPP should enjoy. In principle, any executive authority (including the Prime Minister) should not pose its own interpretation of the law and Constitution against that of the Supreme Court, but simply accept its judgement upon its actions and move on.
The Prime Minister was found guilty of contempt for not obeying the court. He has not scandalised the court in the sense of having made any accusations against any judges, but he has not obeyed its orders that is a common cause of conviction for contempt. The courts have the power to punish precisely because of this, and parties are not supposed to scandalise members of any court not because they are above criticism, as because if they are impugned, their effectiveness as judges would be affected.
Thus, the Prime Minister not just wishes to go through the appeal process, but would like the Speaker of the National Assembly to sit on the reference. The calculation there would, probably, be that the Speaker would be able to delay the process because though the Constitution specifies that questions of eligibility are to be referred by the Speaker to the Chief Election Commissioner, there is no mention of how long the Speaker is supposed to take. However, Mr Gilani knows that, just as much as no PPP Prime Minister will send the letter, no PPP Speaker will send on the reference. The delay by the Speaker needs not be outlandish because there is less than a year left for the present Assemblies' term, and though the issue will have to be determined if Mr Gilani wants to contest again, if the Speaker cooperates, there is no reason for him to be unseated. However, if he is not unseated, and if he files papers in the coming, or any subsequent election, any of his opponents is likely to challenge his candidature.
The question of one person's candidature is not involved. At stake is a precedent. The judiciary cannot countenance Mr Gilani putting his own interpretation of the Constitution ahead of its own, as it believes that the Constitution itself has made it the ultimate interpreter of the Constitution. It cannot accept competition without losing its purpose. Therefore, Mr Gilani and President Zardari should not expect what they seemingly want, state authorities which give decisions to support the actions of the PPP. This desire for all state authorities to do what the party wants is the result of the strand within the PPP of its believing itself a vanguard party in the Leninist mould, and there is the strand within it of being Bhutto's party, to the extent that the immunity it confers should extend to his son-in-law. Since the Supreme Court is not falling in with this, its conviction of the Prime Minister for contempt does not find favour with it.
The obvious solution, especially since the parliamentary term is so advanced, is for the Prime Minister to advise a dissolution and go to the country. However, a curious coincidence of dates has meant that PPP Co-Chairman Bilawal Bhutto Zardari will not be old enough to contest them, unless Parliament goes to its full term. As he is the designated heir, and is due to become Prime Minister, he cannot be made to sit out the next election, both because it would, probably, mean his staying out of office for yet another term, and because he is to be the main plank on which the PPP will contest the next election, having otherwise a patchy record of governance.
The reason the PPP is protesting so hard is because it wishes to revive the sentiment that the ‘establishment', a nebulous enough concept made even more nebulous when made to include the judiciary, is against it. The fault of the Supreme Court is not that it tried to ensure the rule of law, but that it did not try to ensure the supremacy of the party.
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