The Supreme Court’s (SC’s) verdict on the petitions challenging the ruling of the Speaker of the National Assembly (NA) that rejected the argument that Prime Minister (PM) Yousaf Raza Gilani stood disqualified after being convicted and sentenced for contempt of court has pronounced that he does stand disqualified, not only from the premiership, but from membership of parliament as well. Not just that, the SC in its short order has laid down that he cannot stand for election for five years. To that end, the SC has sent instructions to the Election Commission (EC) to issue a notification to that effect. Meantime the PPP’s Central Executive Committee (CEC), which happened to be meeting when the verdict was announced, revealed its decisions on the crisis through a press conference by PPP leaders. The gist of the CEC’s decisions was that despite having reservations about the SC’s verdict, they had accepted the court’s finding that the conviction and sentencing till the rising of the court of Gilani for contempt on April 26 meant that he was no longer the PM, and with retrospective effect, had been removed on and since that date. The PPP has appealed to its workers and supporters to remain calm and restrained, despite the fact that the verdict is bound to inflame opinion in the PPP and allied camp. The CEC has empowered party Co-chairperson President Asif Ali Zardari to take whatever decisions he thinks fit regarding a replacement for Gilani. The intriguing question of course is whether the new PM will suffer the same pressure from the SC to write the letter to the Swiss authorities regarding President Asif Ali Zardari that the court was insisting on Gilani writing, and refusal to comply with which had attracted the contempt conviction for the former PM. In that case, the looming confrontation between state institutions, which began as a confrontation between the judiciary and the executive, could expand to now a confrontation between the judiciary and parliament as well. After all, the SC’s verdict overruling the Speaker of the NA too has set an unprecedented example, one that will reverberate in our jurisprudence for a long time to come. Questions have also been raised whether all the decisions and acts of the former PM since April 26 to date stand. The most important of these acts was the passing of the budget. It is possible that the detailed judgement may throw more light on this matter. Normally, courts are mindful that retrospective judgements should not disrupt things done and transactions closed to an extent that causes greater difficulties.
The Supreme Court of Pakistan removed the Prime Minister in what is known as a “short order” – essentially a court order lacking a full explanation. These orders often begin, “For reasons to be recorded later…” – a practice that seems the beg for abuse and controversy – and then proceed directly to ordering some specific action on the part of an individual or institution. In this case, though, the specific action was not given until almost two months later – and made retroactive.
On April 26, the Supreme Court issued an order “for the reasons to be recorded later” that found then Prime Minister Yousaf Raza Gillani “guilty of and convicted for contempt of court.” The Supreme Court did not declare the Prime Minister disqualified from office and sentenced him to a symbolic detention of about 30 seconds.
The Supreme Court having chosen not to disqualify the Prime Minister, the issue was then taken up by the Speaker of the National Assembly, Dr. Fehmida Mirza, who ruled that Mr. Gilani was not disqualified. That was last month.
Today, nearly two months after the Supreme Court issued its controversial conviction, a new short order, “for reasons to be recorded later,” was issued by Chief Justice Iftikhar Chaudhry – this time declaring that “Syed Yousaf Raza Gillani has become disqualified from being a Member of the Majlis-e-Shoora (Parliament)…on and from the date and time of pronouncement of the judgement of this Court dated 26.4.2012…”
This raises several very interesting questions. If the Prime Minister was disqualified pursuant to the Supreme Court’s order on April 26, why did they wait until June 19 to say so? Some have suggested that the Supreme Court was giving the Prime Minister the opportunity for appeal, but this is doubtful for a number of reasons: One, the Supreme Court could have declared the Prime Minister disqualified and then stayed the order pending appeal. But more to the point, to whom would the Prime Minister have appealed? The original order was given by a 7 member bench of the Supreme Court – there was no higher authority to appeal to.
Then there is the matter of the ruling by the Speaker of the National Assembly. If the Supreme Court had determined that Mr. Gilani was disqualified as of April 26, why did they allow Dr. Mirza to proceed with deliberations and a ruling on Mr. Gilani’s status as parliamentarian? If the Supreme Court believed that Dr. Mirza did not have the authority as Speaker of the National Assembly to issue such a ruling, why did they not issue an injunction stopping the Speaker from carrying out the act?
While these questions remain unanswered, at least until the Supreme Court delivers more than the two pages made available today, they suggest very troubling possibilities. By allowing Mr. Gilani to continue serving as Prime Minister for months, the Supreme Court has created a policy nightmare for Pakistan. Making the disqualification retroactive to April 26 means that any decisions made by the government since are effectively nullified. Pakistan has, essentially, been operating without a government for over 8 weeks.
Moreover, by allowing the Speaker of the National Assembly to deliberate and issue a ruling without comment, only to nullify that decision weeks later, the Supreme Court has undermined the authority of parliament and created confusion about fundamental issues of separation of powers and constitutional authority. What government official can now carry out their duties without the fear of Supreme Court action if the Chief Justice does not like the outcome.
This gets to what is perhaps the most troubling question of all – would the Supreme have issued this new order had the Speaker of the National Assembly herself disqualified Mr. Gilani? In other words, is Pakistan’s Supreme Court acting pursuant to due process or desired outcomes?
Via – Twitter