Detailed judgement fallout

Supreme Court

The seven-member bench of the Supreme Court (SC) has released the detailed judgement regarding the contempt case against Prime Minister (PM) Yousaf Raza Gilani.

Whereas the short order of the SC had convicted the PM and sentenced him till the rising of the court, it had clarified that the reasons for the conviction and sentencing would be recorded later. Those reasons are now available through the detailed judgement. It must be acknowledged that the impression during the proceedings of the case that the bench had been impatient with and dismissive of the defence counsel’s arguments is not borne out by the full judgment, which has explicated in minute detail its reasons for rejecting the submissions of the defence counsel. However, that in no way implies that the right of appeal is not still valid.

The government has responded through the PM and others with its resolve to contest the verdict through an appeal. The judgement says a few things that bear repetition. The SC has clearly stated that the PM runs the risk of a five-year disqualification from being a member of any assembly. The bench has refuted the argument of Chaudhry Aitzaz Ahsan that it was not competent to hear the case, being the author of the suo motu notice. The bench quoted international and Pakistani jurisprudence to reject the contention that the members of the bench had become judges in their own cause, arguing that it was not a matter of the judges involved but of the SC per se.

The verdict has returned to the issue of presidential immunity and left the door open a crack to the possibility of the president himself invoking such immunity here and in Switzerland. The judgment deals in detail with the contention of the PM that no direct orders were issued to him by the court until he was summoned in the contempt hearings by going into the record and findings regarding the summaries put up to and assessed by the PM, with directions that the Law Ministry continue with its stance, i.e. in the court’s view, the stance that the orders of the SC were not implementable given the immunity to the sitting president under Article 248. The court has held the PM responsible despite the argument that he acted in good faith according to the advice tendered to him.

On the face of it, and legal luminaries will no doubt be contending for and against the judgement in the days to come, the impasse created by the NRO judgement between the executive and the judiciary seems set to continue. Meanwhile things are hotting up on the political horizon, with the opposition within and outside parliament pressing their demand for the PM to go. Ordinarily, any PM or even minister charged with a misdemeanour would be expected to resign in the best democratic traditions and then fight to clear his name. But in Pakistan, nothing is ever ‘ordinary’.

The Swiss cases have always been decried by the PPP as politically motivated rather than based on factual evidence. Going by the shenanigans of the Ehtesab (Accountability) Bureau under Nawaz Sharif’s last government, there is weight in the contention. However, the matter has now been taken out of such circular arguments, judicially by the SC, and politically by the opposition smelling blood. Nawaz Sharif’s ‘brotherly’ advice to the PM to now face the music for siding with President Asif Ali Zardari and reiteration of his view that on moral grounds alone the PM should have resigned after the short order is diluted in the next breath by Nawaz Sharif himself when he says any new PM will also have to write the letter to the Swiss authorities as decreed by the SC.

That may be one reason why the PPP decided to go with the incumbent PM who had already been convicted by the SC and try to use whatever legal and political options remained available to fight out the issue. The perception within the ruling circles was too that the next replacement PM will also suffer the same fate at the hands of the SC. Like it or not, the verdict has put the cat among the pigeons politically and the outcome can only be heightened tensions and confrontation in the political field, as well as once again the clouds of uncertainty looming over the whole democratic edifice per se. As usual in Pakistan, we live in interesting times. – Dailytimes