Has Supreme Court gone overboard in Gilani case?

Every citizen has a right to criticize, even uncharitably, decisions of the Judiciary, the Executive or the Parliament. There is no cavil on this issue. The latest judgement announced by the Supreme Court, disqualifying Mr Yusuf Raza Gilani under Article 63 (i)(g), has attracted much controversy and some severe and unjust criticism on the Internet and social media, where many argue that an elected prime minister could only be removed by a vote of no confidence in Parliament and not by any order of the Supreme Court.

Do these arguments have any substance? Are they supported by facts and law? What appears to be happening is that a concerted campaign has been launched, mainly by elements in the social media and on the Internet, followed by some unscrupulous and biased journalists and writers in the international media, to attack and discredit the Chief Justice of Pakistan. They are unashamedly blaming the present Supreme Court for the acts of former judges who were used by dictators and governments and who never exercised any independence. They bring up the ZA Bhutto case, the ISI Mehrangate case and many others for which the present judiciary cannot be blamed, yet they are targeting the institution to malign the present Chief Justice. This is not only deplorable but unprofessional and partisan.

Some of the zealots have even gone to the extent of justifying corruption and declaring that democracy is justified in electing leaders who are a little more corrupt than the average traffic cop. What pathetic decadence these writers show in their arguments attacking the Chief Justice. At least they now admit that no judge can be bought, as in the past when people preferred to hire a judge instead of a lawyer to win their case.

They are mainly using an opinionated article by a former Indian judge, who happens to be a friend of mine and has my greatest respect, but unfortunately is not well informed about the details and merits of the Gilani case. This campaign is highly derogatory and looks to be well coordinated because some vested interests feel threatened by the independence and the uprightness of the Chief Justice and the court he leads, despite the nefarious conspiracy that was recently unleashed against him but died a premature death as it was malicious and perverted, using black money, bribes, criminal intent and coercion.

I will first refer to the undeniable facts and circumstances leading to the disqualification of Mr Gilani. The strained relations between the Judiciary and the Executive in Pakistan started with a consistent stand of the executive not abiding by the judgements of the Honourable SC, in particular the judgement declaring the infamous National Reconciliation Ordinance (NRO) unconstitutional, illegal and of no lawful effect, on 16th December 2009, ab initio.

This judgement was announced unanimously by SC judges and the Federal Government had admitted in writing before the apex court that the NRO was indefensible as it was unconstitutional.

Despite having a massive two-thirds majority in the Houses of Parliament, the NRO was so discriminatory, unconstitutional and condemnable that the Federal Government did not have the courage to seek its validation from Parliament. Hence the judgement of the SC against the NRO had constitutional and political backing. Despite this admission in writing, the Federal Government chose to file a review petition in the SC. During the prolonged pendency of about two years of this review petition, the SC did not insist on its implementation.

However, after the inevitable dismissal of the review petition, the SC rightly directed the prime minister to implement the judgement, inter-alia, by writing the pertinent letter in question to the Swiss authorities on the terms and contents, as specified by the SC. The Federal Government continued to follow the strategy of blatant defiance. This naturally resulted in the institution of contempt of court proceedings against Mr Gilani, who did show the courtesy of appearing before the SC.

This was a welcome gesture by Mr Gilani and the SC reciprocated by extending due protocol and courtesies to him, whenever he appeared. But Mr Gilani, initially in his oral statement before the SC and later in his explanation, remained adamant and refused to issue the desired letter to the Swiss authorities.

The prime minister or his learned counsel did not seek protection under Article 248 of the Constitution, hence the issue of Constitutional immunity of the president or the prime minister was not formally pleaded before the court and thus it was of no relevance or effect in the contempt of court proceedings. After due hearing of the arguments, the SC convicted Mr Gilani and sentenced him till the rising of the court for about 30 seconds, a sentence which may become the shortest to bring a huge change.

This symbolic sentence was awarded by the SC, keeping in consideration the status of Mr Gilani as the prime minister. At this stage, in my opinion, Mr Gilani committed a blunder by not filing an appeal against his conviction. By this fatal omission, Mr Gilani irreparably damaged his own case and fate in more than one manner.

First he denied himself the constitutional right to challenge and assail the said judgement. Secondly, this omission amounted to accepting the validity of the entire judgement against him. Thirdly had he filed the appeal it was bound to be heard by a much larger bench, which was later pleaded by his counsel during the hearing of the constitutional petitions filed by third parties seeking the writ of quo-warranto against Mr Gilani.

In view of these undeniable facts as well as provisions of Article 63(i)(g) of the Constitution, it was obvious that the SC was left with no option but to declare him disqualified to be a Member of the National Assembly and consequently he ceased to be the prime minister, something everyone expected and was prepared for.

What else could have been the SC’s judgement? For the sake of argument, if the SC had not granted the petitions of the third parties then the most serious consequence flowing from the contempt of court judgement of 26th April 2012 would have vitiated the entire contempt of court proceedings and judgment, which would have become of no lawful effect for all practical consequences.

Similarly, if the contempt proceedings were not instituted by the SC on account of the blatant and repeated refusal of Mr Gilani to abide by the judgment of the SC in the NRO case, and if the SC had not insisted on implementation of the same, then it would have rendered the entire original judgement as well as the judgement of the SC in the review petition of the NRO case, practically of no lawful effect or consequence as well.

Contrary to the propaganda being spread now that the prime minister or the president had enjoyed immunity under Article 248 of the Constitution, the undeniable facts are that neither the president nor the prime minister took refuge under Article 248 before the SC. Perhaps in their heart of hearts they knew very well that in the facts and circumstances of the Swiss case, they did not enjoy any kind of constitutional immunity and if they had argued their case, they would have been defeated with strong and irrefutable arguments and case laws. It appears to be for this reason that they did not take the plea of immunity before the SC.

In view of the aforesaid, the fate accompli was known to the ruling parties as well, even before the announcement of the judgement. People heaved a sigh of relief when the government promptly agreed to accept the disqualification by the SC. Within a couple of days a new prime minister has been chosen, elected and given oath. These events and developments in our history, in my opinion, have not damaged or hindered the democratic process, or the institutions. In fact they have further upheld the Constitution, the rule of law and the independence of the Judiciary. These are all positive events. Even though an individual had to be deposed, the institutions were strengthened.

This positive aspect of the judgement of the SC deserves appreciation rather than unfair, illogical and untenable criticism.

Finally, I must also emphasize that, to our misfortune, it is the disappointing conduct of the elected ruling alliance that is damaging democracy, democratic institutions and the functioning of, as well as the confidence of the people in, democracy.

Instead of regarding the judgments of the SC as a conspiracy against democracy, the ruling parties are best advised to act in accordance with the Constitution and laws, abiding by the judgements of the SC and other superior courts and helping the most deprived, oppressed people of Pakistan, who are suffering from an immense sense of insecurity and non-availability of their basic needs, such as electricity, food and water, employment, education and healthcare.

Senator (R) Iqbal Haider