Journeys to democracy

A 30-second ‘convict’ for ‘contempt of court’: Gilani. Reuters photo.

On Tuesday, June 19, the Supreme Court of Pakistan in an unprecedented judgement disqualified Prime Minister Syed Yousuf Raza Gillani from his membership of Parliament, also barring him from contesting elections for five years (scroll down for a Political Timeline putting the move in context).

The Court had on April 26, 2012, symbolically ‘convicted’ Gillani for contempt of court for less than a minute, due to his failure to ask Switzerland to reopen a corruption case against President Zardari, on the grounds that the president enjoyed immunity as head of state. According to some legal experts, as a ‘convict’ Gilani could no longer hold office.

However, the Constitution (Article 63) empowers the speaker to decide whether a question of disqualification has arisen and whether a reference for disqualification is required to be sent to the Election Commission or not. Accordingly National Assembly Speaker Fehmida Mirza had ruled that no question of disqualification had arisen, therefore no reference was required to be made. But when opposition parties PTI and PML-N filed petitions challenging her decision, the Chief Justice upheld their claim, retrospectively rendering null and void all the Prime Minister’s orders since April 26.

And so, once again, a Prime Minister has been sent packing, not by the Parliament or the people, but by other forces. It’s a shame that our honourable judges haven’t been as zealous in showing dictators the door in the past.

The silver lining is that the government is still in place, no one has physically attacked the Supreme Court (as happened when it ruled against Nawaz Sharif in 1997), and the army has not stepped in.

Let’s remember that Pakistan is a country where, since its birth in 1947, no legitimately elected government has ever been allowed to complete its tenure. Courts have justified military rule under the shameful ‘doctrine of necessity’, that judges have vowed never to invoke since the lawyers’ movement of 2007. A brief timeline:

1. 1947-58 – The formative years; Governor Rule; Constitution adopted, then abrogated.

• 1955: Supreme Court articulates Doctrine of Necessity: “that which is not legal, necessity can make legal”.

2. 1958-71 Army rule – (Ayub, then Yahya)

• Dec 16, 1971 – break up of the country after the Awami Party of then East Pakistan that won the majority of votes was not allowed to form government; led to civil war and the emergence of Bangladesh as an independent nation

3. 1971-1977 – the Bhutto years

• December 20 1971: Army chief Gen. Yahya Khan resigned and handed over the government to Zulfikar Ali Bhutto, who took oath as president and first civilian Chief Martial law administrator of Pakistan.
• April, 1973: Constitution accepted by most political parties, approved by the National Assembly on April 10, 1973.
• September 7 1974: National assembly declared Qadianis (Ahmadi’s) as non-Muslim minority (relevant because this was the first step in the process of criminalising religious beliefs of ‘others’ that Gen. Zia took to further extremes later).

4. 1977-1988  – Army rule -The Zia years

• 1977: Prime Minister Bhutto announced general elections one year before the term. Before elections could be held. Army chief Gen. Zia-ul-Haq imposed Martial Law. The promised elections ‘within 90 days’ were never held. Gen Zia appointed himself President and made all sorts of changes to the Constitution, including various controversial laws supposedly based in Islam.

5. 1988 -1999 – Musical Chairs

• 1988: After Gen Zia’s death in a plane crash, general elections held in Nov bring Benazir Bhutto to power.
• 1990: Benazir govt dismissed; fresh general elections three months later in Oct bring Nawaz Sharif’s PML to power
• 1993: PML govt dismissed; reinstated by Supreme Court; dismissed again; fresh general elections bring Benazir back to power in Oct 1993
• 1996: Benazir govt dismissed (BB exiled); fresh elections 3 months later bring Nawaz Sharif back to power.

6. 1999-2008 – Army rule -The Musharraf years

• 1999: Nawaz Sharif govt sent packing after a coup by Army Chief Gen. Pervez Musharraf
• 2002: controlled elections; new elections due in 2007
• Mass agitations against dismissal of Chief Justice force Musharraf to allow political leaders to return to Pakistan and participate in the scheduled elections; tragically, Benazir Bhutto is assassinated during an election campaign

7. 2008 – Elections bring PPP back to power.

• If the government completes its tenure, holds elections and hands over power to the next elected government, it will be the first legitimately elected government to do so in the history of Pakistan.

Although the government is still shakily in place, this “legal drama,” as this comment in the Guardian puts it, “adds to political uncertainty at a time when the government can ill afford to be distracted from a dizzying array of crises, including widespread unrest over electricity shortages and Pakistan’s deeply distrustful relationship with the US.”

UPDATE: Since this was posted, Advocate Asad Jamal has pointed out that “Pakistan’s written constitution does not give the SC the power to review the speaker’s decision”. Therefore, the SC has encroached upon the domain of the Parliament. He cites a SC decision of 1995, in which the full court with a seven to five judges’ majority ruled that under Article 63, the Election Commission is the final authority to decide such cases and the SC has no jurisdiction.

“Surprisingly, the SC short order does not even refer to that judgement which shows the level of the court’s politicisation and perversion. I think what needs to be stressed is that the Gilanis and Zardaris are irrlevant; what is at stake is the rule of law and due process. Ironically enough, the SC is violating the constitution in the name of guarding it. Just a few days back the CJ sat on bench in clear violation of the code of conduct. When this was drawn to his attention he tried to to invoke mythical Islamic past. And yet no complaint has been filed against the CJ before the Supreme Judicial Council for violation of the code. In fact, a two judge bench formed by the CJ himself has effectively declared him innocent. This is a classic case of the Court being the judge, jury and executioner.”

Read Asad Jamal’s article ‘In the name of the Constitution‘, in Express Tribune, June 5, 2012.

Filed under: Pakistan | Tagged: gillani, judicial activism, Pakistan, supreme court |