Pak judicial coup, threat to developing democracy

By Prof. Bhim Singh

There have been several coups in the world against the governments by the politicians and mostly by the military dictators. Coup de tat in Pakistan by the Supreme Court dismissing sitting and popular Prime Minister of the country on 19th June, 2012 has created an alarming situation about the developing democracy in Pakistan. The Supreme Court of Pakistan headed by its populist Chief Justice Iftikhar Muhammad Chaudhry has, “Found Syed Yousaf Raza Gillani guilty of contempt of Court under Article 204(2) of the Constitution of the Islamic Republic of Pakistan, 1973 read with section 3 of the Contempt of Court Ordinance, 2003 and sentenced him to undergo imprisonment till rising of the court under section 5 of the said Ordinance, and since no appeal was filed against this judgment, the conviction has attained finality. Therefore, Syed Yousaf Raza Gillani has become disqualified from being a Member of the Majilis-e-Shoora (Parliament) in terms of Article 62(1)(g) of the Constitution on and from the date and time of pronouncement of the judgment of this Court dated 26.04.2012 with all consequences, i.e. he has also ceased to be the Prime Minister of Pakistan with effect from the said date and the office of the Prime Minister shall be deemed to be vacant accordingly.” The Supreme Court directed Election Commission of Pakistan to issue notification to disqualify Syed Yousaf Raza Gillani as Member of Majilis-e-Shoora (Parliament) w.e.f. 26.04.2012. The Supreme Court had convicted Mr. Gillani on 26th April, 2012. The Supreme Court also directed the President of Pakistan to take further steps for the implementation of its direction. Interestingly, the Supreme Court, though, held Mr. Gillani guilty of contempt of the court on 26th April, 2012 whereas the judgment was announced 13 days later i.e. on 8th May, 2012. No convict has any opportunity or occasion to challenge an unwritten or non-speaking judgment whose order is kept pending by the court. This is first question which needs to be answered by the Supreme Court of Pakistan as to how the period for filing appeal against the conviction of the Prime Minister has expired. This only adds to the doubt that the judiciary was in a hurry to wreak vengeance against the Prime Minister of Pakistan for ulterior reasons which deserve the attention of the jurists all over the world particularly in the countries where democracy or even semi-democracy has been functioning. Secondly, Mr. Gillani has been held guilty of contempt of court under Article 204(2) of the Constitution of Islamic Republic of Pakistan, 1973 read with section 3 of the Contempt of Court Ordinance, 2003 and further read with Article 184(3) of the Constitution of Pakistan, which provides to uphold the fundamental rights of the citizens of Pakistan in all matters of public importance. Article 204(2) empowers the Supreme Court to punish any person who— a). abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court; b). scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt; c). does anything which tends to prejudice the determination of a matter pending before the Court; or d). does any other thing which, by law, constitutes contempt of the Court. The international fraternity of the jurists may have an opportunity to find fault with Mr. Gillani as to which of these provisions have been violated by a functioning Prime Minister of Pakistan. There was no abuse, no interference, no obstruction, no disobedience, no scandalization and no hatred in the entire episode or a conflict that was generated between the Chief Justice and the Peoples Party Government of Pakistan. Under Article 184(3) the Supreme Court may consider a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter-1 of Part-II is involved, have the power to make an order of the nature mentioned in the said Article. This is also a matter of debate whether instructions issued by the Supreme Court of Pakistan to the Prime Minister to take cognizance in a matter against the sitting President of Republic were having any legal sanction or were they issued in good faith and in the interest of the defence of the Constitution itself. It is interesting to note that the charges against President Zardari date back to the 1990s when his late wife Benazir Bhutto was prime minister. They were accused of using Swiss bank accounts to launder bribe money. President Zardari has always insisted that the charges against him are politically motivated. The Supreme Court ordered Mr. Gillani’s government to write to the Swiss authorities to ask them to reopen the cases against Mr. Zardari, the President of Pakistan. This order of the |Supreme Court was against the letter and the spirit of the Constitution of Pakistan. Mr. Gillani was quite within the constitutional limits and the rule of law that the President of Pakistan enjoyed immunity, protection from being charged in any criminal case because, “The President shall not be answerable to any court for the exercise of powers and performance of functions of their respective officers or for any act done or purported to be done in the exercise of those powers and performance of those functions.” The Supreme Court Chief Justice known the world over as an upright and honest judge has erred again, may be, he was blinded with rage of power towards the existing constitutional structure led by the Peoples Party of Pakistan. The Supreme Court has infringed the command of clauses (2), (3) & (4) of Article 248. Article 248(2), 248(3) & 248(4) clearly command that no criminal or civil proceedings shall be initiated in any manner against the President or a Governor. Secondly, the Supreme Court also ignored the fact that, “The Swiss shelved the cases in 2008 when Zardari became President and a Prosecutor in Switzerland has said it will be impossible to reopen them as long as he remains head of state and so is immune from prosecution.” This matter was insisted by Mr. Gillani and the Supreme Court utterly failed to find a reasonable and legitimate answer to this assertion of Mr. Gillani while ordering his conviction followed by his dismissal. Thirdly, the Supreme Court of Pakistan has erred gravely on another point declaring a sitting Member of Parliament as disqualified when there is no such account in the entire story dealing with the circumstances of the case. A sitting Member can be disqualified within the meaning and scope of Article 63 which has been mentioned by the Supreme Court in a hurry. According the judgment Mr. Gillani has been disqualified by the application of Article 63(1)(g) of the Constitution of Pakistan. The reading of this Article leads to the conclusion that a person shall only be disqualified if (g), “He has been convicted by a court of contempt jurisdiction or propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or the integrity, or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan, unless a period of five years has lapsed since his release.” A careful study of this clause does not provide an iota of doubt that Mr. Gillani has committed no such offence as was prejudicial to the ideology of Pakistan or the sovereignty or integrity nor there is any case that the Prime Minister had ridicule the judiciary or the Armed Forces of Pakistan. The fact is otherwise. The Prime Minister of Pakistan walked into the court room on the day of judgment with grace and obedience, stood on the floor of the court like a gentleman and absorbed his 30-second- sentence with grace and patience that was expected of a person holding the rank of Prime Minister of the country. This is unfortunate that Election Commission of Pakistan, who was not served even a notice on the disqualification of Mr. Gillani issued a notification dislodging Mr. Gillani as Prime Minister. It is a mockery of the Constitutional arrangements in Pakistan that the Election Commission of Pakistan was not answerable to the President of Pakistan. The Election Commission of Pakistan by obeying the Supreme Court’s order to notify the disqualification of Mr. Gillani has added to the woos of shaky democracy in Pakistan. The judgment of the Supreme Court is loaded with contradictions and legal abuses of authority vested in the Supreme Court. Obviously, no legal person or a jurist can accept the judgment of the Supreme Court as its’ suffers from several serious anomalies and lacunas. The Chief Justice of Pakistan has given an impression that he was taking a clue from the judgments of the Supreme Court of India. This is not true at all. In India under Article 102 of the Constitution, no elected person shall be disqualified unless he is convicted for moral turpitude and sentenced for a period exceeding two years that too in a criminal offence. Conviction in a contempt of court case is not criminal offence nor this conviction shall attract any punishment for disqualification of an elected Member of Parliament. Even in the Constitution of Pakistan the minimum sentence has to be two years to disqualify a person from the membership of the National Assembly. The judgment of the Supreme Court of Pakistan amounts to a judicial coup against the developing democracy in Pakistan, which has started breathing during the past couple of years. The Parliament of Pakistan has clear jurisdiction to amend the law to this affect so that the Pakistan shall be free from any further coup from the armed forces or judicial command.

( The writer is Barrister-at-Law,Sr. Advocate & Chairman, State Legal Aid Committee)