The Detailed Verdict

The Supreme Court’s detailed judgment, following the short order, falls short of categorically declaring the prime minister disqualified for contempt of court. Conviction is one thing and disqualification is another. Hence, ethics apart, legally and constitutionally Mr Gilani is still the prime minister of Pakistan. That said, the process leading to the disqualification of the prime minister has already been set in motion.
On December 16, 2009, the apex court struck down the 2007 National Reconciliation Ordinance for its being in conflict with several provisions of the Constitution. Since the NRO was declared unconstitutional ab initio, all actions taken or orders passed to give effect to that ordinance became invalid. One of the actions taken under the NRO was withdrawal of an earlier request made by the Pakistani government in 1997 for becoming a civil party as well as for mutual legal assistance in a money-laundering case in Switzerland. The case involved some high-profile people from Pakistan, including Mr Asif Zardari, who since September 2008 is the president of Pakistan. The request for withdrawal was made by the then-attorney general Malik Qayyum-ironically the same person who as a judge of the Lahore High Court had earlier convicted Mr Zardari and Benazir Bhutto for accepting kickbacks in awarding pre-shipment inspection contracts to two Swiss companies. The conviction was set aside by the Supreme Court and Mr Qayyum had to step down.
The detailed verdict explodes several arguments put forward by the prime minister’s counsel to establish that his client was not guilty of contempt of court. The counsel’s first line of defence was that the seven-member bench, which handed down the judgment, was not competent to try the defendant. The defence based its argument on Article 10-A of the Constitution inserted by the 18th Amendment.
The article guarantees fair trial and due process of law to every citizen of Pakistan in both civil and criminal matters. It was argued that the right to fair trial stipulated two things: (a) that no one shall be condemned unheard; and (b) that a person can’t be a judge in his own case. Since the bench, the argument went, had already formed a prima facie opinion as to the culpability of the respondent, it was not possible for the members to conduct a fair trial.
The court’s counterargument was that a judge who initiates trial for contempt merely forms a tentative opinion subject to the final outcome of the case. Hence, on this account he is not rendered ineligible to complete the trial and pronounce judgment. Reference was made to the Contempt of Court Ordinance 2003-Section 11 (3)-which debars a judge who has initiated contempt proceedings involving personal criticism of the judge from trying the accused. However, it was stated, that prohibition didn’t apply to the instant contempt proceedings which arose out of non-implementation of court orders and not personal criticism of a judge.
The second major argument of the defence was that Mr Zardari enjoys presidential immunity inside and outside Pakistan under the relevant constitutional provisions (Article 248) and international law (sovereign immunity) respectively. That is why the Pakistani government can’t ask the Swiss authorities to reopen the case against him, which the defence claimed was closed on merit. The letter could be written only after President Zardari had vacated his office.
As the detailed verdict points out, the sovereign immunity argument was advanced by the government in the review petition against the NRO judgment. However, the full bench of the Supreme Court comprising 17 judges had rejected the argument on the ground that the government had failed to establish that Malik Qayyum’s letter to the Swiss authorities could be treated as authorised on the basis of sovereign immunity. Since the sovereign immunity argument was rejected by the full bench in the NRO review petition, the judgment having assumed finality, the argument has not been entertained by the court in the contempt case.
One may here note the contrast between the positions taken by the government and the judiciary on the implementation of the NRO judgment. The government believes that no criminal proceedings whatsoever can be instituted or revived inside or outside Pakistan against Mr Zardari as long as he holds the office of the president. Since writing to the Swiss authorities in compliance with the NRO verdict will amount to reopening of cases against him, such an action will be both unconstitutional and at variance with international law. The courts on the other hand have not gone into the scope and limits of presidential immunity nationally or internationally and are only insisting on conveying to the Swiss government that the request for the withdrawal made by Malik Qayyum in the wake of the promulgation of the NRO was unauthorised.
The courts are not asking for reopening of cases against the president. Hence, while for the government the essential issue involved in the implementation of the NRO verdict is presidential immunity, for the courts it is revival of the Pakistani government’s request to the Swiss authorities for becoming a civil party as well as for rendering mutual legal assistance in the money-laundering case involving Mr Zardari, among others.
Therefore, one view is that the ruling party is being pushed by the judges to do something which is illegal and unconstitutional. The counter view is that the government’s refusal to carry into effect the apex court’s orders is itself illegal and unconstitutional.
The detailed verdict comes hard on the first view, for the reason that such a position, if accepted, would give everyone the leeway to interpret the law and the Constitution and then flout judicial orders for being illegal or unconstitutional. It is for the courts to interpret the Constitution and the Supreme Court being the highest court of the land, its interpretation is final and has to be accepted. One can hardly disagree with this.
The detailed judgment reiterates the observation contained in the short order that the contempt of court committed by Mr Gilani is “substantially detrimental to the administration of justice.” It also notes that his conviction is likely to entail some serious consequences under Clauses (g) and (h) of Article 63 (1) of the Constitution, read with Article 113. Clause (g) renders a parliamentarian disqualified if he is propagating any opinion or acting in any manner prejudicial, inter alia, to the independence of the judiciary or if he ridicules the judiciary. Under Clause (h) a parliamentarian shall be disqualified if he is convicted for moral turpitude or misuse of power. Article 113 applies the qualifications and disqualifications for a member of a National Assembly to those for a member of a provincial legislature.
For the prime minister’s disqualification to be complete, the proper procedure contained in Article 63 (2) needs to be followed. The article states: “If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker, or, as the case may be, the Chairman shall, within thirty days of raising such question refer the question to the Chief Election Commissioner.” Since the apex court has already raised the question of Mr Gilani’s disqualification, the speaker is bound to refer the matter to the Election Commission within the stipulated period, unless Mr Gilani’s conviction is set aside by a larger bench of the Supreme Court.