Analysis: Is the premier on his way out?

The court’s thinking could be swayed by consequences of arresting and sending PM to prison.

The moment the short order was announced, it was widely reported that the Prime Minister was given only a token punishment, ie 30 seconds imprisonment. This is a misreading of the order. The court has passed two sentences: one explicit and the other implicit. The explicit sentence is the ‘imprisonment till the rising of the court’ whereas the implicit sentence is ‘the serious consequences in terms of Article 63(1)(g) of the Constitution’. It seems that the court felt satisfied with the implicit sentence and considering it as a mitigating factor awarded only a very short imprisonment. The court’s thinking might have also been swayed by the consequences of arresting and sending the prime minister to prison which, generally speaking, is a very wise and graceful move on its part.

The ‘serious consequences’ in terms of Article 63(1)(g) are not very hard to discern: It provides the basis for the disqualification of parliamentary membership. It states that a person can be disqualified from being a member of parliament if he is convicted by a competent court, among other things, for acting in such a manner which ‘defames or bring into ridicule the judiciary’. The Supreme Court found the prime minister ‘guilty of and convicted [him] for contempt of court’, especially for bringing the Supreme Court and the judiciary ‘into ridicule’. As a consequence, he cannot be a member of the National Assembly and cannot act as prime minister. We have to wait for the detailed judgement but it seems that the court adopted this reading of Article 63(1)(g) and deemed the loss of premiership and membership of the National Assembly as a serious enough punishment.

Article 63 also spells out a procedure for settling questions related to the cases of disqualification. The speaker should generally take notice whether a member has become disqualified but in cases where disqualification is questioned, the matter can be referred to the Election Commission within 30 days and if she/he fails to do so, the matter is automatically deemed to have been so referred. Although there is no ambiguity in the current case, the speaker can delay the matter of the prime minister’s disqualification for 30 days, if she chooses this course. The acting chief election commissioner is a sitting judge of the Supreme Court and it is probable that he will take up the issue immediately after the expiry of 30-day period. The Election Commission has to decide the matter within 90 days but as it is a very clear case of conviction by a competent court, it is very likely that the prime minister will be disqualified from being a member of the National Assembly sooner rather later. In a sense the implicit punishment can be delayed for some time but the prime minister cannot get away with it.

The prime minister, however, has not reached to the end of the line yet. He has a right of appeal and until the outcome of such possible appeal the process of disqualification cannot be triggered. Closely examining this whole saga of the NRO case and known arguments of both sides, it seems unlikely that the court will change its mind at the appeal stage. It looks like the prime minister is on the way to exit, which I believe, is the implicit and real punishment alluded to in the short order.

The author is a Senior Lecturer in Law at the University of Hull, United Kingdom.

Published in The Express Tribune, April 28^th, 2012.