PM’s disqualification: Avalanche of court challenges greets speaker’s ruling

Published: May 29, 2012

PML-N's petition filed by MNA Khawaja Muhammad Asif; PTI's petition filed by senior lawyer Hamid Khan. PHOTO: AGENCIES

ISLAMABAD: 

The saga of the prime minister’s conviction officially entered a new phase on Monday. 

A contentious ruling by the National Assembly speaker last week, striking down calls to disqualify the prime minister, was expected to be challenged in court – which it was on Monday, by a number of petitioners and on a number of grounds.

Two separate petitions were filed in the Supreme Court, one in the Peshawar High Court, while a petition in the Sindh High Court has already resulted in notices being sent on Monday to National Assembly Speaker Dr Fehmida Mirza, Prime Minister Yousaf Raza Gilani, the chief election commissioner (CEC) and the federal government.

The principal competition was between two opposition parties – the Pakistan Tehreek-e-Insaf (PTI) and Pakistan Muslim League-Nawaz (PML-N).

The PTI was the first to announce its intention to file a challenge – through an announcement by its chairman Imran Khan at a rally on Sunday.

Imran filed a petition through his central party leader Advocate Hamid Khan, requesting the Supreme Court to declare the speaker’s decision unconstitutional, and a violation of justice and independence of the judiciary. The petition argued that Dr Mirza had no right to sit on the Supreme Court’s judgment since her membership of the house was on a special seat reserved for women.

“The decision of the speaker is evidently an abuse of power vested in her and her decision is clearly meant to benefit her political bosses – Prime Minister Yousaf Raza Gilani and President Asif Ali Zardari,” the petition said.

Dr Fehmida Mirza was charged with obstructing justice and the exercise of constitutional jurisdiction by the ECP. The petition also stated that the speaker undermined the independence of the judiciary. Imran also censured the speaker’s ruling, saying that she had ignored the fact that the Supreme Court had clearly mentioned the consequence of disqualification under article 63(1) (g) of the Constitution.

The PTI chief requested the court to direct the speaker to decide the question of disqualification of prime minister as having been deemed to have been referred to it under article 63(2) and (3).

The PTI chief said that every option would be used for implementation of the Supreme Court’s judgment, adding that the PML-N was simply following the PTI in each and every matter, including the filing of a petition.

The PTI chief was referring to an announcement by PML-N, hours after the PTI’s announcement, that it too would file a petition on the matter.

PML-N follows suit

PML-N MNA from Sialkot Khawaja Muhammad Asif filed a petition under Article 184(3) of the Constitution. The party requested the court to restrain the prime minister from functioning as the prime minister and member of National Assembly.

The petition questioned whether the speaker’s ruling under Article 63 (2) of the Constitution could defeat the judgment of a seven member bench of the SC which had attained finality after the PM decided not to file an appeal and whether the speaker’s ruling “can flagrantly disregard the rights of all citizens.”

It added that Dr Fehmida’s decision was a “complete violation of the Constitution” and demanded urgent redress under Article 184 (3).

It also questioned whether the right of a fair trial also mandates a corresponding duty to abide by the verdict of a fair trial, which cannot be violated by the NA speaker. It argued that the ruling cannot be protected under Article 69 of the Constitution “by any legal stretch of imagination”.

Sindh High Court notice

Meanwhile, the Sindh High Court issued notices to Dr Fehmida Mirza and Prime Minister Gilani, the CEC and the federal government on a similar petition.

Advocate Moulvi Iqbal Haider – who had actually filed a reference before the National Assembly speaker against Prime Minister Gilani following his conviction by the Supreme Court in contempt of court charges back on April 26, – submitted that the impugned decision of the National Assembly to not submit the disqualification reference was a violation of Articles 4, 5, 9, 10, 25 and 63(2) of the Constitution as well as the oath prescribed under the Constitution.

An SHC division bench, headed by Justice Faisal Arab and Justice Nadeem Akhtar, asked the petitioner to argue on the maintainability of the petition as proceedings of the National Assembly or the speaker’s decision could not be questioned before any court of law.

The petitioner submitted that only the president and prime minister were immune to court proceedings under Article 248 of the Constitution of Pakistan 1973, adding that only in a case of an irregularity did the speaker’s decisions have protection.

After initial arguments, the bench ordered the issuance of notices

Peshawar High Court petition

The speaker’s ruling was also challenged in the Peshawar High Court (PHC). Advocate Abdul Samad Khan Marwat, a member of the Human Rights Commission South Asia (HRCSA), filed the writ petition and made the ECP, National Assembly speaker and prime minister respondents.

When contacted, Abdul Samad Khan Marwat told The Express Tribune that Article 199 of the Constitution gave the right to every citizen of Pakistan to challenge the speaker’s ruling.

(Additional input from Zeeshan Mujahid in KARACHI and Umer Farooq in PESHAWAR)

Published in The Express Tribune, May 29th, 2012.

Reader Comments (7)

  • Mirza
    May 29, 2012 - 6:44AM

    The court’s strength should be increased to several hundred judges each. As they have now succeeded to prolong political cases and had no time for other old cases. Pakistan is the only country in the world where a large bench of SC decides a case in two orders yet they accept the appeals in lower courts, in this case HC.

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  • Ch Allah Daad
    May 29, 2012 - 7:36AM

    Only PML(N) is genuine petitioner, others are match fixers.

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  • RizwanTKhan
    May 29, 2012 - 10:55AM

    @Ch Allah Daad:
    Hahahahahha. Either you a teenage kid or someone who does not want to see the reality. Good one. You made my day :)

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  • abs
    May 29, 2012 - 2:41PM

    This is scary state, I would expect this from PML (N) as they have nothing for betterment of pple but PTI pursuing matters which will add no value to a common persons life is sadddd!!! Any one who wants to come in to power with an agenda of being different from others must take over key issues and not petty matters like these. Who cares if Gilani is convicted and still stick to his seat. He has used the loop holes in our legal / constitution and learning point is to fix it in future so that it does not happen in future.
    Courts will take another year to decide on petition and PPP will bring a new PM with its allies.
    I hope some one looks at into such matters more vigilently than just drifting with tides.

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  • A.S.Ahamed Farooq
    May 29, 2012 - 5:02PM

    Dr.Fehmida Mirza,the Speaker of the National Assembly of Pakistan,has not only intentionally abused her powers as the Speaker but also conducted herself in a manner amounting to contempt of court.The Judiciary is the third branch of the government and its is entrusted with the task of safeguarding the Constitution and therefore it is the watchdog of the Supreme Law of the country.The Judiciary is the instrument through which checks and balances required for the smooth functioning of the government is effected and maintained.In this respect the Judiciary is supreme.The Supreme court has concluded that graft amnesty granted to Asif Zardari by Peverz Musharaff was ultra vires of the constitution and therefore it was null and void.Accordingly Reza Gilani was directed to reopen the corruption cases against Zardari.His refusal to carry out the order of the Supreme Court was undoubtedly contempt of court.Reza Gilani was convicted of contempt of court by the Supreme Court.On the basis of this conviction Gilani is liable to be disqualified from the National Assembly.Hence Dr.Fehmida Mirza’s ruling is unacceptable and is in defiance of the Supreme Court order.The Speaker is duty bound to be impartial,fair and just in her ruling in the National Assembly.Her effusive disregard for the authority of the Judiciary is reprehensible.

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  • Dr. Nabil.I.Awan
    May 29, 2012 - 5:24PM

    @abs
    What do you wish Imran Khan would do, without being in power i.e?

    Imran Khan is just trying his level best to make sure imbeciles like ourselves don’t vote for PPP again. Honestly, I share his views. Our nation is overpowered with emotion and has only traces of rationality present. I wouldn’t put it beyond us to vote for PPP again in the upcoming elections. This is exactly what he (Imran Khan) is trying to avoid.

    Sincerely hoping people would be smart (and courageous) enough to NOT vote for moral-less, principle-less, character-less people and all those who follow/support them.Recommend

  • abs
    May 29, 2012 - 6:07PM

    @ Dr. Awan – Follow up of this case would require incurring some energy. PM has been convicted and atleast on moral basis he should leave if not legal (as gov would ofcourse interpret constitutional clauses in their own favor). Also courts have been equally disappointing / lack sincerity. What was the point in handing over 30 sec detention to a criminal and why not 6-8 months. This would have simply made him disfunctional and he would have to leave office. What was the point in creating a new politicial fiasco.
    In my personal opinion court is biased or atleast not far sighted. these back to back cases against gov (and none against equally corrupt Sharif Bros) would help PPP win sympathy votes in next elections (knowing the pple from rural areas who have different concerns altogether than ours) as well as an excuse for non performance.
    I would rather want Imran to incur his positive energy on penetrating further in rural areas as he is surely not going to win elections at such locations without having done required ground work. This will enhance his winning chances.
    No one in general public cares who is PM / if he is convict or not. Pple are concern where and how to get food / jobs / decent living stds for their families.

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