Analysis: The tightrope ahead for Gilani

On Jan 19, Prime Minister Gilani will have to personally appear before Supreme Court for mission impossible.

On January 19, Prime Minister Yousaf Raza Gilani will have to personally appear before the Supreme Court of Pakistan for mission impossible: to explain why the Prime Minister of Pakistan has contumaciously defied the judgment of the Supreme Court in the NRO Case and failed to write to the Swiss authorities.

In December 2009, the Supreme Court had ruled in the NRO Case that the “Federal Government and other concerned authorities are ordered to take immediate steps to seek the revival of [requests for mutual legal assistance; instituting the claim of the Government of Pakistan to huge amounts of allegedly laundered moneys lying in foreign countries including Switzerland.]”

Note the words from the Supreme Court’s December 2009 Order: “take immediate steps.” Instead of taking “immediate steps” as the Supreme Court ordered, the prime minister and his government have dragged their feet for two years on writing to the Swiss authorities. If failure to implement the verdict was not enough, Prime Minister Gilani and President Asif Ali Zardari decided to test the Supreme Court with brazen defiance and recently proclaimed that the present government will not write the letter to the Swiss authorities come what may.

In such a scenario, even an unconditional apology will not help Prime Minister Gilani’s case.  The contempt of court law envisages that, after providing Prime Minister Gilani with a preliminary hearing on January 19, the court may fix a date for framing a charge against him and decide the matter on that very date. If the Supreme Court is satisfied that the inaction of Prime Minister Gilani is “substantially detrimental to the administration of justice” then punishment will be inevitable – six months imprisonment.

If the prime minister is convicted of contempt, he has a right of appeal to a larger bench of the Supreme Court. President Zardari may also immediately utilise his powers under Article 45 of the Constitution and pardon his own prime minister with a trump ‘get out of jail card.’

However, it’s not as easy as just that. In addition to the conviction for contempt, the Supreme Court may also make a declaration, as alluded to in the January 10 order authored by Justice Asif Khosa, that the Prime Minister Yousaf Raza Gilani is not “Ameen.” If such a declaration is made, Yousaf Raza Gilani will stand permanently disqualified from holding not only the office of the prime minister, but also even a member of the National Assembly. Although the President can grant pardon and remit the sentence passed by any court, he has no power to overcome the Supreme Court’s “declaration.”

Thus, this really is mission impossible for Prime Minister Gilani – because if such a permanent clog on his qualification is made by the Supreme Court, even President Zardari’s powers to pardon under the Constitution will not be able to repair the irreversible damage to his political career and that of the PPP coalition government.

(The author is an advocate of the Supreme Court of Pakistan)

Published in The Express Tribune, January 17^th, 2012.