Tribune analysis: Why didn’t the court jail the prime minister?

Effect of conviction itself is so ruinous that SC felt it was appropriate to show leniency in matter of imprisonment.

The Supreme Court’s verdict to punish Prime Minister Gilani till the rising of the court was an anti-climax for many. The punishment was over before it began. Prime Minister Gilani went straight to his office to chair a meeting of the Cabinet instead of landing in Adiala Jail.

If Prime Minister Gilani was guilty, why was he spared the maximum sentence of six months imprisonment and a fine of Rs100,000?

The Supreme Court’s ‘short order’ explains why.

According to the ‘short order’, the finding of conviction for contempt of court is “likely to entail some serious consequences in terms of Article 63(1)(g) of the Constitution” and is therefore treated as a mitigating factor towards the sentence of imprisonment. In other words, the effect of conviction itself is so ruinous, i.e. disqualification as member of Parliament, that the Supreme Court felt it was appropriate to show leniency in the matter of imprisonment.

For an astute politician like Prime Minister Gilani, a few months or even years in jail are part of the job description. In fact, a prison sentence now would have held him in good stead – political martyrdom is an investment to encash when it comes to the next polls. However, the consequence of coming under the purview of Article 63(1)(g) of the Constitution is much more lethal as the Supreme Court has suggested. In reaching the decision to hold Prime Minister Gilani in contempt, the Supreme Court must have been satisfied that the contempt is one which is substantially detrimental to the administration of justice or scandalises the court or otherwise tends to bring the court or judge into hatred or ridicule. This is the prerequisite laid down under Section 18 of the Contempt of Court Ordinance, 2003.

Thus, the rule of substantial detriment provided in Section 18 of the contempt law clearly attracts the disqualification provisions under the Constitution. More specifically, Article 63(1)(g) of the Constitution provides that a person shall be disqualified from being elected or chosen as, and from being a member of Parliament if “he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or which defames or brings into ridicule the judiciary…of Pakistan...”.

Prime Minister Gilani has already expressed his intention to appeal yesterday’s verdict before a larger bench of the Supreme Court as entitled to under Section 19 of the Contempt of Court Ordinance, 2003. In the event of dismissal of Prime Minister Gilani’s proposed appeal, the question of disqualification will begin to be raised in earnest.

However, the procedure for disqualification is such that Prime Minister Gilani may yet go unscathed. On the basis of the Supreme Court verdict, ultimately upheld by the larger bench, Prime Minister Gilani’s detractors may raise the question in Parliament that he stands disqualified. However, according to Article 63(2) of the Constitution, as recast by the 18th Amendment, such question of disqualification will be decided by the Speaker of the National Assembly. The Speaker may refer such a question to the Election Commission for a decision within 90 days. However, the Speaker may also decide that no question of disqualification has arisen and, as per the plain language of Article 63(4), the matter ends there conclusively. In such event, it is likely that the decision of the Speaker of the National Assembly would be challenged before the Supreme Court of Pakistan.

The road to saving Prime Minister Gilani from disqualification is long and Aitzaz Ahsan has many miles to go.

Published in The Express Tribune, April 27^th, 2012.