PM’s defiance set a dangerous precedent: SC

Contempt entails possible disqualification for five years although court does not state disqualification as definitive

ISLAMABAD:

Hours after Prime Minister Yousaf Raza Gilani left for the UK on an official trip on Tuesday, the Supreme Court released its much-awaited detailed verdict in the premier’s contempt of court case.

The detailed verdict cited 70 reasons for Premier Gilani’s conviction. Besides a six-page additional note made by Justice Asif Saeed Khosa, Justice Nasirul Mulk, the presiding judge of the seven-member bench that heard the case, authored the judgment.

Citing various orders of the apex court issued from time to time for the implementation of the NRO judgment, the detailed verdict mentions, “We (judges of the Supreme Court) are, therefore, fully satisfied that such clear and persistent defiance at such a high level constitutes contempt which is substantially detrimental to the administration of justice and tends not only to bring this court but also brings the judiciary of this country into ridicule.”

The verdict went on to state that the prime minister’s defiance set a dangerous precedent, and may tempt others to follow his example which would lead to collapse of the administration of justice and judicial authority. The executive authority may question a court’s decision through the judicial process provided for in the Constitution is not entitled to flout it because it believes it to be inconsistent with the Constitution. Interpretation of the law is the exclusive domain of the judiciary, says the verdict, quoting a maxim: “We are not final because we are infallible, but we are infallible because we are final.”

In addition, the prime minister never approached the court for clarification as to the order. He was supposed to give a formal direction or approval to implement the decision of the court, the order held.

Moreover, Article 63(1) read with Article 113 of the Constitution may entail disqualification for at least a period of five years for premier Gilani, according to the verdict – although it does not state disqualification as definitive.

As it turned out during the current proceedings, the verdict states, the prime minister never intended to comply with the orders of this court regardless of any advice. “He (PM) cannot shift the blame or the responsibility to his advisors for not giving him proper advice ... The respondent has taken a conscious decision in that and he must accept responsibility for the same,” mentions the order.

“Instead he took a stand that he would not implement the directions as he believed that the same were not implementable,” adding that “this stand of the respondent continued right up to the conclusion of the trial.”

The judgment adds that the counsel for the prime minister was asked whether Premier Gilani would even now agree to write to the Swiss authorities, during the course of the trial. The only response received was that the letter cannot be written so long as Asif Ali Zardari remains the President of Pakistan.

Swiss cases

The court observed that contrary to the prime minister’s claim that cases in Switzerland against the president were closed on merit, documents speak otherwise.  The court held that as per the context of then attorney general Malik Qayyum’s letter, the cases were closed purely due to what it termed his illegal and unlawful communication with Swiss authorities.

The apex court also noted that the criminal cases before the Swiss Courts were initiated by the Swiss Authorities and not by the Government of Pakistan, which later applied to be made civil party claiming that the amount, if any, found to be laundered, be returned to Pakistan, being its rightful claimant. This position was not disputed by Aitzaz, mentions the verdict.

Aitzaz Ahsan’s arguments

The court has turned down Aitzaz Ahsan’s objections regarding a fair trial opportunity for the prime minister under article 10A, saying that the current trial of the prime minister does not infringe upon the PM’s fundamental right to a fair trial. The objection on this account is, therefore, not sustained, the verdict states.

Immunity issues

In addition, the court order says that Aitzaz never cited Article 248 with regard to presidential immunity. Rather, his argument for immunity was based on international law instead. The order says that the arguments regarding immunity under the international law having been urged before the full court in review and not accepted, the bench is in no position to examine the plea.

In essence, the court order states that since the complete facts of the cases in Switzerland were not present before the court, it was in no position to form a definite opinion about either the case, or about immunity with regard to the case. The court had merely asked that Qayyum’s illegal communication be overturned and reversed with the prime minister once again writing a letter to the Swiss authorities.

The order adds that no written reply to the show cause notice was submitted and the PM’s plea and defence in writing came only in the written statement filed by him at the close of evidence.

PM changed his prosecutor

The court order says that it found it intriguing that the prime minister, exercising his powers, changed his prosecutor during the trial, while the newly inducted attorney general did not put forth arguments in favour of the prosecution but rather pleaded that there was no evidence, whatsoever, on the basis of which the prime minister could be held guilty of contempt. “We were, thus, rendered one-sided assistance only,” mentions the verdict.

The allegations against the prime minister were found to be established beyond reasonable doubt in the conclusion of the verdict, which states that the key words used in the charge were “wilfully flouted”, “disregarded” and “disobeyed” – all of which find a specific mention in the the Contempt of Court Ordinance (V of 2003), which derives its authority from Article 204 of the Constitution.

Published in The Express Tribune, May 9^th, 2012.