Analysis: Infallible because final

PM Gilani would be well advised to consider the honour of resignation instead of the indignity of disqualification.

The detailed judgment convicting Prime Minister Yousaf Raza Gilani for contempt of court has firm foundations. On first reading it will disappoint those looking for a shortcut to Prime Minister Gilani’s disqualification under Article 63(1)(g) of the Constitution. However, even the Teflon-skinned PPP government may now find it impossible to continue with Gilani as its prime minister for much longer.

For detractors of Prime Minister Gilani the judgment has not done enough. They were hoping the detailed judgment would elaborate on the tantalising sentence of the short order that “the findings and the conviction for contempt of court…are likely to entail some serious consequences in terms of Article 63(1)(g) of the Constitution…” However, the detailed judgment has rightfully said no more on the how and when the disqualification process under Article 63(1)(g) is to culminate against Gilani. That is best left to the due process under the Constitution.

The detailed judgment has also answered the criticism raised by certain sections of the legal community that the prime minister was condemned unheard. The basis for such criticism was the argument that the conviction of the prime minister was beyond the charge framed against him at least to the extent that he was found to be guilty of bringing the judiciary into ridicule. In other words, that although Prime Minister Gilani could have been guilty of failing to implement the orders the same did not tantamount to ridiculing the court which in turn attracts the disqualification clause under Article 63(1)(g).

The detailed judgment explains why the Supreme Court found Prime Minister Gilani guilty of contempt and why Article 63(1)(g) is attracted.  The Supreme Court pointed out that Prime Minister Gilani was put on notice through Option No.2 in the Order dated 10.1.12 that the possible consequences of non-compliance of the court’s directions could entail disqualification. The Supreme Court reasoned that “In the case in hand the accused is the highest executive functionary of the State of Pakistan and he has willfully, deliberately and persistently defied a clear direction of the highest court of the country. We 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. After all, if orders or directions of the highest court of the country are defied by the highest Executive of the country then others in the country may also feel tempted to follow the example leading to a collapse or paralysis of administration of justice besides creating an atmosphere wherein judicial authority and verdicts are laughed at and ridiculed.”

The judgment gives detailed reasoning on why it was not persuaded by Aitzaz Ahsan’s argument that the bench which had framed the charge could not hold the trial of the prime minister due to the “fair trial” standard under the newly introduced Article 10(A) of the Constitution. The court explained that “If it is held that a Judge holding a trial after having formed a prima facie or tentative opinion on merits of a case violates a litigant’s fundamental right guaranteed under Article 10 A, it would…land our judicial system into confusion and chaos.”

Significantly, the court noted that the ground of immunity had been expressly taken by the federal government in the NRO Review Petition and the Full Court of 17 Judges had rejected such argument, therefore, this seven member bench could not re-examine the plea of immunity. The court ruled that if the president had immunity under International Law the same could be pleaded before the Swiss Courts.

The Supreme Court referred to Justice Robert Jackson’s famous words that “We are not final because we are infallible, but we are infallible because we are final.” Although this case was argued for more than 21 days, the Supreme Court noted that “Here the case did not involve any intricate or minute details which required resolution. It was a straightforward case for implementation of the judgment of this court on which there could have been no two views.”

It is indeed a straightforward case. In light of the verdict, Prime Minister Gilani would be well advised to consider the honour of resignation instead of the indignity of a slow but certain disqualification process. It does no credit to any government when the Supreme Court of a country holds that it is established “beyond reasonable doubt that the [prime minister] has willfully flouted, and continues to flout, the orders of this Court.”

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