The prime minister’s conviction is considered a giant step forward in terms of Pakistan’s strong and independent judiciary’s exercising powers without fear or favour. To this extent, the Supreme Court certainly has set a good precedent for the powerful, influential and corrupt politicians of Pakistan. However, in light of the prime minister’s rather symbolic punishment, the outcome was not a good one.
While sentencing an accused, even after the mitigating factors have been accounted for, the final prison sentence pronounced by court still has to be proportionate to the nature and severity of the crime of which the criminal has been convicted. Consider the example of a criminal who has been convicted of robbing a bank and looting money worth millions of rupees. How would the criminal feel if instead of being sentenced to the full prison term of, say, 10 years he is sentenced to one month in prison? He would have very little remorse, if any, for what he did.
In the prime minister’s case, at issue was the disrespect and contemptuous disregard shown by the head of the country’s parliament for the orders of the apex court. At issue was whether the SC’s understanding and interpretation of the Constitution could be challenged (rather ridiculed), repeatedly by the prime minister. For this, he could also have been convicted on multiple counts of contempt making his prison sentence longer than six months if the prison sentences were ordered to run consecutively. In view of the enormous precedential value of the judgment, the apex court should have delivered a judgment that carried exemplary punishment. Imprisonment till the rising of the court fell far short of that.
Interestingly, the imprisonment was rather unprecedented too. Black’s Law Dictionary defines imprisonment as confinement (especially in a prison). The word confinement is defined in Black’s Law Dictionary as the act of imprisoning or restraining someone. In light of these definitions, even if the term imprisonment is loosely defined and interpreted, it would mean restraining someone. It is hard to imagine how the prime minister was being restrained “till the rising of the court” when all he was doing was hearing the judgment being delivered.
Now the question is why did the apex court sentence the prime minister in the manner that it did? To answer this, we must examine the reasoning given by the SC for the sentence. The relevant part of the judgment reads that the conviction is “likely to entail serious consequences in terms of Article 63(1)(g) which may be treated as mitigating factors towards the sentence to be passed against him”. Oddly, the PM’s “likely” disqualification from parliament under Article 63(1)(g) was considered a mitigating factor. This raises some more questions: What if the PM is not disqualified? And even if he is, was his “likely” disqualification considered punishment harsh enough for reducing his prison sentence?
Essentially, this sentencing implies that the costs in terms of what the prime minister is “likely” to suffer if he is disqualified far outweigh the benefits of him serving a full sentence in prison. These mitigating factors do not sound very compelling especially in view of the possibility that the prime minister may not be disqualified. This possibility may be fairly distinct since the apex court itself has not used affirmative and unambiguous language about the prime minister’s disqualification and the government can be trusted to come up with ingenious and creative ways to obstruct the disqualification process.
It seems that the court exercised caution and restraint while sentencing the prime minister. To me, this caution and restraint could be a result of either fear or favour. The fear could be that of possibly being labelled an overly activist judiciary that had gone too far. Such fear has little justification since judges are not elected representatives of the people and should not be concerned with their approval ratings.
The apex court set a good precedent with the verdict but should have followed that through with a proper sentencing, commensurate with the gravity of the charge that the prime minister was convicted of.
Published in The Express Tribune, May 27th, 2012.
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An important point is missed that the judgment dated 16.12.2009 passed by the Pakistan Supreme Court declaring NRO unconstitutional has not came to an end with conviction and sentencing of Mr. Gilani on 25.04.2012. The order/judgment of the Apex court till reviewed is valid, binding and enforceable. Every state agency including the prime Minister is bound to act for implementing the judgment. The continuing non- implementation of the judgement amounts to reoccurring contempt. He is committing contempt every second on his failure to implement judgment dated 16.12.2009. The Supreme Court can thus initiate fresh proceedings against Mr. Gilani for his failure to act in accordance with judgment. The Supreme Court showed its grace on 25.04.2012 in taking a lenient view and sentencing him till rising of court; in stead of sentence of six months provided. But the Court may not take same view in fresh proceedings initiated against Mr. Gilani.
Will PTI and PML(N) standby the Supreme Court? In case, it orders the emergency and consiquently a human right and elected government are suspended.
He will go down in history as the only sitting prime minister who was convicted, even though the sentence was very light.
Yes, you are absolutely right. PMs in Pakistan have this habit of getting deposed, 'convicted' and even hanged.
Mr Gilani is the only one to have survived. And for that we must cheer Mr Gilani.
Pakistan’s judiciary can only be considered independent or seen as exercising powers without fear or favour when the apex court stops being selective. one expected the generals to be held accountable in the missing persons case. the court should have behaved differently in the case of forced conversion of hindu girls in the face of threat from the religious right to establish its independence. taking action against a PPP politician for slapping a presiding officer and turning a blind eye to lawyers beating the judges of the lower courts on a regular basis goes to show the apex court is not free of fear and is inclined to favour some.