Thursday, April 26, 2012

Daily Times editorial April 27, 2012

Prime Minister’s conviction In another first, a seven-member bench of the Supreme Court (SC) hearing the contempt of court case against Prime Minister (PM) Yousaf Raza Gilani has found the PM guilty of contempt and sentenced him symbolically for 30 seconds until the rising of the court. That symbolic sentence may have disappointed all those baying for the PM to be transported from the courtroom straight to jail. Nevertheless, the court’s decision, not unexpectedly, immediately ran into controversy amongst the legal community and the public at large. The short order of the bench, according to defence counsel Chaudhry Aitzaz Ahsan, added the charge of the PM scandalising, ridiculing or defaming the judiciary, which never found mention in the original indictment and on which no proceedings during the hearings were conducted. The perception is difficult to deny that the court appeared throughout the case to be pre-disposed to the final conclusion it has now delivered. Its manifest impatience with, and refusal to allow the defence counsel to present his arguments in full during the hearings, and even after the conviction and sentencing, when Aitzaz Ahsan wanted to raise certain issues/questions regarding the short order, certainly strengthens this perception. In a press conference after the hearing, Aitzaz, amongst other things, read out a list of such questions. The main thrust of the list was on the issues Aitzaz had raised during the hearings, but which the court, at least during the proceedings and now in its short order, seems to have brushed aside. Of course, in all fairness we have to wait for the detailed judgement of the bench before coming to any final conclusions. At this point, it is only prima facie that tentative conclusions can be drawn. Aitzaz had pointed to Article 10-A, introduced under the 18th Amendment, which reinforces the right of every citizen to a fair and free trial under due process. On this basis, Aitzaz had argued that the bench as constituted was assuming the role of judge, jury and executioner in its own cause, a position that sits uncomfortably with the provisions of Article 10-A. Since the bench had itself initiated the contempt of court case, Aitzaz argued, it was not within its purview to hear the case. That argument too was brushed aside by the bench. Further, Aitzaz criticised the addition of an indictment of the PM for scandalising, ridiculing and defaming the SC, a charge that did not form part of the original indictment and on which neither proceedings were held, evidence presented, or the right of defence offered. Again, under the provisions of Article 10-A, this falls foul of the definition of due process. The defence argument that President Asif Ali Zardari, so long as he held the office of head of state, enjoyed unqualified immunity in domestic and international law was never pronounced on by the court, except for repeated remarks that if someone wanted immunity, they must approach the court for it, a strange formulation in the light of the clear wording of Article 248. Be all that as it may, the fallout, implications, and further process in the affair require some explication in the aftermath of this unprecedented verdict against the chief executive of the country. As far as the lobby wishing to see the back of the PM, not to mention the PPP-led coalition government, is concerned, they may still have some teeth gnashing ahead. The disqualification of a sitting PM is not a simple matter of a court, even the apex court, so pronouncing. The law lays down that any sentence of less than two years does not automatically disqualify a sitting member of the National Assembly, and therefore the PM. The Contempt of Court Ordinance 2003 limits sentencing to six months, and in any case the Ordinance per se was challenged by the Attorney General as having lapsed without being passed by parliament. His argument therefore was that at present there is no law of contempt holding the field. That argument too was given short shrift by the SC bench. Even if, for the sake of argument, it is accepted that the conviction disqualifies the PM from continuing in office, the procedure for de-seating the PM involves a reference being sent to the Speaker of the National Assembly to take a decision on the matter within 30 days, failing which, it is deemed that the reference has been sent to the Election Commission to decide the matter within 90 days. But even before that, since appeal lies against the verdict of the bench, which can only be filed after the detailed judgement is available, as long as the appeal process is not exhausted, the contempt case remains alive and in process. Legal and procedural processes aside, there are other worrying aspects of the fallout of the verdict that deserve mention. The verdict has naturally been received badly by the committed workers of the PPP, with protests breaking out throughout the country. It remains to be seen whether the leadership of the PPP will enjoin upon its angry workers the same restraint it has shown in the face of the adverse verdict. If it does not, or cannot contain this brewing anger on the basis of a long held view by the PPP that it has seldom received justice at the hands of the judiciary in the past or now, more agitation may follow in the streets. That is bound to make the judiciary controversial. In this space we have been arguing consistently that the respect and dignity of the judiciary, which is its due in any civilised society, imposes the time-tested principle of judicial restraint on it, which rests in its own hands, lest the judiciary become the subject of controversy. Instead, ever since the restoration of the judiciary in 2009, the latter’s assertion of ‘independence’ and ‘judicial activism’ has more often than not led it into controversy, a divisive factor in legal and public circles. However the present case of the contempt conviction of the PM turns out, perhaps the verdict has opened the floodgates of making the judiciary more controversial than ever in our history and diluting the universal respect that should be its due.

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