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Sohail Khan
Wednesday, July 04, 2012
From Print Edition
 
 

 

ISLAMABAD: The Supreme Court on Tuesday ruled that by not referring the matter of the disqualification of former Prime Minister Syed Yusaf Raza Gilani to the Election Commission, the Speaker National Assembly Dr Fehmida Mirza exceeded her lawful authority.

 

A three-member bench of the Supreme Court headed by Chief Justice Iftikhar Muhammad Chaudhry released the detailed judgment in the speaker’s ruling case and ruled that the Constitution required the speaker to refer the matter of disqualification to the Election Commission. “By not referring the matter to the Election Commission, the speaker exceeded her lawful authority and her decision therefore was liable to be struck down upon judicial review,” the detailed judgment ruled.

 

The chief justice noted in the detailed judgment that when a court of competent jurisdiction finds a member of parliament guilty of an offence under Article 63(1)(g) of the Constitution, the speaker has no discretion left in the matter. “In such circumstances, the Constitution requires the speaker to refer the matter of disqualification to the Election Commission. Therefore, by not referring the matter to the Election Commission, the speaker exceeded her lawful authority. Her decision therefore was liable to be struck down upon judicial review, says the detailed judgment.”

 

The country’s highest court on June 19, 2012 had disqualified former Prime Minister Syed Yusuf Raza Gilani from the office of prime minister and from being a member of parliament after finding him guilty of contempt and of bringing the court into ridicule by not obeying its order on the NRO and for not writing a letter to the Swiss authorities for reopening graft cases against President Asif Ali Zardari.

 

In the detailed judgment, the lead opinion has been authored by the chief justice who focused on the fact that the detailed judgment of the Supreme Court in the PM’s contempt case had found him guilty of contempt and of bringing the court into ridicule.

 

The detailed judgment said that the prime minister did not file an appeal against his conviction, as a result of which it attained finality.

 

On June 19 2012, the Court had passed a Short Order, upholding petitions challenging the ruling of the speaker of the National Assembly, Dr Fehmida Mirza. After the conviction of the former PM Yusuf Raza Gilani, the speaker had to decide whether or not to send a reference to the Election Commission for Gilani’s disqualification.

 

The speaker decided that no question of disqualification had arisen, despite the PM having earned a conviction for contempt from the apex court. Various petitioners, including the PTI and PML-N challenged the speaker’s ruling.

 

While hearing these petitions, the court found the speaker’s decision to be against the law and held that the PM did indeed stand disqualified to be a member of parliament. Today, detailed reasons have been given for this order. In a concurring note, Justice Khilji Arif Hussain, another member of the bench, has placed reliance on various precedents to show that the speaker’s decision on qualification or disqualification of parliamentarians was not immune from judicial review.

 

He has also rebutted the argument that the mechanism for disqualification provided in Article 63 is the exclusive way of dealing with the question of disqualification. A solid chain of precedents from the 1960s onward, including Farzand Ali’s case (1970), shows that the superior court has an independent power to unseat people illegally occupying public office, including members of parliament. The well-known writ in the nature of quo warranto is available in the Constitution precisely for this purpose.

 

The presence of an alternative remedy under Article 63(2), in the form of recourse to the Election Commission, has not extinguished this power of the superior courts. In the present case, where the conviction was evident on the face of the record, and the case did not involve any disputed questions of fact, this power of the Court to disqualify a member of parliament had been rightfully invoked.

 

Justice Khilji also presented a detailed legal analysis of the court’s doctrine on the issue of maintainability of petitions under Article 184(3). He noted that the possibility of the highest executive office of the Federation being in the occupation of someone who stood legally disqualified to occupy that office was a matter of grave concern. Indeed, there could scarcely arise a bigger question of public importance with reference to the enforcement of fundamental rights in the country.

 

“If the PM himself is guilty of illegality, how can the rest of the state machinery be expected to uphold the rule of law? Therefore, the court, which is obliged by the Constitution to ensure adherence to the rule of law, could not be expected to act as a silent bystander. It had no recourse but to entertain these petitions under Article 184(3), Justice Khilji maintained.

 

Similarly, in a short concurring note, Justice Jawad S Khawaja highlighted certain constitutional principles. He noted that in the Pakistani context, the old-fashioned British concept of parliamentary sovereignty is no longer relevant. In Pakistan, the Constitution enjoys supremacy over all organs of the state, including parliament. Therefore, on constitutional issues, members of parliament, including the PM, could not avoid being answerable in court.

 

Justice Khawaja also elucidated that the various provisions of the Constitution invoked in this case, i.e. Article 190, (obliging all executive authorities to assist the SC), Article 204 (allowing SC to punish contemnors) and Article 63(1)(g) (disqualifying contemnor) all fell into a neat scheme. “The purpose of this scheme was to create an effective mechanism for ensuring adherence to the Constitution,” he said adding that since the Constitution is the manifestation of the will of the people, adherence to the Constitution also represents the triumph of democracy.

 

He observed that the removal of the convicted PM and his replacement through constitutional means by parliament demonstrated that in Pakistan, institutions held precedence. As long as the Constitution is scrupulously adhered to, no individual, not even the PM, is indispensable, the note said.