ISLAMABAD: The Supreme Court on Tuesday issued a detailed verdict in the contempt of court case against Prime Minister Yusuf Raza Gilani and hinted that his conviction might lead to his disqualification for at least five years from the date he was elected as a member of parliament or a provincial assembly.
The moment the country’s highest court issued its detailed verdict, Prime Minister Gilani was in the air on his way to the United Kingdom for a five-day official tour. The hapless premier would touch British soil with the sword of Damocles of possible disqualification around his neck.
"It may not be lost sight of that, apart from the other consequences, by virtue of the provisions of clauses (g) and (h) of Article 63(1) read with Article 113 of the Constitution a possible conviction on such a charge may entail a disqualification from being elected or chosen as, and from being, a member of Majlis-e-Shoora (parliament) or a provincial assembly for at least a period of five years," the court ruled in its detailed verdict.
On April 26, a seven-member bench of the apex court headed by Justice Nasirul Mulk sentenced Prime Minister Gilani till the rising of the court for wilfully disregarding the court's order on writing a letter to the Swiss authorities for the reopening of graft cases against President Asif Ali Zardari.
The detailed verdict in the contempt case written by Justice Nasirul Mulk consists of 77 pages with an additional six-page note written by Justice Asif Saeed Khosa also attached. The seven-member bench of the apex court heard the National Reconciliation Ordinance (NRO) implementation case for over three months.
The court in its detailed verdict ruled that the accused (Gilani) is the highest executive functionary of the state of Pakistan and he has wilfully, 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," says the verdict.
The court noted that if orders or directions of the highest court of the country are defied by the highest executive of thecountry 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 court noted that Barrister Aitzaz Ahsan, counsel for PM Gilani, in his written submissions brought on the record at the end of his oral arguments had specifically adverted to the provisions of Section 18 of the Contempt of Court Ordinance and, thus, he was fully aware of the applicability and implications of the said legal provision vis-‡-vis the case against him.
"It is, however, another thing that throughout his oral arguments and submissions the learned counsel for the accused had failed to utter even a single word on the subject," says the verdict. The court ruled that the learned counsel for the respondent submitted that the prosecution had failed to establish the mens rea of the respondent. The respondent had been charged for 'wilful' disobedience. The mens rea required for such charge, is the wilfulness of the respondent.
"This is amply demonstrated by the conduct of the respondent, who being aware of the direction of this court, at least, from the time the first summary was presented to him and being Chief Executive of the Federation was the ultimate authority to formally carry out the orders of the court, which he persistently declined," says the detailed verdict.
The court ruled that his clear direction in the second summary presented to him, and his categorical stand before it upon commencement of the contempt proceedings when the respondent appeared in response to the show-cause notice establishes beyond reasonable doubt that the respondent wilfully flouted, and continues to flout, the orders of this court.
As regards the second ingredient of the charge, Rules 5(1) and (2) of the Rule of Business and Article 90 of the constitution, which were mentioned in the first summary, the respondent had the final authority in the matter.
"It is now admitted, and is proved on record, that it was the respondent who took the ultimate decision. With authority comes the duty to exercise it whenever required by a lawful order. The respondent failed to obey a lawful order, which he was constitutionally bound to obey."
The court ruled that key words used in the charge were 'wilfully flouted', 'disregarded' and 'disobeyed' which find a specific mention not only in Section 2(a) of the Contempt of Court Ordinance (V of 2003) defining 'civil contempt', but also in Section 3 of the said ordinance defining 'Contempt of Court'. The Ordinance V of 2003 derives its authority from Article 204(3) of the constitution, Article 204(2) of the constitution itself empowers this court to punish a person for committing 'Contempt of Court' and the abovementioned words used in the charge framed against the accused also stand sufficiently covered by the provisions of Article 204(2) of the constitution.
The court further noted that even if a charge framed against an accused for committing contempt of court is established before a court still for finding him guilty or for punishing him, even after establishing of his culpability, the provisions of Section 18 of the Contempt of Court Ordinance (V of 2003) require the following satisfactions to be recorded by the court:
(1) No person shall be found guilty of contempt of court, or punished accordingly, unless the court is satisfied that the contempt is one which is substantially detrimental to the administration of justice or scandalises the court or otherwise tends to bring the court or judge of the court into hatred or ridicule.
(2) In the event of a person being found not guilty of contempt by reason of sub-section (1) the court may pass an order deprecating the conduct, or actions, of the person accused of having committed contempt.
The court ruled that these provisions of the Contempt of Court Ordinance clearly show that despite his culpability having been established, a court seized of a matter of contempt is not to hold the offender guilty or punish him for every trivial contempt committed and it is only a grave contempt having the effects mentioned in Section 18(1) that may be visited with a finding of guilt or punishment.
The court pointed out that in this context that the satisfaction of the court mentioned in Section 18(1) regarding gravity of the contempt is to be adverted to by it after commission of the contempt is duly established and such satisfaction of the court is neither an ingredient of the offence nor a fact to be proved through evidence.
"In our considered opinion such satisfaction is purely that of the court concerned keeping in view the nature of the contempt found to have been committed, its potential regarding detrimental effect upon administration of justice or scandalising the court and its tendency to bring the court or the judge into hatred or ridicule," says the detailed judgment.
The court ruled at such stage the contempt of court attributed to the offender already stands established and assessment of the tendency of the contempt to possibly create the above mentioned detrimental effects is thereafter to be undertaken by the court for its own satisfaction in order to decide whether to convict or punish the offender or not and such satisfaction based upon judicially assessed possible effects is not to be based upon proofs or evidence to be produced during the trial. However, if the court is not satisfied about the abovementioned detrimental effects then despite the contempt having been established and proved, it may not convict or punish the offender and may resort to merely deprecating the conduct or actions of the accused in terms of Section 18(2) of the Ordinance.