The PPP would rather go out in a blaze of glory
As the prime minister, once again, prepares to appear before the Supreme Court to face contempt charges, our nation has (characteristically) been engulfed in a flurry of speculations and doomsday scenarios. Journalists, lawyers and politicians – from both sides of the isle – have taken definitive stances on the issue: one side, (sheepishly) defending the prime minister, is drumming the mantra of judicial victimisation and political martyrdom; the other has conveniently taken the legal and moral high-ground of upholding the majesty of law and verdict of the Supreme Court.
But the embroiling issue must be viewed through two distinct lenses: legal and political.
Viewed through a strictly legal prism, the issue is relatively straightforward. There is no denying (even by the prime minister’s camp) that the Supreme Court, having declared the NRO void ab initio, has explicitly directed the government to write to the Swiss authorities. And the defense of the government stands on the weak footing that in the absence of a definitive judgment by the apex court on the ambit of Article 248 (presidential immunity), the prime minister is acting in good faith – relying on the advice of the law ministry – to conclude that such a letter cannot be written since the president enjoys ‘complete immunity’.
But all this talk of good faith and reliance on advice of the law ministry does not dilute the fact that the prime minister is willfully and admittedly disregarding an order of the Supreme Court which prima facie, under the Constitution and the Contempt of Court Ordinance 2003, amounts to civil contempt, punishable by imprisonment of up to six months.
In the circumstances, the Supreme Court, vowing fidelity to ‘fiat justitia, ruat coelum’ (let justice be done though the heavens fall), could hold the prime minister guilty of contempt, sentencing him to imprisonment and consequently disqualifying him from his seat in the Parliament per Article 63(1)(g) of the Constitution. If so ruled, the prime minister could seek review of the decision, which will probably be an exercise in futility since the ambit of review jurisdiction is narrow, allowing only for correction of errors ‘floating on the surface’ of the original judgment.
Carrying the argument forward, the president may, under Article 45 of the Constitution, pardon and commute any sentence passed by the Court. Such pardon, however, will not wash away the conviction itself, barring the prime minister from contesting elections for at least five years. The PPP government, in such a scenario, may opt to sacrifice the prime minister, appointing some other person for the job. This option may even buy enough time to roll through the politically crucial Senate elections.
From a purely legal perspective, it seems extremely unlikely that the six-member bench of the Supreme Court will accept the prime minister’s argument of complete presidential immunity under Article 248. Such a verdict, at the very least, would violate the principle of stare decisis and amount to overturning part of the full-court judgment rendered in the original NRO case. Furthermore, such an order would fall outside the purview of the present bench, which has been constituted only to implement the NRO judgment and not to review it.
Much more complex is the political aspect of this issue. The authority of law is a moral authority, which seldom has much bearing on politics. As Machiavelli once said, politics has no relation to morals. And the PPP government understands this fact. Having completed four years of its tenure with nothing much to show for, there seems to be virtually no political advantage to writing a letter to Swiss authorities. Not doing so, in fact, has two clear and present advantages: one, it protects the Co-Chairperson of the party, and two, with their back against the wall and less then 12 months remaining on the clock, it allows the PPP government to be judicially martyred. In a society that values martyrdom much more than principles, and certainly more than legality – demonstrated by our roster of ‘heroes’ such as Mumtaz Qadri and Ghazi Abdul Rasheed – such a move could be a masterstroke for PPP going into the next elections.
The sad part of this saga, however, is that the opposition forces seem to be rallying behind the Court not out of a desire to uphold the supremacy of law (no such reaction was shown in other instances of possible contempt, e.g. against the sugar-producing lobby when the judgment on fixing the price of sugar was blatantly disregarded). They simply want to see their opponent fall. And this, too, is a political (not legal) desire.
Be that as it may, let us at least have the wisdom to accept that political aspirations, and not fidelity to law, is driving the passions and rhetoric of all parties, coming into this election year.
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: saad@post.harvard.edu