As constitutional experts believe that due process of law will have to be followed to oust the convicted prime minister, the SC’s detailed judgment released in the contempt case on Tuesday created another round of ripples in the political circles, with the government high ups precisely determining the role of National Assembly speaker and the Election Commission of Pakistan for deciding the fate of the prime minister.
Soon after the release of the SC judgment, a high-level meeting was held at the Presidency in which government high-ups, including NA Speaker Fehmida Mirza also participated. The meeting discussed options available with the NA speaker vis-à-vis reference against the prime minister. According to the sources, the NA speaker has three options; hold the reference, reject it or forward it to the Election Commission to decide the fate of the PM.
A reference submitted by the PML-Q against one of its defecting female MPAs in the Punjab Assembly on which the Punjab Assembly speaker did not take any action despite the passage of three years, also came under discussion in the meeting, the sources said.
The case can be cited as precedence if the speaker decided to hold the reference, the sources further said. According to sources, the ECP has also approached the SC Registrar office for obtaining a copy of the judgment.
Keeping in view the developments on the political and judicial fronts, a constitutional deadlock is likely as the three judges of the SC have declined to be part of the appellate bench in the PM contempt case. At least eight judges are required for the formation of the bench, but according to constitutional experts, a bench consisting of even number judges is unlikely to avert a situation where the bench members could split in equal numbers on the judgment.
To extend the quorum to nine, the chief justice of Pakistan in consultation with the Judicial Commission and with the approval of the president would appoint ad-hoc judges. The ball would again be in the court of the president against whose prime minister the bench will hear the possible appeal and Zardari may delay his approval to linger on the due process of law.
Article 182 of the constitution which deals with the appointment of ad-hoc judges says: “If at any time it is not possible for want of quorum of judges of the Supreme Court to hold or continue any sitting of the court, or for any other reason it is necessary to increase temporarily the number of judges of the Supreme Court, the chief justice of Pakistan [164A][in consultation with the Judicial Commission as provided in clause (2) of Article 175A,] may, in writing,-
(a) with the approval of the President, request any person who has held the office of a judge of that court and since whose ceasing to hold that office three years have not elapsed; or
(b) with the approval of the President and with the consent of the chief justice of a high court, require a judge of that court qualified for appointment as a judge of the Supreme Court,
to attend sittings of the Supreme Court as an ad hoc Judge for such period as may be necessary and while so attending an ad hoc Judge shall have the same power and jurisdiction as a Judge of the Supreme Court.”
There is no time frame mentioned in the said article for approval of the president in appointing the ad-hoc judges.
However, senior constitutional expert Anwar Mansoor was of the view that if the president did not approve the names of the ad-hoc judges within specific time period and the appellate bench could not be constituted, the Election Commission of Pakistan must have to decide the matter within 90 days.
Justice (r) Wajihuddin said that the court in its judgment had clearly made an indication towards provisions of clauses (g) and (h) of Article 63(1) of the constitution that deals with disqualifications for membership of parliament.
Athar Minallah said though the prime minister had the right to appeal against the SC judgment, but keeping in view the circumstances and facts, he should resign from his office.
“The decision came…he underwent imprisonment and he should resign from his office,” he said.
