Prime Minister Yousaf Raza Gilani’s fate still hangs in the balance, albeit the National Assembly Speaker has ruled that the charges against him are “not relatable to the grounds mentioned in paragraph (g) or (h) of clause (1) of Article 63, therefore, no question of his disqualification from being a member arises under clause (2) of Article 63 of the Constitution”.
In the first place, no head of any state organ has absolute immunity with the superior judiciary, and there are precedents, having the constitutional authority to review the vires and validity of their decisions or rulings. Secondly, the ruling of the Speaker can be challenged by any citizen in the Supreme Court – the ball could again be in the court of the judges.
What appears from a minute study of the Speaker’s ruling is that she has taken a full advantage of the nebulousness in the short order of the seven-member bench of the Supreme Court as nothing categorical had been said regarding disqualification of the Prime Minister for “willful flouting, disregard and disobedience” of the decision of the court for not writing a letter to the Swiss authorities and seek reopening of the cases against President Asif Ali Zardari.
In their short order, the judges clearly said that the contempt committed by him (the Prime Minister) was substantially detrimental to the administration of justice and tended to bring the court and judiciary of the country into ridicule. But they had, at the same time, noted that the findings and conviction for contempt of court were “likely to entail some serious consequences in term of article 63 (1) (g) of the constitution”. By not being categorical, the judges, for the reason best known to them, left the matter of the Prime Minister’s disqualification vague.
This went to the advantage of the Prime Minister as the short order was immediately transmitted to the office of the Speaker who had to decide the matter within 30 days from receiving the decision of the court and she announced her ruling on the last day of the stipulated time, May 25, 2012. The Prime Minister had received the court’s decision two days after the Speaker and it helped him wait till the custodian of the House determined his fate. This again went to the benefit of the Prime Minister and he might not now consider filing an appeal against the decision of the seven-member bench as the Speaker had, until her ruling was challenged, closed the matter.
Former Law Minister Syed Iqbal Haider, who also served as Attorney General for Pakistan during the second tenure of former Prime Minister Benazir Bhutto, is of the opinion that “no one has absolute immunity” and said that the Speaker’s ruling could be challenged in the Supreme Court. His argument is that the Supreme Court can take up the case on its own or any citizen can challenge the Speaker’s ruling in the Supreme Court.
As if the Supreme Court was not satisfied with the ruling of the Speaker, the Registrar’s office on Friday reportedly wrote a letter to the Senate Chairman for moving against the Prime Minister. Understandably, the Senate Chairman cannot take any action against the Prime Minister who is not a member of the Upper House of Parliament. But this suggests that before taking cognizance of the matter after the ruling of the Speaker, the Supreme Court wants to use all constitutional tolls and instruments available to it.
It was expected that Aitzaz Ahsan would file the appeal against the decision of the seven-member bench on Friday but no final decision could be taken. Whether the Prime Minister is disqualified or not, he is a convict and his conviction would remain in place until it is set aside by the court. And, if the Prime Minister does not file an appeal within the stipulated 30 days, the decision of the seven-member bench will attain finality. Today (Saturday) is the last day to file the appeal.