Nasim Ahmed


It was not unexpected. For many, NA Speaker Dr. Fehmida Mirza's ruling on the Supreme Court's reference on the disqualification of PM Gillani was a foregone conclusion. And yet many had hoped that as an impartial referee she would rise above party loyalty and act in the true spirit of the Constitution - send the SC reference to the Election Commission for a final decision. But, in the end, she proved herself a hardcore PPP stalwart. Not only did she exonerate PM Gillani of any charges of wrongdoing, but she also pre-empted any possibility of the EC starting proceedings for the disqualification of the prime minister as a sequel to the Supreme Court's order in the contempt of court case.

In her 5-page ruling issued two days before the expiry of the 30-day deadline to decide the fate of the prime minister convicted by the Supreme Court on contempt of court charges, Dr. Fehmida Mirza wrote: "No question of disqualification of Syed Yousaf Raza Gillani from being a member arises under clause (2) of Article 63 of the Constitution. I am of the view that the charges against Yousaf Raza Gillani are not relatable to the grounds mentioned in paragraph (g) or (h) of clause (1) of the Article 63. The letters of the Assistant Registrar (IMP) for Registrar of the Supreme Court stands answered accordingly.

Furthermore, the petition of Maulvi Iqbal Haider, Advocate being without any merit, is not maintainable and accordingly rejected."

The NA Speaker's decision has set off a new political, constitutional and legal controversy in the country.

PM Gillani has termed the decision a victory for democracy: "Today, for the first time in the history of Pakistan, democracy has won and the Speaker ruled in my favour."

On the other hand, Leader of the Opposition in the National Assembly Ch. Nisar Ali Khan has dismissed the ruling as partial and biased: "It's quite sad that Speaker National Assembly Dr. Fehmida Mirza has also become a part of the lobby which is bent upon disobeying the Supreme Court's verdict against Prime Minister Gillani. The Speaker has misused her position and has just moved to save a single person.

Seven judges have convicted Gillani of contempt of court while the NA Speaker says that there is no question of disqualification." Nisar added that as per law, the case should have been sent to the Election Commission of Pakistan because "ECP officials are neutral and the case should be reviewed by them."

Legal opinion in the country also seems divided over the issue. While some experts are of the view that the Speaker's ruling is not open to question, respected judicial opinion holds that Dr. Fehmida Mirza has acted beyond her authority because under the Article 63 (3) of the Constitution the authority to determine the substantive question of whether a member should be disqualified is vested in the Election Commission. Justice (R) Saeed-uz-Zaman Siddiqui has said that no one can challenge the Supreme Court, whose judgment is final and binding. Similar views have been expressed by other retired judges of the superior courts.

What lies ahead? Already the PTI has decided to take the matter to the Supreme Court for adjudication. If Ch. Nisar Ali Khan's outburst against the Speaker's ruling is any indication, the PML-N will surely consider keeping the issue alive as a way to pressurise the government and nudge it towards early elections. According to another interpretation, the Election Commission may also intervene in the matter and declare that the Speaker has no constitutional powers to overrule the judgment of the Supreme Court.

In case the matter goes to the court as announced by both the PML-N and the PTI, the country will be in for another battle royal pitting the judiciary against the legislature. This is what various government spokesmen, including the prime minister, have been hinting at for quite some time - the theme of Parliament's supremacy over other state institutions. The NA Speaker's ruling in the contempt of court case has come as a practical demonstration of how the government intends to proceed in dealing with the judiciary and impede its efforts to curb corruption, promote accountability of public officials and establish the rule of law and constitution in the country.

Under this approach, the stand-off between the judiciary and the executive will be given a new twist and turned into one between the Supreme Court and Parliament, which the government says is the supreme body in the country representing the will of the people. In the light of the continued defiance of the judiciary by the government in the last four years, it is easy to see that it will be a new ruse in its hands to obstruct the working of the Supreme Court.
The government's delaying tactics have served it well so far. Its future strategy will be to further politicize the process of justice and thus keep buying time until the next elections.

-cuttingedge