The third option

Reema Omer

WHEN discussing the possible choices before the Supreme Court in the NRO implementation case, most commentators talk about only two options: either the court follows the precedent set with former prime minister Yousuf Raza Gilani and disqualifies Prime Minister Raja Pervez Ashraf, or it allows the executive to openly flout its orders to make a mockery of the rule of law.

However, there exists another option that ensures the continuation of the democratic process but at the same time reinforces the message that the court’s judgments must be implemented.

The third option is simply this: PM Ashraf may be convicted for contempt of court for refusing to implement the NRO judgment, but not for bringing the judiciary into ridicule, allowing disqualification under Article 63 of the constitution to be avoided.

This course of action can be supported for three reasons: 1) laws relating to contempt of court and disqualification differentiate between contempt for disobeying the orders of the court and ridiculing the judiciary; 2) there is a material difference between Mr Gilani and PM Ashraf’s defiance so the two cases may be distinguished; and 3) the welfare of the people of Pakistan and continuation of the democratic process demand that another prime minister is not sent home.

Article 18 of the Contempt of Court Ordinance 2003 (now repealed) states that no person shall be found guilty of contempt unless the court is satisfied that the contempt in question meets one or more of the following criteria: a) it is substantially detrimental to the administration of justice; b) it scandalises the court; or c) it otherwise tends to bring the court or a judge into hatred or ridicule. The court decided that Mr Gilani’s refusal to write the letter to the Swiss government was not only “substantially detrimental to the administration of justice” but it also brought the judiciary into ridicule. This is why Article 63(1)(g) of the constitution, which disqualifies a member of parliament if he, among other things, “has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner which defames or brings into ridicule the judiciary (of Pakistan)”, was held to be applicable.

The Contempt of Court Act, 2012 (currently being challenged in the SC) does not contain any provision similar to Article 18 of the old Contempt of Court Ordinance. In fact, the words ‘ridicule’ and ‘defame’ have been completely omitted from the act. Therefore, the contempt laws of Pakistan — both the old ordinance and the new act — allow the court the option to convict and punish PM Ashraf (provided the question of immunity can be overcome, of course) of serious contempt of court and for obstructing the course of justice without disqualifying him as a member of parliament.

The above distinction may also be supported by the fact that there is significant difference between the refusal of Mr Gilani and PM Ashraf to implement the NRO judgment.

The former openly defied the court in public gatherings and rallies, made provocative statements challenging the SC’s authority and made the well-known comment about being a prime minister, not a peon of the court. It may be argued that PM Ashraf’s approach has been far less confrontational; even though he has also stated in unequivocal terms that the constitution forbids him to write the letter to the Swiss government, he has not been hostile or aggressive.

In its detailed judgment in Gilani’s disqualification case, the SC did not lay down any criteria on when disobedience amounts to ridiculing the judiciary. In fact, it stated that this decision was a purely subjective one that the court itself had to make in light of all circumstances of the case. It is possible, therefore, that the court may distinguish between the two cases and choose not to convict PM Ashraf for ridiculing the judiciary.

The most important argument in favour of this position, however, is a political one. The SC has proved that it is powerful, independent of the executive and serious about holding public officials accountable for corruption. However, given the multitude of crises faced by Pakistan today, the chaos and political uncertainty that would result if another PM were sent packing might just be final nail in the coffin for the upcoming elections and a smooth transfer of power.

One may argue that a mere conviction for contempt of court is not going far enough. However, the court has already tried the disqualification option and that has not worked either. In fact, the argument can be made that if the court convicts PM Ashraf of contempt of court alone, it would reprimand him in his individual capacity for defying its orders. However, if he were disqualified, the ensuing political uncertainty would only punish the people of Pakistan — not PM Ashraf and certainly not the PPP.

The PPP’s refusal to implement the NRO judgment must be severely criticised and the SC must not be expected to condone such defiance. However, it is incorrect to suggest that the law does not provide the court with any other choice but to disqualify PM Ashraf if he continues to resist writing the letter to the Swiss government. The option presented here may not be the preferred course of action for the court, or necessarily the most effective one at its disposal, but it is a viable legal recourse to avoid the almost certain political crisis that would emerge with the exit of another prime minister.


http://dawn.com/2012/07/24/the-third-option/