ARTICLE ON
CRITICAL ANALYSIS OF CONSTITUTIONAL APPROACH ADOPTED BY SUPREME COURT IN
DISQUALIFYING THE PRIME MINISTER
By:
EHSAN AKHTAR
LL.M (Part II)
Email: ehsanakhtar30@yahoo.com
Introduction
Asif Saeed Khan Khosa honorable judge of Supreme Court observed in the case[1] of
Yousaf Raza Gillani that the Power to punish a person for committing
contempt of Court is primarily a power of the people of this country to punish
such person for contemptuous conduct or behavior displayed by him towards the
Courts created by the people for handling the judicial functions of the state
and such power of the people has been entrusted or delegated by the people. He
observed that the ultimate ownership of the constitution and of the organs and
institutions created there under as well as of all the powers of such organs or
institutions rests with the people of the country who have adopted the
constitution and have thereby created all the organs and institutions
established under it.
He further
observed that a person defying a judicial verdict in fact defies the will of
the people at large and the punishment meted out to him for such recalcitrant
conduct or behavior is in fact inflicted upon him not by the Courts but by the
people of the country themselves acting through the Courts created and
established by them.
He said that the
constitutional balance vis a vis
trichotomy and separation of Powers between the
legislature, the judiciary and the executive is very delicately poised and if
in a given situation the Executive is bent upon deploying a final judicial
verdict and is ready to go to any limit in such defiance including taking the
risk of bringing down the constitutional structure itself then it would be the
responsibility of the people themselves to stand up for defending the
constitution and the organs and institutions created and established there
under for dealing with the delinquent appropriately.
Facts of Yousaf Raza
Gillani's case
The National
Reconciliation Ordinance, 2007 was promulgated by the then president of
held that Sections 2, 6 and 7 of the NRO were ultra vires and violative of various
Articles of the constitution and declared the NRO void ab
initio and non est. It was further held that all steps taken, actions suffered
and all orders passed by whatever authority, any orders passed by the Courts of
law including the orders of discharge and acquittals recorded in favor of
accused persons were also declared never to had
existed in the eyes of law and resultantly of no legal effect.
The Court in Dr.
Mobashir case directed the federal Govt. in Para 178
of the judgment as "Since the NRO stands declared void ab
initio and therefore any actions taken or suffered under the said law are also
non est. in law and since the communication addressed by Malik
M. Qayyum to various foreign fore/authorities/Courts
withdrawing the requests earlier made by the Govt. of Pakistan for mutual legal
assistance surrendering the status of civil Party, abandoning the claims to the
allegedly laundered moneys lying in foreign countries including Switzerland
have also been declared by us to be unauthorized and illegal communications and
consequently of no legal effect, therefore, it is declared that the initial
requests for mutual legal assistance securing the status of civil party and the
claims as to the allegedly laundered moneys lying in foreign countries
including Switzerland are declared never to have been withdrawn"
Therefore, the
Federal Govt. and other concerned authorities were ordered to take immediate
steps to seek revival of the said requests, claims and status. Thereafter, the
contempt of Court proceedings were initiated by suo moto action[3]
against Syed Yousaf Raza Gillani, the Prime Minister
of Pakistan for non-compliance of directions given by this Court to the federal
Govt. in paras 177, 178 in the case of Dr. Mobashir Hassan, for the revival of the requests withdrawn
by the then Attorney General, Malik M. Qayyum to be a civil Party in a money laundering case in
Switzerland.
Ratio Decidendi of Contempt of Court case:
In the case[4] of
contempt of Court the Prime Minister of Pakistan/Chief Executive of the
federation was found guilty of and convicted for contempt of Court U/ART. 204(2)
of the constitution of Islamic Republic of Pakistan 1973 read with section 3 of
the Contempt of Court Ordinance, 2003.
He was convicted for willfully, deliberately and Persistently
disobeying, flouting and disregarding the direction of Court given in Dr. Mobashir Hassan case and the Supreme Court found that his
non implementations of the direction was substantially detrimental to the
administration of justice and tended to bring the Court and the judiciary of
this country into ridicule and the judges or Court gave the contemnor nominal
punishment because they found that the conviction under contempt was likely to
entail some serious consequences under Art. 63(1) (g) of the constitution and
these were the mitigating factors for so nominal Punishment and the Court
pronounced Punishment u/S. 5 of Contempt of Court Ordinance, 2003 with the
imprisonment till the rising of the Court.
Brief Facts of Disqualification case:
In
disqualification case[5]
two writ Petitions were field directly before the Supreme
Court under Article 184(3) of the constitution challenging the ruling of the
speaker who decided that no question for disqualification of the respondent had
arisen even after the judgment of conviction rendered by the Supreme Court. The
petitioners asserted that the respondent stands disqualified as a member of the
Parliament and he has also ceased to be the Prime Minister on and from the day
and time of his conviction. The petitioners made the following prayers before
the Court.
It was therefore,
respectfully prayed that in the light of the submissions made in the pares
above the second Respondent is required to show under what authority of Law he
claims to hold the office of the Prime Minister of Pakistan. It was further
prayed that pending disposal of the main petition this learned Court be pleased
to restrain the second respondent from acting as Prime Minister and to stop
usurpation of his office and misuse of the facilities connected with the said
office.
It was therefore, most respectfully prayed that this
honorable Court may graciously be pleased to declare the decision of the
speaker as unconstitutional, void and in violation of fundamental right of
access to justice and independence of judiciary. It was further prayed that
this Honorable Court be pleased to direct election commission to decide the
question of disqualification of Respondent as having been deemed to have been
referred to it u/Art. 63(2) and (3).
Ratio Decidendi of Disqualification case:
In this case[6]
the Court held that after having been convicted and sentenced for contempt of
Court the respondent has been disqualified ipso facto from being a member of
the parliament. The Court observed that the respondent after having been
convicted by the 7-member bench for contempt of Court becomes disqualified to
be a member of the Parliament in terms of Art. 63(1)(g)
of the constitution as he did not avail the remedies provided by law to get such
a finding set aside. The Court also held that the speaker is not an appellate
authority of the Supreme Court whose judgment has got finality,
the Court's contention was that there are certain provisions in Art. 63 (1)
where the speaker has only to make reference to the election commission after
the concluded judgment of the Court and when the Court has convicted a person
then the speaker has only limited power and she had to only make reference to
the election commission and the election commission will disqualify that person
after being convicted by the Court.
The Court
further held that after the finality of the conviction the respondent becomes
disqualified from being a member of Parliament in terms of Article 63(1)(g) of the constitution on and from the date and time of
pronouncement of the judgment of this Court dated 26-4-12 with all consequences
and he has ceased to be the Prime Minister of Pakistan with effect from the
said date.
Critical analysis
(l) The question for consideration is whether the conviction
of the Prime Minister brought his case within Article 63 (1) (g) of the
constitution of
The conviction of the Prime Minister brings his case within
Article 63 (1) (g) because if the highest authority of the federation/ the
chief executive willfully and deliberately disobeys the order of the Court and
such defiance will ridicule the Court because the effects or consequences of
such defiance are far reaching and will defame the Court.
This case[7] of
Yousaf Raza Gillani falls U/Art. 204(2)(b)[8]
because the reaction of the Prime Minister to the direction of the Court in Mobashir Hassan case[9] is
such that it defames the Court and his defiance of direction at such high level
will ultimately ridicule the Court and not only this Court but the whole
judiciary of the country as had been concluded by the Supreme Court in this
case.
If the defiance
is committed by an ordinary man, although he may be liable to contempt of Court
but the effects or consequences of such defiance will not be so harsh and if
the defiance to the order of the Court is committed by the highest authority of
the federation/Chief Executive then its effects will be very harsh and it may
be tended to ridicule the judiciary because it involves the independence of the
judiciary.
(2) The next question for consideration is that
whether the disqualification will take effect from back date, the date of
conviction for contempt or otherwise?
The Role of Speaker:
The role of
speaker in disqualification matters is very important because he is also part
of constitutional machinery to consider the disqualification matters. The role of speaker u/Art. 63(2) is not like the post office
because the question as to disqualification of any member of parliament may
arise by couple of ways either
(a) by the concluded judgment of competent Court U/Art. 63(1) a,
g, h or
(b) if the information is put before the speaker of the national
assembly or the chairman of senate as the case may be.
The speaker's role is not like
the post office and he has the power to apply his mind because the words used
in Art. 63(2) are "unless he decides that such question has arisen"[10]
and from these words it can be implied that the speaker has power to apply his
own mind and if the question as to disqualification arises by means of
information put before the speaker directly, the speaker will apply his mind
and if he thinks that question as to disqualification has arisen he will refer
the matter to the election commission and if he finds that no question as to
disqualification has arisen then he will not refer the matter to the election
commission and if he finds that question arises then he will refer, or
If the matter as
to disqualification comes before the speaker after the concluded judgment by
the competent Court the speaker despite the concluded judgment of Court has the
power to apply his own mind as to whether the person for the offence he has
been convicted falls within the matters specified in Art. 63 (1) or not because
every conviction does not disqualify the member of parliament,
for instance if a member is convicted u/Art. 204 (2) (c) and the conviction
comes before the speaker the speaker will apply his own mind as to whether the
conviction falls within the provisions of Art. 63(1) or not
and the member who is convicted under Art. 204 (2) (c) cannot be
disqualified because this conviction does not fall in Article 63(1).
It is correct that the speaker u/Art. 63 (2) is not an
appellate authority over the Supreme Court, but the contention of the Court in
this case that if the speaker checks the judgment of seven member's bench he
will become appellate authority is not correct because he has to just see
whether the question as to disqualification arises or not upon the matters the
person has been convicted and he is not questioning the decision of Supreme
Court as to whether the Court has rightly convicted or not. If the speaker
questions the legality of conviction then he is appellate authority and if he
only considers the matters of conviction as to whether they fall in Article
63(1) or not then he will not be appellate authority.
The
ruling of the speaker U/ART. 63
(2) is subject to judicial review and lastly, thirty (30) day time has been
given to speaker within which he has to apply his own mind and if he cannot
apply his own mind then what is the purpose of this time.
The Role of Election Commission:
As the Court has
held that like the speaker the Election Commission also cannot sit in appeal
over a concluded judgment of a Superior Court and has to decide the question in
the affirmative that the concerned person has become disqualified. The election
commission although cannot sit in appeal but under the constitution it has
power to decide the question of disqualification after the reference is made to
it and as the Supreme Court has concluded that the Prime Minister shall be
disqualified from back date.
The
Supreme Court has usurped or hijacked the power of the Election Commission
given to it U/ART. 63 (3). Because when the question as to disqualification
comes before the election commission it has to decide the disqualification and
if it decides that the member has become disqualified the disqualification
shall be affected from the date of the decision of the Election commission
because the words used in Art. 63(3) are "if the opinion that the member
has become disqualified he shall cease to be a member and his seat shall become
vacant.” [11]
The Power to
determine the disqualification resides with the election commission u/Art. 63
(3) and not to the Supreme Court and the Court has confiscated the Power of
election commission by exceeding its jurisdiction.
Conclusion
At the end it can be concluded that the Supreme Court should
not have directed that the election commission will decide the question
affirmatively, the Supreme Court should have simply referred the matter to the
election commission and the election commission should have decided the matter
independently. The Supreme Court has not followed the constitutional process
for disqualification. The Supreme Court is also bound by the constitution and
it has to follow the constitution and it cannot ignore or pass by the
constitution. The decision of election commission u/Art.
63(3) is not final and is subject to judicial review.
The Supreme Court has not followed the constitutional approach in disqualifying
the prime minister.
[1]. Suo moto
case PLD 2012 SC 553.
[2]. PLD
2010 SC 65.
[3]. PLD
2012 SC 553.
[4]. PLD
2012 SC 553.
[5]. Muhammad
Azhar Siddiqui and others
v/s Federation of Pakistan PLD 2012 SC 771.
[6]. PLD
2012 SC 771.
[7]. PLD
2012 SC 553.
[8]. Constitution
of
[9]. PLD
2010 SC 65.
[10]. Art. 63(2) of Constitution of
[11]. Art. 63(3) of Constitution of