Wednesday, June 20, 2012

Pakistan Supreme Court's controversial verdict on prime minister Yusuf Raza Gilani

It is a curious legal, constitutional case. Pakistan prime minister Yusuf Raza Gilani is not being punished for some wrongdoing of his own. He is being punished by the Supreme Court for refusing to re-open the cases of money-laundering against president Asif Ali Zardari. Gilani is absolutely right in pleading the case that he cannot pursue a criminal case against Zardari because he enjoys immunity as head of state under the Constitution. The Supreme Court did not disqualify him from the National Aseembly. That has been left to the Assembly speaker to do the job. Gilani has been convicted of contempt of court, and as a convicted person he should cease to be member of the National Assembly, and consequently the prime minister as well.
Did the Supreme Court say that a president's immunity is confined to what he does to fulfill his constitutional obligations as president and it does not extend to his acts as private person before and during his tenure in the highest constitutional office? The point does not seem to have been made. A president's immunity does not protect him from criminal charges as in murder or rape. Money laundering is a serious offense. Gilani was right in saying that he cannot open the criminal case. The Supreme Court could have found other ways of hauling up the president and not necessarily through the prime minister and the government.
Contempt of court cannot also be used to disqualify him as an elected representative. For that he would have to commit a criminal act in his own individual capacity. The National Assembly can refuse to disqualify Gilani on the basis of the Supreme Court verdict. All that the court can do is fix the quantum of punishment in the form of penalty or time to be spent in prison by Gilani.
There is however the political aspect. In the Pakistan People's Party (PPP) there seems to the unwritten law that the Bhutto family enjoys certain political immunities. The other leaders in the PPP seem to be enjoying their positions in the party and in government due to the largesse doled out by the family. Asif Ali Zardari has usurped the Bhutto family rights after the death of his wife. He has proved himself to be a wily politician. Gilani is perhaps unable to move against Zardari because of the strangehold of Zardari/Bhutto over the party machinery. This could also be used by Zardari to edge out Gilani, who has not proved to be a servile prime minister to the family. The rumours that the young foreign minister Hina Rabbani Khar might replace Gilani is not really fantasy. It could happen.
The legal and political wings of the Pakistan establishment seem to be engaged in a futile and even deathly tussle, and this could only allow the army, the other wing of the estabslishment, to re-enter the fray. It would be a misfortune if the other political parties, including Nawz Sharif's Pakistan Muslim League (N) and cricketer Imran Khan's Tehreek-e-Insaaf Party were to use the court's verdict to unseat Gilani and the PPP and force elections. The National Assembly should stand its ground against the Supreme Court and insist on the principle of separation of powers. The Supreme Court can on its own pursue the money-laundering case against Zardari overruling the immunity principle and the executive should not be an obstacle for that process to take off. But the Supreme Court will have to give a clear direction as to why a president's immunity does not include investigation into criminal charges.
Pakistan perhaps may not have the strong constitutional traditions which to an extent appear to have developed in India. When Indira Gandhi was disqualified in the election case, she ceased to be a member of parliament automatically. In the case of Gilani it has nothing to do with his election. That is why his disqualification becomes legally untenable.
At this stage, the constitutional tussle between the judiciary and the legislature needs to be settled. In India, it is quite clear that the parliament is supreme. If it wants, parliament can overturn any judicial verdict through legislation and constitutional amendment. That is what Indira Gandhi did after the Allahabad High Court judgment. Through an amendment, she removed the jurisdiction of the courts from the elections of vice-president, Lok Sabha speaker and prime minister. It was an act of constitutional arbitrariness but it remains technically constitutional. Pakistan National Assembly have the option of amending the Constitution suitably so that the Supreme Court cannot threaten the executive.

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