Category Archives: Sibghat Kadri QC

Supreme Court sacks Prime Minister

In an unprecedented show of judicial independence and strength, the Supreme Court of Pakistan has dismissed the Prime Minister Mr Yousaf Raza Gillani for contempt of court. In an earlier post this blog debated what Mr Gillani’s fate might be? Mr Kadri QC and I concluded that by breaching a court order and acting contemptuously, Mr Gillani was destined to get into trouble. And it seems that our prediction was correct! 

Mr Gillani was convicted of contempt and did not appeal the Supreme Court’s decision.

Stripping the prime minister of his office, a measure of last resort used by the judiciary to maintain constitutional order, was a difficult step to take and Mr Gillani’s successor will face the even harder task of writing to the Swiss authorities (pursuant to, and in implementation of, paragraphs 177 and 178 of the NRO Judgment) to restart the corruption cases against the President Asif Ali Zardari and his cronies.

In order to replace Mr Gillani, who will be departing from his official residence today, it is expected that the National Assembly will elect a new prime minister on Friday 22 June 2012.

Exercising its original constitutional jurisdiction, the Supreme Court ordered that:

Syed Yousaf Raza Gillani guilty of contempt of Court under Article 204(2) of the Constitution of the Islamic Republic of Pakistan, 1973 read with section 3 of the Contempt of Court Ordinance, 2003 and sentenced him to undergo imprisonment till rising of the Court under section 5 of the said Ordinance, and since no appeal was filed against this judgment, the conviction has attain finality. Therefore, Syed Yousaf Raza Gillani has become disqualified from being a Member of the Majlis-e-Shoora (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 26.04.2012 with all consequences, i.e. he has also ceased to be the Prime Minister of Pakistan with effect from the said date and the office of the Prime Minister shall be deemed to be vacant accordingly

The Pakistan Mazdoor Kissan Party is pleased with the Supreme Court’s approach to the issue of Mr Gillani’s contempt. No one is above the law: especially not the prime minister. Pakistan’s citizens deserve that people with public power should be held accountable for their actions. Our country’s politicians ought to respect the rule of law and refrain from using the law of the jungle for their own political ends.

A free and fair judiciary is in Pakistan’s interest and decisions such as this one, if consistently made and respected, might help our country restore constitutional order. It is hoped that such actions will help Pakistanis make strides towards freedom.

The people of Pakistan are universally embracing the ruling: they complain that Mr Gillani was not working in the interests of “good governance”. The people, who have no water, electricity, sanitation and food are rejoicing at the prime minister’s demise/dismissal because he failed to act in accordance the constitutional role allocated to his office.

The Court’s Short Order is available below

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Apex court tells PM “après moi, le deluge” won’t work

The Contempt of Court Ordinance 2003 is in the news a lot. But the novelty is that the parties to the proceedings, about which we hear so much in the media, are the prime minister and the judiciary. Whoever is wrong or right, one thing is for certain: the law is sacrosanct and ought to be respected. But as Pakistanis, during our last six-and-a-half decades of “freedom”, we have become accustomed to seeing the overriding principles of democracy be compromised for the sake of a few rich and corrupt people.

In the present political climate, on the one hand, there is a feeling in the country that military rule will be re-established soon. Equally, on the other hand, loyalists of the PPP predict that they will win bigger in the next elections. I’d like to disagree with the idea that the imposition of martial law is inevitable. But after a detailed conversation with my old comrade Mr Sibghat Kadri Q.C., I reanalysed recent violent events (such as the killings of so many advocates in Karachi). Then I reread some recent supreme court judgments and orders: specifically Intra-Court Appeal No. 1 of 2012 (“the appeal”).

The appeal (Jawwad Khwaja J delivering the order of a bench of seven judges) traces its roots to the National Reconciliation Ordinance (NRO) – which was invalidated by the supreme court in December 2009 – and was aimed against the actions of the Prime Minister of Pakistan Mr Yousaf Raza Gillani (“the appellant/contemnor”) who resisted the January 2012 order of the supreme court, directing him to show cause, for not following the writ of the court as set out in the NRO Judgment: Dr. Mobashir Hassan & others v. Federation of Pakistan & others (PLD 2010 SC 265).

This post is concerned with the observations made by the supreme court in the appeal in relation to the transparency of institutions and respect for the rule of law. The clues for the country’s political future, moreover, as set out in the text of the order, are rather interesting and worth examining.

But prior to examining the “political” content of the order, it is worth noting that the supreme court was nothing less than dismissive of the appellant’s counsel Mr Aitzaz Ahsan’s reliance on Imran Ullah v. The Crown (1954 FC 123) and Cornelius J’s observation that the court could not exclude an advocate’s arguments until it was satisfied through a direct question that nothing further could be added to the substance of the case. At paragraph 13 of the order, Jawwad Khwaja J noted that in the Imran Ullah case Cornelius J was dealing with a criminal appeal from the Lahore High Court which had made a final ruling in the matter, whereas the appellant’s matter had yet to be determined. It was also explained to the appellant that, under section 3 of the Ordinance, a person could be named in proceedings for contempt of court if he disobeys or even disregards any order of a court which he is legally bound to obey.

The supreme court was at pains to point out to both the prime minister and his counsel that every effort would be made to afford the appellant/contemnor, Mr Gillani, a “fair hearing” as this was his right under Article 10A of Pakistan’s 1973 Constitution.

Jawwad Khwaja J explained that the case of Justice Hasnat Ahmad Khan v. Federation of Pakistan (PLD 2011 SC 680) had already established that where non-compliance of a court directive is not disputed, the court is, prima facie, justified in the satisfaction that the matter should proceed to trial.

The implementation of the NRO Judgment lies at the crux of the present confrontation between Pakistan’s executive leadership and the judicial authority. In that case, the supreme court ordered the prime minister to request the Swiss authorities to restart proceedings for alleged corruption – involving a sum of $60 million – connected to the present President of Pakistan Mr Asif Ali Zardari.

Following eminent British jurist Professor HLA Hart, the supreme court did not see itself as being bound to “the alternatives of the blind” when interpreting statutes and precedents and thus Jawwad Khwaja J and his brethren rejected any “‘mechanical deduction’ from rules with predetermined meaning.”

In part III of the order, entitled “The Constitutional Imperative”, the supreme court drew comparisons from  various jurisprudence (western and Islamic), literature and Islamic history to conclude that the prime minister was not entitled to any special privileges and at paragraph 19 it was made plain that

Therefore, even though we have no doubt that the appellant is a duly elected Prime Minister of the country and deserves respect, this Court cannot be expected to show any restraint and forbearance on account of his position.

It was also clarified by the court that both Prophet Muhammed (peace be upon him) and the second Caliph Hazrat Umar had warned the people that double standards in the law would lead the nascent Muslim Umma straight to disaster because such behaviour imperiled the objectives of free and fair governance. Pointing out that functionaries of the state such as the prime minister and the president act as fiduciaries of the people of Pakistan, the court also relied on the Persian poet Sheikh Saadi’s verse to make its point – “If the ruler plunders but five eggs, his minions will plunder a thousand roosters.” Very much in his element, Jawwad Khwaja J also noted that under Article 190 of the Constitution “all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court.”

The supreme court emphasized that the nature of the fiduciary relationship coupled with the nature of the oaths of allegiance to the state reflected poorly upon the behaviour of the prime minister. This is where the text of the order, at paragraphs 33 to 34, becomes very interesting and might provide us with clues for the future of Pakistan because the court did make an oblique argument that when civilian authority no longer heeds the ambit of its power and acts in contravention to the duties of its office, then the armed forces must step in (emphasis supplied, perhaps there’s some latent “doctrine of necessity” in what the supreme court said):

33. The Prime Minister’s mandate is circumscribed by Art 90 of the Constitution, which permits him to exercise, in conjunction with various other constitutional functionaries, “the executive authority of the Federation”. This exercise of authority is however, “[s]ubject to the Constitution” as expressly stated in the proviso to Art 90 (1). In the same light, Judges are required to make an oath to the effect that they will discharge their duties “in accordance with the Constitution…and the law”. In fact, this part of the oath is common to the oath of every single functionary for whom the Third Schedule prescribes an oath; one of these oaths which puts the point most clearly requires that such functionary will “uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people.” (Oath of Members of the Armed Forces, Third Schedule, Constitution)

34. It is thus clear that our Constitutional Order is founded on the fundamental instruction that each organ must give effect to and act in accordance with the Constitution. Insofar as an act of any one of the organs of the state travels beyond the limits laid down in the Constitution, the said organ can be said to have strayed from representing “the will of the people of Pakistan.”

Finally, Jawwad Khwaja J cogently ruled that the harmful attitude of “après moi, le déluge” won’t work in an system where the collective interests of Pakistan were at odds with the individual interests of the political elite and their cronies because the former trumped the latter.

We started this discussion with my conversation with Mr Kadri Q.C. and it would be appropriate to end it with the UK’s jurisdiction. That country’s supreme court recently ruled – in a terrorism related case which is known as W (Algeria) (FC) & Ors [2012] UKSC 8 – that despite the risks posed to national security and diplomatic ties of the United Kingodm, the Special Immigration Appeals Commission (which has heard the cases of notorious criminals such as Abu Qatada and Abu Hamza), could make an irreversible and absolute order which precluded the British home secretary from disclosing information (which was used in a terrorist’s trial in the UK) about the source to another country. No doubt in the mother jurisdiction of the common law, the home secretary, one of the four great ministers of the British state, will obey the court’s order.

We think that Jawwad Khwaja J and his brethren will ask Pakistan’s political elite to draw a salutary lesson from our former colonial masters and the legal system which they bestowed upon us.

Watching the funerals of two members of the Mutthida Quami Movement who were murdered in cold blood in Azizabad by terrorists today we could only reflect on what my friend Mr Kadri had argued: the people destabilizing Karachi and Pakistan today want to create circumstances which make it necessary for the armed forces to take control.

The text of Intra-Court Appeal No. 1 of 2012 is available below

Blasphemy and the rule of law: Asia Bibi’s case

History

A barrister by trade Mr Jinnah shared with the profession its militant passion for espousing very precisely advocated arguments and it is not by chance that six decades after his death we can still hear his principles echo. In his first speech to the Constituent Assembly of Pakistan Mr Jinnah provided his people with clues for future action. He described the evils which threatened Pakistan’s interests and suggested remedies which would aid its inhabitants in achieving the secular dream that he had dreamt for the newborn state.

Mr Jinnah

In his first address to the Constituent Assembly Mr Jinnah very famously declared that in Pakistan there could be “no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another”. He also reassured Pakistan’s citizens by his declaration that:

“You are free; you are free to go to your temples, you are free to go to your mosques or to any other place or worship in this State of Pakistan. You may belong to any religion or caste or creed that has nothing to do with the business of the State.”

Clearly Mr Jinnah’s Pakistan was very much about an impartial state which did not treat its minorities poorly and one which did not persecute them.

In his speech Mr Jinnah also reiterated his fears for the future. Pakistan, argued Mr Jinnah, would have to fight diseases such as “bribery, corruption, jobbery, nepotism and black marketing” and in order to win against such evils the post-colonial state would have to grant all its citizens equality and constitutional “human” rights.

Equally, even the later Objectives Resolution (considered to be the touchstone of the “Islamic” influence on Pakistan’s constitution) – which was passed in March 1949 under the aegis of Nawabzada Liaqat Ali Khan – clearly made provisions for the protection of the rights of minorities. Keeping with Mr Jinnah Nawabzada envisaged a nation: Continue reading

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