By Humayun Gauhar
When I heard the verdict against the prime minister in the contempt of court case, Akbar Allahabadi’s verse came to mind:
Muzzakar kay liyay ‘he’ hai, mouannas kay liyay ‘she’ hai;
Magar Hazrat mukhannas hain, na heeon mein na sheon main.
It’s a parody on the English words ‘he’ and ‘she’, while ‘mukhannas’ refers to eunuchs.
For male it is ‘he’, for females ‘she’;
But esquire is sexless, neither in the ‘hees’ nor the ‘shes’
The verdict is neither he nor she. It’s ‘it’. Prime Minister Yusuf Reza Gillani was convicted, but his punishment was detention in court till the judges choose to ‘rise’. It lasted 39 seconds. Having given their short order, the judges collected their wigs and gowns, rose and left, leaving the defence counsel speechless, to have his say later in a press conference. We are moving towards trial in media rather than by media.
What can I say? Why didn’t the judges go the whole hog, sentence the prime minister to six months and say that as a convict he is no longer eligible to be a member of parliament and thus no longer prime minister? It would have been clear and we would have gone on with our wretched existence. Instead, our confusion has been further compounded. If the judges just wanted to make a token example of the high and mighty by showing them that they are not above the law, they only made our uncertainty more uncertain. If they sidestepped the issue of eligibility and threw the ball into parliament’s court, then we are in for the long haul and much errant nonsense. Perhaps the bench divided, resulting in something for everyone – punish the prime minister without really punishing him.
The contempt case was a sideshow. The real show is to get President Zardari thorough the Swiss courts and make him return the $60 million that he and his wife stole from the people. Not a bad thought, but why depend on a foreign court? Why not order the Lahore High Court to start the retrial of the case that the Supreme Court had asked it to years ago? That court had found Zardari and Benazir guilty of corruption, but because of a taped telephone conversation between a judge adjudicating the case and a government official, it was rightly declared a mistrial by the Supreme Court, which asked the High Court for a retrial. It didn’t throw the judgment out. Why has that been hanging fire for years? Why throw the ball into the Swiss court instead?
The prime minister’s refusal to write a letter to the Swiss authorities to reopen corruption cases against President Asif Zardari despite repeated orders by the Supreme Court over two years led to the contempt. Gillani’s reasoning is not without merit: the president has immunity under the constitution while in office. By writing the letter he would be violating his constitutional oath to preserve and protect the constitution by violating its Article about immunity. Those opposed to the PM’s contention dug up history: two of Islam’s greatest caliphs had presented themselves before a court. They forget that it was a court of their own state, not a foreign court of a non-Muslim country. Those great caliphs would never have countenanced going to a foreign court nor been sent there by their own court. Forgotten is something more important: the concept of immunity does not exist in Islam. To provide constitutional immunity to certain state office holders in an Islamic republic is a violation of the Faith. What is needed is an amendment of the constitution, instead of tying ourselves into knots.
The net result is that convicted prime minister or not, new prime minister out of this National Assembly or not, the letter will not get written so long as there is a People’s Party led government headed by a People’s Party prime minister. Q.E.D.
Our confusion gets further compounded while urgent cases remain pending and Pakistan hurtles into incremental chaos. This is what happens when a country is being led in every branch and at every level by hollow men, more interested in creating optics, enhancing their importance and expanding their jurisdictions than in solving the people’s basic problem of abject deprivation. Such people are themselves mukhannas ‘its’.
It would be unfair to write about the verdict until one has read the full judgment. But the question cries out: why did the Supreme Court reserve judgment in the first place? One would have thought that they did because they wanted to deliberate before arriving at a conclusion and release the full judgment the same day as the verdict was handed down. After all, this is not a case of Gangu Taili committing contempt. It is the Prime Minister of Pakistan for God’s sake. Not good for the country or the democratic process that is evolving in fits and starts and which all today’s protagonists made such a big deal of in President Musharraf’s time. We are told that the judgment was delivered to the Speaker of the National Assembly that elects the prime minister and to the Election Commission last Friday, but I haven’t seen it yet.
How can the prime minister be removed?
He can be persuaded to resign by the president or his party for the greater good to avoid a tamasha. No surprise that many in the People’s Party are preening their feathers for the job, but only the one who pleases the president will wear this crown of thorns.
Being an ex-convict, does he attract the article in the constitution pertaining to ineligibility? The Election Commission can determine this but only if the Speaker of the National Assembly refers the matter to it. The Speaker can only do so if parliament asks her to. And then she can take a month to decide.
He loses a no-confidence vote, which is up to the opposition that doesn’t have the numbers.
What are the Prime Minister's options? He can buy time, but only for a time. It seems difficult how he will get out of this one for long. He has made a defiant speech in the National Assembly saying that he will not leave office unless the Speaker asks him to. He can buy time by:
Going into an intra-court appeal, which means to another bench in the Supreme Court comprising other judges. It is unlikely that another bench will embarrass its brother bench even if the prime minister’s appeal has merit. But the PM could buy a lot of time in so doing.
He asks the National Assembly for a vote of confidence which he will get.
He calls elections; the People’s Party plays victim-victim at which it is champion, and wins. However, that doesn’t get rid of his conviction so whether Gillani can contest or not is moot.
He gets super defiant and asks parliament to ratify his Executive Order restoring the sacked judges. Parliament refuses to do so and the judges are out again. That would mean war, serious war, between the three branches of government.
The National Assembly, representing the will of the people, elects the prime minister and only the National Assembly can throw him out. Parliament is the only institution higher than the Supreme Court and that is where the PM can and should go. It is about time parliament stamped its authority on the state instead of being a rubber stamp. It would make for a head-on-clash between the legislature and the judiciary but it’s also about time that we clearly demarcate the boundaries of the jurisdictions of the three branches government. It’s not the Durand Line. Let’s determine who runs the country, the executive, the legislature or the judiciary or all three together within their strictly demarcated domains. Just when the country needs stability most, the three branches of government are busy destabilizing it like Mafiosi in turf battles. But they’re not Mafiosi, they’re institutions that some ignoramuses call ‘pillars of the state’, forgetting that an Islamic state has only two pillars, God and the people, His vicegerent.
They should realize that they’re preparing the ground for yet another extra-constitutional intervention that people will welcome. But this time it may not be led by a four-star general.