PM's conviction and the constitution

By Yasser Latif Hamdani

The constitution of Pakistan envisages a trichotomy of powers i.e. federal, legislative and judicial powers. Each of these three branches are distinct and derive their powers from the Constitution. The Supreme Court of Pakistan is a creature of the Constitution. It derives its original jurisdiction in terms of disputes between provincial governments and federal government from Article 184 (1) and 184 (2) which judgments have to be declaratory in nature.  Article 184(3) vests the Supreme Court with jurisdiction to decide questions of fundamental public importance. The Appellate and Advisory Jurisdictions are derived from 185 and 186. The Supreme Court and the High Courts have the power of judicial review i.e. to review legislative functions and see if these are in accordance with the constitution.

The recent conviction of the Prime Minister in contempt proceedings has created a constitutional crisis. To put it simply, Supreme Court – being a creature of the constitution- cannot order something patently unconstitutional.  For example the Supreme Court cannot change Pakistan’s status as federal, democratic and Islamic state- that is the parliament’s prerogative through the amendment procedure. Similarly the Supreme Court cannot – under any circumstances- read out of the Constitution a certain Article by precedent for example Article 248(2) of the Constitution.  Therefore when the Prime Minister fails to act on a certain order of the Supreme Court which flies in the face of a clear constitutional provision, it cannot under any circumstances amount to “ridicule” of the court’s order.  There is a certain privilege associated with the Prime Minister- as the leader of the house in National Assembly- as having acted lawfully. In other words, when the Prime Minister acts under the constitution in his capacity as the Chief Executive of the country, he cannot break the law nor can Supreme Court ever ask it to violate the constitution.  The principle of harmonious construction is to be extended to the constitution.  In this particular case,  Article 248(2), as a subsequent provision, controls Article 190 which means that yes all executive and other authorities have to work in aid of the Supreme Court but the Prime Minister is privileged to reject what is on the face of it a patently unconstitutional order purporting to act against other constitutional offices i.e. president.  Furthermore Supreme Court, even when its own rules and procedures is bound by the Constitution as is clear in Article 191. So what is the check on the Prime Minister? The Prime Minister is answerable in the court of public opinion for the constitutionality of his action under the circumstances, which is a lot more than any check on the Chief Justice – which is non-existent.  After all given the judiciary’s historical role in legitimizing martial laws in the country, Supreme Court playing role of ultimate arbiter and supreme legislative body with powers to amend the constitution through judicial precedent hardly inspires any confidence, all due respect.

The idea that Supreme Court can act as the sovereign and drag the Prime Minister to court and charge and then convict him for contempt for not obeying an order to initiate proceedings against the head of state in a foreign country in brazen violation of Article 248 of the Constitution is patently absurd, unconstitutional, illegal and militates against the basic structure of the Pakistani constitution which is parliamentary and democratic in nature. In Pakistan neither the parliament nor the Supreme Court are supreme but the constitution which may be amended from time to time. The principle of judicial review cannot extend to making legal illegal and illegal legal.  Perhaps – had the justices – the wise lords- consulted American jurisprudence on this question they would have come across Nixon v. United States 506 U.S. 224 (1993) which settled the issue of whether the Supreme Court had any jurisdiction in political questions by ruling that such questions were not justiciable. Here 248 requires no interpretation and operates as an absolute bar against any kind of proceedings against the President of Pakistan.

So what am I saying? My point is that the Prime Minister when acting on a clear provision of the Constitution is incapable of “ridiculing” the Supreme Court’s order.  The part of the order of the Supreme Court which obligates the Prime Minister to violate the constitution in any way is illegal and severable from the rest of the order. The constitutional crisis has been created by Supreme Court’s actions which are ultra vires its own constitutional powers.

So what happens next? The Speaker is vested through 63(2) with discretion as to reject any challenge to the Prime Minister’s qualification and if she refuses to act, we might see a fresh round of litigation around her discretionary power.  Another route would be for the parliament specifically legislate overturning the conviction which will also spark a flurry of new cases. Legislative override is certainly not without precedent, the Shah Bano case from India being an example. All things considered, do not expect the Yousaf Raza Gilani to vacate the Prime Minister’s House any time soon. Supreme Court’s decisions have merely helped to make plain the brinkmanship all sides are ready to indulge in at the expense of this country but alas such is politics, especially if it waged between institutions.

Relevant laws:

63.(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if:- (g) he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan, unless a period of five years has elapsed since his release;

63. (2)		If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and should he fail to do so within the aforesaid period it shall be deemed to have been referred to the Election Comission.
63.(3)	The Election Commission shall decide the question within ninety days from its receipt or deemed to have been received and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.]

190. Action in aid of Supreme Court.

All executive and judicial authorities through out Pakistan shall act in aid of the Supreme Court.

191. Rules of Procedure.

Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.

248. Protection to President, Governor, Minister, etc.

(1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not he answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions:

Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.

(2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office.

(3) No process for the arrest or imprisonment of the President or a Governor shall issue from any court during his term of office.

(4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of anything done by or not done by him in his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims.

Yasser Latif Hamdani is a partner in the Z&H Co Advocates, Solicitors and Consultants