Under pressure,but not buckling

There is no clarity on the fallout from the court order to convict Gilani for contempt

Written by Cyril Almeida | Published: May 4, 2012 3:02:32 am

There is no clarity on the fallout from the court order to convict Gilani for contempt

Go now,go later or perhaps not go at all,at least until the next election — the fate of Prime Minister Yousuf Raza Gilani has been the talk of Pakistan since the Supreme Court handed down an ambiguous verdict last week.

Former PM Nawaz Sharif,leader of the largest opposition party,the PML-N,has demanded Gilani’s immediate resignation and threatened to launch a “protest movement” if the government doesn’t accept his demand. Imran Khan,in response to Sharif’s invitation to all opposition parties to join the PML-N’s protest movement,has demanded that Sharif’s MPs resign from all assemblies first,a step the PML-N is reluctant to take.

The influential army chief,General Ashfaq Kayani,used his speech on April 30 to call upon “national institutions” to remain “within constitutional limits” and spoke of the need for “equal justice for all” — comments that have been interpreted as oblique criticism of the government.

Meanwhile,the PM has pledged to quit if the yet-to-be-released,detailed order of the SC makes it clear that the constitutional process for his disqualification stands triggered. But other government officials,including the law minister,have slyly drawn attention to the role of the speaker of the National Assembly: according to their interpretation of the disqualification process,the speaker can decide that no grounds for disqualification have arisen — and that her decision would be final.

The confusion and uncertainty can be traced back to the two-paragraph short order that the SC handed last week in the contempt of court proceedings against Gilani for refusing to write a letter to Switzerland that could re-open a corruption case against President Asif Ali Zardari. In convicting the PM for the “wilful flouting,disregard and disobedience of this Court’s direction” and finding that the “contempt committed by him is substantially detrimental to the administration of justice and tends to bring this Court and the judiciary of this country into ridicule”,the seven-member bench of the SC made a perplexing observation: “As regards the sentence to be passed against the convict,we note that the findings and the conviction for contempt of court recorded above are likely to entail some serious consequences in terms of Article 63(1)(g) of the Constitution,which may be treated as mitigating factors towards the sentence to be passed against him.” Article 63(1)(g) holds that an MP stands disqualified if he is convicted for bringing the judiciary into “ridicule”,but the court’s use of the qualifier “likely” has left everyone confused about the bottom line.

Has the PM been condemned to disqualification,and all that remains is for the constitutional procedure to be followed,or is there wriggle room around the word “likely”,which has thrown the matter into the political arena for a final decision?

In truth,the judgment hews to the letter of the law and the Constitution,but the problem is the gap between the expectations that had built up and what the Constitution permits.

Since December 2009,when the court first ordered that the so-called Swiss letter be written,the government had made it clear it had no intention of doing so. In the face of such defiance,the expectation rose that the court would hand down a severe punishment. If all the court was willing to do was give the PM a slap on the wrist and allow his fate to be ultimately decided in the political arena,then why dive headlong into the controversy and publicity that a contempt case would bring?

To close observers of the SC,the answer seems to lie in opposing judicial philosophies among the justices. The so-called hawks see the court as a transformative body,one that should dispense justice regardless of the consequences and that should bend the mightiest in the land to its will. To the moderates,the judiciary should stay within its constitutional limits,aware perhaps of the possibility that if too much pressure is exerted on the political process,the transition to democracy could come unstuck.

So far,the process seems to work thus: the hawks nudge everyone towards the brink and then the moderates herd everyone past the well of death. Hence the confused,and confusing,judgment against the PM.

The same calculation applies to the political process. With an election scheduled to be held no later than May 2013,the political opposition will use Gilani’s conviction as a stick to beat the government over the head with. But after the SC failed to pull the trigger,the political opposition has no direct means to oust the PM — other than street agitation,which could spiral out of control and threaten the democratic process.

So while the government will stay under pressure,few expect it to buckle.

The writer is an Islamabad-based assistant editor with ‘Dawn’

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