Constitutional courts needed

By Sufyan Rana

By any barometer, the events of April 26, 2012, were seismic. The Supreme Court of Pakistan held that Syed Yousaf Raza Gilani, Prime Minister of Pakistan, was guilty of contempt of court — under Article 204 (2) of the Constitution and Section 3 of the Contempt of Court Ordinance — and should be punished with imprisonment till the rising of the court, under Section 5 of the Contempt of Court Ordinance.

Two very serious questions are to be determined. First, does the conviction disqualify the prime minister? Second, if so, is sanction automatic or does it require a further constitutional step by the speaker or chair of the National Assembly?

In order to be eligible for the office of the prime minister, the candidate first must be a member of the National Assembly. Accordingly, whilst the prime minister can only be removed through a vote of no confidence, a member of the National Assembly may be subjected to the rigorous requirements of Article 63 which outlines twelve grounds on which a member of Parliament can be disqualified, one of which is that if he has been convicted by a court of competent jurisdiction of (an act) which defames or brings into ridicule the judiciary.

In order for the prime minister to be eligible for that office, he first needs to be a member of the National Assembly. If his membership of the National Assembly is subject to disqualification then he is ineligible to be prime minister. The question, therefore, is not whether the order of the learned judges disqualifies the prime minister but whether it disqualifies him from being a member of the National Assembly. There is no doubt that on an initial reading of the short order — particularly the summary of the learned judges that the judiciary has brought in to ridicule — that provisions of Article 63(1)(g) automatically kicked in.

Once the ground for disqualification is established, the question to consider is whether the sanction is automatic or whether it requires an additional constitutional step. The answer to that is somewhat debatable. Article 63(2) states that if any question arises whether a member of parliament has become disqualified from being a member, the speaker or the chairman shall, unless they decide that no such question has arisen, refer the question to the Election Commission within 30 days.

The phrase “any question” is curious for it is capable of having multiple meanings, all of which are capable of further examination. It is capable of denoting that Article 63(3) should only be invoked in the event of there being any doubt about disqualification as well as denoting that it can also be invoked if there is any issue (whether it is beyond doubt or not). If the earlier interpretation is applied, then Article 63(1)(g) leaves no room for doubt and the prime minister is automatically disqualified. However, if the latter interpretation is applied, then disqualification is not automatic and the matter has to be referred to the Election Commission for the final opinion. However, before such a referral is made, the speaker or chairman has the right to consider that no such question — disqualification or no disqualification — has arisen. It is unclear what factors form the basis of this consideration but clearly, judgments — in this instance a Supreme Court decision — can be reviewed and, if necessary, ignored.

In short, and notwithstanding the clarity of Article 63(1)(g), the speaker or chairman may exercise such an option and not refer the matter to the Election Commission on the basis that no such question has arisen. Whilst this is unlikely, it is not beyond the realms of legal possibility. Accordingly, whilst such an important issue as this should be determined by a court, it is entirely within the ambit of the Speaker or Chairman of the Assembly to take a different view. What the current crisis has made clear is that it is now time for Pakistan to look to establish a separate Constitutional Court which looks solely at how the constitution is to be interpreted.

The Express Tribune