Loyalty trumps law

The writer is a lawyer based in Islamabad.
Imagine that the speaker had given a ruling different from the one that she has. Imagine that she had risen above party loyalty, as required by the mandate of her office, and allowed the question of the prime minister’s disqualification to proceed to and be decided by the Election Commission, as required by the Constitution. Imagine that she had not chosen to do what Aitzaz Ahsan suggested she might do while addressing a press conference the day the Supreme Court’s short order convicting the prime minister was announced. Imagine that she had chosen to do the right thing and exercise her powers judiciously, even at the risk of being labelled a traitor within her party. Would that not be shocking? Would it not confuse us and force us to re-evaluate our cynical view of our ruling elite?
Thankfully, the speaker has saved us the trouble for such rethink. The speaker’s ruling was always expected to be part of the larger PPP strategy contrived to confront the situation arising out of the prime minister’s contempt conviction. The die was cast when Aitzaz Ahsan-PPP’s now favoured constitutional magician-cleverly suggested that the speaker could “independently” decide that the prime minister had not been charged for ridiculing the judiciary and consequently no question of disqualification under Article 63(1)(g) could arise. The shameless resolution passed by the National Assembly in support of our convicted prime minister had further established that for the ruling regime it was all about winning. And to win, it was willing to fight dirty.
Here is why the speaker’s ruling is wrong. In determining the issue of disqualification of a member in a contempt of court matter, Article 63(1)(g) prescribes two requirements: one, there be a conviction by a court of competent jurisdiction; and two, the conviction should be for actions that prejudice the independence of the judiciary or bring the judiciary into ridicule. The Supreme Court’s ruling in the prime minister’s contempt matter unequivocally stated that the prime minister had acted in a manner that brought the judiciary into ridicule. That the apex court is a court of competent jurisdiction is also beyond doubt. Thus, after the Supreme Court’s detailed ruling there was no ambiguity that the prerequisites for triggering the disqualification process under Article 63(1)(g) had been satisfied.
It is true that the court did not state that the prime minister stood disqualified under Article 63(1)(g) and allowed the constitutionally prescribed process under Articles 63(2) and (3) for effecting disqualifications of members to run its course. By abusing the authority vested in her under Article 63(2), the speaker has stalled the constitutional due process. She has decided that despite the prime minister’s conviction by the highest court of the land for committing contempt of court and ridiculing the judiciary, no question of disqualification has arisen under Article 63(1)(g), merely because the show- cause issued to the prime minister didn’t mention the said article.
The speaker is vested with limited authority under Article 63(2) to determine a question of fact, and not one of law. It is true that she is not a post office and has to consciously determine that an alleged fact that raises a question of disqualification in fact exists. But she can exceed this authority to ask whether a question of disqualification has rightly arisen or not. The authority to make such substantive legal determination of whether a member ought to be disqualified has been vested in the Election Commission under Article 63(3), but usurped by the speaker in the present instance.
Additionally, the objection that the Supreme Court has declared the prime minister guilty of ridiculing the judiciary while not stating in the charge sheet that the prime minister will be tried for breach of Article 63(1)(g) is a legal ground for appeal against the said order. The prime minister’s legal team has reportedly identified gazillion errors in the contempt judgment, and it has every right to do so. But those questions need to be raised before the appellate bench of the Supreme Court during the appeal process and decided by the court itself.
In taking into account such legal grounds of attack against the contempt ruling while discharging her limited function under Article 63(2), the speaker has elected to sit in judgment over a ruling of the Supreme Court. That is impermissible under our constitutional scheme. The speaker’s decision is thus incorrect. But it cannot be called illegal until a constitutional court declares it to be so. So for now, the Election Commission has no relevance to this controversy, as there is no question of disqualification transmitted to it that it needs to decide. The ruling has however given rise to a question of constitutional interpretation, and it is only a matter of time before the speaker’s ruling will be challenged before a High Court or the Supreme Court.
As the matter involves interpretation of Article 63, determination of the scope of the speaker’s authority, and the considerations she can lawfully take into account while discharging her responsibility under Article 63(2), this matter will eventually have to be determined by the court. Those claiming that our constitutional courts cannot determine the legality of the ruling issued under Article 63(2) are mistaken. One, there is no ouster clause in the Constitution prohibiting the courts from interpreting the meaning of Article 63(2) and the scope of the speaker’s authority pursuant to it. Article 69 only prohibits courts from questioning the validity of proceedings of parliament and doesn’t relate to an action of the speaker under Article 63(2).
Even otherwise, it is settled law that even an ouster clause doesn’t afford any protection to an unconstitutional act – one without jurisdiction or based on mala fide. Our constitutional courts will need to interpret the meaning of Article 63(2) and identify the considerations that the speaker can legally take into account while determining whether or not a question of a member’s disqualification has arisen. Judicial interpretation of this matter is required in the interest of legal clarity. If it is accepted that the speaker’s determination on whether or not a question of disqualification has arisen is infallible and no matter how irrational or whimsical her decision there is no legal remedy against it, Article 63(1) will be rendered redundant to a large extent and no member of the ruling regime will ever face disqualification.
The flawed proposition that political accountability in a democracy is a suitable substitute for legal accountability has no place within our constitutional scheme that balances separation of powers with checks and balances. The speaker’s partisan ruling has highlighted the need for judicial interpretation of Article 63(2). But in doing so the courts must not proceed with such fervour and dispatch that undermines their claim to being neutral arbiters of the law. There is no doubt that while the determination of a legal controversy lingers some injustice is perpetuated. By that is true for all the hundreds of thousands of cases pending before the courts, and not just for the prime minister’s conviction matter.
While a speaker can get away with partisanship, the court cannot. If the ruling regime succeeds in projecting the prime minister’s contempt matter as a duel between the PPP and the Supreme Court, what will be lost is the credibility of the judiciary. Skies won’t cave in even if the prime minister continues to lord it over this pitiable country for an extra few months while legal processes grind along and we inch towards elections. But then you wonder about the PPP’s game plan. Forget doing the right thing, wouldn’t dropping the bag of bricks that Gilani has become and bring in a “clean(er)” guy to lead the party into polls be the intuitive thing for it to do? But then would we be in such a mess if our rulers started doing the logical thing?
Email: sattar@post.harvard.edu