This is the third blog that looks at judicial independence in various countries. We have already examined the situations in Papua New Guinea, Nepal & Morocco. We now turn our attention to Pakistan, where one controversial court case has brought the judiciary, legislature, President and opposition parties into open conflict. In common with some of our other case studies, the separation of powers has become very blurred – the executive and legislature are ignoring court judgments, and the judiciary seem to be unusually active in their rulings over political & moral matters.
Pakistan: In April 2012 the Prime Minister of Pakistan, Yousuf Raza Gilani, was convicted of contempt of court by the nation’s Supreme Court. The judgment said that Mr Gilani had ‘wilfully flouted’ a court order. The court had ordered Gilani to write to the Swiss authorities requesting them to open a corruption case against the Pakistani President, Asif Ali Zardari. In order to make this ruling the court had to, controversially, strike down the National Reconciliation Ordinance, a 2007 political amnesty law, on the grounds that it was unconstitutional.
Gilani’s lawyer, Aitaz Ahsan (who is also a senator for Gilani’s Pakistan Peoples Party), countered that reopening a case against a serving President would itself be unconstitutional, as incumbents benefit from legal immunity.
National Assembly members then requested that the Speaker of the National Assembly (Dr. Fehmida Mirza, also a PPP member) ask the Election Commission to have Mr Gilani removed from office and disqualify him as an MP. The opposition argued that under Article 63(1) (g) of Pakistan’s constitution, any person found guilty of defaming or ridiculing the judiciary is banned from being an MP.
On the 24th May 2012 the Speaker refused to refer the case to the election commission claiming that, “I am of the view that the charges… are not relatable to the grounds mentioned (in the constitution)”.
Both main opposition parties, Pakistan Tehreek-i-Insaf (PTI) and the Pakistan Muslim League-N (PML-N), then separately petitioned the Supreme Court. PTI’s petition asks the court to declare Speaker Mirza’s ruling unlawful and issue a stay order against Mr Gilani exercising Prime Ministerial powers until the court has reached a judgment. The petition also asks that the Election Commission decide Gilani’s eligibility. The PML-N simply asks that Mr Gilani is barred from performing further duties.
The petitions will be heard by a three member Supreme Court bench.
The judicial independence picture is further complicated by the fact that Justice Khosa, one of the seven member bench that convicted Gilani in April 2012, thought it appropriate to add a note to the judgment that was somewhat of a morality lecture to Pakistani’s. The note even goes as far as to compare the Pakistani executive with Stalinist Russia and encourages Pakistan’s populace to take note of the Arab Spring!