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02 - 08 June , 2012
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VIEWPOINTSpeaker's Decision, Not
Unexpected

by TARIQ BUTT

National Assembly Speaker Dr Fehmida Mirza's decision not to send to the Election Commission of Pakistan (ECP) a reference seeking Prime Minister Yousuf Raza Gilani's disqualification as MP for having been convicted by the Supreme Court on contempt charge has not surprised anybody. Such determination was universally anticipated because of her avowed loyalty to the Pakistan People's Party (PPP). No independent, neutral or nonpartisan person expected anything else.
It was naive to assume that Dr Mirza would act as an impartial office holder when she had been elected on the PPP ticket and made the Speaker only due to her affiliation with it, and her son recently returned to the Sindh Assembly, courtesy its sponsorship. Her fiery spouse Dr Zulfikar Mirza is keeping mum these days for his own reasons after fairly prolonged outbursts against his childhood friend, Zardari, his top associates including Interior Minister A. Rehman Malik, and the Muttahida Qaumi Movement (MQM). Her and her family members' political future and careers are directly linked to their continued association with the PPP; otherwise they would be doomed. With these political considerations, no unbiased decision could come from her.
However, what she wrote in her ruling is full of flaws. Although she has no authority (in fact none has) to Speaker's Decision, Notsit in judgment on the verdict of the highest court of Pakistan, she did so, and, in the view of some reputed constitutional experts, committed contempt of court. The most hilarious was her conclusion that no specific charge regarding the propagation of any opinion or acting in any manner against the independence of judiciary or defaming or ridiculing it as contemplated under Article 63(1)(g) was framed by the Supreme Court against Gilani.
But it would be instructive to ask the honourable speaker what constitutes defaming and ridiculing and propagation against the judiciary if the charge framed by Justice Nasirul Mulk-bench doesn't. Its reproduction will make it abundantly clear even to simple minds. It says Gilani willfully flouted, disregarded and disobeyed the direction given by the apex court to write letters to the Swiss authorities to reopen money laundering cases against President Zardari or to revive the request by the Pakistan government for mutual legal assistance and status of civil party and the claims lodged to the allegedly laundered money lying in foreign countries, including Switzerland, which were withdrawn unauthorised by communication by former Attorney General Malik Muhammad Qayyum to the concerned authorities, which direction he was legally bound to obey and thereby committed contempt of court within the meanings of Article 204 (2) of the Constitution read with the Contempt of Court Ordinance. Nothing could be more serious and derogatory than total defiance or rejection of a court direction that Gilani committed and earned sentence and conviction. The knocking down of his disqualification by the Speaker is not final and will be finally decided by a superior court. Strangely, the speaker borrowed the partisan arguments of the convicted prime minister's lawyer Aitzaz Ahsan and Federal Law Minister Farooq H. Naek and incorporated them in her decision. In fact, by reading her ruling and their statements together, there seems hardly any difference between the two sets. On the day the short order was announced, Aitzaz Ahsan stated that Gilani has been convicted on a charge that was never framed. This is what Dr Fehmida Mirza wrote in her decision a month later. This is not and can't be a mere odd coincidence.
Naek had poured his intense anger on the assistant registrar of the Supreme Court for forwarding the short order and the subsequent detailed verdict to the speaker, the ECP and the cabinet secretary, saying how dare a junior official could do that specifically to the elected custodian of the National Assembly. However, on that very day, the apex court had clarified that it was a routine to send the judgments to concerned authorities and nothing was unusual. The assistant registrar acted on orders from Speaker's Decision, Notthe competent authority. The speaker dealt with him with the same harshness, rather more, that the law minister had shown. She showed her "serious concerns" regarding his letters.
"The Speaker holds a constitutional position. She is an elected head of the House and guardian of the rights of 342 members of the country, representing the will of the people of Pakistan. Article 72(2) of the Constitution confers the privilege upon the speaker to preside over a joint sitting of the Parliament, comprising 446 members. She may often require to perform the functions of the President of Pakistan under Article 49. The speaker is placed in Article 2 of Warrant of Precedence. In view of this, her office demands the highest respect from other organs of the State and functionaries of the government. The contents of the letters are in bad taste and also against the parliamentary norms and traditions." There was no need of this at all when the assistant registrar did what the competent authority directed him.
While deciding not to send the reference to the ECP, Dr Fehmida Mirza also cited and fell back on Javed Hashmi's case decided by her predecessor, Chaudhry Amir Hussain, way back in 2004. Hashmi was sentenced to 19 years' imprisonment by the District and Sessions Judge Islamabad on April 12, 2004. Four months later, he filed three separate nomination papers to contest the election of the prime minister against Shaukat Aziz. The government raised objection that Hashmi being convicted is no more MNA as he has become disqualified under Article 63(1)(g) for propagating and defaming the armed forces, and therefore, his nomination papers be rejected. However, the then Speaker overruled the objection and accepted his candidacy papers. Relying on this precedent, Dr Fehmida Mirza held the view that the charges against Gilani are not relatable to the grounds mentioned in Article 63(1)(g)(h). Therefore, no question of his disqualification being an MNA arises. However, Amir Hussain says his 2004 ruling on accepting Hashmi's nomination papers despite his sentencing referred in Dr Mirza's decision on Gilani's conviction has no relevance whatsoever to the present case for specific reasons. "As speaker, I had not received any reference seeking Hashmi's disqualification for having been convicted to 19 years by the Islamabad judge and additionally, the court had not forwarded a copy of its judgment to him, pointing out that Hashmi has become disqualified as MNA," he says.
He also said that the judge had not stated that Hashmi was likely to attract "serious consequences" of disqualification as MP under a specific constitutional article as was done in the Supreme Court verdict against Gilani. Seven judges of the apex court held that the prime minister was likely to face serious consequences under Article 63(1)(g)(h) for having been convicted on contempt charge and a clear difference should be made between the decisions of a subordinate judge and seven justices of the highest court, he opined. No doubt, the speaker has averted the crisis for her government and earned kudos from everybody who is anybody in the regime and her party. But leading constitutional experts say that a decision that was to be taken by the ECP has been made by the speaker, which was not allowed under the Constitution and law. She did not have in her mind the role one of her predecessors Gohar Ayub had played when Ghulam Ishaq Khan (GIK) was the all-powerful president of Pakistan. As speaker, he always used to issue production order during the National Assembly session for appearance of the incarcerated MNA Asif Zardari, which irked GIK tremendously. Once, he summoned Gohar Ayub to the presidency and told him not to act as "director of honeymoon". However, the speaker stood ground and kept issuing the production orders. Gohar Ayub thus earned a lot of respect. Dr Fehmida Mirza doesn't have in mind what the history would write about her role. By saving Gilani, though for the time being, from ouster, she has come up to the expectations of President Zardari for choosing her for this coveted office. The opposition Pakistan Muslim League-Nawaz (PML-N) had generally been appreciative of her role, but started harshly criticising her after this ruling. However, she doesn't care about it as her political future is linked to the PPP, not to the PML-N.

 
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