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Almost every day in Pakistan has been an exciting one for more than a decade now. Some manage the stress but others like the former Attorney General Malik Qayum suffered the inevitable when his counsel, the former acting president of Pakistan and chairman Senate Wasim Sajjad told the Supreme Court that he has had a nervous breakdown and hospitalized in England.
January 19, 2012 however falls within the exceptions as it was also historic. The inevitable happened. The legal luminaries saw it coming but one does not know if the government led by Prime Minister Yousuf Raza Gilani and its leader and Pakistan’s President Asif Ali Zardari were also expecting it or not. If they were then it would make absolutely no sense to apologize to the court or even to comply with the Court’s order. The government should then fight the contempt notice issued by the Supreme Court till the end and go down in history as yet another `Shaheed Government’ martyred at the hands of the `establishment.’
One as a lawyer however is hard-pressed to find a good legal defense. The government did not support the NRO before the Supreme Court which was commendable and everybody appreciated the high moral ground taken by it. However, the same government then filed a review petition against the Supreme Court judgment asking it to over-turn it. The Court rejected the Petition which was hardly surprising as review is only feasible on technical grounds and merits of the case cannot be argued at that stage.
The Supreme Court then started pressing its point made in the NRO judgment to re-open the Swiss court case and the government has been dilly dallying since then. The only legal justification it constantly could come up with was on the ground of President Zardari enjoying constitutional immunity in view of his office. The Chief Justice of the Supreme Court commented a number of times in open court that the court is not interested in convicting the President but in getting the 60 million dollars returned to the country. The government however looks at it differently and sees the court order as directing it to write to the Swiss authorities to re-open the old corruption cases against President Zardari and says that it cannot write such a letter as the President has immunity from prosecution as long as he remains in office.
On January 10, the Court gave the government six options to overcome its indecision to implement the NRO verdict and asked for a larger bench to hold the next hearing. The options provided to the government were:
Option 1: Court would move against the PM, President and Law Minister because they were ‘harping’ that they shall not write a letter to Switzerland, and this equates to violating the court’s order they have violated their oath to office and so are not worthy of the office.
Option 2: The PM and the Law Minister are held guilty of contempt of court, by virtue of which they would lose their membership of the National Assembly, and their office along with it.
Option 3: Supreme Court forms a commission under Article 187 that itself enforces the NRO decision.
Option 4: Immunity to President under Article 248 be scrutinized.
Option 5: NAB chairman has failed and protected the accused, namely Ahmed Riaz Sheikh, and the former OGDCL chairman Adnan Khawja who have been appointed wrongly and to take actions against the former attorney general Malik Qayoom.
Option 6: Court may ask the Parliament to take such steps as it sees fit to ensure that court’s judgement is implemented
The government had five days to take some remedial action but it failed to do so and the larger seven-judge bench of the Court that met one January 16 chose option 2 by issuing a contempt of court notice and asking the prime minister to appear in person before the court on January 19.
Meanwhile, the National Accountability Bureau (NAB) Chairman Fasih Bukhari acted sanely and apologised unconditionally to the court.
The contempt proceedings are taking place under article 204(2) of the Constitution, read with the Contempt of Court Ordinance 2003 (No V); the latter deals with three kinds of contempt and the one in question apparently will be treated as a criminal contempt. It is punishable with six months simple imprisonment or with 100,000 rupees fine or with both. Both article 204(2)(a) and section 3 of the 2003 Ordinance define an act as amounting to contempt of court when a person obstructs the process of a court in any way or disobeys any order of the court.
If held guilty and convicted by the Supreme Court, then the person will be covered by article 63(1)(g) of the Constitution which says that a person shall be disqualified from being a member of the Parliament if he is convicted by a court for acting in any manner prejudicial to the integrity or independence of the judiciary of Pakistan or which defames or brings into ridicule the judiciary.
The Prime Minister on the face of the facts available publicly has an indefensible case. He has now two options: contest the case and either win it or get convicted. The other is to offer an unconditional apology and comply with the Supreme Court order by writing to the Swiss authorities to re-open the case against President Zardari and get the 60 million dollars to Pakistan repatriated.
It would be surprising if the PM wins the case. If he gets convicted, he would get disqualified from remaining a member of the National Assembly and from being the PM; it would personally not be conducive to him and may not be politically so beneficial to his People’s Party as some make it out to be. And if he complies with the court order after apologizing, then one fails to understand the logic behind the refusal to implement the order in the first place. Either way, these are exciting times in Pakistan and as some commentators say `there is never a dull moment in our country.’
On January 19, the Prime Minister appeared in the Supreme Court after being directed to do so in a show cause notice issued under the Constitution and the Contempt of Court Ordinance 2003. He is charged with failing to write to the Swiss authorities against his leader and mentor and Pakistan’s President Asif Ali Zardari to recover 60 million dollars that were allegedly paid to him and his wife Benazir Bhutto as commission by a Swiss company.
I had to myself appear as counsel before the Supreme Court for another petition. However, I left home slightly late calculating that the Bench hearing the PM case defended by Aitzaz Ahsan will be occupied for a few hours. Aitzaz is one of Pakistan’s best lawyers but he loves talking and would normally take 15 minutes even if you simply ask his name; it obviously can take longer if you are a female reporter.
I drove on the Margalla Road which runs parallel to the beautiful Margalla Hills as it has the least number of traffic signals and is straight. Suddenly, I ran into a severe traffic jam at least a kilometer long; this is unusual in Islamabad. I soon found out that it was due to a security check. After getting through this one, I ended up with the second and then the third security check on the same road. I was getting through the check points showing my Supreme Court Identity Card but was fast losing patience. As a result, I eventually drove through a one-way street near the Mariott Hotel making a big short-cut to pass through the fourth and the last check. A few ruling People’s Party supporters were raising pro-PM slogans at this point but was not being allowed to cross the security point.
Once I reached the Supreme Court I was surprised to see hundreds of media personnel standing outside the premises. The parking lot was full; there were also about 20 OV vans and the atmosphere was stirring with a helicopter circling the court for security purposes.
Nobody was allowed to enter the Court building without a pass which explained the personnel stranded outside the premises on the main Constitution Avenue. The PM had been summoned by a seven member bench in Court Room 4 which had a capacity of only 60 seats. The army commandos were lining all the corridors with sub-machine guns and many senior lawyers and members of the assemblies were stranded outside the Bench 4 room as they did not have the pass to enter it; the police and intelligence personnel manning the doors told me that there was not even standing space when I tried to enter arguing that I had a case before the same Judge who was heading the bench.
I was told to wait. Luckily, I noticed the police guy directing a reporter to climb the stairs to go to the media lobby. I followed her and ended up witnessing the proceedings from the media section of the court room which partly covered the court room audience. I could see the judges and hear Aitzaz Ahsan’s arguments; I had no interest in getting a glimpse of the PM anyway.
I knew that nothing substantial would happen today as it was the first hearing and the PM had engaged his counsel only a day earlier. Aitzaz kept asking for a month long adjournment which was vehemently resisted by the judges; eventually, he managed to get the hearing postponed to February 1 on the plea that he required time to review the case files and the record of the corruption case against the President and Benazir Bhutto. His main plea was that the PM was not guilty of contempt as he had no intention to ridicule the court or to disobey its orders; his contention was that it was the bona fide belief of the PM and the legal advice given to him that the President enjoyed constitutional immunity and he should thus not write to the Swiss authorities.
Ironically, as pointed out by one of the judges, it was the same Aitzaz saying it who for the past two years had been telling the media that the government should write to the Swiss authorities as directed by the Supreme Court and it had no option in this respect. The Judge told Aitzaz that I leave this dilemma to be sorted out between you and your client. Another Judge repeatedly asked Aitzaz that even if it is accepted that the PM was harboring this bonafide belief about the presidential immunity, what he would do now if told by the Supreme Court itself as done in the past that the president did not enjoy such immunity. Would he then write the letter?
The Court ended the hearing at tea time (11 am) and a few journalists rushed out of the small door to see the PM leave. The media lobby was jam-packed with quite a few foreign journalists and a number of Indian ones as well. Surprisingly, there were dozens of anchor persons all covered with make-up and tossing their hair after a few seconds as if they were movie stars. I was one of the last ones to leave and ended up following Aitzaz Ahsan who had the People’s Party spokesman with him. He came out of the building and decided to talk to the media with dozens of cameras focused on him. This was perhaps a mistake as more than a hundred lawyers stood behind him on the building stairs raising slogans against him and the PM and in favor of the Chief Justice of the Supreme Court and the judiciary. The most vocal one was `ghaddar hai, ghaddar hai.’ (he is a traitor). Aitzaz was being called a traitor because he had defended the Chief Justice when he was replaced by General Musharraf in March 2007. His lawyer colleagues were distressed by Aitzaz now defending Chief Justice’ opponents.
Aitzaz had managed to get the Chief Justice restored in 2007; but those were different times. The judiciary was united and majority of the legal community and perhaps the whole nation was supporting the Chief Justice for standing up against a military General. He has a more difficult case on his hands now with a judiciary, particularly the Supreme Court judges angry and annoyed with the government, and the PM for flouting its orders and finding one excuse after another for non-compliance. As pointed out by one judge, the President has gone to this extent with his disobedience that when the court ordered one of his friends and cronies to be re-arrested on corruption charges and to complete his prison sentence, the President gave an amnesty of two and a half years to all the convicted prisoners in the whole country so that the guy should not spend a single day in prison. This is not how democracy is suppose to function, lamented the bench.
So the thrill in the Islamic Republic of Pakistan continues and the nation waits with excitement for the next hearing on February 1. In the meantime, the media all over the world has a field day with the developments. 
Anees Jillani is an advocate of the Supreme Court and a member of the Washington, DC Bar. He has been writing for various publications for more than 20 years and has authored several books.
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