Daily Times

The constitution is supreme, the Speaker has no say in the disqualification of a member of parliament, and the Supreme Court (SC) has the last word as the supreme authority that can take to task anyone it deems is overstepping some principle of the constitution. This in a nutshell is the gist of the six-page detailed judgment by the SC on the disqualification of the former prime minister, Yousaf Raza Gilani. Justice Jawwad S Khawaja’s additional note stressed the power the constitution endows on the apex court to hold all answerable for any misdeed. Based on Article 204, his pronouncement that, “the court is not a helpless bystander incapable of ensuring that the command of the people is fulfilled”, further underlines the court’s view of its power over all other institutions of the state. This in turn gives rise to a number of questions, which must be given due importance to ensure there is no ambiguity whatsoever vis-à-vis the constitutional construct.

It is pertinent to note that the prime minister’s defence in court relied on presidential immunity provided under Article 248. The SC’s detailed judgment did not deal with this, nor did the defendant’s counsel argue the point. Albeit the defence centred primarily on the paramountcy of Article 248, it was not argued in the court, perhaps fearing, given the SC’s repeated invitations to ‘apply’ for it and its mood, that the SC may interpret it to deny immunity. Therefore the immunity issue, which was the premise of Mr Gilani’s defence, was not dealt with in court or in the detailed judgement. The Contempt of Court Ordinance 2003 relied upon by the SC has lapsed and is no longer in force. The detailed judgement implies the constitution trumps parliament’s sovereignty, which it described as a “British old fashioned” notion. With respect, the principle of parliament’s supremacy is still valid in all democracies, whether “old fashioned” or new. Parliament is supreme because it is the sole institution of the state empowered to amend the constitution. Parliament represents the will of the people, not the court’s interpretation of that “will” or “command”. Moreover, the judgement has reduced the Speaker to a virtual post office, arguably against the relevant provisions of the constitution. The court’s order invalidating the PM’s acts between April 26 and June 19 might have ended in a chaotic scenario had it not been for the Presidential Ordinance validating these acts, including the Budget passed in this period. The doctrine implied in the judgement sets up the SC over and above the letter and spirit of the constitution, principles of democracy, and smacks of judicial overreach. *