Tag Archives: Gilani

What the contempt conviction means, and what it doesn’t

Pakistani Prime Minister Yousuf Raza Gilani leaving court

I have refrained from writing about the recent conviction of Pakistan’s Prime Minister on contempt of court charges because the case, from my perspective – as well as many whom I’ve talked with – is a bit confusing. Unfortunately, that hasn’t stopped much of the mainstream media from publishing alarming reports that could easily misguide people into thinking that the case means more than it does.

The day the Court announced its decision, CBS News declared that, Pakistan’s government “was thrown in turmoil…after Prime Minister Yousuf Raza Gilani was convicted on a contempt-of-court charge by the country’s Supreme Court,” and went on to quote anonymous western diplomats in Islamabad predicting that, “early elections are a very real possibility because of this turmoil.”

A few days later, however, both houses of Pakistan’s parliament passed resolutions voicing “complete confidence” in the embattled Prime Minister. Opposition politicians continue to try to make hay of the Prime Minister’s conviction, but the election of Pakistan People’s Party (PPP) candidate Usman Bhatti to a seat deep in the constituency of the opposition Pakistan Muslim League – Nawaz (PML-N) suggests that Pakistani voters do not see the case as particularly damning.

Other news reports exaggerate not the fallout from, but the nature of the conviction. Foreign Policy magazine published an otherwise informative analysis by AEI’s Reza Nasim Jan with the glaringly misleading headline, “Pakistan’s Federal Felon”.

While the Supreme Court’s case has created confusion even among Pakistani legal experts, there is significant reason to believe that the case is not as severe as opposition politicians may be trying to make it out to be.

In its order, the Supreme Court did not invoke Section 6 of the Contempt of Court Ordinance 2003 which specifically defines the requirements for criminal contempt. In fact, reading Section 6, it’s pretty clear why – it doesn’t appear to apply to the Prime Minister’s case.

The Prime Minister was charged with a violation of Article 204(2) of the Constitution read with Section 3 of the Contempt of Court Ordinance 2003. Together, these broadly-worded laws basically define ‘Contempt of Court’ as anything that a Judge deems contemptuous – political cartoonists beware. The Prime Minister was punished under Section 5 of the Contempt of Court Ordinance 2003, which provides for a fine and jail time. His actual sentence was about 30-seconds.

Additionally, prior to the Supreme Court announcing its decision, Pakistani media reported that the Prime Minister had been charged with civil contempt:

The bench of the Supreme Court had charged the prime minister with civil contempt, instead of judicial or criminal contempt. The absence of the latter two, according to legal experts, meant that the provisions of Article 63(1 g or h) of the Constitution may not apply and hence the prime minister would not be disqualified from being a parliamentarian if convicted.

It is also noteworthy that, in the Supreme Court’s order, the justices wrote that “the findings and the conviction for contempt of court recorded above are likely to1 entail some serious consequences in terms of Article 63(1)(g) of the Constitution…” As legal analyst Waris Husain noted in Dawn,

The Court used the language “likely to entail” because the right to terminate parliamentarians’ tenure is constitutionally vested in the Speaker of the National Assembly and the Election Commission. Under Article 63 (2), once the Speaker has received notice of a parliamentarian’s conviction, he/she may forward the issue to the Election Board within 30 days which must make a decision within 90 days. This process is the exclusive duty of the legislative department, rather than the Court. Therefore, the process to disqualify the prime minister has only just begun.

Without doubt, the conviction was a blow to the Prime Minister and an unwanted distraction for the governing coalition – especially as negotiations with the US continue. But, as pointed out by the State Department, “this as an internal domestic issue…and is being addressed in a legitimate and democratic fashion by the Pakistani judicial system.”

Sensational and misleading media reports not only add to confusion about the issue in the US, they can add to confusion in Pakistan as well, unnecessarily calling into doubt the independence of Pakistani institutions and indirectly interfering with the democratic process.

Pakistan’s Supreme Court rendered its decision in the Prime Minister’s case, and it chose not to remove him from office. The Prime Minister has the right to appeal, and the decision of whether he will remain Prime Minister rests with the democratically elected representatives of the people of Pakistan. The process may seem noisy and confusing to us in the US, but – so far – it appears to be working.

1 Emphasis added

Q&A: Contempt Charges Against Pakistan’s Prime Minister?

Pakistan's Prime Minister Yousaf Gilani

The latest battle between Pakistan’s elected officials and its judiciary heated up this week when the Supreme Court announced plans to indict the Prime Minister on charges of contempt of court. We wanted to find out what’s behind the latest battle, so we asked comparative law specialist and features writer for Dawn, Waris Husain, for some insight and he was gracious enough to accomodate us.  

Q: The New York Times reported on Thursday that Pakistan’s Supreme Court has announced plans to charge the Prime Minister with contempt of court. What did the Prime Minister do, exactly?

A: The Supreme Court held in 2009 that an ordinance passed by then President Pervaiz Musharraf which gave immunity to many political figures was unconstitutional. Since the decision was handed down, the executive branch dragged its feet in implementing the court’s holding overturning that the National Reconciiliation Ordinance (NRO). President Asif Ali Zardari was one of the individuals who benefitted from the ordinance as he had been facing criminal cases in Pakistan as well as a corruption case in Switzerland. The court has continually asked the Prime Minister and other individuals to follow up with the Swiss case against President Zardari by writing a letter to Swiss authorities requesting that the case there be reinstated. The Prime Minister has not written this letter, and thus he is being held in contempt of court for not executing the court’s order.

Q: The Prime Minister’s lawyer, Aitzaz Ahsan, made an interesting observation recently. He said the Prime Minister is a government official acting under the advice of his counsel. If government officials can be held in contempt for following the advice of their lawyers, what sort of precedent does that set?

It certainly can set a dangerous precedent. In the U.S., several Supreme Court decisions allow for a president to be immune from prosecution so long as he acted in good faith at the behest of his counsel. This is to allow the President, who has to make very complex decisions at a high frequency, the ability execute the functions of his job without worrying about pending litigation. This principle is taken far further by the Pakistani constitution which guarantees absolute Presidential Immunity in Article 248. The “legal advice” Mr. Ahsan was referring to was that the Prime Minister could not write a letter to the Swiss authorities about Zardari because such an act woud violate the immunity the President enjoys.

However, the real issue at the core of the court’s order against PM Gilani is the question of who is the final judge of the constitutionality of an act. Though Ahsan raised the issue of legal counsel, the tribunal responded that Gilani could have disregarded any advice that was contrary to the court’s order. Throughout its decision, the court relies on its power of judicial review to be the ultimate decider of the constitutionality of laws, and they implicitly argue that the Executive needs to implement that decision without critically examining its legality.

What about the government’s claim that the president enjoys immunity from prosecution during his term in office? The court seems to be questioning that, but highly respected Pakistani jurists seem puzzled by this. The wording of the Constitution does seem pretty clear.

The American courts developed presidential immunity over time, finding that it was necessary in order to give the President the ability to carry on all the responsibilities he has been constitutionally tasked with. As I said earlier, Pakistan is unlike the U.S. because its constitution has an article guaranteeing absolute immunity to a sitting head of state – and the language is clear. Therefore it is striking to see the court focusing so aggressively on Gilani’s inaction in the Swiss case where the President enjoys immunity. This is partly because the general attitude of the court has been one of growing frustration at the lack of implementation of its orders by the current administration. In many ways, the court feels its credibility is being attacked by Gilani refusing to send the letter, even though doing so would seemingly violate the presidential immunity clause in the constitution.

An article published last month in The Express Tribune (The New York Times’ sister newspaper in Pakistan) reported that the so-called ‘Swiss cases’ could not be re-opened. In fact, a 2008 Reuters report quoted Geneva’s chief prosecutor, Daniel Zappelli, saying that he had no evidence to bring Asif Zardari to trial.

Yes, in fact Ahsan reported to the court’s dismay that he had confirmation from the Swiss authorities that they would not pursue the cases against Zardari.

Some argue that many, if not most, of the charges brought during the 1980s and 1990s were politically-motivated – government officials using the courts as a political weapon against their opponents.

I am not certain about the numbers, and others are far more qualified to speak on that issue than myself. However, from a legal perspective, the court has a valid point in exercising its judicial review over the NRO. The decision to grant a pardon or excuse an individual should only come after a judicial body has held some sort of hearing on the case. The NRO essentially erased all charges that existed without allowing for review by the proper judicial bodies as to whether the charges were legitimate or not – which is the duty of the courts.

It could be that many of the individuals who were accused or convicted of crimes before the NRO were actually innocent and that the charges were politically motivated, but the court attacked the random selectivity of the process. Essentially Musharraf was handing get-out-of-jail-free cards to the politicians he needed to ‘reconcile’ with, and those individuals distributed the cards to their supporters. It is possible that many of the individuals were completely innocent; however, the right to determine which were innocent and which were guilty is the right of the court, not the executive.

There were over 8,000 individuals who received amnesty under the NRO, but the only case that seems to be given any serious consideration is the one against the president. Is this just because his is a high-profile case, or is the court targeting him specifically?

I believe the court is targeting Zardari specifically, and it is also disregarding the thousands of other pending criminal cases that need to be resolved. Some will claim this had to do with a personal enmity between Zardari and Chief Justice Chaudry, as the former hesitated in reinstating the Chief Judge after Dictator Musharraf was removed. Others will claim that the court is merely attempting to assert its role in the future of the nation, and is biting back against the non-cooperation of the ruling administration.

The timing is also interesting. With Senate elections expected next month and general elections within the next year, many are asking, why now? Why not let the people have elections without tarring politicians with legal brushes in drawn out court cases.

There seems to be a perfect storm brewing with regards to the coming elections. Elections should be entered into with all the institutions working together, rather than fighting and impugning the character of potential candidates because this would not benefit Pakistan’s democratic future. However, the NRO decision was passed three years ago, and so the Supreme Court has been awaiting an adequate response from the government since then, and has not been satisfied. Much of this is due to Zardari and Gilani’s own strategy of avoiding the implementation of the court’s decision, and making the court play the waiting game. So now that the court feels that its credibility and legitimacy is on the line, it is unwilling to pull back from the confrontation now.

Pakistan's Senate Passes Historic 18th Amendment, Sends Democratization Bill to President

Pakistan's National Assembly

Following the National Assembly’s passage of the 18th Amendment package of constitutional reforms, Pakistan’s upper house Senate approved the measure this morning, sending it to President Zardari for ratification. This historic event is culmination of unprecedented cooperation and consensus between Pakistan’s political parties.

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Stability of Pakistan's Democratic Government Key to Nuclear Security

President Obama and Pakistani PM Gilani discuss nuclear security in Washington.

President Obama met with Pakistani Prime Minister Yusuf Gilani over the weeked as the global nuclear summit kicked off in Washington, DC. The US has consistently said that it is not worried about the security of Pakistan’s nuclear arsenal per se, but sees a greater threat in efforts to destabilize the democratic government.

Pakistan has approximately 70 to 90 nuclear weapons according to a report by Havard University’s Belfer Centre for Science and International Affairs, titled Securing the Bomb. According to the authors of the report, while “Pakistan has taken major steps to improve security and command and control for its nuclear stockpiles,” the greatest opportunity for terrorists to seize nuclear weapons comes from the fragile stability of Pakistan’s democratic government.

Ultimately, no nuclear security system can protect against an unlimited threat. Hence, reducing the risk of nuclear theft in Pakistan must include both steps to further improve nuclear security measures and steps to reduce extremists’ ability to challenge the Pakistani state, to recruit nuclear insiders, and to mount large outsider attacks. Fortunately, the Pakistani government, with support from the United States and other countries, is moving on both fronts, seeking to wage both a military/intelligence battle and a “hearts and minds” campaign against violent extremists in Pakistan…

This concern was echoed by Joseph Cirincione of the Ploughshares Fund, a nonprofit foundation that supports nuclear disarmament, in an interview yesterday with National Public Radio. Mr. Cirincione stated that a key concern about Pakistan’s nuclear security was the stability of Pakistan’s democratic government.

Joseph Cirincione, Ploughshares Fund: It’s not that the material isn’t secure right now – it is – it’s that the government isn’t secure.

Robert Siegel, NPR: So, in effect, it’s the stability of the Pakistani government, and indeed the policy or the orientation of the Pakistani government that’s the measure of how dangerous that arsenal is.

Joseph Cirincione: Right.

Pakistan’s democratic government has made great strides in both domestic political reform and security. But supporting the democratic government against destabilizing elements is not only in the interest of promoting democracy. Pakistan is a key ally in the fight against militant groups like al Qaeda, and the stability of Pakistan’s democratic government is the key to keeping nuclear weapons out of the hands of terrorists.

Democratic Reform And Women's Rights

The current democratically elected government of Pakistan has made tremendous progress in bringing traditionally underrepresented groups to the table, especially with regard to women’s rights and empowerment in society.

Democratic reform is about more than simply holding elections and letting people vote. Many nations with significant deficits in democracy hold elections. A true sign of democratic progress is whether or not traditionally marginalized and underrepresented groups are made part of the governing process, so that all people are represented in the government.

Earlier this month,  President Zardari signed historic women’s rights legislation, the Protection Against Harassment of Women at Workplace Bill.

President Zardari signs historic women's rights bill

“We have to create a Pakistan where the coming generations, my daughters, can be proud of the fact that they live as equals. We will make sure that those who wish to harm the ideology of the Quaid-i-Azam, which was for equality for men and women, shall not succeed,” said President Zardari.

But this is not the only historic progress for women’s rights that has occurred recently. This week, President Zardari appointed Dr. Shama Khalid the first woman as Governor of Gilgit-Baltistan.

PM Gilani speaking with Dr. Shama Khalid

Dr Shama Khalid is a leading social worker who voluntarily worked in different parts of Gilgit-Baltistan by establishing free summer medical camps every year.

Women in Pakistan continue to face significant obstacles to equal participation in society. Religious extremists have been specifically targeting these advances in women’s rights, attempting through threat of violence and death to force Pakistan’s women into subjugation.

The bombing that killed three US soldiers in February was actually an attack by the Taliban on a girls’ school. Sixty-three Pakistani schoolgirls were injured in the attack, three others lost their lives.

The actions of the democratic government both in outlawing harassment of women and in appointment women to positions of authority are essential elements in transforming attitudes in Pakistan so that all women can, as President Zardari said, “live as equals.”

American Media Misreporting Pakistan's Constitutional Reforms

As Pakistan’s parliament debates a package of constitutional reforms, it is important that these legal changes be viewed in the proper context. Unfortunately, anti-democratic talking points have crept into reporting on these developments in the American media. These talking points say that the National Assembly will be “curtailing” or “clipping” the powers of Asif Ali Zardari. In fact, the President has supported what is being discussed – a package of reforms that would redistribute powers previously seized by anti-democratic military dictators.

To understand the nuances of why this matters, a bit of historical context is in order. In 2008, Pakistan held elections that ushered in a new era of democratic rule. For the first time in decades, leaders selected by the people in open, free, and fair democratic elections governed the nation. It was a historic moment, and one that brought hope to the nation.

Despite the democratic elections, Pakistan’s government continued to operate under constitutional changes made by military dictators Zia-ul-Haq and Musharraf. From the outset of his term as President, Asif Ali Zardari vowed to undo the undemocratic consolidation of power that occurred under military dictatorships so that the government could operate with proper checks, balances and distribution of powers.

Over the course of the past year, Prime Minister Gilani and President Zardari have worked closely to craft a package of reforms that would return the Pakistani constitution to its democratic foundation. Last November, President Zardari stunned many onlookers when he voluntarily returned command of nation’s nuclear arsenal to the office of Prime Minister, where it lay prior to being seized by Gen. Musharraf in 2002. One might expect such an act to be met with praise, but Zardari’s anti-democratic opposition pounced on the opportunity to define the act to their advantage.

Unfortunately, much of the right-wing establishment in Pakistan still sees democratization as a threat. For a President to voluntarily return authority to the proper branches of government was dubbed ‘weak’ and ‘unpopular.’ We respectfully disagree with this point of view.

Some far-right publications, like the English-language newspaper The Nation, have recently complained that Zardari is going too far in promoting democratic reforms. This has caused some to question whether right-wing groups in Pakistan are trying to derail the process of democratization before the next elections in the hopes that they can take power under the rules set by previous dictators.

Unfortunately, anti-democratic talking points have begun to appear in American reporting about Pakistan’s constitutional reforms. Take, for example, an article in the Washington Post this week that begins,

Pakistan’s Parliament is expected to pass constitutional changes in coming weeks that would vastly curtail the powers of President Asif Ali Zardari, effectively sidelining the unpopular leader of the nation’s weak civilian government.

This paragraph not only reads like an anti-democratic opposition press release, the language has a tendency to become a self-fulfilling prophecy. The more people read that the democratically elected president is unpopular and that the constitutional reforms are meant to curtail Zardari personally, the more people begin to doubt the democratically elected president, and democratization more generally.

This is not unusual, of course, as we have seen recently the same phenomenon in American politics when opponents of President Obama’s health care bill repeatedly stated that health care reform was unpopular with the American people, only to see the bill’s popularity skyrocket when it became clear that it would pass. Whether American or Pakistani, people like to support a winning team.

Pakistani democracy is at a crucial moment in history – democratic and anti-democratic forces are wrestling over the future of the nation. Will Pakistan grow to become a free, democratic stronghold in South Asia? Or will right-wing forces turn Pakistan backwards towards the rule of Zia-ul-Haq and Musharraf?

We respectfully ask that American journalists consider their words when writing about democratic reforms, and recognize that the package of constitutional reforms currently under discussion in Islamabad is not a slight to President Zardari, but the culmination of difficult and humble choices made by the democratically elected President to return powers to their proper offices, ultimately putting his nation before himself.