The Supreme Court of Pakistan removed the Prime Minister in what is known as a “short order” – essentially a court order lacking a full explanation. These orders often begin, “For reasons to be recorded later…” – a practice that seems the beg for abuse and controversy – and then proceed directly to ordering some specific action on the part of an individual or institution. In this case, though, the specific action was not given until almost two months later – and made retroactive.
On April 26, the Supreme Court issued an order “for the reasons to be recorded later” that found then Prime Minister Yousaf Raza Gillani “guilty of and convicted for contempt of court.” The Supreme Court did not declare the Prime Minister disqualified from office and sentenced him to a symbolic detention of about 30 seconds.
The Supreme Court having chosen not to disqualify the Prime Minister, the issue was then taken up by the Speaker of the National Assembly, Dr. Fehmida Mirza, who ruled that Mr. Gilani was not disqualified. That was last month.
Today, nearly two months after the Supreme Court issued its controversial conviction, a new short order, “for reasons to be recorded later,” was issued by Chief Justice Iftikhar Chaudhry – this time declaring that “Syed Yousaf Raza Gillani has become disqualified from being a Member of the Majlis-e-Shoora (Parliament)…on and from the date and time of pronouncement of the judgement of this Court dated 26.4.2012…”
This raises several very interesting questions. If the Prime Minister was disqualified pursuant to the Supreme Court’s order on April 26, why did they wait until June 19 to say so? Some have suggested that the Supreme Court was giving the Prime Minister the opportunity for appeal, but this is doubtful for a number of reasons: One, the Supreme Court could have declared the Prime Minister disqualified and then stayed the order pending appeal. But more to the point, to whom would the Prime Minister have appealed? The original order was given by a 7 member bench of the Supreme Court – there was no higher authority to appeal to.
Then there is the matter of the ruling by the Speaker of the National Assembly. If the Supreme Court had determined that Mr. Gilani was disqualified as of April 26, why did they allow Dr. Mirza to proceed with deliberations and a ruling on Mr. Gilani’s status as parliamentarian? If the Supreme Court believed that Dr. Mirza did not have the authority as Speaker of the National Assembly to issue such a ruling, why did they not issue an injunction stopping the Speaker from carrying out the act?
While these questions remain unanswered, at least until the Supreme Court delivers more than the two pages made available today, they suggest very troubling possibilities. By allowing Mr. Gilani to continue serving as Prime Minister for months, the Supreme Court has created a policy nightmare for Pakistan. Making the disqualification retroactive to April 26 means that any decisions made by the government since are effectively nullified. Pakistan has, essentially, been operating without a government for over 8 weeks.
Moreover, by allowing the Speaker of the National Assembly to deliberate and issue a ruling without comment, only to nullify that decision weeks later, the Supreme Court has undermined the authority of parliament and created confusion about fundamental issues of separation of powers and constitutional authority. What government official can now carry out their duties without the fear of Supreme Court action if the Chief Justice does not like the outcome.
This gets to what is perhaps the most troubling question of all – would the Supreme have issued this new order had the Speaker of the National Assembly herself disqualified Mr. Gilani? In other words, is Pakistan’s Supreme Court acting pursuant to due process or desired outcomes?