Courtroom Chaos: Pakistan's Supreme Court Sacks Prime Minister Gilani

On Tuesday, Pakistan’s Supreme Court ruled to disqualify Prime Minister Yousuf Raza Gilani from office for contempt of court, a charge Gilani was convicted of on April 26, 2012.[1] The decision throws Pakistan into legal and political chaos and may have an important impact on Pakistan’s upcoming elections.

The ruling begins with Gilani’s conviction for contempt of court for refusing to pursue corruption charges against President Asif Ali Zardari. Pakistan’s constitution forbids those convicted of contempt from holding a seat in parliament.[2] Following Gilani’s conviction, his case was referred to Fehmida Mirza, the Speaker of the National Assembly (Pakistan’s lower house), to begin disqualification proceedings against Gilani. Mirza, a member of the prime minister’s ruling party, used her prerogative as speaker to not forward the petition on to the Election Commission of Pakistan (ECP)—a necessary next step in the disqualification process.[3]

The latest Supreme Court ruling overturns the speaker’s decision not to disqualify Gilani from office.[4] The court backdated its decision to April 26, the date of the original contempt conviction, meaning that, since that date, Gilani has not been the prime minister and any decisions taken since could be ruled as invalid.[5] This would include the passing and signing into law of Pakistan’s fiscal year 2012-13 national budget, a cornerstone of the Pakistan Peoples Party (PPP)-led coalition’s legislative agenda.[6]

The court’s decision is a blow to the ruling PPP.[7] Earlier reporting seemed to suggest that the court would overturn the speaker’s decision and force the matter to be referred to the ECP, the natural next step in the process. The ECP would then have 90 days to rule on the issue of disqualification, and Gilani would still be able to appeal any decision the ECP took against him, meaning that he could have continued to serve as prime minister for months.[8] The court chose instead to choose the most virulent option, disqualifying Gilani with immediate effect. Now, the PPP will be forced to field a new candidate for prime minister or call for early elections.[9]

The decision also opens up the possibility of a clash of institutions with the judiciary butting heads with parliament.[10] Both Mirza and Pakistan’s attorney general, Irfan Qadir rejected the court’s ruling, saying the court did not have jurisdiction to overturn the speaker’s ruling since it was a parliamentary matter.[11] A few days ago, Parliament passed a resolution supporting the speaker’s decision not to disqualify Gilani.[12] What appears to be developing is a clash between the Supreme Court and an elected government that maintains a strong majority in parliament, and it is unclear (or open to interpretation of the law) whether the Supreme Court had the right to rule on the case.

The government’s detractors hail the decision as a triumph of the rule of law and the first step towards bringing down a corrupt, incompetent government.[13] The ruling coalition is lambasting the court for carrying out what it terms to be a judicial coup, giving politicized decisions against the ruling party with the backing of Pakistan’s military establishment.[14] The PPP will surely use the issue as a campaign slogan, portraying itself as a victim of malign judicial activism, in an attempt to fire up its base once election campaigning gets into full swing.[15]

A further complication is that this ruling comes at the same time as a different case is being pursued against the son of the Supreme Court’s Chief Justice Iftikhar Chaudhry.[16] Chaudhry’s son is before the court on charges of corruption and accepting money from a wealthy property developer in order to influence court proceedings in his favor. The case has tarnished the court’s and Chaudhry’s reputations and may open the court up to accusations that it is throwing the book at Gilani in order to distract from the mud-slinging it is facing in the corruption case.[17]

For the moment, it appears the PPP will accept the court’s decision and chose to field a new prime ministerial candidate.[18] The government has a strong enough majority to be able to elect a new prime minister without needing to call for early polls.[19] How this affects its election prospects remains to be seen. The government recently has been feeling bullish regarding its chances in the next general elections owing to its strong coalition and a divided opposition.[20] If the ruling tarnishes the government rather than rallying its base, and sets up a clash of institutions pitting the generally reviled President Zardari against the populist Chief Justice Chaudhry, the PPP-led coalition may suffer.

The only thing that does not change is that Zardari, the real prize in all the political and judicial wrangling, remains untouchable for the moment. Any new prime minister will likely toe the same line as Gilani and will refuse to open corruption proceedings against Zardari. Only if the PPP loses the next election, and Zardari is forced to relinquish the post of president and the immunity from prosecution it accords, will the court be able to advance corruption cases against him (assuming Zardari sticks around long enough to be served).

Whether the government survives, who will win the next election and by how much, and whether the ruling will lead to a clash of institutions are all open questions. While partisans of the populist judiciary and opponents of the government can claim a moral victory for the rule of law, the ruling may start a war between the guardians of the constitution and an elected government with a solid popular mandate. If such a clash weakens democratic institutions in a country where a transition to democracy away from military dictatorship is still in its nascent phase, all parties stand to suffer in the long term.