SAJID ZIA and MIAN DAWOOD

LAHORE – Although the Supreme Court has jurisdiction to pardon, acquit or adopt a mid-way, but if it opts to convict the prime minister in the contempt case today, the immediate and the most vital question will relate to his continuation in the office till procedural formalities are fulfilled or immediate ouster from the office.

The contempt of court proceedings were initiated against the prime minister for not using his office for executing the court verdict in the NRO case. As such the decision will have a direct bearing on his office and the conviction will lead his unseating as the member of Parliament.

And the question is of the sequence - whether removal from the office before disqualification or vice versa.

If the argument of the PM’s counsel, Aitzaz Ahsan, is accepted that Gilani will stay in the office for four to five months when the procedural requirement are being met, the question arises what legal and moral weight his functioning and decisions as prime minister will carry when the apex court has already declared him unfit to hold the office for disobeying the judicial verdict.

If court sends Gilani to jail, for which he already expressed his mind, would he discharge duties of the office from the behind the bars when his own movement, activity and other needs of the life would be subject to the will and wish of the jail authorities.

The jurists take different views on the conviction. One relates to what Aitzaz says, the second says, the prime minister will be immediate separated from the office and the third, is the court will give him another chance to implement the NRO decision showing him the conviction in awaiting for him or it can award him conviction while suspending its operation till he files appeal.

The fourth one says the president in terms of Articles 90 and 94 may ask him to continue in the office till he is replaced by another as prime minister, while another says the matter may be referred to the Chief Justice of Pakistan for hearing before a larger bench.

Former SC judge Wajihuddin Ahmad is of the view that operation of Article 63 (1) g will govern in the instant case and the prime minister will immediately leave the office although the matter of his disqualification will continue as a separate issue. He says PM Gilani committed contempt in relation to a matter about his official functioning. The conviction as such may instantly stop his functioning of the office.

To a question, he says the president can pardon the imprisonment and not the conviction that will take its effect on the contemnor.

Wajih says the court can suspend operation of the conviction to let the contemnor move appeal.

Aitzaz Ahsan, SM Zafar and former additional advocate general Amir Rahman say in case of conviction, disqualification after due process will follow ouster from the office which may take at least four months.

Referring to the five options formulated by the bench in January last, he says if the court resorted to those options, it can disqualify the PM at its own end but for that purpose, it will need to serve a notice and hear the premier.

Amir says the prime minister’s office is based on his membership in the assembly and as long as that remains intact, his can continue holding the office.

Azhar Siddique, however, says ouster from the office will come into effect at once with the conviction. He says a person can be a prime minister or a minister under Article 91 of the Constitution even without holding membership in the NA which he has to get within next six months. Article 63 (1) g will apply to the present case to remove the contemnor immediately from the office, while the matter of his unseating will separately take its own course.

Azhar rules out opinion that the president enjoys discretionary authority under Article 45 to halt operation of the conviction or allow the prime minister to stay in power till next premier enters.

Conviction in contempt, he says, aims at sustaining independence of judiciary and the president cannot exercise power to damage it.

He further says conviction can be stayed only by a appellant bench. Former LHC judge Sharif Hussain Bokhari says courts do not pass decisions in vacuum but keeping in view the national interest and the prevailing situation. Therefore, THE possibility of a mid-way cannot be ruled out.

Former SCBA president Hamid Khan says contempt is quite obvious in the present case and if convicted, the PM will lose moral ground, which lies in the heart of a democratic system, to stay in the office.

Aftab Ahmad Bajwa is of the opinion that the bench may also refer the case to CJP requesting him to constitute a full court comprising 16 sitting judges because the case involves the chief executive of the country.

Eminent jurist and former prosecutor general Zahid Hussain Bokhari is of the view that Supreme Court is not likely to pass a ‘destructive’ decision and will choose a ‘token’ punishment.

He says even in that event ouster of the Prime Minister will come about after National Assembly speaker has to deal with a reference on the issue and the same is forwarded to the Chief Election Commission, which will certainly take time.