Gilani had been convicted weeks earlier of contempt of court, after he refused to comply with a court order directing him to write to Swiss authorities and demand that they reopen a money-laundering investigation against President Asif Ali Zardari that had been launched in the mid-1990s. Under Pakistan’s constitution, a convicted felon cannot serve in the national and provincial assemblies. Membership in the national assembly is required in order to serve as prime minister.
The Supreme Court issues short orders when it requires the authorities to take immediate action. Later, it also issues long judgments, in which it provides detailed reasoning for its position on an important point of law. In the short order of June 19, the court said that “the Election Commission shall issue a notice for disqualification and the president is required to take necessary action to ensure the continuation of the democratic process.” Since neither Gilani nor the government appealed the Supreme Court’s judgment in the contempt case, “the conviction has attained finality,” the court wrote. The contempt conviction in May left the legislature and the government’s executive branch with very little room for maneuver. They were obliged to act as required by the constitution to remove the prime minister. The speaker of the national assembly required the Chief Election Commission to notify within 30 days that Gilani could no longer hold office. Upon receiving this notification, the CEC was to inform the president that the national assembly needed to be reconvened to elect Gilani’s successor. All of these steps were clearly specified in the 1973 constitution, drafted under the watch of Prime Minister Zulfikar Ali Bhutto, the founder of the Pakistan People’s Party, which is now back in power, under the stewardship of Asif Ali Zardari, Bhutto’s son-in-law.
The elder Bhutto disregarded some of the provisions in the constitution that sought to limit his power. His son-in-law has continued in that tradition. The president, the prime minister and the speaker of the national assembly chose to ignore the court’s order, limiting themselves to responding to a petition moved in the court by the main opposition party. The petition asked the court to seek compliance, and the court agreed.
Zardari and his close political associates have shown little respect for the constitution or the rule of law throughout his presidency. Under the constitution’s 18th amendment, signed into law by Zardari in the fall of 2010, the president was required to give up almost all executive authority to the prime minister who, along with his cabinet, is accountable to the parliament. Zardari, however, was not prepared to limit his own powers. Indeed, Pakistan’s constitution also requires that the president, once elected, must resign from the political party that supported his or her candidacy. But Zardari retained the mantle of the PPP’s co-chairman that he acquired following the assassination of his wife, Benazir Bhutto, in December 2007, and even held all formal and informal party meetings in presidential properties.
With the Supreme Court’s short order, the ball is back in Zardari’s court, and he has no choice but to play it this time. While some Gilani loyalists continue to defend him, Zardari has already moved to name an old PPP stalwart, Makhdoom Shahabuddin, as the new prime minister. Thus, Pakistan has taken one more step toward developing a political system based on the rule of law. Democracy, of course, is always supposed to mean more than periodically holding free and fair elections. It must also mean developing a robust rule of law, granting people enforceable property rights and providing citizens with institutional means to settle their disputes.
Pakistan held free and fair elections in 2002 and 2007, and is preparing to hold another at the end of 2012 or in early 2013. Had the Supreme Court not removed Gilani, he would have been the first prime minister to complete his full term. That did not happen, but this time the prime minister was removed not by military action or presidential diktat, but by the order of an independent judiciary.
The Supreme Court’s order has thrown Pakistan’s politics into disarray. But it has also brought Pakistan a step closer to a functioning democratic system. Had Gilani remained in office, he would have provided more ammunition to his opponents, who argue that the Zardari-led government has been leading Pakistan in the opposite direction.
*Shahid Javed Burki, former finance minister of Pakistan and vice president of the World Bank, is currently chairman of the Institute of Public Policy in Lahore. © Project Syndicate 2012