I’ve read a couple of conflicting sources, so I figured I’d check with AK84. I woulda PMed, but on the off-chance other people are interested…is it?
As of yesterday it is. The only way to overturn a Supreme Court judgement is to amend the constitution.
Wow. Really? I don’t know much about legal systems, but that sounds like the supreme court can pretty much write its own laws. Are there any checks/balances on their power?
All Supreme Court decisions and the rulings therein are binding on lower courts until overruled by the SC itself or by the legislature by changing the law, a fundamental tenet of a common system such as Pakistan (and India as well see Article 141 and the Judgement of the SC of India in* Dir. Of Settlements, A.P. & Ors vs M.R. Apparao & Anr* Civil Appeal 2517 of 1999 ).
The check on the Courts powers are
i) future Court might overule
ii) Legislature might amend the law,. This is more easily done with ordinary statutes, the constitution requires constitutional amendments, which need a super majority in both Houses of Parliament to pass., however this can and has been done; earlier this year infact.
No different from the Supreme Court of the United States. Once that Court rules on a constitutional issue, the only ways to change it are to persuade the Court to change the ruling in a future case, or to amend the Constitution.
Oh, I think I may not have presented the question very clearly, or am just not getting your response now. Either is possible, I’ve slept four hours in the last two days. Bear with me.
What I was trying to ask was, is the supreme court within its rights to have disqualified the PM? Is that within its constitutionally granted powers? What I understood from your response was, now that they’ve made the ruling, regardless of whether it was within their power or not, nothing can be done unless a constitutional amendment is made
(on a side note: what would such a constitutional amendment overturning a SC judgement say? the supreme court may not remove the prime minister? or that its removal of Gilani is overturned? and then what’s to stop the SC from removing him right back again?)
Suppose the constitution says that only the president may remove the prime minister before his term ends. The supreme court removes him. Does that become constitutional simply because the supreme court has done it?
What has happened. Gilani was convicted of contempt of Court. Under Art 63 of the constitution, a convict cannot be a member of the national assembly, the lower house similar to the Lokh Sahba in India. Decisions as to membership of the national assembly and eligibility are made by the speaker of the house. The speaker of the House declared that the conviction was not enough make him lose his seat. This decision eas challenged via Judicial review in the Supreme Court and the SC reversed the decision of the speaker. Gilani ceased to be a member of Parliament and therefore constitutionally unable to continue as PM. So strictly speaking he has not been removed as PM, just it has become impossible for him to continue as such.
The controversy is on two points. Firstly whether the Article did in fact apply to Gilani’s case. You have to be convicted of something which has a sanction which exceeds 5 years imprisonment or is an offense which relates to fiduciary matters. The first bit was not covered, Contempt is 6 months. the second part, well the SC has ruled that contempt comes under that heading. The second controversy is whether the Court even had the power to review the Speakers decision due to Parliamentry privilege and immunity, the SC ruled that it did . It is here where the argument comes that the Court erred in it’s interpretation.
To reverse this you would need a constitutional amendment which firstly declares contempt not within the ambit of the article dealing with disqualification backdated to the date of Gilanis conviction and then immunises the speakers decisions on membership from Judical review.
Per your last bit, the Court cannot go against a specific constitutional amendment. It has no power to dismiss a PM and it did not do so here, at least not directly.
Furthermore, although this particular exercise is indeed unprecedented, the SC has consistently held that where there is an exercise of power under law then such exercises is re viewable in a Court unless there is a specific bar and Parliamentary privileges means the Parliament (or its houses) as a whole, and does not necessarily extend to committees and offices. Most notably in this case, the SC set aside the decision of a parliamentary committee on the confirmation of Judges and dismissed the Governments arguments regarding immunity and privileges (full disclosure, I was one of the Petitioners Counsels in the above case). So it would be inaccurate to say that this action is completely sans precedent.
Ah ok. Much clearer now. Thanks!