ISLAMABAD, Aug 2: Attorney General Irfan Qadir commenced on Thursday his defence of the Contempt of Court Act 2012 before the Supreme Court but with a bumpy start. He first fired a salvo of bias at members of the bench and then regretted that former prime minister Yousuf Raza Gilani had been convicted under a non-existing law.
The AG opened his arguments with allegations of bias against four members of a five-judge bench, headed by Chief Justice Iftikhar Mohammad Chaudhry, hearing 27 challenges to the new contempt law.
The petitioners, who had already completed their pleadings, may get another chance to rebut the AG’s arguments on Friday, after which the court is likely to issue a short order or at least reserve its verdict.
The attorney general argued that in the former prime minister’s contempt case the court was essentially asking him to violate Article 248 (immunity) of the Constitution. But being a sworn member of the parliament the premier could not do so, Mr Qadir added.
The chief justice told the AG that he was levelling serious allegations against the seven-judge bench which had convicted the former prime minister of committing contempt and asked him to name the person for whom the provision relating to immunity had been violated.
When the AG referred to the NRO judgment, the chief justice said it was a misconception that the court had ever said it diluted the effect of immunity.
The AG said Mr Gilani had respect for the court and that was why he quit his office silently after disqualification by the court without making any fuss, but it was his stand which he had also reiterated before the parliament that writing a letter to the Swiss authorities to reopen graft cases would mean violating Article 248.
And one of the reasons for bringing the new contempt law was the fear, expressed by senators like Haji Adeel, to save the next prime minister, the AG conceded. “Wisdom has to be attributed to parliament and not respecting parliament means committing contempt.”
The chief justice said the court had all respect for Mr Gilani, but it had to do its job whenever a case came before it.
“Forbearance should be the hallmark of the law-making process,” observed Justice Khilji Arif Hussain, highlighting why it was necessary to involve civil society, public at large and thinkers in the process through dialogue.
“That is why I am saying the court should not show haste in deciding the matter,” the AG said.
The AG said Mr Gilani had been convicted under the Contempt of Court Ordinance 2003, which did not exist. “Why you did not appeal against the conviction,” Justice Khilji retorted.
Mr Gilani had received a standing ovation in parliament because he acted in a dignified manner and sacrificed, instead of entering into any confrontation, the AG said and suggested to the court to also exercise restraint.
Earlier when the AG spoke of bias, Justice Jawwad S. Khwaja asked why he had not objected to composition of the bench when the court commenced the proceedings.
The court also asked the AG to name the judges who, according to him, were prejudiced. “This is not the first time you have raised objections to the constitution of the bench,” the court said, reminding him that he had also raised the same objection before another larger bench.
DEFAMING JUDGES: The chief justice was of the opinion that the AG was making an accusation which he could not prove and said he should not defame the judges. Justice Khawaja also asked the AG not to make mockery of this institution (court) and his office.
In order to safeguard the independence of judiciary, the AG argued, it was necessary that persons likely to be affected in the event of striking down the law be made a party to the proceedings.
He insisted that the entire case of the petitioners that the contempt law would adversely affect the independence of judiciary was too sweeping a statement because almost the same law remained in the field for almost a quarter of a century but nobody had come with the novel idea that the law was going to clog the independence of judiciary. To a large extent the 1976 law of contempt was almost similar to that of the 2012 act, he said, adding that the entire edifice of judiciary should not rest on the contempt law since it was used very sparingly in the entire world.
Irfan Qadir said nobody had a fundamental right to have a contempt law of his choice, but it was the right of all and sundry to have freedom of speech and thought. “It is because of this that the universal declaration on human rights gives recognition to freedom of expression and speech.”
The AG also turned his guns on the Pakistan Bar Council (PBC), one of the petitioners in the case. Citing sections from the Legal Practitioners and Bar Councils Act 1973, Mr Qadir argued that it was not the job of the council to file contempt petitions. The bar councils should side neither with the bench nor the legislature, he said.
The chief justice observed that “we should respect the bar council as it is the highest body of the legal fraternity”. “These are the bodies which created awareness in this country. Even Quaid-i-Azam and Allama Iqbal belonged to the black coats.”
The poor, clerks, members of the armed forces, journalists and members of the cross-section of society were all part of the movement that created Pakistan, the AG contended.