On Friday afternoon, the Supreme Court of Pakistan struck down the newly enacted Contempt of Court Act, 2012, on the basis that it is unconstitutional. The power of the Supreme Court to do so is well-established, and it stems logically from the hierarchical structure of statutory law in Pakistan.
At the very highest rung is the Constitution. It provides the basis for all state power, including the legislative power vested in parliament and the judicial power vested in the Supreme Court. One rung below the Constitution comes primary legislation (i.e. acts and ordinances), which – it has long been held – can be struck down on the basis that it is in violation of some provision of the Constitution.
In deference to the fact that both the judiciary and the parliament draw their strength from the same source (i.e. the Constitution), the power to strike down primary legislation has in the past been exercised rarely, and with restraint. A factor which, historically, has weighed heavily with the bench when exercising this power, is the question of whether or not the fundamental rights specifically enacted in the Constitution are directly affected by the offending statute.
Yet another general principle the courts seek to apply when striking down primary legislation, is to attempt to spare as much of the statute as it possible can – only those specific provisions which are in direct violation of the Constitution are struck down. A classic example is the judgment in Rauf Bakhsh Kadri v The State, where a bench of the Sindh High Court displayed clinical acumen in its interpretation of the then-NAB Ordinance, so as to preserve the statute while at the same time precluding the possibility of its use in an unconstitutional fashion.
It is surprising then, that within this well established historical context, the Supreme Court chose to strike down not merely the offending provisions, but the statute as a whole. Most surprising, however, was its decision to impugn, not merely section 3 – a provision of the 2012 Act which limits the application of the law in what has now been held to be a discriminatory fashion, but also, inter alia, section 11 – the provision which provides a statutory mechanism for an intra-court appeal, and section 13, that provision which repeals the earlier contempt laws.
In truth, the ‘intra-court appeal’ aspect of the Act was one which was not fully addressed or even understood by the media or by the lay public. It was section 11 that was the real ‘ace-in-the-hole’ for the ruling Government. The idea behind it was simple: it was expected that even if the Court struck down the various defenses and limitations given in section 3 (e.g. which included the infamous protection for public office-holders), it could not find any reason to impugn section 11, which merely enacted a statutory right to file an appeal.
Thereafter, if the newly appointed prime minister were to be held in contempt for failing to write the ‘Swiss Letter’, he could potentially opt for an intra-court appeal to the full-bench of the Supreme Court. Not only would this buy time until elections were to roll around (since the order would, under the provision, remain suspended) but there would be a chance that not all the Supreme Court judges would find it palatable to disqualify from parliament, a second validly elected prime minister, thus leading to the possibility of dissension in the ranks (or even – God forbid – a dissenting opinion).
A cunning plan, yet doomed to fail: the Supreme Court (in Para 16(xv) to (xviii) of its Judgment) has held that section 11 also violates the Constitution. The reasoning goes thus: firstly, the possibility of an intra-court appeal to a full-bench, coupled with a 60-day limitation period, precludes the possibility of an expeditious disposal of cases; secondly, the statutory suspension of the original order of conviction during the appeal violates the principle of separation of power. Though the detailed judgment has yet to be announced, it is very difficult to see how the Supreme Court will justify this expansive decision, against the touchstone of Constitutional violation.
Insofar as the first justification given (i.e. expeditious disposal of cases) is concerned, the Court has based its finding on article 37(d) of the Constitution. This would all be well and good, were it not for the fact that article 37(d) is merely a Principle of Policy. In relation to the Principles of Policy, article 30(2) of the Constitution mandates: “The validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the Principles of Policy, and no action shall lie against the State or any organ or authority of the State or any person on such ground.” It is therefore difficult to see how the judgment can be reconciled with this provision in a logical fashion.
Insofar as the second line of reasoning is concerned (i.e. violation of the principle of separation of powers), the legislature’s decision to suspend a conviction order during the period of appeal is not by itself unconstitutional. Even though it may be rare, there is no article which precludes the possibility of such a mechanism, and indeed similar mechanisms exist in other statutes. Any further discussion on this ground would be speculative however, since the Supreme Court has not named any constitutional provision on the basis of which it has given this finding.
Turning to section 13 of the Act (which merely repeals the earlier Contempt law) the Supreme Court’s findings are highly radical. It was held by the Supreme Court (in Para 16(xx) to 16(xi) of its judgment) that since no reason was given by the legislature for its repeal of the earlier statutes (i.e. the contempt statutes of 1976, 2003 and 2004), therefore, the new law is redundant and section 13 is inoperative (i.e. the repeal cannot take effect). It is difficult to address this notion in any meaningful way, since it so very alien to our own jurisprudence and to that of countries upon which our jurisprudence is based.
Suffice it to say that if this principle were to be applied uniformly, not a single statute would remain on the books. This is so for the simple reason that statutes are meant to set out the law as enacted by Parliament. They are not meant to justify the reasons behind such enactment. For that very purpose, a Statement of Objects and Reasons is drafted by parliament (as it was in this case as well). Why this statement was not taken into account, has not been addressed by the short order.
Though the conclusion of the Supreme Court was a predictable one for most observers, the reasoning by which it came about raises many questions. It remains to be seen whether the detailed judgment will satisfy these questions in a meaningful fashion and one which has the capacity to form a sustainable precedent for the future.
The writer is a lawyer practicing in Karachi.