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‘SC’s contempt powers cannot be taken away’

July 07, 2012

ISLAMABAD, July 7: An amendment to clean the Constitution of the muddles left by military ruler Gen Ziaul Haq, especially about regulating lawmakers by incorporating a set of disqualifications for them, will be a far better option for the government than bringing an altogether new law on contempt, legal experts believe.

“The proposed law to repeal the older Contempt of Court Ordinance 2003 will only add more discontent to an already murky political environment in the country,” commented advocate Waqar Rana, the mover of a petition by PTI chief Imran Khan challenging the May 24 ruling of National Assembly Speaker Fehmida Mirza which had saved former prime minister Yousuf Raza Gilani from disqualification.

Ironically, he said, amendments to both Article 62 that deals with qualification of members of parliament and 63 (disqualification) had been sanctified by the present government when it adopted the 18th Amendment.

Waqar Rana recalled that originally Article 63(1) had only four sub-clauses, from ‘a’ to ‘d’, but more clauses had been added, making the article a longish one -- up to ‘p’. Similarly, more clauses were also added to Article 62 of the Constitution during the Zia period.

“If the government is wary of touching the Zia-era amendments, it could have at least changed Article 63 (1 g) of the Constitution amended through the 18th Amendment and by invoking which the Supreme Court sent the former prime minister home,” he suggested.

Whatever law is introduced, he said, powers of the Supreme Court guaranteed under Article 204 of the Constitution to initiate contempt proceedings against any accused could not be clipped or taken away.

The only thing the proposed contempt law will take care of, he added, was the punishment part in case it was proved that the individual facing contempt charges was guilty of contempt.

Such a law passed by a simple majority would only further burden the superior courts and kick-start a new round of litigation by all and sundry at the cost of poor litigants since such petitions would have to be given primacy over ordinary cases, the advocate feared.

“The sole purpose of bringing the new contempt law is to make the process of appeal in case of any sentence on contempt charge by a bench cumbersome and time-consuming so that the tenure of the present government is completed,” advocate Tariq Mehmood believed.

The new legislation would not help resolve the controversy on contempt issues, he said, adding that it would also mean that the government was accepting the existence of Contempt of Court Ordinance 2003, though Attorney General Irfan Qadir was openly denying its existence.

Referring to a section of proposed contempt law which states that the exercise of power by a holder of public officer for which he enjoys constitutional immunity under Article 248(1) will not render him liable to be proceeded against with contempt, Mr Mehmood said all office holders were generally immune from litigation unless their actions were proved to be taken with mala fide intention.

Advocate Chaudhry Faisal Hussain, however, had a different view. He said the proposed law was badly needed, especially against the backdrop of statement by the chief law officer (attorney general) that the country was without any contempt law.

“Why the attorney general is saying that no contempt law exists despite the fact that the Supreme Court had disqualified the former prime minister for committing its contempt. It is because under Article 89 of the Constitution, permanency cannot be attributed to any ordinance, although Contempt of Court Ordinance 2003 introduced by former president Gen Pervez Musharraf was validated by parliament under Article 270 AA,” he explained.

After the 18th Amendment, no ordinance which has a life of 120 days can be re-promulgated by the president; it has to be placed before parliament to be enacted as an act. Thus the new bill would remove the existing confusion and, therefore, was the best solution to end uncertainty in the country, Advocate Hussain said.

Besides, he said, parliament could not be denuded of legislation, even if it was widely believed to be aimed at settling political scores as long as it was not wholly against the Constitution.