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Analysis: Culling the contempt law

Published Aug 04, 2012 07:46am


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A security official watches over the Parliament House in Islamabad. – File photo by ONLINE
A security official watches over the Parliament House in Islamabad. – File photo by ONLINE

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.


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Comments (42) Closed

shan Aug 04, 2012 02:35pm
Where did you learn that Parliament is supreme? You really lack knowledge about law and democracy. People like you have got this Pakistan in the gutter.
One Pakistani Aug 04, 2012 02:13pm
This parliament has never condemned the rise of corruption in the Zardai-led Era. Now they enacted a lwa to protect their wrong doings. In spite of any reservations, SC's decision must be respected.
Chaudhry Boota Aug 05, 2012 09:11am
All I want is that people i voted shall be the final authority in Pakistan, not government servants
@SecularPakista1 Aug 05, 2012 12:36pm
The Parilment does not have the right to exempt itself from laws that it reats and the Constitution it wrote in the past. You cannot vote yourself into a license to do whatever a legislator wants and hide behind this law. This whole thing is being done to protect Zardari. The President has immunity form policy decisions. There is no immunity for committing a crime that will send any ordinary citizen to jail. Simmply put, Zardari cannot commit murder and expect to invoke immunity. Can he????
Ashraf Aug 04, 2012 12:55pm
I appreciate Mr. Chief Justice for his patience and swiftness in correcting the wrongdoing of the zardari govt. Pakistan is a country of 20 karor Pakistanis who are all happy across the country not a state of zardari like maharaj of Kashmir.
Ixion Aug 04, 2012 12:30pm
Whatever! I am voting for Imran Khan. God bless Pakistan.
A.Vetta Aug 04, 2012 12:28pm
While I do not wish to comment on the charged reaction of some people to the Pak SC’s decision, I feel the concept of the supremacy of a Parliament is being the British parliament cannot pass a law to grant independence to Scotland. It can, however, ask the people in a referendum. Similarly, Pak Parliament cannot pass a law to create an autonomous province within Sindh. The Pak Parliament went too far in granting immunity to the Pak PM and many others. This type of law will not pass in any democracy and if it did, it will be struck down by a Court.
owais Aug 04, 2012 11:45am
When any law hurts a party that law is not acceptable to that party. When a law benefits a party not only the law but the whole judicial system would be there hero. The above anti SC comments are typical example of it. These party bloggers won't dare write a single word about the corrupt politicians who made this law with malafide intentions to protect their second PM. We people know how corrupt these politicians are this struck legislation was a typical example of it but these corrupt party bloggers would like to make them the SACRED COW but wouldn't ever accept the SC superiority in striking any anti-constitution legislation. If 99% of the legislation was anti-constitution and the other 1% was of no real benefit then anyone with sound reasoning will strike the whole thing especially if the defendent accept their malafide intention that it was made to protect certain individual (to be above any law) in front of the whole court. Unfortunately, for party bloggers no reasoning is a sound reasoning.
pakistanhorizon Aug 04, 2012 11:15am
Great post. But what does the author think: should there be an international court in South Asia such as Strasbourg for COE countries or a CJEU for the EU countries to correct the Pakistani Supreme Court?
@SecularPakista1 Aug 05, 2012 12:41pm
Parliamnet is one of the three top bracnhes of the government. It should pass laws for the good of the people, NOt be a self serving entity that it is currently now. Zardari and his gang were elected to serve the people. They spend most of their waking hours trying to figure out how to serve themselves.
anonymous Aug 04, 2012 11:02am
If Zardari and judges are the chips of same block then no reason stand to respect both.
Dr V. C. Bhutani Aug 05, 2012 01:11pm
II The gentlemen who assembled in the Pakistan presidency last Friday to consider the situation arising out of the recent decision of the Pakistan supreme court seem to have taken shelter behind the theoretical right of the Pakistan parliament to legislate without any limitation on the power of parliament. In the case of written constitutions, like those of Pakistan and India, parliament or the executive or even the judiciary cannot act against the basic features of the constitution. If any such law were passed, the power to pronounce on the constitutionality or otherwise of such a law would rest with the respective supreme court. Now, if parliament passed a law to protect wrong-doing by high functionaries of the State, would such a law pass muster at the hands of the supreme court? In my view, it would not. To be concluded.
anonymous Aug 04, 2012 10:38am
Whole of court proceeding showed judges were determined to go beyond constitutional limits. They were acting as opposition leaders not as judges. Ethically they were not eligible to hear the case due to mistrust shown upon them by attorney general at either stage. Are they sacred cows that no one would raise a finger upon their decisions.
BB Nazeer Aug 04, 2012 10:33am
Parliament is supreme if it is not installed by a foreign power as in the case o Pakistan. The parliament must translate the national aspirations of it's people. Parliament needs 2/3 majority to change the constitution which is what was attempted by enttty run by the president
Hakeem Aug 04, 2012 10:33am
As long as zardari govt can be held in check, any legal argumentation would suffice. PPP has destroyed Pakistan fair and square
Dr V. C. Bhutani Aug 05, 2012 01:11pm
I It is amazing that in spite of a whole galaxy of legal luminaries in Pakistan no one has advised government or the president that parliament can legislate only within the basic features of the constitution. The parliament’s power of legislation is not absolute or unlimited. When we were in college in the late 1950s we were taught about the British constitution (an unwritten one) under which, theoretically, the British parliament had the power to even legislate that all new-born blue-eyed babies shall be put to the sword. Then, in a tongue-in-cheek manner the teacher explained that in Britain almost all newborn babies would be blue-eyed and the right of parliament just mentioned might be for the record but if a government actually proceeded to pass such a law, it was difficult to foresee what consequences might flow from such a law, including ouster of the government that passed such a law. To be continued.
wali Aug 05, 2012 10:53am
Supreme court seems to be the only Institution of Pakistan which is non-controversal. for God sake leave it as such, if Supreme court is scandlalized what else remains in Pakistan
Atis Aug 04, 2012 08:14am
The SC has crossed the fine line of demarcation of power and authority it has with leglature.In a democracy the parliament is supreme.SC can only call the records to check if the passing of the law has been as per constitution or not. Otherwise parliament is supreme in making a law.
shan Aug 04, 2012 02:37pm
Three cheers for the Supreme court...... They are the last hope for Pakistan
Malcolm Michael Aug 04, 2012 02:57pm
Yes Parliament is supreme but it should be with educated classes who knows the interpretation of the Constitution and not those members who will only put their rubber stamp on the instructions on leader who also needs to be educated Therefore, challenging SC itself it unconstitutional in literal sense Then why are they called Supreme Court judges
Yousuf Nasim Aug 04, 2012 03:19pm
Thanks for your comment. I think the constitutional sea change which that would require (and by extension the mass public support it would need) is such as to render the prospect unforeseeable. Transnational cooperation on that level is based on deep, strategically based diplomatic relations. Pakistan is not ready for it.
Razi Aug 04, 2012 05:06pm
Long live our Judiciary. Aspiration of the People of Pakistan has been reinstated. Crooks have been cornered by CJ and his team. I wish we had a similar Judiciary in 1956. Thanks my lord CJ.
Buta Aug 04, 2012 05:17pm
I am nether a lawyer nor a politician,just a Pakistani national who love his country.It is difficult to understand why our constitution and laws and ordinances are drafted to facilitate corrupt people,rather than to bring them to book.I ask our honourable members of parliment,that they are due to face the people like me in the next election and for sure theses unresponsible people will not get votes of people like me and many others.
shankar Aug 05, 2012 01:14pm
It is more like culling PPP, the dignity of the office of the president and PM and eventually culling democracy!
Dr V. C. Bhutani Aug 05, 2012 01:11pm
III I remain convinced that parliament does not have the power to pass laws like that. We are fated to see a showdown between the Pakistan parliament and the Pakistan supreme court in the days to come. V. C. Bhutani, Delhi, India, 5 Aug 2012, 1840 IST
AsimCO Aug 04, 2012 06:12pm
If the tyrannical majority (the Parliament) votes against the fundamental moral base that threatens the future of a single honest human being, let alone the upkeep of an entire nation, then every step to undo this injustice is permissible. Thank God that we have miraculously found at least one institution of the country that is willing to stand up and create checks and balances. Lets stop mocking the judiciary as there is no one else in position of power that cares for Pakistan and its people. We have all witnessed this time and time again. PLEASE, get out and vote this year. That's the only thing you can do to save every one from another 5 years of hell. There will be nothing left of your nation if the status quo is permitted by this election.
AsimCO Aug 04, 2012 06:16pm
Please.. its time to stop blaming others and take some ownership of our actions. Did you vote in the last elections? If not then you are responsible for the current problems. No outsider can impact a household unless the insider is dishonest. We brought this unto ourselves and we are the only ones who can change it.
AsimCO Aug 04, 2012 06:26pm
Every proud nation has an accountability system for the highest power. So how would you propose that a check and balance be placed that makes the leadership accountable.. that makes the wrong of the parliament against you and your nation be questioned? If the parliament passes a law against religion, rights of a monitory, unjust taxes - would that be acceptable to you? Should their personal motives that harm the nation not be reviewed or should we accept them because they are supreme? Wake up and defend your country and its future - the rights of your children.
Malik Aug 04, 2012 06:49pm
Lets be honest, as great Imran Khan stated, this was an attempt at a 2nd NRO with just a change of name to protect the corrupt. .
Buta Aug 04, 2012 07:26pm
If late Alam Iqbal was still alive,what would he write about our mindless politicians who protect each other by providing legal protection to corrupt leaders and themselves.JAg Pirae Pakistan the time has come to stop all this nonsense.I fear if we do not act we will be like Somali.
Lodhi Aug 04, 2012 07:33pm
Parliament is supreme. Parliamentarians have a right to plunder the wealth of nation.late justice Munir was great as he justified martial law with law of necessity.
Lodhi Aug 04, 2012 07:51pm
Strange line of argument?
Faizaan Aug 04, 2012 09:08pm
Aren't you, then, taking away the right of millions of uneducated people across Pakistan from representing themselves and their people at an appropriate forum?
Malik Aug 04, 2012 09:53pm
Imran khan made a valid point. This new contempt law by the so called parliament was another NRO in disguise to protect the corrupt.
M Khan Aug 04, 2012 09:55pm
I was wondering why same Judge (I am talking about Chief Justice) did not declare illegal when General Musharaf took over the power form civilian government! Not only he did not declared illegal he also served the government. Shame on you Mr. Cheif Justice. Parliament has the right to amend constitution and that is why American constitution has several amendments
emi Aug 05, 2012 02:11am
This is coming from a Supreme Court whose Cheif Justice is embroiled in a corruption case.....why doesnt anybody have the gutts to ask the cheif justice to step down until the case is taken care of???......the supreme courts are just another opposition party.
S.A.K.Rahmani Aug 05, 2012 02:16am
Supreme Court means the Full Supreme Court,all 17 Judges included.The practice & procedure as given in Supreme Court Rules,1980 is a relic of the Dictator Zia-ul Haq.Many of its provisions are against the Constitution.The Rules need to be scrapped.One or two Judges of the Supreme Couert cannot mean the Supreme Court.The Supreme Court has been given the duty to do complete justice in every case that comes to it in Article 187 of the Constitution.Our Supreme Court has completely forgotten its Constitutional duty and ihas been acting as one of the tree pillars of the state,which it is not.The Constitution nowhere talks about Pillars of State.Neither is any tricotomy of Powers described in the Constitution.How a Supreme Court works is very clearly shown by the U.S.Supreme Court.All nine Judges sit as A court on every case that comes to it;every single Judge applieas his or her mind;and then Judgment is what the majority view is.
Syed Aug 05, 2012 06:26am
CJ in real sense acts as opposition leader. It is undenying fact, CJ has politicize the judiary. Shame! Shame!!
Kamaljit Singh Aug 05, 2012 06:47am
Simply bring the unearned money home.That is it ...........isn't it ?
Red Aug 05, 2012 04:47pm
It would be nice if Justice iftikhar ch. wud've taken suo moto notice over his own sons action. It is very easy to call other people corrupt. Real justice starts from your own home.
Ijaz Mir Aug 05, 2012 05:24pm
Why the parliament make the law to protect the corrupt politician.? This ruling party is pathetic. With the help of USA we got rid of a military dictator and in bargain we got a ruling party which is worse than any dictator.By twist of master stroke . We got crooks of the high order. God bless this country.
Abdul Moin Ravasia Aug 06, 2012 10:12am
wait for forth coming election and if we have any sense of analtical research of past elections results and how our elected govts have ruined the economy, plse vote for Imran Khan