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ISLAMABAD, Sept 15: The Supreme Court declared on Saturday that any threat to independence of the judiciary would amount to denial of access to justice, a fundamental right under the Constitution, and the courts had to exercise their powers and jurisdiction to secure the rights of citizens against arbitrary violations.

While protecting and enforcing the fundamental rights, the courts might also determine the legality of an executive action, Chief Justice Iftikhar Mohammad Chaudhry said in the134-page detailed verdict explaining why a five-judge bench annulled a hurriedly made Contempt of Court Act (COCA), 2012, on Aug 3. The order included additional notes by Justice Jawwad S.

Khawaja and Justice Khilji Arif Hussain.

All constitutional functionaries were bound to follow orders of the court because under Article 248(1) (immunity) no such exception was available to them, the chief justice said.

The exception envisaged under Section 3 of the act by given immunity to a number of office-holders created unreasonable classification which was prohibited under Article 25 (equality of citizens), besides violating due process of law within the contemplation of Article 4 of the Constitution, he said.

The chief justice said there could not be any other view except that the Constitution favoured enlargement of the jurisdiction of the Supreme Court and conferment of supplemental powers and all the executive and the judicial authorities had been commanded by the Constitution to act in aid of the Supreme Court.

The verdict concluded that the legislature while enacting any law pertaining to the jurisdiction and the powers of the Supreme Court had an obligation to show obedience to the Constitution since the lawgivers, like other functionaries, had taken oath to preserve, protect and defend the Constitution.

The legislature, while legislating or amending the law, was duty bound to strictly follow the Constitution and the chosen representatives of the people had to act according to the will of the people and had to establish an order which enabled the state to exercise its powers for the benefit of citizens, it said. Such constitutional obligation clearly postulated that whatever law should be enacted must have a nexus with the welfare of the citizens and the parliamentarians, being the trustees under the constitution of their will, had to watch their interests.

The judges of the superior courts were obliged under the Constitution to discharge their prime responsibility of keeping the fountain of justice unsullied and pure and to ensure that nobody was allowed to tarnish the image and the majesty of the court, the verdict said.

By creating a group of special people (public office holders) in the COCA, a threat was posed to the independence of judiciary, it said.

The judgment explained that the power to punish for contempt was a special power which authorised a judge to swiftly and promptly punish a person without recourse to a formal and lengthy trial.

The concept of contempt of court to some authorities was meant to uphold the majesty of the law and the dignity of courts and protect their image in the eyes of the public, whereas others had taken the view that it was not merely not to vindicate the dignity of the court or a judge but to prevent undue interference with the administration of justice, it said. Therefore, the contempt law empowered the courts to prevent by summary proceedings any attempt to interfere with the administration of justice.

It said the jurisdiction in this regard was practically arbitrary and unlimited, which was to be exercised always with reference to the interests of the administration of justice and with the greatest reluctance and anxiety on part of judges to see whether there was no other mode which was not open to the objection of arbitrariness and which could be brought to bear upon the subject.

“The contempt jurisdiction is used only from a sense of duty and under the pressure of the public necessity. The object of contempt proceedings is not to afford protection to the judges personally from imputations to which they may be exposed as individuals, but to keep the course of justice free and to ensure that law and order prevail in the courts.”

The verdict said that under the Islamic law a qazi (judge) had the power to punish contemners and the practice of punishing those who refused to carry out orders or scandalised courts or judges found its traces in the ancient times.

The verdict held that the superior courts, while exercising the power of judicial review, were possessed with the jurisdiction to declare a law void to the extent of inconsistency with the fundamental rights, the principle of independence of judiciary or any other provision of the Constitution.

It said the Supreme Court Rules of 1980, having been framed under Article 191, had a constitutional backing.

Therefore, the legislature could not take over the duty and function of the chief justice and other judges to hear cases because in such an eventuality the executive would be issuing orders for constitution of benches of their choice for hearing particular cases, which would be interference in the jurisdiction of the court as well as violation of the principles of independence of judiciary and denial of access to justice, it said.

There was no scope for encroachment upon the powers of judicial review of the superior courts vested in them under the Constitution, it said.

In his note, Justice Khawaja observed that the COCA had created impermissible and unconstitutional exceptions to protect a certain category of persons from contempt charges for violating court orders which they were obliged by the Constitution to obey and enforce.

He said that in 2009 there had been 131 contempt cases filed in court for disobeying the orders of the court but had nothing to do with scandalisation of the court or a judge. In 2010, 129 of the total 130 contempt cases pertained to disobedience and only one alleged scandalisation. Of the 110 contempt cases instituted last year, only one pertained to scandalisation, whereas this year there have been 77 contempt cases of which 20 are by petitioners who have sought contempt proceedings against individuals who allegedly have scandalised a court or judge and only three have been initiated by the court itself.

Justice Khilji said the aim of Article 204 was not to protect the ego of the judges but it protected the right of public generally and especially of the litigants so that the rights given to them by courts could be enforced.