The Supreme Court inflicted yet another blow on the government on Friday when it threw out the hurriedly prepared and enacted Contempt of Court Act (COCA) 2012 designed to save the new prime minister from the ire of the judiciary.
With the new law having been struck down, the nation is now waiting with bated breath to know what will become of Prime Minister Raja Pervez Ashraf when the NRO implementation case is to be listed on August 8 before a five-judge bench of the Supreme Court headed by Justice Asif Saeed Khosa.
At the last hearing on July 25, the special bench had suggested to the government to find a way out of the impasse between the executive and the judiciary.
“The petitions (against the law) are maintainable under Article 184(3) of the Constitution as questions of public importance with reference to enforcement of fundamental rights are involved therein,” observed Chief Justice Iftikhar Mohammad Chaudhry while announcing a short order which disposed of 27 challenges to the new law.
Legal observers are of the opinion that since the issue of contempt law has now been taken care of, especially after the resurrection of the old Contempt of Court Ordinance 2003 under which Yousuf Raza Gilani was convicted and later disqualified, the new prime minister may meet the same fate.
“Thus, having been left with no constitutional option, COCA 2012 is declared unconstitutional, void and non est, as a consequence whereof, following the dictum laid down in Attorney General for Alberta v. Attorney General for Canada, it is declared that the Contempt of Court Ordinance, 2003 shall be deemed to have revived with effect from July 12 the day when COCA 2012 was enforced, with all consequences,” the verdict said.
The chief justice dealt separately with each sections of the law and observed that an attempt had been made to reduce the powers of the court.
Ironically, Attorney General Irfan Qadir, who was the last to conclude his argument before the court rose to deliberate and deliver the short order, did not turn up when the verdict was announced.
“This law was destined to be declared void the moment it was assented to by the president,” commented Advocate Rana Waqar who authored one of the petitions challenging the law.
The court patiently heard the ‘untenable arguments’ of the federation, he said, adding that the government was well aware that the law would be declared void and because of this it had not engaged a constitutional lawyer to defend it. But regrettably two weeks of precious public time and money had been wasted in this exercise, the counsel said.
Barrister Zafarullah Khan, also a petitioner, defended the court’s jurisdiction to strike down the law and said even the Federal Shariat Court and different high courts had been declaring illegal several such laws in the past because there was a difference between a constitutional amendment and a simple enactment of law.
The amendment made to the contempt law by Nawaz Sharif had also been declared illegal, he recalled, adding that these were routine matters.
The verdict took up each section of the new law one by one and then gave justification why it had been held void or illegal. “On section 2(a) of COCA, which defines the word ‘judge’ as including all officers acting in judicial capacity in administration of justice, is contrary to Article 204(1) of the Constitution,” the verdict said.
Likewise section 3 which provides immunity to holders of public office as a whole is void and contrary to the Constitution for the reasons that: “The acts of contempt liable to be punished under Article 204 have been omitted from the definition of contempt of court given in section 3 of COCA.”
The verdict said that powers of the courts had been reduced by incorporating expression “by scandalising a judge in relation to his office” whereas in Article 204(2) the word ‘court’ had been used. Similarly, it said, the definition provided by section 3 ran contrary to the provisions of Article 63(1g) of the Constitution according to which if a person had been convicted/sentenced for ridiculing the judiciary, he would be disqualified from holing a pubic office. But in section 3 this expression has been omitted and, instead of institution of judiciary, scandalisation of a judge has been confined in relation to his office.
The judgment said: “By enacting provisos (i) to (xi) to section 3, immunities/defences have been provided, whereas no such provision exists in the Constitution. The proviso (i) to section 3, which grants exemption to the public office holders mentioned in Article 248(1) from
contempt of court is violative of Article 25 as under Article 204(2), the court is empowered to punish ‘any person’ for its contempt without any exception.
“The incorporation of Article 248(1) in proviso (i) to section 3 is tantamount to amending the Constitution, which cannot be done without following the procedure laid down in Articles 238 and 239 of the Constitution.
“Article 248(1) has not granted immunity to any of the public office holders mentioned therein from any criminal proceedings, therefore, by means of proviso (i) to section 3, no immunity can be granted to the public office holders in violation of Article 25 of the Constitution.
“The terms and phrases used in provisos (i) to (xi) to section 3 are ambiguous and absurd and are meant to give benefit to contemners who have no respect for the judgments of the courts. Therefore, the said provisos being contrary to the principle of equality before law are void.
Section 8 relating to transfer of proceedings is tantamount to curtailing the judicial powers.
“Transfer of proceedings form one judge/bench to another judge/bench is the prerogative of the chief justice being administrative head of his court, which cannot be controlled by the legislature, therefore section 8(3) is also violative of the principle of independence of judiciary.
“Under subsection (5) of section 8, legislature cannot exercise power of transferring a case from the file of chief justice to next senior judge as it would be against the independent functioning of the court and legislative interference in this behalf is tantamount to undermining the authority of the chief justice and other judges as well.
“Section 11(3) relating to filing of intra-court appeal against issuance of show-case notice is violative of the principle of expeditious disposal of the cases enshrined in Article 37(d) of the Constitution and the possibility of hearing of appeals by a larger bench consisting of remaining judges of the court within the country may render the proceedings ineffective as against each interlocutory order, appeals will be filed and there would be no end to the proceedings and in such a manner the dignity and independence of the courts would be compromised.”