ISLAMABAD: It took just two hours on Monday night for the government to get the Contempt of Court bill 2012 passed by the National Assembly amid strong protest by the opposition. However, the government suspended all relevant rules to get the nod in this regard from the lower house of parliament.
It is expected that the bill, dubbed by the opposition as ‘aggression against the judiciary’, would be moved in the Senate today (Tuesday) so that it could become an Act of the Parliament before July 12, when the government has to submit its reply to the Supreme Court on writing the letter to Swiss authorities.
The government took refuge behind the rules of conduct of business in the National Assembly to get the bill passed in haste and as a result, the opposition did not get time to propose any amendment. The government suspended all the rules to get the bill passed as its draft was not sent to the House standing committee concerned.
Law Minister Farooq H Naek also introduced the 21st Amendment Bill‚ 2012 which provides for increasing the family pension from 50 per cent to 75 per cent for the widows of the judges of the Supreme Court and the high courts.
Law Minister Farooq H Naek moved ‘the Contempt of Court Bill, 2012’ in the National Assembly as PML-N parliamentarians observed that the bill was aimed at tying the hands of the superior judiciary, saving the skin of the incumbent prime minister and creating a confrontation between parliament and the judiciary. “It is a black day in the history of parliament as the bill is a direct aggression against the superior judiciary,” PML-N members Khawaja Saad Rafique and Khurram Dastgir said.
Saad Rafique said that Deputy Speaker Faisal Karim Kundi, who was chairing the proceedings, had become a party with the government to facilitate the immediate passage of the bill.Replying to the opposition’s protest, Minister for Religious Affairs Syed Khursheed Shah said it was not for the first time that rules were being suspended; he said in the past 14 constitutional amendments were passed in 10 minutes.
The statement of objects and reasons says that the contempt law is a blend of the power of the court to punish for its contempt and the rights of the citizens in a democracy for fair comments and criticism. Therefore‚ it is necessary where the law may provide for punishment for contempt‚ the full opportunity should also be provided to the accused to have a fair trial including transparent procedure for the right to appeal is being streamlined and other necessary provisions relevant to contempt proceedings are being incorporated in the bill.
Defending the bill, Law Minister Farooq H Naek said that the bill had been drafted while keeping in view respect for the judiciary. “It contains nothing which is against the judiciary,” he said. He said that a similar bill was passed by the PML-N government in 1997.
Kashmala Tariq of the PML Like-Minded group alleged that by increasing the family pension of judges of the high court and Supreme Court, the government was trying to offer bribes to judges. Captain (retd) Safdar of the PML-N also said the government was going to launch a suicide attack on the judiciary.
The bill says fair comments about the general working of courts made in good faith in the public interest and in temperate language shall not come under contempt of court. It further says that a true averment made in good faith and in temperate language for initiation of actions or in the course of disciplinary proceedings against a judge before the chief justice of a high court‚ the Chief Justice of Pakistan‚ the Supreme Judicial Council‚ the federal government or a provincial government cannot amount to commission of contempt of court.
However, Khurram Dastgir of PML-N asked who would define ‘fair comment’ and ‘good faith,’ calling the bill mollified and with bad intentions. “It is a bad law at a bad time,” he said.
According to the bill, in a case regarding the first cognisance of the offence has been taken by the chief justice‚ the functions of the chief justice shall be performed by a bench of judges composed of two next most senior judges available.
According to the bill, an appeal under sub-section (1) or sub-section
(2) shall be filed - (a) in case of an appeal to a bench of the high court, within 30 days and
(b) in case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against.
An intra-court appeal shall lie against the issuance of a show-cause notice or an original order including an interim order passed by a bench of the Supreme Court in any case, including a pending case, to a larger bench consisting of remaining available judges of the court within the country provided that in the event the impugned show-cause or order has been passed by half or more of the judges of the court, the matter shall, on the application of an aggrieved person, be put up for re-appraisal before the full court: provided further that the operation of the impugned show-cause notice or order shall remain suspended until the final disposal of the matter in the manner herein before provided.
The section 4 of the bill relates to punishment on the contempt of court and it states that, “1) Subject to sub-section (2) any person who commits contempt of court shall be punished with imprisonment which may extend to six months simple imprisonment or with fine may extended to one hundred thousand rupees or with both.
A person accused of having committed contempt of court may, at any stage submit an apology and the court, if satisfied that is bona-fide, may discharge him or remit his sentence.
Following is text of the bill:
Whosever disobeys or disregards any order, direction or process of the court, which he is legally bound to obey or commits a willful breach of valid undertaking given to the court or does anything which is intended to bring the authority of a court or the administration of law into disrespect or disrepute or, to a interfere with or obstruct or interrupt the process of law due to course of any judicial proceedings or to lower the authority of a court or scandalise a judge in relation to his office or to disturb the order or decorum of a court, is said to commit “contempt of court.
The clause 4 of the draft bill relates to those things that shall not amount to commission of contempt of the court.
i). Fair comments about the general working of courts made after the pendency of the proceedings in a case, in good faith and in temperate language.
ii). Fair comments on the merits of a decision of a court made after the pendency of the proceedings in a case, in good faith and in temperate language.
iii). Subject to a prohibition of publication under section 9 or under any other law for the time being in force, the publication of a fair and substantially accurate report of any judicial proceedings.
iv). The publication of any matter, amounting to a contempt of court by reason of it being published during the pendency of some judicial proceedings by a person who had no reasonable ground for believing that such judicial proceedings were pending at the time of the publication of the matter.
v). The distribution of publication, containing matter amounting to contempt of court, by a person who had no reasonable ground for believing that the contained, or was likely to contain, any such matter.
vi). A true averment made in good faith and in temperate language for initiation of action or in the course of disciplinary proceedings against a judge, before the chief justice of a high court, the Chief Justice of Pakistan, the Supreme Judicial Council, the federal government or a provincial government.
vii). A plea of truth taken up in defence in terms of clause(vi) in proceedings for a contempt of court arising out of an earlier averment unless it is false
viii). Relevant observations made in judicial capacity, such as those by a high court in judicial proceedings against a judge.
ix). Remarks made in an administrative capacity by an authority in the course of official business, including those in connection with a disciplinary inquiry or in an inspection note or a character roll or confidential report and
x). A true statement made in good faith respecting the conduct of judge in a matter not connected with performance of his judicial function.
The section 4 of the bill relates to punishment on the contempt of court and it states, “1) Subject to sub-section (2) any person who commits contempt of court shall be punished with imprisonment which may extend to six months simple imprisonment or with fine may extended to one hundred thousand rupees or with both.
2) A person accused of having committed contempt of court may, at any stage, submit an apology and the court, if satisfied that is bona-fide, may discharge him or remit his sentence.
Explanation:- The fact that an accused person genuinely believes that he has not committed contempt and enters a defence shall not detract from the bona fide of an apology.
3) In the case of the contempt having been committed, or alleged to have been committed, by a company, the responsibility shall extend to a person in the company, directly or indirectly, responsible to the same, who shall also be liable to be punished accordingly.
4) Notwithstanding anything contained in any judgment, no court shall have the power to pass any order of punishment or in relation to any act of contempt, save and except in accordance with subsection (1).
In the section 5 of the draft bill it is stated, “1) A high court or the Supreme Court, on its own information or on information laid before it by a person, may take cognizance of an alleged commission of contempt of the court.
2) The Supreme Court shall have the power to take cognizance of any contempt of itself or of any judge of the Supreme Court alleged to have been committed anywhere and a high court shall have the power to take cognizance of any contempt by itself or of a judge thereof or of other high court or of any judge thereof alleged to have been committed within the territorial limits of the jurisdiction.
3) A high court shall exercise the same jurisdiction in respect of contempt of courts subordinate to it or to any other high court as it exercised in respect of contempt by itself.
4) Nothing contained herein shall affect the power of any court to punish any offense of contempt under the Pakistan Panel Code (PPC).
Under the section 6 of the draft law, 1) No High court shall take cognisance under this Act of contempt alleged to have been committed in respect of a court subordinate to it where the said contempt is an offense punishable under the Pakistan Panel Code (PPC).
2) No court shall take cognisance, as of a contempt of court, of any averment made before the Supreme Judicial Council in respect to which the Supreme Judicial Councils has given a finding that the averment fulfilled the requirements of clause (vi) of the proviso of section 3.
3) No court shall take cognisance of a contempt of court arising from an averment made in due course in appellate, the review proceedings, till such proceedings have been finalised and no further appeal, revision or review lies.
4) No court shall take cognisance of a contempt of court arising from an averment made before the chief justice of a high Court, the Chief
Justice of Pakistan, the Supreme Judicial Council, the federal government or a provincial government -a) until the petition to which the averment relates has been finally disposed of or (b) otherwise than under the orders of the chief justice of high court, the Chief
Justice of Pakistan, the supreme Judicial Council, the federal government or the provincial government, as the case may be.
Section 7 of the draft law relates to procedure for Supreme Court and high court and it states,-(1) when it appears to the Supreme Court or a high court that there is sufficient ground for believing that a person has committed contempt of court and that this is necessary in the interest of effective administration of justice to proceed against him, it shall make an order in writing to that effect setting forth the substance of the charge against the accused and unless he is present in the court, shall requires by means of an appropriate process that he appears or be brought before it to answer the charge.
2) The court shall inform the accused of the ground on which he is charged with contempt of court and why he should not be punished.
3) The court after holding such an inquiry and taking such evidence as it deems necessary or is produced by the accused in his own defense and after hearing the accused and such other person as it seems fit, shall give a decision in the case: Provided that in any such proceedings, before the Supreme Court or a high court, any finding given in its own proceedings, by the Supreme Judicial Council about the nature of an averment made before it, that is relevant to the requirements of clause (vi) the proviso to section 3, shall be conclusive evidence of the nature of such averment.
4) If contempt of court is committed in the view or presence of the court, the court, may cause the offender to be detained in custody and, at any time before the rising of the court on the same day, may proceed against him in the manner provided for in the preceding sub-sections.
5) If any case referred to in sub-section (4) cannot be finally disposed of on the same day, the court shall order the release of the offender from custody either on bail or on his own bond.
The section 8 of the draft bill relates to transfer of proceedings for the reasons personal to judge and it states, (1) Where, in a case in which a judge has made an order under sub-section (1) of section 7, not being a case referred to in sub-section (4) of that section, the alleged contempt of court involves personal scandalisation of such judge and is not scandalisation of the court as a whole or of all the judges of the court, judge shall forward the record of the case and such comments, if any, as he deems fit to the chief justice of the court.
6) On receipt of the papers, mentioned in the sub-section (1), the chief justice, after inviting, if he deems fit, further comments, if any, from the judge first taking cognisance of the offense and making such inquiry in such a manner as deems fit, shall pass (a) another judge, which if the chief justice, so orders, may be the chief justice (b) a bench of judges set up by the chief justice, of which the judge first taking cognisance of the offense is not a member; and the case shall then heard accordingly.
3) If at any stage of a case in which the chief justice has passed an order under clause (a) of sub-section (2), the chief justice has the opinion that, in the interest of justice, the case shall be transferred to another judge, he may pass an order accordingly; and the case shall than be heard accordingly.
4) When in pursuance of an order under sub-section (2), the judge taking cognisance of the case is not hearing the case:- (a) The other judge or as the case may be, the bench of judges hearing the case may invite or receive any further comments from the judge first taking cognisance of the offense and shall call and hear any witnesses whom such judge desires to be examined and (b) all comments furnished by the judge first taking cognisance of the offence shall be treated as evidence in the case and such judge shall not be required to appear to give evidence.
5) When in case the first cognisance of the offence has been taken by the chief justice, the functions of the chief justice, under sub-section (1), (2) and (3) shall be performed by a bench of judges composed of the two next most senior judges available.
The section 9 of the draft law suggested that in case of proceedings for transfer of a hearing under section 8 of any proceedings in which truth is pleaded as a defence in terms of clause (vi) of the proviso to section 3, the court, if it deems it fit in the public interest, may hear the case or any part thereof.
The section 10 of the law stated that no material which has been expunged from the record under the order of (i) a court of contempt jurisdiction or (ii) the presiding officer of the Senate, the National Assembly or a provincial Assembly, shall be admissible in evidence.
The section 11 of the draft law that relates to appeal and limitation for appeal states -(1) from an original order passed by high court under this Act an appeal shall lie, if the order is passed by a single judge, to a division bench, and if it is passed by a bench of two or more judges, to the Supreme Court.
2) An appeal shall lie to the Supreme Court from an order passed by a division bench of high court in appeal against an order passed by a single judge.
3) An intra-court appeal shall lie against the issuance of a showcause notice or an original order including an interim order passed by a bench of Supreme Court in any case, including a pending case, to a larger bench consisting of remaining available judges of the court within the country - Provided that in the event the impugned showcause or order has been passed by half or more of the judges of court, the matter shall, on the application of an aggrieved person, be put up for re-appraisal before the full court: provided further that the operation of the impugned show-cause notice or order shall remain suspended until the final disposal of the matter in the manner herein before provided.
4) An appeal under sub-section (1) or sub-section (2) shall be filed - (a) in the case of an appeal to a bench of the high court, within 30 days and (b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against.
5) An intra-court appeal or application for re-appraisal shall be filed within thirty days from the date of show-cause notice or the orders, as the case may be.
Under section 12 of the draft law, the government may make rules, not inconsistence with the provisions of this Act, providing for any matter relating to its procedure.
Under the section 13 of the draft law, the contempt of court ordinance, 2003 (V of 2003) is hereby repealed.
For removal of doubt it is hereby declared that the Contempt of Court
Act, 1976 (LXIV of 1976), Contempt of Court Ordinance, 2003 (IV of
2003) and Contempt of Court ordinance, 2004 (I of 2004) stand repealed.
PPP (Sherpao) Chief Aftab Ahmed Khan Sherpao questioned when the bill was on agenda, what the need was to suspend the rules.