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Says fundamental right of access to justice to be
 
 
Sohail Khan
Sunday, September 16, 2012
From Print Edition
 
 

 

ISLAMABAD: The Supreme Court on Saturday ruled that the contempt of court law was not aimed at punishing a person by a court under Article 204 for contempt of court nor was it for the personal ego of the judges of the superior courts.

 

Its purpose is to ensure the independence of the judiciary in terms of Article 194 read with the preamble and Article 2A. The Supreme Court termed the Contempt of Court Act 2012 colourable legislation as it was beyond the legislative competence of parliament and accordingly unconstitutional and void.

 

In its detailed judgment announced here in the Contempt of Court Act 2012 case, the court held that there was no necessity for repealing Ordinance V of 2003.

 

The 148-page judgment, authored by Chief Justice Iftikhar Muhammad Chaudhry, ruled that in the light of Khalid Masood’s case, a law can only be promulgated under Article 204(3) of the Constitution to regulate the exercise of power to punish for contempt.

 

The court held when a law, namely, Ordinance V of 2003 was already holding the field and whose constitutionality had not been questioned, and the cases including the case of Yusuf Raza Gilani, no other conclusion could be drawn that the COCA 2012 was promulgated against the statement of objects and purposes included in the bill, as also the preamble of COCA 2012 itself.

 

“It was also violative of the mandate of Article 204(3),” says the detailed judgment. Earlier on August 3 a five-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry, and comprising Justice Mian Shakirullah Jan, Justice Tassaduq Hussain Jillani, Justice Jawwad S Khawaja and Justice Khilji Arif Hussain had announced a short order, declaring the Contempt of Court Act 2012 ultra-vires of the Constitution.

 

The court ruled that in the instant case, the provisions of sections 2(a), 3, 4(4), 6(2) & (3), 8(1), (3) & (5), 10(b), 11(3) [first and second provisos], (4) & (5), 12 and 13 of COCA 2012 have been found unconstitutional and void on the touchstone of different provisions of the Constitution, particularly Articles 2A, 4, 8, 9, 10A, 25, 175, 204, etc.

 

Besides, the impugned act has been held to be a colourable legislation, which was promulgated without legislative competence. Therefore applying the doctrine of severability in view of the law laid down in Muhammad Mubeenus Salam (supra) and Zaman Cement Co (Pvt) Ltd vs Central Board of Revenue (2002 SCMR 312), it is not possible to keep intact the impugned enactment and is to be struck down as a whole, the judgment ruled.

 

The detailed judgment recalled that it had time and again held that the Contempt of Court Ordinance V of 2003 is holding the field and held that in such a situation the argument raised by Shahid Orakzai, one of the petitioners, seems to be valid that after the 18th Amendment, the parliament is not empowered to promulgate any such law, as all criminal laws are to be promulgated by provincial legislatures.

 

The Contempt of Court Ordinance V of 2003 has been given permanence by the 17th and 18th amendments, which aspect has not been touched upon under the 19th and 20th amendments. Therefore, its repeal is a nullity in the eyes of law. In this view of the matter, Section 13 of the act, being contrary to Article 204(3) of the constitution is void ab initio.

 

The detailed judgment ruled that the language employed in proviso (i) will provide blanket immunity to all public office holders under this provision. In other words, by making reference to Article 248(1) in the ordinary legislation, an amendment has been introduced in Article 204 of the constitution without adhering to the provisions of Article 238 and 239 of the constitution, which provide procedure for the amendment of the constitution, i.e. by majority of 2/3rd votes of the total number of seats of the house.

 

“It also appears that by creating a group of special people (public office holders) a serious threat has been posed to the independence of judiciary, which is required to be fully secured under Article 2A,” says the detailed judgment.

 

The court held in view of the language employed in Para (i) to proviso to section 3, the trust of the citizens has been betrayed, inasmuch as in future the words ‘any person’ used in Article 204(2) would not include the persons referred to in Para (i) to proviso to section 3 and not liable to be punished for the contempt of court.

 

The court ruled that all constitutional functionaries are bound to follow the orders of the court because under Article 248(1) no such exception is available to them. Thus, the defence/exception envisaged by proviso (i) to Section 3 has created unreasonable classification, which is prohibited under Article 25, besides being violative of the due process of law within the contemplation of Article 4 of the constitution.

 

The court held that it is established that on the one hand, by limiting the power to punish for the offence of contempt of court in terms of Section 4, the powers of judicial review of the superior courts as provided in Articles 184(3) and 199 of the constitution have been made ineffective, and on the other hand, the fundamental right of access to justice of the citizens would be frustrated if the judgment passed by a court of competent jurisdiction cannot be implemented.

 

The detailed judgment further held that Article 63 lays down disqualifications for membership of Majlis-e-Shoora (parliament). Clause (1)(g) of the article provides that a person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (parliament), if he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to, inter alia, the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary, unless a period of five years has elapsed since his release. However, Section 3 in defining contempt of court, inter alia, as doing anything to scandalise a judge in relation to his office uses the word ‘judge’ instead of court (institution of judiciary). The use of the words ‘judge in relation to his office’ instead of ‘court’ is clearly against the scheme of Article 63(1)(g), which talks of judiciary, and not of any ‘judge’. Therefore, the provisions of Section 3 are also violative of the said article.