ISLAMABAD: The Contempt of Court Bill 2012, if enacted, would be one of the worst attacks by any government in the country’s 65 years history on the independence of the judiciary and rule of law.
The prime objective of this is to save Prime Minister Raja Pervaiz Ashraf and those who enjoy influence in the government from prosecution for the offence of contempt of court that the former may face or are already facing in the Supreme Court of Pakistan.
If enacted by parliament, this subjectively framed legislation would tear to shreds the concept of rule of law by giving a free hand to the executive whether to implement or ignore any court order, including the already-issued orders in the NRO implementation case.
If adopted, the proposed legislation will be an obvious attempt to interfere with the exercise of judicial powers in pending proceedings. It has been decided in various countries and also by the Supreme Court of Pakistan that once judicial power has been exercised in a case pending before a court, legislative power may not be used to interfere in the exercise of judicial power. Such use of legislative power is referred to as ‘legislative judgement’ and treated as unconstitutional.
The federal cabinet on Wednesday approved the draft of the Contempt of Court Bill 2012, which will exempt the president, prime minister, governors and chief ministers from contempt of court proceedings. One of the provisos “(i) Exercise of powers and performance of functions by a public office holder of his respective office under Clause (1) of Article 248 of the Constitution for any act done or purported to be done in exercise of those powers and performance of those functions-...” of the Bill is a person-specific provision aimed at protecting Prime Minister Raja Pervaiz Ashraf and thus saving him from a Gilani-like fate should the new PM too refuses to write a letter to the Swiss authorities by the deadline of July 12 given by the Supreme Court.
If the above ‘PM Bachao proviso’ does not render chief executive of the country or chief executive of a province ‘immune’ from any criminal liability for disobeying any order or judgment of the Supreme Court or a high court, then what is the object of the entire exercise, experts question.
And if the above proviso does render chief executive of the country immune from any personal liability for disobeying any order or judgement of the Supreme Court or a high court, then, if adopted, the experts argue, it will be unconstitutional and liable to be declared as such on three grounds:
First, it is patently discriminatory and thus unconstitutional under Article 25 of the Constitution in that how can 180 million citizens of the country be expected to obey orders and judgements of superior courts when the country’s chief executive ignores such orders with impunity.
Second, if adopted, it will render chief executive of the country and those of provinces immune from being subjected to Article 5 of the Constitution under which ‘obedience to Constitution and law is the inviolable obligation of every citizen wherever he may be.
And third, the entire Bill and this clause in particular, is an obvious attempt to save the current prime minister from being prosecuted for contempt because he too does not intend to write the required letter to the Swiss authorities.
It is thus that if adopted, it will be an obvious attempt to interfere with the exercise of judicial power in pending proceedings. It has been decided in various countries and also by the Supreme Court of Pakistan that once judicial power is exercised in a case pending before court, legislative power may not be used to interfere in the exercise of judicial power.
Interestingly, this was one of the main grounds on which National Reconciliation Ordinance (NRO) was declared unconstitutional by the Supreme Court.
Provisio (xi) which appears to be specific to rulers’ cronies reads as follows: “A true statements made in good faith respecting the conduct of a judge in a matter not connected with the performance of his judicial functions.”
This proviso too, if adopted, appears to be unconstitutional because it is aimed at allowing any accused to defend his case in contempt proceedings that he is already facing in Supreme Court. In fact, if this statute is adopted, cronies will be immune from any liability for any future poisonous attacks against the judiciary.
It is thus that apart from this too being an attempt to interfere with exercise of judicial power, this proviso will open up the gates for people to start attacking honourable judges of the superior courts through press conferences instead of following the one and only Constitutional procedure as laid down in Article 209 of the Constitution where even ordinary people can file complaints against judges of the Supreme Court and high courts.
As if the above was not sufficient to weaken and undermine the judiciary, under Proviso (vii) of the Bill, 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 shall be immune from contempt of court.
The question is as to how can there be disciplinary proceedings against a judge of a high court or Supreme Court ‘before the Federal Government or provincial government?
The original 1973 Constitution, as proposed and adopted under PPP’s founder Chairman Zulfikar Ali Bhutto, itself provided for only forum (Supreme Judicial Council) and one mechanism for holding judges of superior judiciary accountable, the one that is laid down in Article 209 of the Constitution.
So what exactly could be the object to protect a person from being prosecuted for the offence of contempt of court for ‘initiation of action’ in the ‘course of disciplinary proceedings’ against a judge ‘before the Federal Government’?
It is for a government that does not tire of preaching harmony between constitutional organs and whose representatives use all kinds of expressions and innuendos to leave an impression that it is the judiciary that is confronting the executive, to explain as to exactly why it has decided, with practically no public debate, to rush through this statute just months before general elections and the specific objects that the government seeks to achieve by getting Parliament to adopt it.
Does democracy not mean transparency of objects and intentions, inviting debate and justifying timing of adoption of such an important statute? If the Contempt of Court Bill, as approved by the Cabinet, is approved without any explanation or justification or debate by a rubber-stamp Parliament, and if it then used by the rulers’ cronies to defend their contempt, then in case its vires are challenged in Supreme Court, which, after due process, declares it as unconstitutional, will this government be justified in calling it as another example of institutional clash and judicial overreach? Is this the conduct of the government desperately working for institutional harmony? This is simple and pure politics that the government wants to play at the cost of the judiciary which must never be allowed.