ISLAMABAD: The striking down of the Contempt of Court Act 2012 by the Supreme Court did not come as a surprise to anybody, not even to lawyers committed and loyal to the Pakistan People’s Party (PPP) because they had made it public that the law could not stay on the statute book for being violative of the Constitution.
Barrister Aitzaz Ahsan, Babar Awan, Fakhruddin G Ebrahim and some others quickly dismissed the law, moments after it was publicly unveiled. Even PPP veteran Afzal Sindhu cited this law as the main reason behind his leaving the PPP and joining the Pakistan Tehrik-e-Insaf (PTI).
Except for Federal Law Minister Farooq H Naek and Attorney General Irfan Qadir, there was no taker, not even from amongst the PPP cardholder advocates of the law since it was enacted with the purpose of saving the new Prime Minister Raja Pervaiz Ashraf in the contempt proceedings that he is likely to face.
Several key clauses of the new contempt law were areas of major concern for lawyers as well as the apex court as they impinged hard on the independence of the judiciary and diluted the powers of the chief justice of Pakistan.
The judges, forming part of the five-member bench, headed by Chief Justice Iftikhar Muhammad Chaudhry, kept passing remarks and comments on the controversial clauses, clearly showing that the law was not going to stay.
One of the most controversial clauses of the new law pertained to providing immunity to the prime minister and several public office holders from prosecution on the contempt charge. The exemption was specified in Section 3(i) of the new legislation, which said exercise of powers and performance of functions by a public office holder of his respective office under Article 248(1) of the Constitution for any act done or purported to be done in exercise of those powers and performance of functions shall not amount to commission of contempt of court.
The court order made it clear that 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 of the contempt law, no immunity can be granted to the public office holders in violation of Article 25 of the Constitution.
This immunity was found in violation of Article 204(2), which gives powers to the Supreme Court and high courts to punish ‘any person’ who abused, interfered with or obstructed the process of the court in any way or disobeyed any of its order. Another clause of the new legislation that raised eyebrows during arguments before the bench related to the automatic suspension of the court order on filing of appeal before a larger panel of judges.
Lawyers said the instant suspension of the sentence passed by the court would render the contempt law ineffective, and daredevils would not be encouraged to flout the law more brazenly.
Yet another controversial section pertained to the elimination of the role of the chief justice when he would himself take cognizance of the offence of contempt having been committed by someone. In such a case, the normal functions that the chief justice performs under the law being the head of the apex court were to go to the two next most senior judges.
Not only the chief justice, but any judge or panel of justices that will first take cognizance of contempt offence will not be part of the bench, which will subsequently hold hearings on it. Abolition of the role of the chief justice and judges, taking cognizance of contempt offence, clearly affects the independence of the judiciary. Barring exceptions, the chief justice first takes cognizance of contempt offence. The Sub-section 5 of Section 8 of the act said when in case the first cognizance of the offence of contempt has been taken by the chief justice, his functions shall be performed by a bench of justices composed of the two next most-senior judges available.
If at any stage of the contempt hearing in which the bench, replacing the chief justice, has passed an order, it is of the opinion that, in the interests of justice, the case shall be transferred to another judge or bench, it may pass an order, and the case shall then be heard accordingly.
The Clause 2 of Section 8 said on receipt of the papers relating to contempt from the judge first taking cognizance, the chief justice shall pass to another judge or a bench set up by him of which the judge first taking cognizance is not a member.
The SC order said that the transfer of proceedings is tantamount to curtailing the judicial powers; is not sustainable because instead of the phrase ‘scandalizing the Court’, expression ‘scandalizing a judge in relation to his office’ has been used; runs contrary to recognized principle of punishing any person who is guilty of contempt on the face of the Court where a prompt action to maintain the dignity of the court is called for; 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, sub-Section (3) of Section 8 is violative of the principle of independence of judiciary.
It said that the 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. As such, this provision too is not sustainable.
Updated at: 06 December 2013
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