The Contempt of Court Act 2012 signed into law by President Asif Ali Zardari a day before the Prime Minister was scheduled to give his position on writing a letter to Swiss authorities on the reopening of money laundering cases to the Supreme Court has become controversial with battle lines once again clearly drawn between the PPP-led coalition and the judiciary.
Was the intent of the government and by definition of its coalition partners including PML (Q), ANP and MQM, mala fide? Or is the judiciary unfairly targeting one man alone, as claimed by the PPP? Any answer is being viewed entirely along partisan lines.
The Act itself was not an amendment to the constitution as the government could not muster a two-third majority in parliament but it did have a simply majority to pass the Act. Legislation is the right of parliament and no one can challenge that. But what can and is being challenged is whether the Act is ultra vires of the constitution and therefore can be struck down by the judiciary. Be that as it may this is not to deny that even a constitutional amendment can be declared ultra vires of the constitution by the judiciary.
Pakistani governments - military as well as civilian - have gone frequently to the superior judiciary to largely legitimize their rule in the former case, and seek redressal for unfair dismissal in the latter case. Constitutional petitions therefore have been frequently filed and amendments as well as Acts challenged in the courts of law. This accounts for the passage of several legislations as well as constitutional amendments to check on the superior judiciary's activism, or so argue its detractors, or keep it subordinate to the executive, so maintain diehard supporters of the judiciary.
Amending the constitution has been successfully completed 20 times in this country and even Z A Bhutto, the architect of the 1973 constitution, amended it six times including an amendment relating to the superior judiciary. The fifth amendment 1976 states: "In the Constitution, in Article 180, for the words "the most senior of the other Judges of the Supreme Court" the words "one of the Judges of the Supreme Court who have not previously held the office of Chief Justice of Pakistan otherwise than under this Article" shall be substituted thereby increasing the discretion of the executive in the selection of the chief justice; and amendment of article 204 for clauses (2) and (3) added the following words to the earlier version that "a Court shall have the power to punish a person for contempt of court in accordance with law" with legislation the domain of the executive.
A history of the contempt law is in order. The contempt law 1976 was the same as the 1926 contempt law of pre-partition colonized India. Its first major amendment was in 1988 when Nawaz Sharif, the then Prime Minister, came into conflict with Sajjad Ali Shah, the then Chief Justice. Nawaz Sharif adopted a two-pronged strategy which was premised on the fact that he had successfully split the superior judiciary, in his amendment namely making it mandatory for a full bench to pass judgment as well as effecting procedural delays in the event that the superior judiciary not consisting of a full bench took a suo motu notice thereby accounting for the following amendments: (i) show-cause notice must be passed by half or more of the judges, (ii) the matter be placed before a full court on the application of the aggrieved person, and (iii) the operation of the impugned show-cause notice would remain suspended until the final disposal of the matter with the Supreme Court barred from making rules inconsistent with the provisions of the act.
Musharraf passed an ordinance on the subject in 2003 and when it lapsed in 2004 (though why there was a need for an ordinance given that the Act was effective is unclear) and the dictator then provided constitutional protection to the ordinance through the passage of the Seventeenth Amendment.
The PPP does not face a similar situation in July 2012 that Nawaz Sharif faced in the 1990s because the superior judiciary is not split into two and is being supported by a more proactive civil society, including the legal fraternity, as well as by political parties that have the capacity to bring thousands upon thousands on the streets like the Pakistan Tehrik-e-Insaaf and the Jamaat-i-Islami. Thus PPP's 2012 Act focuses on extending full immunity to include the prime minister, his cabinet that includes PML (Q), the MQM and the ANP to ensure that they remain on board, as well as some key bureaucrats favoured by the PPP who are already in the docks on corruption charges. This, jurists argue, is expected to be struck down because it is not consistent with Article 204 of the constitution that allows the Supreme Court to take notice of contempt (specifically in connection with the executive disobeying any order of the court as in the case of non-implementation of the National Reconciliation Ordinance) as well as Article 248 that allows immunity to only the president and the governors. Not well thoughtout, so argue Naek's growing detractors including jurists both within and outside the PPP, however if the objective is delay then one would assume that the court would have to give some time to arguments on the already challenged new Act. The date for the hearing of this case has been set for 23 July - two days before the deadline given to Raja Pervez Ashraf to give his compliance report on the letter.
The second component of the PPP strategy in amending the contempt act was similar to Nawaz Sharif's: delay the process. And that may not be so easily struck down simply because of the argument that it is mala fide.
In some constitutions, though not ours, direct approval from the electorate through a referendum instead of the passage of an Act through a simple majority or constitutional amendment through a two-thirds majority is also sought. One would argue that given that the PPP is insistent that it is the people of this country who have given power to the party and not the judiciary or the establishment a referendum on the issue (through a simply majority vote in parliament) may have been a more viable option, which in any case was given by the Supreme Court though it no doubt referred to general election. This would have ensured coalition support which may not be forthcoming if the superior judiciary decides against the Prime Minister.
As aforesaid in Pakistan's constitution there is no reference to a referendum which may explain why this has been used only by our military dictators who have unashamedly asked loaded questions from the public that fooled no one. However, both times the dictators had to also seek validation from the courts to legitimize their coup d'etats and both times the judiciary meekly complied with their wishes by invoking the law of necessity. Pakistan held two referenda in more than half a century of its existence.
In 1984 prior to holding elections Zia-ul-Haq wanted to secure his own position as the president which prompted him to hold a referendum on December 19, 1984. The question he asked was if voters supported Zia-ul-Haq's proposals for amending several laws in accordance with the Holy Quran and Sunnah, whether he/she wanted this process to continue, and whether he/she supported Islamic ideology. Eighteen years later on 30 April 2002 Ziaul Haq's true successor Musharraf got himself elected for five years as the president by a referendum. His question too was as patently self serving as Ziaul Haq's: For the survival of the local government system, establishment of democracy, continuity of reforms, end to sectarianism and extremism, and to fulfil the vision of Quaid-i-Azam, would you like to elect President General Pervez Musharraf as President of Pakistan for five years?
At this point in time with elections constitutionally required to be called in less than nine months a referendum may be a wasteful exercise. The best option for a beleaguered government would be to call elections, use the Supreme Court verdicts as PPP-specific victimization and hope that poor governance that led to a major decline in the quality of life of the people of this country in the past four and a half years does not become the major issue in elections. Unfortunately though this option does not seem to be on the cards and the PPP leadership believes that the next six to eight months in power would be critical in rejuvenating the perception that its performance was not dismal.