Supreme Court of Pakistan on Friday struck down a new law that sought to exempt members of the government from contempt trials, clearing the way for legal proceedings against the prime minister. Parliament passed the bill last month after the Supreme Court dismissed Yousuf Raza Gilani as premier and convicted him for refusing to reopen multi-million-dollar corruption cases against President Asif Ali Zardari.
But on Friday, a five-member bench of the Supreme Court headed by Chief Justice Iftikhar Muhammad Chaudhry declared the law "unconstitutional". It was the latest episode in a two-and-a-half-year saga in which the government has resisted demands to investigate Zardari, arguing he enjoys immunity as head of state.
The showdown could force elections before February 2013 when the government would become the first in Pakistan's history to complete an elected, full five-year mandate. The Supreme Court has now given the new prime minister, Raja Pervez Ashraf, until August 8 to indicate whether he will follow a court order to write to authorities in Switzerland, asking them to reopen the cases against Zardari.
Last month, it suggested that Ashraf could suffer the same fate as Gilani - being dismissed for contempt - if he refuses to do so. Critics of the judiciary and members of Zardari's main ruling Pakistan People's Party have accused the court of waging a personal vendetta against the president. It was not immediately clear how far the government would resist Friday's order. State television quoted the attorney general as saying that he was "stunned" by the court decision that "went beyond its jurisdiction". "Parliament is supreme and has the authority of legislation. The judiciary should not interfere in legislative affairs," Irfan Qadir told the channel, PTV. But the petitioners who challenged the law, welcomed the move.
BR staff reporter Khudayar Mohla from Islamabad adds: The Supreme Court on Friday declared the Contempt of Court Act 2012 unconstitutional. According to the court, the Contempt of Court Ordinance 2003 shall be revived with effect from July 12, 2012.
Chief Justice Iftikhar Muhammad Chaudhry and four other judges Justice Mian Shakirullah Jan, Justice Khilji Arif Hussain, Justice Jawwad S Khawaja and Justice Tassadduq Hussain Jilani announced the judgement on 27 identical petitions against the Contempt of Court Act (COCA), 2012. Reading out the concluding portion of the 21-page short-order, the Chief Justice said the Supreme Court and the High Courts have the right to award punishment to a contemnor under clause 2 of Article 204 of the Constitution.
"Section 2(a) of COCA 2012, which defines the word "Judge" as including all officers acting in judicial capacity in administration of justice, is contrary to Article 204(1) of the Constitution as under the latter provision, the Court means the Supreme Court or a High Court," the order said. Declaring the Section 3 of the new contempt of court law wholly void and contrary to Articles 4, 9, 25 & 204(2) of the Constitution, the Chief Justice said the acts of contempt liable to be punished mentioned in Article 204(2) (b) and some actions of contempt of Court falling under Article 204(2) (c) have been omitted from the definition of contempt of Court given in section 3 of COCA 2012.
"COCA 2012 has been promulgated under clause 3 of Article 204 of the Constitution, which confers power on the legislature to make law to regulate the exercise of power by the Courts, and not to incorporate any substantive provision or defences as it has been done in the proviso," said in the order. The order also said that powers of the courts have been reduced by incorporating expression "by scandalising a Judge in relation to his office" whereas in Article 204(2) the word 'Court' has been used.
The Chief Justice said that by enacting provisos (i) to (xi) to section 3, immunities/defences have been provided, whereas no such provision exists in the Constitution; and the proviso (i) to section 3, which grants exemption to the public office holders mentioned in Article 248(1) from contempt of Court is violative of Article 25 as under Article 204(2), the Court is empowered to punish 'any person' for its contempt without exception.
The order maintained, "Under sub-section (4) of section 4, the effect of earlier judgements have been nullified by pronouncing a legislative judgement without removing the basis on which the judgements were pronounced, which is violative of the Fundamental Right of access to justice as enshrined in Article 9 and this provision also runs contrary to Article 189 of the Constitution; therefore, this provision is void".
The Chief Justice said that Section 8 relating to transfer of proceedings tantamount to curtailing the judicial powers. According to him, the sub-section (1) of Section 8 is not sustainable because instead of the phrase 'scandalising the Court', expression 'scandalising a Judge in relation to his office' has been used.
"Transfer of proceedings form one Judge/Bench to another Judge/Bench is the prerogative of the Chief Justice being administrative head of Court, which cannot be controlled by the legislature, therefore, sub-section (3) of section 8 is violative of the principle of independence of judiciary," the short order said.
The Chief Justice announced that after having found various provisions of COCA 2012 as ultra vires to the Constitution, the bench was of the opinion that the remaining provisions of the impugned legislation, if allowed to stay on the statute book, would serve no purpose. "Thus, having been left with no constitutional option, COCA 2012 is declared unconstitutional, void and non est, it is declared that the Contempt of Court Ordinance, 2003 shall be deemed to have revived with effect from 12.07.2012, the day when COCA 2012 was enforced with all consequences," the Chief Justice concluded.