The COCA Saga
by TARIQ BUTT
Since its very conception, the Contempt of Court Act (COCA) 2012 was destined to die an unceremonious death because any law that is person specific and curtails the powers and independence of the judiciary cannot stay on the statute book. It has to be shot down by a superior court. This is what the Supreme Court did precisely 23 days after the COCA was enacted in a unique hurry and rush. The legislation, clumsily drafted by Federal Law Minister Farooq H. Naek and hastily approved by the two chambers of the parliament without any in-depth and meaningful debate, was primarily meant to save the new Prime Minister, Raja Pervez Ashraf, from conviction for contempt of court if he was indicted on the charge of disobeying the December 16, 2009 judgment of the Supreme Court against the National Reconciliation Ordinance (NRO), in which the chief executive was directed to write letters to Switzerland to reopen graft cases against President Asif Ali Zardari. But the law failed to achieve its intended objective because of its scrapping by the apex court. It could not pass the judicial scrutiny on the touchstone of the constitution.
The August 4 short order of the five-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry, which annulled the COCA, noted that the contempt law was enacted in haste. A perusal of COCA 2012 suggested that it was promulgated in haste obviously for reasons which were admitted by lawyer of the federal government and to avoid application of the recent decision of seven-member bench headed by Justice Nasirul Mulk passed on April 26, 2012 in pursuance whereof the then Prime Minister, Yousuf Raza Gilani, was found guilty of contempt of court followed by another ruling declaring him to be disqualified from being a member of the parliament in terms of Article 63(1)(g) of the constitution.
The timing of the promulgation of COCA said it all. After Gilani's ouster, the case for implementation of the NRO judgment was fixed on June 27 when a 5-member bench called upon Pervez Ashraf to cause a report to be submitted before it regarding compliance of the directions contained in Paragraphs 177 and 178 of the NRO verdict, failing which the court would initiate appropriate action under the Constitution and the law. On July 9, the contempt bill was tabled in the National Assembly after the relevant rules were suspended and it was approved the same day. It was then placed before the Senate on July 11 where too it was passed the same day and the President also gave his assent to it the same day. Interestingly, the federal government's lawyer, Abdul Shakoor Paracha, turned out to be very forthcoming when he admitted before the five-member bench that the COCA was enacted to save the new premier. He conceded that it was promulgated with a motive to ensure that democratic order continues to prevail under the constitution as a prime minister has been convicted and sentenced and declared disqualified from being an MP and same could happen with another premier. Therefore, instant enactment was done to provide protection to the public office holders by incorporating Article 248(1) as a proviso to section 3 of COCA 2012. He argued that the independence of judiciary has not been compromised in any manner. Rather contrary to it, the contempt law will strengthen the institution of the judiciary, he said. He stated that parliament is empowered to legislate a law in exercise of the powers conferred upon it by the constitution and no law can be declared contrary to the constitution. According to him, the legislature enacted the law strictly according to the constitution. However, he conceded that a constitutional provision like Article 204 cannot be amended by means of ordinary legislation. However, instead of rendering any impartial and useful assistance to the bench, Attorney General Irfan Qadir confined himself to bashing the Supreme Court judges and defending the government, come what may. At the very outset, he raised the question of bias against some members of the bench without being specific and without giving any particular instances. But he subsequently dropped the submission. He explained that there was necessity to enact COCA 2012 as there was confusion as to which law was holding the field because according to him Gilani had been convicted and sentenced in the absence of any statutory law applicable on the subject. According to him, the apex court should make efforts to save the legislation and if there is conflict or contradiction between two provisions, the same may be harmonised in the process of interpretation of the law. During the debates, the National Assembly and the Senate deliberated upon all aspects of the legislation and enacted the COCA 2012. He contended that the legislature enjoys jurisdiction under the constitution to enact a law, therefore, the same could not be questioned. As far as provision of intra-court appeal is concerned, it has been provided to enforce the fundamental rights of the contemnor under Article 10A of the Constitution and this is not for the first time that such provision has been enacted, as identical provision existed in COCA 1976, which continued till its repeal.
The bench noted that the COCA 2012 was a person specific when it said that it is also one of the recognised principles of jurisprudence that person specific laws cannot be promulgated because such exercise instead of promoting the administration of justice causes injustice in the society amongst the citizens who are being governed under the constitution, particularly, in a matter relating to implementation of judicial orders following the directions of the court. The courts have always made efforts to avoid enforcement of their orders by taking extreme steps of punishing the delinquents for disobeying the orders and judgments. However, if an act of contempt of court persists and no prompt action is taken, the court loses its authority and all its decisions and the judgments will be considered mere paper decrees.
Therefore, to maintain its dignity and respect and to restore the confidence of the citizens in the supremacy of the constitution and the rule of law, as a last resort, proceedings for contempt of court are initiated.
The COCA defined the word "judge" in a way, which was contrary to Article 204(1). Its other sections found by the bench to be in conflict with the constitution and law including the one which conferred power on the legislature to make law to regulate the exercise of power by the courts; powers of the courts were reduced by incorporating expression "by scandalising a judge in relation to his office" whereas in Article 204(2) the word 'court' has been used. Similarly, the definition provided by section 3 ran contrary to the provisions of Article 63(1)(g) of the constitution according to which if a person has been convicted and sentenced for ridiculing the judiciary, he will be disqualified to hold a public office, and in section 3 this expression has been omitted and instead of institution of judiciary, scandalisation of a judge has been confined in relation to his office; the COCA provided immunity to public office holders including the president and the prime minister from prosecution whereas no such provision exists in the constitution; and under Article 204(2), superior courts are empowered to punish 'any person' for contempt without any exception; and COCA incorporated Article 248(1) in its section 3 which was tantamount to amending the constitution that cannot be done without following the procedure laid down in Articles 238 and 239. The court declared all the substantive sections of the COCA unconstitutional and void and ruled that the remaining provisions, if allowed to stay on the statute book would serve no purpose particularly when it has been held that its repealing section itself is a nullity.