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21 - 27 July , 2012
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THE ORCHARD ON FIRE
 
VIEWPOINT
VIEWPOINTA Bad Law Which Cannot Stand Scrutiny
by TARIQ BUTT

Top legal wizards, even those of the ruling Pakistan Peoples Party (PPP) except of course Federal Law Minister Farooq H. Naek, strongly believe that the new contempt law is a bad piece of legislation, and some of its key clauses, having a certain objective to achieve, will be struck down by the Supreme Court for being in violation of the Constitution. They include Aitzaz Ahsan, Babar Awan and Fakhruddin G. Ebrahim (now the Chief Election Commissioner). They hold the view that there was no need to insert such provisions in the new law. Apart from having several negative aspects, the contempt law is person-specific, meant to save Prime Minister Raja Pervez Ashraf from being convicted on contempt charge for not writing letters to Switzerland to reopen graft cases against President Asif Ali Zardari.
The PPP doesn't want him to fall victim to the contempt charge like his predecessor, Yousuf Raza Gilani. But it is a globally established principle that person-specific laws are thrown out of window by superior courts. Special laws for special persons have no place in the statutes. The contempt law was bulldozed through the Senate and the National Assembly in the top gear followed by its quick signing by the President Asif Ali ZardariPresident for its enactment hours before Justice Asif Saeed Khosa led five-member bench of the Supreme Court took up the case of implementation of the December 16, 2009 judgment against the NRO (National Reconciliation Ordinance), in which the government (read the prime minister) was ordered to send letters to Swiss authorities. The government feared that the bench would instantly issue a show cause notice for contempt to Pervez Ashraf, therefore, it should have the law in place to invoke before that eventuality. But it did not happen as the bench gave two weeks to the Prime Minister to do the needful and file compliance report with it. Never before in its over four years rule has the present government shown so much rush and haste as it resorted to in getting the parliamentary approval for this law. In the original draft, the law minister had included the constitutional immunity to the prime minister and other public office holders from prosecution on the contempt charge, but it was dropped as he realized that it would run counter to the Constitution, but only after some leading pro-government legal experts pointed out this serious blunder. It provided exemption under Article 248(1), which says the President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a provincial minister shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.
Although the contempt law made every attempt to secure the prime minister, the superior courts continue to have powers to try "any person" (including of course the prime minister) on this charge under Article 204. It reads the Supreme Court or a high court shall have power to punish any person who, abuses, interferes with or obstructs the process of the court in any way or disobeys its order; scandalizes it or otherwise does anything which tends to bring it or its judge into hatred, ridicule or contempt; does anything which tends to prejudice the determination of a matter pending before it; or does any other thing which, by law, constitutes contempt. The new law impinges hard on the powers of the apex court head reflecting the old government policy to clip the authority of Chief Justice Iftikhar Muhammad Chaudhry. The reason is simple and clear: since he doesn't follow the government policy and delivers decisions that are not liked by it, he should be divested of powers. As the Supreme Court would hear the petitions against the contempt law, this clause would be particularly under focus and was unlikely to stay in the statute. The law says that when the chief justice will take cognizance of the contempt offence, he will not be part of the bench that would hear this case. Not only the chief justice, but any judge or panel of justices that will first take cognizance of contempt offence will not be included in the bench, which will hold hearing on the matter.
Sub-clause 5 of Section 8 of the bill says 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. When the chief justice will take cognizance of contempt Prime Minister Raja Pervez Ashrafoffence, he shall forward the record of the case regarding alleged contempt involving scandalisation personal to him and not scandalisation of the court as a whole or of all of its judges, and his comments, if any, to the panel of the two senior judges, which shall pass the matter to a judge or a bench set up by it of which the chief justice will not be a member. If at any stage of the contempt hearing in which this panel, 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. Clause 2 of Section 8 says that 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.
In a certain situation, the law aims at involving the entire Supreme Court excluding the judges, who have issued an order on a contempt matter, to hear an appeal against it. Clause 3 of Section 10 says an intra-court appeal shall lie against the issuance of a show-cause notice for contempt or an interim order passed by a bench to a larger panel consisting of the remaining available judges within Pakistan. Its proviso says that in the event the impugned show-cause notice or order has been passed by half or more of the judges of court, the matter shall, on the application of an aggrieved person, be put up for re-appraisal before the full court. At the same time, the operation of the impugned show-cause notice or order shall remain suspended until the final disposal of the matter. Thus, the law introduced a new stage (re-appraisal) of trial on the contempt charge, which did not exist in the judicial history of Pakistan. Furthermore, it prescribed suspension of the show-cause notice and order issued by a judge or bench till the matter will be finally decided in appeal. Elimination of the role of the chief justice and involvement of the full court amounts to affect the independence of judiciary, which is otherwise guaranteed under the Constitution. Moreover, it has been held more than once by the superior courts that independence of judiciary was part of the basic structure of the Constitution against which no law can be made. And if any legislation is spawned, it would be void. Not only Gilani's lawyer Aitzaz Ahsan argued before the Supreme Court for weeks that no contempt exists for the moment but Attorney General Irfan Qadir always argued on the same lines and stressed that the current trials of alleged contemnors were illegal in the absence of the requisite legislation. However, the new law negated this official line clearly when it said it repeals the contempt ordinances of 2003 and 2004 and Contempt of Court Act, 1976. Another important feature of the contempt law is that it drags the contempt proceedings for an indefinite period so that no decision in such matters could be handed down by courts. "Most of the time, judges, who would be hearing the contempt cases would retire much before these proceedings would conclude because the new law provides an extremely lengthy, extensive procedure," a legal expert commented.

 
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