ISLAMABAD:
A petitioner was barred by Chief Justice Iftikhar Muhammad Chaudhry from pointing a finger at Prime Minister Raja Pervaiz Ashraf as being a ‘beneficiary’ of the new contempt law until the premier’s case in the National Reconciliation Ordinance (NRO) implementation matter is decided.
“It would be unfair to condemn someone in his absence,” remarked Chief Justice Chaudhry, who was heading a five-judge bench on Friday hearing 27 identical petitions challenging a new contempt law.
He asked petitioner Advocate Chaudhry Afrasayab to refrain from mentioning the premier’s name directly given that his case was still pending before another bench – and that the outcome, whether or not he would be charged with contempt, was yet to be known.
“We do not say this law is person specific,” the chief justice added. “This Constitution has actually kept us united. We all are making efforts so that the democratic system flourishes,” he observed.
Raising objections over the new law, Afrasayab said that the legislature, with simple majority, cannot re-write the definition of the contempt of court as mentioned in Article 204 of the Constitution.
He said that the law was unconstitutional and ultra vires to Article 204 (contempt of court) and Article 248 (protection to president, governor, ministers etc) and was unconstitutional. The scope of contempt can only be enhanced, but in this case it has been minimised, he added
The argument prompted Justice Jawwad S Khawaja to observe that subordinate legislation (that is, the contempt law 2012) cannot nullify what has been defined by the Constitution. While discussing the role of members of parliament, Justice Khawaja remarked: “Parliament members are merely servants of the people and nothing more, they even get paid by the public.”
Former president Supreme Court Bar Association (SCBA) Rasheed Razvi, while representing petitioner the Sind Bar Council, said now effectively only the poor could be convicted and punished under the law. Referring to Article 14 (inviolability of dignity of man) of the Constitution, Razvi posed a question: “Are judges not entitled to dignity?”
While addressing the bench, Advocate Zafarullah Khan contended that, in actuality, people would be more affected by the new contempt law than the judges.
He quoted figures of hundreds of thousands of cases of different nature registered every year – and added that the orders and judgments of these cases are implemented either through moral authority or because of the existence of a contempt law. “The court does not have any stick in its hands to get its orders implemented,” he contended.
At this, Chief Justice Chaudhry lamented that, “a job is done only if force is applied, and I don’t know why this culture has emerged.” He added that “[the courts] cannot carry the stick of contempt with us every time for implementation of court orders” and that “we cannot punish only a junior official and exonerate high-ranking ones.”
Justice Khawaja observed that the court was dealing with issues that should not have come to them in the first place. “It is happening because the executive is not performing its role [of] solving the issue of the masses, and people … come to court when they are denied their rights.”
After hearing the arguments of petitioners, the court adjourned the matter for Monday.
Published in The Express Tribune, July 28th, 2012.
COMMENTS (6)
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Our politicians aré spoilt brats hence they were not expecting such assertive judiciary Who aré trying to upheld rule of law which is the foundation of democracy to flourish....
Aaaway ka aawaa he bigra hua hai. I hope CJ realizes that right now 'flourishing' of democracy in this situation and state only means flourishing of the corrupt politicians and leaders.
With our GDP destroyed in last 5 years, it's a massive contrast to the GDP and general growth we had in Pre-Democracy era. Pakistanis simply can't afford this type of 'democracy' where Loadshedding, price hiking, corruption, messing with Judicial systems and creating laws that make the leaders above the law.
Oont re oont.
"Justice Khawaja remarked: “Parliament members are merely servants of the people and nothing more, they even get paid by the public.” - The spirit behind the remark is disturbing . The Members of Parliament are not the servants rather they are representative of the public. They are the voice of the public. of course they are paid by the public but this is equally applicable to Judiciary too. They are also paid by the taxes collected from the public. Democracy is for the public, by the public and of the public. The parliamentarians are well within their right to enact the law for the country . ( within the ambit of the constitution). Judiciary may decide if the same is within or out of constitution. People can not be deprived of their fundamental rights. Also the apex court may look into the clauses of the constitution if any/ some are contradictory. I feel first the judiciary has to declare that the NRO is void ab initio or after its expiry( if expired) and then may instruct to take steps in specific complaints, Judiciary should not be instrumental for the early death of democracy.Judiciary can remain independent in democratic set up only.
Please don't say him any thing because he is also the guest of/for few days in prime minister secretariat Islamabad.........
@VINOD. You are correct. This has happened in the past. But this time it is different. This judiciary stood up to the dictator. Now they are standing up against corrupt elite. They deserve our respect and support. This has been one of the most positive elopements in Pakistan history. SC is the probably the only institution from which our elite are actually scared. That is a good thing my friend.
Biggest murderer of constitution of Pakistan are Pakistan judiciary. The constitution was dead when the judiciary legalized the dictatorship by inventing the theory of necessity. And took fresh oath on the dictation of the dictator. Repeatedly they scummed to dictators and were party to hang the PM of the country.