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.