The sovereign will of the people does not give it the mandate to flout court orders and make self-serving laws. The primary function of parliament is to make and amend laws that foster security and the welfare of the people. The newly passed contempt of court law flouts the collective wisdom of this sovereign will.
This law provides immunity to a public office holder from contempt charges for not obeying court order(s). Public office holders are servants of the people and must be held accountable for their wrongful actions. Any immunity from charges of contempt of court may provide public office holders with the licence to implement only those decisions of the court that are conducive to their self-interests. As a result, society would be at the mercy of public office holders for dispensation of justice and the whole structure of checks and balances and separation of powers as enshrined in the Constitution would collapse. The law is a legislative act because it has been passed with a simple majority in parliament. Therefore, it is subordinate to the Constitution and may not survive any constitutional challenge.
The Constitution assigns the Court the very delicate duty of safeguarding human dignity and equality by observing a simple rule: ensuring that no one is above the law. Therefore, the Court is duty-bound to strike down any legislative act that violates the sovereign will of the people. In Mahmood Khan Achakzai v Federation, the Court has touched upon the doctrine of the basic structure of the Constitution. It observed that parliament cannot make a constitutional amendment, which adversely affects the basic structure of the Constitution, whose salient features, among others, include the independence of judiciary to dispense justice and implementation of its decisions in entirety. It is, therefore, quite likely that the contempt law would have been in grave danger even if it had been passed as a constitutional amendment with a two-thirds majority of parliament under Article 238.
With regard to the immunity that the president enjoys, Article 248(2) provides him immunity against criminal proceedings. However, writing the letter to Swiss authorities as per the decision taken in the NRO case has no immunity under any provision of Article 248. The question of immunity may arise after writing the letter, under Article 248(2). The federation may then be compelled to assert the claim of immunity, both in Pakistani and Swiss courts, with the president’s immunity only surviving in Swiss courts provided his immunity claim endures the constitutional challenge in the Pakistani Supreme Court.
There is also a viewpoint that the president has no immunity in light of Islamic injunctions. This opinion is rooted in Article 2A. It would be interesting to see if the Court adopts the doctrine of basic structure of the Constitution to declare Article 248(2) unconstitutional, or directs parliament to bring the immunity article in conformity with Islamic injunctions in light of the ruling it gave in Hakim Khan v Federation. Let’s watch the drama unfold.
Published in The Express Tribune, July 30th, 2012.
COMMENTS (15)
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@Mirza: Commit a crime ,when court convicts you then don't obey it as you can not be held in contempt. So basically it is a license to crime to all public office holders. Welcome to PPP style democracy.
The new law does not give immunity to the PM against crimes. It only gives immunity against contempt of court, which the court is ready to ambush and has done that many times in the past. While talking about the elected PM everybody and their brother talks about Islam and equality. While there is no such talk when it comes to generals and judges. They have divine power over the masses to rule as long as they want. Like a loose cannon no SC uses suo motu the way this PCO SC is abusing. Even in Pakistan all the previous SC combined did not abuse this power to this extent. The elected leaders have constitutional immunity because they want to govern without being dragged in courts by two dozen cases every day.
Mr Zardari is immune from all kinds of cases so long as he is in office, a position very clearly stated in Pak constitution that Pak Supreme court doesn't want to accept. So the ruling party wants to pass a law to counter Supreme court. It is a Tit for Tat situation where both Parliament and Supreme court are crossing swords. If you say immunity law is not in good taste, so as the supreme court judgement
@yousaf:
Yes SC itself is above the law. They can rewrite parallel law, like they can empower gunman to amend law as they wish, can allow a uniform man to contest election, can allow if they please open case after 9 years for reappeal when time for appeal expired, apply law of seniority inSC but not in high court and elevate junior judge to SC, demand for power appoint judges themselves, where consultation is defined mandatory , where section of law can have additional sententences( president has immunity but SC will add only in official cases. This is called Brahmin, Latin and Arabic interpretation as it was only right of religious scholars right to interpret or say whatever they wanted as other people could not read or write now story is different. Is there any doubt that Parliament will make law? Good or bad law. How a police officer is appointed and removed? How a clerk is select and removed? How a judge is appointed and removed? Who can come in country? How many years in medical school one should be?
What is the concept of structure? People in 73 assembly were fountains of wisdom. What ever they said is truth and no one can change their concepts. What an absurd idea. Bungladesh became secular and is no more Islamic republic.that is will of people.
good article.
There is misconception in Pakistan in some communities that the laws passed by the legislative branch can not be challenged in any court, this is unfortunate, the reality is it can and should be challenged if the laws are in conflict with the constitution. Recently the conservatives in the US has challenged Obama's health care bill in the US Supreme Court. specially where it demands that every citizen must buy health insurance otherwise pay a penalty. They thought it was against the constitution by forcing the citizens to buy insurance, however the Supreme Court upheld the main law, they did not see any violation of the constitution. YES, we all know that this rubber stamp parliament passed this law to protect certain individuals in the government, and yes the Supreme Court should decide whether it is in conflict with the constitution.
Some of you sound so hopeless. Saddam was a President of his country. What the world did to him. Regardless of any law. Oh wait he wasnt chosen by people but Zardari won every vote in Pakistan, This is why he is a ligit President of Pakistan, right? It is not like Pervaiz Musharaf made a deal with him or anything. Zardari is the elected President of Pakistan (but as much as of the comission he charged for illigal deals) only 10 percent of it is true. How could you or anyone can talk about giving him free hand when he is the clear enemy with in. As long he is serving everyone but Pakistan. He will stay as the Elected legal President Of Pakistan wilth all the rights on the books ever written.
It is good to hear a sane voice on ET once in a while...
One should think that why such a rejuvenated law has been introduced by the legislature ? It is because of overstepping of court ... they ousted a PM who was unanimously elected by NA ... These judges accepted PCO and allowed the dictator to amend the constitution .... and now they proclaim to be the saviors of constitution ... who gave them this status of self-pardon ??? ... No body is clean here ... those who are disqualifying the elected people are already disqualified ...
Intellectuals come and go. People thought, wrote and vanished. No point in wasting time on writing political pieces which you know - despite being intellectually enriching - will not create a dent in the status quo.
Life, after all, is too short. And in a country like Pakistan - trust me for just once- Ignorance is bliss.
Why bring religion (Islamic injunction) into the Presidential immunity discussion? When have we in Pakistan followed the Islamic laws except for mere political and religious rhetoric? We are already having enough problems with our religious zealots threatening our nation's very existence. The fact is, according to our constitution the President has the immunity from prosecution as long as he is in the office. Besides, the international laws protect a sitting head of the state. The Justices should accept it and stop pushing the country to the brink creating situation for unacceptable outcome. The Supreme Court and the President's adversaries should wait until he leaves the office and prosecute him for all his unlawful acts. In the meantime let's concentrate our efforts on how to improve livelihood of millions of our fellow citizens and save our nation from enemies within.
@author::Does there exist any law in Pakistan which bears no ambiguity?
The powers that you want to bestow upon the Supreme Court are truly frightening. Who will watch the watchers? That is the role for the people that they exercise directly through the ballot. That is not the role of the Supreme Court. What you are suggesting is a judicial dictator ship. Dismissing a PM by using contempt of court is already a uniquely Pakistani law. The courts have lost respect and are close to being held in contempt by the people. That will be truly a disaster for Pakistan. The fact that these judges allowed a military dictator to change the constitution and stand for election and then tore up their Oaths to the constitution and swore an oath on the PCO is a crime for which they should have been thrown out. Instead your fraternity of lawyers made them out to be heros and thrust them upon the poor hapless people of Pakistan. The present judges do not deserve any respect.
A little complex for the average guy to understand but you make absolute sense. On the subject of immunity of rulers its interesting to read the views of Benazir Bhutto in her last book ' Reconciliation' page 73.