The case for contempt

The Supreme Court may be the only constitutional check on the voracious appetite of those voted into power.


Nadir Hassan January 17, 2012

The PPP and its supporters have pulled off a nifty trick. Somehow they managed, with a straight face, to equate themselves to the system of democracy. Removing the PPP government from power, or just holding it accountable, even if it is done in a constitutional manner, is being portrayed as a crime against the democratic system.

The latest outrage against Prime Minister Yousuf Raza Gilani is that he is in danger of being held in contempt by the Supreme Court. What is supposedly scandalous about this, in the minds of the government’s defenders, is that the court is purposely targeting the PPP at the behest of the army. Dangerous though it may be to try and read the minds of the justices, let us assume, for the sake of argument, that this criticism is true.

The obvious reply to this would be, “So what?” It is not the intentions of the justices that should be subjected to scrutiny so much as the soundness of their opinions, conveniently provided to us in written form. And there the Supreme Court clearly has the upper hand since, in refusing to comply with the Court’s orders in the National Reconciliation Order (NRO) case, Gilani can clearly be charged with contempt.

The Contempt of Court Ordinance of 1998 is quite clear on the matter. With regards to jurisdiction it states: “Every superior court shall have the power to punish a contempt committed in relation to it,” and a person can be deemed to have been guilty of contempt if he is diverting the course of justice. Unlike the president, Gilani doesn’t even have the constitutional protection of immunity to fall back on.

Legally, the Supreme Court has a solid case against the prime minister. Though this may be anathema to all the PPP defenders who have latched on to the democratic bandwagon like leeches, sucking out of it all the blood it needs to function, the contempt proceedings should be welcomed by all those who genuinely want our democratic experiment to succeed.

The Supreme Court may be the only constitutional check on the voracious appetite of those who have been voted into power. One of the few roadblocks placed on the government is the court’s role as the final and sole arbiter of the Constitution. The last time a sitting prime minister, Nawaz Sharif, was held in contempt by the Supreme Court, he simply set his goons loose and got himself a new court. That the balance of power has shifted in favour of the Court since then should be welcomed, no matter how positive a view we have of the current prime minister or how much we loath the current judges and their alleged allegiances.

There is also some moral satisfaction, or at least a bout of gloating, to be gained from the PPP being hoisted on the NRO petard. Political memories in Pakistan tend to be short, so it is worth remembering that the NRO was designed only to allow the PPP to share power with an army dictator, at the expense of the PML-N. The NRO was bashed by the very same people who now don’t want the PPP to suffer the consequences of its illegality.

To support the constitutionality of the Supreme Court’s actions does not mean, to preempt a likely criticism, that I support the army’s campaign against the PPP. It is possible to be against the illegality of a military coup while finding nothing to object to in a Supreme Court finally asserting itself. Their aims might be the same but by staying within the confines of the law, the Supreme Court may end up strengthening the system in the long run.

Published in The Express Tribune, January 18th, 2012.

COMMENTS (28)

You Said It | 9 years ago | Reply

What is supposedly scandalous about this, in the minds of the government’s defenders, is that the court is purposely targeting the PPP at the behest of the army.

Their aims might be the same but by staying within the confines of the law, the Supreme Court may end up strengthening the system in the long run.

I find it hard to believe this is a good faith argument. How can selective persecution of an elected governent strengthen any system? Your argument knocks the premise of equality before law on its head. The only way the court's judgment can strengthen the system is if it also prosecutes generals who have repeatedly violated the constitution through their coups and extra-judicial actions in Balochistan and elsewhere.

No one can argue that the PPP's election wasn't fair. The cloak of legitimacy that the court provides to a judicial coup will also be the kafan of a democratic Pakistan.

TsunamiLota | 9 years ago | Reply

It is not the intentions of the justices that should be subjected to scrutiny so much as the soundness of their opinions

Totally disagree. The intent of a judgment is as much subject to scrutiny as the judgment itself. The concept of a "Living Constitution" is predicated on the spirit of the law, not the letter. In fact most framed laws take into account the intent of the under-trial -- if the citizen can be judged on intent, surely it applies to the justices.

More practically, intent colours actions. In this case, the intent of the justices can result in selective application of rules and laws. This can absolutely lead to miscarriage of justice.

It is possible to be against the illegality of a military coup while finding nothing to object to in a Supreme Court finally asserting itself. Their aims might be the same but by staying within the confines of the law, the Supreme Court may end up strengthening the system in the long run.

Totally disagree again. When the intent of the justices is to target a single government they do not like, possibly at the behest of the army, then it results in a "legitimate" coup -- it turns the constitution into a poison pill. There will be no strength in the edifice of Pakistan if its legislative pillar can be knocked down at will and whim of the judiciary.

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