The case for contempt

Published: January 17, 2012
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The writer is a journalist based in Islamabad who also does risk-analysis work. He has worked at The Express Tribune and Newsline

The writer is a journalist based in Islamabad who also does risk-analysis work. He has worked at The Express Tribune and Newsline

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.

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Reader Comments (28)

  • abdul basit
    Jan 17, 2012 - 11:24PM

    nawaz sharif was made to appear before syed sajjad ali shah and when nawaz submitted an apology, shah rejected it.if gilani submits an apology and chief justice rejects it,all the media will go wild portraying gilani as some poor,innocent victim,the media as it is,is keeping silent on the massive corruption and is now obsessed with bashing the judiciary.

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  • Sindhvoice
    Jan 17, 2012 - 11:29PM

    Few questions for you?Food for thought from history?

    1.Who faced Judicial murders ?
    2.who forced judges to give verdicts against PPP leadership?
    3.Who faced prisons for years and same courts and investigation agencies could not find any single case against him?
    4. If NRO is bad and then what about creators of NRO?and what about Sharif brother’s deal?
    5. If Juducial activism is only for a singular party, is it to be called fair and neutral? Money laundering cases and Hudeeba paper mills are corruption cases.What about Asghar Petition which also revolves around establishment’s corruption and tactics against democracy? Why aint they are being taken up?
    6. Why cant any one get Contempt of court in Missing person case? people from Baluchistan and Sindh are being kidnapped and dumped? Where is SC?

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  • Parvez
    Jan 17, 2012 - 11:32PM

    Very well said.
    Your opening paragraph explains it simply and well. In fact, the cat was out of the bag within a year, but it’s now three years and a demoralised country watches as the cat has still not been belled.

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  • asif pervez
    Jan 17, 2012 - 11:43PM

    yes,do as much corruption as one wants,then start crying in the media that we are being victimised,that we are being attacked when the judiciary tries to stop the corruption.the judiciary is the easiest target.blame everything on the establishment and the judges and become the bichara,masoom siyasi shaheed so everyone will have pity on you and not ask about the looted money.

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  • Aon
    Jan 17, 2012 - 11:54PM

    @Sindhvoice:

    Please don’t play the Sindh Card.

    SC is upholding law only so that Bilawal and Bakhtawar can have a better Pakistan tomorrow.

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  • John B
    Jan 18, 2012 - 12:13AM

    Disagree.

    The decision to implement SC directive falls under executive branch and courts have no jurisdiction in managing the executive office affairs.

    Scenario: Court condemns a man but the executive office pardons him or delays his execution. Will now the court hold the executive branch in contempt?

    Implementation of NRO directive is no different. The courts have no jurisdiction in holding PM office in contempt of court. Fortunately, that power is with Parliament. The executive branch is under no constitutional obligation to answer the court how it conducts its business.

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  • Sindhvoice
    Jan 18, 2012 - 12:17AM

    @Aon:
    WIth due respect, I shared historical facts, you cant deny them by naming it “Sindh card”.

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  • Tahir
    Jan 18, 2012 - 12:26AM

    Agree 100%
    What could possibly be the next step if the PM is found guilty and thus disqualified? Who can hold the position other than a similar Zardari supported puppet from the PPP?
    Ideally, when the court found NRO illegal, that should have reversed/disqualified the entire electorate which qualified only because of the NRO. All those who came into assemblies based on NRO should have been sent back to jail when the first decision of supreme court came.
    PTI and JI made the right decision by boycotting the faulty election. PML-N made a techical mistake by participating and ligitimizing the NRO based elections which got us into this huge mess.

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  • Tahir
    Jan 18, 2012 - 12:35AM

    @Sindhvoice:
    I am sick of this classic PPP argument.
    So you are saying the only way to deliver justice now is to go way back in history and undo every single injustice first- only then you have the right to touch the present kings of corruption. Otherwise let these clowns carry on with their jobs.
    Try selling that argument to the powerless populace of the country who think they have suffered enough and want relief from the present day looters.

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  • Maria
    Jan 18, 2012 - 2:13AM

    An excellent, nuanced article Nadir.

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  • Rabia
    Jan 18, 2012 - 2:23AM

    The flaw in the argument being made here is that while, theoretically, the SC does has the authority to act as a check on an executive or legislature that is overstepping its bounds, in this case, that is clearly not happening. Currently what we are seeing is emphatically not an executive or legislature overstepping its bounds. No one can argue that this government has amassed a disturbing level of power a la Nawaz Sharif circa 1999. In fact, in this situation what we see is quite the opposite – the Supreme Court has taken it upon itself to put the current government in a position in which it cannot function.

    Unfortunately, there is no constitutional check on the expansion of the Supreme Court’s power.

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  • Rabia
    Jan 18, 2012 - 2:44AM

    Basically what the author is arguing here is that the Supreme Court should have the authority to arbitrarily make a decision that affects another branch of government. Once it makes this decision, the other branches of government are obliged to abide by this decision or face prosecution for contempt of court.

    Taken to its logical conclusion, this situation results in a crippled government in which the executive and legislature are in constant fear of being declared in contempt of court whereas there are absolutely no checks and balances on the ability of the Supreme Court to make whatever decision they like. No matter what they decide, defenders of the Court will argue that since they are the highest court in the land, they have the right to act as they are acting. Tomorrow, for example, the court could declare that the entire Constitution be re-written to be in line with the Objectives Resolution. Any government that refuses to enforce this will immediately be declared to be in contempt of court. Is this a situation that we are willing to accept?

    Really, this is only an issue because we have a parallel government in the form of the Establishment. As Alexander Hamilton said of the US Supreme Court, “it may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Of course this is not an endorsement to the executive to disobey the Supreme Court – but in a state like the US, it’s merely a statement of reality – the Supreme Court knows that it cannot force the executive to enforce a decision that the executive violently disagrees with, which is an incentive for the court to practice a degree of judicial restraint. However in Pakistan, there is a parallel government in the form of the establishment. The Court knows that in the case where the executive is unwilling to enforce its decision, it can appeal – or make common cause with – the parallel government and have its decision enforced by it. This bypassing of the executive to enforce its decision essentially disempowers the executive and leads to – as we see – a breakdown of the functioning of the state which is where we are right now.

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  • faraz
    Jan 18, 2012 - 3:49AM

    When Musharraf declared state of emergency in 2007, Iftikhar Chaudhary convened a seven member bench and issued an interim order against the action. He specifically directed the armed forces not to obey Musharraf’s orders, but they did. Corps commanders including Kiyani should have been prosecuted for contempt of court.

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  • Mirza
    Jan 18, 2012 - 4:19AM

    You said ” in the minds of the government’s defenders, is that the court is purposely targeting the PPP at the behest of the army.”
    It is not just in the minds of govt defenders, it has been the history of SC and LHC. This PCO SC is no exception when it justified Mush’s takeover. In fact there has not been a single military takeover that the SC did not love and endorse. It is the entire history of SC, that does not pass the smell test.

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  • Jan 18, 2012 - 5:12AM

    @ Sindhvoice:
    Few questions for you?Food for thought from history?

    None of which addresses the issue of the veracity of the CURRENT cases taken up by the Supreme Court against the PPP.

    Janab, two wrongs do not make a right – just because injustice might have been done in the past does not mean that we continue to allow injustice and corruption to continue.

    If we accept your argument, then the next government will cry and whine about ‘past injustice and how the PPP was not punished by the Supreme Court’, and should we then also allow the next government to get away with corruption?

    Any justice, even if selective, is welcome. The argument should be whether the current cases against the PPP are constitutionally valid or not, and not about allowing the PPP to get away with corruption and injustice because other governments in the past managed to do so.

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  • atif
    Jan 18, 2012 - 9:27AM

    brilliant, if courts decisions are not implemented, result is anarchy when every one will refuse to accept decisions. courts must use all powers whatever it means to ensure rule of law, decision should be implemented in any case

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  • Umair Tarrar
    Jan 18, 2012 - 12:26PM

    “Contempt of court.” End of story. Great article.

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  • lubna
    Jan 18, 2012 - 2:31PM

    @John B
    The SC is a check and balance on the executive. Further, the ineptness and corruption of the current regime is what that brought this upon them. Would the citizenry have tolerated a proactive, belligerent judiciary if the economy was growing by 9% an year? They would have demanded the CJP’s head.

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  • Abbas from the US
    Jan 18, 2012 - 7:21PM

    @Rabia:

    Agree with your conclusions. The Supreme Court in any democratic setup can only pass good judgement, and interpret Executive decisions if contrary to legislation (and sometimes even the Surpeme Court in the US resorts to undue judicial activism not part of its mandate), enforcement is the perrogative of the Executive.

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  • jai zardari
    Jan 18, 2012 - 7:40PM

    the supreme court decisions should be referred to a separate body to check if these are influenced by personal intersts/inclinations .No institution should be totally free and above the wil
    of the peopl

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  • observer
    Jan 18, 2012 - 8:03PM

    @Agnostic Muslim

    The argument should be whether the current cases against the PPP are constitutionally valid or not,and not about allowing the PPP to get away with corruption and injustice because other governments in the past managed to do so.

    A, According to article 41(6) The validity of the election of the President shall not be called in question by or before any court or other authority.
    So that is the Constitutional position

    B. Even after keeping Mr Zardari incarcerated in prison Gen Musharraf and the Judiciary of which the current CJ was a part, could not prove a single case of corruption.
    And that is the position in regard to ‘corruption’.

    C. In 1999 a lot of Judges took oath under PCO, and some more did the same in 2007 under another PCO. The beneficiary of 1999 PCO decided to sit in judgement over the beneficiaries of 2007 PCO.And NRO.
    And that is that about selective justice.

    Whatever else it is, constitutional and valid it certainly is not.

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  • Sufi Shah
    Jan 18, 2012 - 8:25PM

    Nadir Hasan for PTI’s information minister. A man of integirty and vision.

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  • Ahsan Mansoor
    Jan 18, 2012 - 9:46PM

    B. Even after keeping Mr Zardari incarcerated in prison Gen Musharraf and the Judiciary of which the current CJ was a part, could not prove a single case of corruption.

    This is factually incorrect. Zardari is convicted in Swiss cases. He went into appeal against the conviction. Thanks to NRO, the proceedings were ended.

    Too bad Tribune did not allow my line by line reply to Sindhvoice. Maybe it was too long.

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  • Menon
    Jan 18, 2012 - 9:48PM

    Completely wrong view show lack of understanding as to how Democracy works. You never want judiciary and the military in cohoots, it will end up in catastrophe you have never seen.

    Power must reside with the elected representatives of the people. If elected corrupt ones, it is your fault and no one elses, if they don’t deliver what you expected throw them out by peaceful means. Citizens have the ultimate responsibility to make democracy work and hold representatives accountable and you cannot delegate it to the judiciary or the military.

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  • Jan 18, 2012 - 10:05PM

    What is pakistan?Whether its a Memo scandal case or it is NRO implementation case Pakistan’s Supreme Court is making itself a political force, SC is continuously growing its pressure over a democratic Government and it’s actions and methods may even trigger a Military Coup. Despite all the bad governance, incompetence and spineless decisions by the Government but it does not mean SC should become in-charge of everything, we must remember the Difference between being appointed and being elected, (http://707monty.blogspot.com/2012/01/supreme-court-is-making-itself.html) these Judges are appointed not elected and the Prime Minister is only answerable to Parliament not to the people who are appointed by him.

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  • observer
    Jan 18, 2012 - 10:15PM

    @Ahsan Mansoor

    Please revisit my post again. It is about no conviction by the Govt and judiciary in Pakistan. The Swiss ‘conviction’ was for contravention of Swiss laws.
    Now, this Supreme Court has already held in the case of Mansoor Ijaz, that he will not be arrested as he has not violated any laws IN PAKISTAN. I hope you are not suggesting the SC should adopt two different positions on this.

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  • Jan 19, 2012 - 3:50AM

    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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  • You Said It
    Jan 19, 2012 - 4:52AM

    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.

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