Immunity with impunity

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 30^th, 2012.