Regulating contempt

By accepting contentions of petitioners, ignoring argument of government, SC has exposed itself to perception of bias.

While striking down the recently-promulgated Contempt of Court Act of 2012, the Supreme Court of Pakistan declared that “the Contempt of Court Ordinance, 2003 shall be deemed to have revived with effect from July 12, 2012, the day when the Act was enforced with all consequences”. In doing so, the Court has incongruously shown preference for a law passed by a dictatorial regime over a law passed by a democratically-elected parliament!

This is the second instance where the Constitution’s interpretation by the Honourable Supreme Court is likely to further tilt the delicate balance of power in favour of the judiciary. The judiciary seems to have effectively appropriated the power of the executive to appoint judges by using judicial influence to have the Nineteenth Constitutional Amendment passed. Parliament appears to have unwittingly succumbed to judicial will without any consideration of the consequences. This time the consequence of the Court’s order would be to take away the legislative power to regulate contempt of court.

Whatever the merits of the present case, the order appears to be unwarranted for two reasons. First, it has misconstrued the constitutional provision regarding contempt of court by negating the legislative right to regulate exercise of power by the Court. Second, it has acted excessively by striking down the whole law rather than preserving the procedural provisions thereof intended to provide an opportunity to the accused to have a fair trial, including the right to appeal.

The constitutional mandate for contempt of court is laid down in Article 204 of the Constitution. Article 204(1) and (2) empower the Supreme Court or a high court to punish any person who commits any act of contempt specified therein. However, Article 204(3) provides: “The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court.” The exercise of this power can thus be regulated by law.

The Supreme Court observed in its Order: “As per preamble of the legislation under scrutiny, it has been framed in exercise of the powers conferred by Clause (3) of Article 204 of the Constitution, which provides that the exercise of the power conferred on a Court by this Article may be regulated by law and subject to law by rules made by the Court, but it does not mean that a statute can control or curtail the powers conferred on the superior Courts by the said Article, nor does it mean that in the absence of a statute on the above subject, the above Article would be inoperative.” While one can readily agree with the Court that a statute cannot curtail powers conferred on the Court, it is difficult to understand the logic behind the Court’s assertion that the statute cannot control the powers conferred on it.

The word “regulate” has been defined in Black’s Law Dictionary as follows: “To fix, establish, or control, to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws” (cited in PLD 2003 Lahore 73). The Oxford Dictionary similarly defines the word to mean control by means of rules and regulations. The Lahore High Court has also held the word “regulate” to be synonymous with word “control” or “govern” (1984 P Cr. L J 117 Lahore). The above-noted observation of the Court that a statute, mandated by the Constitution, cannot control the powers conferred on the Court appears, therefore, to be illogical.

The Court appears to have been wrongly swayed by the mistaken contentions made on behalf of the petitioners challenging the Act on the basis that it has: 1) usurped the powers of framing of the rules by the Courts; and 2) curtailed the power of the Courts instead of providing regulatory enactment to lay down the procedure for the trial of the contemners as provided in the Constitution and enlarging powers and scope of contempt of Court.

The Act had in no way usurped the rule-making power of the Court under Article 191 of the Constitution, which provides: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.” This general rule-making power of the Supreme Court is clearly subject to the Constitution and law. Furthermore, a plain reading of Article 204(3) clearly suggests that rules made by the Court would be subject to any law of contempt promulgated thereunder. Both the general and specific rule-making powers of the Court are, therefore, clearly subservient to both the Constitution and the law.

There is nothing in Article 204 that suggests that the purpose of the regulatory enactment contemplated in Article 204(3) is in any way limited to laying down the procedure for the trial of the contemners or intended to enlarge powers and scope of contempt of Court. The Constitution requires procedures to be regulated in several specific instances (e.g., under Articles 67(2), 203 E(2) and 231). The scope of Article 204(3) could similarly have been but are not limited to regulating procedural matters.

The assertions made by the attorney general in this regard were totally ignored by the Court. The Supreme Court had plenty of reasons to invalidate the substantive provisions of the Act. However, by accepting all the contentions of the petitioners while ignoring the arguments made on behalf of the government, the Court has unnecessarily exposed itself to the perception of bias.

The Court’s adherence to a mere dictum in an age-old judgment of the Privy Council (AIR 1948 PC 194) and not applying the principle of severability established in its own judgments to knock down the innocuous procedural provisions of the Act also exposes it to criticism for being selective. The Court would have been better served by its reliance on a full bench judgment of the Indian Supreme Court, which has held: “It must be remembered that wider the amplitude of its power … the greater is the need of care for this Court to see that the power is used with restraint without pushing back the limits of the Constitution so as to function within the bounds of its own jurisdiction. To the extent, this Court makes the statutory authorities and other organs of the state perform their duties in accordance with law, its role is unexceptionable but it is not permissible or the Court to ‘take over’ the role of the statutory bodies or other organs of the state and ‘perform’ their functions” (1998 INDLAW SC 688).

Published in The Express Tribune, September 7^th, 2012.