ISLAMABAD - The Contempt of Court Act 2012 is a colourable legislation, as it was beyond the legislative competence of the Parliament, and accordingly unconstitutional and void, said the detailed judgement announced on Saturday.

The judgement found sections 2(a), 3, 4(4), 6(2) & (3), 8(1), (3) & (5), 10(b), 11(3) [first and second provisos], (4) & (5), 12 and 13 of the COCA 2012 unconstitutional and void on the touchstone of different provisions of the Constitution, particularly Articles 2A, 4, 8, 9, 10A, 25, 175, 204, etc.

The short order was announced on 03.08.2012. Justice Jawwad S Khawaja and Justice Khilji Arif Hussain have written additional notes.

The Act was challenged through various constitution petitions, inter alia, praying that the Contempt of Court Bill/ Law 2012 be declared ultra-vires the Constitution and against Article 8 of the Constitution and that the impugned Bill/ Law is violative of Articles 2A, 4, 5, 25, 175, 203, 204 and 248 of the Constitution.

The judgment authored by Chief Justice Iftikhar Muhammad Chaudhry noted that Entry 55 of the Federal Legislative List (Fourth Schedule to the Constitution) authorises the Parliament to make law on jurisdiction and powers of all courts with respect to any of the matters in the said list to such extent as is expressly authorised by or under the Constitution.

Thus, the said Entry on the one hand limits the legislative power of the Parliament to the making of any law on the jurisdiction and powers of the Supreme Court, and on the other hand empowers the Parliament to make law for enlargement of the jurisdiction of the Supreme Court.

The jurisdiction of the Supreme Court may be extended territorially like adhering to Articles 246 and 247 as well as to confer further judicial powers and also conferring supplemental powers to expand the scope of the powers, which it is already exercising.

Under the scheme of the Constitution, the Supreme Court is empowered to deal with the matters falling within various types of jurisdiction conferred upon it, i.e., original, appellate, advisory and review. By virtue of Article 189 of the Constitution, a decision of the Supreme Court to the extent it decides a question of law is binding on all other Courts in Pakistan whereas under Article 190 of the Constitution all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court.

Article 204(2)(d) and Article 204(3) confer two different types of power on the Parliament. Under the former, the Parliament is empowered to make law providing for more offences of contempt of the Court, which is clear from the wording used therein, i.e. “does any other thing which, by law, constitutes contempt of the Court”. In other words, here the Parliament is empowered to add to the offences already described in Article 204(2)(a), (b) & (c). On the other hand, under Article 204(3) the Parliament is empowered to make law to regulate the exercise of power conferred on a Court under this Article.

Many provisions of the impugned Act are designed to achieve a particular object. The judgment said that the counsel for the federal himself said that the newly elected Prime Minister may not be confronted with the situation which Syed Yousaf Raza Gilani had faced.

Repealing the Contempt of Court Ordinance, 2003 and adopting the Contempt of Court Act, 1976 model, the Parliament did not highlight what was the mischief and defect which the said law did not provide for, and hurriedly enacted COCA 2012 without taking into consideration the requirements of mischief rule because of the apprehension of the Federation

The Contempt of Court Ordinance V of 2003 has been given permanence by the Seventeenth & Eighteenth Constitutional Amendments, which aspect has not been touched upon under the Nineteenth and Twentieth Constitutional Amendments. Therefore, its repeal is a nullity in the eyes of law. In this view of the matter, section 13 of the Act, being contrary to Article 204(3) of the Constitution is void ab initio.

Jawwad S Khawaja made distinction between the disobedience contempt and the scandalisation of the court. He cited some figures that in the year 2009, there were 131 contempt cases filed in Court.

These all were cases where an order had been disobeyed and had nothing to do with scandalisation of the court or a judge. In 2010, 129 of the total 130 contempt cases instituted pertained to disobedience and only one alleged scandalization. In 2011, of the 110 contempt cases instituted, only one case pertained to scandalisation.

In the current year there have been 77 contempt cases so far. Of these 20 are by petitioners who have sought contempt proceedings against individuals who allegedly have scandalized a Court or judge. Of these 77 cases only 3 have been initiated by the Court itself and are yet to be decided.

He said every person and authority in Pakistan is duty bound to obey the Constitution and the law. In law-abiding nations of the world, the power to punish contemnors does not only exist, but it has also been used whenever required to enforce Court Orders. The world history is full of examples of persons, public figures of the highest standing amongst them, who were punished by courts for contempt.

It is, therefore, unfortunate that instead of adhering to the Constitution, the Contempt Act was enacted in violation of the same.

Societies, which have attained the rule of law have done so at a price. And that price, we too must be prepared to pay. Once they have passed a judgment, the government of the day is required to implement it.

The power of punishing contemnors for disobedience is meant more to be a deterrent than a weapon of aggression. Generally, in a country where the rule of law prevails, a situation of this sort should never arise. A government of laws cannot be created or continued with toothless courts and defiant or blithely non-compliant public functionaries.

Justice Khilji Arif Hussain said that in the administration of justice in a true democratic state, it is in the courts and not in the legislature that the citizens of such a state primarily feel the keen, cutting edge of the law. It means that the actual law, be it enacted or customary, is what the courts interpret and finally enforce. This is the power/ function through which the judiciary can enforce the rule of law. Therefore, there is absolute need to respect the decisions of the courts.

The Law of Contempt is not to punish a person by a Court under Article 204 of the Constitution for Contempt of Court nor is for some personal ego of the Judges of the Superior Courts, but is to ensure the independence of Judiciary in terms of Article 194 read with Preamble and Article 2A of the Constitution and Entry 55 of the Federal Legislative list which further limits the Legislative Power of the Parliament, in respect of the jurisdiction of the Supreme Court.