ISLAMABAD - The Supreme Court on Tuesday observed that there was no need of the Contempt of Court (CoC) Act 2012in the presence of Contempt of Court Ordinance 2003.
The remarks came as a five-judge bench led by Chief Justice Iftikhar Muhammad Chaudhry – also comprising Justice Mian Shakirullah Jan, Justice Tassaduq Hussain Jillani, Justice Jawwad S Khawaja and Justice Khilji Arif Hussain - heard 26 identical petitions filed by lawyers’ bodies, including Pakistan Bar Council (PBC).
The chief justice said the Contempt Ordinance 2003 enjoyed protection under 18th Amendment, adding that it was also a properly considered law in 2010, when the parliamentarians passed the 18th Amendment.
Expressing concern over changing the laws overnight, the chief justice said in the parliamentary system, there was a procedure to frame laws, adding that they did not blame anyone, but it seemed the maker of the law had made a mistake. Justice Khawaja remarked it was made to give immunity to the privilege class.
Advocate Liaquat Qureshi, a petitioner, argued that new law was not thoroughly debated before legislation, after which the chief justice inquired could the Contempt of Court Act 2012 be struck down on the aforementioned ground.
Hamid Khan, the counsel for Karachi Bar Association, said the new contempt law had been passed in hurry and it was a replica of Contempt Act 1976, adding that only the clause related to immunity to the president, prime minister, governors, chief ministers and ministers was a new one.
He further argued that the Section 4 had been inserted in the new legislation to make the court orders ineffective. The chief justice said if the 1976 Act was very good then it would have not been repealed, adding that the Section 4 had been included so that punishment could not be awarded to the contemnors.
The counsel said the Article 204(2) said; “A court shall have power to punish any person who, abuses, interferes with or obstructs the process of the court in any way or disobeys any order of the court. Scandalizes the court or otherwise does anything which tends to bring the court or a judge of the court into hatred, ridicule or contempt.”
But, he said, the new law had curtailed the power of the court, which was unconstitutional. “The framers have taken out number of people from the constitutional provisions.”
He argued that the entire edifice of CoC Act 2012 was based on the false premise of the constitutional provisions and assumptions. He said according to the makers, the purpose of the new law was fair trial, full opportunity and transparent proceeding.
The chief justice remarked that under the Contempt Ordinance 2003, the contemnor was also given full opportunity, adding that show-cause notices and statements were recorded and the evidences provided.
Justice Jillani inquired when there was immunity to the president, governor, prime minister, federal ministers, ministers of state, chief ministers and provincial ministers under Article 248 of the Constitution, then why need was felt for the new law.
Hamid replied that all the public office holders had been included in the CoC Act 2012.
The court observed that there was a trend throughout the world to minimise the scope of immunity, but the people at the helm of affairs in Pakistan were extending it to the public office holders.
The chief justice said the new law was totally criminal as there was no distinction like that of Contempt of Court Ordinance 2003, wherein there was civil, criminal, and judicial contempt.
Hamid said: “Actually, the government wants to snatch the court power of regulation mentioned under Article 204 (3) of the Constitution in the garb of new act.”
He said according to the CoC Act 2012, the contempt law in Pakistan remained only for the ordinary citizens and not for the rulers, adding it militated the supremacy of the law. He said the biggest violator of the fundamental rights was the government itself. If the court would not be able to enforce its verdicts then there would be no use of delivering judgments, he added. “The new law deprive people of their fundamental rights.”
The chief justice remarked that the court did not have personal vendetta against anyone but like to enforce the law.
Justice Khawaja said 40 to 50 thousands writ petitions were filed at the principle seat of the SC every year, with a similar number at the branch registries.
“The purpose of the writ petitions is that private citizens to be protected against the government or the state functionaries. After the enactment of CoC Act 2012 the public office holders would not care about the law.”
He added that the court judgments would be declaratory if there would be no enforcement of them and would become meaningless and mere piece of paper.
Hamid argued sections 3, 4, 7, 8, 11 and 12 of the Contempt Act 2012 are the ultra vires of the Constitution, saying if these sections were removed from the new law, then the entire legislation could not survive.
Hamid Khan, who earlier gave the history of the contempt law in Pakistan and also comparison of different contempt law promulgated in the country at different times, concluded his arguments.
Ashraf Gujar, former president of Islamabad High Court Bar Association contended that the CoC Act is against the basic theme and main structure of the constitution and it aims at creating different classes.
The hearing was adjourned till today (Wednesday).
Agencies add: The Attorney General of Pakistan has said that the parliament have unlimited powers and even can curtail judiciary’s powers.
Talking to the media before the hearing of contempt law case in the Supreme Court, Attorney General of Pakistan (AGP) Irfan Qadir said that parliament is supreme and it can carry out any kind of legislative amendments.
The parliament can also curtail judiciary’s powers and its constitutional amendments cannot be challenged in the court, he added.