ISLAMABAD - The counsel for the Federation on Wednesday submitted the record of parliamentary proceedings regarding the Contempt of Court (CoC) Act 2012 before a five-member bench of Supreme Court.
On the other hand, Chief Justice Iftikhar Muhammad Chaudhry said they only wanted to check how much time the parliamentarian spent on debating the bill, as the court observed that the opposition should not have walked out from the National Assembly proceedings, when the debate on the CoC Act 2012 was going on.
During the hearing, the chief justice observed that immunity was meant for performing functions in the official capacity and not in the personal functions.
Justice Khilji Arif Hussain said the members’ walkout was injustice to the voters, who had elected them to raise their issues in the Parliament. He said the parliamentarian instead of boycotting the session should take part in the assemblies’ proceedings.
The chief justice said by participating in the debate, the members could present their point of views.
Justice Tassaduq Hussain Jillani said: “I have never heard that the opposition staged walkout in the US Congress,” while prominent lawyer AK Dogar remarked it was never heard that martial had been imposed in any country four times.
During the proceedings, Dogar argued the Parliament could legislate on those subjects given in the federal legislative list, adding that the Concurrent List had been abolished after the 18th Amendment; therefore, the provincial assemblies were now empowered to legislate on the issues falling within their domain.
He pleaded that the new law should be struck down as it was a case of ‘stillborn’. When the chief justice asked him to explain his argument, Dogar said the CoC Act 2012 was constitutionally a dead law.
He said the definition of contempt, given in Article 204, could not be altered by the new law. “Not a single word or full stop of comma can be changed in it,” he opined, adding that not obeying or defying the court order was contempt.
Justice Khilji remarked that it depended on the person because all the court orders were legal. He said considering the court orders illegal amounted to frustrate the entire judicial system. The court observed by giving immunity to all the public office holders under the new contempt, the draftsman was taking the court to the dangerous area, where it did not intend to.
Justice Khilji said that they wanted to maintain judicial restraint.
The chief justice said if the court did not give exemption to the persons listed in the CoC Act 2012 then it might be possible not to grant immunity to the President of Pakistan and the governors. The court observed that the president and the governors were entitled to immunity under criminal law. It showed mala fide intention, if the prime minister or the ministers flouted the court orders and argued they were taking the actions under question in good faith.
The chief justice remarked that immunity was for performing functions in official capacity and not in the personal functions. He said Richard Nixon and Bill Clinton were not given immunity, adding that violating the court order meant contempt.
Justice Shakirullah Jan said the contempt of court was not necessarily civil or criminal, but it could be sui generis (of its own nature).
The chief justice said under Article 204 of the Constitution, there was only contempt and not civil or criminal contempt.
Dogar stated that the Constitution revolved around the concept of equality, which was the basis of everything. He said clauses 1 and 2 of Article 248 were inconsistent with the fundamental rights, as he added it was the opinion of lawgivers that whoever had been mentioned in the Article 248 were not exempt from the contempt.
“The contempt of court is the only tool in the armoury of the court,” he added.
Objecting to the lengthy procedure given in CoC Act to punish the contemnor, Justice Shakirullah Jan said the punishment should be swift and prompt as the Article 37 (d) said the state shall ensure inexpensive and expeditious justice.
Azhar Siddique argued that there was no need of contempt law as court could punish anyone for committing contempt under Article 204 of the Constitution. Abdur Rehman Siddiqui, AK Dogar and Azhar Siddique have completed their arguments on Wednesday.
The hearing was adjourned till Thursday.