Recently in obvious “unholy haste”, a legal phrase often used by the House of Lords, Pakistan’s Parliament enacted a new contempt legislation that aims to oust from the purview of the contempt law officers of highest level from the punishment that is envisaged by it. Its avowed self-indulgent purpose is so obvious as to manifestly undermine the credibility of its movers and supporters. Its raison d’etre is so prima facie self-serving that it is utterly mind boggling how the members went ahead to enact this malicious piece of legislation. Yet, that has happened and now the matters would be debated in the courts to determine if this kind of objective can be legitimately realised within the constitutional scheme of things.
On July 12, the Supreme Court (SC) through a three-judge bench comprising Justice Nasirul Mulk, Justice Asif Saeed Khosa and Justice Azmat Saeed Sheikh heard the NRO implementation case and ordered the Attorney General to get appropriate orders from Prime Minister. It was made clear that new PM must write to Swiss authorities. It was further ruled he was bound to implement the court’s order by July 25.
Earlier, on June 27, the bench had given the new PM two weeks to indicate whether he would ask the Swiss authorities to reopen corruption cases against President Asif Zardari. The SC ruling said: “The Prime Minister/Chief Executive shall cause a report to be submitted before this court regarding compliance of the directions (in the July 25th hearing).” It was also clearly observed by the court that if the PM fails to implement the order, the court could take any action against him in accordance with the Constitution.
It is worth reiterating that the court on June 19 had dismissed Yousuf Raza Gilani as PM after convicting him of contempt in April for refusing to reopen the multi-million-dollar cases against the President. The allegations against President Zardari dates back to the 1990s, when he and his late wife, former premier Benazir, were accused of using Swiss Bank accounts to launder $12 million paid in bribes by two blue ribbon Swiss companies seeking customs inspection contracts.
The Swiss shelved the case in 2008 when the present government through the then Attorney General, Malik Qayyum, asked for the proceedings to be dropped. Zardari then became President and the government had been generally “insisting” that he had full immunity. But in 2009, the court overturned the NRO - a political amnesty that had frozen investigations into the President and other politicians - ordering that the cases, including the Swiss cases, be reopened.
Against this backdrop, the PPP government hastily passed the Contempt Law 2012 by withdrawing the 2003 law on this subject and specifically attempting to save the new PM from being ousted through a possible contempt conviction by the SC; it had already been made abundantly clear by the PPP leadership that no PM would write the letter asked for by the judiciary! In other words, the courts may say what they will; the political loyalty of the PPP to Zardari would weigh more heavily with the party.
The bill was enacted on the same day, as the SC was hearing the NRO implementation matter. The Senate’s proceedings revealed that it was in poor taste as it was not supported by all the factions of the government. Once again, the opposition boycotted the proceedings. Of particular interest is the ‘awareness’ of some PPP lawyers, who addressed the Senate saying that the SC may well strike down the some provisions that had been crafted specifically to save the new PM from possible conviction. It was thus a cognitive attempt by the PPP lawmakers to oust the constitutional jurisdiction of the highest court of the country in cases of ultimate defiance by the top of the executive branch of the state.
Even before the process could be issued to an actual contemnor, the law was challenged in the SC through various petitions filed from Quetta to Islamabad to Lahore. The bench after hearing the matter in a preliminary hearing ordered to combine all petitions of such sort (filed against the Contempt of Court Act 2012) and adjourned the hearing to July 23. Now, the next hearing will be on August 8.
The emergent matters will thus be decided by the court; I do think that the law is so patently defective as to leave little doubt about the possible outcome of this litigation in which it is manifest that the newly inducted PM may well have to go back home - much like his predecessor if he fails to honour the court’s specific orders.
Let us, therefore, very briefly look at this perspective from both legal and sociological reasons, which prompt one to submit as I have done in this article that the law would be struck down. Keeping in view the powerful state machinery, police and bureaucracy, the contempt law was imperative for the judiciary to get its judgments implemented. The PPP lawyers opposing this bill in the Senate had themselves remarked that “if the contempt law were to be repealed, the executive would become unbridled and it would resort to tyranny.”
Further, one should not forget that those who are in the government may tomorrow be sitting on the opposition benches. Legally, therefore, we have to see the combined effect of the following provisions of the Constitution. Article 248(1), A 204, A 199, A 109 and A 25 would be the touchstone of the major arguments for the petitioners’ and there is quite clearly a strong possibility that the law would be set aside. This law purports to exempt the “holders of public office” from contempt in “exercise of powers and performance” of functions and allows for suspension of any sentence during an appeal. The bill was essentially enacted in the parliamentary proceedings by the National Assembly and the Senate respectively.
It may be noted that Section 3(1) of the law is about special immunity and it is submitted respectfully that the court might strike it down. This new provision is in direct clash with Article 204 providing for the preservation of the court’s inherent powers to punish for contempt. In previous attempts whenever the Pakistani authorities tried to grant “immunity” to some identifiable persons, it was consistently struck down and it thus proved to be counterproductive.
In particular, the 2012 law offends the twin notions embedded in the Constitution, i.e. of equality before the law and the fundamental principle of the independence of judiciary. If the power to punish those who would normally be in a position to do so is taken away, then what remedy does the court have to punish those who act defiantly to the directions of the court? I was in Washington recently when the US Attorney General was cited for contempt by the Congress. It was clearly a sobering occasion as it pressed home to all concerned the respect that the Constitution grants to institutions of the Republic through the mechanism of the contempt law and that no one is exempted from its operations.
Lastly, the great significance is invariably given to the supremacy of the verdicts of courts, who remain the ultimate arbiters of the interpretation of the Constitution. Since the matter has been thought through with the aim of achieving a preconceived subrogation of the constitutional scheme, it is possible in my submission to lodge a prosecution for treason as well that deals with this aspect of the treason laws.
The writer is barrister at law (US and UK), senior advocate of the Supreme Court of Pakistan, and professor at Harvard University.