Supreme Court declares Contempt of Court Act 2012 illegal -Pakistan Press Foundation (PPF)

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Supreme Court declares Contempt of Court Act 2012 illegal

By: Sohail Khan

ISLAMABAD: The Supreme Court on Friday struck down the Contempt of Court Act, 2012, after declaring it unconstitutional, void and non est, and ruled that the Contempt of Court Ordinance 2003 shall be revived with effect from July 12, 2012.

On July 12, 2012, President Asif Ali Zardari had enacted the Contempt of Court Act, 2012, after the National Assembly passed it under Section 248(1), exempting all government office holders, including the prime minister and all other ministers, from court proceedings under contempt charges.

A five-member bench of the apex court, led by Chief Justice Iftikhar Muhammad Chaudhry and comprising Justice Mian Shakirullah Jan, Justice Khilji Arif Hussain, Justice Jawad S Khwaja and Justice Tassadduq Hussain Jilani, announced the judgment on 27 identical petitions challenging the act.

The court, in its 21-page short order, announced that the petitions were maintainable under Article 184(3) given that questions of public importance with reference to of fundamental rights were involved therein.

The court ruled that under Article 204 read with Entry 55 of the Fourth Schedule to the constitution, only the high court’s and the Supreme Court had powers to punish any person found guilty for contempt of court falling within the definition of contempt of court given in Clause (2) of Article 204. “Section 2(a) of Contempt of Court Act 2012, which defines the word ‘judge’ as including all officers acting in judicial capacity in administration of justice, is contrary to Article 204(1) as under the latter provision, the court means the Supreme Court or a high court,” says the short order, adding: “Section 3 of the act as a whole is void and contrary to articles 4, 9, 25 & 204(2).”

Giving the reasons, the court ruled that the acts of contempt liable to be punished mentioned in Article 204(2)(b) and some actions of contempt of court falling under Article 204(2)(c) have been omitted from the definition of contempt of court given in Section 3 of the act.

“Contempt of Court Act 2012 has been promulgated under Clause 3 of Article 204, which confers power on the legislature to make law to regulate the exercise of power by courts, and not to incorporate any substantive provision or defences as it has been done in the proviso,” the court ruled in its judgment.

The court observed that powers of the courts had been reduced by incorporating the expression ‘by scandalising a judge in relation to his office’ whereas in Article 204(2), the word ‘court’ has been used. Similarly, the definition provided by Section 3 runs contrary to the provisions of Article 63(1)(g) according to which, if a person has been convicted/sentenced for ridiculing the judiciary, he will be disqualified to hold a public office, and in Section 3 this expression has been omitted and instead of institution of judiciary, scandalisation of a judge has been confined in relation to his office.

The short order further maintained that by enacting provisos (i) to (xi) to Section 3, immunities/defences have been provided, whereas no such provision exists in the constitution; and the proviso (i) to Section 3, which grants exemption to the public office holders mentioned in Article 248(1) from the contempt of Court is violation of Article 25 as under Article 204(2), the court is empowered to punish ‘any person’ for its contempt without any exception.

“Incorporation of Article 248(1) in proviso (i) to section 3 is tantamount to amending the constitution, which cannot be done without following the procedure laid down in articles 238 and 239,” the short order ruled.

The judgment ruled that Article 248(1) had not granted immunity to any public office holders mentioned therein from any criminal proceedings, therefore, by means of proviso (i) to Section 3, no immunity can be granted to the public office holders in violation of Article 25.

“The terms and phrases used in provisos (i) to (xi) to Section 3 are ambiguous and absurd and are meant to give benefit to contemners who have no respect for the judgments of the courts, therefore, the said provisos being contrary to the principle of equality before law are void,” says the judgment.

The court further ruled that under Sub-section (4) of Section 4, the effect of earlier judgments has been nullified by pronouncing a legislative judgment without removing the basis on which the judgments were pronounced, which is a violation of the fundamental right of access to justice as enshrined in Article 9 and this provision also runs contrary to Article 189; therefore, this provision is void. The court added that Section 6(2) was not sustainable because of declaration of Section 3 void as a whole.

Similarly, the judgment ruled that Section 6(3) encourages and promotes the commission of contempt of court by postponing cognizance of a contempt of court arising from an averment made in due course in appellate, revisional or review proceedings, till such proceedings have been finalised and no further appeal, revision or review lies, although to maintain the dignity and respect of the court, prompt action to punish the contemner is called for.

“As any delay in this behalf will not only erode the dignity, but would also promote the tendency of disrespecting the courts and their orders, therefore, this provision being contrary to the principle of independence of judiciary and access to justice as enshrined in articles 2A and 9 is void,” says the short order.

The court further maintained Section 8 relating to transfer of proceedings was tantamount to curtailing the judicial powers. Sub-section (1) of section 8 is not sustainable because instead of the phrase ‘scandalising the court’, the expression ‘scandalising a judge in relation to his office’ has been used. “This subsection also runs contrary to the recognised principle of punishing any person who is guilty of contempt on the face of the court where a prompt action to maintain the dignity of the court is called for,” says the short order.

The court ruled that transfer of proceedings from one judge and bench to another was the prerogative of the chief justice as the administrative head of his court, which could not be controlled by the legislature, therefore, Sub-section (3) of Section 8 is violation of the principle of independence of judiciary.

The court maintained that under Sub-section (5) of Section 8, the legislature could not exercise power of transferring a case from the file of the chief justice to next senior judge as it would be against the independent functioning of the court and legislative interference in this behalf was tantamount to undermining the authority of the chief justice and other judges as well. As such, this provision too is not sustainable.

The judgment further ruled that Section 10(b) was a violation of fundamental rights of freedom of speech and expression enshrined in Article 19, which is subject to a reasonable restriction, inter alia, in relation to contempt of court and Article 68, which provides that no discussion shall take place in parliament with respect to conduct of a judge of the Supreme Court or a high court.

“By means of Article 270(AA), the Contempt of Court Ordinance, 2003, which was promulgated on December 15, 2003, continued in force till July 12, 2012, the day on which Contempt of Court Act 2012 was promulgated. In enacting section 13, which repeals Contempt of Court Act 1976, and the ordinances of 2003 and 2004, no reason has been assigned for the repeal of the same,” says the short order.

The court ruled that after having found various provisions of Contempt of Court Act 2012 as ultra vires the constitution, ‘we are of the opinion that the remaining provisions of the impugned legislation, if allowed to stay on the statute book, would serve no purpose particularly, when it has been held that repealing section itself is a nullity; therefore, the principle of severability as applied by this Court in Mehram Ali vs Federation Pakistan (PLD 1998 SC 1445) and Dr Mobashir Hassan’s case is not attracted’.

“Thus, having been left with no constitutional option, Contempt of Court Act 2012 is declared unconstitutional, void and non est, as a consequence whereof, following the dictum laid down in Attorney General for Alberta vs Attorney-General for Canada (AIR 1948 PC 194), it is declared that the Contempt of Court Ordinance, 2003 shall be deemed to have revived with effect from July 12, 2012, the day when Contempt of Court Act 2012 was enforced with all consequences,” the short order concluded.

Meanwhile, soon after the short order, Muhammad Ikram Chaudhry, counsel for one of the petitioners, termed the court’s judgment another historic judgment of the apex court.

“The judgment proves that the country’s highest court has the jurisdiction to interpret laws which are repugnant to the constitution and a violation of basic fundamental rights,” Ikram Chaudhry told The News. He said the legal fraternity was determined to extending all-out cooperation to the country’s highest court to uphold rule of law and supremacy of the constitution.

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