The Supreme Court on Friday declared the Contempt of Court Law 2012 unconstitutional, void and non-est, and revived the Contempt of Court Ordinance, 2003 with effect from July 12, the day when the new law was enforced with all consequences.
Chief Justice Iftikhar Mohammad Chaudhry read out a 21-page short order in the open court. Earlier, Attorney General for Pakistan Irfan Qadir concluded his arguments before the five-judge bench in favor of the newly-enacted law.
While reading out the order, the chief justice said all petitions were maintainable under Article 184(3) as questions of public importance with reference to enforcement of fundamental rights were involved. He said under Article 204 read with Entry 55 of the Fourth Schedule to the constitution, the high courts and the Supreme Court had powers to punish any person who was found guilty of contempt of court falling within the definition of contempt of court given in clause (2) of Article 204.
“Section 3 of the COCA 2012 as a whole is void and contrary to the Articles 4, 9, 25 & 204(2) of the constitution for the reasons 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 COCA 2012,” said the order. The court said COCA 2012 had been promulgated under clause 3 of Article 204, which conferred power on the legislature to make law to regulate the exercise of power by the courts, and not to incorporate any substantive provision or defenses as it has been done in the proviso. “Powers of the courts have been reduced by incorporating expression ‘by scandalizing 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) of the constitution according to which, if a person has been convicted/sentenced for ridiculing the judiciary, he will be disqualified to hold a pubic 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 order said. The court also declared subsection (4) of Section 4, Section 6(2), Section 6(3), Section 8, Section 10(b), Section 11(3) and various others unconstitutional. The CJ said the transfer of proceedings form one judge/bench to another judge/bench was the prerogative of the chief justice being administrative head of his court, which could not be controlled by the legislature, therefore, subsection (3) of Section 8 was in violation of the principle of independence of judiciary. “Under subsection (5) of Section 8, legislature cannot exercise power of transferring a case from the file of chief justice to next senior judge as it would be against the independent functioning of the court and legislative interference in this behalf is tantamount to undermining the authority of the chief justice and other judges as well. As such, this provision too is not sustainable,” he added. Earlier, during the hearing of the case, Chief Justice Iftikhar Mohammad Chaudhry remarked that the immunity provided by the new law was contrary to the fundamentals of the constitution and Sections 6 and 8 of the new law were unconstitutional and were against the freedom of judiciary. The Section 11, which says that a hearing will be suspended when an appeal is filed, was also declared against the freedom of the judiciary, with the chief justice stating that the new law was contradictory to the Article 4 and 9 of the Constitution. No government official can be given any immunity, the bench maintained, adding that the 2003 contempt of court ordinance will now come into effect. Earlier during the hearing, Attorney General Irfan Qadir completed his arguments and petitioners were ordered by the chief justice to give rejoinders as written statements due to lack of time. Qadir argued that the words of the constitution should be “given new meanings” in accordance with the law, leaving the bench in
a shock.
“You are the attorney general of Pakistan, how can you make such a statement?” remarked Chief Justice Iftikhar Mohammad Chaudhry, with Justice Tassaduq Jilani warning, “You should know the consequences of such a statement.” Justice Khawaja remarked that such a statement was not possible.
No immunity for contemnors
