No surprises there
On Friday, in a much-anticipated move, the Supreme Court of Pakistan struck down the Contempt of Court Act, 2012 as void and unconstitutional. This decision came as a surprise to no one. No hyperactive reaction was seen from the government. No great celebrations took place among the opposition parties, and no dancing in the streets was done by the legal fraternity (that hardly needs an excuse anymore). Reason? The striking down of the impugned Act was an ‘as expected’ conclusion to its constitutional challenge.
The government has no one to blame, but itself. As I have written in the past, the Contempt of Court Act 2012 was a bad law – one that betrayed the idea of a classless society and failed the constitutional test on many accounts. If this was apparent to the all bar-councils, legal advisors to the opposition, and even pseudo-lawyer television anchors, then it must be assumed that the legal experts within the PPP knew how terribly conceived and shoddily drafted the Act was. Still, the government put its chips on defending the contempt law, hoping for either a miracle, or (at the minimum) as a tactic for buying some additional time for the PM.
The decision itself, though short in length, is dense in contents. It covers, almost sequentially, the entire contempt of court law and makes a clause-by-clause argument for why the Act is unconstitutional. And in so doing, the judgment of the honorable Supreme Court has not only removed this law from the statute books, but has also reasserted its judicial resolve to not allow the parliament to curtail the powers of the court or otherwise abrogate the limits of the constitution.
While the entire decision cannot be discussed at length here, it is pertinent to point out some of the themes that relay from the judicial decree. The court’s decision starts with a brief history of the different contempt of court enactments in Pakistan, before discussing the arguments raised by both sides, and then finally concludes with no less than 23 declarations. These conclusions/declarations primarily incorporate the following ideas: i) Article 204 of the Constitution gives court the power to punish “any person” that is convicted of contempt, and doesn’t envision distinctions or immunity for particular classes of individuals; ii) giving immunity to certain “public office holders” from contempt of court is a violation of Article 25 of the Constitution (discrimination); iii) granting immunity on the touchstone of Article 248 is invalid since Article 248 does not provide any protection against criminal proceedings; iv) per Article 204, read with Entry 55 of the Federal Legislative List, powers of the Supreme Court can be enlarged, but cannot be curtailed by the legislature; v) by defining ‘contempt’ as “scandalizing a Judge in relation to his office” (instead of using “Court”, as in Article 204) the law has attempted to tighten the circumference of contempt of court; vi) the automatic suspension of a contempt order, as envisioned by the (now struck down) Act, is an appropriation of the judicial function by the legislature; v) a legislated method of transferring cases from one bench to the other infringes upon the powers of the Chief Justice; vi) the law propagates delay in the dispensation of justice; vii) repeal of the previous contempt enactments has been done without assigning any reason; and viii) owing to these fatal flaws, no part of the legislation can be saved and thus it is being struck down in its entirety.
Result? Having sacrificed a PM and promulgated a new law only to have it be struck down, the PPP-led government is back where it started – at the starting line of Justice Khosa’s 10th January 2012 order, which lays out six possible options at the SC’s disposal.
The contempt saga and the issue of writing the letter has been a long and arduous journey for everyone. With the systemic problems of religious extremism, rising inflation, power-shortages and rampant corruption, this has been a journey that our poor nation could not afford.
Sadly, however, it is not over. The facts are these: the NRO judgment, having attained finality, still holds the field. And the directions given in paragraph 178 therein are still binding on the government. The incumbent PM, in this regard, has simply stepped into the shoes of disqualified Mr Gilani. And to expect any different a consequence for PM Ashraf will be foolhardy on part of the government. The law (NRO judgment) as well as precedent (Gillani’s conviction) bode badly for this PM.
I am not a fan of people making politico-legal predictions. So I am going to resist answering the inevitable question of: ‘abb kiya ho ga?’ The possibilities are sprawling! If the government refuses to write the letter, and the SC follows the principle of ‘let justice be done though heavens may fall’ to the till, PM Ashraf will have to go. There is also talk of showing judicial restraint against the PM, by SC’s writing the letter through a commission of some sort. On the other hand, if decency prevails in politics and the letter is written, the explosive situation will be defused at once. After all, only a few months are left on the clock for the government and the president – writing the letter now should not be as big a deal, and could save everyone a lot of trouble. Alternatively, the saner option of calling fresh elections could be exercised, which would defuse tension all around.
We are now standing at the edge of reason. What actually happens hereon, is less a question of law or politics, and more a question of people, and their ability to uphold the law and preserve democracy, above personal egos.
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: saad@post.harvard.edu