Saturday, August 4, 2012
Daily Times Editorial Aug 5, 2012
Contempt law struck down In a 21-page short order, the Supreme Court (SC), expectedly, has struck down the Contempt of Court Act 2012 (COCA 12). Expectedly because reservations had been expressed about the law even before it came up for hearing as a result of 27 petitions filed against it. The best legal brains of the PPP, Senators Aitzaz Ahsan and Raza Rabbani had expressed their view in the house that the law as it stood was flawed. The SC has focused on those flaws, and found them so fundamental that instead of asking parliament to revise the law and excise or redraft the offending provisions, has decided to get rid of it altogether. The short order declares the law unconstitutional, and therefore void from the date it was promulgated, July 12. It describes the legislation as an attempt to curtail the powers of the courts. As a result of the order, the Contempt of Court Ordinance 2003 stands revived. The court argues that the Ordinance, despite not being promulgated as an Act of parliament, enjoys the protection of Article 270AA(3) of the constitution, inserted by Musharraf. The striking down of COCA 12 has ‘cleared’ the way for action by the court against Prime Minister Raja Pervez Ashraf at the next hearing of the NRO implementation case on August 8. The order reiterates that the judiciary has never claimed supremacy over other institutions of the state, but has a duty to interpret the law and constitution. Pending the detailed judgement to follow, what the short order offers in terms of the grounds for the striking down of COCA 12 are that it sets up a special class of top political office holders who were declared as enjoying immunity from contempt of court for acts committed or actions taken in the discharge of their duties. This has been declared discriminatory and violative of the provisions of the constitution that declare all persons equal before the law. The court also took issue with the provisions of the Act that suggested the actual proceedings of contempt cases could be controlled or tampered with by the executive, a privilege hitherto exclusively the chief justice’s. The legislature, the short order says, cannot give itself this right, which would be deleterious for the independence, respect and dignity of the judiciary. The verdict has produced a flurry of activity at the top of the PPP hierarchy, with one meeting being held in the presidency after the verdict was announced, and another planned for today to deliberate on the implications of the ruling and the best way forward. On the day of the next hearing of the NRO case, August 8, the parliamentary party of the PPP has been summoned to meet. Some analysts have interpreted this toing and froing as signs that the ruling PPP may be contemplating its various options, including sacrificing another prime minister to follow in the footsteps of Yousaf Raza Gilani, bringing another contempt law before August 8, or even deciding to go for general elections. Of course the last course would be a decision taken on political considerations, and not without settling the issue of the caretaker government after consultations with the opposition. Perhaps the last word on the SC’s efforts to safeguard the respect, dignity and power to punish contemnors of the courts has not yet been said. The political temperature in the country has risen a notch or two after the verdict. All political forces must be shuffling their feet in anticipation of a possible general election before the scheduled date of February 2013. The court, however, having delivered its verdict, should reflect on where the question of its respect and dignity stands at the present conjuncture. These are categories that cannot be summoned at will or through the coercive power to punish. They are earned over time through the judgements of the courts, and only if such judgements pass the test of scrutiny of being impartial, fair, and in the interests of justice, without any shade of controversy or accusations of overstepping the jurisdiction of the court. On this last count, it must be said with the greatest respect to Their Lordships, the jury is still out.