ISLAMABAD – The Supreme Court Friday observed that all efforts are being made for a specific objective and to save a certain person, as it resumed hearing on the 26 identical petitions challenging the newly-made Contempt of Court Act 2012.

A five-member bench, headed by Chief Justice Iftikhar Muhammad Chaudhry, observed if immunity is granted to the certain persons, listed in the CoC Act, then other people would also demand it, and there would be a trend in the country to defy court orders, bringing the whole system to a standstill.

During the proceeding, the chief justice said that new legislation is necessary when there is a real need for it, but the new law is a replication of the Contempt of Court Act 1976 except for a few clauses. The CJ stated that instead of making new laws, efforts should be made to enhance the respect of courts.

“A person whom Almighty Allah has given honour should show more respect to the court orders. Due to the new law, the dignity and respect of the court would be lowered and the court judgments would be (mere) ‘paper decree’.”

The chief justice said that the constitution has kept the nation united. He reiterated that democratic system in the country should continue; expressing the hope that with the passage of time all faults from the system would be removed.

When one of the petitioners’ lawyer tried to present the fundamental clauses of the constitution, the chief justice interrupted him and remarked that it is not the time to tell stories and discuss the constitution in detail. He said that the judiciary is trying to bring democracy back on track. He further said that it is not the time to take up theories.

Justice Jawwad S Khwaja remarked the judges are trustees who have been tasked to implement the constitution. Justice Jawwad said that article 204 does not give immunity to any one from contempt of court. The provision of the constitution cannot be amended under any subordinate law.

At one point, Justice Jawwad remarked that those who formulated the constitution are respectable personalities and he praised Zulfikar Ali Bhutto. He further said that the people who produced the unanimous constitution were the people with a vision but the dictators distorted it, however, the constitution is still of primary importance.

Justice Jawwad Khawaja remarked that ‘hats off to the founders of 1973 constitution’ who discussed the draft of the constitution for almost five months, but that did not happen in framing of the new law. He said if both the houses of the parliament had discussed the CoC Act 2012 thoroughly then these issues might not have arisen that are being discussed in the court.

Justice Jawwad said thousands of people approach the courts for redress of their grievances, adding that if the executive performs it functions then people’s problem would automatically be solved. He remarked that members of parliament were servants of the public and they drew their salaries from the taxes paid by the people of Pakistan; they should not consider them as masters. Justice Tassaduq Hussain Jillani said education has never been the priority in the country.

Earlier, petitioner Raja Afrasiyab said the expression in section 4(4) of CoC Act that “notwithstanding anything contained in any judgment”, was to save prime minister from disqualification under article 63(1)(g) of constitution for defying the court order. This seems to be a legislative judgment, he added.

Advocate Raja Afrasiyab argued that the parliament with the simple majority couldn’t redefine the contempt of court mentioned in article 204. The Constitution makers were conscious of the fact therefore they did not leave this subject to the legislators to amend, repeal, curtail or abridge contempt power of the court but it could be enlarge or enhanced. The legislature by curtailing the contempt of court has impinged upon rather assaulted the constitutional provision and this is nullity in the eyes of the constitution.

Afrasiyab submitted some portions of the constitution allows unhindered legislation, some parts sanction limited legislative powers; while, yet other portions do not admit of any law-making right altogether, adding that the Contempt of Court Law pertains to this very part that cannot be legislated with a plain majority. Contempt of court, he furthermore added, is defined in article-204 of the constitution, which cannot be superseded with a commonplace law.

Justice Tasadduq Hussain Jilani observed the immunity from the contempt of court is so sacred to the constitution-makers that they blocked its amendment through plain majority. Responding to a remark by Afrasiab, Chief Justice Chaudhry wondered if the contempt of court definition needs to be amended with two-third majority.

Justice Iftikhar remarked that the parliamentarians had taken their oaths under the constitution and that they should legislate keeping the constitution’s fundamentals under consideration. He also said that courts rarely used the option of initiating contempt proceedings. The chief justice said while legislating the new contempt act the parliamentarians should have referred the constitutional provisions, especially the item 55 of the Legislative List and the article 204.

Barrister Zafarullah Khan, another petitioner, informed the court that according to the Law and Justice Commission of Pakistan, there are 51,149 writ petitions in Lahore High Court and 16,757 complaints in Sessions Courts, while 1,75,000 applications for the registration of cases are lying in various Punjab courts.

Earlier, Advocate Raja Afrasiyab said that the Objective Resolution says that the independence of judiciary shall be fully secure. But the section 6 (1) bars superior courts from taking cognizance of a contempt alleged to have been committed in respect of a court subordinate to it. What would the benefit of the writ petition if the jurisdiction of HC and Supreme Court has be curtailed under the new law.

He said article 204 says that Court can punish ‘any person’ for committing contempt of court, adding all citizens are equal before the law and there is no discrimination, immunity or different apartment for people under this article. But for effective running of the state affairs the list of persons has been given in article 248, which has immunity in performance of the official functions.

Rashid A Rizvi, counsel for Sindh High Court Bar Association, argued that it was the colourable piece of legislation therefore liable to be declared null and void. The parliament is authorised to make procedural laws and not the substantive. He said as the CoC Act 2012 is colourable therefore should be declared unconstitutional and ultra vires.

He said all over the world this principle is well-established fact that the contempt is between the court and the alleged contemnor. It is inherent to the court. In India and England it is still vague, but in Pakistan it has the constitutional command and article 204 is very clear about it. He said that framers of the constitution were aware of the fact that without the contempt of court weapon the court will have no power.

The chief justice said this is not the personal vendetta but is of the court. Rizvi said that article 69 does not cover the illegal power of the legislature but only the procedural. He said that new law is made for ordinary citizens. The purpose of CoC Act 2012 is to nullify the rules laid down by the Supreme Court.

All efforts to save one, observes SC