IN THE SUPREME COURT OF PAKISTAN, ISLAMABAD.
(Original Jurisdiction)
Constitutional Petition No. of 2012.
Communist Party of Pakistan,
Through its Central Chairman:
Engineer Jameel Ahmad Malik,
Communist Party Secretariat,
1426-Fateh Jang Chowk,
Attock Cantonment.
.........Petitioner
Versus
1. Federation of Pakistan through Secretary, Ministry of
law, Justice and Parliamentary Affairs, Islamabad.2. National Assembly of Pakistan Speaker through Secretary, National Assembly Secretariat, Islamabad.
3. Senate of Pakistan Chairman through Secretary, Senate Secretariat, Islamabad.
.........Respondents
A Constitution Petition under the Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 challenging the Contempt of Court Act, 2012.
Respectfully Sheweth,
That the aforesaid Constitutional Petition under the Article 184(3) of the Constitution of Pakistan, 1973 read with the Holy Quran and Holy Prophet (PBUH) teaching which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb” with the Preamble, Article 2-A, 4, 5, 8, 9, 14, 25, 175, 204 and 248 of the 1973 Constitution and general rule i.e. no one is above law is being filed by the petitioner on the points of law, facts and grounds, as narrated, herein as under:-
POINTS OF LAW:
A. Whether a law can be made to the benefit of few individuals duly identified there in?
B. Whether such a law would be in conformity with the Article 25 and Article 8 of the Constitution of Pakistan, 1973?
C. Whether the provisions of Article 204 of the Constitution hit the impugned Contempt of Court Act, 2012 in so far as immunity is sought for the President, Governor, Prime Minister and others is concerned?
D. Whether the President, Governor, Prime Minister, Chief Minister or Minister enjoys immunity for not proceedings against Contempt of Court Act, 2012 under Article 248(1) of the Constitution of Pakistan and if so what is the purpose of Article 204 then in the Constitution of Pakistan?
E. What are the limits and meanings of the immunity to President, Governor, Prime Minister, Chief Minister or Minister in Article 248 in a Muslim and Islamic Country like ours?
F. Does immunity in the impugned law of Contempt of Court Act, 2012 to President, Governor, Prime Minister, Chief Minister or Minister give them a blank cheque to do any thing President, Governor, Prime Minister, Chief Minister or Minister Likes in a Muslim and Islamic Country like ours?
G. Does Presidential immunity place the President above the law? If not, then, what is Presidential immunity and what purpose does it serve? The people of Pakistan rightfully deserve to know its interpretation.
H. Is Presidential immunity an invisible cloak? The adornment of which can make the President of a country turn invisible in the face of civil or penal charges? Or is it a legitimate Constitutional shield rightfully created to protect the President from unnecessary law suits?
I. There are two concept of immunity in the Muslim history. The first four Caliphs known as Khulfa-e-Rashdeen don’t enjoy immunity but since Ameer Muawiyah took over in the 7th century to the end of the Caliphate in 1924, the Caliph has always enjoyed immunity. As shadow of God on earth, the Caliph was at several times in history the main legislator and final Court of appeal. He could never be called into a Court of law. He was above it. The institution of Caliphate since Ameer Muawiyah has always been immune from legal action. Our Islamic Country of Pakistan falls in which Category of Caliphs. The petitioner being a Communist Party and not a religious Political Party, therefore, seeks interpretation of Article 248 as to know whether the Constitution of the Islamic Republic of Pakistan follows the Khulfa-e-Rashdeen era, where there was no immunity or the interpretation of the Supreme Court under the shadow of Article 248 is in conformity with the concept of immunity, which was allowed since Ameer Muawiyah took over in the 7th century to the end of the Caliphate in 1924, when the Caliphs has always enjoyed immunity. The great Khulfa-e-Rashdeen at times appeared in the Court side by side with the other party. And during his time as Caliph, Hazrat Ali (AS) appeared before a Qazi and lost his case to a Jew. The whole nation is anxiously now waiting for the interpretation of Article 248(1) which is now incorporated in Section 3(i) of the Contempt of Court Act, 2012.
J. That on one hand it is said that being a Muslim State, the President of Pakistan, who shall be the Head of State and shall represent the unity of the Republic [Art 41(1)] must and should be a Muslim [Art. 41(2)], who is sagacious, righteous, non-profligate, honest, amen [Art. 62(f)], good character and is not commonly known as one who violates Islamic injunctions [Art. 62(d)] and he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins [Art. 62(e)] and whereas the definition of Muslim vide the Article 260(3)(a) is "Muslim" means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophet hood of Muhammad (peace be upon him), the last of the prophets, and does not believe in, or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad (peace be upon him);” and does such a Muslim President, Prime Minister, Governor, Chief Minister or Minister, who so ever he may be, vide above referred definitions, if given immunity and protection from contempt proceedings under Article 248(1) which is now incorporated in Section 3(i) of the Contempt of Court Act, 2012 can be justified on the teachings of Islam and Holy Qur’an and Sunnah. The answer is negative. Is this view of the petitioner Communist Party is correct and legal?
K. Interpretation of any Article is the prerogative as well as the duty of the Superior Courts as envisaged in the Constitution. What is the correct Interpretation of Article 248 which is now incorporated in Section 3(i) of the Contempt of Court Act, 2012 with respect to the Holy Quran and Holy Prophet (PBUH) teaching which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb” and with respect to the Preamble, Articles 2-A, 4, 5, 8, 9, 14, 25, 175 and 204 of the 1973 Constitution and general rule i.e. no one is above law?
L. Whether the Article 248, which is now incorporated in Section 3(i) of the Contempt of Court Act, 2012 and which provides immunity and protection from the contempt proceedings to the President, Governor, Prime Minister, Chief Minister and Minister is in conformity with the Preamble and Article 2-A of the Constitution of Pakistan or the Article 248 is conflicting or in contrary with the Preamble and Article 2-A of the Constitution of Pakistan, 1973. Which view out of two is viable, tenable, sustainable, legal and in accordance with law or otherwise?
M. Whether in a Muslim country like ours where it is said that under Article 227 of the Constitution of Pakistan, no law shall be enacted which is repugnant with the injunctions of Islam as laid down in the Holy Qur’an and Sunnah whereas the Article 248(1) as now incorporated in section 3(i) of the impugned Contempt of Court Act, 2012 which provides immunity and protection from the contempt proceedings to the President, Governor, Prime Minister, Chief Minister and Minister itself is repugnant to the teachings and injunctions of Islam as laid down in the Holy Qur’an and Sunnah as according to Islam, Holy Qur’an and Sunnah not even Caliphs or any rulers or persons has the immunity as given in Article 248 of the Constitution of Pakistan, 1973. The Article 248(1) as now incorporated in section 3(i) of the impugned contempt law is against all the teachings and injunctions of Islam as laid down in the Holy Qur’an and Sunnah. Is this view of the petitioner communist party is legal and correct?
N. Under Article 184 (3) not only an aggrieved person but any person can knock the doors of Supreme Court and question of locus standi or on the right forum is thus not attracted if a question of public importance with reference to the enforcement of any of the Fundamental Rights is involved. Supreme Court is the right forum for the interpretation of Article 248 as now incorporated in section 3(i) of the impugned Contempt of Court Act, 2012 with respect to the teachings of Holy Quran and Holy Prophet (PBUH) which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb” read with the Preamble, Articles 2-A, 4, 5, 8, 9, 14, 25, 175 and 204 of the Constitution of Pakistan and general rule i.e. no one is above law. Is this view of the petitioner communist party is legal and correct?
FACTS OF THE CONSTITUTIONAL PETITION:
1. That this is a public interest petition.
2. That the petitioner is a political party established in almost every country of the world. In some parts of the world, the Communist Party is a ruling party and in the rest of the countries, it is opposition of the ruling party. Its basic manifesto is to have socialism based on the ideology of Karl Marx, who was a German philosopher, political economist, historian, political theorist, sociologist, communist and a great revolutionary of all era. Communist Party of Pakistan (CPP) under its subjective condition is in the political arena for the social change, free from exploitation of man by man and is working for the welfare of the downtrodden and poor masses. The CPP files this petition through its Central Chairman, Engineer Jameel Ahmad Malik.
3. That the status of petitioner in terms of Rule 6 of Order XXV of the Supreme Court of Pakistan Rules, 1980 and vide Article 17 of the Constitution of Pakistan, 1973 is a political party and does not come under any law for the persons in the service of the Armed Forces of Pakistan. As such she is not barred by Articles 199 and 184(3) from invoking the Original Jurisdiction of the High Court and Supreme Court. However, she has not moved any High Court because of limited jurisdiction.
4. That a malicious campaign had been started due to the apex court’s cognizance of corruption and violation of law and Constitution in the Steel Mills case, Haj scandal etc, adding that the higher judiciary was under direct threat from the former prime minister, many ministers and PPP party workers as well as PPP and other parliamentarians.
And accordingly, the ultimate decision was taken by the Federation of Pakistan (Respondent No. 1) under the guidance and direction of President Asif Ali Zardari and most of his allies decided to curtail the power of judicial decisions on the subject of contempt of courts laws and to compromise the dignity and respect of the judicial institution.
The government appears to be gearing up for a political response to the Supreme Court’s (SC’s) insistence on the letter to be written to the Swiss authorities regarding reopening the case against President Asif Ali Zardari. That is why the Contempt of Court Bill 2012 has been passed post haste by the National Assembly on July 9, the Senate just two days after, and signed into law by the president the same evening vide its copy at Annexure “A”, in anticipation of the NRO case hearing on July 12. The PPP’s legal stalwarts, Raza Rabbani and Aitzaz Ahsan have expressed reservations about the contempt bill too. Aitzaz felt that at least two sections of the bill need correction, otherwise there is a likelihood that it would be struck down by the SC. He also argued that the contempt law contradicted the fundamental right of freedom of expression. Raza Rabbani pleaded for harmony and maturity, given the internal and external challenges facing the country. In that spirit, he said, the government and judiciary must avoid a tussle.
However, in its hearing of the NRO implementation case on Thursday 12th of July, the SC rejected the Attorney General’s (AG) reply that the SC’s notice/letter had been brought to the attention of the new prime minister, who had asked the Law Ministry to advise him on the matter, which could take some time. The AG’s plea for the case to be postponed until after the court’s vacations was rejected in favour of an order that the prime minister must write the letter if he wished to avoid Gilani’s fate. It instructed the AG to have the order to write the letter implemented and a written report to that effect presented to the SC by July 25. After the proceedings, the AG stated that if the court’s order were constitutional, it would be implemented. That suggests another impasse, since he left unsaid what would happen if the order were considered by the government to be unconstitutional, as in Gilani’s case. The SC once again reiterated its view that if someone claimed immunity under the provisions of the constitution (Article 248 in the context of the president); he would have to apply to the court for it.
The government’s response to the insistence of the SC that the letter be written has now taken on political dimensions, not purely legal. It seems government circles are quite prepared for the eventuality that the court may strike down the contempt law just passed, which provided immunity from contempt to the president, prime minister, ministers and chief ministers, on the ground of being discriminatory. They may see this as helpful in focusing public attention on the court’s consistent attempts to show through its orders that it sees parliament as subject to the provisions of the constitution, with the SC the only forum to decide on interpretation of those provisions.
5. Political and legal experts are of the opinion that the impugned Court of Contempt Act, 2012 will encourage discussions not only on court judgments but also under-hearing court cases, both at public and private levels.
Justice (retd) Wajhiuddin Ahmad, Supreme Court lawyers Salman Akram Raja and Babar Sattar and veteran politician and legal expert S.M. Zafar have rejected the new contempt law, saying the only intention behind the move appeared to undermine the superior judiciary.
Contempt of court will not apply if: A public officer holder exercises power for which he enjoys constitutional immunity under Article 248(1) of the constitution; a request in good faith and in temperate language before the chief justice of the Supreme Court or the high court or the Supreme Judicial Council, the federal or provincial governments for initiating disciplinary action against a judge; fair comments in good faith and in temperate language about general workings of the courts; fair comments on a court decision but again in temperate language; unless forbidden by a court, fair and accurate reporting of any judicial proceedings; publication of any material even if amounts to contempt on a sub-judice matter (pending before court) by a person who had no information regarding pendency of such matter on which he is commenting before the court; similarly distribution of such material by a person who had no information regarding pendency of such matter before a court of law; a plea of truth taken as a defence in the contempt proceedings; any remarks by an authority in an administrative capacity in connection with a disciplinary inquiry or in an inspection note or a character roll or a confidential report; and a true statement in good faith on a matter not connected with the judicial functions of a judge. The bill will provide a shelter to top government officials against contempt of court proceedings.
6. Keeping in view, what has been stated as above, a time has now come wherein the Apex Court may kindly give an interpretation of Article 248 of the Constitution of Pakistan which is now also incorporated in Section 3(i) of the impugned Contempt of Court Act, 2012. Even otherwise, it is the prerogative as well as the duty of the Superior Courts as envisaged in the Constitution to give interpretation of any Article as and when it needed. This interpretation of Article 248 is also now the needs of hour and nation as well, as the Parliament Special Committee on Constitutional Reforms headed by Senator and Ex-Advisor to the PM Mian Raza Rabbani for amending the 102 Articles of Constitution of Pakistan presented its report after its 77 consecutive meetings to both the Houses of the Parliament on 2
nd
April, 2010 and which was unanimously passed by 292 Members of the National Assembly on 8
th
of April, 2010 and also approved by the Senate and now known as ‘18
th
Amendment’ but, it was really very surprising that the 27 Members Parliament Special Committee comprising of all political parties of both the Houses of the Parliament including Pakistan Muslim League (N), Pakistan Muslim League (Shujaat), Pakistan Muslim League (Saifullah), Muttahida Qaumi Movement, Awami National Party, Jamiat Ulama-e-Islam (F), Jamaat-e-Islami Pakistan, Pakistan Muslim League (F), Balochistan National Party (Awami), National Party, Pakistan Peoples Party (Sherpao), National Peoples Party, Pashtoonkhawa Milli Awami Party and Jamhoori Wattan Party have double standards and this was the reasons that without any ambiguity, all of them clear cut compromised on the existing Article 248 with the Pakistan Peoples Party Parliamentarians and President Asif Ali Zardari and accordingly the Committee did not even touched a comma or full stop of Article 248, which otherwise is contrary and contradictory with the Holy Quran and Holy Prophet (PBUH) teachings which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb” and in total negation and contrary to Preamble, Articles 2-A, 5(2), 25, 62(d), 62(e), 62(f), 227, 260(3)(a) of the Constitution of Pakistan and also with the general rule i.e. “no one is above law”.
My Lordships! It is, therefore, graciously and humbly requested that an appropriate order which deemed fit in the current scenario for resolving this controversial issue of Article 248 for which the petitioner earlier Civil Misc. Appeal No.94 of 2010 in Constitutional Petition No. Nil of 2010 may kindly be clubbed and fixed for hearing vis-à-vis with the current constitutional petition concerning the ultra vires of the impugned Contempt of Court Act, 2012 and accordingly an appropriate order as deemed fit may kindly be passed by the Supreme Court of Pakistan in the interest of justice, interalia on the following genuine
GROUNDS:
7. Accordingly this Constitutional petition is filed on the following among other genuine grounds, interalia:-
(i) PRESIDENT, GOVERNOR, PRIME MINISTER, CHIEF MINISTER AND MINISTER ARE NOT EXEMPT AS A PERSON UNDER ARTICLE 204 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973
The provisions of Article 204 of the Constitution of Pakistan, 1973 hit the impugned Contempt of Court Act, 2012 in so far as immunity and protection from the contempt proceedings is sought for the President, Governor, Prime Minister, Chief Minister, Minister and others are concerned.
Furthermore, the term ‘any person’ used in Article 204(2) of the Constitution, and that sub-clause (i) of the proviso of Section 3 of the Contempt of Court Act, 2012 curtails the power and the jurisdiction of the court to punish any person, who abuses, interferes with or obstructs the process of the court in any way or disobeys any order of the court. The classification of sub-clause (i) to the proviso to Section 3 of the impugned Contempt of Court Act, 2012 is in violation of the Article 25 of the Constitution which guarantees equal protection of the laws. The government realized that if it went ahead by including Article 248(1) in the contempt law, the legislation would be in conflict with the Constitution and this part would be quickly struck down by the Supreme Court. Thus, it will not achieve the desired objective of according protection to the prime minister at all from contempt proceedings. Therefore, it scrapped the exemption for top public office holders. Even otherwise, the petitioner is of the view that had the protection spelt out in Article 248(1) been kept in the impugned contempt law with the objective of giving immunity to the prime minister and others, it would have no effect in the presence of Article 204, which arms the Supreme Court and high courts with contempt powers.
No subordinate legislation like the impugned Contempt of Court Act, 2012 is, can take away powers of the superior judiciary to proceed against contemnors.
Your Lordships specifically attention is invited to the word “any person” occurring in Article 204 against whom the superior courts can proceed on the contempt charge. “Any person” certainly includes the prime minister and other public office holders. The erased provision, sub-clause (i) of Section 3, of the impugned Contempt of Court law, which as a whole is aimed at clipping the powers of the Supreme Court Chief Justice, and that exercise of powers and performance of functions by a public office holder of his respective office under Article 248(1) for any act done or purported to be done in exercise of those powers and performance of these functions shall not amount to commission of contempt of court.
Article 248(1) says the President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a provincial minister shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.
Article 204, which empowers the superior judiciary with contempt powers, says the Supreme Court or a high court shall have power to punish any person who, abuses, interferes with or obstructs the process of the court in any way or disobeys its order; scandalizes it or otherwise does anything which tends to bring it or its judge into hatred, ridicule or contempt; does anything which tends to prejudice the determination of a matter pending before it; or does any other thing which, by law, constitutes contempt. The exercise of the power conferred on a court by this article may be regulated by law and, subject to law, by rules made by the court.
My Lordships! That no contempt law existed when way back in the seventies Prime Minister Zulfikar Ali Bhutto was served with the show cause notice for contempt by the Supreme Court under Article 204. The Contempt of Court Act, 1976 (LXIV of 1976) was enacted later; adding that Article 204 existed in the Constitution from day one.
At the same time, in the opinion of the Communist Party of Pakistan, Article 248(1), which remains in the Constitution from day one, was also present when premier Zulfikar Ali Bhutto was served with the show cause notice. This means, in our Party opinion, the presence of Article 248(1) and the absence of a contempt law did not save the then prime minister from being arraigned for contempt under Article 204. This underlines the importance, bearing and weight of this substantive provision.
That the contempt powers were intended to be used by courts just as a threat and a hanging sword. The objective of serving show cause notices by courts is to get their decisions implemented and the moment this purpose is achieved these are withdrawn is a normal practice every where in and abroad.
(ii) CONTEMPT OF COURT ACT, 2012 VIOLATES THE INDEPENDENCE OF JUDICIARY AS ENSHRINED IN ARTICLE 2-A OF CONSTITUTION.
That the Contempt of Court Act, 2012 is also violative of the independence of the judiciary, guaranteed by Articles 2-A, 175 and 190 of the Constitution and the various provisions of the impugned Contempt of Court Act, 2012 are in derogation/inconsistent with the fundamental rights guaranteed by the Constitution.
The constituent assembly had promulgated objective resolution in 1949. Ultimately it was incorporated in preamble of the constitution of Islamic Republic of Pakistan and thereafter it was made substantive part of the constitution by adding article 2-A. It is evident from the history of human being that leader/nation would only progress on the basis of its good character.
Once an individual leader or nation had deviated from this then destruction is the result. The best example in the recent history of human society is of Communist China when this nation with its birth two years after Pakistan, has attained a position.
But unfortunately in our own country of Pakistan, all the aforesaid Respondents have loudly justified their act on the state controlled media and by doing them have purposely created confusion about the constitutional powers as laid down for the executive and for the independence of Judiciary. This malafide act of the government/respondents, if allowed to remain in the field, will take away the dream of an independent judiciary and rule of law.
That the impugned contempt law was promulgated and accepted by the chief executive and president of the country in order to destabilize, undermine and shake the foundations of the Constitution. Furthermore, President Asif Ali Zardari, Prime Minister Raja Pervaiz Ashraf and all other respondents used Parliament to pass the bill to their advantage and abused the powers vested in them by the people.
The impugned contempt law has curtailed the independence of the judiciary and violated the spirit of constitutional provisions.
The impugned law was passed to curtail the independence of the judiciary in violation of the spirit of the constitutional provisions. The respondents through the impugned contempt of court law had unconstitutionally and unlawfully attempted to make the constitutional provisions ineffective, which was not warranted by any law. This newly enacted contempt law is discriminatory, against principle of equality of citizens and its aim is to curtail the independence of judiciary.
The impugned contempt law is discriminatory and against the principle of equality of citizens before the law to keep the judges and the chief justice of Pakistan in a position where the independent working of the judiciary could not survive. The fundamental rights, the Islamic concept of administration of justice and independence of judiciary have been jeopardized. The impugned law is also an attempt to reduce the powers of the Supreme Court.
(iii) CONTEMPT OF COURT ACT, 2012 VIOLATES THE EQUAL RIGHT OF CITIZENS AS ENSHRINED IN ARTICLE 25 OF THE CONSTITUTION.
That the impugned contempt law is discriminatory, against principle of equality of citizens and it was legislated strictly for saving specific persons and meant to frustrate the constitutional provisions and presently it was aimed at delaying the contempt proceedings to save one individual Mr. Raja Pervaz Ashraf, who is now Prime Minister of Pakistan and as such does not qualify to be called a law in any sense of the word. The petitioner would prefer the Apex Court to examine the legislation at the earliest and give a ruling whether it is in conformity or ultra-vires of the Constitution of Pakistan, 1973 before it takes effect in view of its repercussions on the fragile Federation of Pakistan.
The 1973 Constitution guarantees equal rights to all Pakistanis, so the ruling clique doesn’t have the right to introduce any amendment to the existing laws which would undermine the spirits of the Constitution.
That also the impugned contempt law was in conflict with basic clauses of the Constitution. Article 2-A guarantees freedom of the judiciary while according to Article 25, all citizens have equal rights but unfortunately former law minister Senator Babar Awan and property tycoon Malik Riaz who are currently facing contempt charges would ultimately be the beneficiaries of this contempt law if it is not struck down by the Supreme Court of Pakistan.
Who so ever may be President, Prime Minister, Minister, Chief Justice or the ordinary citizen, no one is above the law and should not be beyond the bindings from the eyes of justification. The recent parliaments amended contempt of court law and resolution should be blocked otherwise in future every government should be free to pass any kind of resolution and law purely for their own benefits.
The ruling partly along with its allies had crushed all moral and social values and principles of justice only for its vested interests. All their acts were not only against spirit of Islam but also against the constitution. It has been mentioned in the Constitution of Pakistan that no law against Sharia would be enacted as all human beings are equal before God. In our party opinion, a criminal whether be a ruler or a layman would be equal to law and no discrimination could be made for its punishment. This newly enacted contempt law had also been introduced to provide a shield to the President Zardari against the decisions of the apex court which ordered the executive to write a letter to the Swiss courts for opening graft cases against the president and in order to avoid this, the respondents enacted the impugned contempt law wherein according to this law, the president, prime minister, chief ministers and governors would be exempted from court trial in contempt of court charges.
(iv) HISTORY OF CONCEPT OF EQUALITY BEFORE LAW.
My Lordships! Holy Quran says; “if Ye Judge between mankind, that Ye Judge justly”. The Holy Prophet (PBUH) proclaimed; “people are all equal as the teeth of a comb”.
In this context, the extract from last Sermon of the Holy Prophet (PBUH) is landmark in the history of man kind which is reproduced hereunder:-
“The concept of equality amongst the mankind was introduced for the first time by Islam. The Holy Prophet (peace be upon him) preached and practiced equality throughout the life and sermon delivered on the occasion of last Haj performed by the Holy Prophet (peace be upon him) is the first landmark in the history of mankind. It was clear for all times to come that there is no difference amongst the individuals on the basis of race, colour and territory. The relevant portion reads as under: –
The Holy Prophet (peace be upon him) said in his address at the Hajjat-ul-Wida, the last Haj, performed by him, that ………O! people, hear me, your Lord is one and your father is one. No Arab has any superiority over a non-Arab, nor any non-Arab over an Arab nor any white man over a black man, nor a black man over a white man save in respect of piety and fear of Allah’.”
My Lordships! The source of insertion of Article 25 in the Constitution of Pakistan, 1973 is on the basis of the aforesaid history highlighted hereinabove. Similarly our constitution also ensures dignity of every individual as is evident from Article 14 of the constitution. See:-
i) Francis Corolie Mullin’s case (AIR 1981 SC 746)
ii) A.K. Roys’ case (AIR 1982 SC 710)
iii) Bandhu Mukti Moracha’s case (1984 SC 802)
iv) Bachan Singh’s case (AIR 1982 SC 1235)
v) Weereja Chaudhry’s case (AIR 1984 SC 1099)
vi) Suo Motu Constitutional Petition: (1994 SCMR 1028)
It is a settled maxim that the very concept of fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law. See Jibendra Kshore’s case (PLD 1957 SC 9).
It is also settled principle of law that where a statute is ex facie discriminatory but is also capable of being administered in a discriminatory manner and it appears that it has actually being administered to the detriments of a particular class in particular, unjust and oppressive manner then it has been void ab initio since its inception.
(v) THE IMPUGNED CONTEMPT OF COURT ACT, 2012 IS ULTRA-VIRES OF THE CONSTITUTION AND AGAINST THE ARTICLE 8 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973.
The Contempt of Court Act, 2012, has been passed by the Parliament in sheer violation of the basic spirit of the Constitution, which is also against the basic norms of the democratic form of government and injunctions of Islam and also against the fundamental rights of equality of citizens as enshrined in the Constitution of Pakistan, 1973.
That by introducing and enacting the said law by the respondent’s government, the corrupt elements, which make their way through to the power corridors, will be protected and there will be no institution to check their malafides, illegalities and ulterior designs.
That the impugned law passed by the majority members of National Assembly, Senate and assented by the President of Pakistan is another National Reconciliation Ordinance (NRO). The purpose of the impugned contempt law is to protect certain few important persons and the only object was to obstruct the implementation of law and lawful orders of the courts of law and to pave way for the negation of the accountability process. It is generally believed that the government rushed through the new contempt law to protect the new prime minister from the contempt proceedings.
The law is intended to save Prime Minister Ashraf from possible disqualification by the apex court for refusing to reopen corruption cases against Zardari in Switzerland. The Supreme Court has given the premier time till 25 July to ask Swiss authorities to reopen the graft cases against the President.
A bench headed by Chief Justice of Pakistan disqualified former premier Yousuf Raza Gilani on 19 June following his conviction of contempt in April for refusing to reopen the cases.
That during the last four-and-half-year efforts was made to violate the constitution and the Supreme Court judgments. The environment of corruption and mal-administration continued and through many orders including NRO hundreds of cases were got decided from different courts.
The apex court after striking down the NRO asked the Chief Executive to write letter to Swiss authorities to reopen graft cases against the beneficiaries including President Asif Ali Zardari. Former Prime Minister Yousuf Raza Gilani, who refused to write letter to Swiss authorities, ultimately was disqualified as member of National Assembly and had to leave his office as well.
Pakistan’s National Assembly Monday (July 9) approved the Contempt of Court Act aimed at shielding top leaders from contempt charges and curbing the Supreme Court’s efforts to push Premier Raja Pervez Ashraf into reopening graft cases against President Asif Ali Zardari. The Contempt of Court Act was introduced in a special session of the parliament before the apex court takes up the issue of reviving graft cases against Zardari on July 12, 2012.
The Contempt of Court Act also provides a cover to the action of former Prime Minister Syed Yousuf Raza Gilani who was sacked from office on June 19, 2012 for protecting President Asif Ali Zardari’s corruption.
On April 26, the Supreme Court, headed by Chief Justice of Pakistan, convicted Gilani of contempt for refusing to write a letter to the Swiss authorities for reopening multi-million-dollar graft cases against President Asif Ali Zardari.
The Court judgment on June 19 said that Syed Yousaf Raza Gillani has become disqualified from being a Member of the Parliament from the date (April 26, 2012) of pronouncement of the contempt of court verdict. He has also ceased to be the Prime Minister of Pakistan with effect from the said date and the office of the Prime Minister shall be deemed to be vacant accordingly, the verdict said adding: The Election Commission of Pakistan is required to issue notification of disqualification of Syed Yousaf Raza Gillani and the President of Pakistan is required to take necessary steps under the Constitution to ensure continuation of the democratic process through parliamentary system of government in the country.
Moreover, with the formulation of the new contempt law, the government intended to neutralize Article 63(1) (g) under which a member of parliament could be disqualified if found guilty of defaming and ridiculing the superior judiciary.
Under the new law, once passed, a convict of contempt charges will simply have to file an appeal to get the punishment suspended.
It is a mala-fide act indeed–Article 190: [All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court]—thus void in the inception. There is some argument about defense in the legislature. However its intention to nullify Article 63(1) (g) suggests that it aware that the president is culpable, perhaps guilty.
It was under the ordinance of 2003 that former Prime Minister Yousuf Raza Gilani and his cabinet had been sent home for committing contempt by not implementing the NRO verdict which asked for writing the letter.
Under the newly enacted impugned contempt law, if an accused or convict of contempt of court files an appeal, his/her show-cause notice or original order will remain suspended till final disposal of the matter. It said: “An accused person may also at any stage submit an apology and the court, if satisfied, may discharge him or remit his sentence.”
This impugned contempt law will ostensibly provide cover for Prime Minister Raja Pervez Ashraf from possible disqualification by the Supreme Court, which had sought his compliance on an earlier verdict to write to Swiss authorities to reopen graft cases against President Asif Ali Zardari. This case had led to the disqualification and unseating of Yousuf Raza Gilani as premier on contempt of court charges last month.
The new contempt law, which the ruling coalition has decided to enact before the date of hearing, July 12, of the contempt case against Prime Minister Raja Pervaiz Ashraf in the Supreme Court, will not quash these proceedings against him, as envisaged by its framers. The actual objective of the fresh legislation is to make the contempt case ineffective against the new PM who, like his predecessor, has been issued a show cause notice under the Contempt Ordinance 2003 and article 204 of the constitution.
The present proceedings against Raja Pervaiz Ashraf will stand discontinued when the constitutional protection provided in article 248(1) will be incorporated in the new law. However, renowned jurist SM Zafar did not agree, and said the contempt case against the prime minister would go ahead and would not automatically vanish on the force of the new law.
But, he stated, Pervaiz Ashraf would benefit from the fresh legislation by having the right to appeal, and getting the conviction, if imposed by the present panel of judges, stayed by the larger appellate bench till the disposal of his challenge to the original order. SM Zafar said that the constitutional protection as specified in article 248(1) could not be applied through an ordinary legislation like the contempt law. He said that the contempt case in progress against the prime minister would not automatically become anfractuous by the enactment of the new law.
(vi) INTERPRETATION OF ARTICLE 248 AS INCORPORATED IN THE IMPUGNED CONTEMPT LAW IN THE CURRENT SCENARIO IS IN THE LINE OF THE ERA OF KHULFAH RASHIDUN OR IT FAVOURS THE INTERPRETATION OF IMMUNITY OF THE MALOOKIAT ERA STARTING FROM AMEER MUAWIYAH TO THE END OF THE CALIPHATE IN 1924.
The Respondents has tried to kill two birds with one stone with its amendment to the impugned Contempt of Court Act, 2012.
Unlike the contempt of court ordinances 2003 and 2004 which explained in details about three different types of court contempt — civil, criminal and judicial — focus of the impugned contempt law is on the actions which don’t amount to commission of contempt of court.
Besides protecting powers and performance of holders of public office mentioned in Article 248 of the Constitution, which include the president, prime minister, governors, chief ministers, federal and state ministers, the impugned Contempt of Court Act, 2012 also shields ‘any authority’ against the contempt charges. One of its clauses read as “remarks made in an administrative capacity by any authority in the course of official business, including those in connection with a disciplinary inquiry or in an inspection note or a character roll or confidential” shall not amount to contempt of court.
My Lordships! There are two concept of immunity in the Muslim history. The first four Caliphs known as Khulfa-e-Rashdeen don’t enjoy immunity but since Ameer Muawiyah took over in the 7th century to the end of the Caliphate in 1924, the Caliph has always enjoyed immunity. The Rightly Guided Caliphs or The Righteous Caliphs is a term used in Islam to refer to the first four Caliphs, who ruled after the death of our Prophet Muhammad (Peace Be upon Him) is often quoted as the Khulafah Rashidun. In Islam, there is no immunity up to the time of Khulfa-e-Rashdeen and they followed the Holy Quran and Holy Prophet (PBUH) teaching which says; “if Ye Judge between mankind, that Ye Judge justly” and “people are all equal as the teeth of a comb”. The great Khulfa-e-Rashdeen at times appeared in the Court side by side with the other party. And during his time as Caliph, Hazrat Ali (AS) appeared before a Qazi and lost his case to a Jew. The other example is of the second Caliph Hazrat Umar Farooq (RA) had a shirt (Choga) on his body. He was asked to explain regarding the cloth of that shirt because the cloth of shirt according to his share was much less than the body of Caliph. The Caliph replied that he had used the share of his son for making his own shirt. This is the type of accountability which we have to follow to save the nation to put on a right path.
However, overwhelmingly since Ameer Muawiyah took over in the 7th century to the end of the Caliphate in 1924, unfortunately the Caliph has always enjoyed immunity. As shadow of God on earth, the Caliph was at several times in history the main legislator and final Court of appeal. He could never be called into a Court of law. He was above it. The institution of Caliphate has always been immune from legal action since Ameer Muawiyah took over in the 7th century to the end of the Caliphate in 1924. From Ameer Muawiyah to the end of the Caliphate in 1924, the Caliph or Ruler being the Head of State was also the Head of the Religion and regarded as a successor to the Prophet and the Caliph or Sultan has the final say in matter of State as well as in Religion. In this matter, a book written by the Jamaat-e-Islami founder Maulana Abu Ala Syed al-Maududi known as “KHILAFAT AUR MALOOKIAT“ is well known in Muslim Ummah. In this book, he analyzed how the Khilafat’s was converted into monarchy kingdom.
Though it is said that in Islam and under Shariah law, the Caliph/Sultan or Monarch/Ruler was a servant of the law, was subject to the law and was not entitled to any special exemption from the provisions of the Shariah law, yet this principle was applicable in the Muslim History to the era of Khulfa-e-Rashdeen only and none else.
The petitioner being a Communist Party and not a religious Political Party, therefore, seeks interpretation of Article 248, which is now incorporated in section 3(i) of the impugned contempt law, as to know whether the Constitution of the Islamic Republic of Pakistan, which is a Muslim country follows the Khulfa-e-Rashdeen era, when there was no immunity or the interpretation of the Supreme Court under the shadow of Article 248 is in conformity with the concept of immunity, which was allowed since Ameer Muawiyah took over in the 7th century to the end of the Caliphate in 1924. The whole nation is now anxiously waiting for the interpretation of Article 248 which is now incorporated in section 3(i) of the impugned Contempt of Court Act, 2012 and Supreme Court is also duty bound for its interpretation so as to end the confusion and ambiguity which is now prevailing among the peoples of Pakistan.
(vii) THIS LAW CAN BE STRUCK DOWN BY SUPREME COURT OF PAKISTAN.
The apex court could strike down a law only after examining its vires, if the law impinged on the fundamental rights guaranteed under the Constitution or militated against the independence of judiciary, aimed at curtailing the authority of the judiciary.
About the impugned contempt law, that except for three additions — immunity to the holders of public office under Article 248(1) of the Constitution, right to appeal that suspends the conviction and expunged part of a discussion in parliament not to be taken as evidence — the latest law was the exact rendition of the 1976 contempt law.
The nut-shell of the above discussion is that the impugned contempt law is against the Articles 2-A, 8 and 25 of the Constitution which ensured independence of judiciary and equality of citizens before the law.
(viii) NO IMMUNITY FROM THE CONTEMPT PROCEEDINDS OF THE PRESIDENT, PRIME MINISTER, MINISTER AND OTHERS IN OTHER COUNTRIES OF EUROPE, AMERICA AND REST OF THE WORLD.
That honestly speaking, giving protection to the president, prime minister, ministers, governors and others is discriminatory and against the concept of equality before law and accountability. Not only our constitution where Article 204 exists, similarly articles existed in favour of the contempt of court all over the world and here are some glaring examples in this context.
An American president, a British home secretary and an Indian state minister were charged with contempt of court.
It is imperative to note that a former US President, Bill Clinton, an Indian and a British minister were held questionable in their context by the courts in their respective countries. All these bigwigs had to pay the penalty for showing utter disdain and disregard to the authority of their respective courts.
Just last month here in Pakistan, Yusuf Raza Gilani had to lose his hard-earned premiership for not abiding by court directives. Research reveals that legislators in India, United States, Australia, Canada, China and United Kingdom etc cannot even dream of scandalizing the court, impeding its functionality or ridiculing the judges by publicly criticizing their verdicts or trial proceedings because the adjudicators may impose fines and/or jail the persons opting to be contemptuous towards the court—-irrespective of their social status.
It is, however, relatively rare that a person is charged for contempt without first receiving at least one warning from the judge. (Reference: People’s Law Dictionary by Gerald and Kathleen Hill)
In the United States, although newspapers cannot be closed because of their content—-courtesy the freedom of speech under the First Amendment of the American Constitution—-but, the judge can notify the offending party that he or she has acted in a manner which disrupts the tribunal and prejudices the administration of justice.
After giving the person the opportunity to respond, the judge may impose the sanction immediately. The guilty party can be imprisoned or fined for committing this crime. Former US head of state, Bill Clinton, was held in contempt of court by a federal judge (Justice Susan Webber Wright) for giving an “intentionally false” testimony about his relationship with Monica Lewinsky in the Paula Jones lawsuit in April 1999, marking the first time that a sitting president in the United States was ever sanctioned for disobeying a court order. (Reference: The Washington Post edition of April 13, 1999) Clinton was fined $1,202 by the judge for this crime and had very narrowly escaped a stricter court admonishment.
Clinton had to pay for her airline ticket, the price of which was actually $1,202. Justice Wright had refused to grant Clinton absolute presidential immunity against this lawsuit, but nonetheless, she had gone on to rule that a sitting president could not be sued and deferred his trial until after his presidential term was over.
In Chadwick versus Janecka Case of 2002, a US court of appeals had imprisoned Beatty Chadwick for nine years for deliberately disobeying the court. But when Chadwick was set free in 2009, he had already served a prison sentence of 14 years— making his imprisonment the longest on a contempt charge to date.
In United Kingdom, under the Contempt of Court Act 1981, the maximum sentence for criminal contempt is two years. A former British Home Secretary Kenneth Baker was also charged in a contempt case in 1991.
The British Court of Appeal had held that Secretary Baker was in contempt of court – the first serving minister to be found guilty on this count – for defying a court order and deporting a man from Zaire while proceedings were pending against him.
The British court had ruled: “It would be a black day for the rule of law and the liberty of the subject if ministers were not accountable to the courts for their personal actions.” However, this ruling did not prompt Baker to resign as Home Secretary. (References: BBC and the Daily Telegraph)
In India, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both under the Contempt of Courts Act, 1971.
As far as permission to the Indian law-makers to be disrespectful to their court judges is concerned, we should all recall that in 2006, an Indian Minister of State for Transport, Swaroop Singh Naik, was sentenced by the Supreme Court of India to a month in jail for violating an order on protecting forests.
In 1997, the Indian Supreme Court had directed all unlicensed saw mills in Uttar Pradesh and Maharashtra from relaxing norms for fresh permits. Legal mills were also asked to renew their licences.
Swaroop Singh Naik was found to have facilitated permits to such mills in violation of the High Court ruling.
Meanwhile, the then Maharashtra state Additional Chief Secretary, Ashok Khot, was also sentenced to one-month simple imprisonment along with the State Transport Minister.
In Canada, Under Federal Court Rules, Section 472, if somebody is accused of Contempt and found guilty in this context, punishment can range from the person being imprisoned for a period of less than five years or until the person complies with the order or pays fine.
The Canadian parliamentarians can be charged under the same law and are no exception to the rule. In Australia too, a judge may impose a fine or jail in such cases—-irrespective of the social status of the guilty person.
There is no doubt that the United States, Europe, Australia, Canada and India etc and other countries are currently faced with the challenge of harnessing the social media and bring it under the preview of contempt of court, but contempt laws are regarded as a sound piece of legislation and are still valid in the internet age.
PRAYER IN PETITION:-
In view of the above, the petitioner very graciously and respectfully prayed this Honourable Court to provide the following remedies:
1. Declare the new impugned contempt law as ultra-vires, null and void as it was in violation of Article 25 and also against the Articles 2-A, 4, 5, 8, 9, 14, 175 and 204 of the Constitution of Pakistan, 1973.
2. Declare the assent given by the President of Pakistan as invalid and without any legal effect.
3. Any other remedy for the supremacy of the Constitution and the law, which this Honourable Court deems fit and appropriate in the facts and circumstances of the case, may also be granted and this petition may kindly be accepted with costs. This prayer is made in the interest of justice.
Drawn up and filed by:
Sd.-Dated:- 18th July, 2012. (Engineer Jameel Ahmad Malik)
Petitioner-in-Person,
Chairman of Communist Party,
Communist Party Secretariat,
1426-Fateh Jang Chowk,
Attock Cantonment. Tel: 057-2611426
Fax: 057-2612591
Mob: 0300-9543331
Website: www.cpp.net.pk
LIST OF BOOKS:1. Holy Quran.
2. The Constitution of the Islamic Republic of Pakistan, 1973.
3. Contempt of Court Act, 2012.
4. PLD 1988 SC 719
5. PLD 2005 SC 719
6. 1999 SCMR 382
7. PLD 2000 SC 84
8. PLD 2006 SC 697
Certificate:-
Certified that this is the first petition in the Supreme Court on the subject.
(Engineer Jameel Ahmad Malik)
Petitioner-in-Person.