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Supreme court strikes down new contempt law

04 August, 2012

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ISLAMABAD: The Supreme Court on Friday annulled the new contempt of court law which aimed at providing immunity to the people holding country's top offices, clearing the way for legal action against the prime minister.

The court also revived the Contempt of Court Ordinance 2003 with effect from July 12, the day when new law was enforced.

Issuing a 21-page short order, a five-member bench, headed by Chief Justice of Pakistan Iftikhar Chaudhry, noted that by enacting the Contempt of Court Act 2012 in pursuance of Clause (3) of Article 204, read with Entry 55 of the Fourth Schedule to the constitution, an attempt had been made to reduce the powers of the court.

"Finding Section 2(a), Section 3, Section 4(4), Section 6(2&3), Section 8(1,3 &5), Section 10(b), Section 11(3, 4 & 5), Section 12 and Section 13 of COCA 2012 as ultra vires the constitution opined that the remaining provisions of the act, if allowed to stay on the statute book, would serve no purpose particularly, when it has been held that repealing section itself is a nullity, therefore, the principle of severability as applied by this court in Mehram Ali vs Federation Pakistan (PLD 1998 SC 1445) and Dr Mobashir Hassan case is not attracted. Therefore it declared the whole law unconstitutional, void and non est."

After hearing 27 petitions regarding the matter for ten days, the court observed in its short order that judiciary had never claimed supremacy over other organs of the state, however, it had a duty to interpret the constitution and law.

The short order also read, "The courts have always made efforts to avoid enforcement of their orders by taking extreme steps of punishing the delinquents for disobeying the orders/judgements. However, if an act of contempt of Court persists and no prompt action is taken, the court loses its authority and all its decisions and the judgments will be considered mere paper decrees, therefore, to maintain its dignity and respect and to restore the confidence of the citizens in the supremacy of the Constitution and the rule of law, as a last resort, proceedings for contempt of Court are initiated."

It also noted that under Article 204 read with Entry 55 of the Fourth Schedule to the constitution, the high courts and the Supreme Court have powers to punish any person who is found guilty of contempt of court, falling within the definition of contempt of court given in Clause (2) of Article 204 of the constitution.

It read, "COCA 2012 has been promulgated under Clause 3 of Article 204 of the constitution, which confers power on the legislature to make law to regulate the exercise of power by the Courts, and not to incorporate any substantive provision or defences as it has been done in the proviso."

The order said that powers of the courts have been reduced by incorporating expression "by scandalising a judge in relation to his office" whereas in Article 204(2) the word 'court' has been used.

The court observed that incorporation of Article 248(1) in proviso (i) to Section 3 is tantamount to amending the constitution, which could not be done without following the procedure laid down in articles 238 and 239 of the constitution.


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