Daily Times

Regarding the Supreme Court (SC) judgment in Prime Minister (PM) Gilani’s contempt case, following is my respectful dissent in layperson’s language that is shorn of detailed legalese, in deference to the formatting demands of a newspaper column.

An initial review of the judgment reveals, apart from other questionable conclusions drawn by the learned Justices, a stunning ruling: the misuse and misapplication of a defunct and extinct law, i.e. the expired Contempt of Court Ordinance V of 2003, to convict and punish the constitutional and democratically elected Prime Minister, who was not a party in litigation in the underlying case of Dr Mubashir Hassan vs Federation of Pakistan.

In paragraph 68, page 65 of the judgment, the honourable Court states: “The said Ordinance V of 2003 derives its authority from Article 204 (3) of the Constitution, Article 204 (2) of the Constitution empowers this Court to punish a person for committing ‘Contempt of Court’.”

Firstly, assuming that the old 2003 Contempt Ordinance ‘derived its authority’ from Article 204 (3) of the Constitution, the central issue was not the constitutional authority of the said Ordinance, but whether this Ordinance had current validity because of the time sensitivity and temporary nature of the Ordinance.

The fact is that all ordinances, including the obsolete 2003 Contempt of Court Ordinance, unlike regular laws or Acts enacted by the legislature, are unique, ad hoc, stop-gap measures or what are called ‘sunset’ laws having a fixed, limited and specified duration. They are creatures of the Pakistan Constitution, specifically and solely Article 89 of the Constitution that exclusively empowers the president to promulgate an ordinance only for a short, limited time in order to deal with an urgent situation, when parliament is not in session and when ‘circumstances exist, which render it necessary to take immediate (legal) action’ — Article 89 (1).

When it comes to defining the parameters of an ordinance, Article 89 of our Constitution and not Article 204 is the controlling and governing law. It is aptly titled ‘Power of President to promulgate Ordinances’. Clause (1) and (2) of Article 89 details the time duration (120 days), extension (only one permitted), repeal, expiration and its possible enactment by parliament. Moreover, the preamble of the Contempt of Court Ordinance, 2003 expressly specifies the source of its power or authority: “… in exercise of the powers conferred by clause (1) of Article 89 of the Constitution… the President is pleased to make and promulgate the…Ordinance.”

Secondly, misapplying this ineffective 2003 Ordinance by the SC to convict the PM, the SC in paragraph 68, page 65 of the judgment held that “…Article 204 (2) of the Contempt Ordinance empowers this Court to punish a person for committing Contempt of Court.” This Ordinance, like other ordinances, expired a long time ago. It was promulgated in about July of 2003 for a period of 120 days pursuant to Article 89 of the Constitution. Perhaps it got one extension for an additional period of 120 days. The fact is that this Ordinance was never laid before parliament as a bill and converted into or adopted by parliament as a regular statutory law or an Act, as was clearly required by Article 89 (2). Consequently, the Ordinance expired, lapsed, and became obsolete or non-existent as a prevailing and effective law of the land.

It is a well-established principle of law that courts do not interpret, effectuate, adjudicate or take into consideration a law that has expired or lapsed, no matter how exiguous is the offence. Once a law lapses because of its limited timeframe or because of inherent sunset provisions, it loses its effectiveness and validity. An extinct law cannot also be applied prospectively. Thus, the SC cannot use or apply this expired 2003 Contempt Ordinance to punish the PM, since this Ordinance is not in vogue or in force and is not a prevailing or enforceable law of the land. Article 204 (3) of the Constitution, regardless of any derived authority, cannot resurrect a dead ordinance such as the 2003 Contempt Ordinance.

Thirdly, in arbitrarily dismissing the Attorney General’s sound argument that no law of contempt was in force in the country since the Contempt Ordinance of 2003 lapsed under Article 89, the honourable Court in paragraph 47, page 44 of the judgment, summarily and arbitrarily dismisses this correct contention by citing an old 2007 case — Suo Motu Case No1 of 2007 — where the SC held this Ordinance to be valid and prevailing. However, this case and the Justice Hasnat Ahmed Khan case are not relevant here and cannot be used as persuasive precedents because, as pointed out above, the subject Ordinance is or was time-sensitive. Unlike parliamentary Acts, it came with an expiration date. Therefore, even assuming that it was valid and in force in 2007, it cannot be so now in the year 2012 after a further lapse of five years. Moreover, those two cases are vastly distinguishable in nature of circumstances and controversy from the matter at hand.

Fourthly, the Court in paragraph 47, page 44 erroneously asserts that “even if there was no sub-constitutional legislation (the Contempt Ordinance, 2003) regulating proceedings of Contempt of Court, the Court was possessed of constitutional power under Article 204 to punish the PM.” This may or may not be true. However, this is purely an academic and moot point since the SC did choose and invoke this obsolete Contempt Ordinance and not Article 204 to sentence the PM. Furthermore, the said Article 204 clearly contemplates and mandates “the exercise” of contempt powers conferred on the Court to “be regulated by law”.

Fifthly, the SC in its judgments goes a long way in emphasising its constitutional right of interpretation of law. No one can argue with this basic right of the SC. However, to the extent the application of the 2003 Contempt Ordinance is concerned, it is not a question of interpretation of its provisions. We are not discussing or interpreting the contents of this law. Simply put, this law expired a long time ago; it is no more a prevailing law; it does not exist in the statute books. It ceased to be a law some time ago, so the question of its interpretation does not arise at all.

Sixthly, this judgment holding the PM guilty of contempt violates some of the fundamental, constitutionally guaranteed principles of fair trial and due process, such as a right to jury trial and assumption of innocence during the trial, etc. Paragraph 27 of the verdict reveals that the justices had already formed an opinion of guilt of the PM even before the arguments and trial began. A trial is adversarial in nature, i.e. it is one party, the prosecutor or the state versus an individual defendant, the duty of the former being to prove and convince the judge the culpability of the latter. Here the prosecutor himself said that there was no evidence sufficient to establish the charges against the PM (see paragraph 47), so why despite this assertion by the prosecutor did the honourable Court find the PM guilty? In addition, there was no jury as required by the Constitution.

Finally, the extra-judicial note by the learned Justice Khosa. The learned judge refers to ‘the power of the people’ and ‘Arab Spring’. Inciting people to rebellion, to take the law in their own hands by coming out on the streets to subvert or overthrow a constitutionally established, elected government is very close to being treasonous under our Constitution.

The writer is a JD, Attorney at Law in Houston, USA and can be reached at Tausifkamal@hotmail.com