Mian Muhibullah Kakakhel
Supreme Court of Pakistan
The Contempt of Court Law in Pakistan is non-existent hence Imran Khan has wrongly been summoned to the court and cannot be punished under the law. The law of Contempt of Court was enacted in 1976 called Contempt of Court Act, 1976 which provided for summoning, charging and punishing a person accused of committing contempt of the court. The act was subsequently repealed vide ordinance No. V of 2003. The ordinance lapsed after completing its four months constitutional age and no further ordinance was promulgated. The same ordinance was never placed before the parliament for approval. The previous law of Contempt of Court i.e. Act of 1976 having been repealed could not be resurrected under the constitution, resultantly, today no law of Contempt of Court exists and the superior courts having chosen to function more on executive side than doing judicial work could not take notice that after repeal of ordinance of 2003 no law of Contempt of Court survived.
I am making this submission with reference to Article 264 of the Constitution where it has been specifically provided that a law, (An ordinance) when repealed or is deemed to have been repealed by, under, or by virtue of the Constitution the repealed law cannot be revived after the repeal of the repealing law, hence, article 204 of the Constitution does not have the logistics provided by 204(3) to summon, charge or punish contemnor as the powers under section 204 are to be exercised through an act of parliament and the act of parliament i.e. Contempt of Court Act, 1976 having been repealed and the ordinance of 2003 dealing with the Contempt of Court having lapsed or having not been placed for ratification is also non-existent. It therefore, follows that the punishment for contempt awarded to Prime Minister Gillani is questionable and summoning of some other dignitaries under the Contempt Law was also not supported by law. The Supreme Court has summoned Imran Khan for having allegedly used some words not liked by the delicate Supreme Court judges but ironically no provision of law existed for summoning Imran Khan, the Chief of Pakistan Tehreek Insaf, the merits of the case besides.
It is high time that superior courts should refrain from using unbridled powers purportedly or under any vivid supposition of law. The use of words You Fool did not bother the House of Lords to issue a Contempt notice as in their Lordship wisdom the comment amounted to an exception to the law of Contempt and was allowed under the Fundamental Right of Freedom of Speech.
In their Lordships wisdom the act of publishers and printers in publishing You Fool amounted to Freedom of Press and Expression. The judges should therefore resist the temptation of ego satisfaction through use of absolute power.
When their Lordship of the privy council were referred to as Five Donkeys their Lordships swallowed the reference because they knew that everybody knows that they are human beings and not donkeys and any reference could possibly be because of their hard work and not because they are donkeys. The freedom of press and expression allowed such a remark and the House of Lords could not take cognizance. In yet another occasion when a shoe was thrown on a judge of the superior court in America right during the court proceeding the judge remarked that it was not aimed at him, hence, no action taken.
Contempt power, though jurisdiction-ally large, is discretionary in its unsheathed exercise. Every commission of contempt need not erupt in indignant committal or demand punishment because judges, by training, are judicious. Their valour is non-violent and their wisdom goes into action when played upon by a volley of values, least of which is personal protection because wide discretion, circumspection and public consideration benignant guide contempt power. To a judge when in role of prosecutor on a contempt charge justice is not arrogance, power is not petulance, prudence is not weakness and mercy is a mark of strength and not a whimper of weakness. Observed Chief Justice (Rtd) Sardar Mohammad Iqbal.
Contempt of Court Ordinance 1 of 2004 expired after completion of constitutional period and the act of 2012 dealing with the Contempt of Court was set aside by the Supreme Court leaving no law behind dealing with Contempt of Court. In Baz Muhammad Kakar Case the Supreme Court had to take shelter behind Contempt of Court Ordinance, 2003 which could not be revived by the Supreme Court due to the express bar of article 264 of the Constitution, hence, the legislature needs to enact the Contempt of Court Act afresh dealing with the present day media oriented society and keeping in view the Freedom of Speech, Press & Expression. The legislature should enact the Contempt of Court law in consonance with the requirements of present day society and the holy cause should start milking now instead of becoming hermits in the shrine of Justice. The Contempt Law be enacted by the parliament after due deliberation and discussion with Bar Associations, Bar Councils, Media Men and Judiciary.
A detailed article on Law of Contempt of Court will follow this entreaty.