Amending the Constitution in Self defence

The contempt laws are regarded as a sound piece of legislation in the United States, United Kingdom, India, Australia, Canada and many other countries, because ridiculing the courts of law and publicly criticizing the judicial verdicts or trial proceedings does have serious consequences. During Clinton-Lewinsky case, the then serving US President Bill Clinton did not have any immunity nor does any parliamentarian in the neighboring Canada ever dare break the contempt law. Even the Australian judge may impose a fine or convict any wrong doer irrespective of the social status of the culprit.

On the contrary, the federal cabinet of Pakistan has recently approved a bill in hurry to change the contempt law to clip the judiciary’s wings before July 12. In other words, previously guilty of having broken the ‘contempt law,’ the PPP regime of Pakistan is bent upon “customizing the constitution” through rubber stamp parliament just to protect unlawful deeds of the top brass, come what may.
Additionally, the cabinet also approved a draft bill tabled by the ministry for overseas Pakistanis proposing amendment to enable Pakistanis having dual nationality to contest election for the membership of parliament. Currently, the Supreme Court is hearing several cases against parliamentarians and has suspended membership The said controversial bill allowing some amendments in the existing contempt of court law is a major source of frustration among the members of legal fraternity, civil society and the unbiased media.

Furthermore, the passage of the bill would allow the beneficiaries to be more disrespectful towards the authority of the honourable judges.

Would the new contempt law rescue the defiant PM Raja Pervaiz? Only time will tell – because rule of law enforced by the Supreme Court is the ultimate interpreting and controlling factor on which the Constitution is actually based. Therefore, the Supreme Court and high court judgments aimed at upholding the constitution must be accepted by all.

The Zardari regime, nevertheless, is more focussed on bringing a constitutional amendment for simplifying the cumbersome procedure of the impeachment of the Chief Justice to save the current Prime Minister who is also refusing to write to the Swiss authorities for re-opening money laundering cases against Pres Zardari.

It’s noteworthy that the proposed constitutional amendment draft consists of four paragraphs and four sections; the sections 1 and 2 of the proposed amendment are related to the Supreme Judicial Council. The proposed Section 1 says only one senior judge of the Supreme Court, except the chief justice, will be included in the Supreme Judicial Council. Section 2 says the chief justices of all the four provincial high courts will be included in the Supreme Judicial Council as its members. Sections 3 and 4 of the proposed amendment are related to the impeachment of the chief justice.

The Upper House of the Parliament (The Senate), with two-thirds majority can impeach the chief justice under Section 3, while Section 4 of the proposed constitutional amendment says the impeachment process of the Chief Justice will start with a resolution, which would be required to have the signatures of at least half the members of the Senate.

The proposal says the chief justice could be declared disqualified after the impeachment trial.

On the other hand, Justice Chaudhry said, “the parliament cannot legislate any law repugnant to the constitution - adding that no one could claim supremacy over the law and constitution.”

Obviously, if a PPP friendly law is promulgated, the Supreme Court under its power of judicial review can review it. “The underlying object of judicial review is to check abuse of power by public functionaries and ensuring just and fair treatment to citizens in accordance with law and the constitutional norms," said Justice Chaudhry while addressing a delegation of Youth Parliament at the Supreme Court.

Furthermore, the government is attempting to interfere with the exercise of judicial powers in pending proceedings which amounts to obstruction of justice.

Like various other countries, the Supreme Court of Pakistan established that once judicial power has been exercised in a case pending before a court, legislative power may not be used to interfere in the exercise of judicial power.

Such use of legislative power is nothing but an unconstitutional legislative judgement.

Everyone knows that the PPP government has been continuously defying the Supreme Court orders ever since it came to power. Maliciously amending the contempt law means the courts will be irrelevant.

Fairly speaking, the holders of dual nationality should be allowed to vote and contest elections, but once elected they must surrender their foreign nationality before taking oath as people’s representatives.

Although, the parliament has a right to amend the Constitution and law, yet such a move would be considered mala fide in the current scenario. Just a simple majority is required to amend a law, while for making a constitutional amendment, a two-thirds majority of the two houses of parliament is needed.

With regard to the current Prime Minister, he is absolutely required to write to the Swiss authorities right away without delay, because the issue already stands adjudicated upon. Actually, PM Pervaiz Ashraf is liable to be convicted and disqualified on July 12 unless the judicial order is executed by him immediately as directed by the apex court.

[image from dawn.com]

On July 9, the contempt of court bill 2012 has been passed to provide a shelter to the top office holders including Prime Minister, federal ministers, ministers of state, chief ministers and provincial ministers against contempt of court proceedings.

Apparently, the new law would benefit the rulers’ cronies to defend their contempt, but the Supreme Court is empowered to review it upon petitioning and it may declare “the new law” as unconstitutional after due process.

Most importantly, as the Constitution is supreme, the Supreme Court is responsible to make sure that all institutions do respect “the Constitution and Rule of law” in true letter and spirit.