President’s dual office
THE effects of the Supreme Court’s judicial intervention is echoing in the corridors of the Lahore High Court which is entertaining a contempt of court application directing President Asif Ali Zardari to submit a written reply explaining his position on compliance with the judgment in the Pakistan Lawyers Forum case.
The latter saw a petition being filed in the LHC challenging the dual offices of the president.
The LHC declared in its judgment that “the duties and functions of the President of Pakistan are to be discharged by him with complete neutrality, impartiality and aloofness from any partisan political interest”. The court felt the need to further probe the matter as the president continues to retain the office of PPP co-chairperson and Pakistan’s president in violation of the judgment.
The bench seems to have accepted that the proceedings pertaining to the commission of civil contempt do not fall within the purview of Article 248(2) of the constitution that prohibits any criminal proceedings against the president. The next date of the hearing is Sept 5.
The LHC took note of the matter by invoking the principle laid down in the Yousaf Raza Gilani case, in which the prime minister was disqualified for not abiding by the Supreme Court’s directions. There is a slight but meaningful distinction between the two cases. Civil contempt of court means the ‘wilful flouting or disregard of the court’s order or direction’. In the Mubashar Hasan case that led to the contempt of court conviction against the former prime minister, the Supreme Court had passed an unambiguous, direct order to the federal government in paragraph 178 of the judgment. But the Lawyers Forum case was disposed off without issuing any binding direction to the president.
In paragraph 39 of the judgment it was expressed that “consequently it is expected that the President of Pakistan would abide by the foregoing declaration of the law to disassociate, himself from political office at the earliest possible” and further expressed in paragraph 40 “that the President of Pakistan would cease the use of the premises of the presidency for the purpose and political meetings of his party”. It seems as if the “expectations” expressed in paragraph 39 of the judgment have been considered as binding directions to the president and the court has started contempt proceedings by taking exception to the “non-fulfilment” of these “legitimate expectations”.
In my opinion where no direction or order had been passed to the president, the institution of the charges of civil contempt of court is legally unqualified. Charges of civil contempt would demand that there be a legally binding order or direction to the president. In the absence of any such direction by the court, the question of wilful flouting and disregard of the court’s direction or order does not arise. In addition, the argument that charges of civil contempt of court do not fall within the prohibition contained in Article 248(2), loses its worth on two basic points: first, the mere use of the term ‘civil contempt’ does not alter the criminality of contempt of court. Secondly, the law defines that the contemnor shall not be punished, unless the contempt committed by him is one which is substantially detrimental to the administration of justice or which scandalises the court or otherwise tends to bring the court or the judges into hatred or ridicule. This kind of contempt is generally known as criminal contempt of court.
In other words, the law does not provide punishment for civil contempt of court by itself. This is the reason why former prime minister Yousuf Raza Gilani always says that he was charged with civil contempt but implicated for criminal contempt without being charged for the latter.
The procedure provided in the Contempt of Court Ordinance 2003 (since repealed but under which proceedings against the president’s dual office were initiated) is criminal in nature and does not provide a separate process to deal with cases of civil contempt.
The Pakistani president, unlike the prime minister, enjoys absolute immunity from the initiation and continuance of criminal proceedings during his tenure in office. This immunity is accepted by the legislature as it has not been amended, altered or repealed although there were 20 major amendments to the constitution. In such a situation to ensure the issuance and compliance of court proceedings, the LHC will have to tackle the constitutional impediment of Article 248(2).
The tussle between the civil organ of the executive and judiciary is causing harm to the parliament and democratic system. It has changed the outlook of the separation of powers embodied in the constitution. The courts may appear poised to adopt the role of the Council of Revision (a body, including judicial representatives, for revising all new legislation made by the New York State Legislature, back in 1777, but never adopted by the framers of the American constitution), under the power of judicial review.
The interpretation of the constitution should be just that — interpretation. It should go no further otherwise it can be seen as an attempt at rewriting the constitution. In the current situation, there may not be the kind of opposition that would have been expected under normal conditions because the civil organ of executive, due to its incompetence and corruption, has lost support amongst the common public. But the judiciary should tread carefully lest in its enthusiasm to be the benefactor of the public it harms the constitutional system.
The writer is an advocate.