A lot of people have opinions about certain Articles of the Constitution, most of them not Constitutional scholars. That’s okay. It is a democracy and we are allowed to have our own opinions and honestly some of those with the most letters behind their name sometimes make the least sense. Most of the debate has been about Article 248 and whether its granting of immunity to the President requires interpretation. There is another Article of the Constitution that is equally controversial, though, and grants an even broader form of immunity but has not received the same level of scrutiny as Article 248, though it has, one can argue, had even greater effect on the government.
When the Prime Minister explained that the Law Ministry advised him that the president enjoys blanket immunity during his term in office under Article 248, Zardari haters in the media asked if this meant the president had ‘licence to kill’. More reasonable people suggested that being unambiguous does not make Article 248 uncontroversial.
Though the Constitution allows for immunity of a sitting head of state, the Court may want to reexamine this practice by looking to how this immunity violates other constitutional protections. However, the Court should defer to the elected branches and temper its activism to instances where the most fundamental constitutional rights are at risk.
After months of controversy and court orders, though, questions about Article 248 remain conveniently unanswered. Ironically, despite all the attention to Article 248, it was actually Article 204 that cost the Prime Minister his office.
Article 204 reads as follows:
204 Contempt of Court.
(1) In this Article, “Court” means the Supreme Court or a High Court.
(2) A Court shall have power to punish any person who,
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;
(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;
(c) does anything which tends to prejudice the determination of a matter pending before the Court; or
(d) does any other thing which, by law, constitutes contempt of the Court.
(3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court.
Let us, for the sake of argument, examine this article with the same logic used by opponents of the present government. If the Court can punish any person who disobeys any order of the Court, does that mean that Chief Justice can order the President to kill?
Okay, that was fun. But now for the sake of reason, let’s think about just how ambiguous Article 204 really is and whether such broad language is actually bad for the Court.
First, this article raises serious problems for separation of powers. Parliament is tasked with writing laws, the judiciary with interpreting them, and the executive with enforcing them. If one branch can compel another to do what it wants, though, then it creates redundancy. Why bother with an executive if the judiciary has the power to enforce its own decisions?
This might sound strange at first, but an important part of governing is prioritising. The Court will have certain priorities and these are reflected in the cases the Court chooses to take notice of. The executive has its own priorities, which may not be 100 per cent identical to the Court. These are reflected in its enforcement decisions. By separating these powers into two independent institutions, we make sure that no one institution has too much power.
It’s interesting that we come to the issue of power consolidation, because there is something of this reflected in 204(2)(b). Dictators – the greatest power consolidators of all – are infamous for demanding unquestioning fealty to their decisions. But there’s a difference between unquestioning fealty and credibility. People don’t respect dictators, they fear them. That won’t do for a court.
Some decisions of the Court will be controversial. If there was no controversy, there would be no need for a Court in the first place. But respect for the judiciary is not gained by threat of punishment, it is gained by providing well reasoned explanations for its decisions.
The former Prime Minister repeatedly said, “I respect the Court”. He appeared when called, he gave his arguments, and the Court punished him for ridicule – something the Prime Minister never did. Media are afraid to criticise the Court because the Chief Justice has sent a loud signal that he takes a very broad interpretation of Article 204 and that he will not hesitate to use it against even the most powerful if he doesn’t like what they have to say, and an army of black coats roam the streets threatening to enforce his rule.
By wielding the threat of contempt power so loosely, the Supreme Court may be asserting itself among institutions that have abused it in the past, but their Lordships should be careful that they do not become that which they aspire against – an institution seen as acting on politics and not principles, and thereby bringing the Court or a Judge of the Court into hatred, ridicule or contempt in the eyes of the public.