It may be recalled that on 2nd February, a seven-member trial bench had decided to proceed with framing of contempt charges against him. According to a press release, the PM filed an appeal against this preliminary order. The appeal was heard at length by a separate eight-member bench, headed by the Chief Justice of Pakistan. On 10th of February, after a detailed hearing, the appeal was turned down through a short order. The reasons in support of that order have now been released. The 15-page judgement has been authored by Justice Jawad S. Khawaja. Since this was only the preliminary stage, the judgement refrains to passing any comment on the key defences presented by the PM.
These include the PM's argument that his act of contempt, if any, was not 'wilful', and that he was only following official summaries, which under the rules, he had received. These defences, the Court has said, require appraisal of evidence and are best left for adjudication by the trial bench. The Court has held that at this preliminary stage, all it needed to make up its mind was 'an arguable case' that contempt may have been committed.
From the simple facts available on record, it was amply clear that such a case did exist against the PM, since he had not and still has not implemented directives issued in the NRO judgement. It was now up to the PM to present evidence and legal reasons to show how, if at all, the preliminary impression was unfounded.
While staying quiet about the PM's affirmative defences, the opinion highlights important constitutional principles, which have a bearing on the case. The two salient principles which have been expounded include: firstly that all people, regardless of their stature in society, are equally bound by the law and are expected to obey court orders; and secondly, that the possibility of contempt being committed by a constitutional functionary was a more, not less, serious matter than if the same had been done by an ordinary citizen.
In explaining this legal position, the Court has referred to the Preamble, Article 5 and Article 25 of the Constitution, as well as to statements of the founding fathers of Pakistan, and to its own precedents. The Court has explained the underlying spirit of these articles by referring to a well-known saying of the Holy Prophet (Peace Be Upon Him). The hadith warns us that societies where the law was reserved only for the ordinary people, while the powerful were kept shielded from it, suffer destruction.
The Court explains that was in the light of this perennial wisdom that the framers based our Constitution on the principle of equality before law. Officials were meant, under our constitution, to diligently and faithfully serve the people and not to rule over them with impunity.
Justice Khawaja has also expounded an important constitutional doctrine concerning 'public trust'. According to this doctrine, all constitutional officers hold their office only as a trust for the general public. Being trustees they are bound to follow the instructions of the general public.
Since these instructions, in a modern democratic society, find their best expression in the form of the constitution and the law, obedience to the same becomes a necessary corollary of the fiduciary duty of trustees. This is why all constitutional functionaries are required to take an oath promising adherence to the Constitution and the law. And, in Article 190, they have also been expressly obliged to act in aid of the Supreme Court.
If, however, constitutional functionaries do not show such obedience, they can be seen as have violated the trust reposed in them by the public. It is to take stock of such violations of public trust, and not because of any egoistic reasons, that courts are obliged to proceed against violators - a possibility contemplated in our Constitution's Article 204.
The eight-member bench which passed this judgement comprised Chief Justice Iftikhar Muhammad Chaudhary, Justice Mian Shakirullah Jan, Justice Jawwad S. Khawaja, Justice Anwar Zaheer Jamali, Justice Khilji Arif Husain, Justice Tariq Parvez, Justice Mian Saqib Nisar, and Justice Amir Hani Muslim.-PR