Another contempt petition filed in SC against top officials

Akram Sheikh files Nadeem Ahmad’s petition

ISLAMABAD: The Supreme Court has been moved to initiate contempt/treason proceedings against President Asif Ali Zardari and others for willfully ‘subverting and violating’ the Constitution and the clear judgments of the Supreme Court in the matter of the appointment of judges in the Islamabad High Court (IHC), deliberately and continuously.

The petition was filed by senior advocate Nadeem Ahmad through his lawyer Akram Sheikh on January 8, 2013.It also prayed for the initiation of contempt of court proceedings against President Asif Ali Zardari and others and seeks an order from the apex court to the federal Law Ministry to immediately issue notifications of appointment of judges in the Islamabad High Court (IHC), in accordance with the recommendations of the Judicial Commission of Pakistan (JCP) and confirmation by the Parliamentary Committee and without waiting for any communication from the Presidency.

It says according to the Constitution, the role of president in this matter is simply clerical/ministerial in nature.

The title of petition reads as: “Petition under Article 204 of the Constitution of Pakistan 1973 read with sections 3 & 4 of the contempt of courts ordinance 2003 & order xxvii of the Supreme Court rules 1980 for wilful and continuous disobedience of the order dated 21.12.2012 passed by this august court in Constitution petition No. 126/2012 and also for initiating proceedings under Article 6 of the Constitution of Pakistan 1973 read with provisions of the high treason punishment act 1973.”

The petition discusses in detail the arguments that president enjoys no immunity in proceedings of contempt of court cases and protection under Article 248 of the Constitution is not available to the designated functionaries if their actions suffer from mala fide of fact.

It explains how President Asif Ali Zardari has violated his oath of his office and breached different articles of the Constitution. The petitioner has made President Asif Ali Zardari, PM Raja Pervaiz Ashraf, Federal Law Minister Farooq H Naek, Federal Law Scretary Yasmeen Abbasy and Federation of Pakistan as respondents.

Important points of Nadeem Ahmad Advocate petition are as follows:

“5. That strictly in accordance with the mechanism prescribed in Article 175A, in its meeting held on 22.10.2012, the Judicial Commission of Pakistan, recommended confirmation of Mr. Shaukat Aziz Siddiqui, as a Judge and Mr. Noor-ul-Haq N. Qureshi as an Additional Judge for six months for Islamabad High Court.

6. That on 05.11.2012, the Parliamentary Committee, on receipt of the aforesaid nominations from the Judicial Commission, in terms of Clause 13 of Article 175-A of the Constitution, unanimously confirmed the said recommendations and sent the finalised decisions to the prime minister of Pakistan who forwarded the same to the president of Pakistan for appointment of these honourable judges. The advice/communication by the prime minister was received at Aiwan-e-Sadar within a week from 05.11.2012 but despite the lapse of more than five weeks and until 20.11.2012 and notwithstanding the completion of the constitutional process, respondents illegally and deliberately avoided to fulfill their constitutional obligation to promptly issue notifications for the appointment of the above-named Honorable Judges.

7. That on 19.11.2012, the Petitioner referred to Constitutional Petition No 126/2012 seeking a direction from the Honorable Supreme Court for issuance of notification of a completed Constitutional process as per mandate of Article 175-A. That the Constitutional Petition No 126/2012 was heard by the Honourable five-member bench on 20.11.2012, 22.11.2012, 13.12.2012 and 14.12.2012. On 20.11.2012, it was being learnt through these proceedings that Justice Anwar Khan Kaasi participated in the meeting for selection of above named two judges because “Justice Riaz Muhammad Khan was out of Pakistan for performing Hajj from 05.10.2012 to 29.10.2012, therefore, the participation of Justice Kassi could be inconsequential.” The entire press carried headlines on 23.11.2012 as the issue has been resolved and AG will place on record notification for appointment of Honorable Judges. Instead of doing as aforesaid, the Attorney General broke the “good news” to the court that president had made up his mind to send a Presidential Reference seeking advice of Supreme Court inter alia on certain issues concerning these appointments. Nevertheless, the reference was filed on 07.12.2012 and certain questions which were absolutely irrelevant for appointment of these two Honorable Judges were raised. In any event after concluding hearing of both sides this Honorable Court was pleased to reserve the judgment on 14.12.2012. This Honorable Court was pleased to announce the short order on 21.12.2012, giving a categorical direction to the Federation to issue notification which in this case was just a ministerial act but the respondents, despite a lapse of two weeks, are still avoiding to do so maliciously and contumaciously.

When the petitioner tried to ascertain the facts, he has learnt on good authority that both the president and prime minister have not taken necessary steps towards implementation of the order of this Honorable Court which amounts to a naked and stark violation of oath of their offices to safeguard and protect the Constitution and as such not only are they guilty of running down the judgment of this Honorable Court rendered after thorough deliberations by this court, but are also exposing themselves to the liability of subverting and violating the mandatory provisions of the Constitution and making themselves liable to be visited with penalties for the breach of the oath of their offices as well as that of subverting the constitutional mandate.

8. That as submitted hereinabove, the Parliamentary Committee having approved nominations of above named Honorable Judges unanimously and a summary sent by Respondent prime minister to Respondent president, the appointment of the above named Honorable Judges is being unconstitutionally and maliciously obstructed by Respondents now, despite judgment dated 21.12.2012 of this apex court while ordinary people who are consumers of justice suffer on a daily basis because of absence of sufficient number of judges in Islamabad High Court. The humiliation and embarrassment of the said two noble judges in question is itself something that this Honorable Court must take note of.

9. That although the president, under Article 248(2) of the Constitution enjoys limited immunity from criminal prosecution but proceedings of contempt of court are not stricto senso proceedings of criminal nature, this has been consistently held by this Hon’ble Court and nature of contempt of court proceedings, though they entail penal consequences, are sui generis. (Reliance is respectfully placed on Dr. Ali Sana Shakir Bokhari versus The State 2001 S C M R 519, Shahid Orakzai versus Pakistan Muslim League (Nawaz Group) 2000 S C M R 1969, Syed Masroor Ahsan versus Ardeshir Cowasjee P L D 1998 SC 823). The President’s wilful, deliberate and contumacious disobedience of the verdict/ order/ command of this Hon’ble Court as well as blatant disregard of the constitutional mandate of Article 175-A (13) call for interference by this Hon’ble Court and liable to be visited with penalties provided by the Constitution and the law. Since all of this is being done maliciously by the president, therefore, impleading him as respondent is mandatory in terms of the law declared by Supreme Court in Aman Ullah Khan versus The Federal Government of Pakistan PLD 1990 SC 1092 where it was held in paragraph 68(vi) at page 1150 “68. (vi) Protection under Article 248 of the constitution is not available to the designated functionaries if their actions suffer from mala fide of fact.”

10. That the conduct of Respondents requires issuance of show cause notices as to why action be not taken against them for causing obstruction to justice and willfully flouting the judgment of this august court as well as the constitutional process for more than two months from the unanimous approval by the Parliamentary Committee. It may be brought to the kind and gracious indulgence of this august court that even if the summary was to be treated as advice in terms of Article 48 of the Constitution, the time for taking action by the President was not more than ten days. The proviso to Clause 1 of Article 48 is reproduced hereunder for assistance. “Provided that [within fifteen days] the president may require the Cabinet or as the case may be, the prime minister to consider such advice, either generally or otherwise, and the president shall [within ten days] act in accordance with the advice tendered after such reconsideration” Moreover in a recent judgment, reported as 2012 SCMR 6 entitled Rana Amir Raza Ashfaq and another v Dr. Minhaj Ahmed Khan and another, this Honorable Court has been pleased to observe as under: “In the afore-referred circumstances, we further hold that the summary dated 11.07.2011 sent after reconsideration by the Chief Minister shall be deemed to have been acted upon and the department concerned shall issue the requisite notification accordingly.

In view of the above, it is most respectfully prayed that this august court may kindly be pleased to issue show cause notices to the Respondents as to why action be not initiated against them in terms of Article 204 along with all other provisions of the Constitution for acting in aid of Supreme Court under Article 190 and committing a willful breach of oath of their office in this behalf.

Besides initiating aforesaid proceedings and taking action against the Respondents, this Honourable Court may, by way of an interlocutory relief, graciously be pleased to direct Secretary Ministry of Law Justice and Human Right Division of Respondent Federation to issue notification in terms of the law declared by this Honorable Court in judgment reported as 2012 SCMR 6 para 28, so as to protect the fundamental rights of consumers of justice to enable them to have an unimpeded access to Islamabad High Court.

Any other action to which this Honourable Court may deem necessary and expedient in the interest of justice may also be taken with punitive costs.

In the alternative, it is prayed that interlocutory order passed in Constitutional Petition No. 11/2011,whereby Article 175-A was made functional be withdrawn and the procedure for appointment of judges which was prevalent after Al Jihad Trust’s case may be restored allowing Constitution Petition No. 11 and others still pending adjudication before this Honourable Court.

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