additional note added by Justice Asif Saeed Khosa in in contempt case

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additional note added by Justice Asif Saeed Khosa in in contempt case

Post by ziam612 » Fri May 11, 2012 10:49 am

Asif Saeed Khan Khosa, J.: I have had the privilege ofgoing through the proposed judgment authored by my learned brotherNasir-ul-Mulk, J. and I am in respectful agreement with the same. Iwould, however, add the following note to the proposed judgment.2. In the context of the case in hand I am reminded of thefollowing unforgettable words of Khalil Gibran that paint a picturewhich unfortunately appears quite familiar:Pity the NationPity the nation that is full of beliefs and empty of religion.Pity the nation that wears a cloth it does not weave,eats a bread it does not harvest,and drinks a wine that flows not from its own wine-press.Pity the nation that acclaims the bully as hero,and that deems the glittering conqueror bountiful.Pity the nation that despises a passion in its dream,Pity the nation that raises not its voicesave when it walks in a funeral,boasts not except among its ruins,and will rebel not save when its neck is laidbetween the sword and the block.Pity the nation whose statesman is a fox,whose philosopher is a juggler,and whose art is the art of patching and mimicking.Pity the nation that welcomes its new ruler with trumpeting,and farewells him with hooting,only to welcome another with trumpeting again.Pity the nation whose sages are dumb with yearsand whose strong men are yet in the cradle.Pity the nation divided into fragments,each fragment deeming itself a nation.3. With an apology to Khalil Gibran, and with reference to thepresent context, I may add as follows:Pity the nation that achieves nationhood in the name of a religionbut pays little heed to truth, righteousness and accountabilitywhich are the essence of every religion.Pity the nation that proclaims democracy as its politybut restricts it to queuing up for casting of ballots onlyand discourages democratic values.Pity the nation that measures honour with successand respect with authority,that despises sublime and cherishes mundane,that treats a criminal as a hero and considers civility as weaknessand that deems a sage a fool and venerates the wicked.Pity the nation that adopts a Constitutionbut allows political interests to outweigh constitutional diktat.Pity the nation that demands justice for allbut is agitated when justice hurts its political loyalty.Pity the nation whose servants treat their solemn oathsas nothing more than a formality before entering upon an office.Pity the nation that elects a leader as a redeemerbut expects him to bend every law to favour his benefactors.Pity the nation whose leaders seek martyrdomthrough disobeying the lawthan giving sacrifices for the glory of lawand who see no shame in crime.Pity the nation that is led by thosewho laugh at the lawlittle realizing that the law shall have the last laugh.Pity the nation that launches a movement for rule of lawbut cries foul when the law is applied against its bigwig,that reads judicial verdicts through political glassesand that permits skills of advocacy to be practisedmore vigorously outside the courtroom than inside.Pity the nation that punishes its weak and poorbut is shy of bringing its high and mighty to book.Pity the nation that clamours for equality before lawbut has selective justice close to its heart.Pity the nation that thinks from its heartand not from its head.Indeed, pity the nationthat does not discern villainy from nobility.4. I must clarify that I do not want to spread despair ordespondency and it may be appreciated that no reform orimprovement is possible until the ills or afflictions are identified andaddressed. The respondent’s conduct in this case regrettably appearsto be symptomatic of a bigger malady which, if allowed to remainunchecked or uncured, may overwhelm or engulf all of us as a nationand I recall here what Johne Donne had written:Each man’s death diminishes me,For I am involved in mankind.Therefore, send not to knowFor whom the bell tolls,It tolls for thee.5. Khalil Gibran had also harped on a somewhat similar theme asunder:On Crime and PunishmentOftentimes have I heard you speak of one who commits a wrong asthough he were not one of you, but a stranger unto you and anintruder upon your world.But I say that even as the holy and the righteous cannot rise beyondthe highest which is in each one of you,So the wicked and the weak cannot fall lower than the lowest whichis in you also.And as a single leaf turns not yellow but with the silent knowledgeof the whole tree,So the wrong-doer cannot do wrong without the hidden will of youall.Like a procession you walk together towards your god-self.You are the way and the wayfarers.And when one of you falls down he falls for those behind him, acaution against the stumbling stone.Ay, and he falls for those ahead of him, who though faster and surerof foot, yet removed not the stumbling stone.And this also, though the word lie heavy upon your hearts:The murdered is not unaccountable for his own murder,And the robbed is not blameless in being robbed.The righteous is not innocent of the deeds of the wicked,And the white-handed is not clean in the doings of the felon.Yea, the guilty is oftentimes the victim of the injured,And still more often the condemned is the burden bearer for theguiltless and unblamed.You cannot separate the just from the unjust and the good from thewicked;For they stand together before the face of the sun even as the blackthread and the white are woven together.And when the black thread breaks, the weaver shall look into thewhole cloth, and he shall examine the loom also.6. I deem it important and relevant to explain here the conceptualbasis of the law regarding contempt of court. The power to punish aperson for committing contempt of court is primarily a power of thepeople of this country to punish such person for contemptuousconduct or behavior displayed by him towards the courts created bythe people for handling the judicial functions of the State and suchpower of the people has been entrusted or delegated by the people tothe courts through the Constitution. It must never be lost sight of thatthe ultimate ownership of the Constitution and of the organs andinstitutions created thereunder as well as of all the powers of suchorgans and institutions rests with the people of the country who haveadopted the Constitution and have thereby created all the organs andinstitutions established under it. It may be advantageous to reproducehere the relevant words of the Preamble to the Constitution of theIslamic Republic of Pakistan, 1973:“we, the people of Pakistan ------- Do hereby, through ourrepresentatives in the National Assembly, adopt, enact and give toourselves, this Constitution.”It is, thus, obvious that a person defying a judicial verdict in factdefies the will of the people at large and the punishment meted out tohim for such recalcitrant conduct or behavior is in fact inflicted uponhim not by the courts but by the people of the country themselvesacting through the courts created and established by them. It may bewell to remember that the constitutional balance vis-à-vis trichotomyand separation of powers between the Legislature, the Judiciary andthe Executive is very delicately poised and if in a given situation theExecutive is bent upon defying a final judicial verdict and is ready togo to any limit in such defiance, including taking the risk of bringingdown the constitutional structure itself, then in the final analysis itwould be the responsibility of the people themselves to stand up fordefending the Constitution and the organs and institutions created andestablished thereunder and for dealing with the delinquentappropriately. It shall simply be naïve to underestimate the power ofthe people in matters concerning enforcement of their will. The recentphenomenon known as the Arab Spring is too fresh to be ignored orforgotten. Going back a little, when told about the Pope’s anger overthe ruthless Stalinist suppression of dissent within Russia JosephStalin dismissively made a scornful query “The Pope? How manydivisions does he have?" History tells us that the will of the Russianpeople ultimately prevailed over the Soviet Union’s army of countlessdivisions. A page from our own recent history reminds us that theChief Justice of Pakistan did not possess or control any division whenhe refused to obey the unconstitutional dictates of General PervezMusharraf, who commanded quite a few divisions, and still emergedvictorious with the help of the people. The lesson to be learnt is that ifthe cause is constitutional and just then the strength and support forthe same is received from the people at large who are the ultimatecustodians of the Constitution. I am not too sure as to how manydivisions would a population of over 180 million make!7. The respondent is the Chief Executive of our Federation whohas openly and brazenly defied the Constitutional and legal mandateregarding compliance of and obedience to this Court’s judgments andorders. The following words of Justice Louis Brandeis of the UnitedStates Supreme Court in the case of Olmstead v. United States (227U.S. 438, 485) seem to be quite apt to a situation like this:“In a government of laws, existence of the government will beimperiled if it fails to observe the law scrupulously. OurGovernment is the potent, the omnipresent teacher. For good or forill, it teaches the whole people by its example. Crime iscontagious. If the Government becomes a lawbreaker, it breedscontempt for law; it invites every man to become a law untohimself; it invites anarchy.”The respondent is our elected representative and our Prime Ministerand in his conviction lies our collective damnation. This surely callsfor serious introspection. I believe that the proposed judgmentauthored by my learned brother Nasir-ul-Mulk, J. is a step towards theright direction as it kindles a flame of hope for a future for our nationwhich may establish a just and fair order, an order wherein the lawrules and all citizens are equal before the law.(Asif Saeed Khan Khosa)Judge


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