Rethinking contempt
WHILE contempt of court laws for scandalising the judiciary are becoming obsolete in most common law jurisdictions around the world, the flurry of proceedings initiated by the Supreme Court in Pakistan recently suggests a disturbing trend.
A rethinking of contempt of court laws, in particular contempt for scandalising or ridiculing the judiciary is imperative in Pakistan today for multiple reasons.
Some of them include the dubious history of the offence in the subcontinent, the global trend that suggests that contempt of court is becoming irrelevant, and the unorthodox role of the judiciary today that requires more, not less, accountability.
As with most of our criminal law, the offence of contempt of court is a remnant of Pakistan’s colonial past. The rationale behind criminalising ‘scandalising’ the court can be found in R. v. Almon, a 1765 judgment that entrenched the offence in common law.
According to Justice Wilmot: “The arraignment of the justice of the judges is arraigning the king’s justice. It is an impeachment of his wisdom and goodness in the choice of his judges and excites in the minds of the people a general dissatisfaction with all judicial determinations….”
To put it simply, judges were above reproach as they were a manifestation of the king’s absolute power — to criticise the judiciary would be to criticise the king, which was, of course, an intolerable act.
In 1899, the Privy Council noted that contempt of court for ridiculing the judiciary was no longer relevant in Britain, but that “in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity of and respect for the court.”
The offence was transported to the subcontinent soon after, and in 1926, India got its first contempt act. It is also worth mentioning here that the current Contempt of Court Ordinance, 2003, was promulgated by Gen Pervez Musharraf — the arch-nemesis of our present Supreme Court — and is currently being challenged in the court itself.
In a democracy where sovereignty vests in the people, not the monarch or coloniser, where freedom of speech and freedom of information are both fundamental rights, there is a dire need that the relevance of contempt of court laws is rethought.
In 1941, the US Supreme Court declared that contempt proceedings violated freedom of expression, a fundamental right guaranteed by the American constitution. Justice Black observed: “An enforced silence, however limited, solely in the name of preserving the dignity of the Bench, would probably engender resentment, suspicion and contempt, much more than it would enhance respect”.
The Supreme Court adopted a very high standard — the ‘clear and present danger’ test — which requires that the ‘evil’ in question must be extremely serious and imminent before utterances can be punished.
In the United Kingdom, Lord Denning expressed the same reservations in 1968: “We will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”
Courts in Canada, New Zealand, Hong Kong and various other common law jurisdictions have also restricted the applicability of the offence.
In India, even though the offence of scandalising the judiciary is still enforced, there is a movement to amend the law because of its inherent potential for abuse.
In 2002, the Indian Supreme Court convicted activist Arundhati Roy for scandalising the court on the basis of an affidavit she made in response to a contempt of court notice for protesting against a SC judgment on Narmada Dam.
In the affidavit, she questioned the court’s motives for initiating the contempt proceedings.
The judgment was severely criticised and legal experts agree that instead of protecting the judiciary against disrepute, it caused an irreparable blow to the court’s credibility.
It is evident that the Supreme Court of Pakistan today does not meet the archetype of the orthodox judiciary.
Even the most ardent supporters of the post-restoration court agree that the judiciary has entered the domain of executive power through micro-managing certain high-profile cases and venturing into moral, economic and political decision-making. There is, of course, difference of opinion over whether this overreach is protecting the country from a corrupt government, or instead, if the Pakistani version of judicial activism is weakening an already fragile democracy.
At this point, however, the more important question is this: given the unorthodox and quasi-political role of the Supreme Court today, should the judiciary be relying so much on its traditional protections?
Surely, if the judiciary is exercising discretion in its use of suo motu powers, that discretion should be open to criticism.
If the largest political party in parliament is aggrieved that the judiciary is biased against its members, the least they should be able to do is fearlessly express their concern. And if the chief justice’s son is prima facie involved in a multi-billion-rupee corruption scandal to allegedly influence the court, his accuser’s allegations must not silenced on the pretext that they are an attempt to dishonour the judiciary.
The SC has bravely taken upon an enormous task of standing as a bulwark against corruption, mismanagement, and according to some analysts, a complete breakdown of the Pakistani state.
Undoubtedly, this goes beyond the role of a traditional judiciary, and mandates greater scrutiny and accountability.
One hopes that unlike heroes of our past, the SC does not resort to stifling dissent in order to maintain its glory, as surely, that should rest on a stronger foundation.
The writer is a lawyer.
reema.omer@cantab.net
What is 'contempt of court' — a desecration of a judicial Holy House of Worship?
The judges will have to come down to the level of human beings in Pakistan from their self elevation of a self-designed godly pedestal.
Nowhere in the world the prime ministers are being fired for the contempt of the supreme courts headed by ex members of PCO1s. This certainly no way to earn respect for a judiciary that did install a dictator in 1999.
You wrote an erudite column Reema Omer — thank you.
Remember people, judges of this supreme court were 'gotten' reinstated by opposition parties. So, the judges owe their existence to likes of Nawaz Sharif, Qazi, Imran, etc. Do you expect them to forget those that got them back to lucrative jobs? It is okay to sacrifice 'the driver'. Aitzaz has no money and he does not have the potential to become PM. So, there you go out of the window poor Aitzaz. If you had money and power, then it would have been a different story.
Yes in most countries contempt of court is obsolete. However in these countries a more lethal concept is strictly enforced. And that is “Obstruction of Justice”. Whereas contempt of court relates only to courts, “Obstruction of Justice” encompasses all prejudicial investigations and all judicial proceedings. If this concept of “Obstruction of Justice” were enforced in Pakistan all Parlimentarians will end up behind the bars.
Remember, a court in any country cannot execute its own orders. It relies on the executive authorities to excute a judgement. In the absence of an execution of a judgment, the ordering court has no other means but to rule it as a contempt of the court. Mr. Gilani did not recieve a contempt of court order because of his right of freedom of speech was violated; it's because, being the top most executive, he failed to excute, not a lower court, but a supreme court's judgement. Did Mr. Gilani think he was better learned in the laws than theose 3, 6 or nine judges on the bench? Besides, he was protecting his boss who had commited a crime in the past and illegally got of the hook by the NRO. In other words, Mr. Gilani was supporting his boss in plundering the wealth of the country or tax payers' money! If Nixon can be removed for a petty crime, so what's the big deal in disqualifying Mr. Gilani for collaborating in a crime. Pakistani must learn to obey the laws at the highest level so that the common public will also learn to obey the laws.
U r right tangier
the contempt of court law is abusedly used against a particular group of politician. in the current era where freedem of expression is the basic right of an individual this law holds no grounds. it should be abolished with no wastage of time. the unseen forces are using the shoulder of judicary to meterialize their plans against judiciary. it is time for ifikhar chaudhary to relook and rethink on the present activisim of the judiciary. it is causing much danger to the weak democracy and benifiting the ……….
what a joke to defend corruption by arguing that judiciary is activist.according to the author and mr iftikhar leave the corrupt scot free so that they can fleece the country and since executive is party in corruption and thus not investigating the clan .so you want that nobody stop them for what they are doing.infact these judges are the only hope for this nation.if executive becomes neutral and unprotecting to the corrupt then the judges would not have to step in.
Brilliant points made. An activist and political judiciary should not be relying on contempt to protect itself..more power equals more accountability, otherwise the judiciary will become (and is already becoming) authoritarian.
Reema Omer perhaps belongs to PPP. She is trying to prove that scandalising the supreme court is not a crime and is not punishable. She is saying that the world tendency is against it. I like to inform Reema that it is not true. I have lived in USA for more than four decades. There is seldom a case of contempt, and nobody ever talks about opposing the decision of any court, including the supreme court. The supreme court is an institution that we create to make final decisions to settle our disputes. Reema needs to stop her propaganda, no matter what her incentive is.
Excellent article by author. Much needed.
I can not imagine these 'lawyers' coming up with these articles now a days. " Fragile democracy '. Democracy has always made the state fragile in this part of the world. We'd be better under a monarch then this democracy that you so blindly protect. God know what would happen if the sheep could elect their Shepard .. ..
10/10 !
If one organ of the state doesn't perform its functions, in this case the Executive, other organs will invariably step in. This is what happens if there is a vacuum or 'absence of justice'.
All politicians are bad, so let the SC get rid of them – seems to be the general mood. Who fills the vaccuum created by the exit of politicians? Another dictator?
or another corrupt politician! what about corruption among whole judiciary…. any contempt!
Ever since the present CJ Iftikhar Chaudhary has taken over, the country has been in turmoil. Nothing good has come out from his judicial activism. He better remove corruption from lower courts and set his own house in order before challenging others.
What a true comment by mdy and what an excellent study by the writtter.
How true your comments are!
Are the legislators of UK, Canada, New Zealand and other western countries uneducated feudal lords, highly corrupt and having bad reputation? Most of them possessing counterfeit educational degrees.
If not, than discussing contempt law of those countries isn’t justified.
Even if our leaders are corrupt and we need an activist court, the least that we should expected is that the court will be accountable. Contempt laws are outdated
if you can't hold your executive accountable, How could you do the same for judiciary.
So what verdict do you want in Gillani case? Is it right course that SC sit down after issuing an order and final decision is from PM either it is legal or illegal to act on it?
The article specifically talks about contempt for ridiculing the judiciary. The PM could have been convicted for contempt of court for not implementing the Court's orders. However, that would not have been a ground to disqualify him as a member of Parliament.
The PM was not only ridiculing the Judiciary by his words but he was equally doing it by his actions. If he was true in his statements regarding article 248 and immunity etc, the govt. should have consulted the supreme court for clarification.