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