A predominant number of these cases were related to disobedience to court orders while a negligible number pertained to scandalisation of the court or a judge.

The main judgment was authored by Chief Justice Iftikhar Muhammad Chaudhry while Justice Khawaja and Justice Khilji Arif Hussain added their own notes to it while agreeing with it. It was released on Saturday. The contempt law was struck down on August 3 through a short order.

According to the break up, as many as 131 contempt cases were filed in the apex court in 2009 — 129 in 2010, 110 in 2011 and 77 during the current year so far.

All the 2009 cases were those where an order had been disobeyed and they had nothing to do with scandalisation of the court or a judge.

All the 2010 instituted cases related to disobedience of court orders and only one alleged scandalisation. Similarly, only one of all the 2011 cases pertained to scandalisation.

Of the 2012 cases, 20 were filed by petitioners who sought contempt proceedings against individuals, allegedly scandalisation of the court or a judge. Three of them have been initiated by the court itself and are yet to be decided.

The note said the most seminal contempt case against Yusuf Raza Gilani recently decided by the apex court pertained to disobedience of a judicial order.

It pointed out that most of the highly publicised legal contests which have of late come up before the court fall in the category of disobedience contempt, not scandalisation.

The cited facts and figures indicate that disobedience contempt (as opposed to scandalisation contempt) remains the most important aspect of the law of contempt in our jurisdiction today.

This is so because of the constitutional imperative that every person and authority in Pakistan are duty bound to obey the Constitution and the law, the note said and referred to a Hadith of the Holy Prophet (PBUH): “O people, those before you were ruined because when someone of high rank among them (Sharif) committed theft, they would spare him, but when a weak person from amongst them (Zaeef) committed theft, they would inflict the prescribed punishment upon him.”

The aspect the note adverted to is the distinction between contempt of court through disobedience of a judicial order (disobedience contempt) and contempt through scandalisation of a judge or court.

It said this distinction is well recognised in almost every common law jurisdiction, and has been accorded recognition in Article 204 of the Constitution. The distinction is founded on sound doctrinal principles.

Attorney General Irfan Qadir, who repeatedly urged the court to exercise judicial restraint, seems to have erred precisely because of ignoring this distinction, the note said.

“It is only when we take stock of the distinction between the two types of contempt that we realize how misleading the argument for judicial restraint is.”

The note said that historically, disobedience contempt emerged essentially as an enforcement mechanism, which the court found necessary for upholding the rule of law and for executing its orders. While today the contempt law finds its moorings firmly in the Constitution, it is nonetheless instructive to inquire into the historical origins of this power, particularly in the English common law tradition which has had an influence upon our own but which has been significantly modified and clearly explicated in Pakistan through our Constitution and laws.

It is unfortunate, the note said, that instead of adhering to the Constitution, the Contempt Act was enacted in violation of the same.

In law-abiding nations of the world, the power to punish contemnors has not only existed, but it has also been used whenever required to enforce court orders. World history is full of examples of persons, public figures of the highest standing amongst them, who were punished by courts for contempt, the note said.

Professor Ronald Goldfard, in “The History of the Contempt Power” has masterfully narrated two famous instances. The note reproduced his narration of a case from medieval England. “One can read of the escapades of ruddy Prince Hal, later to become Henry V of England, and his notorious brush with the law of contempt. When Hal was the Prince of Wales, one of his servants was arrested for committing a felony … the Prince appeared in a rage, and demanded that his man be let free. Chief Justice Gascoigne, delicately but firmly ruled that the laws of the realm must be met. The Prince tried physically to take the servant away, whereupon Gascoigne ordered him again to behave. When the Prince raged … the judge reminded his prince that he kept the peace of the King … and suggested that Hal set a good example. When Hal did not heed this advice, he was sentenced for contempt, and committed to the King’s Bench prison … People speculated whether this would be the end of Gascoigne’s career. It developed that the King was pleased, and rejoiced that he had both a judge who dared to administer justice to his son, and a son who obeyed him (if reluctantly)”.

Professor Goldfard also gives another example from the early years of the US: “Major General Andrew Jackson, in command of the city of New Orleans in 1814, heard rumors that the state legislature was thinking of capitulating to the British … Jackson was suspicious of the French volunteer troops who had been leaving the ranks. He ordered them out of the city. Lewis Louallier wrote an article in the local press critical of General Jackson’s conduct. Jackson ordered his arrest and imprisonment. Louallier then brought habeas corpus proceedings before Judge Hall of the district court. The judge granted his release. Jackson went into another rage, and arrested Hall. Then, United States Attorney Dick brought habeas corpus proceedings for release of Judge Hall, and it was granted. He joined Hall and Louallier in prison. After many judicial and political machinations all parties were released, and Jackson learned that the war was over. United States Attorney Dick then appeared before Judge Hall and moved for General Jackson’s punishment for contempt. Jackson, shifting tactics, and under the good advisement of his attorney, argued the inequities of contempt. He asserted that the summary power of contempt violated his rights under the fifth and sixth amendments. He ingeniously argued that the necessity which allowed circumvention of constitutional privileges in contempt cases was a lesser one than the necessity which prompted his conduct. He had ordered martial law because it was necessary for the preservation of the whole country. Nonetheless he was found guilty of contempt and fined $1,000. It has been reported that the memory of this incident plagued Jackson until long after his later ascendancy to the presidency.”

The note said that these historical episodes highlight the significance of the power of the court to punish contemnors. “Societies which have attained the rule of law have done so at a price. And that price, we too must be prepared to pay. This historical context also makes it easier to understand why a people’s movement for the restoration of constitutional rule in Pakistan, which began with a defense of the constitutional protections for judicial independence, now seems to be culminating in a series of highly contested legal cases revolving around the law of contempt. Some lament that this is an unfortunate trajectory.”

But, in the light of history, this trajectory seems only natural; the note said adding that in a government of laws, the courts of law are supposed to decide matters before them in accordance with the law. Once they have passed a judgment, the government of the day is required to implement it. But what happens if its functionaries do not do so? That ultimately is the question with which we are repeatedly being confronted whether through the executive’s non-compliance or through unconstitutional legislative action such as the Contempt Act.

Of course, the note said, this power of punishing contemnors for disobedience is meant more to be a deterrent than a weapon of aggression. Generally, in a country where the rule of law prevails, a situation of this sort should never arise. And even when it does arise, a contemnor, once fully apprised of the imminent consequences of his disobedience, would purge himself of contempt through compliance. Yet, in periods where the supremacy of the constitution is contested as the dominant ethos of government, it is not surprising that cases do arise where a deterrent effect can be achieved only by an actual exercise of this power. In such cases, the courts are in fact constitutionally obliged not to shy away from the inevitable. Simply put, a government of laws cannot be created or continued with toothless courts and defiant or blithely non-compliant public functionaries, the note said.