Reflections on contempt law

February 11, 2018

While political parties and citizens must render unto the judiciary what is due to it, the judiciary will minimise the need to invoke the contempt law by showing due understanding of people’s needs and concerns

Reflections on contempt law

The Supreme Court is obviously losing its patience over the attacks on it from various sources, especially from politicians belonging to the N-League, led by its head himself. One MNA has already been jailed and two ministers are facing contempt charges.

Public attention is therefore focused on the contempt law, the scope for its application, its efficacy and the possible limits to its positive impact.

The contempt of court laws are integral parts of all national judicial orders. All of them are envisaged to ensure that the orders of superior courts are obeyed throughout their jurisdictions, that no one can obstruct their work, and that nobody can harm the reputation of the judges or scandalise the courts.

In highly developed societies, where state institutions have learnt to work within their constitutional limits and to respect one another’s rights and privileges, the use of contempt laws to protect courts against scandalisation or attacks on judges is on the decline and their use to secure obedience to courts’ orders is also becoming more and more infrequent.

A certain decline in the prestige of the judiciary is hard to deny. How has this happened? Justice Saad Saud Jan, a widely respected jurist who was hounded wrongly on grounds of belief, answered the question in five words: "because we made bad decisions."

The situation in unstable states is quite different and contempt laws are regularly used to secure the twin objectives mentioned above.

Pakistan has a fairly wide-ranging contempt of court regime and it is contained in an article of the constitution, which says:

222[204. (1) In this Article, "Court" means the Supreme Court or a High Court.

(2) A court shall have power to punish any person who-

(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;

(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;

(c) does anything which tends to prejudice the determination of a matter pending before the court; or

(d) does any other thing which, by law, constitutes contempt of the court.

(3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court.]

Collisions between judges and lawyers did take place in Europe and America in the distant past such as the one recorded by Churchill in which a judge told a top lawyer that his remark was impertinent and the lawyer retorted "provoked by impertinence". One also read about an American judge good humouredly dismissing an accused person’s failure to hit his lordship’s head with his shoe.

While contempt laws have remained on the statute books everywhere to ensure that superior courts are viewed with reverence and awe, judges in advanced societies have gradually started asserting that they do not need the crutches of contempt laws to win the respect of the stakeholders. This view was admirably summed up by Lord Denning in an oft-quoted paragraph: "We will never use this (contempt of court) 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."

The late Justice Dorab Patel made a similar declaration in his address to the Lahore lawyers many years ago. Pakistan’s superior court judges would perhaps be happy to affirm these ideas but they have to contend with the baggage of the judiciary in the subcontinent.

The colonial rulers wanted the judges to be feared by their subjects., While the District and Sessions Judges were accommodated alongside District Magistrates and Superintendents of Police, the superior court judges were kept away from the people. They were barred from socialising with citizens. An environment was created in which people avoided taking liberty with courts, and judges spoke mostly through their judgments.

Comment on court verdicts was rarely taken in a positive spirit. We saw a retired judge of the Lahore High Court, and he had been a good judge, convicted of contempt for having praised a verdict and Justice Anwarul Haq convicted Arif Nizami (‘son of friend Hameed Nizami’) for something that could have easily been ignored.

But things gradually changed. The judges’ isolation from society was curtailed and not only Justice M. R. Kayani but many others too started speaking about men and matters. This was as it should have been. The convictions for contempt for attacks on judges declined. The case of a journalist, a regular litigant, who was sentenced to imprisonment for an indefinite period, was a rare incident.

It was only recently that Justice Iftikhar Mohammad Chaudhry started using the contempt jurisdiction to force the executive to act according to law and came down heavily on corrupt and irregular practices. In quite a few cases judiciary-executive conflict was caused by differences on interpretation of the laws and the concept of reparation of powers.

Justice Chaudhry’s successors reduced their reliance on the contempt law. But the situation has again changed following the verdict in the Panama case. The Supreme Court is not only keen to secure obedience to its public interest decisions, it has also become somewhat more sensitive to criticism of the judges and the court itself.

But, like all good medicines, the contempt law will be efficacious only if it is used sparingly.

That the courts should not only be obeyed but also respected by the other state organs as well as the people at large is in the interest of all the parties concerned -- the judiciary, the state and the public. Otherwise, the constitutional scheme of division of power will be strained, the majesty of law will be undermined and the people will neither respect the law nor be afraid of it. In other words there will be chaos.

This seems to be happening already as a certain decline in the prestige of the judiciary will be hard to deny. How has this happened?

Justice Saad Saud Jan, a widely respected jurist who was hounded wrongly on grounds of belief, answered the question in five words: "because we made bad decisions."

For a long time the common narrative on ‘bad’ decisions began and ended with Justice Munir’s judgment in the Tamizuddin case. The same Justice Munir obliged Governor-general Ghulam Mohammad to hold elections to a new Constituent Assembly (however questionable the method of its election) but this fact was generally ignored. A major reason for this was that Justice Munir went on to legitimise any successful coup d’etat, called the coup of 1958 a revolution, took cover under the perverse law of necessity, and devised the instrument called Laws Continuance in Force Order.

So great was public anger against these decisions that the apex court’s assertion of its inherent jurisdiction through rulings by Justice Cornelius during the early Ayub era was scarcely lauded. And many of the people, who assailed Justice Munir for his bad verdicts, never stopped banking on the Munir Inquiry report on the anti-Ahmadi riots of 1953.

Then Justice Munir was surpassed by his less sophisticated successors. Nusrat Bhutto’s petition against General Zia was dismissed but the latter was given relief demanded vide a threat .And while upholding General Musharraf’s coup, the court gave him sweeping powers, including the authority to curtail the fundamental rights.

These decisions rankle in the hearts of all those who stand for rule of law, However, to be fair to the judiciary, it might not have sided with coup-makers if it had seen huge crowds of democracy defenders out in the streets. When General Yahya Khan was declared a usurper in Asma Jilani case, the most important ground reality was not the end of his regime, it was the fact that he had been dethroned by his brothers-in-arms and the streets were full of multitudes who swore by democracy. Also, we must not forget the judges who refused to take oath under Provisional Constitution Orders (PCO).

Thus the popular narrative on judiciary’s lapses is not as simple as it is generally believed to be. The political parties and society as a whole must accept their part of the blame for failure to protect the democratic system.

However, there have been some other cases that have undermined public faith in the judiciary and for which it alone has to carry the cross: the Shariat Appellate Bench’s decision to declare land reforms un-Islamic, for example. The then chief justice joined hands with two ulema-judges to over-rule the two seasoned judges to block a process on which Pakistan’s freedom from the feudal bonds depends.

Besides, the Iftikhar Chaudhry court raised the hopes of people by creating a human rights cell and the message was that no seeker of redress would go empty-handed.

These hopes could not possibly be fulfilled and if a court doesn’t fulfil the expectations it has aroused, its prestige is bound to suffer -- that the court could successfully use the contempt procedure to remove a prime minister but it could not get the family of Munnoo Bheel freed of wadera tyranny, nor could it put an end to the suffering of victims of enforced disappearances or the misery of those detained at the internment centres.

The judiciary’s biases against the working classes and to some extent against women have also affected its image. In the past, cases of labour generally did not receive timely and due attention. In the early 1990s, Makhdoom Ali Khan presented a paper at a meeting organised by the Human Rights Commission of Pakistan (HRCP) in which he argued that labour was not receiving a fair amount of the apex court’s attention. He received a show cause notice under the contempt law. In his reply, he supported his contention with evidence. The matter was dropped. As for women, a superior court judge admitted at a civil society workshop that justice was not being done to them.

This is not to deny judiciary’s intervention in certain cases of excesses against workers and women, especially little girls, and some recent initiatives indicate a growing willingness to defend the rights of the underprivileged but this trend will need to be strengthened to make the people believe that all citizens, women as well as men, workers as well as employers, non-Muslims as well as Muslims, are equal before law and enjoy equal protection of law.

The sole purpose of writing the foregoing lines is that while political parties and citizens must render unto the judiciary what is due to it, the judiciary will minimise the need to invoke the contempt law by showing due understanding of the people’s needs and concerns.

Reflections on contempt law