The contempt debate.
As the 'ship our State' enters its final stretch in the ongoing politico-constitutional tussle between PML(N) and the honourable Supreme Court, an age-old debate has erupted anew: does scandalizing or ridiculing the honourable Court fall within the ambit of 'contempt'? Put another way, do the honourable Courts have the power to punish Maryam Safdar and Co. (e.g. Nihal Hashmi, Talal Chaudhry, Daniyal Aziz, etc.) for contempt of court? Also, should the courts have such power? Or, instead, should all comments made against the honourable Courts, and their judges, have impunity under our Constitution and the law?
A careful analysis of this debate would reveal that two distinct issues are at play: 1) do the courts have the authority (under our current constitutional and legal framework) to punish people for 'judicial contempt'; and 2) should the courts have such powers in a constitutional democracy?
Before answering these questions, a brief overview of the contempt law paradigm is necessary.
Freedom of speech and expression, under the Constitution of Pakistan, is protected, as a fundamental right, under Article 19 of the Constitution. However, much like other constitutional democracies, the right to freedom of speech in Pakistan is not unfettered, and is subject to limitations that include, inter alia, contempt of court.
The judicial power to punish for contempt of court also emanates from the Constitution itself. Specifically, Article 204 of the Constitution stipulates three distinct 'categories' for contempt of court, and grants our constitutional Courts 'the power to punish any person who': a) 'abuses, interferes with or obstructs the process of the Court in any way or disobeys any court orders' i.e. civil contempt; 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' i.e. judicial contempt; and c) 'does anything which tends to prejudice the determination of a matter pending before the Court' i.e. criminal contempt.
Under this constitutional framework, contempt cases are governed through the Contempt of Court Ordinance, 2003, which enumerates the same (three) categories of contempt as are reflected in the Constitution. It is important to point out that even if there was no specific legislation concerning contempt, the Constitution itself (Article 204) would be enough for exercise of contempt powers by the superior Courts.
While there is no cavil with two of these categories (civil contempt and criminal contempt), there has been much debate about whether 'judicial contempt' should be part of our law.
For the purposes of 'judicial contempt', the rationale for sacrificing freedom of speech, at the altar of contempt, finds justification in two disparate but connected ideas: 1) scandalizing or ridiculing a judge, especially casting doubts upon his or her integrity, erodes the confidence of litigants, and the public in general, in our seat of justice; and 2) a judge (any judge) by virtue of the limitations of office and the 'Judicial Code of Conduct', is unable to publicly respond to personal allegations, and thus needs protection in the 'marketplace of ideas'. As a result, the judges are entrusted with the power of contempt to protect the esteem of the Court, which is also intrinsically connected to the integrity of their person.
Turning now to the questions raised earlier. First, do judges have the power to punish people who scandalize the court or the judge. Of course they do under Article 204 of the Constitution as well as the Contempt of Court Ordinance, 2003. If the provision of law exists on our statute books, the courts cannot ignore it, or choose not to apply it, or simply deem it meaningless. It is a settled principle of jurisprudence that 'redundancy cannot be attributed to the legislature' (e.g. Aftab Shahban Mirani case (PLD 2008 SC 779), Master Foam v Govt. of Pakistan (2005 PTD 1537), PTV v. Inland Revenue (2017 SCMR 1136)).
Since the courts cannot ignore the provision, they must afford some interpretation to it. And what precisely constitutes 'scandalizing' or 'ridiculing' the Court will depend largely on the facts of the case. However, by what stretch of imagination does Nihal Hashmi's speeches (calling the judges 'sons of *beep*'), or Talal Chaudhry's speech (calling judges idols of Kaaba, who need to be thrown out), not fall within the definition of contempt? Put another way: since the law exists on our books, and therefore must be given some interpretation by the courts, is it possible to define 'ridiculing the court' in a manner that provides immunity to Nihal Hashmi and Tala Chaudhry's comments?
Turning the second question now: should 'judicial contempt' exist at all in our constitutional/legal paradigm? The answer to this question is far more complicated than the first one.
Let's get the obvious out of the way: the judges or the courts did not write the Constitution or the contempt law; the people (through the Parliament) did. So, the fact that 'judicial contempt' exists in our laws is not a strike against the Court. If Maryam Safdar (and her cohorts) believe that this power should not exist, they should lodge a complaint with their 'Quaid', who has served in the Parliament for almost three decades, without once reconsidering this constitutional framework.
Away from politics, some members of the legal fraternity have also argued that 'judicial contempt' should not be part of the legal framework. Specifically, my brilliant friend Babar Sattar (in his recent article) and the Reema Omar have argued that 'judicial contempt' is an archaic concept, inherited from common law, and that even the U.K. Law Commission, in 2012, recommended 'that scandalizing the court should cease to exist as an offence or as a form of contempt.'
This is a worthy suggestion. However, it must be viewed in the context of Pakistan.
First, let us recognize that even in the U.K. this is just a suggestion; and one that has not been implemented for almost 6 years now. Judicial contempt continues to be a part of the U.K. jurisprudence, and 'scandalizing the court' is still an offence punishable in the U.K.
But even otherwise, the constitutional system of checks and balances works by placing corresponding obligations on participants of the State. The ambit of judicial authority must correspond with the tenor of political tirades. In the U.K., can we recall a time when the Prime Minister (or his family members) made the sort of tirades that Sharif family has done? Put another way, if the highest court had removed a politician from office in the U.K., would s/he have acted in the manner that Sharif family did, in the aftermath of Panama Leaks? Extending the argument further, if a major political party had resorted to 'judicial contempt' as being their express political mantra, would the U.K. Law Commission have made a recommendation to abolish it from the law?
It is frequently asked (by PML(N) sympathizers) whether courts around the world make the sort of (mafia) comments as they have done so in Pakistan. The truth is, one would have to reach back to the case of Pablo Escobar (in Colombia) or Al Capone (in the U.S.) to find a parable.
The question that is not asked, however, is when was the last time (anywhere in the world!) that a Prime Minister made the sort of comments Nawaz Sharif is making?
Checks and balances have a purpose. And there is merit in arguing for an abolition of 'judicial contempt' only if a corresponding obligation is somehow also placed on politics to refrain from making contempt a campaign slogan.
Of course judicial contempt should not be used as a sword by the courts. Of course it should not be used for silencing dissent. But are these arguments a license for the majority political party to use judicial contempt for protecting the King and his personal wealth?
We stand at the edge of reason. What happens hereon, is less a question of law or politics, and more a question of people, and their ability to uphold the law and preserve democracy, above personal egos. In this time, what we require most much more than parliamentary sovereignty or judicial independence is the wisdom to look past personal fiefdoms (whether they be on Constitution Avenue or in Park Lane), and aspire for the establishment of a functional constitutional democracy in our land.