WHEN the US Supreme Court decided the outcome of their 2000 presidential election in Bush vs. Gore through a five-four majority, there was widespread outrage across the country.
Alan Dershowitz, Harvard Law School professor, wrote that the “decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.”
In dissent Justice Stevens himself observed, that “time will one day heal the wound to the confidence that will be inflicted with today’s decision. One thing however is certain. Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law”. Judges were criticised for conflict of interest, partisanship and intellectual dishonesty. But no contempt notices were issued to uphold the court’s dignity or muzzle critics.
We have shared interest in supporting and strengthening an independent judiciary that creates a level playing field between citizens and the state as well as amongst citizens themselves by acting as a neutral arbiter of the law. The Constitution guarantees every citizen the right to equal protection and enjoyment of the law. Amongst corresponding duties, in relation to courts that are obliged to ensure equal enjoyment of law for all citizens, is the duty not to scandalise the courts. What this means is that while judicial decisions can be criticised, no motives be attributed to judges.
In Regina vs. Commissioner of Police of the Metropolis, Lord Denning had observed about contempt of court that, this “is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. Let me say at once that 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 not do we resent it. For there is something far more important at stake.
“It is no less than the freedom of speech itself. It is the right of every man, in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment on matters of public interest. They can say we are mistaken and our decisions erroneous, whether they are subject to appeal or not. All we ask is that those who criticise us will remember that, from the nature or our office, we cannot reply to those criticisms. We cannot enter into public controversy, still less political controversy. We must rely on our conduct itself to be its vindication.”
The use of contempt law is almost extinct in the civilised world, except in two respects: one, to maintain order in court to prevent disruption of proceedings; and two, to seek implementation of court orders and enforce the writ of law. Use of contempt jurisdiction to assert the dignity of judges thus raises obvious problems: there exists a tension between independence of judges and their accountability; in determining themselves who has undermined their dignity with vile intent, judges suffer from an inherent conflict of interest; and at stake most importantly is the right to free speech.
Imran Khan’s case is different from that of Yousuf Raza Gilani or Altaf Hussain. In the former the issue related to the implementation of a final and binding Supreme Court order. The court repeatedly beseeched the former prime minister to implement the order assuring that the issue of contempt would wither away with such implementation. Mr Hussain’s case related to threats hurled at judges, which, if left unchecked, could interfere with the ability of judges stationed in Karachi to discharge their functions without considerations of fear.
Imran Khan’s case seems to have boiled down to the use of term ‘shameful’ in expressing his perception that his party has not been treated fairly and equally by arbiters of the law — the Election Commission and judiciary — mandated to ensure a level playing field in national elections 2013. Khan’s theory of rigging might be completely misplaced and so might his expectation from the Supreme Court to take suo motu notice of Pakistan Tehreek-i-Insaf’s perceived grievances. But is the purpose of contempt law really to punish politicians for choice of words seemingly offensive to judges?
Khan is between a rock and a hard place. He can apologise to the court, admit that he committed contempt and throw himself at the court’s mercy. Or he can tell the court that he expected the judiciary to measure up to a higher standard in dispensing justice. That even if his remarks were harsh or misplaced, they reflect genuine disappointment as opposed to a conspiracy to attack the court’s legitimacy. Such candour can lead to a conviction. But it is settled law that to convict the mighty lords will have to find in view of evidence that Khan’s intent to scandalise the court is established beyond doubt.
But is Court 1 between a rock and a hard place too? One cannot comment on the outcome of a sub judice matter. But contempt jurisprudence is a matter of public importance that impacts our fundamental rights, notions of accountability and democracy. Should courts hide behind judicial independence and use contempt law as a whip to shun accountability and public criticism? Should antiquated conceptions of court’s dignity trump citizen’s right to free speech? Should use of contempt law be allowed to chill public debate on the desirable role and conduct of judges?
Justice Aharon Barak reflecting on his role as a judge had famously noted, “as I sit at trial, I stand on trial”. Let us hope all concerned conduct themselves in a manner that makes their grandkids proud reading about these proceedings in law books.The writer is a lawyer.