Down to shameful?

Published Aug 05, 2013 07:26am

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.

Twitter: @babar_sattar


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Comments (41) Closed


DrTK
Aug 05, 2013 08:34am

Did I get that correctly? Did you say "make our grand-kids proud"?? In that case, I am sorry to say, that is not the way of Pakistan for over 60 years so far and the top leadership we've had. The plan is, take the money, and run. Unfortunately, that only turns out to be as far as UAE. No one else will have us!

Aasim
Aug 05, 2013 09:10am

Babar,

You've a valid point; however there is a problem; the problem which is the root cause of almost all of our issues. This question is a perfect question for those who are living in a society which has evolved to a point that they take critique in a positive way; those who don't consider themselves about the criticism. However, in our society, we are living in a delusional, self-proclaimed narcissism. This self-love doesn't only span to one part or a few; majority considers themselves as the perfect, whether its religion, politics, economics, science or any other aspect; Our society considers that whatever they think is the only truth and there is room of improvement. I can continue but I've said enough already.

Moazzam Salim
Aug 05, 2013 09:21am

While I wholeheartedly agree to what is said about the Law of Contempt to be used sparingly I cannot understand the logic behind analysis of the Imran Khan's statement. Mr. Sattar seems to think that the issue is about the phrase 'shameful'. Lets, for the sake of argument take this phrase out of the Statement and see if it becomes more palatable? Imran Khan clearly alleged a fact (as compared to an opinion) that the Judiciary's role in the rigging in the Election 2013 elections was shameful. Minus the so called offending phrase does Mr. Satter think that the allegation that there was a role of the Judiciary in the alleged rigging would be acceptable to the Judiciary? 'Shameful' or not the allegation is of a grave nature and in my opinion scandalizes the Judiciary without having support of cogent evidence.

Attorney Kamal
Aug 05, 2013 09:31am

Babar Sattar is absolutely right and I fully support his views. I have written many times befor that the two provisions of our Constitution, the Contempt of Court and Suo Motto articles, the roots of the judicial mischief, should be repealed by the Parliament ASAP to prevent further damage to the country and to the rule of law. Secondly, the SC judges should be discilplined or impeached as they have attacked the most fundamnetal of human rights guaranteed by Art 19 of our Constitution, the right to freedom of speech and expression, and for usurping the powers and functions of the other branches of the government.

Random Passerby
Aug 05, 2013 09:54am

Good to see you writing for Dawn. Please keep doing so.

Irshad Ahmad
Aug 05, 2013 11:08am

these are very fair comments on the American Judiciary. However to match American society with Pakistan seem a bit unfair. Who in Pakistan conducts his affairs within the norms of law, Morals and etiquette. We have to consider the issues within the ambit of our society..

saqib
Aug 05, 2013 12:54pm

Dear Mr. Sattar,

I am a subscriber to the THE NEWS. Since you have moved to the DAWN, can you let me know which day will your article normally appear, so that I can ask the hawker to send me the DAWN for that day. Will it be Mondays or Sundays ?

darwaysh
Aug 05, 2013 01:04pm

Speaking truth to power!

sarwat
Aug 05, 2013 01:08pm

Superb analysis!!!

anis
Aug 05, 2013 01:09pm

excellent piece,

Ashraf
Aug 05, 2013 01:51pm

Not only I am a very ordinary person from among the teeming millions, I am not knowledgeable about law and its related matters, but based on my rudimentary general knowledge about the subject matter, I find Mr. Babar Sattar's article quite substantive, and pretty intelligently written. My salutations to him on this.

Ashraf

Hasan
Aug 05, 2013 01:54pm

All very valid points by the author. As someone once said,

Taha Lateef
Aug 05, 2013 02:11pm

I agree with most of what you have said. I think that the CJ needs to understand this.

Qasim
Aug 05, 2013 02:15pm

Another brilliant piece despite CJP's fury on the previous article. Proud of you; at least someone (other than Naeem Bukhari) has the guts to call a spade, a spade.

Question
Aug 05, 2013 02:53pm

This is an excellent piece, however the question that I still have is whether it is fair the head of a major political party to critisize the Judiciary (in a slanderous manner) instead of critisizing its judgement, surely IK should have critisized the judgement instead of the judiciary

N Hasan
Aug 05, 2013 03:10pm

Superb :)

Jamil
Aug 05, 2013 03:22pm

Only dictators abhor dissent. Right? In this regard we must absolve (Retd) Gen Musharraf of being a ' dictator, as he always appealed to common sense and reason and tried to convince the public ad nauseam, as in the matter of the dire need for the Kalabagh Dam. Do we realize this even today? But with the Chief Justice: he seems to abhor dissent; he also has a marvellous capacity to ignore questions re his beloved son Arsalan or re his overstepping his invasive role in changing the date of the election of the President, due to specious reasons. I don't see either the President or Prime Minister really concerned about the thousands of Pakistanis rendered homeless by the floods; except for the perfunctory command to their underlings to look after these people evicted from homes due to the floods, and this - in the end of the month of Amaan, Rounaq, Charity and Forgiveness. These great virtues, Generosity, and Forgiveness seem to be lacking, even as we plead earnestly for Divine Forgiveness. A very honorable Fakhrubhai was offended and decided to resign. Is the CJ planning to take on that role as well? After all the Prime Minister too has chosen to wear several hats of - Defense, Foreign Affairs and what not.

Mushtaque Rajpar
Aug 05, 2013 03:52pm

Another outstanding article by Babar Sattar, who really does not seem to be just a intelligent lawyer but a scholar of constitution. I am really delighted to read such articles and feel happy too that despite so many odds, this country has people like him.

The debate and issue of contempt of court is educating all of us, and one hopes that it enlightens people without hurting their egos.

Muhammad adil
Aug 05, 2013 04:07pm

Very nice piece of information for the people who has not know about this..

Omeir Zahid
Aug 05, 2013 04:24pm

@Question: Imran khan has questioned the performance of the ROs. It is AFTER they have performed. And as far as presidential elections are concerned - it's universal criticism of THE DECISION where the other stakeholders have not been involved or to take their input of the decision .

Omeir Zahid
Aug 05, 2013 04:26pm

@Irshad Ahmad: our society? Where do you think the judges wig, cloak and seat comes from? From your colonial masters - in our culture it used to be more simpler judges who wasn't elevated thru how they are dressed but by the decisions they make as well as respect they had.

A H Nayyar
Aug 05, 2013 04:38pm

Babar, I am glad you have spoken candidy. I wish we could see all the lawyers who have always been forthright in upholding law would come out and make similar statements in and out of courts.

Naser Hamdani
Aug 05, 2013 05:50pm

Excellent article, as usual from Babar Sattar. However, I have a little different interpretation of Imran's statement. He is not referring to any judgement or appeal of courts. He is referring to the conduct of judicial officers deployed on election duties. As such, he is criticizing performance of few individuals of judiciary on their non-judicial actions.

wali Lasi
Aug 05, 2013 06:24pm

I support the views of Mr Baber Sattar,regarding the contempt law as well as request the legal fraternity to come forward ....i would like to mention here that the Articles from 8 to 28 of the constitution of Pakistan are about the fundamental rights of the citizens which provide guarantee to all of us to speak on the matters regarding the affairs of the state (ofcourse subject to law ).Another thing which i would like to ask about the freedom / liberty of a civilised citizen and the esteem of the institution.

ExPat
Aug 05, 2013 06:58pm

Mr. Sattar, you hit the nail on the head. I live in US, criticism of supreme court is a common place, no one, as far as I remember, has been summoned for contempt. Court was virulently criticized after Bush- Gore election tussle.It seems Pakistan supreme court has become thin skinned, a little pin pricking is bursting the bubble. I don't think ' shameful' crosses the boundary of the ethics.SC should ignore it.

mariyam maqbool
Aug 05, 2013 08:15pm

outstanding

mariyam maqbool
Aug 05, 2013 08:15pm

absolutly superb;)

Suhail Kausar
Aug 05, 2013 08:40pm

I have strong reservation over your use of the following sentence."The Constitution guarantees every citizen the right to equal protection and enjoyment of the law". As a matter of fact, you must know that Pakistan's constitution does not do that. It discriminates against the minorities and has taken away their fundamental rights of free speech and choice of religion and based on their beliefs some of their basic rights including voting rights have been taken away. Therefore, its constitution is flawed and you must confess as a responsible journalist that it is so suhail kausar

Huma YJ
Aug 05, 2013 09:18pm

We all respect the judiciary and have shown our solidarity as a nation but I endorse the writer in his views as we have the right of freedom of speech and if contempt of court should b used it should be across the board as simunteaneously politican Aitizaz Ehsan also uttered vile words Justice should ne seen to be done

A Q Saggu
Aug 05, 2013 09:39pm

When your brain works right, you work right. One indication of top performing brain is the articulateness and lucidity of spoken and verbal expression produced by it . Babar 's brain has this attribute, which is plain to perceive. There's been some problem on the other side and it has been manifest in its inconsistencies over a fairly long period of time.

Amir Cheema
Aug 05, 2013 10:23pm

Babar Sattar thank you. People like you make us proud to be Pakistani. This article should be the basis of decision in any contempt of court decision.

Taha Lateef
Aug 05, 2013 10:23pm

There was a news report in an Urdu Daily today indicating that there have been many people in the Western world and other developed countries that have been charged with, held, and punished for contempt of court including leaders and politicians in office (such as President Clinton), journalists and like. The report tries to give an impression that Contempt of Court proceedings are not out of the ordinary.

Although the report tries to create a different impression, all the facts that it conveys point to exactly the same thing which Mr. Babar has stated here, that those penalized for contempt of court had been for the reasons of perjury, obstruction of justice, not implementing established court orders or going against the orders issued by the court.

GH
Aug 05, 2013 10:53pm

What Chaudry Iftikhar did recently reminds me of what Justice Muneer did back in the 1950s. If I were to compare the performance of Supreme Court with the performance of the four High Courts, Suprme Court will get failing marks.

sohail
Aug 05, 2013 11:49pm

thought provoking and eminently worthy of implementation for further discussions. eerie situation for our judiciary because i always thought baber sattar is obsessed with defending it. even then reading your article is one of the regular thing i do. please confirm if your article will appear every Monday in dawn because i was away and did not know that you have shifted to dawn.

riazbalochi@yahoo.com
Aug 06, 2013 01:39am

@DrTK: a great article with good rationale , it clearly articulates the well contemplated notion of young lawyer., , suprme court judges should shun away their ego and provide level playing to all parties on footings of pml (n) for due dispensation of justice

Ahmed
Aug 06, 2013 01:45am

An excellent review, beautifully written. Contempt of Court & Suo Motto are the basis of judicial activism. They need to be toned down by the Parliament. All institutions are evolving ; some day , one day we shall find the right equilibrium. Meanwhile , let there be opposing views and freedom of expressions.

Rana
Aug 06, 2013 02:06am

@Irshad Ahmad: Sounds like refusing to improve.

Zulfikar
Aug 06, 2013 02:17am

What a brilliant piece, need more voices like this.

Question
Aug 06, 2013 12:10pm

@Omeir Zahid: Imran Khan said that the it was "shameful" the way the judiciary has behaved, that is slander. Instead of critisizing how the act hurt the objectivity of the presidential elections and how the second and third largest political parties in the parliament were not consulted or were not given an opportunity to voice their concerns. That is the difference between critisizing a judge and critisizing a judgement

Mir Sohail Hashmat
Aug 07, 2013 04:01am

This is one of the most interesting article about contempt of court. Keep it up sattar sohaib

Ammar
Aug 07, 2013 06:15pm

Excellent article I fully endorse your views and comments.