THE government’s efforts to save the new prime minister from the contempt of court guillotine may not work. The chief justice has already spoken his mind. A law that is in conflict with the provisions of the constitution will be struck down.

Eventually, it is the Supreme Court that will interpret Article 204 of the constitution. Given that daggers have now been publicly drawn, the government is not likely to get any relief.

In modern jurisprudence, even where the law for scandalisation and ridiculing the judiciary exists it is rarely applied. The restored judiciary has, unfortunately, used it without mercy. Judges were issued notices of contempt, one prime minister has been sent packing and numerous officials are daily threatened with its application.

Generally, a judiciary should be respected and revered as a pivotal institution for the promotion of the rule of law and democratic values rather than be feared for its power.

It is rightly argued that contempt laws help to ensure that the authority of the courts is not undermined. It prevents public confidence in the administration of justice from being undermined. It is also argued that the contempt law shields judges who otherwise cannot answer back to unfair and lethal criticism. However, the criminalisation of scandalising the judiciary suppresses free speech and does not raise the image of the judiciary. And the resort to penalising people for contempt of court tarnishes the graceful image of any judiciary.

This is precisely the debate that is taking place in the House of Lords in the UK, where the last successful prosecution for scandalising the courts took place in 1931. Recently, a former secretary of state for Northern Ireland, described a judge as being “high-handed and idiosyncratic” in his autobiography.

The attorney-general for Northern Ireland brought criminal proceedings against him for scandalising the courts. Though the secretary was eventually pardoned, it nevertheless set off alarm bells. The House of Lords said that the action had a chilling effect on free speech. Repealing the law, it argued, was necessary to put “this pitiful legal animal” finally to sleep.

Some members of the House of Lords also called for restraint in criticism of the judiciary while acknowledging that “a little bit of dynamic tension between politicians and the judiciary in a democracy” always exists.

Similarly, the bar and the bench too cross swords but this should remain within the realm of decency on both sides. A member recalled instances where lawyers irked the judges and the media ridiculed courts but none were ever subjected to the law of contempt of court.

Barrister E. E. Smith frequently clashed with judges. An infuriated judge once asked him, “Mr Smith, what do you think I am here for?” Promptly Smith replied, “My Lord, it is not for me to question the inscrutable workings of providence.” Another quoted the Daily Mirror referring to judges in the Spycatcher case as “fools”. No prosecution followed.

A member of the House of Lords described his experiences as a judge in Northern Ireland. He was often scandalised and he deeply resented it and agonised over it but he did not for “one moment” consider initiating contempt proceedings. The former judge simply acknowledged that judges have to be able to take these things. It was part of what they have to do and they must shrug their shoulders and get on with it with grace.

There was absolute consensus that despite the desirability for restraint, a criminal offence or sanctions for scandalising the court was “quite antiquated and unnecessary”. Others regarded the offence as archaic and obsolete.

The members of the House of Lords pointed out the irony that public confidence in a judiciary is in fact diluted far more by “legal proceedings that suggest that the judiciary is a delicate flower that will wilt and die without protection from criticism than by a hostile book or newspaper comment that would otherwise have been ignored”.

The House of Lords rejected the argument that judges cannot respond to outrageous criticism. Nowadays they do respond. Judges have brought and won defamation suits, protected themselves against the law of contempt, petitioned for their seniority and gone further.

In our experience they also use the media very skilfully. The abuse of a judge in court is anyway covered by the contempt law and does not require resort to scandalising the judiciary. Other laws are there to cover attempts to corrupt, threat or defame a judge.

In conclusion, a balance has to be struck. Freedom of expression and equality before the law must be placed on a similar threshold as the independence of the judiciary.

The independence of any democratic institution depends on itself. Eventually, any judiciary will be judged on its performance, integrity and capability rather than on the basis of the criticism of its detractors.

The PPP-led government’s attempt to reform the law of contempt will promote neither freedom of speech nor discourage the abuse of contempt laws. Legal reforms should be based on principles of law that will develop the concept of the rule of law, rather than for self-interest.

The law of contempt deserves to be modernised but more importantly, the judiciary must itself use the law very exceptionally and interpret it liberally. After all, the basic cry of the lawyers’ movement was to restore the rule of law and to benefit from a judiciary that is liberal and strong — and not powerful and self-indulgent.

The writer is a lawyer and human rights activist.


Comments are closed.

Comments (34)

Dr Imran Ahmed
July 12, 2012 3:58 am
Right on! May Allah grant wisdom to our sad judges and love of the people to our selfish legislators.
Maryam
July 12, 2012 4:38 pm
Dear Asma, you cannot generalize the examples of true democracies with Pakistan. In Pakistan there has never been a democracy, it was either a military rule or a dynastic rule where law was always 'used' for the vested interest of the rulers. In such a scenario, it is reasonably required by the judiciary to have a 'hunter' in its hand...so that ' unlimited power doctrine' may not function in Pakistan.
Asadullah Khan
July 12, 2012 7:43 pm
By criticizing the government as well as the judiciary Asma is trying to have her cake and eat it too. However, what comes to mind when reading her piece is that we talk of our colonial masters as examples to suit our desires. We forget that this debate about the bashing of judiciary can only take place in the pristine ambiance of political ethics practiced by those who will first resign before getting tangled in judicial harangues.
M A K Tanoli
July 12, 2012 6:59 pm
It would have been much better, if honourable judges and CJ of Suprem Court of Pakistan would had expended their times and energies for reforming the subordinate judiciary and taken steps to make it corruption free ( as large majority of common folk have to deal with lower courts and not the higher judiciary!) Instead, restored judiciary dragged too much on constitutional matters, took upon itself the mantra of executive and over extended the confines of judicial reviews and extravagantly used the contemp laws. Consequently, a malfunctioning political government now finds it more expedient to blame "judicial activism" as one of the reason its failure. In this way higher judiciary, has also exposed itself to un necessary criticism from different segments of society, who other wise still keep it in higher esteem.
Bakhtawer Bilal
July 12, 2012 12:31 pm
I am just an avid reader, not an expert on matters of law. I bet our judges are the only ones who issue threats and semi political, some times not so semi, statements.
ram
July 12, 2012 3:54 am
After all, the basic cry of the lawyers’ movement was to restore the rule of law and to benefit from a judiciary that is liberal and strong — and not powerful and self-indulgent Very true Excess on any part will not be helpful,particularily democracy w/o legs as it is.
1277sachughtai
July 12, 2012 4:49 pm
The respected ex-chief of the Bar should suggest something under the current situation in Pakistan where there is different fight for self interest. Whatever the learned lawyer wrote academically is true and world is changing rapidly. If the parliament is considered super, under Pakistani set up, the parliament came into existence with more than 50 percent bogus votes. Can the learned Lawyer justify that this parliament by all means is representative of the people.
Firaq
July 12, 2012 12:28 pm
Asma Jahangir is very much biased in her article towards Judiciary. Being a pro PPP what should we expect from her.
I Ahmed
July 12, 2012 4:05 am
All examples given by Asma are result of verbal abuse of judiciary. In case of Gilani, he refused to carry out the order of the court, hence the judgment against him. I personally think the verbal contempt of court is fairly well covered in our constitution and judiciary and hence do not require an amendment.
Dr V. C. Bhutani
July 12, 2012 12:04 pm
I have tried to say, very briefly, almost in shorthand, that the law (then a bill) is likely to be struck down as ultra vires of the Pakistan Constitution, because parliament does not have power to pass such a law. Even if the Pakistan president has by now signed the bill into law, it remains ultra vires. Let us see how the Supreme Court of Pakistan responds to the new "law". V. C. Bhutani, Delhi, India, 12 July 2012, 1734 IST
Ikramullah Khan
July 12, 2012 9:28 am
This article to me is biased and one sided. Asma Jahangir failed to mention how the PPP govt. played cat and mouse with supreme court for the past four years during which prosecution of numerous corruption cases was thwarted in a very untidy and ridiculous way by this incompetent govt.
Saleemi
July 12, 2012 5:24 am
Very well written article.... but I believe neither judiciary nor government are going to change their stance.... some kind of “judicial martial law” is inevitable...
ujmalik
July 12, 2012 8:41 am
Though I find myself often disagreeing with Asma, I do have to agree with her here. Our band of Judges seem to have become Chuck Norris and are just mercilessly disrespecting uniformed police officers and elected officials for point scoring with the general populous. Often I wonder if they are all planning to stand in election at end of their term! No other decent country has these many examples of Judicial activism. Even their Indian counterparts have started to criticise this. Finally if courts really want to do something settle all those cases in lower courts which are pending in courts for over 30 years now.
baakhlaq
July 12, 2012 6:34 pm
By writing this article Asma has played her role of giving a rational logical and convincing advice to the relevant quarters but I think in these days her advice would fall on deaf ears.I salute Asma for her courage,integrity and her commitment to the cause of justice.She is a strong voice.
Said arab
July 12, 2012 11:59 am
But we shouldn't ignore the integrity and objectivity of the judiciary?
common man
July 12, 2012 12:07 pm
It seems that Asma Jehangir is a real fighter to keep Pakistan's judicial system live. One day, She will get some international award for this cause for doing such dangerous job in Pak where no international game can be organised since last so many years
Khanzada
July 12, 2012 11:54 am
I totally agree with the contents of the article. We usually see judges around the world rule in favour & against some one, sometimes or most of the times the jury's decision is a split decission, while in our country all the judges are always on the same page no one tend to or dare to disagree with CJ & no split decision. amazing isnt it ?
SHERYAAR
July 12, 2012 11:18 am
i wanna ask Asma one question??? u mean to say that if a country is on a verge of collapse and rulers are busy disobeying courts order or any other orders, the court should refrain from using the contempt law just because u are advising them that it should be used very often.. it shows the lack of knowledge u have. and also u are the one supporting Mr. Hussain Haqqani. so it does not suit u to give advice to the people when u urself dont have a good reputation in front of pakistani people. its high time that SC should use article 190 and call army to clear the corrupt bunch so that our society can compile some good and honest people ..
common man
July 12, 2012 12:19 pm
It seems that Asma Jehangir is a real fighter to keep Pakistan's judicial system live.
shankar
July 12, 2012 11:13 am
While it is dangerous to give a free hand to the parliament to ignore the judgments of higher courts, it is also dangerous to let ths SC have a free hand in disqualifying elected members under the pretext of contempt of court! The constitution needs checks and balances to ensure that the courts use moderation in the use of the provision of contempt of court! Because beyond the SC, there is no higher authority to appeal to! If the SC misses out on the bigger picture while handing out contempts of court, they may create havoc!
Hassan Ali Raza
July 12, 2012 6:50 am
Ms. Jahangir is respectful human rights activist but by far has no idea about the constitution other than Chapter 3 being Fundamental Rights. What does a court do when the executive openly says that the judgements of the courts shall not be executed. In the British Jurisprudence the parliament is supreme but where the courts apply the doctrine of incompatibility, the Parliament being supreme gives full respect & executes the direction in the Judgement. Judiciary has to be right when it comes to establishing rule of law & Rule of law is not established through constraints. Lets me reminded that corporal punishments under the religion are lethal/painful/inhumane because when establishing rule of law, God has not shown any constraint himself. The judge is a person who has delegated power by God to do "JUSTICE". Be it any religion the faith in God-done Justice is more than human-court justice, but once the same is delegated we have to respect and adhere to what the Courts say and do.
akhter husain
July 12, 2012 7:49 am
Very well written … "powerful and self-indulgent" is indeed the impression we get after the past few months. What is really sad is the continued denial of justice to common pakistanis even in life critical cases like murder, loss of livelihood, property etc. and all our higher judiciary is focusing right now is on these political battles!
s qamber ali shah
July 12, 2012 9:49 pm
Madam wants the Contempt Doctrine be used cautiously --yes -- but can the upper house and the lower house draft an acceptable law for persons who disobey the orders of the Supreme Court??AS IT IS WITHOUT any acceptable solution,how do you think the Honourable judges will agree??The battle will go on?? as it is the masses now understand that Law is not obeyed only by the upper, moneyed and noble class, so to be called?? While the poor and downtrodden, will and are honourably obeying all judgements.
s qmber ali shah
July 12, 2012 9:54 pm
she is for the law --lawyers --and wants broad open but not specific judgements ???
s qmber ali shah
July 12, 2012 9:55 pm
Can the prompt law makers we elected not work on this and provide proper strength to the courts , promptly ??
adnan khan
July 12, 2012 9:56 pm
i totally agreed with you.
adnan khan
July 12, 2012 9:57 pm
agreed by bro.
s qmber ali shah
July 12, 2012 9:58 pm
Why can we not follow court orders, think and the implied reply is well within--no need express??
s qmber ali shah
July 12, 2012 10:03 pm
offcourse she is??
sabi
July 12, 2012 10:19 pm
sheryaar, corrupt bunch: have you done enough research before u call corrupt bunch.what is your source of information .so called tv anchor persons are some non stake actors who have no root in masses.i am not advocating for this present regime but questioning the credibility of those creating such public sentiments.
BNS
July 12, 2012 11:04 pm
Good article from Asma, though generally she uses a biased pen.
@Tajwali
July 13, 2012 12:16 pm
very good point.
@Tajwali
July 13, 2012 12:17 pm
agreed
Iam
July 13, 2012 6:07 am
Asma may take note that the Societies she referes to where Judiciary is respected and need not to use this Law are much different than ours. Here the power ful take pride in breaking the law and need to be trained to respect the Law and the Courts. It shouls. begin from the Top.
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