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What qualifies as anti-judiciary speech?

October 04, 2017

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The writer is a lawyer and a columnist.
The writer is a lawyer and a columnist.

‘Injustice is relatively easy to bear,’ says H.L. Mencken. ‘It is justice that hurts.’

In the wake of the Panama Papers decision, justice was thought hurtful to many: we now face a flood of what’s being called ‘anti-judiciary speech’. Petitions have been moved against PML-N leaders before the Lahore High Court for ‘contemptuous language,’ while ex-PM Nawaz Sharif’s latest press conference will also become the subject of court proceedings.

Whatever the opposition may say, such speech is nothing new — our elected representatives have railed against the Court ever since we’ve had elected representatives. Back in the Bhutto era, both Messrs Kasuri – Mahmud Ali and Ahmed Raza – were alleged to have made comments against the Supreme Court in parliament. Both apologized, and both apologies were accepted by the Court.

Nor is it new for politicians, especially Nawaz Sharif, to paint adverse Supreme Court decisions as undemocratic. During his Amirul Momineen phase in the ‘90s, Mian sahib pushed through the 14th Amendment which allowed him to toss MNAs out of parliament on whim.

The Supreme Court struck down the amendment days later.

Wounded as ever, Nawaz Sharif slammed the judges for ‘reviving lotacracy’ and bringing the country to an ‘unfortunate and undemocratic situation’ — striking, if you consider last week’s press conference.

It would seem the more things change, the more they stay the same. These latest petitions against Nawaz Sharif are part of a long debate in our jurisprudence over what connotes contemptible speech.

To that end, the judges tend to restrain themselves. Mian sahib dodged an adverse ruling in 1998 by continuing to affirm his respect for the Supreme Court (PLD 1998 SC 823); ironically, mere months before the court was stormed.

Before him, PM Bhutto was also let off for similar reasons in 1975 (Zahur Ilahi v. Zulfikar Ali Bhutto PLD 1975 SC 383), after hinting the Supreme Court would be responsible for any ‘consequences’ flowing from lifting the ban on the National Awami Party.

On both occasions, the Supreme Court exercised its powers with great caution: as then-Chief Justice Hamoodur Rehman observed in Zahur Ilahi: "We have to remember that this power to commit for contempt is a power which has been vested in the superior courts as an extraordinary power and has, therefore, to be exercised with great circumspection only where it is absolutely necessary in the public interest to do so."

Justice Hamood’s words are lent weight for reasons that extend far beyond the courtroom, where contempt is too often used as a gag order against warranted criticism. Just because the judiciary is entitled to respect does not mean its decisions should be immune from reproach – and this past week serves as glorious example.

The state continues to reel from the consequences of former Chief Justice Iftikhar Chaudhry voiding contracts with international investors, while the rubble that is Pakistan Steel Mills stands testament to the fact that the Supreme Court’s rulings could have done with more criticism, not less. Little coincidence, then, that Justice Chaudhry made liberal use of serving contempt notices upon his critics — real, potential, or imagined.

That such decisions are scrutinized in the court of public opinion is good for our judiciary, good for our institutions, and good for the citizen. Yet, little of that is to be found with the Panama decision: barring a few excellent critiques by legal scholars, the judgment has instead been assailed for going against the PML-N's 'mandate' — an argument that is both intellectually incompetent and morally threadbare.

But as the ruling party skates closer and closer to offending the judiciary itself, it should realise there is a balance to all things. As constitutional law professor Glenn C. Smith recently pointed out, "…federal judges need to hear well-informed and zealously advocated contrary views both inside the courtroom and out. But there is a difference between legitimate criticism and crass delegitimisation."

Smith was referring to the world’s orange overlord, President Trump. The Donald has long breathed fire at judges for ruling against his racist travel ban.

But Smith’s reasons for us to worry apply across the board — the sanctity of the superior judiciary cannot be sacrificed on the altar of party politics. "Liberals may not like rulings invalidating [healthcare provisions] any more than conservatives like decisions overturning the federal law against falsely claiming to be a military honouree," he writes. "But everyone wins in the longer run from the fact that men and women on the federal bench have the presumed legitimacy and actual independence to so rule."

In our case, it is tragic that the state’s chosen ones should try to undermine that legitimacy. Few of us will forget last May, when Senator Nehal Hashmi declared he would bring Judgment Day to those charged with the ‘hisab’ (accountability) of the Sharif family, before raging against their families. One judge later observed that even military juntas had not dared threaten their children.

At times, the application of law leads to real life situations that are strange, complex, and confusing. More often than not, though, it’s pretty easy to cut through the fog.

Criticism is merited. Delegitimisation is not.

The writer is a lawyer and a columnist.

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