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ISLAMABAD: The Islamabad High Court (IHC) on Friday dismissed a petition seeking contempt of court proceedings against Pakistan Muslim League-Nawaz (PML-N) vice president Maryam Nawaz and former prime minister Shahid Khaqan Abbasi for criticising former chief justice of Pakistan Saqib Nisar.

IHC Chief Justice Athar Mina­llah during a brief hearing on the petition remarked that the former chief justice of Pakistan may file a suit with an appropriate forum for redressal of his grievances.

He observed that the contempt law could not be invoked for the sake of a retired judge.

The petition was filed by local lawyer Kulsum Khaliq under Article 204 of the Constitution read with sections 3 and 4 of the Contempt of Court Ordinance, 2003.

The petitioner has requested that contempt proceedings be initiated against the respondents. She argued that both the PML-N leaders had attempted to scandalise the former chief justice.

When the court asked the petitioner whether the respondents had said anything against the IHC or its judges calculated to interfere with the due administration of justice or to prejudice pending proceedings, she replied in the negative.

The court noted that it had highlighted the principles and law regarding contempt in the Firdaus Ashiq Awan case.

The IHC chief justice observed that there is no cavil to the proposition that judges are not above the law and they are accountable. Bona fide criticism is an integral part of the accountability of judicial officers.

The scope of contempt has been aptly described by Lord Atkin in the judgement of the House of Lords titled “Ambard v. Attorney-General for Trinidad and Tobago”, [1936].

The court order reproduced the excerpt of the judgement as: “But whether the authority and position of an individual Judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public act done in the seat of justice. The path of criticism is a public way: the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.”

Justice Minallah stated that a judge who ceases to hold a judicial office upon retirement instantly severs his or her connection with the judicial organ and the courts. A judge after retirement, therefore, attains the status of a private citizen. Such a person is no more a member of the ‘court’ in the context of Article 204 of the Constitution or under the Ordinance of 2003.

However, a judicial officer, after his retirement, is not without a remedy in case the latter considers to have been maligned or his respect lowered in the eyes of the people. As a private citizen it remains open to a retired judicial officer to seek remedies available in a court of law. However, the offence of contempt is not attracted in the case of a retired judge because after retirement the latter attains the status of a private citizen, said the IHC chief justice.

“It is emphasised that even otherwise, the power of contempt is exercised sparingly. It is not a power meant to protect a judge as an individual nor the latter’s dignity. Judges are entrusted with an onerous duty to serve the people through the fountain of justice and they are, therefore, not immune from public scrutiny nor criticism,” the court order stated, adding: “An independent judge would not be influenced nor affected in any other manner because of public criticism.”

The court order stated that the authority of a judge is not dependent on the words of the Constitution but, rather, rests on public respect and the confidence of the people.

Being magnanimous is an essential attribute of an independent and impartial judge because of the exalted position and the divine nature of judicial functions, it added.

The court declared the petition as not maintainable and dismissed it, observing: “In the case in hand, the petitioner seems to be hurt because a former chief justice of Pakistan has been publicly criticised in his individual capacity. This definitely does not attract the offence of contempt.”

Published in Dawn, November 27th, 2021

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