IN the aftermath of the Supreme Court verdict that convicted Prime Minister Yousuf Raza Gilani the argument has been made that the court has given a faulty verdict that goes beyond what the prime minister was charged with.

In a rush to advance this argument, the crucial portion of the short order is being ignored.

This is where the court records its satisfaction “…that the contempt committed by him is substantially detrimental to the administration of justice and tends to bring this court and the judiciary of this country into ridicule”.

The argument is that the court could not pass this portion of the order, especially the part about the tendency to bring the judiciary of this country into ridicule, because he was never charged with this offence.

It states that the prime minister was charged with “civil contempt” which is defined as the “wilful flouting and disregard” of an order of the court only and therefore the additional finding was unlawful as it could only have been given if the prime minister was instead charged with criminal contempt or judicial contempt.

To understand why this argument is flawed, it is necessary to reproduce Section 18 of the Contempt of Court Ordinance 2003 which reads: “No person shall be found guilty of contempt of court, or punished accordingly, unless the court is satisfied that the contempt is one which is substantially detrimental to the administration of justice or scandalises the court or otherwise tends to bring the court or judge of the court into hatred or ridicule.”

It is also necessary to point out that it is Section 3 of the Ordinance that defines the crime of contempt of court — and this definition includes all three types of contempt.

The three ‘types’ of contempt are subdivisions of this definition in Section 3 so that specific rules can be applied to them.

The argument that the additional finding of the court was unlawful does not hold for several reasons.

One, because Section 18 does not make a distinction between the three types of contempt. It only says that no person shall be guilty of ‘contempt of court’. Therefore, by using the all-encompassing term of Section 3 pointed out above, it includes all three types of contempt. Section 18, therefore, also applies to civil contempt, which the prime minister was charged with, and a finding under it was necessary.

Two, Section 18 is an independent threshold unrelated to the definitions of the type of contempt. We can conclude this from the fact that the consequences specified in Section 18 are for the most part different from the definitions of the types of contempt.

For example, under Section 18, the court may be satisfied that the contempt had a tendency to bring the court into ‘ridicule’.

The word ‘ridicule’ is not mentioned in any definition of contempt in the ordinance. However, it is used in Article 63(1)(g) of the constitution as a ground for disqualification.

Since the court must be satisfied under Section 18 even in cases of civil contempt, the argument that he has been convicted and punished for an offence with which he was not charged or that the finding was unnecessary falls apart.

What remains is the argument that if this satisfaction was an essential aspect of finding the prime minister guilty then it should also have been part of the charge. There are a few answers to this question.

First, Section 221(2) of the Code of Criminal Procedure, 1908 states that “if the law which creates the offence gives it any specific name, the offence may be described in the charge by its name only”. Therefore, so far as the detail of the offence is concerned, Section 221(2) is clear that it may be stated by name only, which it was.

Second, even if we ignore the Code of Criminal Procedure, Section 18 would only need to be in the charge if it was an ingredient of the offence of contempt and essential to prove guilt. The section states that a person shall not be “found guilty… or punished accordingly”.

If the effect of this was simply that a person shall not be found guilty then the additional words “or punished accordingly” would be meaningless because unless a person is found guilty no question of punishment ever arises. The question of punishment only ever arises if the court can find guilt. Therefore, this can only mean that under Section 18, either the court shall find the person “not guilty” or it shall find him “guilty but not punished accordingly”.

This is the only way the words “or punish him accordingly” stay meaningful. This means that the court can reach a verdict of guilt even without being satisfied under Section 18 (although it would then not punish) and therefore Section 18 is not necessary for conviction in every case. Hence, it does not need to be included in the charge.

This is further supported by the fact that Section 18 states that the “contempt committed” by the person must have the effects outlined. This suggests that everything necessary to commit the offence of “contempt” has already happened by the time the court considers Section 18. Section 18 is therefore not a part of the offence of contempt which needs to be included in the charge.

Since Section 18 is not an ingredient of the offence, the argument that it needed to be in the charge is problematic. Instead, the question is whether the accused had the opportunity during the trial itself to convince the court that Section 18 is not satisfied.

For that, we have to wait for the reasoned order when the court tells us how it was satisfied that the contempt committed by Mr Gilani had the tendency to bring the court and judiciary into ridicule.

The writer is a Lahore-based lawyer.

skhosa.rma@gmail.com

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