We were talking of contempt, freedom of expression andthe right of dissent, of suo moto and suspected partisanship. The way theIslamabad High Court ordered the police to register a murder case againstGeneral Pervez Musharraf immediately for the Lal Masjid operation defiescredulity. One is left wondering about equity and balance, about whether it isnot the duty of a Head of State and Supreme Commander of the Armed Force toprotect the state against terrorists and enemies external and internal whowould harm it. We will make ‘fair comment’ on this when the time is ripe. Of that you can be sure, God willing.
Ah! What a loaded term, ‘fair comment’ is. Who decideswhat is fair or what is not? Judges in their own cause, what? The people’sright to make ‘fair comment’ on court judgments is alienable and indivisible,as too the right on what the else judiciary does as too behaviour of judges andtheir families. Human beings are not intellectually hostage to court judgments forGod has given them free will and the ability to choose between right and wrong.In an Islamic state this should be paramount. We will, God willing, also writeabout freedom of expression in Islam sooner rather than later.
President Musharraf repealed the 1976 Contempt ofCourt Act and passed a Contempt of Court Ordinance on December 15, 2003. Atthat time, under Article 89 of the constitution, an ordinance was valid forfour months unless re-promulgated one time only, but the Parliament of 2003validated all Musharraf’s ordinances made between October 12, 1999 and December31, 2003 through the 17th Amendment and the Parliament of 2010 affirmed thisvalidation through the 18th Amendment. The temporary ordinance thus assumed thecharacter of a permanent Act through the device of Article 270AA of the constitution.
The ordinance distinguished between three kinds ofcontempt: civil, criminal and judicial. The ordinance says, inter alia,“whoever…does anything which is intended to or tends to bring the authority ofa court or the administration of law into disrespect or disrepute…or to lowerthe authority of a court to scandalize a judge in relation to his office, or todisturb the order or decorum of a court, is said to commit ‘contempt of court’.” You can read it in full in DAWN, December 17,2003. Punishment can be imprisonment for up to six months or a Rs. 100,000 fineor both. An apology may be accepted “and the court, if satisfied that it isbona fide, may discharge him or remit his sentence.” (Wow! These are Divinepowers. I thought that God alone knows what is in a man’s heart).
The dictionary meaning of ‘contempt of court’, notsimply ‘contempt’, is “willful disobedience or disrespect of court” and “distortingor trying to distort the course of justice.” If what is uttered is truthful tothe best knowledge and belief of the utterer it is not contempt of court solong as he can prove it because under the ordinance “…truth shall be a validdefence in cases of contempt of court”. If witting or unwitting rigging of theballot with the involvement of the judiciary is proved for example, itcertainly is “shameful” for Pakistan. If it isn’t, it certainly is contempt.That it would open a Pandora’s 40-feet container is beside the point for eventuallyit would be good for the state. In an Islamic republic truth must prevail. Itis a Divine imperative.
Article 204 of the constitution says that in contemptof court: “…‘Court’ means the Supreme Court or a High Court”. Under the Ordinanceevery high court shall have the power to punish a contempt committed inrelation to it or any court subordinate to it. So only the high courts andSupreme Court have the lawful authority “to punish a contempt”. Article63(1)(g) of the constitution states, inter alia, that a person shall bedisqualified from being elected or chosen as, and from being, a member ofparliament, if he or she says or does anything against “…the integrity orindependence of the judiciary of Pakistan, or which defames or brings intoridicule the judiciary…” Holy cow, sure, but it is vital that the judiciary (astoo the judges), being one of the three equally vital branches of government,is unblemished and above suspicion so that there is public acceptance of itsjudgments. Else justice will not be accepted as balanced and blind and mayconsequently invite ridicule and opprobrium. A person can be found guilty ofcontempt unless he apologizes and “throws himself at the mercy of the court”, ahighly un-Islamic phrase in an Islamic state because a Muslim only throws himselfat the Mercy of the Court of the Almighty and none other. Sadly, we are stillbeholden to British form rather than to God and His Laws. Even using thehonorifics ‘lordship’, ‘majesty’ or ‘highness’ is blasphemous of God but mustbe dealt with only by God, not people. Our judges should stop the use of theterm ‘lordship’ else it is contempt of the Supreme Judge.
Here’s a contradiction: while lawdispensers are above contempt, lawmakers are not. Unlike judges who are supposedto be justice dispensers, legislators who are lawmakers are not spared.Parliamentarians need no proof to say anything defamatory about anyone oranything on the floor of the House (which is why people, including otherparliamentarians, challenge them to say whatever they do outside parliament ifthey have the guts), but they cannot about the judiciary. Judges and thejudiciary are holy cows even there. Article 68 of the constitution aboutrestrictions on discussion in parliament says: “No discussion shall take placein Majlis-e-Shoora (Parliament) with respect to the conduct of any Judge of theSupreme Court or of a High Court in the discharge of his duties.” There are noholy cows in Islam, especially when the cow is perceptibly unholy. I keepreferring to Islam because we hypocritically profess to be an Islamic statewithout regard to the gulf between profession and practice. That gulf, initself, is grave contempt of the Divine.
Freedom of speech for the ordinary mortal is notabsolute in our constitution. “Every citizen shall have the right to freedom ofspeech and expression, and there shall be freedom of the press, subject to any reasonablerestrictions imposed by law in the interest of the glory of Islam or theintegrity, security or defence of Pakistan or any part thereof, friendlyrelations with foreign States, public order, decency or morality, or inrelation to contempt of court, commission of or incitement to an offence.”
Just as the phrase ‘supreme national interest’ can be subjectivelyexploited for self- or group-interest, so too can the word ‘reasonable’ toavoid what might be truthful. What is reasonable and what is not is a matter ofopinion and interpretation. Certainly it is most reasonable, indeed animperative, to speak the truth as one sees it if it benefits the public good. Criticizinga judge without proof is unreasonable. Criticizing him with proof is not onlyeminently reasonable, it is in the public interest and part of a citizen’sfundamental right to freedom of speech and expression, it is an imperative tolimit damage to the reputation of and respect for the judiciary. If‘reasonable’ suspicions are aroused about a judge’s behaviour, it is alsoeminently reasonable to voice those suspicions publicly so that they can beinquired into and dealt with one way or the other.
One should differentiate court from judge. ‘Faircomment’ on a judgment is not contempt but an attempt to protect the respect ofthe judiciary.
The judiciary is an institution while the judges areits servants who get paid from the public exchequer that is held in trust by thegovernment of the day. Judges cannot be bigger than the institution, thejudiciary. An institution is as good as those who run it. If it is suspectedthat some of them are wanting, it is a citizen’s duty to point it out toprotect the institution. Wanting or compromised judges are in themselves contemptof the judiciary.
Thus while telling the truth in good faith as one seesit is not contempt, hiding or twisting it or speaking lies is contempt of thejudiciary, the country and the Divine. Judges are supposed to protect acitizen’s fundamental right of truthful expression, not to seal his lips withcontempt cases when it doesn’t suit them. They have to earn respect, not demandor order it.
It’s all about upholding the truth and saving thecountry and one of its most vital institutions without which there can be nocivilization. As I said last week, the judges should think why they areslipping down the high pedestal they were placed on and ask why their mostardent supporters are deserting them. If they really want to restore therespect of the judiciary the controversial judges may consider the example ofthe chief election commissioner. It is time for introspection.
“If we cannot go to the Supreme Court as a last courtof appeal,” asks Imran Khan, “then where?” Where indeed? The only place thenleft is the court of the people. That court exists on the street. That is wherethe sacked judges were restored. That is where they could be sacked again.