Need for judicial restraint

How will Courts reign in public whisperings, sentiments or even the chatter on social and international media?

Nafisa Shah July 14, 2012

The present superior judiciary has become controversial, not in the least for what some would call its exaggerated use of the contempt laws, prompting parliament and the executive to put in amendments to protect their constitutional jurisdiction.

Today, contempt charges are being faced by the president, the prime minister, the former law minister and the interior minister, among others. In the modern day, there are no known precedents of a prime minister being removed through contempt proceedings and a president facing a contempt case in a high court. Although in the former case, the charge made was for disobeying the court, the courts convicted the PM for ‘scandalising the courts’, making it seem like a case of being condemned unheard. The popular perception holds that this was done so that the punishment would lead to the disqualification clause — Article 63(1)(g), which would not have applied in the other case, which is why increasingly, the present courts are being perceived as political. This court also initiated contempt proceedings against 60 judges for violating their November 3, 2007 judgment, while overlooking the civil and military officials who did the same. Other examples of initiation of contempt proceedings include the former law minister for ‘reciting’ poetry and an officer for ‘staring’ at the judges. As against this, the nation witnessed how a senior public official summoned to the court was questioned without being given a place to seat himself and subsequently suffered a life-threatening heart attack.

There is near consensus in the judicial community that contempt proceedings must be used sparingly. Today, in most common law countries, contempt proceedings for criticising the judges are being rendered obsolete and this is largely due to the judiciary’s own stated position of restraint. In the US legal system, there is no provision in the law for scandalising the court; in the UK, too, such a provision has hardly been used in modern times. The judges have made these laws redundant, through their own texts. Lord Alfred Denning, one of the most influential judges of the last century, reiterated this view in one judgment as follows: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it.” In addition, to quote Justice Markandey Katju, a notable Indian justice: “The best shield and armour of a judge is his reputation of integrity, impartiality and learning. An upright judge will hardly ever need to use the contempt power in his judicial career.”

For a judiciary which is thriving in a democratic dispensation, this exaggerated use of the contempt laws calls for a reflection of the very state of this institution. The court’s selective application of contempt laws undermines political stability, democracy and freedom of expression but most importantly, the dignity and the respect of the courts themselves. The overuse of contempt proceedings inevitably leads to a clash of institutions, as it is through assertion of this law that the courts are seen to be appropriating the executive’s mandate, while they themselves do not seem to be accountable to any legal or constitutional authority except to themselves.

While the courts have succeeded in removing an elected prime minister and have been able to subdue a few others charged with contempt, how would they reign in the public whisperings, sentiments or even the chatter on the social and international media, which has become increasingly, even scathingly critical, to the extent that the three-member bench’s June 19 action has been termed by some as a coup, and that as I understand, means a seizure of power that is outside the law.

In the final analysis, judicial authority is far better served through judicial restraint rather than through the use of punitive contempt laws. I hope the courts, in the larger interest of promoting democracy, would exercise restraint and let the principle of separation of powers operate by recognising and upholding the parliamentary mandate to make and amend laws, and the executive to complete its term and letting the court of the people decide who has held whom in contempt.

Published in The Express Tribune, July 15th, 2012.


Kashif | 9 years ago | Reply

Damagogues uses words to twist the facts and to mislead the people from the reality. By menuvering the elections by hook or by crook, with aid from foreign HAND, politicians like Zardari managed to get power and then using it apparently for personal gains and serving the hidden agenda of their BOSSES, ruining the life of Pakistani.. and then in the name of democracy, trying to cut every hand, which was intended to stop them from fulfilling their V all hate accountability... In real democracy, v need independent judiciary.... Judiciary is working and must work pro-actively, where the executive/parliament fails, intentionally or otherwise to perform their tasks.... Looting of assets of my country and other rampant corruption should be restrained by the Executive.. but unfortunately, v have given duty of protection of MILK to CATs.... Bravo Judiciary.... Bravo Justice... Bravo Rule of Law.... Long Live Pakistan

Akram Virk | 9 years ago | Reply

@Dr Saifur Rehman: Democracy is not the fifth book, It is a man made system but even today no country on earth is running under true democracy. Pakistan is run by bunch of thiefs, thugs, idiots. Supreme court is the last hope. Current Govt. is incapable, corrupt, dishonest, slave of external powers. They are foreigners, they are remains of Goras(British). They must be tried and punished by Courts. Keep it up SC and save us from thiefs.

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