Need for judicial restraint
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.
COMMENTS (19)
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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 wishes...as 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
@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.
@Dr Saifur Rehman:
Truly said. Our survival is in the judiciary. Unfortunately, despite being the most educated generation of this country, we are once again tricked to believe in things which are not real and are done to damage this country. We have been indoctrined that as a nation we no longer realize what is in our best interest. I am sure most of the readers can recall a report published in Washington Times some six months ago (citing sources from Military) that our Khakhi brothers will use Judiciary this time to topple an elected government.
Our paid media has made all the grounds for this and now every other person believes that sacred angels have descended on the soil of Pakistan in the shape of judges (those judges who used the ladder of PCO to acquire positions of Power and when others did that, they declared them as villains) Our survival is in our power to elect our own representatives. This is a real test for patriotic Pakistanis to see clearly what is right and what is wrong and be on the right side this time. If we fail to side at the right side, our children will suffer and may be humiliated at the hands of corrupt judges and generals.
Dear countrymen, democracy in Pakistan is gone, our country is running under “Judicial coup”. pity the judiciary that some judges have declared “Judicial coup” in Pakistan. May 24th ruling of the Speaker of National Assembly on the issue of PM Yousaf Raza Gilian’s conviction in the contempt of court case was declared void. The court observed that the speaker had no authority to find faults in the apex court’s judgement and should have sent the disqualification reference to the Election Commission of Pakistan within 30 days. Supreme Court’s disqualification of the sitting prime minister Yousaf Raza Gilani on 19th June was a practical example of Jjudicial coup” in Pakistan. And that decision was widely lamented by the world leaders, scholars and journalists round the globe. All the democratic nations, pro-democratic think tanks and groups of scholars, journalists, students of politics and people from all walk of life were deeply shocked, when they heard about disqualification of sitting prime minister of Pakistan by biased judiciary. Yet again, Supreme court is on its way to hunt its prey –another elected prime minister of Pakistan. For to fulfill its nefarious designs, court has accepted petitions against contempt of court act 2012, which was signed into law. It is pertinent to mention here that CJ had already vowed to declare contempt of court bill null and void before its passing in elected houses both upper and lower. Throughout the history of our country, Pakistan has suffered enough times due to “Military coups”. It was the military who directly intervened to derail democracy in Pakistan, toppled the elected governments and declared martial laws and judiciary validated all martial laws in the country. But this time military is behind the curtain and judiciary has declared “Judicial coup”. In my opinion, all institutions should work under their jurisdiction under the ambit of constitution come what may. Judiciary should have worked under its jurisdiction but it is so sad that it could not. Yousaf raza gilani’s disqualification verdict was an attempt to derail democracy and an effort to create political turmoil for the ruling coalition in power who is about to complete its five-year term for the first time in the nation’s political history. Evil forces want to sabotage democratic dispensation, I appeal to every countryman please don’t fall prey to nefarious designs of evil forces and stand behind elected democratic government for the better and bright future of Pakistan. Country’s survival lies in democracy. Pakistani nation has borne the brunt of military coups, soft coups and hard coups. So please say no to all sorts of coups whether it is “Military coup” or “Judicial coup”. There should be one point agenda that is democracy and supremacy of parliament. It is obligatory duty of every patriot citizen of Pakistan to fight against “Judicial coup” and struggle for democracy in Pakistan.
@Imran Con: Agree with you, but when the political dispensation lacks the will to correct matters themselves, as you suggest, then the circumstances become compelling.
Societies without justice are wiped out in a very short time. If people are not held accountablle then result is lawlessness, corruption, killings, destruction. Law must be blind and should apply to all citizens equally. Prime minister, president, minister or burecarate, landlord are not prophets. If they commit crime they must be punished else Steel Mill, railway, PIA, Mehran Bank, and so many will vanish and finally the country will be removed from the world map. Justice gurantees the welfare, progress, safety, security and respect for all. Ali baba and forty thiefs shuld be left alone - no way. That is a mistake. We have paid enough price for such a mess. Please wake up and support the justice. Long live Pakistan. Let us be together against corruption, injustice and Jahalat.
Unfortunately the institutions of state have abdicated their responsibility and have become dysfunctional. Judiciary is the only door people have left to knock on to get justice.
'Need for political wisdom and intellectual honesty'.
A great and pragmatic Op Ed, thanks ET for that. It is about time the PCO SC judges show some maturity and patriotism and back off, just like they did in case of Arsalan.
Very sensible advice but nobody seems to be listening.
@Parvez: "the circumstances created are so compelling, then judicial activism becomes necessary"
So the judges have ruled that the doctrine of necessity in the army is illegal but apparently the same doctrine of necessity is acceptable when it comes to CJ packing of elected prime minister. Wonderful logic.
The way to argue against contempt laws is to promote freedom of speech in general. The real problem with punishing people for criticizing the Court is that it takes away their right to free speech. The main criticism in the above article, and the contempt bill recently passed, however, is based not upon this general principle but rather a jealous protection of the parliament's right to free speech. Of course, it is entirely possible that the government is fearful that a more general defense of free speech would take away its own ability to abuse power by banning "offensive" sms messages and internet websites and placing ridiculous prohibitions on making jokes about the President. They want to be safe from criticism without extending that privilege to anyone else.
@Parvez: They created the circumstance themselves. What you said hardly addresses her point. Most, if not all of your current problems can be dealt with under either different laws, an ego check, a small amount of patience, or in a way that doesn't involve the judiciary at all.
The activist course selected by the supreme court will lead to total disenchantment with democracy in Pakistan. If that happens, it will be very very difficult to maintain a cohesive Pakistan.
Very good analysis to which all patriotic and democratic Pakistanis would agree. The present Chief Justice has transformed our country into a judicial dictatorship through the misuse of contempt of court powers and through abuse of the strange suo moto jurisdiction powers under Art 184. He has also usurped the constitutional powers of the Executive and Legislative branches, besides being tainted with possible corruption and blackmail and abuse of his judicial seat and authority. To save our country and our democracy I think he should be forced to leave. That's the only solution.
Every sensible person is of the opinion that judicial restraint is preferred over judicial activism but when restraint is not possible because the circumstances created are so compelling, then judicial activism becomes necessary. Madam if you open your eyes and look around, even you will have to admit that matters are far from good.