Contempt of the people

Published: July 16, 2012
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The writer is the Chairperson of the History Department at Forman Christian College Lahore

The writer is the Chairperson of the History Department at Forman Christian College Lahore

Recently, a lot of ink has been spilled to remind the learned judges of the Supreme Court of Pakistan that while the Contempt of Court law exists in most countries, it is seldom used. While I agree with the commentators that the courts in Pakistan are invoking the contempt law a bit too much and are involved in judicial activism, let me make a couple of points.

First, to point out that the contempt law is rarely used elsewhere is to simply ignore the reality in Pakistan. Nowhere in the world there exists a situation where a government wilfully ignores and publicly ridicules Supreme Court judgments. If the US president ignores a judgement of the US Supreme Court and publicly mocks it, he will be charged with contempt immediately. In civilised countries, courts are respected and it is almost inconceivable that a court order will be publicly flaunted and as such, the contempt issue simply does not arise.

Secondly, it is clear that sending the damned letter is not equivalent to prosecution — against which the president is protected. The letter the apex court has asked the government to write is simply to cancel the previous letter and nothing more. Therefore, the most the letter can do is initiate ‘investigation’, not ‘prosecution’. And there is ample evidence — from the Watergate scandal to the Monica Lewinsky case — that investigation for a crime can indeed take place against someone enjoying immunity. While the courts should now utilise one of the other six options they gave in the original judgment in order to ease tensions, the point the courts have tried to make has hopefully been understood: that it is impossible to call a country civilised or a government truly ‘democratic’ if they deride the judgments of the courts.

The great scholar John Rawls once noted: “Justice is the first virtue of social institutions, as truth is of systems of thought.” Truly, justice is the firm basis of the social contract (which is the foundation of government) and is also found in natural law. Without justice, there can be no virtue, fairness or legitimacy in society. Therefore, the yearning for justice is the basic pre-requisite for the development of social institutions and setting up of a government — i.e., of civilisation itself.

And what is justice? Very briefly, justice is equality and fairness. No government, courts or any other force should be able to undermine these concepts. Otherwise, the basis of modern society and thought will be overthrown. The concept of modern democratic government is also premised upon the concept of justice. Therefore, while it used to be argued that parliament is sovereign, it is now generally agreed that it is sovereign within the bounds of justice and a country’s constitution. This simply means that no parliament, no matter how democratic, can legislate to take away basic human rights from the people. So, tomorrow morning the Pakistani parliament cannot, for example, legislate for the existence of slavery and argue that it has a right to do so since it is elected by the people. As soon as parliament impinges upon the inherent rights of the people and compromises the basic concept of justice, it forfeits its right to represent the people.

Coming back to Pakistan, what must be ensured in the current tussle between the judiciary and the executive is that the concept of justice should be upheld, both by the courts and by the government. Hence, the courts should not be seen as political and the government must not be seen as only using its legislative powers to protect itself. There cannot be a law, which protects the high and mighty from disregarding the directives of court, just as the courts should limit their interference in legislative and executive matters; all of these actions compromise the equality and fairness understandings of justice.

Ultimately, the question is about the people and their rights. Unless the idea of justice is upheld by all, this saga might just show the contempt that these institutions have for the people and their interests.

Published in The Express Tribune, July 17th, 2012.

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Reader Comments (23)

  • Adnan Manzoor
    Jul 16, 2012 - 11:18PM

    I disagree with the writer on few basic and fundamental points. well! we all agree how important justice is for a society however those responsible for executing the justice must be aware of their limits. Rawl’s idea of justice is unique in the sense that it viewed justice without any institutional involvement so we must give due consideration to the fact that justice does not automatically authorizes courts to execute the way they want to execute it.

    secondly, I m sure my learned author must be aware of the famous case of income tax in US. during first decade of 20th century US implemented income tax in the country for the first time. Wealthy went to SC of US and the income tax was later on declared against fundamental human Rights. US congress made changes in the constitution and courts were denied the opportunity to repeal the law. so there are numerous examples where Parliament holds over Courts.. there is also a fundamental argument of whether the institution which creates law is more superior or the institution which interprets it.

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  • Jul 16, 2012 - 11:42PM

    I disagree with the writer on two important points. well. no one can deny the importance and fundamental nature of justice in a given society. conflicts arise when those who are responsible for executing justice make their own interpretations and clearly over-step and decide not based upon the principles of justice but based on their personal will. Rawl’s concept of justice is unique in the sense that it does not primarily see institutional role in justice and assign justice to an individual and such justice does not necessarily mean to come from institutions like court.

    Secondly, I am sure my learned writer must be aware of the case of income tax in US. US Government implemented Income Tax in country which was later on declared against the fundamental rights and American govt has to make 16th amendment in the constitution to allow Congress the power to implement income tax as direct tax so there are examples where Parliament really curtailed the powers of courts.

    Issue here is not the justice itself but wrong and biased implementation of justice. No body denies the fact that justice should be supreme but what if Justice is implemented with ill will? What if illegal orders are enforced in the garb of justice?

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  • Parvez
    Jul 17, 2012 - 12:28AM

    Simply and sensibly put. Great article. Could not agree with you more.

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  • gp65
    Jul 17, 2012 - 12:32AM

    I normally always enjoy your articles but find several flaws in today’s opinion piece.
    Here goes:

    In US Clinton was guilty of contempt of court and also fined for the same during the Lewinsky scandal. However he was not unseated as a President since the impeachment motion did not pass in teh elected Congress with the requisite numbers.
    The examples of Watergate and Lewinsky scandal are not relevant to immunity since US law does not give immunity to the US President. For better or worse this is something observed in the Parlimanetary system.
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  • Max
    Jul 17, 2012 - 1:43AM

    @gp65: Impeachment and removal are two separate processes. Impeachment is a simple indictment and the power to do so is with the U.S. House. It is just a process to press charges or in other words the House acts like a Grand Jury.
    The power to remove an official is with the Senate which acts like a Trial Jury. Mr. Clinton was impeached by the House but the case was dropped by the Senate since Democrats were in majority. There was never a charge of contempt of court against Mr. Clinton. He had earlier tried the presidential immunity during the Whitewater scandal, but was not indicted as the constitution protects the sitting president.
    Mr. Nixon had used the executive privilege to his skin in Watergate scandal but only in a limited manner. Pakistani constitution has no such thing.

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  • Logic Europe
    Jul 17, 2012 - 1:48AM

    at the same time if the chief justice in united states was perceived to be partial in his judgements ,he would never sit on judgement and RESIGHN When you loose the faith of absolute majority of parliament the you must look at your behavior

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  • Imran Con
    Jul 17, 2012 - 3:09AM

    Well I’m getting bored with repeating the same old thing that gets ignored so I’ll mix it up a little with something new.
    Competence to be representatives of justice. For the people. Are the courts showing it? No. They have no tact at all. They have no patience at all. They have no sight beyond anything but what is right in front of them. Yet, their job encompasses things that will either help or harm a number of connected things.
    Is the way they’re currently going about it able to be considered “helping” by a large amount? Not even close. Is the way they’re currently going about it able to be considered “harming” by a large amount? Very much so.
    Here is a slightly exaggerated scenario to show how: You have a murderer you have to get behind bars. But, you have no good way of doing it at the present time that doesn’t harm a number of things. Such as, you’re going to give him openings to get the judgment shot down, you’re going on less than a good amount of hard evidence that could get him an innocent judgment. What have they just done? They basically just let the man off and possibly even gave him a free ticket to kill another person due to double jeopardy. Now, they’re going to have to wait until he hurts another person before they can do it right again. When they should have had patience and tact, did it at the right time with appropriate evidence backing their cases. They can even end up with dense human rights activists at their door when they try again because he was found innocent yet he’s still being “harassed” by the court system.
    Wait and do it right. Knock off the foolish collateral damage to the system. At least hold the courts to the standard that they should be using their brains even if the people aren’t. They’re trying to push the peoples representatives in a corner with flimsy reasoning and they do have enough power to lash back out in a form of instinctive self defense for self preservation. That will cause a lot of drama and nothing good will come of it. Patience, tact and of course foresight: they should find it.

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  • Mirza
    Jul 17, 2012 - 8:26AM

    The writer shows his lack of knowledge about the legal events in the US and misquotes without actual legal references. He said “If the US president ignores a judgment of the US Supreme Court and publicly mocks it, he will be charged with contempt immediately.”
    The fact is no sitting US president can be tried in any court of law period. The only way he can be criticized or removed is by impeachment. In fact if the threat of impeachment is serious the president might resign like Nixon did when his own party members were going to vote against him. Not only that after his resignation he could have been tried in a court of law but the next president pardoned him. It is not any court of law but only the court of people (house and senate) who can impeach a sitting president. President Clinton was impeached by the house but not the Senate and still remained a very popular president. He was never tried for any crime during or after his presidency.
    Despite all the misinformation the US SC cannot even call a sitting president let alone undo the democratic choice of people. Recently in the days of G. Bush, his VP Cheney held a serious of meetings with oil company executives. The Democrats wanted courts to release their records but the VP’s office claimed presidential privileges and the court did not interfere. Not just the president but VP’s office can claim presidential privileges and the courts respect that. That is why the mere 9 judges of SC keep working out and away from politics. They are praised and bitterly criticized openly in the media and there has not been a single contempt case against even an ordinary citizen for that. Only if a person gets out of control during a court session the judges talk about contempt not outside the court.

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  • Adnan Manzoor
    Jul 17, 2012 - 9:38AM

    @gp65:
    What was more important in this case was the fact that US SC rather than striking down a President left it open for Congress to decide the future of US President. Rather than assuming self righteousness to punish a person involved in moral crimes, US SC made it prerogative of US Congress to oust President through a democratic process of impeachment. Impeachment failed and no one uttered a word against Congress and neither court came in to claim that its decision was not enforced.

    What we are seeing here is a assumed self-righteousness by the courts.. they believe they know all and they are superior to everyone.. law is superior.. they are not.. and if they are hiding behind the wall of law to force in their hidden agendas, they will be exposed one day.. History will expose them one.. I am sure some 20 – 30 years down the road, there will be someone from current judiciary to let nation know in whom hands they were playing like puppets..

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  • Jul 17, 2012 - 10:12AM

    @gp65:
    Please not there is difference
    in between perjury and contempt of court.

    Clinton committed perjury not contempt of court.

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  • ali gilani
    Jul 17, 2012 - 2:30PM

    The current CJ of Pakistan is blatantly giving statements about political process. This can not happen in US or any other decent country. It’s amazing to see how hypocrite he is knowing all the favors he squeezed from Balochistan beurocracy. From admission of his son in BMC to him becoming Assistan Director FIA, all the way upto Monte Carlo trips. Was CJ blind or just too full of it. It’s byond me how foolish people of Pakistan are. He still considers himself Godfather of Pakistan, above all decency, law and accountability.

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  • ishrat salim
    Jul 17, 2012 - 2:49PM

    I hv one solution to all this judicial bashing…shut it down…& allow the Parliament to decide cases as per their likings etc, bcz all the present judges are incompetent etc; etc; etc;…this will not only save substantial amount in the budget but the govt & its allies / supporters will hv its own choice of judgement…like during the period of ” dictators “…then they shud not blame the judges of ” dictators period “….you guys only criticise, but do not hv the guts to put forward solutions….yes !history will be the best judge but history will also reecord passing of ” new contempt law ” in 68 minutes….Recommend

  • littlegiant
    Jul 17, 2012 - 2:57PM

    @Mirza: Nixon had to resign because of great scrutiny over what he did though it was basically spying on the democrats. Clinton, contrary to what’s claimed, was humiliated in front of the entire nation – he repeatedly apologized over the course of the case – he repeatedly asked for forgiveness from his family and from the american people – the man was made a laughing stock in front of the world. It’s true that he lived through the last 2 years of his presidency, but to dismiss all that happened is rather simplistic. And what was it that he was charged with? misrepresenting his relations with Monica. Whereas we have over 60 million dollars that have been lying in swiss accounts from the 90’s and the court only wants the people’s money, if indeed it belongs to them, to be returned to them. Do we get it or are we just playing dumb?

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  • Max
    Jul 17, 2012 - 3:25PM

    @Adnan Manzoor:
    The matter was handled in accordance with the constitution. The Supreme Court had nothing to do with it and it never encroached itself in day to day administration of the country using its suo moto, rather it has rarely used this power. It has directed the appellate and District courts to forward the case to them.

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  • Mirza
    Jul 17, 2012 - 7:15PM

    @littlegiant:
    Mr. Clinton was charged not by any court but by the US congress for perjury and obstruction of justice (lying under oath). No US president had anything to do with a court let alone the SC interfering and undo the election results. The charges had no moral implications or sex between two consenting adults. It was simply lying under oath. The President made a mistake and not take the Fifth Amendment (refusing to testify against himself) and lied under oath, an impeachable offense by the congress but nothing to do with the courts. The Senate refused to impeach the president and Clinton remains one of the most popular presidents of modern times. The point has been in case of Nixon and Clinton there never was a role of any court in the US. The proper forum to try the elected president is the two houses of congress and not paid career govt servants. The SC has not even call a person working for presidents or VP, let alone the president.
    Regards,
    Mirza

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  • littlegiant
    Jul 17, 2012 - 7:49PM

    @Mirza: the ‘lying under oath’ was regarding his relations with Monica. He was asked in the court room re the case of Paula Jones whether he had any relations with Monica – not expecting this question, he stated the now famous lines – ‘there’s is no relationship with her.

    He later, before being crossed examined by the independent council and video taped defended himself by defining ‘is’ in the present tense. He was impeached by the house, and then equited by Senate. It’s true that he was not convicted by court and the charges against him were rather flimsy to begin with in a matter that, by many regards, was rather trivial or personal. Nevertheless, Clinton was disgraced and remained as so towards the end of his presidency. I am not sure why you are referring to him as the most popular president, at least in the period post 1999. It may be a figment of your imagination. Clinton was one of the most ridiculed presidents post 1998 and was never able to come out of the labelled of being the 2nd president in history who was impeached by the House.

    In our case, we were no where near that point. All the court wanted was to write to swiss authorities to withdraw the earlier letter and to find out the whereabouts of the money that belonged to the people of Pakistan, that’s it. We should really do away with manipulated truths and obfuscations.

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  • Mirza
    Jul 17, 2012 - 7:52PM

    @Sultan Ahmed: There is no such thing in the US as contempt of court, except disturbance during a court session. Not even an ordinary citizen is tried for contempt let alone a president. The only way presidents are tried or punished is impeachment by the elected house and senate. Nobody else has a right to undo the election results or get involved in politics while sitting on the bench. The judges have no role in politics and populist speechmaking.
    Regards,
    Mirza

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  • Mirza
    Jul 17, 2012 - 9:02PM

    @littlegiant:
    Despite what you have claimed the average approval of Clinton has been the highest since President Kennedy except the short four years tenure of G. Bush Senior which was after successful invasio of Iraq. I cannot understand why are you resisting and refuting the historic facts? Even in his worst months Clinton did not have the lowest approval rating among presidents. Here are the approval and disapproval ratings of US presidents:
    http://en.wikipedia.org/wiki/UnitedStatespresidentialapprovalrating

    The moral of the story is the charges by the opposition and all the humiliation means nothing for the public.
    Regards,
    Mirza

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  • ishrat salim
    Jul 18, 2012 - 1:57PM

    Mirza Sb…let us not compare our President, PM & MPs with the Americans.We are faroff the mark as far as morality is concerned among other qualities.Mr Clinton lied under oath..& it became a big issue…..whereas our people lie under oath & it is taken as normal….( for them party is abv State – is this not against the oath ? )that is one big difference.The American MPs do not come thru fake degrees nor do they not disclose their dual nationality on election forms as required by EC & as per the relevant clause of constitution…& the list can go on….compare only when we are same as them.They are better muslim then we are…except that they are not muslim….this is enough to bow down our head in shame unless ” shamelessness ” has also become part of our culture as “corruptions ” etc;Recommend

  • Zawar Ahmad Dumra
    Jul 18, 2012 - 4:23PM

    A very good and enlightened argument about the concept of justice…..surely it is important to trace out the basis where from parliament or constitution grabs supremacy but for that purpose we have to find out the reasons behind the existence of parliament and constitution. Certainly both are present to ensure justice. Then it should be agreed fact that justice(concept) has supremacy over other institutions.

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  • Jul 20, 2012 - 6:37PM

    Was this a personal crime committed by Gilani? Parliamentary form of governments have a collective responsibility, especially when the government has taken a political stand. The government has made it clear that it will not send a letter in future too. Can the SC disband the government and the parliament, which is has the responsibility of government?

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  • Dilawar
    Jul 29, 2012 - 12:28AM

    Dear writer, no government in its sane mind would like to ridicule the court. The problem is that our revered SC has gone political. The president has immunity so u just cant file a case against him. Henceforth it must learn to digest it. The moment it has completed its tenure, then is the right time to bring him in the court.
    Now let me tell u what this stubborn SC has brought us; first a contempt bill approved, second the same incompetent,corrupt PPP has gained sympathy of many, third u have made the anti democratic institutions strong. There is no point in pursuing this case, not until Zardari is the president.

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  • ishrat salim
    Jul 29, 2012 - 5:05PM

    Dilawar Sb…SC is not being stubborn, they are just trying under very trying conditions to implement rule of law as per constitution…is this not their job ? what do you guys want from the judiciary, the present rulers shud keep on looting & do all the wrong things & when it is petitioned by concerned citizens, same shud be thrown into the garbage & let the rulers continue unabetted with their loot & plunder ?..the new contempt law is for the few who rules…is this fair ?Recommend

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