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.