The Supreme Court issued the contempt of court notice to Mr Imran Khan contending that Mr Khan has initiated a campaign to deliberately “scandalise” the judiciary. Looking at the record of the recent years, to the cynic it might seem that the Court is rather easily ‘scandalised’. The suggestively named offence of scandalising the court is a common law offence, which is now becoming extinct in most countries. In 1899, a UK court in the case of Mcleod vs. St Aubyn, observed: “Committals for contempt of court by scandalising the court itself have become obsolete in this country ... But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity of and respect for the court.” So, while not good enough for the ‘civilised’ world, it still has its utility here.
The offending word is “shameful”, which Mr Khan used in relation to the role of the judiciary and the Election Commission of Pakistan (ECP).With the utmost of deference; will My Lords describe the presidential election judgment as making them “proud”? Does the requirement of being polite while referring to judicial pronouncement apply to judgments of the present Supreme Court or does it extend back to all previous decisions? For example, the only term that intuitively comes to mind while describing the ZAB judgment is either “shameful” or “shameless”, similarly, the list of cases involving legitimising martial laws etc. mandate the use of these words.
One may have very serious and legitimate differences with Mr Khan’s politics, however, he is a representative of the people and the serving of the notice and the way he was treated in Court leaves a bitter taste in the mouth. The only good coming out of all this is that those cheering the Court on in other contempt notices and overstepping of authority for the past four years, now are willing to reconsider their position. One hopes that the realisation that principles trump personalities sinks in.
As a general principle, political polemic should not be employed while discussing judgments. However, the breach of general principles is a two-way street here. Other dusty principles are, “sober as a judge”, “judges speak only through judgments” etc. Judgments are silent, while courtrooms deafening. The presidential election judgment was a political decision. If not necessarily in the partisan party sense, then at least in the original Greek sense of the word, ‘politics’. Mr Khan responded in the same language in which the judgment was written.
The argument for temperate language is always a persuasive one. Yet, at times, the media reports of the language, tone and tenor coming from Court Room number 1 are not for the faint-hearted. I have no inclination of joining Mr Khan in his present predicament, yet as a humble servant of the law, one has to respectfully ask if a red line has been crossed. The excellent Babar Sattar has been reprimanded and told to be careful in his criticism. Mr Sattar is always very eloquent and temperate, yet My Lords and their ‘admirers’ in the media have taken offence. Maybe it is not how it is being said, but what is being said or perhaps, why anything is being said at all.
The overuse of contempt law is a symptom of us as a state and as a people, who have been bypassed by time, living in our own warps. The gag orders on Faisal Raza Abidi and others, the desk thumping, the threatening tones of “shhh … not a word” in the times of Facebook and Twitter? A state and those in authority struggling to come to terms with the fact that they are no longer the sole gatekeepers to information; websites banned, op-eds censored, television programmes blacked out; yet, it keeps coming out. Silencing voices is no longer just wrong; it is also futile.
The power of the contempt provision derives from its sparing use. It gets cheapened and ineffective with overuse. If everything is contemptuous, nothing is. If respect has to be demanded instead of being commanded, you already have a problem. The Lahore High Court Bar Association (LHCBA) has been less careful than Mr Khan in passing a resolution. I only repeat what has already been reported in the media, the LHCBA general house has asked for a reference to be made to the Supreme Judicial Council against the judges on the bench for the presidential election. God forbid; yet it has been said and is now in the public domain. Will My Lords now issue a contempt notice to the LHCBA general house? It is certainly within their power to do so. If My Lords in their infinite wisdom feel that it will contribute to the majesty of the law and the integrity of the legal system then all lawyers critical (including your faithful servant) will be willing to spend up to six months in jail. My Lords, do it if you deem it fit and if it pleases you, however, do not ask us to “shut up”. We will not, since we cannot. My Lords have unquestionably the constitutional power to sentence anyone of us to prison for contempt, however with my head bowed, they do not have a right to insult us, not to display contempt for the people; contempt of the people.
My Lords, the presidential election decision and summoning Mr Khan were not your “proudest” moments and insisting on it will not change that. Lordships, there is work to be done; not the glamorous primetime variety but hard toil. The lower judiciary needs to be reformed, the superior judiciary restrained. Posterity is not kind to evening news stories; jurisprudence needs to be laid down.
The DI Khan jailbreak and its implication for us as a state should have been the issue of the last week. Are we condemned to witness, revel in and repeat shenanigans and ego trips only? “Kisay wakeel karein, kis se munsafi chahein?”
Published in The Express Tribune, August 4th, 2013.
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