“Judgment is a divine right of Allah alone the powers of which have been delegated to human beings in accordance with the terms and conditions spelled out in Holy Quran and as excercised by the Holy Prophet and the Caliphs. Any deviation from there would be a serious violation and hence a contempt of Divine Authority.” Raja Mujtaba
By Humayun Gauhar
We were talking of contempt, freedom of expression and the right of dissent, of suo moto and suspected partisanship. The way the Islamabad High Court ordered the police to register a murder case against General Pervez Musharraf immediately for the Lal Masjid operation defies credulity. One is left wondering about equity and balance, about whether it is not the duty of a Head of State and Supreme Commander of the Armed Force to protect the state against terrorists and enemies external and internal who would harm it. We will make ‘fair comment’ on this when the time is ripe. Of that you can be sure, God willing.
Ah! What a loaded term, ‘fair comment’ is. Who decides what is fair or what is not? Judges in their own cause, what? The people’s right to make ‘fair comment’ on court judgments is alienable and indivisible, as too the right on what the else judiciary does as too behaviour of judges and their families. Human beings are not intellectually hostage to court judgments for God has given them free will and the ability to choose between right and wrong. In an Islamic state this should be paramount. We will, God willing, also write about freedom of expression in Islam sooner rather than later.
President Musharraf repealed the 1976 Contempt of Court Act and passed a Contempt of Court Ordinance on December 15, 2003. At that time, under Article 89 of the constitution, an ordinance was valid for four months unless re-promulgated one time only, but the Parliament of 2003 validated all Musharraf’s ordinances made between October 12, 1999 and December 31, 2003 through the 17th Amendment and the Parliament of 2010 affirmed this validation through the 18th Amendment. The temporary ordinance thus assumed the character of a permanent Act through the device of Article 270 AA of the constitution.
The ordinance distinguished between three kinds of contempt: civil, criminal and judicial. The ordinance says, inter alia, “whoever…does anything which is intended to or tends to bring the authority of a court or the administration of law into disrespect or disrepute…or to lower the authority of a court to scandalize a judge in relation to his office, or to disturb the order or decorum of a court, is said to commit ‘contempt of court’.” You can read it in full in DAWN, December 17, 2003. Punishment can be imprisonment for up to six months or a Rs. 100,000 fine or both. An apology may be accepted “and the court, if satisfied that it is bona fide, may discharge him or remit his sentence.” (Wow! These are Divine powers. I thought that God alone knows what is in a man’s heart).
The dictionary meaning of ‘contempt of court’, not simply ‘contempt’, is “willful disobedience or disrespect of court” and “distorting or trying to distort the course of justice.” If what is uttered is truthful to the best knowledge and belief of the utterer it is not contempt of court so long as he can prove it because under the ordinance “…truth shall be a valid defence in cases of contempt of court”. If witting or unwitting rigging of the ballot with the involvement of the judiciary is proved for example, it certainly is “shameful” for Pakistan. If it isn’t, it certainly is contempt. That it would open a Pandora’s 40-feet container is beside the point for eventually it would be good for the state. In an Islamic republic truth must prevail. It is a Divine imperative.
Article 204 of the constitution says that in contempt of court: “…‘Court’ means the Supreme Court or a High Court”. Under the Ordinance every high court shall have the power to punish a contempt committed in relation to it or any court subordinate to it. So only the high courts and Supreme Court have the lawful authority “to punish a contempt”. Article 63(1)(g) of the constitution states, inter alia, that a person shall be disqualified from being elected or chosen as, and from being, a member of parliament, if he or she says or does anything against “…the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary…” Holy cow, sure, but it is vital that the judiciary (as too the judges), being one of the three equally vital branches of government, is unblemished and above suspicion so that there is public acceptance of its judgments. Else justice will not be accepted as balanced hpw and blind and may consequently invite ridicule and opprobrium. A person can be found guilty of contempt unless he apologizes and “throws himself at the mercy of the court”, a highly un-Islamic phrase in an Islamic state because a Muslim only throws himself at the Mercy of the Court of the Almighty and none other. Sadly, we are still beholden to British form rather than to God and His Laws. Even using the honorifics ‘lordship’, ‘majesty’ or ‘highness’ is blasphemous of God but must be dealt with only by God, not people. Our judges should stop the use of the term ‘lordship’ else it is contempt of the Supreme Judge.
Here’s a contradiction: while law dispensers are above contempt, lawmakers are not. Unlike judges who are supposed to be justice dispensers, legislators who are lawmakers are not spared. Parliamentarians need no proof to say anything defamatory about anyone or anything on the floor of the House (which is why people, including other parliamentarians, challenge them to say whatever they do outside parliament if they have the guts), but they cannot about the judiciary. Judges and the judiciary are holy cows even there. Article 68 of the constitution about restrictions on discussion in parliament says: “No discussion shall take place in Majlis-e-Shoora (Parliament) with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.” There are no holy cows in Islam, especially when the cow is perceptibly unholy. I keep referring to Islam because we hypocritically profess to be an Islamic state without regard to the gulf between profession and practice. That gulf, in itself, is grave contempt of the Divine.
Freedom of speech for the ordinary mortal is not absolute in our constitution. “Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence.”
Just as the phrase ‘supreme national interest’ can be subjectively exploited for self- or group-interest, so too can the word ‘reasonable’ to avoid what might be truthful. What is reasonable and what is not is a matter of opinion and interpretation. Certainly it is most reasonable, indeed an imperative, to speak the truth as one sees it if it benefits the public good. Criticizing a judge without proof is unreasonable. Criticizing him with proof is not only eminently reasonable, it is in the public interest and part of a citizen’s fundamental right to freedom of speech and expression, it is an imperative to limit damage to the reputation of and respect for the judiciary. If ‘reasonable’ suspicions are aroused about a judge’s behaviour, it is also eminently reasonable to voice those suspicions publicly so that they can be inquired into and dealt with one way or the other.
One should differentiate court from judge. ‘Fair comment’ on a judgment is not contempt but an attempt to protect the respect of the judiciary.
The judiciary is an institution while the judges are its servants who get paid from the public exchequer that is held in trust by the government of the day. Judges cannot be bigger than the institution, the judiciary. An institution is as good as those who run it. If it is suspected that some of them are wanting, it is a citizen’s duty to point it out to protect the institution. Wanting or compromised judges are in themselves contempt of the judiciary.
Thus while telling the truth in good faith as one sees it is not contempt, hiding or twisting it or speaking lies is contempt of the judiciary, the country and the Divine. Judges are supposed to protect a citizen’s fundamental right of truthful expression, not to seal his lips with contempt cases when it doesn’t suit them. They have to earn respect, not demand or order it.
It’s all about upholding the truth and saving the country and one of its most vital institutions without which there can be no civilization. As I said last week, the judges should think why they are slipping down the high pedestal they were placed on and ask why their most ardent supporters are deserting them. If they really want to restore the respect of the judiciary the controversial judges may consider the example of the chief election commissioner. It is time for introspection.
“If we cannot go to the Supreme Court as a last court of appeal,” asks Imran Khan, “then where?” Where indeed? The only place then left is the court of the people. That court exists on the street. That is where the sacked judges were restored. That is where they could be sacked again.