Speak no evil, wish no ill, utter no contempt

Unraveling the enigma called contempt of court laws and their practice

 

 

Trip down the memory lane

Before conducting post-mortem of the latest contempt of court in town, let us take a trip down memory lane. As far as what the phrase means, let us follow in the footsteps of their Lordships who in the landmark 28 July verdict in Panamagate verdict sought Black’s Law Dictionary’s, the most trusted legal dictionary available, assistance to make sense of ‘un-withdrawn receivables’ of now former Prime Minister Mian Muhammad Nawaz Sharif from a UAE firm. It seems befitting to follow their example and make head or tail of contempt of court laws and their practice through the same route. Black’s Law Dictionary defines contempt of court as ‘Conduct that defies the authority or dignity of a court or legislature because such conduct interferes with the administration of justice it is punishable usually by fine or imprisonment’.

The judicial history of Pakistan is inundated with incidents where individuals witnessed wrath of contempt of court, two examples, one most recent and another most gruesome, will suffice to understand the width and breadth of it. Senator Nehal Hashmi of PML-N spoke his heart out at a workers convention and warned the JIT members and judges of dire consequences in May, 2017. The very next day all hell broke loose. The SC took notice, amidst much hue and cry a charge sheet was issued and the hearings continued and Mr Hashmi, who recently underwent angioplasty, was told to submit his reply by 21 August 2017.

The most gruesome, the Prime Minister Yousaf Raza Gillani went down the same rabbit hole back in 2012,when their Lordships held him guilty in contempt of court for his refusal to write to Swiss authorities seeking details of bank accounts of former President Asif Ali Zardari.

The lawmen differ greatly on whether what former PM said during his four day long journey back home on GT Road amounts to contempt of court or not. Notable Advocate Supreme Court Azam Nazeer Tarar, who is also Member Pakistan Bar Council, was of the opinion that the contempt matter is purely and squarely a matter between court and the condemner.

All power to their Lordships

“The contempt law provides ample power to the courts to initiate action on their own. This matter is to be examined by the court not by the citizens, not by the bar leaders, not by the politicians or opposition. If the court thinks that it is a fair comment and it should not initiate proceedings, it is their decision and their decision alone,” he said while talking to DNA.

Tarar was of the view that if court thinks that a particular statement amounts to ridiculing the institution and thinks that its integrity and honour is at stake, they must step forward and take action. “That is why even the Constitution recognises the power of contempt of court, it is one of the law which is embedded in it,” he stressed.

“It is for the courts to take action, neither you nor me. I think contempt laws vest powers in the courts alone to decide what amounts to contempt and what not.” said Tarar, adding that if the court hasn’t been as active as it was in the case of Nehal Hashmi, it is because it thinks that a political episode is underway and it doesn’t want to get involved in it.

Did former PM verbally assaulted Supreme Court judges?

Advocate Supreme Court, Chaudhry Faisal, who represented PTI in Panama case termed PM’s speeches not as contempt of court rather called his statements to be considered as verbal assault and it was an intentional and deliberate effort to weaken the state institutions and amount to belated disrespect and disregard to the constitution and he didn’t abide by the law which he was constitutionally bound to do and extend respect to the institutions under Article-4 and 5 of the Constitution.

When asked why former PM is being treated differently than his party-man Senator Nehal Hashmi, Faisal said may be the judges are acting magnanimously. “I expect that judges will take notice, even the Nehal Hashmi matter was dealt with leniently and in their verdict, they could have sent Nawaz Sharif to the jail for forging and other acts, the SC showed restraint and judgment pertaining to disqualification is lenient”.

Once a judgment is out, it can be commented upon freely

According to Saad Hashmi, Advocate High Court who assisted both Advocate Makhdoom Ali Khan and Advocate Khawaja Haris, the  former PM committed no contempt at all.

“When a case is being heard, you can’t say anything demeaning about it publicly, especially about how the case is proceeding and other such things, that could have amounted to contempt. Once the judgment is in the field, everyone and anyone in the country has a right to comment on it,” he said, while talking to DNA.

“Simply making a comment does not amount to contempt, he may be just commenting on the judgment”.

Not ‘contempt of court’ but a ‘battle of titans’

“What we have at present is not contempt of court rather battle of titans,” said Advocate Chaudhary Badar Iqbal.

If we speak in terms of The Contempt of Court Ordinance, 2003 there are three types of contempt in it namely civil, criminal and judicial. When you scandalise the court it falls within the purview of the judicial contempt.

“In Judicial contempt if one scandalises the court and levels personal criticism, that is tantamount to contempt. Even in our constitution it is mentioned at various points that one cannot question the decisions of judiciary like Article-8 and all rights a citizen have are subject to certain limitations,” he said. “Gillani was the lesser being as he lacked the people’s power behind him,” when asked that a former PM was sent home on contempt of court charges.

Iqbal said that if PM Nawaz was just discussing the order of the court, it would have been okay.

“But when you elude to the facts that it was a conspiracy, the decision was pre-decided, pre-determined and you were not given justice, then you are not questioning the merits of the case, you are questioning the intent of the court,” he concluded.

The relevant provisions in law

Article-204 of constitution of Pakistan sheds light on what act qualifies as contempt of court and court’s power to punish it:

  1. Contempt of Court.-(1) In this Article, “Court” means the Supreme Court or High Court. (2) A Court shall have power to punish any person who,–(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court; (b) scandalises the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt; (c) does anything which tends to prejudice the determination of a matter pending before the Court; or (d) does any other thing which, by law, constitutes contempt of the Court.

(3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court.]

Section 3 of The Contempt of Court Ordinance, 2003defines contempt of court as following:

  1. Contempt of Court:— Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey; or commits a willful breach of a valid undertaking given to a Court; or 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 interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings, or to lower the authority of a court or scandalise a judge in relation to his office, or to disturb the order or decorum of a court is said to commit “contempt of Court” the Contempt is of three types, namely; the “Civil contempt” “criminal contempt” and “judicial contempt“.

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