Thursday Sep 22, 2022
It goes without saying that every person has a right to dignity. Our Constitution, which is a sacred and living document, protects a person’s right to dignity in terms of Article 14.
At a time when superior courts are wielding contempt powers as a sword, there is a need to consider whether the offence of scandalising the court should exist at all in this day and age.
There can be no question that for constitutionalism and rule of law to exist and prosper, courts must be seen as impartial guardians of the law. Then, does the perception of impartiality rest on the conduct of the courts or on forbidding criticism of their conduct?
Who should bear the burden of the court’s shame: the court or the people?
In 2012, the United Kingdom Law Commission, after wide consultations, recommended that “scandalising the court should cease to exist as an offence or as a form of contempt".
The eport articulates key arguments in favour of abolishing the offence of scandalising judges as follows: “Prosecutions can have the effect of increasing the harm caused by the act complained of and is counterproductive in that it conveys the impression that judges are protecting their own. The offence has been criticised on the ground of freedom of expression, and it has been argued that judges do not need special protection not given to any other public officials. The old argument that judges need protection because they cannot answer back has less force than it did.”
The Commission also highlighted the self-serving nature of the offence liable to abuse to protect the sensitivities of judges: “There is something inherently suspect about an offence both created and enforced by judges which target offensive remarks about judges.”
The report further stated that “the offence of scandalising the court arose in an era where deferential respect to authority figures was the norm. This is clearly no longer the case to nearly the same extent as it was…For example, in 1987 the Daily Mirror published upside-down photographs of three Law Lords concerned in the Spycatcher litigation, with the caption “YOU FOOLS”. This would certainly have been regarded as scandalising contempt if it had been published a century earlier.”
The conclusions drawn by the UK Law Commission find support across the civilised world.
British judge Lord Atkin had famously stated for Privy Council as far back as 1936 in that justice is not a “cloistered virtue”, while explaining that “the path of criticism is a public way: the wrongheaded are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice…”
While the English lawyer and judge Lord Denning emphasized in Regina v Commissioner of Police (1968) that the contempt law doesn’t exist as a self-serving tool for judges: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”
This mode of thinking isn’t peculiar to judges in the UK alone.
The United States Supreme Court Justice Hugo Black stated in Bridges v California (1941) that the assumption that respect for the judiciary can be won by shielding judges from published criticism “wrongly appraises the character of American public opinion…an enforced silence, however, limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”
It must be noted that the US interferes with free speech only if there is a clear and present danger to the administration of justice.
The European Court of Human Rights has prescribed a three-fold test for judging restrictions against free speech: restrictions are to be prescribed by law, must further the legitimate aim of preserving the administration of justice; and must be necessary for a democratic society.
In Pakistan, our constitution provides for contempt of court.
As per Article 204, a court shall have the power to punish any person who abuses, interferes, with or obstructs the process of the court in any way or disobeys any order of the court; scandalizes the court or otherwise does anything which tends to bring the court or a judge of the court into hatred, ridicule or contempt; does anything which tends to prejudice the determination of a matter pending before the court; or does any other thing which, by law, constitutes contempt of the court.
The relevant law which deals with contempt is the Contempt of Court Ordinance, 2003.
The Ordinance defines three types of contempt: (a) civil contempt, (b) criminal contempt and (c) judicial contempt.
Criminal contempt has been defined as “the doing of any act with intent to or having the effect of obstructing the administration of justice”.
Likewise judicial contempt has been defined as “the scandalization of a court and includes personalized criticism of a judge while holding office”.
It is settled law that independence of the judiciary is a salient feature of our constitution and it is for the purposes of guarding public interest, in the independence of judiciary, that the power to initiate contempt proceedings has been provided by the constitution.
In cases of criticism of the judiciary the foremost question is how can the right balance be struck between public interest in freedom of speech and public interest in the independence of judiciary and its ability to dispense justice, without considerations of fear and favour?
Liberty, rule of law, and partisan politics are all features of a representative democracy. These features are built on a foundation supported by free speech. Without individual liberties, including the freedom of expression, the edifice of democracy would remain hollow.
The law of contempt, be it in the case of disobedience of court orders, obstruction of judicial processes, interference in the administration of justice or scandalizing judges is not enacted to shield individual judges from the gaze of public scrutiny. Its purpose is to nurture and protect the administration of justice and the rule of law.
The inroads it makes into regulating free speech is for promoting the rule of law. It indeed lies at the confluence of the streams of justice and free flow of expression, and this must never be lost sight of while considering allegations of contempt of court.
The offence of scandalizing a judge was invented by common law to prevent the undermining of public confidence in the administration of justice. It is used where there is a scurrilous abuse of a judge or a court of law or where there is a false imputation of bias or some form of partiality against a judge or when it is falsely alleged that a judge or a court has been influenced by someone.
The expression “scandalizing the court” is any act done or writing published to bring a court or a judge of the court into contempt or to lower his authority. The object is to protect the proper functioning of the court, not the feelings of individual judges.
The law of civil contempt has been used by the courts in Pakistan in a number of cases. For example in the year 2012, former prime minister Yusuf Raza Gillani was issued a contempt notice for willful flouting and disregarding the orders of the apex court and was disqualified for a term of five years
Similarly, the apex court initiated criminal contempt proceedings against a sitting senator Nehal Hashmi in 2018 after he had threatened judges of the supreme court, their families and members of a joint investigation team. Although the contemnor did tender an unconditional apology at a belated state but it was not found satisfactory and the alleged contemnor was not only sent to jail but was also disqualified for a period of five years to contest the elections.
Likewise, in the 2019 case titled as Talal Ahmed Chaudhry versus The State, another sitting minister was also charged with contempt by a larger bench of the top after finding his unconditional apology to be unacceptable.
Now, Imran Khan, the chairman of PTI and the former prime minister, was heard threatening a judge of the lower judiciary in a public gathering.
Thereafter, the Islamabad High Court took cognizance of the matter, constituted a larger bench, and summoned the PTI chief. Khan appeared before the Court and argued that he had made a statement in a different context altogether.
The reply submitted by Khan’s counsel was found to be unsatisfactory, after which the Court has decided to indict the PTI chief on Thursday.
As the hearing in IHC resumes today, the courts should exercise their powers of contempt sparingly or as a matter of last resort. They should not use the power of contempt as a matter of course, routine or as a matter of right.
Rather the powers of contempt should be done away with as the same has become an outdated concept. The courts should be cautious and try to exercise as much restraint as possible in such matters.
A very learned judge of the Islamabad High Court has aptly summoned up the law of contempt in the following words: “Isn’t conflict of interest inherent in judges evaluating criticism of judges to determine whether it is of a nature that scandalises the judge?”.
Pansota is an advocate of the Supreme Court.