CONTEMPT: DEMOCLES' SWORD
0 comments | by Saad Rasool
Contempt: Damocles’ Sword
Saad Rasool wrote in The Nation
September 11, 2022
Pakistan judiciary ranks very low in the world ranking. Pakistan EX Chief Justice himself admits of widespread corruption in courts, nothing has improved since. The justices of the higher courts pass too many sensational remarks during the hearing some of those are rather demeaning for the accused and the witnesses. It is time that the public demands the accountability of judges. In fact lack of justice and corruption within the judiciary are major issues but no one dares to talk about it .
On Thursday, a five-member bench of the honourable Islamabad High Court (IHC) decided to frame charges against Imran Khan, in contempt of court proceedings, for Khan’s remarks about Judge Zeba Chaudhry. And, as could be expected, this decision of the IHC has (once again) brought into focus Pakistan’s perennial challenges in defining the contours of contempt proceedings, and the manner in which this judicial authority is to be exercised. Before delving into the relevant legal issues, it is important to recount the precise comment of Imran Khan, that has landed him in this judicial trap.
Speaking to a public gathering in Islamabad, on the 20th of August, Imran Khan commented as follows: “Magistrate Zeba Sahiba, you should get ready, for we will take [legal] action against you. You should be ashamed of yourself.” These abhorrent (blasphemous?) comments were in the context of Judge Zeba having ordered Shehbaz Gill to‘physical remand’ of the police, despite there being evidence of custodial torture against Gill. Importantly, the allegations of custodial torture are not merely partisan in nature; independent journalists, even members of the ruling coalition (e.g. Mustafa Khokhar) have spoken against this torture, having seen video ‘evidence’ in support of it. Be that as it may, the IHC concluded that the promise of (legal) “action”, along with encouragement of “shame”, prima facie, amounted to ‘judicial’ and (more importantly) ‘criminal’ contempt, for which Imran Khan must be indicted. At this juncture, a brief overview of the contempt law paradigm is necessary. Freedom of speech and expression,
under the Constitution of Pakistan, is protected, as a fundamental right, under Article 19 of the Constitution. However, much like other constitutional democracies, the right to freedom of speech in Pakistan is subject to certain limitations that include, inter alia, contempt of court. The judicial power of contempt also emanates from the Constitution itself.
Specifically, Article 204 of the Constitution stipulates three distinct ‘categories’ for contempt, and grants our constitutional Courts “the power to punish
any person who”: a) “abuses, interferes with or obstructs the process of the Court in any way or disobeys any court orders”—i.e. civil contempt; 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”—i.e. judicial contempt; and c) “does anything which tends to prejudice the determination of a matter pending before the Court”—i.e. criminal contempt. And under this constitutional framework, the Contempt of Court Ordinance, 2003 also enumerates the same (three) categories of contempt.
In summary, ‘civil’ contempt is merely the disobedience of a court order. And this is not attracted in the case of Imran Khan. Instead, the allegation
against Khan is that he has committed ‘judicial’ contempt (by scandalising Judge Zeba), and ‘criminal contempt’ (by attempting to interfere in the administration of justice). While both of these allegations find mention in the proceedings of the IHC, the honourable Court and its judges have taken pains to explain that they do not wish to pursue the charges of ‘judicial contempt’, because personal egos of the honourable judges are not in play.
In fact, previously, Justice Sattar, in his prolific columns, has advocated the abolishment of judicial contempt from our laws, arguing that it is an unreasonable restriction on free speech.
Thus, the only real charge that Imran Khan is likely to face in the instant
proceedings, is that of ‘criminal contempt’—for ‘threatening’ Judge Zeba, in a manner that is likely to interference in the administration of justice in the subjudice matter of Shehbaz Gill. This simplifies the issue a great deal. All that we need to see is whether Imran Khan’s actions amount to interference in the process of justice, and did whether he intended to do so. In his initial response to these allegations, Khan showed remorse, expressed his respect for the process of justice, and sought the Court’s permission to ‘take his words back’. Importantly, he did not use the word ‘apology’ in his written response. The Court held that Khan’s response was “unsatisfactory”, but permitted him to file a “supplementary reply”. Simultaneously the Court appointed two amicus curiae to assist in the matter. The following week, Khan submitted a supplementary reply, wherein he explained that he was not aware that Shehbaz Gill’s matter was still sub-judice. He expressed his “deepest regrets over his unintentional utterance”, and emphasised his “profound regard and respect” for the Court. Khan further clarified that he had not intended to “threaten the lady judge, nor could he think of doing so”. In fact, Khan stated that, given the opportunity, he would personally express his remorse to Judge Zeba, and that his “utterances were never meant to interfere with or in any way influence the course of administration of justice.” Despite such categorical clarification and regret, the honourable Court, in its infinite and unimpeachable wisdom, was not satisfied. Because Khan had not tendered an ‘unconditional apology’, thus accepting his guilt and placing himself at the mercy of the Court. Like the court of Charlamagne—a person is only worthy of being forgiven if he strips down, rubs his nose in the dirt, and begs for mercy.
After all, it is the administration of justice that has been threatened. The same administration of justice, which stood strong through Maryam Nawaz’s secret videos of Judge Arshad Malik, and mala fide allegations of Rana Shamim. Now, however, words such as “[legal] action” and “ashamed” had threatened to dismantle its very core. And nothing could undo the damage. Not Imran Khan’ remorse. Not his offer to express regret to Judge Zeba. Not all the arguments of the amicus curiae, who opposed the contempt proceedings. Or even submissions of the Pakistan Bar Council. Nothing. What would restore this brittle faith in the dispensation of justice? Well, Imran Khan’ conviction and resulting disqualification would. Because after that, instantaneously, the people of Pakistan would finally see the strength of our laws, and virtue of its justice. And, much more importantly, no one will ever again dare to tell the Emperor that he is not wearing any clothes. Back to the case at hand. As reported, during the proceedings, Justice Sattar asked Khan’s counsel how a political leader could threaten legal action against a judge? Well, with tremendous respect to Justice Sattar, why can a political leader not do so? Every citizen can do it. In fact, when faced with the kind of justice meted out by our district judiciary, it may be our democratic responsibility to do so. Also, this idea of framing Imran Khan in ‘criminal contempt’ (instead of judicial contempt), is farcical at best. If for no other reason than the fact that every incident of ‘judicial’ contempt can be termed as ‘criminal’ contempt—ridiculing the person of the judge can always be dubbed as an attempt to influence the outcome of a case. So, while taking the moral high ground—that the honourable judges are not exercising judicial contempt—the Court can still proceed against the alleged contemnor, under the ill-fitted garb of interference with administration of justice. While on the point, let us ask a simple question: did Imran Khan really influence, or attempt to illegally influence, the outcome of the Shehbaz Gill case, in a manner that would thwart the administration of justice? I think Judge Zeba should be ashamed of that remand order, and perhaps proceeded against. Is this contempt of the honorable IHC?
Should we extinguish the right of a citizen to say that a judge should be proceeded against? Carrying the argument forward, should we completely silence an individual from claiming that a decision seems palpably partisan, and that the judge should face (legal) consequences? Would that work in our judicial paradigm? A paradigm where Majeed Achakzai—the MPA who ran over a police-constable in broad daylight, in view of CCTV cameras—was exonerated by a court for “lack of evidence”? If I say that the relevant judicial officer should be proceeded against, have I impeded the administration of justice? Should I be put in jail for it? If so, what then are the contours of fair comment? If this was really about ‘protecting’ the integrity of justice, and the person of Judge Zeba Chaudhry, were there no other (less invasive) ways of doing so? For one, the appeal in Shehbaz Gill is pending before the IHC; could the court not have merely made an observation therein? Alternatively, could the honourable IHC not have looked into the matter in its administrative capacity? After all, a large fraction of the society believes that Shehbaz Gill was illegally tortured, after Judge Zeba’s (illegal) remand order. Should the IHC not, at the very least, look into this allegation? Our judicial system is broken. And this episode is just the latest example of this fact. Because, in broad strokes, here is what actually happened: a man said that State officials should not follow orders that are illegal (something the Supreme Court has held). For this, he was arrested, and tortured in police custody— primarily for partisan reasons. Another person, a political leader, got up and said that this torture is wrong, and that the judge whose order perpetuated the custodial torture, should be ashamed of herself and proceeded against. That man now faces terrorism charges, contempt proceedings, and possible disqualification from politics. The contempt proceedings against Imran Khan may be justified within the (stretched) contours of Article 204 of the Constitution. They may be justified in terms of the borrowed wisdom of Dicey and Holmes. But, in common wisdom, in this time, for this case, they are just plain wrong. We stand at the edge of reason. What happens hereon, is less a question of law or politics, and more a question of people, and their ability to preserve the spirit of law, above personal egos. In this time, what we require most is the wisdom to look past institutional fiefdoms. And to summon the humanity, hard as that may be, to give up our partisan entrenchments.