Daily Times

Article 19 of the Constitution of Pakistan guarantees every citizen of Pakistan the right to freedom of speech and expression subject to reasonable restrictions imposed amongst others in relation to ‘contempt of court’. The question is then what is a reasonable restriction on freedom of speech. Only the Supreme Court of Pakistan is sufficiently empowered to interpret what is reasonable or unreasonable.

It is my view as an officer of the court — and I say this with the utmost respect to their lordships of the Supreme Court — that Imran Khan’s use of the word “sharamnaak” (shameful) — distasteful as it may be to the superior judiciary — should not amount to contempt. What is contempt of court? Contempt of court covers generally a wilful disregard of a court’s order or an act that misleads the court or affects the proceedings at court or which scandalises the court and brings it into disrepute. To prove that indeed Khan is a contemnor, a case has to be made that he wilfully and with malicious intent sought to bring the institution of the judiciary into disrepute. Now there are many arguments that can be made that Khan did indeed do this. After all, in our system of government the ultimate decision of interpretation lies with the Supreme Court and let us also not forget that whatever Khan’s subsequent stance, he did refer to ‘judiciary’ without any qualification when making his comments.

Yet here is why I feel the Supreme Court of Pakistan should not charge Imran Khan with contempt. The Supreme Court of Pakistan is the apex court of this republic. The decisions it takes become law. By reacting to a statement by a politician and an individual, the Supreme Court must not by its conduct set a precedent that will have far reaching consequences for freedom of speech in Pakistan, which is already much compromised and under threat by religious extremism and state curbs. Would the Supreme Court, the guardian of the constitutional rights of citizens of Pakistan, add another fetter on free speech of the citizens of Pakistan? I am sure My Lords do not want to fashion a society that is inward and insulated.

My Lords will no doubt note that even in the British Raj, no prosecution for ‘abusive language’ was undertaken. Countless incidents are told about the irreverence Mr Mohammad Ali Jinnah showed towards the judiciary. He had famously told a presiding judge, “Nothing but nonsense has been uttered by my Lord.” He fiercely criticised the Privy Council’s judgments on Anglo-Mahommedan Law on more than one occasion, accusing them of slaughtering the spirit of the law. His sharp-tongued rebukes to Justice Dinshaw Dawar who Jinnah, as an Indian Nationalist, saw as the enemy for having sentenced Tilak to six years imprisonment, are legendary. The British rulers, foreign, elitist and racist as they may have been, did not resort to prosecuting British Indians for contempt merely for using strong language against the court.

In the law elsewhere in societies with a greater appreciation of the rule of law than ours, long gone are the days when criticism, and even abusive language, could be termed contempt of court. A politician in the US or Great Britain is not likely to be hauled into court simply because he or she expresses an opinion in strong language on the court. Yet we see that in those countries the rule of law has not dissipated and indeed the judgments of their courts are respected more than ever before. Clearly then, conflating respect with forced restriction on freedom of speech is not the way to go about it. The honourable judges should let their judgments speak. The registrar of the Supreme Court should not be keeping a watch on who said what about the judiciary. That is not his mandate, very respectfully.

Their lordships of the Supreme Court of Pakistan have a grave constitutional responsibility to safeguard the fundamental and constitutional rights of the people of Pakistan, especially the marginalized communities. Far be it from me to pretend to be in a capacity to advise the Supreme Court of Pakistan. I humbly venture the opinion, with utmost respect and humility, that the time of the Lordships of our Supreme Court will be better spent if they investigated instances of grievous assault on the life and liberty of Pakistanis by religious extremists. The state has time and again proved itself helpless in defending the rights of its people. Would it then not make sense that instead of prosecuting Imran Khan for merely expressing his point of view, wrong as it may be, the Supreme Court should prove Khan wrong by delivering judgments that speak volumes?

May I humbly request the Chief Justice of Pakistan to do something extraordinary for the people of Pakistan, and by people of Pakistan I mean Pakistanis of all religions and ethnic origins that will once and for all shut the door on those who ascribe such untruths to his Lordship. History beckons you My Lord.

The writer is a lawyer based in Lahore and the author of the book Jinnah: Myth and Reality. He can be contacted via twitter @therealylh and through his email address yasser.hamdani@gmail.com