Daily Times

“Never in its history has an order of this court been disobeyed with such impunity. Justice is at an end when orders of the highest and most powerful court in the land are set at nought. Obedience to its mandates is essential to our institutions,” said the US Attorney General Charles Bonaparte, while making the closing arguments in United States vs Shipp; a historic case from 1907 where the US Supreme Court convicted and sentenced six individuals for contempt of court after they were found guilty of aiding and allowing the lynching of Ed Johnson, a man given an unfair trial in a case of a false allegation of a crime he did not commit.

Ed Johnson was convicted by the Tennessee court, where-after Mr Noah W Parden took up his case and managed to get a stay against his execution from the US Supreme Court. The Supreme Court’s orders were, however, flouted when a mob was allowed to lynch Johnson.

Parden, while commenting on the case, said, “We are at a time when many of our people have abandoned the respect for the rule of law due to the racial hatred deep in their hearts and souls. Nothing less than our civilised society is at stake.”

More than a century later, in Pakistan, where no black man is at stake, and it’s not racial hatred that’s making us abandon the respect for the rule of law. Our time, place and reasons may be different, but Noah Parden and Bonaparte’s words are very relevant to our current state of affairs.

A sitting Senator of Pakistan chose the harshest of words to ridicule, intimidate and threaten an investigative body appointed by the highest and most powerful court in the land: the Supreme Court of Pakistan. Not just members of the JIT, their families too were warned of severe consequences. Indirect threats were also made to the honourable members of the Supreme Court’s bench. The gravity of his words did not match the cause of his anger which seemed to stem out of the Supreme Court of Pakistan holding the prime minister of Pakistan accountable.

If the court is expected to make it a rule to accept the apology in all cases including cases of brazen contempt, then we might as well do away with contempt laws

Naturally, contempt proceedings were initiated against the Senator. Some argued that the Supreme Court should show restraint in exercising a power conferred upon it by the Constitution of Pakistan. Most of these arguments were politically motivated, some may have come from actual opponents of contempt laws, but there seemed a general consensus that the Senator had gone too far. Even from within his political party, people found it quite difficult to support him or explain his actions.

The trial commenced last year and concluded this week with a conviction and sentencing. The judgment is now being criticised for the honourable judges chose not to accept an unconditional apology tendered by the accused at the very last stage of proceedings. The politicians and analysts opposing the judgment are basing their arguments on the fact that courts usually accept the apology in contempt cases when offered unconditionally and when the accused throws himself at the mercy of the court. It is true that precedents weigh heavily in favour of such an apology being accepted and contemnor being pardoned. However, it is always in the court’s discretion to choose whether to accept an apology or not in contempt cases. The law too gives the courts that power.

Section 5(2) of the Contempt of Courts Ordinance states: “A person accused of having committed contempt of Court may, at any stage, submit an apology and the Court, if satisfied that it is bona fide, may discharge him or remit his sentence.”

The use of the word ‘may’ is not without purpose. It makes the acceptance of an apology of a contemnor discretionary and not mandatory. There has to be a red line, for the purpose of contempt laws is to protect the dignity and honour of the court and to ensure the rule of law. It is for the court to decide when a red line has been crossed. In this case, the line has not just been crossed, but the contemnor went so far across the red line that it wasn’t even visible to him. Threats of dire consequences to public servants performing their duties on the orders and under the mandate of the Supreme Court of Pakistan was without a doubt an attempt to bring the authority of the Court and administration of law into disrespect and disrepute. Such intimidation can only be seen as interference or obstruction in the process of law and due course of the court’s proceedings.

If the court is expected to make it a rule to accept the apology in all cases including cases of such brazen contempt, then we might as well do away with contempt laws. Flout a court’s order, scandalise honourable judges of the High Courts and Supreme Court, threaten their families and families of commissions and investigators working on their orders, manipulate and influence the process of law and reap all the benefits there from, and an unconditional apology is all it will take to wipe the slate clean and start anew. The Supreme Court needed to put its foot down, and that is just what it did.

The writer is a practicing lawyer with a Masters degree from the University of Warwick and an ex-Member Provincial Assembly of Punjab (2008-2013);  He tweets @ZafarSahi

Published in Daily Times, February 5^th 2018.