Daily Times

The august Supreme Court of Pakistan convicted Nehal Hashmi for an offence under section 3 of the Contempt of Court Ordinance, 2003 (Ordinance No. V of 2003) read with Article 204(2) of the Constitution of the Islamic Republic of Pakistan, 1973; and sentenced him ‘to simple imprisonment for one month and a fine of Rs 50,000 or in default of payment thereof to undergo simple imprisonment for a further period of fifteen days.’

For all his antics in front of the galleries; before the court, as proceedings developed, Hashmi changed his position several times. From opting to contest the proceedings to issuing first qualified and then unqualified apology — Hashmi transformed religiously within few months.

The development of proceedings before the court, as recorded in the judgment, is a textbook example of a guilty mind trying to evade proceedings and prolong them. Are we surprised that Hashmi is a lawyer after all? At first, he sought additional time to respond to the show-cause notice served on him. He then absented himself from the court ‘without any prior permission’. Having filed a reply, on being coached, he then filed ‘further reply’ to the show-cause notice. His ‘further reply’ simply read: ‘I am innocent law obeying citizen, a member of the Senate of Pakistan and a Senior Lawyer, thus cannot even imagine committing any act intentionally or wilfully, which can be taken as against the judiciary. As a lawyer saying sorry before the court is an honour itself, therefore, if this honourable court points out any fault, I will tender unqualified and unconditional apology forthwith in the honour of Bench and Bar.’ Such fall from grace, you would think, from the time he was on stage and growling at the top of his voice threatening the honourable judges. There is more!

Initially, he had chosen to contest the charge framed against him. But after his true calling, he continued to pile up his responses and evolve his position. After the prosecution completed its evidence, for the first-time, he tendered an unqualified apology: ‘I shall feel no hesitation to tender an unconditional apology and will throw myself at the mercy of this honourable court without any delay as already stated in further reply.’ He then filed another statement that read: ‘though the accused-respondent initially contested the contempt proceeding, he has now decided not to contest the same anymore as the respect of the court, hence in the circumstances, he tenders his unconditional apology.’

While the matter of contempt is between the court and the defendent, the issue of the dignity of the court affects all of us; lawyers and litigants alike

The court questioned the bona fides of the apology tendered by Hashmi: “The belated apology submitted by the respondent after about seven months of commencement of these proceedings and at the fag end of such proceedings when the evidence of the prosecution has already been completely recorded and closed speaks volumes about the apology being an afterthought.” The court, having determined that Hashmi committed contempt, rejected his apology due to the manner and circumstances in which it was tendered.

What came as a surprise was one abstention on offering concurrence or dissent on the issue by the honourable justice that kept the judgment from being a unanimous decision. A divided court does not bode well on matters of contempt of court. The court, in the past, has stopped short of punishing contemnor-accused and accepted unqualified apologies. It forgave that person for the contempt committed. But not this time. Even though, it took into account mitigating circumstances, which it did not have to, to give what appears to be a very lenient sentence.

There is little doubt that the tirade by Hashmi and his PML-N colleagues has caused substantial damage to the court by scandalising it. It is unfortunate, but not novel, that it is a senior member of the Bar who is in the thick of ridiculing the judges. While the matter of contempt is between the court and the contemnor, the issue of the dignity of the court affects all of us; lawyers and litigants alike. The Bar, on the whole, has given a lukewarm response to the ongoing judicial bashing by the PML-N. That response, or inadequacy of it, has forced the apex court to initiate contempt proceedings against the members of the ruling party. By not choosing to defend the honour and dignity of the court vociferously, the Bar has become a party in the assault on the superior judiciary.

As lawyers, our overriding duty is to the court; this is above politics and the opinions judges author. Lawyers cannot merely sit on the fences as speech after speech is made ridiculing our judicial officers. In these times, the Bar must stand with the Bench. Let the words of Justice Khosa resonate in each Bar across the country: that judges are indeed not weaklings nor feeble, they cannot [and will not] be frightened or browbeaten by verbal assaults and naked threats!

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, February 13^th 2018.